Sh. Surinder Singh, Jalandhar V. The Income-tax Officer, Jalandhar

ITA 492/ASR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68262 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 12-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: Y K SUD
• Keywords: Business income; Opportunity of being heard; Corroborative evidences; Non compliance
• Section: 54F; 131; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.492(ASR)/2013 ASSESSMENT YEAR:2009-10 PAN :ABNPS8324B SH.SURINDER SINGH, VS. INCOME TAX OFFICER, 214, GURU GOBIND SINGH NAGAR, WARD-III(2), NEAR GURU TEG BAHADUR NAGAR, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.Y.K.SUD, CA RESPONDENT BY:SH.AMRIK CHAND, DR DATE OF HEARING: 09/12/2013 DATE OF PRONOUNCEMENT:19/12/2013 ORDER PER BENCH ; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR, DATED 17.05.2013 FOR THE ASSESSMENT YEA R 2009-10. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER OF THE LD. CIT(A) IS AGAINST LA W AND FACTS OF THE CASE. ITA NO.492(ASR)/2013 2 2. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING AN ADDI TION OF RS.4,80,000/- OUT OF THE TOTAL ADDITION MADE BY THE A.O. U/S 69A OF THE ACT AMOUNTING TO RS. 11 LACS. 3. THAT ALTHOUGH THE CIT(A) HAS DELETED PART OF THE AD DITION BY ADOPTING METHOD OF AVAILABILITY OF CASH BEFORE EACH DEPOSIT STILL THE ENTIRE ADDITION SHOULD HAVE BEEN DELETED BY HOL DING THAT PROVISION OF SECTION 69A WERE NOT APPLICABLE. 4. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FA CT THAT THE DEPOSITS WERE ON A/C OF SALES OF ANCESTRAL PROPERTY AGAINST WHICH THE ASSESSEE HAD INVESTED THE AMOUNT IN PURCHASE OF RESIDENTIAL HOUSE AND THUS ENJOYED COMPLETE EXEMPTION U/S 54 AN D 54F OF THE INCOME TAX ACT AND THUS UNDER THE CIRCUMSTANCES NO ADDITION WAS WARRANTED. 5. SUCH OTHER GROUNDS AS MAY BE URGED ON HEARING. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS DOING BUSINESS OF CONSTRUCTION & RENOVATION OF RESIDENTIAL HOUSES. HE IS ALSO IN THE BUSINESS OF SALE/PURCHASE OF PROPERTIES. AS PER AIR INFORMATION AVAILABLE ON AST, THE ASSESSEE WAS HAVING TWO BANK ACCOUNTS WITH IDBI BAN K AND KOTAK MOHINDRA BANK LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH DETAIL OF ALL BANK AC COUNTS WHICH WERE MAINTAINED BY HIM AND TO PRODUCE COMPLETE BOOKS OF ACCOUNT MAINTAINED BY HIM. ON 14.11.2001 THE COUNSEL OF THE ASSESSEE PROD UCED BOOKS OF ACCOUNT AND FILED THE COPY OF BANK ACCOUNT WITH KOTAK MOHIN DRA BANK LTD. ONLY. WHILE EXAMINING THE BOOKS, IT WAS NOTICED THAT THER E WAS NO LEDGER ACCOUNT OF BANK ACCOUNT WITH IDBI BANK LTD. FURTHER THE COU NSEL OF THE ASSESSEE DID ITA NO.492(ASR)/2013 3 NOT PRODUCE THE COPY OF THE SAID ACCOUNT WITH IDBI. THEREAFTER, THE COUNSEL OF THE ASSESSEE, VIDE ORDER SHEET ENTRY DATED 24.11 .2011, WAS SPECIFICALLY ASKED AS UNDER: IT IS SEEN THAT THE ASSESSEE SH.SURINDER SINGH IS HAVING ONE BANK ACCOUNT NO. 2560010002386 WITH IDBI BANK LTD. IN WH ICH THERE ARE CASH DEPOSITS OF RS.11,00,000. BUT NEITHER THE ACCO UNT HAS BEEN SHOWN IN THE BOOKS OF ACCOUNTS BEING MAINTAINED BY THE ASSESSEE NOR THE SAME HAS BEEN DISCLOSED TO THE DEPARTMENT. THE HEARING OF THE CASE WAS THEN ADJOURNED TO 29.11 .2011. ON THE SAID DATE THE COUNSEL OF THE ASSESSEE APPEARED AND FILED A RE PLY AS UNDER: 1. THE AMOUNT OF CASH DEPOSITED IN IDBI BANK DURI NG THE FINANCIAL YEAR 2008-09 THE SOURCE OF CASH RECEIVED FROM SALE OF ANCESTRAL PROPERTY. THAT THE REGISTERED WILL HAS BE EN WRITTEN COPY OF WILL AND REGISTRY ENCLOSED HEREWITH. 2. THE EVIDENCE PROOF OF AGREEMENT OF SALE OF ANCES TRAL PROPERTY AGAINST THE CASH DEPOSITED IN IDBI BANK. 2.1. THE COUNSEL OF THE ASSESSEE FILED ONLY XEROXED COPIES OF WILL IKRARNAMA DATED 08.05.2009 AND IKRARNAMA DT. 16 .07.2008. THE ORIGINALS WERE NOT PRODUCED. THE XEROXED COPIES WERE NOT EVE N CERTIFIED TO BE TRUE COPY BY ANY REGISTRAR OR A NOTARY. 2.2. THE AO POINTED OUT MANY DEFECTS IN THE COPY OF WILL AND IKRARNAMA DATED 08.05.2008 & 16.07.2008 AVAILABLE AT PAGE 3 OF AOS ORDER. ITA NO.492(ASR)/2013 4 2.3. THE ASSESSEE VIDE LETTER DATED 02.12.2011 SUBM ITTED THE EXPLANATION WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: THAT DURING THE YEAR RS.11,00,000/- WERE DEPOSITE D IN THE IDBI BANK SAVINGS ACCOUNT. OUT OF THESE RS.4,00,000/- WAS DEP OSITED OUT OF RECEIPT OF SALE OF SHOP ON DATED 08.05.2008 AND RS. 7,00,000/- WAS DEPOSITED OUT OF SALE OF RESIDENTIAL HOUSE ON DATED 16.7.2008 FOR RS.7,50,000/-. THE SHOP AND RESIDENTIAL HOUSE WAS A CQUIRED BY THE FATHER OF THE ASSESSEE IN THE YEAR 1967 AND TRANSFE RRED TO THE ASSESSEE THROUGH WILL. THE ASSESSEE THEN PURCHASED A RESIDE NTIAL HOUSE AT GURU TEG BAHADUR NAGAR, JALANDHAR ON 08.01.2009. SO THE CAPITAL GAIN ON THE SALE PROCEEDS OF THE SHOP AND RESIDENTIAL HOUSE WERE EXEMPTED U/S 54 AND 54F AND THE INCOME WAS NOT CHARGEABLE TO TAX . THE DETAILED CALCULATION IS GIVEN AS BELOW. SHOP RESIDENTIAL HOUSE TOTAL SALES CONSIDERATION 4,00,000/- SALES CONSIDERATION 7,50,000/- LESS: INDEXED COST (BASE RATE OF 1981) 15000X582/100 87,300/- LESS: INDEXED COST (BASE RATE OF 1981) 30000X582/100 1,74,600/- CAPITAL GAIN 3,12,700/- CAPITAL GAIN 5,75,400/- PURCHASE OF NEW RESIDENTIAL HOUSE 4,24,600/- PURCHASE OF NEW RESIDENTIAL HOUSE 5,75,400/- 10,00,00/- EXEMPTION 3,31,931/- EXEMPTION 5,75,400/- INVESTMENT IN RESIDENTIAL HOUSE/NET CONSIDERATION UPTO CAPITAL GAIN LONG TERM CAPITAL LOSS 19,231/- PROFIT NIL ITA NO.492(ASR)/2013 5 2.4. THE AO VIDE LETTER DATED 12.12.2011 ASKED THE ASSESSEE TO EXPLAIN THE FOLLOWING: REGARDING CASH DEPOSITS IN YOUR IDBI BANK ACCOUNT NO.07104000063780 ON FOLLOWING DATES, AMOUNTING TO RS.11,00,000/- S.NO. DATE AMOUNT 1 08.05.2008 RS.4,00,000/- 2 16.07.2008 RS.2,00,000/- 3 19.07.2008 RS.2,00,000/- 4. 27.12.2008 RS.3,00,000/- IN THIS REGARD, IT HAS BEEN STATED THAT RS.4,00,00 0/- WAS DEPOSITED OUT OF RECEIPT OF SALE OF SHOP SOLD ON 08.05.2008 AND R S.7,00,000/- WAS DEPOSITED OUT OF SALE OF RESIDENTIAL HOUSE SOLD ON 16.7.2008. FURTHER, PHOTOCOPIES OF TWO IKRARNAMAS DT. 08.05.2008 AND 16.7.2008 HAVE BEEN FILED IN RESPECT OF SALE OF ONE SHOP AND ONE H OUSE. FURTHER IN RESPECT OF PURCHASE OF RESIDENTIAL HOUSE ONE IKRA RNAMA DT. 08.01.2009 HAS BEEN FILED. IN RESPECT OF ABOVE, YOU ARE REQUESTED TO PLEASE EXPLAIN THE FOLLOWING: 1. PROVE WITH EVIDENCE THE GENUINENESS OF THE IKRARNA MAS 2. PRODUCE THE ORIGINAL IKRARNAMAS FOR VERIFICATION WITH REFERENCE TO XEROXED COPIES FURNISHED. 3. EXPLAIN AND PRODUCE RELEVANT DOCUMENTS TO SHOW AS T O HOW THE AFORESTATED AMOUNT IN CASH WAS RECEIVED ON VARIOUS DATES. 4. PRODUCE THE BUYERS AND SELLER TO CONFIRM THE GENUIN ENESS OF THE IMPUGNED IKRARNMAS AND ALSO OF ADVANCING AND REC EIVING THE HUGE AMOUNTS IN CASH ON VARIOUS DATES TO YOU. 5. APART FROM 4 ABOVE ALSO FURNISH THE CONFIRMATION OF THE BUYER AND SELLER OF THE PROPERTIES TO HAVE GIVEN THE HUGE CASH TO YOU ON DIFFERENT DATES. 6. PRODUCE THE VERIFIED VALID PHOTO IDENTIFICATION OF THE BUYERS AND ALSO THEIR PANS. ITA NO.492(ASR)/2013 6 7. REASON FOR NOT RECEIVING AND GIVING THE DISPUTED AM OUNT (WHICH IS HUGE AMOUNT) IN CHEQUE. 8. WHETHER THE BUYERS AND SELLERS HAVE ANY BANK ACCOU NTS IF SO THE BUYERS AND SELLER SHOULD PRODUCE THE SAME FOR R ELEVANT PERIODS TO EXPLAIN THE SOURCE OF THE HUGE AMOUNT CL AIMED TO BE GIVEN TO YOU IN CASH. 9. THE IKRARNAMA DT. 8.5.2008 IS FOR RS.4,00,000/- A ND THE IKRARNMA DT. 16.7.2008 IS FOR RS.3,00,000/-ONLY. IN THIS REGARD YOU ARE REQUESTED TO PLEASE EXPLAIN THE SOURCE OF R S.4,00,000/- BALANCE APPEARING IN THIS ACCOUNT. 10. THE IKRARNAMA DT.8.1.2009 SHOWS THAT THE PROPERTY HAS BEEN PURCHASED FOR RS.20,00,000/- PLEASE EXPLAIN THE SOU RCE OF THIS AMOUNT WITH DOCUMENTARY EVIDENCE. 11. THE ONUS IS ON YOU TO EXPLAIN THE NATURE AND SOURCE OF THE DISPUTED CASH DEPOSITED IN THE BANK ACCOUNT. YOU AR E REQUIRED TO ADDUCE ALL NECESSARY EVIDENCE AND WITNESSES AND FURNISHED A SATISFACTORY EXPLANATION WITH SUPPORTING DOCUMENTS. YOUR CASE IS FIXED FOR HEARING ON 16.12.2011 AT 10 .30 AM IN MY ROOM NO.306, 2 ND FLOOR, AAYAKAR BHAWAN, JALANDHAR. IN CASE OF NON COMPLIANCE IT WILL BE TRE ATED THAT YOU HAVE NOTHING TO SAY IN THE MATTER AND THE CASE WILL E DECIDED ON MERITS AND THE INFORMATION AVAILABLE ON RECORD. 2.5. THE ASSESSEE AGAIN SUBMITTED EXPLANATION VIDE LETTER DATED 19.12.2011 WHICH WAS EXPLAINED AS UNDER: 1. THAT THE ACCOUNT IN THE IDBI BANK IS A SAVINGS (PER SONAL) ACCOUNT AND IT IS NOT USED FOR THE BUSINESS PURPOSE S. SO IT HAS NOT BEEN INCLUDED IN THE BOOKS OF ACCOUNTS. AS REGARDS THE R ECEIPT OF RS.11,00,000/- IN THE BANK ACCOUNT. IT IS SUBMITTED THAT THE RECEIVED AMOUNT WAS NOT CHARGEABLE TO TAX. HENCE, IT WAS NOT DISCLOSED IN THE INCOME TAX RETURN. THERE IS ABSOLUTELY NO LOSS TO T HE GOVERNMENT ITA NO.492(ASR)/2013 7 REVENUE AS THE SAID RECEIPT WAS EXEMPT UNDER SECTIO N 54 & 54F AS ALREADY EXPLAINED IN MY EARLIER REPLY. 2. THAT AS PER THE PROCEDURES & CUSTOMS OF THE MARK ET, THE ORIGINAL IKRARNAMAS ARE KEPT BY THE BUYER AND SELLE R KEEPS XEROX COPIES ONLY. SO I DO NOT HAVE ORIGINAL IKRARNAMAS F OR THE SOLD SHOP AND RESIDENTIAL HOUSE TO PRODUCE BEFORE YOU FOR VER IFICATION. 3. AS REGARDS THE RECEIPT OF AMOUNT IN CASH ON VAR IOUS DATES. IT IS SUBMITTED THAT RS.4,00,000/- WAS RECEIVED FOR SALE OF SHOP ON DT.8.5.2008 AND DEPOSITED IN THE BANK ON SAME DAY I N THE BANK AND RS.7,50,000/- WAS RECEIVED ON DT.16.7.2008 BY SALE FOR RESIDENTIAL HOUSE, I HAVE ONLY 50% SHRE IN THE SAID SOLD HOUSE WHICH WAS SOLD FOR RS.15,00,000/-. OUT OF THE RECEIPT I DEPOSITED RS.7 ,00,000/- IN THE BANK ON VARIOUS DATES RS.2,00,000/- ON 16.7.2008, FURTHER RS.2,00,000/- ON 19.07.2008 AND BALANCE OF RS.3,00, 000/- ON 27.12.2008. 4. AS REGARDS YOUR ENQUIRIES REGARDING FURTHER RELE VANT DOCUMENTS OF BUYERS & SELLERS AND PRODUCING BUYERS & SELLERS BEFORE YOUR HONOUR, IT IS SUBMITTED THAT WE DO NOT HAVE AD DITIONAL DOCUMENTS OF BUYERS AND SELLERS AS I DONT KNOW THEM PERSONAL LY. SO IT IS NOT POSSIBLE FOR ME TO PRODUCE THE BUYERS & SELLERS AND THE DESIRED DOCUMENTS BEFORE YOUR HONOUR. 5. THAT THE SALE/PURCHASE OF PROPERTIES ARE NORMALL Y SETTLED THROUGH CASH ONLY AS BUYERS/SELLERS NORMALLY DOES N OT KNOW EACH OTHER. SO THERE IS A BIT OF RISK INVOLVED TO MAKE T HE PAYMENT THROUGH CHEQUES. THATS WHY THE PAYMENTS ARE NORMALLY MADE THROUGH CASH OR DD AS MUTUALLY DECIDED AND CONVENIENT TO BOTH THE P ARTIES. IN THE SAID CASE THE TRANSACTIONS WERE MADE THROUGH CASH A S MUTUALLY DECIDED. 6. THAT THE IKRARNAMA OF DT. 16.7.2008 IS OF RS.15, 00,000 AND NOT OF RS 3,00,000/- I HAVE ONLY 50% SHARE IN THE SAID HOUSE WHICH BECOMES RS.7,50,000 OUT OF IT THE AMOUNT WAS DEPOSI TED IN THE BANK AS ALREADY EXPLAINED AT MY POINT NO.3 7. THAT I HAVE 50% SHARE IN THE PURCHASED PROPERTY OF RS.20,00,000/- SO MY INVESTMENT IN THE SAID PURCHAS ED PROPERTY WAS RS.10,00,000/- ONLY AND IT WAS DONE BY WITHDRAWING THE AMOUNT FROM ITA NO.492(ASR)/2013 8 IDBI BANK ON VARIOUS DATES. THE BANK ACCOUNT STATEM ENT ALREADY SUBMITTED WITH YOU. 2.6. THEREAFTER, THE AO ADDED RS.11 LACS TO THE INC OME OF THE ASSESSEE BY OBSERVING VIDE PARA 2.6 & 2.7 WHICH FOR THE SAKE OF CONVENIENCE ARE REPRODUCED AS UNDER: 2.6. IN THE LIGHT OF THE ABOVE STATED FACTS AND T HE LEGAL POSITION, THE ASSESSEE IS FOUND TO BE IN POSSESSION OF ONE BANK A CCOUNT WHICH WAS NOT DISCLOSED TO THE DEPARTMENT AND THE NATURE AND SOURCE OF THE CREDITS IN THIS BANK ACCOUNT HAS NOT BEEN EXPLAINED BY THE ASSESSEE. THE ASSESSEE SUBMITTED VARIOUS DOCUMENTS WHICH AS DISCUSSED ABOVE ARE NOT VERY RELIABLE. THE ASSESSEE HAS NOT FURNISH ED ANY PLAUSIBLE EXPLANATION IN THIS REGARD. THIS FACT IS ALSO ESTAB LISHED FROM FOLLOWING REASONS: A. THE ASSESSEE DID NOT DISCLOSE THE BANK ACCOUNT TO T HE DEPARTMENT NEITHER THE SAME IS APPEARING IN THE BOOKS OF ACCOU NTS MAINTAINED BY THE ASSESSEE. B. THE ASSESSEE HAS NOT GIVEN ANY REASON FOR SUPPRESSI NG THIS INFORMATION. C. DOCUMENTS AS PRODUCED BY THE ASSESSEE IN SUPPORT O F HIS CLAIM ARE NOT RELIABLE IN THE LIGHT OF FACTS AS DISCUSSED ABO VE. D. THE ASSESSEE IN HIS LETTER DT. 19.12.2011 HAS STATE D THAT HE CANNOT PRODUCE THE ORIGINAL DOCUMENTS OF SALE BECAUSE THES E ARE BEING KEPT BY THE PURCHASER., BUT ON THE OTHER HAND HE HA S NOT PRODUCED THE ORIGINAL IKRARNAMA OF THE PURCHASE OF RESIDEN TIAL HOUSE. E. IT IS UNBELIEVABLE AS WELL AS VERY UNCOMMON NOT TO REGISTER THE SALE AND PURCHASE OF VALUABLE IMMOVABLE PROPERTIES EVEN TILL TODAY, I.E. AFTER LAPSE OF 304 YEARS OF THE ALLEGED SALE/PURCHA SE. ITA NO.492(ASR)/2013 9 F. HE HAS NOT PRODUCED PURCHASERS/SELLERS FOR VERIFICA TION. THUS FAILED TO ESTABLISH THE CORRECTNESS AND GENUINENESS OF THE XEROXED DOCUMENTS AND THEIR CONTENTS. G. THE ASSESSEE FAILED TO ESTABLISH THE GENUINENESS OF THE XEROXED DOCUMENTS PRODUCED AS WELL AS GENUINENESS OF THE TR ANSACTIONS IN IMMOVABLE PROPERTIES AS CLAIMED SUBSEQUENTLY DURING THE COURSE OF THE PROCEEDINGS. H. WITHOUT PREJUDICE, IN THE ABSENCE OF ORIGINAL DOCUM ENTS AND SUPPORTING EVIDENCES IN REGARD TO OWNERSHIP AND POS SESSION IN THE NEW ASSETS, THE ASSESSEE HAS FAILED TO ESTABLISH TH AT THE CONDITIONS OF SEC.54 AND 54 F HAVE BEEN FULFILLED. I. THE ASSESSEE FAILED TO DISCHARGE THE BURDEN LAID UP ON HIM BY THE PROVISIONS OF SEC.69A. 2.7. FROM THE ABOVE STATED FACTS, IT IS APPARENT T HAT THE ASSESSEES EXPLANATION GIVEN WITH REGARD TO CASH DE POSITS IS UNRELIABLE AND UNBELIEVABLE. THE EVIDENCES GIVEN ARE NOT RELIA BLE. THE EXPLANATION OFFERED IS DEVOID OF ANY MERIT AND IS W HOLLY UNSATISFACTORY. CONSIDERING THE FACTS AND THE CIRCU MSTANCES OF THE CASE, THE UNSUBSTANTIATED AND UNSATISFACTORY EXPLAN ATION OF THE ASSESSEE AND THE LEGAL REQUIREMENTS OF THE PROVISIO NS OF SEC.69A, THE ASSESSEE HAS FAILED TO EXPLAIN THE NATURE AND SOURC E OF ACQUISITION OF CASH AGGREGATING TO RS.11,00,000/- DEPOSITED IN IDB I BANK A/C AND THE EXPLANATION PUT FORTH IS FOUND TO BE UNSATISFAC TORY. HENCE THE SUM OF RS.11,00,000/- IS HELD TO BE UNEXPLAINED MONEY A ND IS DEEMED TO BE THE ASSESSEES INCOME FOR THE FY 2008-09 (AY 200 9-10) U/S 69A OF THE IT ACT. SINCE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME TO THE TUNE OF RS.11,00,000/- AND HAS NOT DI SCLOSED THE SAME IN HIS RETURN OF INCOME FOR THE A.Y.2009-10 AND OFFER THE SAME FOR TAX PRIOR TO DETECTION BY DEPARTMENT, PENALTY PROCEEDIN GS U/S 271(1)(C) ARE INITIATED FOR CONCEALING THE PARTICULARS OF INC OME. 3. BEFORE THE LD. CIT(A), THE ASSESSEE MADE THE SUB MISSIONS WHICH WERE SENT TO THE AO FOR COMMENTS, WHO IN TURN SUBMITTED THE COMMENTS AND THE LD. CIT(A) AFTER CONSIDERING THE COMMENTS AND COUNT ER COMMENTS OF THE ITA NO.492(ASR)/2013 10 ASSESSEE CONFIRMED THE ACTION OF THE A.O. AND THE R ELEVANT FINDINGS ARE REPRODUCED AS UNDER: GROUND NO.2, 3 AND 4 RELATES TO THE ADDITION OF RS. 11,00,000/- U/S 69A OF THE ACT. THE DOCUMENTS IN SUPPORT OF SA LE OF SHOP AND RESIDENTIAL PREMISES AS FILED BEFORE AO AND AS ON R ECORDS TILL NOW ARE IN THE SHAPE OF PHOTOCOPIES OF CERTAIN AGREEMENTS A ND A COPY OF WILL. NO OTHER MATERIAL OR EVIDENCE COULD BE PLAC ED ON RECORDS TO SUPPORT THE CASE OF ASSESSEE, DESPITE BEING REPEATE DLY AND SPECIFICALLY ASKED. THE AGREEMENT DATED 08.05.2008 (?) IS NOT BE EN SIGNED BY ANY WITNESSES. THE AO IS RIGHT IN ASKING AS TO WHY THE PROPERTIES WERE NOT REGISTERED AFTER 3 TO 4 YEARS AND THE REPLY OF ASSE SSEE THAT POWER OF ATTORNEY WAS SIGNED IS NOT CONVINCING FOR WANT OF ANY CORROBORATIVE EVIDENCE. THE ARGUMENT THAT BY MERELY FURNISHING C ERTAIN UNCORROBORATED DOCUMENTS IN PHOTOCOPIES THE ONUS ON ASSESSEE WAS DISCHARGED, IS NOT TENABLE. ONCE A CLAIM WAS MADE B Y THE ASSESSEE, HE MUST PUT BASIC DOCUMENTS AND EVIDENCES TO SUPPORT I T AND THEN ONLY THE BURDEN CAN SHIFT TO THE DEPARTMENT. EVEN THE AS SESSEE HAS NOT TAKEN THE ARGUMENT OF SALE AND PURCHASE OF PROPERTI ES IN THE REJOINDER. I FIND MYSELF IN AGREEMENT WITH AO THAT THESE DOCUMENTS FAILED TO SUPPORT THE CASE OF ASSESSEE AND WERE RIG HTLY REJECTED BY THE AO. 4. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE, MADE AN ALTERNATE SUBMISSION TO RESTRICT THE ADDITION MAXIMUM TO THE EXTENT OF PEAK AMOUNT OF CREDIT IN THE SAID BANK ACCOUNT. THE ASSESSEE HAS W ORKED OUT THE PEAK AND THE MAXIMUM CREDIT AS ON A PARTICULAR DATE I.E.19.0 7.2008 WORKED OUT AT RS.4,55,000/- WHICH COULD BE THE ONLY ADDITION AND NOT THE ENTIRE DEPOSITS OF RS.11 LACS. THE SAID ALTERNATE SUBMISSION IS A VAILABLE AT PAGE 6 OF CIT(A)S ORDER. BY AGREEING TO THE ALTERNATE SUBMI SSION OF THE ASSESSEE, THE ITA NO.492(ASR)/2013 11 LD. CIT(A) VIE PARA 8, ACCORDINGLY WORKED OUT THE PEAK OF RS.4,80,000/- WHICH WAS CONFIRMED AND THE BALANCE AMOUNT WAS DEL ETED. 5. THE LD. COUNSEL FOR THE ASSESSEE, MR. Y.K.SUD, C A ARGUED ON THE SIMILAR LINES AS SUBMITTED BEFORE THE AO AND THE LD . CIT(A). 6. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE IS STATED TO HAVE BEEN DOING THE BUSIN ESS OF CONSTRUCTION AND RENOVATION OF RESIDENTIAL HOUSES AND IS ALSO IN THE BUSINESS OF SALE/PURCHASE OF THE PROPERTIES. THE ALLEGATION OF THE AO IS THAT THE ASSESSEE HAS NOT DISCLOSED IDBI BANK ACCOUNT MAINTAINED BY THE ASSES SEE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS OWNED TH E BANK ACCOUNT IN THE IDBI BANK LIMITED HAVING BANK ACCOUNT NO. 2560010002386 IN WHICH THERE ARE CASH DEPOSITS OF RS.11 LACS. ON PERUSAL OF THE SAID BANK A/C AVAILABLE AT PAGES 15 TO 17, CASH DEPOSITS OF RS.11 LACS IN TOTA L I.E. RS. 4 LACS +2 LACS + 2 LACS + 3 LACS ARE THEREON DT. 05.05.2008, 16.7.200 8, 19.7.2008 & 27.11.2008 RESPECTIVELY. APART FROM THIS, THERE ARE DEPOSITS O F RS.2097 DATED 1.7.2008 RECEIVED FROM CLOTHING P. LTD. AND RS.15,000/- ON 23.10.2008 FROM UNKNOWN SOURCES. APART FROM THE SAID DEPOSITS, THE BANK AS GIVEN CREDIT OF INTEREST AS UNDER: ITA NO.492(ASR)/2013 12 DATE AMOUNT (RS.) 30.06.2008 1932 30.09.2008 3317 31.12.2008 1098 31.03.2009 2343 APART FROM THESE DEPOSITS, THE ASSESSEE HAS BEEN WI THDRAWING CASH THROUGH ATM RANGING FROM RS.10,000/- TO RS.15,000/- ONLY AN D NOT MORE THAN THAT EXCEPT RS.50,000/- WHICH WERE WITHDRAWN IN SELF ON 29.10.2008. APART FROM, SMALL PAYMENTS MADE NOT EXCEEDING RS.15,000/- WHICH APPEARS TO HAVE BEEN MADE AS PERSONAL WITHDRAWAL. 7.1. THE EXPLANATION OF THE ASSESSEE IS THAT THIS I S A PERSONAL ACCOUNT, NOT RELATED TO BUSINESS AND THEREFORE, HAS NOT BEEN DIS CLOSED IN THE BOOKS OF ACCOUNT. THE SAID DEPOSIT OF RS.11,00,000/- HAS BEE N EXPLAINED BY THE SALE OF SHOP FOR RS.4 LACS, SOLD ON 5.8.2008 AND SALE O F RESIDENTIAL HOUSE, SOLD ON 16.7.2008 FOR RS.7 LACS, WHICH WAS RECEIVED ON 16.7 .2008 RS.2 LACS, ON 19.7.2008 RS.2 LACS AND RS. 3 LACS ON 27.12.2008. F URTHER, THE EXPLANATION OF THE ASSESSEE WAS THAT THE ASSESSEE HAD PURCHASED 5 0% SHARE IN THE PURCHASED PROPERTY OF RS.20 LACS FOR RS.10 LACS BY WITHDRAWING THE AMOUNT FROM IDBI BANK ON VARIOUS DATES. ITA NO.492(ASR)/2013 13 7.2. IN THIS REGARD, AS MENTIONED HEREINABOVE, ON P ERUSAL OF THE BANK A/C, IT IS SEEN THAT THE ASSESSEE HAD WITHDRAWN THE CASH OF RS.10,000/- TO RS.15,000/- THROUGH ATM AND EACH ENTRY IS BETWEEN R S.5000/- TO RS.15,000/- AND NUMBER OF ENTRIES ARE ABOUT 75 I.E. THE ASSESSEE HAS WITHDRAWN THE AMOUNT OF RS.10 LACS AS STATED, 75 TI MES, SOMETIMES EVEN MORE THAN THREE TIMES IN A DAY AND HAD ACCUMULATED RS.10 LACS INCLUDING RS.50,000/- WITHDRAWN. ON 29.10.2008 AS MENTIONED HEREINABOVE. 7.3. THE ASSESSEE HAS PLACED ON RECORD, THE PHOTOCO PY OF THE IKRARNAMA AND HAS STATED THAT THE ORIGINALS ARE WITH THE BUYE R AND SELLER OF THE PROPERTY. THE ASSESSEE HAS NOT PRODUCED THE BUYER AND THE SE LLER TO CONFIRM THE GENUINENESS OF THE IKRARNAMA. THERE WERE CERTAIN QU ERIES WITH REGARD TO THE BUYER OF THE PROPERTY AND THE SELLER OF THE PROPERT Y WHETHER HAVING BANK ACCOUNT AND WITH REGARD TO THEIR IDENTITY ETC. 7.4. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSES SEE BEFORE THE LD. CIT(A) AS WELL AS BEFORE US THAT THE ASSESSEE IS REQUIRED TO PROVE THE SOURCE OF DEPOSITS WHICH HE HAS EXPLAINED. THE LD COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE SAID BANK ACCOUNT SINCE HAS BEEN EXPLAINED AND THERE IS NO PROOF WHICH REQUIRES THE ASSESSEE TO DISCLOSE THE B ANK ACCOUNT IN THE RETURN OF INCOME. IN THIS REGARD, WE ARE OF THE VIEW THAT THE BANK A/C IS HAVING THE INTEREST AMOUNTING TO RS.1932/-, RS.3317/-, RS.1098 /- AND RS.2343/- ON ITA NO.492(ASR)/2013 14 30.6.2008, 30.9.2008, 31.12.2008 & 31.3.2009 WHICH ARE CREDITED BY THE IDBI IN THE BANK STATEMENT PLACED AT PB 15 TO 17. W HETHER THE SAID BANK INTEREST HAS BEEN TAKEN INTO ACCOUNT BY PREPARING RETURN OF INCOME, HAS NOT BEEN PLACED BEFORE ANY OF THE AUTHORITIES BELOW OR EVEN BEFORE US. IT APPEARS THAT THE LD. CIT(A) AND THE AO HAS NOT GIVEN ANY FI NDING IN THIS REGARD, SINCE DISCLOSING THE BANK INTEREST, WHICH IS AN INCOME, H AS TO BE INCLUDED IN THE COMPUTATION OF INCOME. THEREFORE, IF THE AUTHORITIE S BELOW HAD EXAMINED THE ASPECT, THE MATTER WOULD HAVE BEEN CLEAR WHETHE R BANK ACCOUNT I.E. IDBI HAD BEEN DISCLOSED BY THE ASSESSEE OR NOT. THEREFOR E, THIS REQUIRES A EXAMINATION BY THE AUTHORITIES BELOW TO COME AT A CONCLUSION WHETHER THE BANK A/C HAS BEEN DECLARED BY THE ASSESSEE IN HIS I NCOME TAX RETURN OR NOT. 7.5. AS REGARDS THE DOUBTS RAISED IN THE MIND OF TH E AO WITH REGARD TO THE IKRARNAMA, THE POWER VESTS WITH THE AO U/S 131 OF THE ACT TO SUMMON THE SELLER AND THE BUYER OF THE PROPERTY AND THE AO WAS WITHIN HIS POWER TO SUMMON THOSE PARTIES TO CLARIFY HIS DOUBTS WHICH WA S NOT DONE IN THIS CASE. IT WAS TOO EARLY TO COME TO THE CONCLUSION THAT PRO PERTY HAS NOT BEEN SOLD OR PURCHASED BY THE ASSESSEE. THIS ALSO REQUIRES AN EX AMINATION BY THE AUTHORITIES BELOW. THOUGH THERE IS NO AGITATION BY THE REVENUE WITH REGARD TO THE DELETION BY THE LD. CIT(A) OF RS.6.20 LACS A FTER SUSTAINING THE ADDITION OF RS.4.80 LACS BEING PEAK AMOUNT AND THEREFORE, W E DO NOT COMMENT ON THE ITA NO.492(ASR)/2013 15 SAME. IT WILL BE IN THE INTEREST OF JUSTICE, IF THE MATTER IS SET ASIDE TO THE FILE OF THE A.O. TO EXAMINE THE ISSUE WITH REGARD TO THE OWNERSHIP OF THE BANK A/C WITH IDBI BANK LTD. AND THAT OF SALES AND PURC HASES OF VARIOUS PROPERTIES AND THE EXEMPTION U/S 54 & 54F, WHO WIL L DECIDE THE ISSUE AFRESH IN THE LIGHT OF OUR DIRECTIONS HEREINABOVE, AFTER P ROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.492(ASR)/2013 IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH DECEMBER., 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19TH DECEMBER, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.SURINDER SINGH, JALANDHAR. 2. THE ITO III(2, JLR 3. THE CIT(A), JLR 4. THE CIT, JLR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.