The Income-tax Officer, Hoshiarpur V. Sh. Sanjeev Vashisht Prop. M/s Vashisht Investment, Hoshiarpur

ITA 60/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0574 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 28-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Assessee Lawyers: DINESH SARNA
• Keywords: Unexplained investment; Business income; Income from undisclosed sources; Salary income; Assessment record; Onus to prove
• Section: 143(3); 142(1); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.60(ASR)/2015 ASSESSMENT YEAR:2011-12 PAN: AAJPV1903E INCOME TAX OFFICER, VS. SH. SANJEEV KUMAR VASHISHT , WARD-1, HOSHIARPUR. GALI NAVI PINDIAN, HOSHIARPUR . (APPELLANT) (RESPONDENT) APPELLANT BY: SH.BHAWANI SHANKER, DR RESPONDENT BY: SH. DINESH SARNA, ADV DATE OF HEARING: 27/06/2016 DATE OF PRONOUNCEMENT: 11/07/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2011-12 AGAINST THE ACTION OF THE LD. CIT(A), JALANDHAR, IN DELETING ADDITION OF RS.42,65,140/- MADE BY THE AO ON ACCOUNT OF UNEXPLA INED CASH DEPOSIT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL DERIVING INCOME FROM COMMISSION WHILE WORKING AS AN INSURANC E COMMISSION AGENT APART FROM SALARY INCOME, FILED HIS RETURN OF INCOME ON 23.03.2012 AT AN INCOME OF RS.1,78,530/-. AS PER AIR INFORMATI ON, THE ASSESSEE HAD DEPOSITED CASH OF RS.37,42,000/- IN A SAVINGS BANK ACCOUNT MAINTAINED WITH ICICI BANK. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE WAS ALSO MAINTAINING AN OVERDRAFT ACCOUNT WITH UNITED ITA NO.60(ASR)/2015 A.Y. 2011-12 2 BANK OF INDIA, ON PERUSAL OF WHICH, IT WAS NOTICED THAT THE ASSESSEE HAD ALSO MADE CASH DEPOSITS OF RS.17,55,000/- IN HIS AC COUNT. THE EXPLANATION FURNISHED BY THE ASSESSEE WITH REGARD T O THE SOURCES OF THE CASH DEPOSIT WAS NOT ACCEPTED BY THE AO. HE, THEREF ORE, MADE AN ADDITION OF RS.42,65,140/- TO THE RETURNED INCOME O F THE ASSESSEE, WHICH WAS THE PEAK AMOUNT OF DEPOSITS IN THE TWO B ANK ACCOUNTS. 3. THE LD. CIT(A), DELETING THE ADDITION OBSERVED AS FOLLOWS: 6.5 I HAVE CAREFULLY CONSIDERED THE OBSERVATIONS O F THE ASSESSING OFFICER AS MADE BY HIM IN THE ASSESSMENT ORDER AS W ELL AS IN THE REMAND REPORT. I HAVE ALSO CONSIDERED THE VARIOUS W RITTEN SUBMISSIONS OF THE ASSESSEE FILED VIDE LETTERS DATE D 18.09.2014 & 14.11.2014 AS WELL AS HIS COUNTER COMMENTS ON THE R EPORT OF THE ASSESSING OFFICER. I HAVE FURTHER CONSIDERED THE OT HER MATERIAL BROUGHT ON RECORD. ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS, I AM OF THE OPINION THAUH;>NLY DISPUTE IN THE CASE OF THE ASSESSEE IS WITH REGARD TO THE SOURCE OF CASH DEPOSITED IN H IS BANK ACCOUNTS MAINTAINED BY HIM WITH ICICI BANK AND UNITED BANK O F INDIA. LOOKING TO THE EVIDENCE PRODUCED BY THE ASSESSEE, I T HAS TO BE SEEN THAT AS TO WHETHER THE CASH DEPOSITED IN THE BANK A CCOUNTS IS UNEXPLAINED INCOME OF THE ASSESSEE OR IT REPRESENTS THE BUSINESS RECEIPTS OF THE ASSESSEE. 6.6. DURING THE COURSE OF ASSESSMENT AS WELL AS APP ELLATE PROCEEDINGS, THE ASSESSEE HAD SUBMITTED THAT HE IS PROVIDING INSURANCE ADVISORY SERVICES, INSURANCE PREMIUM DEPO SIT SERVICES, AIR TICKET AND RAILWAY TICKET BOOKING SERVICES, MOBILE SERVICE, HOTEL TOUR PACKAGE AND BOOKING SERVICES, DTH BILL PAYMENT SERV ICES, TELEPHONE & ELECTRICITY BILL PAYMENT SERVICES ETC. TO HIS CLI ENTS, WHICH FACT HAS ALSO NOT BEEN DENIED BY THE ASSESSING OFFICER ANYWH ERE IN THE ASSESSMENT ORDER. THE ADDITION APPEARS TO HAVE BEEN MADE BY THE ASSESSING OFFICER MAINLY ON THE GROUND THAT THE ASS ESSEE HAS NOT MAINTAINED REGULAR BOOKS OF ACCOUNT SUCH AS CASH BO OK AND LEDGER. HOWEVER, I AM OF THE CONSIDERED OPINION THAT THE RE CORDS KEPT BY THE ASSESSEE IN THE FORM OF RECEIPTS BOOKS AND DAILY CO LLECTION AND DISBURSEMENT REGISTER IS SUFFICIENT TO ESTABLISH TH AT THE ASSESSEE IS PROVIDING THE SERVICES AS STATED BY HIM FROM THE P ERUSAL OF THE RECEIPT BOOKS AND DAILY CASH COLLECTION AND DISBURS EMENT REGISTER WHICH WERE PRODUCED IN ORIGINAL DURING THE COURSE O F ASSESSMENT AND APPELLATE PROCEEDINGS, I AM OF THE OPINION THAT THE CASH ITA NO.60(ASR)/2015 A.Y. 2011-12 3 DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE WAS OUT OF HIS BUSINESS RECEIPTS IN CASH WHICH HE HAS COLLECTED FR OM HIS REGULAR CUSTOMERS WHILE PERFORMING THE ABOVE REFERRED SERVI CES WHICH HAS FURTHER BEEN UTILIZED BY HIM FOR PROVIDING ABOVE SA ID SERVICES TO HIS CUSTOMERS. HOWEVER, THE ASSESSING OFFICER WHILE FRA MING THE ASSESSMENT HAS NOT CONSIDERED THE EXPLANATION OFFER ED BY THE ASSESSEE IN ITS TRUE PROSPECTIVE AND CONSIDERED ALL THE CASH DEPOSITS IN BANK ACCOUNT AS UNEXPLAINED INCOME OF THE ASSESS EE. 6.7 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE AGAIN PRODUCED DAILY REGISTER, DAILY RECEIPT BOOKS AND CA SH FLOW STATEMENT FOR THE YEAR UNDER CONSIDERATION WHICH WAS ALSO VER IFIED AND EXAMINED ON TEST CHECKED BASIS. ON EXAMINATION OF T HE RECORD KEPT BY THE ASSESSEE, IT IS FOUND THAT DURING THE YEAR U NDER CONSIDERATION, THE ASSESSEE WAS HAVING RS. 1,17,487 /- AS OPENING BALANCE, CASH COLLECTION RECEIVED DURING THE YEAR W AS AMOUNTING TO RS. 85,03,404/- OUT OF WHICH CASH AMOUNTING TO RS. 54,50,525/- WAS DEPOSITED IN BANK ACCOUNTS (I.E. RS. 38,12,025/ - IN ICICI BANK AND RS. 16,38,500/- IN UNION BANK OF INDIA) AND CAS H AMOUNTING RS. 31,43,335/- HAS BEEN UTILIZED TO MEET THE EXPEN SES AND CLOSING CASH BALANCE WAS SHOWN AT RS. 27,031/-. IN MY OPINI ON, THE ASSESSEE WAS HAVING SUFFICIENT FUNDS AVAILABLE WITH HIM TO MAKE CASH DEPOSITS IN HIS BANK ACCOUNTS. ALTHOUGH THE AS SESSEE HAS NOT MAINTAINED PROPER BOOKS OF ACCOUNTS BUT IN MY OPINI ON THE ASSESSEE HAD MAINTAINED ALL THE OTHER RECORDS WHICH ARE SUFF ICIENT ENOUGH TO DETERMINE THE INCOME OF THE ASSESSEE. IT HAS FURTHE R BEEN NOTICED THAT THE ASSESSMENT IN THE CASE OF THE ASSESSEE FOR THE A.Y 2008-09 & 2009-10 WAS ALSO FRAMED UNDER SECTION 143(3) OF T HE ACT UNDER SIMILAR FACTS AND CIRCUMSTANCES AND WHILE FRAMING T HE ASSESSMENTS FOR THESE YEARS, THE ASSESSING OFFICER HAS DULY CON SIDERED ALL THE FACTS AND ACCEPTED THE CASH DEPOSITED IN THE BANK A CCOUNTS AS BUSINESS RECEIPTS OF ASSESSEE. 6.8 IN VIEW OF THE ABOVE STATED FACTS AND IN THE CI RCUMSTANCES OF THE CASE MORE PARTICULARLY THE FACT THAT THE CASH DEPOS ITED IN THE BANK ACCOUNTS OF THE ASSESSEE HAS BEEN ACCEPTED AS BUSIN ESS RECEIPTS OF THE ASSESSEE, 1 AM OF THE CONSIDERED OPINION THAT I T IS AN UNDISPUTED FACT THAT THE ASSESSEE IS PROVIDING VARI OUS VALUED SERVICES TO HIS CUSTOMERS, WHICH IS NOT DENIED EVEN BY THE ASSESSING OFFICER. I AM ALSO OF THE OPINION THAT THE ASSESSEE HAS MAINTAINED ALL THE RECORDS OF RECEIPTS AND PAYMENTS WHICH WERE PRO DUCED AND VERIFIED DURING ASSESSMENT AS WELL AS APPELLATE PRO CEEDING. I AM FURTHER OF THE OPINION THAT THE CASH DEPOSIT IN THE BANK ACCOUNTS OF THE ASSESSEE IS OUT OF THE CASH RECEIVED BY THE ASS ESSEE FROM HIS CUSTOMERS AND NOT UNACCOUNTED INCOME OF THE ASSESSE E. I AM AGAIN OF THE OPINION THAT THE ASSESSING OFFICER IS NOT JU STIFIED IN MAKING ITA NO.60(ASR)/2015 A.Y. 2011-12 4 ADDITION OF RS.42,65,140/- TO THE RETURNED INCOME O F THE ASSESSEE BY TREATING PEAK AMOUNT OF THE CASH DEPOSITS AS UNE XPLAINED INCOME OF THE ASSESSEE. THE ADDITION OF RS.42,65,140/- MAD E BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DE POSITS IS, THEREFORE, DIRECTED TO BE DELETED. IN THE RESULT, G ROUNDS NO. 2, 2.1, 2.2, 3 AND 4 OF APPEAL TAKEN BY THE ASSESSEE ARE AL LOWED. 4. THE LD. DR HAS CONTENDED THAT THE LD. CIT(A) HA S ERRED IN LAW IN DELETING THE ADDITION OF RS.42,65,140/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. HE FURTHER SUBMITTED THA T THE LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THAT THE ADDITION WAS MAD E BY THE AO ON THE BASIS OF FACTS GATHERED ON RECORD DURING THE ASSESS MENT PROCEEDINGS. ACCORDINGLY, HE PRAYED THAT THE ORDER OF THE LD. CI T(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STRONGLY RELIED ON THE IMPUGNED ORDER. IT HAS ALSO BEEN CONTENDED T HAT THE LD. CIT(A) HAS CORRECTLY APPRECIATED THE FACTS AND HAS PASSED A WELL REASONED ORDER, WHICH DOES NOT REQUIRE ANY INTERFERENCE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS ARE THAT T HE ASSESSEE IS AN INSURANCE ADVISOR AND HE IS PROVIDING SERVICES TO H IS CUSTOMERS AND MAINTAINED SAVINGS BANK ACCOUNT WITH ICICI AND OVER DRAFT WITH UNITED BANK OF INDIA, WHEREIN, THE CUSTOMERS OF THE ASSESS EE DEPOSITED CASH AND THE ASSESSEE TRANSFERRED THIS AMOUNT TO ITZ CAS H CARD, THROUGH WHICH, THE ASSESSEE MADE PAYMENT TO THIRD PARTIES S UCH AS RAILWAY TICKETS, DTH RECHARGE, AIR TICKETS, MOBILE RECHARGE , ELECTRICITY BILL, MOBILE ITA NO.60(ASR)/2015 A.Y. 2011-12 5 BILL AND ANY OTHER FACILITY ON THE BEHALF OF HIS C USTOMERS. THE ASSESSEE HAD NOT MAINTAINED ANY CASH BOOK LEDGER, BUT THE A SSESSEE MAINTAINED ALL THE RECORD OF HIS TRANSACTIONS MADE THROUGH BAN K AND ITZ CASH CARD, WHICH HAD DULY BEEN FURNISHED BY THE ASSESSEE BEFOR E THE A.O. THE ASSESSEE SUBMITTED THAT CUSTOMERS MONEY IS DEPOSIT ED IN ICICI BANK AND THE PAYMENTS ARE MADE TO THE PARTIES THROUGH M/ S. INTERACTIVE TRADIX INDIA PVT. LTD. THE ASSESSEE FURNISHED DATE- WISE AND AMOUNT-WISE DETAILS OF CASH DEPOSIT AMOUNTING TO RS.37,62,300/- AND SUBMITTED THAT THE CASH DEPOSITED IN BANK ACCOUNT BY HIS CUSTOMERS FOR PROVIDING FREE INSURANCE ADVISORY SERVICES TO THEM, THE ASSESSEE E XTRACTED DEBIT FROM THE SAID ACCOUNT AND FURNISHED A SUMMARY THEREOF VI DE LETTER DATED 15.01.2014, ACCORDING TO WHICH, PAYMENTS TO THE TUN E OF RS.34,47,657.76 ARE CLAIMED TO HAVE BEEN MADE ON BE HALF OF HIS CUSTOMERS, WHILE A SUM OF RS.3,91,000/- IS CLAIMED TO HAVE BEEN REFUNDED TO HIS CUSTOMERS. IT WAS FURTHER STATED TH AT THE ASSESSEE IS ENGAGED IN THE INSURANCE ADVISORY SERVICES AND MAIN TAINING THESE BANK ACCOUNT FOR THE LAST SO MANY YEARS; AND THAT THE AS SESSMENTS WERE ALSO FRAMED IN THE AYS 2008-09 & 2009-2010 WHEREIN, DURI NG THE ASSESSMENT YEAR, THE ASSESSEE WAS MAINTAINING THE SAME BANK AC COUNT, WHICH WAS DULY CONSIDERED WHILE FILING RETURN OF INCOME AND T HE SAME WAS DULY ACCEPTED BY THE THEN AO WHILE FRAMING ASSESSMENT IN THOSE YEARS. 7. BEFORE THE LD. CIT(A), THE ASSESSEE FILED WRITTE N SUBMISSIONS, AS FOLLOWS: ITA NO.60(ASR)/2015 A.Y. 2011-12 6 6.1 IN SUPPORT OF GROUNDS NO. 2, 2.1, 2.2, 3 AND 4 OF APPEAL, THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS VIDE LET TER DATED 18.09.2014 WHICH READ AS UNDER: IN ADDITION TO THE STATEMENT OF FACTS AND GROUNDS O F APPEAL IT IS SUBMITTED THAT THIS IS THE CASE OF AN ASSESSEE, INDIVIDUAL, DRIVIN G INCOME MAINLY AS A SALARIED EMPLOYEE AND ALSO EARNING COMMISSION INCOME AS INSU RANCE AGENT OF LIC, ICICI SECURITIES LTD. AND NATUREWAY NETWORK MARKETI NG (P) LTD.. BESIDE THAT ASSESSEE WAS PROVIDING INSURANCE ADVISORY SERVICES, INSURANCE PREMIUM DEPOSIT SERVICES, AIR TICKET AND RAILWAY TICKET BOO KING SERVICE, MOBILE RECHARGE, HOTEL TOUR PACKAGE AND BOOKING SERVICE, DTH BILL PA YMENT, TELEPHONE & ELECTRICITY BILL PAYMENT. ALL THE RELEVANT DOCUMENT ARY EVIDENCES AND RECORDS WERE MAINTAINED SHOWING RECEIPTS & PAYMENTS. ASSESS EE HAS FILED RETURN OF INCOME ON 23.03.2012 BY DECLARING NET INCOME OF RS. 1,78,530/-. NOTICE U/S 143(2) & 142(1) WERE ISSUED, IN RESPONSE TO WHICH A SSESSEE FILED ALL THE DOCUMENTS AND INFORMATION CALLED FROM LIME TO TIME. DURING THE COURSE OF ASSESSMENT PROCEEDING ASSESSEE WAS ASKED FOR THE SO URCES OF CASH DEPOSIT IN ICICI BANK LTD. AND UNITED BANK OF INDIA, IN RESPON SE TO WHICH ASSESSEE SUBMITTED THAT CASH DEPOSIT RELATES TO THE BUSINESS OF ASSESSSEE, ASSESSEE HAS BEEN PROVIDING INSURANCE ADVISORY SERVICE TO TH E AOUND OF 2000 CUSTOMERS BUT THE LD. ASSESSING OFFICER IGNORING THE SUBMISSI ON OF ASSESSEE FRAMED ASSESSMENT U/S 143(3) AT AN INCOME OF RS. 44,43,670 /- AGAINST THE RETURNED INCOME OF RS. 1,78,530/- BY TREATING THE PEAK CASH DEPOSIT AMOUNTING TO RS. 42,65,140/- IN SAID BANK ACCOUNT AS INCOME FROM UND ISCLOSED SOURCES. AGGRIEVED BY THE ORDER ASSESSEE PREFERRED PRESENT A PPEAL BEFORE YOUR GOODSELF ON THE FOLLOWING GROUNDS: 1. THAT THE LD. ASSESSING OFFICER IGNORING THE SUBM ISSION OF ASSESSEE WRONGLY TREATED THE PEAK CASH DEPOSIT AMOUNTING TO RS. 42,65,140/- IN SAID BANK ACCOUNT AS INCOME FROM UNDISCLOSED SOURCE S WHERE AS ASSESSEE IS A INSURANCE AGENT & TRAVEL AGENT AND PA YMENT OUT OF THIS ACCOUNT WAS MADE ON BEHALF OF CUSTOMERS AFTER RECEI VING CASH FROM RESPECTIVE CUSTOMERS. 2. THAT LD. ASSESSING OFFICER ERRED IN JUST TOTALING UP THE CASH DEPOSIT ENTRIES WITHOUT APPLYING HIS MIND ON THE DEPOSIT EN TRIES THROUGH TRANSFER OF FUNDS FROM THE RESPECTIVE BANK ACCOUNTS . 3. THAT THE LD. ASSESSING OFFICER TOTALLY IGNORED T HE INFORMATION BROUGHT ON RECORD IN THE FORM OF BANK STATEMENT ON WHICH HE IS RELIED BECAUSE NO COGNIZANCE OF THE DEBIT ENTRIES SHOWN TO M/S INTRACTIVE TRADE INDIA PVT. LTD. (ITZ CASH CARD), IRCTC, DISH TV INDIA LTD. THROUGH NEFT OR ACCOUNT PAYEE CHEQUE. SIR, IT IS SUBMITTED THAT DURING THE COURSE OF ASSE SSMENT PROCEEDING ASSESSES WAS ASKED FOR THE SOURCES OF CASH DEPOSIT IN ICICI BANK AMOUNTING TO RS. 37,62,300/-. IN RESPONSE TO WHICH ASSESSSEE SUBMITT ED THAT 'CUSTOMERS MONEY IS DEPOSITED IN ICICI BANK IN THE ABOVE MENTI ONED ACCOUNT AND THE ACCOUNT NO. IS 023601500887 AND THE AMOUNT IS APPRO X. 37,00,000/-PAYMENT ARE MADE TO ABOVE PARTIES ON THE BEHALF TO THE PART IES THROUGH M/S INTERACTIVE TRADIX INDIA PVT. LTD.. ' BUT THE LD. ASSESSING OFF ICER IGNORE THE SUBMISSION OF ASSESSEE ONLY BY STATING THAT '. THE ASSESSEE FAILED TO FURNISH THE LIST OF HIS CUSTOMERS INDICATING THEIR NAME AND COMPLETE ADDRES SES AND THE AMOUNT DEPOSITED BY THEM ON HIS BEHALF ETC. NOR HIS CONTEN TION IS OTHERWISE VERIFIABLE IN THE ABSENCE OF ANY ACCOUNT HAVING BEEN KEPT AND MAINTAINED BY HIM NOR EVEN HE HAS DECLARED ANY RECEIPT OF THE LIKE AMOUNT NOR CLAIMED ANY EXPENSES ITA NO.60(ASR)/2015 A.Y. 2011-12 7 THEREFROM IN THE RETURN OF INCOME NOR FURNISHED ANY SUCH DETAIL/ INFORMATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SIR, FURTHER ASSESSEE WAS AGAIN ASKED FOR THE SOURC ES OF CASH DEPOSIT IN BANK ACCOUNT AND WHY ADDITION OF THE LIKE AMOUNT BE NOT MADE TO HIS TOTAL INCOME REPRESENTING INCOME FROM UNDISCLOSED SOURCES AS UNE XPLAINED INVESTMENT MADE IN THE GRAB OF THE SAID CASH DEPOSIT AMOUNTING TO RS. 37,62,300/-. IN RESPONSE TO WHICH ASSSESSEE FURNISHED DATE WISE AND AMOUNT WISE DETAIL OF CASH DEPOSIT AMOUNTING TO RS. 37,62,300/- AND SUBMI TTED THAT THE CASH DEPOSITED IN BANK ACCOUNT BY HIS CUSTOMERS FOR PROV IDING FREE INSURANCE ADVISORY SERVICES TO THEM, THE ASSESSEE EXTRACTED T HE DEBIT FROM THE SAID ACCOUNT AND FURNISHED A SUMMARY THEREOF VIDE HIS LE TTER FILED ON 15.01.2014 ACCORDING TO WHICH PAYMENT TO THE TUNE OF RS. 34,47 ,657.76 ARE CLAIMED TO HAVE BEEN MADE ON THE BEHALF OF HIS CUSTOMERS WHILE A SUM OF RS. 3,91,000/- IS CLAIMED TO HAVE BEEN REFUNDED HIS CUSTOMERS BUT THE LD. ASSESSING OFFICER IGNORE THE SUBMISSION OF ASSESSEE MADE ADDITION BY STATING THAT ASSESSEE HAS NOT FURNISHED ANY CONFIRMATION OR EVIDENCE REGARDIN G CASH DEPOSIT. THEREFORE, THE EXPLANATION FURNISHED BY ASSESSEE BEING UNTENAB LE IS HEREBY REJECTED AS UNSUBSTANTIATED WITH THE RESULT THAT THE CASH DEPOS IT EITHER MADE IN SAVING BANK ACCOUNT OR MADE IN OVERDRAFT ACCOUNT ARE TREAT ED AS UNEXPLAINED. SIR, BESIDE, IT WAS ALSO STATED BY THE ASSESSEE TAT SOME OF THE CASH WITHDRAWAL MADE FROM THE OVERDRAFT ACCOUNT WERE ALS O DEPOSITED IN THE SAVING BANK ACCOUNT AND SIMILAR CASH WITHDRAWALS MADE FROM THE SAVING BANK ACCOUNT WERE DEPOSITED IN THE OVERDRAFT ACCOUNT, TO O. KEEPING THE PART OF HIS EXPLANATION IN VIEW AND IN THE INTEREST OF JUSTICE, A PEAK CASH DEPOSIT CHART IS DRAWN. THE PEAK AMOUNT OF CASH DEPOSIT AFTER TAKING INTO CONSIDERATION BOTH THE ACCOUNTS CALCULATES RS. 42,65,140/- AS ON 28.03 .2011 AND THUS FOLLOWING, ADDITION OF RS. 42,65,140/- ON ACCOUNT OF UNEXPLAIN ED PEAK AMOUNT OF CASH DEPOSIT AS ON 28.03.2011 IS HEREBY MADE TO THE TOTA L INCOME OF ASSESSEE. SIR, IT IS SUBMITTED THAT IT IS FACT THAT ASSESSEE IS AN INSURANCE ADVISOR AND HE IS PROVIDING ANY OTHER SERVICES TO HIS CUSTOMERS, D URING THE YEAR UNDER CONSIDERATION ASSESSEE MAINTAINED SAVING BANK ACCOU NT WITH ICICI AND OVERDRAFT WITH UNITED BANK OF INDIA WHEREIN THE CUS TOMERS OF ASSESSEE DEPOSITED CASH AND ASSSEESEE TRANSFER THIS AMOUNT T O ITZ CASH CARD THROUGH WHICH ASSESSEE MADE PAYMENT TO THE THIRD PARTIES SU CH AS RAILWAY TICKETS, DTH RECHARGE, AIR TICKETS, MOBILE RECHARGE, ELECTRI CITY BILL, MOBILE BILL AND ANY OTHER FACILITY ON THE BEHALF OF HIS CUSTOMERS. SIR, IT IS FACT THAT ASSESSEE HAS NOT MAINTAINED AN Y CASH BOOK LEDGER BUT ASSESSEE MAINTAINED ALL THE RECORD OF HIS TRANSACTI ONS MADE THROUGH BANK AND ITZ CASH CARD WHICH HAS DULY BEEN FURNISHED BY ASSE SSEE BEFORE THE LD. ASSESSING OFFICER AND MOREOVER IT IS ALSO CLEAR FRO M THE NARRATION STATED IN BANK ACCOUNT STATEMENT BUT THE LD. ASSESSING OFFICE R IGNORING THE SUBMISSION OF ASSESSEE CALCULATE THE PEAK CASH DEPOSIT OF THE SAID BANK ACCOUNT AND MADE ADDITION WITHOUT ANY BASIS. 2. THAT THE SECOND AND THIRD GROUND OF APPEAL IS TH AT WHILE FRAMING ORDER THE LD. ASSESSING OFFICER HAS FAILED TO CONSI DERED THE FACT THAT FUNDS BELONGS TO THE CUSTOMERS TO WHOM VARIOUS SERV ICES WERE PROVIDED AND THESE FUNDS HAVE ULTIMATELY GONE TO RAILWAY, TR AVEL AGENCIES, INSURANCE AGENCIES, DISH TV SERVICE PROVIDERS, AND THAT THE LD. ASSESSING OFFICER IS NOT CORRECT AS PER LAW AND ON THE FACTS IN OBSERVING THAT ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS WHEN NO SPECIFIC BOOKS OF ACCOUNTS ARE PRESCRIBED FOR INSUR ANCE COMMISSION ITA NO.60(ASR)/2015 A.Y. 2011-12 8 AGENT EARNING PETTY COMMISSION INCOME WHEREAS THE A SSESSEE WAS MAINTAINING COMPLETE RECORD OF TRANSACTIONS. SIR, IT IS SUBMITTED THAT ASSESSEE HAS NOT MAINTAIN ED ANY BOOKS OF ACCOUNT BUT KEPT ALL THE RECORD REGARDING ALL THE TRANSACTION W HICH HELP TO THE LD. ASSESSING OFFICER TO CALCULATE THE BUT THE LD. ASSE SSING OFFICER IGNORE THIS RECORD, DOCUMENT AND SUBMISSION FURNISHED BY THE AS SESSEE. SIR, FURTHER IT IS SUBMITTED THAT ASSESSEE IS ENGAG ED IN THE INSURANCE ADVISORY SERVICES AND MAINTAINING THESE BANK ACCOUNT FROM TH E LAST SO MANY YEARS. ASSESSMENT IN THE CASE OF ASSESSEE WAS ALSO FRAMED IN THE ASSESSMENT YEAR 2008-09 & 2009-10 WHEREIN DURING THAT ASSESSMENT YE AR ASSESEE U>AS MAINTAIN SAME BANK ACCOUNT WHICH WAS DULY CONSIDERE D WHILE FILING RETURN OF INCOME AND SAME WAS DULY ACCEPTED BY THE THEN LD. A SSESSING OFFICER WHILE FRAMING ASSESSMENT IN THAT YEARS. I AM ENCLOSING HE REWITH THE PHOTOCOPIES OF THE BANK ACCOUNT MAINTAINED DURING THAT ASSESSMENT YEARS ALONG WITH THE ASSTT. ORDER FOR THE ASSESSMENT YEAR 2008-09 & 2009 -10. SIR, SINCE THE ASSESSEE IS PROVIDING SAME SERVICE F ROM SO MANY YEARS AND MAINTAIN THE SAME BANK ACCOUNT SO, IT IS REQUESTED THAT FOLLOWING THE LAW OF CONSISTENCY THE ADDITION MADE BY THE LD. ASSESSING OFFICER MAY KINDLY BE DELETED. 6.4 THE ASSESSEE VIDE LETTER DATED 14.11.2014 HAS F ILED FURTHER SUBMISSIONS AS UNDER:- IN CONTINUATION TO THE OUR PREVIOUS SUBMISSION IT I S SUBMITTED THAT ASSESEE WAS PROVIDING INSURANCE ADVISORY SERVICES, INSURANC E PREMIUM DEPOSIT SERVICES, AIR TICKET AND RAILWAY TICKET BOOKING SER VICE, MOBILE RECHARGE, HOTEL TOUR PACKAGE AND BOOKING SERVICE, DTH BILL PAYMENT, TELEPHONE & ELECTRICITY BILL PAYMENT TO HIS CLIENTS. SIR, ALL THE CASH DEPOSITED IN ICICI BANK ACCOUNT R EPRESENT THE CASH COLLECTED BY HIM FROM HIS CLIENTS FOR SERVICES PROVIDED BY TH E ASSESSEE. CASH RECEIVED FROM CUSTOMERS IS DEPOSITED IN BANK ACCOUNT OR SOME TIME CUSTOMERS THEMSELVES DEPOSITED CASH DIRECTLY IN THE BANK ACCO UNT OF ASESSEE AND THE SAME HAS BEEN TRANSFERRED TO THE ITZ CASH CARD THRO UGH WHICH ASSESSEE MADE PAYMENT TO RELEVANT THIRD PARTIES ON THE BEHALF OF CUSTOMERS FOR BOOKING OF AIR TICKET AND RAILWAY TICKET BOOKING SERVICE, MOBILE R ECHARGE, HOTEL TOUR PACKAGE AND BOOKING SERVICE, DTH BILL PAYMENT, TELEPHONE & ELECTRICITY BILL PAYMENT. THIS FACT IS VERY MUCH CLEAR FROM THE PERUSAL OF BA NK ACCOUNTS AND IT IS ALSO CLEAR THAT ASSESSEE IS NOT BENEFICIARY OF ALL THESE TRANSACTIONS. SIR, DURING THE YEAR UNDER CONSIDERATION ASSESSEE M AINTAINED ALL THE RECORD OF RECEIPTS, ITZ CASH CARD. ASSESSEE MAINTAINED A DAIL Y REGISTER WHICH IS LIKE A CASH BOOK WHEREIN ALL THE TRANSACTIONS WERE RECORDE D ON DAILY BASIS AND ON THE BASIS OF THESE REGISTER ASSESSEE MADE A CASH FL OW STATEMENT, WHICH REVEALS THAT ASSESSEE WAS HAVING SUFFICIENT FUNDS A VAILABLE WITH HIM TO DEPOSIT THE SAME AND ALL THESE FUNDS ARE REPRESENT THE RECEIPT OF ASSESSEE. COPY OF THE CASH FLOW STATEMENT IS ENCLOSED HEREWIT H FOR YOUR KIND CONSIDERATION AND ALL REGISTERS AND RECEIPT BOOKS M AINTAINED BY ASSESSEE ARE PRODUCED HEREWITH FOR YOUR PERUSAL. ITA NO.60(ASR)/2015 A.Y. 2011-12 9 SIR, IT IS SUBMITTED THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE IT IS REQUESTED THAT ADDITION MADE BY THE LD. ASSESSIN G OFFICER MAY KINDLY BE DELETED. 8. THE LD. CIT(A) CALLED FOR THE REMAND REPORT. THE SAME READS AS FOLLOWS: 6.2 THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE V IDE LETTER DATED 18.09.2014 WERE FORWARDED TO THE ASSESSING OFFICER FOR HIS COM MENTS/REPORT. THE REPORT OF THE ASSESSING OFFICER WAS RECEIVED VIDE HIS OFFICE LETTER DATED 30.09.2014 WHICH READ AS UNDER:- KINDLY REFER TO LETTER DATED 22.09.2014 IN FILE NO. CIT(A)/JAL/14-15/1341 FORWARDING THEREWITH COPY OF THE WRITTEN SUBMISSIONS MADE ON BEHALF OF THE APPEL LANT AFOREMENTIONED. 2 IN THIS CONNECTION, THIS IS. TO SUBMIT THAT THE A PPELLANT HAS REITERATED HIS SUBMISSIONS AS ALREADY MADE DURING THE COURSE OF THE ASST, PROCEEDINGS WHICH WE RE DULY CONSIDERED WHILE FINALIZING THE ASSESSMENT FOR THE CAPTIONED ASST. YEAR. CONSEQUENTLY, I STRON GLY RELY ON THE ASSESSMENT ORDER WHICH IS THE SUBJE CT MATTER OF APPEAL BEFORE YOUR GOODSELF THE MAIN CONT ENTION OF THE APPELLANT RAISED IN THE APPELLATE PROCEEDINGS IS THAT HIS ASSESSMENTS FOR THE PRECEDI NG ASST, YEARS 2008-09 AND 2009-10 WERE FINALIZED WITHOUT ANY INTERFERENCE IN REGARD TO THE SAME SAVI NGS BANK ACCOUNT NUMBER 023601500887 MAINTAINED BY HIM IN THE ICICI BANK LTD. SINCE EVER Y YEAR IS A SEPARATE AND INDEPENDENT ENTITY, THERE IS HARDLY ANY MERIT IN THIS CONTENTION OF THE APPEL LANT. MORESO, SINCE THE ISSUE INVOLVED IS NOT LIKE REJECTION OF METHOD OF ACCOUNTANCY ETC. BUT IN FACT , IT RELATES TO THE SOURCE OF DEPOSITS MADE IN THE SAID BANK ACCOUNT, CASE OF THE APPELLANT DOES NOT AT ALL FALL WITHIN THE PARAMETERS OF CONSISTENCY. SIMPLY THAT ADVERSE INFERENCE HAS BEEN DRAWN TO THE SAID BANK A CCOUNT IN THE PRECEDING ASST, YEARS, INOT BE A GROUND EITHER VALID IN LAW AND/OR ON FACTS FOR VACA TION OF THE ADDITION MADE IN THE ASST, YEAR UNDER APPEAL. AS IS EVIDENT FROM THE ASSESSMENT RECORD FO R THE ASST, YEAR UNDER THE CASH DEPOSITS APPEARING IN HIS BANK ACCOUNTS REFERRED TO THEREIN WHICH HE MISE RABLY FAILED TO DO SO EXCEPT TIME AND AGAIN REPEATING HIS ALSO UNAUTHENTICATED CONTENTION BASED ON THE DEBITS MADE THERE-FROM. A MERE DEBIT ENTRY IN A BANK ACCOUNT EVEN IF SUBSTANTIATED DOES NOT AU TOMATICALLY GO TO ESTABLISH THAT THE SOURCE OF A CR EDIT ENTRY THEREIN ALSO STANDS EXPLAINED. DURING THE ASS T, YEAR UNDER APPEAL, NEITHER THE APPELLANT PRODUCE D ANY ACCOUNT BOOKS ETC. HAVING NOT BEEN KEPT AND MAI NTAINED NOR OTHERWISE FURNISHED INCOME & EXPENDITURE ACCOUNT NOR STATEMENT OF AFFAIRS ETC. F ROM WHICH IT COULD BE ESTABLISHED THAT HE CONSIDERE D SUCH CREDIT AND DEBIT ENTRIES IN/FROM THE BANK ACCO UNT AS HIS RECEIPTS AND EXPENSES. WHETHER THE APPELLANT IS EXTENDING ANY ADVISORY SERVICES EITHER ON PROFIT OR NO PROFIT NO LOSS BASIS IS NOT RELEVA NT FOR EXPLAINING THE SOURCE OF BANK DEPOSITS BUT WHAT IS RELEVANT IS THE FACT TO DRAW UP ACCOUNTS WITH CORRESPONDING VOUCHERS INDICATING THE NAMES AND ADD RESSES OF HIS CLIENTS SO AS TO MAKE THE INCOME CORRECTLY DEDUCIBLE IN LAW. FURTHER, EVEN IF HAD TH E APPELLANT KEPT AND MAINTAINED SUCH ACCOUNTS SANS ANY EVIDENCE IN SUPPORT OF SUCH RECEIPTS, STILL HE COULD BE SUBJECTED TO ADVERSE INFERENCE IN SO FAR A S THE BANK DEPOSITS AND THE CORRESPONDING RECEIPTS IN HIS ACCOUNTS REMAINING UNEXPLAINED AND UNSUBSTANTIATED IS CONCERNED. ANYWAY, SINCE THE APP ELLANT NEITHER SHOWED SUCH BUSINESS ACTIVITY NOR ANY SUCH RECEIPTS AND EXPENDITURE IN HIS RETURN OF INCOME, THE BANK DEPOSITS WERE RIGHTLY TREATED AS UNEXPLAINED INVESTMENT IN THE MEANING OF SEC. 69 AN D THE LIKE ADDITION WAS MADE ACCORDINGLY AFTER WORKING OUT THE PEAK THEREOF. IT IS SETTLED LAW THA T THE ONUS TO PROVE THE SOURCE OF ANY ENTRY/TRANSAC TION APPEARING IN HIS ACCOUNT BOOKS/BANK ACCOUNTS ETC. S QUARELY LIES ON THE SHOULDERS OF AN ASSESSEE AND NO T ON THE REVENUE AND WITHOUT FURNISHING ANY SUCH EVID ENCE, THE APPELLANT CANNOT BE SAID TO HAVE EXPLAINED THE SOURCE OF THE SAID BANK DEPOSITS AND AS SUCH, THE ADDITION MADE ON THIS SCORE DESERVES T O BE AFFIRMED. 3. AS REGARDS THE ASST, YEARS 2008-09 AND 2009-10, MY COMMENTS ARE AS FOLLOWS: (1) ASSTT. YEAR 2008-09 ITA NO.60(ASR)/2015 A.Y. 2011-12 10 BEFORE FURNISHING MY COMMENTS, I WOULD LIKE TO SUB MIT THAT AS A PERUSAL OF THE ASSTT. RECORD FOR THE A.Y. 2008-09, THE BANK ACCOUNT DOES NOT APPEAR TO HAVE B EEN PUT TO THOROUGH SCRUTINY. VIDE ORDER SHEET ENTRY DATED 16.07.2010, THE APPELLANT WAS ASKED TO FILE-COPY OF BANK ACCOUNT WAS FILED WHILE ON 15.11.2010, THE APPELLANT WAS ASKED TO FURNISH DETA IL OF DEPOSIT IN ICICI BANK AND ON 18.11.2010, IT WAS RECORDED THAT EVIDENCE REG. DEPOSITS OF PREMIUM OUT OF CASH DEPOSITED IN THE BANKS AFTER COLLECTIN G THE PREMIUM FROM THE CUSTOMERS WAS FILED AND IN THE * J - J -E ASST, ORDER FOR THE ASST, YEAR 2008-09, IT IS FOUND TO HAVE BEEN ACCORDED THAT SOURCE OF CASH DEP OSIT MADE IN THE SAVING ACCOUNT HAS BEEN EXAMINED AND VERIFIED AND NECESSARY EVIDENCES OBTAINED PLACE D ON FILE. PERUSAL OF THE ASST, RECORD FOR THE ASST , YEAR 2008-09 REVEALS THAT THERE IS NO SUCH EVIDENCE AVAILABLE ON RECORD IN SUPPORT OF THE SOURCE OF TH E CASH BANK DEPOSITS HAVING BEEN EXPLAINED. SIMILARLY , NO SUCH INCOME OR LOSS NOR RECEIPT AND EXPENDITURE IN THE GARB OF SUCH ADVISORY SERVICES H AS BEEN DECLARED IN THE RETURN OF INCOME FOR THE AS ST, YEAR 2008-09 NOR ANY SUCH RECEIPT AND EXPENDITURE I S FOUND TO HAVE BEEN MADE PART OF THE INCOME & EXPENDITURE ACCOUNT AVAILABLE ON RECORD FOR THE ASS T, YEAR 2008-09. WHAT TO TALK OF FURNISHING ANY EVIDENCE IN THE SHAPE OF CONFIRMATION ETC. FROM THE PERSONS FROM WHOM THE ALLEGED RECEIPT OF CASH DEPOSITED IN THE BANK ACCOUNT, THE APPELLANT FAILED EVEN TO FURNISH THEIR NAMES AND COMPLETE ADDRESSES ETC. THEREFORE, IT IS NOT THE CASE OF THE APPELLANT THAT HE FILED ANY EVIDENCE TO SUBSTANTIATE THE ALL EGED CASH BANK DEPOSITS IN THE ASST, YEAR 2008- 09. BESI DES ACCOUNT NUMBER 023601500887, THE APPELLANT ALSO FURNISHED COPY OF ANOTHER ACCOUNT NUMBER 3120100007863. DETAIL OF CASH DEPOSITS APPEARING IN BOTH THE BANK ACCOUNT NUMBER 023601500887 AND ACCOUNT NUMBER 3120100007863 DURING THE ASST, YEAR 2008-09 SANS ANY EVIDENCE ON RECORD IN SUPPORT OF SOURCE THEREOF IS AS UNDER: ACCOUNT NUMBER 023 601500887 ACCOUNT NUMBER 3120100007863 DATE OF CASH DEPOSIT AMOUNT OF CASH DEPOSIT (RS.) DATE OF CASH DEPOSIT AMOUNT OF CASH DEPOSIT (RS.) 09.04.2007 14,700 16.07.2007 50,000 16.04.2007 78,000 03.08.2007 6,000 20.04.2007 47,000 29.10.2007 1,00,000 26.04.2007 91,800 05.11.2007 1,00,000 28.04.2007 37,250(32500+ 4750) 08.11.2007 50,000 03.05.2007 35,500 26.11.2007 1,50,000 (100000 + 50000) 09.05.2007 1,25,000 06.12.2007 1,00,000 12.05.2007 60,000 08.12.2007 50,000 17.05.2007 1,05,000 19.12.2007 1,00,000 (40000 + 60000) 23.05.2007 80,000 27.12.2007 1,00,000 25.05.2007 51,000 - - 30.05.2007 51,000 04.01.2008 1,00,000 04.06.2007 99,500 23.01.2008 50,000 05.06.2007 15,000 15.02.2008 34,200 \)6.06.2007 28,480(19000+9480) 17.03.2008 110 07.06.2007 9,500 18.03.2008 110 09.06.2007 1,800 - ITA NO.60(ASR)/2015 A.Y. 2011-12 11 12.06.2007 38,450(24200+14250) - - 13.06.2007 8,910 - 14.06.2007 44,990(14990+30000) - - 18.06.2007 50,000 - 21.06.2007 51,000 - 25.06.2007 77,800 - 28.06.2007 23,405(10550+12855) - - 30.06.2007 11,300 - 02.07.2007 34,450(24650+9800) - - 05.07.2007 9,480 - - 07.07.2007 53,000 - - 11.07.2007 78,000 23.07.2007 58,000 - 26.07.2007 25,000 - - 13.08.2007 6,000 - - 14.08.2007 64,000 - - 17.08.2007 54,000 - - 25.08.2007 47,000 - - 07.09.200? 41,500 - - 04.10.2007 21,000 - - 13.10.2007 57,000 - - 17.10.2007 46,770 - - 20.10.2007 35,880 - - 22.10.2007 20,000 - - 27.10.2007 37,000 - - 08.11.2007 60,000 - - 15.11.2007 57,200 - - 19.12.2007 30,000 - - 04.01.2008 50,000 - - 16.01.2008 37,000 - - 22.01.2008 1,00,000 - - 13.02.2008 1,44,000 - - 22.02.2008 87,480 - - 27.02.2008 50,000 - - '&L 02.2008 36,620 - - PAGE 17 OF 28 05.03.2008 72,900 - - 08.03.2008 50,500 - - ITA NO.60(ASR)/2015 A.Y. 2011-12 12 11.03.2008 44,600 - - 12.03.2008 60,200 - - 17.03.2008 21,310 - - 19.03.2008 54,100 - - 24.03.2008 80,600 - - 26.03.2008 66,000 - - TOTAL 3026975/- - 9,90,420 (2) ASST, YEAR 2009-10 SIMILAR IS NOTICEABLE TO BE THE POSITION IN THE ASS T, YEAR 2009-10. THERE IS ONLY ORDER SHEET ENTRY DA TED 27.06.2011 IN WHICH IT IS RECORDED THAT COPIES OF H IS BANK ACCOUNTS WERE FDED AND SOURCE OF DEPOSITS I N THE BANK ACCOUNT EXPLAINED WHILE IN THE OFFICE APPE NDED BELOW THE ASST, ORDER FOR THE ASST, YEAR 2009- 10, IT IS FOUND TO HAVE BEEN RECORDED THAT SOURCE O F CASH DEPOSIT MADE IN THE SAVING ACCOUNT HAS BEEN EXAMINED AND VERIFIED AND NECESSARY EVIDENCES OBTAI NED PLACED ON FILE. PERUSAL OF THE ASST, RECORD FOR THE ASST, YEAR 2009-10 REVEALS THAT LIKE THE ASST, YEAR 2008-09, THERE IS NO SUCH EVIDENCE AVAILABLE ON RECORD IN SUPPORT OF THE SOURCE OF THE CASH BANK DE POSITS HAVING BEEN EXPLAINED EXCEPT THE APPELLANT'S OWN GENERAL REMARKS MADE AGAINST EACH ENTRY. SIMILA RLY, NO SUCH INCOME OR LOSS NOR RECEIPT AND EXPENDITURE IN THE GARB OF SUCH ADVISORY SERVICES H AS BEEN DECLARED IN THE RETURN OF INCOME FOR THE AS ST, YEAR 2009-10, TOO. WHAT TO TALK OF FURNISHING ANY E VIDENCE IN THE SHAPE OF CONFIRMATION ETC. FROM THE PERSONS FROM WHOM THE ALLEGED RECEIPT OF CASH DEPOS ITED IN THE BANK ACCOUNT, THE APPELLANT FAILED EVEN TO FURNISH THEIR NAMES AND COMPLETE ADDRESSES ETC. THEREFORE, IT IS NOT THE CASE OF THE APPELLANT THAT HE FILED ANY EVIDENCE TO SUBSTANTIATE THE ALLEGED CASH BANK DEPOSITS IN THE ASST, YEAR 2009-10. 10. DETAIL OF CASH DEPOSITS APPEARING IN THE BANK ACCOU NT NUMBER 023601500887 DURING THE ASST, YEAR 2009-10 SANS ANY EVIDENCE ON RECORD IN SUPPORT OF SOURCE THEREOF IS AS UNDER: ACCOUNT NUMBER 023601500887 DATE OF CASH DEPOSIT AMOUNT OF CASH DEPOSIT (RS.) 02.04.2008 62,980 04.04.2008 62,000 08.04.2008 66,200 10.04.2008 29,630 16.04.2008 83,800 21.04.2008 55,030 23.04.2008 92,400 29.04.2008 1,24,000 07.05.2008 1,05,000 19.05.2008 28,000 29.05.2008 1,87,000 09.06.2008 2,20,000 18.06.2008 1,81,000 ITA NO.60(ASR)/2015 A.Y. 2011-12 13 26.06.2008 1,97,000 02.07.2008 2,12,000 10.07.2008 1,72,500 16.07.2008 1,26,500 22.07.2008 66,500 04.08.2008 1,85,000 16.08.2008 36,000 19.08.2008 43,000 27.08.2008 1,16,000 15.09.2008 95,500 19.09.2008 32,550 06.10.2008 69,500 16.10.2008 55,300 22.10.2008 41,600 24.10.2008 53,000 01.11.2008 61,800 20.11.2008 1,22,500 25.11.2008 43,000 28.11.2008 3,69.000 03.12.2008 49,700 06.12.2008 80,800 15.12.2008 70,000 18.12.2008 1,04,000 01.01.2009 76,500 14.01.2009 27,650 16.01.2009 41,000 19.01.2009 96,700 03.02.2009 49,000 04.02.2009 1,02,000 10.02.2009 1,14,500 11.02.2009 1,05,000 04.03.2009 1,05,000 10.03.2009 2,55,000 30.03.2009 82,000 TOTAL 4753640/- ITA NO.60(ASR)/2015 A.Y. 2011-12 14 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS R EQUESTED THAT THE ADDITION MADE IN THE ASST, ORDER FOR THE ASST, YEAR UNDER APPEAL BE CONFIRMED AND THE AP PEAL UNDER REFERENCE BE DISMISSED ACCORDINGLY. AS REGARDS THE ASST, YEARS 2008-09 AND 2009-10, IT IS REQUESTED THAT A FINDING BE RECORDED OR DIRECTION B E ISSUED FOR SIMILAR TREATMENT OF THE CASH DEPOSITS I N THE SAME BANK ACCOUNT AS WAS DONE IN THE ASST, YE AR UNDER APPEAL IN THE INTEREST OF REVENUE. ASST, RECO RD FOR THE ASST, YEARS 2008-09, 2009-10 AND 2011-12 IS ALSO SUBMITTED HEREWITH FOR YOUR KIND PERUSAL AN D APPROPRIATE CONSIDERATION. 9. THE ASSESSEE FILED COUNTER COMMENTS AS UNDE: 6.3 THE REPORT AS RECEIVED FROM THE ASSESSING OFFI CER VIDE HIS OFFICE LETTER DATED 30.09.2014 WAS FORWARDED TO THE ASSESSEE FOR HIS COUNTER COMMENTS. THE COUNTER COMMENTS OF THE ASSES SEE WERE RECEIVED VIDE LETTER DATED 14.11.2014 WHICH READ AS UNDER:- IN RESPONSE TO THE COMMENTS OF LD. ASSESSING OFFICE R VIDE LETTER NO. ITO/W- 1/HSP/AAJPVL903E/2316 DATED 30.09.2014, WHEREIN THE LD. ASSESSING OFFICER STATED THAT'.AS IT IS EVIDENT FROM THE ASSESSMENT RECORD FOR THE ASSESSMENT YEAR UNDER APPEAL, THE APPELLANT WAS AFFORDED A NUMBER O F OPPORTUNITIES FOR LEADING EVIDENCE IN SUPPORT OF CASH DEPOSIT APPEARING IN HI S BANK ACCOUNT REFERRED TO THEREIN WHICH IS MISERABLY FAILED TO DO SO EXCEPT TIME AND AGAIN REPEATING HIS ALSO UNAUTHENTICATED CONTENTION BASED ON THE DEPOSIT MAD E THEREFROM. A MERE DEBIT ENTRY IN BANK ACCOUNT EVEN IF SUBSTANTIATED DOES NOT AUTO MATICALLY GO TO ESTABLISH THAT THE SOURCES OF A CREDIT ENTRY THEREIN ALSO STANDS EXPLA INED. DURING THE ASSTT. YEAR UNDER APPEAL, NEITHER THE APPELLANT PRODUCED ANY ACCOUNT BOOKS ETC. HAVING NOT BEEN KEPT AND MAINTAINED NOR OTHERWISE FURNISHED INCOME & EXP ENDITURE ACCOUNT NOR STATEMENT OF AFFAIRS ETC. FROM WHICH IT COULD BE ESTABLISHED THAT HE CONSIDER SUCH CREDIT /DEBIT ENTRY IN THE FORM THE BANK ACCOUNT AS HIS RECEIPT A ND EXPENSES. WHETHER THE APPELLANT IS EXTENDING ANY ADVISORY SERVICE EITHER ON PROFIT OR ON NO PROFIT NO LOSS BASIS IS NOT RELEVANT FOR EXPLAINING THE SOURCES OF DEPOSIT IN B ANK BUT WHAT IS RELEVANT IS THE FACT TO DREW UP ACCOUNTS WITH CORRESPONDING VOUCHERS INDICA TING THE NAMES AND ADDRESSES OF HIS CLIENTS SO AS TO MAKE THE INCOME CORRECTLY DEDU CIBLE IN LAW. FURTHER, EVEN IF HAD THE APPELLANT KEPT AND MAINTAINED .SUCH ACCOUNTS SANS A NY EVIDENCE IN SUPPORT OF SUCH RECEIPTS, STILL HE COULD BE SUBJECTED TO ADVERSE IN FERENCE IN SO FAR AS THE BANK DEPOSIT AND CORRESPONDING RECEIPT IN HIS ACCOUNTS REMAINING UNEXPLAINED AND UNSUBSTANTIATED IS CONCERNED. ANYWAY, SINCE THE APPELLANT NEITHER S HOWED SUCH BUSINESS ACTIVITY NOR ANY SUCH RECEIPTS AND EXPENDITURE IN HIS RETURN OF INCOME, THE BANK DEPOSIT WERE RIGHTLY TREATED AS UNEXPLAINED INVESTMENT IN THE ME ANING OF SEC. 69 AND THE LIKE ADDITION WAS MADE ACCORDINGLY AFTER WORKING OUT THE PEAK THEREOF. IT IS SETTLED LAW THAT THE ONUS TO PROVE THE SOURCES OF ANY ENTRY/TRA NSACTION APPEARING IN HIS ACCOUNT BOOKS/BANK ACCOUNT ETC. SQUARELY LIES ON THE SHOULD ER OF AN ASSESSEE AND NOT ON THE REVENUE AND WITHOUT FURNISHING ANY SUCH EVIDENCE, T HE APPELLANT CANNOT BE SAID TO HAVE EXPLAINED THE SOURCES OF THE SAID BANK DEPOSIT AND AS SUCH, THE ADDITION MADE ON THIS SCORE DESERVES TO BE AFFIRMED. ' SIR, IT IS SUBMITTED THAT ASSESSEE IS AN INSURANCE AGENT EARNING COMMISSION INCOME AS INSURA NCE AGENT OF LIC, ICICI SECURITIES LTD. AND NATUREWAY NETWORK MARKETING (P) LTD.. BESI DE THAT ASSESSEE WAS PROVIDING INSURANCE ADVISORY SERVICES, INSURANCE PREMIUM DEPO SIT SERVICES, AIR TICKET AND RAILWAY TICKET BOOKING SERVICE, MOBILE RECHARGE, HO TEL TOUR PACKAGE AND BOOKING SERVICE, DTH BILL PAYMENT, TELEPHONE & ELECTRICITY BILL PAYMENT. SIR, IT IS SUBMITTED THAT DURING THE COURSE OF ASSE SSMENT PROCEEDING ASSESSES WAS ASKED FOR THE SOURCES OF CASH DEPOSIT IN ICICI BANK AMOUNTING TO RS. 37,62,300/-. IN RESPONSE TO WHICH ASSESSSEE SUBMITTED THAT 'CUSTOME RS MONEY IS DEPOSITED IN ICICI BANK IN THE ABOVE MENTIONED ACCOUNT AND THE ACCOUNT NO. IS 023601500887 AND THE ITA NO.60(ASR)/2015 A.Y. 2011-12 15 AMOUNT IS APPROX. 37,00,000/- PAYMENT ARE MADE TO A BOVE PARTIES ON THE BEHALF TO THE PARTIES THROUGH M/S INTERACTIVE TRADIX INDIA PVT. L TD., A COMPANY THROUGH WHOM PAYMENT OF CLIENTS WERE MADE. SIR, FURTHER ASSESSEE WAS AGAIN ASKED FOR THE SOURC ES OF CASH DEPOSIT IN BANK ACCOUNT AND WHY ADDITION OF THE LIKE AMOUNT BE NOT MADE TO HIS TOTAL INCOME REPRESENTING INCOME FROM UNDISCLOSED SOURCES AS UNEXPLAINED INVE STMENT MADE IN THE GARB OF THE SAID CASH DEPOSIT AMOUNTING TO RS. 37,62,300/-. IN RESPONSE TO WHICH ASSSESSEE FURNISHED DATE WISE AND AMOUNT WISE DETAIL OF CASH DEPOSIT AMOUNTING TO RS. 37,62,300/- AND SUBMITTED THAT THE CASH DEPOSITED I N BANK ACCOUNT BY HIS CUSTOMERS FOR PROVIDING FREE INSURANCE ADVISORY SER VICES TO THEM, THE ASSESSEE EXTRACTED THE DEBIT FROM THE SAID ACCOUNT AND FURNI SHED A SUMMARY THEREOF VIDE HIS LETTER FILED ON 15.01.2014 ACCORDING TO WH ICH PAYMENT TO THE TUNE OF RS. 34,47,657.76 ARE CLAIMED TO HAVE BEEN MADE ON T HE BEHALF OF HIS CUSTOMERS WHILE A SUM OF RS. 3,91,000/- IS CLAIMED TO HAVE BEEN REFUNDED HIS CUSTOMERS. SIR, THE LD. ASSESSING OFFICER IGNORE THE SUBMISSIO N OF ASSESSEE MADE ADDITION BY STATING THAT ASSESSEE HAS NOT FURNISHED ANY CONFIRM ATION OR EVIDENCE REGARDING CASH DEPOSIT. THEREFORE, THE EXPLANATION FURNISHED BY AS SESSEE BEING UNTENABLE IS HEREBY REJECTED AS UNSUBSTANTIATED ACCOUNT ARE TREATED AS UNEXPLAINED. SIR, IT IS FACT THAT, ASSESSEE IS AN INSURANCE ADVI SOR AND HE IS ALSO PROVIDING MANY SER HIS CUSTOMERS, DURING THE YEAR UNDER CONSIDERATION ASSESSEE MAINTAINED SAVING BANK A WITH ICICI AND OVERDRAFT WITH UNITED BANK OF INDI A WHEREIN ASSESSEE DEPOSITED CASH RET FROM HIS CLIENTS AND TRANSFER THIS AMOUNT TO IT Z CASH CARD THROUGH WHICH ASSESSEE PAYMENT TO THE THIRD PARTIES SUCH AS RAILWAY TICKET S, DTH RECHARGE, AIR TICKETS, ME RECHARGE, ELECTRICITY BILL, MOBILE BILL AND ANY OTH ER FACILITY ON THE BEHALF OF HIS CUSTOMERS. SIR, ASSESSEE MAINTAINED PROPER RECORD TO PROVE THA T THE PAYMENT WERE RECEIVED FROM T CLIENT ON WHOSE BEHALF ASSESSEE MADE PAYMENT TO RES PECTIVE COMPANIES, WE ARE PRODUCING, HEREWITH ALL THE DOCUMENTS IN SUPPORT TO PROVE THE CONTENTION OF ASSESSEE WHICH INCLUDE DAY BOOK, RECEIPTS OF PAYMENT RECEIVE D AND CASH DEPOSITED IN BANK AND ALSO THE RECORD OF HIS DAILY TRANSACTIONS MADE THRO UGH BANK AND ITZ CASH CARD WHICH WAS ALSO PRODUCED BEFORE THE LD. ASSESSING OFFICER. SIR, THE LD. ASSESSING OFFICER HAS NOT BROUGHT ON R ECORD ANY EVIDENCE REGARDING THE BENEFICIARIES OF THE TRANSACTION. ASSESSEE HIMSELF HAS NOT MADE SUCH A HUGE AMOUNT OF LIC PREMIUM TOWARDS HIS LIFE OR BOOK AIR/RAILWAY TI CKET FOR HIMSELF OR MADE SUCH A HUGE PAYMENT TOWARDS RECHARGES OF HIS MOBILE. SIR, IN THE LAST PARA OF REMAND REPORT LD. ASSESSIN G OFFICER CROSSED LIMIT OF HIS POWERS IN DIRECTING THAT THE ASSESSMENT OF PREVIOUS YEAR A LSO BE REOPENED. IT IS THEREFORE REQUESTED THAT CONSIDERING THE EVIDENCE PRODUCED HE REWITH ADDITION MADE BY THE LD. ASSESSING OFFICER MAY KINDLY BE DELETED. 10. IT WAS ON CONSIDERING THE ABOVE, THAT THE LD. C IT(A) DELETED THE ADDITION MADE. THE AO HAD MADE THE ADDITION ON THE SOLE GROUND THAT THE ASSESSEE HAD NOT MAINTAINED THE REQUIRED BOOKS OF ACCOUNT, SUCH AS ITA NO.60(ASR)/2015 A.Y. 2011-12 16 CASH BOOK AND LEDGER. THE ASSESSEE WAS PROVIDING IN SURANCE ADVISORY SERVICE, INSURANCE PREMIUM DEPOSIT SERVICE, AIR TIC KETS, RAILWAY TICKETS, MOBILE RECHARGE, ELECTRICITY BILL, MOBILE BILL, DTC RECHARGE SERVICES ETC. THIS ACTIVITY OF THE ASSESSEE WAS DULY ACCEPTED. TH E RECORDS KEPT BY THE ASSESSEE, THOUGH NOT IN THE FORM OF CASH BOOK AND L EDGER, WERE BY WAY OF RECEIPT BOOK AND DAILY COLLECTION AND DISBURSEMENT REGISTER. THESE WERE PRODUCED. THE AO REJECTED THEM. THE LD. CIT(A), HOW EVER, OBSERVED THAT THESE BOOKS WERE SUFFICIENT TO SHOW THAT THE ASSESS EE WAS PROVIDING THE AFORESAID SERVICES TO THE CLIENTS. THE LD. CIT(A), FROM THE PERUSAL OF THE RECEIPT BOOK AND DAILY CASH COLLECTION AND DISBURS EMENT REGISTER, CONCLUDED THAT THE BANK RECEIPTS WERE THE SOURCE OF THE DEPOSITS MADE BY THE ASSESSEE IN HIS BANK ACCOUNT, THESE AMOUNTS HAVING BEEN COLLECTED BY THE ASSESSEE FROM THE REGULAR CUSTOMER S WHILE RENDERING THE STATED SERVICES. THE AFORESAID BOOKS AND CASH FLOW STATEMENT FOR THE YEAR UNDER CONSIDERATION WERE VERIFIED AND EXAMINED BY T HE LD. CIT(A) ON A TEST CHECK BASIS. THIS WAS WHAT MADE THE LD. CIT(A ) ARRIVE AT THE CONCLUSION THAT THOUGH THE ASSESSEE DID NOT MAINTAI N PROPER BOOKS OF ACCOUNT, ALL THE OTHER RECORD MAINTAINED WAS SUFFIC IENT ENOUGH TO DETERMINE THE ASSESSEES INCOME. 11. WE DO NOT FIND ANY ERROR WHATSOEVER IN THE ABO VE OBSERVATIONS MADE BY THE LD. CIT(A), WHICH ARE ON THE BASIS OF T HE RECORD. MERE ABSENCE OF BOOKS OF ACCOUNT, BY ITSELF, IN THE PRES ENCE OF THE RECEIPT BOOK AND DAILY COLLECTION AND DISBURSEMENT REGISTER, WHI CH HAVE NOT BEEN ITA NO.60(ASR)/2015 A.Y. 2011-12 17 SHOWN NOT TO REFLECT THE CORRECT STATE OF AFFAIRS, AS OBSERVED BY THE CIT(A), WAS A REASON GOOD ENOUGH TO MAKE THE ADDITION. MORE OVER, FOR THE ASSESSMENT YEARS 2008-09 & 2009-10, UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE CASH DEPOSITS MADE BY THE ASSESS EE IN HIS BANK ACCOUNT WERE CONSIDERED AS THE ASSESSEES BUSINESS RECEIPTS. 12. THE ABOVE BEING THE POSITION, THERE WAS NO REAS ON TO ADD DEPOSIT FOR THE YEAR UNDER CONSIDERATION AND ACCORDINGLY, F OR THIS REASON ALSO, THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION MADE. 13. IN VIEW OF THE ABOVE, FINDING NO ERROR WHATSOEV ER THEREIN, THE ORDER OF THE LD. CIT(A) IS CONFIRMED. THE GRIEVANCE OF TH E DEPARTMENT IS FOUND TO BE SHORN OF MERIT AND THE SAME IS REJECTED AS SU CH. 14. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/0 7/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 11 /07/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. SANJEEV KUMAR VASISHT, HOSHIARPUR 2. THE ITO WARD-1, HOSHIARPUR. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.