Appeal Details
Counselvise Citation
[2022] 105 COUNSELVISE.COM (IT) 0115 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-08-2022
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
SMC
Assessment Year
2009-2010
Appeal Filed On
19-10-2021
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, PUNE SINGLE MEMBER CASE SHRI S.S. GODARA, JUDICIAL MEMBER ITA No. 540/PUN/2021: Assessment Year : 2009-10 Kishor Indurao Nikam 144 Budhwar Peth, Karad PAN: AAPPN 2323Q :Appellant Vs. The Tax Recovery Officer, Satara : Respondent Appellant by : Shri M.K. Kulkarni Respondent by : Shri Piyush Kumar Singh Yadav Date of Hearing : 29-07-2022 Date of Pronouncement : 17-08-2022 ORDER This assessee’s appeal for A.Y. 2009-10 arises against the CIT(A)-13, Pune’s order dated 23-07-2018 passed in case No. CIT(A)-13/11-12/211 involving proceedings u/s 143(3) of the Income-tax Act, 1961, in short “the Act”. Heard both the parties. Case file perused. 2. The assessee’s sole substantive grievance challenging correctness of both learned lower authorities’ action making section 69A unexplained money addition of Rs. 1,95,630/- during the course of assessment finding dated 29-12- 2011 as upheld in the CIT(A)’s order as under: “5. DECISION: I have carefully considered the matter. The appellant has preferred 2 grounds against the addition being unexplained cash deposits in the bank account. Ground 4 is general, while ground 3 is against levy of interest u/s 234A, B & C, Levy of interest is mandatory and consequential and the AO is therefore directed to re-compute the interest if any as per law, after giving effect to my directions in this order. 5.1 Admittedly the appellant has filed his return on presumptive basis. It is also admitted that he h a s deposited cash ill his bank account with ICICI Bank. The AO asked him to explain the source, the appellant explained it away as truck freight receipts, however he did not file any cash flow statement. The AO noted that apart from this account in ICICI Bank, the appellant maintained an account with Karad janta Sahakari Bank Ltd Karad, for his proprietary concern Laxmi Automobiles, which is the truck plying concern, and the income from which is returned by the appellant on presumptive basis. The AO further noted that the appellant had taken loans from the ICICI Bank Karad for purchase of trucks and that these loans were being repaid by him through the SB Account in ICICI Bank in which cash was deposited. The appellant is also having an account with the Karad Urban Cooperative Bank which is also linked to 2 ITA 540/PUN/2021 Kishor Indurao Nikam A.Y. 2009-10 his truck plying business. There is another Joint account in Kolhapur which is not connected to his business. The factual position emerging is that the appellant has two accounts in his truck plying business. The lCICI Bank SB account is not related to the business and is used only to repay the truck loans availed by the appellant from the ICICI Bank. On these facts the appellant states that the source of the cash is his truck plying business. 5.2 The appellant has simply made this statement without any evidence filed either before the AO, or before me. In his submissions, the appellant, apart from reproducing the contents of the assessment order, has relied on a host of case laws, without reference to e facts of his case. if>· case: Plain and simple, the appellant has two other bank accounts admittedly used for his truck business and this particular SB account in ICICI Bank is admittedly not linked to his truck business. The appellant was also not able to demonstrate or link the cash deposited in this account to his turnover declared u/s 44AE. The appellant merely makes an averment that the deposits are sourced out of truck freight. The appellant should have made some efforts to demonstrate that the total deposits ill all his bank accounts tally with the truck freight adopted for the purpose of see 44AF: No such effort has been made by the appellant. In the absence of such details. I am of the view that the AO has correctly added the whole of the cash deposited as unexplained. I therefore uphold this action of the AO and dismiss grounds I & 2. 5.3 Before parting, I must say that the AO is not correct in being a little ambivalent on the issue. The AO is being ambIvalent on the issue when he says that 'Apparently it is seen that cash deposits are generated from clay to day receipts of truck.... There is simply no evidence before the AO to arrive at such a conclusion. In any case, the discussion above. ends such ambivalence on part of the AO.” 3. Mr. Kulkarni vehemently argued during the course of hearing that both the lower authorities have erred in law and on facts in treating the assessee’s business income derived from truck transport and auto spares as unexplained. He invited my attention to the fact that the taxpayer had sought to invoke section 44AE of the Act which has been wrongly rejected by the lower authorities. 4. The Revenue has drawn strong support for the impugned addition. 5. I have given my thoughtful consideration to the vehement rival contentions regarding section 69A addition of Rs. 15,95,630/- made for the reason that the taxpayer had made a very strong endeavor to cover himself under the presumptive 3 ITA 540/PUN/2021 Kishor Indurao Nikam A.Y. 2009-10 scheme of taxation u/s 44AE of the Act. The fact remains that the corresponding bank deposits considered in the CIT(A)’s detailed order have failed to reconcile the impugned cash deposit with the corresponding business receipts. Faced with this situation, I conclude that the learned lower authorities have rightly made section 69A addition in issue as per the given facts and circumstances of the case. The same stands confirmed. 6. This assessee’s appeal is dismissed. Order pronounced in the open Court on this 17 th August 2022. (SATBEER SINGH GODARA) JUDICIAL MEMBER Pune; Dated, this 17 th day of August 2022 Ankam Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT , Pune 4. The CIT(A)-13, Pune 5. The SMC Bench, ITAT Pune. 6. Guard File BY ORDER, Sr. Private Secretary ITAT, Pune. 4 ITA 540/PUN/2021 Kishor Indurao Nikam A.Y. 2009-10 Date 1 Draft dictated on 03-08-2022 Sr.PS 2 Draft placed before author 08-08-2022 Sr.PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on 17-08-2022 Sr.PS/PS 7 Date of uploading of order 17-08-2022 Sr.PS/PS 8 File sent to Bench Clerk 17-08-2022 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order
Mehul