Ravi Mallick, Ludhiana V. DCIT, Ludhiana

MA 1/CHANDI/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3980 (ITAT-CHANDIGARH)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JATINDER KUMAR

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER M.A. NO. 1/CHD/2016 (IN ITA NO. 274/CHD/2013) ASSESSMENT YEAR : 2009-10 SH. RAVI MALLICK, VS. THE DCIT, CIRCLE III, PROP. S/S SUNKRAFT DESIGNS, LUDHIANA LUDHIANA PAN NO. ADLPM4822E (APPELLANT) (RESPONDENT) APPELLANT BY : SH. DEEPANSHU JAIN RESPONDENT BY : SH. JATINDER KUMAR DATE OF HEARING : 29.01.2016 DATE OF PRONOUNCEMENT : 03.02.2016 ORDER PER H.L.KARWA, VP THIS MISC. APPLICATION BY THE ASSESSEE ARISES OUT O F ORDER OF THE TRIBUNAL DATED 28.10.2015 PASSED IN ITA NO. 274/CHD/2013 REL ATING TO ASSESSMENT YEAR 2009-10. 2. FOR THE SAKE OF CONVENIENCE, WE WOULD LIKE TO RE PRODUCE THE CONTENTS OF THIS MISC. APPLICATION, WHICH ARE AS UNDER:- 2 SUBJECT:- MISCELLANEOUS PETITION IN APPEAL - ITA N O. 274/CHD/2013 - SH. RAVI MALLICK PROP. OF M/S. SUNKR AFT DESIGNS, 112 - B, NISHANT BAGH COLONY, VILL. BHATTI AM JALANDHAR BYE-PASS, LUDHIANA VS THE DCIT CIRCLE-III , LUDHIANA. ASSN. YEAR 2009-10. PAN: ADLPM-4822-E. RESPECTED SIR, THE APPEAL, AS REFERRED TO ABOVE, HAS BEEN DISPOSE D OF BY THE HONOURABLE TRIBUNAL, VIDE ITS ORDER DATED 28/10 /2015 AND A COPY OF THE ORDER SERVED ON THE APPELLANT ON 11.11.2015. IN THIS CONNECTION THE APPELLANT MOST RESPECTFULLY SUBMITS AS UNDER:- IN THE COURSE OF ASSESSMENT PROCEEDINGS THE LD. ASS ESSING OFFICER MADE AN ADDITION OF RS. 26,77,000/- TO THE TAXABLE INCOME ON ACCOUNT OF CASH DEPOSITS MADE BY THE APPE LLANT IN THE SAVING BANK ACCOUNT NO: 001701009213 JOINT W ITH HIS WIFE WITH ICICI BANK L TD, LUDHIANA DURING THE PERIOD 01.04.2008 TO 31.03.2009. WHILE MAKING THE SAID ADD ITION OF RS. 26,77,000/- HE COMPLETELY LOST SIGHT OF THE FACT THAT THERE HAD BEEN SEVERAL CASH WITHDRAWALS FROM THE BA NK ACCOUNT DURING THE SAME PERIOD WHICH AFTER A GAP OF FEW DAYS EACH HAD FOUND ITS WAY INTO THE SAME BANK ACCO UNT. THE ADDITION OF RS. 26,77,000/- MADE BY THE LD. ASS ESSING OFFICER WAS CHALLENGED IN APPEAL BEFORE LD C.I.T. (APPEALS)-II, LUDHIANA WHO VIDE HIS ORDER DATED 29.01.2013 IN APPEAL NO.L4/ROT/I.T./C.I.T-(A)-LL-LD H/LL- 12 PARTLY ALLOWED THE APPEAL AND GRANTED RELIEF OF RS. 14.42 LAKH ON ACCOUNT OF CASH WITHDRAWALS WHICH HAD BEEN RE DEPOSITED IN CASH INTO THE SAME BANK ACCOUNT. IN THE COURSE OF APPELLATE PROCEEDINGS THE APPELLAN T HAD SUBMITTED BEFORE THE LD C.I.T. (APPEAL) -II A CASHF LOW STATEMENT FOR THE IMMEDIATELY PRECEDING YEAR I.E. 01.04.2007 TO 31.03.2008, WHICH IS STRICTLY BASED O N CASH WITHDRAWALS AND CASH DEPOSITS IN THE SAME BANK ACCO UNT EXCEPT FOR THE OPENING CASH IN HAND OR RS. 1,10,00 0/- AS ON 01.04.2007 AND THREE AMOUNTS OF RS. 50000, RS. 5 0000/- 3 AND RS 30000/- AGGREGATING TO RS. 1,30,000/- RECEIV ED FROM HIS WIFE. IN THE CASH FLOW STATEMENT, AS REFERRED TO ABOVE, W HICH FORMS PART OF THE OFFICE RECORD OF THE LD. CIT(A)-I I THE CLOSING BALANCE OF CASH IN HAND AS ON 31.03.2008 HA S BEEN SHOWN AT RS. 6,22,000/- WHICH WAS THE OPENING CASH IN HAND ON 01.4.2008 WHICH DATE FALLS DURING THE PERVI OUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATIO N. THE ASSESSEE ONCE AGAIN CONFIRMS THAT BUT FOR THE FOUR ENTRIES OF CASH IN HAND AGGREGATING TO RS. 2,40,000/-, (1,1 0,000 + 50,000 + 50,000 + 30,000) THE BALANCE CASH IN HAND OF RS. 3,82,000/- IS EXCLUSIVELY ON ACCOUNT OF CASH WITHDR AWALS AND CASH DEPOSITS DURING THE FINANCIAL YEAR 01.04.2 007 TO 31.03.2008, IN THE BANK ACCOUNT. SO FAR AS THE CASH IN HAND OFRS.6, 22,000/- AS ON 31.03.2008 AS REFLECTED IN CASH FLOW STATEMENT IS CONCERNED, WHILE DECIDING THE APPEAL, VIDE PARA 4.6 OF THE ORDER THE LD. C.I.T. (APPEAL)-II HAS RECORDED A FIN DING OF FACT THAT NO SUCH REPLY WAS FILED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS TO CLAIM THE SOURCE OF DEPOS ITS IN BANK ACCOUNT AND THEREFORE THE CLAIM FILED DURING T HE APPELLANT PROCEEDINGS IS MERELY AN AFTERTHOUGHT. SECONDLY, AS SUBMITTED ABOVE, OUT OF THE CLOSING CA SH IN HAND OF RS. 6,22,000/- AS ON 31.03.2008 AN AMOUNT O F' 382000/- IS EXCLUSIVELY ON ACCOUNT OF CASH WITHDRAW ALS FROM THE SAME BANK ACCOUNT IN THE IMMEDIATELY PRECE DING YEAR. THIS IS ALSO A FACT WHICH IS CLEARLY EVIDENCE D BY THE RECORDS OF REPUTED ICICI BANK LTD. THE FACTS RELATI NG TO THE CASH DEPOSITS AND CASH WITHDRAWALS COULD UNDER NO CIRCUMSTANCES BE MANIPULATED, FABRICATED OR MISREPRESENTED IN ANY MANNER. FURTHER IN THE CASH FLOW STATEMENT FOR THE PERIOD F ROM 01.04.2008 TO 31.03.2009 THE APPELLANT HAS SHOWN TH E CASH RECEIPT OF RS. 6,20,000/- ON 07.08.2008 FROM HIS WI FE SMT. RITU MALLICK WHICH IN TURN WAS RECEIVED BY HER ON T HE SALE 4 OF HER LAND ON 06.08.2008 FOR RS 10,89,000/-. ON TH E SALE OF THIS HIND SHE HAD DECLARED SHORT TERM CAPITAL GA IN OF RS. 463800/- IN HER RETURN OF INCOME FOR THE ASSTT YEAR 2009-10 SUBMITTED ON 25.03.2010. IT IS OF COURSE, A FACT THAT THE CASH FLOW STATEMENT WAS NOT FILED BEFORE T HE LD. ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS BUT IT IS ALSO A HARD FACT THAT SHE HAD SOLD HERE PROPERTY ON 6.8.2008 FOR RS. 10,89,000/- ON WHICH SHORT TERM CA PITAL GAIN WAS DULY DISCLOSED IN HER RETURN OF INCOME. IN SPITE OF THE DOCUMENTARY EVIDENCE AVAILABLE ON RECORD TO THIS EFFECT IS AN IRONY OF FATE THE LD. CIT(A)-II HAS IG NORED THE RECEIPT OF CASH OF RS. 6 LAKH BY THE ASSESSEE, FRO M SMT. RITU MULLICK ON MERE SUSPICION THAT IT IS ONLY AN AFTERTHOUGHT. IN VIEW OF THESE SUBMISSIONS THE OBSERVATION OF TH E LD C.I.T. (APPEALS)-II THAT THE CASH FLOW STATEMENT IS ONLY AN AFTERTHOUGHT IS COMPLETELY DEVOID OF ALL MERITS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AT BEST, IT CAN BE I NFERRED THAT DURING THE ASSESSMENT PROCEEDINGS THE APPELLAN T THROUGH OVERSIGHT OR IGNORANCE COULD NOT BRING ON R ECORD THE CORRECT FACTS RELATING TO THE SOURCE OF CASH DE POSITS IN HIS BANK ACCOUNT AND UNDER NO CIRCUMSTANCES IT CAN EVER BE CONCLUDED THAT IT IS MERELY A AFTERTHOUGHT. IN THIS CONNECTION IT IS FURTHER SUBMITTED THAT THE LD. CIT(A)-II HAS NOT ALLOWED THE BENEFIT OF CLOSING CA SH IN HAND AS ON 31.3.2008 WHICH HAD MAINLY EMANATED FROM CASH WITHDRAWALS FROM HIS BANK ACCOUNT AND FINDING OF FACT TO THIS EFFECT HAS BEEN APPROVED BY THE HON'BLE TR IBUNAL CHANDIGARH. AS AGAINST THIS THE HON'BLE JURISDICTI ONAL HIGH COURT OF PUNJAB AND HARYANA IN THE CASE OF CIT, PATIALA V M./S GHUNNA RAM & SONS DECIDED IN I.T.C. NO. 35 OF 999 DATED 9.11.2010 ALLOWED THE APPEAL FOR THE ASSESSMENT YEAR 1984-85 BY HOLDING THE SOURCE OF CA SH DEPOSITS OF RS. 356,000/- AS ON 31.3.1984 OUT OF TH E AMOUNT DECLARED BY THE ASSESSEE UNDER AMNESTY SCHEME 1985 FOR THE ASSESSMENT YEAR 1976-77 AND 1977-78. 5 WHILE DELETING THE ADDITION OF RS. 356500/- THE HON OURABLE HIGH COURT HAD OBSERVED AS UNDER:- 'THERE IS NO DENYING THE FACT THAT THE APPELLANT FI RM DISCLOSED A SUM OF RS. 2,40,000/-- FOR THE ASSTT YE AR 1976- 77 AND A SUM OF RS. 350000/- FOR THE ASSTT. YEAR 19 77-78 UNDER THE AMENSTY SCHEME, 1985. THE NOTE APPENDED W ITH THE DISCLOSURE PETITION READ, 'IT IS UNDERSTOOD THA T THE AMOUNT OF RS. 3,50,000/- WAS AVAILABLE WITH THE FIRM/PARTNERS AS ON 31.03.1977 AND IN SUBSEQUENT YE ARS TILL TODAY'. THE AMOUNTS REFERRED TO SUPRA HAVE BEEN ASS ESSED AS PER THE DISCLOSURE OF CASH AVAILABLE WITH THE AP PELLANT, BY THE LD. ACIT FOR THE ASSN., YEAR 1976-77 VIDE OR DER DATED 31.05,1988, AND FOR THE ASSTT. YEAR 1977-78 V IDE ORDER DATED 31.07.1988. HAVING ASSESSED THESE TWO A MOUNTS AS CASH AVAILABLE AS ON 31.03.1977 AND 'IN SUBSEQUE NT YEARS TILL TODAY ', ADJUSTMENT HAS TO BE MADE IN VI EW OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT, IN THE CA SE OF M/S. ANANTHARAM VEERSINGHAIAH & CO. VS CIT REFERRED TO SUPRA. ACCORDINGLY, 1 HOLD THAT THERE IS NO JUSTIFI CATION FOR THE IMPUGNED ADDITION OF RS. 356500/-. THE SAME IS ACCORDINGLY DELETED. THE SAME IS ACCORDINGLY DELETE D. THIS GROUND SUCCEED AND THE APPELLANT GETS A RELIEF OF R S. 3.56.500/-. ' 3. WE HAVE HEARD SHRI DESBANDHU JAIN, LD. COUNSEL F OR THE ASSESSEE AND SHRI JATINDER KUMAR, LD. DR AT LENGTH. SHRI DESHBANDHU JAIN, LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE IN THE MIS C. PETITION. SHRI JATINDER KUMAR, DR CONTENDED THAT WHAT CAN BE RECTIFIED U/S 254(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') IS A MISTAKE WHICH I S APPARENT. ACCORDING TO HIM, IT MUST BE ONE FOR THE DISCOVERY OF WHICH NO ELABOR ATE REASONING OR ENQUIRY IS NECESSARY. HE ALSO POINTED OUT THAT THE MISTAKE SHO ULD BE VISIBLE AND PATENT. HE ALSO SUBMITTED THAT THE TRIBUNAL HAS NO POWER TO RE VIEW ITS ORDER PASSED U/S 254(1) OF THE ACT. . ACCORDING TO LD. DR, BY WAY OF THIS MISC. APPLICATION, THE ASSESSEE WANTS REHEARING OF THE APPEAL ON MERITS, W HICH IS NOT PERMISSIBLE UNDER 6 LAW. THE TRIBUNAL CANNOT RE-WRITE THE ORDER. ACCORD ING TOLD DR, THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM T HE RECORD. IF THERE BEING NO MISTAKE APPARENT FROM THE RECORD, THE EXERCISE OF T HE JURISDICTION BY THE TRIBUNAL U/S 254(2) WILL BE ILLEGAL AND IMPROPER. I N OUR OPINION, THERE IS A FORCE IN THE SUBMISSIONS MADE BY SHRI JATINDER KUMAR, LD. DR. THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. SMT. GU NWANTI BAI (1996) 219 ITR 632 (M.P.) HELD THAT IN EXERCISE OF POWERS OF RECTI FICATION U/S 254(2) WHAT CAN BE CORRECTED IS AN APPARENT ERROR AND NOT TO DEAL W ITH MERITS AND TO RECALL THE ORDER ON THE BASIS OF TAKING A SECOND OPINION ON TH E MERITS, WHICH IS NOT THE SCOPE OF RECTIFICATION. THE HON'BLE HIGH COURT FUR THER HELD THAT NORMALLY, RECTIFICATION ONLY MEANS TO CORRECT AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD AND NOT TO DECIDE THE MATTER OVER AGAIN ON M ERITS. 4. IN THIS CASE, DURING THE PERIOD RELEVANT TO ASS ESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE HAD DEPOSITED RS. 26,77 ,000/- IN HIS BANK ACCOUNT WITH ICICI BANK. IN THE ABSENCE OF ANY SATISFACTORY EXPLANATION OF THE SOURCE OF DEPOSIT, THE ASSESSING OFFICER MADE THE ADDITION. DURING THE COURSE OF APPELLATE PROCEDDINGS BEFORE THE CIT(A), THE ASSESSEE TOOK T HE PLEA THAT THE CASH DEPOSITS WERE MADE IN THE SAVING ACCOUNT FROM THE AVAILABLE CASH IN HAND, CASH WITHDRAWALS FROM SAVING ACCOUNT AND SALE PROCEEDS O F LAND BELONGING TO SMT. RITU MALLICK. FURTHER, THE ASSESSEE VIDE HIS WRITTE N SUBMISSIONS DATED 22.1.2013, SUBMITTED THE CASH FLOW STATEMENT FOR TH E FINANCIAL YEAR 2007-08 AND SHOWN THE CASH DEPOSIT OF RS. 50,000/-ON 31.7.2007, RS. 50,000/- ON 27.12.2007 AND RS. 30,000/- ON 28.3.2008 IN THE NAME OF SMT. R ITU MALLICK, WIFE OF THE ASSESSEE. THUS, THE CASH FLOW STATEMENT SUBMITTED B Y THE ASSESSEE PERTAINED TO THE ASSESSMENT YEAR 2008-09 AND NOT FOR ASSESSMENT YEAR UNDER REFERENCE AS REGARDS THE ASSESSEE CONTENTION OF HAVING CASH IN H AND AND ALSO HAVING CASH ON ACCOUNT OF SALE OR PROPERTY BY THE ASSESSEES WIFE SMT. RITU MALLICK, THE LD. 7 CIT(A) OBSERVED THAT NO SUCH REPLY WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS TO CLAIM THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT RELEVAN T TO PERIOD UNDER CONSIDERATION. THE LD. CIT(A) HAS CATEGORICALLY STA TED THAT THE SAID CONTENTION OF THE ASSESSEE WAS MERELY AN AFTERTHOUGHT. HE, HE HAS ALSO OBSERVED THAT NO EVIDENCE OF SALE OF LAND BELONGING TO SMT. RITU MAL LICK AS WELL AS SOURCE OF CASH IN HAND AS CLAIMED BY THE ASSESSEE WAS FILED D URING THE COURSE OF ASSESSMENT PROCEEDINGS. 5. THE NEXT CONTENTION OF THE ASSESSEE BEFORE THE C IT(A) WAS THAT THE FOLLOWING DEPOSITS IN BANK ACCOUNT OF THE ASSESSEE WERE MADE OUT OF INCOME OF SMT. RITU MALLIK, WIFE OF THE ASSESSEE. DATE AMT. 31.7.2007 RS. 50,000/- 27.12.2007 RS. 50,000/- 28.3.2008 RS. 30,000/- THE LD. COMMISSIONER HAS OBSERVED THAT THE CASH DEP OSITS IN BANK ACCOUNT WERE MADE DURING THE PERIOD 1.4.2007 TO 31.3.2008 AND TH E ADDITION IN THE ASSESSEES CASE HAS BEEN MADE ON ACCOUNT OF CASH DEPOSITS IN T HE BANK ACCOUNT DURING THE PERIOD 1.4.2008 TO 31.3.2009. THEREFORE, THE ASSES SEE FAILED TO EXPLAIN THE CASH DEPOSITS MADE DURING THE PERIOD 1.4.2008 TO 31.3.20 09 IN THE BANK ACCOUNT OUT OF CASH AVAILABLE FROM THE INCOME OF SMT. RITU MALL ICK. WE MAY ALSO OBSERVE HERE THAT THE INSTANT MISC. APPLICATION, THE ASSESS EE HAS NOT POINTED OUT ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. SH. DEEPANSHU JAIN, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FI LED THE CASH FLOW STATEMENT FOR THE PERIOD 14.2008 TO 31.3.2009 BEFORE THE CIT(A). HOWEVER, THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM THAT ANY CASH FLOW STATEM ENT RELATING TO THE PERIOD FROM 1.4.2008 TO 31.3.2009 WAS FILED BEFORE THE CIT(A). EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL, NO SUCH CASH FLOW STATEMENT WAS 8 SUBMITTED BY THE ASSESSEE. THUS, CONSIDERING THE E NTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DEVOID OF ANY MERIT AND DESERVES DISMISSAL. ACCORDINGLY, WE DISMI SS MISC. APPLICATION FILED BY THE ASSESSEE. 6. NO ORDER AS TO THE COSTS. 7. IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2016 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 3 RD FEBRUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR