Loading judgment…
Facts
The assessee filed three appeals against orders upholding additions made under Section 153A r.w.s. 143(3). The additions related to cash deposits in foreign bank accounts during Assessment Years 2009-10, 2014-15, and 2015-16. The assessee claimed these were from relatives residing in Dubai, but failed to provide sufficient evidence.
Held
The Tribunal noted that the assessee failed to provide satisfactory evidence regarding the identity of the depositor, the genuineness of the transaction, and the creditworthiness of the purported lender. Due to the lack of evidence, the additions were confirmed as undisclosed investments.
Key Issues
Whether the assessee has discharged the primary onus to prove the genuineness and source of cash deposits in foreign bank accounts, and whether additional evidence should be admitted at the appellate stage.
Sections Cited
153A, 143(3), 68, 69, 132
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: DR. BRR Kumar & Shri T. R. Senthil Kumar&
Smt. Bindiya Sanjaykumar The DCIT, Shah Central Circle-3 A/10, Atmajyoti Nagar, Vs Vadodara Opp, Atmajyoti Ashram Ellora Park, Vadodara-390023, Gujarat PAN: AGAPS7389E (Respondent) (Appellant) Assessee Represented: No Authorization Revenue Represented: Shri V Nandakumar,CIT-DR Date of hearing : 20-03-2025 Date of pronouncement : 17-04-2025 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-
These three appeals are filed by the Assessee as against separate appellate orders all dated 29.11.2022 passed by the Commissioner of Income Tax (Appeals)-12, Ahmedabad arising out of the assessment orders passed under section 153A r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Years 2009-10, 2014-15 & 2015-16. Since common issues are involved in the above appeals, for the I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 2 Smt. Bindiya Sanjaykumar Shah vs. DCIT sake of convenience, the same are disposed of by this common order.
IT(SS)A No. 43/Ahd/2022 is taken as the lead case. Brief facts of the case is that the assessee is an individual having income from salary, house property and other sources. There was a search action u/s. 132 on 12-02-2015 in Cube Group cases and also that of the assessee. Pursuant to the search action, assessee was served with notice u/s. 153A on 03-09-2015. In response, the assessee filed Return of Income on 18-12-2015 declaring total income of Rs.63,49,540/-. During the assessment proceedings, assessee was asked to furnish statements of all the Foreign Bank accounts held by her from 01-04-2008 to 31-03-2015 and also to explain the source of credit entries shown in her Foreign Bank accounts. In reply, the assessee submitted whatever cash deposited in her account has been done by her relatives who are residing in Dubai, she returned back the said amount in cash when those relatives visited India, out of her personal withdrawal from Saving Bank account and out of profit earned from agricultural activity.
3. The contention of the assessee was considered but not found tenable as the assessee’s claim were not supported by any documentary evidences. Hence the cash deposit of Rs.17,58,549/- made in foreign bank account were added as unexplained income in the hands of the assessee and demanded tax thereon.
Aggrieved against the same, assessee filed appeal before Ld. CIT(A). During the appellate proceedings, the assessee invoked Rule I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 3 Smt. Bindiya Sanjaykumar Shah vs. DCIT 46A for filing fresh evidences namely the foreign bank account statements. The Ld. CIT(A) rejected the claim of additional evidences and confirmed the addition made by the Assessing Officer by observing as follows: “…It is only during the appeal proceedings the appellant has claimed that the person who purportedly extended that cash advance to her is a relative. It is again not disclosed what her relation with the appellant is. As evidence of existence of the person, she has adduced copy of Residency Permit from authorities and as creditworthiness copy of salary statement. No affidavit has been adduced confirming from the purported person, that he actually any advance to her. No copy of the Statement of the purported lender was attached to prove the creditworthiness of the person to support whether he had these amounts in his bank from where these amounts were sourced. 5.2.4 In the absence of any confirmation and production of Bank account of the purported lender, the appellants found to have miserably failed to bring sufficient material evidence on record to discharge her primary onus to prove the genuineness of the claimed transaction. The purported lender has not accepted that he has extended these amounts. It is stated that the person is an employee getting his salary as public relation manager of a bank should he holding all deposits in his bank account. This beckons an answer to the query that why did he make deposits in cash into the appellant's bank account. Further the purported lender name claimed only during the appeal proceedings. If everything was clear why wasn’t his details disclosed earlier. Here in appeal also although he is claimed to be a relative but what relative the appellant is silent. On the one hand the appellant said she had taken this advance for the purpose of higher studies of her son, on the other the Bank account shows that these amounts were regularly used to invest in Mutual Fund/Life Assurance premium in her own name. Lastly, she claimed that the entire amount was paid back to the person from her personal savings and withdrawal from Bank accounts as and when the relative returned to India. Not a shred of evidence regarding such repayment was produced during the appeal proceedings. Even the employer certificate says that Shri Devang S Shah is employee from 01/05/2010 i.e. after that end of the relevant financial year. Whether he was painfully employed before that is not known. 5.2.5 In view of the facts brought forth in the above discussion, the appellant has completely failed to prove the genuineness of the I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 4 Smt. Bindiya Sanjaykumar Shah vs. DCIT
transaction as there is no trail of the money into her bank account as all the aforesaid deposits were in cash. She has also failed to produce satisfactory material that the aforesaid advance was by the person she now claimed from she has taken those. Thus, the identity of the actual person who deposited that amount in CASH on multiple occasions is not satisfactorily explained. Further, the appellant has also not adduced the copy of the bank statement of Shri Devang Shah showing that any corresponding cash was withdrawn from his bank account and then deposited in the appellant's bank account in cash. There is no material on record to actually link Shri Devang Shah to the cash deposited in bank account of the appellant. It may be added that the appellant herself has not claimed it foreign income. Thus, it is held that the appellant has failed to satisfactorily explain the identity of the depositor/lender, genuineness of transaction and the creditworthiness of the purported lender, the three elements necessary to discharge her primary onus of deposits in her foreign bank account. She has miserably failed to explain the nature and source of the cash deposits of AED 119500.32 (Rs.17,58,549/-) into her bank account. Therefore, the entire amount is confirmed as the undisclosed investment of the appellant as envisaged u/s 69 of the Act and thereby the addition of Rs.17,58,549/- made by the AO in her income is upheld. Ground of appeal
2 is dismissed.”
5. Aggrieved against the same, the assessee is in appeal before us raising the following Grounds of Appeal:
1. The Ld. CIT(A)-12, Ahmedabad has erred in upholding the order passed by the Assessing Officer in making addition of Rs.17,58,549/- u/s. 68 of the Income Tax Act, 1961 being cash deposit made in the foreign bank account.
2. The Ld. CIT(A)-12, Ahmedabad ought to have deleted the aforesaid addition.
6. Ld. Counsel Mr. A.K. Khandelwal represented on behalf of the assessee, whereas there is no Vakalat in his favour. Whereas Vakalat in favour of Shri Vijay H Patel, Advocate and he has appointed Mr. A.K. Khandelwal as proxy Counsel on his behalf vide letter dated 28-08-2024. We cannot entertain the submissions of proxy Counsel, who has not informed this fact during the course of hearing.
I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 5 Smt. Bindiya Sanjaykumar Shah vs. DCIT 6.1. However we found on record from the assessee duly signed by her, for admission additional evidences invoking Rule 29 of the ITAT Rules which reads as under: BEFORE HON'BLE MEMBERS OF INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD IN THE CASE OF BINDIYA SANJAY KUMAR SHAH ITA N0. 43 8566/AHD/2022 (AY 2009-10 & 2015-16) MAY IT PLEASE YOUR HONOUR, SUB: Request for admission of additional evidence under Rule 29 of Appellate Tribunal Rules, 1963; reg With reference to above subject matter, the undersigned appellant would like to seek your honors' permission to file certain additional evidences which are very much vital in passing a fair and judicious order in this case. These evidences are supporting in nature to the facts/evidences already brought on record.
2. It may be submitted that besides filing of copy of Statement of her own Bank Account NO. 3503583017 with ADCB Bank Dubai in support of cash deposit of 119500 AED (Rs. 17,58,549) in the said bank account, the appellant had already filed copy of Employment/Salary Certificate, Residency Permit to prove the source of unsecured loans abtained from one relative, namely Shri Devang Shah during the relevant period of FY 2008-09(AY 2009-10). The contention of the appellant was not found acceptable by the then CIT(A) because Confirmation & Bank Statement of Shri Devang Shah were not filed in support of explanation regarding nature and source of deposits made by CASH in the said Bank Account of the appellant. The desired confirmation and bank statement could not be filed due to paucity of time and depositor being residing in Dubai. Likewise, in FY 2014-15 (AY 2015-16), the appellant received loan of AED 3,86,472 (Rs. 62,10,803) by CASH & Cheque. Out of the above loan amount, appellant received loan by two cheques of AED 2,50,000 on 21.05.2014 and AED 1,25,000 on 28.05.2014 and balance amount was received by CASH. In support, the appellant filed copy of statement of Bank Account of Shri Devang Shah before CIT(A) but failed to furnish any Confirmation/Affidavit of Devang Shah. Due to non-production of above-mentioned documents/information, the then CIT(A) decided the appeals against the appellant.
Now, the appellant could get the desired documents in support her case which are essentially in the nature of evidences supporting the contention of the appellant and are very vital to reach to a fair and judicious conclusion. The appellant makes a humble request for I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 6 Smt. Bindiya Sanjaykumar Shah vs. DCIT
admission of certain additional evidences under rule 29 of ITAT Rules. The additional evidences sought to be admitted are as under: 1. Sell-attested copy of PAN card of Devang S Shah 2. Self-attested copy of Bank Statement of Devang S Shah 3. Self-attested copy of Dubai Electricity Bill of Devang S Shah 4. Self-attested copy of Passport of Devang S Shah with proof of entry- exit 5. Original Affidavit of Devang S Shah for AY 2008-09 (duly notarized) 6. Original Affidavit of Devang S Shah for AY 2015-16 (duly notarized) 4. It has been held in the case of Pari Mangaldas Girdhardas vs CIT (1977) CTR (Guj) 647 that the Tribunal has the power to allow additional evidence if it is able to pronounce judgement on the state of record as it is, it may still allow additional evidence to be brought on record if it considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its order in a more satisfactory manner. Similstly, very recently, Hon'ble ITAT Delhi in the case of M/s Luminous Teleinfra Ltd. Vs The Addl CIT, Special Range-5 in dt 31.05.2024 has allowed the admission of additional evidences holding that the additional evidence now being furnished, has a direct and important bearing to adjudicate the present controversy and hence admitted keeping in view of the principles of natural justice.
It would not be out of place to refer to the decision rendered by Hon'ble Supreme Court in the case of Sanjay Kumar Singh in Civil Appeal No. 1760 of 2022 dated 10.03.2022 and UOI vs Ibrahim Uddin in Civil Appeal No. 1374 of 2008 dated 17.07.2022 in the context of Order XLI, rule 27 of the Code of Civil Procedure which is pari materia with Rule 29 of ITAT Rules, has laid down that "where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed."
In the instant case, all the facts are available on record and the additional evidence sought to be brought on record are supporting in the nature in order to enable the Hon'ble ITAT to render fair and judicious order in the matter. Kindly grant permission to take the additional evidences/documents mentioned above on record. Thanking you, Yours sincerely. Bindiya Sanjay Kumar Shah (Bindiya Sanjay Kumar Shah) Encl: As above I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 7 Smt. Bindiya Sanjaykumar Shah vs. DCIT 6.2. Since these documents were not filed before the Lower Authorities, in the interest of Principle of Natural Justice, we deem it fit to set aside the matter back to the file of Ld. CIT(A) to decide the case on merits after taking into account, the additional documents produced by the assessee. Needless to say the assessee should cooperate in the appellate proceedings.
In the result, the appeal filed by the Assessee in IT(SS)A No. 43/Ahd/2024 is allowed for statistical purpose.
Similar is the issue for the other two Asst. Years 2014-15 and 2015-16. Thus the appellate orders are set aside back to the file of Ld. CIT(A) to decide it on merits.
Order pronounced in the open court on 17 -04-2025 Sd/- Sd/- (DR. BRR KUMAR) (T.R. SENTHIL KUMAR) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad : Dated 17/04/2025 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT I.T(SS).A No. 43 & 44/Ahd/2022 & ITA 566/Ahd/2025 A.Ys. 2009-10, 2014-15 & 2015-16 Page No 8 Smt. Bindiya Sanjaykumar Shah vs. DCIT