Shri Ramesh Bhandari, Nani Daman V. The ACIT.,Cent.Circle-3, Surat

ITSSA 103/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2342 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 09-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY AGARWAL HEARING CONCLUD
• Assessee Lawyers: SHAH
• Keywords: Document seized; Corroborative evidences; Documents seized
• Section: 143(3); 153A

Judgement Text

I T(SS)A NO.: 103/AHD/2012 ASSESSMENT YEARS: 2003 - 04 PA GE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] IT (SS) A NO. : 103/AHD/2012 ASSESSMENT YEAR S: 2003 - 04 RAMESH BHANDARI ` ............APPELLANT [PAN:ABHPB3346C ] VS ASSISTANT COMMISSIONER OF INCOME TAX CENTR AL CIRCLE 3, SURAT ...........RESPONDENT APPEARANCES BY M R SHAH FOR THE APPELLANT SANJAY AGARWAL FOR THE RESPONDENT HEARING CONCLUDED ON: 0 2 /0 6 /16 ORDER PRONOUNCED ON : 16 /08/16 O R D E R 1. THIS APPEAL, FILED BY THE ASSESSEE, IS DIRECTED AGAINST THE ORDER DATED 9 TH FEBRUARY 2011 PASSED BY THE CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2003 - 04 . 2. GRIEVANCE OF THE ASSESSEE IS THAT ON THE FACTS AND IN THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED OPENING CASH BALANCE OF RS 2,00,000 . 3. THE RELEVANT MATERIAL FACTS ARE AS FOLLOWS. THE BUSINESS AND RESI DENTIAL PREMISES OF THE ASSESSEE WAS SUBJECTED TO SEARCH ACTION UNDER SECTION 132, AND IT WAS IN THIS BACKDROP THAT THE ASSESSEE WAS CALLED UPON TO FILE THE RETURN UNDER SECTION 132A. WHEN THE RETURN SO FILED CAME UP FOR SCRUTINY BY THE ASSESSING OFFICER, HE NOTED THAT WHILE THE ASSESSEE HAS SHOWN AN OPENING CASH BALANCE OF RS 2,35,841, THE SAME REMAINS I T(SS)A NO.: 103/AHD/2012 ASSESSMENT YEARS: 2003 - 04 PA GE 2 OF 3 UNSUBSTANTIATED BY ANY DIRECT OR CORROBORATIVE EVIDENCE. IT WAS ALSO NOTED THAT THE ASSESSEE HAS, FROM TIME TO TIME, MADE SMALL BANK WITHDRAWALS, AND THAT THE STATEMENT OF ASSETS FOR AY 2004 - 05, 2005 - 06 AND 2006 - 07, WHICH WERE FOUND DURING THE SEARCH CARRIED OUT, SHOWED MODEST AMOUNTS OF RS 30,892, RS 18,610 AND RS 1,173 AS CASH BALANCES IN HAND . THE ASSESSEE S EXPLANATION THAT THIS AMOUNT WAS KEPT IN HOME T O MEET ANY MEDICAL EMERGENCY, PARTICULARLY IN THE LIGHT OF ASSESSEE S HEART AILMENT, WAS REJECTED. THE AO HELD THAT NO MORE THAN AN AMOUNT OF RS 35,841 COULD BE TAKEN AS OPENING CASH BALANCE. THE BALANCE AMOUNT OF RS 2,00,000 WAS ADDED TO THE INCOME OF THE ASSESSEE. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NOT SATISFIED AND IS IN APPEAL BEFORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FAC TS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. I HAVE NOTICED THAT, IN A VERY DETAILED ORDER, LEARNED CIT(A) HAS GIVEN AN ANALYSIS OF CASH WITH D R A WALS AND OTHER TRANSACTIONS FROM THE BANKS IN THE LAST THREE YEARS AND THIS IS CLEAR THAT AN OPENING CASH BALANCE OF RS 2,35,841 IS BEYOND THE PREPONDERANCE OF PROBABILITIES. IN ANY CASE, THE SMALL BANK WITHDRAWALS, AND LIMITED MEANS OF THE ASSESSEE, DONOT INSPIRE ANY FAITH IN THE CLAIM ABOUT HUGE OPENING CASH BALANCE. NO OTHER MATERIAL OR CORR OBORATIVE EVIDENCES ARE PRODUCED IN SUPPORT OF THIS OPENING BALANCE BEFORE ANY OF THE AUTHORITIES BELOW. IN THE ABSENCE OF ANY CONTEMPORANEOUS EVIDENCE HAVING BEEN LED BEFORE THE AUTHORITIES BELOW, THERE WERE GOOD REASONS TO DECLINE THIS OPENING BALANCE OF RS 2,35,841 HAVING BEEN ACCEPTED ONLY TO THE EXTENT OF RS 35,841 - PARTICULARLY IN THE LIGHT OF THE SEIZED DOCUMENTS WHICH SHOWED THE CASH BALANCES OF RS 30,892, RS 18,610 AND RS 1,173 FOR THREE SUBSEQUENT YEARS. EVEN THOUGH THE AO MAY NOT HAVE REJECTED TH E CASH BOOK, IT DOES NOT MEAN THAT OPENING BALANCE, IN THE ABSENCE OF SUPPORTING EVIDENCE, IS REQUIRED TO BE ACCEPTED WITHOUT QUESTIONING. I, THEREFORE, APPROVE THE CONCLUSIONS ARRIVED AT BY THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. I T(SS)A NO.: 103/AHD/2012 ASSESSMENT YEARS: 2003 - 04 PA GE 3 OF 3 7 . I N THE RESULT, T HE APPEAL IS DISMISSED . PRONOUNCED IN THE OPEN COURT TODAY ON 16 TH DAY OF AUGUST, 2016. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: 16 TH DAY OF AUGUST ,2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD