ITO, UDAIPUR V. Shri Nirmal Kumar Matta, UDAIPUR

ITA 317/JODH/2014

• Counselvise Citation: 31723314 RSA 2014
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 317 /JODH/2014 (A.Y. 200 8 - 09 ) ITO, WARD - 1(2), UDAIPUR VS. SHRI NIRMAL KUMAR MATTA, 3, HUMADON KI SEHERI, SHREENATH MARG, UDAIPUR . (APPELLANT) PAN NO. ALVPM 9745 J (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI . DEPARTMENT BY : SHRI JAI SINGH - D.R. DATE OF HEARING : 26 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 01 / 1 0/201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 28 /0 2 /201 4 OF L D . CIT(A), UDAIPUR . THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER : ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN: - 1. ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 11,65,200/ - ON ACCOUNT 2 OF UNEXPLAINED CASH DEPOSIT ON THE PLEA THAT MONEY WAS BORROWED FROM FATHER DESPITE THE FACT THAT CREDITWORTHINESS OF AND CASH AVAILABILITY WITH, FATHER WAS NOT PROVED. THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DELETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2 FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE WAS DERIVING INCOME FROM SHARE, INTEREST AND REMUNERATION FROM PARTNERSHIP BUSINESS UNDER THE NAME AND STYLE AS M/S. MAHAVIR ENTERPRISES AND HAD ALSO INTEREST INCOME EARNED ON DEBTORS OF EARLIER YEARS. THE ASSESSEE FILED HIS RETURN OF INCOME ON 13/06/2008 DECLARING AN INCOME OF RS. 1,07,0 1 0/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICED THAT THE ASSESSEE HA D MAINTAINED SAVING BANK ACCOUNT NO. 873 WITH THE UDAIPUR MAHILA SAM R I DHI URBAN COOPERATIVE BANK LTD. , MALDAS STREET, UDAIPUR JOINTLY ALONG WITH HIS FATHER. THE ASSESSING OFFICER NOTED THAT THERE WAS A CASH DEPOSIT OF RS. 1 4,04,500/ - IN THE SAID BANK ACCOUNT AND THE ASSESSEE STATED THAT HE HAD DEPOSITED RS. 3,28,800/ - ONLY AND THE BALANCE AMOUNT WAS DEPOSITED BY HIS FATHER ON VARIOUS DATES. IN SUPPORT OF THE ABOVE CONTENTION, THE ASSESSEE ALSO PRODUCED BOOKS OF ACCOUNTS ALONG WITH CA SH FLOW STATEMENT. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE AND WAS OF THE VIEW THAT THOUGH 3 THE BANK ACCOUNT WAS IN JOINT NAME, BUT THE ASSESSEE WAS ACCOUNTABLE FOR DEPOSITS AND WITHDRAWALS IN THE SAID ACCOUNT AS HIS NAME WAS FIRST MENTIONED IN THIS ACCOUNT. THE ASSESSING OFFICER MADE REFERENCE TO THE B ALANCE SHEET OF THE ASSESSEE WHEREIN HIS FATHER WAS SHOWN AS CREDITOR FOR A SUM OF RS. 10,33,395/ - APART FROM RS. 55,030 / - SHOWN IN THE NAME OF REKHA VAGRECHA . THE SAID AMOUNTS HAD BEEN SHOWN AS UNSECURED LOAN TAKEN DURING THE YEAR , HOWEVER, NO CONFIRMATION WAS FILED FROM HIS FATHER. THE ASSESSING OFFICER FOUND THAT OUT OF THE TOTAL DEPOSITS OF RS. 14,04,500/ - IN THE BANK ACCOUNT , AN AMOUNT OF RS. 1,88,800/ - WAS WIT HDRAWN, THE SAID AMOUNT WAS CONSIDERED AS CASH AVAILABLE WITH THE ASSESSEE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE WAS BOUND TO EXPLAIN THE DEPOSIT OF RS. 12,15, 7 00/ - (RS. 14,04,500/ - ( - ) RS. 1,88,800/ - ) . THE ASSESSING OFFICER ALSO OBSERVED THAT THE CASH BOOK HAD SHOWN CASH AVAILAB ILITY AT RS. 89,500/ - AS ON 01/04/2007 , BUT THE SAME WAS NOT SUPPORTED BY ANY EVIDENCE. HE THEREFORE, DID NOT ACCEPT THE AVAILABILITY OF CASH AMOUNTING TO RS. 89,500/ - AS ON 31/03/2007. THE A SSESSING OFFICER, HOWEVER, CONSIDERED RS. 2,39,300/ - AS CASH AVAILABLE FOR MAKING THE DEPOSITS , BUT THE BALANCE AMOUNT CLAIMED AS CLOSING CASH BALAN CE AMOUNTING TO RS. 89,500/ - AS PER CASH BOOK WAS TREATED AS UNEXPLAINED AND ADDED TO THE INCOME OF THE ASSESSEE. 4 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSING OFFICER NEVER REQUIRED THE ASSESSEE TO PRODUCE THE CASH BOOK PRIOR TO 01/04/2007 BEFORE MAKING THE INFERENCE THAT NO CASH WOULD BE AVAILABLE T O THE ASSESSEE AS ON 31/03/2007. IT WAS STATED THAT BEING A PRUDENT BUSINESSMAN AND LENDING MONEY TO THE PERSONS ON INTEREST, THERE MUST BE CASH AVAILABILITY ALWAYS WITH THE ASSESSEE , T HEREFORE, THE ASSESSING OFFICER SHOULD HAVE ACCEPTED THE CLAIM. 4. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF OPENING CASH BALANCE WAS NOT SUSTAINABLE BECAUSE IT WAS AN UNDISPUTED FACT THAT THE OPENING CASH BALANCE OF THE C URRENT YEAR WAS THE CLOSING BALANCE OF THE PREVIOUS YEAR AND IF THE ASSESSING OFFICER WAS OF THE OPINION THAT THE OPENING CASH SHOWN BY THE ASSESSEE REMAINED UNEXPLAINED THEN HE WAS FREE TO TAKE ACTION IN ORDER TO ASSESS THE SUCH UNEXPLAINED INCOME IN THE YEAR IN WHICH SUCH INCOME WAS EARNED I.E. IN THE A.Y. 2007 - 08 , BUT THE SAME COULD NOT BE ASSESSED IN THE ASSESSMENT YEAR UNDER CONSIDERATION . ACCORDINGLY , THE ADDITION OF RS. 89,500/ - WAS DELETED. 5 5. AS REGARDS TO THE ANOTHER ADDITION AMOUNTING TO RS. 10,75,700/ - , THE SUBMISSIONS OF THE ASSESSEE BEFORE THE LD. CIT(A) WERE AS UNDER: - THE APPELLANT HAS FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 18 - 06 - 2008 SHOWING TAXABLE INCOME OF RS. 1,07,007/ - AFTER CLAIMING DEDUCTION UNDER CHAPTER - VIA AMOUNTING TO RS. 30,548/ - . THE INCOME RETURNED WAS COMPRISED OF INTEREST AND REMUNERATION FROM PARTNERSHIP BUSINESS RS. 89,556/ - AND INTEREST ON SUNDRY LOANS RS. 48,000/ - . THE INCOME - TAX O FFICER, WARD - 2(2), UDAIPUR HAS FINALIZED THE ASSESSMENT UNDER SEC. 143(3) OF THE IT ACT,1961 ON 15 - 11 - 2010 WHEREIN THE FOLLOWING ADDITIONS HAVE BEEN MADE: DURING THE YEAR THERE WERE CASH DEPOSIT OF RS. 14,04,500/ - ON VARIOUS DATES IN THE SAVINGS BANK NO.8 73 WITH THE UDAIPUR MAHILA SAMRIDHI URBAN CO - OPERATIVE BANK LTD. IN THE JOINT NAME OF THE APPELLANT AND HIS FATHER LATE SHRI HEMENDRA KUMAR MATTA. FOR THE SOURCE OF THE CASH DEPOSITED IN THIS BANK ACCOUNT ,THE APPELLANT HAS SUBMITTED THAT A SUM OF RS. 3,28 ,800/ - BELONGED TO HIM AND THE REST RS. 10,75,700/ - WAS ARRANGED BY HIS FATHER. THE APPELLANT HAS SUBMITTED A CASH BOOK DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER. 1) AS EXPLAINED CASH DEPOSIT IN THE SAVINGS BANK ACCOUNT ON VARI OUS DATES WHICH AMOUNT HAS BEEN CLAIMED AS GIVEN BY SHRI HEMENDRA KUMAR MATTA,FATHER OF THE APPELLANT. FOR THE SOURCE OF THE CASH DEPOSITED IN THE SAVINGS BANK ACCOUNT, THE APPELLANT HAS CLAIMED THAT THIS MUCH AMOUNT HAS BEEN GIVEN BY HIS FATHER OR DEPOSIT ED BY THE LATTER IN THE SAVINGS BANK ACCOUNT. THE SAVINGS BANK ACCOUNT WAS IN THE JOINT NAME OF THE APPELLANT AND HIS FATHER LATE SHRI HEMENDRA KUMAR MATTA. THE OPERATION OF THE ACCOUNT WAS EITHER OR SURVIVAL. IT WAS SUBMITTED BEFORE THE ASSESSING OFFICE R THAT LATE SHRI HEMENDRA KUMAR MATTA, WHO IS AN INCOME - TAX PAYEE, ON VARIOUS DATES DEPOSITED A TOTAL AMOUNT OF RS. 12,33,700/ - IN THIS SAVINGS BANK ACCOUNT AND HE HAS WITHDRAWN RS. 2,00,105/ - THROUGH CHEQUE FROM THIS ACCOUNT ON VARIOUS DATES AND THE CLOSI NG BALANCE AMOUNTED TO RS. 10,33,595/ - . WHILE SUBMITTING THE BALANCE - SHEET AS AT 31 - 03 - 2008, THE APPELLANT HAS SHOWN HIS FATHER AS CREDITOR FOR A SUM OF RS. 10,33,595/ - . HIS FATHER, LATE SHRI HEMENDRA KUMAR MATTA IS ASSESSED TO INCOME - TAX UNDER P.A.NO. ABA PM8173D AND THIS FACT HAS ALSO BEEN INFORMED TO THE INCOME - TAX OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 6 2) FROM THE ABOVE, YOUR HONOUR WILL KINDLY APPRECIATE THAT THE APPELLANT HAS DULY STATED THAT THE SUMS TO THE EXTENT OF RS. 12,33,700/ - WERE D EPOSITED BY HIS FATHER ONLY ON VARIOUS DATES AND HE HAS ALSO MADE WITHDRAWALS THROUGH CHEQUES AMOUNTED TO RS. 2,00,105/ - AND SINCE THE APPELLANT HAS UTILIZED THE BALANCE MONEY FOR HIS SHARE BUSINESS, HE HAS SHOWN HIS FATHER AS CREDITOR IN THE BALANCE SHEET FILED. SINCE THE APPELLANT HAS EXPLAINED THE SUMS DEPOSITED IN THE BANK TO THE EXTENT OF RS.12,33,700 REPRESENTED THE DEPOSIT MADE BY HIS FATHER LATE SHRI HEMENDRA KUMAR MATTA, THE RESPONSIBILITY OF THE APPELLANT SHOULD HAVE BEEN CONSIDERED AS DISCHARGED. ONCE IT HAS BEEN SUBMITTED B Y THE APPELLANT THAT THE AMOUNT HAS BEEN INVESTED / DEPOSITED BY A PARTICULAR PERSON, THEN THE RESPONSIBILITY OF THE APPELLANT IS OVER. IT IS OPEN TO THE ASSESSING OFFICER TO UNDERTAKE FURTHER INVESTIGATION WITH REGARD TO THAT INDIVIDUAL WHO HAS DEPOSITED THE AMOUNT. THE APPELLANTS SUBMISSION BEFORE YOUR HONOUR IS THAT IF THE CONCLUSION OF THE ASSESSING OFFICER ON THE SUBMISSION OF THE APPELLANT IS ADVERSE WHOLLY OR IN PART TO THE INTEREST OF THE APPELLANT, IT IS INCUMBENT ON T HE A.O. TO INTIMATE OR INFORM THE CONCLUSION ARRIVED AT TO THE ASSESSEE INSTEAD OF MAKING THE ADDITION. THE APPELLANT HAS CATEGORICALLY STATED BEFORE THE ASSESSING OFFICER THAT DEPOSIT TO THE EXTENT OF RS. 12,33,700/ - BELONGED TO APPELLANTS FATHER ONLY, T HE ASSESSING OFFICER WOULD HAVE CALLED THIS GENTLEMAN FOR FURTHER EXAMINATION. EVEN, THE ASSESSING OFFICER HAS THE POWER TO GET COPIES OF DEPOSIT SLIPS FROM THE BANK SO AS TO SEE WHO DEPOSITED THE SUMS IN THE BANK ACCOUNT. NO SUCH ACTION HAS BEEN TAKEN BY THE ASSESSING OFFICER INSTEAD HE PROCEEDED TO TREAT THE DEPOSITS TO THIS EXTENT AS HAS BEEN DONE BY THE ASSESSEE OUT OF HIS UNDISCLOSED SOURCES AND THE ASSESSEE IS HELD RESPONSIBLE E FOR EXPLAINING THE NATURE AND SOURCE OF THIS DEPOSIT. THE APPELLANT RELY UPON THE FOLLOWING DECISIONS: A) CIT V. METACHEM LNDUSTRIES(2000) 245 ITR 160 (M.P) IT HAS BEEN HELD THAT WHERE THE ASSESSEE FIRM HAD SATISFACTORILY EXPLAINED THE CREDITS STANDING IN THE NAME OF ITS PARTNERS, THE RESPONSIBILITY OF THE ASESSEE STANDS DISCHAR GED. B) S.HASTIMAL V. CIT (1963) 49 ITR 273 (MAD.) - INABILITY OF THE DEPARTMENT TO VERIFY THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT A SUFFICIENT CAUSE FOR REJECTION OF THE EXPLANATION. 7 C) JALAN TIMBERS VS.CIT(1997) 223 ITR 11 (GAU.) - EVEN IF THE CREDIT IS IN THE NAME OF A CLOSE RELATION E.G. THE WIFE, THE ASSESSEE CANNOT BE PRESUMED TO HAVE KNOWLEDGE OF THE SOURCE FROM WHERE THE DEPOSITOR OBTAINED THE MONEY. D) ITO V. SURESH KALMADI (1988) 32 TTJ (PUNE) 300 - WHERE IDENTITY OF CREDITOR IS ESTABLISHED AND ENTRY SHOWN TO BE NOT FICTITIOUS, THE BURDEN SHIFTS ON TO THE DEPARTMENT TO SHOW AS TO WHY THE ENTRY STILL REPRESENTED THE SUPPRESSED INCOME OF THE ASSESSEE. IN VIEW OF THE SUBMISSIONS AS ABOVE, THE DECISIONS RELIED UPON ARE APPLICABLE TO THE FACTS OF THE APPELLANTS CASE. THE CONCLUSIONS / FINDINGS ARRIVED AT BY THE LEARNED ASSESSING OFFICER ARE ONE SIDED AND HE IN FACT, FAILED TO FOLLOW THE LEGAL FORMALITIES WHICH WOULD HAVE BEEN DONE FOR EQUITY AND NATURAL JUSTICE. THE APPELLANT THEREFORE, REQUEST YOUR HONOUR TO KINDLY DELETE THE ADDITION MADE BY THE ASSESSING OFFICER WHICH HAS BEEN MADE WITHOUT APPRECIATING THE REAL POSITION OF THE CASE AND EVEN WITHOUT CONFRONTING THE MAN WHO DEPOSITED THE SUM IN THE BANK ACCOUNT; PARTICULARLY WHEN HE WAS ONE OF THE PA RTIES FOR THE OPENING AND OPERATION OF THE SAID BANK ACCOUNT. APART FROM THE ABOVE SUBMISSIONS, THE ASSESSEE ALSO FILED THE DETAILS OF INCOME DECLARED IN THE INCOME TAX RETURN BY HIS FATHER AND COPIES OF SUCH INCOME TAX RETURNS FILED BY HIM ALONG WITH COMPUTATION OF INCOME IN ORDER TO EXPLAIN THAT THE FATHER OF THE ASSESSEE WAS IN A POSITION TO MAKE THE DEPOSITS IN THE BANK ACCOUNT. THE SAID SUBMISSIONS AND THE DETAILS WERE FORWARDED BY THE LD. CIT(A) TO THE ASSESSING OFFICER FOR HIS COMMENTS. 6. THE ASSESSING OFFICER SENT HIS COMMENTS VIDE LE T TER DATED 20/02/2014 STATING AS UNDER: - 8 IN THIS CONNECTION, IT IS SUBMITTED THAT IN THIS CASE THE AO HAD PASSED THE ASSESSMENT ORDER U/S 143(3) OF THE I.T.ACT ON DATED 15.11.2010. IN THE SAID ORDER THE AO H AD MADE ADDITION OF RS. 11,65,200 / - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. SIR AS PER RULE 46A OF INCOME TAX RULES, 1962 NO ADDITIONAL EVIDENCE MAY BE ACCEPTED BECAUSE OF THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING HAS GIVEN AMPLE OPPORTUNITY TO THE ASSESSEE AND T HE AO DURING THE COURSE OF ASSESSMENT PROCEEDING HAS GIVEN AMPLE OPPORTUNITY TO THE ASSESSEE A N D THE AO HAS: - 1. NOT REFUSED TO ADMIT ANY EVIDENCE. 2. NOT PREVENT TO PRODUCE THE RELEVANT EVIDENCE. 3. NOT MADE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY. HOWEVER TH E ASSESSEE HAD PREFERRED FIRST APPEAL AGAINST THE ASSESSMENT ORDER AND SUBMITTED ADDITIONAL EVIDENCES I.E THE PHOTOCOPIES OF INCOME TAX RETURNS AND COMPUTATION OF TOTAL INCOME FROM A.Y. 1998 - 99 TO 2008 - 09 OF HIS LATE FATHER. SIR IN THIS CASE THE TOTAL CAS H WAS DEPOSITED OF RS. 14,04,500/ - DURING THE YEAR. ON EXPLANATION OF THE SAME THE ASSESSEE STATED THAT HE HIMSELF DEPOSITED RS. 3,28,800/ - AND REMAINING BALANCE OF RS. 10,75,700/ - WAS DEPOSITED BY HIS FATHER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E AO FOUND THAT THE ASSESSEE HAS SHOWN HIS FATHER AS LOAN CREDITOR OF RS. 10,33,595/ - IN THE BALANCE SHEET FILED. THE AMOUNT HAS BEEN SHOWN AS UNSECURED LOAN TAKEN DURING THE YEAR. THE AO HAD MENTIONED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS NOT FILED ANY CONFIRMATION FROM THE CREDITOR OR HIS ASSESSMENT STATUS (WHETHER ASSESSEE OR NOT.) HAS BEEN GIVEN. NOW ON PERUSAL AND EXAMINATION OF ADDITIONAL EVIDENCES; NOTHING CAN BE IN FERENCE EXCEPT ASSESSMENT STATUS OF ASSESSEES LATE FATHER. TILL NOW NO CONFIRMATION HAS BEEN FILED BY THE ASSESSEE TO SUPPORT THE SO CALLED UNSECURED LOAN TAKEN FROM HIS FATHER. THE MAIN FACT REMAINS IN QUESTION THAT FROM WHERE SH. HEMENDRA MATTA HAS DEPO SITED THE HUGE CASH AMOUNT. THE CREDITWORTHINESS OF THE DEPOSIT HAS NOT BEEN EXPLAINED BY ANY MEANS; HOWEVER THE ONUS LIES ON THE ASSESSEE TO PROVE THE SAME. ALL DEPOSITS AND PAYMENTS ARE IN CASH AND NO CHEQUE PAYMENT IS THERE. THERE IS A CLEAR VIOLATION O F PROVISION OF SECTION 269SS OF THE INCOME TAX ACT. THEREFORE TRANSACTIONS ATTRACTS PROVISIONS OF SEC. 269SS OF THE ACT. 9 THEREFORE, I DO NOT SEE ANY MERIT IN THE ADDITIONAL EVIDENCE AND ADMISSIBILITY OF THE SAME. I HEREBY, SUPPORTED THE ADDITION RS. 11,65,200/ - MADE BY THE AO U/S 143(3) OF THE INCOME TAX ACT - 1961; ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. 7 . THE LD. CIT(A ) FORWARDED THE REMAND REPORT OF THE ASSESSING OFFICER TO THE ASSESSEE , WHO MADE THE FOLLOWING SUBMISSIONS: - T HE ID. A.O. HAS REQUESTED THAT THE ADDITIONAL EVIDENCE SUBMITTED BY THE APPELLANT MAY NOT BE ACCEPTED SINCE AT TIME OF ASSESSMENT PROCEEDING AMPLE OPPORTUNITY WAS GIVEN TO THE ASSESSEE & FURTHER A.O. HAS NOT REFUSED TO ADMIT ANY EVIDENCE , NOT PREVENT TO P RODUCE THE RELEVANT EVIDENCE & NOT MADE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY. IN THIS REGARD WE WOULD LIKE TO SUMMIT THAT COPY OF LEDGER ACCOUNT OF LATE SHRI HEMENDRA KUMAR MATTA WAS FILED ON 29/10/2010 . FURTHER APPELLANTS FATHER, LATE SHRI HEMENDRA KUMAR MATTA IS ASSESSED TO INCOME - TAX UNDER P.A.NO. ABAPM8173D AND THIS FACT HAS ALSO BEEN INFORMED TO THE INCOME - TAX OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. REGARDING NON FILING OF CONFIRMATION WE WOULD LIKE TO SUBMIT THAT ID. A.O. H AS NEITHER ASKED FOR FURNISHING CONFIRMATION LETTER OF SHRI HEMENDRA KUMAR MATTA NOR ASKED TO APPEAR BEFORE HIM FOR RECORDING HIS STATEMENT. IN THIS CONNECTION, THE APPELLANT HAS FILED COPY OF QUERY LETTER DATED 1.07.2010, 25.08.2010 ISSUED BY THE A.O. CAL LING FOR DETAILS/INFORMATIONS. THE ASSESSEE HAS ALSO FILED COPY OF NOTE/ORDER SHEET MAINTAINED IN THE CASE OF THE ASSESSEE FOR THE ASSTT.YEAR 2008 - 09.ENTRIES WE ARE UNABLE TO FILE CONFIRMATION LETTER AT THIS STAGE SINCE THE APPELLANTS FATHER WAS EXPIRED ON 27/03/2013. FURTHER AS EXPLAINED CASH DEPOSIT IN THE SAVINGS BANK ACCOUNT ON VARIOUS DATES GIVEN BY SHRI HEMENDRA KUMAR MATTA, FATHER OF THE APPELLANT. FOR THE SOURCE OF THE CASH DEPOSITED IN THE SAVINGS BANK ACCOUNT, THE APPELLANT HAS CLAIMED THAT T HIS MUCH AMOUNT HAS BEEN GIVEN BY HIS FATHER OR DEPOSITED BY THE LATTER IN THE SAVINGS BANK ACCOUNT. THE SAVINGS BANK ACCOUNT WAS IN THE JOINT NAME OF THE APPELLANT AND HIS FATHER LATE SHRI HEMENDRA KUMAR MATTA. THE OPERATION OF THE ACCOUNT WAS EITHER OR SURVIVAL. IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT LATE SHRI 10 HEMENDRA KUMAR MATTA, WHO IS AN INCOME - TAX PAYEE , ON VARIOUS DATES DEPOSITED A TOTAL AMOUNT OF RS. 12,33,700/ - IN THIS SAVINGS BANK ACCOUNT AND HE HAS WITHDRAWN RS. 2,00,105/ - THROUGH CHEQUE. WHILE SUBMITTING THE BALANCE - SHEET AS AT 31 - 03 - 2008, THE APPELLANT HAS SHOWN HIS FATHER AS CREDITOR FOR A SUM OF RS. 10,33,595/ - AND ACCORDINGLY THE APPELLANT HAS NOT VIOLATED THE PROVISIONS OF SECTION 269SS OF THE I.T. ACT, 1961. IN VIEW OF THE S UBMISSIONS AS ABOVE, THE APPELLANT THEREFORE, REQUEST YOUR HONOUR TO KINDLY DELETE THE ADDITION MADE BY THE ID. A. O . 8 . THE LEARNED CIT(A), AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT OF THE ASSESSING OFFICER, ADMITTED THE ADDITIONAL EVIDENCES UNDER CLAUSE (C) OF RULE 46A(1) OF I.T. RULES 19 62 AND DELETED THE REMAIN IN G ADDITION OF RS. 10,75,700/ - BY OBSERVING AS UNDER: - AS REGARDS THE MERIT OF THE ISSUE, IT IS SEEN THAT THE APPELLANT HAS MAINTAINED S.B. ACCOUNT NO. 873 WITH UDAIPUR MAHILA SAMRIDHI URBAN COOPERATIVE BANK LD , MALDAS STREET, UDAIPUR JOINTLY WITH HIS FATHER AND THERE WAS DEPOSIT OF RS. 14,04,500/ - . THE SOURCE OF DEPOSIT WAS CLAIMED TO BE THE DEPOSIT OF RS.3,28,800/ - MADE BY THE APPELLANT AND RS.10,75,700/ - WAS CLAIMED TO BE DEPOSITED BY HIS LATE FATHER SHRI HEMENDRA MATTA. HOWEVER, THE A.O. CONSIDERED THE ENTIRE DEPOSITS MADE IN THE BANK ACCOUNT AS DEPOSITS MADE BY THE APPELLANT BECAUSE OF THE FACT THAT THE APPELLANT COULD NOT FILE ANY EVIDEN CE FROM WHERE SHRI HEMENDRA MATTA HAS MADE THE DEPOSITS IN THE SAID BANK ACCOUNT. FURTHER, THE APPELLANT HAS SHOWN HIS FATHER AS CREDITOR TO THE TUNE OF RS.10,33,595/ - IN THE BALANCE SHEET AND HE HAS NOT FILED ANY CONFIRMATION FROM HIS FATHER. IN MY VIEW, THE ACTION OF THE A.O. TREATING THE DEPOSIT OF RS. 10,75,700/ - AS DEPOSITS MADE BY THE APPELLANT FROM UNDISCLOSED SOURCES CANNOT BE SUSTAINED BECAUSE, AS PER THE DETAILS FILED AS ADDITIONAL EVIDENCE DURING THE APPELLATE PROCEEDINGS, THE LATE FATHER OF THE APPELLANT WAS A REGULAR INCOME - TAX ASSESSEE FROM THE 11 ASSTT. YEAR 1998 - 99 TO THE ASSESSMENT YEAR 2008 - 09 AND HE WAS DOING PROPRIETARY BUSINESS UNDER THE NAME AND STYLE OF M/S.HEMENDRA CUT PIECE & TAILORS. APART FROM THIS, HE WAS ALSO HAVING INTEREST INCOME ON LOANS AND ADVANCES GIVEN TO OTHERS. FURTHER, APART FROM THE JOINT BANK ACCOUNT, LATE SHRI HEMENDRA MATTA WAS ALSO HAVING S.B. ACCOUNT NO.421 IN THE SAME BANK AND AS PER COPY OF THIS ACCOUNT, THERE IS SUBSTANTIAL TRANSACTIONS OF LOAN GIVEN AND RECEIVED. FURTHER, FROM THE ASSESSMENT ORDER, IT IS ALSO SEEN THAT THE A.O. HAS NOT MADE ANY ENQUIRY EITHER FROM SHRI HEMENDRA MATTA, WHO WAS ALIVE AT THE TIME OF ASSESSMENT PROCEEDINGS IN THE CASE THE APPELLANT OR FROM ANY OTHER SOURCE. IT IS ALSO NOT A CASE OF THE A.O. THAT HE HAS MADE ENQUIRIES FROM THE BANK AND IT WAS FOUND THAT AS PER THE PAYING SLIPS THROUGH WHICH THE AMOUNTS WERE DEPOSITED, THE DEPOSITS WERE MADE BY THE APPELLANT IN THE NAME OF HIS LATE FATHER. IT IS ALSO NOT A CASE OF THE A.O. THAT ON ENQUIRY MADE FROM HIS FATHER, IT WAS ESTABLISHED THAT HIS FATHER WAS NOT AWARE ABOUT THE DEPOSITS MADE IN THE JOINT ACCOUNT. AS REGARDS THE FINDINGS OF THE A.O. THAT THE APPELLANT DID NOT FILE ANY CONFIRMATION FROM HIS FATHER IN RESPECT OF THE CREDIT AMOUNT CLAIM ED IN HIS NAME, IT MAY BE MENTIONED HERE THAT I HAVE PERUSED THE COPY OF QUERY LETTERS AND NOTE SHEET FILED WITH THE WRITTEN SUBMISSIONS AND IT IS SEEN THAT HE NEVER ASKED FOR SUCH CONFIRMATION FROM THE APPELLANT. IN MY VIEW, THE APPELLANT HAS DISCHARGED H IS ONUS LAID ON HIM BY THE PROVISIONS OF SECTION 68 OF THE ACT GIVING THE IDENTITY OF THE CREDITOR AND SOURCE OF THE CREDIT SHOWN IN THE CASH BOOK BY FILING COPY OF INCOME - TAX RETURNS FROM THE ASSTT. YEARS 1998 - 99 TO 2008 - 09. ADMITTEDLY, THE A.O. HAS NOT B ROUGHT ANY EVIDENCE ON RECORD TO CONTROVERT THE CLAIM OF THE APPELLANT THAT THE CASH DEPOSITS TO THE EXTENT OF RS.10,75,700/ - WERE MADE IN THE JOINT SAVING BANK ACCOUNT NO. 873 MAINTAINED WITH THE UDAIPUR MAHILA SAMRIDHI URBAN CO - OPERATIVE BANK LTD MALDAS S TREET, UDAIPUR BY HIS FATHER, SHRI HEMENDRA MATTA EXCEPT THE FINDINGS THAT IT IS NOT KNOWN FROM WHERE SUCH DEPOSITS WERE MADE BY SHRI HEMENDRA MATTA. IF THE A.O. WAS NOT SATISFIED WITH THE EXPLANATION OF THE APPELLANT, THE A.O. IS SUPPOSED TO CONDUCT INDEP ENDENT ENQUIRIES TO BRING SOME EVIDENCES ON RECORD TO SUPPORT HIS FINDINGS THAT THE DEPOSITS IN THE ABOVE MENTIONED JOINT BANK ACCOUNT WERE MADE BY THE APPELLANT FROM HIS UNDISCLOSED SOURCE OF INCOME AND HIS FATHER HAS NOTHING TO DO ANYTHING ABOUT THE CASH DEPOSITS. ADMITTEDLY, THE A.O. HAS NOT BROUGHT ANY SUCH EVIDENCE ON RECORD. THEREFORE, IN MY VIEW, THE A.O. IS NOT JUSTIFIED IN MAKING ADDITION OF RS.10,75,700/ - ON ACCOUNT UNEXPLAINED CASH DEPOSITS IN THE JOINT BANK ACCOUNT AND THE SAID ADDITION IS LIABL E TO BE DELETED AND I ORDER 12 ACCORDINGLY. THUS, THIS GROUND OF APPEAL IS ALLOWED. NOW THE DEPARTMENT IS IN APPEAL. 9 . LEARNED D.R. STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND REITERATED THE SUBMISSIONS MADE IN THE ASSESSMENT ORDER DATED 15/11/2010. 10 . IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 1 1 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSING OFFICER ACCEPTED THE EXPLANATION OF THE ASSESSEE REGARDING DEPOSITS OF RS. 3, 28,300/ - FROM HIS OWN SOURCE IN THE TOTAL DEPOSITS OF RS. 14,04,500/ - IN THE BANK ACCOUNT, BUT DOUBTED REMAINING DEPOSITS OF RS. 10,75,700/ - WHICH WAS CLAIMED TO BE DEPOSITED BY THE AFTER OF THE ASSESSEE. IN THE INSTANCE CASE, THE DECEASED FATHER OF THE ASSESSEE WAS REGULAR INCOME TAX ASSESSEE FROM A.Y. 1998 - 99 TO A.Y. 2008 - 09 AND HE WAS DOING PROPRIETOR Y BUSINESS UNDER THE NAME AND STYLE OF M/S. HEMENDRA CUT PIECE & TAILOR AND ALSO HAVING INTEREST INCOME ON 13 THE LOANS AND ADVANCES. THE LD. CIT(A) POINTED OUT THAT THE ASSESSING OFFICER HAD NOT MADE ANY ENQUIRY EITHER FROM SHRI HEMENDRA KUMAR MATTA FATHER OF THE ASSESSEE WHO WAS ALIVE AT THE TIME OF ASSESSMENT PROCEEDINGS AND ALSO DID NOT MAKE ANY ENQUIRY FROM THE BANK. IN THE PRESENT CASE, SINCE THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSITS TO THE EXTENT OF RS. 10,75,700/ - FROM HIS FATHER AND FURNISHED THE VARIOUS INCOME TAX RETURNS OF HIS FATHER WHO WAS REGULARLY ASSESSED TO THE INCOME TAX AND FILING HI S RETURNS OF INCOME WHEN HE WAS ALIVE. THE ASSESSEE DULY EXPLAINED THE DEPOSITS TO THE EXTENT OF RS. 12,33,700/ - IN THE BANK ACCOUNT BY HIS FATHER AND AS SUCH DISCHARGE THE ONUS CAST UPON HIM. THE ASSESSING OFFICER DID NOT MAKE ANY FURTHER ENQUIRY EITHER FROM THE FATHER FO R T HE ASSESSEE AT THE RELEVANT TIME OR FROM THE BANK WHEREIN VARIOUS DEPOSITS WERE MADE IN THE JOINT ACCOUNT OF THE ASSESSEE AND HIS FATHER . IF THE ASSESSING OFFICER WAS HAVING ANY DOUBT , H E COULD HAVE VERIFIED THE DEPO SITS FROM THE PA Y - IN - SLIPS IN THE BANKS, BUT SUCH EXERCISE WAS NOT DONE, THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS ONLY ON THE BASIS OF PRESUMPTION AND THE LD. CIT(A) RIGHTLY DELETED THE SAME. 1 2 . AS REGARD TO THE REMAINING ADDITION OF RS. 89,500/ - IS CONCERNED, IT IS AN ADMITTED FACT THAT THE SAID AMOUNT WAS SHOWN BY THE ASSESSEE AS OPENING CASH BALANCE AS ON 01/04/2007 AND THE ASSESSING OFFICER DID NOT 14 DOUBT THE CLOSING BALANCE AS ON 31/03/2007 , IF HE WAS HAVING ANY DOUBT THEN THE SAID AMOUNT COULD H AVE BEEN CONSIDERED IN THE PRECEDING ASSESSMENT YEAR I.E. A.Y. 2007 - 08 AND NOT IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE, THE LD. CIT(A) RIGHTLY DELETED THIS ADDITION ALSO. WE DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) , ACCORDINGLY WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 13 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED. ( ORDER PRONOUNCED IN THE COURT ON 01 ST OCTOBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01 ST OCTOBER , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .