DCIT, BERHAMPUR CIRCLE, BERHAMPUR vs. BADRI NARAYAN MISHRA, GANJAM
What did the Tribunal hold?
The CIT(A) deleted the addition, finding that the AO had selectively picked cash deposits and failed to provide material to disprove the assessee's claim that the deposits were part of disclosed contract receipts. The Tribunal confirmed the CIT(A)'s order.
What were the facts?
The Assessing Officer added Rs. 55,39,000/- as unexplained cash credit as the assessee failed to produce cash book and names of persons from whom cash was received for deposits in bank. The assessee claimed these deposits were from private contract receipts disclosed in the return.
What were the issues?
Whether cash deposits in a bank account can be treated as unexplained cash credit under Section 68 when the assessee claims they are from disclosed contract receipts and provides a plausible explanation for not producing the cash book.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
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.
The sole issue involved in this appeal is that the CIT(A)
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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None appeared on behalf of respondent-assessee when the
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.
The brief facts of the case are that the Assessing Officer
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.
Before the CIT(A), the assessee submitted that cash book
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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The CIT(A) after considering the assessee’s submission
deleted the addition.
Hence, the revenue is in appeal before us.
Ld D.R. relied on the order of the Assessing Officer.
After hearing ld D.R. and perusing the materials available on
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.
On appeal, the CIT(A) deleted the addition by observing as
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.”
The ld D.R. could not bring any cogent and positive material
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.
In the result, 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
The Respondent. Shri Badri Narayan Mishra, Prop. M/s. Sai Sitaram construction, I/E, Near LIC Colony, Berhampur 3. The CIT(A)-1, Bhubaneswar By order 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. Sr. Pvt. Secretary, //True Copy// ITAT, Cuttack
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