Sh. P.K. Malhotra, Panchkula V. ITO, Panchkula

ITA 382/CHANDI/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51626 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: ANIL KUMAR BATRA
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 382/CHD/2011 ASSESSMENT YEAR: 2007-08 SHRI P.K.MALHOTRA, V ITO, WARD-1, SCO 194, SECTOR 16, PANCHKULA. PANCHKULA. PAN: AAYPM-5142R (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANIL KUMAR BATRA RESPONDENT BY : SHRI N.K.SAINI DATE OF HEARING : 13.12.2011 DATE OF PRONOUNCEMENT : 20.12.2011 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 28.02.2011 PASSED BY THE LD. CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'THE ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN REJECTING THE EXPLANATION PERTAINING TO CASH DEPOSITS IN THE SAVI NG ACCOUNT OF ASSESSEE AND IN TELESCOPING THE SAME WIT H UN-RECONCILED DIFFERENCE OF SUNDRY CREDITORS VIZ TH E BOOKS AS MAINTAINED BY THE APPELLANT AND THE STATEM ENT FURNISHED BY THE RESPECTIVE SUNDRY CREDITORS. THE RESULTANT ADDITION OF RS.5,52,827/- BE DELETED. 2. THE APPELLANT CARVES LEAVE TO ADD, AMEND OF DELE TE ANY OF THE GROUND OF APPEAL BEFORE THE SAME IS TAKE N UP FOR FINAL HEARING. 2 3. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS B EFORE THE BENCH, IT TRANSPIRED THAT THE ASSESSEE HAS NOT RAISED THIS GROUND OF APPEAL BEFORE THE LD. CIT(A). HOWEVE R, LD. 'AR' CONTENDED THAT THE ADDITION IS UNCALLED FOR AND IT IS MADE IN RESPECT OF SALES MADE OUTSIDE THE BOOKS OF ACCOUNT. CONSEQUENTLY, THE ADDITION CAN BE MADE ONLY TO THE EXTENT OF GP EMBEDDED IN THE SALES. LD. 'AR' REFERRED TO PAR A 5 OF THE ASSESSMENT ORDER AS ALSO PARA 6, 6.1 AND 6.3 OF THE CIT(A)S ORDER. 4. LD. 'DR' ON THE OTHER HAND, VEHEMENTLY CONTENDED THAT THIS GROUND HAS NOT BEEN RAISED BEFORE THE CIT(A) H ENCE, CAN NOT BE ADMITTED AT THIS STAGE. HE FURTHER PLACED R ELIANCE ON THE ASSESSMENT ORDER AS ALSO ON THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY. IN HIS OPINION, THE CIT(A) HAS PASSED A VERY FAIR AND REASONABLE ORDER AND HENCE, NEEDS NO INTER FERENCE. 5. WE HAVE CAREFULLY PERUSED FACTS OF THE CASE, RIV AL SUBMISSIONS AND FOUND THAT THIS PARTICULAR GROUND R AISED BEFORE THE BENCH WAS NOT RAISED BEFORE THE CIT(A). THE AO NOTICED, AT THE TIME OF MAKING THE ASSESSMENT THAT THE CASH DEPOSIT OF RS.20,36,900/- AS APPEARING IN THE APPEL LANTS SAVING BANK ACCOUNT IN UNION BANK OF INDIA, SECTOR 8, PANCHKULA REMAINS TO BE EXPLAINED. THE AO, HOWEVER DID NOT MAKE ANY SEPARATE ADDITION ON THIS ACCOUNT BY OBSER VING THAT NO SEPARATE ADDITION ON ACCOUNT OF UNEXPLAINED CAS H DEPOSITS IS BEING MADE AND THE SAME WILL BE TREATED TO HAVE BEEN COVERED IN THE ADDITION MADE UNDER THE HEAD SUNDRY CREDITO RS. THE LD. CIT(A) OBSERVED THAT THE APPELLANT HAS NOT RAISED A NY SEPARATE GROUND WITH REGARD TO AOS ACTION OF TREATING THE C ASH DEPOSITS 3 AS UNEXPLAINED. HOWEVER, IN THE INTEREST OF JUSTIC E, CIT(A) PROVIDED AN OPPORTUNITY TO EXPLAIN THE SOURCE OF CA SH DEPOSIT APPEARING IN HIS BANK ACCOUNT. IT WAS POINTED OUT TO THE APPELLANT BY THE CIT(A) THAT THE ADDITION ON ACCOUN T OF UNEXPLAINED CASH DEPOSIT IS LIABLE TO BE MADE TO TH E EXTENT THE SUNDRY CREDITORS ARE TREATED AS EXPLAINED CONSEQUEN T TO THE EXPLANATION OFFERED BY THE APPELLANT. ON APPRECIAT ION OF THE SUBMISSION MADE BY THE ASSESSEE, LD. CIT(A) HELD TH AT THE ASSESSEE HAS NOT BEEN ABLE EVEN TO RELATE THESE CAS H DEPOSITS WITH THE SALES MADE, AS NO BOOKS OF ACCOUNT HAVE BE EN PRODUCED BEFORE THE AO AND THE CIT(A). CONSEQUENTL Y, THE CIT(A) REJECTED THE EXPLANATION FILED BY THE ASSESS EE AS UNSUBSTANTIATED. IT IS MADE CLEAR THAT THE LD. 'AR ' MADE THE SIMILAR SUBMISSIONS BEFORE THE BENCH, WHICH REMAINS UN- SUBSTANTIATED BY WAY OF CORROBORATIVE EVIDENCES. CO NSEQUENTLY, SUCH EXPLANATION CANNOT BE ACCEPTED. THEREFORE, TH E FINDINGS OF THE CIT(A), AS CONTAINED IN PARA 6.3 AND 6.4 ARE UP HELD. HOWEVER, FOR THE SAKE OF READY REFERENCE AND PROPER APPRECIATION OF THE FACTUAL MATRIX OF THE CASE AND THE STATEMENT MADE BY THE ASSESSEE BEFORE CIT(A), RELEVANT FINDIN GS ARE REPRODUCED HEREUNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND HAVE ALSO GONE THROUGH THE COPY OF TH E BANK ACCOUNT IN WHICH THE CASH DEPOSIT AS MENTIONED IN THE ASSESSMENT ORDER ARE APPEARING. AS REGARDS THE CONTENTION OF THE APPELLANT THAT THE PAYMENT WITH R EGARD TO NCERT BOOKS HAVE BEEN MADE THROUGH THE ABOVE MENTIONED BANK ACCOUNT, THE APPELLANT WAS GIVEN A SPECIFIC OPPORTUNITY TO PRODUCE EVIDENCE IN SUPPORT OF ITS CONTENTION THAT THE DEPOSITS REPRESENT THE CASH SAL E OF NCERT BOOKS. THE APPELLANT HAS RELIED ON THE CERTIFICATE ISSUED BY THE UNION BANK OF INDIA THAT DEMAND DRAFTS APPEARING IN THE BANK ACCOUNT HAVE BE EN MADE IN FAVOUR OF NCERT. THUS, THE APPELLANT HAS CONTENDED THAT AS THE PAYMENTS FOR NCERT BOOKS WERE 4 BEING ROUTED THROUGH THIS BANK ACCOUNT. THE RECEIPT S THEREFROM WERE ALSO BEING DEPOSITED IN THIS ACCOUNT . IT HAS BEEN MENTIONED THAT THESE SALES DO NOT FORM PAR T OF THE SALE SHOWN BY THE APPELLANT. THE APPELLANT EXPRESSED INABILITY TO PRODUCE ANY OTHER EVIDENCE T O SUPPORT ITS CONTENTION THAT THE CASH DEPOSITS REPRE SENT UNACCOUNTED CASH SALE OF NCERT BOOKS. IT IS ALSO NO TED THAT THE APPELLANT DID NOT FILED ANY EXPLANATION BE FORE THE AO IN THIS REGARD DURING THE ASSESSMENT PROCEEDINGS. THE APPELLANT HAS NOT BEEN ABLE TO EVE N RELATE THESE CASH DEPOSITS WITH THE SALES MADE AS N O BOOKS OF ACCOUNT HAVE BEEN PRODUCED DURING THE COUR SE OF ASSESSMENT PROCEEDINGS OR THE APPELLATE PROCEEDI NGS. THEREFORE, THE CONTENTION OF THE APPELLANT IS REJEC TED BEING UNSUBSTANTIATED. 6.4 HOWEVER, THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IS TELESCOPED KEEPING IN VIEW THE ADD ITION MADE ON ACCOUNT OF UNEXPLAINED/UNVERIFIED SUNDRY CREDITORS. IT IS SEEN THAT AN ADDITION OF RS.14,84 ,073/- HAS BEEN CONFIRMED ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS. THEREFORE, THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IS RESTRICTED TO RS.5,52, 827/- (2036900 -1484073). 6. IN VIEW OF THE ABOVE FACTUAL AND LEGAL DISCUSSIO N, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DEC.,2011. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20 TH DEC.,2011. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT ,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH