Shri Devendra Sadho, Bhopal V. The ACIT 1(1), Bhopal

ITA 662/IND/2013

• Counselvise Citation: 66222714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 12-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Assessee Lawyers: YESHWANT SHARMA
• Keywords: Unexplained cash credit; Principle of natural justice; Source of fund; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.662/IND/2013 A.Y. : 2005-06 SHRI DEVENDRA SADHO, ACIT, 1(1), BHOPAL VS BHOPAL APPELLANT RESPONDENT P.A.N. NO A ELPS9942Q APPELLANT BY SHRI YESHWANT SHARMA, CA RESPONDENT BY SHRI R. R. MEENA, DR DATE OF HEARING : 12 .08.2015 DATE OF PRONOUNCEMENT : 12. 0 8 .2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), BILASPUR, CAMP AT BHOPAL, DATED 14.08.20 13 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS TAKEN AS MANY AS FOUR GROUNDS, BUT DID NOT PRESS GROUND NOS. 1, 3 AND 4. THEY ARE, THE REFORE, DISMISSED SINCE NOT PRESSED. THE ONLY GROUND REMAIN S FOR ADJUDICATION FOR US IS GROUND NO. 2, WHICH READS AS UNDER :- THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 3,07,000/- ON ACCOUNT OF UNDISCLOSED INCOME/UNEXPLAINED CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE. 3. THE ASSESSEE HAS PURCHASED A SHOP AT PLATINUM PLAZA FOR RS. 15,06,001/-. THE ASSESSEE WAS ASKED TO FURN ISH DETAILS OF SOURCE OF FUND AND THE ASSESSEE FURNISHED THE SA ME. IT WAS -: 3: - 3 SUBMITTED THAT THE INVESTMENT OF RS. 15,06,001/- HA D BEEN MADE THROUGH TRANSFER FROM CURRENT ACCOUNT AND WITH DRAWAL FROM SAVING ACCOUNT. THE ASSESSEE PRODUCED COPY OF SAVING ACCOUNT, WHICH WAS EXAMINED. IT WAS FOUND THAT DURI NG THE YEAR CASH OF RS. 3,07,000/- WAS DEPOSITED. THE ASSE SSEE WAS ASKED TO FURNISH SOURCE OF DEPOSITS. THE AO DID NOT FIND FAVOUR WITH THE EXPLANATION OF THE ASSESSEE AND THE CONTEN TION OF THE ASSESSEE WAS NOT ACCEPTABLE. ON EXAMINATION OF THE EXPLANATION SUBMITTED BY THE ASSESSEE, THE AO HELD THAT THE ASSESSEE HAS WITHDRAWN AN AMOUNT OF RS. 3.25 LAKHS BY CASH ON 12.3.2004, WHEREAS DURING THE ASSESSMENT YEAR 20 05-06, THE ASSESSEE HAS DEPOSITED CASH ON VARIOUS DATES, I .E. 20.04.04 TO 3.3.05. THE ASSESSEE WAS NOT ABLE TO CO RRELATE THAT AS TO HOW OUT OF WITHDRAWAL FROM THE BANK DURING TH E ASSESSMENT YEAR 2004-05 HAS BEEN SUBSEQUENTLY DEPOS ITED DURING THE ASSESSMENT YEAR 2005-06 ? THE AO ADDED T HE AMOUNT OF RS 3.25 LAKHS IN THE TOTAL INCOME OF THE ASSESSEE TREATING THE SAME AS UNDISCLOSED INCOME. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) CONFIRMED THE ADDITION AT RS. 3,07,000/- -: 4: - 4 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED FOUR AFFIDAVITS BEFORE THE CIT(A) TO PROVE THE NEXUS BE TWEEN WITHDRAWALS MADE IN IMMEDIATELY PRECEDING PREVIOUS YEAR USED FOR ADVANCING LOANS TO THE PARTIES AND DEPOSIT S IN THE BANK ACCOUNT IN THE YEAR UNDER CONSIDERATION OUT OF REPAYMENTS IN CASH MADE BY THE PARTIES. THE LD. COU NSEL FOR THE ASSESSEE ALSO FILED APPLICATION UNDER RULE 46A TO ADMIT THE AFFIDAVITS AS ADDITIONAL EVIDENCE, AS THE AFFIDAVIT S WERE NOT SUBMITTED BEFORE THE AO AS THE AO DID NOT ASK FOR F URTHER CLARIFICATION. THE LD. COUNSEL FOR THE ASSESSEE FUR THER CONTENDED THAT THE ASSESSEE HAS NOT BEEN CONFRONTED WITH THE SO-CALLED CROSS EXAMINATION OF THE RECEIVERS OF AMO UNTS STATED TO HAVE BEEN DONE BY LD. CIT(A) AT THE BACK OF THE ASSESSEE. IT WAS IMPERATIVE PARTICULARLY BECAUSE THESE PERSONS W ERE WITNESSESS OF THE DEPARTMENT. HENCE, THE SAME CANNO T BE USED AGAINST THE ASSESSEE WITHOUT CONFRONTATION AS PER SETTLED LAW. 6. THE LD. D.R. RELIED UPON THE ORDER OF THE LD. AO AN D CONTENDED THAT THE ADDITION HAS RIGHTLY BEEN MADE A ND CONFIRMED BY THE AO AND CIT(A). -: 5: - 5 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE WAS GIVEN ADEQUATE OPPORTUNITY TO EXPLAIN THE SOURCE OF DEPOSIT MADE I N HIS ACCOUNT DURING THE YEAR UNDER CONSIDERATION. THE OPPORTUNITIES WERE GIVEN AT THE TIME OF ASSESSMENT STAGE, WHICH WERE NOT AVAILED. THUS, THE GRIEVANCE OF THE ASSESSEE CAN NOT RIGHTLY MAPPED OR PLOTTED WITHIN THE TERRAI N OF PRINCIPLES OF NATURAL JUSTICE. HE CANNOT PLEA BACK THE ADEQUATE TIME IN DISCHARGING THE ONUS. OPPORTUNITIES WERE GI VEN BEFORE COMPLETION OF THE ASSESSMENT WERE NOT AVAILED AND A SSESSEE IS NOT ENTITLED TO ALLEGE THE CONTRAVENTION OF PRINCIP LES OF NATURAL JUSTICE AND IT HAS BEEN DECIDED IN P.N.BALA SUBRAMA NIAN & OTHERS VS. ITO, 112 ITR 512 (AP). HOWEVER, THE CIT( A) HAS FORWARDED FOUR ORIGINAL AFFIDAVITS TO AO ON 31 ST MARCH, 2009 FOR HIS VERIFICATION AND COMMENTS ON ADMISSIBILITY AND OTHERWISE THE SAME ALSO TO ANALYZE THE APPLICABILIT Y TO SECTION 269SS/269TT READ WITH SECTION 271D/270E OF THE ACT. THE AFFIDAVITS WERE MADE BEFORE THE CIT(A) AND LD. CIT( A) HAS VERIFIED THE AFFIDAVITS AND CROSS VERIFIED BY STATI NG AS UNDER :- -: 6: - 6 THE AFFIDAVITS ARE DATED AS 6 TH OF JANUARY, 2009, I.E. AFFIDAVITS WERE MADE AFTER MORE THAN ONE YEAR OF TH E ORDER OF ASSESSMENT. APART FROM THE AFFIDAVITS OF T HE PARTIES, THE APPELLANT FILED THE AFFIDAVIT OF HIS O WN IN THIS REGARD ON 6 TH JANUARY, 2009. THUS, THE ADDITIONAL EVIDENCE WERE CREATED AFTER THE COMPLETI ON OF THE ASSESSMENT U/S 143(3) OF THE ACT. SHRI MAHENDRA SHARMA OF HOUSE NO.51, SHIVA NAGAR, BUS STOP NO. 5 HAS GIVEN THE AFFIDAVIT THAT HE HAD TAKE N CASH LOAN OF RS. 1,25,000/- ON 12.03.2004 FROM THE APPELLANT AND RETURNED THE SAME IN CASH IN INSTALMENT OF RS. 20,000/-, RS. 20,000/-, RS. 40,000/- AND RS. 45,000/- ON 30-04-2004, 14-06- 2004, 15-06-2004 AND 16-08-2004. SHRI ASHOK SHARMA, HOUSE NO. 51, SHIVAJI NAGAR, BUS STOP NO.5, HAS GIVEN THE AFFIDAVIT THAT HE HAD TAKEN CASH LOAN OF RS. 1,00,000/- ON 12.03.2004 FROM THE APPELLANT AND RETURNED THE SAME IN CASH IN INSTALMENT OF RS. 45,000, RS. 30,000/- AND RS. 25,000/- ON 20-04- -: 7: - 7 2004, 10-07-2004 AND 05-08.2004. SHRI DULICHAND PRAJAPATI, HOUSE NO. 2, GOHDA NAKAS, BHOPAL, HAS GIVEN THE AFFIDAVIT THAT HE HAD TAKEN CASH LOAN OF RS. 1,00,000/- ON 15.03.2004 FROM THE APPELLANT AND RETURNED THE SAME IN CASH IN INSTALMENT OF RS. 50,000/-, RS. 30,000/- AND RS. 20,000/- ON 24.05.2004, 18.7.2004 AND 27.7.2004 RESPECTIVELY. AS PER THE REQUISITION MADE BY ME, HE LD. AUTHORIZED REPRESENTATIVE PRODUCED THE ABOVE PERSONS FOR MY CROSS VERIFICATION ON 13.08.2013. I EXAMINED THEM AND FOUND TO MY UTTER SURPRISE THAT THEY HAVE KEPT NO MATERIAL EVIDENCE ON RECORD ON TH E BASIS OF WHICH THEY HAVE MADE DECLARATION AS TO THE FACTS IN WRITING SWORN BEFORE NOTARY, BHOPAL, THE PERSON HAVING AUTHORITY TO ADMINISTER OATH. EVERY AFFIDAVIT SHOULD CLEARLY EXPRESS HOW MUCH IS THE STATEMENT OF DEPONENT'S KNOWLEDGE AND HOW MUCH IS A STATEMENT OF HIS BELIEF AND GROUND OF BELIEF MUST B E STATED WITH SUFFICIENT PARTICULARITY TO ENABLE THE COURT! ADMINISTERING AUTHORITY TO JUDGE WHETHER IT -: 8: - 8 WOULD BE SAFE TO ACT ON DEPONENT'S BELIEF. AFFIDAVI T WITHOUT GIVING SOURCE OF KNOWLEDGE OR INFORMATION, VERIFICATION MAKES THE AFFIDAVIT MEANINGLESS AND VALUE LESS. THE ABOVE INGREDIENTS ARE MISSING AND THE AFFIDAVITS ARE NOT ONE A REQUIRED BY LAW AS HAS BEEN DECIDED BY THE HON'BLE APEX COURT IN THE CASE OF SUCKWINDEER PAL BIPEN KUMAR VS. STATE OF PUNJAB AIR 1982 SEW 65. THE SOURCE OF INCOME, EVIDENCE OF LOAN TAKEN FROM THE APPELLANT IN EACH CASE IS NOT SUBJECT TO VERIFICATION. SIMILARLY, THE RE IS NO AN IOTA OF EVIDENCE TO SUBSTANTIATE THE DATE AND SOURCE OF REPAYMENT. NONE OF THE ABOVE PERSONS COULD EVEN TELL THE DATE OF REPAYMENT EVEN FROM TH EIR MEMORY. THUS, THE STATEMENT OF FACT IN THE AFFIDAVI T HAVE NO PROBATIVE VALUE AND THE WORD THAT 'THE CONTENTS OF THE AFFIDAVIT ARE TRUE AND CORRECT TO B EST OF MY KNOWLEDGE AND BELIEF' CARRY NO SANCTITY AND IN THE CIRCUMSTANCE OF THE CASE, THE RATIO OF THE DECI SION IN STATE OF BOMBAY VS. PURUSHOTTAM JOG AIR 1952 SE 317 IS SQUARELY APPLICABLE. -: 9: - 9 THE APPELLANT COULD HAVE PRODUCED THE AFFIDAVIT AT THE INITIAL STAGE. LIE DID NOT PRODUCE THE SAME AT THE TIME HE WAS GIVEN THE OPPORTUNITY TO EXPLAIN THE SOURCE WITHOUT ANY RECORDED REASON FOR SUCH FAILURE . THE ALLEGED AFFIDAVITS ARE VITAL TO SAVE THE APPELL ANT, BUT FOR THE REASONS MENTIONED ABOVE, THESE DO NOT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW THEIR ADMISSION AT THIS STAGE. THE ENTIRE STORY OF AFFIDAVIT HAS BEEN COOKED UP AT THIS STAGE TO DODGE THE REVENUE. IN TH E BACKDROP OF THE ABOVE FACTUAL MATRIX, I FIND THAT THE APPELLANT HA GROSSLY RAJ LED TO ESTABLISH AND DEMONSTRATE WITH EVIDENCE THE SOURCE OR DEPOSITS IN HIS BANK ACCOUNT IN THE YEAR UNDER CONSIDERATION AND ACCORDINGLY, ADDITION MADE ON THIS COUNT IS CONFIRMED. HOWEVER, SINCE THE DEPOSITS ARE OF RS. 3,07,000/- BUT NOT RS. 3,25,000/-, THE ADDITION IS CONFIRMED AT RS. 3,07,000/-. -: 10: - 10 8. WE FIND THAT THE LD. CIT(A) HAS VERIFIED THE DOCUME NTS/ AFFIDAVITS AND HE WAS OF THE VIEW THAT THE ASSESSEE COULD NOT PROVE THE SOURCE. THEREFORE, WE ARE OF THE VIEW THA T THESE AFFIDAVITS DO NOT HELP THE ASSESSEE. THEREFORE, WE DISMISS THE APPEAL OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED AT THE TIME OF HEARI NG IN THE OPEN COURT ON 12 TH AUGUST, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 12 TH AUGUST, 2015. CPU* 169