Sanjeev Kumar, Yamunanagar V. ITO, Yamunanagar

ITA 581/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8320 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: B.K. NOHRIA
• Keywords: Assessment record
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 581/CHD/2016 ASSESSMENT YEAR: 2009-10 SHRI SANJEEV KUMAR, VS THE ITO, 154, RAMPURA COLONY, WARD-4, YAMUNA NAGAR. YAMUNA NAGAR. PAN: ALNPK3833B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.K.NOHRIA,C A RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 06.02.2017 DATE OF PRONOUNCEMENT : 14.02.2017 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) PANCHKULA DATED 14.03 .2016 FOR ASSESSMENT YEAR 2009-10. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO. 1 . SAME IS, THEREFORE, DISMISSED BEING NOT PRESSED. G ROUND NO. 3 IS GENERAL AND NEED NO ADJUDICATION. 3. ON GROUND NO. 2, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 7,17,040/-. 2 4. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER NOTED AS PER AIR INFORMATION AVAILABLE ON S YSTEM, THE ASSESSEE HAD DEPOSITED CASH OF RS.28,30,560/- I N HIS SAVING BANK ACCOUNT WITH THE BANK OF RAJASTHAN, YAM UNA NAGAR. A NOTICE WAS ISSUED AND SERVED ON THE ASSESS EE ON 13.12.2011 STATING THEREIN TO EXPLAIN THE CASH DEPO SIT OF RS.28,30,560/-. THE ASSESSEE FILED ITS REPLY WHICH IS REPRODUCED IN PARA 3 OF THE ASSESSMENT ORDER. THE EXPLANATION OF THE ASSESSEE WAS NOT FOUND SATISFACT ORY BY THE AO. THE SOURCE OF CASH DEPOSITS WAS NOT EXPLAIN ED BY THE ASSESSEE, THEREFORE, AFTER GIVING THE CREDIT OF SELF WITHDRAWAL FROM HIS SAVING BANK ACCOUNT, A PEAK AMO UNT OF RS.14,56,360/- WAS ADDED AS THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 5. DURING APPELLATE PROCEEDINGS, THE COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THERE IS NOTHING ON THE REC ORD IN THE ASSESSMENT FILE AS TO SHOW ON WHICH DATES THE ASSESSEE DEPOSITED CASH IN THE SAVING ACCOUNT AND H OW THE TOTAL FIGURE WAS ARRIVED. FURTHER, THERE WAS NO THING ON RECORD TO SHOW HOW THE WITHDRAWALS HAVE BEEN CALCULATED TO ARRIVE AT THE PEAK. IT IS A CASE OF A DHOC ADDITION WITHOUT ANY BASIS U/S 68 OF THE ACT. THE ASSESSEE FILED COPY OF CASH DEPOSITS AND WITHDRAWAL S MADE OUT' OF SAVING ACCOUNT SHOWING TOTAL CASH DEPO SIT OF RS.28,30,560/- AND THE TOTAL SELF WITHDRAWAL OF RS.24,51,400/-. THE ASSESSEE FILED COPY OF LEDGER A CCOUNT OF THE BANK AS SHOWN IN THE BOOKS OF ACCOUNT. CASH 3 DEPOSIT MADE IN THE SAVING ACCOUNT IS STATED TO BE OUT OF THE CASH AVAILABLE IN THE BOOKS OF ASSESSEE. FURTHE R, THE ASSESSEE RECEIVED CASH FOR THE REPAIR OF VEHICLES O F RS.5,30,478/- OUT OF WHICH CASH WAS DEPOSITED IN TH E SAVING ACCOUNT. THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS ANOTHER OVERDRAFT ACCOUNT IN THE NAME OF JVG MOTOR WHOSE PROPRIETOR IS THE APPELLANT. FROM T HIS ACCOUNT, THE ASSESSEE WITHDREW CASH AND DEPOSITED C ASH FROM TIME TO TIME AS PER THE NEED AND FELT APPROPRI ATE BY THE ASSESSEE. FROM THE PERUSAL OF THE OVERDRAFT ACC OUNT, IT WILL BE SEEN THAT DURING THE YEAR THIS ACCOUNT I S NORMALLY OVERDRAWN FROM RS.3 LACS TO RS.5.50 LACS. THE ASSESSEE OPENED SAVING ACCOUNT WITH THE BANK AND DEPOSITED CASH TO EARN INTEREST ON THE BALANCE, THI S WAS THE MAIN REASON FOR CASH TRANSACTION. 5(I) A REPORT WAS CALLED FROM THE AO VIDE THIS OFFI CE LETTER DATED 28.07.2015 ON THE WRITTEN SUBMISSIONS AND ANNEXURE FILED BY THE APPELLANT. THE AO IN HIS REMA ND REPORT HAS SUBMITTED THAT A NUMBER OF OPPORTUNITIES WERE ALLOWED TO EXPLAIN THE SOURCE OF CASH DEPOSITS BUT THE ASSESSEE HAS FAILED. NO BOOKS OF ACCOUNT WERE PRODU CED TO EXPLAIN THE SOURCE OF CASH DEPOSITS. IN THE ABSE NCE OF EXPLANATION OR BOOKS OF ACCOUNTS, THE AO ON MERIT ALLOWED THE CREDIT OF SELF-WITHDRAWAL OF RS.13,74,2 00/-, AND MADE NET ADDITION OF RS.14,56,360/- OUT OF THE TOTAL CASH DEPOSIT OF RS.28,30,560/-. THE AO AGAIN PROVID ED OPPORTUNITY DURING THE REMAND PROCEEDINGS AND THE 4 WRITTEN SUBMISSION FILED BY THE ASSESSEE WAS CONSID ERED. IN THE ABSENCE OF PROPER DOCUMENTS THE A.O. SUBMITT ED THAT ADDITION OF RS. 14,56,360/- WAS RIGHTLY MADE. 5(II) IN THE REJOINDER THE APPELLANT SUBMITTED THAT ORIGINALLY EVEN IF THE BOOKS OF ACCOUNTS OR ANY DET AILS HAVE NOT BEEN SHOWN BUT NOW THE APPELLANT HAS CLEAR LY PRODUCED THE RECORD OF ALL THE CASH DEPOSITS BEFORE THE AO ON 13.08.2015. AFTER THE LD. AO REFUSED TO REC EIVE THE DOCUMENTS IN PERSON THROUGH ORDER SHEET THE SAM E WAS DEPOSITED IN THE DIARY, THE DETAILS OF CASH DEP OSITS ALONGWITH BANK STATEMENTS AND CASH BOOK WHICH THE L D. AO HAS COMPLETELY FAILED TO COMMENTS IN THE REMAND REPORT. THE AO IS ONLY REPEATING THE ORIGINAL HISTO RY AND NOT THE DOCUMENTS SUBMITTED AND NOT COMMENTS HAS BEEN OFFERED BY THE AO IN THE REMAND REPORT AFTER EXAMINING THE DOCUMENTS WHICH ITSELF IS A CLEAR CAS E THAT KNOWING WELL THE CASE FOR THE ADDITIONS FAILS NO COMMENTS HAS BEEN MADE. EVEN THE LD. AO AS REQUESTE D BY THE APPELLANT HAS FAILED TO PROVIDE THE DETAILS OF CALCULATION OF PEAK WHICH SHOWS THAT HE LD. AO KNOW S WELL THAT THE ADDITION MADE BEEN WRONGLY MADE AND DESERVES TO BE DELETED. 6. THE LD. CIT(APPEALS) CONSIDERING EXPLANATION OF THE ASSESSEE, RESTRICTED THE ADDITION TO RS. 7,17,040/- AS AGAINST ADDITION OF RS. 14,56,360/- MADE BY THE ASSESSING OFFICER. THE APPEAL OF THE ASSESSEE WAS PARTLY 5 ALLOWED. THE FINDINGS OF LD. CIT(APPEALS) IN PARA 5.4 TO 5.7 ARE REPRODUCED AS UNDER : 5.4 I HAVE GONE THROUGH THE FACTS OF THE CASE, WRITTEN SUBMISSION FILED BY THE APPELLANT AND ASSESSMENT RECORD. IT IS NOTED THAT T HE AO ON FINDING ABOUT CASH DEPOSITS OF RS.28,30,560/- IN APPELLANT'S SAVING BANK ACCOUNT INQUIRED THE SOURCES OF CASH DEPOSIT. THE SOURCE OF CASH DEPOSIT S WERE NOT PROPERLY EXPLAINED BEFORE THE AO, THEREFOR E, AFTER GIVING THE CREDIT OF SELF WITHDRAWAL FROM THE APPELLANT'S SAVING BANK ACCOUNT, THE AO CONSIDERED THE PEAK CASH DEPOSITS OF RS. 14,56,360/- AS UNEXPLAINED CASH DEPOSITS AS PER PROVISIONS OF SECTION 68 OF THE ACT. ON THE OTHER HAND, THE COUNS EL FOR THE APPELLANT SUBMITTED THAT OUT OF TOTAL CASH DEPOSITS OF RS.28,30,560/-, THERE WERE SELF WITHDRAWALS TO THE EXTENT OF RS.24,51,400/-. IN ADDITION THERE WERE CASH RECEIPTS OF RS.5,30,478/- FROM REPAIR OF VEHICLES FROM ITS PROPRIETARY BUSINE SS IN THE NAME OF JVG MOTOR. THE CASH WAS DEPOSITED IN THE SAVING BANK ACCOUNT FROM THE EARLIER WITHDRAWAL S AND THE CASH RECEIPTS FROM REPAIR OF VEHICLES AS ENTERED IN THE CASH BOOK. ALTHOUGH, THE MATTER WAS REMANDED TO AO TO ENQUIRE ABOUT SOURCE OF EACH DEPOSITS CONSIDERING THE APPELLANT SUBMISSION, HOWEVER, IN THE REMAND REPORT THE AO HAS NOT ACCEPTED THE APPELLANT'S SUBMISSION AND REITERATED THE FINDINGS MADE DURING THE ASSESSMENT PROCEEDINGS. THE APPELLANT IN THE REJOINDER OBJECTE D TO THE AO'S AND REITERATED ITS SUBMISSION THAT SOUR CE OF CASH DEPOSITS AS SUBMITTED EARLIER IS EXPLAINED BEING OUT OF THE EARLIER WITHDRAWALS AND THE CASH RECEIVED FROM THE PROPRIETARY BUSINESS. 6 5.5 REGARDING THE CASH DEPOSITS IN APPELLANT'S ACCOUNT, I REFER TO THE JUDGMENT BY HON'BLE SUPREME COURT IN THE CASE OF KALE KHAN MOHAMMAD HANIF VS. CIT (1963) 50ITR 1 (SC). THE HON'BLE SUPREME COURT IN THAT CASE GAVE THE FOLLOWING FINDINGS:- 'IT IS WELL ESTABLISHED THAT THE ONUS OF PROVIDING THE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVE D BY THE ASSESSEE IS ON HIM. IF HE DISPUTES LIABILITY FOR TAX, IT IS FOR HIM TO SHOW EITHER THAT THE RECEIPT -WAS NOT INCOME OR THAT IF IT WAS, IT WAS EXEMPT FROM TAXATI ON UNDER THE PROVISIONS OF THE ACT. IN THE ABSENCE OF SUCH PROOF, THE ITO IS ENTITLED TO TREAT IT AS TAXABLE I NCOME. ' 5.6 FURTHER, IN THE CASE OF ROSHAN DI HATTI VS. CIT 107 ITR 938, THE HON'BLE SUPREME COURT HELD AS UNDER: 'NOW, THE LAW IS WELL SETTLED THAT THE ONUS OF PROV ING THE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE IN ON HIM. IF HE DISPUTES T HE LIABILITY FOR TAX, IT IS FOR HIM TO SHOW EITHER THA T THE RECEIPT WAS NOT INCOME OR THAT IF IT WAS, IT WAS EX EMPT FROM TAXATION UNDER THE PROVISIONS OF THE ACT. IN T HE ABSENCE OF SUCH PROOF, THE REVENUE IS ENTITLED TO T REAT IT AS TAXABLE INCOME. * TO PUT IT DIFFERENTLY, WHERE THE NATURE AND SOURCE OF A RECEIPT WHETHER IT BE OF MONEY OR OF OTHER PROPERTY , CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME O F THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THAN INCOME IS FROM ANY PARTICULAR SOURCE .' 5.7 IN VIEW OF ABOVE FACTS AND JUDICIAL PRONOUNCEMENTS, IT IS FOUND THAT THE APPELLANT HAS NOT 7 PROVED SATISFACTORILY REGARDING THE CASH DEPOSITS I N THE APPELLANT'S BANK ACCOUNTS. AFTER CONSIDERING TH E FACTS AND SUBMISSION, THE DATE WISE BALANCES FOR CA SH DEPOSITS AND WITHDRAWAL IN THE BANK WAS EXAMINED AND IT WAS FOUND THAT THE APPELLANT HAD NEGATIVE AS WELL AS POSITIVE CASH BALANCES ON DAY TO DAY BASIS. EVEN AFTER GIVING THE EFFECT OF WITHDRAWALS MADE FR OM THE BANK ACCOUNT PRECEDING TO THE DEPOSIT OF CASH I N THE BANK ACCOUNT, IT IS FOUND THAT ON THE DATE OF DEPOSITS OF CASH THERE WERE NO AVAILABLE CASH BALAN CE WITH THE APPELLANT TO MAKE DEPOSIT FROM THE KNOWN SOURCE. EVEN IF, THE CASH RECEIPT FROM REPAIR JOB I S CONSIDERED, IT IS NOTED THAT THE DAY TO DAY CASH RECEIPTS WERE NOT SUFFICIENT TO HAVE ACCUMULATION T O THE EXTENT OF DEPOSIT IN THE BANK ACCOUNT AND NULLI FY THE NEGATIVE CASH BALANCE. FROM THE STATEMENT, IT I S NOTICED THAT THE PEAK NEGATIVE CASH BALANCE WAS RS.7,17,040/- IN THE SAVING BANK ACCOUNT. THEREFORE , AFTER CONSIDERING THE APPELLANT'S SUBMISSION, IT IS FOUND THAT THE APPELLANT HAS NOT BEEN ABLE TO SATISFACTORILY EXPLAIN THE SOURCE OF CASH DEPOSITS TO THE EXTENT OF RS.7,17,040/-. THE APPELLANT FAILED T O PROVIDE EXPLANATION REGARDING THE SOURCE OF RS.7,17,040/- WHICH IS FOUND TO BE UNEXPLAINED AND LIABLE TO BE ADDED TO THE TAXABLE INCOME AS PER DEEMING PROVISIONS U/S 68/69A OF THE ACT. THUS, THI S GROUND OF APPEAL IS PARTLY ALLOWED. 7. AFTER CONSIDERING RIVAL SUBMISSIONS, I DO NOT FI ND ANY MERIT IN THE GROUND OF APPEAL OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT CASH BALANCES AVAILABLE TO THE ASSESSEE FROM BOOKS OF AC COUNT HAVE NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW THEREFORE, MATTER MAY BE REMANDED TO THE ASSESSING 8 OFFICER FOR VERIFYING THE CASH AVAILABLE TO THE ASS ESSEE AS PER BOOKS OF ACCOUNT. ON THE OTHER HAND, LD. DR SUBMITTED THAT ON THE EXPLANATION OF THE ASSESSEE, REMAND REPORT FROM THE ASSESSING OFFICER WAS CALLED FOR IN WHICH ASSESSING OFFICER HAS EXPLAINED THAT DESPI TE NUMBER OF OPPORTUNITIES ALLOWED TO THE ASSESSEE, NO BOOKS OF ACCOUNT HAVE BEEN PRODUCED TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS. EVEN IN REMAND PROCEED INGS, ONLY COPY OF COMPUTERIZED CASH BOOK PRODUCED WITHOU T EXPLAINING SOURCE OF CASH DEPOSIT. THEREFORE, THERE IS NO NEED TO REMAND THE MATTER AGAIN TO THE FILE OF ASSE SSING OFFICER. 8. IN VIEW OF THE ABOVE FACTS NOTED AND THE FACT TH AT ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS AND AT REMAND PROCEEDINGS, ONLY COPY OF COMPUTERIZED CASH BOOK PRODUCED WITHOUT SUBSTANTIATING THE SOURCE OF CASH DEPOSIT, IT IS CLEAR THAT ASSESSEE NEVER INTENDED T O PRODUCE THE BOOKS OF ACCOUNTS BEFORE ASSESSING OFFI CER FOR EXAMINING WHETHER CASH WAS AVAILABLE TO THE ASS ESSEE TO EXPLAIN ABOVE BANK DEPOSITS. THE LD. CIT(APPEAL S), APART FROM THIS FACT HAS ALSO CONSIDERED THE CASH DEPOSITS AND WITHDRAWALS FROM THE BANK AND FOUND TH AT THERE WAS A NEGATIVE AS WELL AS POSITIVE CASH BALAN CES ON DAY-TO-DAY BASIS. THE ASSESSEE HAS FAILED TO RECO NCILE THE SAME BECAUSE ON DATES OF DEPOSIT OF CASH, THERE WAS NO AVAILABILITY OF CASH WITH ASSESSEE. THEREFORE, LD. 9 CIT(APPEALS) DESPITE ASSESSEE FAILED TO PRODUCE BOO KS OF ACCOUNTS BEFORE ASSESSING OFFICER IN THE REMAND PROCEEDINGS, HAS GRANTED SUFFICIENT RELIEF TO THE A SSESSEE. SINCE ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUNTS AN D DID NOT SATISFY THE AUTHORITIES BELOW REGARDING SOU RCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT, THEREFORE, MATTER NEED NOT TO BE REMANDED TO THE FILE OF ASSESSING OF FICER FOR FRESH VERIFICATION. THUS, THE ASSESSEE FAILED TO EXPLAIN SOURCE OF THE CASH DEPOSITS IN THE BANK ACC OUNT, THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE MAT TER. THIS GROUND OF APPEAL OF THE ASSESSEE HAS NO MERIT, SAME IS ACCORDINGLY DISMISSED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED 14 TH FEBRUARY,2017. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH