Shri Amit T. Patel, Navsari V. The Income Tax Officer, Ward-1, Navsari

ITA 2883/AHD/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2185 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 14-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K CHANDNANI
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Unexplained investment; Income from undisclosed sources; Earning of tax free income
• Section: 68; 69; 143(3)

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 NO.2883/AHD/2015/SRT / ASSESSMENT YEAR: 2011-12 SHRI AMITKUMAR T. PATEL, PLOT NO.262, AT & POST. DHAMAN, NAVSARI. [PAN: AHAPP 6073H] VS. INCOME TAX OFFICER, WARD-1, NAVSARI. ( / APPELLANT) ( !' /RESPONDENT) . / ITA NO.2927/AHD/2015/SRT / ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER, WARD-1, NAVSARI. SHRI AMITKUMAR T. PATEL, PLOT NO.262, AT & POST. DHAMAN, NAVSARI. [PAN: AHAPP 6073H] ( / APPELLANT) ( !' /RESPONDENT) / ASSESSEE BY : SHRI RASESH SHAH, C.A /REVENUE BY : SHRI J.K. CHANDNANI, SR. D.R /DATE OF HEARING : 07-09-2018 / DATE OF PRONOUNCEMENT : 18-09-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), 2 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL VALSAD (CIT(A) FOR SHORT) DATED 19.08.2015 FOR TH E ASSESSMENT YEAR (A.Y) 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN MAKING ADDITION OF RS. 2,05,540/- ON ACCOU NT OF AGRICULTURE INCOME AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE I . T. ACT, 1961. 2. IT IS THEREFORE PRAYED THAT ABOVE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A) MAY PLEASE BE DELET ED. 3. THE GROUNDS RAISED BY THE REVENUE READ AS FOLLOW S: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,7 6,97,000/- MADE UNDER U/S 69 WITHOUT APPRECIATING THE FACTUAL MATRI X CLEARLY BROUGHT OUT BY THE AO. 2. THE ID.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,76,97,000/- WITHOUT APPRECIATING THE FACT THAT THE SOURCE OF HU GE CASH DEPOSIT MADE IN THE BANK ACCOUNT OPERATED BY ASSESSEE WERE NOT EXPLAINED AND THE PRIMARY ONUS OF PROVING THE SOURC E WERE NOT DISCHARGED BY THE ASSESSEE, EVEN THOUGH CASH DEPOSI TS IN THE BANK ACCOUNTS OF FAMILY MEMBERS WERE MADE BY THE AS SESSEE HIMSELF. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CLT(A) HAS ERRED IN DELETING THE ADDITION OF RS.8,6 4,267/- MADE UNDER U/S 69 WITHOUT APPRECIATING THE FACTUAL MATRI X CLEARLY BROUGHT OUT BY THE AO. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF UNACCO UNTED BANK INTEREST OF RS.1,16,579/- MADE UNDER U/S 69 WITHOUT APPRECIATING THE FACTUAL MATRIX CLEARLY BROUGHT OUT BY THE AO. 5. IT IS PRAYED THAT THE ORDER OF THE CIT(A) MAY BE SET-ASIDE AND THAT THE ORDER OF THE A.O. MAY BE RESTORED. ASSESSEES APPEAL ITA NO.2883/AHD/2015/SRT : 4. 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. 3 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT ON TH E FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUB JECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS CROSSLY ER RED AND WAS NOT JUSTIFIED AND REASONABLE IN CONFIRMING ADDITION OF RS. 2,05,540/- MADE BY THE ASSESSING OFFICER (AO) ON ACCOUNT OF AGRICULTUR E INCOME AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). THE LD. AR SUBMITTED THAT THE ASSESSEE OWNS AGRICULTURAL LAND AND EXEMPT INCOME HAS BEEN EARNED THERE FROM SALE O F CROP PRODUCED ON THE AGRICULTURAL LAND AND THIS FACT CANNOT BE DOUBT ED IN ANY MANNER THEREFORE, ADDITION WAS MADE BY THE AO WITHOUT BRIN GING OUT ANY COGENT AND SUBSTANTIAL REASON AND THE SAME WAS CONFIRMED B Y THE LD. CIT(A) WITHOUT APPLICATION OF MIND AND KEEPING ASIDE THE E XPLANATION AND CONTENTION OF THE ASSESSEE. THEREFORE, THE LD. AR S UBMITTED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CI T(A) MAY KINDLY BE DELETED. 5. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) SUBMITTED THAT ONUS ON THE ASSESSEE TO ESTABLISH TH AT HE HAS EARNED AGRICULTURAL INCOME WHICH IS EXEMPT AND THE ASSESSE E COULD NOT DISCHARGE SUCH ONUS THEREFORE, THE AUTHORITIES BELO W WERE RIGHT IN MAKING ADDITION AND CONFIRMING THE SAME. 4 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL 6. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE VIEW THAT THE LD. AO MADE ADDITION BY OBSERVING THA T THE ASSESSEE COULD NOT PROVE THAT EXPENSES SHOWN BY HIM WERE ADQAUT6E TO COVER OR REAP THE CROPS TO THE EXTENT SHOWN BY HIM. THE LD. AO F URTHER NOTED THAT COST OF ELECTRICITY, FUEL, FERTILIZER, SEEDS, AND TRANSP ORTATION HAS SHORTLY RISEN DURING THE YEAR THEREFORE, EXPENSES SHOWN BY THE AS SESSEE WERE HELD TO BE UNDER STATED ON LOWER SIDE. THE AO HELD THAT TO AVAIL PRODUCTION OF AGRICULTURE PRODUCE SHOWN BY THE ASSESSEE THE EXPEN SES ARE QUITE LOW THE ASSESSEE HAS NOT PRODUCE ANYTHING ON RECORD TO ESTABLISH THAT HOW HE COULD OBTAIN SUCH A HIGH YIELD BY SPENDING LESS ON EXPENSES RELATED TO AGRICULTURAL INCOME. THE AO ALSO NOTED THAT NO SU PPORTING EVIDENCE TO SUPPORT RECEIPTS ON ACCOUNT OF AGRICULTURAL INCOME OR BILLS IN SUPPORT OF AGRICULTURE RELATED EXPENSES SUCH AS FERTILIZERS SE EDS, PESTICIDES, LABOUR ETC. WERE SUBMITTED WHICH AGAIN SUPPORTS THE ALLEGA TION AND STAND OF THE AO. BEFORE US ALSO THE LD. AR COULD NOT SHOW US AN Y DOCUMENTARY EVIDENCE SUPPORTING THE FACT OF EXPENDING AMOUNTS O N AGRICULTURE ACTIVITY AND FOR PROCUREMENT OF AGRICULTURE CROP THEREFORE, THE APPELLANT COULD NOT NEGATE THE ALLEGATIONS AND CONTENTION OF THE AO. 7. FROM THE RELEVANT PART OF THE FIRST APPELLATE OR DER PG. 32 & 33, IT IS APPARENT THAT THE LD. CIT(A) ALSO CONFIRMED THE ADD ITION AFTER CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND BY OBSERVING THREE POINTS VIZ. I) APPELLANT HAD SHOWN GROSS RECEIPT O F AGRICULTURAL INCOME OF 5 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL RS. 9,36,713/- AGAINST WHICH EXPENSES OF RS. 3,83,2 00/- HAS BEEN SHOWN AND HAS DECLARED AGRICU7LTUR4AL INCOME AT RS. 4,55, 540/- IN THE RETURN OF INCOME WHILE AS PER INCOME AND EXPENDITURE ACCOUNT IT WAS RS. 5,56,513/- CAUSING A DIFFERENCE OF RS. 1,00,973/- W HICH IS INCORRECT, SECONDLY THE CLAIM OF APPELLANT OF EXPENDITURE OF R S. 3,80,200/- HAS NOT BEEN SUPPORTED BY ANY BILL OR VOUCHERS THIRDLY APPE LLANT HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS TO SUBSTANTIATE RE AL QUANTUM OF AGRICULTURAL INCOME. WITH THESE OBSERVATIONS, THE LD. CIT(A) CONFIRMED THE ADDITION BY CONCLUDING THAT AGRICULTURAL INCOME HAS BEEN INCOME ON HIGHER SIDE AND THE QUANTUM OF AGRICULTURAL INCOME SHOWN AS WELL AS EXPENSES CLAIMED ARE ON ESTIMATED BASIS. ON THESE FINDINGS, THE LD. AR COULD NOT SHOW US ANY CONTRARY SITUATION OR FACTS T O COMPEL US TO HOLD THAT THE OBSERVATIONS OF THE AUTHORITIES BELOW ARE NOT S USTAINABLE. IN THIS SITUATION, WE ARE INCLINED TO HOLD THAT THE ADDITIO N MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS QUITE JUSTIFIED AND BASED ON COGENT REASONS AND WE ARE UNABLE TO SEE ANY VALID REASON TO INTERF ERE WITH THE SAME. HENCE, THE CONCLUSION DRAWN BY THE AUTHORITIES BELO W IS UPHOLD AND CONSEQUENTLY SOLE GROUND OF ASSESSEE BEING DEVOID O F MERITS IS DISMISSED BY UPHOLDING THE ADDITION. REVENUE APPEAL ITA NO.2927/AHD/2015/SRT : 8. GROUNDS NO.1 & 2: WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE 6 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL TRIBUNAL. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTING THE ASSESSMENT ORDER AND SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,76,97,000/- MADE UNDER U/S 69 WITHOUT APPRECIATING THE FACTUAL MATRIX CLEARLY BROUGHT OUT BY THE AO. HE FURTHER SUBMITTED THAT THE ID. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.2,76,97,000/- WITHOUT APPRECIATING THE FACT THAT THE SOURCE OF HU GE CASH DEPOSIT MADE IN THE BANK ACCOUNT OPERATED BY ASSESSEE WERE NOT EXPL AINED AND THE PRIMARY ONUS OF PROVING THE SOURCE WERE NOT DISCHAR GED BY THE ASSESSEE, EVEN THOUGH CASH DEPOSITS IN THE BANK ACCOUNTS OF F AMILY MEMBERS WERE MADE BY THE ASSESSEE HIMSELF. 9. REFERRING TO THE RELEVANT OPERATIVE PART OF THE ASSESSMENT ORDER, THE LD. DR SUBMITTED THAT THERE WERE CASH DEPOSITS OF R S. 2,11,22,000/-. ALL THE BANK ACCOUNTS WERE OPERATED BY THE ASSESSEE. T HE ONUS TO EXPLAIN THE DEPOSITS LIES ON THE ASSESSEE MORE SPECIFICALLY WHEN THE ASSESSEE IS OPERATING THE ACCOUNTS AND OPERATED ON THE AUTHORIT Y OF HIS PAN. THE ASSESSEE HAS FAILED TO EXPLAIN SOURCE OF THESE DEPO SITS. RETURNS OF INCOME FILED IN THE NAMES OF FAMILY MEMBERS SHOWING INCOME FROM OTHER SOURCE WHICH IS JUST IN THE MARGIN OF MINIMUM THRES HOLD LIMIT OF INCOME CHARGEABLE TO TAX. THE INCOME DECLARED BY THE ASSE SSEE OR HIS FAMILY MEMBERS IS NOT IN COMMENSURATE WITH CASH DEPOSITS. THE ASSESSEE HAS NOT EXPLAINED PURPOSE OF MANDATE HOLDING AND CLOSIN G THE BANK ACCOUNTS JUST AFTER UTILIZATION OF CASH DEPOSITS. THEREFORE , ENTIRE CASH DEPOSITS WAS 7 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL RIGHTLY HELD TO BE INCOME EARNED FROM UNDISCLOSED S OURCES AND THE AO WAS RIGHT IN MAKING ADDITION OF RS. 2,76,97,000/- I S MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. 10. THE LD. DR SUBMITTED THAT THE LD. CIT(A) HAS GR ANTED RELIEF TO THE ASSESSEE WITHOUT ANY BASIS AND JUSTIFIED REASON THE REFORE, IMPUGNED ORDER MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE AO. 11. REPLYING TO THE ABOVE, THE LD. AR SUBMITTED THA T THE AO IGNORED VERY VITAL FACTS AND EXPLANATION OF THE ASSESSEE FO R MAKING ADDITION AND THE SAME WAS RIGHTLY ADJUDICATED AND APPRECIATED BY THE LD. CIT(A) BY CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE CASE. THE LD. AR DREW OUR ATTENTION TOWARDS PG. 31 OF THE FIRST APPE LLATE ORDER AND SUBMITTED THAT THE LD. CIT(A) RIGHTLY NOTED THAT TH E APPELLANT BEING THE MANDATE HOLDER/POWER OF ATTORNEY OF ALL THE ACCOUNT HOLDERS CANNOT BE TREATED AS REAL BENEFICIARY OWNER OF THESE ACCOUNTS AND CONSEQUENTLY THE CASH DEPOSITS MADE INTO THESE ALLEGED ACCOUNTS CANN OT BE HELD TO BE BELONGING TO THE APPELLANT. THE LD. AR SUBMITTED T HAT IT WAS THE DUTY OF THE AO TO MAKE INQUIRIES FROM THOSE FAMILY MEMBERS OWING THE BANK ACCOUNTS TO WHICH AMOUNTS WERE DEPOSITED AND NO SUC H EFFORTS OR EXERCISE BY THE AO IN THIS REGARD. THE LD. AR DREW OUR ATTENTION TOWARDS PGS. 122-158 OF ASSESSEES PAPER BOOK-II AND SUBMIT TED THAT FROM THE ASSESSMENT ORDERS PASSED BY THE AO U/S. 143(3) OF T HE ACT FOR AY 2011- 8 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL 12 IN THE CASE OF RESPECTIVE ACCOUNT HOLDERS/OWNERS I.E., SHRI SAMIR THAKORBHAI PATEL, SMT MADHUBEN THAKORBHAI PATL, SHR I THAKORBHAI CHHOTUBHAI PATEL, SHRI SHANTABEN BACHUBHAI PATEL AN D SHRI BACHUBHAI C. PATEL, IT IS CLEAR THAT THE AO HAS MADE ADDITION S ON ACCOUNT OF CASH DEPOSITS TO THEIR RESPECTIVE BANK ACCOUNTS BY TAKIN G PEAK AMOUNT/DEPOSIT THEREFORE, IF ANY ADDITION IS CONFIRMED IN THE HAND S OF THE ASSESSEE ON THE SAME ALLEGATION AND DEPOSITS THEN, IT WOULD AMOUNT TO DOUBLE TAXATION THIS IS NOT PERMISSIBLE AS PER PROVISIONS OF THE INCOME TAX ACT, 1961. HENCE, THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION I N THE HANDS OF THE ASSESSEE THEREFORE, THE FIRST APPELLATE ORDER MAY K INDLY BE APPROVED AND CONFIRMED. 12. PLACING REJOINDER TO THE ABOVE, THE LD. DR SUBM ITTED THAT AS PER TABLE MENTIONED IN PARA 8 OF THE ASSESSMENT ORDER T HE ASSESSEE ALSO DEPOSITED RS. 74,000/- CASH TO HIS ACCOUNT WHICH HA S NOT BEEN CONSIDERED BY THE LD. CIT(A) THEREFORE, THE FIRST A PPELLATE ORDER IS NOT CORRECT AND SUSTAINABLE AND THE SAME MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE AO. 13. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISS IONS, WE ARE OF THE VIEW THAT THE AO MADE ADDITION ON THE ALLEGATION TH AT THE ASSESSEE HAS NOT EXPLAINED PURPOSE OF MANDATE HOLDING AND CLOSIN G THE BANK ACCOUNTS JUST AFTER UTILIZATION OF CASH DEPOSITS AND HE TREA TED THE ENTIRE CASH 9 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL DEPOSITS TO BE INCOME OF THE ASSESSEE EARNED FROM U NDISCLOSED SOURCES AND THE AO MADE ADDITION OF ENTIRE AMOUNTS OF DEPOS IT U/S. 69 OF THE ACT TREATING THE SAME AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. WHEREAS THE FIRST APPELLATE AUTHORITY AFTER CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE GRANTED RELIEF TO THE ASS ESSEE WITH FOLLOWING OBSERVATIONS AND CONCLUSION: NOW FROM THE FORM ITSELF IT IS CLEAR THAT THE MAND ATE HOLDER CAN ONLY OPERATE THE ACCOUNTS AS PER JURISDICTION / INSTRUCTIONS GIVEN BY THE ACCOUNT HOLDER. BY VIRTUE OF THIS ASSIGNED R OLE THE MANDATE HOLDER UNDER NO CIRCUMSTANCES CAN BECOME THE OWNER OF THE ACCOUNT. THEREFORE, IN THE PRESENT CASE THE APPELLA NT BEING THE MANDATE HOLDER OF ALL THE ACCOUNTS CANNOT BE TREATE D AS THE REAL OWNER OF THESE ACCOUNTS. AS A CONSEQUENCE THE CASH DEPOSITS MADE INTO ALL THESE ACCOUNTS CANNOT BE HELD TO BE B ELONGING TO THE APPELLANT. IN CASE THE APPELLANT HAS TO BE TREATED AS THE REAL OWNER OF CASH DEPOSITS THEN SUFFICIENT MATERIAL HAS TO BE BROUGHT ON RECORD THAT HE HAS HELD ALL THESE ACCOUNTS IN FICTITIOUS O WNERS. THE ASSESSING OFFICER HAS RECORDED THE STATEMENT OF THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS AND IN WHICH THERE IS A CATEGORICAL ADMISSION OF THE APPELLANT THAT HE IS A MERELY MAND ATE HOLDER OF ALL THESE ACCOUNTS. THE ASSESSING OFFICER IS ALLEGING A ND TREATING THE APPELLANT AS THE REAL OWNER WITHOUT BRINGING ANYTHI NG ON RECORD ANY EVIDENCE THAT THE PERSONS / FAMILY MEMBERS OF THE A PPELLANT IN WHOSE NAME THESE ACCOUNTS STAND ARE NOT IN FACT THE REAL OWNER. IT WAS THE DUTY OF THE ASSESSING OFFICER TO MAKE NECES SARY INQUIRIES OF ALL THOSE MEMBERS AND BROUGHT FORTH THE TRUTH. FROM THE ASSESSMENT ORDER IT APPEARS THAT NO SUCH EFFORT HAS BEEN MADE IN THIS REGARD. THE ONUS IS ON THE ASSESSING OFFICER TO PROVE THAT THE APPELLANT IS THE REAL OWNER BECAUSE ONLY HE ALLEGES THAT THE APP ELLANT HAS ROUTED HIS UNACCOUNTED INCOME THROUGH THESE ACCOUNTS. THE OTHER FAMILY MEMBERS HAVING THESE ACCOUNTS HAS SHOWN THEIR SOURC E OF INCOME BY FILING THE RETURNS OF INCOME WHEREVER THEIR INCO ME IS TAXABLE. ONE OF THE FAMILY MEMBER I.E. THE BROTHER OF THE APPELL ANT IS AN NRI AND WHOSE INCOME HAS BEEN CLAIMED AS NON-TAXABLE IN IND IA. ALL THE CONCLUSIONS DRAWN BY THE ASSESSING OFFICER ARE NOT BASED ON ANY CONCRETE INQUIRIES. SO IN VIEW OF THE MEANING OF T HE TERM 'MANDATE HOLDER' AS GIVEN BY THE CONCERNED BANK AS WELL AS U NDERSTOOD IN THE COMMON PARLANCE AND THE LIMITED ROLE ASSIGNED TO HI M, THE APPELLANT UNDER THE CIRCUMSTANCES AS EXPLAINED ABOVE CANNOT B E TREATED AS THE REAL OWNER OF THE BANK ACCOUNTS AND THE CASH DE POSITS MADE INTO THEM. THEREFORE, THE ADDITION MADE BY THE ASSE SSING OFFICER TO THE TUNE OF RS.2,76,97,000/- ON ACCOUNT OF UNEXPLAI NED CASH 10 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL DEPOSITS IN THE BANK ACCOUNTS OF THE FAMILY MEMBERS IS DELETED AND THE GROUND OF APPEAL OF THE APPELLANT IS ALLOWED. 14. FROM THE ABOVE, IT IS CLEAR THAT THE AO IS ALLE GING AND TREATING THE APPELLANT AS THE REAL OWNER OF THE AMOUNTS DEPOSITE D TO THE BANK ACCOUNTS WITHOUT BRINING ANYTHING ON RECORD OR ANY ADVERSE EVIDENCE THAT THE PERSONS/FAMILY MEMBERS OF THE APPELLANT IN WHOS E NAME THESE ACCOUNTS WERE OPENED ARE NOT IN FACT THE REAL OWNER S OF THE AMOUNTS DEPOSITED THEREIN. IN THIS SITUATION, THE LD. CIT( A) WAS RIGHT IN HOLDING THAT THE CASH DEPOSITS MADE INTO ALL THESE ACCOUNTS CANN OT BE HELD BELONGING TO THE APPELLANT AND THE SAME CANNOT BE TREATED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE U/S. 68 OF THE ACT. AT THIS JUNCTURE, WE MAY POINT OUT THAT FROM PAPER BOOK II OF THE ASSESSEE P G. 152-158, IT IS CLEARLY DISCERNABLE THAT IN THE SAME AY 2011-12 THE ADDITIO NS U/S. 68 OF THE ACT HAS BEEN MADE TO THE INCOME OF ALL FIVE ALLEGED ACC OUNT HOLDERS. FROM THESE ASSESSMENT ORDERS, IT IS CLEAR THAT THE ADDIT ION OF RS. 32,50,062/- HAS BEEN MADE IN THE HANDS OF SHRI THAKORBHAI C. PA TEL, THE ADDITION OF RS. 28,07,676/- HAS BEEN MADE TO THE INCOME OF SMT. MADHUBEN T. PATEL, ADDITION OF RS. 33,50,509/- HAS BEEN TO THE INCOME OF SHRI BACHUBHAI C. PATEL, THE ADDITION OF RS. 16.15, 197/- HAS BEEN TO THE INCOME OF SMT. SHANTABEN B. PATEL AND ADDITION OF RS. 19,03,316/- HAS BEEN MADE TO THE INCOME OF SHRI SAMIR T. PATEL AND THUS, TOTAL ADDIT ION IN THE HANDS OF THESE FIVE ACCOUNT HOLDER HAS BEEN OF RS. 1,29,26,7 60/- U/S. 68 OF THE ACT 11 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL CONSIDERING THE AMOUNT OF DEPOSITS OF RS. 2,76,23,0 00/-. THESE FACTS HAVE NOT BEEN CONTROVERTED BY THE LD. DR EVEN ON TH E SPECIFIC QUARRY FROM THE BENCH AND IN ALL FAIRNESS HE ACCEPTED THAT THE ADDITION HAVE BEEN MADE IN THE HANDS OF RESPECTIVE BANK ACCOUNT HOLDER S TO WHICH IMPUGNED DEPOSITS WERE MADE BY THE ASSESSEE IN THE CAPACITY OF MANDATE HOLDER OF THE ACCOUNTS. 15. IN THIS PECULIAR SITUATION WHEN THE IMPUGNED DE POSITS HAVE BEEN CONSIDERED IN THE HANDS OF RESPECTIVE ACCOUNT HOLDE RS FOR MAKING ADDITIONS U/S. 68 OF THE ACT THEN, THE SAME AMOUNT CANNOT BE ADDED TO THE INCOME OF THE ASSESSEE IN THE SAME AY 2011-12 O N THE SAME ALLEGATIONS AND THUS, WE ARE INCLINED TO HOLD THAT THE LD. CIT(A) WAS RIGHT IN DELETING THE ENTIRE AMOUNT OF ADDITION MADE BY T HE AO U/S. 68 OF THE ACT. THEREFORE, WE ARE UNABLE TO SEE ANY AMBIGUITY , PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE WITH THE CONCLUSION DRAWN BY THE LD. CIT(A) AND HENCE, WE UPHOLD THE SAME. CONSEQUENTLY, GROU NDS NO.1 & 2 OF THE REVENUE BEING DEVOID OF MERITS ARE DISMISSED. GROUND NO.3 : 16. APROPOS THIS GROUND, WE HAVE HEARD THE ARGUMENT S OF BOTH SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. THE LD. DR SUBMITTED THAT THE LD CLT(A) HAS ERRED IN DELETING 12 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL THE ADDITION OF RS.8,64,267/- MADE UNDER U/S 69 WIT HOUT APPRECIATING THE FACTUAL MATRIX CLEARLY BROUGHT OUT BY THE AO. 17. REPLYING TO THE ABOVE, THE LD. AR SUPPORTED THE FIRST APPELLATE ORDER AND SUBMITTED THAT THE ADDITION WAS REPRESENTING TH E MATURITY VALUE OF INSURANCE POLICIES STANDING IN THE NAME OF APPELLAN TS BROTHER AND THEREFORE, THE DEPOSIT IN THE BANK ACCOUNT OF ASSES SEES BROTHER IN THIS REGARD WAS RIGHTLY DELETED. 18. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISS IONS, WE ARE OF THE VIEW THAT FROM THE ASSESSMENT ORDER AND ARGUMENT PL ACED BEFORE US, WE ARE SATISFIED THAT NEITHER THE AO NOR THE LD. DR HA S CONTROVERTED THE FACT THAT THE ADDITION HAS BEEN MADE BY THE AO BY TREATI NG THE AMOUNT DEPOSITED TO THE BANK ACCOUNT OWNED BY THE ASSESSEE S BROTHER SHRI SAMIR KUMAR AS INCOME OF THE ASSESSEE. IN FACT, TH E AMOUNT OF RS. 8,64,267/- WAS REPRESENTING THE MATURITY VALUE OF I NSURANCE POLICY OF M/S. BAJAJ ALLIANCE INSURANCE STANDING IN THE NAME OF AP PELLANTS BROTHER SHRI SAMIR KUMAR THEREFORE, THE SAME WAS DEPOSITED TO TH E ACCOUNT OF ASSESSEES BROTHER AND SUCH AMOUNT CANNOT BE TREATE D AS UNEXPLAINED INCOME OF THE ASSESSEE U/S. 69 OF THE ACT THUS, THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION. WE ARE UNABLE TO SEE ANY RE ASON TO INTERFERE WITH THE SAME AND THUS, WE UPHOLD THE SAME. ACCORDINGLY , GROUND NO.3 OF THE REVENUE IS DISMISSED. 13 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL GROUND NO.4 : 19. ON GROUND NO.4, WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON T HE RECORD OF THE TRIBUNAL. THE LD. DR POINTED OUT THAT THE FIRST AP PELLATE AUTHORITY WAS NOT RIGHT IN DELETING THE ADDITION MADE BY THE AO ON AC COUNT OF UNACCOUNTED BANK INTEREST WHICH WAS NOT SHOWN IN THE COMPUTATI ON OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE LD. DR SUBMITTED THA T THE LD. FIRST APPELLATE AUTHORITY WAS NOT CORRECT IN HOLDING THAT THESE ACC OUNTS DO NOT BELONGS TO THE ASSESSEE THEREFORE, ADDITION IN RESPECT OF INTE REST CREDITED TO THESE ACCOUNTS CANNOT BE ADDED TO THE INCOME OF THE ASSES SEE. 20. REPLYING TO THE ABOVE, THE LD. AR SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT WHEN THE ASSESSEE IN FACT , IS NOT THE OWNER AND BENEFICIARY OF THE ALLEGED BANK ACCOUNTS THEN, THE INTEREST EARNED THERE FROM CANNOT BE TREATED AS INCOME OF THE ASSES SEE. 21. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISS IONS, WE ARE OF THE VIEW THAT WHEN THE ACCOUNTS WERE OPENED IN THE NAME S OF FAMILY MEMBERS OF THE ASSESSEE AND ASSESSEE WAS POWER OF A TTORNEY TO OPERATE THESE ACCOUNTS AND THE AO COULD NOT BRING ANY MATER IAL ON RECORD TO SHOW THAT THE ASSESSEE WAS REAL OWNER AND BENEFICIA RY OF THESE ACCOUNTS AND THE CASH DEPOSITS MADE THEREIN WERE IN FACT AMO UNTS BELONGING TO THE ASSESSEE THEN, THE INTEREST EARNED IN SUCH ACCOUNTS CANNOT BE TREATED AS INCOME IN THE HANDS OF THE ASSESSEE. THE CONCLUSIO N DRAWN BY THE LD. 14 ITA NOS.2883 & 2927/AHD/2015/SRT (A.Y: 2011-12) SHRI AMITKUMAR T. PATEL CIT(A) IN THIS REGARD IS QUITE CORRECT AND JUSTIFIE D AND THUS, WE UPHOLD THE SAME. ACCORDINGLY, GROUND NO.4 OF THE REVENUE IS A LSO DISMISSED. 22. IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 8 TH SEPTEMBER, 2018 / SURAT ; DATED : 18 TH SEPTEMBER, 2018 EDN ! $ / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT ; 3. # ( ) / THE CIT(A), VALSAD; 4. PRL. CIT, VALSAD; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // ) / ASSISTANT REGISTRAR , / ITAT, SURAT SD/- SD/- ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER