Sri. Mahabaleshwar G. Hebbar, Yellapur V. ITO, Hubli

ITA 351/BANG/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5595 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 08-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence
• Section: 133A; 147; 68; 69; 148; 144

Judgement Text

PAGE 1 OF 12 ITA NOS.347 TO 351/BANG/2010 1 IN THE INOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SMT. P MADHAVI DEVI, J.M. AND SHRI A MOHAN ALANKAMONY, A.M. ITA NOS.347 TO 351/BANG/2010 (ASST. YEARS 2001-02 TO 2005-06) SHRI MAHABALESHWAR G HEBBAR, PROP: M/S KAMADHENU MEDICALS, P.O. YELLAPUR, DISTRICT : UTTARAKANNADA. -APPELLANT VS THE INCOME TAX OFFICER, WARD-3(1), HUBLI-25. - RESPONDENT APPELLANT BY : SHRI BALRAM R RAO, ADVOCATE RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI, ADDL. C IT O R D E R PER BENCH : THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(A), HUBLI DATED 18/12/2009 FOR THE ASST. YEARS 2001-02 TO 2005-06. 2. IN ALL THESE APPEALS, THE ASSESSEE IS AGGRIEVED BY THE ADDITIONS MADE BY THE AO AND CONFIRMED BY THE CIT(A). 3. FOR THE PURPOSE OF CONVENIENCE, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE FOR THE ASST. YEAR 2001-02 ARE REPRODUCED AS UNDER:- PAGE 2 OF 12 ITA NOS.347 TO 351/BANG/2010 2 I) THE LEARNED CIT(A) ERRED IN PASSING THE ORDER I N THE MANNER HE DID. II) ON THE FACTS OF THE CASE, THE CONDITION PRECEDENT FOR REOPENING BEING ABSENCE, THE IMPUGNED ORDER CONFIRMED TO BE PASSED U/S 144 R.W.S. 147 WAS BAD IN LAW AND IS LIABLE TO BE ANNULLED IN FULL. III) ON THE FACTS OF THE CASE, THE LEARNED CIT(A) OUGHT NOT TO HAVE ADDED A SUM OF RS.36,000/- HOLDING IT TO BE RENT RECEIVED BY THE APPELLANT AT THE RATE OF RS.3000/- PER MONTH FROM POLY CLINIC. ACCORDINGLY, HE OUGHT TO HAVE DELETED THE ADDITION. IV) THE LEARNED CIT(A) OUGHT NOT TO HAVE CONFIRMED A SUM OF RS.1,01,987/- TO BE UNEXPLAINED CASH CREDIT/INVESTMENT IN THE HANDS OF THE APPELLANT WHEN THE SAID CREDIT WERE FULLY EXPLAINABLE. ACCORDINGLY, HE OUGHT TO HAVE REFRAINED FROM MAKING THE SAID ADDITION. V) ON THE FACTS OF THE CASE, THE LEARNED CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITION OF RS.5,02,983/- TO BE UNEXPLAINED INVESTMENT IN M/S V V SHANBHAG, BPC DEALER AND ACCORDINGLY, HE OUGHT TO HAVE REFRAINED FROM CONFIRMING THE SAME. VI) THE LEARNED CIT(A) OUGHT NOT TO HAVE MADE AN ADDITION OF RS.12,750/- UNDER THE HEAD INCOME FROM OTHER SOURCES. VII) WITHOUT PREJUDICE THE ABOVE MENTIONED GROUNDS, THE ADDITIONS MADE ARE HIGHLY ARBITRARY, EXCESSIVE, AND UNREASONABLE AND OUGHT TO BE REDUCED SUBSTANTIALLY. 4. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GROUNDS NO.1 AND 7 ARE GENERAL IN NATURE AND GROUND NO.2 IS NOT PRESSED. ACCORDINGL Y, GROUNDS NO.1 PAGE 3 OF 12 ITA NOS.347 TO 351/BANG/2010 3 AND 7 NEEDS NO ADJUDICATION AND GROUND NO. 2 IS REJ ECTED AS NOT PRESSED. 5. AS REGARDS THE OTHER GROUNDS, THE BRIEF FACTS O F THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHO IS ENGAGED IN THE RETAIL BUSINESS OF PHARMACEUTICAL PRODUCTS IN THE N AME OF M/S KAMADHENU MEDICALS AT YELLAPUR. HE IS ALSO THE MAN AGING DIRECTOR OF M/S BANANA COUNTY RESORTS (P) LTD. AT BILLIGADDE, YELLAPUR. THERE WAS A SURVEY ACTION U/S 133A ON THE BUSINESS P REMISES OF THE ASSESSEE ON 20.9.2005 I.E.M/S KAMADHENU MEDICALS AS WELL AS M/S BANANA COUNTY RESORTS (P) LTD. CERTAIN BOOKS OF ACC OUNTS AND OTHER DOCUMENTS WERE FOUND AND IMPOUNDED. IT WAS A LSO NOTICED THAT THE ASSESSEE HAS NOT BEEN FILING RETURN OF INC OME. AS THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NO TICE U/S 148 WAS SERVED ON THE ASSESSEE BUT THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME. THEREFORE, NOTICES U/S 143(2) AND 142(1 ) WERE ISSUED TO THE ASSESSEE, BUT AS THE ASSESSEE FAILED TO FILE AN Y RETURN OF INCOME, ASSESSMENT WAS COMPLETED U/S 144 OF THE I T ACT ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SURVEY. 5.1 THE AO FOUND THAT THE ASSESSEE IS RUNNING A ME DICAL SHOP IN THE TRADE NAME OF M/S KAMADHENU MEDICALS AT YELLAPUR AND THAT HE IS ALSO RUNNING A POLY CLINIC IN THE NAME OF KAMADHENU POLY CLINIC IN ORDER TO ATTRACT THE CUSTOMERS TO HIS MED ICAL SHOP. FROM ONE OF THE LOOSE SHEETS FOUND DURING THE COURSE OF SURVEY, THE AO FOUND THAT THE ASSESSEE IS ENTITLED TO RS.6000/- P. M. AS RENT AND PAGE 4 OF 12 ITA NOS.347 TO 351/BANG/2010 4 ELECTRICITY BILL FROM THE SAID CLINIC. BASED ON THI S, HE ESTIMATED EXPENDITURE AT RS.3000/- PER MONTH AND ARRIVED AT T HE NET INCOME OF RS.3000/- PER MONTH AND COMPUTED THE INCOME AT R S.36,000/- PER ANNUM AS INCOME FROM POLY CLINIC AND ACCORDINGLY MADE THE ADDITION. THEREAFTER, HE ALSO OBSERVED FROM THE CO PIES OF THE BANK ACCOUNTS THAT THERE WERE CASH CREDITS IN THE BANK A CCOUNTS, WHICH ARE AS UNDER:- 1. SYNDICATE BANK, YELLAPUR - RS.76,987/- ON 13/9/ 2000. 2. VIKAS URBAN COOPERATIVE BANK, YELLAPUR RS.25, 000 ON 23.1.2001. THE ASSESSEE WAS ASKED TO EXPLAIN THESE TRANSACTION S BUT SINCE NO EXPLANATION WAS FORTHCOMING, THE AO TREATED THESE A MOUNTS AS UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT AND MADE ADDITION OF RS.1,01,987/-. 5.2 SIMILARLY, HE OBSERVED FROM THE ASSESSEES LEDG ER ACCOUNT APPEARING IN THE BOOKS OF M/S V V SHANBHAG PETROL BUNK SHOWS THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.7 5,000/- AND INTEREST ON THE SAID DEPOSIT AT 17% HAD ACCRUED. H E THEREFORE BROUGHT THE INTEREST INCOME TO TAX AS INCOME FROM O THER SOURCES. HE ALSO OBSERVED FROM THE BOOKS OF ACCOUNT OF M/S V V SHANBHAG THAT THE ASSESSEE HAS MADE VARIOUS PAYMENTS ON VARIO US DATES TOTALING TO RS.5,02,983/-. THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF MAKING INVESTMENTS AND THEREFORE, HE TREA TED THE UNEXPLAINED INVESTMENTS U/S 69 OF THE ACT AND BROUG HT IT TO TAX AS INCOME IN THE HANDS OF THE ASSESSEE. PAGE 5 OF 12 ITA NOS.347 TO 351/BANG/2010 5 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT(A) WHO CONFIRMED THE ADDITIONS MADE BY THE A O AND THE ASSESSEE IS IN SECOND APPEAL BEFORE US. 7. THE LEARNED COUNSEL FOR THE ASSESSEE ACCOMPANIE D BY THE CHARTERED ACCOUNTANT REITERATED THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAD AGRICULTURAL INCOME ALSO, WHICH WAS SU FFICIENT TO EXPLAIN THE INVESTMENTS AS WELL AS CASH CREDITS MAD E INTO THE BANK. HE DREW OUR ATTENTION TO VARIOUS DOCUMENTS FILED BE FORE THE CIT(A), WHICH ARE FILED IN THE PAPER BOOK BEFORE US TO SHOW THAT THE ASSESSEES FATHER WAS HOLDING LARGE EXTENTS OF LANDS AND THEY WERE ALSO GIVEN LANDS BY THE GOVERNMENT TO CULTIVATE ARECANUT AND OTHER CROPS AND THE ASSESSEE, BEING THE MEMBER OF T HE HUF, WAS ALSO ENTITLED TO THE AGRICULTURAL INCOME AND ACCORD INGLY, THE ASSESSEE HAD RECEIVED AGRICULTURAL INCOME WHICH WAS MORE THAN SUFFICIENT TO COVER THE SOURCE OF CASH CREDITS MADE INTO THE BANK. 7.1 AS REGARDS THE UNEXPLAINED INVESTMENT IN V V SHANBHAG, THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT IT WAS THE FAMILY MEMBERS OF THE ASSESSEE WHO HAD ENTER ED INTO A PARTNERSHIP DEED WITH M/S USHA SHANBHAG, WHO IS THE PROPRIETRESS OF M/S V V SHANBHAG PETROL BUNK IN ORDER TO HELP HE R CARRY ON THE BUSINESS BUT ON LEARNING THAT THE LICENCE IS NOT TR ANSFERABLE IN THE NAME OF THE PARTNERSHIP FIRM, THE SAID FIRM WAS DIS SOLVED ON THE PAGE 6 OF 12 ITA NOS.347 TO 351/BANG/2010 6 SAME DATE. HE SUBMITTED THAT IN ORDER TO HELP SMT. USHA SHANBHAG, THE ASSESSEE WAS ADVANCING SMALL AMOUNTS OF MONEY AS AND WHEN NEEDED AND THE BOOKS OF ACCOUNT OF M/S USH A SHANBHAG WERE ALSO KEPT IN THE PREMISES OF ASSESSEE IN ORDER TO SAFEGUARD THE INTEREST OF M/S USHA SHANBHAG DURING THE NIGHTS AS THERE WAS NO SECURITY. 7.2 WITH REGARD TO THE ADDITION ON ACCOUNT OF INCO ME FROM POLY CLINIC, THE LEARNED COUNSEL FOR THE ASSESSEE RE ITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 8. THE LEARNED DR, ON THE OTHER HAND, STRONGLY RELI ED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMIT TED THAT THE ASSESSEE THOUGH HAS STATED THAT HE HAS AGRICULTURAL INCOME, HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THE ASSESSEE WAS THE MEMBER OF THE HUF AND ALSO THAT HE HAS RECEIVED THIS MONEY FROM THE HUF TO MAKE DEPOSITS INTO THE BANK ACCOUNT. SHE SUBMI TTED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE DEPOSITS IN TO THE BANK WITH THE CORRESPONDING WITHDRAWALS FROM THE COOPERATIVE SOCIETY IN WHICH THE ASSESSEE HAS ALLEGED THAT THE INCOME FROM THE SALE OF ARECANUT HAS BEEN DEPOSITED. 8.1 THE LEARNED DR SUBMITTED THAT THE ASSESSEES F AMILY MEMBERS HAD ENTERED INTO THE PARTNERSHIP FIRM WITH SMT. USHA SHANBHAG TO RUN THE PETROL BUNK AND IT IS ALSO LEAR NT THAT THE SAME CONTINUED TILL 16.3.2005 AS IS EVIDENT FROM THE DEE D OF COMMITMENT PAGE 7 OF 12 ITA NOS.347 TO 351/BANG/2010 7 AND RECEIPT OF MONEY FOUND DURING THE COURSE OF SU RVEY. SHE HAS PRODUCED THE COPIES OF THE SAID DEEDS BEFORE US. 9. HAVING HEARD BOTH THE PARTIES AND HAVING CONSID ERED THE MATERIALS ON RECORD, WE FIND THAT THE ASSESSEE IS RUNNING A POLY CLINIC ALONG WITH MEDICAL SHOP AND AS PER THE LOOSE SHEET FOUND DURING THE COURSE OF SURVEY, THE ASSESSEE IS ENTITLE D TO RENT OF RS.6000/- PER MONTH TO MEET THE EXPENSES OF ELECTRI CITY AND RENT. THE ASSESSEE COULD NOT PROVE WITH EVIDENCE THAT HE IS NOT ENTITLED TO THIS AMOUNT. THEREFORE, THIS ADDITION IS CONFIR MED. 9.1 AS REGARDS THE EXPLANATION OF THE ASSESSEE THA T THE AGRICULTURAL INCOME IS THE SOURCE OF DEPOSITS MADE INTO THE BANK ACCOUNTS AS WELL AS UNEXPLAINED INVESTMENTS, WE FIN D THAT THE ASSESSEE HAS IN FACT FILED BEFORE THE AO THE RECORD S AND ALSO THE BANK STATEMENTS TO DEMONSTRATE THAT THE ASSESSEE HA S GOT AGRICULTURAL INCOME. HOWEVER, WE FIND FROM THE ROR S THAT THE ASSESSEES FATHER IS THE OWNER OF THE LAND. EVEN I F THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE IS THE MEMBER OF THE HUF AND IS ENTITLED TO HIS SHARE OF HUF INCOME IS ACCEPTED, IT IS NOT PROVED AS TO WHAT HIS SHARE IS AND WHETHER THE SAME HAS BEEN RECEIVED BY HIM. THE ASSESSEE HAS SOUGHT TO FILE ADDITIONAL EV IDENCE, WHICH IS THE LETTER ISSUED BY THE VILLAGE OFFICER TO THE EFFE CT THAT THE ASSESSEE IS HAVING LAND AND HIS INCOME THEREFROM IS AROUND RS.10 LAKHS. HOWEVER, WE FIND THAT THE LETTER ISSUED IS DATED 25.6.2010 PAGE 8 OF 12 ITA NOS.347 TO 351/BANG/2010 8 AND THEREFORE, CANNOT BE ACCEPTED. WE THEREFORE RE JECT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 9.2 HOWEVER, WE HAVE TO ACCEPT THAT THE ASSESSEE I S HOLDING CERTAIN PART OF THE LAND AND IF THE CROPS G ROWN BY THE ASSESSEE ARE TO BE ACCEPTED AS BANANA, COCONUT AND ARECANUT, THEN THE INCOME WOULD DEFINITELY ARISE TO THE ASSESSEE AN D THAT SHOULD BE SUFFICIENT TO EXPLAIN THE SOURCE OF CASH CREDITS INTO THE BANK. HOWEVER, WE FEEL THAT THE RECORDS FILED BY THE ASSES SEE NEEDS VERIFICATION BY THE AO. IN VIEW OF THE SAME, WE DEE M IT FIT AND PROPER TO REMIT THIS ISSUE TO THE FILE OF THE AO TO VERIFY AS TO WHETHER THE LAND HOLDINGS BELONG TO THE ASSESSEE OR TO HIS FATHER AND IF THEY ARE HELD IN THE NAME OF HIS FATHER, THEN VERIFY THE ASSESSEES SHARE IN THE SAID LAND HOLDING AND THERE AFTER, ATTRIBUTE THE INCOME FROM AGRICULTURE TO THE SHARE OF THE ASS ESSEE AND IF IT IS SUFFICIENT TO EXPLAIN THE SOURCE OF CASH CREDITS INTO THE BANK, THEN THE ADDITION SHALL BE DELETED. 9.3 THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED FO R STATISTICAL PURPOSES WITH THE ABOVE DIRECTIONS. 10. AS REGARDS THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN M/S V V SHANBHAG, WE FIND THAT THE PARTNERSHIP WAS ENTERED INTO BY THE FAMILY MEMBERS OF THE ASSESSEE WITH MRS USHA SHANBHAG AND THE SAID FIRM W AS DISSOLVED ON 1/4/2000 ITSELF BUT THE SAME CANNOT BE RELIED UP ON FOR THE REASON THAT THE EXECUTION OF THE PARTNERSHIP DEED A ND THE PAGE 9 OF 12 ITA NOS.347 TO 351/BANG/2010 9 DISSOLUTION DEED ARE ON THE SAME DATE AND FURTHER, THE DEED OF COMMITMENT AND RECEIPT DATED 3.3.2005 IS ALSO SIGNE D BY THE FAMILY MEMBERS OF THE ASSESSEE TO THE EFFECT THAT TH E BUSINESS WAS CARRIED ON FROM 1/4/2000 TO 16/3/2005 AND THE A CCOUNTS ARE SETTLED BEFORE HANDING OVER THE POSSESSION TO SMT. USHA SHANBHAG. THEREFORE, IT IS TO BE HELD THAT THE FAMILY MEMBERS OF THE ASSESSEE HAD CARRIED ON THE BUSINESS OF THE PETROL BUNK AND IT IS EVIDENT FROM THE BOOKS OF ACCOUNT OF M/S V V SHANBH AG THAT THE ASSESSEE HAS ADVANCED CERTAIN MONEY TO THE FIRM AND THIS HAS TO BE TREATED AS INVESTMENT IN V V SHANBHAG AND THE ASSES SEE IS NOT ABLE TO EXPLAIN THE SAID INVESTMENT. HOWEVER, IF THE AO , ON VERIFICATION OF THE DETAILS FILED BY THE ASSESSEE WITH REGARD TO UNEXPLAINED CASH CREDITS INTO THE BANK ACCOUNTS, FINDS THAT THE AGRI CULTURAL INCOME IS SUFFICIENT TO MEET THE UNEXPLAINED INVESTMENT IN M/ S V V SHANBHAG, HE SHALL GIVE RELIEF TO THE ASSESSEE. TH EREFORE, THIS GROUND OF APPEAL IS ALSO ALLOWED FOR STATISTICAL PU RPOSES WITH ABOVE DIRECTIONS. 11. AS REGARDS THE ADDITION UNDER THE HEAD INCOME FROM OTHER SOURCES, WE DO NOT FIND ANY REASON TO INTERFE RE WITH THE ORDER OF THE CIT(A) AS THE ASSESSEE HAS NOT BEEN AB LE TO SUBSTANTIATE HIS CLAIM WITH EVIDENCE. 11.1 IN THE RESULT, THE ASSESSEES APPEAL FOR THE ASST. YEAR 2001-02 IS ALLOWED IN PART. PAGE 10 OF 12 ITA NOS.347 TO 351/BANG/2010 10 11.2 FOR THE ASST. YEAR 2002-03 AND 2003-04, EXCEPT FOR THE QUANTUM, THE ISSUES ARE THE SAME AND THEREFORE, FOR THE REASONS GIVEN BY US FOR THE ASST. YEAR 2001-02, THE A PPEALS ARE PARTLY ALLOWED. 11.3 FOR THE ASST. YEAR 2004-05, IN ADDITION TO THE ISSUES RAISED IN THE ASSESSMENT YEAR 2001-02, THERE IS AN A DDITIONAL ISSUE I.E. AN ADDITION OF RS.11,60,100/- AND RS.10,58,824 /- AS UNEXPLAINED INVESTMENT IN SHARE APPLICATION OF M/S BANANA COUNT Y RESORTS (P) LTD. WITH REGARD TO THIS ADDITION ALSO, THE LEARN ED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AGRICULTURAL INCOME OF THE ASSESSEE WAS SUFFICIENT TO PROVE THE SOURCE OF THIS INVESTME NT. THEREFORE, IN VIEW OF OUR REMITTING THE ISSUE OF UNEXPLAINED C ASH CREDITS TO THE FILE OF THE AO FOR VERIFICATION OF THE DETAILS OF A GRICULTURAL LAND HOLDINGS AND THE INCOME THEREFROM, WE DEEM IT FIT A ND PROPER TO REMIT THIS GROUND NO.7 ALSO TO THE FILE OF THE AO W ITH A DIRECTION TO ALLOW THE SAME IF IT IS FOUND THAT THE AGRICULTURAL INCOME IS SUFFICIENT TO MEET THESE INVESTMENTS AFTER SETTING OFF OF THE UNEXPLAINED CASH CREDITS AND INVESTMENT IN THE PETR OL BUNK. THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED FOR STATISTI CAL PURPOSES. 11.4 AS REGARDS THE OTHER GROUNDS, FOR THE REASONS STATED IN THE ASST. YEAR 2001-02, THESE GROUNDS ARE ALSO DISPOSED OFF ACCORDINGLY AND THE ASSESSEES APPEAL IS PARTLY ALLOWED. PAGE 11 OF 12 ITA NOS.347 TO 351/BANG/2010 11 12. FOR THE ASST. YEAR 2005-06, THE GROUNDS OF APPE AL RAISED BY THE ASSESSEE ARE SIMILAR TO THE ASSESSEES GROUNDS OF APPEAL FOR THE ASST. YEAR 2001-02 AND THEREFORE, THIS APPEAL IS ALSO PART LY ALLOWED FOR THE REASONS STATED THEREIN. HOWEVER, IN ADDITION THER ETO, THE ASSESSEE HAS ALSO RAISED A GROUND OF APPEAL AGAINST AN ADDITION OF RS.60,000/- IN THE HANDS OF THE ASSESSEE. 12.1 BRIEF FACTS OF THIS ISSUE ARE THAT IN THE ACC OUNTS OF M/S BANANA COUNTY RESORTS (P) LTD., IT WAS FOUND THAT AN AMOUNT OF RS,60,000/- HAS BEEN CREDITED BY CASH ON 24.10.2004 IN JOINT NAMES OF SHRI ARUN BHAT AND SRI M G HEBBAR, I.E. THE ASSESSE E HEREIN WITH A NARRATION AMOUNT DEPOSITED BY MEMBER. SINCE THE A SSESSEE COULD NOT EXPLAIN THE SAME, THE AO TREATED THE SAME AS UNEXPL AINED INVESTMENT U/S 69 OF THE ACT AND ADDED IT TO THE TOTAL INCOME OF THE ASSESSEE. HOWEVER, BEFORE THE CIT(A), THE ASSESSEE EXPLAINED THAT M/S BANANA COUNTY RESORTS (P) LTD. HAD RECEIVED A SUM OF RS.60, 000/- BY CHEQUE FROM ITS MEMBERS TOWARDS MEMBERSHIP FEE AND THIS AM OUNT WAS ACCOUNTED IN M/S BANANA COUNTY RESORTS (P) LTD. BUT THE SAME WAS RECEIVED IN THE JOINT ACCOUNT OF SRI ARUN BHAT AND THE ASSESSEE. IT WAS SUBMITTED THAT THIS AMOUNT DOES NOT BELONG TO THE A SSESSEE BUT BELONGS TO THE COMPANY. THE SAID CONTENTION IS ALSO RAISED BEFORE US. HOWEVER, WE ARE NOT CONVINCED WITH THE SAID ARGUMENT THAT TH E AMOUNT RECEIVED IS TOWARDS MEMBERSHIP FEE FROM THE MEMBERS IN MUMBAI. THE ASSESSEE IS NOT ABLE TO GIVE ANY EVIDENCE AS TO THE MEMBER WHO H AS DEPOSITED THE MONEY. IN THE ABSENCE OF THE SAME, THE AMOUNT OF RS .60,000/- HAS TO BE CONSIDERED AS HELD BY SRI ARUN BHAT AS WELL AS TH E ASSESSEE. SINCE IT PAGE 12 OF 12 ITA NOS.347 TO 351/BANG/2010 12 IS HELD IN THE JOINT NAMES, THE ADDITION OF RS.60,0 00/- ENTIRELY IN THE HANDS OF THE ASSESSEE IS NOT JUSTIFIED. THEREFORE, WE HOLD THAT ONLY RS.30,000/- IS TO BE ADDED IN THE HANDS OF THE ASSE SSEE. THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED IN PART. 13. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE PARTLY ALLOWED. THE ORDER PRONOUNCED ON 26 TH DAY OF MAY, 2011 AT BANGALORE. SD/- SD/- (A MOHAN ALANKAMONY) (P MADH AVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMB ER COPY TO : 1) THE ASSESSEE (2) THE REVENUE (3) THE CIT(A) CONCERNED. (4) THE CIT CONCERNED. (5) THE DR (6) GUARD FILE. MSP/24.5 BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.