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Income Tax Appellate Tribunal, JAIPUR BENCHE-‘A’ JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 346/JP/2016
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE-‘A’ JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 346/JP/2016 fu/kZkj.k o"kZ@Assessment Year :2012-13 cuke Narsingh Lal Makhija Asst. CIT, Vs. Prop. M/s Prem Supari Bhandar, Circle-3, Old Dhan Mandi, Kota Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABMPM2586Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri B. L. Bhojwani (CA) jktLo dh vksj ls@ Revenue by : Shri Varindar Mehta (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/11/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 12/02/2019 vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against the order of ld. CIT(A)-4, Jaipur dated 21.01.2016 for AY 2012-13 wherein the assessee has raised the sole ground of appeal which is against confirming the action of the Assessing Officer in treating cash of Rs. 1,38,331/- as unexplained income of the assessee.
At the outset, it is noted that the Co-ordinate Bench has dismissed the appeal of the assessee in limine vide its order dated 29.11.2017 and the same has subsequently be recalled vide order dated 08.06.2018. The present appeal has accordingly come up for hearing before us.
Briefly stated the facts of the case are that during the course of survey u/s 133A conducted on 12.10.2011 at the business premises of the assessee,
ITA No. 346/JP/2016 Narsingh Lal Makhija, Kota Vs. Asst. CIT, Jaipur cash balance as per books was found of Rs. 5,28,431/- and physical cash of Rs. 3,90,400/-. During the course of survey, the assessee could not explain the short cash and he offered the same as undisclosed income for taxation. However, while filing the return of income, he has not offered the same for taxation. Accordingly, during the course of assessment proceedings, the assessee was asked to explain as to why the short cash may not be treated as undisclosed income for the year under consideration. In response, the assessee submitted that the surrender was made by him in confused state of mind and the cash found short cannot automatically constitute undisclosed income of the assessee. In support, reliance was placed on the Co-ordinate Bench decision in case of DCIT Vs. Eastern Medikit Ltd.,[2012] 135 ITD 461 (Delhi)/19 taxamn.com 288 (Delhi-Trib.).
The reply so filed was not found acceptable to the Assessing Officer and his findings are reproduced as under:- “I have considered the reply of the AR of the assessee and found not convincing for the reasons that during the course of survey proceedings the assessee in his sworn statements taken on oath on 12.10.2011 himself admitted that the short cash amounting to Rs. 1,38,331/- was unexplained and offered the same for taxation. Further, the possibility of utilization cash for personal/non business purpose cannot be ruled out. The assessee had utilized business money for non business/personal purpose that is why he could not explain the reasons for short fall on the day of survey/search. Therefore, he offered short cash for taxation as his undisclosed income. Thus considering all the facts & evidences together and also preponderance of probability that the assessee has introduced cash of Rs. 1,38,331/- in his books of account which found short at the time of survey, I hereby hold that the short cash of Rs. 1,38,331/- of the
ITA No. 346/JP/2016 Narsingh Lal Makhija, Kota Vs. Asst. CIT, Jaipur assessee is his unaccounted income and the same is hereby added to the total income of the assessee for the year under consideration.”
On appeal, ld. CIT(A) has confirmed the said addition and his findings are contained at para 3.1.2 which is reproduced as under:- “3.1.2 I have duly considered assessee’s submission and carefully gone through assessment order passed by the AO. I have taken a note of factual matrix of the case as well as applicable case laws relied upon.
In this case, a survey was conducted on the proprietary concern of the assessee M/s Yash Traders. During the course of survey, shortage of cash the extent of Rs. 1,38,331/- was found and assessee surrender the same. But while filing the return, assessee did not offer the same for taxation in the return filed in compliance to notice 153A of the Act. It is a facts that assessee had not filed any reconciliation statement with regard to shortage of cash till date. Further, on the day of survey, no closing stock has been found and assessee clarifies that entire stock has been sold out and no bills are available. AO has mentioned the same in para 8.1 pg 6 of the assessment order. It is true that assessee can retract from the surrender made during the survey operation within a reasonable period. Here survey was conducted on 12.10.2011 and assessee filed his return on 30.03.2013. Assessee could have filed the reconciliation statement with regard to shortage of cash even during the post search investigation which he has failed to do so. In this regard, I would like to refer decision given by Hon’ble P & H High Court in case of Kishan Lal Shiv Chand Rai wherein it is held that in such a situation, burden of proof lies on the assessee. Instead of providing reconciliation statement for the shortage of cash, assessee is raising only technical queries. In absence of any reconciliation statement, it can be safely 3
ITA No. 346/JP/2016 Narsingh Lal Makhija, Kota Vs. Asst. CIT, Jaipur presumed that assessee has nothing to support its contention. In view of this, the case laws relied upon by the assessee will be of no help. Accordingly, addition made by the AO is here by sustained. Assessee’s appeal in ground no. 1 fails.”
Heard both the parties and perused the material available on record. The Assessing officer has recorded a finding that cash balance as per books of accounts was Rs 5,28,431 and physical cash so found was Rs 3,90,400. It is therefore a case where the cash found as per books is more than physical cash. It may be that certain expenditure has been incurred but not recorded in the books of accounts or as alleged by the Assessing officer that money has been utilised for non-business/personal purposes. However, it is not a case where cash so found is not recorded in the books of accounts and therefore, the same cannot be treated as undisclosed income of the assessee. Hence, the addition so made is hereby directed to be deleted.
In the result, appeal of the assessee is allowed.
Pronounced in the Open Court on 12/02/2019.
Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 12/02/2019 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Narsingh Lal Makhija, Kota 2. izR;FkhZ@ The Respondent- Asst. CIT, Circle-3, Jaipur 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 4
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