ARUNKUMAR J. MUCHHALA vs. THE COMMISSIONER OF INCOME-TAX-8
What did the High Court hold?
The High Court held that the facts as emerged before the Assessing Officer were not in dispute. The assessee did not deny receiving loan amounts or cash deposits from the persons whose names were revealed from his bank account. The Court found that the assessee's claim of not maintaining books of account was raised for the first time before the High Court. It was observed that when an assessee is doing business, it is incumbent upon him to maintain proper books of account in any form, and he cannot take advantage of his own wrong if he fails to do so. The burden lies on the assessee to show the source and nature of the amounts received. Section 68 of the Income Tax Act applies where the assessee offers no explanation or an unsatisfactory explanation regarding the nature and source of credits in the books of account. The Court noted that huge amounts were credited to the assessee's account, and the source was discovered by the AO from the bank passbook. The Court found that amounts for which the source and nature were explained had been deleted by appellate forums. However, for the remaining disputed amounts (Rs. 9,00,000 from M/s. Pooja Corporation, Rs. 7,00,000 from M/s. Pooja Enterprises, Rs. 24,00,000 from Shri. Ashok Mehta, Rs. 18,00,000 from Mr. Ajay Shah), no documents were produced, and confirmations were not obtained. Therefore, the authorities below rightly held that the nature of the transaction was not properly shown by the appellant. The ratio of the authorities relied upon by the assessee was not applicable as, in those cases, entries were confirmed or books of account showed credits from undisclosed sources. The Court concluded that the appellant failed to produce relevant documents and explain the nature and source of amounts received, making the orders of the AO and appellate authorities justified. No substantial question of law was found.
What were the facts?
The assessee, Shri Arunkumar J. Muchhala, filed his return for Assessment Year 1996-97 on December 27, 1996, declaring a total income of Rs. 6,00,570. The case was selected for scrutiny. The Assessing Officer (AO) noted that the assessee had income from rent, share of profit, salary, and other sources, and also included income of his minor children amounting to Rs. 3,15,459. Despite multiple notices and adjournments, the assessee, through his advocate, repeatedly sought time to furnish details, including those related to NRI gifts and loans. Ultimately, the AO treated certain amounts received as unexplained cash credits and added them to the assessee's total income, which was determined at Rs. 1,26,88,794. The Commissioner (Appeals) partly allowed the appeal, deleting some entries, but the Income Tax Appellate Tribunal (ITAT) dismissed the assessee's further appeal.
What were the issues?
1. Whether Section 68 of the Income Tax Act, 1961, is applicable when the assessee claims not to have maintained books of account, and the credits are discovered from bank statements? (Question of law) Assessee's Contention: The assessee argued that Section 68 is not applicable as no books of account were maintained. He contended that amounts found in bank statements, if not entered in books of account, cannot be added to income. Reliance was placed on decisions in Baladin Ram v. CIT, CIT v. Bhaichand H. Gandhi, Anand Ram Raitani v. CIT, and CIT v. Smt. Usha Jain, emphasizing that Section 68 applies only to amounts credited in the assessee's books. The assessee also argued that authorities below failed to consider documents showing loan amounts received by cheque, which were returned as bookings for flats did not materialize. Revenue's Contention: The revenue argued that the orders passed by the authorities were correct. They submitted that numerous opportunities were given to the assessee to produce documents, but he failed to do so. The revenue asserted that it was the assessee's duty to explain the nature and source of cash deposits, and since he failed to do so, the addition under Section 68 was justified. Reliance was placed on Sudhir Kumar Sharma (HUF) v. CIT, which held that the addition under Section 68 is justified when the assessee fails to explain cash deposits, and the Supreme Court's dismissal of the SLP in that case.
Which sections of the Income-tax Act were involved?
Section 68,Section 143(1)(a),Section 143(2),Section 142(1),Section 271(1)(b),Section 274
AI-generated summary — verify with the full judgment below
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Cause title — parties, addresses and appearances
JUDGMENT (PER: SMT. VIBHA KANKANWADI, J)
This appeal challenges an order of the Income Tax Appellate Tribunal dated 30072014. 2. Shri. D. C. Jain, appearing for appellate has submitted that the questions of law at page No. 20 & 21 of the paperbook are substantial questions of law deserving admission of this appeal.
The factual matrix leading to the appeal, as noted by Assessing Officer are that appellant had filed return for the Assessment Year 199697 on 27121996 declaring total income at Rs.6,00,570/. CNR No : HCBM020283702014 Uploaded on - 21/08/2020 The return was processed u/s. 143 (1) (a) of the Income Tax Act, 1961 (for short I. T. Act), the case was taken up for scrutiny. The assessee had got income from rent, share of profit from R. F., Salary and income from other sources. Assessee had also returned the income of his minor children amounting to Rs.3,15,459/. Notice u/s. 143 (2) of the I. T. Act was issued on 8071998 fixing the date of hearing on 28071998. Nobody appeared on behalf of assessee. A notice u/s. 274 (1) (b) of the I. T. Act was therefore, issued for said default fixing hearing on 78 1998 and another notice dated 30071998 u/s. 142 (1), fixing the hearing on 07081998 was issued. Appellant was called upon to furnish information. Again, nobody attended the hearing, however, a letter dated 06081998, addressed by M/s. D. C. Jain, Advocates was received by the office on 12081998. It was mentioned by the Advocate that his client would require 15 days to comply with details. Said Advocate attended the hearing on adjourned date and again sought time for the preparation. Nobody attended the next adjourned date i. e. 10091998. Once again, notice u/s. 271 (1) (b) r/w. 274 of I. T. Act was issued and next date of hearing was informed. Some details were filed on 2409 1998. However, the details in respect of points Nos. (I), (ii) and (ix) to (xix) of notice u/s. 142 (1) dated 30071998 were not filed. Learned Advocate was asked to file proof of NRI gift received. There was no compliance of the same on 07101998, but thereafter a letter was Uploaded on - 21/08/2020 received on 23101998, stating that details are under preparation. Again there was no compliance on 06111998 and therefore, notice was issued. Advocate attended the date of hearing on 19111998. He was requested to give details as under : I) Details of N. R. I. Gift alongwith nature of relationship with donee i.e. the assessee. (ii) Details in respect of the following remaining items in the notice u/s. 142 (1) dated 30071998; item Nos. (i), (ii), (ix) to (xix), (iii) Letter of Authority Thereafter, also on some occasions, the matter was not attended and then when notices were issued, the assessee took time on the point of preparation. Further information was called from the Assessee through Advocate on 21011999. However, same response was received from the Assessee. It was submitted on behalf of assessee on 11031999, that the loan and interest statement was under preparation and copy of the account of 8 parties from whom loans were taken with confirmations were under preparation. Further opportunity was not given by the Assessing Officer, taking into consideration the response and attitude of the appellant.
The facts emerged further were that the assessee had received NIR gift of Rs.33.82,224/ by way of India Development Bonds from one Shri. Ashok Dhirajlal Parikh, who was friend of the assessee. Uploaded on - 21/08/2020 Further, the assessee had taken loan from Shri. Ajay Shah to the tune of Rs.18,00,000/, M/s. Pooja Corporation Rs. 9,00,000/, Shri. Ashok Mehta Rs. 21,00,000/, Saibaba International Rs.2,40,000/, Shri. Ashok Shah Rs. 3,00,000/, Suraj Maticland (P) Ltd. Rs. 10,00,000/, Muchhala Magicland Rs.6,06,000/, Arunkumar & Associates Rs.2,60,000/, Continental Corporation Rs.3,00,000/, M/s. Muchhal Magicland Pvt. Ltd. Rs.1,00,000/, Shri. Chandulal C. Patel Rs.3,00,000/. The Assessing Officer had come to the conclusion that since no confirmations have been given in respect of these amounts, they will have to be treated as unexplained cash credits and therefore the said amounts were added to the total income of the assessee. After the calculation the total gross income of the assessee was held at Rs.1,26,88,794/.
The Appellant preferred appeal to the Commissioner of IncomeTax (Appeals), bearing No. CIT (A)XIX/IT/ROT46/9900 and challenged the said decision of the Assessing Officer. Appeal came to be partly allowed on 29112010. It was found that explanation has been given in respect of some of the loan amounts and therefore, the said entries came to be deleted. Other entries were considered and no relief was given in respect of those remaining amounts.
Being aggrieved by the said order, Petitioner preferred further appeal to the IncomeTax Appellate Tribunal bearing No. ITA Uploaded on - 21/08/2020 No.1341/Mum/2011. The said appeal came to be dismissed on 3007 2014. Present appeal challenges the said order.
It has been vehemently argued on behalf of appellant that Books of accounts have not been maintained by the Petitioner and
therefore Sec. 68 of I. T. Act will not be applicable. Though it is a fact that certain amounts were taken by the Petitioner from those persons, yet, when entries of the same have not been taken in the books of accounts, they can not be added to the income of the Appellant for the assessment of tax. These entries have been found by the Assessing Officer on the basis of Bank Statement. No other document was considered by him, before issuing order. Reliance has been placed on the decision in Baladin Ram v/s. Commissioner of IncomeTax, U. P. reported in 1969 (71) ITR 427; wherein it has been held that, “Even under the provisions embodied in Section 68 of IncomeTax Act, 1961, it is only when any amount is found credited in the books of the assessee for any previous year that the section will apply, and the amount so credited may be charged to tax as the income of that previous year, if the assessee offers no explanation or the explanation offered by him is not satisfactory”. Similar ratio has been laid down in Commissioner of IncomeTax, Poona v/s. Bhaichand H. Gandhi reported in 1983 (141) ITR 67, Anand Ram Raitani v/s. Commissioner of IncomeTax reported in 1997 (223) ITR 544, Uploaded on - 21/08/2020 Commissioner of IncomeTax v/s. Smt. Usha Jain reported in 1990 (182) ITR 487. 8. It has been further submitted that Sec. 68 of IncomeTax Act is a charging section and it is also a deeming provision. Learned Counsel appearing for appellant relied on the decision in Commissioner of IncomeTax v/s. Taj Borewells reported in 2007 (291) ITR 232; wherein it has been observed that, “ Unless the following circumstances exist, the Revenue cannot rely on Section 68 of the Act : (a) Credit in the books of an assessee maintained for the year, (b) the assessee offers no explanation or if the assessee offers an explanation the Assessing Officer is of the opinion that it is not satisfactory, and the sum so credited is chargeable to tax as “income from other sources”. The assessee alone has to offer an explanation. If the assessee makes an explanation, it is for the Assessing Officer to accept it or reject it”.
It has been further submitted on behalf of appellant that the authorities below have failed to take into consideration the documents produced by the Appellant. The loan amounts were received by cheques and some of them were in respect of booking of the flats. The booking could not be materialized and therefore, cheques were returned and there was no credit at the end of the year. The amount ought not to have been held to be liable to be added in the income of the Petitioner.
Per contra, it has been submitted on behalf of Revenue that Uploaded on - 21/08/2020 the orders passed by the said Authorities are correct. Many opportunities were given to the Appellant to produce relevant document/ documents in order to substantiate and prove his version. Appellant had failed to give the further details of the persons from whom the loan was allegedly taken. It was the bounden duty of the assessee to explain the nature and source of cash deposits. It has been therefore, rightly held that assessee can not take any advantage of the transaction as he had not kept any books of accounts. Reliance has been placed on the decision in Sudhir Kumar Sharma (HUF) v/s. Commissioner of IncomeTax – III, Ludhiana reported in [2014] 224 Taxmann 178. It has been held that, “When during the assessment proceedings, Assessment Officer noticed that assessee had deposited huge amount of cash in his bank account; the addition of the said amount in the income of the assessee by invoking the provisions of Sec. 68 of Income Tax Act is justified. The ouns is on the assessee to explain nature and source of said cash deposits”. A Special Leave Petition was preferred challenging the above judgment; however, Supreme Court has dismissed the same and it has been reported in [2016] 69 taxmann.com 219 (SC).
The facts as emerged before the Assessing Officer appears to be not in dispute. The Appellant has not denied that he has received the said loan amount / cash deposits from those persons whose list has Uploaded on - 21/08/2020 been given in the order of Assessing Officer. He has revealed those names from the Bank account of the Appellant. Now, Appellant intends to say that he has not maintained books of accounts and therefore, those amounts can not be considered. When Appellant is doing business, then it was incumbent on him to maintain proper books and/ or books of account. It may be in any form. Therefore, if he had not maintained it, then he can not be allowed to take advantage of his own wrong. Burden lies on him to show from where he has received the amount and what is its nature. Unless this fact is explained he can not claim or have deduction of the said amount from the income tax. Sec. 68 of I. T. Act provides that where the assessee offers no explanation about the nature and source of the credits in the books of account, all the amounts so credited or where the explanation offered by the assessee is not satisfactory in relation to the same then such credits may be charged to tax as income of the assessee for that particular previous year. It is to be noted here in this case that huge amounts have been credited in the account of the Appellant and he has not explained the nature of the same. The source of the said amount has been discovered by the Assessing Officer from Bank Pass Book. It is to be noted that when the source and nature has been held to have been explained, the said amount has been deleted by the appellate forums. Now the dispute has remained in respect of amount of Rs.9,00,000/ from M/s. Pooja Uploaded on - 21/08/2020 Corporation, Rs.7,00,000/ from M/s. Pooja Enterprises, Rs.24,00,000/ from Shri. Ashok Mehta, Rs.18,00,000/ from Mr. Ajay Shah. No document was produced in respect of these transactions nor the amounts have been confirmed from those persons, who are shown to have lent them. The authorities below have therefore, rightly held that nature of the transaction has not been properly shown by the Appellant.
The ratio of the authorities relied by the learned Counsel appearing for Appellant is not applicable here. In those cases, either the entries were confirmed by the parties in whose name they were standing or books of accounts were showing the cash credits from undisclosed source. Here in this case, at no earlier point of time, a firm stand was taken by the Appellant that he has not maintained books of account. Whenever a direction was given to produce the same in any form, it was replied by the Appellant that he wants time to prepare. Many opportunities were given by the Assessing Officer for the production of relevant documents including books of account in the form of ledger, balance sheet, etc. However, such documents were never produced. Nonproduction of the document is different from not maintaining the Books of Account. The Appellant has raised the said point of “books of accounts not maintained” for the first time before this Court. The facts in the case of Sudhir Kumar Sharma (supra) are almost similar and therefore, the observations are binding. Uploaded on - 21/08/2020
When even after giving opportunities, The Appellant had failed to produce relevant documents and explain the nature and source of the amount received by him as narrated above; the order of the Assessment officer and the appellate authorities in respect of those amounts is justified. We do not find any substantial question of law raised by the Appellant in this appeal and therefore, we proceed to pass following order. ORDER
Appeal is hereby dismissed.
No order as to costs. (Vibha Kankanwadi. J.) (S. C. Dharmadhikari. J.)
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