SHRI SHYAM GIDWANI, JAIPUR V. INCOME TAX OFFICER, WARD-6-1, JAIPUR

ITA 808/JPR/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3297 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA ADD CIT A
• Keywords: Gift; Salary income; Peak credit; Competent authority; Assessment record; Reason to believe; Borrowed satisfaction
• Section: 143(3); 69A; 13; 147; 69; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 808/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2008-09 SHRI SHYAM GIDWANI 3-N, A-16, JAWAHAR NAGAR, JAIPUR. CUKE VS. THE ITO, WARD-6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGBPG 9944 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPOND ENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) & SHRI DEVANG GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.S. NEHRA (ADD.CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/10/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 21/10/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-2, JAIPUR DATED 15.03.2018 FOR THE ASSESSMEN T YEAR 2008-09. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT BASED ON REVIEW OF THE AIR INFORMATION, THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE HAS MADE CASH DEPOSIT OF RS. 22,97,600/- IN HIS BANK AC COUNT MAINTAINED WITH ICICI BANK. GIVEN THAT THE ASSESSEE HAS NOT F ILED ANY RETURN OF INCOME, THE AO BELIEVED THAT INCOME TO THE EXTENT O F RS. 22,97,600/- ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 2 HAS ESCAPED ASSESSMENT AND REASONS WERE RECORDED AN D NOTICE U/S 148 WAS ISSUED ON 18.03.2015. IN RESPONSE, THE ASSE SSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 79,9 50/- AND THEREAFTER, AFTER CALLING FOR INFORMATION/EXPLANATION FROM THE ASSESSEE, THE ASSESSMENT WAS COMPLETED U/S 147 R.W.S. 143(3) VIDE ORDER DATED 23.10.2015 AT AN ASSESSED INCOME OF RS. 15,77,550/- BY MAKING ADDITION OF RS. 14,97,600/- U/S 69A OF THE IT ACT. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS SINCE CONFIRMED THE A DDITION SO MADE BY THE ASSESSING OFFICER. AGAIN THE SAID FINDINGS AND ORDER OF THE LD CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 4. IN GROUND NO. 1 & 2, THE ASSESSEE HAS CHALLENGED THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER U/S 147 OF THE ACT. 5. IN THIS REGARD, THE LD. AR SUBMITTED THAT THE LA W MANDATORILY REQUIRES THE ASSESSING OFFICER TO OBTAIN PRIOR APPR OVAL OF THE PCCIT/CCIT/CIT BEFORE ISSUANCE OF NOTICE U/S 148, W HERE SUCH NOTICE IS ISSUED AFTER LAPSE OF 4 YEARS FROM THE END OF THE R ELEVANT ASSESSMENT YEAR AND FROM THE JCIT IN CASE THE NOTICE U/S 148 I S ISSUED BEFORE 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IT W AS SUBMITTED THAT IT IS ALSO ESTABLISHED PRINCIPLE OF LAW THAT IF A PARTICU LAR AUTHORITY HAS BEEN DESIGNATED TO RECORD HIS/HER SATISFACTION ON ANY PA RTICULAR ISSUE, THEN IT IS THAT AUTHORITY ALONE WHO SHOULD APPLY HIS/HER INDEP ENDENT MIND TO RECORD HIS/HER SATISFACTION. THE SPECIFIC DESIGNATION OF P R. CIT/CCIT/CIT W.R.T ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 3 OBTAIN SANCTION BEFORE ISSUING OF NOTICE U/S 148 AF TER 4 YEARS, HAS BEEN ENACTED BY THE LEGISLATION WITH A PARTICULAR INTENT . 6. IT WAS SUBMITTED THAT IN THE INSTANT CASE, NOTIC E U/S 148 (WHICH IS W.R.T A.Y. 2008-09) WAS ISSUED ON 18.03.2015 I.E. B EYOND THE PERIOD OF 4 YEARS, HENCE AS PER SECTION 151, APPROVAL OF PR. CIT/CCIT/CIT SHOULD HAVE BEEN OBTAINED. HOWEVER, A BARE PERUSAL OF REAS ONS RECORDED (RECEIVED WITH AO'S LETTER DATED 12.04.2021) SHOWS THAT SUCH AN APPROVAL HAS BEEN TAKEN FROM LD. JCIT, RANGE - 6, W HO IS NOT THE AUTHORIZED & COMPETENT AUTHORITY U/S 151 TO ACCORD SUCH A SANCTION. HENCE, THE IMPUGNED NOTICE U/S 148 AND THE CONSEQUE NTLY, IMPUGNED ASSESSMENT ORDER PASSED U/S 147 MUST BE QUASHED ON THIS GROUND ITSELF IN ABSENCE OF REQUISITE APPROVAL FROM THE COMPETENT AUTHORITY U/S 151 OF THE ACT. 7. IN SUPPORT OF HIS CONTENTIONS, RELIANCE WAS PLAC ED ON THE HONBLE DELHI HIGH COURT DECISION IN CASE OF CIT VS. SPLS SIDDHARTHA LTD. (2012) TAXMANN.COM 138, HONBLE RAJASTHAN HIGH COURT IN CA SE OF DHADDA EXPORTS VS. ITO (2015) 58 TAXMANN.COM 176 AND HONB LE MUMBAI HIGH COURT DECISION IN CASE OF MIRANDA TOOLS (P.) LTD. V S. ITO (2020) 114 TAXMANN.COM 584. IT WAS SUBMITTED THAT IN THE AFORE SAID DECISION OF HONBLE BOMBAY HIGH COURT, AN EARLIER DECISION IN C ASE OF CIT VS. AQUATIC REMEDIES (P.) LTD. [2018] 96 TAXMANN.COM 60 9 AGAIN PASSED BY THE HONBLE MUMBAI HIGH COURT HAS BEEN CONSIDERE D AND AN APPEAL FILED BY THE DEPARTMENT AGAINST THE SAID DECISION B EFORE THE HONBLE SUPREME COURT HAS SINCE BEEN DISMISSED AND CASE DEC IDED IN FAVOUR OF THE ASSESSEE. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 4 8. PER CONTRA, THE LD. DR HAS RELIED ON THE ORDER O F THE LOWER AUTHORITIES AND IT WAS SUBMITTED THAT THE REOPENING OF THE ASSESSMENT WAS DONE AFTER RECORDING OF THE REASONS THAT THE IN COME TO THE TUNE OF RS 22,97,600 HAS ESCAPED ASSESSMENT AND AFTER OBTAI NING PRIOR APPROVAL OF THE JCIT WHO WAS THE COMPETENT AUTHORIT Y U/S 151 OF THE ACT. IT WAS SUBMITTED THAT ONCE AN APPROVAL HAS BEE N TAKEN FROM THE COMPETENT AUTHORITY, THE AO WAS NOT IN BREACH OF LA W AND THERE IS NO INFIRMINITY IN THE ACTION OF THE AO IN ASSUMPTION O F JURISDICTION U/S 147 WHERE THE AO HAS RECORDED SPECIFIC REASONS BASED RE CEIPT OF INFORMATION THAT THE INCOME HAS ESCAPED ASSESSMENT. THE LD DR ACCORDINGLY SUPPORTED THE ORDER OF THE LOWER AUTHOR ITIES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE PROPOSITION WHICH HAS BEE N ADVANCED BY THE LD A/R AND RAISED FOR OUR CONSIDERATION IS THAT THE ASSESSING OFFICER HAS FAILED TO SOUGHT THE AUTHORIZATION FROM THE RELEVAN T AND COMPETENT AUTHORITY PRIOR TO ISSUANCE OF NOTICE U/S 148 OF TH E ACT AND THE IMPUGNED NOTICE U/S 148 AND THE CONSEQUENTLY, THE A SSESSMENT ORDER PASSED U/S 147 THEREFORE BE QUASHED AND SET-ASIDE. WHAT IS THEREFORE REQUIRED TO BE SEEN IS THE LAW AS APPLICABLE PRIOR TO THE ISSUANCE OF NOTICE U/S 148 AND REQUIREMENT THEREIN IN TERMS OF AUTHORITY WHICH WAS COMPETENT TO AUTHORIZE THE ISSUANCE OF SUCH NOTICE. 10. IT IS NOTED THAT THE PROVISIONS OF SECTION 151 HAVE UNDERGONE A CHANGE AND SUBSTITUTED BY THE FINANCE ACT, 2015, W. E.F. 1.06.2015. UNDISPUTEDLY, IN THE INSTANT CASE, THE NOTICE U/S 1 47 OF THE ACT WAS ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 5 ISSUED ON 18.03.2015 AND IN TERMS OF UNAMENDED LAW AS EXISTING PRIOR TO ISSUANCE OF NOTICE U/S 148 AND APPLICABLE IN THE INSTANT CASE, THE PROVISIONS OF SECTION 151 READ AS UNDER:- 151. SANCTION FOR ISSUE OF NOTICE.-(1) IN A CASE W HERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR SECTION 147 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO NOTICE SHALL BE ISSUED UNDER SECTION 148 [ BY AN ASSESSING OFFICER, WHO IS BELOW THE RANT OF ASSISTANT COMMISSIONER [ OR DE PUTY COMMISSIONER], UNLESS THE [JOINT] COMMISSIONER IS S ATISFIED ON THE REASON RECORDED BY SUCH ASSESSING OFFICER THAT IT I S A FIT CASE FOR THE ISSUE OF SUCH NOTICE: PROVIDED THAT, AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, NO SUCH NOTICE SHALL BE I SSUED UNLESS[ PRINCIPAL CHIEF COMMISSIONER OR] THE CHIEF COMMIS SIONER OR [ PRINCIPAL COMMISSIONER OR COMMISSIONER IS SATISFI ED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER AFORESAID , THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. (2) IN A CASE OTHER THAN A CASE FALLING UNDER SUB-S ECTION (1), NO NOTICE SHALL BE ISSUED UNDER SECTION 148 BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF [JOINT] COMMISSIONER, AFT ER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSME NT YEAR, UNLESS THE [JOINT] COMMISSIONER IS SATISFIED, ON TH E REASONS RECORDED BY SUCH ASSESSING OFFICER, THAT IT IS A FI T CASE FOR THE ISSUE OF SUCH NOTICE. 11. ADMITTEDLY, IN THE INSTANT CASE, NO ASSESSMENT U/S 143(3) OR SECTION 147 HAS BEEN MADE FOR THE IMPUGNED ASSESSME NT YEAR PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT AND THE IMPUG NED NOTICE U/S 148 HAS BEEN ISSUED AFTER THE EXPIRY OF PERIOD OF 4 YEA RS FROM THE END OF THE IMPUGNED ASSESSMENT YEAR I.E. AY 2008-09. THE P ROVISIONS OF SECTION 151(2) OF THE ACT WILL BE APPLICABLE IN THE INSTANT CASE AND IN ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 6 TERMS OF WHICH, THE PRIOR APPROVAL OF THE JCIT IS R EQUIRED TO BE OBTAINED BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT THAT I T IS A CASE FIT CASE FOR SUCH ISSUANCE OF SUCH NOTICE AND THUS, JCIT HAS BEE N DESIGNATED AS THE COMPETENT AUTHORITY. DURING THE COURSE OF HEARING, A REPORT WAS CALLED FROM THE AO AND ON REVIEW OF THE REPORT PROVIDE BY ITO, WARD 6(1), JAIPUR DATED 12.04.2021, IT IS NOTED THAT THE APPRO VAL U/S 151 OF THE ACT HAS BEEN OBTAINED FROM THE JOINT COMMISSIONER OF IN COME TAX, RANGE- 6, JAIPUR. THEREFORE, IT IS MANIFEST FROM THE RECO RD THAT THE APPROVAL HAS BEEN TAKEN FROM THE JCIT WHO WAS THE COMPETENT AUTHORITY AT THE RELEVANT POINT OF TIME BEFORE ISSUANCE OF NOTICE U/ S 148 OF THE ACT. 12. THE CONTENTION ADVANCED BY THE LD A/R THAT APPR OVAL FROM PR. CIT/CCIT/CIT SHOULD HAVE BEEN OBTAINED IN THE INSTA NT CASE AS THE NOTICE U/S 148 HAS BEEN ISSUED AFTER LAPSE OF 4 YEA RS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS APPARENTLY GUIDED B Y THE AMENDED LAW WHICH, AS WE HAVE NOTED ABOVE, IS MADE EFFECTIVE BY THE LEGISLATURE W.E.F 1.06.2015 AND THERE IS NOTHING IN LAW WHICH P ROVIDES THAT THE SAME WILL BE APPLICABLE RETROSPECTIVELY. THE AMEND ED LAW IS NOT APPLICABLE IN THE INSTANT CASE AS IT IS A SETTLED L EGAL PROPOSITION THAT THE LAW AS APPLICABLE ON THE DATE OF ISSUANCE OF NOTICE HAS TO BE SEEN AND NOT THE LAW WHICH HAS BEEN AMENDED SUBSEQUENTLY AS THE AUTHORIZATION OF THE COMPETENT AUTHORITY HAS TO BE OBTAINED PRIOR TO ISSUANCE OF SUCH NOTICE AND NOT POST-FACTO AND IT IS ONLY THE AUTHOR ITY WHO IS COMPETENT AT THE RELEVANT POINT IN TIME WHICH CAN AUTHORIZE S UCH ACTION. THEREFORE, THE CONTENTION SO ADVANCED CANNOT BE ACCEPTED. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 7 13. WE HAVE ALSO GONE THROUGH THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF DHADDA EXPORTS (SUPRA) HEAVIL Y RELIED UPON BY THE LD A/R. IN THAT CASE, THE FACTS OF THE CASE WERE T HAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) AND THEREAFTER, NOTICE U/S 148 WAS ISSUED AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND IN TERMS OF PROVISO TO SECTION 151(1), THE APPROVAL OF CCIT OR CIT HAS TO BE TAKEN WHEREAS THE AO HAD S OUGHT APPROVAL OF THE JCIT AND IN THAT CONTEXT, THE HONBLE HIGH COUR T HELD THAT WHERE SPECIFIC PROVISIONS HAVE BEEN INSERTED IN TERMS OF PROVISO TO SECTION 151(1), THE ASSESSING OFFICER CANNOT FIND ESCAPE RO UTE BY TAKING RECOURSE TO SECTION 292B OF THE ACT AND THE NOTICE SO ISSUED THEREFORE WAS HELD TO BE INVALID IN EYES OF LAW. THE RELEVAN T FINDINGS OF THE HONBLE HIGH COURT ARE RESPECTFULLY NOTED AS UNDER: 11. THE OBJECTION TO SHOW CAUSE-NOTICE UNDER SECTI ON 148 OF THE IT ACT HAS BEEN REJECTED BY THE INCOME TAX OFFICER BY IMPUGNED ORDER DATED 15.01.2015 CITING, APART FROM VARIOUS R EASONS, ALSO THE REASON THAT REQUIRED SANCTION OF COMMISSIONER O F INCOME TAX WAS NOT TAKEN DUE TO OVERSIGHT THAT ASSESSMENT OF THE ASSESSEE FIRM HAD ALREADY BEEN COMPLETED UNDER SECT ION 143(3). IT WAS STATED THAT MISTAKE WAS COMMITTED IN ADVERTENTLY AND IS CURABLE BY RECOURSE TO SECTION 292B OF THE I T ACT. THAT PLEA IS LIABLE TO BE REJECTED BECAUSE WHEN SPECIFIC PROVISION HAS BEEN INSERTED TO THE PROVISO TO SECTION 151 (1), AS A PREREQUISITE CONDITION FOR ISSUANCE OF NOTICE, NAME LY, SANCTION OF THE COMMISSIONER OR THE CHIEF COMMISSIONER, THE ASS ESSING OFFICER CANNOT FIND ESCAPE ROUTE FOR NOT DOING SO B Y RELYING ON SECTION 292B. THE DELHI HIGH COURT IN CIT VS. SPL'S SIDDHARTHA ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 8 LIMITED, HAS WHILE HOLDING THAT WHEN A PARTICULAR AUTHORITY HAS BEEN DESIGNATED TO RECORD HIS/HER SATISFACTION ON A NY PARTICULAR ISSUE, THEN IT IS THAT AUTHORITY ALONE WHO SHOULD A PPLY HIS/HER INDEPENDENT MIND TO RECORD HIS/HER SATISFACTION AND SATISFACTION SO RECORDED SHOULD BE 'INDEPENDENT' AND NOT 'BORROW ED' OR 'DICTATED' SATISFACTION, REJECTED CONTENTION OF THE REVENUE THAT OBTAINING APPROVAL FROM THE AUTHORITY OTHER THAN TH E ONE WHO WAS COMPETENT TO GRANT SUCH APPROVAL, WAS MERE IRRE GULARITY COMMITTED BY THE INCOME TAX OFFICER. AND THAT IT WA S RECTIFIABLE UNDER SECTION 292B OF THE IT ACT CANNOT BE ACCEPTED AS SUCH IRREGULARITY IS NOT CURABLE UNDER SECTION 292B. 12. IN THE OPINION OF THIS COURT ALSO, RESORT TO SE CTION 292B OF THE IT ACT CANNOT BE MADE TO VALIDATE AN ACTION, WH ICH HAS BEEN RENDERED ILLEGAL DUE TO BREACH OF MANDATORY CO NDITION OF THE SANCTION ON SATISFACTION OF CHIEF COMMISSIONER OR COMMISSIONER UNDER PROVISO TO SUB-SECTION (1) OF SE CTION 151. THIS IS AN INHERENT LACUNAE AFFECTING THE VERY CORR ECTNESS OF THE NOTICE UNDER SECTION 148 AND IS SUCH WHICH IS NOT C URABLE BY RECOURSE TO SECTION 292B OF THE IT ACT.' 14. IN THE INSTANT CASE, AS AGAINST PROVISIONS OF S ECTION 151(1) READ WITH PROVISO THERETO, THE PROVISIONS OF SECTION 151 (2) ARE APPLICABLE AS NO ASSESSMENT HAS BEEN COMPLETED EARLIER EITHER U/S 143(3) OR SECTION 147 AND IN TERMS OF MANDATORY CONDITION PRESCRIBED UNDER SECTION 151(2), THE ASSESSING OFFICER HAS DULY SOUGHT AND O BTAINED APPROVAL FROM THE JCIT WHO WAS THE COMPETENT AUTHORITY AS SO PRESCRIBED UNDER ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 9 LAW BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT. T HIS IS THUS NO OVERSIGHT ON PART OF THE ASSESSING OFFICER AND NO I NHERENT LACUNAE AFFECTING THE VERY CORRECTNESS OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THEREFORE, THE SAID DECISION IS DISTIN GUISHABLE ON FACTS AND DOESNT SUPPORT THE CASE OF THE ASSESSEE. SIMILAR I S THE CASE WITH THE OTHER DECISIONS RELIED UPON BY THE LD A/R WHICH STA ND DISTINGUISHABLE ON FACTS. THEREFORE, THE CONTENTION SO ADVANCED BY T HE LD A/R CANNOT BE ACCEPTED AND THE SAME IS HEREBY DISMISSED. 15. ANOTHER CONTENTION WHICH HAS BEEN RAISED BY TH E LD A/R IS THAT A SPECIFIC REQUEST WAS MADE TO THE AO VIDE LETTER DAT ED 10.01.2017 TO SUPPLY COPY OF THE REASONS RECORDED PRIOR TO ISSUAN CE OF NOTICE U/S 148 BUT NO RESPONSE WAS GIVEN BY THE AO AND RELIANCE WA S PLACED ON VARIOUS COURT DECISIONS IN SUPPORT OF THE PROPOSITI ON THAT MANDATORY REQUIREMENT TO COMMUNICATE THE REASONS HAS NOT BEEN FOLLOWED BY THE AO WHICH RENDERS THE SUBSEQUENT PROCEEDINGS AS INVA LID IN EYES OF LAW. 16. IN THIS REGARD, FIRSTLY, IT IS NOTED THAT THE AO IN THE ASSESSMENT ORDER HAS STATED THAT THE REASONS FOR REOPENING WE RE DULY CONVEYED TO THE ASSESSEE AND THEREFORE, ON THIS BASIS ITSELF, WHERE THE REASONS HAVE BEEN DULY COMMUNICATED TO THE ASSESSEE, THE CO NTENTION SO ADVANCED BY THE LD A/R DESERVE TO BE REJECTED. 17. HAVING SAID THAT, IT IS NOTED THAT THE ASSESSME NT WAS COMPLETED U/S 147 R/W 143(3) VIDE ORDER DATED 23.10.2015 AND AFTER COMPLETING OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE IS CLAIMIN G TO HAVE REQUESTED THE AO VIDE HIS LETTER DATED 10.01.2017 TO SUPPLY C OPY OF THE REASONS. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 10 WE THEREFORE FIND THAT DURING THE ENTIRETY OF THE A SSESSMENT PROCEEDINGS, THE ASSESSEE HAS NEITHER SOUGHT COPY O F THE REASONS SO RECORDED NOR ANY OBJECTIONS HAVE BEEN FILED AGAINST SUCH REASONS DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE, WH ERE THE ASSESSEE HAS NOT SOUGHT AND HAS INFACT PARTICIPATED IN THE A SSESSMENT PROCEEDINGS, WE DONT FIND THERE IS ANY PREJUDICE W HICH HAS BEEN CAUSED TO THE ASSESSEE AND EVEN THERE IS NO VIOLATI ON OF ANY OF THE DIRECTIONS SO LAID DOWN BY THE COURTS IN THIS REGAR D. THUS, THE CONTENTION SO ADVANCED CANNOT BE ACCEPTED. 18. ANOTHER CONTENTION WHICH HAS BEEN RAISED BY THE LD A/R IS THAT THE AO HAD NO REASON TO BELIEVE BUT REASON TO SUSPE CT THAT THE INCOME HAS ESCAPEMENT ASSESSMENT AND THERE IS NO HONEST AP PLICATION OF MIND AND IT WAS CLEARLY A CASE OF BORROWED SATISFACTION. WE HAVE GONE THROUGH THE REASONS SO RECORDED BY THE ASSESSING OF FICER AND FIND THAT THE AO WAS HAVING SUFFICIENT MATERIAL IN HIS POSSES SION FOR FORMATION OF PRIMA FACIE BELIEF THAT THE INCOME HAS ESCAPED ASSE SSMENT IN THE HANDS OF THE ASSESSEE. IN THE RESULT, THE CONTENTION SO ADVANCED CANNOT BE ACCEPTED. 19. IN THE RESULT, GROUND NO. 1 AND 2 OF ASSESSEES APPEAL ARE DISMISSED. 20. NOW, COMING TO THE MERITS OF THE CASE AND GROUN D OF APPEAL NO. 3 TAKEN BY THE ASSESSEE. IN THIS REGARD, THE LD A/R SUBMITTED THAT BASED ON THE AIR INFORMATION, WHEN ASKED AS REGARDS THE D EPOSITS OF RS.22,97,600/- IN THE BANK ACCOUNT, THE ASSESSEE PR ODUCED A CASH BOOK ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 11 WITH DETAILED NARRATION OF THE ENTRIES MADE THEREIN . THE AO TABULATED SELF-EXPLANATORY CHART OF SUCH DEPOSITS AT PG 2 & 3 OF THE ASSESSMENT ORDER. THE EXPLANATIONS FURNISHED W.R.T. VARIOUS DE POSITS, WAS ACCEPTED TO THE EXTENT OF RS.4 LAKHS BEING THE GIFTS RECEIVE D BY THE ASSESSEE FROM HIS FATHER AND ALSO THE ADVANCE OF RS.4 LAKHS RECEI VED TOWARDS THE SALE OF PROPERTY G-8, RAJ PLAZA, RAJA PARK SHOP, JAIPUR. HOWEVER, THE EXPLANATION W.R.T. THE REMAINING BALANCE OF RS.14,9 7,600/- WAS DISBELIEVED AND REJECTED AS PER CHART BELOW: S.NO. PARTICULARS AMOUNT (RS.) SOURCE 1. OPENING BALANCE 3,20,000/- CASH BOOK (AO PG-3) 2. DEPOSITED BY SMT. DIMPLE (WIFE OF THE ASSESSEE) OUT OF HER PAST SAVINGS) 6,00,000/- HOME TUITIONS, CASH GIFTS RECEIVED ON FESTIVALS STRIDHAN 3. BALANCE AMOUNT (VARIOUS AMOUNTS DEPOSITED IN BANK). 5,77,600/- OUT OF BANK WITHDRAWALS TOTAL 14,97,600/- ACCORDINGLY, AN AMOUNT OF RS.14,97,600/- WAS ADDED U/S 69A AS UNEXPLAINED INCOME OF THE ASSESSEE FOR THE GIVEN YE AR. IN THE FIRST APPEAL, THE ASSESSEE FILED DETAILED WRITTEN SUBMISS ION DATED 09.02.2017 AND ADDITIONAL WRITTEN SUBMISSION DATED 22.02.2017, HOWEVER, THE LD. CIT(A) SUMMARILY CONFIRMED THE ADDITION VIDE ORDER DATED 15.03.2018 IN APPEAL NO. 363/15-16. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 12 21. IT WAS SUBMITTED THAT THE LOWER AUTHORITIES REJ ECTED THE CONTENTION OF THE AVAILABILITY OF OPENING CASH IN H AND OF RS.3,20,000/- SIMPLY SAYING THAT THE ASSESSEE FAILED TO FILE ANY DOCUMENTARY EVIDENCE IN SUPPORT AND THAT THE ASSESSEE WAS NOT FILING ROI REGULARLY WHICH DOES NOT APPEAR TO BE A CORRECT FACT. IT IS SUBMITTED TH AT THE ASSESSEE WAS ALREADY FILING ROI IN THE PAST AS WELL. THE RECENT BEING IN AY 2006-07, WHEN THE ROI WAS FILED ON DATED 15.09.2006 DECLARIN G TOTAL INCOME OF RS.96,355/-. 22. IT WAS SUBMITTED THAT IT WAS MAINLY OUT OF A G IFT OF RS.3 LAKHS RECEIVED FROM THE MOTHER THROUGH HER BANK ACCOUNT V IDE CHEQUES NO. 769252 AND 769251 IN THE F.Y. 2004-05 AND 2005-06 R ESPECTIVELY AND EVEN A COPY OF BANK STATEMENT OF THE ASSESSEE SHOWI NG THE DEPOSIT OF RS.3,00,000/- WAS SUBMITTED BEFORE THE AO VIDE LETT ER DATED 05.10.2015, AND EVEN REPRODUCED AND ADMITTED BY THE AO AT PG 3. HOWEVER, SINCE THE SAME WAS NOT AVAILABLE WHILE APP EARING BEFORE THE CIT (A), A SPECIFIC REQUEST WAS MADE TO THE AO VIDE LETTER DATED 10.01.17 TO SUPPLY A COPY OF SUCH BANK STATEMENT BU T UNFORTUNATELY THERE WAS NO RESPONSE GIVEN BY THE AO. UNFORTUNATEL Y, EVEN THE CIT (A) HAS COMFORTABLY IGNORED THESE FACTS AND INSTEAD OF CALLING FOR THE ASSESSMENT RECORDS, WRONGLY STATED THAT BANK ACCOUN T OF THE ASSESSEE, SHOWING CORRESPONDING CREDIT, WAS NOT PRODUCED, WHI CH FACT IS CONTRARY TO THE RECORD AVAILABLE BEFORE AO. 23. IT WAS SUBMITTED THAT THE LOWER AUTHORITIES HAV E COMPLETELY IGNORED SUCH CRUCIAL EVIDENCES, WHICH DIRECTLY PROV E THE SOURCE OF THE ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 13 OPENING BALANCE. IT IS A FACT THAT NEITHER THE AO N OR THE CIT(A) MADE ANY ENQUIRY DIRECTLY FROM THE BANK TO ASCERTAIN THE TRUTH OF THE CLAIMED TRANSFER OF GIFT AMOUNT FROM MOTHER OF THE ASSESSEE . IN ABSENCE OF CATEGORICAL REBUTTAL OF COGENT EVIDENCES THOUGH AVA ILABLE ON RECORD, THERE IS NO SCOPE OF ANY ASSUMPTION OR PRESUMPTION. IF THE REVENUE FAILS TO DISCHARGE THE ONUS SHIFTED TO THEM THEY ARE BOUN D TO ACCEPT THE EXPLANATION AND UN-REBUTTED EVIDENCE FURNISHED BY T HE ASSESSEE. HENCE, OPENING BALANCE OF RS. 3,00,000/- WAS FULLY ESTABLISHED. THE REST MINOR AMOUNT OF RS.20,000/-, WAS OUT OF THE PA ST SAVINGS OF THE ASSESSEE. THE IMPUGNED ADDITION TO THIS EXTENT, THE REFORE, DESERVES DELETION. 24. IT WAS SUBMITTED THAT THE WIFE OF THE ASSESSEE IS AGED 28 YRS AND BELONGS TO SINDHI COMMUNITY. IT IS A MATTER OF COMM ON KNOWLEDGE IN SINDHI COMMUNITY THE PARENTS AND OTHER RELATIVES FR OM BOTH THE SIDES ARE USED TO GIVE HANDSOME GIFTS TO HER DAUGHTER/DAU GHTER-IN-LAW ON VARIOUS OCCASIONS. MOREOVER, LADIES ARE BOLD AND OP EN MINDED AND ARE NORMALLY ENGAGED IN SOME INCOME EARNING ACTIVITY. 25. IT WAS SUBMITTED THAT THERE APART, SHE HAD BEEN TAKING BATCH TUITIONS OF THE CHILDREN UPTO 8 TH STANDARD SINCE LAST SEVERAL YEARS. ALIST OF STUDENTS WAS SUBMITTED. THE LD. AO REJECTED THE CON TENTION SIMPLY SAYING THAT IT SEEMS TO BE AN AFTERTHOUGHT STORY, W HICH IS NOT AT ALL A VALID GROUND TO REJECT THE EXPLANATION IN AS MUCH A S AN EVIDENCE WAS SUBMITTED BY THE ASSESSEE WHICH MUST HAVE BEEN REBU TTED OR CONTROVERTED BY THE AO AND COULD NOT BE IGNORED MER ELY ON SUSPICION. IT IS A FACT THAT AO DID NOT MAKE ANY ENQUIRY FROM ANY OF THE TUTORS / ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 14 STUDENTS EVEN THOUGH THEIR MOBILE NUMBERS WERE GIVE N. IN ABSENCE OF CATEGORICAL REBUTTAL OF COGENT EVIDENCE AVAILABLE O N RECORD, THERE IS NO SCOPE OF ANY ASSUMPTION OR PRESUMPTION. IN ADDITION , SHE WAS IN RECEIPT OF CUSTOMARY GIFTS FROM BOTH THE SIDES ON DIFFERENT OCCASIONS, REGULAR PIN MONEY, WHICH COULD CONSTITUTE HER STRIDHAN, THE VERY FACT OF CASH DEPOSIT BY HER, IS THE EVIDENCE OF AVAILABILITY OF PAST/CURRENT SAVINGS. THE HABIT OF SAVINGS IN INDIAN SOCIETY AND PARTICUL ARLY BY THE WOMEN IS WELL KNOWN IN THE WORLD. THE CASH FOUND AND GOT EXC HANGED DURING DEMONETIZATION PERIOD IS THE BEST EXAMPLE. THUS, I N ANY CASE, THE HUMAN PROBABILITY PREPONDERS IN FAVOR OF THE ASSESS EE KEEPING IN MIND THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES THAT, A LADY OF 38 YEARS FROM SINDHI COMMUNITY, MUST HAVE SAVED AT LEAST TO THE E XTENT CLAIMED. 26. IT WAS ALSO SUBMITTED THAT A READING OF THE IMP UGNED ORDER SUGGEST THAT THE AO PROCEEDED ON MERE SUSPICION AND STARTED WITH A NEGATIVE MIND IN AS MUCH AS THE EXPLANATION W.R.T. THE SOURCE OF RS.6 LAKHS FROM THE WIFE WAS ALSO REJECTED IN A FEW WORD S. SIMILARLY, HE DOUBTED THE DEPOSIT OF THE BANK OF RS.22,97,600/- S AYING THAT IT WAS BEYOND IMAGINATION THAT A LOW PAID EMPLOYEE WAS ABL E TO MAKE SAVINGS OF SUCH A HUGE AMOUNT. THUS, THE AO PROCEEDED WITH A PRECONCEIVED NOTION THAT THE DEPOSITS MADE IN THE BANK ACCOUNT W AS COMPLETELY SOURCELESS AND THAT HAS CERTAINLY THE ACCEPTANCE OF A VALID AND PLAUSIBLE EXPLANATION PUT FORTH BY THE ASSESSE BEFORE HIM. 27. IT WAS SUBMITTED THAT THE ASSESSEE HAS BEEN WOR KING SINCE LAST SEVERAL YEARS. BELONGING TO SINDHI COMMUNITY WHERE THERE IS A TRADITION OF ENTERING INTO BUSINESS AT AN EARLY AGE, THE APPE LLANT ALSO STARTED FROM ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 15 THE AGE OF 15 YEARS AND CONTINUED TILL HE WAS 29 YE ARS IN RELEVANT ASSESSMENT YEAR AND HAS BEEN EARNING SALARY. HE WAS IN RECEIPT OF SALARY INCOME OF RS. 84,000/- AS EVIDENT FROM ROI F ILED ON 15.09.2006 FOR AY 2006-07 AND ROI FILED ON 26.08.2015 FOR AY 2 008-09 (IN RESPONSE TO NOTICE U/S 148 OF THE ACT. THERE APART, THE CURRENT YEAR INCOME WAS RS. 1,00,460/-.THUS, TAKING A FAIR AVERA GE AT THE RATE OF RS. 65,000 P.A. FOR THE PERIOD OF 14 YEARS AFTER REDUCI NG HIS OUT OF POCKET EXPENSES HE WAS IN RECEIPT OF RS. 8.50 LAKHS. 28. IT WAS FURTHER SUBMITTED THAT FAMILY OF THE APP ELLANT CONSISTED OF FOUR MEMBERS BEING HIMSELF, WIFE, ONE SON AROUND 4 YEARS AND FATHER, WHO IS RESIDING THEIR OWN HOUSE. LOOKING TO THEIR S IMPLE HABITS AND NO CLUB MEMBERSHIP NOR OTHER LAVISH EXPENSES, BEING FR OM SINDHI COMMUNITY, THEIR MONTHLY EXPENSES WAS RS. 10,000 P. M. /1,20,000 P.A. WHICH WAS MET BY THE FATHER ONLY. THUS, THE ASSESSE E COULD SAVE RS. 8.50 LAKHS. EVEN ASSUMING THE CONTENTIONS IN THE HA NDS OF WIFE OF RS. 6 LAKHS IS NOT ACCEPTED IN FULL, THE SAVING IN THE HA ND OF THE HUSBAND OF AROUND RS. 3 LAKHS (APPROX.) (RS. 8.50 LAKHS LESS R S. 5.70 LAKHS) WAS AVAILABLE FOR DEPOSIT. 29. IT WAS SUBMITTED THAT THE LD. AO COMPLETELY IGN ORED THAT IT WAS NOT ONLY DEPOSITS IN THE BANK ACCOUNT BUT AT THE SA ME TIME, THE ASSESSE ALSO KEPT ON MAKING WITHDRAWALS FROM THE SAME VERY BANK ACCOUNT AND THE AMOUNT SO WITHDRAWN WERE CERTAINLY AVAILABLE WI TH THE ASSESSE. THE AO PROCEEDED ONE WAY ONLY COMPLETELY IGNORING THE F ACT OF WITHDRAWAL. EVEN ASSUMING THERE WAS NO EVIDENCE AT ALL OF THE S OURCE, IF THE AO WANTED TO MAKE USE OF THE MATERIAL I.E. BANK ACCOUN T AND THE DEPOSITS ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 16 MADE THEREIN, SUCH MATERIAL MUST HAVE BEEN USED IN THE BEST POSSIBLE MANNER TO MAKE A BEST JUDGMENT ASSESSMENT. IF HE CO ULD RELY ON A PART OF THE EVIDENCE, WHICH WAS USED AGAINST THE ASSESSE , HE COULDNT HAVE IGNORED THE OTHER PART OF THE SAME VERY EVIDENCE, S IMPLY BECAUSE THAT OTHER PART WAS TO THE FAVOR OF THE ASSESSEE. BASED ON THE SAME VERY BANK ACCOUNT, A CHART HAS BEEN PREPARED WHICH SHOWS THE CONTINUOUS CASH DEPOSITS AND CASH WITHDRAWALS LEADING TO A PEA K OF RS.16,66,100/- ON DATED 04.12.2007, OUT OF WHICH A SUM OF RS.8,00, 000/- HAS BEEN ACCEPTED BY AO (BEING THE ADVANCE RECEIVED OF RS.4 LAKHS AND GIFT RECEIVED FROM FATHER FOR RS.4 LAKHS) RESULTING IN T HE REMAINING PEAK OF RS. 8,66,100/-. OUT OF THIS REMAINING AMOUNT, OPENI NG BALANCE AVAILABLE OF RS.3,20,000/- OF WHICH A SUM OF RS.3,00,000/- RE CEIVED ON ACCOUNT OF GIFT FROM MOTHER DULY SUPPORTED BY COPIES OF CHEQUE S(PB 19-20), IF CONSIDERED, LEAVES A MERE SUM OF RS. 5,66,100/- WHI CH OTHERWISE SOURCED FROM THE SAVINGS OF HIS WIFE. THE LD. CIT ( A) IS SILENT ON THIS ASPECT. IN SUPPORT, RELIANCE WAS PLACED ON THE FOLL OWING DECISIONS:- SIND MEDICAL STORES VS. CIT (2015) 117 DTR 78 (RAJ. ) CHETAN GUPTA VS. ACIT (2013) 144 ITD 344 (DEL.) SMT. MAINA DEVI V/S ITO (2005) 98 TTJ 21 (JD) ACIT V/S RAM GOPAL MANDA (2008) 40 TW 16 (JD) THYARMAL BAL CHAND 165 ITR 453 (RAJ). 30. IT WAS SUBMITTED THAT THE AO COMPLETELY IGNORED THE SETTLED LAW THAT U/S 68, 69 ETC. ONLY A DISCRETION HAS BEEN CON FERRED UPON THE AO TO BE EXERCISED JUDICIOUSLY BUT HE IS NOT ALWAYS OBLIG ED TO MAKE THE ADDITION IF THE EXPLANATION IS NOT FOUND SATISFACTO RY. KINDLY REFER CIT V/S ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 17 P. K. NOORJAHAN (1999) 237 ITR 570 (SC). IN VIEW OF THE ABOVE FACTS OF AVAILABILITY OF SUFFICIENT CASH, THE IMPUGNED ADDIT ION MAY KINDLY BE DELETED IN FULL. 31. PER CONTRA, THE LD. DR HAS RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD CIT(A) AT PARA 3.3 OF HER ORDER WHICH READ AS UNDER:- 3.3 .IT IS SEEN THAT THE AO HAS ACCEPTED AN AMOU NT OF RS. 8 LACS FOR WHICH THE SOURCES HAD BEEN EXPLAINED, HOWE VER REGARDING THE BALANCE AMOUNT THE AR COULD NOT PRODU CE AND DOCUMENTARY EVIDENCE FOR THE CLAIM MADE BY IT REGAR DING THE OPENING BALANCE. AS HAS BEEN CORRECTLY OBSERVED BY THE AO REGULAR RETURNS OF INCOME ARE NOT BEING FILED BY TH E ASSESSEE AND THE CLAIM OF GIFT FROM THE MOTHER COULD NOT BE PROV ED. THE COPIES OF CHEQUES PRODUCED IN THE PRESENT PROCEEDINGS WERE ILLEGIBLE AND THE CORRESPONDING BANK ACCOUNT OF THE ASSESSEE IN WHICH THE SAME WERE DEPOSITED WERE ALSO NOT PRODUCED. IN VIEW OF THE SAME, THE EXPLANATION FOR THIS AMOUNT CANNOT BE ACC EPTED. AGAIN AS REGARDS THE AMOUNTS GIVEN BY THE WIFE, NO DETAIL S WHATSOEVER EVIDENCING THE AVAILABILITY OF RS. 6 LAKHS WITH HER WERE PRODUCED EITHER DURING THE ASSESSMENT PROCEEDINGS OR IN THE APPELLATE PROCEEDINGS, ONLY GENERAL SUBMISSIONS REGARDING GIF TS, STRIDHAN AND TUITIONS WERE MADE. THE BALANCE AMOUNTS WERE EX PLAINED THROUGH PAST SAVINGS AND AGAIN WERE NOT SUPPORTED B Y ANY EVIDENCES. AS PER THE ITR FILED FOR ASSESSMENT YEAR 2006-07 THE ASSESSEE HAD ONLY SHOWN SALARY INCOME OF RS. 84,000 /- AND INCOME FROM OTHER SOURCES OF 12,000/-, IT IS UNIMAG INABLE HOW WITH SUCH MEAGER INCOME, PAST SAVINGS OF THESE AMO UNTS COULD BE ACCUMULATED. AS REGARDS THE ALTERNATE PLEA TAKEN BY THE AR REGAR DING THE PEAK CREDIT, FIRSTLY THIS THEORY WOULD APPLY WHEN THE DE POSITS MADE ARE FROM EXPLAINED SCOURCES WHEREAS IN THE CASE OF THE APPELLANT, THE MAJOR DEPOSITS HAVE REMAINED UNEXPLAINED. RELIANCE IS PLACED ON ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 18 THE DECISION OF [2012] 25 TAXMANN.COM 440 (DELHI) I N THE ITAT, DELHI BENCH E MANOJ KUMAR JAIN VS. ITO, THE HEAD NOTE IS REPRODUCE BELOW:- SECTION 69 OF THE INCOME-TAX, 1961- UNEXPLAINED IN VESTMENTS ASSESSMENT YEAR 2006-07- WHERE ASSESSEE COULD NOT E XPLAIN SOURCE OF AMOUNT DEPOSITED IN BANK, ADDITION MADE U NDER SECTION 69 WAS JUSTIFIED [ IN FAVOUR OF REVENUE] THUS, IT IS CLEARLY EVIDENT THAT THE APPELLANT COU LD NOT EXPLAIN THE SOURCES OF THE CASH DEPOSITS MADE DURING THE YEAR I N THE SAVINGS BANK ACCOUNT , THE ADDITION OF THE SAME AS UNEXPLA INED INCOME UNDER SECTION 69A BY THE AO, IS CONFORMED. GROUND O F APPEAL IS DISMISSED. 32. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES TO SOURCE OF CASH DEPOSITS OF RS 14,97,600/- IN THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE. 33. FIRSTLY, IT HAS BEEN CLAIMED THAT AN AMOUNT OF RS 3,20,000/- HAS BEEN DEPOSITED OUT OF OPENING CASH IN HAND AS ON 1. 04.2007 AND THE SOURCE OF SUCH OPENING CASH IN HAND HAS BEEN CLAIME D TO BE RECEIPT OF GIFT OF RS 3,00,000/- FROM THE ASSESSEES MOTHER IN THE FINANCIAL YEAR 2004-05 AND 2005-06. THE LD CIT(A) HAS RETURNED A FINDING THAT CLAIM OF GIFT FROM THE MOTHER COULDNT BE PROVED AND COPI ES OF CHEQUES PRODUCED WERE ILLEGIBLE AND CORRESPONDING BANK ACCO UNT OF THE ASSESSEE IN WHICH THE SAME WERE DEPOSITED WERE ALSO NOT PROD UCED. IT HAS BEEN CLAIMED BEFORE US THAT THE COPIES OF CHEQUES AS WEL L AS BANK STATEMENT OF THE ASSESSEE SHOWING DEPOSIT OF CHEQUE WERE SUBM ITTED BEFORE THE AO AND THE SAME HAS NOT BEEN CONSIDERED BY THE LD C IT(A). WE ACCORDINGLY REMAND THE MATTER BACK TO THE FILE OF T HE AO TO VERIFY THE ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 19 SAID CLAIM OF THE ASSESSEE AND DECIDE AS PER LAW AF TER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. 34. SECONDLY, IT HAS BEEN CLAIMED THAT AN AMOUNT OF RS 6,00,000/- HAS BEEN DEPOSITED OUT OF TUITION FEE RECEIPTS FROM ASSESSEES WIFE AND IN SUPPORT OF SUCH CONTENTION, A LIST OF STUDENTS H AS BEEN SUBMITTED ALONG WITH THEIR PHONE MOBILE NUMBERS BEFORE THE AS SESSING OFFICER AND NO ENQUIRY OR CATEGORICAL REBUTTAL HAS BEEN DONE BY THE ASSESSING OFFICER. IF WE WERE TO CONSIDER THE CONTENTION SO A DVANCED BY THE LD AR AND LOOK AT THE LIST OF EIGHT STUDENTS ALONG WITH T ENTATIVE FEES OF RS 800-1000/- SHOWN AGAINST THEIR NAME, WE FIND THA T IT ADDS UP TO A FIGURE OF RS. 96,000/- ON THE HIGHER SIDE AND STILL , THE REMAINING AMOUNT REMAIN TO BE UNEXPLAINED. THE EXPLANATION WHICH HAS BEEN SUBMITTED IS THAT THE ASSESSEES WIFE HAS BEEN TEACHING FOR PAST SEVERAL YEARS AND SHE HAS BEEN RECEIVING THE TUITION FEES FROM THE ST UDENTS BESIDES THERE ARE OTHER HOUSEHOLD SAVINGS WHICH HAVE BEEN HANDED OVER TO THE ASSESSEE FOR DEPOSIT DURING THE YEAR. WE FIND THAT SUCH AN EXPLANATION HAS TO BE SUPPORTED WITH CERTAIN CREDIBLE FACTS AND FIGURES FOR EACH OF THE PAST YEARS AND SHOULD BE BALANCED AND NOT ONE-S IDED IN TERMS OF RECEIPTS, EXPENDITURE AND SAVINGS FOR EACH OF THE P AST YEARS AND AVAILABILITY THEREOF. AND THEREFORE, A MERE EXPLANA TION WITHOUT REASONABLE CORROBORATION WITH FACTS AND FIGURES REM AINS MERELY AN ASSERTION AND WHICH CANNOT BE ACCEPTED ON FACE VALU E. IN THE RESULT, THE EXPLANATION SO SUBMITTED IN SUPPORT OF SOURCE OF DE POSIT OF RS 6 LACS CANNOT BE ACCEPTED AND IS HEREBY DISMISSED. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 20 35. REGARDING THE BALANCE AMOUNT OF RS 5.77 LACS, I T HAS BEEN CLAIMED TO BE OUT OF PAST SAVINGS. WE FIND THAT WH ERE THE ASSESSEE HAS ALREADY CLAIMED DEPOSITS OF RS 3.2 LACS OUT OF OPEN ING CASH IN HAND, THE SAME IS NOTHING THE PAST SAVINGS WHICH IS AVAILABLE AT THE BEGINNING OF THE YEAR. IN SUCH A SITUATION, WE FAILED TO UNDERS TAND HOW THE ASSESSEE IS CLAIMING SOURCE OF CASH DEPOSITS OUT OF OPENING CASH IN HANDS AND PAST SAVINGS TWICE. IN ANY CASE, NO CREDIBLE EVIDE NCE HAS BEEN PLACED ON RECORD IN TERMS OF PAST SAVINGS AS SO CLAIMED AN D THE CONTENTION SO ADVANCED IS HEREBY DISMISSED. 36. REGARDING ALTERNATE PLEA OF WORKING OUT THE PE AK CREDIT, IT HAS BEEN CLAIMED THAT THERE ARE DEPOSITS WHICH HAVE BEEN MAD E OUT OF EARLIER WITHDRAWALS DURING THE YEAR AND THE SAME HAS BEEN I GNORED BY THE ASSESSING OFFICER. IN ABSENCE OF ANY FINDINGS RECOR DED BY THE AO, WE SET-ASIDE THE MATTER TO THE FILE OF THE AO TO EXAMI NE THE SAID CLAIM OF THE ASSESSEE AND DECIDE AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/10/2021. ITA NO. 808/JP/2018 SHRI SHYAM GIDWANI VS. ITO 21 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHYAM GIDWANI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-6(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 808/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR