ITO WD 1(1), THANE V. BABURAO K PISAL, THANE

ITA 6091/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84615 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: M P MAKHIJA; S M MAKHIJA
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 6091/MUM/2012 ASSESSMENT YEAR: 2009-10 ITO WD - 1(1) THANE VS. SHRI B A BURAO K. PISAL B/09-10, SHARAD KUNJ CHS, DR. MOOSE ROAD, THANE(W) PAN:AFZPP 4865 J (APPELLANT) (RESPON DENT) ASSESSEE BY : M.P. MAKHIJA & S.M. MAKHIJA REVENUE BY : SHRI VIVEK BATRA DATE OF HEARING : 09 . 12 . 2014 DATE OF ORDER : 22 . 12 .2014 PER AMIT SHUKLA, JM: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST ORDER DATED 25.06.2012, PASSED BY THE LD.CIT-II, THANE, F OR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) FOR THE A.Y. 2009-10. THE ONLY ISSUE RAISED IN THE GROUNDS OF APPEAL IS THAT, LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.16,60,000/- MADE ON ACCOUNT OF U NEXPLAINED CASH CREDIT. 2. THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM RENT, SHARE PROFIT FROM PARTNERSHIP FIRM AND INCOME FROM OTHER SOURCES . THE ASSESSEE OFFICER RECEIVED AN INFORMATION THAT ASSESSEE HAS D EPOSITED CASH OF RS.17,60,000/- IN THE BANK ACCOUNT DURING THE YEAR AS PER FOLLOWING DETAILS:- ITA NO. 6091/MUM/2012 SHRI BABURAO K. PISAL ASSESSMENT YEAR: 2009-10 2 S.NO DATE OF DEPOSIT AMOUNT DEPOSITED (RS.) I 29.05.2008 5,00,00 0/ - II 28.07.2008 1,00,000/ - III 13.12.2009 5,00,000/ - IV 10.02.2009 4,35,000/ - V 30.03.2009 1,25,000/ - VI 31.03.2009 1,00 ,000/ - IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE SUBMITTED BANK SUMMARY OF BOMBAY MERCANTILE CORPORATION BANK AND I NDIA OVERSEAS BANK AND IT WAS STATED THAT ASSESSEE HAS TO PARTICI PATE IN AN AUCTION FOR SOME IMPORTED MATERIALS FOR WHICH ASSESSEE WAS REQ UIRED TO KEEP CASH READY FOR AUCTION PURCHASE. THE ASSESSEE HAS ALSO T AKEN LOAN FROM LIC WHICH WAS WITHDRAWN IN CASH AFTER DEPOSITING THE SA ME IN THE BANK. ONCE THE AUCTION PURCHASE WAS NOT SUCCESSFUL, HE HA S DEPOSITED THE AMOUNT BACK IN THE BANK ACCOUNT. THE ASSESSEES EXP LANATION AND THE SUBMISSIONS IN THIS REGARD HAVE BEEN INCORPORATED A T PAGES 2 TO 5 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER AFTER EXAMI NING THE ASSESSEE SUBMISSIONS AND DETAILS ACCEPTED ONE DEPOSIT OF RS. 1,00,000/- IN THE BANK ACCOUNT, WHICH WAS DIRECTLY CO-RELATED WITH TH E CASH WITHDRAWAL. HOWEVER, FOR THE REMAINING DEPOSITS OF RS.16,60,000 /-, HE DISALLOWED THE SAME AFTER THE ANALYZING BANK ACCOUNT DETAILS. 3. BEFORE THE LD.CIT(A), THE ASSESSEE SUBMITTED THA T THE ASSESSEE HAS MAINTAINED REGULAR CASH BOOK IN WHICH ALL THE C ASH HAS BEEN FULLY RECORDED AND THERE WAS NO NEGATIVE CASH BALANCE IN THE SAID CASH BOOK. ALL THE CASH WHICH HAS BEEN DEPOSITED IN THE BANK A CCOUNT WERE AVAILABLE AND REFLECTED IN THE REGULAR CASH BOOK. T HE SPECIFIC CASH DEPOSITS ADDED BY THE AO WAS EXPLAINED IN THE FOLLO WING MANNER:- ITA NO. 6091/MUM/2012 SHRI BABURAO K. PISAL ASSESSMENT YEAR: 2009-10 3 DATE OF CASH DEPOSITED AMOUNT OF CASH DEPOSITED EXPLANATION 29.05.2008 5,00,000 CASH WAS DEPOSITED FROM THE OPE NING CASH IN HAND BALANCE AS AT THE START OF THE FINANCIAL YEAR CASH BOOK FOR WHICH HAS ALREADY BEEN SUBMITTED. 13.01.2009 5,00,000 AMOUNT WAS DEPOSITED OUT OF CAS H WITHDRAWN EARLIER ON 01.09.2008 AND 02.09.2008 AMOUNTING TO TOTAL OF RS.12,00,000/- WHICH WAS WITHDRAWN AGAINST LOAN SANCTIONED BY BANK AGAINST LIC POLICIES. 10.02.2009 4,35,000 30.03.2009 1,25,000 31.03.2009 1,00,000 TOTAL 16,60,000/- THE LD.CIT(A) AFTER EXAMINING THE CASH SUMMARY FILE D BEFORE HIM, OBSERVED THAT ALL THE CASH DEPOSITS HAVE BEEN MADE FROM THE CASH BOOK MAINTAINED BY THE ASSESSEE. FURTHER IN THE AUDITED BALANCE SHEET AS ON 31.03.2008 FILED ALONG WITH THE RETURN OF INCOME, C ASH IN HAND OF RS.8,53,529/- WAS SHOWN, WHICH WAS AVAILABLE WITH T HE ASSESSEE. THE FIRST CASH DEPOSIT OF RS.5 LAKHS MADE ON 29.05.2008 WAS DEPOSITED OUT OF CASH AVAILABLE IN THE CASH BOOK ON THAT DATE. LI KEWISE LD. CIT(A), FOR EACH AND EVERY DEPOSITS EXAMINED THE AVAILABILITY O F CASH WITH THE ASSESSEE AS RECORDED IN THE CASH BOOK. THE RELEVANT FINDING OF THE LD.CIT(A) FOR EACH AND EVERY CASH DEPOSIT IS REPROD UCED HEREUNDER: 4.4 THE FIRST CASH DEPOSIT IN THE BOMBAY MERCANTIL E CO-OPERATIVE BANK OF RS.5,00,000/- WAS MADE ON 29.05.2008, WHICH HAS BEEN DEPOSITED OUT OF THE CASH AVAILABLE IN THE CASH BOO K ON THAT DATE. THE OPENING CREDIT BALANCE IN THE CASH BOOK ON 29.0 5.2008 IS RS.8,18,682/- AND OUT OF THIS AN AMOUNT OF RS.5,00, 000/- IS SHOWN TO HAVE BEEN DEPOSITED IN THE BANK. ITA NO. 6091/MUM/2012 SHRI BABURAO K. PISAL ASSESSMENT YEAR: 2009-10 4 4.5 NEXT CASH DEPOSIT IS ON 31/07/2008 AMOUNTING TO RS. 1,00,000/- IN THE BOMBAY MERCANTILE CO-OPERATIVE BA NK, WHICH AGAIN HAS BEEN DEPOSITED OUT OF THE CASH AVAILABLE IN THE CASH BOOK ON THAT DATE, THE OPENING CREDIT BALANCE IN TH E CASH BOOK ON 31/07/2008 IS RS. 2,43,998/- AND OUT OF THIS AN AMOUNT OF RS. 1,00,000/- IS SHOWN TO HAVE BEEN DEPOSITED IN THE B ANK. THE EXPLANATION FOR THIS AMOUNT HAS BEEN ACCEPTED BY TH E A.O, 4.6 SIMILARLY, THE CASH DEPOSITS OF RS. 5,00,000/- ON 13/01/2009, OF RS. 4,35,000/- ON 27/02/2009 AND OF RS. 1,25,000 /- ON 30/03/2009 AND OF RS. 1,00,000/- ON 31/03/2009 ARE ALL OUT F THE CASH AVAILABLE IN THE CASH BOOK MAINTAINED BY THE A PPELLANT ON THE RESPECTIVE DATES AND ALL THE CASH DEPOSIT ENTRI ES ARE REFLECTED IN THE CASH BOOK ON THESE DATES. 4.7 FURTHER, FROM THE PERUSAL OF THE BANK STATEMEN TS OF THE BANK ACCOUNTS OF THE APPELLANT MENTIONED ABOVE, IT CAN B E OBSERVED THAT THERE ARE SUFFICIENT CASH WITHDRAWALS FROM THE SE BANKS, THE CREDIT FOR WHICH HAS TO BE GIVEN UNLESS AND UNTIL I T IS PROVED THAT THIS CASH HAS BEEN UTILIZED FOR SOME OTHER PURPOSE. THERE IS NO PROVISION IN THE LT. ACT REQUIRING THAT CASH ONCE W ITHDRAWN HAS TO BE REDEPOSITED IMMEDIATELY IF NOT UTILIZED. IT IS W ELL WITHIN THE RIGHT OF THE APPELLANT TO KEEP THE CASH WITHDRAWN W ITH HIM ACCORDING TO THE DAY TO DAY REQUIREMENTS OF THE BUS INESS AND THE BUSINESSMAN CANNOT BE FORCED TO REDEPOSIT THE SAME IN THE BANK IF NOT UTILIZED, AS LONG AS THE PROPER ENTRIES OF T HIS CASH IN THE BOOKS OF ACCOUNTS HAVE BEEN MADE. THE TIME GAP BETW EEN THE WITHDRAWALS AND DEPOSITS IS NOT OF MUCH RELEVANCE. 4.8. IN ORDER TO ESTABLISH THE UNEXPLAINED NATURE O F CASH DEPOSITS IN THE BANK F ACCOUNT, THE AO HAS TO PROVE THE SAME WITH SOME INDEPENDENT ENQUIRIES AND BY PLACING SOME EVIDENCE ON RECORD REGARDING ITS UNEXPLAINED NATURE. IN THE INSTANT CA SE, THE AO DID NOT MAKE ANY SUCH INQUIRIES OR PLACED ANY EVIDENCE ON RECORD TO PROVE THAT CASH IS UNEXPLAINED. THE' APPELLANT ON H IS PART HAS SUBMITTED THE CASH SUMMARY FOR THE ENTIRE PERIOD UN DER CONSIDERATION AND ALSO PRODUCED THE CASH BOOK, WHIC H CLEARLY REFLECTS ALL THESE BANK CASH DEPOSIT ENTRIES IN THE CASH BOOK ON RESPECTIVE DATES. THE APPELLANT HAS DISCHARGED THE BURDEN CAST UPON HIM UNDER THE PROVISIONS OF SECTION 68 BY PROD UCING THE CASH SUMMARY AND THE CASH BOOKS BEFORE THE AO. THE BURDEN THEREAFTER SHIFTED ON THE AO TO DISAPPROVE THESE EV IDENCES PRODUCED WHICH HE HAS FAILED TO DO. THE AO HAS NOT GIVEN ANY FINDING THAT THE CASH BOOK WAS NOT BEFORE HIM. THE SOURCE OF THE CASH DEPOSITS IS THE CASH BOOK FOR THE PERIOD, WHER EIN SUFFICIENT ITA NO. 6091/MUM/2012 SHRI BABURAO K. PISAL ASSESSMENT YEAR: 2009-10 5 CASH IS AVAILABLE IN THE CASH BOOK ON THE DATES OF DEPOSIT IN THE BANKS. THE SOURCE OF THE CASH IS NOT IN DOUBT. WHIL E MAKING ADDITION U/S. 68, THE AO HAS TO ADVERT TO EACH AND EVERY ENTRY IN QUESTION AND TO PROVE BY PACING SOME EVIDENCE ON RE CORD THAT THE DEPOSITS IN THE BANK ARE NOT FROM THE KNOWN SOU RCES BUT FROM THE UNDISCLOSED INCOME OF THE APPELLANT, THE S OURCE OF WHICH IS UNEXPLAINED.' THE AO HAS NOT CONFRONTED TH E APPELLANT WITH ANY SUCH MATERIAL BEFORE PROCEEDING TO CONCLUD E THAT THE SOURCE OF THE CASH DEPOSITS IS UNEXPLAINED. 4.10 ONCE THE SOURCE OF THESE CASH DEPOSITS IS NOT IN DOUBT, THE SAME CAN BE TERMED AS UNEXPLAINED. THE AO HAS NOT D ISCUSSED THE AVAILABILITY OF THE CASH IN THE CASH BOOK AND P ROCEEDED SIMPLY TO MAKE THE ADDITION ON THE GROUND THAT THE TIME GA P BETWEEN THE CASH WITHDRAWN FROM THE BANK AND REDEPOSIT WAS LONG. AS OUTLINED ABOVE, THERE IS NO PROVISION IN THE I.T. A CT REQUIRING THAT CASH WITHDRAWN, IF REMAINS UNUTILIZED, HAS TO BE RE DEPOSITED IMMEDIATELY. BUSINESSMAN HAS TO SEE HIS REQUIREMENT OF THE AVAILABILITY OF CASH AND ITS UTILIZATION ACCORDING TO THE NEEDS OF THE BUSINESS. IN THE PROCESS, IF A BUSINESSMAN HAS TO K EEP SOME CASH IN HAND FOR DAY TO DAY REQUIREMENTS AND DEPOSIT THE SAME AFTER SOME PERIOD, THERE APPEARS TO BE NO ILLEGALITY ABOU T SUCH REDEPOSIT OF CASH IN THE BANK AS LONG AS THE SAME I S THROUGH BOOKS OF ACCOUNTS. 4.11 IN VIEW OF THE FACTS AND CIRCUMSTANCES AND JUD ICIAL PRONOUNCEMENTS MENTIONED ABOVE, IN MY OPINION, THE ACTION OF THE AO MAKING AN ADDITION OF RS.16,60,000/- AS UNEX PLAINED CASH CREDITS, IS NOT IN ORDER AND HENCE THE ADDITION MAD E IS DELETED. THUS THE LD.CIT(A) DELETED THE SAID ADDITION IN THE AFORESAID MANNER. 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE FINDING GIVEN IN THE IMPUGNED ORDERS AND THE MATERIAL PLACED ON R ECORD BEFORE US, WE FIND THAT THE ASSESSEE HAS MAINTAINED REGULAR CASH BOOK AND ALL ITS ACCOUNT ARE AUDITED. THE LD.CIT(A) HAS ANALYZED EA CH AND EVERY DEPOSITS MADE BY THE ASSESSEE IN THE BANK ACCOUNT F ROM THE WITHDRAWALS MADE BY THE ASSESSEE FROM THE BANK AND THE CASH AVAILABLE IN THE CASH BOOK. THE ASSESSEE HAS ALSO SHOWN SUFFI CIENT CASH IN HAND IN ITA NO. 6091/MUM/2012 SHRI BABURAO K. PISAL ASSESSMENT YEAR: 2009-10 6 THE BALANCE SHEET OF THE EARLIER YEARS AND ALSO THE SOURCE OF CASH AVAILABLE WITH THE ASSESSEE. THUS, THE DEPOSITS MAD E BY THE ASSESSEE HAS BEEN PROPERLY EXPLAINED BY THE ASSESSEE BEFORE THE LD.CIT(A) AND WITHOUT THERE BEING ANY CONTRARY EVIDENCE OR REBUTT AL BY THE DEPARTMENT, WE DO NOT FIND ANY REASON TO DEVIATE F ROM SUCH A THE FINDING RECORDED BY THE LD.CIT(A). ACCORDINGLY, THE ORDER OF THE LD.CIT(A) IS AFFIRMED AND GROUND RAISED BY THE REVE NUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY DECEMBER, 2014. SD/- SD/- (N.K. BILLAIYA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.12.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.