ARCHNA VASUDEV BANSAL,,SURAT vs. THE INCOME TAX OFFICER,WARD-5(1),, SURAT

आदेश /O R D E R PER O.P.MEENA, AM: This appeal filed by the Assessee is directed against the 1. order of Learned Commissioner of Income Tax(Appeals)-I, Surat dated 20.08.2014 for the assessment year 2006-07.

Grounds raised by the assessee read as under: 2. “(I) Addition of Rs.22,12,051: (1) On the facts and circumstance of the case and as per law, the learned Commissioner of Income-tax (Appeals) erred in confirming the addition of Rs.22,12,051 when the appellant had submitted evidence and particulars of each item of deposit in the bank.

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 2 of 14

(2) The appellant further submits that the learned Commissioner of Income-tax (Appeals) has wrongly mentioned in para 6.1 about cash deposits of Rs.22,12,051 when the appellant had deposits of Rs.9,71,751 by cheques. (II) Directions by the learned Commissioner of Income-tax (Appeals): The learned Commissioner of Income-tax (Appeals) was not justified in issuing directions to the Assessing Officer to initiate penalty proceedings u/s.271(1)(b) and 271(1)(e) of the Act when the Commissioner of Income-tax (Appeals) has not powers to issue such directions. (III) Miscellaneous: (1) The learned Commissioner of Income-tax(Appeals) has not dealt with grounds relating to charge of interest u/s.234A, 234B and 234C of the Act. (2) The appellant craves leave to add, alter or vary any of the grounds of appeal”

Briefly stated facts of the case are that the assessee has 4. filed her Return of Income showing at Rs.80,090/- on which assessment was completed u/s.144 of the Act by making addition of Rs.23,64,654/- which inter-alia included unexplained bank deposits of Rs.23,07,051/-.

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 3 of 14

The assessee filed an appeal before the ld.CIT(A) who 5. dismissed the said appeal vide order dated 26.11.2009. The assessee has carried the matter before the Tribunal. The ITAT vide order dated 28.03.2011 in ITA No.688/Ahd/2010 has restored the matter back to the file of the Assessing Officer for reconsideration of facts in the light of evidences and the explanation to be filed by the assessee.

In view of this, the Assessing Officer has passed a fresh 6. order on 12.03.2013. The Assessing Officer examined the deposits of Rs.23,07,186/- in the light of documents such as copy of bank book, cash book, ledger account, confirmations, purchases and sale bills etc., filed by the assessee.

In reply to show cause notice, issued by the Assessing 7. Officer, the assessee has produced his explanation letter dated 03.07.2009, 03.08.2009, 07.08.2009 and 26.08.2009 submitted before the Assessing Officer in the first round of assessment proceedings. The assessee has also filed cash book, bank statement, bank book, ledger account of purchases, confirmation of Return of Income and balance sheet of Vasudev Bansal (HUF), confirmation Return of Income, Balance Sheet of

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 4 of 14

Akash Fibers P. Ltd., confirmation of Bepsy Bhagwegar, Vasudev Bansal, Pradeep Textiles and others.

The reply filed by the assessee has been reproduced by 8. the Assessing Officer at para 12 page 7 to 9 of his assessment order. However, the Assessing Officer was of the view that the assessee has not availed the opportunities provided to him during the original assessment due to lack of time but now the assessee got sufficient time, therefore the assessee has fabricated documents against the unaccounted bank deposits in the fresh assessment proceedings. The Assessing Officer noted that in response to summons u/s.131 of the Act, Dhanmal, Mahavir Prasad, Rajendra Prasad have not appeared. However, Shri Sanjaykumar H.Dua and Shri Bepsy Bhagwagar attended on 26.02.2013 and their statement was recorded u/s.131 of the Act. However, the Assessing Officer did not accept the version of their statement and came to the conclusion that sale of saree by Sanjaykumar H.Dua in lieu of cheques money and sale of grey cloth by Archana Bansal creating alleged cash is nothing to a well-managed plan to deceive the Revenue and to prove the bank deposits as genuine. Similarly, in the case of Bepsy Bhagwagar the Assessing Officer observed that when the

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 5 of 14

required money of Rs.90,000/- was given was not known to Bepsy Bhagwagar, therefore considering these facts the Assessing Officer observed that the assessee has failed to prove the credit worthiness and genuineness of the deposits and only deposit of Rs.95,000/- in the case of Vasudev Bansal was found to be explained, accordingly, the Assessing Officer made the balance addition of Rs.22,12,051/- [23,07,051 – 95,000] as unexplained bank deposits.

Being aggrieved, the assessee carried the matter before 9. the ld.CIT(A) considering the finding of the Assessing Officer has come to the conclusion that the assessee has failed to prove the cheque deposits of Rs.22,12,051/- and accordingly confirmed the addition made by the Assessing Officer.

Being aggrieved, the assessee filed this appeal before this 10. Tribunal. The ld.Counsel submitted that out of total deposits in the bank account amounting to Rs.22,12,051/- there are cash deposits into bank account amounting to Rs.9,06,651/- and balance are cash deposits of Rs.13,05,300/-. The ld.Counsel submitted that in the case of Pradeep Textiles, the amount of Rs.30,000/-, Rs.2,50,000/- amounting to Rs.2,80,000/- are received by cheques i.e.30,000 on 05.09.2005[PB – 4] and

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 6 of 14

Rs.2,50,000/- on 01.02.2006 [PB – 6]. These amounts were received against the opening balance of Rs.2,80,000/- as on 01.04.2005 appearing in the ledger account in balance sheet of the assessee. The assessee has also received interest of Rs.31,336/-. However, the ld.CIT(A) has incorrectly treated these receipts as cash loan.

With regard to an amount of Rs.2,42,000/- from Akash 11. Fibers Pvt ltd., the Counsel submitted that the amount of Rs.7,000/-, Rs.60,000/- and Rs.1,75,000/- were received and credited bank on 02.01.2006, 03.01.2006, 11.01.2006 as appearing in the ledger account placed at paper book, page 20 reflected in bank statement at paper book, page 4 to 7, bank account 8, 9, 15, 20 and 21. Therefore, these amounts are not cash, deposits but received in cheques for which confirmation of the concerned parties have filed.

With regard to addition of Rs.50,000/- in respect of 12. Vasudev Bansal (HUF) the ld.Counsel made reference to the paper book, page 9, 18 and 19 and submitted that the Assessing Officer has made addition of Rs.50,000/- though cash deposits were at Rs.7,000/- and Rs.8,000/- only and Rs.95,000/- was received through cheques which has not been

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 7 of 14

added by the Assessing Officer. The ld.CIT(A) has not dealt with the addition of Rs.50,000/- instead dealt with the addition of Rs.95,000/- on which no addition was made. Therefore, the addition of Rs.50,000/- has been made without any basis. As there is no such cash or cheques entries, similarly the assessee has received Rs.1,23,323/- from Vasudev Bansal (father of the assessee) for which the assessee has filed confirmation PAN, Bank Statement and Return of Income. It was explained that Rs.54,000/- were received by cheques on 11.01.2016 and Rs.69,323/- also by cheques which are reflected in bank statement placed at paper book, page 122. The ld.Counsel further submitted that the Assessing Officer has made an addition of Rs.1,10,000/- being received by cheques on 30.12.2005 and same was reversed on 30.12.2005 by sum amounting of Rs.1,10,000/-, therefore the Assessing Officer has made addition on account of incorrect entry on which the ld.CIT(A) has not uttered any word and confirmed the same.

With regard to amount of Rs.70,000/- received by cheques 13. on 11.01.2006 from Bepsy Bhagwagar PB-24 reflected in the bank statement [PB – 9]. Further, Bepsy Bhagwagar was employee of the father of the assessee who has appeared in

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 8 of 14

response to summons u/s.131 of the Act wherein she has confirmed PAN, etc., Therefore, same cannot be treated as unexplained. Similarly, the entry of Rs.31,336/- is a credit of interest appearing at paper book, page 16 from Pradeep Textiles. Thus, the ld.Counsel contended that an amount of Rs.9,06,659/- received by cheques is duly explained and appearing in the bank statement, ledger account, bank book for which necessary confirmation have filed, therefore the ld.CIT(A) was not justified in confirming above addition.

With regard to cash deposits ofRs.1,10,000/- received 15. from Vasudev Bansal (father of the assessee) [PB – 22, 23]

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 9 of 14

these are appearing in the ledger account of the Vasudev Bansal, however, the ld.CIT(A) has dismissed the same without making any discussion thereon. Similarly, the assessee has received Rs.8,000/- from Vasudev Bansal(HUF) who appeared in response to summons u/s.131 of the Act and confirmed the same. However, the addition was confirmed without any discussion.

With regard to loan of Rs.20,000/- received from Bepsy 16. Bhagwagar the assessee has filed confirmation of PAN and she appeared in response to notice summons u/s.131 of the Act, therefore there was no reason to confirm such addition for which necessary evidence are filed at paper book 24 and 11.

With regard to amount of Rs.3,92,397/- which is received 17. out of realization of details for which confirmation, PAN, 44AB Audit Report, sales bills, affidavit by Sanjaykumar H.Dua, purchase account by the assessee, the sales amount showing realisaction of cash and Return of Income showing profit sale were filed as per paper book, page 8, 25 – 45. The ld.Counsel submitted that there was opening balance of Rs.2,19,785/- for which the assessee has submitted balance sheet ending on 31.03.2005. The assessee has advanced the sum of

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 10 of 14

Rs.3,50,000/- prior to 01.04.2003 to Shri Harikrishna Silk Mills proprietor Sanjaykumar H.Dua [confirmed his part PB-26] M/s.Harikrishna Silk Mills is also reflected closing balance of Rs.3,74,912/- in his Tax Audit Report has cheques received from the appellant PB-27. M/s.Harikrishna Silk Mills squared up the amount during the F.Y.2004-05 by giving grey cloth against the amount payable to the assessee PB-28, 29, however, the assessee did not accept such grey cloth sale so made to her as repayment of cheques. Therefore, the assessee has shown outstanding receivable from Harikrishna Silk Mills in the F.Y. 2004-05. In support of this, the assessee filed an affidavit from Sanjaykumar H.Dua [PB-30-34] and ultimately M/s.Harikrishna Silk Mills could sell the grey cloths in F.Y. 2005-06 and the assessee account to squash cheques of Harikrishna Silk Mills [PB-35] while realizing cash against sales of Rs.3,92,397/-, therefore this cash obviously becomes cash of the source in the cash book. However, the ld.CIT(A) has not appreciated these facts. The ld.Counsel also supported his view by placing reliance in the case of Ranchhod Jivbhai Nakhava 208 taxman 35 (Guj) by submitting when the confirmation was filed the onus was shifted on the Assessing Officer to examine the creditors/lendors but failing on which the addition made is not

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 11 of 14

sustainable. Similarly, the ld.Counsel further placed reliance on the decision of CIT vs. Jagdish B. Agarwal [2010] 45 DTR (Guj) 197 in support of his claim.

Per contra, the ld.Senior Departmental Representative 18. supported the orders of the Lower Authorities and submitted that the assessee has failed to produce necessary explanation during show cause notice was issued to him [PB-96], therefore the Lower Authorities are justified in their action.

We have heard the rival submissions and perused the 19. material available on record. The submission of the ld.Counsel as discussed above paras have been examined and it is noticed that an amount of Rs.9,06,659/- has been received by the assessee through account payee cheques from M/s.Pradeep Textiles, Aaksh Fiber Ltd, Vasudev Bansal(HUF), Vasudev Bansal(individual), Bepsy Bhagwagar which has been duly reflected in the bank statement and ledger accounts of the assessee for which the assessee has furnished confirmation, PAN, bank statement, Return of Income of the concerned parties. Therefore, on going through the same and the evidence appearing in the paper book, page 4 and 6, 15 to 23 we find the Lower Authorities have failed to consider the same,

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 12 of 14

therefore, the addition so made and confirmed by the ld.CIT(A) is not sustainable in law, accordingly, same is directed to be deleted. This view is also supported by decision of Hon'ble Gujarat High Court in the case of Ranchhod Nakhava(supra).

With regard to addition of Rs.3,92,397/- and in respect of 21. Sanjaykumar H.Dua proprietor Harikrishna Silk Mills, we find that the amount of Rs.3,50,000/- is being shown from A.Y. 2003-04 as receivable by the assessee from Sanjaykumar H.Dua, however, same could not be paid by him. Therefore, it

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 13 of 14

is also noticed that the opening balance Rs.2,90,785/- is supported by the balance sheet of the previous year ending 31.03.2005 to show closing balance. Further, the balance of Rs.3,74,912/- is also reflected in the Tax Audit Report on Harikrishna Silk Mills, Sanjaykumar H.Dua the proprietor of the assessee has squared up the account by showing sales to the assessee. However, the same were not accepted by the assessee who later on said amount was sold against which the sum of Rs.3,92,397/- was realized [PB-36] and [PB-11] for which necessary evidence in the form of copy of bills, affidavits are filed. Therefore, the addition of Rs.3,92,397/- confirmed by the ld.CIT(A) is without any basis, hence same is directed to be deleted. With regard to addition of Rs.41,65,000/- amount received from Shri Ramnivas Sharma, we find that the Assessing Officer chose not to examine him as no summon issued, therefore, the assessee has discharged his onus. Therefore, this addition is deleted. However, with regard to the repayment of cheques given earlier claimed by the assessee in respect of Shri Dhanmal Rs.2,65,300/-, Mahavir Prasad Rs.85,000/- and Rajendra Prasad Rs.1,00,000/- we find that the above persons have appeared before the Assessing Officer in response to summons issued u/s.131 of the Act for which no confirmation was filed. Therefore, the addition in respect of

Archna Vasudev Bansal Vs. ITO, Ward-5(1), Surat / ITA No.2922/Ahd/2014 : A.Y: 2006-07 Page 14 of 14

these three persons confirmed by the Assessing Officer is accordingly sustained. In view of above, the addition of Rs.4,50,300/- is sustained and balance addition of Rs.17,61,751/- is deleted, accordingly this ground of appeal is partly allowed.

Ground No.2 is related to penalty proceedings u/s.271B 22. and 271E which is consequential in nature and does not require our adjudication.

Ground No.3 relates to charging of interest u/s.234A, 23. 234B, 234C which is mandatory, however the Assessing Officer will give consequential relief in respect of additions deleted.

In the result, appeal of the assessee is partly allowed. 24.