NITESH DOSHI,INDORE vs. JCIT RANGE-2, INDORE

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE

BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER

ITA No. 743/Ind/2017 Assessment Year: 2010-11

Shri Nitesh Doshi, 64, Bada Sarafa Indore PAN – ABJPD2801Q :: Appellant

Vs

JCITO, Range-2, Indore :: Respondent

Appellant by Shri Mahesh Agrawal & Shri Amit Choudhary, ARs Revenue by Shri R.S. Ambedkar, Sr. DR Date of hearing 14.11.2018 Date of pronouncement 16 .11.2018

O R D E R This appeal is filed by the Assessee against the order of Commissioner of Income Tax (Appeals)-III, Indore dated 21.08.2018 pertaining to A.Y. 2010-11. The assessee has raised

following grounds of appeal:

“On the facts and circumstances of the case, the commissioner (Appeals) erred in law as well as on facts by confirming the addition of Rs.1,16,600/- made u/s 68.

SMC – Nitesh Doshi 2 ITA No.743 of 2017

On the facts and circumstances of the case, the Commissioner (Appeals) erred in law by sustaining addition referring section u/s 69 or 69-B instead of original section u/s 68 in which addition was made by the Ld. AO.” 2. The only effective ground is against confirming the addition of

Rs.1,16,600/- made u/s 68 of the Act.

assessee was picked up for scrutiny assessment and the

assessment u/s 143(3) of the Income Tax Act 1961(hereinafter

called as ‘the Act’) was framed vide order dated 25.03.2013 while

framing the assessment, the assessing officer notices that the

assessee is in bank account no.18297 with bank of India,

Malharganj Branch, Indore deposited sum of Rs.1,74,713/- on

the basis that during the assessment year 2009-10 also such

addition was made.

CIT(A) which came to be sustained by the Ld. CIT(A). The Ld.

CIT(A) has sustained the addition by observing as under:

“5. I have gone through the assessment order and the appellant’s contentions. After going through summary of the total deposits, it is seen that out of the total deposits, the appellant has failed to explain the cash deposit of Rs.1,16,600/- made during the year. Though the assessing officer has simply relied upon the detailed reasoning given in the assessment order passed in the appellant’s case for A.Y.

SMC – Nitesh Doshi 3 ITA No.743 of 2017

2009-10, but the fact of the matter is that the appellant has failed to discharge the onus of explaining the cash deposits of Rs.1,16,600/-. 5.1 The appellant has advances the argument that as it is not maintaining any books of account, the deposits found in the bank statement section 68 is not applicable. Reliance has been placed on several judgments. This argument is however, not acceptable. Though section 68 of the Act may not be strictly applicable since the assessee was not maintaining any books of accounts and the bank statement cannot be considered as the assessee’s books of account on the basis of the judgment of the Supreme Court in the case of A. Govendrajulu Mudgment 34 ITR 807, it is the onus of the assessee to explain the cash received by him and if there is no explanation or acceptable evidence to prove the nature and source of the receipt, the amount may be added as the assessee’s income on general principles and it is not necessary to invoke section 68, nor is it necessary for the income tax authorities to point out the source of the monies received. Even if section 68 is not applicable, the cash deposit in the bank can be asked to be explained by the assessee under section 69 or section 69B of the Act. In this regard reliance is placed on the decision of Hon'ble I.T.A.T., Delhi in the case of Shri Manoj Agrawal vs. DCIT 113 ITD 377 (SB). 5. It was stated during the course of hearing that the deposits

relate to personal account of the assessee and out of savings duly

recorded in the cash book. Ld. counsel for the assessee has

drawn my attention to paper book page 43.

and supported the orders of the authorities below.

record. We find that the assessing officer as well as Ld. CIT(A)

SMC – Nitesh Doshi 4 ITA No.743 of 2017

have sustained the addition on the basis of the finding of the

earlier year. In present year the assessee has pointed out the

transactions are duly recorded in the cash book with narration.

There is no adverse material placed on record on behalf of

Revenue suggesting that entries made in the cash book are not

correct. Therefore, I am of the view that addition was not called

for. The assessing officer is hereby directed to delete the addition.

Order was pronounced in the open court on 16.11.2018.

Sd/- (KUL BHARAT) JUDICIAL MEMBER Dated : 16.11.2018 Patel Copy to: Appellant/Respondent/Pr.CIT(A)/Pr.CIT/DR, Indore Assistant Registrar, Indore