G.Sasikala, W/o. P.Gunasekaran, Salem V. ITO, Salem

ITA 339/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90322 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 20-04-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 09-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR NISCHAL
• Assessee Lawyers: T S LAKSHMI VENATARAMAN
• Keywords: Reopening of assessment; Unexplained cash credit; Gift; Reason to believe
• Section: 143(3); 68; 69; 148

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC BENCH, CHENNAI . , BEFORE SHRI D.MANMOHAN, VICE PRE SIDENT ./ I.T.A.NO. 339/MDS/2015 ( / ASSESSMENT YEAR: 1997-98) MRS. G.SASIKALA, W/O. P.GUNASEKARAN, 50-I, SOUTH PILLAYARKOIL STREET, GUGAI, SALEM-636 006. VS INCOME TAX OFFICER, WARD-I(3), SALEM PAN: AAJCPS1246D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.T.S.LAKSHMI VENATARAMAN, CA /RESPONDENT BY : DR. NISCHAL, JCIT /DATE OF HEARING : 20 TH APRIL, 2015 /DATE OF PRONOUNCEMENT : 24 TH APRIL, 2015 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A), SALEM DATED 30.12.2014 AND IT PER TAINS TO THE ASSESSMENT YEAR 2006-07. 2. ADDITION OF ` 2,22,500/-, TO THE TOTAL INCOME RETURNED BY THE ASSESSEE AND CONFIRMED BY THE COMMISSIONER OF INCOM E TAX (APPEALS), IS THE SUBJECT MATTER OF DISPUTE BEFORE THE TRIBUNAL. THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS F OR THE YEAR UNDER CONSIDERATION. THOUGH THE RETURN OF INCOME OUGHT TO HAVE BEEN FILED WITHIN THE TIME LIMIT SPECIFIED UNDER SECTION 139(1 ) OF THE ACT, NO SUCH RETURN WAS FILED. ON 06.05.1998 ASSESSEE PURCHASED VACANT PLOT FOR A SUM OF ` 1,35,000/- AND TILED HOUSE FOR A SUM OF ` 2,26,000/- ON 27.01.2000 AND IMMEDIATELY THEREAFTER SHE FILED RET URN OF INCOME FOR THE 2 ITA NO. 339 /MDS/2015 ASSESSMENT YEAR 1997-98 DECLARING TOTAL INCOME OF ` 45,000/-. SINCE THE RETURN FILED WAS BEYOND THE TIME LIMIT PRESCRIB ED IN LAW, IT HAS TO BE TREATED AS NON-EST AND THEREFORE, ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT, IN RESPONSE TO WHICH THE AS SESSEE AGAIN DECLARED THE SAME INCOME. IN THE REASONS RECORDED, THE INCOME-TAX OFFICER OBSERVED AS UNDER:- IT IS SEEN THAT IN THE FIRST RETURN I.E. RETURN O F INCOME FILED FOR THE ASSESSMENT YEAR 1997-98, THE ASSESSEE HAD CLAIMED AVAILABILITY OF OPENING CAPITAL TO THE TUNE OF ` 2,45,000/- BUILT UP RIGHT FROM 01.04.1990. THIS H AS NOT BEEN PROPERLY EXPLAINED. IN THE ABSENCE OF SUFFICIE NT PROOF FOR ACCUMULATION OPENING CAPITAL OF ` 2,45,000/- I HAVE REASON TO BELIEVE THAT CORRECT INCOME CHARGEAB LE TO TAX HAD ESCAPED ASSESSMENT. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAVING NOT FURNISHED ANY EXPLANATION WITH REGARD TO AVAILABILITY OF OPENING CAPITAL, THE SAME WAS TREATED AS UNEXPLAINE D INCOME AND THE ASSESSING OFFICER ADDED A SUM OF ` 2,07,500/-. THE MATTER TRAVELLED UPTO THE TRIBUNAL AND THE HONBLE TRIBUNAL HAD SET ASIDE THE ORDERS OF ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (A PPEALS) AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OF FICER TO DECIDE THE ISSUES AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THEREAFTER, THE MATTER WAS TAKEN UP BY THE ASSESSIN G OFFICER TO PASS A FRESH ORDER UNDER SECTION 143(3) / 254 OF THE ACT. DURING THE COURSE OF HEARING THE ASSESSEE FILED WRITTEN SUBMISSIONS ALO NG WITH CONFIRMATION LETTERS FROM MRS. J.DEVARANI, SMT. P.MENAKA, SMT. S .SHANMUGAVALLI, SMT. K.RADHA AND SHRI V.SANGAMESWARAN. THE ASSESSIN G OFFICER NOTICED THAT EVEN AS PER THE ASSESSEES OWN LIST, T HERE WERE 15 LOAN 3 ITA NO. 339 /MDS/2015 DEBTORS DURING THIS ASSESSMENT YEAR WHEREAS CONFIRM ATIONS WERE FILED ONLY FROM 5 DEBTORS. THE ASSESSING OFFICER ALSO NOT ICED PECULIAR FEATURES IN THE CONFIRMATION LETTERS AS WELL AS IN THE EXPLANATION FILED BY THE ASSESSEE TO HIGHLIGHT THAT NO CREDENCE CAN BE G IVEN TO THE CONFIRMATION LETTERS FILED BY THE ASSESSEE. IN THIS REGARD, HE OBSERVED THAT- I) NONE OF THE PARTIES WERE ABLE TO STATE THE EXACT SUM TAKEN AS LOAN; WHEN THE PARTIES CLAIMED TO HAVE PAID INTE REST AT AN ABNORMAL RATE OF 33% NOT RECOLLECTING THE PRINCIPAL AMOUNT SEEMS TO BE FAR FROM TRUTH. II) ALL THE DEBTORS HAVE STATED THAT THEY HAVE BORROWED MONEY FROM MR. PAPPANNA CHETTIAR ON BEHALF OF THE ASSESSE E. A BORROWER WOULD NORMALLY BORROW FROM AN INDIVIDUAL A ND MAY NOT ENQUIRE TO KNOW ON WHOSE BEHALF MONEY WAS LENT TO T HEM. THIS COMMON FORMATTED CONFIRMATION LETTERS THEREFORE SE EMS TO BE CONFIRMING A TRANSACTION WHICH IS NOT SUPPORTED BY ANY OTHER DETAIL. IN FACT, MODE OF AVAILING THE LOAN, THE EXA CT DATES FOR TAKING THE LOAN AND WHEN REPAID ARE NOT FORTHCOMING FROM THE CONFIRMATION OF PARTIES. III) NONE OF THE DEBTORS HAD MENTIONED ABOUT RATE O F INTEREST AND THE AMOUNT OF INTEREST, IF ANY, THEY HAD PAID. IV) THE NATURE OF SECURITY OFFERED FOR SUCH LOANS A RE NOT FURNISHED. AS THE PURPORTED CONFIRMATIONS ARE VAGUE AND DO NOT CONTAIN DETAILS, NO CREDENCE CAN BE GIVEN TO THOSE LETTERS 4 ITA NO. 339 /MDS/2015 IT MAY BE APPROPRIATE AT THIS STAGE TO EXTRACT ONE OF THE STANDARD CONFIRMATION LETTERS. THE CONFIRMATION OF SMT. J.DE VARANI, ONE OF THE ALLEGED DEBTORS IS EXTRACTED FOR READY REFERENCE:- TO THE INCOME TAX OFFICER, WARD-I(3), SALEM-636 007. SUB : OUR LOAN TRANSACTION WITH SMT. G.SASIKALA TH ROUGH MR. P. PAPPANNA CHETTIAR CONFIRMATION SUBMISS ION OF - REGARDING. THIS IS TO CONFIRM THAT WE BORROWED FUNDS FROM SMT. G.SASIKALA FOR OUR PERSONAL COMMITMENTS. THE LOAN T RANSACTIONS TOOK PLACE BEFORE 8 YEARS. OUR EXACT LOAN DETAILS ARE NOT AVAILABLE WITH ME. THE ENTIRE LOAN AMOUNT HAS BEEN SETTLED BEFORE FOUR YEARS. THE LOAN AMOUNT WAS ADVANCED BY MR. P.PAPPANNA CHETTIAR, THE FATHER-IN-LAW OF SMT. G.SA SIKALA ON BEHALF OF HER. ABOVE FACTS ARE TRUE AND CORRECT. THANKING YOU, YOURS FAITHFULLY, SD/- ( J.DEVARANI) 4. UNDER THESE CIRCUMSTANCES, THE ASSESSING OFFICER CONCLUDED THAT REASONS FOR FILING RETURNS FOR THE ASSESSMENT YEARS 1997-98 TO 1999- 2000 AT A STRETCH ON 24.03.2000 BY THE ASSESSEE WA S ONLY FOR THE PURPOSE OF BUILDING UP SOURCE FOR THE UNACCOUNTED I NVESTMENT IN THE IMMOVABLE PROPERTIES PURCHASED IN THE YEARS 1998 A ND 2000. HE ALSO NOTICED THAT AS PER THE CASH FLOW STATEMENTS, CASH IS DEBITED AS INTEREST RECEIPTS AND CORRESPONDING CREDIT IS GIVEN FOR INCR EASE IN DEBTORS (NEW LOANS GIVEN) AND TO A SMALL EXTENT DRAWINGS FOR FAM ILY EXPENSES. THUS, WITH THE PURPORTED ACCUMULATION OF INTEREST RECEIPT S FROM 01.04.1990, LESS DRAWINGS FOR VARIOUS YEARS, THE ASSESSEE CLAIM ED TO HAVE BEEN LEFT 5 ITA NO. 339 /MDS/2015 WITH PURPORTED CAPITAL OF ` 2,60,000/- AT THE CLOSE OF THE PREVIOUS YEAR 1996-97 AND DEDUCTING INTEREST RECEIPTS OF ` 45,000/- AND ADDING DRAWINGS OF ` 7,500/-, THE ASSESSEES OPENING CAPITAL AS ON 01. 04.1996 WORKS OUT TO ` 2,22,500/-. 5. THE ASSESSING OFFICER ALSO OBSERVED MANY OTHER C ONTRADICTIONS IN THE EXPLANATION OF THE ASSESSEE. FOR EXAMPLE IN THE NOTES FILED ALONG WITH THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 1999-2000, IT WAS STATED THAT THE ASSESSEE GOT MARRIED ON 03.09.1 989 AND HAD STARTED DOING MONEY LENDING BUSINESS FROM 01.04.199 0 ONWARDS WITH CAPITAL OF ` 50,000/-, WHEREAS IN THE SAME NOTE SHE ALSO STA TED THAT OPENING CAPITAL IS ` 64,500/- AND THE SOURCE OF OPENING CAPITAL WAS GIFTS RECEIVED FROM FRIENDS AND RELATIVES DURING BI RTHDAYS AND MARRIAGE. IN HER LETTER DATED 28.12.2001, SHE STATED THAT APA RT FROM A SUM OF ` 50,000/- RECEIVED FROM PARENTS , MARRIAGE PRESENTA TIONS WORKED OUT TO ` 32,000/- AND THE SAME SUM WAS UTILISED FOR HER MO NEY LENDING ACTIVITIES. FROM THAT ANGLE, OPENING BALANCE OF TH E ASSESSEE AS ON 01.04.1990 SHOULD HAVE BEEN ` 82,000/- . IT WOULD THUS BE SEEN THAT ASSESSEE HERSELF HAS GIVEN THREE CONTRADICTORY VERS IONS ABOUT HER CAPITAL IN MONEY LENDING BUSINESS NAMELY ` 50,000/-, ` 64,500/- AND ` 82,000/- , WHICH CLEARLY PROVES THAT ASSESSEE WAS N OT AWARE OF THE CAPITAL WITH WHICH SHE STARTED THE ALLEGED MONEY LE NDING BUSINESS. THE ASSESSING OFFICER ALSO NOTICED THAT IN CASH FLOW ST ATEMENT, ASSESSEE HAD SHOWN OPENING AND CLOSING ENTRIES AS CASH A ND CASH AND BANK BALANCE FOR VARIOUS YEARS FROM 1991 ONWARDS. BUT WHEN CALLED UPON TO 6 ITA NO. 339 /MDS/2015 FURNISH A COPY OF THE BANK STATEMENT, SHE ADMITTED THAT THERE WAS NO BANK ACCOUNT FOR THE ASSESSEE FROM 01.04.1990 TO 31 .03.1997 AND ADMITTED THAT THOUGH IT WAS SHOWN AS BANK BALANCE IT WAS IN FACT CASH ONLY. FROM THIS, THE ASSESSING OFFICER INFERRED THAT ASSESSEE IS EITHER TAKING A NEW STAND OR CORRECTING HER STAND NOW WITH RESPECT TO THE ENTRIES IN THE CASH FLOW STATEMENT WHICH IS NOT ADM ISSIBLE. HE ALSO OBSERVED THAT EVEN THE BANK STATEMENTS FOR LATER Y EARS WERE NOT PRODUCED FOR VERIFICATION. HE ALSO NOTICED THAT TH E METHODOLOGY FOLLOWED BY THE ASSESSEE OF CHARGING INTEREST FROM 1991-92 ONWARDS IN SUCH A MANNER THAT THE INTEREST HAS FALLEN FROM 33 1/3% TO 20% OBVIOUSLY TO ALWAYS KEEP THE INTEREST RECEIPTS BELO W THE LEVEL OF TAXABLE INCOME FOR EACH YEAR UPTO THE ASSESSMENT YEAR 1996- 97 AND HAD SHOWN A MARGINAL INCOME FOR SUBSEQUENT TWO YEARS. A DMITTEDLY, TRANSACTIONS ARE NOT VERIFIABLE AS NO BOOKS OF ACCO UNTS ARE MAINTAINED. THE DRAWINGS ARE TOO LOW AND NO REALIZATION OF DE BTORS ARE REPORTED THROUGHOUT THE PERIOD WHICH IS UNBELIEVABLE. ASSES SING OFFICER THUS CONCLUDED THAT DESCRIPTION AS WELL AS DATA IN CASH FLOW STATEMENTS ARE NOT GENUINE; IN OTHER WORDS, CASH FLOW STATEMENT IT SELF IS NOTHING BUT A CONCOCTED STATEMENT OF AFFAIRS MADE WITH THE SOLE A ND ONLY PURPOSE OF EXPLAINING THE SOURCE FOR PURCHASE OF PROPERTIES MA DE IN THE LATER YEARS. SINCE THE ASSESSEE COULD NOT PROVE AVAILABILITY OF OPENING BALANCE ASPECT, THE ASSESSING OFFICER CONCLUDED THAT IT CAN BE TREATED AS INCOME OF THE ASSESSEE AND THE BURDEN IS UPON THE A SSESSEE TO PROVE THAT NO SUCH INCOME WAS FROM UNDISCLOSED SOURCE. HE ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F KALE KHAN 7 ITA NO. 339 /MDS/2015 MOHAMMED HANIF VS. CIT (50 ITR 1) (SC), WHEREIN THE HONBLE SUPREME COURT OBSERVED THAT MERE FILING OF CONFIR MATORY LETTERS DO NOT DISCHARGE ONUS THAT LIES ON THE ASSESSEE. THE ASS ESSING OFFICER THEREFORE TREATED THE SUM OF ` 2,22,500/- AS UNEXPLAINED CREDIT. 6. AGGRIEVED, THE ASSESSEE CONTENDED BEFORE THE COM MISSIONER OF INCOME TAX (APPEALS) THAT DIFFICULTY ON THE PART O F THE ASSESSEE TO EXPLAIN A TRANSACTION WHICH IS A DECADE OLD HAS TO BE BORNE IN MIND BY THE DEPARTMENT IN THE LIGHT OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF S.HASTIMAL VS. CIT (49 ITR 273 ). ASSESSEE ALSO SUBMITTED THAT ASSESSING OFFICER HAS NOT MADE ANY E NQUIRIES IN RESPECT OF SUNDRY DEBTORS AND THE ASSESSEES FATHER FILED AN AFFIDAVIT WITH REGARD TO A SUM OF ` 50,000/- AND THIS WAS NOT CONTROVERTED BY THE ASSESSING OFFICER AND HENCE THE ADDITION MADE BY TH E ASSESSING OFFICER IS NOT IN ACCORDANCE WITH LAW. 7. ON THE BASIS OF THE SUBMISSIONS MADE BY THE ASSE SSEE, THE COMMISSIONER OF INCOME TAX (APPEALS) SUMMARIZED THE FOLLOWING PROPOSITIONS:- A) THE OPENING CAPITAL AS ON 1.4.96 IS ` 2,08,450/- AND NOT ` 2,22,500/- AS TAKEN BY THE ASSESSING OFFICER. B) THE INVESTMENT BY THE APPELLANT IN YEAR ENDED 31 .3.97 IS ONLY ` 40,000/- I.E. INCREASE IN SUNDRY DEBTORS. C) SECTION 68 CANNOT BE APPLIED SINCE THERE IS NO B OOKS OF ACCOUNTS FOR THE APPELLANT. D) IF SECTION 69 HAS BEEN APPLIED THE INVESTMENT IS ONLY ` 40,000/- IN YEAR ENDED 31.03.97 AND NOT ` 2,22,500/-. 8 ITA NO. 339 /MDS/2015 E) THE ASSESSING OFFICER DISBELIEVES THE CASH FLOW STATEMENT OF THE APPELLANT BUT FOR FRAMING THE ASSESSMENT THE F IGURES HAVE BEEN CALLED OUT FROM THE SAME STATEMENTS. F) THE ASSESSEE ALSO CONTENDED BEFORE THE COMMISSIO NER OF INCOME TAX (APPEALS) THAT PROCEEDINGS WERE NOT VALI DLY INITIATED UNDER SECTION 148 OF THE ACT. 8. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT RETURN FOR THE ASSESSMENT YEAR 1997-98 WAS FI LED ALONG WITH THE RETURNS FOR THE SUBSEQUENT ASSESSMENT YEARS. THE FA CT REMAINS THAT THERE WAS A CREDIT IN THE CAPITAL ACCOUNT I.E MONEY ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND HENCE, THE AS SESSING OFFICER IS DUTY BOUND TO PROBE THE CREDIT AS MENTIONED IN THE RETURN OF INCOME. THE ASSESSING OFFICER HAVING COME TO THE CONCLUSION THAT ASSESSEE FAILED TO PROVE ACCUMULATION OF CAPITAL HE MADE ADD ITION UNDER SECTION 68 OF THE ACT AFTER ANALYZING THE SUBMISSIONS OF TH E ASSESSEE BY TABULATING THE FIGURES AND BY DRAWING CONCLUSIONS. HE ALSO OBSERVED THAT EXERCISE WAS DONE BY THE ASSESSEE METICULOUSLY TO KEEP THE RECEIPTS BELOW TAXABLE LIMITS AND THE CLAIM OF TH E ASSESSEE THAT OPENING CAPITAL WAS AVAILABLE WAS HIGHLY IMPROBABL E AND THEREFORE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE ADDIT ION, WITH REGARD TO AVAILABILITY OF CASH IN THE YEAR UNDER CONSIDERATIO N, UNDER SECTION 68 OF THE ACT. THUS IT SHOWS THAT COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN RE OPENING OF ASSESSMENT ON THE GROUND THAT IT WOULD BE DUTY OF T HE ASSESSING OFFICER 9 ITA NO. 339 /MDS/2015 TO PROBE THE MATTER WHICH COULD HAVE BEEN DONE ONLY BY REOPENING OF ASSESSMENT. 9. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THE TRIB UNAL. COUNSEL FOR THE ASSESSEE STRONGLY SUBMITTED THAT REOPENING OF ASSESSMENT IS NOT BASED ON ANY VALID MATERIAL; IT WAS PURELY BASED ON SURMISES BECAUSE THE ASSESSING OFFICER HAS NO EVIDENCE WHATSOEVER TO SHOW THAT ASSESSEE HAS EARNED INCOME IN THIS YEAR. HE FURTHER SUBMITTED THAT ASSESSING OFFICER HAD BASED HIS CALCULATIONS ONLY ON THE STRENGTH OF CASH FLOW STATEMENT GIVEN BY THE ASSESSEE IN WHICH EVENT THE AVAILABILITY OF OPENING CASH FROM 1990 OUGHT TO HAV E BEEN ACCEPTED. HE ALSO SUBMITTED THAT NEITHER THE ASSESSING OFFICER N OR THE COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN CREDENCE TO THE A FFIDAVIT FILED BY THE ASSESSEES FATHER, WHEREIN IT WAS STATED THAT A SUM OF ` 50,000/- WAS GIVEN TO THE ASSESSEE AT THE TIME OF HER MARRIAGE. HE ALSO RELIED UPON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE C ASE OF S.HASTIMAL VS. CIT (SUPRA) TO SUBMIT THAT ASSESSEE CANNOT BE ASKED TO PROVE THE SOURCE OF SOURCE AFTER A LONG LAPSE OF TIME AND EV EN OTHERWISE IT IS THE DUTY OF THE ASSESSING OFFICER TO PROVE THAT ASSESSE E MIGHT HAVE EARNED THAT MUCH INCOME IN THE YEAR UNDER CONSIDERATION AS OTHERWISE, NO ADDITION IS PERMISSIBLE IN THE LIGHT OF THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF SMT. P.K.NOORJAHAN 237 ITR 570(SC). 10. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESE NTATIVE STRONGLY RELIED ON THE OBSERVATIONS MADE BY THE ASS ESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMITTED THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO PROVE TH AT SHE HAS A FIXED 10 ITA NO. 339 /MDS/2015 CAPITAL AND IN FACT THE PREPONDERANCE OF PROBABILIT IES ARE IN FAVOUR OF THE REVENUE TO CONCLUDE THAT IT WAS CAPITAL BUILT UP CASE. UNDER THESE CIRCUMSTANCES, THE ASSESSING OFFICER WAS JUSTIFIED IN BRINGING TO TAX THE OPENING CASH BALANCE PROJECTED BY THE ASSESSEE. 11. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED RECORD . I HAVE ALSO GONE THROUGH THE CONFIRMATION LETTERS FILED BY THE ASSESSEE FROM SOME OF THE CREDITORS AND I HAVE ALS O CAREFULLY GONE THROUGH THE DECISION OF MADRAS HIGH COURT IN THE CA SE OF S.HASTIMAL (SUPRA). THE MAIN ARGUMENT OF THE ASSESSEE IS THAT ASSESSING OFFICER SHOULD NOT HAVE REOPENED THE ASSESSMENT MERELY ON T HE BASIS OF SURMISES. HOWEVER, THE FACT REMAINS THAT THE ASSESS EE WAS HAVING THE OPENING CAPITAL IN THE YEAR AND IT HAS COME TO THE NOTICE OF THE ASSESSING OFFICER THAT IT WAS CAPITAL BUILT UP CASE AND IN FACT ASSESSEE MIGHT HAVE EARNED INCOME FROM SOME OTHER SOURCE BUT PROJECTED AS INCOME FROM MONEY LENDING BUSINESS AS WELL AS INCOM E FROM GIFTS AT THE TIME OF MARRIAGE ETC. IN MY CONSIDERED OPINION, THI S INFORMATION IS SUFFICIENT TO COME TO A PRIMA-FACIE VIEW THAT THE A SSESSEE HAS SHOWN AVAILABILITY OF CASH IN THE BOOKS I.E. IN THE RETUR N OF INCOME, WHICH IS NOT SUPPORTED BY ANY EVIDENCE AND HENCE REOPENING OF AS SESSMENT IS VALID IN LAW. 12. THE NEXT ISSUE THAT COMES UP FOR CONSIDERATION IS SOURCE OF AVAILABILITY OF CAPITAL. THE ASSESSEE GAVE DIFFEREN T VERSIONS AT DIFFERENT STAGES. BEFORE THE ASSESSING OFFICER, IT WAS INITIA LLY STATED THAT SHE HAS RECEIVED A SUM OF ` 50,000/- FROM HER FATHER, THEREAFTER IT WAS STATED THAT SHE STARTED BUSINESS OF MONEY LENDING WITH ` 64,500/- AND IN THE 11 ITA NO. 339 /MDS/2015 SAME EXPLANATION IT WAS ALSO MENTIONED THAT SHE HAS GOT ` 32,000/- RECEIVED IN THE FORM OF PRESENTATION AT THE TIME OF MARRIAGE. THE ACTUAL STATEMENT ALSO SHOWS THAT SHE WAS HAVING BANK BALAN CE WHEREAS WHEN SPECIFICALLY CALLED UPON TO FURNISH IT WAS MEN TIONED THAT NO SUCH BANK ACCOUNT WAS MAINTAINED. UNDER THESE CIRCUMSTA NCES, THE LATIN MAXIM STATES FALSUS IN UNO FALSUS IN OMNIBUS COMES INTO PLAY I.E. WHEN A VERSION OF THE ASSESSEE IS PARTLY INCORRECT OR IS CONTRADICTORY THE OTHER EVIDENCE, IF ANY, FURNISHE D BY THE ASSESSEE CANNOT BE TAKEN INTO CONSIDERATION AS AN AUTHENTIC EVIDENCE FOR PROVING THE CLAIM MADE BY THE ASSESSEE. IN FACT, THE ASSES SING OFFICER HAD THOROUGHLY ANALYSED THE CASE OF THE ASSESSEE TO HIG HLIGHT THAT THE SO CALLED CONFIRMATION LETTERS, THAT TOO TAKEN ONLY FR OM FEW ALLEGED PARTIES, ARE MERE SELF-SERVING CONFIRMATION LETTERS AND DO N OT CARRY MUCH EVIDENTIARY VALUE BECAUSE A PERSON WHO HAD TAKEN L OAN @ 33.33% INTEREST CANNOT BE SAID TO REMEMBER THE AMOUNT OF L OAN TAKEN AND DATE WHEN IT WAS REPAID; THE STATEMENT DOES NOT SHOW THE DATE OF REPAYMENT ALSO AND THE BANK STATEMENTS, THOUGH STATED TO HAVE BEEN MAINTAINED WERE NOT ACTUALLY MAINTAINED, DURING THE RELEVANT P ERIOD. THE ASSESSMENTS WERE TAKEN UP FOR SCRUTINY IMMEDIATELY AFTER THE ASSESSEE FILED RETURNS OF INCOME AND IN FACT THE ORIGINAL AS SESSMENT WAS COMPLETED ON 22.02.2002 I.E. BARELY WITHIN TWO YEA RS FROM THE DATE OF FILING OF RETURN OF INCOME AND EVEN AT THIS STAGE, THE ASSESSEE COULD NOT FURNISH DETAILS AND ONLY AT THE INSTANCE OF THE ASS ESSEE THE MATTER WAS SET ASIDE BY THE TRIBUNAL SO AS TO ENABLE THE ASSES SEE TO FILE EVIDENCE TO PROVE THE SOURCE OF CAPITAL. IT CANNOT THUS BE S AID THAT THE ASSESSEE 12 ITA NO. 339 /MDS/2015 WAS PUT TO INCONVENIENT POSITION TO PROVE ITS CASE AFTER A LONG LAPSE OF TIME . THUS THE DECISION OF THE HONBLE MADRAS HIG H COURT IN THE CASE OF S.HASTIMAL (SUPRA) HAS NO APPLICATION IN THE CI RCUMSTANCES OF THE CASE. IN FACT, THE ASSESSING OFFICER HAS RIGHTLY CO NSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF KALE KH AN MOHAMMED HANIF VS. CIT (50 ITR 1) TO HIGHLIGHT THAT THE INI TIAL BURDEN IS UPON THE ASSESSEE TO PROVE THAT AMOUNTS SHOWN TO HAVE BEEN A VAILABLE WAS IN FACT SUPPORTED BY PROPER EVIDENCE, AS OTHERWISE, DE EMING PROVISION COMES INTO PLAY AND THE AMOUNTS SHOWN TO HAVE BEEN AVAILABLE WOULD BE TREATED AS INCOME FROM UNEXPLAINED SOURCES. IN THE INSTANT CASE, THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE EXCEPT THE FACT THAT ASSESSEES FATHER HAS GIVEN AN AFFIDAVIT STATING TH AT HE HAS GIVEN A SUM OF ` 50,000/- AT THE TIME OF HER MARRIAGE. HAVING REGAR D TO THE FACTS OF THE CASE, I AM OF THE VIEW THAT ASSESSING OFFICER H AVING NOT EXAMINED ASSESSEES FATHER, THE SUM OF ` 50,000/- CAN BE SAID TO HAVE BEEN AVAILABLE WITH THE ASSESSEE; EVEN IF IT IS ASSUMED THAT SOME MORE GIFTS WERE AVAILABLE, THE AMOUNT AS ON 01.04.1996 WOULD N OT HAVE BEEN MORE THAN ` 1,00,000/-. I THEREFORE ESTIMATE THE AVAILABILITY OF OPENING CASH BALANCE AT ` 1,00,000/- AND THE BALANCE IS DIRECTED TO BE TREAT ED AS UNEXPLAINED INCOME OF THE ASSESSEE. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF APRIL, 2015. SD/- ( . ) ( D.MANMOHAN ) / VICE PRESIDENT 13 ITA NO. 339 /MDS/2015 $ /CHENNAI, % /DATED 24 TH APRIL, 2015 SOMU () *) / COPY TO: 1. APPELLANT 2. RESPONDENT 3. + () /CIT(A) 4. + /CIT 5. ) / /DR 6. /GF .