Nitesh Doshi, Indore V. JCIT Range-2, Indore

ITA 743/Ind/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0870 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S AMBEDKAR
• Assessee Lawyers: AMIT CHOUDHARY ARS
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO. 743/IND/2017 ASSESSMENT YEAR: 2010-11 SHRI NITESH DOSHI, 64, BADA SARAFA INDORE PAN ABJPD2801Q :: APPELLANT VS JCITO, RANGE-2, INDORE :: RESPONDENT APPELLANT BY SHRI MAHESH AGRAWAL & SHRI AMIT CHOUDHARY, ARS REVENUE BY SHRI R.S. AMBEDKAR , SR. DR DATE OF HEARING 14.11 .2018 DATE OF PRONOUNCEMENT 16 .1 1 .2018 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-III, INDORE DA TED 21.08.2018 PERTAINING TO A.Y. 2010-11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER (APPEALS) ERRED IN LAW AS WELL AS ON F ACTS BY CONFIRMING THE ADDITION OF RS.1,16,600/- MADE U/S 6 8. SMC NITESH DOSHI ITA NO.743 OF 2017 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER (APPEALS) ERRED IN LAW BY SUSTAINING A DDITION REFERRING SECTION U/S 69 OR 69-B INSTEAD OF ORIGINA L SECTION U/S 68 IN WHICH ADDITION WAS MADE BY THE LD. AO. 2. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING THE ADDITION OF RS.1,16,600/- MADE U/S 68 OF THE ACT. 3. THE FACTS GIVING RISE TO PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT 1961(HE REINAFTER CALLED AS THE ACT) WAS FRAMED VIDE ORDER DATED 25 .03.2013 WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER NOTIC ES THAT THE ASSESSEE IS IN BANK ACCOUNT NO.18297 WITH BANK OF I NDIA, MALHARGANJ BRANCH, INDORE DEPOSITED SUM OF RS.1,74, 713/- ON THE BASIS THAT DURING THE ASSESSMENT YEAR 2009-10 A LSO SUCH ADDITION WAS MADE. 4. AGAINST THIS THE ASSESSEE PREFERRED AN APPEAL BE FORE THE LD. CIT(A) WHICH CAME TO BE SUSTAINED BY THE LD. CIT(A) . THE LD. CIT(A) HAS SUSTAINED THE ADDITION BY OBSERVING AS U NDER: 5. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND TH E APPELLANTS CONTENTIONS. AFTER GOING THROUGH SUMMAR Y OF THE TOTAL DEPOSITS, IT IS SEEN THAT OUT OF THE TOTAL DE POSITS, THE APPELLANT HAS FAILED TO EXPLAIN THE CASH DEPOSIT OF RS.1,16,600/- MADE DURING THE YEAR. THOUGH THE ASSE SSING OFFICER HAS SIMPLY RELIED UPON THE DETAILED REASONI NG GIVEN IN THE ASSESSMENT ORDER PASSED IN THE APPELLANTS CASE FOR A.Y. SMC NITESH DOSHI ITA NO.743 OF 2017 3 2009-10, BUT THE FACT OF THE MATTER IS THAT THE AP PELLANT HAS FAILED TO DISCHARGE THE ONUS OF EXPLAINING THE CASH DEPOSITS OF RS.1,16,600/-. 5.1 THE APPELLANT HAS ADVANCES THE ARGUMENT THAT AS IT IS NOT MAINTAINING ANY BOOKS OF ACCOUNT, THE DEPOSITS FOUN D IN THE BANK STATEMENT SECTION 68 IS NOT APPLICABLE. RELIAN CE HAS BEEN PLACED ON SEVERAL JUDGMENTS. THIS ARGUMENT IS HOWEVER, NOT ACCEPTABLE. THOUGH SECTION 68 OF THE ACT MAY NO T BE STRICTLY APPLICABLE SINCE THE ASSESSEE WAS NOT MAIN TAINING ANY BOOKS OF ACCOUNTS AND THE BANK STATEMENT CANNOT BE CONSIDERED AS THE ASSESSEES BOOKS OF ACCOUNT ON TH E BASIS OF THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF A. GOVENDRAJULU MUDGMENT 34 ITR 807, IT IS THE ONUS OF THE ASSESSEE TO EXPLAIN THE CASH RECEIVED BY HIM AND IF THERE IS NO EXPLANATION OR ACCEPTABLE EVIDENCE TO PROVE THE NATURE AND SOURCE OF THE RECEIPT, THE AMOUNT MAY BE ADDED AS THE ASSESSEES INCOME ON GENERAL PRINCIPLES AND IT IS N OT NECESSARY TO INVOKE SECTION 68, NOR IS IT NECESSARY FOR THE INCOME TAX AUTHORITIES TO POINT OUT THE SOURCE OF T HE MONIES RECEIVED. EVEN IF SECTION 68 IS NOT APPLICABLE, THE CASH DEPOSIT IN THE BANK CAN BE ASKED TO BE EXPLAINED BY THE ASS ESSEE UNDER SECTION 69 OR SECTION 69B OF THE ACT. IN THIS REGARD RELIANCE IS PLACED ON THE DECISION OF HON'BLE I.T.A .T., DELHI IN THE CASE OF SHRI MANOJ AGRAWAL VS. DCIT 113 ITD 377 (SB). 5. IT WAS STATED DURING THE COURSE OF HEARING THAT THE DEPOSITS RELATE TO PERSONAL ACCOUNT OF THE ASSESSEE AND OUT OF SAVINGS DULY RECORDED IN THE CASH BOOK. LD. COUNSEL FOR THE ASSE SSEE HAS DRAWN MY ATTENTION TO PAPER BOOK PAGE 43. 6. LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSES THE SUBMISSION AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE HEARD RIVAL CONTENTION AND PERUSED THE MATER IAL ON RECORD. WE FIND THAT THE ASSESSING OFFICER AS WELL AS LD. CIT(A) SMC NITESH DOSHI ITA NO.743 OF 2017 4 HAVE SUSTAINED THE ADDITION ON THE BASIS OF THE FIN DING OF THE EARLIER YEAR. IN PRESENT YEAR THE ASSESSEE HAS POIN TED OUT THE TRANSACTIONS ARE DULY RECORDED IN THE CASH BOOK WIT H NARRATION. THERE IS NO ADVERSE MATERIAL PLACED ON RECORD ON BE HALF OF REVENUE SUGGESTING THAT ENTRIES MADE IN THE CASH BO OK ARE NOT CORRECT. THEREFORE, I AM OF THE VIEW THAT ADDITION WAS NOT CALLED FOR. THE ASSESSING OFFICER IS HEREBY DIRECTED TO DE LETE THE ADDITION. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 16.11.20 18. SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 16.11.2018 PATEL COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE ASSISTANT REGISTRAR, INDORE