ITO 14(1)2, MUMBAI V. ASHOKKUMAR ISWARLAL KEWALRAMANI, MUMBAI

ITA 5651/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4075 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 11-06-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 12-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: MANISH SANGHAVI
• Keywords: Source of fund
• Section: 133(6); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI .. , ! , '# ' $ BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO.5651/MUM/2010 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR: 2006-07) I.T.O. 14(1)2, EARNEST HOUSE, 2 ND FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400 021 & & & & / VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI SHOP NO.1, A.C. KAKAD MARKET, 306, KALBADEVI ROAD, MUMBAI-400 002 ) '# ./ * ./ PAN/GIR NO. : AABPK 9279 N ( )+ / APPELLANT ) : ( ,-)+ / RESPONDENT ) )+ . ' / APPELLANT BY : SHRI MANOJ KUMAR ,-)+ / . ' / RESPONDENT BY : SHRI MANISH SANGHAVI & / 01# / // / DATE OF HEARING : 11.06.2013 2 ( / 01# / DATE OF PRONOUNCEMENT : 19.07.2013 '3 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-25, MUMBAI (CIT(A) FOR SH ORT) DATED 30.04.2010, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2006-07 VIDE ORDER DATED 22.12.2008. 2 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI 2.1 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EES, AN INDIVIDUAL ENGAGED IN THE TEXTILE BROKING, SAVING BANK ACCOUNT WITH KARNATAKA BANK LTD., ANDHERI (W), MUMBAI WAS FOUND TO BEAR CASH DEPOSITS FOR RS.12,13,102/- DURING THE RELEVANT PREVIOUS YEAR, I.E., FINANCIAL YEAR (F.Y.) 2005-06. THE ASSESSEE EXPLAIN ED ITS SOURCE AS BY WAY OF COLLECTIONS FROM DEBTORS OF HIS PROPRIETARY BUSINESS CARRIED OU T IN THE TRADE NAME M/S. JYOTI TEXTILES, SINCE CEASED, ALSO SUBMITTING THE DETAILS OF THE DE BTORS. NOTICES U/S. 133(6) OF THE ACT WERE ISSUED TO ALL SUCH PARTIES BY THE ASSESSING OF FICER (AO), ALL OF WHICH STOOD RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE POSTAL REMA RK NO SUCH PARTY AT THE GIVEN ADDRESS/INCOMPLETE ADDRESS, WHILE NO REPLY TO THE NOTICES WAS RECEIVED FROM THE LOCAL PARTIES IN THE MUMBAI REGION, ON WHOM THE NOTICES W ERE SERVED THROUGH THE NOTICE SERVER OF HIS RANGE. FURTHER, IT WAS ALSO OBSERVED BY THE A.O. THAT AS T HE ASSESSEES ACCOUNTS DISCLOSED DEBTORS AT AGGREGATE OF RS.9.60 LACS AS ON 31.03.20 05, HE COULD NOT POSSIBLY HAVE REALIZED RS.12.31 LACS THERE-FROM. THE ASSESSEE, ADMITTING T O THE ANOMALY, EXPLAINED THAT THE CASH DEPOSITS WERE OUT OF THE CASH WITHDRAWALS FROM THE BANK ACCOUNT ITSELF, AND WHICH WERE OUT OF THE CASH DEPOSITS MADE EARLIER. A CASH FLOW STATEMENT FOR THE PERIOD 01.04.2005 TO 31.03.2006, BEARING ALL THE CASH DEPOSITS AND WITHD RAWALS ON A DATE-WISE BASIS, WAS ALSO FURNISHED. THE A.O. FOUND THE ASSESSEES EXPLANATIO N AS NOT ACCEPTABLE. THIS WAS FIRSTLY FOR THE REASON THAT THE ASSESSEE HAD FAILED TO ESTA BLISH THE SOURCE OF THE CASH DEPOSITS, STATED AT RS.9.60 LACS FROM SUNDRY DEBTORS (DURING THE PERIOD 01.04.2005 TO 31.07.2005), SO THAT THE SOURCE REMAINED UNPROVED. SECONDLY, NO CREDIT FOR THE CASH WITHDRAWALS, CLAIMED TO BE RECYCLED TO THE EXTENT OF RS.7,59,102 /-, COULD BE ALLOWED AS THE AMOUNT DEPOSITED IN THE BANK ACCOUNT WAS ADMITTEDLY RS.12. 31 LACS. AN ADDITION IN THE SAID SUM, ON ACCOUNT OF THE ASSESSEES EXPLANATION AS TO ITS SOURCE BEING UNEXPLAINED, WAS MADE INVOKING SECTION 68 OF THE ACT. 2.2 IN APPEAL, THE ASSESSEE FOUND FAVOUR WITH THE L D. CIT(A), WHO FOUND NO REASON FOR THE A.O. IN NOT ACCEPTING RECYCLING OF FUNDS, AS SO UGHT TO BE REFLECTED BY THE ASSESSEE PER THE CASH FLOW STATEMENT, NOR OF HAVING RECOVERED RS .9.60 LACS FROM THE SUNDRY DEBTORS OF 3 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI HIS CEASED TEXTILE BUSINESS. THE A.O. COULD NOT, TH EREFORE, HAVE ADDED THE ENTIRE AMOUNT MERELY ON THE BASIS OF SUSPICION, AND WITHOUT BRING ING ANY ADVERSE MATERIAL ON RECORD. WITH REGARD TO THE NON-ESTABLISHING OF THE SOURCE T O THE EXTENT OF RS.9.60 LACS, CLAIMED TO BE RECEIVED FROM THE SUNDRY DEBTORS, THE A.O. HAD N EITHER ATTEMPTED FURTHER VERIFICATION OF THE SUNDRY DEBTORS, NOR CONFRONTED THE ASSESSEE WITH THE DEVELOPMENTS. AS SUCH, NO ADVERSE INFERENCE IN RESPECT THEREOF COULD HAVE BEE N DRAWN BY HIM. HE, ACCORDINGLY, DIRECTED THE DELETION OF THE SAME. AGGRIEVED, THE R EVENUE IS IN APPEAL. 3.1 BEFORE US, THE REVENUES CASE WAS THAT THE ASSE SSEE HAD ADOPTED A VACILLATING STAND; FIRSTLY CLAIMING THE IMPUGNED AMOUNT TO HAVE BEEN RECEIVED FROM THE DEBTORS, AND ON BEING POINTED OUT THAT THE AMOUNT EXCEEDED THE D EPOSITS IN THE ASSESSEES SAVING BANK ACCOUNT, TO THE CASH WITHDRAWALS FROM THE SAID BANK ACCOUNT ITSELF. THERE WAS NO CASE FOR THE SAID WITHDRAWALS HAVING BEEN AGAIN UTILIZED FOR CASH DEPOSITS, AS AN INDIVIDUAL WOULD WITHDRAW CASH FROM HIS SAVINGS BANK ACCOUNT ONLY FO R HIS NEEDS; THE ASSESSEE HAVING RATHER WITHDRAWN THE FUNDS FOR, BESIDES HOUSE-HOLD EXPENSES, HIS SONS WEDDING. THE SAME WAS ONLY AN AFTER-THOUGHT ON BEING CORNERED ON HIS (OWN) EXPLANATION. IN ANY CASE, THE BENEFIT OF TELESCOPING COULD ONLY BE GIVEN WHER E THE ASSESSEE LEADS EVIDENCE IN ITS RESPECT. THE NON ACCEPTANCE OF THE ASSESSEES EXPLA NATION WAS, THUS, COMPLETELY VALID. 3.2 THE LD. AR, ON THE OTHER HAND, WOULD SUBMIT THA T NO ADVERSE INFERENCE COULD BE DRAWN FROM THE NON RESPONDING OF THE DEBTORS, AND T HE SAME COULD NOT IN ANY CASE BE FATAL TO HIS CASE, EVEN AS CLARIFIED BY THE APEX COURT PE R ITS DECISION IN THE CASE OF ANIS AHMAD AND SONS VS. CIT(A) [2008] 297 ITR 441 (SC). IN ANY CASE OF THE MATTER, EVEN IF THE A.O. ENTERTAINED ANY DOUBT WITH REGARD TO THE VERACITY O F THE ASSESSEES CLAIM/S AS TO THE SOURCE OF CASH DEPOSITS, DUE TO NON-RESPONSES THERE-FROM, THE SAME OUGHT TO HAVE BEEN CONFRONTED TO THE ASSESSEE, I.E., PRIOR TO DRAWING AN ADVERSE INFERENCE THERE-FROM. IN THIS VIEW OF THE MATTER, THE IMPUGNED ADDITION HAD BEEN RIGHTLY DELETED, SO THAT THE SAME MAY BE CONFIRMED. FURTHER, THE A.O. HAD INVOKED SECTION 68 OF THE ACT, WHICH IS INAPPLICABLE INASMUCH AS THE BANK ACCOUNT OR THE SAVINGS BANK PA SS BOOK, DOES NOT AMOUNT TO 4 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI MAINTAINING BOOKS OF ACCOUNTS, WHICH IS A PRIMARY C ONDITION FOR THE APPLICATION OF SECTION 68, EVEN AS CLARIFIED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BHAICHAND H. GANDHI [1983] 141 ITR 67 (BOM). ON MERITS, IT WAS SUBMITTED BY HIM THAT THERE HAS BEEN NO CHANGE IN THE ASSESSEES EXPLANATION INASMUCH AS THE SOURCE OF FUNDS, AS WOU LD BE APPARENT FROM THE CASH FLOW STATEMENT FOR THE PERIOD 01.04.2005 TO 31.03.2006 ( PB PG.10) IS IN EFFECT ONLY BY WAY OF RECOVERY FROM THE SUNDRY DEBTORS. WHILE THE ASSESSE ES STATEMENT IN THE FIRST INSTANCE POINTED OUT TO THE SOURCE OF THE CASH AVAILABLE WIT H HIM, I.E., THE SUNDRY DEBTORS, ON THE APPARENT ANOMALY IN THE AMOUNT BEING POINTED OUT TO HIM, IT SOUGHT TO CLARIFY THAT THE AMOUNT RECOVERED FROM THE DEBTORS HAD BEEN IN THE F IRST INSTANCE DEPOSITED IN THE BANK, AND THE SUBSEQUENT DEPOSITS THEREIN WERE FINANCED O UT OF THE CASH WITHDRAWALS THERE- FROM. THAT IS, THE TWO EXPLANATIONS ARE NOT INCONSI STENT, SO THAT THE CHARGE OF THE SHIFTING STAND WOULD NOT HOLD. THE TRIBUNAL IN THE CASE OF RACMANN SPRINGS (P.) LTD. VS. DY. CIT [1995] 55 ITD 159 (DEL.) HAS CLARIFIED THAT THE AMOUNTS RECEIVED FROM THE DE BTORS COULD NOT BE CONSIDERED AS UNEXPLAINED AND, CONSEQUENTLY, AS INCOME. THE REFERENCE TO THE SONS MARRIAGE BY THE A.O. AS WELL AS THE LD. DR IS COMPLETELY MISPLACED INASMUCH AS THE MARRIAGE HAD TAKEN PLACE, EVEN AS POINTED OUT BY TH E LD. CIT(A), ON 20.11.2004, I.E., DURING THE PREVIOUS YEAR RELEVANT TO THE IMMEDIATEL Y PRECEDING ASSESSMENT YEAR. 3.3 THE LD. DR, IN REJOINDER, WOULD SUBMIT THAT, IF NOT SECTION 68, SECTION 69A WOULD APPLY, AND REFERENCE TO A WRONG SECTION WOULD BE OF NO MOMENT INSOFAR AS THE INGREDIENTS FOR THE APPLICATION OF THE PROVISION ARE SATISFIED. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 IT IS APPARENT THAT THE ASSESSEE IS NOT MAINTAI NING ANY DAY TO DAY ACCOUNTS, WITH REFERENCE TO WHICH IT COULD BE SAID TO HAVE PREPARE D THE CASH FLOW STATEMENT, ON WHICH IT HAS RELIED IN SUPPORT OF ITS EXPLANATION. IN FACT, IN THAT CASE, THE ASSESSEES CASH-BOOK WOULD ITSELF FORM THE MATERIAL ON THE BASIS OF WHIC H IT COULD CLAIM THE TELESCOPING BENEFIT. THE PERUSAL OF THE SAME, WHICH IS SUMMARIZED BELOW, WOULD REVEAL THAT THE ONLY ENTRIES 5 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI QUA WHICH EVIDENCE/S WOULD BE REQUIRED FOR THEIR ACCEP TANCE, ARE FOR OPENING BALANCE; CASH RECOVERY FROM THE DEBTORS; AND WITHDRAWALS FO R THE PERSONAL EXPENSES: CASH FLOW STATEMENT 01.04.2005 TO 31.03.2006 INFLOW RS. OUTFLOW RS. 01.04.2005 OPENING BALANCE 28,485.82 APRIL TO MARCH, 2006 WITHDRAWALS FOR PERSONAL EXPENSES 316988.21 APRIL TO JULY, 2005 RECOVERY FROM SUNDRY DEBTORS 9,60,000 AUG.05 CASH DEPOSITED SB A/C. 6,50,000 JULY05 CASH WITHDRAWN FROM S/B A/C. 1,02,000 SEPT.05 CASH DEPOSITED SB A/C. 4,81,100 AUG.05 CASH WITHDRAWN FROM S/B A/C. 95,000 MARCH05 CASH DEPOSITED SB A/C. 1,00,000 SEPT.05 CASH WITHDRAWN FROM S/B A/C. 4,62,102 31.03.2006 CLOSING BALANCE 1,99,499.61 DEC.05 CASH WITHDRAWN FROM S/B A/C. 1,00,000 17,47,587.82 17,47,587.82 THE REVENUE HAS NOT DISPUTED THE OPENING CASH BALA NCE, I.E., AS ON 01.04.2005, WITH THE ASSESSEE. FURTHER, NO DOUBT HAS BEEN EXPRE SSED BY THE A.O. WITH REGARD TO THE CASH WITHDRAWALS DURING THE YEAR FOR PERSONAL PURPO SES, STATED TO BE IN THE SUM OF RS.3.17 LACS. AS SUCH, THE ONLY VARIABLE, QUA THE NATURE AND THE SOURCE OF THE CASH WITH THE ASSESSEE (AND DEPOSITED IN BANK), FOR WHICH AN EXPL ANATION COULD BE SOUGHT FROM THE ASSESSEE, IS FOR RS.9.60 LACS, STATED TO BE RECOVER ED FROM THE DEBTORS OF THE CEASED BUSINESS. AS SUCH, FIRSTLY, IT IS NOT UNDERSTOOD AS TO HOW THE ADDITION IN THE SUM OF RS.12.31 LACS COULD POSSIBLY BE MADE, I.E., DE HORS THE MERITS OF THE EXPLANATION QUA THE RECEIPT OF CASH, WHICH IS LIMITED ONLY TO RS.9.60 L ACS. AT THE VERY OUTSET, THEREFORE, IN OUR VIEW, THE ADDITION FOR THE EXCESS AMOUNT OF RS.2.71 LACS BY THE A.O. IS MISPLACED AND DESERVES TO BE DELETED. 4.2 COMING, NEXT, TO THE ASSESSEES EXPLANATION FOR THE BALANCE SUM OF RS.9.60 LACS, CLAIMED TO BE RECOVERED FROM THE SUNDRY DEBTORS. EV EN AS POINTED DURING THE COURSE OF 6 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI THE HEARING, THE SAME IS SANS ANY MATERIAL OR EVIDENCE. AS RIGHTLY STATED BY THE ASSESSEE, WHILE EXPLAINING ITS CASE BEFORE THE A.O., THAT IT IS A HERCULEAN JOB TO COLLECT PAYMENTS IN RESPECT OF A CEASED BUSINESS, I.E., AFTER THE PERSO N STOPS SUPPLYING FURTHER GOODS, PARTICULARLY SO WHERE THE DEBTORS ARE OUTSTATION PA RTIES. AS SUCH, IT IS ITSELF SURPRISING THAT THE PERSONS WHO HAD NOT BEING PAYING THE ASSESSEES DUES, PERHAPS FOR YEARS TOGETHER, CHOSE TO PAY THEIR OUTSTANDINGS TO THE ASSESSEE AT ONCE, IN FULL, AND TOGETHER, AS IF CONSPIRING FOR THE SAME. THIS IS APART FROM THE FAC T THAT THE ASSESSEE HAS NEITHER SHOWN OF ANY EFFORTS TOWARD RECOVERY IN THE FORM OF VISITS T O THE UP-COUNTRY; TELEPHONE CALLS; APPROACHING THIRD PARTIES FOR FACILITATION, CONCILI ATION, ETC. FOR THE PURPOSE, NOR HAVING INITIATED ANY LEGAL PROCEEDINGS IN THE MATTER. THIS , THEREFORE, COULD ONLY BE EXPLAINED THROUGH PROVIDENCE, OR IS IT THAT THEY WERE MOVED B Y THE ASSESSEES REQUIREMENT FOR CASH IN VIEW OF THE CASH REQUIRED FOR MEETING THE EXPENS ES FOR HIS SONS WEDDING. THE LD. AR WOULD HAVE US BELIEVE THAT REFERENCE THERETO IS MIS CONCEIVED AND EXTRANEOUS INASMUCH AS THE SAID WEDDING HAD OCCURRED AS FAR BACK IN NOVEMB ER, 2004. HOWEVER, REFERENCE TO THE ASSESSEES CAPITAL ACCOUNT FOR THE YEAR (AT PB PG.9 ) WOULD CLARIFY IT AS NOT SO; THE ASSESSEE SHOWING THE DRAWINGS FOR THE YEAR AT RS.7.63 LACS, EXPRESSLY STATING OF THE SAME TO INCLUDE MARRIAGE EXPENSES. IN FACT, THE DEBTORS PAYING THE AMOUNT NOT THROUGH THE BANKING CHANNEL, BUT IN CASH, PARTICULARLY IN RESPECT OF PA ST DEBTS, SO THAT THERE IS NO REGULAR ACCOUNT OR TRADING TRANSACTIONS BETWEEN THE TWO, WO ULD SEEK TO EVIDENCE THE SAME, IF ONLY TO PROTECT THEMSELVES FROM ANY LEGAL PROCEEDINGS FO R RECOVERY. AS AFORESAID, NO EVIDENCE IN THE MATTER HAS BEEN FORTHCOMING, AND THE ASSESSE ES EXPLANATION OF CASH TO THAT EXTENT, I.E., AS RECOVERED FROM THE DEBTORS, IS WHOLLY WITH OUT BASIS. THE LD. CIT(A) HAS DELETED THE ADDITION WITHOUT RETURNING ANY POSITIVE FINDING /S IN ITS RESPECT AND DE HORS ANY MATERIAL ON RECORD, AND WHICH, THEREFORE, CANNOT HO LD. 4.3 THE ASSESSEES RELIANCE IN THE MATTER ON THE DE CISION IN THE CASE OF ANIS AHMAD AND SONS (SUPRA) IS MISCONCEIVED. IN THE FACTS OF THAT CASE, THE ENQUIRY FROM THE TRADERS WAS WITH REFERENCE TO RESOLVING THE ISSUE AS TO WHE THER THE ASSESSEES FIRM CARRIED THE BUSINESS AS COMMISSION AGENTS OR AS A TRADER. FOR A .Y. 1983-84, THE ASSESSEES CLAIM THAT 7 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI IT HAD ACTED AS A COMMISSION AGENT WAS ACCEPTED. FO R A.Y. 1984-85, THE A.O. SUMMONED TEN TRADERS U/S. 131(1) OF THE ACT. FIVE TRADERS AP PEARED AND GAVE EVIDENCE IN FAVOUR OF THE ASSESSEE. BUT THE OTHER FIVE, WHO WERE OUTSIDE THE STATE, DID NOT APPEAR AS SUMMONS COULD NOT BE SERVED ON THEM. THE A.O. MADE THE ASSE SSMENT, TREATING THE TRANSACTIONS WITH THE FIVE TRADERS, WHO HAD NOT GIVEN EVIDENCE, AS HAVING BEEN DONE IN THE CAPACITY OF A TRADER. IT WAS UNDER THESE CIRCUMSTANCES THAT THE APEX COURT, REVERSING THE DECISION BY THE APPELLATE TRIBUNAL AND THE HIGH COURT, HELD THA T NO ADVERSE INFERENCE FROM THE NON- APPEARANCE OF THE FIVE TRADERS OUTSIDE THE STATE CO ULD BE DRAWN. THE TRADERS WHO HAD APPEARED BEFORE THE ASSESSING AUTHORITY HAD GIVEN E VIDENCE IN SUPPORT OF THE ASSESSEES CLAIM. COMPARING IT WITH THE FACTS OF THE INSTANT CASE, IT IS APPARENT THAT THE FACT SITUATION OF THE TWO CASES ARE CLEARLY DISTINGUISHABLE. THE O NLY ISSUE IN THAT CASE WAS WHETHER THE ASSESSEE WAS ACTING AS A COMMISSION AGENT OR AS A T RADER, AND THE EVIDENCE BROUGHT ON RECORD, ON THE VERIFICATION BY THE A.O. HIMSELF, SH OWED THE ASSESSEE TO BE A TRADER, CONSISTENT WITH THE PAST RECORD. IT WAS UNDER THES E CIRCUMSTANCES THAT THE APEX COURT HELD THAT NO ADVERSE INFERENCE COULD BE DRAWN FROM THE N ON-APPEARANCE OF THE FIVE TRADERS FROM THE OUTSIDE THE STATE. IN THE INSTANT CASE, TH ERE IS NO EVIDENCE WHATSOEVER OF FIRSTLY THE AMOUNTS BEING DUE TO THE ASSESSEE AND, SECONDLY , OF ANY OF THE DEBTORS HAVING PAID THE ASSESSEE, MUCH LESS DURING THE PERIOD APRIL TO JULY, 2005, NONE OF WHOM, INCLUDING THOSE PLACED LOCALLY IN THE MUMBAI REGION, RESPONDE D TO THE NOTICES U/S.133(6). IT IS PERTINENT TO NOTE THAT THE NOTICES SENT CAME BACK U NSERVED WITH THE REMARKS NO SUCH PARTY AT THE GIVEN ADDRESS/INCOMPLETE ADDRESS BY T HE POSTAL AUTHORITIES. IT IS SURPRISING THAT THE PARTIES WHO ARE LOYAL TO THE ASSESSEE, STA NDING BY THEIR COMMITMENT TO HIM EVEN AFTER YEARS, AND THE CEASURE OF THEIR TRADING RELAT IONS WITH HIM, AND TILL ONLY RECENTLY; HAVING PAID HIM DURING THE SECOND QUARTER OF YEAR 2 005, COMPLETELY FAILED TO RESPOND TO THESE NOTICES OR FURNISHED INACCURATE ADDRESSES OR THAT THE ASSESSEE IS NOT AWARE OF THEIR WHEREABOUTS AND/OR ADDRESSES. WE, THEREFORE, FIND N O BASIS IN THE ASSESSEES CASE OF HAVING RECEIVED CASH TO THE EXTENT OF RS.9.60 LACS THROUGH THE DEBTORS OF HIS CEASED TEXTILE BUSINESS. THE ADDITION FOR THE SAME IS CONFIRMED, R EVERSING ITS DELETION BY THE FIRST APPELLATE AUTHORITY. WE DECIDE ACCORDINGLY. 8 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI THE DECISION IN THE CASE OF RACMANN SPRINGS (P.) LTD. (SUPRA) ALSO HAS NO APPLICATION IN THE INSTANT CASE INASMUCH AS, WITHOU T DOUBT, THERE IS NO QUESTION OF AN AMOUNT REALIZED FROM A TRADE DEBTOR AS BEING ASSESS ED AS INCOME. HOWEVER, IN THE PRESENT CASE THE ASSESSEE HAS COMPLETELY FAILED TO SHOW THE SAME AS HAVING BEEN SO REALIZED; THE WHOLE PREMISE OF THE ADDITION BEING THE INABILITY O F THE ASSESSEE TO EXPLAIN SATISFACTORILY THE NATURE AND THE SOURCE OF THE CASH ASCRIBED BY H IM TO THE DEBTORS, SO THAT IT STANDS BROUGHT TO TAX AS UNEXPLAINED INCOME. AGAIN, REFERE NCE TO THE DECISION IN THE CASE OF BHAICHAND H. GANDHI (SUPRA) WOULD BE OF NO ASSISTANCE TO THE ASSESSEE. THIS IS AS SECTIONS 68 AND 69A ARE PARA MATERIA . WHERE THE AMOUNT IS CREDITED IN THE ASSESSEES BOOKS, SECTION 68 OF THE ACT WOULD APPLY. ON THE OT HER HAND, WHERE NO SUCH BOOKS STAND MAINTAINED, AS IN THE PRESENT CASE, IT IS THE AMOUN T DEPOSITED IN THE ASSESSEES BANK ACCOUNT WHICH WOULD NEED TO BE EXPLAINED AS TO ITS NATURE AND SOURCE, AND SATISFACTORILY, IN THE ABSENCE OF WHICH THE SAME IS LIABLE TO BE AD DED AS THE ASSESSEES UNEXPLAINED INCOME BY THE A.O. THE PROPOSITION IS WELL SETTLED, EVEN AS WE MAY REFER TO THE DECISION IN THE CASE OF CIT VS. JAUHARIMAL GOEL (2005) 147 TAXMAN 148 (ALL.), SO THAT REFERENCE TO THE INAPPLICABILITY OF S. 68 WOULD, THUS, BE OF NO CONSEQUENCE. WE ARE AWARE THAT THE ASSESSEE HAS REFERRED TO NO OPPORTUNITY HAVING BEEN PROVIDED BY THE A.O., I.E., IN RESPECT OF THE NON-RESPONSE FROM THE SUNDRY DEBTORS. HOWEVE R, WE FIND NO GRIEVANCE ON THAT SCORE BEFORE THE LD. CIT(A), WHO HAS, THEREFORE, NO T ISSUED ANY FINDING IN THE MATTER. EVEN BEFORE US, NEITHER HAS THE ASSESSEE RAISED ANY GROUND NOR TAKEN A PLEA THAT IT WOULD BE ABLE TO, GIVE AN OPPORTUNITY, LEAD EVIDENCE IN T HE MATTER FROM THE SUNDRY DEBTORS. THE REFERENCE THERETO BY THE ASSESSEE, THEREFORE, IS ON LY AN ALIBI . IN FACT, ITS RELIANCE ON THE DECISION IN THE CASE OF ANIS AHMAD & SONS (SUPRA) ITSELF CONTRADICTS ITS CLAIM OF LACK OF OPPORTUNITY. 9 ITA NO.5651/MUM/2010 (A.Y. 2006-07) ITO VS. ASHOKKUMAR ISHWARLAL KEWALRAMANI 5. IN THE RESULT, THE REVENUES APPEAL IS PARTLY AL LOWED. 4 05 / 3 60 / 0 78 ORDER PRONOUNCED IN THE OPEN COURT ON JULY 19, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER '# / ACCOUNTANT MEMBER MUMBAI; 9& DATED : 19.07.2013 .&../ ROSHANI , SR. PS '3 / ,0: ;':(0 '3 / ,0: ;':(0 '3 / ,0: ;':(0 '3 / ,0: ;':(0/ COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT 3. < ( ) / THE CIT(A) 4. < / CIT - CONCERNED 5. :?@ ,0& , , / DR, ITAT, MUMBAI 6. @A' B / GUARD FILE '3& '3& '3& '3& / BY ORDER, C CC C/ // /7 7 7 7 (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI