SR. LOGANATHAN MANICKAM,BENGALURU vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5(1)(2), BENGALURU

PER CHANDRA POOJARI, ACCOUNTANT MEMBER:

The order of the authorities below in so far as it is against 1. the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case.

2. The appellant denies himself liable to be assessed on a total income of Rs. 4,69,27,040/- determined by the learned assessing

Sri Loganathan Manickam, Bangalore officer and confirmed by the learned Commissioner of Income-tax [Appeals], as against the income declared by the appellant of Rs. 68,24,400/-, on the facts and circumstances of the case of the appellant.

[a] The learned Commissioner of Income-tax [Appeals] erred in confirming the finding of the learned assessing officer that the appellant has failed to explain the credits in the Savings Bank Account of the Act without even properly appreciating the facts and circumstances and also the evidences produced by the appellant, which was summarily rejected and arbitrarily passed the order, based on suspicion and surmises and consequently, an order passed without any proper verification and appreciation of facts deserves to be cancelled and the additions made requires to be deleted for the advancement of substantial cause of justice, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and [b] the learned assessing officer were not justified in not accepting the explanation given by the appellant as regard to the sources for depositing into the savings Bank Account of the Appellant and erroneous added the credits which are explained and consequently made additions based on suspicion and surmises, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and [c] the learned assessing officer failed to properly appreciate that the deposit of a sum of Rs. 75,00,000/- in to the Savings Bank Account of the appellant was out of the earlier withdrawals and available amounts and the source being the Loan from the Central Bank of India and consequently added a sum of Rs. 75,00,000/-erroneously and on a wrong appreciation of actual facts without any proper basis, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and [d] the learned assessing officer were not justified in making

Sri Loganathan Manickam, Bangalore addition to the extent of Rs. 1,92,00,000/-being the advance amounts received by the appellant towards the sale of the apartments constructed which is supported by the. agreement to sell entered into by the appellant with the prospective purchasers and consequently made the additions which is arbitrary, based on suspicion and surmises, on the facts and circumstances of the case.

The learned Commissioner of Income-tax [Appeals] and [e] the learned assessing officer failed to properly appreciate that the deposit of a sum of Rs. 44,61,000/- in to the Savings Bank Account of the appellant was out of the earlier withdrawals and available amounts the source being the Loan from the Central Bank of India and consequently added a sum of Rs. 44,61,000/- erroneously and on a wrong appreciation of actual facts without any proper basis, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and [f] the learned assessing officer were not justified in making addition to the extent of Rs. 76,85,000/-being the advance amounts received by the appellant towards the sale of the apartments constructed and the same having been deposited into the bank account and withdrawn and redeposited out of the withdrawals made and consequently made the additions which is arbitrary, based on suspicion and surmises, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and [g] the learned assessing officer failed to properly appreciate that the deposit of a sum of Rs. 5,70,20G/-in to the Savings Bank Account of the appellant was out of the earlier withdrawals and available amounts consequently added a sum of Rs. 5,70,200/-erroneously and on a wrong appreciation of actual facts without any proper basis, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] failed to 4. appreciate that the primary onus casted upon the appellant having been discharged and the details of deposits were made available to the learned assessing officer and also the learned Commissioner of Income-tax [Appeals], and consequently the addition made as undisclosed income is arbitrary and based on suspicion and surmises and ought to have been deleted, on the facts and circumstances of the case. The learned Commissioner of Income-tax [Appeals] and the 5. learned assessing officer were not justified in law in rejecting

Sri Loganathan Manickam, Bangalore the claim of the appellant unreasonably without proper appreciation of the proofs established as no proof and without conducting further enquiry, on the facts and circumstances of the case.

The learned authorities failed to appreciate that the appellant 6. had shown a sum of Rs. 80 Lakhs as investment in the apartment construction i.e. "Global Nandanam" which was appearing in the balance sheet of the proprietorship concern of the appellant i.e. M/s. Perfect Tools and the same were filed in ITR - 4, and consequently the learned authorities ought not to have held that the appellant has not disclosed the transactions or business of construction of apartments, on the facts and circumstances of the case. Without prejudice though not conceding, assuming for a 7. moment the appellant has not disclosed the transactions of construction of apartments by the learned authorities ought to have appreciated that the entire deposits into the bank account do not constitute income and consequently the learned assessing officer and the learned Commissioner of Income-tax [Appeals] were not justified in making an addition of Rs. 3,94,16,200/- on the facts and circumstances of the case. Without prejudice though not conceding the learned 8. authorities ought to have given the benefit of telescoping the earlier withdrawals made and amounts available with the appellant for making deposit into the bank account, on the facts and circumstances of the case. The Appellant denies himself liable to be charged to interest 9. under section 234 A, 234 B Et 234 C of the Income-Tax Act, 1961, on the facts and circumstances of the case. The Appellant craves leave of this Hon'ble Tribunal, to add, 10. alter, modify, delete or substitute any of the grounds urged above. In the view of the above and other grounds that may be urged 11. at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.”

Sri Loganathan Manickam, Bangalore

Additions made on ,account of Non deduction of ADS on interest Rs.2,68,947 o o Unpaid amount of employees' contribution ESIC&PF Rs.35,488 o Interest paid on Housing Loan Rs.3,82,005 o Income from other sources—undisclosed income – Cash deposited into SB A/c with Vijaya Bank Rs.3,94,16,200 Total Rs.4,01,02,640 2.1 The facts of the case are that notice u/s. 142(1) of the Act dated 09.12.2016 along with the questionnaire was issued. Among other details sought as per notice, the reason for selecting the case for limited scrutiny is cash deposits in savings bank accounts is more than turnover'. During FY 2013-14, there were cash deposits in SB A/c No : 117301011005791 with Vijaya Bank to the extent of Rs.3,94,16,200/-.

Sri Loganathan Manickam, Bangalore 2.2 Assessee vide his letter dated 10.12.2016 had submitted the details sought as per questionnaire to notice u/s. 142(1). Details regarding cash deposits in SB account were also furnished as under:

Cash deposits in Savings Bank Account is related to construction of apartment project — Global Nandan. Construction of Global Nandan residential project was started during the year. Deposits are out of advance received from customers, transfer of a part of the loan sanctioned by Central Bank of India into SB Account for construction and deposits out of earlier withdrawals. As on 31.03.2014, the construction has not reached significant level of physical progress. Details of cash deposited into SB account are attached along with source thereof.

2.3 Assessee vide his letter dated 15.12.2016 has also furnished once again details of source of cash deposits into SB Accounts as under:

During February 2013, I hod purchased vacant converted land of 13.5 guntas at No.06, Abbigere Main Road, Bangalore - 560 090 for a consideration of Rs.25,84,000 + Registration + Stamp duty. During FY 2013-14, I could get plan approved from village Panchayat Kereguddadahalli, Abbigere, Bangalore. Project is for construction of 51 No. of residential flats consisting of Ground + four floors + 4000 sft commercial - aggregate saleable area is 55000 sft. For the purpose of construction of the project, I hod availed

Sri Loganathan Manickam, Bangalore mortgage loan from Central Bank of India, Jalahalli Cross, Bangalore - Mortgage Loan A/c No : 3258701681. Initially, CBI has given mortgage loan of Rs.131 Lacs, further enhanced to Rs.250 Lacs. As on 31.03.2014, construction was under progress and below 25%. As on 31.03.2014, No flats were sold. During FY 2013-14, agreements to sale were entered into for sale of Flats. Advance received from customers towards sale of flats and loan availed were deposited in Vijaya Bank SB Account. Deposit into said SB account also includes amount withdrawn out of Bank Mortgage Loan to the extent of Rs. 75 Lacs.

2.4 Individual details of amount withdrawn and deposited were provided as per assessee’s letter dated 10.12.2016.

2.5 Investment made by him in Global Nandan Project to the extent of Rs.80 Lacs is disclosed in the books of account.

2.6 Financial statements filed along with ROI are for business transactions of M/s. Perfect Tools including my investment of Rs.80 Lacs in Global Nandan Project — Housing Project.

2.7 Assessee stated that he had explained the source of cash deposits into Vijaya Bank SB Account date wise and my investments made out of M/s. Perfect Tools. As can be seen from financial statements filed, my investments in the Global Nandan Project are reflected. As per his letter dated 10.12.2016, he had furnished details of cash deposited into SB Account with Vijaya Bank

Sri Loganathan Manickam, Bangalore 2.8 Assessee vide his letter dated 21.12.2016 has submitted the details as under: • Copy of approved building plan - apartment construction • Central Bank of India Loan Sanction letter • Statement of advance received from prospective buyers • Copies of Agreement to sell • Statement of source of deposit of cash into SB Account • Date wise deposit of cash into Vijaya Bank SB A/c No:5791 • Bank account statement - Vijaya Bank A/c No : 117301011005791 • State Bank of Mysore SB A/c No : 64075654086 • Indian Bank SB A/c No : 708271784 • Central Bank of India — Current A/c 3256467891 • Central Bank of India — Loan statement : 3258701681 • Consolidated Balance Sheet of mine consisting of Perfect Tools and Global Nandanam 2.9 The learned ACIT, Circle 5(1)(2), Bangalore has issued the final show cause notice dated 19.12.2016 to the assessee asking him to show cause for the following proposal.

“As per AIR information your Vijaya Bank account has cash deposits of Rs.3,99,16,200 and as per your submission Vijaya Bank Account No : 117301011005791 has cash deposit of Rs.3,86,43,000. Please show cause why the entire amount should not be treated as your income under the head - 'Income from other sources”.

2.10 The assessee has replied to the show cause notice vide his letter dated 23.12.2016 as under:

Sri Loganathan Manickam, Bangalore

Aggregate cash deposit in Vijaya Bank as per Show Cause Rs. Notice 3,99,16,200 Less : Cash Deposit of Rs.5,00,000 on 07.10.2013 in SB A/c No:117301011005791 shown twice in Bank Pass Sheet and subsequently reversed on 7.10.2013 (as "twice credit reversed") 5,00,000 CASH DEPOSITED IN SB A/c — Vijaya Bank No:117301011005791 3,94,16,200 2.11 After reconciliation, assessee attached date-wise cash deposit in Vijaya Bank A/c No:117301011005791 during FY 2013-14 as per books. As per books aggregate amount of cash deposit in SB A/c is Rs.3,94,16,200/-.

2.12. Sources of cash deposit into SB A/c Assessee’s prayed to refer his letters dated 15.12.2016 and 21.12.2016. As stated in his earlier letters, the said cash deposits is related to Global Nandanam Project — Housing projects —Apartments under construction started during FY 13-14 and physical progress is below 25%.

2.13 As can be seen from the above, assessee stated that the entire cash deposits in Vijaya Bank SB Account amounting to Rs.3,94,16,200 is well explained and Sri Loganathan Manickam, Bangalore documentary proof thereof have been provided in his submission vide letter dated 21.12.2016. The same are in the nature of liabilities relating to Housing Project — Apartment under construction and not his income.

2.14 Source of cash deposits into SB Account with Vijaya Bank are as under:

Amount Remarks Date Rs. Out of Central Bank of India Loan of Rs.131 Lacs, a sum of 30.05.2013 75,00,000.00 Rs.75 Lacs was credited to SB A/c with Vijaya Bank No:5791. On the same day, vide Ch No : 26421614 dt.30.5.2013, a sum of Rs.75 Lacs is drawn by way of self cheque. Out of the said withdrawal and available cash, I have deposited cash into SB A/c on various days depending upon requirements to pass the cheques issued towards construction business. From 17 1,92,00,000.00 During FY 2013-14, I had received by way of cash advance from customers towards sale of flats (registration after Jul 13 to 21 31.3.2014) to an Jan 14 extent of Rs.192 Lacs.Depending on requirements of funds to pass cheques issued for construction from Vijaya Bank SB A/c, I had deposited cash received as advance from flat owners From 30 44,61,000.00 From Central Bank of India Loan Account, a sum of May 13 to Rs.44.61 Lacs (net) was drawn during the period from 31 Mar 14 30.05.2013 to 31.03.2014 by way of self cheques. FY 2013-14 76,85,000.00 During FY 2013-14, I had received by way of Cheques / proceeds of housing loan sanctioned relating to individual flat agreement holders a sum of Rs.224.85 Lacs (excluding refund of Rs.6 Lacs). This includes cheques deposited in SB ZA/c of Vijaya Bank to an extent of Rs.76.85 Lacs. Amount deposited subsequently out of self cheque withdrawal required to pass cheques issued for construction payments on various days FY 2013-14 Amount deposited subsequently out of self cheque 5,70,200.00 withdrawal from SBM SB A/c

2.15 The learned ACIT Circle 5(1)(2), Bangalore in para 6.3.4 of the order has not considered any of the above explanations in Sri Loganathan Manickam, Bangalore support of source of deposits of cash into SB Accounts for the following reasons: “For a deposit of Rs.75 Lakhs into SB Account is out of re- i) deposit of cash withdrawn from SB Account relating to Rs.75 Lakhs transfer of funds from Central Bank of India Loan Account Loan documents of Central Bank of India were examined and there was no mention of Global Nandanam Project. Assessee has submitted loan enhancement letter but not original loan sanction letter. From the information available, it can be seen that it is mortgage loan for which his own land at No.6, Abbigere Main Road, Bangalore — 560 090 was given as security. Hence, it cannot be concluded that this loan is related to assessee's construction business. Further, assessee's submission that Rs. 75 Lakhs is withdrawn and same is deposited back into account in the form of Cash on various days to issue cheques for construction business as and when required appears to be suspicious because if the intention is-to issue cheques why to withdraw and deposit the same on multiple days? TDS also not suffered for the expenses made. Inventories of such construction business not shown in the Schedule AL of ITR-4. Thus, these transactions appear to be sham transactions and thus, of Rs. 75 Lakhs is considered as income from various other sources. For a deposit of Rs.192 Lakhs into SB Account — advance ii) received from prospective buyers of flat

Sale Agreements provided by assessee are not registered. All the amounts are taken in cash and deposited in the Bank in cash. Further, if these advances were real; they would appear in Schedule AL-ITR-4. Thus, assessee's stand that these are advances from customers is hereby rejected and Rs.192 Lakhs is considered as his income from various other sources. For a deposit of Rs.44.61 Lakhs into SB Account — self cheque iii) drawn from Central Bank of India — Loan account (net) and deposited into SB account

For the reasons explained in SI No. (i) these transactions appear to be sham and thus, Rs.44.61 Lakhs is considered as income from various other sources.

Sri Loganathan Manickam, Bangalore

For a deposit of Rs. 76.85 Lakhs into SB Account — re-deposit iv) of cash withdrawn from SB Account out of housing Loan sanctioned from Central Bank of India and advance received by way of cheques deposited in SB Account

For the reasons explained in 51 No.(i) these transactions appear to be sham and thus, Rs.76.85 Lakhs is considered as income from various other sources. For a deposit of Rs.5, 70,200 into SB Account — re-deposit of v) cash withdrawn from SBM SB Account by way of self cheques

For the reasons explained in SI No.(i) these transactions. appears to be sham and thus, Rs.5,70,200 is considered as income from various other sources.

Further, even if the completion of apartment project has not reached 25% of physical progress, expenses should have been routed through Profit and Loss Account and WIP and advance received should have been disclosed in Schedule AL. Hence, as per AO the entire cash deposits received by the assessee is treated as undisclosed income — under the head income from other sources. Accordingly, an addition of Rs.3,94,16,200 is added back as undisclosed income of the assessee under the head Income from Other Sources.”

2.16 Aggrieved by the order passed by the learned ACIT, Circle 5(1)(2), the assessee prefers this appeal..

3. On appeal, Ld. CIT(A) observed as follows:-

“5.5 Now I am proceed in adjudicating the ground of appeal. During the appellate proceedings the appellant submitted that during the year under consideration apart from regular business of job work in Corrosion Preventions Systems in the name of the proprietor M/s. Perfect Tools, he stated construction activity in the name of Global Nandan on his own land at No.06, Abbigere Main Road, Bangalore- 560090. Further submitted that as on 31/01/3/2014, since the construction was not reached significant level of physical progress no income even on the percentage completion was offered. For the sources for cash deposited into the SB account the appellant submitted that those deposits were out

Sri Loganathan Manickam, Bangalore

Page 13 of 16 of advances received from customers, transfer from the loan sanctioned by Central Bank of India for construction purpose and also the deposits were out of earlier withdrawals. The copies of the documents such as agreements with the prospective buyers of the flats. Balance-Sheet as at 31/03/2014 of Global Nandan and also a combined Balance Sheet furnished before Assessing Officer and the same have been perused. The appellant by explaining that the deposits are out of cash receive from the prospective buyers of the flats to be constructed as advance and out of the loan amount received from the Central Bank of India withdrawn in cash and deposited into SB account and part of the deposits out of earlier withdrawal without any corroborative evidence, correlating the deposits with the withdrawals cannot absolve the onus casted upon the appellant explained the sources for the cash deposits. Thus, there was no satisfactory and plausible explanation offered by the appellant. Moreover, the appellant has neither declared the profits out of the construction business nor admitted the activity under the proprietary by Global Nandan. On perusal of the sale agreement, it is seen that on entering into an agreement cash of Rs.5 lakhs on an average has been shown as received. Whereas the date-wise received and the date-wise deposits into the bank could be correlated. Even the loan amount receive from Central Bank of India the reason as to why withdrawn in cash and subsequently deposited into SB account is also not explained. Further, the sources for same deposits as explained to be the earlier withdrawals are also not acceptable for the reason that no correlation for withdrawals and deposits could be made. In view of the above discussion, I find there is no reason to interfere with the order of the Assessing Officer. Therefore, the grounds of appeal are hereby dismissed.”

3.1 Against this assessee is in appeal before us.

Sri Loganathan Manickam, Bangalore

Page 15 of 16 6. On the other hand, Ld. D.R. submitted that assessee has not satisfactorily explained each deposit into bank account to the satisfaction of the AO. Hence, addition is sustained.