SHANTI SINGH VARMA, MUMBAI V. ITO WD 21(2)(4), MUMBAI

ITA 3306/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88113 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 02-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: PRADIP KEDIA
• Keywords: Unexplained cash credit; Business income; Additional evidence
• Section: 143(3); 68

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - E BENCH , ' # '$% , $' # BEFORE S/SH.JOGINDER SINGH, JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.3306/MUM/2013, &' &' &' &' ' ' ' ' / ASSESSMENT YEAR-2008-09 SMT. SHANTI SINGH VARMA, C-4 JUHU APTT. JUHU TARA ROAD, MUMBAI-400049 PAN: AAFPV9863P &' VS. ITO WARD 21(2)(4), MUMBAI. ( '() / APPELLANT) ( *+() / RESPONDENT) &',- &',- &',- &',- . . . . $ $$ $ / ASSESSEE BY :SHRI PRADIP KEDIA '# / . $ / REVENUE BY : SHRI NEIL PHILIP &' &' &' &' / // / -'0 -'0 -'0 -'0 / DATE OF HEARING : 02 -02-2015 1' ' / -'0 / DATE OF PRONOUNCEMENT : 02 -02-2015 & & & & , 1961 / // / '' '' '' '' 254(1) $ $$ $ -- -- -- -- $2 $2 $2 $2 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, A.M. $' # '$% $ &' : CHALLENGING THE ORDER DATED 28.01.2013 OF THE CIT(A )-32, MUMBAI, ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) ERRED IN LAW IN SUSTAINING AD DITION OF RS. 9,95,700/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT WITHOUT E XAMINING ALL THE FACTS AND CIRCUMSTANCES TOGETHER. 2. WITHOUT PREJUDICE, THE LEARNED CIT(A) FURTHER ER RED IN CONFIRMING ADDITION OF RS. 9,95,700/-BY OVERLOOKING THE ADMITTED POSITION OF AVAILABLE CASH IN HAND RS. 91,892/- (OPENING BALANCE) AT THE DISPOSAL OF THE ASSESSEE AND THEREFORE SOURCE OF CA SH DEPOSIT TO THIS EXTENT STOOD EXPLAINED WITHOUT ANY DEMUR. 3. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE CASH DEPOSITS WITHOUT GIVING PROPER OPPORTUNITY TO EXPLAIN THE SOURCE OF CASH DE POSIT LEADING TO GROSS MISCARRIAGE OF JUSTICE. 3.1 HE OUGHT TO HAVE APPRECIATED THAT THE LEARNED A O HIMSELF HAD NO GRIEVANCE OF NOT FILING ANY DETAILS CALLED FOR AS CATEGORICALLY ADMITTED IN PAR A 3 OF THE ASS. ORDER. 3.2 HE FURTHER OUGHT TO HAVE FURTHER APPRECIATED TH AT THE LEARNED AO HAD NO SUBSISTING GRIEVANCE OF NOT FILING ANY DETAILS CALLED FOR AGAINST UNWARY ASSESSEE EVEN AT REMAND PROCEEDINGS AND THEREFORE OUGHT TO HAVE DECIDED THE ISSUE IN THE LI GHT OF TIN BOX COMPANY 249 ITR 216(2001)(SC). 3.3 HE OUGHT TO HAVE FURTHER APPRECIATED THE CIRCUM STANCES OF THE CASE IN PERSPECTIVE AND OUGHT TO HAVE REFRAINED FROM ADOPTING THEORETICAL, DOCTRIANE OR LEGALISTIC APPROACH HAVING REGARD TO THE CONTEXT OF THE MATTER. 4. THE APPELLANT SUBMITS THAT THE ABOVE GROUNDS OF APPEAL ARE ALTERNATIVE, INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL . ASSESSEE,AN INDIVIDUAL,FILED HER RETURN OF INCOME ON 30.03.2009 DECLARING TOTAL INCOME AT RS. 6. 09 LAKHS,THE ASSESSING OFFICER(AO) COMPLETED THE AS SESSMENT ON 23.12.2010,U/S. 143(3) OF THE ACT,DETERMINING THE INCOME OF THE ASSESSEE AT RS. 2 3.65 LAKHS. 2. FIRST GROUND OF APPEAL IS ABOUT ADDITION OF RS. 9. 95 LAKHS MADE TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT .DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE WAS DEALING IN PRECIOUS AND SEMI PRECIOUS STONES,THAT AS PER AIR INFORMATION SHE HAD DEPOSITED CASH OF RS. 27.2 LAKH S IN BANK OF INDIA, JUHU TARA ROAD BRANCH. HE ISSUED A LETTER TO THE BANK AND CALLED FOR INFOR MATION IN THIS REGARD U/S.133(6) OF THE ACT.VIDE ITS LETTER,DATED 03. 12.2010,THE BANK SUBMITTED COP Y OF THE ACCOUNT OF THE ASSESSEE.THE AO FOUND 2 ITA NO. 3306/M/2013 SMT. SHANTI SINGH VARMA THAT THE ASSESSEE HAD DEPOSITED RS. 13.76 LAKHS ONL Y AND NOT RS. 27.56 LAKHS. HE CALLED FOR THE INFORMATION ABOUT THE CASH DEPOSITS FROM THE ASSESS EE. THE ASSESSEE FILED CASH ACCOUNT ON 13.12.2010 BEFORE THE AO.HE INFORMED THE ASSESSEE T HAT THE CASH DEPOSITS STATEMENT DID NOT CLARIFY THE SOURCE OF CASH DEPOSITS MADE ON A PARTI CULAR DATE AND DIRECTED HER TO FILE CASH FLOW STATEMENT EXPLAINING EACH TRANSACTION IN THE BANK A CCOUNT.HE FOUND THAT SHE HAD SHOWN WITHDRAWAL FROM OTHER BANKS AT RS. 5.10 LAKHS. AS T HE DETAILS OF THOSE BANKS WERE NOT AVAILABLE,HE DIRECTED THE ASSESSEE TO SUBMIT THE DE TAILS AND IN BANK ACCOUNT SUMMARY RELATING TO OTHER BANK ACCOUNTS. AS PER THE AO THOUGH SHE HAD S UBMITTED SUMMARY OF VARIOUS ACCOUNTS BUT NO BANK STATEMENT WERE SUBMITTED TO ESTABLISH WHEN THE DEPOSITS AND WITHDRAWAL WERE DONE THAT COULD VERIFY THE SOURCE OF DEPOSITS, THAT THE DETAI LS OF BANK ACCOUNTS AND ADDRESSES OF BANK WERE NOT GIVEN. AFTER ANALYSING THE BANK STATEMENT,THE AO HELD THAT AS PER HER RETURN FOR AY.2007-08 SHE HAD CASH IN HAND OF RS.91,892/- AND BALANCE WITH BANK W AS AT RS. 86,113/-,THAT THE ASSESSEES DEPOSITS IN BANK OF INDIA COULD NOT BE EXPLAINED WITH HER CA SH IN HAND, THAT AS ON 01.04.2007 THE CASH WAS EXHAUSTED WHEN SHE ENTERED INTO FIRST TRANSACTION,T HAT THE ASSESSEES WITHDRAWAL FOR THE MONTH OF MARCH WAS RS.12 LAKHS,THAT DEPOSITS OF RS. 13.76 LA KHS HAD BEEN MADE IN BANK IN CASH PRIOR TO THE SAID WITHDRAWAL,THAT SHE COULD NOT TAKE ADVANTA GE OF WITHDRAWAL TO PROVE THE DEPOSITS IN BANKS THAT WAS MADE PRIOR TO THE WITHDRAWAL,THAT SH E STATED IN HER CASH ACCOUNT THAT SHE WITHDREW RS.5.10 LAKHS FROM OTHER BANKS,THAT SHE DID NOT FIL E THE DETAILS OF THOSE BANK ACCOUNTS/ STATEMENTS INSPITE OF THE FACT THAT SUCH INFORMATION WAS SPEC IFICALLY CALLED FOR,THAT IN ABSENCE OF DETAILS OF OTHER BANK ACCOUNTS IT COULD NOT BE UNDERSTOOD AS T O WHETHER THE AMOUNT OF RS. 5.10 LAKHS IN THE SAID BANKS WAS FROM KNOW SOURCES,THAT THE ASSESSEE HAD MENTIONED THAT SHE HAD RECEIVED ADVANCE FROM 47 DIFFERENT CUSTOMERS,AMOUNTING TO RS. 8.30 L AKHS.HE DIRECTED HER TO FILE DETAILS OF THOSE PARTIES FROM WHOM ADVANCES WERE RECEIVED. AS THE AS SESSEE DID NOT COMPLY AND FILED THE DETAILS, SO,THE AO OBSERVED THAT THE CASH DEPOSITS HAD BEEN WITHDRAWN BY WAY OF VARIOUS INSTRUMENTS,THAT IN SOME CASES CASH DEPOSITS HAD BEEN PAID BY WAY OF ISSUE OF CHEQUE OF M/S BOSUNA INVESTORS GUILD PVT. LTD.,(BIGPL),THAT ASSESSEE DID NOT FILE THE ADDRESS OF BIGPL. HE HELD THAT CASH DEPOSITS OF RS. 13.76 LAKHS REMAINED UNEXPLAINED.IT WAS FURTHER OBSERVED BY THE AO THAT THE ASSESSEE KNOWINGLY DID NOT SUBMIT THE BANK ACCOUNTS WHICH SHE WAS MAINTAINING IN OTHER BANKS.THEREFORE,IN ABSENCE OF THE BANK DETAILS,HE E STIMATED AN UNACCOUNTED CASH DEPOSIT OF RS. 3 LAKHS FOR THE YEAR UNDER APPEAL.FINALLY, HE HELD TH AT HE WAS NOT LEFT WITH ANY OPTION BUT TO TREAT THE DEPOSIT OF RS. 16.76 LAKHS (13.76 LAKHS +3 LAKH S) AS UNEXPLAINED CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE, U/S.68 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).DURING THE APPELLATE PROCEEDINGS,SH E SUBMITTED ADDITIONAL EVIDENCES IN FORM OF BANK STATEMENT OF OTHER BANK ACCOUNT AND CASH BOOK ON GROUNDS THAT DURING THE ASSESSMENT PROCEEDINGS THE AO HAD ASKED TO PRODUCE THOSE DOCUM ENTS WITHIN THREE DAYS TIME AND THAT THE TIME GIVEN TO HER WAS INSUFFICIENT.FAA DIRECTED THE AO TO SEND REMAND REPORT(RR).AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED AND THE REMAND REPORT, THE AO MENTIONED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS,SHE HAD SUBMIT TED GEM-PURCHASE- VOUCHERS AND SALE MEMOS ON 24.10.2010,THAT THE BILLS TOWARDS ADVANCE RECEIV ED WERE NOT SUBMITTED AT THAT TIME,THAT BILLS WERE PREPARED AS AN AFTERTHOUGHT JUST TO SUBSTANTIA TE THE CASH DEPOSIT IN THE BANK ACCOUNT,THAT CASH DEPOSITS WERE MADE DURING THE EARLIER MONTHS O F THE FINANCIAL YEAR, THAT CASH WITHDRAWALS WERE MADE DURING THE END OF THE FY I.E. IN THE MONT H OF MARCH FOR THE YEAR UNDER CONSIDERATION, THAT THE SALE MEMOS SUBMITTED BY THE ASSESSEE WERE ISSUED DURING THE PERIOD 3RD APRIL 2007 TO 2ND MAY 2007,THAT NO SALE CLAIMED TO HAVE BEEN DONE FOR THE REST OF THE YEAR,THAT THERE WERE SERIOUS DISCREPANCIES BETWEEN THE CASH BOOK SUBMITT ED AND THE GEM PURCHASES VOUCHERS, THAT BILLS WERE ISSUED TO THE CUSTOMERS FOR CASH RECEIPT AS AN ADVANCE FOR SUPPLY OF GEM STONES DURING THE PERIOD 03.04.2007 TO 21.04.2007, THAT SAME WERE RET URNED IN THE MONTH OF MARCH 2008 I.E. AFTER 3 ITA NO. 3306/M/2013 SMT. SHANTI SINGH VARMA 11 MONTHS,THAT THE ASSESSEE FAILED TO PROVE THE CLA IM MADE BY HER BY PRODUCING ANY EVIDENCES,THAT FOR 10 MONTHS SHE HAD NOT UNDERTAKEN ANY SALE OR PU RCHASE.THE AO FURTHER STATED THAT ASSESSEE DID NOT PRODUCE STOCK REGISTER AS WELL AS REGISTER, PUR CHASE REGISTER, PRESENT ADDRESS AND CONTACT NUMBERS OF THE CUSTOMERS.HE FURTHER MENTIONED THAT ASSESSEE FAILED TO PROVIDE THE PRESENT ADDRESSES OF THE CUSTOMERS INSPITE OF BEING SPECIFI CALLY ASKED TO SUBMIT THE SAME.A COPY OF THE REMAND REPORT WAS HANDED OVER TO THE ASSESSEE. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D THE AO, THE FAA HELD THAT IT WAS IMPORTANT TO LOOK INTO DATES OF CASH DEPOSITS AND WITHDRAWALS IN THE BANK OF INDIA ACCOUNT, THAT SUM AND SUBSTANCE OF THE ARGUMENTS OF THE ASSESSEE WAS THAT CASH ADVANCE OF RS. 8.3 LAKHS DEPOSITS IN BANK ACCOUNT IN APRIL TO MAY 2007 WAS RECEIVED FROM 48 PARTIES WHO WERE WILLING TO PAY ADVANCE FROM SECURITY GEM STONE.FROM THE CASH STATE MENT,HE OBSERVED THAT OUT OF THE CASH ADVANCE OF RS. 8.3 LAKHS RECEIVED FROM CUSTOMERS RS . 7.10 LAKHS HAD BEEN CLAIMED TO HAVE BEEN REFUNDED, THAT THE BALANCE OF RS. 1.2 LAKHS WAS CON VERTED INTO SALES, THAT SHE DID NOT PRODUCE ANY EVIDENCE/DETAILS EXPLANATION THE REASON AS TO WHY S HE COULD NOT SUPPLY GEMSTONES PURCHASERS EVEN DURING THE REMAND PROCEEDINGS, THAT SHE HAD GIVEN T HE NAME OF THE PERSONS AND VALUE OF ADVANCE RECEIVED BUT WITHOUT ANY ADDRESS OR THE NATURE AND SIZE OF THE GEMSTONES ORDERED BY THEM, THAT THE ASSESSEE COULD NOT GET AWAY BY SAYING THAT THE PRIM ARY DETAILS HAD NOT BEEN CALLED FOR,THAT THE ONUS PROVED THE CASH DEPOSIT WAS ON THE ASSESSEE WH ICH HAD TO BE DISCHARGED BY HER,THAT THE REPLY OF THE ASSESSEE THAT ADVANCES WERE REFUNDED AS THE GEMSTONES OF SPECIFIC SIZES OR WEIGHTS COULD NOT BE PROCURED IN THE MARKET, WAS NOT VERIFIABLE I N ABSENCE OF ANY DETAILS OF WEIGHTS OR SIZES OF THE GEMSTONES,THAT THE ASSESSEE WAS HAVING OPENING STOCK OF RS. 26,58,392 AS ON 1/4/2007 WHICH INCLUDED APPROX 31 DIFFERENT KIND OF GEM STONES INC LUDING RUBY, EMERALD AND RED CORAL ALSO,THAT SHE SOLD ONLY 3 KINDS OF GEMSTONES DURING THE YEAR I.E. RUBY, EMERALD AND RED CORAL ONLY WHICH WERE ONE OF THE MOST COMMONLY USED GEMSTONES AND AL READY AVAILABLE IN HER OPENING STOCK,THAT THE VALUE OF SALE OF THESE 3 GEMSTONES DURING THE Y EAR WAS MUCH LESS THAN THE VALUE OF THE GEM STONES ALREADY APPEARING IN OPENING STOCK,THAT ON O NLY 15 DATES IN THE MONTH OF APRIL 2007 THE DEPOSITS HAD BEEN MADE IN BANK A/C AND THAT TOO IN LUMP SUM,THAT NO ADVANCES AFTER APRIL 2007 HAD BEEN RECEIVED,THAT ALL THE REFUNDS FOR ADVANCE S TAKEN IN APRIL 2007 WERE GIVEN ON ONLY 4 DATES IN MONTH OF MARCH 2008,THAT NO ADVANCES WERE RECEIVED OR REFUNDS WERE GIVEN BETWEEN THE PERIOD MAY 2007 TO FEB 2008,THAT IF THE ADVANCES RE CEIVED AND REFUNDED WERE DURING NORMAL COURSE OF CARRYING THE BUSINESS IT WOULD BE LOGICAL THAT THE TRANSACTION OF RECEIVING ADVANCE AND REFUND IF ANY WOULD ALSO BE SPREAD OVER THE ENTIRE YEAR AND NOT RESTRICTED TO ONE PARTICULAR MONTH OF THE YEAR,THAT THE TOTAL SALES OF APPELLANT FOR E NTIRE YEAR WAS ONLY RS 2,50,000 WHICH INCLUDED THE SALES AGAINST THE ADVANCES RECEIVED OF RS 1,20,000 ALSO.CONSIDERING THE CLAIM OF APPELLANT AND HER HUSBAND TO BE IN THE BUSINESS FOR LONG YEARS,HE HEL D THAT THE ADVANCES OF RS 8,30,000 RECEIVED BEING SEVERAL TIMES MORE THAN THE TOTAL TURNOVER IT SELF WAS ABNORMAL,THAT THERE WERE MANY GLARING INCONSISTENCIES IN THE ARGUMENT OF THE APPELLANT,TH AT SHE WAS NOT ABLE TO DISCHARGE THE BURDEN, THAT SHE HAD NOT SATISFACTORILY EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE BANK A/C WITH CREDIBLE EVIDENCES,THAT THE CASH DEPOSITS TO THE EXTENT OF R S 8,30,000 COULD NOT BE SAID TO BE OUT OF THE ADVANCES RECEIVED FROM CUSTOMERS. WITH REGARD TO THE REMAINING CASH OF RS 5,46,000( 1 3,76,000-8,30,000)THE ASSESSEE ARGUED THAT SAME WAS OUT OF SALES MADE DURING THE YEAR OR OUT O F CASH WITHDRAWALS OF RS. 5,10,000 FROM OTHER BANK A/C I.E. PUNJAB & SINDH BANK.THE FAA FOUND FRO M THE BANK STATEMENT OF BOI THAT CASH DEPOSITED UP TO JULY 2007 WAS OF RS. 13,16,000 WHER EAS THE SALES UP TO JULY 2007 AS PER CASH BOOK WAS ONLY RS.3,65,300/-,THAT THERE WAS NO WITHD RAWAL OF CASH FROM P&S BANK UPTO JULY 2007 AS WHATEVER WITHDRAWALS WERE MADE FROM P&S BANK A/C WERE AFTER 1/10/2007 ONLY.CONSIDERING THESE FACTS HE HELD THAT SAME COULD NOT BE SOURCE O F CASH DEPOSITED IN BOI BANK A/C UPTO JULY 2007,THAT CASH DEPOSITS TO THE EXTENT OF RS 1,20,70 0/-(13,16,000- 8,30,000-3,65,300) IN BOI A/C TILL JULY 2007 REMAINED UNEXPLAINED. 4 ITA NO. 3306/M/2013 SMT. SHANTI SINGH VARMA 4. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE (AR) STATED THAT AS PER THE CASH FLOW STATEMENT OF RS. 91,892/- WAS AVAILABLE A S OPENING BALANCE, THAT ADDITION MADE FOR THE SAID AMOUNT WAS NOT AS PER THE LAW,THAT THE ASSESSE E HAD FILED NECESSARY DETAILS BEFORE THE FAA. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAD SUPPLIED THE NAMES OF THE PURCHASERS AND VALUE OF ADVANCES RECEIVED BY HER,BUT SHE DID NOT FURNISH THE ADDRESSES OF THE PERSONS WHO HAD ADVANC ED HER THE SUMS DURING THE YEAR AND DID NOT BOTHER TO ASK FOR THE MONEY OR THE GOODS(GEMS)FOR M ORE THAN 9 MONTHS.THE ASSESSEE HAD NOT FURNISHED THE NATURE/ SIZE OF GEMSTONE ORDERED BY T HE PROBABLE BUYERS,ESTIMATED SALE PRICE OF THE GEMSTONE AGAINST WHICH THE ADVANCE WAS TAKEN,DATE O F RECEIPT OF ADVANCE,DATE OF REFUND ETC. DURING THE ASSESSMENT OR APPELLATE PROCEEDINGS.WE A RE OF THE OPINION THAT THE FAA HAS RIGHTLY HELD THAT SHE CANNOT GET AWAY BY SAYING THAT THE PR IMARY DETAILS HAVE NOT BEEN PRESERVED.BY NOT SUPPLYING THE PRIMARY DOCUMENTS SHE EXPOSED HERSELF TO THE INVOCATION OF PROVISIONS OF SECTION 68 OF THE ACT. SECONDLY,HER NOT SUPPLYING THE DETAILS OF ALLEGED TRANSACTION RESULTED IN DENIAL TO THE AO TO VERIFY THE VERACITY OF HER CLAIM.THE ONUS OF PROVING THE CASH DEPOSITS WAS ON THE ASSESSEE WHICH WAS NOT DISCHARGED BY HER.NOT ONLY THIS,WE FI ND THAT THE FAA HAS POINTED OUT SEVERAL INCONSISTENCIES IN THE ARGUMENT OF ASSESSEE AS COMP ARED TO DETAILS AVAILABLE ON RECORD.WE ALSO FIND THAT THE ASSESSEE WAS AWARE ABOUT THE OBSERVAT ION MADE BY THE AO IN THE RR,BUT SHE DID NOT FILE ANY DOCUMENTARY EVIDENCE BEFORE THE FAA THAT C OULD NEGATE THE STAND TAKEN BY THE AO.IT IS SAID THAT ONE IS REQUIRED TO ARRIVE AT THE CONCLUSI ON ON THE BASIS OF HUMAN PROBABILITY.HUMAN PROBABILITY CANNOT BE IGNORED FOR PERSONS WHO ARE R EADY TO NOT TO MAKE ANY INQUIRY ABOUT THE ADVANCES MADE THEM BUT ALSO READY TO FORGO INTEREST .DURING THE ASSESSMENT PROCEEDINGS,THE AO HAD DIRECTED IT TO FILE BASIC DETAILS ABOUT THE BAN K DEPOSITS.IT WAS UPON THE ASSESSEE TO DISCHARGE THE ONUS WHICH HEAVILY LAID ON HER AND ACCORDING TO US,SHE MISERABLY FAILED FOR THE REASONS STATED HEREIN BEFORE. WE WOULD LIKE TO REFER TO THE MATTER OF RAVINDER PA L SINGH DECIDED BY THE HONBLE P & H HIGH COURT(367ITR65)WHEREIN THE HONBLE COURT HAS HELD A S UNDER : UNDER THE PROVISIONS OF THE INCOME-TAX ACT, THE ON US IS UPON THE ASSESSEE TO ESTABLISH THE NATURE OF ENTRIES IN HIS BOOKS OF ACCOUNT INCLUDING THE BA NK ACCOUNT, EXPENDITURE AND SOURCES OF THE SAME WITH EVIDENCE. THE ONUS CAST UPON THE ASSESSEE IS N OT AN EMPTY FORMALITY BUT IS TO BE DISCHARGED WITH EVIDENCE WHICH CAN STAND THE TEST OF JUDICIAL SECURITY. THE EXPLANATION ENVISAGED BY SECTION 68 IS NOT A FANTASTIC OR FANCIFUL EXPLANATION BUT A GENUINE EXPLANATION DULY SUBSTANTIATED BY RELIABLE EVIDENCE. WE FIND THAT THE ASSESSEE HAS FAILED TO PRODUCE COR RECTNESS OF HER CLAIM,SO FOLLOWING THE ABOVE ORDER OF THE HONBLE COURT,WE ARE UPHOLDING THE ORD ER OF THE FAA AS IT DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. BEFORE US,THE AR HAD STATED THAT THERE WERE ARITHME TICAL MISTAKE ABOUT THE TWO AMOUNTS AVAILABLE NAMELY RS. 1,20,700 + 91,092,THAT THE AO OR THE FAA DID NOT CONSIDER THE AVAILABILITY OF SAID SUMS WHILE MAKING/SUSTAINING THE ADDITION.WE ARE OF THE OPINION THAT THE ARGUMENT ADVANCED BY THE ASSESSEE NEEDS FURTHER VERIFICATION.THEREFORE,I N THE INTEREST OF JUSTICE,WE ARE DIRECTING THE AO TO VERIFY THE CLAIM OF THE ASSESSEE ABOUT THESE AMO UNTS AND AFFORD A REASONABLE OPPORTUNITY OF HEARING TO HER.WE ARE MAKING IT CLEAR THAT MATTER I S RESTORED FOR LIMITED PURPOSE ONLY-THE AO HAS TO VERIFY THE ISSUE OF ABOVE REFERRED TWO ITEMS ONL Y.EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE, IN PART. AS A RESULT, APPE AL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. -3 &',- 4'' '5 / VA'KR% 6 / '- 7 . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND ,FEBRUARY,2015. $2 / 1' ' $ '' 8 9&' 2 QJ QJQJ QJ 0 , ,, , 201 5 / = SD/- SD/- ( /JOGINDER SINGH) ( '$% / RAJENDRA) 5 ITA NO. 3306/M/2013 SMT. SHANTI SINGH VARMA ' # / JUDICIAL MEMBER $' $' $' $' # # # # / ACCOUNTANT MEMBER / MUMBAI, 9&' /DATE: 02.02.2015 SK $2 $2 $2 $2 / // / *-> *-> *-> *-> ?$>'- ?$>'- ?$>'- ?$>'- / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / '() 2. RESPONDENT / *+() 3. THE CONCERNED CIT(A)/ @ A , 4. THE CONCERNED CIT / @ A 5. DR E BENCH, ITAT, MUMBAI / >B' *-& BZ BZBZ BZ , . . '' . 6. GUARD FILE/ ' ' +'>- *- //TRUE COPY// $2'&' / BY ORDER, C / ' ' DY./ASST. REGISTRAR , /ITAT, MUMBAI