VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 33/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI RADHEY SHYAM AGARWAL 62, PODDAR MARG BURMESE COLONY, JAIPUR CUKE VS. THE ITO WARD- 5(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABDPA 4776 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJESH OJHA, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/04/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 29/05/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 18-11-2013 FOR THE ASSESSME NT YEAR 2008-09 RAISING FOLLOWING GROUNDS. 1. THE IMPUGNED ADDITIONS AND DISALLOWANCES MADE IN THE ORDER U/S 143(3) DATED 3-12-2010 ARE BA D IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE DELETED. ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 2 2. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 6,00,000/- ON ACCOUNT OF THE DEPOSIT MADE ON 4-4-207 WITH THE FIRM M/S. JAI HANUMANT, AS UNEXPLAINED INCOME. THE ADDIT ION SO MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) BEIN G CONTRARY TO THE PROVISIONS OF LAW AND FACTS, THE SA ME KINDLY BE DELETED. 3. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 1,00,000/- ON ACCOUNT OF ALLEGED LOW WITHDRAWALS. THE ADDITIO N SO MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) BEIN G CONTRARY TO THE PROVISIONS OF LAW AND FACTS, THE SA ME KINDLY BE DELETED. 4. THE LD. AO FURTHER ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CHARGING INTEREST U/S 234 & 23 4D OF THE ACT AND AS ALSO IN WITHDRAWING INTEREST U/S 244A OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARG ING AND WITHDRAWAL OF ANY SUCH INTEREST. THE INTEREST SO CH ARGED/ WITHDRAWN, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN FULL. 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE DID NOT PRESS GROUND NO. 1, HENCE, THE SAME IS DISMISSED BE ING NOT PRESSED. 3.1 BRIEF FACTS OF THE CASE ARE THAT ASSESSEE DURIN G THE COURSE OF RELEVANT PERIOD WAS PARTNER IN M/S. JAI HANUMANT AN D M/S. GLOBE TRANSPORT CORPORATION. THE ASSESSEE FILED HIS RETUR N OF INCOME IN FORM NO. 3. DECLARING HIS INCOME FROM PARTNERSHIP FIRM, SHORT TERM CAPITAL GAIN AND INTEREST. IT WAS FOUND THAT THE ASSESSEE HAD DE POSITED A SUM OF RS. 6.00 LACS IN CASH IN THE PARTNERSHIP FIRM M/S. JAI HANUMANT. THE AO ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 3 ASKED FOR THE DETAILS OF SOURCE OF DEPOSIT, ASSESSE E CONTENDED THAT THIS AMOUNT REPRESENTED BROUGHT FORWARD CASH FROM EARLIE R YEARS LYING WITH HIM. IN SUPPORT OF THIS COPY OF CASH BOOK FOR THE C URRENT YEAR AND PRECEDING YEAR WERE FILED TO SHOW THE CASH FLOW. LD . AO WAS NOT CONVINCED WITH ASSESSEE'S REPLY IN BEHALF OF OPENIN G CASH, BESIDES ASSESSEE HAD NOT SHOWN ANY WITHDRAWAL FOR HOUSE HOL D EXPENSES. CONSEQUENTLY, FOLLOWING ADDITIONS WERE MADE. THE PERUSAL OF CASH FLOW STATEMENT SUBMITTED BY T HE ASSESSEE IN THE PRECEDING YEAR ALSO REFLECTS HUGE I NFLOW AND OUTFLOW. HOWEVER, DURING THE YEAR, NO SUCH TRANSACT IONS HAVE BEEN REFLECTED. MOREOVER, THE ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNTS FOR THE RELEVANT PERIODS AND ONLY EXTRACTS OF CASH BOOKS AND BANK BOOKS WERE FILED. THERE WAS NO SPECIFIC RE ASON WITH THE ASSESSEE TO HOLD SUCH USE CASH IN HAND STATED IN TH E CASH FLOW STATEMENT. THE PRACTICE SHOWN BY THE ASSESSEE IS VE RY ABNORMAL. CASH IN HAND ALSO FORM PART OF WEALTH CHARGEABLE TO TAX AS PER WEALTH TAX ACT, 1957 BUT NO RETURN OF WEALTH DECLAR ING SUCH CASH IN HAND CHARGED TO WEALTH TAX HAS BEEN FILED. MOREO VER, IT IS ALSO FOUND THAT NO EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE FOR HOUSE HOLD WITHDRAWALS DESPITE THE FACT THAT HE WAS THE ELDEST MEMBER OF HIS FAMILY CONSISTING OF SELF, WIFE, SON, DAUGHTER-IN-LAW AND OTHERS. UNDER THESE CIRCUMSTANCES, IT COULD NOT BE SEEN THA T THE FUNDS WITHDRAWN ON 14-06-2006 WERE AVAILABLE WITH T HE ASSESSEE TO MAKE DEPOSITS IN THE CURRENT YEAR AFTER A ELAPSE OF ALMOST 10 MONTHS. HENCE, THE SOURCE OF DEPOSITS OF RS. 6,00,0 00/- MADE ON 4- 4-2007 WITH HIS FIRM M/S. JAI HANUMANT STANDS UNEXP LAINED AND ACCORDINGLY ADDED TO THE TOTAL INCOME OF THE ASSESS EE. THIS RESULTS IN AN ADDITION OF RS. 6,00,000/- TO THE TOTAL INCOM E OF THE ASSESSEE ON SUBSTANTIVE BASIS. THE ABOVE PROPOSITION ALSO DE RIVED SUPPORT FROM THE DECISION OF HON'BLE COURT IN 218 ITR 508 (ALL.) IN THE CASE OF M/S. INDIA RICE MILLS VS. CIT. ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 4 3.2 AGGRIEVED, THE ASSESSEE WENT IN FIRST APPEAL WH ERE ADDITIONAL EVIDENCE WAS FILED ON WHICH REMAND REPORT WAS CALLE D FOR. THE ASSESSEE ALSO FILED THE REJOINDER IN THIS BEHALF. THE LD. CI T(A) CONFIRMED THE IMPUGNED ADDITIONS BY FOLLOWING OBSERVATIONS 4.5 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESSMENT ORDER AND APPELLANTS WRITTEN SUBMISSION . ASSESSING OFFICER MADE ADDITION OF RS. 6 LAKHS INTR ODUCED IN CASH BY THE APPELLANT IN PARTNERSHIP FIRM JAI HANUM AN. APPELLANT SUBMITTED THAT SOURCE OF CASH WAS FROM HI S EARLIER WITHDRAWALS AND PAST SAVINGS. HOWEVER, ASSESSING OF FICER FOUND THAT LAST WITHDRAWAL FROM THE BANK WAS IN JUN E 2006 WHEREAS CASH INTRODUCED IN THE PARTNERSHIP FIRM IN APRIL 2007. THERE IS A GAP OF 10 MONTHS WHICH IS QUITE UN LIKELY. ASSESSING OFFICER ALSO MENTONED THAT APPELLANT WAS NLY HAVING NTREST AND OTHER INCOME AND NOT DOING ANY BU SNES AND THEREFORE, NO REGULAR BOOKS OF ACCOUNT WERE KEP T. FURTHER APPELLANT IS AN OLD MAN WHO IS NOT SUPPOSED TO KEEP SUCH HUGE CASH EVEN FROM SAFETY ANGLE. APPELLANT ON LY MENTIONED THAT THE FIRM WAS DEALING IN REAL ESTATE AND PAYMENT IN CASH WAS REQUIRED TO BE MADE AT TIME. WI TH THIS PURPOSE OF CASH WITHDRAWAL FROM THE BANK, HOW CAN APPELLANT KEEP THE SAME CASH FOR MORE THAN 10 MONTH S AND INTRODUCE THE SAME IN THE PARTNERSHIP FIRM. FURTHER APPELLANT HAS NOT SHOWN ANY WITHDRAWAL FOR PERSONAL EXPENSES. ALL THESE FACTS CLEARLY INDICATE THAT THE CASH WITHDRAWALS FROM THE BANK IN JUNE 2006 WAS NOT AT ALL AVAILABLE WITH THE APPELLANT IN APRIL 2007 FOR INTR ODUCING IN PARTNERSHIP FIRM. THE CLAIM OF THE APPELLANT IS BEYOND ANY PREPONDERANCE OF PROBABILITY. IN SUCH SITUATION, ON US IS ON THE APPELLANT TO PROVE THAT WHAT IS IMPROBABLE HAS ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 5 HAPPENED. WHEN CASH WITHDRAWALS WERE MADE FOR THE PURPOSE OF INVESTMENT IN REAL ESTATE, IT IS PRESUME D THAT THE SAME IS USED FOR THAT PURPOSE AND THE SAME IS NOT A VAILABLE WITH THE APPELLANT FOR PAYMENT AFTER 10 MONTHS. IF THE TIME GAP BETWEEN WITHDRAWAL AND DEPOSIT IS OF A FEW DAYS , ONE CAN STILL ASSUME THAT DEPOSITS ARE FROM WITHDRAWALS . FOR SUCH A WIDE GAP OF TIE, ONUS IS ON THE APPELLANT TO EXPLAIN THE ENTIRE CONDUCT ALONGWITH THE NECESSARY EVIDENCES. T HE DECISIONS RELIED UPON BY THE APPELLANT ARE IN RESPE CT OF CASES WHERE REGULAR BOOKS OF ACCOUNTS ARE KEPT AND TIME GAP IS NOT SUBSTANTIAL. THEREFORE, THESE DECISIONS DO N OT HELP THE APPELLANT. IF APPELLANT MAKES THE CLAIM THAT HE KEP T THE CASH WITHDRAWAL FROM THE BANK FOR 10 MONTHS, ONUS TO EST ABLISH THIS CLAIM IS ON THE APPELLANT. THIS ONUS CAN BE D ISCHARGED BY GIVING RELEVANT DETAILS OF LAND DEALS FOR WHICH CASH WAS WITHDRAWN BUT NOT UTILIZED. FURTHER FOR KEEPING SUC H HUGE CASH ALSO REQUIRED DETAILS OF ONGOING DEALS FOR WHI CH INSTANT CASH WAS NEEDED. APPELLANT SUBMITTED NO DETAILS AND SIMPLY CLAIMED THAT DEPOSIT WITH THE FIRM WAS OUT OF CASH WITHDRAWALS FROM THE BANK 10 MONTHS EARLIER. SUCH C LAIM WITHOUT DETAILS AND NECESSARY EVIDENCE CANNOT SURVI VE. IN VIEW OF THIS, I AM OF THE CONSIDERED VIEW THAT APPE LLANT INTRODUCED UNACCOUNTED CASH IN THE FIRM AND THE SOU RCE OF THE SAME IS NOT FROM EARLIER WITHDRAWALS FROM BANK. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFF ICER IS CONFIRMED. 5.5 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESS MENT ORDER AND APPELLANTS WRITTEN SUBMISSION. ASSESSING OFFICER FOUND THAT THERE WAS NO WITHDRAWAL FOR PERSONAL EXP ENSES AND THEREFORE, HE ESTIMATED THE SAME AT RS. 1 LAKH. APPELLANT SUBMITTED THAT HIS SONS WERE MEETING ALL HIS EXPENS ES AND THEY WERE HAVING SUFFICIENT WITHDRAWALS TO MEET THE SE EXPENSES. HOWEVER, IT IS DIFFICULT TO BELIEVE THAT A PERSON WHO IS ACTIVE AND PARTNER IN TWO FIRMS WILL NOT REQUIRE ANY MONEY FOR HIS PERSONAL EXPENSES APART FROM HOUSE HOLD EXP ENSES WHICH MIGHT HAVE BEEN MET BY HIS FAMILY MEMBERS. TH ERE ARE MANY PERSONAL EXPENSES WHICH ARE REQUIRED TO BE INC URRED BY A PERSON WHO IS EARNING. THEREFORE, IT IS DIFFIC ULT TO ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 6 BELIEVE THAT APPELLANT DID NOT SPEND A SINGLE PENNY . I AGREE WITH THE ASSESSING OFFICER THAT APPELLANT WOULD HAV E AT LEAST SPENT RS. 1 LAKH FOR HIS PERSONAL EXPENSES. ACCORDI NGLY, THE ADDITION MADE BY THE AO IS CONFIRMED. 3.3 AGGRIEVED ASSESSEE IS BEFORE US, LD. COUNSEL CO NTENDS THAT THE MAIN REASON ON WHICH THE ADDITION OF RS. 6.00 LACS HAS B EEN SUSTAINED IS TO THE EFFECT THAT THE ASSESSEE COULD NOT GIVE PROPER EXPL ANATION AS TO HOW AN AMOUNT OF RS. 6.00 LACS WAS LYING AT HOME MORE SO A SSESSEE BEING AN OLD AGED PERSON, IT DID NOT MEET THE PREPONDERANCE OF P ROBABILITIES. THE ASSESSEE MAINTAINED ITS ACCOUNTS ON COMPUTER AND PR ODUCTION OF CASH BOOKS FOR TWO YEARS ALONG WITH MONTHLY CASH FLOW ST ATEMENT HAS NOT BEEN DISPUTED. SIMILARLY, THE WITHDRAWAL OF CASH OF RS. 13.00 LACS ON 14-06-2006 FROM HIS SAVING BANK A/C NO. 75110036311 OF STANDARD CHARTERED BANK WHICH WAS RECEIVED FROM S.G. FISCAL HAS ALSO NOT BEEN DISPUTED EXCEPT THE ALLEGED TIME GAP OF 10 MONTHS H OLDING OF CASH IN HAND AT HOME, ASSESSEE BEING OLD AND ALONE AND NO O THER ADVERSE FINDING IS GIVEN AGAINST THE ASSESSEE. IT IS PLEADED THAT THAT ASSESSEE WAS LIVING ALONE IS BASICALLY WRONG AS HE LIVES WITH TWO JOINT FAMILIES OF HIS SONS WHO TAKE CARE OF HIS OLD FATHER. THEREFORE, THERE I S NO WORTH IN THE OBSERVATION THAT THE ASSESSEE WAS ALONE AND COULD N OT HAVE KEPT CASH AT HOME. THIS BEING PURELY ON PRESUMPTION, SURMISES AN D CONJECTURES CANNOT ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 7 OVERRIDE THE EVIDENCES PRODUCED BY THE ASSESSEE IN THIS BEHALF. RELIANCE IS PLACED ON FOLLOWING CASE LAWS:- (I) CIT VS. DAULAT RAM RAWATMULL (1973) 86 ITR 349 (SC) (II) CIT VS. KULWANT RAI (2007) 210 CTR 380 (DEL.) (III) ANAND PRAKASH SONI VS. DCIT (2006) 101 TTJ 97 (JODHPUR.) (IV) CIT VS. SMT. P.K. NOORJAHAN, 237 ITR 570 (SC) 3.4 APROPOS HOUSE HOLD WITHDRAWALS, IT IS CONTENDED THAT TWO SONS WERE MEETING ALL THE HOUSEHOLD EXPENSES AND THEY WE RE HAVING SUFFICIENT WITHDRAWALS. THERE WAS NO NECESSITY FOR ASSESSEE IN THIS BEHALF. THE ASSESSEE WAS NOT REQUIRED TO CONTRIBUTE ANY SHARE I N HOUSE HOLD EXPENSES. THEREFORE NO WITHDRAWALS WERE SHOWN, THE ADDITION I S NOT JUSTIFIED. 3.5 THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AU THORITIES. 3.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. APROPOS ADDITION OF RS. 6.00 LACS, THE SAME HAS BEEN MADE MAINLY RELYING ON THE FACT THAT THE ASSESSEE W AS AN OLD PERSON AND LIVING ALONE AND THERE WAS A TIME GAP OF 10 MONTHS FOR KEEPING THE CASH AT HOME WHICH WAS NOT POSSIBLE ON PREPONDERANCE OF PROBABILITIES. IT MAY BE MENTIONED THAT ASSESSEE WHILE EXPLAINING THE LOW HOUSE HOLD WITHDRAWALS ASSESSEE HAD ALREADY SUBMITTED BEFORE T HE LOWER AUTHORITIES ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 8 THAT HE WAS LIVING IN A JOINT FAMILY OF TWO SONS. W ITH THESE FACTS ON RECORD, THERE WAS NO REASON FOR THE LOWER AUTHORITI ES TO HOLD THAT THE ASSESSEE WAS LIVING ALONE WHICH COULD BE THE REASON FOR ANY ADVERSE INFERENCE THAT CASH IN HAND COULD NOT BE RETAINED BY THE ASSESSEE FOR 10 MONTHS. THERE IS NO FACTUAL BASIS IN THE PRESUMPTIO N DRAWN BY THE AO AND THE LD. CIT(A), BESIDES THE ASSESSEE MAY BE AGE D BUT REMAINED ACTIVE IN HIS BUSINESS AFFAIRS. CONSEQUENTLY WE SEE NO JUS TIFICATION IN ADDITION OF RS. 6 LACS MORE SO WHEN THE FACTS ABOUT CASH BOOKS, CASH FLOW AND RECEIPT OF CHEQUE OF RS. 13 LACS FROM M/S. S.G. FISCAL HAVE NOT BEEN CONTROVERTED. IN VIEW THEREOF, WE ARE UNABLE TO UPH OLD THE ADDITION OF RS. 6.00 LACS WHICH IS DELETED. THUS GROUND NO. 2 OF TH E ASSESSEE IS ALLOWED. 3.7 APROPOS LOW HOUSE HOLD WITHDRAWALS, THE ASSESSE E IS AN ACTIVE PERSON, EARNING FROM TWO PARTNERSHIP FIRMS. IT HAS BEEN CONTENDED THAT HIS TWO SONS HAVE BORNE THE HOUSE HOLD EXPENSES AND HAV E SUFFICIENT WITHDRAWALS. THERE IS NO EVIDENCE ON RECORD TO DEMO NSTRATE THAT QUANTUM OF WITHDRAWALS BY TWO SONS AND STATEMENT TO THE FAC T THAT THEIR FATHER DID NOT CONTRIBUTE ANY HOUSE HOLD EXPENSES. BESIDE THE SIZE OF THEIR FAMILY AND EXTENT OF HOUSE HOLD WITHDRAWALS HAVE NO EVIDEN CE ON RECORD TO HOLD THAT ASSESSEE'S VERSION IS CORRECT. THUS IN THESE F ACTS AND CIRCUMSTANCES OF THE CASE ASSESSEES EXPLANATION IS NOT CORROBORATED BY ANY IOTA OF ITA NO. 33/JP/2014 SHRI RADHEY SHYAM AGARWAL VS. ITO, WARD- 5 (2), JA IPUR 9 EVIDENCE. IN VIEW THEREOF, WE HOLD THAT AN ADDITION OF RS. 1.00 LAC ON ACCOUNT OF HOUSE HOLD WITHDRAWALS HAS RIGHTLY BEEN MADE BY THE LOWER AUTHORITIES WHICH IS UPHELD. THUS GROUND NO. 3 OF T HE ASSESSEE IS DISMISSED. 4.1 THE GROUND NO. 4 OF THE ASSESSEE IS REGARDING CHARGING OF INTEREST U/S 234B AND 234D OF THE ACT AND ALSO WITHDRAWING I NTEREST U/S 244A IS CONSEQUENTIAL IN NATURE WHICH NEEDS NO ADJUDICATION . 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/05/20 15. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29 /05/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RADHEY SHYAM AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 5 (2), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.33/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR