Shri Janak Niranjan Shah, Ahmedabad V. The Income tax Officer,Ward-10(2), Ahmedabad

ITA 628/AHD/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9021 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-12-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 25-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO. 628/AHD/2009 A. Y.: 2004-05 JANAK NIRANJAN SHAH, VIVA BUNGLOW, 31 BODAKDEV, B/H RANJIT PETROL PUMP, OPP. GRANT BHAGAWATI, S. G HIGHWAY, AHMEDABAD 380 059 VS THE INCOME TAX OFFICER, WARD NO.10 (2), AHMEDABAD PA NO. AFUPS 6351 R (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAJESH C SHAH, AR RESPONDENT BY SHRI K. MADHUSUDAN, SR DR O R D E R PER BHAVNESH SAINI, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XV I, AHMEDABAD DATED 22-01-2009 FOR ASSESSMENT YEAR 2004-05, CHALLENGING THE ADDITION OF RS.1,72,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSI T IN THE BANK ACCOUNT. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE YEAR TOTAL CASH DEPOSIT OF RS.1,72,000/- WAS APPEARING IN THE BANK ACCOUNT IN STATE BANK OF INDIA FROM 01-05-2003 TO 26-03-2004. THE AS SESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT IN HIS BANK ACCOUNT OUT OF THE AMOUNT OF RS.1,72,000/-, RS.60,000/- WAS STATED TO BE OUT OF EARLIER CASH WITHDRAWALS MADE DURING THE PERIOD 12- 05-2002 TO 02-09-2002. IT WAS STATED THAT THE ASSESSEE HAS WIT HDRAWN CASH OF ITA NO.628/AHD/2009 JANAK NIRANJAN SHAH VS ITO 10(2), AHMEDABAD 2 RS.1,20,000/- DURING 12-05-2002 TO 02-09-2002 FOR T REATMENT OF ONE OF HIS FAMILY MEMBERS. HOWEVER, CASH WAS LYING IDLE AN D, THEREFORE, IT WAS DEPOSITED DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL ON VARIOUS DATES DURING 1-05-2003 TO 2 6-03-2004 IN FOUR INSTALLMENTS OF RS.15,000/-, RS15,000/-, RS.12,000/ - AND RS.18,000/-. AS REGARDS BALANCE AMOUNT OF RS.1,12,000/-, IT WAS STATED THAT THE ASSESSEE HAS GIVEN CHEQUE OF RS1,10,000/- ON 25-05- 2003 AS A DEPOSIT TO M/S SUPREME TELECOM & TRADERS. HOWEVER, THIS PAR TY RAN AWAY OVERNIGHT. FIR WAS FILED AGAINST THIS PARTY AND WIT H THE HELP OF POLICE, THE ASSESSEE WAS ABLE TO RECOVER THE AMOUNT OF RS.1,10, 000/- ALONG WITH INTEREST OF RS.2,000/-. THE AO DID NOT ACCEPT THE E XPLANATION OF THE ASSESSEE BECAUSE THE ASSESSEE HAS FABRICATED THE ST ORY OF SOURCE OF RS.60,000/- WHICH HAS NO CO-RELATION WITH THE ASSES SMENT YEAR UNDER APPEAL. FURTHER, THE RECEIPT OF RS.1,12,000/- FROM M/S SUPREME TELECOM & TRADERS WAS ALSO NOT ACCEPTED BECAUSE NO PROOF OF RECOVERY OF THE AMOUNT IS FILED. IT WAS ALSO NOTED THAT ONCE FIR WA S FILED, THERE IS NO CHANCE OF RECOVERY OF THE AMOUNT. THE ASSESSEE ALSO COULD NOT PROVE THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT WAS THE SA ME WHICH WAS RETURNED BY M/S SUPREME TELECOM & TRADERS. THE ADDI TION WAS ACCORDINGLY MADE. SAME SUBMISSIONS WERE REITERATED BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) HOWEVER, DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE. HIS FINDINGS IN PARA 4 TO 6 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER: 4. I HAVE PERUSED THE ASSESSMENT ORDER AND GONE THROUGH THE SUBMISSIONS OF THE APPELLANT. AS REGARD S THE DEPOSIT OF RS.60,000/- OUT OF THE WITHDRAWALS OF EA RLIER YEARS, I DO NOT AGREE WITH THE APPELLANT THAT THE AMOUNT O F RS.1,20,000/- WITHDRAWN IN EARLIER YEAR WAS LYING I DLE AND THEREFORE, OUT OF THIS RS.60,000/- WAS DEPOSITED BA CK IN THE BANK ACCOUNT ON VARIOUS DATES FROM 1-5-2003 TO 26-3 -2004 AS MENTIONED ABOVE. THIS EXPLANATION OF THE ASSESSEE A CCORDING TO ME IS NOT TENABLE BECAUSE IF THE ASSESSEE WAS HA VING CASH BALANCE OF RS.60,000/- OR MORE LYING IDLE THEN THER E WAS NO ITA NO.628/AHD/2009 JANAK NIRANJAN SHAH VS ITO 10(2), AHMEDABAD 3 NEED TO DEPOSIT RS.15,000/- ON 1-5-03, RS.15,000/- ON 3-5-03, RS.12,000/- ON 5-5-03 AND RS.18,000/- AFTER ABOUT 1 0 MONTHS THEREAFTER ON 26-3-2004. THE APPELLANT COULD HAVE DEPOSITED THE ABOVE AMOUNT OF RS.60,000/- AT ONE TI ME INSTEAD OF DEPOSITING THE AMOUNT IN PART AS ABOVE. FURTHER, THERE IS CONSIDERABLE TIME LAG OF MORE THAN ONE YEA R BETWEEN THE WITHDRAWALS AND CASH DEPOSITS THEREFORE THE SAM E CANNOT BE RELATED WITH EACH OTHER. ON THIS ISSUE I CONFIRM THE ADDITION OF RS.60,000/- MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. 5. AS REGARDS THE DEPOSITS OF RS.1,10,000/- IN THE MONTH OF MARCH 2004 I.E. DATE AMT. RS. 19-3-04 20,000 20-3-04 30,000 23-3-04 20,000 24-3-04 20,000 25-3-04 20,000 THE APPELLANT FURNISHED A COPY OF FIR STATING THAT CHEQUE OF RS.1,10,000/- WAS PAID TO M/S. SUPREME TELECOM & TR ADERS AS DEPOSIT WHO RAN AWAY WITH THE MONEY. THE FIR IS DATED 14-7-2003 IN MY OPINION IF A FIR IS FILED THEN THE POLICE CANNOT RETURN BACK THE MONEY TO THE APPELLANT WITHOUT AN O RDER OF THE COURT. IN THIS CASE NO COURT ORDER IS STATED TO HAV E BEEN PASSED. THE AUTHORISED REPRESENTATIVE STATED THAT S INCE THE APPELLANT KNEW SOMEBODY IN THE POLICE DEPARTMENT HE WAS ABLE TO RECOVER THE MONEY FROM M/S. SUPREME TELECOM & TRADERS. IT IS DIFFICULT TO BELIEVE THIS VERSION OF THE APPELLANT PARTICULARLY WHEN THE DEPOSITS ARE MADE IN THE MONT H OF MARCH ON VARIOUS DATES I.E. FROM 19-3-04 TO 25-3-04 . IT IS NOT ACCEPTABLE THAT THE PARTY WOULD HAVE PAID THE AMOUN T ON 19 TH , 20 TH , 23 RD , 24 TH & 25 TH OF MARCH, 2004 IN INSTALLMENT OF RS.20,000/- OF RS.30,000/- AS MENTIONED ABOVE. THER EFORE, THE CONTENTION THAT THE ABOVE MENTIONED AMOUNT DEPO SITED IN BANK ACCOUNT REPRESENTS THE RECOVERY OF RS.1,10,000 /- FROM M/S SUPREME TELECOM & TRADERS IS NOT PROVED. FURTHE R THE AUTHORIZED REPRESENTATIVE STATED THAT, IN FACT, FRO M M/S. SUPREME TELECOM & TRADERS TOTAL AMOUNT OF RS.1,12,0 00/- WAS RECOVERED OUT OF WHICH RS.2000/- WAS ON ACCOUNT OF INTEREST ON RS.1,10,000/-. IN THE STATEMENT OF TOTA L INCOME THE APPELLANT FAILED TO PROVE THAT THIS INCOME OF RS.20 00/- HAS BEEN SHOWN BY THE APPELLANT AS INTEREST INCOME. IN VIEW OF THE ITA NO.628/AHD/2009 JANAK NIRANJAN SHAH VS ITO 10(2), AHMEDABAD 4 ABOVE DISCUSSION THE ADDITION OF RS.1,10,000/- MADE BY THE ASSESSING OFFICER IS CONFIRMED 6 IN THE RESULT, THE APPEAL OF THE APPELLANT IS DISMISSED 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE AS SESSEE MERELY REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORIT IES BELOW AND REFERRED TO PB-26 - COPY OF THE AGREEMENT BETWEEN T HE ASSESSEE AND M/S. SUPREME TELECOM & TRADERS FOR GIVING MONEY TO THEM AND ALSO REFERRED TO THE COPY OF THE POLICE REPORT DATED 14-7-2003 AN D SUBMITTED THAT SINCE THE ASSESSEE WAS ABLE TO RECOVER THE AMOUNT IN CASH FROM THIS PARTY THROUGH POLICE AFTER FIR, THEREFORE, THE AMOUNT IS AVAILABLE WITH THE ASSESSEE TO EXPLAIN THE DEPOSIT. HOWEVER, WE DO NOT AGREE WITH THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. IT IS ADMITTED FACT THAT THERE WAS DEPOSIT OF RS.1,72,000/- IN THE BANK ACCOUNT OF THE ASSESSEE ON VARIOUS DATES DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THE EXPLANATION OF TH E ASSESSEE THAT AMOUNT WAS LYING IDLE IN THE YEAR 2002 AND WAS RE-D EPOSITED IN THE BANK ACCOUNT AMOUNTING TO RS. 60,000/- IS NOT ACCEPTABLE . NO EVIDENCE IS FILED BY THE ASSESSEE TO PROVE THAT THE AMOUNT OF EARLIER YEARS WAS AVAILABLE TO THE ASSESSEE. EVEN, NO EXPLANATION HAS BEEN GIVEN W HY THE AMOUNT WAS DEPOSITED IN INSTALLMENTS. IN THE ABSENCE OF ANY EV IDENCE ON RECORD THE EXPLANATION OF THE ASSESSEE HAS BEEN RIGHTLY REJECT ED BY THE AUTHORITIES BELOW. AS REGARDS RECOVERY OF THE AMOUNT FROM M/S. SUPREME TELECOM & TRADERS IN CASH AFTER LODGING FIR AGAINST THEM ON 1 4-07-2003, THE EXPLANATION OF THE ASSESSEE IS HIGHLY UNBELIEVABLE AND RIGHTLY REJECTED BY THE AUTHORITIES BELOW BECAUSE AFTER LODGING FIR, TH E POLICE IN CASE OF RECOVERY OF THE AMOUNT SHALL KEEP IT AS CASE PROPER TY AND THE AMOUNT COULD ONLY BE RETURNED TO THE ASSESSEE THROUGH ORDE R OF THE CRIMINAL COURT. THE CASE PROPERTY CAN NEVER BE DIRECTLY RETU RNED TO THE ASSESSEE. MOREOVER, IT IS ALSO DIFFICULT TO BELIEVE THAT THE PARTY WHO HAS CHEATED THE ITA NO.628/AHD/2009 JANAK NIRANJAN SHAH VS ITO 10(2), AHMEDABAD 5 ASSESSEE WOULD PAY THE AMOUNT IN INSTALLMENTS AND T HE ASSESSEE WOULD ALSO ACCEPT THE AMOUNT IN INSTALLMENTS. SINCE NO CO GENT AND RELIABLE EVIDENCE HAS BEEN FILED, THE EXPLANATION OF THE ASS ESSEE HAS BEEN RIGHTLY REJECTED BY THE AUTHORITIES BELOW. IN THE ABSENCE O F ANY EVIDENCE ABOUT THE AVAILABILITY OF THE CASH WITH THE ASSESSEE, THE BANK DEPOSITS REMAINED UNEXPLAINED AND THE ADDITIONS HAVE RIGHTLY BEEN MAD E AND CONFIRMED BY THE AUTHORITIES BELOW. THERE IS NO MERIT IN THE APP EAL OF THE ASSESSEE, THE SAME IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON 16-12-2010. SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 16-12 -2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD