Amit Kumar Motwani, Bhubaneswar V. ITO, Bhubaneswar

ITA 473/CTK/2013

• Counselvise Citation: 47322114 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 22-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2013
• Court: TRIBUNAL
• Assessee Lawyers: K K NATH LEARNED
• Keywords: Income from undisclosed sources; Corroborative evidences

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK [ , . . , BEFORE SHRI SUNIL KUMAR YADAV , J M & SHRI B.P.JAIN , A M ./ ITA NO. 473/CTK /20 1 3 ( [ [ / ASSESSMENT YEAR :20 08 - 09 ) SRI AMIT KUMAR MOTWANI, PLOT NO.N/2/155, IRC VILLAGE, NAYAPALI BHUBANESWAR PAN/GIR NO. : AAUPM 1877 H ( / APPELLANT ) VERSUS ITO, WARD - 2(3), BHUBANESWAR . ( / RESPONDENT ) SHRI P.K.MISHRA , LEARNED COUNSEL FOR THE ASSESSEE. SHRI K.K.NATH, LEARNED DR FOR THE REVENUE. . / DATE OF HEARING : 2 2 ND MAY , 201 5 / DATE OF PRONOUNCEMENT 26 TH MA Y ,2015 / O R D E R PER SUNIL KUMAR YADAV (J .M) : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - II, BHUBANESWAR DATED 25 - 7 - 2013 FOR THE ASSESSMENT YEAR 2008 - 09. DURING THE COURSE OF HEARING THE ASSESSEE HAS FILED THE REVISED GROUNDS OF APPEAL AND T HE SAME ARE TAKEN ON RECORD. FOR THE SAKE OF REFERENCE, WE EXTRACT THE SAME AS UNDER : - 1. FOR THAT, THE IMPUGNED ORDERS PASSED BY THE FORURNS BELOW ARE NOT JUST AND PROPER UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND HENCE IS LIABLE TO BE QUAS HED IN THE INTEREST OF JUSTICE. ITA NO.473/13 2 2. FOR THAT, THE LEARNED C.I.T(A) HAS COMMITTED GROSS ERROR IN FACT AS WELL AS OF LAW IN IGNORING THE EXPLANATION AND EVIDENCES ADDUCED BY THE ASSESSEE, WHILE RESTRICTING THE ADDITION OF RS.1,65,683.22 TO RS.1,18,023.22. 3. FOR THAT, THE LEARNED C.I.T(A) SHOULD NOT HAVE IGNORED THE EXPLANATION AND EVIDENCES OF THE ASSESSEE AND SHOULD NOT HAVE CONFIRMED THE ADDITION OF RS.15,69, 530.00 MADE BY THE LEARNED A.O. 4. FOR THAT, WHEN YOUR ASSESSEE EXPLAINED EACH AND EVERY ENTR Y OF THE BANK ACCOUNTS, THE LEARNED C.I.T(A) SHOULD NOT HAVE HELD THAT THE ENTRIES IN THE BANK ACCOUNT REMAINED UNEXPLAINED. 5. FOR THAT, SHEIK TAHIR APPEARE D AND ADMITTED THAT THE TRANSACTION BELONGED TO HIM, THE LEARNED C.I.T(A) SHOULD NOT HAVE CONFIRM ED THE ADDITION IN THE HAND OF THE ASSESSEE AS MADE BY THE LEARNED A.O. 6. FOR THAT WHEN THE ENTRIES IN THE BANK ACCOUNT CLEARLY REPRESENTS THE BUSINESS TRANSACTION, ,THE LEARNED AO AS WELL AS THE LEARNED CIT(A) SHOULD NOT HAVE TREATED THE ENTIRE TRANSACT ION AS INCOME OF THE ASSESSEE IGNORING THE FACT THAT THE APPELLANT/ ASSESSEE HAS NO SUCH CAPACITY TO EARN SUCH A HUGE INCOME DURING THE YEAR. 7. FOR THAT, THE LEARNED C.I.T(A) AS WELL AS THE LEARNED A.O SHOULD NOT HAVE IGNORED THE WITHDRAWALS WHILE CONSI DERING THE DEPOSITS AS THE INCOME OF THE ASSESSEE. 8. FOR THAT THE TREATMENT OF DEPOSITS OF RS.15,69,530.00 AS INCOME OF THE ASSESSEE/ APPELLANT BY THE LEARNED C.I.T(A) IS NOT SUSTAINABLE IN THE EYE OF LAW AS SUCH THE SAME NEEDS TO BE DELETED IN THE INTE REST OF JUSTICE. 2. THOUGH VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE BUT MAINLY TWO GROUNDS ARE INVOLVED THEREIN ONE IS WITH REGARD TO ADDITION OF RS. 1,18,023.22 ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES AND THE OTHER IS OF RS.15,69,530/ - A S UNDISCLOSED SOURCES ON ACCOUNT OF CASH DEPOSITS IN THE BANK. WITH REGARD TO AMOUNT OF RS.1,65,683 AND RS.1, 17,824/ - , IT IS NOTED THAT CERTAIN CREDIT ENTRIES WERE FOUND IN THE BANK ITA NO.473/13 3 ACCOUNTS. THESE ENTRIES WERE EXPLAINED BY THE ASSESSEE BUT IT WAS NOT ACC EPTED BY THE AO AND HE MADE ADDITION OF RS. 1,65,485/ - . AGAINST WHICH APPEAL WAS FILED BEFORE THE CIT(A) AND THE CIT(A) PARTLY ACCEPTED THE CONTENTION OF THE ASSESSEE AND RESTRICTED THE ADDITION OF RS. 1,17,824/ - . AGAINST WHICH APPEAL HAS BEEN PREFERRED BEFORE US EXPLAINING THE INDEPENDENT ENTRIES. THE DETAILS OF ENTRIES RESULTING INTO ADDITION OF RS. 1,17,824/ - ARE EXTRACTED HEREUNDER : - AMT (IN RS.) I. . REIMBURSEMENT EXPENSES 21,407.22 II . CASH DEPOSIT 60,000.00 III . ON ACCOUNT OF CHEQUE BOUNCED (S BI) 2810.00 IV . OTHERS 2050.00 V . TRANSFER FROM BANK OF BORODA 207.00 VI . INTEREST 481.00 VII . DEPOSIT THROUGH BANK TRANSFER 30,000.00 VIII . INCENTIVE AND COMMISSION 869 .00 TOTAL 1,17,824.22 3. DURING THE COURSE OF HEARING OF THE APPEAL, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SMALL AMOUNTS WERE CREDITED IN THE BANK ACCOUNT AGAINST REIMBURSEMENT EXPENSES, CASH DEPOSITS AND INTEREST RECEIVED FROM RESPECTIVE BANK. BEFORE THE CIT(A) ASSESSEE HAS F IL ED ALL THE RELEVANT EXPLANATION, B UT HE HAS NOT ACCEPTED THE SAME. WRITTEN SUBMISSION WAS ALSO FILED BEFORE US AND FROM CAREFUL PERUSAL OF THE SAME, ITA NO.473/13 4 WE FIND THAT ASSESSEE HAS SATISFACTOR IL Y EXPLAINED THE DIFFERENT CREDIT ENTRIES ON DIFFERENT DATES. ACCOR DINGLY, WE DELETE THE SAME. 4. SO FAR AS OTHER GROUND IS CONCERNED, WE FIND THAT ADDITION OF RS. 15,69,530/ - WAS MADE BY THE AO ON ACCOUNT OF VARIOUS DEPOSITS FOUND IN HIS BANK ACCOUNT. LD. COUNSEL HAS CONTENDED THAT THE DEPOSITS WERE MADE BY HIS FRIEND MR . SHAIKH TAHIR , WHO WAS DOING A BUSINESS. HE WAS ALSO EXAMINED BY THE AO BUT BEING NOT CONVINCED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE, THE AO TREATED THE SAME AS UNEXPLAINED DEPOSITS IN THE BANK AND MADE THE ADDITION OF THE SAME U/S.69 OF THE ACT . THE RELEVANT OBSERVATIONS OF THE AO IN THIS REGARD ARE EXTRACTED HEREUNDER : - THE A/R OF THE ASSESSEE ALSO PRODUCED MR. TAHIR ON 12.11.2010 TO GIVE WITNESS IN SUPPORT OF HIS SUBMISSION. ACCORDINGLY, THE STATEMENT WAS RECORDED. TAHIR COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN RESPECT OF 1. RECEIVING THE DEBIT CARD FROM SHRI MOTWANI & KEEPING IT WITH HIS POSSESSION FOR THE RELEVANT PERIOD. 2. HIS BUSINESS TRANSACTION. 3. DETAILS OF THE PERSONS MAKING DEPOSIT IN THE A/C OF SHRI MOTWANI EVEN AF TER GOING THROUGH THE BANK STATEMENTS SHOW TO HIM. MOREOVER, TAHIR DOES NOT HAVE ANY SPECIFIC BUSINESS PREMISES - AS PER HIS STATEMENT. HE WAS ONLY RECEIVING THE ORDERS OVER TELEPHONE FROM VARIOUS PARTIES & AFTER RECEIPT OF MONEY FROM THE PARTIES THROUG H THE A/C OF S HRI MOTWANI, HE WAS SUPPLYING THEM AUTO PARTS THROUGH LOCAL BUS SERVICE. SHIKH TAHIR ALSO COULD NOT IDENTIFY MOST OF THE PERSONS INCLUDING ONE AMIT KU (SIGNIFIES THE NAME OF THE ASSESSEE) FIGURED IN THE BANK STATEMENT. IN VIEW OF THIS, THERE IS NO REALIABILITY OF THE ITA NO.473/13 5 SUBMISSION MADE BY THE ASSESSEE THAT HIS BANK A/C WAS OPERATED BY SHIKH TAHIR DURING THE RELEVANT PERIOD. MOREOVER IT IS ALSO NOT A RELIABLE FACT THAT THE ASSESSEE HAD GIVEN HIS DEBIT CARD WITH PASSWORD TO HIS FRIEND S HIKH TAHIR ON GOOD FAITH WHICH WAS WITH THE POSSESSION OF SHRI TAHIR FOR A TOO LONG PERIOD I.E. MORE THAN ONE YEAR. THEREFORE, THE FACTS STATED BY MR. TAHIR IS NOTHING BUT COLORABLE DEVICE TO EXPLAIN THE BOGUS DEPOSITS IN THE BA N K A/C OF THE ASSESSEE. BEFORE FINALI ZATION OF THE PROCEEDING, THE ASSESSEE WAS ALSO GIVEN ANOTHER OPPORTUNITY THROUGH LETTER NO.44685 DT.16.11.2010 TO SHOW CAUSE AS TO WHY THE CASH DEPOSITS OF RS.15,69,530/ - FIGURED IN HIS A/C WILL NOT BE TREATED AS H IS INCOME FROM UNDISCLOSED SOURCES. TH E SUBMISSION OF THE ASSESSEE IN COMPLIANCE TO THE ABOVE LETTER WAS RECEIVED ON 25. 11 .2010 WHICH IS ON L Y REPETITION OF HIS EARLIER CONTENTION. THE ASSESSEE IS THE OWNER OF THE BANK ACCOUNT AND THE ONUS IS WITH HIM TO EXPLAIN THE NATURE AND SOURCE OF CASH DE POSITS MADE IN THE SAID BANK ACCOUNT. THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS BY GIVING THE ABOVE EXPLANATIONS WHICH ARE TOTALLY UNBELIEVABLE AND HAVING NO SUPPORTING EVIDENCE. THEREFORE, THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE IN VIEW OF T HE ABOVE THE TOTAL TAX DEPOSITS OF RS. I5,69,530/ - IS TREATED AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES BEING UNEXPLAINED CASH DEPOSITS AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. RS.15,69,530/ - 5. AGGRIEVED THEREBY THE ASSE SSEE PREFERRED APPEAL BEFORE THE CIT(A) BUT DID NOT FIND FAVOUR WITH HIM. NOW, THE ASSESSEE IS BEFORE US AND REITERATED ITS CONTENTION. 6. LD. DR , ON THE OTHER HAND , SUBMITTED THAT ASSESSEE IS A SALARIED EMPLOYEE AND DISCLOSED HIS INCOME EXCLUSIVELY FROM HIS SALARY. THEREFORE, IT CANNOT BE PRESUMED AND HE IS NOT AWARE OF THE CONSEQUENCE ON ACCOUNT OF MAKING DEPOSIT IN SAVINGS ACCOUNT. THEREFORE, THE ORDER OF THE CIT(A) DESERVES TO BE CONFIRMED. ITA NO.473/13 6 7. HAVING CAREFULLY EXAMINED THE ORDERS OF THE AUTHORITIES B ELOW IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY ASSESSEE IS A SALARIED EMPLOYEE AND, THEREFORE, HE IS HAVING HIS BANK ACCOUNT AT BHUBANESWAR. WHEN SUBSTANTIAL AMOUNT WAS FOUND TO HAVE BEEN DEPOSITED IN HIS BANK ACCOUNT, ASSESSEE WAS A SKED TO EXPLAIN . T HEN IT WAS EXPLAINED BY THE ASSESSEE THAT THIS CASH WAS DEPOSITED BY HIS FRIEND IN HIS ACCOUNT WHILE DOING HIS BUSINESS. THE AO EXAMINED THE FRIEND OF THE ASSESSEE SHRI SHIKH TAHIR AND WAS OF THE VIEW THAT MR. TAHIR COULD NOT IDENTIFY MOST OF THE PERSONS FROM WHOM HE HAS TAKEN MONEY. ACCORDING TO HIM , MR. TAHIR DID NOT HAVE ANY SPECIFIC BUSINESS PREMISES. HAVING CAREFULLY EXAMINED THE STATEMENT OF MR. TAHIR, THE AO WAS OF THE VIEW THAT THE EXPLANATION OF THE ASSESSEE IS NOT RELIABLE THA T CASH WAS DEPOSITED BY HIS FRIEND. BE FORE THE CIT(A) EXCEPT PLACING A RELIANCE UPON THE EARLIER SUBMISSION, NO OTHER EVIDENCE WAS FILED. SIMILAR IS THE CASE BEFORE US. THE ASSESSEES MAIN PLEA IS THAT HIS BANK ACCOUNT WERE OPERATED BY HIS FRIEND WHILE DO ING HIS BUSINESS . T HE ACCOUNT WAS WITH THE BANK SITUATED IN BHUBANESWAR WHERE THE ASSESSEE AND HIS FRIEND WERE STAYING. IT HAS NOT BEEN EXPLAINED TO US AS TO WHY THE ASSESSEES FRIEND DID NOT OPEN A SEPARATE BANK ACCOUNT TO DO HIS BUSINESS AND WHAT WAS THE NEED TO USE THE BANK ACCOUNT OF THE ASSESSEE FOR TRANSACTING ITS BUSINESS BY HIS FRIEND. SINCE THE EXPLANATION FURNISHED BY THE ASSESSEE IS NOT PLAUSIBLE, WE ARE OF THE VIEW THAT MONEY DEPOSITED IN THE BANK ACCOUNT BELONGS TO ASSESSEE AND THE AO HAS RIGH TLY MADE THE ADDITION OF ITA NO.473/13 7 THE SAME IN HIS HAND. WE THEREFORE, FIND NO MERIT IN THIS REGARD AND ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT(A). 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 05 / 201 5 . SD/ - SD/ - ( . . ) ( B. P. JAIN ) ( ) ( SUNIL KUMAR YADAV) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 26 /0 5 / 201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / IT AT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT , CUTTACK 6. [ / GUARD FILE. //TRUE COPY//