Sri Madineni Mohan, Hyderabad V. ITO, Ward-1, Suryapet

ITA 762/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2907 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Retrospective amendment
• Section: 201(1); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRIB. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.762/HYD/2012 ASSESSMENT YEAR 2005-06 SRI MADINENI MOHAN,, HYDERABAD PAN:AKAPM9061H VS INCOME-TAX OFFICER, WARD-1, SURYAPET. {APPELLANT) (RESPONDENT) APPELLANT BY : SRI C.P. RAMASW AMY RESPONDENT BY SMT. AMISHA S. GUPT DATE OF HEARING : 24-5-2013 DATE OF PRONOUNCEMENT : 31- 5-2013 ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER. T HIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER PASSED BY THE CIT (A) VI, HYDERABAD DATED 19- 3-2012 PASSED IN ITA NO.0069/2009-10/CIT (A) -VI AND IT PE RTAINS TO THE ASSESSMENT YEAR 2005-06. 2. THE ONLY ISSUE INVOLVED IN THE PRESENT APPEAL IS THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT OF AN AM OUNT OF RS.1,37,56,960/-. 3. BRIEFLY THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE, THE ASSESSEE IS A TRANSPORT CONTRACTOR. FOR THE IMPU GNED ASSESSMENT YEAR, THE ASSESSEE FILED HIS RETURN OF I NCOME ON 30- 10-2005 DECLARING A TOTAL INCOME OF RS.1,26,959/-. DURING THE ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 2 SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER NOTED THAT THE ASSESSEE HAD OBTAINED TRANSPORT CONTRACT O F THE ANDHRA PRADESH STATE CIVIL SUPPLIES CORPORATION LTD.,(APS CSC) NALGONDA TO TRANSPORT RICE FROM THE DISTRICT HEAD QUARTERS TO THE GODOWNS LOCATED AT MANDAL LEVEL. SUBSEQUENTLY, THE ASSESSEE HAD ENTERED INTO A SUB-CONTRACT WITH M/S SAYANA WAREHOUSING PVT. LTD., CHENNAI FOR EXECUTING THE TR ANSPORT CONTRACT FOR A PROFIT AT THE RATE OF 1% ON THE GRO SS RECEIPTS. THE ASSESSING OFFICER FURTHER NOTED THAT DURING THE YEAR UNDER DISPUTE THE ASSESSEE HAD RECEIVED GROSS RECEIPTS OF RS.1,38,95,919 FROM APSCSC LTD., NALGONDA AND HAD R EMITTED RS.1,37,56,960/- TO M/S SAYANA WAREHOUSING PVT. LT D., CHENNAI. THE ASSESSING OFFICER FURTHER NOTED THAT THOUGH THE ASSESSEE HAD DEDUCTED THE TAX AT SOURCE ON THE REMI TTANCE MADE TO M/S SAYANA WAREHOUSING PVT. LTD., CHENNAI, BUT THE TDS AMOUNT WAS PAID TO GOVERNMENT A/C ONLY ON 29-9- 2005. THE ASSESSING OFFICER ASKED THE ASSESSEE TO SHOW CA USE AS TO WHY THE ENTIRE EXPENDITURE OF RS.1,37,56,960/- SHAL L NOT BE DISALLOWED U/S 40(A)(IA) AS THE ASSESSEE HAD NOT DE POSITED THE TDS BEFORE THE EXPIRY OF TIME PRESCRIBED UNDER SUB- SECTION (1) OF SECTION 200 OF THE ACT. THOUGH THE ASSESSEE SU BMITTED ITS REPLY, THE ASSESSING OFFICER REJECTED THE SAME AND COMPLETED THE ASSESSMENT BY DISALLOWING THE EXPENDITURE CLAIM ED OF RS.1,37,56,960/- BY ADDING IT TO THE RETURNED INCOM E OF THE ASSESSEE. THE ASSESSEE BEING AGGRIEVED OF THE ASSE SSMENT ORDER PREFERRED AN APPEAL BEFORE THE CIT (A). 4. BEFORE THE CIT (A), IT WAS CONTENDED BY THE ASSE SSEE BY RAISING AN ADDITIONAL GROUND THAT IN VIEW OF THE AM ENDMENT MADE TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2010, TDS AMOUNT IF DEPOSITED ON OR BEFORE THE DUE DATE FOR FILING THE ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 3 RETURN AS PROVIDED U/S 139(1) OF THE ACT, THE SAME CANNOT BE DISALLOWED U/S 40(A)(IA) OF THE ACT. IT WAS CONTEN DED BY THE ASSESSEE THAT THE AMENDMENT MADE TO SECTION 40(A)(I A) BY FINANCE ACT, 2010 BEING REMEDIAL AND CURATIVE IN N ATURE AND THEREFORE THE SAME IS APPLICABLE WITH RETROSPECTI VE EFFECT FROM THE ASSESSMENT YEAR 2005-06. THE CIT (A) HOWEVER REJECTED THE CONTENTIONS MADE BY THE ASSESSEE AND SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVIN G IN THE FOLLOWING MANNER:- 5. I HAVE CONSIDERED CAREFULLY THE FACTS AND EVIDEN CE. FIRSTLY, THE ADDITIONAL GROUND BEING A LEGAL GROUND IS HEREBY ORDERED TO BE ADMITTED. SINCE THERE IS ONLY ONE ISSUE, ALL T HE GROUNDS ARE BEING ADJUDICATED TOGET HER. THERE IS NO DISPUTE ABOUT THE FACT THAT FOR THE CUR RENT ASSET. YEAR I.E. 2005-06, SEC. 40(A)(IA) POSTULATED THAT TDS HAD TO BE DEDUCTED AND PAID AS PER THE TIME PRESCRIBED U/S 200(1). SINCE THE APPELLANT HAD CLE ARLY DEDUCTED THE TAX AND MADE THE PAYMENT BEYOND THE PRESCRIBED TIME, I DO NOT SEE ANY REASON WHEREBY TH E DELAY CAN BE CONDONED OR A DIFFERENT DECISION CAN B E TAKEN. SECONDLY, IT IS CLEARLY A CONTRACT FROM THE STATE CIVIL SUPPLIES DEPARTMENT TO THE APPELLANT FOR THE TRANSPORTATION OF RICE. THERE IS NO FACT WHICH SUP PORTS THE CLAIM OF THE APPELLANT THAT THIS IS CONTRACT OF SALE. THIRDLY, THE RETROSPECTIVE AMENDMENT TO SEC. 40(A) (IA) IS EFFECTIVE FROM 1-4-2010. THE ARGUMENT OF THE APPELLANT THAT THE RETROSPECTIVE AMENDMENT WOULD AP PLY FROM ASST. YEAR 2005-06 IS ABSOLUTELY AGAINST THE V ERY SIMPLE READING OF THE LAW. IF SUCH AN INTERPRETATI ON WERE TO BE TAKEN, THEN IT WOULD OBVIOUSLY DEFEAT THE VER Y LETTER AND READING OF THE AMENDMENT AND WOULD ALSO DEFEAT THE MENTION OF THE DATE 1-4-2010 IN THE AMENDMENT. ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 4 ACCORDINGLY, THE ADDITION MADE IN THIS REGARD IS OR DERED TO BE CONFIRMED. 5. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE AS SESSEE REITERATING THE STAND TAKEN BEFORE THE CIT (A) SUBM ITTED BEFORE US THAT THE TDS AMOUNT HAVING BEEN PAID BEFORE THE DUE DATE OF FILING THE RETURN, NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT CAN BE MADE IN VIEW OF THE AMENDMENT MADE TO SECTION 40(A) (IA) BY FINANCE ACT, 2010. IN SUPPORT OF SUCH CONTENTION, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE RELIED U PON THE FOLLOWING DECISIONS:- I) GOLDEN STABLES LIFESTYLE CENTRE (P) LTD. VS. CIT 9I TA NO.5145/HYD/2009) II) ITO VS. TARU LEADING EDGE (P) LTD. (ITA NO.3592/HYD/2011) 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D BEFORE US THAT THE ASSESSEE THOUGH DEDUCTED THE TA X ON 31-3- 2005 BUT HAS RETAINED THE MONEY WITH HIM WITHOUT DE POSITING IT INTO THE GOVERNMENT ACCOUNT WITHIN THE PRESCRIBED PERIOD. IT WAS SUBMITTED THAT THE ASSESSEE HAD PAID THE AMOUN T TO THE GOVERNMENT ACCOUNT MUCH AFTER ONLY ON 29-9-2005 WHI CH SHOWS THAT THE ASSESSEE IS CLEARLY AN ASSESSEE IN DEFAULT AS PER SECTION 201(1) OF THE IT ACT. SHE CONTENDED THAT IN SUCH V IEW OF THE MATTER, DISALLOWANCE MADE WAS JUSTIFIED. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THERE IS NO DISPUTE TO THE FACT THAT TH E ASSESSEE HAS DEPOSITED THE TDS AMOUNT ON 29-9-2005 AS THE ASSESS ING OFFICER HIMSELF HAS MENTIONED THIS FACT IN THE ASSE SSMENT ORDER. ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 5 AN AMENDMENT WAS MADE TO SECTION 40(A)(IA) BY FINAN CE ACT, 2010 WHICH READS AS UNDER AFTER THE AFORESAID AMEND MENT SEC. 40(A)(IA) READS AS UNDER:- ANY INTEREST, COMMISSION OR BROKERAGE, (RENT, ROYAL TY) FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICA L SERVICES PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR C ARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYI NG OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UND ER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED O R, AFTER DEDUCTION, HAS NOT BEEN DEDUCTED OR AFTER DEDUCTING TAX HAS NOT BEEN PAID ON OR BEFORE DUE DA TE SPECIFIED IN SEC. 139(1). THE HONBLE CALCUTTA HIGH COURT IN CASE OF CIT VS. VIRGIN CREATIONS IN JUDGMENT DATED 23-11-2011 IN ITA NO.3 02 OF 2011 GA 3200/2011 HELD THAT AMENDMENT TO THE PROVISIONS OF SEC. 40(A)(IA) OF THE ACT, BY THE FINANCE ACT, 2010 WOU LD BE APPLICABLE RETROSPECTIVELY FROM 1-4-2005. FOLLOWIN G THE AFORESAID DECISION OF HONBLE CALCUTTA HIGH COURT, DIFFERENT BENCHES OF THE TRIBUNAL HAVE ALSO HELD THAT THE AME NDMENT BROUGHT TO SECTION 40(A)(IA) BY FINANCE ACT, 2010 W OULD APPLY RETROSPECTIVELY FROM 1-4-2005 AND IF AN ASSESSEE HA S DEPOSITED THE TDS AMOUNT BEFORE DUE DATE OF FILING OF RETURN U/S 139(1), NO DISALLOWANCE CAN BE MADE U/S 40(A)(IA) OF THE AC T. THE ORDERS OF THE TRIBUNAL RELIED UPON BY THE LEARNED A UTHORISED REPRESENTATIVE FOR THE ASSESSEE ALSO ARE IN THE SIM ILAR LINE. IN THE FACTS OF THE PRESENT CASE, THERE IS NO DISPUTE THAT THE ASSESSEE HAS DEPOSITED TDS AMOUNT BEFORE THE DUE DA TE OF FILING THE RETURN U/S 139(1) OF THE ACT. HENCE, IN VIEW O F THE RATIO LAID DOWN BY THE CALCUTTA HIGH COURT IN CASE OF CIT VS. VIRGIN CREATIONS (SUPRA) AND DECISIONS OF DIFFERENT BENCH ES OF INCOME- ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 6 TAX APPELLATE TRIBUNAL, WE HOLD THAT THE ASSESSEE HAVING DEPOSITED TDS AMOUNT BEFORE THE DUE DATE OF FILING THE RETURN U/S 139(1) NO DISALLOWANCE CAN BE MADE BY INVOKING THE PROVISIONS CONTAINED U/S 40(A)(IA) OF THE ACT. ACC ORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 1,37,56,960/-. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31 -05-20 13. SD/- (B. RAMAKOTAIAH ) SD/- (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 31 ST MAY, 2013. COPY FORWARDED TO: 1. C/O DR. CP RAMASWAMI, ADVOCATE, FLAT NOS. 102 & 30 3, GITANJALI APARTMENTS, PLOT NO.108, SRINIGAR COLONY, HYDERABAD. 2. INCOME-TAX OFFICER, WARD-1, SURYAPET. 3. CIT (A)-VI, HYDERABAD. 4. CIT CONCERNED, HYDERABAD. 5. THE DR, ITAT, HYDERABAD JMR* ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 7 ITA NO.1749/HYD/2012 X. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINS T THE ORDER DATED 26-9-2012 OF CIT (A)-VI, HYDERABAD PASSED IN APPEAL NO.0642/2011-12 PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. THE DEPARTMENT HAS RAISED THE FOLLOWING EFFECTIV E GROUND BEFORE US:- THE LD CIT (A) OUGHT NOT TO HAVE ALLOWED RELIEF TO THE ASSESSEE THOUGH THE ASSESSEE HAS NOT SUBSTANTIATED THE SOURCES FOR THE CREDITS/DEPOSITS MADE INTO THE BANK ACCOUNT WITH CORROBORATIVE DOCUMENTARY EVIDENCE. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVI DUAL FILED ITS RETURN OF INCOME ON 25-11-2009 FOR THE ASSESSMENT YEAR UNDER DISPUTE DECLARING A TOTAL INC OME OF RS.2,61,250/- AND AGRICULTURAL INCOME OF RS.72,6 30/-. ASSESSEES CASE WAS SELECTED FOR SCRUTINY ASSESSMEN T. IN COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSE SSING OFFICER ON EXAMINING THE ASSESSEES BANK ACCOUNT WI TH ICICI BANK LTD., SECUNDERABAD BRANCH NOTICED CASH DEPOSITS AS WELL AS OTHER DEPOSITS MADE INTO THE BA NK ACCOUNT. WHEN THE ASSESSING OFFICER ASKED THE ASSE SSEE TO FURNISH THE TRANSACTION-WISE DETAILS OF THE DEPO SITS, THE ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 8 ASSESSEE SUBMITTED THAT OUT OF THE TOTAL CASH DEPO SIT OF RS.21,34,500/- IN HIS BANK ACCOUNT, HE HAD TAKEN L OAN OF RS.10 LAKHS FROM SRI P. NAGESWARA RAO FOR HIS PERSO NAL PURPOSE TO HELP HIS AUNT FOR HER SURGERY. DUE TO UNAVOIDABLE CIRCUMSTANCES, THE SURGERY WAS POSTPONE D AND THE SAME WAS DEPOSITED IN THE BANK IN THE FORM OF CASH. THE ASSESSEE AGAIN IN THE MONTH OF MAY, 2008 WITHDREW AN AMOUNT OF RS.4,91,500/- FOR HIS PERSON AL PURPOSE AND AGAIN RE-DEPOSITED IN THE BANK IN THE F ORM OF CASH IN AUGUST, 2008. THE ASSESSEE FURTHER EXPLAIN ED THAT HE WAS OWNING SOME LAND AT GANDAMGUDA AND WILLING TO START SOME CONSTRUCTION ACTIVITY AND TOO K A LOAN OF RS.5 LAKHS, FROM MR. RAJEEV AURANGABADKAR IN DECEMBER, 2008. HE WITHDREW RS.4 LATHS FROM HIS ACCOUNT FOR THIS PURPOSE AND THE CONSTRUCTION ACTIV ITY COULD NOT COMMENCE AND HE RE-DEPOSITED THE SAME IN MARCH, 2008. THE ASSESSING OFFICER HAS ACCEPTED TH E ASSESSEES EXPLANATION TO THE EXTENT OF DEPOSIT OF RS.9.9 LAKHS. HOWEVER, SO FAR AS BALANCE OF RS.11,44,500/ - IS CONCERNED, THE ASSESSING OFFICER REJECTED THE CONTE NTION OF THE ASSESSEE AND TREATING IT AS UNEXPLAINED INCO ME, ADDED THE SAME U/S 69 OF THE ACT. BEING AGGRIEVED OF THE ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSE E PREFERRED AN APPEAL BEFORE THE CIT (A). 4. THE CIT (A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EXAMINING THE MATERIALS ON RECORD DELE TED THE ADDITION BY OBSERVING AS UNDER:- 4.1. THESE DEPOSITS CAN BE CATEGORISED AND EXAMINED IN THREE GROUPS ON THE BASIS OF THE EXPLANATION OF THE ASSESSEE. THE FIRST GROUP OF DEPOSITS ARE AS FOLLOWS: ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 9 DATE AMOUNT (RS. ) 30-4-2008 20,000 25-8-2008 3,00,000 26-8-2008 50,000 08-09-2008 1,50,000 24-09-2008 12,500 11-12-2008 1,00,000 23-12-2008 12,000 29-01-2009 1,00,000 18-03-2009 4,00,000 THE ASSESSEE HAS SUBMITTED THAT THESE AMOUNTS HAD BEEN DEPOSITED OUT OF THE CASH WITHDRAWAL OF RS.4,90,000 ON 27-5-2008 WHICH HAD BEEN WITHDRAWN FOR HTE MEDICAL TREATMENT OF THE ASSESSES AUNT)./ THE ASSESSING OFFICER HAS NOT ACCEPTED THI S EXPLANATION STATING THAT THE SUM OF RS.4,90,000 HAD BEEN USED FOR REPAYMENT OF LOAN TO SRI P. NAGESWARA RAO. IT IS SEEN FROM THE ENTRIES IN THE BANK ACCOU NT AND THE ASSESSEE S EXPLANATION THAT THE REPAYMENT HAS TAKEN PLACE SUBSEQUENTLY, I.E., ON 27-8-2008 AND ON 11-9-2008. BEFORE THIS, THE ASSESSEE HAD MADE A SELF WITHDRAWAL; OF RS.4,91,500 ON 31-5- 2008. HOWEVER, AS PER THE ASSESSEE, THIS AMOUNT WAS EVENTUALLY NOT UTILISED AND WAS RE-DEPOSITED ON THE DATES MENTIONED ABOVE. THE ASSESSING OFFICER HAS IGNORED THIS WITHDRAWAL OF RS.4,91,500 IN HIS ORDER WITHOUT GIVING ANY JUSTIFICATION. I FIND THA T THE ASSESSEES EXPLANATION IS REASONABLE AND DESERVES ACCEPTANCE. 4.2. THE SECOND GROUP OF DEPOSITS CONSISTS OF THE FOLLOWING:- DATE AMOUNT 29-1-2009 RS.1,00,000 18-3-2009 RS.4,00,000 THE ASSESSEE SUBMITTED THAT HE HAD BORROWED A SUM OF RS.6 LAKHS FROM SRI RAJEEV AURANGABADKAR FOR THE PURPOSE OF DEVELOPMENT OF LAND AT GANDHAMGUDA VILLAGE. THE BORROWALS ARE NOT DISPUTED BY THE ASSESSING OFFICER. THE ASSESSEE FURTHER SUBMITTED THAT HE HAD PAID ADVANCES TO SRI M.V. BHADRA RAO ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 10 (CONTRACTOR FOR ELECTRICAL WORKS) AND SRI G. SHANKE R (CONTRACATOR FOR CIVIL WORKS). SINCE THE PROJECT DID NOT MATERIALISE, THE ASSESSEE RECOVERED THE ADVANCES FROM THE TWO PERSONS AND THE DEPOSITS WERE MADE OUT OF THESE AMOUNTS. THE FACT THAT PAYMENTS WERE MADE TO THESE TWO PERSONS IS BORNE OUT FO THE BANK DETAILS EXTRACTED IN THE ASSESSMENT ORDER. THE SUBSEQUENT DEPOSITS ALSO TALLY EXACTLY WITH THE SUBSEQUENT DISPUTED DEPOSITS. THE ASSESSEE S EXPLANATION, THEREFORE, IS LOGICAL AND REASONABLE. THE ASSESSING OFFICER HAS NOT CONSIDERED THIS EXPLANATION OF THE ASSESSEE AND PRESUMED THAT THESE DEPOSITS HAD BEEN MADE OUT OF HIS INCOME. 4.3. THE THIRD SET OF DEPOSITS ARE AS FOLLOWS: - DATE AMOUNT (RS.) 30-4-2008 20,000 24-9-2008 12,500 11-12-2008 1,00,000 23-12-2008 12,000 THE ASSESSEE SUBMITTED THAT THE DEPOSITS HAD BEEN MADE OUT OF HIS INCOME FOR THE CURRENT YEAR AND THE SAVINGS FROM THE EARLIER YEARS. THE ASSESSING OFFICER DID NOT ACCEPT THIS EXPLANATION SINCE THE ASSESSEE HAD NOT FURNISHED ANY INVOICES/VOUCHERS FOR THE CONSULTATION FEES, RENTAL INCOM E AND AGRICULTURAL INCOME SO AS TO ESTABLISH THE NEXUS BETWEEN THE DEPOSITS AND THE INCOME. THE FACT REMAINS THAT THE ASSESSEE HAD RETURNED AN INCOME OF RS.2,61,250/- AND AGRICULTURAL INCOME OF RS.72,630/- WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN HIS ORDER. THESE AMOUNTS, WHICH REFLECT THE NET INCOME OF THE ASSESSEE, WOULD THEMSELVES BE SUFFICIENT TO EXPLAIN THE DEPOSITS OF RS.1,44,500/-. IT WOULD ALSO BE SAFE AND LOGICAL T O PRESUME THAT THE DEPOSITS WERE MADE OUT OF THE GROSS RECEIPTS OF THE ASSESSEE WHICH NATURALLY WOUL D BE MORE THAN THE RETURNED (AND NET) INCOME. THE EXPLANATION OF THE ASSESSEE IS, THEREFORE, ACCEPTED AS REASONABLE. ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 11 5. WE HAVE HEARD SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL ON RECORD. OUT OF THE TOTAL C ASH DEPOSIT OF RS.21,34,500/- IN THE BANK ACCOUNT, THE ASSESSING OFFICER HAD ACCEPTED ASSESSEES EXPLANAT ION FOR THE CASH DEPOSIT OF RS.9.9 LAKHS. SO FAR AS TH E BALANCE AMOUNT OF RS.11,44,500/- TREATED BY THE ASSESSING OFFICER AS UNEXPLAINED DEPOSIT AS WOULD BE EVIDENT FROM THE ORDER OF THE CIT (A) QUOTED HEREINBEFORE. THE ASSESSEE HAS SUFFICIENTLY DISCHARGED THE ONUS OF PR OVING THE SAID DEPOSITS IN TO THE BANK ACCOUNT. THE PATT ERN OF DEPOSITS AND WITHDRAWALS MADE IN THE BANK ACCOUNT WHICH ARE REPRODUCED BY THE ASSESSING OFFICER IN PA GE-2 OF ASSESSMENT ORDER DOES NOT ESTABLISH THE FACT THA T THE DEPOSITS MADE OF A TOTAL AMOUNT OF RS.5 LAKH ON 25 -8- 2008, 26-8-2008 AND ON 8-9-2008 ARE OUT OF THE WITHDRAWALS OF RS.4,91,000/- MADE ON 27-5-2008. SIMILARLY, THE ASSESSEES EXPLANATION WITH REGARD T O THE DEPOSITS OF RS.1 LAKH AND RS.4 LAKH RESPECTIVELY ON 29-1- 2009 AND ON 18-3-2009 ARE ACCEPTABLE IN VIEW OF THE FACT THE ASSESSING OFFICER HAS NOT DISPUTED THE FACT OF BORROWALS OF RS.5 LAKHS MADE FROM MR. RAJEEV AURANGABADKAR ON 12-12-2008. SIMILARLY, ASSESSEE S EXPLANATION WITH REGARD TO TOTAL DEPOSITS OF RS.1,4 4,500/- ON DIFFERENT DATES AS MENTIONED IN PARA 4.3 OF THE CIT (A)S ORDER ALSO CANNOT BE REJECTED CONSIDERING THE NEXUS BETWEEN THE DEPOSITS AND THE INCOME AND ALSO THE FA CT THAT THE ASSESSEE HAD SHOWN INCOME OF RS.2,61,250/- AND AGRICULTURAL INCOME OF RS.72,630/- WHICH HAS NOT BE EN DISPUTED BY THE ASSESSING OFFICER. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTANCES OF THE CASE, WE DO N OT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A) IN DELETI NG THE ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 12 ADDITIONS MADE BY THE ASSESSING OFFICER AS THE ASSE SSEE HAS SATISFACTORILY EXPLAINED THE SOURCE OF SUCH DEP OSITS. IN AFORESAID VIEW OF THE MATTER, WE CONFIRM THE ORD ER OF THE CIT (A) AND DISMISS THE GROUNDS RAISED BY THE DEPARTMENT. 6. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T STANDS DISMISSED. ITA NO. 241 OF 2013 THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 1-11-2012 OF CIT (A)-VI, HYDERABAD PASSED IN APPEAL NO.0484/11-12/CIT(A)-VI PERTAINING TO THE ASSESSMENT YEAR 2009-10. X. THE SOLE GRIEVANCE OF THE REVENUE IN THE PRESENT APPEAL IS WITH REGARD TO THE DIRECTION OF THE CIT (A) TO THE ASSESSING OFFICER TO DETERMINE THE NET PROFIT AT THE RATE OF 5% OF THE PURCHASES AND STOCK PUT FOR SALE DURING THE YEAR. X. AT THE TIME OF HEARING, DESPITE SERVICE OF NOTIC E, NONE APPEARED ON BEHALF OF THE ASSESSEE-RESPONDENT AND NOT EVEN A PETITION FOR ADJOURNMENT WAS RECEIVED FR OM THE ASSESSEE. HENCE, WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PROCEEDED TO DISPOS E OF THE APPEAL EX PARTE ON MERITS. ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 13 X. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD I N THE LIGHT OF THE IMPUGNED ORDER OF THE CIT (A). WE FIN D THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS SQUAREL Y COVERED BY THE CONSISTENT VIEW TAKEN BY THE CO-ORDI NATE BENCH OF THIS TRIBUNAL IN SIMILAR MATTERS WHEREIN T HE TRIBUNAL HAS HELD THAT INCOME OF THE ASSESSEE IN T HIS PARTICULAR LINE OF BUSINESS OF LIQUOR HAS TO BE EST IMATED AT 5% ON PURCHASE OF STOCK PUT FOR SALE. IN FACT, RE LYING UPON ONE OF SUCH ORDER PASSED BY THE TRIBUNAL IN TH E CASE OF M/S AMARAVATI WINE SHOP (ITA NO.1196/HYD/2011 DATED 8-6-2012), THE CIT (A) HAS DIRECTED THE ASSES SING OFFICER TO DETERMINE THE NET PROFIT AT THE RATE OF 5% OF STOCK PUT FOR SALE DURING THE YEAR. SINCE THE IMPU GNED ORDER OF THE CIT (A) IS IN CONSONANCE WITH THE CONS ISTENT VIEW TAKEN BY THE CO-ORDINATE BENCH OF THIS TRIBUNA L IN SIMILAR MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A). ACCORDINGLY, WE UPHOLD THE SAME BY REJECTING THE GROUNDS OF APPEAL RAISED BY THE DEPAR TMENT. X. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ITA NO.762 OF 2012 SRI MADINENI MOHAN, HYDERABAD. ================== 14