Chandrakant Keshavlal Vora, Bhuj V. The Income Tax Officer, Ward-2, Bhuj

ITA 469/RJT/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0066 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARVIND SONTAKKE
• Assessee Lawyers: DM RINDANI
• Keywords: Unexplained cash credit; Gift; Corroborative evidences
• Section: 143(3); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] CHANDRAKANT KESHAVLAL VORA, M - 14, WHITE BUILDING, VANIAWAD, BHUJ PAN: ABAPV4336M (APPELLANT) VS THE ITO, WARD - 2, BHUJ (RESPONDENT) REVENUE BY : S H RI ARVIND SONTAKKE , SR. D . R. ASSESSEE BY: S H RI D.M. RINDANI , A.R. DATE OF HEARING : 15 - 1 1 - 2 016 DATE OF PRONOUNCEMENT : 25 - 11 - 2 016 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2009 - 10 , AR ISES FROM ORDER O F THE CIT(A) - II, RAJKOT DATED 17 - 09 - 2013 IN APPEAL NO. CIT(A) - II / RJT/0190/11 - 12 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT , 1961; IN SHORT THE ACT . I T A NO . 469 / RJT /20 13 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF 11,34,700/ - ON ACCOUNT OF CA SH DEPOSITS IN BANK ACCOUNT AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME - TAX ACT, 1961. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF 1,00,000/ - BEING THE A MOUNT RECEIVED FROM SMT. MANJULABEN THACKER AS UNSECURED LOAN AND THEREBY TREATING IT AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE INCOME - TAX ACT, 1961. 3. IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 1 , 47 , 059/ - WAS FILED BY THE ASSESSEE ON 18/0 9/2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTICED ON THE BASIS OF INFORMATION G ATHERED THROUGH AIR THAT THE AS SES SEE HAS MADE CASH DEPOSITS OF RS . 34 , 700/ - AND RS. 10,33,620/ - IN THE A/C NO. 004842 WITH THE BHUJ MERCAN TILE CO - OP. BANK , BHUJ BRANCH AND IN THE A/C NO. 007142 RESPECTIVELY. THE FIRST BANK A/C WAS HELD BY THE ASSESSEE JOINTLY WITH HIS WIFE SMT. ANILABEN C. VORA AND THE SECOND MENTIONED BANK A/C WAS IN HIS SINGLE NAME . THE ASSSESSEE WAS GIVEN OPPORTUNITIES T O EXPLAIN THE SOURCES OF CASH ALONG WITH SUPPORTING EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. BUT THE ASSSESSEE FAILED TO EXPLA I N T HE SOURCES OF THESE CASH DEPOSITS AND SIMPLY FURNISHED THE COPY OF BANK STATEMENT, THEREFORE, THE ASSESSING O FF ICER HAS ADDED THESE CASH DEPOSIT S TO THE TOTAL INCOME OF THE ASSESSEE. I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 3 4. THE FACTS OF THE CASE PERTAINING TO THE OTHER ADDITION OF RS. 1 , 0000 0 / - ON WHICH THE ASSSESSEE HAS FILED APPEAL ARE THAT THE ASSESSING OFFICER NOTICED DURING THE COURSE OF ASSES SMENT PROCEEDINGS THAT THE ASSESSEE HAS RECEIVED UNSECURED LOAN OF RS. 1 , 00000/ - FROM SMT. MANJULABEN THACKER. THE AMOUNT OF RS. 1 , 0000 0 / - WAS ADDED TO THE TOTAL INCOME BY THE ASSESSING O FFICER AS THE ASSESSEE FAILED TO PROVIDE ANY PROOF LIKE IDENTITY OF PERSON, CREDIT WORTHINESS, HIS ACTIVITIES, PAN , RELATION WITH THE ASSSESSEE AND GENUINENESS OF THE TRANSACTIONS. 5. AGGRIEVED AGAINST THE IMPUGNED ORDER OF THE ASSESSING O FFICER, THE ASSSESSEE HAS FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A) . THE LD. COMMISSIONER OF INCOME TAX(A) HAS SUSTAINED THE ADDITION OF CASH DEPOSITED OF RS . 11,34,700/ - . THE DECISION OF THE LD. COMMISSIONER OF INCOME TAX(A) ON THIS IS REPRODUCED AS UNDER: - A/C. NO. 004842 IN BCMB 9.5 IT IS SEEN THAT THE APPELLANT HAD DEPOSITED RS.11,34,700/ - IN THIS ACCOUNT. THE APPELLANT HAD NOT OFFERED ANY EXPLANATION BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE COURSE OF REMAND PROCEEDINGS, THE APPELLANTS STATEMENT I \ VAS RECORDED U/S.131 BY THE A.O. IN RE PLY TO Q, NO.4., THE APPELLANT EXPLAINED THAT THE SOURCE OF DEPOSIT IS CASH WITHDRAWAL FROM THE - BANK ACCOUNT AND - GIFTS AND LOANS RECEIVED FROM FRIENDS AND RELATIVES. THE APPELLANT FURTHER EXPLAINED THAT IT USED TO PAY ADVANCE PREMIUM OF LIC OF CLIENTS AND WHEN THE CLIENTS PAID THE REGULAR PREMIUM, THE SAME WAS DEPOSITED IN THE BANK - ACCOUNT. HOWEVER, NO SUCH LIST OR DETAILS OF THE CLIENTS ON WHOSE BEHALF THE ADVANCE LIC - PREMIUM HAS BEEN PAID HAS BEEN MAINTAINED BY THE APPELLANT. IN THE REMAND REPORT, THE A. O. THEREFORE OPINED THAT THE ORDER OF - THE A.O. SHOULD BE UPHELD. I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 4 IN ITS REJOINDER TO THE REMAND REPORT, THE APPELLANT CONTENDED THAT THE CASH DEPOSITS IN THE HANK ACCOUNT NO.4842 HAVE BEEN MADE FROM CASH ON HAND AVAILABLE WITH THE APPELLANT AND HAS BEEN DULY REFLECTED IN THE CASH BOOK MAINTAINED BY THE APPELLANT AND THE A.O. HAS NOT DOUBTED THE ENTRIES IN THE CASH BOOK. THE APPELLANT S CONTENTION IS CAREFULLY CONSIDERED. HE HAS ALSO GIVEN A CHART SHOWING THE CASH AVAILABLE ON HAND FROM WHICH .THE RESPEC TIVE DEPOSIT 'HAS BEEN MADE. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE CASE RECORDS OF THE APPELLANT WERE CALLED FOR AND EXAMINED. IT IS SEEN THAT NOWHERE THE APPELLANT HAS SUBMITTED THE DETAILS OF THE CASH BOOK BEFORE THE A.O. DURING ASSESSMENT PROC EEDINGS. EVEN THE SAME HAS NOT BEEN PRODUCED BEFORE THE A.O. DURING THE REMAND PROCEEDINGS. THE EXPLANATION GIVEN BY THE APPELLANT IS ONLY AN AFTERTHOUGHT TO COVER UP THE ABSENCE OF ANY COGENT EXPLANATION ABOUT THE SOURCE OF THE CASH DEPOSITS. IT HAS ALSO BEEN CLEARLY STATED BY THE APPELLANT IN ANS. NO.4 OF THE STATEMENT RECORDED U/S. 131 THAT THE CASH DEPOSITS ARE OUT OF GIFTS FROM RELATIVES AND FRIENDS, LOANS AND LIC PREMIUM RECEIPTS, THE EXPLANATION GIVEN BY THE APPELLANT IS NOT AT ALL SATISFACTORY AND C ONVINCING. IT IS HELD THAT THE SOURCE OF THE CASH DEPOSITS IN THIS BANK ACCOUNTS NOT PROPERLY EXPLAINED. THE ADDITION MADE BY THE A.O. REGARDING THE CASH DEPOSITS IN THIS ACCOUNT IS CONFIRMED. 6. THE SECOND ISSUE PERTAINING TO LOAN OF RS. 1 , 00000/ - OBT AINED BY THE ASSESSEE FROM SMT. MANJULABEN THAKER HAS ALSO BEEN CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX(A). THE DECISIOIN OF THE LD. COMMISSIONER OF INCOME TAX(A) ON THIS ISSUE IS REPRODUCED AS UNDER: 11. THE APPELLANT HAD OBTAINED THE LOAN OF RS .1,00,000/ - FROM SMT. MANJULABEN THAKER. NO EVIDENCE WAS PROVIDED BY THE - APPELLANT BEFORE THE A.O. EXCEPT SIMPLE COPY OF THE LEDGER ACCOUNT OF THE PERSON. NO OTHER DETAILS WERE PROVIDED BY THE APPELLANT TO PROVE THE IDENTITY OF THE PERSON GIVING THE LOAN, HIS CAPACITY AND GENUINENESS OF THE TRANSACTION. AS THE PRIMARY ONUS WAS NOT DISCHARGED BY THE APPELLANT, THE A.O. TREATED THIS AS UNEXPLAINED CASH CREDIT U/S.68 AND ADDED IT TO THE TOTAL INCOME. I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 5 11.1 DURING THE COURSE OF REMAND PROCEEDINGS, THE APPELLANT SUBMITTED COPY OF ACKNOWLEDGEMENT OF THE IT RETURN FILED BY THE DEPOSITOR, COPY OF BANK ACCOUNT SHOWING 'THE LOAN GIVEN BY ACCOUNT - PAYEE CHEQUE AND DETAILS OF HER PAN. IT WAS ALSO CONTENDED BY THE APPELLANT THAT THESE DETAILS WERE PRODUCED BEFORE THE A;Q , HI THE REMAND REPORT, THE. A.0. HAS OPINED THAT THESE ADDITIONAL DETAILS SHOULD NOT BE ENTERTAINED. 11.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSION GIVEN BY THE APPELLANT AND THE REMAND REPORT AS WELL AS THE CASE RECORDS. THE APPELLANT HAS NOT PROVIDED A COPY OF THE BANK ACCOUNT OF SMT. MANJULABEN THACKER. THEREFORE, NOTHING HAS BEEN PROVED CONCLUSIVELY BY THE APPELLANT REGARDING THE CAPACITY OF THE ABOVE PERSON TO ADVANCE THE LOAN. THE APPELLANT HAS ALSO TILED A COPY OF IT RETURN WHICH IS CLAIMED TO BE OF THE ABOVE LADY. HOWEVER, IT IS SEEN FROM THE COPY OF THE ACKNOWLEDGEMENT THAT THE NAME OF THE PERSON IS MANJULA ARJUNBHAI REKUNDAL AND NOT MANJULA THACKER. THE APPELLANT HAS NOT PROVED THE TWO PERSONS TO BE THE SAME. IT IS THUS OPINED THAT THE APPELLANT HAS NOT BEEN ABLE TO DISCHARGED ITS PRIMARY ONUS OF PROVING THE IDENTITY OF THE CREDITOR AND HER CAPACITY TO ADVANCE THE LOAN. THE A.O'S ACTION OF TREATING THIS AS UNEXPLAINED CASH CREDIT U/S. 68 IS HELD TO BE PROPER AND CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 7. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US, THE LD. COUNSEL CONTENDED THAT THE LD. COMMISSIONER OF INCOME TAX(A) HAS ERRED IN SUSTAINING THE ADDITION MADE BY THE A SSESSING O FFICER. HE ALSO SUBMITTED PAPER BOOK CONTAINING, COPY O F REMAND REPORT, COPY OF STATEMENT ON CASH I N HAND, COPY OF BALANCE SHEET, SUMMARY OF CASH ACCOUNT, COPY O F RETURN OF DEPOSITOR, COPY OF LETTER DATED 24/08/2011 TO ASSESSING O FFICER. ON THE OTHER HAND , THE LD. D.R. RELIED ON THE ORDER OF THE LD. COMMISS IONER OF INCOME TAX(A). 8. WE HAVE HEARD WITH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY . REGARDING ISSUE NO. ONE OF C A SH DEPOSIT OF RS . I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 6 11,34,700/ - IN THE BANK A/C NO. 4842 JOINTLY MAINTAINED BY THE ASSESSEE ALONG WITH HIS WIFE SMT. ANIL ABEN C VORA. W E HAVE NOTICED THAT THE ASSSESSEE WAS ASKED TO EX PLAIN THE SOURCE OF CASH DEPOSIT AND THE ASSESSEE HAD SIMPLY PRODUCED THE COPY OF BANK STATEMENT WITHOUT FURNISHING THE RELEVANT COGENT EVIDENCES. THE LD. COMMISSIONER OF INCOME TAX(A) HAS AG AIN PROVIDED OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THESE CASH DEPOSITS BY SENDING THE MATTER TO THE A SSESSING O FFICER FOR REMAND REPORT. DURING THE REMAND REPORT , THE ASSESSEE HAS STATED THAT THE SOURCE OF CASH DEPOSIT IS CASH WITHDRAWAL FROM BANK ACCOUN T, GIFT LOAN, ADVANCE PREMIUM OF LIC RECEIVED FROM THE CLIENTS. WE HAVE PERUSED THE MATERIAL ON RECORD AND OBSERVED THAT ASSSESSEE HAS NOT FURNISHED THE SUPPORTING EVIDENCES TO HIS CLAIM THAT DEPOSIT S WERE MADE FROM CASH WITHDRAWAL, LIC PREMIUM, GIFT LOAN . THE ASSESSEE FAILED TO FURNISH HIS LIST OF CLIENT S WITH SUPPORTING EVIDENCES FROM WHOM THE LIC PREMIUM PAYMENT WERE RECEIVED. SIMILARLY, HE COULD NOT FURNISH THE SUPPORTING EV IDENCES TO THE OTHER SOURCES F R O M WHICH HE CLAIMED THAT CASH DEPO S IT WERE MAD E TO THE ABOVE STATED BANK A/C WHICH WAS DE T ECTED ON THE BASIS OF AIR INFORMATION. IT IN VIEW OF ABOVE STATED FACTS AND CIRCUMSTANCES WE CONSIDRED THAT THE ASSESSEE FAILED TO EXPLAIN THE GENUINENESS OF THE SOURCE OF THE CASH DEPOSITS IN TH E ABOVE REFER RED BANK ACCOUNT , THEREFORE, WE UPHOLD THE FINDINGS OF THE LD.CIT(A) ON THIS ISSUE. 9 . REGARDING SECOND ISSUE THE ASSESSING OFFICER HAS NOTICED THAT THE ASSESSEE RECEIVED UNSECURED LOAN OF RS. 1 , 0000/ - FROM SMT. I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 7 MANJULABEN THAC KER. THE ASSESSING O FFICE R HAS ADDED THIS AMOUNT TO THE TOTAL INCOME A S THE ASSESSEE FAILED TO FURNISH PROOF LIKE IDENTITY OF PERSON, CREDITWORTHINESS, PAN , RELATION WITH THE ASSESSEE IN ORDER TO PROVE THE GENUINENESS OF THESE TRANSACTIONS. TO PROVIDE MORE OPPORTUNITY TO THE ASSE SSEE , THE LD. COMMISSIONER OF INCOME TAX(A) HAS CALLED REMAND REPORT FROM THE A SSESSING O FFICER. DURING THE REMAND REPORT, THE ASSESSEE HAS FURNISHED COPY OF ACKNOWLEDGMENT OF THE I.T. RETURN, BANK A/C AND PAN. THE LD. COMMISSIONER OF INCOME TAX(A) HAS S USTAINED THE ADDITION BECAUSE THE ASSESSEE HAS NOT PROVIDED COPY OF BANK ACC OUNT OF SMT. MANJULABEN THACKER AND NO SUPPORTING EVIDENCE TO PROVE THE CREDITWORTHINESS. IT WAS STATED THAT THE ACKNOWLEDGMENT OF RETURN WAS IN THE NAME OF MANJUALA ARJUNB H A I R AY KUNDAL AND NOT MAJULA THACKER. WE HAVE PERUSED THE MATERIAL ON RECORD CAREFULLY AND OBSERVED THAT THE ASSESSEE HAS NOT PROVIDED ANY CLARIFICATION THAT THE ACKNOWLEDGEMENT OF I.T. RETURN FILED WAS IN THE NAME OF MANJULA ARJUN RAYKUNDAL WHEREAS THE NAME OF THE LENDER AS PER THE R ECO RD OF THE ASSESSEE WAS OF MANJULA THA CKER. THE ASSESSEE HAS NOT FURNISHED THE BALANCE SHEET OF THE LENDER TO SUPPORT THAT THE UNSECURED LOAN WAS GRANTED BY HER. WE OBSERVED THAT THE LD. COMMISSIONER OF INCOME TAX(A) I S JUSTIFIED IN STATING THAT THE IDENTITY OF THE CREDITOR AND HER CAPACITY TO ADVANCE THE LOAN WAS NOT PROVED. THEREFORE, IN VIEW OF THE ABOVE STATED FACTS AND FINDINGS, WE UPHOLD THE DECISION OF LD. CIT(A) ON BOTH THE ISSUES AS STATED (SUPRA) TO SUSTAIN THE ADDITI ON S AS THE ONUS CAST UPON THE ASSESSEE TO PRODUCE RELEVANT EXPLANATION AND EVIDENCES WAS NOT DISCHARGED BY THE ASSESSEE . I.T.A NO. 469 /RJT /20 13 A.Y. 2009 - 10 PAGE NO CHANDRAKANT KE SHAVLAL VORA VS. ITO 8 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORD ER PR ONOUNCED IN THE OPEN C OUR T ON 25 - 11 - 201 6 SD/ - SD/ - (RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 25 /11 /2016 / COPY OF ORDER FORWARDED TO: - 1. ASSESS EE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT