Amol Shyamsunder Bhutada, Pune V. ITO, Ward 3(2), Pune

ITA 765/PUN/2013

• Counselvise Citation: 76524514 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: K B JOSHI
• Keywords: Unexplained cash credit; Salary income; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV , JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO S. 765 & 766 /PN/20 1 3 ( ASSESSMENT YEAR S : 200 8 - 09 & 2009 - 10 ) AMOL SHYAMSUNDER BHUTADA, 1684, SADASHIV PETH, KHAZINA VIHIR CHOWK, PUNE PAN NO. AGPPB0855M .. APPELLANT VS. INCOME TAX OFFICER, WARD 3(2), PUNE .. RESPONDENT A SSESSEE BY : SHRI K.B. JOSHI RE VENUE BY : SHRI P. S. NAIK DATE OF HEARING : 0 8 - 10 - 2014 DATE OF PRONOUNCEMENT : 08 - 10 - 2014 ORDER PER R.K. PANDA, AM : TH E ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 23 - 11 - 2012 AND 27 - 11 - 2012 OF THE CIT(A) - II, PUNE RELATING TO ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE THESE WERE HEARD TOGETHER AND BEING DISPOSED OFF BY THIS COMMON ORDER. 2. ADDITION OF RS.19,61,600/ - DURING A.Y. 2008 - 09 AND RS.49,64,710/ - FOR THE A.Y. 2009 - 10 U/S. 68 MADE B Y THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) ARE THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUND S OF APPEAL: 2 ITA NO. 765/PN/2013 (A.Y. 2008 - 09) 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY , BUSINESS AND OTHER SOURCES. HE FILED HIS RETURN OF INCOME ON 31 - 07 - 2008 DECLARING TOTAL INCOME OF RS. 1,81,840/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER OBSERVED THAT AS PER THE A IR INFORMATION, THE ASSESSEE HAS DEPOSITED CASH OF RS.19,61,600/ - IN HIS SAVINGS BANK ACCOUNT MAINTAINED WITH COSMOS CO - OPERATIVE BANK, PUNE. THE ASSESSING OFFICER , THEREFORE, ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF SUCH DEPOSITS IN HIS SAVING BANK ACCOUNT. SINCE THE ASSESSEE DID NOT FURNISH THE REQUISITE DETAILS, THE ASSESSING OFFICER TREATED SUCH CASH DEPOSITED IN THE COSMOS CO - OPERATIVE BANK AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME - TAX ACT, 1961. HE, ACCORDINGLY, MADE ADDITION OF RS.19 , 61,600/ - U/S. 68 FOR THE A.Y. 2008 - 09. THE A SSESSING OFFICER SIMILARLY MADE ADDITION OF RS.49,46,710/ - FOR THE A.Y. 2009 - 10 (WRONGLY WRITTEN AS RS.49,64,710/ - IN THE GROUND OF APPEAL). 4. BEFORE THE CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE IS THE PROPRIETOR OF M/S. AMOL PUBLISHING HOUSE HAVING BU SINESS OF PRINTING AND PUBLICATION. IT WAS ARGUED THAT THE CASH DEPOSITED IN THE SAID BANK ACCOUNT REPRESENTS THE CASH WITHDRAWN EARLIER FROM THE SAID BANK ACCOUNT AND THEREFORE, THE DEPOSITS WERE MADE OUT OF THE WITHDRAWAL FROM THE SAID BANK ACCOUNT ONLY . VARIOUS DECISIONS WERE ALSO RELIED UPON TO THE PROPOSITION THAT ON C E DEPOSIT IN BANK ACCOUNT ARE MADE FROM CASH BALANCE AVAILABLE TO THE ASSESSEE IN ITS BOOKS OF ACCOUNT, ADDITION U/S. 68 CANNOT BE MADE IRRESPECTIVE OF THE TIME GAP BETWEEN 3 THE EARLIER W ITHDRAWALS FROM THE BANK AND SUCH DEPOSITS . T HE ASSESSEE ALSO PRODUCED THE CASH BOOK AND STATEMENT OF CASH WITHDRAWAL AND DEPOSITS FROM COSMOS CO - OPERATIVE BANK. 5. HOWEVER, THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHE LD THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 68 OF THE I.T. ACT. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US FILED THE FOLLOWING ADDITIONAL EVIDENCES: SR. NO. PARTICULARS PAGE NO . 1 COPY OF CONFIRMATION LETTER FROM UNITY 1 5 PRAKASHAN PVT. LTD. AND LEDGER ACCOUNT EXTRACT. 2 COPY OF CONFIRMATION LETTER FROM UNITY 6 8 INFRASTRUCTURE PVT. LTD. AND LEDGER ACCOUNT EXTRACT. 3 COPY OF CONFIRMATION LETTER FROM S.K. PRAKASHAN 9 11 AND LEDGER ACCOUNT EXTRACT. 4 COPY OF LEDGER ACCOUNT OF SAVING A/C. WITH 12 15 COSMOS BANK. 8. REFERRING TO THE AFFIDAVIT AS WELL AS THE APPLIC ATION FOR ADMISSION OF ADDITIONAL EVIDENCES EXPLAIN ING THE REASONS FOR NOT BEING ABLE TO PRODUCE THOSE ADDITIONAL EVIDENCES BEFORE THE LOWER AUTHORITIES , H E SUBMITTED THAT DUE TO HIS INTER - CASTE MARRIAGE THERE WAS FAMILY TROUBLE FOR WHICH HE WAS NOT GETTIN G ANY CO - OPERATION FROM THE FAMILY MEMBERS AND RELATIONS/FRIENDS. HE WAS THEREFORE PREVENTED 4 FROM GETTING THESE CONFIRMATIONS REGARDING THE AMOUNT RECEIVED BY HIM FROM UNITY PRAKASHAN PVT. LTD AND S.K. PRAKASHAN FROM WHOM HE HAS RECEIVED AMOUNTS WHICH WE RE DEPOSITED IN THE SAVING BANK ACCOUNT. HE SUBMITTED THAT SINCE THESE EVIDENCES GO TO THE RO OT OF THE MATTER FOR DECIDING THE ISSUE , THEREFORE , IN THE INTEREST OF JUSTICE THE SAME SHOULD BE ADMITTED AND THE CASE MAY BE DECIDED ACCORDINGLY. 8.1 T HE LD. D R ON THE OTHER HAND WHILE OBJECTING TO THE ADMISSION OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE SUBMITTED THAT SINCE THESE EVIDENCES WERE NOT EXPLAINED BY THE LOWER AUTHORITIES , THEREFORE , IN CASE THE SAME IS ADMITTED THEN THE MATTER HAS TO GO BACK TO THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH. 9. WE HAVE CONSIDER ED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES . A FTER CONSIDERING THE CONTENTS OF THE APPLICATION AND THE AFFIDAVIT FOR ADMISSION OF ADDITIONAL EVIDENCES, WE ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE, SINCE THE SAME IN OUR OPINION GO ES TO THE RO OT OF THE MATTER. SINCE, THESE EVIDENCES WERE ADMITTEDLY NOT EXPLAINED BY THE ASSESSING OFFICER OR THE CIT(A), THEREFO RE, WE , IN THE INTEREST OF JUSTICE , DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY . T HE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR THE STATISTICAL PURPOSES. 10. SIMILAR ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER DURING A.Y. 2009 - 10 WHICH HAS BEEN UPHELD BY THE CIT(A). IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS NOT FILED ANY ADDITIONAL EVIDENCE FOR THE IMPUGNED ASSESSMENT YEAR. HOWEVER, CONSIDERING THE TOTALITY OF THE 5 FACTS OF THE CASE AND CONSIDERING THE FACT THAT THE ASSESSEE HAS EXPLAINED BEFORE THE CIT(A) THAT THE CASH DEPOSITS ARE MADE OUT OF CASH RECEIPT FROM UNITY PRAKASHAN PVT. LTD. AND UNITY INFRASTRUCTURE PVT. LTD. THEREFORE WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EV IDENCE TO HIS SATISFACTION REGARDING THE NATURE AND SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT FOR A.Y. 2009 - 10. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY . T HE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 11. IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S . PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 08 - 10 - 2014 . SD/ - SD/ - ( SHAILENDRA KUMAR YADAV ) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 08 TH OCTOBER, 2014 RK COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT( A) - II, PUNE 4. THE CIT - I I, PUNE 5 . D.R. B BENCH, PUNE 6 . GUARD FILE //TRUE COPY// BY ORDER ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, PUNE