SHANKAR A GADDAM, MUMBAI V. ACIT CEN CIR 43, MUMBAI

ITA 3974/MUM/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3492 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 03-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R MANJUNATHA SWAMY
• Keywords: Unexplained cash credit; Search and seizure; Peak credit; Source of fund
• Section: 44AD; 143(3); 142(1); 153A; 68; 132

Judgement Text

1 SHANKAR A GODDAM IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI MAHAVIR SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.3974 TO 3978/MUM/2013 (ASSESSMENT YEARS: 2006-07 TO 2010-11) SHANKAR A GODDAM B/302, PRATIMA CO.OP HSG SOCIETY, GALI NO.1, KOLDONGRI, MUMBAI- 400 069 PAN : ABKPG9674R VS ACIT, CENT.CIR.43, MUMBAI APPELLANT RESPONDENT I.T.A NO.3971 TO 3973/MUM/2013 (ASSESSMENT YEARS: 2006-07, 2005-06 & 2004-05) DY.CIT, CENT.CIR.43, MUMBAI VS SHANKAR A GODDAM B/302, PRATIMA CO.OP HSG SOCIETY, GALI NO.1, KOLDONGRI, MUMBAI- 400 069 APPELLANT RESPONDENT REVENUE BY SHRI R MANJUNATHA SWAMY ASSESSEE BY SHRI K GOPAL DATE OF HEARING 09 -08-2018 DATE OF PRONOUNCEMENT 21 -08-2018 O R D E R PER BENCH: THIS BUNCH OF 8 APPEALS, OUT OF WHICH 3 APPEALS F ILED BY THE REVENUE AND 5 APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE ORDER OF THE CIT(A)-38, MUMBAI DATED 14-02-2013 FOR THE ASSESSMENT 2 SHANKAR A GODDAM YEAR 2004-05 TO 2010-11. SINCE FACTS ARE IDENTICAL AND ISSUES ARE COMMON, FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. THE REVENUE HAS RAISED MORE OR LESS COMMON GROUN DS OF APPEAL FOR ALL 3 ASSESSMENT YEARS. FOR THE SAKE OF BREVITY, G ROUNDS OF APPEAL RAISED FOR AY 2004-05 IN ITA NO.3973/MUM/2013 ARE REPRODUCED BELOW:- 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING ADDITION OF RS.38,50,000/- M ADE ON PROTECTIVE BASIS ON ACCOUNT OF AMOUNTS RECEIVED FROM FREE TRADE UNION MULTIPURPOSE TRUST(FTUMPT), WITHOUT GIVING ANY DECIS ION IN THE CASE OF MS. CHANDBIBI ZAIDI WHEREIN SUBSTANTIVE ADDITION WA S MADE BY THE ASSESSING OFFICER.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CITFA) ERRED IN DELETING ADDITION OF RS.38,50,000/- M ADE ON PROTECTIVE BASIS ON ACCOUNT OF AMOUNTS RECEIVED FROM FREE TRADE UNION MULTIPURPOSE TRUST(FTUMPT), WITHOUT INDICATING YEAR-W ISE BREAKUP AND BASIS FOR HIS ESTIMATION THAT THE ALLEGED EXPEN DITURE ON THE REPAIRS WOULD NOT BE MORE THAN RS. 25 LAKHS. 3. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CITFA) WAS JUSTIFIED IN DELETING ADDITI ON OF RS.38,50,000/~ MADE ON PROTECTIVE BASIS ON ACCOUNT OF AMOUNTS RECE IVED FROM FREE TRADE UNION MULTIPURPOSE TRUST(FTUMPT), BY HAVING RE GARD TO THE ADDITIONAL FACT THAT APPELLANT WAS ASSESSED TO TAX U/S 44AD OF THE ACT?' 3. THE ASSESSEE HAS RAISED MORE OR LESS COMMON GROU NDS OF APPEAL FOR ALL YEARS. FOR THE SAKE OF BREVITY, GROUNDS OF APPEAL TAKEN FOR AY 2006-07 IN ITA NO.3974/MUM/2013 ARE REPRODUCED BELO W:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A)-38 ERRED IN CONFIRMING THE ADDITION OF RS. 9,72,0007- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. 3 SHANKAR A GODDAM 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-38 ERRED IN NOT ACCEPTING THAT THE CASH DEPOSITS OF ?3 ,56,0007- WERE SHOWN AS ASSESSEE'S INCOME WHICH WAS DISCLOSED AT THE TIME OF FILING RE TURN U/S. 153A OF THE IT ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-38 ERRED IN NOT ACCEPTING THAT THE CASH DEPOSITS OF? 2 ,36,0007- WERE SHOWN AS ASSESSEE'S INCOME WHICH WAS DISCLOSED AT THE TIME OF FILING RE TURN U/S, I53A OF THE I T ACT AND AN AMOUNT OF '3,00,0007-WAS TOWARDS RE-DEPOSITS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-38 ERRED IN NOT ACCEPTING THE FACT THAT THERE WAS CLEA R EVIDENCE OF CASH WITHDRAWN WHICH WAS RE-DEPOSITED AND OF INCOME DISCLOSED AT THE TIM E OF FILING RETURN U/S. 153A OF THE IT ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION IN TH E NAME AND STYLE OF TWO PROPRIETORY CONCERNS, VIZ. M/S SAI CIVIL DCOR AND M/S MAHALAXMI ENTERPRISES. A SEARCH AND SEIZURE ACTION U/S 132 O F THE INCOME-TAX ACT, 1961 WAS CARRIED OUT ON CHANDBIBI ZAIDI GROUP OF CA SES ON 20-08-2009. THE MAIN PERSON OF THE GROUP IS MS.CHANDBIBI ZAIDI, WHO IS PRESIDENT OF TWO PROMINENT TRADE UNIONS, VIZ. MMS( MUMBAI MAZDOO R SABHA) & ENGINEERING MAZDOOR SABHA (EMS). SHE IS ALSO MANAG ING TRUSTEE OF FREE TRADE UNIONS MULTI PURPOSE TRUST, A PUBLIC CHA RITABLE TRUST CLOSELY ASSOCIATED WITH TWO TRADE UNIONS. DURING THE COURS E OF SEARCH, CERTAIN INCRIMINATING MATERIALS WERE FOUND AND SEIZED REVEA LED THAT MS.CHANDBIBI ZAIDI IS SIPHONING OFF FUNDS OF THE TR UST THROUGH VARIOUS MEANS INCLUDING ALLEGED BOGUS EXPENDITURE AND ACCOR DINGLY, A STATEMENT U/S 132(4) OF THE INCOME-TAX ACT, 1961 WA S RECORDED. THE ASSESSEE BEING A CIVIL CONTRACTOR, RENDERED SERVICE S TO FREE TRADE UNIONS MULTI PURPOSE TRUST WAS ALSO COVERED UNDER S ECTION 132 ACTION 4 SHANKAR A GODDAM AND ACCORDINGLY, A STATEMENT U/S 132(4) OF THE INCO ME-TAX ACT, 1961 WAS RECORDED. DURING THE COURSE OF SEARCH, IT WAS NOTI CED THAT MS.CHANDBIBI ZAIDI, MANAGING TRUSTEE OF FREE TRADE UNIONS MULTI PURPOSE TRUST HAS PAID MONEY TO ASSESSEES TWO PROPRIETORY CONCERNS, M/S SAI CIVIL DCOR AND M/S MAHALAXMI ENTERPRISES FOR ALLEGED REPAIR WO RKS CARRIED OUT AT THE GROUND FLOOR OF KENNEDY HOUSE BUILDING OWNED BY ENGINEERING MAZDOOR SABHA WAS CLAIMED AS A DEDUCTION BY FREE TR ADE UNIONS MULTI PURPOSE TRUST ON THE GROUND THAT THE ALLEGED REPAIR WORK TO THE BUILDING WAS NOT CARRIED OUT AND THE MONEY HAS BEEN SIPHONED OFF BY THE MANAGING TRUSTEE MS.CHANDBIBI ZAIDI. CONSEQUENT TO SEARCH, ASSESSEES CASE WAS TAKEN UP FOR ASSESSMENT AND ACC ORDINGLY NOTICE U/S 153A WAS ISSUED. IN RESPONSE TO NOTICES, THE A SSESSEE HAS FILED HIS RETURN OF INCOME ON 14-07-2010. THE CASE WAS SELEC TED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUE D. IN RESPONSE TO NOTICES, ASSESSEE HAS FILED VARIOUS DETAILS, AS CAL LED FOR. THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) R.W.S. 153 A OF THE INCOME- TAX ACT, 1961 FOR AYS 2004-05 TO 2010-11 ON 29-12-2 011, WHEREIN THE AO HAS MADE ADDITION TOWARDS AMOUNT RECEIVED FROM F REE TRADE UNIONS MULTI PURPOSE TRUST FOR AYS 2004-05, 2005-06 & 2006-07 AMOUNTING TO R.38,50,000, RS.24,50,000 AND RS.18 LA KHS TOWARDS REPAIR WORK CARRIED OUT AT GROUND FLOOR OF KENNEDY HOUSE O N PROTECTIVE BASIS 5 SHANKAR A GODDAM AS A SIMILAR ADDITION HAS BEEN MADE IN THE HANDS OF MS.CHANDBIBI ZAIDI ON SUBSTANTIVE BASIS ON THE ALLEGATION THAT NO REPA IR WORK WAS CARRIED OUT AND IT IS ONLY A MEAN TO SIPHON OFF FUNDS FROM FREE TRADE UNIONS MULTI PURPOSE TRUST. THE AO ALSO MADE ADDITION TOW ARDS UNEXPLAINED CASH CREDIT FOUND IN BANK ACCOUNTS MAINTAINED BY TH E ASSESSEE AT BHARAT CO-OPERATIVE BANK LTD, UDE KALINA BRANCH IN THE NAME OF MAHALAXMI ENTERPRISES AND M/S SAI CIVIL DCOR ON TH E GROUND THAT THE ASSESSEE FAILED TO EXPLAIN SOURCES OF INCOME FOR CR EDITS FOUND IN BANK ACCOUNT FOR AYS 2006-07 TO 2010-11. 5. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEALS BEFORE THE CIT(A) FOR ALL ASSESSMENT YEARS. BEFORE THE CIT(A), THE ASSESSEE HAS FILED ELABORATE WRITTEN SUBMISSIONS ON THE ISSUE TO EXPLAIN ADDITION MADE BY THE AO TOWARDS AMOUNT RECEIVED FRO M FREE TRADE UNIONS MULTI PURPOSE TRUST AND ALSO UNEXPLAINED CRE DITS FOUND IN TWO BANK ACCOUNTS. INSOFAR AS AMOUNT RECEIVED FROM FRE E TRADE UNIONS MULTI PURPOSE TRUST, THE ASSESSEE FILED VARIOUS DET AILS INCLUDING INCOME- TAX RETURN COPIES TO PROVE THAT AMOUNT RECEIVED FRO M THE SAID TRUST HAS BEEN INCLUDED IN HIS INCOME-TAX RETURN AND PROFIT H AS BEEN DERIVED BY FOLLOWING THE PRINCIPLES OF DEEMING NET PROFIT PROV IDED U/S 44AD OF THE INCOME-TAX ACT, 1961. THE ASSESSEE ALSO FILED VARI OUS DETAILS TO MATCH YEAR-WISE AMOUNT RECEIVED FROM THE TRUST AND AMOUNT CONSIDERED IN ITS 6 SHANKAR A GODDAM BOOKS OF ACCOUNT. THE ASSESSEE ALSO FILED VARIOUS DETAILS TO PROVE EXPENDITURE INCURRED TOWARDS CARRYING OUT REPAIR WO RKS TO KENNEDY BLDG. INSOFAR AS CASH DEPOSITS IN BANK ACCOUNTS, ASSESSEE EXPLAINED BEFORE THE CIT(A) THAT HE HAS DEPOSITED CASH OUT OF HIS OW N SOURCE OF INCOME DRAWN FROM 2 PROPRIETORY CONCERNS, M/S SAI CIVIL D COR AND M/S MAHALAXMI ENTERPRISES AND ACCORDINGLY FILED A CHART EXPLAINING AMOUNT DEPOSITED IN BANK ACCOUNT. THE LD.CIT(A), AFTER CO NSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE DELETED PROTECTIVE ADDI TIONS MADE BY THE AO TOWARDS AMOUNT RECEIVED FROM FREE TRADE UNIONS M ULTI PURPOSE TRUST ON THE GROUND THAT THE ASSESSEE HAS FILED NEC ESSARY EVIDENCES TO PROVE THAT THE AMOUNT RECEIVED FROM THE SAID TRUST IS INCLUDED IN HIS INCOME-TAX RETURNS AND ALSO FILED VARIOUS DETAILS T O PROVE EXPENDITURE INCURRED FOR CARRYING OUT NECESSARY REPAIR WORKS AT KENNEDY HOUSE BLDG. INSOFAR AS ADDITION MADE TOWARDS CASH CREDITS FOUND IN TWO BANK ACCOUNTS, THE CIT(A) HAS ALLOWED PARTIAL RELIEF TOW ARDS UNEXPLAINED CASH CREDIT FOUND IN BANK ACCOUNTS WHEREVER THE ASSESSEE WAS ABLE TO EXPLAIN SOURCES WITH EVIDENCE; HOWEVER, CONFIRMED R EMAINING AMOUNT ON THE GROUND THAT THE ASSESSEE HAS NOT EXPLAINED S OURCES OF CASH DEPOSIT FOUND IN BANK ACCOUNT WITH COGENT EVIDENCES . AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE AS WELL AS THE REVENUE AR E IN APPEALS BEFORE US. 7 SHANKAR A GODDAM 6. THE FIRST ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FROM REVENUES APPEAL FOR AYS 2004-05 TO 2006-07 IS PROTECTIVE ADD ITION MADE BY THE AO TOWARDS AMOUNT RECEIVED FROM FREE TRADE UNIONS M ULTI PURPOSE TRUST. THE LDE.AR FOR THE ASSESSEE AT THE TIME OF HEARING SUBMITTED THAT THE ISSUE IS MORE OR LESS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT, MUMBAI BENCH C IN THE CASE OF M S.CHANDBIBI ZAIDI WHERE THE ITAT HAS DELETED SUBSTANTIVE ADDITION MAD E BY THE AO TOWARDS AMOUNT RECEIVED FROM FREE TRADE UNIONS MULT I PURPOSE TRUST ON THE ALLEGATION THAT THE MANAGING TRUSTEE HAS SIP HONED OFF THE FUNDS OF THE TRUST UNDER THE GUISE OF BOGUS EXPENDITURE INCU RRED ON REPAIRS TO KENNEDY HOUSE BLDG, THEREFORE, PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE CANNOT SURVIVE WHEN SUBSTANTIVE ADD ITION HAS ALREADY BEEN DELETED IN THE HANDS OF ALLEGED BENEFICIARY. THE LD.AR FURTHER SUBMITTED THAT THE ITAT, IN YET ANOTHER CASE, IN FR EE TRADE UNIONS MULTI PURPOSE TRUST HAS CONSIDERED THE ISSUE AND AFTER CO NSIDERING RELEVANT FACTS HAS DELETED ADDITIONS MADE BY THE AO TOWARDS AMOUNT PAID TO THE ASSESSEE PROPRIETORY CONCERNS, M/S MAHALAXMI ENTERP RISES AND M/S SREE SAI DECORS. THE LD.AR FURTHER SUBMITTED THA T EVEN OTHERWISE THE ASSESSEE HAS FILED VARIOUS DETAILS BEFORE THE AO AS WELL AS THE LD.CIT(A) TO PROVE THAT THE SAID AMOUNT HAD BEEN CO NSIDERED IN HIS INCOME-TAX RETURNS FOR THE PURPOSE OF ESTIMATION OF NET PROFIT UNDER THE 8 SHANKAR A GODDAM PROVISIONS OF SECTION 44AD OF THE I.T. ACT, 1961. THE LD.AR FURTHER EXPLAINED WITH REFERENCE TO PAPER BOOK FILED CONTAI NING DETAILS OF HIS INCOME-TAX RETURNS THAT THE YEAR-WISE AMOUNT PAID B Y THE TRUST HAS BEEN MATCHED WITH RECEIPTS CONSIDERED BY THE ASSESSEE IN HIS INCOME-TAX RETURNS AND, THEREFORE, THERE IS NO REASON FOR THE AO TO MAKE ANY ADDITION ON ADHOC BASIS TOWARDS SAID AMOUNT AND ACC ORDINGLY ARGUED THAT THE LD.CIT(A) HAS RIGHTLY DELETED ADDITION MAD E BY THE AO ON PROTECTIVE BASIS AND HIS ORDER SHOULD BE UPHELD. 7. ON THE OTHER HAND, THE LD.DR SUBMITTED THAT THE LD.CIT(A) WAS ERRED IN DELETING ADDITIONS MADE ON PROTECTIVE BASI S ON ACCOUNT OF AMOUNT RECEIVED FROM FREE TRADE UNIONS MULTI PURPOS E TRUST WITHOUT GIVING ANY DECISION IN THE CASE OF MS.CHANDBIBI ZAI DI WHEREIN SUBSTANTIVE ADDITION WAS MADE BY THE AO. THE LD.CI T(A) SIMPLY DELETED ADDITION MADE BY THE AO WITHOUT RECORDING H IS REASONS IN THE LIGHT OF FACTS BROUGHT OUT BY THE AO DURING THE COU RSE OF ASSESSMENT PROCEEDINGS THAT THE AMOUNT RECEIVED BY THE ASSESSE E HAS BEEN ROUTED BACK TO MS.CHANDBIBI ZAIDI, THEREFORE, WITHOUT ASCE RTAINING THE FACTS AND RESULT OF ADDITION MADE IN THE HANDS OF MS.CHANDBIB I ZAIDI, DELETED ADDITION IN THE HANDS OF THE ASSESSEE. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE LD. AR HAS FILED VARIOUS DETAILS TO PROVE THAT THE 9 SHANKAR A GODDAM ASSESSEE HAS CONSIDERED AMOUNT RECEIVED FROM FREE T RADE UNIONS MULTI PURPOSE TRUST IN HIS INCOME-TAX RETURNS FOR T HE RELEVANT ASSESSMENT YEARS AND ESTIMATED NET PROFIT ON SUCH R ECEIPTS UNDER THE PROVISIONS OF SECTION 44AD OF TH4E ACT. THE ASSESS EE ALSO FILED VARIOUS DETAILS BEFORE THE LOWER AUTHORITIES TO PROVE EXPEN DITURE INCURRED IN CONNECTION WITH REPAIR WORK CARRIED OUT AT KENNEDY HOUSE BLDG. THIS UNDISPUTED FACT HAS BEEN CATEGORICALLY RECORDED BY THE LD.CIT(A) IN HIS APPELLATE ORDER. IN RESPECT OF THIS ADDITION, THE LD.AR FOR THE ASSESSEE FILED FURTHER EVIDENCE IN THE FORM OF ORDERS OF ITA T IN THE CASE OF MS.CHANDBIBI ZAIDI, WHERE SUBSTANTIVE ADDITION MADE BY THE AO TOWARDS AMOUNT RECEIVED FROM FREE TRADE UNIONS MULT I PURPOSE TRUST HAS BEEN DELETED. WE, THEREFORE, ARE OF THE OPINIO N THAT ONCE SUBSTANTIVE ADDITION MADE IN THE CASE OF ALLEGED BE NEFICIARY HAS BEEN DELETED BY THE ITAT, THERE IS NO REASON TO SUSTAIN ADDITION MADE BY THE AO TOWARDS PROTECTIVE ADDITION IN THE HANDS OF THE ASSESSEE MORE PARTICULARLY, WHEN ASSESSEE HAS DEMONSTRATED WITH E VIDENCE THAT SUCH RECEIPT HAS BEEN PART OF HIS INCOME-TAX RETURNS AND ALSO HE HAS CARRIED OUT NECESSARY REPAIR WORKS TO THE TRUST. THE LD.CI T(A), AFTER CONSIDERING RELEVANT FACTS HAS RIGHTLY DELETED ADDITION MADE BY THE AO. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF T HE LD.CIT(A). HENCE, WE ARE INCLINED TO UPHOLD THE FINDINGS OF LD.CIT(A) AND DISMISS APPEAL 10 SHANKAR A GODDAM FILED BY THE REVENUE FOR AYS 2004-05, 2005-06 & 200 6-07. 9. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATIO N FROM ASSESSEES APPEALS FOR AYS 2006-07 TO 2010-11 IS ADDITION MADE TOWARDS UNEXPLAINED CASH DEPOSITS FOUND IN TWO BANK ACCOUNT S U/S 68 OF THE INCOME-TAX ACT, 1961. THE AO HAS MADE ADDITION TOW ARDS UNEXPLAINED CASH DEPOSIT FOUND IN THE BHARAT CO-OPERATIVE BANK LTD, KALINA BRANCH AND ICICI BANK, VILE PARLE (E) BRANCH IN THE NAME O F ASSESSEE ON THE GROUND THAT THERE ARE HUGE CREDITS IN TWO BANK ACCO UNTS FOR WHICH THE ASSESSEE HAS NOT FILED ANY EXPLANATION TO PROVE SOU RCES OF INCOME. ACCORDING TO THE AO, THERE IS MISMATCH BETWEEN CRED ITS FOUND IN TWO SAVINGS BANK ACCOUNTS MAINTAINED AT BHARAT CO-OPERA TIVE BANK LTD, KALINA BRANCH AND ICICI BANK, VILE PARLE (E) BRANCH WHEN COMPARED TO ASSESSEES DECLARED SOURCE OF INCOME. ACCORDINGLY, HE HAS MADE ADDITION TOWARDS TOTAL CREDITS FOUND IN THE BANK AC COUNT AS UNEXPLAINED CREDIT U/S 68 OF THE INCOME-TAX ACT, 1961. IT IS T HE CONTENTION OF THE ASSESSEE THAT CREDITS FOUND IN SAVINGS BANK ACCOUNT MAINTAINED IN TWO BANKS ARE EXPLAINED WITH KNOWN SOURCE OF INCOME AND SUCH SOURCE OF INCOME IS DERIVED FROM TWO PROPRIETORY CONCERNS, M/ S MAHALAXMI ENTERPRISES AND M/S SAI DECORS FOR WHICH NECESSARY EVIDENCES HAVE BEEN FILED BEFORE THE AO. THE ASSESSEE FURTHER CON TENDED THAT THERE ARE INSTANCES WHERE THE ASSESSEE HAS WITHDRAWN CASH FROM ONE BANK 11 SHANKAR A GODDAM ACCOUNT AND DEPOSITED IN ANOTHER BANK ACCOUNT, BUT THE AO HAS NOT CONSIDERED WITHDRAWAL FROM OTHER BANKS TO EXPLAIN C REDITS FOUND IN ANOTHER BANK ACCOUNT. THE AO ALSO NOT CONSIDERED W ITHDRAWALS FOUND IN SOME BANK ACCOUNT IN EARLIER OCCASIONS. THE ASSESS EE FURTHER CONTENDED THAT EVEN THE AO HAS MADE ADDITION TOWARD S CHEQUE TRANSFERS BETWEEN ASSESSEES INDIVIDUAL BANK ACCOUN T FROM ASSESSEES HUF BANK ACCOUNT. THE AO ALSO NOT CONSIDERED AMOUN T FOUND CREDITED IN ASSESSEES WIFES ACCOUNT. THE ASSESSEE HAS FIL ED A PAPER BOOK EXPLAINING EACH AND EVERY CREDIT FOUND IN TWO BANK ACCOUNTS WITH CORRESPONDING WITHDRAWALS FROM HIS TWO PROPRIETORY CONCERNS, M/S MAHALAXMI ENTERPRISES AND M/S SAI DECORS. ACCORDIN G TO THE ASSESSEE, EACH AND EVERY CREDIT FOUND IN TWO BANK ACCOUNTS IS HAVING CORRESPONDING WITHDRAWALS FROM HIS TWO PROPRIETORY CONCERNS OR THERE IS SOURCE OF INCOME IN THE FORM OF AMOUNT TRANSFERRED FROM HIS HUF ACCOUNT OR FROM HIS WIFES ACCOUNT. THE AO HAS IGN ORED ALL THESE EVIDENCES TO MAKE ADDITION TOWARDS TOTAL CREDITS FO UND IN TWO BANK ACCOUNTS U/S 68 OF THE INCOME-TAX ACT, 1961. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSES SEE HAS NOT FILED NECESSARY EVIDENCES BEFORE THE AO AT THE TIME OF AS SESSMENT PROCEEDINGS TO EXPLAIN CREDITS FOUND IN SAVINGS BAN K ACCOUNT MAINTAINED 12 SHANKAR A GODDAM IN MAINTAINED BHARAT CO-OPERATIVE BANK LTD, KALINA BRANCH AND ICICI BANK, VILE PARLE (E) BRANCH. THE ASSESSEE HAS MADE A GENERALIZED EXPLANATION IN THE LIGHT OF ITS INCOME-TAX RETURNS TO ARGUE THAT CREDITS FOUND IN BANK ACCOUNTS ARE EXPLAINED OUT OF WITHDRA WALS FROM HIS TWO PROPRIETORY CONCERNS, M/S MAHALAXMI ENTERPRISES AND M/S SAI DECORS WITHOUT ANY EXPLANATION WITH REGARD TO EACH AND EVE RY CREDIT FOUND IN THE BANK ACCOUNT. BUT, NOW THE ASSESSEE HAS FILED A PA PER BOOK WHICH CONTAINS BANK ACCOUNTS MAINTAINED IN THE NAME OF M/ S MAHALAXMI ENTERPRISES AND M/S SAI DECORS TO MATCH CREDITS FOU ND IN TWO SAVINGS BANK ACCOUNT TO CORRESPONDING WITHDRAWALS FROM TWO PROPRIETORY CONCERNS, M/S MAHALAXMI ENTERPRISES AND M/S SAI DEC ORS. THE ASSESSEE ALSO FILED CERTAIN OTHER EVIDENCES IN THE FORM OF I.T. RETURNS OF HIS HUF TO ARGUE THAT HE HAS RECEIVED LOANS FROM H UFS BANK ACCOUNT. THE ASSESSEE ALSO FILED CERTAIN EVIDENCES TO EXPLAI N SOURCES FOR CREDITS FOUND IN BANK ACCOUNT. THE AO HAS ERRONEOUSLY MADE ADDITIONS TOWARDS DEPOSITS FOUND IN BANK ACCOUNTS MAINTAINED IN THE NAME OF NARESH KADAM. WE FIND THAT THE ASSESSEE HAS FILED PAPER BOOK CONTAINING BANK STATEMENTS OF TWO PROPRIETORY CONCE RNS AND BANK STATEMENTS OF SAVINGS BANK ACCOUNT MAINTAINED IN B HARAT CO-OPERATIVE BANK LTD, KALINA BRANCH AND ICICI BANK, VILE PARLE (E) BRANCH TO EXPLAIN CREDITS FOUND IN BANK ACCOUNTS WITH CORRESP ONDING WITHDRAWALS 13 SHANKAR A GODDAM FROM OTHER BANK ACCOUNTS, BUT FACT REMAINS THAT THE ASSESSEE HAS NOT FILED A CHART EXPLAINING DATE-WISE CREDIT FOUND IN TWO BANK ACCOUNTS AND CORRESPONDING WITHDRAWALS FROM TWO PROPRIETORY CONC ERNSBANK ACCOUNTS. THEREFORE, WE ARE OF THE CONSIDERED VI EW THAT THE ISSUE NEEDS TO BE EXAMINED BY THE AO IN THE LIGHT OF EVID ENCE FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ISSUE TO THE FIL E OF THE AO TO CONSIDER THE ISSUE AFRESH. IN CASE THE ASSESSEE IS ABLE TO EXPLAIN SOURCES FOR CREDITS, THEN THE AO IS DIRECTED TO DEL ETE ADDITIONS TOWARDS CASH CREDITS FOUND IN BANK ACCOUNTS. IN CASE SOURC E IS NOT EXPLAINED, THEN THE AO IS DIRECTED TO WORK OUT PEAK CREDIT AND SUSTAIN ADDITION TO THE EXTENT OF PEAK CREDIT FOUND IN TWO BANK ACCOUNT S. 11. IN THE RESULT, APPEALS FILED BY THE ASSESSEE FO R AYS 006-07 TO 2010- 11 ARE ALLOWED FOR STATISTICAL PURPOSE. 12. AS A RESULT, APPEALS FILED BY THE REVENUE ARE DISMISSED AND APPEALS FILED BY THE ASSESSEE ARE ALLOWED, FOR STAT ISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2018. SD/- SD/- (MAHAVIR SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 21 ST AUGUST, 2018 PK/- 14 SHANKAR A GODDAM COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI