R Muniraju(HUF), Bangalore V. Income tax Officer, Ward-7(3), Bangalore

MA 117/BANG/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3826 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Keywords: Unexplained cash credit; Business income
• Section: 234B; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER A ND SHRI VIJAY PAL RAO, JUDICIAL MEMBER MISC.PETN.NO.11 7 /BANG/2015 (IN ITA NO. 1246 / BANG/20 13) (ASSESSMENT YEAR: 200 5 - 06 ) R.MUNIRAJ (HUF) NO.10/3, 13 TH MAIN, 1 ST CROSS, HAL II STAGE, BANGALORE - 5600 38 . PAN:AA JHR 3188 R VS . PETITIONER INCOME - TAX OFFICER, WARD 7 ( 3 ), BANGALORE. RESPONDENT PETITIONER BY: SHRI RAGHAVENDRA CHAKRAVARTHY, CA. RESPONDENT BY: DR. P.K.SRIHARI, ADDL.CIT(DR) DATE OF HEARING : 08/01/2016 DATE OF PRONOUNCEMENT: 14 / 01 /201 6 O R D E R PER ABRAHAM P GEORGE, AM IN THIS PETITION FILED BY THE ASSESSEE, IT IS STATED THAT GROUND NO.4 RAISED BY IT IN ITS APPEAL WAS NOT DISPOSED OF BY THE TRIBUNAL. ONE ANOTHER GRIEVANCE RAISED BY THE ASSESSEE IS THAT PAN HAS BEEN WRONGLY MENTIONED IN THE ORDER. MP NO . 117 /BANG/201 5 PAGE 2 OF 5 2. GROUND NO.4 RAISED BY THE ASSESSEE IN ITS APPEAL IS REPRODUCED HEREUNDER: 4 THE ID. COMMISSIONER OF INCOME TAX (APPEALS) - LTU IS NOT JUSTIFIED IN NOT ACCEPTING AND APPRECIATING THE FACT THAT THAT THE DEPOSITS MADE INTO THE BANK ACCOUNT OF THE APPELLANT REPRESENTS THE WITHDRAWALS MADE BY THE APPELLANT. ABOVE GROUND HAS TO BE READ ALONG WITH OTHER GROUNDS RAISED BY THE ASSESSEE VIZ., 1 TO 3 AND 5 TO 8 WHICH ARE ALSO REPRODUCED HEREUNDER: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX [APPEALS] - LTU, BANGALORE IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESSED ON A TOTAL INCOME OF RS.13,79,850/ - AS AGAINST RETURNED INCOME OF RS.1,79,850/ - UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE 3. THE ID, COMMISSIONER OF INCOME TAX (APPEALS) - LTU IS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE U/S 68 OF THE ACT BY THE ID. A.O TO THE TUNE OF RS.12,00,000/ - . 5. THE ID. COMMISSIONER OF INCOME TAX (APPEALS) - LTU IS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ID. A.0 BASED ON THE GROUND THAT THE APPELLANT HAS NOT REGISTER ED HIMSELF UNDER THE KARNATAKA MONEY LENDERS ACT, 1961. 6. WITHOUT PREJUDICE TO THE ABOVE IF THE CONTENTIONS OF THE ID. COMMISSIONER OF INCOME TAX (APPEALS) - LTU ARE CONSIDERED THAT THE APPELLANT HAS NOT REGISTERED HIMSELF UNDER THE KARNATAKA MONEY LENDE RS ACT, 1961 INCOME EARNED THEREFROM SHOULD ALSO NOT BE CONSIDERED FOR THE PURPOSE OF TAXATION. MP NO . 117 /BANG/201 5 PAGE 3 OF 5 7. THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED INTEREST U/S 234A, 234B & 234C OF THE ACT. 8. FOR THE ABOVE AND SUCH OTHER GROUNDS THAT MAY BE RAISED, TH E APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 3. A READING OF ABOVE GROUNDS WOULD CLEARLY SHOW THAT THE ONLY ISSUE RAISED BY THE ASSESSEE WAS REGARDING ADDITION OF RS.12 LAKHS MADE U/S 68 AS UNEXPLAINED CASH CREDIT. NOW BEFORE US, LEARNED AR SUBMITTED THAT THE ASSESSEE S PLEADING THAT CASH DEPOSIT IN BANK ACCOUNT WERE WITHDRAWALS OF ITS EARLIER DEPOSITS, HAS NOT BEEN CONSIDERED BY THE TRIBUNAL. RELEVANT FINDINGS OF TRIBUNAL AS APP EARING IN PARAS.8 TO 10 ARE REPRODUCED HEREUNDER: 8. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTENTIONS. WHAT WE FIND IS THAT, ASSESSEE HAD INDEED PRODUCED A CASH BOOK BEFORE THE AG. IN FACT VARIOUS CONFIRMATION OBTAINED BY THE ASSESSEE FROM IT S DEBTORS, REFLECTING REPAYMENT IN CASH BY THEM PLACED AT PB PAGES 22 TO 36 ARE NOTHING BUT THE LEDGER PAGES OF THESE DEBTORS IN ASSESSEE'S BOOKS. MAY BE ITS TRUE THAT CASH BOOK WAS PREPARED AT THE BEHEST OF THE AG. HOWEVER, IT REMAINS A FACT THAT THE CASH BOOK WAS BEFORE THE AG AT THE TIME OF ASSESSMENT PROCEEDINGS. COPY OF THIS CASH BOOK HAS BEEN PLACED BEFORE US AT PB PAGES 2 TO 5 AND BANK BOOK AT PAGE 6 TO 10. HENCE, ASSESSEE'S STATEMENT BEFORE THE AO THAT IT HAD NOT MAINTAINED CASH BOOK AS CONTRARY , TO WHAT WAS ON RECORDS. 9. ONCE ASSESSEE PRODUCED A CASH BOOK, THE ONUS WAS ON THE ASSESSEE TO PROVE THE ENTRIES THEREIN. IF IT WAS UNABLE TO DO SO, AG COULD CERTAINLY INVOKE SECTION 68, EVEN OTHERWISE AO CAN INVOKE SECTION 69, IF SOURCE OF INVESTMENT I S NOT PROPERLY EXPLAINED. ASSESSEE CANNOT WRIGGLE OUT OF ITS OBLIGATION UNDER LAW, BY CITING A REASON THAT BOOKS OF ACCOUNTS WERE PREPARED UNDER THE INSTRUCTION OF THE AO. NO DOUBT, ASSESSEE HAD RETURNED ITS INTEREST INCOME UNDER THE HEAD 'OTHER SOURCES'. BUT APPLICATION MP NO . 117 /BANG/201 5 PAGE 4 OF 5 OF SECTION 68 AND SECTION 69 ARE NOT RESTRICTED TO BUSINESS INCOME. IT CAN ENCOMPASS ANY TYPE OF INCOME, AS THE FACTS MAY CALL FOR. 10. NEVERTHELESS, WE FIND THAT CONFIRMATION FILED BY THE ASSESSEE AT PAGES 22 TO 36, DID CARRY THE ADDRESS OF THE PERSONS FROM WHOM IT HAD RECEIVED CASH. NONE OF THESE PERSONS WERE EXAMINED BY THE LOWER AUTHORITIES. FURTHER, ACCUMULATION OF CASH IN CASH - BOOK PERSE CANNOT BE A REASON FOR DISBELIEVING THE SOURCE OF A DEPOSIT IN BANK. AN ASSESSEE MIGHT HAVE MYRIA D OF REASON FOR WITHDRAWING CASH FROM BANK OR KEEPING CASH WITH HIM. UNLESS THE DISTANCE OF TIME IS SUCH AS TO MAKE IT UNBELIEVABLE, IN OUR OPINION EXPLANATION OF SOURCE SHOULD NOT BE BRUSHED ASIDE. WE ARE THEREFORE, OF THE OPINION, THAT RULES OF JUSTICE R EQUIRE A VERIFICATION OF THE CONFIRMATION FILED BY THE ASSESSEE, PLACED AT PB 22 TO 36 BY THE AO, BY ISSUING PROPER SUMMONS. IF THE PARTIES DO NOT ATTEND THE SUMMONS ON IF THE ASSESSEE FAILS TC PRODUCE THEM, AO CAN TAKE AN ADVERSE VIEW AND MAKE AN ADDITION . FOR THE LIMITED PURPOSE OF THIS VERIFICATION, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMIT THE ISSUE OF ADDITION OF RS.12.00 LAKHS BACK TO THE FILE OF THE AO. F ROM ABOVE IT IS CLEAR THAT ASSESSEE EVEN WHEN IT PRODUCE D CASH BOOK, HAS TO PROVE THE ENTRIES THEREIN WITH APPROPRIATE EVIDENCE. THUS WE FIND THAT THE ISSUE RAISED BY THE ASSESSEE HAS BEEN CLEARLY ADDRESSED BY THE TRIBUNAL IN ITS ORDER. WHAT THE ASSESSEE IS SEEKING THROUGH THIS MP IS ONLY REVIEW OF THE ORDER OF THE TRIBUNAL. THIS TRIBUNAL IS NOT HAVING ANY POWER OF REVIEW U/S 254(2) OF THE IT ACT. ONLY GLARING AND APPARENT MISTAKES CAN BE RECTIFIED. NO MISTAKE WHATSOEVER IS FOUND BY US IN THE ORDER OF THE TRIBUNAL MUCH LESS ANY MISTAKE APPARENT FROM RECORD. WE DO NOT FIND ANY ME RIT IN THIS MISCELLANEOUS PETITION BY THE ASSESSEE. MP NO . 117 /BANG/201 5 PAGE 5 OF 5 4. THE MISCELLANEOUS PETITION STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2016 SD/ - SD/ - ( VIJAY PAL RAO ) (ABRAHAM P GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER E KSRINIVASULU ,SPS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE