The ITO, Ward-3(3), Surat V. Shri Jiledar Bhagwati Prasad Thakor, Surat

ITA 81/AHD/2009

• Counselvise Citation: 8120514 RSA 2009
• Duration Of Justice: 2 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MAHESH KUMAR
• Assessee Lawyers: RAJESH M UPADHYAY
• Keywords: Unexplained cash credit; Question of law; Assessment record; Tax effect
• Section: 68; 143(3); 143(1)

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , ,, , ! ! ! ! '# '# '# '# ' ' ' '. .. . . .. .$% $% $% $%, , , , & ! & ! & ! & ! ' ' ' ' BEFORE S/SHRI D.K. TYAGI, JUDICIAL MEMBER AND A. K. GARODIA, ACCOUNTANT MEMBER) ITA NO.81/AHD/2009 [ASSTT.YEAR : 2005-2006] ITO, WARD-3(3) SURAT. /VS. SHRI JILEDAR BHAGWATI PRASAD THAKOR NIRAV BUNGLOW, GAJJARWADI ATHWAGATE, SURAT. PAN : AAWPT 1409 Q ITA NO.82/AHD/2009 [ASSTT.YEAR : 2005-2006] ITO, WARD-3(3) SURAT. /VS. SHRI BHAGWATI S. RAJPUT (HUF) NIRAV BUNGLOW, GAJJARWADI ATHWAGATE, SURAT. PAN : AAEHR 4313 M ( (( ()* )* )* )* / APPELLANT) ( (( (+)* +)* +)* +)* / RESPONDENT) ,! - . / REVENUE BY : SHRI MAHESH KUMAR 01 - . / ASSESSEE BY : SHRI RAJESH M. UPADHYAY 2 3 - 1&/ DATE OF HEARING : 24 TH NOVEMBER, 2011 4$5 - 1&/ DATE OF PRONOUNCEMENT : 22 ND DECEMBER, 2011 6 / O R D E R PER A.K. GARODIA, ACCOUNTANT MEMBER: BOTH THESE APPEALS ARE FILED BY THE REVENUE FOR ASSESSMENT YEAR 2005-2006 IN TWO DIFFERENT CASES I.E. IN THE CASE OF SHRI JILEDAR BHAGVATI PRASAD THAKOR, INDIVIDUAL AND SHRI BHAGWATI PRASAD S. RAJPUT (HUF) AND THESE APPEALS A RE DIRECTED AGAINST TWO SEPARATE ORDERS OF THE LEARNED CIT(A) II, SURAT DA TED 21.10.2008. SINCE ISSUES ARE CONNECTED, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE. ITA NO.81 AND 82/AHD/2009 -2- 2. REGARDING ITA NO.82/AHD/2009 IT WAS THE FIRST CO NTENTION RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THIS APPEAL O F THE REVENUE IS NOT MAINTAINABLE BECAUSE OF LOW TAX EFFECT. AS AGAINST THIS, IT WAS SUBMITTED BY THE LEARNED DR OF THE REVENUE THAT SINCE BOTH THE APPEA LS ARE CONNECTED, BOTH SHOULD BE DECIDED ON MERIT AND IN SUPPORT OF THIS C ONTENTION, RELIANCE WAS PLACED ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS CONCORD PHARMACEUTICA LS, REPORTED IN 317 ITR 395. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. WE FIND THAT THE APPEAL IN THE CASE OF BHAGWATI PRASAD S. RAJPUT (HUF) WAS FILED BY THE REVENUE ON 9-1-2009 AND ONLY ISSUE INVOLVED IS REGARDING THE DELETION OF ADDITION MADE BY THE AO O F RS.6.50 LAKHS AND THEREFORE, THE TAX EFFECT IS BELOW RS.2 LAKHS. BUT STILL, WE FEEL THAT SINCE BOTH THE APPEALS ARE CONNECTED, BOTH SHOULD BE DECIDED O N MERIT. WE FIND THAT CONTENTION OF THE LEARNED DR WOULD GET SUPPORT FROM THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CONCORD P HARMACEUTICALS (SUPRA) WHEREIN IT IS HELD THAT EVEN IF THE TAX EFFECT IN T HE APPEAL FILED BY THE REVENUE IS LOW, THEN ALSO THE APPEAL SHOULD BE DECIDED ON M ERIT IF IT INVOLVES A SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AND ALSO WHERE THE QUESTION OF LAW REPEATEDLY ARISES OR WHERE THE ISSUE IS COVERED BY THE JUDGMENT OF THE TERRITORIAL HIGH COURT OR THE SUPREME COURT. SINCE IN THE PRES ENT CASE, THE ISSUE INVOLVED IS ARISING REPEATEDLY IN TWO APPEALS WHICH ARE BEFO RE US, WE FEEL THAT THE APPEALS OF THE REVENUE HAS TO BE DECIDED ON MERIT A ND IT CANNOT BE DECIDED AS UN-ADMITTED BECAUSE OF LOW TAX EFFECT. THIS ARGUME NT OF THE LEARNED COUNSEL FOR THE ASSESSEE IS REJECTED. 4. THE GROUNDS RAISED BY THE REVENUE IN THESE TWO A PPEALS ARE AS UNDER: ITA NO.81/AHD/2009 (SHRI JILEDAR BHAGWATI PRASAD TH AKOR, INDIVIDUAL) ITA NO.81 AND 82/AHD/2009 -3- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE B Y THE AO OF RS.28,90,000/- HOLDING THE UNAUTHENTIC AND UNREGIST ERED AGREEMENT ON STAMP PAPER OF RS.20/- IS GENUINE AGREEMENT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A)HAS ERRED IN ACCEPTING THE CLAIM OF THE AS SESSEE THAT IT HAD RECEIVED THE AMOUNT OF CASH DEPOSIT IN HIS BANK ACC OUNT FROM THE HUF OF BHAGWATIPRASAD, IGNORING THE MATERIAL FACT THAT ON VERIFICATION OF THE CASE RECORDS OF SHRI BHAGWATIPRASAD (HUF), THERE AP PEARS NO TRANSACTION OF SO CALLED SALE OF AGRICULTURAL LAND AT UP. ITA NO.82/AHD/2009 [BHAGWATI PRASAD S. RAJPUT (HUF) ] 1. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY T HE AO OF RS.6,50,000/- HOLDING THAT THE AMOUNT OF RS.6,50,00 0/- WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF ADVANCE FOR SALE OF LAND , IGNORING THE MATERIAL FACT THAT THE ASSESSEE HAD NEITHER FILED A NY CONFIRMATION OF SUCH ADVANCES FROM THE PURCHASERS OF THE SAID LAND DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS NOR DURING THE COURSE OF APP ELLATE PROCEEDINGS BEFORE HIM AND IN ABSENCE OF ANY CONFIRMATION, THE GENUINENESS OF THE ADVANCE CANNOT BE REGARDED AS PROVED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO ON THIS IS SUE. 5. BRIEF FACTS, TILL THE ASSESSMENT STAGE, IN THE C ASE OF SHRI JILDAR BHAGWATIPRASAD THAKOR, INDIVIDUAL, ARE NOTED BY THE LEARNED CIT(A) IN PARA 4 AND 4.1 OF HIS ORDER, WHICH ARE REPRODUCED AS FOLLO W: 4. THE ASSESSEE IS THE PROPRIETOR OF M/S.J.P. CONS TRUCTION WHICH IS ENGAGED IN CIVIL CONSTRUCTION; HE IS ALSO PARTNER O F M/S.YADUNANDAN CORPORATION AND M/S SHIV CORPORATION. IN COURSE OF THE ASSESSMENT PROCEEDINGS, THE AO EXAMINED THE ASSESSEE'S BANK AC COUNT NO 3041 WITH UCO BANK, ATHWALINES BRANCH AND FOUND CREDITS TOTALLING RS 79,51,943 (PARA-4 OF THE ASSESSMENT ORDER), OUT OF WHICH THERE WERE EIGHT CREDITS/DEPOSITS IN CASH, WHICH TOTALLED RS.2 8,90,000 (PARA 4.3). WHEN ASKED TO EXPLAIN THE SOURCE OF SUCH DEPOSITS T HE ASSESSEE FURNISHED A CONFIRMATION LETTER FROM SHRI DHANSUKH RAJPUT, THE ASSESSEE'S BROTHER, FOR A SUM OF RS.20,00,000. THE ASSESSEE ALSO FILED COPIES OF TWO AGREEMENTS BETWEEN STUFF DEVRAJ HARIM ANGAL SINGH AND SMT CHANDRIKADEVI B THAKOR AND SHIL BHAGWATI PD RAJ PUT, THE SECOND ITA NO.81 AND 82/AHD/2009 -4- AGREEMENT WAS BETWEEN SHRI SUKHRAJBAHATIRN SINGH AN D SHRI BHAGWATI PRASAD RAJPUT. THESE TWO AGREEMENTS SHOWED THE SALE OF THE LAND AT RAMNAGAR VILLAGE, TALUKA BHADULRI, DIST. SANT RAVID AS NAGAR, UP. HOWEVER, THE AGREEMENTS WERE PREPARED ON STAMP PAPE R OF ONLY RS.20 AND WERE NEITHER AUTHENTICATED NOR REGISTERED. THE TOTAL CONSIDERATION SHOWN TO HAVE BEEN RECEIVED AGAINST THE SALE OF SUC H LAND WAS RS.25.50 IAKHS BY THE OWNERS I.E. THE ASSESSEE'S PARENTS. AS PER THE CONFIRMATION OF SLID DHANSUKH RAJPUT, THE LAND BELONGED TO THE H UF OF LATE SHRI BHAGWATL PRASAD RAJPUT. HOWEVER, ON A VERIFICATION OF THE RETURN OF INCOME FILED BY THE HUF FOR THE AY 2005-06 IT WAS S EEN THAT THE SALE PROCEEDS FROM THE SALE OF SUCH LAND HAD NOT BEEN RE FLECTED IN THE RETURN OF INCOME, THE ASSESSMENT HAVING BEEN COMPLETED U/S 143(3) OF THE IT ACT ON 28-11-2007. IT ALSO DID NOT APPEAR IN THE BA LANCE SHEET OF EITHER SMT CHANDRIKADEVI OR SHRL BHAGWATI PRASAD; NO DETAI LS OF THE SALES OF SUCH LAND WAS FURNISHED BEFORE THE AO DURING THE AS SESSMENT PROCEEDINGS. 4.1 ON THE OTHER HAND, ACCORDING TO THE AO, THE AS SESSEE NEITHER APPEARED BEFORE HIM NOR FURNISHED ANY EVIDENCE IN S UPPORT OF THE EXPLANATION FURNISHED REGARDING THE SOURCE OF THE D EPOSITS. FROM THE ASSESSMENT RECORDS OF SMT. CHANDRIKADEVI AND SHRI B HAGWATI PD RAJPUT, WHO WERE ALSO ASSESSED IN THE SAME WARD, TH E AO FOUND THAT NEITHER ANY ADVANCE NOR THE ALLEGED SALE PROCEEDS H AD BEEN REFLECTED IN THE CASH BOOKS. IN COURSE OF THE ASSESSMENT PROCEED INGS, BOTH SMT. CHANDRIKADEVI AND SHRI BHAGWATI PRASAD RAJPUT HAD F AILED TO PRODUCE THE DETAILS OF OWNERSHIP OF THE LAND, AND ALSO THE DATE OF ACQUISITION ETC. SMT CHANDRIKADEVI HAD NOT CONFIRMED THE ALLEGED TRA NSACTIONS. ON THE BASIS OF SUCH FACTS AND FINDINGS, THE AO TREATED TH E TOTAL OF THE CASH DEPOSITS OF RS.28,90,000 AS UNEXPLAINED, AND ADDED THE SAME TO THE ASSESSEES TOTAL INCOME UNDER SECTION 68 OF THE IT ACT. 6. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DELETED THE ADDITION MADE BY THE AO ON THE BASIS THAT THE DEPOSITS TOTALING TO RS.28,90,000/- IN THE ASSESSE ES BANK ACCOUNT WERE FULLY EXPLAINED BECAUSE OUT OF THE TOTAL CASH DEPOSITS OF RS.28,90,000/-, SOURCE OF RS.20 LAKHS IS EXPLAINED AS BEING CONFIRMED BY SHRI DHANSUKH RAJPUT ON BEHALF OF SHRI BHAGWATI PRASAD RAJPUT (HUF). REGAR DING THE REMAINING DEPOSITS, IT WAS EXPLAINED THAT THIS AMOUNT REPRESE NTED THE CASH ON HAND OF THE ASSESSEE AT THE DIFFERENT POINT OF TIME, WHICH HAS BEEN DULY RECORDED IN THE ASSESSEES CASH BOOK. IT IS ALSO NOTED BY THE LEAR NED CIT(A) IN PARA 6.2 OF HIS ITA NO.81 AND 82/AHD/2009 -5- ORDER THAT, A QUESTION WAS RAISED BY THE AO REGARDI NG THE OWNERSHIP OF THE LAND WHICH ALLEGEDLY HAD BEEN SOLD AND THIS WAS DULY REF LECTED IN THE BALANCE SHEET OF SHRI BHAGWATI PRASAD RAJPUT, HUF. NOW, THE REVE NUE IS IN APPEAL BEFORE US. 7. THE LEARNED DR SUPPORTED THE ASSESSMENT ORDER, W HEREAS THE LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LEARNED CIT(A). IT WAS ALSO SUBMITTED THAT INDIVIDUAL CASH BOOK IS AVAILABLE AT PAGE NO.50-52 OF THE PAPER BOOK. RELIANCE WAS PLACED ON THE DECISION OF ITAT, AHMEDABAD IN THE CASE OF SHANKARBHIA KHODABHAI BHOI VS. CIT, 59 ITD 0364. I T WAS ALSO SUBMITTED THAT DEED EXECUTED ON STAMP OF RS.20/- IS VALID AND IN S UPPORT OF THIS CONTENTION, RELIANCE WAS PLACED ON THE ITAT, AHMEDABAD BENCHES DECISION RENDERED IN THE CASE OF SHRI LAXMANBHAI RAMBHAI JALU VS. ACIT VIDE ITA NO.4044/AHD/2008 DATED 31-5-2011. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AND THE DECISIONS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. WE FIND THAT BEFORE THE AO ALSO IN THE COURSE OF ASSESSMENT PROCEEDINGS, SUBMISSION WAS MADE THAT OUT OF DEPOSIT OF CASH IN BANK OF RS.28.90 LAKHS, AN AMOUN T OF RS.20 LAKHS WAS RECEIVED FROM SHRI BHAGWATI PRASAD RAJPUT (HUF) AND THE SAME WAS RECEIVED BY THAT HUF ON ACCOUNT OF AGREEMENT REGARDING SALE OF LAND SITUATED AT RAVIDASNAGAR, UTTAR PRADESH. THE RELEVANT DISCUSSI ON IN THE ASSESSMENT ORDER ON THIS ASPECT IS AT PARA NO.4.4 OF THE ASSESSMENT ORDER, WHICH IS REPRODUCED BELOW: 4.4 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSEE WAS REQUESTED TO FURNISH DETAILS AND EVIDENCES REGARDIN G THE SOURCE OF CREDIT SIDE OF THE DEPOSIT OF ABOVE AMOUNTS. IN RESPONSE T O THE SAME, THE ASSESSEE SUBMITTED THE CONFIRMATION SIGNED BY SHRI DHANSUKH B. RAJPUT AN AMOUNT OF RS.20,00,000/- AND IN THIS CONNECTION THE ASSESSEE ALSO FILED A COPY OF TWO AGREEMENTS MADE BETWEEN (I) SHR I DEVRAJ HARIMANGAL SINGH & SMT. CHANDRIKADEVI BHAYWATI PRAS AD RAJPUT AND SHRI BHAGWATI PRASAD RAJPUT (II) SHRI SUKHRAJ RAJBA HADUR SINGH & ITA NO.81 AND 82/AHD/2009 -6- BHAGWATI PRASAD RAJPUT. IT IS SEEN THAT THE SAID AG REEMENTS ON SALT AT LAND SITUATED AT RAMNAGAR VILLAGE, (BARBASPUR) TAL. BHADOHI (GNANPUR) JILLA.SANT RAVIDASNAGAR, UTTAR PRADESH. IT IS SEEN THAT THE SAID AGREEMENTS OF SALE OF LANDS ARE MADE ON RS.20/- STA MP PAPER EACH AND THE SAME ARE ALSO NOT FOUND TO BE AUTHENTICATED AND REGISTERED WITH THE SUB-REGISTRAR. AS PER THE SAID AGREEMENTS THE SO CALLED LANDS ARE PROPOSED TO BE SOLD AT A TOTAL CONSIDERATION OF RS. 25.50 LAKHS OUT OF WHICH RS.20 LAKHS IS CLAIMED TO HAVE BEAN GIVEN TO THE ASSESSEE. THE ASSESSEE HAS FURNISHED AGREEMENTS ENTERED BETWEEN ( I) SHRI DEVRAJ HARINANGAL SING, SMT. CHANDRIKADEVI BHAGWATI PRASAD RAJPUT AND SHRI BHAYWALI PRASAD RAJPUT (II) SHRI SUKHRAJ RAJBAHADUR SING, BHAGWATI PRASAD RAJPUT IN SUPPORT OF THIS TRANSACTION TO PRO VE THE SOURCE OF RS.20 LAKHS APPEARING IN THE BANK ACCOUNT. THE SAID AGRIC ULTURAL LANDS ARE CLAIMED TO BE BELONGING TO SMT. CHANDRIKADEVI AND S HRI BHAGWATI PRASAD. THE QUESTION THAT ARISES AT THIS STAGE IS W HAT COULD HE THE NATURE OF THE SUM RECEIVED BY THE ASSESSEE AND HOW THE SAI D AMOUNT HAS FOUND ITS WAY INTO THE BANK ACCOUNT OF THE ASSESSEE. AS P ER THE CONFIRMATION GIVEN BY SHRI DHANSURKH RAJPUT, LEGAL HEIR & ONE OF THE MEMBER OF BHAGWATI PRASAD THAKORE HUF THAT THE SAID LAND BELO NGED TO THE HUF STATUS OF LATE SHRI BHAGVATIPRASAD. HOWEVER, ON VE RIFICATION OF THE RETURN OF INCOME FILED BY SHRI BHAGVATI PRASAD RAJP UT ( HUF) ASSESSED WITH THIS WARD, IT IS SEEN THAT TINE SALE PROCEEDS RECEIVED FROM THE SALE OF LAND ARE NOT REFLECTED IN THE SAID RETURN. THE ASSE SSMENT OF SHRI BHAGVATI PRASAD HUF FOR A.Y. 2005-06 HAS BEEN FINALIZED BY T HIS WARD VIDE ORDER U/S 143(1) ON 28.11.2007 AND IT IS SEEN THAT NO DET AILS REGARDING THE SALE TRANSACTION OF THE AGRICULTURAL LAND IS FURNISHED B EFORE THE A.O. AL THE ASSESSMENT STAGE. THE ABOVE FACTS WERE BROUGHT TO T HE KNOWLEDGE OF THE ASSESSEE'S A.R. DISCUSSED DURING THE ASSESSMENT PRO CEEDINGS ON 17.12.2007. IN THIS REGARD ASSESSEE HAS FAILED FURN ISH THE DETAILS IN SUPPORT OF CREDIT ENTRIES IN THE BANK. AND ASSESSEE NEITHER APPEARED NOR FURNISHED ANY DETAILS OR EVIDENCES IN SUPPORT OF HI S CLAIM. THIS SHOWS THAT THE ASSESSEE HAS NO DETAILS OR EVIDENCE TO FUR NISH IN SUPPORT OF HIS CLAIM. AS DISCUSSED ABOVE THE FURNISHING OF CONFIRM ATION AND COPY OF SALE AGREEMENT OF LAND IS NOTHING BUT A COOKED UP S TORY BY THE ASSESSEE. THE FACTS AS DISCUSSED ABOVE CLEARLY PROVE THAT THE ASSESSEE HAS CREDITED IN THE BANK AN AMOUNTING TO RS.28,90,000/-IN CASH T HROUGH SOME OTHER UNEXPLAINED SOURCE AND IN ORDER TO GIVE IT A COLOUR OF GENUINENESS HE HAS COME OUT WITH THE THEORY OF MONEY HAVING BEEN RECEI VED OUT OF THE SALE PROCEEDS OF AGRICULTURAL LAND. HOWEVER, THE ASSESSE E HAS FAILED MISERABLY IN HIS ATTEMPT AND THE DOCUMENTS FURNISHE D ON RECORD CLEARLY I1RUVE OTHERWISE. THE SO-CALLED PROPERTY FOR WHICH SALE CONSIDERATION CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE NEVER APPEARED IN THE BALANCE SHEET OF SMT.CHANDRADEVI BHAGWATIPRASAD RAJ PUT AND BHAGWATI PRASAD RAJPUT. FROM THE ASSESSMENT RECORDS OF SMT.C HANDRADEVI RAJPUT AND BHAGWATI PRASAD RAJPUT, BOTH ARE ASSESSED WITH THIS WARD. IT IS SEEN ITA NO.81 AND 82/AHD/2009 -7- THAT NO SUCH LANDS HAVE BEEN APPEARED IN THEIR BALA NCE SHEET. IT IS ALSO PERTINENT TO NOTE HERE THAT NO ADVANCE / CASH RECEI PTS AGAINST PROPOSED SALE OF LAND HAD REFLECTED IN THE CASHBOOK OF SMT. CHANDRADEVI RAJPUT AND BHAGWATI PRASAD RAJPUT. MORE OVER SMT. CHANDRAD EVI RAJPUT AND BHAGWATI PRASAD RAJPUT HAVE FAILED TO FURNISH THE D ETAILS OF OWNERSHIP OF LANDS AND DATE OF ORIGINAL ACQUISITION. FROM THI S, IT IS CLEAR THAT SMT. CHANDRADEVI RAJPUT AND SHRI BHAGWATI PRASAD RAJPUT MISERABLY FAILED TO ESTABLISH THAT THEY WERE HOLDING SUCH LANDS. FUR THER IT IS ALSO SEEN THAT SMT.CHANDRADEVI IS NOT CONFIRMED THE TRANSACTION. I N VIEW OF THE ABOVE, THE CREDIT OF RS.28,90,000/- APPEARING IN THE BANK ACCOUNT ON THE CREDIT SIDE IN WHICH NO EXPLANATION WAS FILED BY THE ASSES SEE IS HELD TO BE BOGUS AND UNEXPLAINED CASH CREDIT U/S.68 OF THE INCOME-TA X ACT, 1961 AND THE SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S. 271(1) (C) IS ALSO INITIATED FOR CONCEALMENT O F INCOME AND FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ABOVE DISCUSSION IN THE ASSESSMENT ORDER GOES T O SHOW THAT ALTHOUGH CASH DEPOSITS IN BANK ACCOUNT HAS BEEN EXPLAINED BEING C ASH RECEIVED FROM SHRI BHAGVATIPRASAD RAJPUT (HUF), BUT AS PER THE RETURN OF INCOME FILED BY THAT HUF, IT WAS FOUND BY THE AO THAT IN THE RETURN OF I NCOME OF THAT HUF NO SALE PROCEEDS WAS DECLARED. BEFORE THE LEARNED CIT(A), IT WAS A SUBMISSION THAT THE AGREEMENT TO SELL WAS AS PER THE SATAKHAT WHICH W AS PLACED ON RECORD, BUT THE SALE WAS NOT COMPLETED AND FOR THIS REASON, THERE W AS NO SALE DEED AND THERE WAS NO AMOUNT DECLARED IN THE RETURN OF INCOME FILE D BY THE HUF. THE DECISION OF THE LEARNED CIT(A) IS ON THE BASIS THAT SINCE THERE IS AGREEMENT TO SELL, THE SOURCE OF CASH DEPOSIT TO THE EXTENT OF R S.20 LAKH IS EXPLAINED. REGARDING THE BALANCE AMOUNT OF CASH DEPOSIT OF RS. 8.90 LAKHS, THE LEARNED CIT(A) HAS MERELY STATED THAT THIS CASH DEPOSIT IS EXPLAINED BEING OUT OF CASH ON HAND OF THE ASSESSEE AT DIFFERENT POINT OF TIME, WHICH HAS BEEN DULY RECORDED IN THE ASSESSEES CASH BOOK. UNDER THESE CIRCUMSTA NCES, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER OF THE LEARNED CI T(A) IS NOT SUSTAINABLE BECAUSE MERELY ON THIS BASIS THAT THE BIGGER HUF OF ASSESSEE WAS POSSESSING A LAND AND THEY HAVE TAKEN ON RECORD AN AGREEMENT TO SELL WHICH NEVER TOOK PLACE AND CLAIM OF SUCH SALE IS WITHOUT SHOWING CREDIT-WO RTHINESS OF ALLEGED BUYER OF LAND, AS PER THE SAID AGREEMENT OF SALE AND HENCE, THE CASH DEPOSIT BY THE ASSESSEE IN BANK ACCOUNT CANNOT BE ACCEPTED AS EXPL AINED. IT IS ALSO WORTH TO ITA NO.81 AND 82/AHD/2009 -8- NOTE THAT AS PER THIS AGREEMENT TO SELL, THERE IS A CLAUSE THAT IF THE BALANCE AMOUNT IS NOT PAID THEN THE ADVANCE AMOUNT WOULD BE FORFEITED. BUT EVEN AFTER FULL PAYMENT MADE BY THE PURCHASER, THE REGISTRATIO N OF THE TRANSACTION IS NOT DONE, THE ADVANCE WAS NOT REFUNDED. THIS IS AGAINS T THE NORMAL BEHAVIOR. CONSIDERING THE FACTS IN THE PRESENT CASE IN ITS EN TIRETY, THE PURPORTED AGREEMENT FOR SALE DOES NOT INSPIRE CONFIDENCE AND IT DOES NO T EXPLAIN THE SOURCE OF CASH. THIS FACT IS VERY SURPRISING THAT THE DATE OF AGREE MENT TO SELL IS 6-12-2004, BUT THE DATES OF CASH ADVANCE ARE MUCH EARLIER FIRST DATE IS 2-4-2004 AND SECOND DATE IS 10-4-2004, THIRD DATE IS 15-6-2004 AND FOUR TH DATE IS 19-6-2004. IT IS ALSO AGAINST NORMAL BEHAVIOR BECAUSE ANYBODY PAYING CASH AS ADVANCE FOR PURCHASE OF LAND WILL FIRST ENTER INTO AN AGREEMENT AND THEN ONLY HE WILL PAY CASH AND OBTAIN RECEIPT. REGARDING BALANCE AMOUNT OF CASH DEPOSITS, THERE IS NO CLEAR FINDING OF THE LEARNED CIT(A) AND HE SIMPL Y STATED THAT FOR THE REMAINING DEPOSITS, IT WAS EXPLAINED THAT THE SAME REPRESENTED THE CASH IN HAND OF THE ASSESSEE AT DIFFERENT POINT OF TIME WHICH HA S BEEN DULY RECORDED IN THE ASSESSEES CASH BOOK WITHOUT GIVING CLEAR FINDING A S TO WHAT WAS THE SOURCE OF SUCH CASH IN HAND. SIMPLY BECAUSE OF SOME ENTRIES IN COMPUTERISED CASH BOOK, IT CANNOT BE ACCEPTED AS SOURCE OF CASH UNLESS SUCH ENTRIES IN THE CASH BOOK ARE DULY SUPPORTED BY COGENT MATERIAL. IN THE PRESENT CASE, THIS WAS NOT DONE AND HENCE, WE FEEL THAT THE ORDER OF THE LEARNED CIT(A) IS NOT SUSTAINABLE. WE, THEREFORE, REVERSE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THAT OF THE AO. 9. IN THE RESULT, THIS APPEAL OF THE REVENUE IS ALL OWED. 10. NOW, WE TAKE UP THE APPEAL OF THE REVENUE IN TH E CASE OF SHRI BHAGWATI PRASAD S. RAJPUT (HUF) ITA NO.82/AHD/2009. 11. THE BRIEF FACTS AS NOTED IN PARA-4 OF THE ASSES SMENT ORDER IS THAT THE ASSESSEE HAS DEPOSITED AN AMOUNT OF RS.8.50 LAKHS I N BANK ACCOUNT OUT OF WHICH RS.4 LAKHS WERE DEPOSITED IN CASH ON 1-3-2005 , RS.2.50 LAKHS DEPOSITED ON 30.03.2005 AND THERE WAS FURTHER DEPOSIT OF RS.2 .00 LAKHS WHICH WAS BY ITA NO.81 AND 82/AHD/2009 -9- WAY CLEARING ON 9-10-2004. REGARDING TWO CASH DEPO SITS TOTALING TO RS.6.50 LAKHS, THE ADDITION WAS MADE BY THE AO BY INVOKING THE PROVISIONS OF SECTION 68, BUT THE ADDITION MADE BY THE AO HAS BEEN DELETE D BY THE LEARNED CIT(A), AND NOW, THE REVENUE IS IN APPEAL BEFORE US. 12. THE LEARNED DR SUPPORTED THE ASSESSMENT ORDER, WHEREAS, THE LEARNED AR SUPPORTED THE ORDER OF THE CIT(A). IT IS ALSO S UBMITTED THAT PAGE NO.10 OF THE PAPER BOOK IS A LETTER DATED 25-6-2008 SUBMITTE D BY THE ASSESSEE BEFORE THE LEARNED CIT(A) AND AS PER PARA-3 OF THIS LETTER, IT WAS EXPLAINED THAT THIS ADDITION OF RS.6.50 LAKHS WAS MADE BY THE AO IN RES PECT OF ADVANCES MADE TO MR.B.S.RAJPUT, PREMSHILA J. THAKOR AND MRS. INDIRAD EVI J. THAKOR. 13. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS ADDITION WAS DELETED BY THE LEARNED CIT(A) ON THE BASIS THAT THE HUF HAS RECEIVED ADVAN CE AGAINST THE PROPOSED SALE OF LAND OWNED BY THE HUF. WE HAVE ALREADY DIS CUSSED AND DECIDED IN THE CASE OF INDIVIDUAL THAT THE RECEIPT OF ADVANCE AGAI NST THE PROPOSED SALE OF THE LAND BY THIS HUF IS NOT CONVINCING BECAUSE IT IS NO T SUPPORTED BY THE IDENTITY AND CREDIT-WORTHINESS OF THE ALLEGED BUYER OF THE L AND, WHO HAS GIVEN ADVANCES AND THAT TOO, MUCH BEFORE THE PURPORTED AGREEMENT O F SALE AND THEREFORE, IN THIS CASE ALSO, THE ORDER OF THE LEARNED CIT(A) IS NOT S USTAINABLE FOR THE SAME REASONS FOR WHICH, THE ORDER OF THE LEARNED CIT(A) WAS REVERSED IN THE CASE OF INDIVIDUAL. REGARDING THE DECISION OF THE TRIBUNAL CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE BEING RENDERED IN THE CASE OF SHAN KARBHAI KHODABHAI BHOI VS. CIT (SUPRA), WE FIND THAT THIS DECISION IS OF NO HE LP TO THE ASSESSEE IN THE PRESENT CASE, BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, IT WAS STATED BY EIGHT PERSONS AND THREE LADIES ON AFFIDAVIT THAT THEY HAV E GIVEN THE CASH AND JEWELLERY ETC. TO THE FATHER-IN-LAW OF THE ASSESSEE FOR SAFE CUSTODY BECAUSE OF COMMUNAL DISTURBANCES IN THEIR LOCALITY AND IN TURN , THE FATHER-IN-LAW OF THE ASSESSEE GAVE SUCH CASH AND JEWELLERY TO THE ASSESS EE FOR SAFE CUSTODY BECAUSE THE ASSESSEE WAS A MOTOR MECHANIC WITH ONGC. IN TH E PRESENT CASE, IN SUPPORT ITA NO.81 AND 82/AHD/2009 -10- OF THE CASH DEPOSITS BY THE ASSESSEE IN BANK, THE A SSESSEE HAS SUBMITTED ONLY AGREEMENT TO SELL OF THE LAND WITHOUT ESTABLISHING THE IDENTITY AND CREDIT- WORTHINESS OF THE ALLEGED BUYER, AND THEREFORE, THE TRIBUNAL DECISION IS NOT APPLICABLE TO THE PRESENT CASE. REGARDING SECOND D ECISION OF THE TRIBUNAL RELIED ON BY THE LEARNED AR IN SUPPORT OF HIS CONTE NTION THAT THE AGREEMENT ON STAMP PAPER OF RS.20/- IS VALID, WE FEEL THAT WE AR E NOT PROCEEDING ON THIS BASIS AS TO WHETHER THE AGREEMENT IS VALID OR NOT FOR THE REASON THAT IT IS EXECUTED ON STAMP PAPER OF RS.20/-. WE PROCEEDED ON THE BASIS THAT THE ASSESSEE COULD NOT ESTABLISH THE IDENTITY AND CREDIT-WORTHINESS OF THE ALLEGED BUYER AND SUCH AGREEMENT TO SELL IS AGAINST THE NORMAL HUMAN BEHAV IOR BECAUSE THIS CLAIM OF ADVANCES IN CASH WAS GIVEN ON VARIOUS DATES, WHICH ARE MUCH PRIOR TO THE SAID AGREEMENT TO SELL STATED TO BE EXECUTED ON 6-12-200 4. HENCE, BOTH THE TRIBUNAL DECISIONS CITED BY THE LEARNED AR ARE OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. IN THE FACTS OF THE PRESENT CASE, WE HOLD TH AT THE ORDER OF THE LEARNED CIT(A) IS NOT SUSTAINABLE AND WE THEREFORE, REVERSE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THAT OF THE AO. 14. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE S ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- D.K. TYAGI (JUDICIAL MEMBER) A.K. GARODIA (ACCOUNTANT MEMBER) C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD