Shri Tushar Amidhar Majumdar, Ahmedabad V. The ACIT, Ahmedabad

ITA 768/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0019 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 14-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.768/AHD/2014 / ASSTT. YEAR: 2010-11 SHRI TUSHAR AMIDHAR MAJUMDAR 2, HASUBHAI BUNGALOWS NR. SATELLITE POLICE STATION AHMEDABAD 380 015. PAN : AFFPM 7176 M VS. ACIT, CIR.7 AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI MUKUND BAKSHI, AR REVENUE BY : SHRI JAMES KURIAN, SR.DR / DATE OF HEARING : 03/10/2016 / DATE OF PRONOUNCEMENT: 23 /11/2016 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-I, AHMEDABAD DATED 15.1.2014 PASSED FOR THE ASSTT.YEAR 2010-11. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) ERRED IN CONFIRMING ADDITION OF RS.16,64,433/- WHICH WAS MAD E BY THE AO WITH THE AID OF SECTION 68. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 29.7.2010 DECLARING TOTAL INCOME AT RS.42 ,65,510/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT A ND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THAT THE ASSESSEE HAS MADE DE POSITS ON VARIOUS DATES IN HIS SAVING BANK ACCOUNT IN THE BANK OF INDIA, SUREN DRA MANGALDAS ROAD, ITA NO.768/AHD/2014 2 AHMEDABAD. THE AO HAS CONFRONTED THE ASSESSEE TO D ISCLOSE SOURCE OF SUCH DEPOSITS. IT WAS CONTENDED BY THE ASSESSEE THAT HE HAS RECEIVED SALARY OF RS.40,08,647/- AND ALSO EARNED INCOME FROM SALE OF ART-WORK AMOUNTING TO RS.18,33,719/-. THE ASSESSEE HAS POINTED OUT THAT HE HAS OPENING CASH BALANCE IN HIS CASH BOOK, WHICH WAS GOT ACCUMULATED BECAUSE VARIOUS WITHDRAWALS MADE BY HIM. THE LD.AO WAS NOT SATISFI ED WITH THE EXPLANATION OF THE ASSESSEE, AND HE ACCORDINGLY MADE ADDITION O F RS.16,64,433/-. APPEAL TO THE CIT(A) DID NOT BRING ANY RELIEF TO THE ASSES SEE. 4. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE REITE RATED HIS CONTENTIONS AS WERE RAISED BEFORE THE AO. HIS CONTENTION WAS THAT THE ASSESSEE HAS BEEN WITHDRAWING SUFFICIENT CASH IN EARLIER YEARS, AND H E HAS AN OPENING CASH BALANCE OF MORE THAN RS.8 LAKHS WHICH IS SUFFICIENT TO EXPLAIN THE DEPOSITS. THE LD.COUNSEL FOR THE ASSESSEE FURTHER RELIED UPON THE ORDERS OF THE ITAT IN THE CASE OF PATEL PRAHALADBHAI HARJIVANBHAI VS. ITO , ITA NO.2347/AHD/2012. HE ALSO RELIED UPON THE ORDER OF THE ITAT IN THE CASE OF ITO VS. MANOJ INDRAVADAN CHOKSHI, 674/AHD/2013. TH E LD.DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD.CIT(A). 5. WE HAVE CONSIDERED RIVAL CONTENTIONS, AND GONE T HROUGH THE RECORD CAREFULLY. WE DEEM IT PERTINENT TO TAKE NOTE OF TH E FINDING RECORDED BY THE LD.CIT(A). IT READS AS UNDER: 4. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUB MISSIONS OF THE A.R. OF THE APPELLANT AS ALSO THE PAPER BOOK FILED WITH THE SUBMISSION CAREFULLY. IT IS SEEN THAT THE APPELLANT HAS CLAIME D THAT THE ENTIRE CASH DEPOSITED IN THE BANK ACCOUNT WAS OUT OF THE CASH B ALANCE AVAILABLE WITH THE APPELLANT AS PER THE CASH BOOK AS ON 31.03 .2009 AMOUNTING TO RS.8,25,124.75 AND ALSO THE CASH WITHDRAWALS FROM T HE BANK ACCOUNT. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE A.R. OF THE APPELLANT, IN VIEW OF THE FACT THAT THE APPELLANT H AD NOT SHOWN ANY HOUSE HOLD WITHDRAWALS AND HAD STATED THAT ENTIRE H OUSE HOLD EXPENSES ITA NO.768/AHD/2014 3 WERE MADE BY HIS MOTHER AMOUNTING TO RS.2,55,723/-. THE ASSESSING OFFICER DID NOT FIND THE ARGUMENT OF THE APPELLANT SATISFACTORY AND HELD THAT THE ENTIRE WITHDRAWALS IN CASH HAD BEEN USED U P IN HOUSE HOLD EXPENSES AND THAT THE DEPOSITS HAD BEEN MADE OUT OF UNEXPLAINED SOURCES. 4.1 DURING THE APPELLATE PROCEEDINGS ALSO THE SAME SUBMISSIONS WERE REITERATED AND COPIES OF THE PROFIT AND LOSS ACCOUN T OF THE APPELLANT FOR PREVIOUS YEARS RELEVANT TO A.YS.2009-10 AND 2010-11 WERE FILED. FROM THE PERUSAL OF THE PROFIT AND LOSS ACCOUNT OF THE A PPELLANT, IT IS SEEN THAT SEVERAL EXPENSES OF THE APPELLANT ARE IN THE NATURE OF PERSONAL EXPENSES. THESE ARE CAR INSURANCE EXPENSES AMOUNTIN G TO RS.23,892/-, CLUB EXPENSES AMOUNTING TO RS.84,879/-, ELECTRICITY EXPENSES FOR USE AMOUNTING TO RS.72,860/-, HOUSE REPAIRING EXPENSES AMOUNTING TO RS.79,707/-, TRAVELLING EXPENSES AMOUNTING TO RS.27 ,036/-, VEHICLE EXPENSES AMOUNTING TO RS.39,087/- AND SIMILAR EXPEN SES FOR HSBC CARD PAYMENT AMOUNTING TO RS.50,822/-, INCOME TAX A CCOUNT AMOUNTING TO RS.85,760/-. THE ABOVE EXPENSES CLEARL Y SHOW THAT THE APPELLANT IS MAINTAINING VERY HIGH LIFESTYLE IN WHI CH THE CLUB EXPENSES ITSELF ARE RS.84,879/-. (N SUCH A SITUATION, THE HO USE HOLD EXPENSES OF THE APPELLANT WOULD CERTAINLY BE VERY HIGH ESPECIAL LY BECAUSE HE HAS UNDERTAKEN FOREIGN TOURS FOR WHICH OVERSEAS MEDICLA IM EXPENSES HAS BEEN INCURRED. THE PERUSAL OF THE BANK ACCOUNT ALSO SHOWS THAT SMALL AMOUNTS OF CASH HAVE BEEN WITHDRAWN AND THE SAME HA VE BEEN DEPOSITED AGAIN WHICH CLEARLY INDICATES THAT EH CAS H BALANCE WOULD NOT BE AVAILABLE WITH THE APPELLANT OTHERWISE THEY WOUL D HAVE BEEN NO NEED TO WITHDRAW THE CASH. ESPECIALLY BECAUSE THE APPELL ANT HAD CLAIMED THAT HE HAD A HUGE AMOUNT OF RS.8,25,124/- AS CASH ON HAND AS ON 01.04.2009. THE PERUSAL OF THE CASH BOOK ALSO SHOWS THAT NO AMOUNT HAD BEEN DEBITED TOWARDS HOUSE REPAIRING EXPENSES, DONATIONS ETC. IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE CASH BOOK D OES NOT REFLECT THE CORRECT CASH POSITION OF THE APPELLANT. THE ASSESSI NG OFFICER WAS HENCE JUSTIFIED IN NOT ENTERTAINING THE CONTENTION OF THE APPELLANT THAT THE APPELLANT HAD CASH BALANCE AT THE BEGINNING OF THE YEAR AND THAT THE WITHDRAWALS MADE IN CASH FROM BANK ACCOUNT WERE KEP T WITH HIM AND FOR MAKING DEPOSITS IN THE BANK ACCOUNT. IN VIEW OF THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED. 6. SECTION 68 OF THE INCOME TAX ACT, 1961 CONTEMPLA TES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE M AINTAINED FOR ANY PREVIOUS ITA NO.768/AHD/2014 4 YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF, OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT, IN THE OPINION OF THE AO SATISFACTORY, THEN THE SUM SO CREDITED IN THE AC COUNTS MAY BE TREATED AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. EXPL ANATION OF THE ASSESSEE IS THAT HE HAS BEEN WITHDRAWING THE AMOUNT FROM THE BA NK WHICH WAS KEPT IN CASH. WHEN HE FILED RETURN FOR THE YEAR ENDING ON3 1.3.2009 HE HAS SHOWN A CASH ON HAND AT RS.8,25,124/-. THE COPY OF BALANCE IS AVAILABLE ON PAGE NO.6. WE HAVE APPRECIATED ALL THESE DETAILS. BUT IT IS P ERTINENT TO KEEP IN MIND THE SURROUNDING CIRCUMSTANCES OF THIS CASE. THE ASSESS EE HAS NOT SHOWN HOUSEHOLD WITHDRAWALS. HIS HOUSEHOLD WITHDRAWALS A RE TO BE TAKEN CARE OFF BY HIS MOTHER. SUCH WITHDRAWALS ARE OF ONLY RS.2,5 5,723/-. IT IS HIGHLY IMPROBABLE THAT AN ASSESSEE HAVING TAXABLE INCOME O F MORE THAN RS.40 LAKHS, WHO HAS UNDERTAKEN FOREIGN TOURS, WHO HAS CLUB EXPE NSES OF RS.84,779/- WOULD NOT INCUR FOR MAINTENANCE OF HOUSEHOLD ANY EX PENSES ! TO OUR MIND, CONSIDERING PERIPHERAL CIRCUMSTANCES OF THE ASSESSE E, THE LD.AO HAS RIGHTLY DRAWN INFERENCE THAT WHATEVER THE ASSESSEE HAS WITH DRAWN THE AMOUNT FROM THE BANK, IT MUST HAVE BEEN INCURRED BY THE ASSESSE E, AND HE IS NOT IN A POSITION TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN THE ACCOUNT. IT IS ALSO PERTINENT TO NOTE THAT ONCE THE ASSESSEE HAS BEEN I NCURRING HIS EXPENDITURE ON CAR INSURANCE, CLUB EXPENSES, TOUR EXPENSES ETC. WI TH THE HELP OF ELECTRONIC PAYMENTS, THEN, WHY HE HAS WITHDRAWN THE AMOUNTS WH ICH COULD BE RE- DEPOSITS TO A MAGNITUDE OF RS.16 LAKHS IN A YEAR ? THERE IS NO PLAUSIBLE EXPLANATION AT THE END OF THE ASSESSEE. AS FAR AS CASE LAW REFERRED BY THE LD.COUNSEL ARE CONCERNED, THEY ARE BASED ON THE FAC TS OF THOSE CASES. ITAT WAS SATISFIED WITH SOURCE IN THOSE CASES FOR WHICH A FINDING OF FACT CONFINED TO THE PARTICULAR CASE WAS RECORDED AND NO RATIO OF LA W FOR UNIFORM APPLICATION WAS LAID DOWN. IN OUR OPINION, THE LD.REVENUE AUTHO RITIES HAVE DRAWN RIGHT ITA NO.768/AHD/2014 5 CONCLUSION FOR MAKING ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. WE DO NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 23 RD NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 23/11/2016