Shri Dharmesh Mohanbhai Gohil, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 999/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9891 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 29-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N P PATEL
• Keywords: Peak credit; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ ITA NO. 999/AHD/2013 / ASSESSMENT YEAR : 2009-10 DHARMESH MOHANBHAI GOHIL, B-130, SHANTILAL SOCIETY, HIRA BAUG, VARACHHA ROAD, SURAT PAN : AEJPG 3777 P VS ITO, WARD 9 (1), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI N.P. PATEL, SR. DR / DATE OF HEARING : 29/11/2016 / DATE OF PRONOUNCEMENT: 30/11/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT DATED 22.02.2013 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.29,09,500/- BEING THE CASH DEPOSITS IN THE BANK ACCOUNT IN AS M UCH AS THE ASSESSEE HAS EXPLAINED THE GENUINENESS OF THE CASH DEPOSITS. 2. THE APPELLANT SAYS AND SUBMITS THAT THE AO HAS MADE ADDITION PEAK CASH CREDIT AND THAT THE LEARNED CIT(A) IGNORED THE PEAK CASH CREDIT AND CONFIRMED THE ADDITION OF ENTIRE CASH DEPOSIT. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND ON THE VERIFICATION ON TH E BANK STATEMENT THAT THE ASSESSEE HAS DEPOSITED CASH IN BANK OF BARODA, CITY LIGHT BRANCH, SURAT ON VARIOUS DATES AMOUNTING TO RS.29,09,500/-. THE ASSESSEE SUBMITTED THAT THE CASH DEPOSIT IN THE BANK REPRESENTS DEPOSIT OF AGRICULTURE INCOME OF ASSESSEE, RELATIVES AND ALSO HAS DEPOSITED HIS BUSINESS INCOM E FROM TIME TO TIME. THE SMC-ITA NO 999/AHD/2013 DHARMESH MOHANBHAI GOHIL VS. ITO AY : 2009-2010 2 CONTENTION OF THE ASSESSEE WAS REJECTED AND THE ADD ITION ON ACCOUNT OF PEAK CREDIT OF RS.10,01,297/- WAS ADDED TO THE TOTAL INC OME. 3.1 UPON ASSESSEES APPEAL, THE LD. CIT(A) HAS VERY ELABORATELY CONSIDERED THE ISSUE AND EXAMINED THE ASSESSEES SU BMISSIONS. THE LD. CIT(A) INTER ALIA OBSERVED AS UNDER:- 6.2.10 THE APPELLANTS SUBMISSION THAT THE DEPOSI TS IN THE BANK A/CS WERE MADE OUT OF SALE PROCEEDS OF AGRICULTURE LAND AND N O ACCOUNTS WERE MAINTAINED IS NOT SUPPORTED BY ANY PROOF OR DOCUMEN TARY EVIDENCE. THE BURDEN OF PROOF LIES ON THE APPELLANT TO SUPPORT HI S CONTENTION THAT THE EXPLANATION REGARDING SOURCE OF DEPOSITS. THE PRIM ARY ONUS IS ON THE APPELLANT TO PROVE THE SOURCE OF CASH DEPOSITS SUPP ORTED WITH EVIDENCES. MERE FILING OF CONFIRMATORY LETTERS AND SOME FABRIC ATED BILLS DOES NOT HELP THE CASE OF THE APPELLANT. THE EVIDENCES PRODUCED BY T HE APPELLANT HAVE NO EVIDENTIARY VALUE FOR THE REASONS DISCUSSED IN AFOR ESAID PARAS. 3.2 THE LD. CIT(A) ALSO REFERRED TO SEVERAL CASE LA WS INCLUDING THAT OF HONBLE APEX COURT IN THE CASE OF CIT VS. DURGA PRA SAD MORE, REPORTED IN [1971] 82 ITR 540, AND CONCLUDED AS UNDER:- 6.3.5 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCE S, THE APPELLANT HAS NOT BEEN ABLE TO PROVE THE SOURCE OF THE CASH DEPOSIT I N THE BANK ACCOUNT. THE SUBMISSIONS AND THE EVIDENCES PRODUCED BY THE APPEL LANT HAVE BEEN FOUND TO HAVE BEEN FABRICATED AND FORGED FOR A MAKE BELIEVE ARRANGEMENT. HENCE, HE ENTIRE CASH DEPOSIT OF RS.29,09,500/- IS BEING TREA TED AS UNDISCLOSED AND ADDED TO THE INCOME OF THE APPELLANT. THE ADDITION MADE BY THE AO IN THE ASSESSMENT ORDER OF RS.10,01,297/- ON ACCOUNT OF PE AK CREDIT IS BEING ENHANCED TO RS.29,09,500/- UNDER THE PROVISIONS OF SECTION 251(1) RWS 251(2) OF THE ACT. THE AO IS BEING DIRECTED TO ISS UE THE DEMAND NOTICE ACCORDINGLY. 3.3 AGAINST THE SAID ORDER OF THE CIT(A), THE ASSES SEE IS NOW IN APPEAL BEFORE ITAT. 4. I HAVE HEARD THE LD. DR. NONE APPEARED ON BEHAL F OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OPINION, THE MATTER CAN B E DISPOSED OF BY HEARING LD. DR AND PERUSING THE RECORD. UPON CAREF UL CONSIDERATION, I FIND THAT THE LD. CIT(A) PASSED A CORRECT ORDER. HE HAS ANALYZED THE ASSESSEES SMC-ITA NO 999/AHD/2013 DHARMESH MOHANBHAI GOHIL VS. ITO AY : 2009-2010 3 SUBMISSIONS IN DETAIL. HE HAS GIVEN A FINDING THAT THE ASSESSEES CLAIM THAT THE UNDISCLOSED CASH DEPOSIT IN BANK ACCOUNT WAS AG RICULTURAL INCOME DERIVED BY THE ASSESSEE AND HIS RELATIVE WAS DEVOID OF COGENCY. THE ASSESSEE HAS FAILED TO COGENTLY PROVE HIS CLAIM. IN THESE CIRCUMSTANCES, THE INFERENCES DRAWN BY THE LD. CIT(A) ARE REASONABLE A ND HAVE SUPPORT OF CASE LAWS REFERRED TO BY THE LD. CIT(A) IN HIS APPELLATE ORDER. IN THESE CIRCUMSTANCES, I DO NOT FIND ANY INFIRMITY IN THE O RDER OF THE LD. CIT(A); ACCORDINGLY, I UPHOLD THE SAME. 5. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SHAMIM YAHYA (ACCOUNTANT MEMBER) AHMEDABAD; DATED 30/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD