Dilip N Kotwani, Pune V. Income tax Officer, Pune

ITA 636/PUN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4936 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE MS. SUSHMA CHOWLA, JM ./ ITA NO. 636/PUN/2017 / ASSESSMENT YEAR : 2008-09 SHRI DILIP N. KOTWANI, HARSHADA A-8, S/ NO.253, CHINCHWAD LINK ROAD, CHINCHWAD, PUNE-411 033. PAN : AIFPK6014K ....... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD- 9(2), PUNE. / RESPONDENT APPELLANT BY : SHRI KISHORE PHADKE RESPONDENT BY : SHRI M. K. VERMA / DATE OF HEARING : 08.10.2018 / DATE OF PRONOUNCEMENT : 22.10.2018 ' / ORDER PER SUSHMA CHOWLA, JM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-9, PUNE DATED 19.12.2016 RELAT ING TO ASSESSMENT YEAR 2008- 09 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). 2 ITA NO.636/PUN/2017 A.Y.2008-09 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. ON THE FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS & SCHEME OF THE ACT, IT BE HELD THAT, AS PER PROVISIONS & SCHEME OF THE ACT, IT BE HELD, THE ADDITIONS MADE OF RS.12,00 ,920/- ON ACCOUNT OF CASH DEPOSITS IN SEVA VIKAS BANK & RS.39,260/- IN AXIS B ANK ARE NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT & WITHOUT PROPERLY CONSIDERING THE EXPLANATIONS OFFERED BY THE ASSESSEE. THE ADDITIONS SO MADE BE DELETED. JUST IN PROPER RELIEF MAY BE GRANTED TO THE APPELLA NT. 2. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, AMEND, MODIFY, RECTIFY, DELETE, RAISE ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST ADDITION MADE IN THE HANDS OF THE ASSESSEE FOR NOT EXPLAINING CASH DEPOS ITS IN SEVA VIKAS BANK AND AXIS BANK. THE TOTAL ADDITIONS ARE OF RS.12,00,920/- AND RS.39,260/- RESPECTIVELY. 4. BRIEFLY IN THE FACTS OF THE CASE, THE ASSESSEE W AS INDIVIDUAL HAVING INCOME FROM LIC COMMISSION AND COMMISSION FROM ORIENTAL IN SURANCE CO. LTD. THE ASSESSEE FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1,56,960/-. THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY. DU RING ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS A N ACCOUNT IN SEVA VIKAS CO-OP. BANK, PIMPRI BRANCH IN WHICH THERE WAS SUBSTANTIAL CASH DEPOSITS OF RS.12,00,920/-. THE ASSESSEE WAS CONFRONTED WITH TH E SAID EVIDENCE DURING ASSESSMENT PROCEEDINGS, SINCE THE ASSESSEE FAILED T O SHOW THE BANK ACCOUNT IN THE RETURN OF INCOME. THE ASSESSEE GAVE SOME EXPLANATIO N WITH REGARD TO CASH DEPOSIT IN THE SAID BANK ACCOUNT. HOWEVER, EVIDENCE PRODUCE D BY THE ASSESSEE WAS FOUND NOT UP TO THE MARK. FURTHER, HE EXPLAINED THAT HE W AS INSURANCE AGENT AND CERTAIN PERSONS GAVE CASH FOR PAYMENT OF INSURANCE POLICY W HICH WAS DEPOSITED IN THE SAID BANK ACCOUNT. BUT THE ASSESSEE COULD NOT FURNISH A NY CONFIRMATION FROM THE PARTIES IN THIS REGARD. THE ASSESSING OFFICER FURTHER NOTED THAT ASSESSEE HAD ANOTHER BANK ACCOUNT IN THE AXIS BANK IN WHICH CASH DEPOSIT WAS MADE. THE ASSESSEE COULD NOT PROVE THE SOURCES OF THE SAID CASH DEPOSIT. HENCE, THE ASSESSING OFFICER MADE 3 ITA NO.636/PUN/2017 A.Y.2008-09 ADDITION OF RS.12,00,920/- ON ACCOUNT OF CASH DEPOS ITS IN SEVA VIKAS BANK LIMITED AND RS.2,28,300/- ON ACCOUNT OF CASH DEPOSITS IN AX IS BANK. 5. DURING FIRST APPELLATE PROCEEDINGS, THE ASSESSEE FURNISHED WRITTEN SUBMISSIONS, ADDITIONAL EVIDENCES IN RESPECT OF CAS H DEPOSIT OF RS.1,89,040/- IN THE UTI BANK LTD./ AXIS BANK. THE ASSESSEE ALSO FURNISH ED EXPLANATION IN RESPECT OF CASH DEPOSITS IN SEVA VIKAS CO.-OP. BANK. THE CIT(A ) ACCEPTED THE CLAIM OF ASSESSEES CASH DEPOSITS OF RS.1,89,040/- IN UTI BA NK LTD./AXIS BANK AND ADDITION TO THAT EXTENT WAS DELETED. WITH REGARD TO THE BALA NCE CASH DEPOSITS IN SEVA VIKAS CO.-OP. BANK LIMITED, PIMPRI BRANCH, PUNE, EXPLANAT ION GIVEN BY ASSESSEE WAS NOT ACCEPTED BY THE CIT(A) AND ADDITION MADE BY THE ASS ESSING OFFICER WAS CONFIRMED. 6. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. AR FOR THE ASSESSEE FAIRLY AGREED THAT C OMPLETE EXPLANATION/EVIDENCES COULD NOT BE FURNISHED IN RES PECT OF THE CASH DEPOSITS IN SEVA VIKAS CO-OP. BANK LIMITED. HE POINTED THAT ASSESSEE MADE CASH WITHDRAWALS FROM THE UTI BANK LTD./ AXIS BANK AND ALSO FROM SEVA VIK AS CO-OP. BANK LIMITED AND DETAILS OF THE SAID WITHDRAWALS ARE PLACED AT PAGE 49 OF THE PAPER BOOK. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT AS AGAINST CASH D EPOSITS OF RS.2,28,300/- IN THE UTI BANK LIMITED, THE OUTFLOW WAS OF RS.3,53,500/-. IN RESPECT OF THE SEVA VIKAS CO.OP. BANK LIMITED, AS AGAINST CASH DEPOSITS OF RS .12,00,920/-, THERE WAS CASH WITHDRAWAL OF RS.5,96,100/-. THE LD. AR FOR THE ASS ESSEE STRESSED THAT THE CASH AVAILABLE WITH THE ASSESSEE SHOULD BE SET OFF AGAIN ST THE CASH DEPOSITS AND NECESSARY RELIEF MAY BE ALLOWED TO THE ASSESSEE. 8. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS PL ACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 4 ITA NO.636/PUN/2017 A.Y.2008-09 9. ON PERUSAL OF THE RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, THE ISSUE RAISED IN THE PRESENT CA SE IS AGAINST ADDITIONS MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF CASH DEPOSITS I N TWO BANK ACCOUNTS OF THE ASSESSEE. THE FIRST ACCOUNT WAS IN UTI BANK LTD./ A XIS BANK AND THE SAID BANK ACCOUNT WAS DISCLOSED BY ASSESSEE. THE TOTAL CASH D EPOSITS IN THE SAID BANK ACCOUNT WAS RS.2,28,300/-. BEFORE THE CIT(A), THE A SSESSEE EXPLAINED THE DEPOSITS TO THE EXTENT OF RS.1,89,040/- FOR WHICH ADDITIONAL EVIDENCE WAS FILED BEFORE THE CIT(A). THE ASSESSEE DID NOT RAISE THE ISSUE OF TH E AVAILABILITY OF CASH IN HAND, IN BOTH THE BANK ACCOUNTS BEFORE THE AUTHORITIES BELOW . FIRST OF ALL, THE EXPLANATION OF THE ASSESSEE TO THE EXTENT OF RS.1,89,040/- HAS BEE N ACCEPTED BY THE CIT(A) AND THE ASSESSEE IS IN APPEAL ONLY AGAINST THE BALANCE AMOUNT I.E. CASH DEPOSITS IN UTI BANK LIMITED OUT OF CASH WITHDRAWALS DURING THE YEA R RS.3,53,500/-. THE ASSESSEES SUBMISSION TO THE EXTENT THAT THE CASH WITHDRAWALS MADE BY ASSESSEE AND DEPOSITED THE SAME IN THE SAME ACCOUNT, HAS NO MERIT TO ALLOW THE CLAIM OF THE ASSESSEE OUT OF CASH WITHDRAWALS FROM UTI BANK LTD/ AXIS BANK. ACCO RDINGLY, I REJECT THE PLEA OF THE ASSESSEE FOR THE AVAILABILITY OF CASH DEPOSITS IN U TI BANK LTD. HENCE, THE ADDITION OF RS.2,28,300/- - RS.1,89,040/- = RS.39,260/- IS UPHE LD IN THE HANDS OF ASSESSEE BEING CASH DEPOSITED IN UTI BANK LIMITED. 10. NOW COMING TO THE SECOND BANK ACCOUNT I.E. SEVA VIKAS CO.-OP. BANK LIMITED; THIS ACCOUNT WAS UNDISCLOSED BANK ACCOUNT WHICH HAD NOT BEEN SHOWN IN THE RETURN OF INCOME OF THE ASSESSEE. A PERUSAL OF THE CASH DEPOSIT REVEALS THE OPENING BALANCE, INFLOW AND OUT FLOW FROM THE MONTH OF APRIL, 2007 TO MARCH, 2008 AGAINST WHICH, THE CASH WITHDRAWALS WERE VERY MINIS CULE. EVEN IF BENEFIT OF WITHDRAWALS IS ALLOWED TO THE ASSESSEE, PEAK OF THE AMOUNT IS TO BE ADDED. THE ASSESSEE HAD FURNISHED AFORESAID DETAILS AT PAGE 49 OF THE PAPER BOOK. THE ASSESSEE HAD INITIALLY DEPOSITED CASH IN THE BANK A CCOUNT AGAINST WHICH THERE WERE NO CASH WITHDRAWALS. CONSEQUENT THEREOF, THERE WER E CASH WITHDRAWALS OF RS.1,02,900/- IN THE MONTH OF DECEMBER, 2007, RS.3, 87,000/- IN THE MONTH OF 5 ITA NO.636/PUN/2017 A.Y.2008-09 JANUARY, 2008 AGAINST WHICH THERE WAS CASH DEPOSIT OF RS.10,200/- IN MONTH OF DECEMBER, 2007 AND RS.4,06,350/- IN THE MONTH OF JA NUARY, 2008. THE PEAK IN THIS REGARD NEEDS TO BE WORKED OUT ON DAY TO DAY BASIS. THE ASSESSEE HAS FILED DETAILS IN THIS REGARD AND PEAK NEGATIVE CASH BALANCE IS RS.70 5,220/-. ACCORDINGLY, ALLOWING BENEFIT OF CASH WITHDRAWALS, I DIRECT THE ASSESSING OFFICER TO VERIFY THE PEAK NEGATIVE CASH DEPOSITS IN THE HANDS OF THE ASSESSEE. FOR BAL ANCE CASH DEPOSITS, NO EXPLANATION HAD BEEN GIVEN BY THE ASSESSEE EXCEPT F OR SAYING CASH IS AVAILABLE OUT OF CASH WITHDRAWALS MADE FROM BOTH ACCOUNTS, WHICH IS NOT ACCEPTED AND HENCE, SAME ARE TO BE ADDED AS UNDISCLOSED INCOME OF THE A SSESSEE. THE ASSESSING OFFICER SHALL VERIFY THE DETAILS OF THE PEAK CASH B ALANCE AND COMPUTE ADDITION IN THE HANDS OF ASSESSEE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 22 ND DAY OF OCTOBER, 2018. SD/- (SUSHMA CHOWLA) /JUDICIAL MEMBER / PUNE; / DATED : 22 ND OCTOBER, 2018. SB ' # $%&' ('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-9, PUNE. 4. THE PR. CIT-5, PUNE. 5. !'# $% , & $% , - '() , / DR, ITAT, SMC BENCH, PUNE. 6. #*+ ,- / GUARD FILE. // TRUE COPY // &. / BY ORDER, / $) /PRIVATE SECRETARY & $% , / ITAT, PUNE.