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Income Tax Appellate Tribunal, JAIPUR BENCH ’SMC’, JAIPUR
Before: SHRI SHRI VIJAY PAL RAOvk;dj vihy la-@ITA No. 1109/JP/2016
This appeal by the assessee is directed against the order dated 26.09.2016 of ld. CIT (Appeals)-2, Jaipur for the assessment year 2011-12. The assessee has raised the following grounds of appeal :-
“1. In the facts and circumstances of the case and in law the id. CIT (A) has erred in not admitting the additional evidences filed by the assessee u/r 46A of Income Tax Rules, 1962. The action of id. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by accepting the additional evidences filed.
2. In the facts and circumstances of the case and in law the Id. CIT (A) has erred in confirming the action of ld. AO in making an addition of Rs. 13,37,000/- u/s 68 of the Income Tax Act, 1961 for the alleged reason of unexplained opening cash balance. The action of the id. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 13,37,000/-.
3. In the facts and circumstances of the case and in law the Id. CIT (A) has erred in confirming the action of Id. AO in making an addition of Rs. 7,92,295/- u/s 68 of the Income Tax Act, 1961 for the alleged reason of unexplained deposits. The action of ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 7,92,295/-.
4. In the facts and circumstances of the case and in law the Id. CIT (A) has erred in confirming the action of Id. AO in making an addition of Rs. 1,20,510/- on account of stamp duty & other expenses paid for purchase of property u/s 69 of the Income Tax Act, 1961. The action of ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 1,20,510/-. 5. In the facts and circumstances of the case and in law the Id. CIT (A) has erred in confirming the action of Id. AO in making an addition of Rs. 12,00,000/- of unsecured loan taken from Shri Govind Jhalani u/s 68 of the Income Tax Act. 1961. The action of Id. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 12,00,000/-. 6. In the facts and circumstances of the case and in law the ld. CIT (A) has erred in confirming the action of ld. AO in making the following additions as made in original Assessment Order dated 28.03.2013:
Sl. No. Particulars Total Amount 1 Trading Addition 15,00,000/- 2. Disallowance of expenses 11,988/- 3. Disallowance u/s 80C 4,480/- 4. Disallowance of Interest Expense 63,456/- Total 2,29,924/- The action of id. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 2.29,924/-.
7. In the facts and circumstances of the case and in law the Id. CIT (A) has erred in not admitting the additional evidences filed by the assessee u/r 46A of Income Tax Rules, 1962. The action of ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by accepting the additional evidences filed.
The assessee craves his rights to add, amend or alter any of the grounds on or before the hearing.”
Ground No.1 is regarding the additional evidence sought to be filed by the assessee was not admitted by the ld. CIT (Appeals).
Since the additional evidence pertains to more than one issues raised in ground nos. 3, 4 & 5, therefore, the grievance of the assessee of not admitting the additional evidence will be considered and decided along with the specific grounds, hence no separate adjudication is required of ground no. 1 of the assessee’s appeal.
Ground No. 2 is regarding the source of deposits made in the bank account of Rs. 43,35,000/- was claimed in part as opening cash balance of Rs. 13,37,000/-.
The assessee is an Individual and engaged in the business of trading of processed food grains, commission agency etc. The assessee is proprietor of M/s.
Ramavtar Satyaprakash and partner in two partnership firms, namely, Ramjilal Satyaprakash & Sons and M/s. R.S. Industries. The assessee filed his return of income on 30th September, 2011 declaring total income at Rs. 3,71,320/-. In the scrutiny assessment completed under section 143(3) of the IT Act on 28th March, 2013, the AO made certain additions on account of low net profit, disallowance of certain expenses and deposits made in the bank account. The AO finally assessed the total income of the assessee at Rs. 7,51,240/-. Thereafter, on perusal of the assessment record, the ld. CIT found that the assessment order passed by the AO dated 28th March, 2013 is erroneous in so far as prejudicial to the interests of the revenue as the AO has allowed the source of deposits made in the bank account of the assessee to the extent of Rs. 41,85,000/- out of the total deposit of Rs. 43,35,000/-. The ld. CIT further noted that the assessee claimed the source of deposit in bank account to the extent of Rs. 26,00,000/- as withdrawal from the same account whereas the ld. CIT on verification of the record found that the cash withdrawal was only Rs. 2,30,000/-. Therefore, the source of availability of cash shown in the said cash flow statement was not examined by the AO. Accordingly, the assessment was held to be erroneous and in so far as it is prejudicial to the interests of the revenue while passing the revision order dated 26.06.2014 under section 263 of the IT Act. The assessee did not challenge the revision order passed under section 263 of the Act. In the proceedings, pursuant to order under section 263 on the issue of source of deposits made in the bank account, the assessee claimed that he was having an opening cash balance of Rs. 13,37,000/- which was denied by the AO on the ground that in the original assessment proceedings, the assessee filed the cash flow statement and claimed the opening cash balance of Rs. 6,50,000/- and the AO accepted the opening cash balance to the extent of Rs. 5,00,000/-. Thus the new stand taken by the assessee in the proceedings pursuant to section 263 order was not accepted by the AO. The assessee challenged the action of the AO before the ld. CIT (A), however, could not succeed.
Before the Tribunal, the ld. A/R of the assessee has submitted that at the time of original assessment, the assessee filed the cash flow statement showing opening cash balance of Rs. 6,50,000/- based on the withdrawals made from the proprietorship concern as well as the partnership firms. However, in the proceedings pursuant to order under section 263, the assessee filed a complete cash flow statement showing opening balance of Rs. 13,37,000/-. Therefore, the cash flow statement filed by the assessee in the current proceedings is a correct cash flow statement. The AO as well as the ld. CIT (A) have rejected the said cash flow statement and consequently the addition was made to the extent of Rs. 13,37,000/-.
On the other hand, the ld. D/R has submitted that the assessee has furnished two different cash flow statements, one at the time of original assessment which was considered by the AO and the assessee has not challenged the said order passed under section 143(3) of the Act. Therefore, to the extent of the cash flow statement filed by the assessee which was part of the original assessment order, the same cannot be changed in the proceedings pursuant to the revision order passed under section 263 of the Act and that too for the benefit of the assessee. He has relied upon the orders of the authorities below.
I have considered the rival submissions as well as the relevant material on record. There is no dispute that in the original assessment proceedings when the AO asked the assessee to explain the source of deposit of Rs. 43,35,000/- in the savings bank account, the assessee has explained the source as under :-
“ The assessee has deposited Rs. 45,35,000/- in the saving bank a/c no. 61033214513 at SBBJ, Surajpole Jaipur. The assessee has deposited a sum of Rs. 3885000/- out of the withdrawls made in the same SB A/c and Rs. 650000/- out of cash balance with the assessee. Which was withdrawn by the assee from his partnership firm M/s. Ramjilal Satyaprakash & Sons, Jaipur. Copy of A/c is enclosed.”
It is clear from the said explanation of the assessee before the AO in the original assessment proceedings that the assessee claimed that the deposit to the extent of Rs. 38,85,000/- was out of withdrawals made from the same bank account and balance of Rs. 6,50,000/- was out of cash balance with the assessee. The assessee has also supported the cash balance with the explanation that the same was withdrawn by the assessee from his partnership firm M/s. Ramjilal Satyaprakash & Sons. The AO accepted the said explanation of source of deposit made in the bank account except Rs. 1,50,000/- from the opening cash balance of Rs. 6,50,000/-. The said order of the AO was subjected to the proceedings under section 263 and was set aside by the ld. CIT while passing the revision order pointing out specific fact regarding the withdrawals claimed by the assessee from the bank were only to the extent of Rs. 2,30,000/- and not of Rs. 38,85,000/- as claimed by the assessee and allowed by the AO. Further, the ld. CIT also pointed out that the AO has not verified the cash flow statement with the supporting material being bank account statement as well as the withdrawal from the partnership firm. In the proceedings pursuant to section 263 order, the assessee apart from other claims of source of deposit, has claimed Rs. 13,37,000/- as opening cash balance. This claim has been supported by the assessee by filing a fresh cash flow statement. It is pertinent to note that the proceedings under section 263 are invoked only when the twin conditions are being satisfied i.e. (1) the order passed by the AO is erroneous and (2) the same is prejudicial to the interests of the revenue. Therefore, powers under section 263 can be invoked only when the order passed by the AO is erroneous and also prejudicial to the interests of the revenue. If the order passed by the AO is erroneous but it is not prejudicial to the interests of the revenue, but on the contrary it is prejudicial to the interests of the assessee, then such order can be challenged only in the appeal.
Therefore, the scope of proceedings under section 263 is limited only in respect of the order of the AO which is erroneous as well as prejudicial to the interests of the revenue. Hence the proceedings under section 263 cannot be used for the benefit of assessee. The assessee undisputedly claimed opening cash balance of Rs. 6,50,000/- and the AO in the original assessment accepted the opening cash balance to the extent of Rs. 5,00,000/-. The said order of the AO accepting the opening cash balance of Rs. 5,00,000/- was set aside to the record of the AO for proper verification of the source of opening cash balance. Therefore, in the proceedings pursuant to section 263 order, the assessee can defend only to the extent of Rs. 5,00,000/- as opening cash balance and not more than that. The disallowance made by the AO of Rs. 1,50,000/- in the original assessment order was not challenged by the assessee before the ld. CIT (A). Therefore, in any case, the opening cash balance cannot be accepted more than Rs. 5,00,000/- which was accepted in the original assessment proceedings. Hence the claim of opening cash balance of Rs. 13,37,000/- cannot be accepted in the proceedings pursuant to the order under section 263. The ld. CIT (A) has considered this issue in para 3.3 as under :-
3.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. An amount of Rs.45,35,000/- was deposited by the assessee in the SBBJ Bank account of the assessee. Cash flow statement had been submitted by the assessee for source of availability of cash for deposit. In the initial proceedings under section 143(3) the assessing officer had disallowed Rs.1,50,000/- out of Rs.6,50,000/- shown as opening cash balance. In the proceedings in consequence of 263 order, the opening cash balance was shown at Rs.13,37,000/- instead of Rs.6,50,000/- shown earlier. The assessee explained that the same is due to the fact that in the first statement cash transactions made by assessee from firm in which he was a partner or proprietor had only been accounted for while in the latter the cash flow was based on overall cash transactions made during the year in personal capacity and on behalf of the proprietor/partner in firm. It was further submitted that cash flow and balance sheet for assessment year 2010- 11 has also been submitted previously in support of opening cash balance of Rs. 13,37,000/-. The assessing officer did not accept the contentions as no evidence for the above were submitted, the individual cash flow was made subsequently, cash was withdrawn from the firm even when there were substantial liabilities in the firm, the details of transactions in the individual balance sheet were not provided and finally that inspite of having sufficient cash balance available with him, the assessee was depositing and withdrawing amounts from the Bank deposits and various firms.
In the present proceedings, the authorized representative largely reiterated the submissions as made during the assessment proceedings. It was further submitted that the cash flow statement for Financial Year 200910 produced to substantiate the availability of opening balance, reflected the same as on 31.03.2010 at Rs. 11,04,060/- as against opening balance of Rs. 13,37,000/- as on 01.04.2010 taken by assessee in cash flow for the assessment year 2011-12 and that the difference of Rs. 2,32,940/- was on account of personal cash available with the assessee and at best, the difference of Rs. 2,32,940/- can be taxed. This contention of the assessee cannot be accepted because no personal books were maintained by the assessee, no scrutiny has taken place in the previous year where the assessee is claiming a balance of Rs.11,04,060/- on 31.03.2010. The assessee has been changing its stand and showing different figures and no evidences have been furnished for the same. In the assessment under section 143(3) of the 1.T. Act, 1961 reopening cash balance had been claimed at Rs.6,50,000/- out of which the Assessing Officer had made a disallowance of Rs.1,50,000/- which both the assessee and Authorized Representative had agreed to vide order sheet entry dated 25.03.2013 and as recorded in the assessment order dated 28.03.2013. The appeal filed against the same in this office had been withdrawn by the assessee, therefore, the assessee himself accepted the cash balance to be at Rs.4,50,000/-. In the present proceedings, the same figure is revised to Rs.13,37,000/-. Further, during the proceedings under section 263 it had been noticed that the source of deposit of cash of Rs.43,35,000/- which the assessee had explained as cash withdrawals from the bank and its redeposit was found to be incorrect and the Assessing Officer had been directed to verify these, afresh. In the present proceedings, the Authorized Representative has tried to explain these deposits from the opening cash balance which has been increased from Rs.6,50,000/- in the initial assessment proceedings to Rs.13,37,000/- in the subsequent assessment proceedings. The opening cash balance is being used to explain the overall cash deposit in the bank account of Rs.45,35,000/- and the same was initially claimed at Rs.6,50,000/- and then at Rs.13,37,000/-, no basis or evidences for the same have been given, so this amount of Rs.13,37,000/-cannot be accepted to explain the cash deposited in the bank account, to that extent the deposits are considered as unexplained and the additions made by the Assessing Officer is upheld. This ground of appeal is dismissed.”
Accordingly, in view of the above facts and circumstances as discussed in the preceding part of this order, I do not find any error or illegality in the impugned order of the ld. CIT (A).
Ground No. 3 is regarding the addition of Rs. 7,92,295/- on account of unexplained deposits in bank.
In the proceedings pursuant to the order under section 263, the assessee claimed a sum of Rs. 7,92,295/- as various credit entries on account of refund of share application money, refund from LIC, deposits through cheque, refund of recurring deposit, sale proceeds of shares etc. The assessee thus claimed that these are not cash deposits only by the assessee but these are various refunds and credits on account of refund of share application money, sale proceeds of shares, LIC etc.
The AO did not accept this claim on the ground that assessee has not produced the documentary evidence to substantiate the claim. Before the ld. CIT (A), the assessee filed additional evidence on account of LIC refund and refund of recurring deposit on maturity. The ld. CIT (A) did not accept this contention and sustained the addition.
8. Before the Tribunal, the ld. A/R of the assessee has submitted that the ld. CIT (A) has rejected the additional evidence produced by the assessee in support of various entries in the bank account of the assessee which are considered as unexplained deposits. However, all these transactions are through banking channel and on account of refund issued by various companies, LIC and Post Office on account of maturity of recurring deposit. Thus the ld. A/R has submitted that when the additional evidence pertains to the transactions relating to the refund granted by various entities and can be verified independently, then the same ought to have been accepted in support of the claim.
On the other hand, the ld. D/R has submitted that despite the revision order passed by the ld. CIT under section 263, the assessee did not furnish any evidence before the AO, therefore, the additional evidence sought to be filed before the ld. CIT (A) cannot be accepted.
I have considered the rival submissions as well as the relevant material on record. It is evident from the order passed by the AO pursuant to the order under section 263 that the deposit to the extent of Rs. 7,92,295/- represented various transactions of refunds and deposits on account of maturity of recurring deposit with the post office as well as refund of share application money by Coal India Ltd. as well as other companies. Thus when the entries in the bank account itself show the source of deposit and the said source can be verified independently then the additional evidence sought to be produced by the assessee in respect of these transactions which are otherwise through banking channel and not on account of cash deposits, then the said additional evidence ought to have been considered in support of that explanation. Further, it is not the explanation regarding the cash deposit in the bank account as it was an issue in the original assessment as well as in the proceedings under section 263 but these are the transactions of deposit in the bank account through banking channel. When the transaction itself manifest the nature of deposit and the assessee has filed the evidence in support of the transaction, then the said evidence is required to be considered. Accordingly, this issue is again set aside to the record of the AO to consider the additional evidence filed by the assessee as well as the actual nature of transactions in the bank account of the assessee. If these entries are not representing the cash deposits in the bank, then the same cannot be considered for making the addition on account of unexplained deposits in the bank which was the original issue in the proceedings under section 143(3) and under section 263 of the IT Act.
Ground No. 4 is regarding addition of Rs. 1,20,510/- on account of stamp duty and other expenses for purchase of property under section 69.
I have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. In the proceedings pursuant to the order under section 263, the AO has made an addition on account of unexplained source of payment of stamp duty of Rs. 1,20,510/- for purchasing of the property. Though the assessee has explained the source as the amount taken from various relatives, however, at the outset it is noted that the said issue of unexplained source of payment of stamp duty was neither taken up by the AO in the original scrutiny assessment proceedings under section 143(3) nor it was subject matter of the revision proceedings under section 263. The ld. CIT while passing the revision order under section 263 dated 26.06.2014 has set aside the assessment order only on the issue of source of cash deposits made in the bank account of Rs. 43,35,000/-. The relevant part of the revision order is as under :-
“ Hence, the assessment order dated 28.03.2013 for A.Y. 2011-12 is held as erroneous in so far as it is prejudicial to the interest of the revenue for the purpose of section 263 of the I.T. Act. The same is therefore set aside to be made afresh. AO is directed to verify the source of cash deposits of Rs. 43,35,000/- & deposits of Rs. 26,00,000/- through clearing in the said saving bank account of the assessee with SBBJ, Surajpole Mandi, Jaipur and opening cash balance of Rs. 6,50,000/- shown in cash flow statement. He should examine the evidences produced and book of accounts maintained by the assessee to verify the source of deposits in saving account and availability of opening cash balance and source thereof. Adequate opportunity of being heard should be given to the assessee.”
Therefore, this issue of unexplained payment of stamp duty was not subject matter of section 263 order and consequently cannot be taken up in the proceedings pursuant to the order passed under section 263 of the Act. Accordingly, the addition made by the AO on account of stamp duty payment is deleted.
Ground No. 5 is regarding addition of Rs. 12,00,000/- on account of unsecured loan claimed by the assessee from Shri Govind Jhalani.
With respect to the deposit made in the bank account of Rs. 43,35,000/-, the assessee inter-alia claimed that he has taken loan of Rs. 12,00,000/- from one Shri Govind Jhalani. The AO did not accept this contention of the assessee for want of supporting evidence to prove the creditworthiness of the creditor and genuineness of the transaction. Before the ld. CIT (A), the assessee filed additional evidence in the shape of confirmation from the loan creditor. However, the same was not accepted by the ld. CIT (A).
Before the Tribunal, the ld. A/R of the assessee has submitted that when this loan was taken by the assessee through banking channel and the assessee also produced the evidence along with the details of the cheque deposited in the bank account of the assessee, then the said additional evidence ought to have been considered.
On the other hand, the ld. D/R has submitted that the assessee failed to produce any supporting evidence before the AO and, therefore, the additional evidence sought to be produced by the assessee before the ld. CIT (A) cannot be accepted as the same is self-serving document.
I have considered the rival submissions as well as the relevant material on record. In the proceedings pursuant to the order under section 263, the only issue was to be considered by the AO is regarding the source of cash deposit in the bank account of the assessee. The assessee has explained that the amount of Rs. 12,00,000/- deposited in the bank account of the assessee in the month of January, 2011 is received through banking channel as loan taken from Shri Govind Jhalani.
Thus this explanation of the assessee is only in respect of the transaction of deposit made in the bank account of the assessee and not regarding the cash deposit in the bank account. Therefore, once the assessee has explained the nature of transaction as not a cash deposit but it is through banking channel vide cheque number, details of which were given by the assessee, then the said explanation was required to be verified from the record as well as from the evidence to be produced by the assessee. The assessee produced the additional evidence of confirmation of the loan creditor which was required to be verified by the AO to ascertain the creditworthiness of the creditor and genuineness of the transaction. Hence in the facts and circumstances of the case, the issue is set aside to the record of the AO to consider the additional evidence and also to verify the nature of transaction and ascertain the creditworthiness of the creditor as well as genuineness of the transaction.
Ground No. 6 is regarding addition made in the original assessment was also repeated in the proceedings pursuant to order under section 263.
I have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. Certain additions were made by the AO while passing the original assessment under section 143(3) of the IT Act. The assessee did not challenge those additions and accordingly the order passed by the AO under section 143(3) which was not subject matter of section 263 proceedings has attained the finality. In the order passed pursuant to order under section 263, the AO has just repeated those additions for completeness. Hence when the AO has not raised a separate demand on account of these additions made in the original assessment and repeated in the subsequent order, then this ground does not arise from the proceedings in pursuant to the 263 order. Even otherwise, the assessee has made a statement in writing before the ld. CIT (A) for not pressing this issue being the additions made in the original assessment order, a copy of the letter dated 16th June, 2016 has been filed by the ld. A/R in this respect is as under :
Accordingly, the ground no. 6 of the assessee’s appeal is dismissed being non est.
Ground No. 7 is a duplicate ground of ground no. 1.
At the time of hearing, the ld. A/R of the assessee has stated at Bar that the assessee does not press this ground and the same may be dismissed as not pressed.
The ld. D/R has no objection if the ground no. 7 of the assessee’s appeal is dismissed as not pressed. Accordingly, ground no. 7 of the assessee’s appeal is dismissed being not pressed.
In the result, the appeal of the assessee is partly allowed. Order is pronounced in the open court on 29/10/2019.