AWADESH KUMAR SINHA,HAZARIBAGH vs. ITO WARD-1(1), HAZARIBAGH

आयकर अपीऱीय अधिकरण, रााँची न्यायपीठ, रााँची IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI श्री चन्द्र मोहन गगग, न्द्याययक सदस्य एवं श्री एऱ.पी.साहु, ऱेखा सदस्य के समऺ । BEFORE SHRI CHANDRA MOHAN GARG, JM AND SHRI L.P. SAHU, AM आयकर अपीऱ सं./ITA No.261&262/RAN/2016 & ITA No.179/RAN/2017 (नििाारण वषा / Assessment Year :2009-2010 to 2011-2012) Awadhesh Kumar Sinha, Vs. ITO, Ward-1(1), Matwari House Compound, Hazaribag Road No.2, Matwari, Near Path Finder Institute, Hazaribag-825301 स्थायी ऱेखा सं./ जीआइआर सं./ PAN/GIR No. : BOJPS 4450 J (अपीऱाथी /Appellant) (प्रत्यथी / Respondent) .. निर्धाऩिती की ओर से /Assessee by : Shri Dinesh Ch. Agarwal, Adv. राजस्व की ओर से /Revenue by : Shri P.K.Mondal, Addl.CIT(DR)

सुनवाई की तारीख / Date of Hearing : 26/08/2019 घोषणा की तारीख/Date of Pronouncement : 27/08/2019 आदेश / O R D E R Per Bench: These are the appeals filed by the assessee against the separate orders of Commissioner of Income Tax (Appeals), Hazaribag for the assessment years 2009-2010, 2010-2011 & 2011-2012, respectively. 2. As agreed by both the parties, the appeal No.261/Ran/2016 for the assessment year 2009-2010 is taken as a lead case for adjudication of all the three appeals having identical facts and grounds, the decision of the same will apply mutatis mutandis to all the three appeals. 3. The assessee has raised grounds in ITA No.261/Ran/2016 which are as under :-

2 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 1. For that the order of the learned Commissioner of Income Tax, (Appeals) is illegal, excessive and beyond the facts and circumstances of the case and as such is not maintainable. 2. For that the learned Commissioner of Income Tax (Appeals) has erred in dismissing the appeal especially in view of the fact that the appellant had ample fund in the Financial Year 2004-05 and 2005-06, amounting to Rs. 32,78,888/- and Rs. 26,49.447/- which was lying in the Union Bank of India A/e No..539102010001345. 3. For that the learned Commissioner of Income Tax (Appeals) ought to have considered that the same amounts were advances for purchase of land but the deal was cancelled and the amount of refund was credited in the A.Y. 2009-10 and the same was lying in the bank account. Due to change of method of banking from manual to computerized banking, the appellant was unable to submit the prober detail of transactions. 4. For that the learned Commissioner of Income Tax (Appeals) ought to have considered the fact that the appellant was a government servant and he was regularly getting salary from government of Bihar and the government of Jharkhand since 1980. 5. For that the confirmation of addition at Rs.23,59,000 is illegal and beyond all canon of justice. 6. For that other grounds will be urged at the time of hearing. 4. Brief facts of the case are that the assessee is a Government officer, working under Jharkhand Government as District Welfare Officer. On the basis of AIR/CIB information it was noticed that the assessee has deposited Rs.20,24,500/- in cash in his savings bank account. The assessee had taxable income which was higher than the limits in spite of that he had not filed his return of income. The case was reopened after recording the reasons thereof and notice issued u/s.148 of the Act on 26.12.2012 and thereafter other statutory notices were issued to the assessee. The assessee submitted his submissions vide letter dated 07.02.2013. Statements of various persons were also recorded by the

3 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 Assessing Officer. However, the Assessing Officer was not satisfied with the explanation of the assessee with regard to source of deposit made by the assessee in his bank account. Accordingly, the Assessing Officer completed the assessment and added Rs.27,46,749/- including other income also to the total income of the assessee for the assessment year 2009-2010. Similarly, Rs.40,39,149/- and Rs.23,67,601/- was added by the Assessing Officer for the assessment years 2010-2011 & 2011-2012, respectively. 5. Aggrieved from the order of Assessing Officer, the assessee appealed before the CIT(A). Ld. CIT(A) after considering the submissions of the assessee and the order of Assessing Officer, dismissed all the three appeals of the assessee for the respective assessment years under consideration. 6. Further aggrieved, the assessee is in appeals before the Income Tax Appellate Tribunal. 7. Before us, ld. AR reiterated the submission as were made before the lower authorities and submitted that there was sufficient cash balance with the assessee in his bank account and tried to justify the deposits in the bank account. Therefore, ld. AR prayed for allowing the appeals of the assessee. 8. On the other hand, ld. DR relied on the orders of lower authorities and submitted that the assessee has no credible evidence regarding source of deposits. Ld. DR further submitted that the assessee being a Government Servant, cannot do any other business and the submissions

4 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 made by the assessee are not correct because with prior permission the assessee cannot earn any other income except salary and deposits from salary income from bank account. It is also not disputed that the assessee has withdrawn huge amount in the earlier years but to whom it was given has not been disclosed by the assessee, therefore, the orders of lower authorities should be restored. 9. After hearing both the sides and perusing the entire materials available on record, we notice that the ld. CIT(A) has examined the issue in details and the findings of the ld. CIT(A) for the assessment year 2009- 2010 are as under :- 3.1 The facts of the case reflected that there was an AIR/CIB information about cash deposits of Rs.20,24,500/- in the appellant's Saving Bank Account during the Financial Year relevant to the Assessment Year 2009-10. Since the appellant had not filed any return for the period under consideration even though the income of the appellant was much higher than the taxable limit, the Assessing Officer issued notice 148 of the I.T. Act and completed the assessment u/s 143(3) of the I.T. Act. 3.2 As per observations of the Assessing Officer recorded in the Assessment Order, the appellant made a submission in the course of assessment proceedings that following sources of funds were available to the appellant: - (a) Saving from salary Rs.25,28,199/- upto 31/03/2010 (b) Sale of mother's jewelry Rs.62,66,698/-, (c) Family pension Rs.6,00,000/- after death of his father and other death benefits. (d) Gifts from relatives Rs. 11,20,000/- only on different dates, (e) Loan from friend, Mr. Mithilesh Mishra Rs.2,20,000/- only on different dates. Total:-Rs. 1,07,34,897/- 3.3 The Assessing Officer has discussed in the Assessment Order his findings about the appellant's claim with regard to the above sources of funds. 3.4 As regards the savings from salary, the Assessing Officer has observed in the Assessment Order that no documentary

5 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 evidences were submitted in the course of assessment proceedings regarding savings from salary. 3.5 As regards the receipt of Rs.6,00,000/- from family pension and death benefits of his father, the Assessing Officer has observed that the death of his father took place in 1971 who had to bear the social responsibility of two daughters and six sons and other younger brothers. The Assessing Officer also observed that the story of receipt of family pension/death benefit of his father is not acceptable because of father's weak economic status. 3.6 As regards the sale of mother's jewelry summons were issued to the jewelry shops where the sale were claimed to have been made by the appellant. On the basis of statement recorded from the jewelers the claim of the appellant was found to be false by the Assessing Officer. 3.7 As regards the gifts from the relatives, the Assessing Officer summoned all the donors and examined them on oath u/sl31. The Assessing Officer gave a finding that the creditworthiness of the donors were not established. 3.8 .As regards the loan from friends of Rs.2,20,000/-, the Assessing Officer has given a finding in the Assessment Order that when summon u/sl31 of the I.T. Act was issued to Shri Mithilesh Mishra, the same was returned un-served. So genuineness of the transaction could not be proved and hence it cannot be accepted. 3.9 After giving detailed findings about each and every source of funds which the appellant claimed to possess to justify the deposits in his bank account of Rs.23,59,000/-, the Assessing Officer held that the deposits are unexplained cash credits and added the same to the total income of the appellant u/s68 of the I.T. Act. 3.10 In the course of appellate proceedings hearings were conducted on various dates i.e. on 16/03/2016, 27/04/2016 and 28/04/2016. On 28/04/2016 the appellant's Authorized Representative finally made a request to cross-examine the jewelers to whom the appellant had claimed to have sold the jewelers. The cross-examination u/sl31 was allowed to the appellant on 04/05/2016. The appellant's A.R. refused to cross- examine one jeweler i.e. M/s. Urmila Jewelers. Another jeweler i.e. Vishni Shree Jewellers denied that any jewelry was sold to his shop by the appellant. The third jeweler i.e. M/s. Hira Panna Jewelers stated that he could not prove the sale of jewelry to him as no cash books or any other details were available with them. 3.11 After the cross-examination of the jeweirs, the appellant made a written submission on 11/05/2016 that the bank deposits reflect refunds of the same amounts which were given as advance to others. The appellant was asked to submit evidences and details

6 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 of persons, their addresses, nature of the advances, dates of advances as well as dates of refunds to prove the contention. On 31/05/2016, the appellant made a submission that the advances were given for purchase of land but due to non-materialization of the transaction the amounts were returned and since it pertains to the period often years, it is not possible to explain all the details of financial transaction. The appellant's Authorized Representative then made a submission that he could prepare cash flow statement and justify the accumulation of cash over a period of time. The appellant's Authorized Representative was given time upto 15/06/2016 on which date he made a final written submission which is reproduced as under: - "The above mentioned case was heard previously and it was directed to file the details of advances made to parties for purchase of land. I tried to take details from bank as well as from parties. But after 2008 the banks have switched to internet banking and as such the banks re not in a position to give the details of transaction prior to financial year 2008-09. On perusal of bank accounts for the period financial year 2004-05 and 2005-06 it will be apparent that the appellant had bank balance at Rs.32,78,888/- and Rs.26,49,447/- respectively in Union Bank of India Account No.539102010001345. I had also contacted the persons to whom advances have been given but in the absence of books of accounts maintained by them they are unable to issue confirmation letter. It is proved beyond doubt that the appellant is a Government Servant and not maintaining books of accounts and after the lapses of 10 years it is not possible to explain all the details of financial transaction. However, the details filed are sufficient to show that the appellant had ample funds to explain the deposits in bank accounts in F. Y. 2009-10. " 3.12 From the foregoing, therefore, it can be seen that despite giving the appellant sufficient opportunities to explain the sources of funds/deposits of Rs.23,59,000/-, the appellant failed to produce any evidence to rebut the findings of the Assessing Officer. I, therefore, uphold the addition of Rs.23,59,000/- to the total income of the appellant as unexplained cash credit u/s68 of the I.T. Act. The appellant fails on the grounds of appeal. 3.13 In the result, the appeal is dismissed.” 10. It is clear from the bank statement submitted by the ld. AR of the assessee that huge amount has been withdrawn from his bank account but it is not clear as to whom the amount has been given. We have also gone through the order of Assessing Officer and noticed that the

7 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 assessee could not establish regarding the source of deposits with credible evidence. The Assessing Officer has recorded the statement of various persons. In case of gifts, creditworthiness has not been proved from the documents produced by the donor and in case of loans the genuineness has not been substantiated with credible evidence. The Assessing Officer has also doubted the sale of jewellery of assessee’s mother. The assessee was also unable to substantiate before the Assessing Officer regarding other savings as claimed by the assessee. In the totality of facts and circumstances and findings of the lower authorities, we are of the considered opinion that the assessee could not establish his source of deposit in bank account, therefore, in view of the above, we do not find any infirmity in the above findings recorded by the CIT(A) in this regard. Accordingly, we uphold the same and dismiss the grounds of appeal of the assessee. Resultantly, the appeal of the assessee is dismissed. 11. Since, the facts and grounds raised in other two appeals i.e. ITA No.262/Ran/2016 & 179/Ran/2019 for the assessment years 2010-2011 & 2011-2012, being identical to the facts and grounds decided by us in the appeal of the assessee in ITA No.261/Ran/2016 for the assessment year 2009-2010, therefore, our observations and decisions made in the appeal for assessment year 2009-2010 will apply mutatis mutandis to the other two appeals i.e. ITA No.262/Ran/2016 & 179/Ran/2019 for the assessment years 2010-2011 & 2011-2012 also. Accordingly, these two appeals are also dismissed.

8 ITA Nos.261&262/Ran/2016 & ITA No.179/Ran/2017 6. In the result, all the three appeals of the assessee are dismissed. Order pronounced in the open court on 27/08/2019. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER रााँची Ranchi; ददनांक Dated 27/08/2019 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अपीऱाथी / The Appellant- . 1. Awadhesh Kumar Sinha, Matwari House Compound, Road No.2, Matwari, Near Path Finder Institute, Hazaribag-825301 प्रत्यथी / The Respondent- 2. ITO, Ward-1(1), Hazaribag 3. आयकि आयुक्त(अपील) / The CIT(A), आयकर आयुक्त / CIT 4. निभधगीय प्रनतनिनर्, आयकि अपीलीय अनर्किण, रााँची / DR, ITAT, Ranchi 5. गार्ग फाईऱ / Guard file. 6. सत्यापपत प्रयत //True Copy// आदेशािुसार/ BY ORDER, (Senior Private Secretary) आयकर अपीऱीय अधिकरण, रााँची / ITAT, Ranchi