SHRI SACHIDANAND PRASAD SINGH, Indore V. THE ACIT-4(1), Indore

ITA 854/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5649 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHMD JAVED
• Assessee Lawyers: S N AGARWAL; PANKAJ MOGRA CAS
• Section: 131; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , ' BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI SACHIDANAND PRASAD SINGH B43, SHIVDHAM COLONY KHANDWA ROAD INDORE VS. ACIT 4(1) INDORE / APPELLANT / RESPONDENT . . ./ PAN:BCIPS 6672 M / APPELLANT BY SHRI S N AGARWAL & SHRI PANKAJ MOGRA CA`S / RESPONDENT BY SHRI MOHMD. JAVED, SR. (DR) / DATE OF HEARING 20.10.2016 / DATE OF PRONOUNCEMENT 07.11.2016 / O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-22, HOLDING CONCURRENT JURISDICTION O F CIT (A)-2, INDORE DATED 17.06.2016 FOR THE ASSESSMENT YEAR 2011-12. THE ASS ESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: . . ./ I.T.A. NO. 854/IND/2016 '$ $ / ASSESSMENT YEAR:2011-2 PAGE 2 OF 5 1] THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT (A) ERRED IN MAINTAINING ADDITION OF RS.3,64,000/- TO THE INC OME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT IN RESPECT OF AMOUNT DEPOSITE D IN HIS ICICI BANK ACCOUNT WITHOUT APPRECIATING THE PROPER FACTS OF THE CASE A ND SUBMISSION MADE BEFORE HIM. 2] THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT (A) ERRED IN MAINTAINING OF ADDITION OF RS.6,51,000/- TO THE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT IN RESPECT OF AMOUNT DE POSITED IN HIS INDUSIND BANK ACCOUNT WITHOUT APPRECIATING THE PROPER FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM. 2. BOTH GROUNDS OF APPEAL ARE BEING CONSIDER TOGETHER . 3. BRIEFLY, STATED FACTS OF THE CASE ARE THAT, THE ASS ESSEE, INDIVIDUAL A SALARIED PERSON HAS SHOWN CASH DEPOSITS OF RS.3,64,000/-BETWEEN 27.04.2 010 TO 30.10.2010 WITH ICICI BANK. THE SOURCE OF WHICH CLAIMED TO BE CASH OF RS. 3,85,000/- RECEIVED FROM HIS FATHER. THE AO EXAMINED ON OATH TO THE ASSESSEE WHE REIN THE ASSESSEE HAS ADMITTED THAT HE IS UNABLE TO EXPLAIN THE SOURCE OF CASH DE POSITS, HENCE, HE SURRENDERED THE SAME FOR TAXATION WITH A RIDER THAT PENALTY AND PR OSECUTION WILL BE WAIVED OFF. HOWEVER, THE AO ADDED THE SAME AND INITIATED PENALT Y PROCEEDING. IN APPEAL, BEFORE THE CIT (A) SAME EXPLANATION WAS OFFERED, BUT IT WA S NOT FOUND ACCEPTABLE. HENCE, ADDITION WAS CONFIRMED. THE AO FURTHER FOUND THAT T HE ASSESSEE HAS ALSO CASH DEPOSITS OF RS. 6,51,000/- WITH INDUSIND BANK BETWE EN THE PERIOD FROM 03.04.2010 TO 23.08.2010. THE AO REQUIRED TO THE ASSESSEE TO EXPL AIN THE SOURCE OF THE SAME BUT PAGE 3 OF 5 THE ASSESSEE HAS FAILED FILED ANY EXPLANATION EVEN AFTER ALLOWING TWO OPPORTUNITY OF BEING; HEARD TO THE ASSESSEE. THEREFORE, SAME WAS A DDED TO TOTAL INCOME. DURING APPELLATE PROCEEDINGS, IT WAS CLAIMED THAT CASH DEP OSITS IS OUT OF CASH IN HAND. THE ASSESSEE HAS FURNISHED A CASH FLOW STATEMENT IN WHI CH OPENING CAPITAL CASH BALANCE WAS SHOWN AT RS. 8,01,000/- ON ASSUMPTION BASIS WIT HOUT ANY EVIDENCE. THE CIT (A) OBSERVED THAT IF OPENING CASH BALANCE IS EXCLUDED, THEN THERE COMES NEGATIVE BALANCE OF RS. 7.86 LAKHS ON 23.08.2010. EVEN SET O FF ALL WITHDRAWAL FROM ALL BANK ACCOUNT IS GIVEN AGAINST DEPOSITS; THERE WOULD BE S TILL A NEGATIVE BALANCE OF RS. 4.22 LAKH AGAINST THE ADDITION OF RS. 6.51 LAKHS. THE AS SESSEE IS SALARIED EMPLOYEE AND HIS YEARLY HOUSEHOLD WITHDRAWAL WOULD BE AT RS. 6 LAKH THEREFORE, LD. CIT (A) DID NOT ACCEPT THE HEAVY ROTATION OF FUND AND UPHELD THE AC TION OF THE A.O. 4. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. BEFORE US IT WAS CLAIMED THAT THE SURRENDER OF RS. 3.64 LAKH WAS MAD E AS NO PENALTY PROCEEDING AND PROSECUTION PROCEEDING WOULD BE UNDER TAKEN. HOWEVE R, THE AO HAS BREACHED THE TRUST, THEREFORE, ADDITIONAL INCOME AS ACCEPTED IN NOT BINDING UPON THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE AO HAD GROSSLY E RRED IN NOT ALLOWING CREDIT OF CASH AS AVAILABLE IN THE HANDS OF THE ASSESSEE. THE AO W AS NOT JUSTIFIED IN NOT ALLOWING CREDIT OF CASH WITHDRAWAL FROM DIFFERENT BANK ACCOU NT OF THE ASSESSEE AND CASH AVAILABLE WITH TEMPORARY ADVANCES FROM FRIENDS/RELA TIVES AND CHEQUES RECEIVED. THE LD. AR FILED A CHART OF SUCH ADVANCES/CASH FLOW STA TEMENT WHICH IS PLACED AT PAGE 7 OF PAPER BOOK AND DETAILS OF ADVANCES PLACED IN WRITTE N SUBMISSIONS. THE LD. AR ALSO FILED CASH FLOW STATEMENT TO EXPLAIN THE CASH DEPOS ITS OF RS. 6.51 LAKH. PAGE 4 OF 5 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES, AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS CLAIMED SOURCE OF CASH DEPOSITS OF RS. 3.64 AS RECEIVED FROM FATHER BUT COULD NOT EXPLAIN HENCE ACCEPTED THE SAME AS HIS ADDITIONAL I NCOME BEFORE THE AO IN HIS STATEMENT RECORDED U/S. 131 OF THE ACT. HENCE, THE ADDITION ON THIS ACCOUNT IS CONFIRMED. THUS, GROUND NO.1 IS DISMISSED. AS REGAR DS CASH DEPOSITS OF RS. 6.51 LAKH WITH INDUSIND BANK, WE FIND THAT THE ASSESSEE NOT F ILED CASH FLOW STATEMENT BEFORE THE AO. THE CASH FLOW STATEMENT FILED BEFORE THE LD . CIT (A). HOWEVER, THE CREDIT OF CASH WITHDRAWAL FROM VARIOUS BANK ACCOUNT AND CASH RECEIVED FROM FRIENDS AND RELATIVES AND STAFF AS TEMPORARY ADVANCES WERE NOT TAKEN IN TO ACCOUNT. WE THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY REMIT BACK THIS ISSUE TO THE FILE OF THE AO FOR FRESH EXAMINATION AS DENOVO AFTER ALLOWING O PPORTUNITY OF BEING HEARD. IN VIEW OF THESE FACTS, GROUND NO. 2 IS, PARTLY ALLOWE D FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.20 16 SD/- SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER $ / DATED : 7TH NOVEMBER, 2016. PAGE 5 OF 5