SHRI RAMESH CHAND GUPTA S/o. SHRICHIRANJI LAL GUPTA, Indore V. THE ITO 3(2), Indore

ITA 526/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5792 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI RAMESH CHAND GUPTA, S/O SHRI CHIRANJILAL GUPTA, 117, PIPLIYAPALA, A.B.ROAD, INDORE PAN: ABSPG3498D VS. ITO, 3(2), INDORE APPELLANT RESPONDENT APPELLANT BY SHRI S.S.DESHPANDE, C. A. RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 17.08.2016 DATE OF PRONOUNCEMENT 07.09.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, INDORE [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 29.02 .2016 AND PERTAINS TO ASSESSMENT YEAR 2009-10 AS AGAINST APPE AL I.T.A. NO.526/IND/2016 ASSESSMENT YEAR:2009-10 SH.RAMESH CHAND GUPTA,INDORE, VS. ITO,3(2), INDORE, I.T.A.NO. 526/IND/2016 A.Y.2009-10 PAGE 2 OF 5 DECIDED IN ASSESSMENT ORDER DATED 14.03.2013 OF IT O WARD 3(2) INDORE [HEREINAFTER REFERRED TO AS THE AO]. 2. GROUND NOS.1 & 2 RELATE TO ADDITION OF RS. 10,52,00 0/- ON ACCOUNT OF CASH DEPOSIT IN SAVING BANK ACCOUNT D URING THE YEAR BY THE ASSESSEE. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE AIR INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER TH AT THE ASSESSEE HAS MADE CASH DEPOSITS AMOUNTING TO RS. 10,52,000/- IN HIS SAVING BANK ACCOUNT. THEREFORE, WITH A VIEW TO VERIFY THE CONTENTS AND SOURCE, A LETTER DAT ED 27.08.2012 WAS ISSUED TO THE ASSESSEE, BUT NO REPLY OF THE SAME WAS FILED. ACCORDINGLY, THE ASSESSMENT WAS REOP ENED BY WAY OF ISSUE OF NOTICE DATED 22.01.013, IN RESPONSE TO WHICH THE ASSESSEE HAS FURNISHED THE RETURN OF INCOME ON 11.03.2014 DISCLOSING TOTAL INCOME AT RS.1,61,330/- . THIS SOURCE OF CASH DEPOSIT WAS EXPLAINED AS OUT OF OPENI NG CASH BALANCE OF RS. 6,64,361/- AS ON 01.04.2008 AND RS. 3,37,000/- OUT OF CASH WITHDRAWAL MADE FROM THE BANK ACCOUNT. THIS PLEA OF THE ASSESSEE WAS NOT FOUND ACC EPTABLE ON THE GROUND THAT THE OPENING CASH AVAILABLE WITH T HE SH.RAMESH CHAND GUPTA,INDORE, VS. ITO,3(2), INDORE, I.T.A.NO. 526/IND/2016 A.Y.2009-10 PAGE 3 OF 5 ASSESSEE AT RS. 6,64,361/- WAS KEPT FOR A YEAR AND WA S DEPOSITED ON 27.03.2009 AND 28.03.2009, WHICH IS NOT TENABLE AS NO LOGICAL AND SUPPORTING EVIDENCES WERE FILED. 4. BEFORE THE CIT(A), THE SAME FACTS WERE REPEATED. THE LD. CIT(A) NOTED THAT THE OPENING BALANCE HAS BEEN SHOWN ON 01.04.2008, WHEREAS THE DATE OF DEPOSIT HAS BEEN 27. 03.2009 AND 28.03.2009. THE ASSESSEE HAS FAILED TO EXPLAIN THE REASONS AS TO WHY THE CASH WAS DEPOSITED IN THE BANK AFTER ONE YEAR. SIMILARLY, THE DEPOSITS OUT OF WITHDRAWALS CANNOT BE CONSIDERED TENABLE AS THEY ARE NOT CORRELATED AND M UST HAVE BEEN FOR THE PURPOSES OF OTHER THAN DEPOSITS. THERE FORE, THE ACTION OF THE AO WAS HELD AS JUSTIFIED. 5. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS TAKEN THE SAME PLEA AS TAKEN BEFORE TH E LOWER AUTHORITIES. LD. AUTHORIZED REPRESENTATIVE OF THE A SSESSEE TOOK US THROUGH PAPER BOOK PAGES 15 & 16, WHICH IS THE CO PY OF STATEMENT OF ACCOUNT OF UNION BANK OF INDIA. IT WAS CONTENDED THAT THE ASSESSEE HAS WITHDRAWN CASH OF RS. 80,000/- ON 31.12.2008, RS. 90,000/- ON 22.01.2009 RS. 70,000/- ON 20.09.2009, RS. 57,000/- ON 10.02.2009 AND RS. 40, 000/- ON SH.RAMESH CHAND GUPTA,INDORE, VS. ITO,3(2), INDORE, I.T.A.NO. 526/IND/2016 A.Y.2009-10 PAGE 4 OF 5 19.02.2009 AGGREGATING TO RS. 3,37,000/-. OUT OF TH ESE WITHDRAWALS, THE AMOUNT WAS DEPOSITED IN CASH ON 28.03.2009. THEREFORE, IT WAS PLEADED THAT THIS MUCH AMOUNT MAY BE TREATED AS OUT OF CASH WITHDRAWAL OF THE SAVIN G BANK ACCOUNT OF THE ASSESSEE. IT WAS ALSO CONTENDED THAT OPENING CASH BALANCE IS SUPPORTED BY THE BALANCE SHEET. THE REFORE, DUE CREDIT OF THE SAME MAY ALSO BE ALLOWED. 6. ON THE OTHER HAND, THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE IS NO JUSTIFICA TION OF KEEPING THE CASH IN HAND AT RS. 6,64,361/- FOR MORE THAN A YEAR. HENCE, THE CLAIM OF OPENING BALANCE IS NOT JU STIFIED AS THE SAME IS NOT REFLECTED IN BANK ACCOUNTS AND WITH ANY DOCUMENTARY EVIDENCE. 7. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERI AL ON RECORD. WE ARE INCLINED TO ACCEPT THE CONTENTION OF THE LOWER AUTHORITIES AND LD. SENIOR DEPARTMENTAL REPRE SENTATIVE THAT OPENING CASH BALANCE AMOUNT OF RS. 6,64,361/- IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCES AND THE PERS ON IS NOT EXPECTED TO KEEP A HUGE AMOUNT OF CASH IN HAND IN HOUSE EVEN THOUGH HE IS HAVING BANK ACCOUNT. IT IS ALSO N OT TENABLE THAT WHAT PURPORTED THE ASSESSEE TO DEPOSIT THE SAID CASH AFTER MORE THAN A YEAR INTO HIS SAVING BANK ACCOUNT. HOWE VER, SH.RAMESH CHAND GUPTA,INDORE, VS. ITO,3(2), INDORE, I.T.A.NO. 526/IND/2016 A.Y.2009-10 PAGE 5 OF 5 CONSIDERING THE FACTS AND WITH A VIEW TO FAIR AND JUS TICE, WE ARE OF THE OPINION THAT CREDIT OF CASH WITHDRAWAL AMOUNTI NG TO RS. 3,37,000/- CAN BE GIVEN AND CONSIDERED THE SAME AS DEPOSITS OUT OF THESE WITHDRAWALS AS THESE ARE WITHDRAWN DURING THE LAST THREE MONTHS. SOME OF WITHDRAWALS WERE MADE IN T HE MONTH OF JANUARY AND FEBRUARY, 2009. THE AO HAS AL SO NOT BROUGHT ON RECORD THAT THESE CASH WITHDRAWALS WERE INC URRED BY THE ASSESSEE FOR THE PURPOSE OF OTHER THAN THE D EPOSITS. IN THE LIGHT OF THESE FACTS, WE DELETE THE ADDITION OF RS. 3,37,000/- AND CONFIRM THE BALANCE ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY, THIS GROUND OF APP EAL IS PARTLY ALLOWED. 8. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 7 TH SEPTEMBER, 2016. SD/- (D.T.GARASIA) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER DATED : 7 TH SEPTEMBER, 2016. CPU*