Pravinbhai Girdharbhai Patel, Mehsana V. The Income Tax Officer, Ward-3, Patan

ITA 3471/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0982 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AIOTYA SHUKLA SR DR
• Keywords: Source of fund
• Section: 68; 148

Judgement Text

- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO.3471/AHD/2016 / ASSTT. YEAR: 2008-09 SHRI PRAVINBHAI GIRDHARBHAI PATEL 79/248/253, HANUMAN VAS VILALGE-VIRTA DIST. MEHSANA 3894 001. PAN : AKMPP 1380 N VS. ITO, WARD-3 PATAN. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI PRITESH SHAH, AR REVENUE BY : SHRI AIOTYA SHUKLA, SR.DR ! '#$ % &' / DATE OF HEARING : 07/03/2019 ()* % &' / DATE OF PRONOUNCEMENT: 25 /03/2019 +, / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A), GANDHINAGAR DATED 29.11.2016 PASSED FOR THE ASSTT.YEAR 2008-09. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.11,67,269/- WHIC H WAS ADDED BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. ITA NO.3471/AHD/2016 2 3. BRIEF FACTS OF THE CASE ARE THAT THE LD.AO GOT IN FORMATION THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.20,63,898/- IN CASH IN HIS SAVING BANK ACCOUNT DURING THE ACCOUNTING YEAR RELE VANT TO THE ASSTT.YEAR 2008-09. THE ASSESSEE HAS NOT BEEN FILI NG RETURN OF INCOME. THEREFORE, HE TOOK COGNIZANCE OF SECTION 1 48 OF THE INCOME TAX ACT AND ISSUED NOTICE TO THE ASSESSEE. IN RESPONSE TO THE NOTICE OF THE AO, THE ASSESSEE DID NOT APPEAR B EFORE THE AO. IN AN EX PARTE ORDER THE LD.AO OBSERVED THAT CASH WAS DEPOSITED ON 15 OCCASIONS AND SINCE THE ASSESSEE FAILED TO EX PLAIN THE SOURCE OF SUCH DEPOSITS, HE MADE ADDITION OF RS.11, 67,269/-. ON APPEAL, THE LD.CIT(A) HAS CONFIRMED THE ADDITION BY RECORDING THE FOLLOWING FINDING: 4.3 I HAVE CONSIDERED THE FACTS OF THE CASE, ASSES SMENT - ORDER, SUBMISSION MADE BY THE APPELLANT AND ALSO TH E CASE LAWS RELIED UPON BY APPELLANT. APPELLANT HAS NOT FI LED ANY SOURCE EVIDENCE AT THE TIME OF ASSESSMENT PROCEEDIN GS FOR THE DEPOSITS MADE IN HIS BANK ACCOUNT HELD WITH MEH SANA URBAN CO-OP, BANK LTD ON VARIOUS DATES BETWEEN 9/4/20 07 TO 18/2/2008. NOW, DURING THE COURSE OF APPELLATE PROCEEDINGS AR OF THE APPELLANT SUBMITTED BEFORE MA PROVISIONAL CASH BOOK AND SUMMARY OF . OF FUNDS ALO NG WITH COPY OF BANK STATEMENT. DURING THE APPELLATE PROCE EDINGS, AR WAS SPECIFICALLY ASKED ABOUT THE SOURCE AND EVID ENCE OF SHOWN IN THE SUMMARY OF SOURCE, SUBMITTED. THE A R OF THE APPELLANT SUBMITTED THE SOURCE OF FUNDS DEPOSITED O F RS.7,00,949/- OUT OF BANK WITHDRAWAL OF RS.3,37,000 /- OUT OF CURRENT YEAR, INCOME OF RS.1,38,999/- AND PAST SAVI NG OF RS.2,24,950/-. SIMILARLY, SOURCE .OF DEPOSIT OF RS. 3,31,000/- CLAIMED TO HAVE BEEN DEPOSITED OBTAINED FROM APPELL ANT'S WIFE. AR OF THE APPELLANT WAS ASKED TO PRODUCE THE SOURCE OF, BANK ENTRIES SHOWN CLEARANCE OF RS.43,322/-, RS.42, 880/- RS.28,851/- AND RS.20,267/- WHICH WERE CONSIDERED B Y AO AS CASH DEPOSITS. BUT AR WAS NOT IN A POSITION TO PR ODUCE THE SOURCE OF THESE ENTRIES. FURTHER, AR WAS ALSO ASKED TO PRODUCE THE SOURCE OF PAST INCOME OUT OF WHICH SAVI NGS OF RS.2,24,950/- AND RS.1,77,000/- HAD BEEN CLAIMED BY APPELLANT IN HIS CASE AND HIS WIFE CASE. THE AR OF THE APPELLANT HAS NOT SUBMITTED THE PROOF OF PAST INCOM E IN BOTH ITA NO.3471/AHD/2016 3 THE CASES AND IT WAS ALSO ASCERTAINED THAT APPELLA NT AND HIS WIFE ARE NOT ASSESSED TO TAX IN EARLIER YEARS. HENC E, THERE IS NO CLAIM OF SUCH SAVINGS WITHOUT EARNING OF LEGITIM ATE INCOME. APPELLANT HAS ALSO CLAIMED RS.1,38,999/- AN D RS.1,54,000/- AS CURRENT INCOME IN THE CASE OF THE APPELLANT AND HIS WIFE OUT OF WHICH CASH WAS DEPOSITED. HOWEV ER, NO BOOKS OF ACCOUNTS AND THE MODE OF BUSINESS DISCLOSE D DURING THE APPELLATE PROCEEDINGS. HENCE, THE CONTENTIONS M ADE BY THE APPELLANT DO NOT HELP HIM. CONSIDERING THE ABOVE FACTS, THE CLAIM OF THE APPE LLANT CANNOT BE ACCEPTED WITHOUT EVIDENCES AND THE ADDITI ON MADE BY THE AO OF RS.11,67,270/- IS HELD JUSTIFIED AND I S HEREBY CONFIRMED. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. SECTION 68 OF THE INCOME TAX ACT CONTEMPLATES THAT WHERE ANY SUM IS FOUND CREDITED I N THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF, OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT, IN THE OPINION OF T HE AO SATISFACTORY, THEN THE SUM SO CREDITED IN THE ACCOUNTS MAY BE TRE ATED AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. 5. DURING THE COURSE OF HEARING, THE LD.COUSNEL FOR THE ASSESSEE WAS UNABLE TO POINT OUT SOURCE FROM WHERE THESE AMO UNTS WERE DEPOSITED IN THE BANK. HE HAS JUST TABULATED CERTA IN DETAILS FROM THE BANK STATEMENTS AND TOOK US THROUGH PAGES 38 AN D 39 OF THE PAPER BOOK. THE DETAILS COMPILED BY THE LD.COUNSEL FOR THE ASSESSEE ON PAGE NO.39 AND 40 ARE PERUSED. WE WOUL D LIKE TO MAKE REFERENCE TO THE RELEVANT DETAILS OF THIS PAGE , WHICH READ AS UNDER: PRAVINBHAI GIRDHARBHAI PATEL ASSESSMENT YEAR : 2008/09 - FINANCIAL YEAR : 01/04/ 2007 TO 31/03/2008. CASH DEPOSITED TO BANK WITH SOURCE THEREOF ITA NO.3471/AHD/2016 4 NAME OF BANK THE MEHSANA URBEN CO-OPERATIVE BANK LIMITED SAVING BANK A/C NO 00041001006652 DATE AMOUNT OF CASH DEPOSIT TO BANK SOURCE PARTICULARS DATE CHEQUE NO. AMOUNT RS. AMOUNT RS. 25/06/2007 200000 10000 CASH WITHDRAWAN FROM THIS BANK 14/03/2007. 184000 10000 25000 20/03/2007. 188431 25000 25000 21/03/2007. 188432 25000 10000 28/03/2007. 188433 10000 105000 29/03/2007. 180925 105000 10000 11/04/2007. 10000 10000 17/04/2007. 10000 5000 18/04/2007. 136803 5000 67000 17/08/2007. 99999 62000 CASH WITHDRAWAN FROM THIS BANK 62000 37999 CASH WITHDRAWAN FROM THIS BANK 18/05/2007. 183664 37999 50000 20/08/2007. 99000 12001 CASH WITHDRAWAN FROM THIS BANK 12001 56999 OUT OF CURRENT YEAR'S INCOME 56999 30000 DEPOSITED BY WIFE OUT OF HER INCOME 30000 21/08/2007. 49000 25000 CASH WITHDRAWAN FROM THIS BANK 21/08/2007. 107353 25000 24000 DEPOSITED BY WIFE OUT OF HER INCOME 24000 ITA NO.3471/AHD/2016 5 07/01/2008. 177000 99950 DEPOSITED BY WIFE OUT OF HER PAST SAVINGS - 99950 77050 DEPOSITED BY WIFE OUT OF HER PAST SAVINGS 77050 23/01/2008. 99950 DEPOSITED BY ASSESSEE OUT OF HIS PAST SAVINGS 99950 28/01/2008. 125000 DEPOSITED BY ASSESSEE OUT OF HIS PAST SAVINGS 125000 01/02/2008. 32000 OUT OF CURRENT YEAR'S INCOME - 32000 13/02/2008. 50000 OUT OF CURRENT YEAR'S INCOME - 50000 15/02/2008. 40000 DEPOSITED BY WIFE OUT OF HER CURRENT YEAR'S INCOME. - - 40000 18/02/2008. 60000 DEPOSITED BY ASSESSEE OUT OF HIS PAST SAVINGS 60000 CASH INFLOW OUT OF WHICH CASH DEPOSITED TO BANK > > 1031949 1031949 < < < CASH DEPOSITED TO BANK 8. A PERUSAL OF THE ABOVE WOULD INDICATE THAT ON CE RTAIN OCCASIONS, THE ASSESSEE HAS WITHDRAWN SUBSTANTIAL C ASH VIZ. ON 29.3.2007 HE HAS WITHDRAWN RS.1,05,000/-; SIMILARLY ON 20.3.2007 HE HAS WITHDRAWN RS.25,000/-, AND AGAIN O N 21.3.2007 HE WITHDREW AN AMOUNT OF RS.25,000/-. THUS, OUT OF THIS WITHDRAWAL, SOME AMOUNT MUST BE AVAILABLE WITH THE ASSESSEE, WHICH CAN BE USED FOR RE-DEPOSITS. HE HAS ALSO WIT HDRAWN RS.62,000/- ON 18.4.2007. THE QUESTION IS, WHETHER IT IS PROBABLE ITA NO.3471/AHD/2016 6 THAT OUT OF THESE WITHDRAWALS SOME AMOUNTS REMAINED WITH THE ASSESSEE, WHICH CAN BE RE-DEPOSITED AFTER TWO-THREE MONTHS. TO OUR MIND, IT IS PROBABLE WHEN THE ASSESSEE DOES NOT BELONG TO AN ORGANIZED SECTOR OF BUSINESS. HIS TOTAL DEPOSITS I N A YEAR NOT EXCEEDED MORE THAN RS.20,0000/-. THEREFORE, CONSID ERING TOTAL WITHDRAWALS AT DIFFERENT INTERVALS TABULATED IN DET AILS, WE ARE OF THE VIEW THAT AT LEAST SOME CREDIT BE GIVEN TO THE ASSESSEE OUT OF THE MAJOR WITHDRAWALS. HE COULD ABLE TO SAVE SOMET HING FROM THEM FOR RE-DEPOSITING. CONSIDERING ALL THE ASPECT S, WE DELETE RS.5,00,000/- (RUPEES FIVE LAKHS ONLY) ON AN ESTIMA TE BASIS OUT OF TOTAL ADDITION MADE BY THE AO AND CONFIRMED BY T HE LD.CIT(A). 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 25 TH MARCH, 2019. SD/- SD/- (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER