DCIT, BERHAMPUR CIRCLE, BERHAMPUR vs. BADRI NARAYAN MISHRA, GANJAM

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No. 166/CTK/2018 Assessment Year : 2014-2015

DCIT, Berhampur Circle, Vs. Shri Badri Narayan Mishra, Berhampur Prop. M/s. Sai Sitaram construction, I/E, Near LIC Colony, Berhampur. PAN/GIR No.AJPPM 5300 B (Appellant) .. ( Respondent)

Assessee by : None Revenue by : Shri Subhendu Dutta, DR

Date of Hearing : 25/09/ 2018 Date of Pronouncement : 25 /09/ 2018

O R D E R Per N.S.Saini, AM This is an appeal filed by the revenue against the order of

the CIT(A)- 1, Bhubaneswar dated 9.2.2918 for the assessment

year 2014-2015.

erred in deleting the addition of Rs.55,39,000/- made by the

Assessing officer towards unexplained cash credits u/s.68 of the

Act.

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matter was called for hearing. Therefore, we proceed to dispose

of the appeal of the revenue exparte qua the respondent-assessee

after hearing ld D.R. and on the basis of materials available on

record.

noticed that the assessee had deposited cash in his bank account

No.30095969287 with State Bank of India, ADB, Khodasingh on

two dates aggregating to Rs.55,39,000/-. Before the Assessing

Officer, it was submitted by the assessee that cash deposits had

come from private contract receipts disclosed by the assessee at

Rs.1,38,76,600/- in the return of income. The Assessing Officer

did not accept the explanation of the assessee mainly on the

ground that the assessee failed to produce cash book and name of

the persons from whom, the cash was received. Accordingly, the

Assessing Officer treated an amount of Rs.55,39,000/- as

unexplained cash credit of the assessee u/s.68 of the Act.

was duly maintained and subjected to tax audit. The cash book

was not submitted before the Assessing Officer as the same was

destroyed by the cyclone ‘hud-hud’.

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deleted the addition.

record, we find the assessee had deposited cash in his bank

account No.30095969287 with State Bank of India, ADB,

Khodasingh on two dates aggregating to Rs.55,39,000/-. The

Assessing Officer made addition u/s.68 of the Act on the ground

that the assessee failed to produce cash book and names of the

persons from whom the cash was received.

under:

“I have considered the facts of the case. There is no dispute that the assessee had disclosed a total receipts of Rss.1,38,76,600/- on account of private contract works. Though the assessee could not produce the cash book before the AO, that fact alone cannot lead to a presumption that the impugned cash deposit of Rs.55,39,000/- came from unaccounted sources and was not a part of the receipts disclosed at Rs. 1,38,76,600/-. It is also found that the AO has picked up cash deposits only on two dates for the purpose of addition u/s.68 and accepted cash deposits on other dates in the same bank account and also in two other bank accounts as explained and has not made any addition for the same. Going by the facts of the case, I do not see any justification on the part of the AO not to accept the claim of the assessee that that the impugned cash deposits represent a part of the private contract receipts disclosed by the assessee at Rs. 1,38,76,600. The AO has also not brought any material on record to prove that the impugned

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cash deposits could not have come from the private contract receipts. The assessee has pointed out that the addition could not have been made u/s.68 since there was no amount found credited in the books of the assessee so far as the impugned cash deposits are concerned. The contention of the assessee is correct but it is settled law that referring to a wrong section in the assessment order cannot vitiate the addition if the addition is otherwise sustainable under some other section of the Act. In any case, this point is not very relevant to the dispute in appeal.. Since the source of the impugned cash deposits is explainable from the private contract receipts disclosed by the assessee, the addition of Rs.55,39,000/-cannot be sustained. Hence, the same is deleted.”

on record to show that the assessee could not have deposited

Rs.55,39,000/- out of the contract receipt. Therefore, we find no

good reason to interfere with the order of the CIT(A), which is

hereby confirmed and appeal of the revenue is dismissed.

Order pronounced on 25 /09/2018.

Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 25/09/2018 B.K.Parida, SPS

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Copy of the Order forwarded to : 1. The appellant: DCIT, Berhampur Circle, Berhampur

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