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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI R.S. SYAL
आदेश / ORDER
PER R.S.SYAL, VP :
These appeals by three related but different assessees
relate to the assessment years 2013-14. Since common issue is
raised in all these appeals, I am, therefore, proceedings to
dispose them off by this consolidated order for the sake of
convenience.
ITA No.760/PUN/2018 – Nilesh N. Agarwal :
The only issue raised in this appeal is against the
confirmation of addition of Rs.11,54,662/- on account of non-
genuine business activity/expenses.
Briefly stated, the facts of the case are that the assessee
made certain cash deposits in his savings bank accounts
maintained with Cosmos bank, Bank of India and HDFC
Bank. On being called upon to present the source of such
deposits, the assessee submitted that the deposits were made
out of cash balance in the cash book. The assessee further
explained that the receipts in cash book were mainly from cash
sales. The Assessing Officer (AO) required the assessee to
produce the books of account which the assessee could not. It
3 ITA Nos.760 to 762/PUN/2018 Nilesh N. Agarwal and 2 others
was however maintained that he made purchases in cash and
also effected sales in cash and the deposits in the banks were
out of such cash sales. The AO took up the figure of cash
sales at Rs.29,20,795/- as “Income from other sources”. After
allowing deduction on account of interest and considering the
profit already shown by the assessee at Rs.12,30,197/- along
with certain expenditure booked at Rs.11,54,662/-, the AO
made an addition of Rs.23,84,860/-, comprising of
disallowance of expenditure at Rs.11.54 lakh and non-genuine
sales. The ld. CIT(A) sustained the addition by observing that
the assessee could not produce even a single document to
show that his bank transactions represented business receipts.
The assessee has come up in appeal against the sustenance of
such an addition.
I have heard both the sides and perused the relevant
material on record. The assessee has filed a paper book
comprising of 207 pages as additional evidence. The ld. AR
contended that the files containing purchase vouchers etc.
were misplaced and could not be located during the course of
proceedings before the authorities below, as those were kept
4 ITA Nos.760 to 762/PUN/2018 Nilesh N. Agarwal and 2 others
separate when renovation and construction work was going on.
A request was made that a further opportunity should be given
to the assessee to adduce evidence in support of genuineness
of transactions recorded in his bank accounts, which is now
available. In view of the fact that the authorities below have
disbelieved the genuineness of transactions of purchases, sales
and expenses on the ground that supporting vouchers were not
available and the assessee is now claiming to have collected
all such evidence, I am of the considered opinion that the ends
of justice would meet adequately if the impugned order on this
score is set-aside and the matter is restored to the file of AO. I
order accordingly and direct him to frame the assessment
afresh after allowing reasonable opportunity of hearing to the
assessee. It is made clear that the assessee will be at liberty to
lead any fresh evidence in support of his claim which he
considers expedient.
ITA No. 761/PUN/2018 – Anesh N. Agarwal ITA No.762/PUN/2018 – Nandkumar M. Agarwal
The facts and circumstances of these two appeals are
admittedly similar to those of Sh. Nilesh N. Agarwal. In the
5 ITA Nos.760 to 762/PUN/2018 Nilesh N. Agarwal and 2 others
case of Sh. Anesh N. Agarwal, the ld. CIT(A) sustained the
addition at Rs.10,56,852/-; whereas in the case of Sh.
Nandkumar M. Agarwal, he sustained the addition at
13,98,470/-. Sh. Anesh N. Agarwal is brother of Sh. Nilesh N.
Agarwal, whose appeal has been disposed off above. Sh.
Nandkumar M. Agarwal is father of Sh. Nilesh N. Agarwal.
In view of the fact that the facts and circumstances of these
two appeals are admittedly similar, following the view taken
hereinabove, I set-aside the impugned orders and remit the
matter to the file of AO. I order accordingly and direct the AO
to frame the assessments afresh in conformity with the
directions given in the case of Sh. Nilesh N. Agarwal above.
In the result, all the three appeals are allowed for
statistical purposes.
Order pronounced in the Open Court on 21st February, 2019.
Sd/- (R.S.SYAL) उपा�य� उपा�य�/ VICE PRESIDENT उपा�य� उपा�य�
पुणे Pune; �दनांक Dated : 21st February, 2019 सतीश
6 ITA Nos.760 to 762/PUN/2018 Nilesh N. Agarwal and 2 others
आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत / Copy of the Order is forwarded to : अ�ेिषत आदेश आदेश आदेश अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-3, Pune 4. The Pr. CIT-2, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. // True copy // आदे आदेशानुसार शानुसार/ BY ORDER, आदे आदे शानुसार शानुसार
// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 20-02-2019 Sr.PS 2. Draft placed before author 21-02-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *