Vidya Sagar Singh, Ballia V. ITO, Ward - 2(5), Ballia

MA 1/VNS/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1574 (ITAT-VARANASI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 25-08-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Assessment Year: 2010-11 Shri Vidya Sagar Singh, S/0 Ashok Kumar Singh, Vill & Post- Jamua, Senani Sadan, Ballia, U.P. 277001 PAN-CEJPS8748Q vs. Income Tax Officer, Ward-2(5), Ballia U.P. (Assessee) (Respondent) Appellant by: Sh. O.P. Shukla, Adv. Respondent by: Sh. A.K. Singh, Sr. DR Date of hearing: 26.08.2022 Date of pronouncement: 04.10.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: By way of this Misc. Application, the A.O. is seeking rectification of mistake apparent from record regarding the order dated 27.04.2022 of this Tribunal whereby the addition of Rs. 3,20,000/- was confirmed out of the addition sustained by CIT(A) of Rs. 12,20,000/-. 2. The learned AR of the assessee has submitted that the Tribunal has sustained the addition of Rs. 3,20,000/- on account of deposit made in the bank account which was explained by the assessee as a source from past savings of the assessee. The learned AR has produced a copy of cash book showing the availability of cash in the hands of the assessee and submitted that the Tribunal has sustained the addition without considering the availability of cash as shown in the cash book. Thus, he has submitted that the impugned order of the Tribunal may be recalled for limited purpose of considering the availability of cash to the extent of Rs. 3,20,000/- in the hands of the assessee. M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 2 3. On the other hand, the learned DR has submitted that the CIT(A) has duly considered this claim of the assessee and rejected in para 7 of the order. He has further submitted that even in the grounds of appeal before the Tribunal, the assessee has not explained the availability of cash of Rs. 3,20,000/-. The learned DR has further contended that there was no explanation or submissions on behalf of the assessee regarding the availability of cash of Rs. 3,20,000/- or produced any record. Thus, the learned DR has submitted that there is no mistake apparent from record which can be rectified under section 254(2) of the Income Tax Act. 4. I have considered the rival submissions and carefully perused the relevant material on record. The Tribunal has disposed of the appeal of the assessee, vide order dated 27.04.2022 by recording the submissions of the learned AR as well as learned DR as well as the findings of CIT(A) in para 3 to 5 as under:- “3. Before the Tribunal, the learned counsel for the assessee has submitted that the sister of the assessee Smt. Radhika Singh gave gift of Rs. 4 Lac on 9.10.2009 out of the withdrawal of Rs. 6 Lac from UCO Bank account. The said amount has been withdrawn out of the opening balance a confirmation of bank account is also filed by the assessee. He has further submitted that as far as Rs. 5 Lac received from another sister Mamta singh the assessee has produced the remittance of the amount by her which was received by the assessee in India through Western Union, the agent of money transfer. Thus, the learned AR of the assessee submitted that the assessee has explained the source of deposit by producing the documentary proof so far as the amount received from his sisters of Rs. 4 Lac and Rs. 5 Lac respectively. He has referred to the cash flow statement to show the availability of cash. 3.1 On the other hand, the learned DR has submitted that there was a cash deposit of Rs. 22,20,000/- in the bank account of the assessee on 8.12.2009. The assessee has not explained the source of deposit before the Assessing Officer and consequently the Assessing Officer passed ex parte order. The learned DR has further contended that the assessee has admitted that he has also claimed the gift received from his sisters but no source of income and creditworthiness of the sisters has been brought on record. As per the receipts of the amount from the NRI sister there were several tranches of transfer of small amounts whereas the deposit in the bank account made only on one date and there is no co-relation M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 3 between the money received from the sisters and deposits in the bank account of the assessee. The withdrawal by another sister and depositing the bank account are also not having any direct nexus. He has relied upon the orders of the authorities below. 4. I have considered the rival submissions as well as the relevant material on record. The CIT(A) has discussed the matter in para 4 to 7 as under:- “4. During the course of appellate proceedings, it was submitted that the appellant Mr. Vidya Sagar Singh is an unemployed individual son of a farmer carrying out private tuition. During the period under consideration his income was below the maximum amount not chargeable to tax, no return of income was filed. However, return of income has been filed in response to notice u/s 148. It was further submitted that during the year under consideration, the appellant has deposited cash received from his father and uncle from sale proceeds of ancestral agricultural land under family settlement and other close relatives. It was explained that his father Shri Ashok Kumar Singh and Uncle Shri Dilip Kuarnr Singh have jointly sold agricultural land of 10,00,000/- which was deposited in the bank account) of the appellant. The copy of sale deed of the land showing sale proceeds of Rs. 10,00,000/- was also produced. It was further claimed that the appellant has received cash of Rs. 4,00,000/- from his sister Smt, Radhika Singh who serving in CRPF, Smt. Mamta Singh(Rs. 5 Lac), who is her sister living in USA and out of accumulated saving Rs. 3,20,000/-. It was submitted that cash received from these persons was deposited in the bank account. The written submissions of the appellant were forwarded to the A.O. for his comments, whose comment has been received in this office through Addl.CIT, Range-2, Varanasi vide letter F.No. Addld.CIT/Range-2/Vns/Remand Report/2018-19 dated 10.07.2018. In its report, the A.O. has submitted that the bank account no. 25100100006396 maintained with Bank of Baroda, Ballia, the appellant had deposited cash of Rs. 22,00,000/- on 08.12.2009 and Rs. 5,50,000/- on 21.12.2009.1 Accordingly, it was submitted that total cash of Rs. 27,50,000/- has beeru deposited in this bank account, which the assessee has to explain. However, copy of bank account submitted during the course of appellate proceeding which was forwarded to the A.O, clearly show that Rs. 5,50,000/- deposited on 21.12.2009 has been received from Mamta Singh as transfer entry. Infact cash of Rs. 22,00,000/- was deposited on 09.12.2009 and Rs. 20,000/- on 16.07.2009 only. It is important to mention here that in the remand report, the A.O. has not reported about the cash deposit of Rs. 20,000/- made on 16.07.2009. Since only cash of Rs. 22,20,000/- have been deposited and the assessment has been framed on the basis of said deposit, the appellant has to explain only this amount. 5. As regards receipt of cash of Rs. 10,00,000/- from Ashok Kumar Singh and Dilip Kumar Singh (Rs. 5 Lac each), the A.O. has submitted that assesses has failed to adduce documentary evidence in respect of these persons. However, the sale deed in respect of property has been furnished during the course of appellate proceedings shown cash received of Rs. 10,00,000/- by these persons ( a copy of the same was also forwarded to the A.O., however, he has not offered his comments on the same.). Since the availability cash of Rs. 10,00,000/- with the father and uncle of the appellant have been established, the claim of the M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 4 appellant about source of Rs. 10.00,000/- is explained and the addition to that extent cannot be sustained. 6. As regards claim of receipt of Rs. 4,00,000/- from (Radhika Singh), it is submitted that Sliri Kaclhika Singh a CRPF employee and the appellant has not submitted copy of her return of income. Only her PAN card and identity card has been submitted which does not prove her creditworthiness. Similarly in the case of claim of Rs. 5,00,000/- from Smt. Mamta Singh, the A.O. has submitted that appellant has not been able to prove the \creditworthiness\of this person and from where this NRI have received the cash. Similarly the accumulated saving of Rs. 3,20,000/- has not been explained by the appellant because he is admittedly unemployed youth and carried out private tuition for livelihood. The remand report was forwarded to the appellant for comments, who has only submitted that the additions have been made on the basis of conjectures surmises and presumption not based on fact and relevant material. 7. I have gone through the fact of the case, I have already held that availability of cash to the extent of Rs. 10,00,000/- established in the case of the appellant. However, the appellant has not been able to prove the creditworthiness of Mamta Singh and Radhika Singh so as to advanced Rs. 5,00,000/- and Rs. 4,00,000/- respectively. Further the appellant has also not been able to prove the accumulated saving of Rs. 3,20,000/-. Accordingly, these amounts remains unexplained.” 5. Thus, it is clear that out of total addition of Rs. 22,20,00/-, the CIT(A) has accepted the source of deposit of Rs. 10 Lac received from the father and uncle of the assessee as out of sale proceeds of the agricultural land. The CIT(A) has confirmed the addition so far as the claim of Rs. 4 Lac received from Radhika Singh and Rs. 5 Lac from Mamta Singh giving the reasons that the assessee has not proved the creditworthiness of these persons. Since the assessee has produced receipts of transfer of money by his sister through her husband Sh. Rajendra Singh which was received by the assessee in India through the money transfer agent Western Union. The transfer of money was about Rs. 50,000/- in each tranche and there are nine tranche of money transfers. Eight transfers or about Rs. 50,000/- and one is about 1 Lac. Therefore, prima facie, the assessee has discharged its onus to show the source of deposit made in the bank account to the extent of Rs. 5 Lac as the money was received by the assessee as remittance by NRI sister. Further, there is an entry of Rs. 4 Lac in the savings bank account of another sister Smt. Radhika Singh with UCO Bank and therefore, this amount of Rs. 4 Lac is received through banking channel. The bank account statement of the sister shows that there is a transfer of Rs. 4 Lac in the name of the assessee on 13.01.2010. Hence, the assessee has produced the documentary evidence to show transfer through bank account as well as the availability of the money in the bank account is sister. Accordingly, in the facts and circumstances of the case, the addition to the extent of Rs. 9 Lac is deleted and the balance amount of Rs. M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 5 3,20,000/- as accumulated savings remains unexplained and the addition to the extent is confirmed.” 5. Thus, after considering the submissions of the parties as well as finding given by the CIT(A), the Tribunal deleted the addition sustained by the CIT(A) to the extent of Rs. 9,00,000/- which was found to be duly explained by the assessee as a remittance of Rs. 5 Lac by NRI sister of the assessee and another amount of Rs. 4 Lac was received from another sister. Since there was no explanation about the balance amount of Rs. 3,20,000/- except claim of accumulated savings without any supporting documentary evidence, the same was confirmed. 6. Now the assessee in the Misc. Application has alleged the mistake in para 2 to 4 as under:- “2. That the appellant was filed an appeal against the order of Commissioner of Income tax (A) and in the ground of appeal appellant has taken ground Rs 400000.00 and 500000.00, but Rs 320000.00 due to typographical mistake was not mentioned in the ground, hence appellant counsel has not explained the deposit Rs 320000.00, which was accumulated saving fund has been deposited in the bank account. 3. That during the course of hearing of the case the bench has also not raised any query regarding 320000.00, therefore the said amount by mistake has not explained during the course of hearing of appeal before the Hon'ble Tribunal. 4. That after received the order from the Hon'ble Bench the said amount was came to the knowledge of the counsel that these ground of accumulated saving amount Rs 320000.00 was unexplained and amount has duly been confirmed by the Hon'ble Bench, though the said ground was not taken in the ground of appeal.” 7. The assessee has now come out with these explanations that due to typographical mistake, the addition to the extent of Rs. 3,20,000/- was not explained in the grounds of appeal and was also not explained during the course of hearing of the appeal and only after the order of the Tribunal, the assessee realized this mistake. Thus, it is clear that the impugned order of the M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 6 Tribunal was passed based on the relevant facts as well as after considering the submissions of the parties and it is not the case of the assessee that the Tribunal has failed to consider any relevant fact or contention of the assessee. The assessee has now submitted a copy of the cash book during the hearing of the Misc. Application which cannot be considered as the same was not produced at the time of hearing of the appeal. Further, the assessee cannot be allowed to set up a new case in the Misc. Application proceedings when there is no whisper about the source of Rs. 3,20,000/- during the hearing of the appeal. 8. In any case, the claim of the assessee for accumulated savings is also not reflected from the copy of the cash book filed by the learned AR which shows the opening balance as on 1.4.2009 at Rs. 25,480/-. Accordingly, in the facts and circumstances of the case, the assessee has failed to make out a case of apparent mistake from record so far as the impugned order of the Tribunal is concerned. The proceedings under section 254(2) cannot be used to bring the fresh evidence or establishing a new case. Even otherwise, the scope of the proceedings under section 254(2) is very limited and circumscribed only to rectify the apparent mistake from record and cannot allow the Tribunal to review or reverse an order passed on merits. 9. In the result, Misc. Application of the assessee is dismissed. Order pronounced as per Rule 34(4) of I.T.A.T. Rules, 1963 on 04.10.2022 at Allahabad, U.P. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER Date: 04.10.2022 Varanasi/Allahabad sh M.A. No. 01/VNS/2022 In ITA No. 66/VNS/2018 Shri Vidya Sagar Singh 7 Copy forwarded to: 1. Appellant- 2. Respondent- 3. CIT(A) 4. CIT 5. DR By order Sr. P.S.