SHRI ANIL TYAGI, Bhopal V. The ITO 3(2), Bhopal

ITA 623/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5763 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 08-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 68; 69

Judgement Text

ANIL TYAGI ITA NO. 623/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNA L SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 623/IND/2014 A.Y. 2010-11 ANIL TYAGI BHOPAL PAN AAKPT 9391B ::: APPELLANT VS INCOME TAX OFFICER 3(2) BHOPAL ::: RESPONDENT APPELLANT BY SHRI ANIL KHABYA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 16.12.2015 DATE OF PRONOUNCEMENT 8 . 2 . 2016 O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-II, BHOPAL, DATED 5.8.201 4. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN MAINTAINING THE ADDI TION ANIL TYAGI ITA NO. 623/IND/2014 2 OF RS.7,75,000/- BY INVOKING THE PROVISIONS OF SECT ION 69 OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SALARIED EMPLOYEE HAVING WORKED WITH M/S RUCHI SOYA INDUSTRIES AND M/S ADANI POWER LIMITED DURING THE YEA R UNDER CONSIDERATION. NO BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED BY THE ASSESSEE. THE ASSESSEE HAS FILED CASH FLOW STATEMENT AND COPY OF BANK ACCOUNT. THE ASSESSING OFFICER MADE THE ADDITION OF RS.9,72,205/- BY INVOKIN G THE PROVISIONS OF SECTION 68 OF THE ACT. IT IS AN ADMITTE D FACT THAT THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS. THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS EXPLAINED EACH AND EVERY ENTRY BY PRODUCING A TABLE WHICH READS AS UNDER :- ANIL TYAGI ITA NO. 623/IND/2014 3 S. NO DATE AMOUNT EXPLANATION OF ASSESSEE OBSERVATION OF A.O. SUBMISSION IN APPEAL 1 01-04-2009 4,00,000 IT WAS EXPLAINED THAT THERE WAS OPENING BALANCE AVAILABLE WITH THE ASSESSEE WHICH CONSTITUTED HIS PAST SAVINGS THE ASSESSEE IS A SALARIED PERSON WHO IS FILING RETURNS FOR LAST 5 TO 6 YEARS. IN THE FACTS OF THE CASE, ONLY RS.25,000/- IS ACCEPTED PAST SAVINGS THE ASSESSEE IS A REGULAR INCOME TAX ASSESSEE. CASH FLOW STATEMENT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR F.Y. 09-10 ITSELF SUGGEST THAT THE ASSESSEE WAS MAINTAINING AVERAGE CASH BALANCE OF RS.4,00,000 DURING THE ENTIRE YEAR. THUS THE SUBMISSION OF THE ASSESSEE THAT HE WAS HAVING OPENING CASH BALANCE OF SIMILAR AMOUNT WAS A BONA FIDE EXPLANATION WHICH OUGHT TO BE ACCEPTED. 2 23.06.2009 2,00,000 IT WAS EXPLAINED THAT ASSESSEE HAS WITHDRAWN A SUM OF RS.2,00,000/- FROM BANK THROUGH H.S. NAGI. THE WITHDRAWN IS DULY REFLECTED IN BANK STATEMENT THE A.O. HELD THAT THE WITHDRAWAL WAS NOT MADE IN CASH. HOWEVER, NO ENQUIRY WAS MADE FROM THE BANK IT IS USUAL THAT THE BANK MENTIONS NAME OF THE PERSON WHO WITHDRAWS THE MONEY FROM BANK IN THE STATEMENT WHERE A BEARER CHEQUE IS ISSUED IN THE NAME OF PERSON WHO SIGNS ON THE BACK OF CHEQUE AND RECEIVES CASH. 3 05.02.2010 2,00,000 IT WAS EXPLAINED THAT ASSESSEE HAS WITHDRAWN A SUM OF RS.2,00,000/- FROM BANK -DO- -DO- ANIL TYAGI ITA NO. 623/IND/2014 4 THROUGH H.S. NAGI. THE WITHDRAWN IS DULY REFLECTED IN BANK STATEMENT 4 04.02.2010 1,50,000 IT WAS EXPLAINED THAT CASH AMOUNT OF RS.1,50,000/- WAS WITHDRAWN WHICH IS DULY REFLECTED IN BANK STATEMENT AS CASH WITHDRAWAL CASH RS.1,50,000/- REFLECTED IN BANK ACCOUNT PATENTLY COUNTRARY TO ENTRIES REFLECTED IN BANK ACCOUNT 5 VARIOUS DATES 47,705 NO EXPLANATION OFFERED IN THE ABSENCE OF ANY EXPLANATION ADDITION WAS MADE NO FURTHER SUBMISSION THE ASSESSING OFFICER AFTER VERIFICATION OF THIS STATE MENT WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AN D HE CONFIRMED THE ADDITION OF RS.8,22,705/- OUT OF RS.9,72,705/- . NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SUBMITTED ALL THE DOCUMENTARY EVIDENCE WHEREFROM THE MONEY HAS COME IN RESPECT OF RS. 2 LAK HS ON 23.6.2009. RS. 2 LACS HAVE BEEN WITHDRAWN FROM THE BAN K THROUGH SHRI H.S. NAGI WHO IS AN EMPLOYEE WHO HAS ANIL TYAGI ITA NO. 623/IND/2014 5 WITHDRAWN THIS AMOUNT BUT THIS MONEY BELONGS TO THE ASSESSEE. SIMILARLY RS. 2 LACS HAVE BEEN WITHDRWN ON 5.2.2010 THROUGH H.S,.NAGI AND RS.1,50,000/- IS REFL ECTED IN THE BANK ACCOUNT. THEREFORE, THIS AMOUNT IS EXPLAINE D AND THE ASSESSEE WAS HAVING CASH OF RS.3.75 LACS IN HIS OPENING BALANCE WHICH IS HIS PAST SAVINGS. THEREFORE, AL L THE ADDITIONS HAVE BEEN EXPLAINED. 5. ON THE OTHER HAND, THE LEARNED DR OBJECTED TO THE SUBMISSIONS OF THE ASSESSEE BUT HE SUBMITTED THAT THE PRIMARY ONUS IS ON THE ASSESSEE TO PROVE THE SOURCE O F THIS CASH FOUND IN HIS BANK ACCOUNT. THE ASSESSEE HAS FAILED TO EXPLAIN ITS CASE BEFORE THE AUTHORITIES BELOW. 6. HAVING HEARD BOTH THE SIDES AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IT IS THE CASE OF THE ASSESSEE THAT RS. 2 LACS HAVE BEEN WITHDRAWN BY THE ASSESSEE FROM THE BANK ON 23.6.2009 AND 5.2.2010 AND IT IS THE ASSESSEES MONEY. THEREFORE, IN MY OPINION, T HIS ANIL TYAGI ITA NO. 623/IND/2014 6 REQUIRES VERIFICATION AT THE LEVEL OF THJE ASSESSING O FFICER AS TO WHETHER THE ASSESSEE HAS WITHDRAWN THIS AMOUNT OF R S.2 LAKHS + RS. 3 LACS FROM HIS BANK ACCOUNT AND MR. H.S. NEAGI HAS WITHDRAWN THIS AMOUNT ON BEHALF OF THE ASSESSEE. I, THEREFORE, RESTORE THIS ISSUE TO THE F ILE OF THE ASSESSING OFFICER TO VERIFY THE SAME AND DECIDE THE M ATTER AFRESH AS PER LAW AFTER AFFORDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 7. IN RESPECT OF RS. 3.75 IT IS THE CONTENTION OF T HE ASSESSEE THAT THE ASSESSEE WAS HAVING OPENING CASH BALANCE OF RS.3.75 LACS BUT IN MY OPINION, IN THE ABSEN CE OF ANY BOOKS OF ACCOUNTS AND DOCUMENTARY EVIDENCE, THE ASSESSEE HAS FAILED TO PROVE ITS CASE REGARDING CASH BALAN CE OF RS.3,75,000/-. THEREFORE, I CONFIRM THE SAME. 8. IN THE RESULT, THE ASSESSEES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ANIL TYAGI ITA NO. 623/IND/2014 7 PRONOUNCED IN OPEN COURT ON 8 FEB., 2016 SD/- (D.T. GARASIA) ACCOUNTANT MEMBER 8 FEB., 2016 DN/-