IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 440/HYD/2013 ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER, WARD 1, KHAMMAM SHRI RAMISHETTY NAGESWARA RAO, KHAMMAM. PAN AMGPR 9873C (APPELLANT) (RESPONDENT) REVENUE BY SHRI B. RAMA KRISHNA ASSESSEE BY SHRI Y.R. RAO DATE OF HEARING 09-10-2014 DATE OF PRONOUNCEMENT 15-10-2014 O R D E R PER SAKTIJIT DEY, J.M.: THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 28/01/2013 OF THE CIT(A), VIJAYAWADA PERTAINI NG TO AY 2005- 06. 2. THE DEPARTMENT HAS RAISED NINE GROUNDS. GROUND N O. 9 IS GENERAL IN NATURE, HENCE, NOT REQUIRED TO BE ADJUDI CATED. THE ONLY ISSUE WHICH ARISES OUT GROUNDS 1 TO 8 RELATE TO DEL ETION OF AN AMOUNT OF RS. 1,59,35,000 BY CIT(A), WHICH WAS ADDE D BY AO BY TREATING IT AS UNEXPLAINED CASH DEPOSITS. 3. BRIEFLY THE FACTS RELATING TO THE ISSUE IN DISPU TE ARE, ASSESSEE IS AN INDIVIDUAL. FOR THE AY UNDER DISPUTE, ASSESSE E ORIGINALLY DID NOT FILE ANY RETURN OF INCOME. SUBSEQUENTLY, IN RES PONSE TO A NOTICE 2 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO ISSUED U/S 148 OF THE ACT, ASSESSEE FILED HIS RETUR N OF INCOME ON 16/12/2009 DECLARING INCOME OF RS. 86,230. IN COURS E OF ASSESSMENT PROCEEDING, AO ON VERIFYING THE BANK ACC OUNT OF ASSESSEE MAINTAINED WITH ING VYSYA BANK, GANDHI CHO WK BRANCH, KHAMMAM BEARING ACCOUNT NO. 334010028519, NOTICED T HAT ASSESSEE HAD MADE CASH DEPOSITS AGGREGATING TO RS. 2,67,35,000 DURING FY 2004-05. WHEN AO CALLED UPON ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS MADE IN THE BANK ACCOUNT WI TH SUPPORTING EVIDENCE, ASSESSEE INITIALLY DID NOT COMPLY TO THE SAME. HOWEVER, IN RESPONSE TO SUMMONS ISSUED, ASSESSEE APPEARED BE FORE AO AND A STATEMENT WAS RECORDED FROM HIM. AS ALLEGED BY AO IN THE ASSESSMENT ORDER, EVEN DURING THE RECORDING OF THE STATEMENT, ASSESSEE DID NOT EXPLAIN THE SOURCE OF CASH DEPOSIT S IN THE BANK ACCOUNT EXCEPT STATING THAT HE CARRIED OUT REAL EST ATE BROKERAGE IN AND AROUND KHAMMAM TOWN AND IN CONSEQUENCE THERETO, HE USED TO RECEIVE THE CONSIDERATION AMOUNT FROM BUYERS OF REAL ESTATE TO BE PASSED ON TO THE SELLERS OF REAL ESTATE. IT WAS STATED THAT THE AMOUNTS RECEIVED FROM BUYERS WERE DEPOSITED IN THE BANK ACCOUNT AS IT WAS NOT SAFE TO KEEP THE CASH. WHEN AO CALLED UPON ASSESSEE TO FURNISH SUPPORTING EVIDENCE IN SUPPORT OF HIS CLAIM, ASSESSEE STATED THAT HE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT IN RESPECT OF THE REAL ESTATE TRANSACTION, HENCE, HE C ANNOT FURNISH THE NAMES AND ADDRESSES OF THE PERSONS FOR AND ON WHOSE BEHALF THE REAL ESTATE TRANSACTIONS ARE EFFECTED. NOT BEING CO NVINCED WITH THE EXPLANATION OF THE ASSESSEE, AO PROPOSED TO TREAT T HE PEAK DEPOSIT AS INCOME OF THE ASSESSEE AND ACCORDINGLY ISSUED A SHOW CAUSE NOTICE. IN RESPONSE TO THE SAID SHOW CAUSE NOTICE, ASSESSEE APART FROM REITERATING WHAT WAS STATED BY HIM EARLIER IN COURSE OF THE ASSESSMENT PROCEEDING, ALSO SUBMITTED THAT HE HAS N O OTHER INCOME EXCEPT WHAT IS DECLARED IN THE RETURN OF INC OME. FURTHER, IT WAS SUBMITTED THAT AS THERE IS A LAPSE OF FIVE YEAR S, ASSESSEE IS 3 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO NOT ABLE TO RECALL THE DETAILS OF INDIVIDUAL BUYERS FROM WHOM THE AMOUNTS WERE RECEIVED. HOWEVER, AO DID NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE ASSESSEE. AO OBSERVED THAT ONUS IS ON THE ASSESSEE TO PROVE THE SOURCE OF CASH DEPOSITS IN BA NK ACCOUNT. SINCE THE ASSESSEE COULD NOT PROVE THE SOURCE OF CA SH DEPOSIT WITH SUPPORTING EVIDENCE, HE TREATED THE PEAK OF DEPOSIT OF RS. 1,59,35,000 AS UNEXPLAINED INCOME AND ADDED IT TO T HE INCOME OF ASSESSEE FOR THE IMPUGNED AY. BEING AGGRIEVED OF SU CH ADDITION, ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 4. THE APPEAL PREFERRED BY ASSESSEE WAS DISMISSED B Y CIT(A) EXPARTE BY SUSTAINING THE ADDITION MADE BY AO. HOWE VER, THE ORDER PASSED BY THE CIT(A) WAS SET ASIDE BY THE ITAT WITH A DIRECTION TO PASS FRESH ORDER AFTER GIVING DUE OPPORTUNITY OF BE ING HEARD TO ASSESSEE. IN CONSEQUENCE TO THE DIRECTION OF ITAT, PROCEEDINGS WERE AGAIN TAKEN UP BY LEARNED CIT(A) BY ISSUING A NOTICE TO THE ASSESSEE. IN COURSE OF THE PROCEEDING BEFORE THE CI T(A), ASSESSEE APPEARED BEFORE THE CIT(A) AND FILED WRITTEN SUBMIS SIONS. AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE, CIT(A) ACC EPTED HIS CLAIM THAT THE DEPOSITS IN THE BANK ACCOUNT WERE MA DE OUT OF THE AMOUNTS RECEIVED FROM THE BUYERS OF REAL ESTATE AND CANNOT BE TREATED AS UNEXPLAINED INCOME OF ASSESSEE. HOWEVER, CIT(A) HELD THAT THE LOSS SHOWN BY ASSESSEE CANNOT BE ACCEPTED IN ABSENCE OF SUPPORTING EVIDENCE. CIT(A) OBSERVED THAT THE TOTAL TRANSACTIONS RELATING TO REAL ESTATE FOR THE YEAR UNDER CONSIDER ATION BEING RS. 2,78,44,000, GROSS BROKERAGE AT 1% CAN BE CONSIDERE D AT RS. 2,78,440, ON WHICH, THE NET INCOME AT 25% IS WORKED OUT AT RS. 69,610. THE RELEVANT OBSERVATION OF THE LEARNED CIT (A) IS EXTRACTED HEREUNDER FOR READY REFERENCE: 4. I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE AR, GONE THROUGH THE ASSESSMENT ORDER, APPELLATE ORDER OF MY PREDECE SSOR AND THE ORDER 4 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO OF THE TRIBUNAL. AS STATED IN THE SUBMISSIONS, THE APPELLANT IS AN ORDINARY PERSON ACTING AS A BROKER IN SALES OF VARIOUS PLOTS MADE BY REAL ESTATE PLAYERS IN AND AROUND THE CITY IN WHICH HE WAS LIVI NG DURING THAT PERIOD. AS STATED ALREADY, AS A GOOD SAMARITAN HE USED TO C OLLECT MONEY FROM PROSPECTIVE BUYERS AND KEPT THE SAME WITH HIS BANK ACCOUNT AND WHEN THE TRANSACTION IS ABOUT TO BE FINALIZED, IN ABOUT A DAY OR SO, HE USED TO WITHDRAW THE SAME AND GIVE IT TO REAL ESTATE PLAYER S, AND AS PER THE AR, HE USED TO GET 1 % BROKERAGE ON THE AMOUNT TRANSACT ED. AS SEEN FROM THE BANK ACCOUNT PRODUCED, THE ACCOUNT WAS OPENED O N 01.06.2004 WITH AN AMOUNT OF RS. 5,000 AND THEREAFTER BOTH CREDITS AND DEBITS OF CASH APPEARED. TOTAL VOLUME OF TRANSACTIONS AMOUNTED TO RS. 2,78,44,000. IT IS OBSERVED THAT ON 04.08.2004, THERE WAS PEAK CRED IT OF RS. 1,59,35,000, WHICH WAS SUBJECTED TO TAX BY THE AO, WHICH IS REMITTED BACK TO THE UNDERSIGNED TO RE-ADJUDICATE IT AS DIRE CTED BY THE TRIBUNAL. PEAK CREDIT THEORY IS ADOPTED WHEN THE APPELLANT IS UNABLE TO EXPLAIN THE ENTRIES AND WHEN THE SAME RELATES TO HIM, WHERE UNA CCOUNTED BANK ACCOUNT IS FOUND. HERE, IT IS NOT THE CASE OF THE R EVENUE THAT IT IS AN UNACCOUNTED BANK ACCOUNT OF THE APPELLANT AND THAT HE IS NOT ABLE TO EXPLAIN THE SAME. THERE IS NO MATERIAL CITED BY THE AO TO DISPROVE THE CONTENTION OF THE APPELLANT THAT THE DEBITS AND CRE DITS WERE ON BEHALF OF THE PURCHASERS OF THE PLOTS, ON WHICH HE WAS EARNIN G BROKERAGE OF 1 % ON THE AMOUNT TRANSACTED. SINCE, NOTHING CONTRARY W AS BROUGHT ON RECORD BY THE AO, THE CONTENTION OF THE APPELLANT I S ACCEPTABLE THAT THE ENTRIES WERE NOT BELONGING TO HIM. IT IS A POINT TO NOTE HERE THAT CLOSING BALANCE AS ON 21.03.2005 WAS NIL, WHICH WOULD STREN GTHEN THE APPELLANT THAT DURING THE YEAR UNDER REPORT, HE HAS ACTED AS A BROKER AND AT THE END OF THE YEAR, HE LEFT THE BUSINESS, AS IT WAS NO T LUCRATIVE. AS ADMITTED BY THE APPELLANT 1 % COMMISSION ON BUSINESS TRANSAC TED BEING RS.2,78,44,000/- (THE TURNOVER AS REPORTED IN THE R ETURN WAS RS. 1,50,00,000/-, BUT AS SEEN FROM BANK TRANSACTIONS, THE TOTAL TRANS ACTIONS ARE AT RS.2,78,44,000/-, WHICH IS TAKEN HERE AS TUR NOVER) THE GROSS BROKERAGE RECEIPTS SHOULD BE RS.2,78,440/- ON WHICH EXPENSES AS INCURRED HAVE TO BE ALLOWED. IT IS LEARNT FROM THE AR THAT IT IS A CASE WHERE THE APPELLANT HAS NOT MAINTAINED ANY RECORDS FOR HIS BROKERAGE BUSINESS. YET, THE APPELLANT HAS RETURNED A LOSS OF RS.75,000/-, WHICH IT APPEARS, WAS NOT SUPPORTED BY EVIDENCES. HAVING HEL D THAT LOSS SUSTAINED IN BROKERAGE BUSINESS IS NOT ACCE PTABLE FOR THE REASONS THAT EXPENSES INCURRED FOR SUCH LOSS WERE NOT BY THE APP ELLANT, THE PROBABLE INCOME FROM GROSS 'RECEIPTS UNDER BROKERAGE HAS TO BE CURBED OUT, BASED ON THE MARKET TRENDS, PROBABLE EXPENSES NEEDE D FOR CANVASSING SUCH BUSINESS ETC. IN MY CONSIDERED OPINION, HAVING REGARD TO FACTS, CIRCUMSTANCES AND THE EXPLANATIONS OFFERED BY THE A R, I AM OF THE OPINION THAT ENDS OF JUSTICE ARE MET IF THE BROKERA GE INCOME IS TAKEN AT 25% ON GROSS BROKERAGE RECEIPTS, WHICH WORKS OUT TO RS.69,610/- AND THE AO IS DIRECTED ACCORDINGLY. 5. THE LEARNED DR SUBMITTED BEFORE US THAT NEITHER BEFORE THE AO IN COURSE OF THE ASSESSMENT PROCEEDING NOR BEFOR E THE CIT(A), 5 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO ASSESSEE HAS PRODUCED A SINGLE EVIDENCE TO SUBSTANT IATE ITS CLAIM THAT THE DEPOSITS INTO THE BANK ACCOUNT WERE OUT OF THE AMOUNTS RECEIVED FROM BUYERS. LEARNED DR SUBMITTED THAT WHE N THERE ARE UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT, THE BURDE N IS ON THE ASSESSEE TO PROVE THE SOURCE OF SUCH DEPOSITS WHERE AS THE CIT(A) DELETED THE ADDITION ON THE WRONG PREMISE THAT THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO DISPUTE THE CONTE NTION OF THE ASSESSEE THAT THE DEPOSITS IN THE BANK ACCOUNT WERE OUT OF THE AMOUNTS RECEIVED FROM THE BUYERS OF REAL ESTATE. IN SUPPORT OF SUCH CONTENTION, LEARNED DR RELIED UPON A DECISION OF TH E HONBLE DELHI HIGH COURT IN CASE OF CIT VS. NOVA PROMOTERS AND F INLEASE PVT. LTD. [20120 342 ITR 169 (DELHI). 6. THE LEARNED AR, ON THE OTHER HAND, SUBMITTED THA T ASSESSEE IS A SMALL TIME BROKER AND USED TO ARRANGE LAND FOR BUYERS IN AND AROUND KHAMMAM DISTRICT. IT WAS SUBMITTED THAT HE C OLLECTED MONIES IN CASH FROM PROSPECTIVE BUYERS AND DEPOSITE D IT TEMPORARILY IN THE BANK ACCOUNT UNTIL THE DEAL IS M ATERIALIZED AND THE AMOUNT IS PAID TO SELLERS OF THE REAL ESTATE. I T WAS SUBMITTED THAT ASSESSEE ONLY EARNED HIS BROKERAGE INCOME ON S UCH TRANSACTIONS AND THE DEPOSITS WERE NOTHING BUT THE MONEY GIVEN BY BUYERS TO THE SELLERS FOR THE PURCHASE OF REAL ESTA TE. LEARNED AR SUBMITTED THAT HAD IT BEEN A CASE OF UNEXPLAINED IN COME OF ASSESSEE, THEN, ASSESSEE WOULD HAVE CERTAINLY INVES TED SUCH INCOME IN SOME ASSETS AS CLOSING BALANCE OF THE BAN K ACCOUNT AS ON 21/03/05 WAS NIL. HOWEVER, NO SUCH INVESTMENT IN ANY ASSET HAVE BEEN FOUND IN THE NAME OF THE ASSESSEE. IN TH ESE CIRCUMSTANCES, ASSESSEES EXPLANATION THAT CASH DEP OSITS WERE MADE OUT OF THE AMOUNTS RECEIVED FROM BUYERS OF REA L ESTATE WAS RIGHTLY ACCEPTED BY THE LEARNED CIT(A). 6 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WE LL AS OTHER MATERIALS ON RECORD. UNDISPUTEDLY, HUGE AMOUNT OF C ASH AGGREGATING TO RS. 2,67,35,000 WAS FOUND TO HAVE BE EN DEPOSITED IN ASSESSEES BANK ACCOUNT. IT IS ALSO A FACT ON RE CORD DURING THE ASSESSMENT PROCEEDING APART FROM CLAIMING THAT THE AMOUNTS WERE RECEIVED FROM THE BUYERS OF REAL ESTATE TO BE GIVEN TO THE SELLERS OF REAL ESTATE WHICH WAS TEMPORARILY PARKED IN THE BAN K ACCOUNT, ASSESSEE HAS NOT PRODUCED ANY OTHER SUPPORTING EVID ENCE. IN THESE CIRCUMSTANCES, AO PROCEEDED TO TREAT THE PEAK DEPOS IT AS ON 04/08/2004 AMOUNTING TO RS. 1,59,35,000 AS UNEXPLAI NED INCOME OF ASSESSEE. AS IT APPEARS FROM THE ORDER OF CIT(A) ON LY RELYING UPON THE VERSION OF THE ASSESSEE, CIT(A) DELETED THE ADD ITION BY ACCEPTING THE CLAIM THAT CASH DEPOSITS WERE MADE OU T OF THE AMOUNTS RECEIVED FROM BUYERS OF REAL ESTATE. HOWEVE R, ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCE TO SUBSTA NTIATE SUCH CLAIM BY WAY OF CONFIRMATION LETTERS EITHER FROM TH E BUYERS OF REAL ESTATE OR FROM THE SELLERS. ASSESSEE HAS NOT EVEN F URNISHED A SINGLE NAME AND ADDRESS OF EITHER BUYER OR SELLER O F THE PROPERTY OR PARTICULARS OF PROPERTY TRANSACTED THROUGH HIM. IN THESE CIRCUMSTANCES, ASSESSEES EXPLANATION CANNOT BE ACC EPTED ON THE FACE VALUE IN ABSENCE OF SUPPORTING EVIDENCES. FURT HERMORE, IT IS NOT UNDERSTOOD WHY AND HOW THE BUYERS WERE HANDING OVER THE SALE CONSIDERATION, THAT TOO IN CASH, TO ASSESSEE INSTEA D OF PAYING DIRECTLY TO SELLERS. AS PER THE ACCEPTED NORMS, IN A SALE TRANSACTION OF PROPERTY, SALE CONSIDERATION IS GENERALLY HANDED OVER TO THE SELLER AT THE TIME OF REGISTRATION DIRECTLY AND THE RE IS NO NECESSITY OF ROUTING IT THROUGH BROKER OR MEDIATOR. FURTHER, IT IS HARD TO BELIEVE THAT WHEN ASSESSEE IS CARRYING OUT TRANSACTIONS OF THE MAGNITUDE OF RS. 2,78,44,000 HE HAS FAILED TO REMEMBER A SINGLE NAME AND ADDRESS OF THE PERSON ON WHOSE BEHALF HE HAS CARRIE D OUT SUCH 7 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO TRANSACTION OR WHO HAS PAID MONEY TO HIM. IN THESE CIRCUMSTANCES, IN OUR VIEW, CIT(A) WAS NOT JUSTIFIED IN ACCEPTING ASSESSEES EXPLANATION WITH REGARD TO CASH DEPOSITS MADE IN TH E BANK ACCOUNT IN ABSENCE OF ANY SUPPORTING EVIDENCE BY PUTTING TH E ONUS ON AO. IN COURSE OF HEARING, LEARNED AR CONTENDED THAT HAD IT BEEN THE INCOME OF THE ASSESSEE THEN IT WOULD HAVE BEEN INVE STED BY HIM IN SOME OTHER FORM AS THE CLOSING BALANCE IN THE BANK ACCOUNT AS ON 21/03/05 WAS NIL. AS THE AO HAS NOT FOUND ANY OTHER INVESTMENTS IN THE NAME OF THE ASSESSEE IT IS TO BE ACCEPTED THAT THE DEPOSITS IN THE BANK ACCOUNT ARE NOT OF ASSESSEE. HOWEVER, WE D O NOT FIND MUCH FORCE IN SUCH CONTENTION. WHEN CASH DEPOSITS A RE FOUND IN THE BANK ACCOUNT OF THE ASSESSEE, ONUS IS ON THE AS SESSEE TO PROVE THE SOURCE OF SUCH DEPOSITS WITH ADEQUATE EVI DENCE. MERELY, BECAUSE AO DID NOT FIND ANY OTHER INVESTMENT IN THE NAME OF THE ASSESSEE CANNOT BE THE ONLY REASON TO CONCLUDE THAT DEPOSITS IN THE BANK ACCOUNTS DO NOT BELONG TO THE ASSESSEE EVE N IN ABSENCE OF ANY OTHER SUPPORTING EVIDENCE. AS THE LEARNED CI T(A) HAS DELETED THE ADDITION WITHOUT PROPER SUPPORTING EVID ENCE, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO V ERIFY ASSESSEES CLAIM WITH REGARD TO DEPOSITS MADE IN THE BANK ACCO UNT. IF THE ASSESSEE IS ABLE TO ESTABLISH THE FACT WITH SUPPORT ING EVIDENCE THAT THE DEPOSITS IN THE BANK ACCOUNT ARE OUT OF THE AMO UNTS RECEIVED FROM THE BUYERS OF REAL ESTATE, THEN, ASSESSES CLA IM CAN BE ACCEPTED AND NO ADDITION COULD BE MADE. AO IS DIREC TED TO EXAMINE THE ENTIRE ISSUE AGAIN AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE IN THE MATTER. 8 ITA NO. 440/HYD/2013 SHRI RAMISHETTY NAGESWAR RAO 8. IN THE RESULT, DEPARTMENTS APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER, 2014 SD/- SD/- (P.M. JAGTAP) (SAKTIJIT DEY) ACCOUNTANT MEMBER JU DICIAL MEMBER HYDERABAD, DATED: 15 TH OCTOBER, 2014 KV COPY TO:- 1) ITO, WARD - 1 AAYAKAR BHAVAN, BEHIND KINNERASAN I THEATRE, HYDERABAD 2) SHRI RAMISHETTY NAGESWAR RAO, H.NO. 5-94, BEHIND PETROL BUNK, WARANGAL ROAD JUNCTION, EDULAPURAM, KHAMM AM 3) CIT(A), VIJAYAWADA 4) CIT, VIJAYAWADA 5)THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDER ABAD.