Shri Stalin Chockkalingam Pillai, Vapi V. The Income Tax Officer,Vapi Ward-3, Vapi

ITA 2839/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1961 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R MEENA
• Assessee Lawyers: A GOPALAKRISHNAN
• Keywords: Unexplained cash credit; Revised return; Reassessment proceedings
• Section: 147; 148; 271(1)(c)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NOS.856, 857 & 858/AHD/2013/SRT / ASSESSMENT YEARS: 2004-05, 2005-06 & 2009-10 . / ITA NOS.2838 & 2839/AHD/2014/SRT / ASSESSMENT YEARS: 2004-05 & 2005-06 SHRI STALIN CHOCKKALINGAM PILLAI, FLAT NO. F-102, RAJMOTI COMPLEX, CHHARWADA ROAD, VAPI 396 195. [PAN: AIPPP 1728 F] VS. INCOME TAX OFFICER, VAPI WARD-3, VAPI. ( / APPELLANT) ( !' /RESPONDENT) / ASSESSEE BY : A.GOPALAKRISHNAN, C.A /REVENUE BY : SHRI S.R. MEENA, SR. D.R /DATE OF HEARING : 08-08-2018 /DATE OF PRONOUNCEMENT : 15-10-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THESE FIVE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPE ALS), VALSAD (CIT(A) FOR SHORT) DATED 28.12.2012 & 20.08.2014 RESPECTIVELY FOR THE ASSESSMENT YEARS (A.YS) 2004-05, 2005-06 & 2009-10. 2. BOTH THE PARTIES SUBMITTED THAT FACTS AND CIRCUM STANCES OF ITA NO.856 & 857/AHD/2013/SRT FOR AY 2004-05 & 2005-06 ARE QUITE 2 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI IDENTICAL AND SIMILAR. IN THE BEGINNING OF HEARING , THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE ASSESSEE DOE S NOT WANT TO PRESS GROUND NO.1 IN BOTH THE APPEALS HENCE, THE SAME IS DISMISSED AS NOT PRESSED. FOR THE SAKE OF CONVENIENCE AND BREVITY, WE TAKE APPEAL FOR AY 2004-05 AS LEAD CASE AND THE REMAINING SOLE GROU ND NO.2 RAISED BY THE ASSESSEE ITA NO.856/AHD/2013/SRT READS AS FOLLO WS: ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE LEARNED ASSESSING OFFICER IN MAKING ADDITION TO THE TUNE RS. 70,000/- TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S. 69A OF THE ACT. THE ACTION OF THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) IS BASED ON PRESUMPTIONS ONLY, CONTRA RY TO THE FACTS OF THE CASE AND LAW AND DESERVES TO BE DELETED. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. AR SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMI NG THE LEARNED ASSESSING OFFICER IN MAKING ADDITION TO THE TUNE RS . 70,000/- TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S. 69A OF THE ACT . THE ACTION OF THE LD. CIT(A) IS BASED ON PRESUMPTIONS ONLY, CONTRARY TO THE FACTS OF THE CASE AND LAW AND DESERVES TO BE DELETED. THE LD. AR ALSO SUBMITTED THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY ITAT, AHMED ABAD A BENCH ORDER DATED 26.10.2016 FOR AY 2008-09 IN ITA NO.218 7/AHD/2015, WHEREIN PARA 10 THE TRIBUNAL ALLOWED AMOUNT DEPOSIT ED BY THE ASSESSEE IN THE FORM OF CHEQUES AND REMAINING AMOUNT OF CASH NET CASH DEPOSIT, OPENING BALANCE IN THE BANK ACCOUNT AND AMOUNT OF I NTEREST CREDITED BY 3 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI THE BANK WAS TAKEN FOR THE PURPOSE OF TAXATION AND ADDITION HAS BEEN RESTRICTED TO THIS EXTENT ONLY. 4. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS SUO MOTO OFFERED AN AMOUNT OF RS. 70,000/- IN THE REVISED RETURN OF INC OME FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT WITHIN PRESCRIBED TIME OF SIX MONTHS FROM THE DATE OF RECEIPT OF NOTICE DECLARING INCOME OF R S. 2,18,690/- INCLUDING AN AMOUNT OF RS. 70,000/-. THE LD. AR ALSO SUBMITT ED THAT FOR AY 2004- 05 THERE WAS NO OPENING BALANCE BUT THE ACCOUNT WAS OPENED BY DEPOSITING RS. 10,000/- & RS. 50,000/- WERE DEPOSIT ED IN CASH TOTALING TO RS. 60,000/- OUT OF WHICH RS. 50,000/- WERE TRAN SFERRED TO AUTOSWEEP FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. THE L D. AR ALSO SUBMITTED THAT WHEN THE ASSESSEE IN THE RETURN, WHICH WAS FIL ED WITHIN PRESCRIBED TIME OF SIX MONTHS FROM THE DATE OF RECEIPT OF NOTI CE U/S. 148 OF THE ACT, HAS OFFERED RS. 70,000/- SUO MOTO THEN, ANY FURTHER ADDITION WOULD AMOUNT TO DOUBLE ADDITION AND TAXATION THEREFORE, I MPUGNED ADDITION MAY KINDLY BE DELETED. 5. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) SUBMITTED THAT THERE WAS CASH DEPOSITS OF RS. 50,00 0/- IN AY 2004-05 AND OF RS. 9,29,275/- IN AY 2005-06 THEREFORE, THE AO WAS RIGHT IN MAKING ADDITION AND THE SAME WAS RIGHTLY UPHELD BY THE LD. CIT(A). HOWEVER, HE, IN ALL FAIRNESS, DID NOT CONTROVERT TH E FACT THAT THE TRIBUNAL 4 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI HAS GRANTED RELIEF TO THE ASSESSEE BY ORDER DATED 2 6.10.2016 IN PARAS 7- 10, IN ASSESSEES OWN CASE FOR AY 2008-09 ON THE ID ENTICAL ISSUE RESTRICTING THE ADDITION TO THE NET AMOUNT OF UNEXP LAINED CASH DEPOSIT, OPENING BALANCE AND AMOUNT OF INTEREST CREDITED BY THE BANK. HOWEVER, HE DID NOT CONTROVERT THE FACT STATED BY THE LD. AR THAT THE ASSESSEE FILED RETURN IN RESPONSE TO NOTICE U/S. 148 OF THE ACT WI THIN PRESCRIBED TIME LIMIT. 6. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE VIEW THAT FROM THE COPY OF THE FACTUAL POSITION OF SIX ASSESSMENT YEARS FROM AY 2004-05 TO 2009-10 INCLUDING AY 2008-09, WH EREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT ONLY NET AMOUNT OF CASH DEPOSIT, OPENING BALANCE OF BANK ACC OUNT AND INTEREST CREDITED BY THE BANK ON THE DEPOSITS HAS TO BE TAKE N FOR ADDITION AND ADDITION HAS BEEN RESTRICTED TO THIS EXTENT ONLY. IN THE PRESENT AY 2004- 05, UNDISPUTEDLY THE ASSESSEE OPENED ACCOUNT BY WAY OF DEPOSITING RS. 10,000/- AND THEREAFTER ENTIRE PERIOD DEPOSITED CAS H AMOUNT OF RS. 50,000/- OUT OF WHICH RS. 50,000/- WERE TRANSFERRED TO AUTOSWEEP. THESE FACTS HAVE NOT BEEN CONTROVERTED BY THE AO AN D LD. DR DURING ARGUMENTS BEFORE US. IT IS ALSO NOT IN DISPUTE THA T THE ASSESSEE IN RESPONSE TO NOTICE U/S. 148 OF THE ACT FILED REVISE D RETURN WITHIN PRESCRIBED TIME LIMIT OF SIX MONTHS FROM THE DATE O F RECEIPT OF NOTICE AND 5 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI SUO MOTO DECLARED RS. 70,000/- FOR TAXATION WHICH INCLUDES BOTH THE AMOUNTS I.E., AMOUNT OF CASH OF RS. 10,000/- DEPOSI TED AT THE TIME OF OPENING THE BANK ACCOUNT AND SUBSEQUENT DEPOSIT OF RS. 50,000/-. THE LD. DR HAS NOT DISPUTED THE FACT THAT THE ORIGINAL RETURN ASSESSEE DECLARED INCOME OF RS. 1,48,690/- AND IN THE REVISE D RETURN BY ADDITION RS. 70,000/-, THE ASSESSEE DECLARED AMOUNT OF RS. 2 ,18,690/-. HENCE, KEEPING IN VIEW THE ORDER OF TRIBUNAL FOR AY 2008-0 9 DATED 26.10.2016 AND FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT NO FURTHER ADDITION IS REQUIRED TO BE MADE TO THE RETURNED INCOME OF THE ASSESSEE FILED DURING THE COURSE OF R EASSESSMENT PROCEEDINGS U/S. 147/148 OF THE ACT HENCE, WE DIREC TED THE AO TO DELETE THE ADDITION OF RS. 70,000/-. ACCORDINGLY, SOLE GRO UND NO.2 OF THE ASSESSEE IS ALLOWED. ITA NO. 857/AHD/2013/SRT FOR AY 2005-06: 7. SINCE, BOTH THE PARTIES HAVE AGREED THAT EXCEPT THE AMOUNTS OF DEPOSITS, OTHER FACTS OF AY 2005-06 ARE IDENTICAL T O THE FACTS AND CIRCUMSTANCES OF OTHER FOUR AYS INCLUDING AY 2004-0 5 & 2008-09. THEREFORE, BOTH THE PARTIES REITERATED THEIR ARGUME NTS ADVANCE DURING THE HEARING OF APPEAL OF AY 2004-05. THE LD. AR AL SO SUBMITTED THAT IN AY 2005-06, THE OPENING BALANCE OF BANK ACCOUNT WAS RS. 10,000/- WHICH IS COVERED IN THE AMOUNT OF RS. 70,000/- SUO MOTO DECLARED BY THE 6 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI ASSESSEE FOR AY 2004-05 THEREFORE, OPENING BANK BAL ANCE/AMOUNT BROUGHT FORWARD IS SELF-EXPLAINED. THE LD. AR FURTH ER SUBMITTED THAT UNDISPUTEDLY FOR AY 2005-06 AMOUNT OF CASH DEPOSIT WAS RS. 9,29,275/- OUT OF WHICH CASH WITHDRAWALS WERE RS. 8,20,050/- A ND NET CASH DEPOSIT COMES TO RS. 1,09,225/- AND AMOUNT OF BANK INTEREST CREDITED TO THIS ACCOUNT IS RS. 1,747/-. FROM PARA 7 TO 10 OF THE T RIBUNAL ORDER DATED 26.10.2016 FOR AY 2008-09, IT IS CLEARLY DISCERNABL E THAT THE TRIBUNAL HAS UPHELD THE FINDINGS OF LD. CIT(A) THAT THE AMOUNT O F CHEQUES HAS BEEN ACCEPTED BY THE AO THEN, THE AO SHOULD HAVE ACCEPTE D THE NATURE OF THE CASH DEPOSIT AND THE LD. FIRST APPELLATE AUTHOR ITY CONCLUDED THAT THE AMOUNT EXPLAINED BY THE ASSESSEE SHOULD BE ALLOWED AND BALANCE AMOUNT ALONG WITH OPENING BALANCE AND INTEREST CRED ITED TO THE BANK ACCOUNT SHOULD BE ADDED TO THE INCOME OF THE ASSESS EE. 8. THE LD. DR REITERATING THE SUBMISSIONS AND CONTE NTIONS SUBMITTED FOR AY 2004-05 CONTENDED THAT AO WAS RIGHT IN MAKIN G ADDITION ON ACCOUNT OF CASH DEPOSITS MADE BY THE ASSESSEE AND T HE LD. CIT(A) WITHOUT ANY BASIS GRANTED RELIEF TO THE ASSESSEE TH EREFORE, IMPUGNED ORDER MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE AO. HOWEVER, HE DID NOT CONTROVERT THE FACT STATED BY THE LD. AR TH AT THE RETURN IN RESPONSE TO NOTICE U/S. 148 OF THE ACT WAS FILED WI THIN PRESCRIBED TIME LIMIT. 7 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI 9. FOR AY 2005-06 UNDISPUTEDLY, THE ASSESSEE FILED RETURN OF INCOME SHOWING INCOME OF RS. 1,03,988/- AND IN THE RETURN , WHICH WAS FILED WITHIN PRESCRIBED TIME IN RESPONSE TO NOTICE U/S. 1 48 OF THE ACT, THE ASSESSEE ALSO OFFERED INCOME OF RS. 1,76,000/- AND FILED RETURN OF RS. 2,80,790/- BUT THE AO MADE ADDITION OF RS. 9,29,275 /- I.E., ENTIRE AMOUNT OF CASH DEPOSITS. IN VIEW OF TRIBUNAL ORDER FOR AY 2008-09, WE ARE NOT CONVINCED WITH THE LOGIC ADOPTED BY THE AO WHILE DI SALLOWING ENTIRE AMOUNT OF CASH DEPOSITS. IN AY 2008-09, THE LD. CI T(A) ON THE SIMILAR FACTS AND CIRCUMSTANCES ALLOWED AMOUNT OF CASH WITH DRAWAL OF RS. 21,18,710/- AND CHEQUES PAID TO THE BRANCH OFFICE/V EHICLE OWNER OF RS. 92,554/- TOTAL RS. 22,11,264/- AND REMAINING AMOUNT OF UNEXPLAINED CASH DEPOSIT OF RS. 6,70,788/- ALONG WITH OPENING B ALANCE OF BANK ACCOUNT OF RS. 1,52,116/- AND INTEREST CREDITED BY THE BANK OF RS. 2,261/- WAS ALSO ADDED TO THIS AMOUNT AND THE ADDIT ION WAS RESTRICTED TO RS. 8,25,155/-. ON BEING ASKED BY THE BENCH, THE L D. DR SUBMITTED THAT THE TO THE BEST OF KNOWLEDGE THERE IS NO APPEAL AGA INST THE ORDER OF TRIBUNAL (SUPRA) BEFORE THE HON'BLE HIGH COURT HENC E, WE SAFELY PRESUME THAT THE DEPARTMENT HAS ACCEPTED TRIBUNAL O RDER FOR AY 2008- 09. 10. APPLYING THE SAME RATIO/PROPOSITION RENDERED IN THE TRIBUNAL ORDER FOR AY 2008-09 TO PRESENT AY 2005-06, WE OBSERVE TH AT THE TOTAL CASH 8 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI DEPOSITS ARE OF RS. 9,29,275/- AND CASH WITHDRAWALS ARE OF RS. 8,20,050/-AND NET CASH DEPOSIT REMAINS RS. 1,09,225 /- PLUS AMOUNT OF INTEREST CREDITED BY THE BANK OF RS. 1,747/- AND OP ENING BALANCE OF BANK ACCOUNT RS. 10,000/-. AS WE HAVE NOTED ABOVE THAT THE OPENING BALANCE IS UNDISPUTEDLY AMOUNT BROUGHT FORWARD FROM THE AY 2004-05 AND IN THIS YEAR THE ASSESSEE HAS SUO MOTO OFFERED TO TAX RS. 70,000/- IN THE RETURN OF INCOME WHICH INCLUDES AMOUNT DEPOSITE D BY THE ASSESSEE WHILE OPENING THE BANK ACCOUNT AND THE SAME IS INCL UDED IN THE AMOUNT OF RS. 70,000/- WHICH CANNOT BE TAKEN AS UNEXPLAINE D INCOME OF THE ASSESSEE FOR TAXATION PURPOSES. THEREFORE, TOTAL A MOUNT DESERVE TO BE ADDED IS RS. 1,09,225/- AND RS. 1,747/-. THE ASSES SEE HAS ALREADY SHOWN ADDITIONAL INCOME OF RS. 1,76,000/- FOR AY 20 05-06 AND HAS FILED REVISED RETURN SHOWING INCOME OF RS. 2,80,790/- THE REFORE, NO FURTHER ADDITION IS REQUIRED TO BE MADE ON ACCOUNT OF CASH DEPOSITS BY THE ASSESSEE. 11. IN VIEW OF FOREGOING DISCUSSION, WE REACH TO A LOGICAL CONCLUSION THAT THE AO WAS NOT CORRECT AND JUSTIFIED IN MAKING ADDITION OF ENTIRE AMOUNT OF CASH DEPOSITS DURING THE PERIOD AND THE O RDER OF THE TRIBUNAL DATED 26.10.2016 SUPPORTS THE CASE OF THE ASSESSEE THAT NO FURTHER ADDITION WAS REQUIRED TO BE MADE IN VIEW OF THE REV ISED RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 148 OF THE ACT DECLARING ADDITION 9 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI INCOME OF RS. 1,76,000/-. THEREFORE, SOLE GROUND NO .2 OF THE ASSESSEE IS ALLOWED AND AO IS DIRECTED TO DELETE THE ADDITIO N MADE FOR AY 2005- 06. PENALTY APPEAL OF THE ASSESSEE ITA NOS.2838 & 2839/ AHD/2014/SRT: 12. THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE C HALLENGING THE UPHOLDING OF PENALTY BY THE LD. CIT(A) IMPOSED BY T HE AO U/S. 271(1)(C) OF THE ACT, ON THE STRENGTH ADDITIONS MADE BY THE A O ON ACCOUNT OF CASH DEPOSITS MADE BY THE ASSESSEE TO ITS BANK ACCOUNTS DURING THE RELEVANT PERIODS. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. 13. SINCE, BY THE EARLIER PART OF THIS ORDER, WE HA VE DELETED THE QUANTUM ADDITION MADE BY THE ASSESSEE FOR BOTH THE AYS THEREFORE, PENALTY IMPOSED BY THE AO AND UPHELD BY THE LD. CIT (A) U/S. 271(1)(C) OF THE ACT CANNOT BE HELD AS SUSTAINABLE AND WE DIRECT THE AO TO DELETE THE SAME FOR THE AYS. ACCORDINGLY, SOLE GROUND OF THE ASSESSEE FOR AYS 2004-05 & 2005-06 IS ALSO ALLOWED. ITA NO. 858/AHD/2013/SRT FOR AY 2009-10: 14. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND C AREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. AR AS WELL AS THE LD. DR REITERATED THE ARGUMENTS ADVANCE BY THEM FOR AY 2004-05 AND SUBMITTED THAT ALL THE FACTS FOR AY 200 9-10, EXCEPT THE FACT 10 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI OF INITIATION OF REASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT AND NOTICE U/S. 148 OF THE ACT, OTHER ALL FACTS AND CIRCUMSTAN CES OF THE PRESENT AY UNDER CONSIDERATION ARE IDENTICAL AND SIMILAR TO TH E EARLIER ASSESSMENT YEARS 2004-05 & 2005-06. 15. ELABORATING THE FACTS OF AY 2009-10, THE LD. AR SUBMITTED THAT TOTAL AMOUNT RECEIVED FROM TRANSPORTERS WAS RS. 23,58,157 /- AND AMOUNT OF CASH DEPOSIT INCLUDED THEREIN WAS RS. 16,66,564/- A ND AFTER MAKING PAYMENT TO THE VEHICLE OWNERS AND BANK CHARGES OF R S. 2,557/- AND AFTER ADDING MISCELLANEOUS INCOME OF RS. 527/- AND BANK INTEREST CREDITED BY THE BANK OF RS. 1,968/- THE REMAINING A MOUNT WAS RS. 12,63,377/- AND THE ASSESSEE EARNED INCOME OF RS. 1 0,97,245/- AND IN THE REVISED RETURN OF INCOME OFFERED TO TAX ADDITIO NAL AMOUNT OF RS. 13,51,089/- WHICH WAS SUBMITTED ON 31.03.2011 OFFER ING TO TAX TOTAL INCOME OF RS. 16,46,876/- INCLUDING AMOUNT OF RS. 2 ,95,775/- WHICH WAS SHOWN IN THE ORIGINAL RETURN OF INCOME. THE LD. AR VEHEMENTLY SUBMITTED THAT WHEN THE ASSESSEE HAS SHOWN AND SURRENDERED AD DITIONAL INCOME OF RS. 13,51,039/- FOR AY 2009-10, WHEREAS NET OF C ASH DEPOSIT COMES TO RS. 12,63,377/- THEN, NO FURTHER DISALLOWANCE CO ULD HAVE BEEN MADE VALIDLY TO THE INCOME OF THE ASSESSEE SHOWN IN THE REVISED RETURN. THE LD. AR SUBMITTED THAT IF ANY FURTHER ADDITION IS MA DE THEN, THAT WOULD 11 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI AMOUNT TO DOUBLE ADDITION AND DOUBLE TAXATION WHICH IS ALSO UNJUSTIFIED AND UNREASONABLE ON THE PART OF THE ASSESSEE. 16. THE LD. AR ALSO SUBMITTED THAT AS PER TRIBUNAL ORDER DATED 26.10.2016 FOR AY 2008-09 (SUPRA) PARAS 7-10 OUT OF TOTAL DEPOSITS OF CASH AND CHEQUES AND BY ADDING OPENING BANK BALANCE IN THE BEGINNING OF YEAR AND AMOUNT OF INTEREST CREDITED BY THE BANK TOTAL OF THESE THREE AMOUNTS AND AFTER DEDUCTING THE AMOUNT OF CASH WITH DRAWALS AND AMOUNT OF PAYMENT MADE TO THE VEHICLE OWNERS/BRANCH OFFICE FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. THE REMAINING AMOUNT WAS TO BE ADDED TO THE INCOME OF THE ASSESSEE AND FOR THIS YE AR AY 2008-09, THE ASSESSEE FILED RETURN OF INCOME SHOWING INCOME OF R S. 2,66,154/- AND THEREFORE, ADDITION WAS RESTRICTED BY THE TRIBUNAL TO RS. 8,25,155/- BUT IN THE PRESENT AY 2008-09 THE ASSESSEE, IN THE REVISED RETURN SUO MOTO OFFERED AN AMOUNT OF RS. 13,51,102/- WHICH IS HIGHE R THAN THE NET AMOUNT OF RS. 12,63,377/- CALCULATED AS PER DIRECTI ONS OF THE TRIBUNAL ORDER (SUPRA). 17. THE LD. DR SUBMITTED THAT THE AO WAS RIGHT IN M AKING ADDITION ON ACCOUNT OF CASH DEPOSITS TO THE BANK ACCOUNT OF THE ASSESSEE. HOWEVER, IN ALL FAIRNESS, HE ACCEPTED THAT ON THE I DENTICAL FACTS AND CIRCUMSTANCES, THE TRIBUNAL HAS GRANTED PART RELIEF TO THE ASSESSEE FOR AY 2008-09 BY ORDER DATED 26.10.2016 (SUPRA). 12 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI 18. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISS IONS, WE ARE OF THE VIEW THAT UNDISPUTEDLY, FOR AY 2009-10 THE TOTAL AM OUNT OF CASH DEPOSIT WAS RS. 16,66,564/- AND AMOUNT OF CHEQUE DEPOSIT WA S RS. 6,91,563/- IN ADDITION TO THESE DEPOSITS THE ASSESSEE ALSO EAR NED MISCELLANEOUS INCOME OF RS. 527/- AND RS. 1,968/- WAS CREDITED AS INTEREST TO THE BANK ACCOUNT WHICH COMES TO RS. 23,60,622/- AND AFTER DE DUCTING AN AMOUNT OF RS. 12,60,820/-, WHICH INCLUDES CASH WITHDRAWAL OF RS. 9,50,150/- AND CHEQUE/AMOUNT PAID TO THE BRANCH OFFICE/VEHICLE OWN ERS, AND AMOUNT OF BANK CHARGES OF RS. 2,557/- THE NET AMOUNT OF CASH DEPOSITS COMES TO RS. 12,63,377/- AND THE ASSESSEE, IN THE REVISED RE TURN OF INCOME FILED WITHIN PRESCRIBED TIME LIMIT, AS ALREADY OFFERED AD DITIONAL INCOME OF RS. 13,51,039/- THEN, FURTHER ADDITION OF RS. 16,64,564 /- I.E., ENTIRE AMOUNT OF CASH DEPOSIT IS NOT JUSTIFIED AND SUSTAINABLE IN VI EW OF THE OBSERVATIONS AND FINDINGS OF THE TRIBUNAL IN THE ORDER DATED 26. 10.2016 (SUPRA). THESE FACTS, APPARENT ON THE RECORD, HAVE NOT BEEN CONTROVERTED, IN ANY MANNER, BY THE LD. DR. WE ALSO INCLINED TO HOLD TH AT AS UNDISPUTEDLY, THE ASSESSEE HAS ALREADY OFFERED AN AMOUNT OF RS. 1 3,51,039/- IN THE REVISED RETURN AS ADDITIONAL INCOME THEN, FURTHER A DDITION ON THE SAME ISSUE OF CASH DEPOSITS WOULD CERTAINLY AMOUNT TO DO UBLE ADDITION AND DOUBLE TAXATION ON THE SAME CASH DEPOSITS WHICH IS NOT PERMISSIBLE AND JUSTIFIED IN THE LIGHT OF ORDER OF COORDINATE BENCH OF TRIBUNAL FOR AY 2008- 13 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI 09 DATED 26.10.2016 (SUPRA) AND AS PER MANDATE OF P ROVISIONS OF THE ACT. THEREFORE, ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) U/S. 69A OF THE ACT IS NOT SUSTAINABLE AND WE DEMOL ISH THE SAME. IT IS ALSO PERTINENT TO NOTE THAT, THE AO HAS MADE ADDITI ON ON THE ALLEGATION OF CASH DEPOSITS U/S. 69A OF THE ACT BUT IN OUR HUMBLE UNDERSTANDING OF PROVISION OF S. 69A OF THE ACT THE ADDITION UNDER T HIS PROVISION CANNOT BE MADE ON THE ALLEGATION AND FACTUM OF CASH DEPOSITS TO THE BANK ACCOUNT OF TRANSPORTER/ASSESSEE OR ANY OTHER BUSINESS ENTER PRISE, WHO CLAIM THAT THE AMOUNT IS PERTAINING TO THE RECEIPTS/SALE PROCE EDS HAVING NEXUS WITH HIS BUSINESS ACTIVITIES. THEREFORE, ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) ALSO FAILS ON THIS COUNT. ACCORD INGLY, IN VIEW OF FOREGOING DISCUSSION AND FINDINGS RECORDED IN THE E ARLIER PARAGRAPHS OF THIS ORDER, THE SOLE GROUND OF THE ASSESSEE IS ALLO WED AND AO IS DIRECTED TO DELETE THE ADDITION. 19. IN THE RESULT, ALL THE FIVE APPEALS OF TH E ASSESSEE ARE ALLOWED IN THE MANNER AS INDICTED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 5 TH OCTOBER, 2018. / SURAT ; DATED : 15 TH OCTOBER, 2018 / EDN ! $ / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. # ( ) / THE CONCERNED CIT; 4. THE CONCERNED PRL. CIT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE. SD/- SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER 14 ITA NOS.856, 857 &858/AHD/2013/SRT (A.YS: 2004-05, 2005-06 & 2009-10) ITA NOS.2838 & 2839/AHD/2014/SRT (A .Y: 2004-05 & 2005-06) SHRI STALIN CHOCKKALINGAM PILLAI