Jadhav Sachin Tukaram, Pune V. Income tax Officer,

ITA 2828/PUN/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5862 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-06-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 13-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, A PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER . / ITA NO.2828/PUN/2016 / ASSESSMENT YEAR : 2011-12 JADHAV SACHIN TUKARAM, C/O. M/S. SHAH KHANDELWAL JAIN & ASSOCIATES, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE 411 001 PAN : AGRPJ8332R VS. ITO, WARD-1, AHMEDNAGAR APPELLANT RESPONDENT / ORDER THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-2, PUNE ON 08-09-2016 IN RELATION TO THE ASSESS MENT YEAR 2011-12. 2. THE FIRST AMENDED GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.79,71,451/- MADE BY THE AO U/S.69A OF THE INCOME- TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) WHICH WAS ENHANCED BY THE LEARNED FIRST APPELLATE AUTHORITY TO RS.1,48, 25,000/- 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E PURCHASED CERTAIN PROPERTIES DURING THE YEAR. THE ASSESS EE EXPLAINED THE SOURCE OF INVESTMENT IN SUCH PROPERTIES, INTER ALIA, AS WITHDRAWALS FROM HIS THREE BANK ACCOUNTS. THE AO DREW CA SH FLOW ASSESSEE BY SHRI RAJIV THAKKAR REVENUE BY SHRI S.P. WALIMBE DATE OF HEARING 16-09-2021 DATE OF PRONOUNCEMENT 17-09-2021 ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 2 STATEMENT AND COMPUTED MINUS CASH BALANCE AT RS.79,71,451/ - AND MADE ADDITION TO THAT EXTENT. THE LD. CIT(A) OBSERVED THAT THE AO FAILED TO TAKE NOTE OF THE THINGS PROPERLY BY WRONGLY GIVING CR EDIT FOR CERTAIN AMOUNTS IN CALCULATING THE ADDITION. HE, THEREFORE, MADE ENHANCEMENT OF THE INCOME AT RS.1,48,25,000/-. AGGRIEVE D THEREBY, THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. THE ASSESSEES EXPLANATION A BOUT THE AMOUNTS WITHDRAWN FROM THE THREE BANK ACCOUNTS ON DIFFER ENT DATES, THAT HAVE BEEN REPRODUCED ON PAGE 15 OF THE IMPUGNED O RDER, IS AS UNDER: (A) CC A/C. NO.769 MAINTAINED WITH BHINGAR URBAN C O- BANK LTD.: SL. NO. DATE OF DEPOSIT AMOUNT (RS.) 1 10/APR/2010 10,00,000/- 2 10/APR/2010 9,00,000/- 3 03/MAY/2010 2,00,000/- 4 08/JUN/2010 60,00,000/- TOTAL 81,00,000/- (B) CC A/C. NO.800 MAINTAINED WITH BHINGAR URBAN CO - BANK LTD.: SL. NO. DATE OF DEPOSIT AMOUNT (RS.) 1 05/OCT/2010 1,50,000/- 2 06/OCT/2010 20,00,000/- 3 28/OCT/2010 1,00,000/- 4 01/NOV/2010 3,00,000/- 5 24/DEC/2010 20,000/- 6 31/DEC/2010 30,00,000/- 7 01/JAN/2011 20,00,000/- 8 15/JAN/2011 6,95,000/- 9 02/FEB/2011 5,00,000/- 10 04/FEB/2011 5,50,000/- ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 3 11 05/MAR/2011 60,000/- TOTAL 93,75,000/- (C) ACCOUNT NO.910020013756781 MAINTAINED WITH AXIS BANK, AHMEDNAGAR: SL. NO. DATE OF DEPOSIT AMOUNT (RS.) 1 24/APR/2010 50,000/- 2 30/NOV/2010 13,00,000/- 3 14/FEB/2011 10,00,000/- TOTAL 23,50,000/- GRAND TOTAL 1,98,25,000/- 5. THE LD. CIT(A) TOTALLED UP SUCH DEPOSITS MADE ON VARIOU S DATES AT RS.1,98,25,000/- AND AFTER ALLOWING BENEFIT OF RS. 50.00 LAKH TOWARDS AN ADJUSTMENT ENTRY, ENHANCED THE ADDITION AT RS.1.48 CRORE. THE LD. AR SUBMITTED THAT THE LD. CIT(A) CONSIDERED ONLY THE DEPOSITS IN THE BANK ACCOUNTS AND IGNORED THE WITHDRAWALS MA DE FROM SUCH ACCOUNTS WHICH WERE RE-DEPOSITED AND ALSO CERTA IN OTHER GENUINE AND EXPLAINED DEPOSITS. THE LD. AR SUBMITTED THAT TH E ADDITION OUGHT TO HAVE BEEN RESTRICTED TO THE EXTENT OF UNEXPLA INED DEPOSITS TO THE TUNE OF RS.18,71,451/- ( RS.9,62,777/ -, RS.2.00 LAKH AND RS.6.00 LAKH IN BHINGAR URBAN CC ACCOUNT NO.769; RS.58,674/- IN BHINGAR URBAN CC ACCOUNT NO.800; AND RS.50,000/- IN AXIS BANK ACCOUNT NO.910020013756781). ON A SPECIFIC QUERY, THE LD. AR COULD NOT SATISFACTORILY EXPLAIN AS TO WHETHER ANY BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSES SEE OR NOT. IT GOES WITHOUT SAYING THAT IF BOOKS OF ACCOUNT ARE MAIN TAINED ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 4 AND THE BANK ACCOUNTS ARE REFLECTED THEREIN, THERE CAN BE NO QUESTION OF ANY UNEXPLAINED DEPOSITS UNLESS A NEGATIVE CASH BALANCE RESULTS IN CASH BOOK. WE COULD NOT FIND OUT ANY REFERENCE AS TO THE MAINTENANCE OF BOOKS OF ACCOUNT EITHER FROM THE ASSESSME NT ORDER OR THE IMPUGNED ORDER. THE LD. AR ALSO COULD NOT STATE C ONCLUSIVELY AS TO WHETHER OR ANY BOOKS OF ACCOUNT WERE MAINTAINED. IN THAT VIEW OF THE MATTER, WE PROCEED WITH THE PRESUMPTION THAT THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNT. EX CONSEQUENTI, THE DEPOSITS AND WITHDRAWALS IN THE BANK ACCOUNTS NEED TO BE EXA MINED INDEPENDENTLY. THE LD. CIT(A) HAS TOTALLED UP ALL THE CASH D EPOSITS IN THE THREE BANK ACCOUNTS AND MADE ADDITION FOR THE SAME EXCEPT FOR AN ADJUSTMENT OF RS.50.00 LAKH. IN THIS PROCESS, H E IGNORED CASH WITHDRAWALS WHICH WERE RE-DEPOSITED IN THE BANK ACCOUNTS OR OTHER EXPLAINED CASH SOURCES. ONCE A PARTICULAR AMOUNT IS WITHDRA WN FROM A BANK ACCOUNT, THE SAME HAS TO BE TREATED AS AVAILA BLE WITH THE ASSESSEE FOR RE-DEPOSIT, UNLESS THE REVENUE SHOWS THAT S UCH WITHDRAWN AMOUNT WAS SPENT ELSEWHERE. THE ASSESSEE HAS PLACED ON RECORD A CHART EXPLAINING SOURCES OF CASH DEPOSITS IN TH E THREE BANK ACCOUNTS WITH NECESSARY REMARKS ON PAGE 26 AND P AGE 26A OF THE PAPER BOOK. THESE DOCUMENTS WERE ADMITTEDLY NOT BEFO RE THE AO. AS THIS EXPLANATION GIVEN IN REMARKS COLUMN HAS NOT BEE N EXAMINED BY THE AUTHORITIES BELOW, WE CONSIDER IT EXPEDIENT TO S ET- ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 5 ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR VETTING THE ASSESSEES EXPLANATION ABOUT THE SOURCE OF D EPOSITS IN THE BANK ACCOUNTS AND THEREAFTER DETERMINE THE AMOUNT OF AD DITION, IF ANY, APART FROM RS.18,71,451/- AS HAS BEEN CONCEDED BY THE LD. AR TO BE DEPOSITS FROM UNEXPLAINED SOURCES. NEEDLESS TO S AY, THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING . 6. THE SECOND AMENDED GROUND IS ABOUT THE CONFIRMATION O F ADDITION OF RS.3.00 LAKH INCURRED TOWARDS EXPENSES INCURR ED ON DEVELOPMENT OF LAND. THE ASSESSEE SOLD A PIECE OF AGRICU LTURAL LAND ON 12-07-2010 FOR RS.10.00 LAKH WHICH WAS PURCHASED O N 08-02- 2010 FOR RS.3.00 LAKH BY INCURRING CERTAIN EXPENSES. T HE ASSESSEE CLAIMED THAT A SUM OF RS.3.02 LAKH WAS INCURRED ON ACCOU NT OF COMMISSION AND DEVELOPMENT. EXCEPT FOR THE NAMES, THE ASS ESSEE DID NOT FURNISH ANY SUPPORTING EVIDENCE IN SUPPORT OF SUCH EXPENSES. THE AO DID NOT ALLOW THE CLAIM OF DEDUCTION OF R S.3.02 LAKH. DURING THE COURSE OF THE FIRST APPELLATE PROCEEDINGS, THE ASSESSEE CAME OUT WITH CERTAIN EVIDENCE IN SUPPORT OF SUCH EXPENSES FOR THE FIRST TIME. THE LD. CIT(A) SENT THE ADDITIONAL EVIDENC E TO THE AO FOR COMMENTS. THE AO REFUSED TO TAKE COGNIZANCE OF THE SAME BY NOTICING THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSE SSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, WHICH HE DID NOT AVAIL. THE LD. CIT(A) SUSTAINED THE ADDITION BY NOTICING THAT TH REE ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 6 CASH RECEIPTS WERE PRODUCED BEFORE HIM IN SUPPORT OF LEV ELLING OF THE LAND, WHICH WERE NOTHING BUT SELF-MADE DOCUMENTS AND FURTHER THAT THERE WAS NO EVIDENCE OF ANY PAYMENT THROUGH BANK AC COUNT. 7. HAVING HEARD BOTH THE SIDES AND GONE THROUGH THE RELEV ANT MATERIAL ON RECORD, IT IS SEEN THAT THOUGH THE ASSESSEE DID N OT INITIALLY SUBMIT EXPLANATION ABOUT INCURRING OF EXPENSES OF RS.3. 02 LAKH IN RESPECT OF THE PIECE OF LAND SOLD BY HIM, HOWEVER, SOME EVIDENCE WAS FURNISHED BEFORE THE LD. CIT(A) AS AN ADDITIO NAL EVIDENCE. IN SUCH CIRCUMSTANCES, THE AO OUGHT TO HAVE EX AMINED THE SAME AND DECIDED ABOUT ITS VERACITY. IN THE GIVEN CIRCUM STANCES, WE SET-ASIDE THE IMPUGNED ORDER ON THIS SCORE AND REMIT THE MATTER TO THE FILE OF THE AO FOR EXAMINING THE ASSESSEES EXPLANATIO N AND THEREAFTER DECIDING THE ISSUE ON MERITS AS PER LAW AFTER GIV ING PROPER OPPORTUNITY OF HEARING. 8. THE LAST MODIFIED GROUND ABOUT THE AGRICULTURAL INCOME OF RS.9.80 LAKH WAS NOT PRESSED BY THE LD. AR. IT IS SEEN TH AT THE AO DID NOT MAKE ANY SEPARATE ADDITION OF RS.9.80 LAKH AND CON SIDERED IT IN THE OVERALL ADDITION TOWARDS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT. THE LD. CIT(A), TOO, DID NOT MAKE ANY SEPARATE ADDITION OF RS.9.80 LAKH. AS THIS GROUND DOES NOT EMANATE EITHER FROM THE ASSESSMENT ORDER OR THE IMPUGNED ORDER, THE LD. AR WAS FAIR ENOUGH NOT TO PRESS THIS GROUND AS THE SAME WOULD AUTOMATICALLY BE TA KEN ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 7 CARE OF BY THE AO WHILE ADJUDICATING THE MODIFIED GROUND NO.1 AS DISCUSSED SUPRA . 9. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2021. SD/- SD/- ( S.S.VISWANETHRA RAVI ) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 17 TH SEPTEMBER, 2021 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, PUNE 4. 5. 6. THE PR. CIT-1, PUNE DR, ITAT, A BENCH, PUNE / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR P RIVATE SECRETARY , / ITAT, PUNE ITA NO.2828/PUN/2016 JADHAV SACHIN TUKARAM 8 DATE 1. DRAFT DICTATED ON 16-09-2021 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16-09-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *