ITO., Ward-5(1), Hyderabad V. Sri Rajesh Kumar Bhatia, Hyderabad

ITA 327/HYD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69869 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHANU PRASAD REDDY
• Assessee Lawyers: B SHANTI KUMAR
• Keywords: Unexplained cash credit; Gift; Salary income; Source of fund
• Section: 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.327/HYD/2013 ASSESSMENT YEAR 2009-2010 I.T.O. WARD 5 (1) HYDERABAD VS. SRI RAJESH KUMAR BHATIA HYDERABAD. PAN AHMPB1541Q (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI BHANUPRASAD REDDY (DR) FOR RESPONDENT : SHRI B. SHANTI KUMAR (AR) DATE OF HEARING : 30.09.2013 DATE OF PRONOUNCEMENT : 30.09.2013 ORDER SHRI SAKTIJIT DEY, J.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-V, HYDERABAD DATED 31.12.2012 FO R THE ASSESSMENT YEAR 2009-2010. 2. THE SOLITARY ISSUE ARISING IN THE APPEAL OF THE DEPARTMENT IS WITH REGARD TO THE DELETION OF AN AMOUNT OF RS.3 4,90,000/- BY THE CIT(A). 3. BRIEFLY THE FACTS ARE THAT THE ASSESSEE IS AN IND IVIDUAL DERIVING INCOME FROM SALARY, HOUSE PROPERTY AND INTER EST EARNED ON BANK DEPOSITS. FOR THE IMPUGNED ASSESSMENT YEAR T HE ASSESSEE FILED HIS RETURN OF INCOME ON 26.02.2010 D ECLARING TOTAL INCOME AT RS.2,27,960/-. INITIALLY, THE RETURN WAS P ROCESSED UNDER SECTION 143(1). SUBSEQUENTLY, HOWEVER, THE ASS ESSEES CASE WAS SELECTED FOR SCRUTINY. DURING THE ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER ON EXAMINING THE INFORMATION A VAILABLE NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 28,37,000/- 2 INTO HIS SAVINGS BANK ACCOUNT WITH HDFC BANK, HYDERA BAD. THE ASSESSING OFFICER ON OBTAINING THE ACCOUNT STATEMEN T OF THE ASSESSEE FROM HDFC BANK NOTED THAT THE TOTAL CASH D EPOSITS AS PER THE ACCOUNT STATEMENT WAS RS.34,90,000/- AND NO T RS.28,37,000/-. THE ASSESSING OFFICER ON THE BASIS OF THE ACCOUNT STATEMENT, ISSUED A QUESTIONNAIRE TO THE AS SESSEE WHO ALSO FILED HIS BANK ACCOUNT STATEMENT SHOWING CASH DEPOSITS OF RS.34,90,000/- AND ALSO SUBMITTED A STATEMENT NARRA TING THE TRANSACTIONS IN THE BANK ACCOUNT. THE ASSESSING OFF ICER ALSO RECORDED A STATEMENT UNDER SECTION 131 FROM THE ASS ESSEE TO FIND OUT THE SOURCE OF CASH DEPOSIT TO THE BANK ACCOUNT. IN THE STATEMENT RECORDED, THE ASSESSEE SUBMITTED THAT HE WITHDREW CASH THROUGH BEARERS CHEQUES TO THE EXTENT OF RS.19, 05,000/- FOR THE PURPOSE OF BUYING PROPERTY AT HYDERABAD AND FL AT AT MUMBAI BUT AS THE DEAL COULD NOT MATERIALISE, THE C ASH WAS DEPOSITED BACK INTO THE BANK ACCOUNT. WHEN THE ASSE SSING OFFICER ASKED THE ASSESSEE ABOUT HIS NATURE OF BUSI NESS AND WHETHER HE MAINTAINED ANY BOOKS OF ACCOUNTS, THE ASS ESSEE REPLIED THAT HE WAS NOT DOING ANY BUSINESS AND HENC E, HE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS. IT WAS SUBMITT ED THAT HIS SOURCE OF INCOME WAS FROM SALARY, HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. WHEN THE ASSESSING OFFICER QUER IED ABOUT ATM WITHDRAWALS AND CASH WITHDRAWALS DURING THE REL EVANT FINANCIAL YEAR, IT WAS SUBMITTED THAT THESE AMOUNTS ARE UTILISED FOR MISCELLANEOUS EXPENSES. THE ASSESSEE FURTHER ST ATED THAT HE HAD ISSUED CHEQUES IN FAVOUR OF M/S. R.T. AGENCIES TO THE TUNE OF RS.21,95,000/- WHICH IS A PROPRIETARY CONCERN OF SM T. SEEMA BHATIA AND DEALING IN TRADING OF ELECTRONIC COMPONE NTS. THE ASSESSING OFFICER, HOWEVER, WAS NOT CONVINCED WITH THE REPLY OF THE ASSESSEE TO THE EFFECT THAT THE CASH DEPOSITS I NTO THE BANK ACCOUNT WERE FROM OUT OF CASH WITHDRAWALS FROM THE SAME BANK ACCOUNT ON THE REASONING THAT ALL THE CASH WITHDRAW ALS THROUGH 3 BEARER CHEQUES WERE MADE IN GOREGAON, MUMBAI AMOUNT ING TO RS.33,90,000/-. HE FURTHER NOTED THAT AS PER THE BA NK ACCOUNT STATEMENT ONLY ONE WITHDRAWAL THROUGH BEARER CHEQUE WAS MADE AT HYDERABAD BARKATPURA BRANCH ON 13.05.2008 FOR RS. 1,00,000/-. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS NOT ABLE TO EXPLAIN HOW THE CASH WITHDRAWALS AT MUMB AI WERE DEPOSITED IN HYDERABAD. FURTHER, VERIFYING THE CASH D EPOSITS SLIPS SUBMITTED BY THE ASSESSEE, THE ASSESSING OFFIC ER FOUND THAT THERE ARE 37 CASH DEPOSITS SLIPS SERIALLY NUMBERED W HICH SHOW THAT THE CASH DEPOSITS OF RS.34,90,000/- WAS NOT MA DE IN A SINGLE DAY BUT SPREAD-OVER IN ATLEAST 37 DIFFERENT D ATES. FROM THESE, THE ASSESSING OFFICER DREW AN INFERENCE THAT THE ASSESSEES CONTENTION THAT HE HAD WITHDREW THE CASH FOR PURCHA SE OF PROPERTY IS NOT BELIEVABLE AS HE COULD NOT HAVE TRIE D AND FAILED TO PURCHASE THE PROPERTY 37 TIMES. THE ASSESSING OFFICE R FURTHER CONCLUDED THAT IF THE ASSESSEE WAS INTENDING TO PUR CHASE AT HYDERABAD, THERE IS NO REASON WHY THE BEARER CHEQUES WERE WITHDRAWN AT MUMBAI. THE ASSESSING OFFICER ALSO REJE CTED THE ASSESSEES CONTENTION OF PURCHASE OF PROPERTY AT MUMB AI AS THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT O F SUCH CONTENTION. IT WAS NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THOUGH THE ASSESSEE WAS SPECI FICALLY ASKED TO EXPLAIN THE PARTIES HE HAS DEALT WITH FOR PURCHASE OF PROPERTY ALONG WITH THEIR COMPLETE ADDRESS, AGREEMEN TS AND RECEIPTS WHICH THE ASSESSEE OBTAINED FROM PROPERTY S ELLER IN RESPECT OF PAYMENTS FOR PROPERTY PURCHASED THE ASSESS EE COULD NOT FURNISH ANY EVIDENCE IN SUPPORT OF 37 SUCH ATTEM PTS TO PURCHASE PROPERTY. THE ASSESSING OFFICER OPINED THAT DEPOSITING CASH 37 TIMES IN HYDERABAD ON DIFFERENT OCCASIONS, T HEN, WITHDRAWALS IN MUMBAI AND AGAIN CARRYING BACK THE CA SH TO HYDERABAD IS NOT PRACTICAL AND AN ACTIVITY WITHOUT AN Y PURPOSE AND THEREFORE, NOT ACCEPTABLE. HE FURTHER NOTED THE FACT THAT THE 4 ASSESSEE WAS DRAWING SALARY OF RS.8000/- PER MONTH D URING THE PERIOD FROM 01.04.2008 TO 31.03.2009 AND THERE IS N O OTHER INCOME GENERATING ACTIVITY CARRIED ON BY THE ASSESSE E. THEREFORE, CONSIDERING THE DECLARED SOURCE OF INCOME OF RS.96, 000/- FROM SALARY, RS.1,13,925/- FROM HOUSE PROPERTY AND RS.65,6 56/- FROM INCOME FROM OTHER SOURCES, THE CASH DEPOSIT OF RS.3 4,90,000/- IN THE BANK ACCOUNT WITH HDFC BANK REMAINS UNEXPLAINED AND ACCORDINGLY, ADDED IT TO THE TOTAL INCOME OF THE ASS ESSEE FOR THE IMPUGNED ASSESSMENT YEAR. 4. THE ASSESSEE BEING AGGRIEVED OF THE ADDITION MAD E IN THE ASSESSMENT YEAR, PREFERRED AN APPEAL BEFORE THE CIT( A). THE CIT(A), DELETED THE ADDITION BY ACCEPTING THE CONTEN TION OF THE ASSESSEE BY OBSERVING AS UNDER : 6.1 DURING APPEAL PROCEEDINGS, THE APPELLANT CONT ENDED THAT THE AO IS NOT JUSTIFIED IN REJECTING APPELLANT 'S EXPLANATION FOR THE CASH DEPOSITS AND IN NOT ACCEPT ING SOURCES AND AVAILABILITY OF FUNDS FOR THE SAID DEPO SITS. IN SUPPORT THEREOF, BANK STATEMENT AND CASH FLOW REFLECTING SOURCES OF FUNDS FOR DEPOSITS ARE FILED. IT IS ALSO CONTENDED THAT THERE ARE CERTAIN FACTUAL ERROR S IN FIGURES OF CASH DEPOSITS / WITHDRAWALS MENTIONED BY AO. 6.2 HE FURTHER SUBMITTED THAT THE APPELLANT WAS ASSOCIATED WITH ELECTRONIC COMPONENTS BUSINESS FOR SEVERAL YEARS AS AN EMPLOYEE AND WAS DESIROUS OF STARTING HIS OWN BUSINESS. FOR THIS PURPOSE, HE WAS INTENDING TO PURCHASE SITE/ PLOT - BOTH AT MUMBAI A ND IN HYDERABAD. SHRI RAJESH BHATIA PAID VISITS TO MUMBAI IN MAY, SEPTEMBER, OCTOBER & NOVEMBER, 2008 FOR ABOUT 3-4 DAYS EACH TIME AND NOT ON 37 OCCASIONS AS POINTED OUT BY AO. PRACTICALLY, THE REASON FOR WITHDRAWALS IN MUMBAI THROUGH BEARER CHEQUES DURING THESE VISITS WAS HIS PREPAREDNESS TO MEET WITH FINANCIAL REQUIREMENTS IN CASE OF MEANINGFUL DEALS. NATURALLY, DURING ALL FOUR TRIPS TO MUMBAI SHRI RAJESH BHATIA HELD DISCUSSIONS WITH FRIENDS AND DEALERS OF PROPERTIES AND RETURNED TO HYDERABAD AVOIDING EXTRA NIGHT STAY IN MUMBAI FOR SHEER DEPOSIT OF CASH BACK INTO BANK. DECRYING THE 5 QUERY OF HOW AND WHY APPELLANT CARRIED CASH ALL THE WAY FROM MUMBAI TO DEPOSIT THE SAME IN HYDERABAD, THE AR STATED THAT SHRI RAJESH BHATIA IS FROM A FAM ILY OF BUSINESS AND IS HABITUATED TO CARRYING CASH AS I S WONT TO ANY PERSON INVOLVED IN BUSINESS RATHER THAN OVERSTAYING IN CITY LIKE MUMBAI JUST FOR THE SAKE O F DEPOSITING CASH. THE AR DENIED THAT CASH WAS WITHDRAWN IN MUMBAI FOR PURPOSE OF ONLY FOR PURCHASE OF PROPERTY IN HYDERABAD. OF COURSE, THE A R CONCEDED, NO DEAL WAS EVER MATERIALIZED AND THE CAS H WITHDRAWN FOUND ITS PLACE BACK IN BANK. THE AR CONTENDED THAT THE AO IS NOT JUSTIFIED IN DEMANDING PRODUCTION OF EVIDENCE LIKE NAMES & ADDRESSES OF PROSPECTIVE PROPERTY SELLERS, AGREEMENTS AND RECEIP TS WHEN THE EFFORTS OF THE APPELLANT DID NOT MATERIALI SE. HE CONTENDED THAT IT IS IMPOSSIBLE TO ESTABLISH THE NEGATIVE AND IN HIS SUPPORT, HE CITED THE DECISION OF ITAT IN THE CASE OF HARSH W. CHADHA VS. DDIT IN ITA NO. 3088 TO 3098 & 3107/0/05 DATED 31.12.2010 WHEREIN THE HON'BLE TRIBUNAL REFERRED TO THE CASE OF K.P. VERGHESE V. ITO (131 ITR 597) TO ACCEPT: 'IT IS A WELL SETTLED RULE OF LAW THAT THE ONUS OF ESTABLISHING THAT THE CONDITIONS OF TAXABILITY ARE FULFILLED IS ALWAYS ON THE REVENUE AND THE SECOND CONDITION BEING AS MUCH A CONDITION OF TAXABILITY AS THE FIRST, THE BURDEN LIES ON THE REVENUE TO SHOW THAT THERE IS UNDERSTATEMENT OF THE CONSIDERATION AND THE SECOND CONDITION IS FULFILLED. MOREOVER, TO THROW THE BURDEN OF SHOWING THAT THERE IS NO UNDERSTATEMENT OF THE CONSIDERATION, ON THE ASSESSEE WOULD BE TO CASE AN ALMOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH THE NEGATIVE, NAMELY, THAT HE DID NOT RECEIVE ANY CONSIDERATION BEYOND THAT DECLARED BY HIM. 6.3 COMING TO AO'S OBSERVATION THAT THE APPELLANT WAS EMPLOYED FULL TIME AND THEREFORE WOULD NOT HAVE BEEN IN ANY OTHER BUSINESS, THE AR SUBMITTED THAT THE OBSERVATION IS CORRECT AND APPELLANT DID NOT HAVE ANY OTHER INCOME THAN WHAT WAS DISCLOSED IN THE RETURN. 6.4 I HAVE CONSIDERED THE FACTS OF THE CASE AND TH E SUBMISSIONS MADE BY APPELLANT. I FIND THAT THERE ARE SMALL MISTAKES IN MENTIONING OF FIGURES OF 6 AMOUNTS BUT I AM OF OPINION THAT THEY DO NOT MATTER MUCH IN VIEW OF THE FACT THAT MORE OR LESS THESE FIGURES REPRESENT ENTRIES IN BANK STATEMENT. THE APPELLANT EXPLAINS THE SOURCE FOR THE DEPOSITS AS CASH WITHDRAWN FROM BANK (HOFC BANK) DURING TRIPS TO MUMBAI IN MAY 2008 RS. 1,30,000 SEPTEMBER, 2008 RS.11,50,000 OCTOBER, 2008 RS. 5,25,000 NOVEMBER, 2008 RS. 7,50,000 TOTAL RS. 25,55,000 6.5 FROM THE BANK STATEMENT AND CASH-FLOW DETAILS FURNISHED, IT IS SEEN THAT THE REST OF TRANSACTIONS ARE APPELLANT'S SALARY, RENTAL AND OTHER SOURCES OF INCOME WHICH INCLUDED GIFTS - BOTH TAXABLE AND NON-TAXABLE THAT ARE REFLECTED IN HIS CAPITAL ETC AS WELL AS RETURN OF INCOME FILED BEFORE AD. AS FAR AS THE GROUNDS ON WHICH THE ADDITION WAS MADE, I AGREE WITH THE AR THAT IT IS NOT POSSIBLE FOR APPELLANT TO FURNISH EVIDENCE OF HAVING DEPOSITED MONEY AT HYDERABAD WHICH WAS WITHDRAWN IN MUMBAI. IN MY OPINION, IT IS ONLY TO JUDGE AND BELIEVE WHETHER CASH WITHDRAWN AT MUMBAI WAS, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, REALLY DEPOSITED IN HYDERABAD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED SUMMONS AND RECORDED STATEMENT FROM APPELLANT SHRI RAJESH KUMAR BHATIA. SHRI BHATIA DEPOSED THAT HE HELD ONLY ONE SB A/CIT(A) I.E., WITH HDFC BANK, LAKDI-KA-POOL BRANCH. THE SOURCES OF DEPOSITS WERE STATED TO BE WITHDRAWALS FROM THE SAME BANK EITHER AT MUMBAI OR IN HYDERABAD. THE APPELLANT STUCK TO THIS VERSION THROUGHOUT THE PROCEEDINGS - BEFORE THE AO AS WELL. AS DURING APPELLATE PROCEEDINGS. THE AO, AFTER EXAMINING SHRI RAJESH BHATIA ON OATH, DID NOT ESTABLISH IT OTHERWISE EXCEPT DISBELIEVING THE VERSION. FURTHER, IT IS UNREASONABLE ON THE PART OF AO TO CALL FOR EVIDENCE IN THE FORM OF NAMES & ADDRESSES OF PARTIES, AGREEMENTS AND RECEIPTS FROM PROPERTY SELLERS WHEN THE APPELLANT STATED THAT NO DEAL WAS MATERIALISED. THE AO IS ALSO NOT CORRECT TO STATE I N THE ASSESSMENT ORDER THAT THE APPELLANT FAILED IN HIS ATTEMPT TO BUY PROPERTIES ON 37 OCCASIONS. A PERUSAL OF BANK STATEMENT AND WITHDRAWALS IN MUMBAI SHOWS THAT ONLY DURING FOUR TRIPS TO 7 MUMBAI THE WITHDRAWALS WERE MADE. EXCEPTING THE WITHDRAWALS OF RS. 25,55,000/- IN MUMBAI AND DEPOSIT OF THE SAME IN HYDERABAD, DETAILS REST OF TRANSACTIONS AND SOURCES THEREOF WERE FILED AT THE TIME OF ASSESSMENT. THIS LEAVES ONLY THE AMOUNT OF RS. 25,55,000/- FOR CONSIDERATION. 6.6 THERE IS NO DISPUTE ABOUT THE SOURCE OF FUNDS AVAILABLE IN APPELLANT'S BANK A/C. IT IS ONLY FOR CONSIDERATION WHETHER THE WITHDRAWN CASH WAS DEPOSITED BACK INTO HIS A/C. EVEN AFTER EXAMINING THE APPELLANT SHRI RAJESH BHATIA ON OATH, THE AO HAS NOT ESTABLISHED THAT CASH WITHDRAWN BOTH AT MUMBAI AND IN HYDERABAD WAS NOT AVAILABLE TO APPELLANT FOR DEPOSITING THE SAME INTO HIS A/C. PRIMA FACIE, THERE IS NEXUS BETWEEN THE DATES OF WITHDRAWAL OF CASH AND DEPOSIT OF THE SAME INTO BANK AS SEEN FROM THE BANK STATEMENT. THE AO HAS NOT BROUGHT OUT ANYTHING ON RECORD TO THE CONTRARY. IN THE CASE OF HOTEL DERBY, MUMBAI, AN ADDITION OF RS. 3,27,000 WAS MADE U/S 68 AS UNEXPLAINED CREDIT. IT WAS EXPLAINED THAT THE DEPOSIT REPRESENTED AMOUNT BROUGHT IN BY ITS PARTNER AND COPY OF HIS BANK STATEMENT WAS FILED IN SUPPORT THEREOF. THE CIT APPEALS) ACCEPTED THE EXPLANATION. SECOND APPEAL PREFERRED BY DEPARTMENT WAS DISMISSED BY THE ITAT, MUMBAI BENCH 'H' IN THEIR ORDER IN ITA NO. 3413/ MUM/ 2011 DATED 20.07.2012 HOLDING : 'THEREFORE, MERELY ON THE GROUND THAT THERE WAS TIME LAG BETWEEN THE CASH WITHDRAWALS AND THE DEPOSITS, ADDITION CANNOT BE JUSTIFIED AS THERE IS NO LEGAL BAR ON A PERSON KEEPING MONEY IN CASH. THERE IS ALSO NO MATERIAL PLACED ON RECORD TO SHOW THAT THE CASH WITHDRAWALS BY SHRI AMIT ACHHRA HAD BEEN USED FOR SOME OTHER PURPOSE AND WERE NOT AVAILABLE FOR CASH DEPOSITS IN THE BANK ACCOUNT OF THE FIRM. WE, THEREFORE, SEE NO INFIRMITY IN THE ORDER OF CLT(A} IN DELETING THE ADDITION MADE BY AO AND THE SAME IS, THEREFORE, UPHELD. ' 6.7 THE ABOVE RATIO APPLIES TO FACTS OF APPELLANT'S CASE. FURTHER, AS MENTIONED BY AO AT PAGE 2 OF HIS ORDER, APPELLANT DID NOT HAVE ANY BUSINESS AND DID NOT MAINTAIN BOOKS OF ACCOUNT. IN UTKARSH 8 KASHINATH PITRE VS. ACIT, THE ITAT, PUNE BENCH 'B' IN THEIR ORDER IN ITA NO. 388/PN/10 DATED 13.12.2011 ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT CASH WITHDRAWN FROM VARIOUS BANK ACCOUNTS WAS AVAILABLE FOR CASH DEPOSITS AND UPHELD ACTION OF CLT(APPEALS) IN DELETING THE ADDITION. IN THAT CASE, IT WAS ALSO ARGUED THAT FOR MAKING ADDITION, INVOKING OF PROVISION OF SECTION 6 8 WAS UNTENABLE AS THE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNT. FOR THIS PROPOSITION, THE ASSESSEE RELIED ON THE JUDGMENT OF THE HON'BLE GUWAHATI HIGH COURT IN THE CASE OF ANANDRAM RAYTANI V. CIT, 223 ITR 544 (GAU) AS ALSO THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. BHAICHAND H GANDHI, 141 ITR 67 (BOM). SAME SET OF FACTS EXIST IN APPELLANT'S CASE ALSO. FOR THESE REASONS, I HOLD THAT THE AO IS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.34,90,000 AND THE SAME IS DELETED. 5. WE HAVE HEARD SUBMISSIONS OF BOTH THE PARTIES AN D PERUSED THE MATERIAL ON RECORD AS WELL AS THE ORDER S PASSED BY THE REVENUE AUTHORITIES. AS CAN BE SEEN FROM THE AS SESSMENT ORDER, THE ASSESSING OFFICER HAS ADDED AN AMOUNT OF RS.34,90,000/- AS UNEXPLAINED CASH DEPOSIT TO THE BA NK ACCOUNT MAINLY ON THE GROUND THAT THE ASSESSEE DOES NOT HAVE SUFFICIENT SOURCE OF INCOME TO DEPOSIT SUCH AMOUNT INTO THE BA NK ACCOUNT AND FURTHER HAS FAILED TO PRODUCE ADEQUATE EVIDENCE TO SUPPORT ITS CLAIM WITH REGARD TO THE SOURCE OF SUCH DEPOSIT S IN THE BANK ACCOUNT. IT IS EVIDENT FROM THE ASSESSMENT ORDER TH AT THE ASSESSING OFFICER HAS TREATED THE AMOUNT OF RS.34,9 0,000/- FROM UNEXPLAINED SOURCES MAINLY ON THE REASON THAT THE AS SESSEES INCOME IS MEAGRE AND THE ASSESSEE DOES NOT HAVE ANY OSTENSIBLE SOURCE FOR MAKING THE DEPOSITS INTO THE BANK ACCOUN TS. FURTHERMORE, THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE TO PROVE THE NEXUS BETWEEN THE WITHDRAWALS MADE AT MUMB AI AND DEPOSITS MADE INTO THE BANK ACCOUNT AT HYDERABAD. ON PERUSAL OF THE ORDER PASSED BY THE CIT(A), IT IS SEEN THAT T HE CIT(A) HAS DELETED THE ADDITION MERELY GOING BY THE VERSION OF T HE ASSESSEE 9 WITHOUT MAKING ANY EFFORT TO SEE AS TO WHETHER THE A SSESSEE ACTUALLY HAS ESTABLISHED THE NEXUS BETWEEN THE WITHDR AWALS MADE AT MUMBAI AND THE DEPOSITS MADE AT HYDERABAD. T HE CIT(A) HAS DELETED THE ADDITION BY MERELY OBSERVING THAT THE ONUS IS WITH THE ASSESSING OFFICER TO PROVE THAT THE DEP OSITS IN THE BANK ACCOUNT WERE NOT MADE OUT OF THE WITHDRAWALS M ADE AT MUMBAI. IN OUR VIEW, THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION WITHOUT PROPERLY EXAMINING THE SOURCE OF DEP OSITS INTO THE BANK ACCOUNT. WHEN THE ASSESSEE IS CLAIMING TH E DEPOSITS MADE INTO HIS BANK ACCOUNT TO BE OUT OF WITHDRAWALS MADE FROM THE SAME BANK ACCOUNT BY WAY OF BEARER CHEQUES AT GOR EGAON, MUMBAI, DUTY IS CAST UPON THE ASSESSEE TO ESTABLISH THE FACT BY PRODUCING CREDIBLE EVIDENCE AND MATERIAL THAT SUCH DEPOSITS INTO THE HDFC BANK ACCOUNT AT HYDERABAD WAS ACTUALLY OUT OF SUCH WITHDRAWALS MADE AT GOREGAON, MUMBAI. THE CIT(A) HA VING NOT PROPERLY EXAMINED THIS ASPECT, WE ARE INCLINED TO REM IT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WH O SHALL CONSIDER THE ENTIRE ISSUE AFRESH AFTER CONSIDERING ALL THE M ATERIALS AND EVIDENCE PLACED ON RECORD. IT GOES WITHOUT SAYING TH AT THE ASSESSING OFFICER SHALL AFFORD A REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 6. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT, ON 30.09.2013 . SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 30 TH SEPTEMBER, 2013. VBP/- 10 COPY TO 1. I.T.O. WARD 5 (1), ROOM NO. 604, 6 TH F LOOR, AAYAKAR BHAVAN, HYDERABAD. 2. SRI RAJESH KUMAR BHATIA, 4 - 5 - 487/A, BADI CHOWDI, HYDERABAD. PAN AHMPB1541Q 3. CIT(A) - V , HYDERABAD. 4. CIT - IV , HYDERABAD. 5. D.R. I.T.A.T. B BENCH, HYDERABAD