SMT. INDRAPRABHA B. SHOBHANE, Nagpur V. THE ITO-WARD-5(3), Nagpur

ITA 56/NAG/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1320 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 06-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Assessee Lawyers: HIMESH DEMBLE
• Keywords: Income from undisclosed sources; Source of fund; Additional evidence
• Section: 143(3); 147; 148

Judgement Text

1 ITA NO. 56/NAG/2014. IN T HE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 56 /NAG/2014 ASSESSMENT YEAR : 20 07 - 08. SMT. INDRAPRABHA B. SHOBHANE, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 5(3), NAGPUR. PAN AEPPS8862R. APPELLANT. RESPONDENT. APPELLANT BY : SHRI HIMESH DEMBLE. RESPONDENT BY : S MT. AGNES P. THOMAS. DATE OF HEARING : 20 - 09 - 2016 DATE OF PRONOUNCEMENT : 24 TH OCT., 2016 O R D E R. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 17 - 10 - 2013 AND PERTAINS TO ASSESSMENT YEAR 2007 - 08. THE GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) - II ARBITRARY AND UNJUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS.17,15,000/ - AS INCOME FROM UNDISCLOSED SOURCES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE HONBLE COMMISSIONER OF INCOME TAX (AP PEALS) - II ERRED IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS.14,45,000/ - AS INCOME FROM UNDISCLOSED SOURCES, WHICH WAS AMOUNT DEPOSITED BY THE SON OF THE ASSESSEE IN HER JOINT BANK ACCOUNT. 2. APART FROM THE ABOVE LEARNED COUNSE L OF THE ASSESSEE HAS FILED AN APPLICATION FOR ADDITIONAL GROUND AS UNDER : 2 ITA NO. 56/NAG/2014. THE ASSESSEE RESPECTFULLY BEGS TO SUBMIT AS UNDER: 1. THE ASSESSEE IN THE MEMORANDUM OF APPEAL HAS RAISED GROUND AGAINST CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS.17,50,000/ - AS INCOME FROM UNDISCLOSED SOURCES ON ACCOUNT OF NON PRODUCTION OF ANY CORROBORATIVE EVIDENCE FOR CLAIMING THE DISCHARGE OF CONSIDERATION ON DATES SUBMITTED AS UNDER: DATE AMOUNT (RS.) 01.03.20 07 10,000 12.04.2007 5,00,000 31.05.2007 4,00,000 25.06.2007 5,40,000 18.12.2007 2,75,000 2. THE ASSESSEE WAS PREVENTED FROM PRODUCING THE CORRECTED SALE DEED BEFORE LD. A.O. FOR SUFFICIENT CAUSE AS THE SAME WAS REGISTERED ON 22/03/2013 ONLY. THE EVIDENCE PROVIDED BEFORE HONBLE CIT(A) GOES TO THE ROOT OF MATTER AND WAS NECESSARY EVIDENCE FOR ADJUDICATION OF THE DISPUTED ADDITION. THE LEARNED CIT(A) OUGHT TO HAVE ADMITTED THE EVIDENCE PRODUCED BEFORE HIM IN THE APPELLATE PROCEEDINGS. 3. THE ASSESSEE IN SUCH CIRCUMSTANCES REQUESTS THAT FOLLOWING ADDITIONAL GROUND OF APPEAL BE ADMITTED. HONBLE CIT(A) ERRED IN NOT ADMITTING ON RECORD ADDITIONAL EVIDENCE, BEING CORRECTED SALE DEED FOR ADJUDICATING THE GROUND S OF APPEAL. 4. THE AFORESAID GROUNDS ARE PURELY LEGAL GROUND AND DOES NOT REQUIRE INVESTIGATION OF ANY FRESH FACTS. THE GROUND OF APPEAL CAN BE ADJUDICATED ON THE BASIS OF DOCUMENTS AND EVIDENCE ON RECORD. 5. THE ASSESSEE FOR ADMISSIBILITY OF AFORESAID GROUND PLACES RELIANCE ON THE DECISIONS OF HONBLE APEX COURT IN THE CASE OF JUTE CORPORATION OF INDIA LTD. VS. CIT (1991) 187 ITR 688 & 229 ITR 383 IN CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT. THE RATIO L AID DOWN SQUARELY APPLIES TO THE FACTS IN THE CASE OF ASSESSEE. IN VIEW OF ABOVE IT IS HUMBLY PRAYED THAT 3 ITA NO. 56/NAG/2014. GROUND OF APPEAL RAISED HEREINABOVE MAY BE ADMITTED FOR ADJUDICATION IN THIS APPEAL. 3. APROPOS THE GROUND RELATING TO ADDITION OF RS.17,50,000/ - . BRIEF FACTS OF THE CASE ARE AS UNDER : RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,18,320/ - WAS FILED ON 23 - 08 - 2007. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2009 - 10, IT WAS NOTED BY THE AO THAT THE APPELLANT HAD PURCHASED ONE IMMOVABLE PROPERTY FOR AN AMOUNT OF RS.75,00,000/ - VIDE SALE DEED DATED 05 - 03 - 2009. IT WAS FURTHER NOTED BY THE AO THAT THE APPELLANT HAD PAID A SUM OF RS.17,25,000/ - IN CASH ON 01 - 03 - 2007 TOWARDS ADVANCE FOR PURCHASE OF THE AB OVE MENTIONED PROPERTY. HOWEVER, ON PERUSAL OF THE RETURN OF INCOME FOR ASSESSMENT YEAR 2007 - 08, IT WAS NOTED BY THE AO THAT THE APPELLANT HAD SHOWN INCOME OF RS.1,18,320/ - ONLY AND HE ACCORDINGLY ASKED THE APPELLANT TO EXPLAIN THE SOURCE OF THE PAYMENT OF THE SAID AMOUNT OF RS.17,25,000/ - IN CASH ON 01 03 - 2007. 4. THE APPELLANT EXPLAINED TO THE AO (DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y. 2009 - 10) THAT SHE HAD PAID ONLY AN AMOUNT OF RS.10,000/ - IN PREVIOUS YEAR 2006 - 07 AND THAT SHE HAS MADE THE REMAINING PAYMENTS IN CASH ON SEPARATE DATES DURING THE PREVIOUS YEAR 2007 - 08. THE AO EXAMINED THE SALE DEED HAD TO BE PRESUMED TO BE THE CORRECT STATE OF AFFAIRS AND THAT THEREFORE THE APPELLANT WOULD HAVE PAID AN AMOUNT OF RS.17,25,000/ - IN CASH FOR PUR CHASE OF THE SAID PROPERTY IN PREVIOUS YEAR 2006 - 07 ITSELF AND SINCE THERE WAS NO VALID EXPLANATION FOR THE SOURCE OF THE SAID AMOUNT, HE INITIATED PROCEEDINGS U/S 147 BY ISSUING NOTICE U/S 148 DATED 16 - 03 - 2012. 5. DURING THE COURSE OF RE - ASSESSMENT PROC EEDINGS, THE REASONS RECORDED FOR REOPENING THE ASSESSMENT WERE SUPPLIED TO THE APPELLANT AND FURTHER A DETAILED SHOW CAUSE NOTICE DATED 23 - 01 - 2013 WAS ALSO ISSUED TO THE APPELLANT ASKING THE APPELLANT TO EXPLAIN THE SOURCE OF PAYMENT IN CASH AMOUNTING TO RS.17,25,000/ - 4 ITA NO. 56/NAG/2014. ON 01 - 03 - 2007. AFTER CONSIDERING VARIOUS SUBMISSIONS MADE BY THE APPELLANT FROM TIME TO TIME, THE AO CAME TO THE CONCLUSION THAT THE APPELLANT WAS NOT SATISFACTORILY ABLE TO EXPLAIN THE SOURCE OF THE CASH PAYMENT OF RS.17,25,000/ - STATED TO HAVE BEEN MADE ON 01 - 03 - 2007. HE, THEREFORE, ADDED THE SAID AMOUNT TO THE INCOME OF THE APPELLANT. 6. UPON ASSESSEES APPEAL, THE LEARNED CIT(APPEALS) IN THIS REGARD NOTED THE ASSESSEES SUBMISSION AS UNDER : DURING THE COURSE OF APPELLATE PROCEEDINGS, SUBMISSIONS WERE FILED BY THE APPELLANT AND IT WAS STATED THAT IT WAS INADVERTENTLY MENTIONED IN THE SALE DEED THAT THE ENTIRE CASH HAD BEEN PAID BY THE APPELLANT ON 01.03.2007 WHILE THE FACT WAS THAT ONLY AN AMOUNT OF RS.10,000/ - WAS PAID ON THE SAID DATE AND THE REMAINING AMOUNT OF RS.17,25,000/ - WAS PAID IN THE F.Y. 2007 - 08. IT WAS STATED THAT THE DATE OF PAYMENT OF THE SAID AMOUNT WERE AS UNDER : DATE AMOUNT (RS.) 01.03.2007 10,000 12.04.2007 5,00,000 31.05.2007 4,00,000 25.06.2007 5,40,000 18.12.2007 2,75,000 TOTAL 17,25,000 IT WAS FURTHER SUBMITTED THAT THIS FACT WAS STATED BEFORE THE LD. AO ALSO DURING THE COURSE OF ORIGINAL ASSESSMENT FOR A .Y. 2009 - 10 AND THAT THE BONAFIDE OF THE APPELLANT WAS ESTABLISHED BY THE FACT THAT THIS INFORMATION WAS GIVEN TO THE DEPARTMENT MORE THAN A YEAR BEFORE THE ISSUE OF THE NOTICE U/S 148. IT WAS FURTHER SUBMITTED THAT SINCE THE APPELLANT HAD SUBMITTED THE AC TUAL DATES OF CASH PAYMENT ON 07.02.2011, WHICH IS MUCH PRIOR TO THE ISSUE OF NOTICE U/S 148, THE MATTER STANDS EXPLAINED SAME CANNOT BE SAID TO BE AN AFTERTHOUGHT. IT WAS ALSO STATED THAT THE APPELLANT HAD SUBSEQUENTLY EXECUTED A CORRECTION DEED ON 5 ITA NO. 56/NAG/2014. 22.03. 2013 TO CORRECT ABOVE MISTAKES THAT CLEARLY ESTABLISHED THE FACT THAT THE SELLER HAD ALSO ACCEPTED THE RECEIPTS OF THE SAID CASH AMOUNT ON VARIOUS DATES. 7. THE LEARNED CIT(APPEALS) DID NOT ACCEPT THE ABOVE CONTENTION. HE HELD AS UNDER : 5.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT. I DO NOT FIND MERIT IN THE SUBMISSIONS OF THE APPELLANT. THE APPELLANT EXECUTED THE SALE DEED FOR THE PURCHASE OF THE SAID PROPERTY ON 05.03.2009. IN THE SAID SALE DEED IT IS CLEARLY ME NTIONED THAT VARIOUS AMOUNTS WERE PAID IN CASH AND IN CHEQUE AND THE DATES ON WHICH THE SAID PAYMENTS HAD BEEN MADE HAVE BEEN VERY CLEARLY SPECIFIED. IT IS ALSO CLEARLY STATED THAT CASH AMOUNTING TO RS.17,25,000/ - WAS PAID BY THE APPELLANT ON 01.03.2007. THE APPELLANT WAS ASKED TO EXPLAIN THE A.Y. 2009 - 10 AND IT WAS EXPLAINED BY THE APPELLANT (VIDE ABOVE MENTIONED LETTER DATED 07.12.2011) THAT THE SAID AMOUNT AND DATE OF RS.17,15,000/ - ON 01.03.2007 WAS ERRONEOUSLY MENTIONED AND THAT CASH PAYMENTS WERE MAD E ON SEVEN DATES IN F.Y. 2007 - 08. IT IS THE EXPLANATION THAT IS NOW BEING USED BY THE APPELLANT TO EXPLAIN AND JUSTIFY THE CASH PAYMENTS. 5.4 THERE IS NO BASIS TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE DATE OF PAYMENT AS STATED IN THE SALE DEED (I .E. 01.03.2007) IS WRONG. THE SALE IS A LEGALLY ENFORCEABLE DOCUMENT AND IT IS EXPECTED THAT DUE CONSIDERATION OF MIND HAD BEEN MADE BEFORE ITS EXECUTION. BOTH THE PARTIES; THE SELLER AND THE BUYER ARE SIGNATORIES TO THE SALE DEED. THE APPELLANT WAS OBVIO USLY UNABLE TO EXPLAIN THE SOURCE OF FUNDS ON THE SAID SPECIFIED DATE AND HAS THEREFORE SOUGHT TO CHANGE THE DATES ITSELF SO AS TO MATCH THEM WITH THE AVAILABILITY OF CASH ON LATER DATES. THE APPELLANT CANNOT BE ALLOWED TO SAY THAT THE CONTENTS OF THE SALE DEED ARE ERRONEOUS JUST BECAUSE THE SAME DONT SUIT HER. 5.5 ALSO THE EXPLANATION DATED 07.12.2011 WAS NOT A SUO MOTO EXPLANATION BUT WAS SUBMITTED BY THE APPELLANT IN RESPONSE TO SPECIFIC ENQUIRIES MADE BY THE DEPARTMENT. I HAVE PERUSED THE SAID LETTER DATED 07.12.2011 SUBMITTED BY THE APPELLANT BEFORE ITO - 5(3) WHEREIN IN THE FIRST SENTENCE ITSELF IT IS MENTIONED THAT THE SAID REPLY IS BEING SUBMITTED IN COMPLIANCE TO SUMMONS U/S 131. THE APPELLANT WAS AWARE THAT AN ENQUIRY REGARDING THE SOURCE OF SAID C ASH PAYMENT OF RS.17,25,000/ - ON 01.03.2007 WAS BEING MADE BY THE DEPARTMENT. THIS IS ALSO CLEAR FROM THE LAST PARA IN HER SUBMISSION WHEREIN IT IS STATED AS UNDER : 6 ITA NO. 56/NAG/2014. AS REGARDS THE SPECIFIC QUERY RAISED IN RESPECT OF AMOUNT PAID IN CASH AMOUNTING TO RS.17 ,25,000/ - ON 01.03.2007, IN THIS CONNECTION WE WOULD LIKE TO INFORM YOU THAT THE ASSESSEE HAS PAID THE SAID AMOUNT FROM TIME TO TIME ON VARIOUS DATES TO THE VENDORS AND NOT ON 01.03.2007, AS THE ASSESSEE IS NOT AND HAS NEVER BEEN IN A FINANCIAL POSITION TO PAY SUCH A HUGE AMOUNT IN A SINGLE TRANSACTION. THIS IS JUST A DRAFTING ERROR IN THE SALE DEED. THE DAY WISE WITHDRAWAL FROM BANK ALONG WITH ADVANCING THE SAME FOR PAYMENT TO THE PARTY IS ENCLOSED HEREWITH FOR YOUR REFERENCE AND RECORDS. YOU ARE KINDLY REQUESTED TO CONSIDER THE ASSESSEES CONTENTION IN THIS REGARD. 5.6 HAVING GIVEN THESE EXPLANATIONS DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR AY 2009 - 10 DOES NOT HELP THE APPELLANT TO VALIDLY EXPLAIN THE S OURCE OF SAID CASH AVAILABILITY OF RS.17,25,000/ - WITH THE APPELLANT ON 01.03.2007. THE APPELLANT CANNOT USE THIS REPLY THAT IT WAS COMPELLED TO FURNISH IN RESPONSE TO A SPECIFIC ENQUIRY RAISED BY THE DEPARTMENT TO NOW STATE THAT IT HAD ALREADY SUBMITTED E XPLANATION OF CASH PAYMENTS BEING MADE IN PREVIOUS YEAR 2007 - 08 DURING THE ASSESSMENT PROCEEDINGS FOR A.Y. 2007 - 08 HAS THE APPELLANT BEEN ABLE TO EXPLAIN THE SOURCE OF SAID CASH OF RS.17,25,000/ - PAID ON 01.03.2007. 5.7 ALSO THERE IS NO REASON TO TAKE ON R ECORD ADDITIONAL EVIDENCE, WHICH THE APPELLANT HAS NOW SOUGHT TO SUBMIT IN THE FORM OF CORRECTION SALE DEED, WHEREIN THE APPELLANT STATES THAT THE CORRECT DATES OF CASH PAYMENT HAVE BEEN ACCEPTED BY BOTH THE APPELLANT AND THE SELLER. FIRSTLY, THERE IS NO V ALID REASON HAS BEEN GIVEN AS TO WHY THE CORRECT DATES WERE NOT MENTIONED IN THE ORIGINAL SALE DEED (WHEN CORRECT DATES IN RESPECT OF CHEQUE PAYMENTS WERE DULY MENTIONED THEREIN). BOTH THE PURCHASER AND THE SELLER WERE SIGNATORIES TO THE SALE DEED AND THER E HAS TO BE A VALID EXPLANATION IF BOTH ARE PARTY TO A MISTAKE. SECONDLY, THERE IS NO EVIDENCE WITH THE APPELLANT TO EXPLAIN AS TO HOW THE DATES OF VARIOUS CASH PAYMENTS CLAIMED TO HAVE BEEN MADE IN F.Y. 2007 - 08 HAVE NOW COME TO THE POSSESSION OF THE APPEL LANT. THE ONLY REASON COULD BE THAT THESE ARE THE DATES THAT ARE CONVENIENT TO THE APPELLANT TO VALIDLY EXPLAIN PAYMENT OF CASH AS CASH WOULD BE AVAILABLE ON THESE DATE WITH THE APPELLANT. THIRDLY, NOTHING PREVENTED THE APPELLANT TO FILE THE CORRECTION DEE D IMMEDIATELY IN 2011 ITSELF WHEN THE ISSUE WAS FIST RAISED BY THE DEPARTMENT DURING THE COURSE OF ENQUIRY BEING CONDUCTED FOR A.Y. 2009 - 10. IN ANY CASE, THE CORRECTION DEED COULD HAVE BEEN ENTERED INTO AT ANY TIME DURING THE PENDENCY OF REOPENED ASSESSM ENT PROCEEDINGS AND SUBMITTED TO THE LD. AO FOR HIS CONSIDERATION. THE APPELLANT HOWEVER DID NOT DO SO. IN VIEW OF THE ABOVE FACTS THERE IS NO REASON TO ADMIT THE CORRECTION SALE DEED WHICH IS CLAIMED TO HAVE BEEN ENTERED INTO BY THE APPELLANT SUBSEQUENT T O THE 7 ITA NO. 56/NAG/2014. FINALIZATION OF THE ASSESSMENT ORDER U/S 147 R.W.S. 143(3) DATED 06.02.2013. 6. IN VIEW OF THE ABOVE FACTS, AND CONSIDERING THE INABILITY OF THE APPELLANT TO VALIDLY EXPLAIN THE SOURCES OF CASH PAID OF RS.17,25,000/ - ON THE SAID DATE, I UPHOLD THE AC TION OF THE LD.AO OF ADDING THE SAID AMOUNT OF RS.17,25,000/ - TO THE INCOME OF THE APPELLANT. 8. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 9. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND THAT THE ADDITIONAL GRO UND RAISED BY THE ASSESSEE IN THIS REGARD RELATES TO THE NON - ADMISSION OF ADDITIONAL EVIDENCE BY THE CIT(APPEALS) WHICH WAS SUBMITTED BEFORE HIM. I FIND THAT THERE IS NO NEED FOR ADDITIONAL GROUND IN THIS REGARD. THE ASSESSEE CAN RIGHTFULLY PLEAD THAT THE ADDITIONAL EVIDENCE WHICH WAS SUBMITTED BEFORE THE LEARNED CIT(APPEALS) HAS BEEN WRONGLY DISREGARDED BY HIM. 10. UPON CAREFUL CONSIDERATION I NOTE THAT THE SOLE BASIS OF THE ADDITION IN THIS CASE IS THE SALE DEED WHICH MENTIONED THE PAYMENT OF RS.17,50,000 / - IN CASH AS ADVANCE ON 01 - 03 - 2007. THIS HAS BEEN TAKEN AS THE BASIS FOR ADDITION BY THE AUTHORITIES BELOW. AS AGAINST THE ABOVE THE ASSESSEES SUBMISSION IS THAT THE PAYMENTS WERE MADE AS UNDER : DATE AMOUNT (RS.) 01.03.2007 10,000 12.04.2007 5,00,000 31.05.2007 4,00,000 25.06.2007 5,40,000 18.12.2007 2,75,000 TOTAL 17,25,000 IN SUPPORT OF THE ABOVE THE ASSESSEE HAS SUBMITTED A DEED OF CORRECTION WHICH IS DULY REGISTERED WITH THE OFFICE OF THE SUB - REGISTRAR AND EXECUTED BY THE 8 ITA NO. 56/NAG/2014. CONCERNED PARTIES. THIS CORRECTION DEED HAS NOT BEEN ACCEPTED BY THE LEARNED CIT(APPEALS) ON THE GROUN D THAT HE IS NOT SATISFIED WITH THE CONTENTS OF THE CORRECTED SALE DEED. IN THIS REGARD I FIND THAT WHEN THE SOLE BASIS OF THE ADDITION IS THE ONLY SALE DEED AND THE ASSESSEE HAS DULY GOT A RECTIFIED SALE DEED ALSO REGISTERED WITH THE SAME AUTHORITY, IT IS NOT PROPER TO BRUSH ASIDE THE CORRECTED SALE DEED. IT IS NOT THE CASE THAT THE SAID CORRECTED DEED IS A BOGUS DOCUMENT. I FIND THAT INTEREST OF JUSTICE REQUIRES THAT THIS ADDITIONAL DOCUMENT SHOULD HAVE BEEN ADMITTED BY THE LEARNED CIT(APPEALS). HENCE I D IRECT THAT THIS ADDITIONAL DOCUMENT SHOULD BE ADMITTED AND THE AO SHOULD EXAMINE THE SAME FOR ITS VERACITY AND THEREAFTER PASS ORDER AS PER LAW. 11. APROPOS THE ADDITION OF RS.14,45,000/ - ON THIS ISSUE THE AO NOTED THAT THERE ARE CASH DEPOSITS TO THE TUNE OF RS.14,45,000/ - IN THE SAVINGS BANK ACCOUNT IN BANK OF INDIA HELD BY THE ASSESSEE JOINTLY WITH HER SON. IN THIS REGARD SHRI ABHINAV SHOBHANE WAS SUMMONED. SHRI SHOBHANE DID NOT DENY THAT CASH DEPOSIT WAS ATTRIBUTED TO HIM. REGARDING THE SOURCE IT WAS S UBMITTED THAT SHRI ABHINAV SHOBHANE HAD DEALT WITH CUSTOMERS IN RESPECT OF HIS REAL ESTATE BUSINESS AND HAS DEPOSITED AND WITHDRAWN CERTAIN AMOUNTS FROM HIS JOINT ACCOUNT AND ENCLOSED A COPY OF BANK SUMMARY STATEMENT IN RESPECT OF THE ACCOUNT NO. 870810100 007592 WITH BANK OF INDIA, MEDICAL SQUARE, NAGPUR AND ENCLOSED A COPY OF SALE DEED DATED 18 - 12 - 2007 IN RESPECT OF PROPERTY SOLD BY SHRI ABHINAV SHOBHANE AND ANOTHER SALE DEED DATED 19 - 05 - 2007 IN RESPECT OF THE PROPERTY PURCHASED BY SHRI ABHINAV SHOBHANE. 1 2. CONSIDERING THE ABOVE, THE AO OBSERVED AS UNDER : ON VERIFICATION OF BANK ACCOUNT DETAILS AND SALE DEEDS, IT OBSERVED THAT IN PURSUANCE OF THE SALE MADE ON 18 - 12 - 2007, SRI ABHINAV SHOBHANE HAD RECEIVED A SUM OF RS.7,00,000/ - VIDE CHEQUE DT. 22 - 02 - 200 7 AND ANOTHER SUM OF RS.14,00,000/ - VIDE CHEQUE DT. 20 - 12 - 2007 AS HIS SHARE. 9 ITA NO. 56/NAG/2014. THE CHEQUE DATED 22 - 02 - 2012 WAS REALIZED ON 26 - 02 - 2007. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT IN CASH TOWARDS SALE CONSIDERATION OF LAND SOLD B Y HIM DURING THIS YEAR EITHER BEFORE THE ABOVE STATED DATES OF CASH DEPOSIT OR EVEN AFTER ANYTIME DURING THE FINANCIAL YEAR 2006 - 07. THEREFORE, THE SOURCE OF ABOVE MENTIONED CASH DEPOSITS CANNOT BE ATTRIBUTED TO THE TRANSACTION OF REAL ESTATE CARRIED OUT B Y SRI ABHINAV SHOBHANE . FROM THE REPLY OF SRI ABHINAV SHOBHANE TO QUESTION NO. 11 OF STATEMENT, IT IS ALSO CLEAR THAT THE SOURCE OF CASH DEPOSITS OF RS.14.45 LAKHS CANNOT BE ATTRIBUTED TO THE REGULAR INCOME OF SRI ABHINAV SHOBHANE AS HE WAS A STUDENT DURING THE PERIOD 2006 - 07 AND STATED THAT HE HAD NO INCOME DURING THAT PERIOD. THEREFORE, THE SOURCE OF ABOVE MENTIONED CASH DEPOSITS CANNOT BE RELATED TO EITHER SALE PROCEEDS OF THE LAND OR INCOME EARNED DURING THAT PERIOD BY SRI ABHINAV SHOBHANE. NO OTH ER MATERIAL FACTS WERE BROUGHT ON RECORD IN SUPPORT OF THE CLAIM THAT THIS AMOUNT OF RS.14.45 LAKHS WAS AVAILABLE WITH SRI ABHINAV SHOBHANE AT THE TIME OF DEPOSIT OF THIS AMOUNT IN BANK ACCOUNT. THEREFORE, THE PLEA TAKEN BY THE ASSESSEE THAT THE CASH DEPO SITS ARE MADE BY SRI ABHINAV SHOBHANE AND THEREFORE, THEY CANNOT BE ATTRIBUTABLE TO HER IS NOT ACCEPTED. SINCE, THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS OF RS.14,45,000/ - MADE IN HER JOINT ACCOUNT AND THAT THE EXPLANATION, WHATSOEVER , FURNISHED BY HER IS FOUND INCORRECT, THE CASH DEPOSITS TO THE EXTENT OF RS. 14,50,000/ - MADE IN HER SAVINGS BANK ACCOUNT ARE TREATED AS THE AMOUNT EARNED FROM UNDISCLOSED SOURCES DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATI ON AND ADDED TO THE RETURNED INCOME OF THE ASSESSEE. 12. THE LEARNED CIT(APPEALS) AFFIRMED THE ACTION OF THE AO. 13. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 14. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND THA T THE BANK ACCOUNT IN WHICH THE MONEY HAS BEEN DEPOSITED IS THE JOINT ACCOUNT OF THE ASSESSEE WITH SRI ABHINAV SHOBHANE. SRI ABHINAV SHOBHANE HAS ADMITTED THAT THE MONEY WAS DEPOSITED BY HIM. IN THIS REGARD SRI ABHINAV SHOBHANE STATED THAT HE WAS DEALIN G IN REAL ESTATE BUSINESS AND THE SALE DEEDS WERE SUBMITTED REGARDING PURCHASE AND SALE OF PROPERTY BY HIM. THE AMOUNT RECEIVED AND PAID 10 ITA NO. 56/NAG/2014. IN THIS REGARD WERE ALSO NOTED IN HIS BANK ACCOUNT OF RS.7,00,000/ - AND RS.14,00,000/ - RESPECTIVELY. IN THESE CIRCUMSTA NCES, WHEN A PERSON IS ACCEPTING BEFORE THE AO THAT THE MONEY DEPOSITED IN THE JOINT ACCOUNT BELONGS TO HIM, HE HAS STATED THAT HE IS ENGAGED IN REAL ESTATE BUSINESS AND EVIDENCES ARE BEING SUBMITTED IN THE FORM OF SALE DEED AND RECEIPT OF MONEY FROM THE R EAL ESTATE BUSINESS, THERE IS NO REASON TO TOTALLY DISREGARD THESE ASPECTS. T HE CASH DEPOSITS IS ADDED IN THE HANDS OF THE ASSESSEE WHOSE ONLY CONNECTION WITH THE DEPOSIT IS THAT, IN THE BANK ACCOUNT S HE IS A JOINT HOLDER. THE EVIDENCES SUBMITTED AND THE STATEMENT OF SRI ABHINAV SHOBHANE CLEARLY INDICATE THAT THESE EVIDENCES CANNOT BE BRUSHED ASIDE DEHORSE ANY COGENT LINKING THE ASSESSEE TO THE CASH DEPOSIT. THE ADDITION IS NOT SUSTAINABLE. IN THESE CIRCUMSTANCES, I SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW ON THIS ISSUE AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 15. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF OCT., 2016. SD/ - ( SHAMI M YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 24 TH OCT. , 2016. 11 ITA NO. 56/NAG/2014. COPY FORWARDED TO : 1. SMT. INDRAPRABHA B. SHOBHANE, 20, SAIKUNJ, SOMALWADA, NAGPUR. 2. I.T.O., WARD - 5(3), NAGPUR. 3. C.I.T. - II I, NAGPUR. 4. CIT(APPEALS), - I I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGIS TRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.