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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI R.K. PANDA
ORDER This appeal filed by the assessee is directed against the order dated 29.06.2018 of the Ld. CIT(Appeals)-Meerut relating to AY 2009-10.
This is the second round of litigation before the Tribunal. Facts of the case, in brief, are that the assessee is an individual. Original assessment was completed u/s 143(3) of the Act on 15.03.2013 determining the total income at Rs. 15,02,100/-, wherein, addition of Rs. 13,25,000/- was made as unexplained cash deposit in the bank account. The assessee preferred an appeal before the CIT(A) who considered Rs. 8,25,000/- out of addition of Rs. 13,25,000/- as explained. For the balance amount of Rs. 5,00,000/- the assessee filed an appeal before the Tribunal and the Tribunal vide order dated 15.03.2016 restored the issue to the file of the AO with certain directions. The relevant portion of the order of the Tribunal reads as under: “5. After having gone through the orders of the authorities below, we find that the Ld. CIT(Appeals) has sustained the addition of Rs. 5 lakhs on the basis that the Assessing Officer has made elaborate discussion regarding the veracity of sources of fund and the AO has demonstrated that no withdrawal was made from the bank accounts of the relatives in the month of January, February and up to 6th March, 2009 except small withdrawal of Rs. 13,000/-. On perusal of assessment order, we find that at page no. 3 in para no. 4, the AO has given the saving bank account numbers of the creditors Shri Satbir Singh, Shri Gulbir Singh, Hussan Singh, Shri Yashbir, Shri Mohit and Ors. in the Oriental Bank of Commerce with this finding that in the case of Satbir, Shri Yashbir and Smt. Babit mentioned in column No. 2 at Sr. No. 1 of the table, except Rs. 13,000/- on 24.02.2009, there was no withdrawal in the months of January, February and upto 06.03.2009. Again, at Sl. No. 4 of the table in column no. 2 under Shri Yashbir, Babita and Mohit with this remark that no withdrawal in the month of January, February and upto 06.03.2009 was there. Thus, it is not clear that the holders mentioned at Sl. Nos. 1 & 4 of the table were joint bank accounts in individual capacity. The case of the assessee is that these persons are agriculturist and in support evidence regarding their landholdings were furnished and they had appeared before the Assessing Officer and confirmed the claimed contribution by them to the assessee. Thus, in the interest of justice and to clarify as to whether persons shown at Sr. Nos. 1 & 4 of the table are holding their bank accounts in their individual capacity and if any amount as claimed by them were withdrawn from their accounts or not, we find it fit to set aside the matter to the file of the AO for deciding the issue afresh after verifying the above aspects and after affording opportunity of being heard to the assessee. The assessee is also directed to cooperate with the Assessing Officer in earlier disposal of the matter. The ground is thus allowed for statistical purposes.
In the result, the appeal is allowed for statistical purposes.”
Subsequently, after the matter was restored by the Tribunal to the file of AO, the AO issued notice u/s 142(1) to the assessee for furnishing documents, evidences and explanation in support of her claim before the Tribunal. Rejecting the various explanations given by the assessee and observing that no sufficient withdrawal had been made by the concerned persons during the months of January, February and upto 6th March, 2009 except meager withdrawal, the AO made the addition of Rs. 5 lakhs as unexplained cash deposits in the bank account. For the sake of clarity, the relevant observations of the AO at page 3 of the order read as under: On perusal of the above reply and copy of bank statements as placed on record it was found that no withdrawal had been made during the month of January, February and upto 6th March 2009 except withdrawal of Rs. 13,000/-. Besides, all the accounts were joint account except Mohit (5230) from which no withdrawal was made and Hushan Singh (1390) account was opened only on 17.12.2009 i.e. much later from the date of marriage of the assessee. Therefore, the creditworthiness of the persons who gave the cash credit was not proved so, income of the assessee is computed as under: Income as per return Rs. 1,77,100/- Unexplained cash deposits in the bank Rs. 5,00,000/- account as discussed above ___________ Rs. 6,77,100/- 4. In appeal, the CIT(A) upheld the action of the AO by observing as under: “3.4 I have perused the order of the Ld. ITAT and the consequential assessment order passed by the AO. The directions are to find out which of the accounts of parties at serial no. 1 & 4 of the table given in the assessment order dated 15.03.2013 are being held in Individual capacity and whether there is any withdrawal from such accounts. Now from the perusal of the submission given by the Ld. AR, I find that the Ld. AR has referred to account no. 04722010005450 with Oriental Bank of Commerce and has taken credit of withdrawals on different dates stretching back to more than 6 months from the relevant date 06.03.2009. However, on verification of the record it is found that this account no. is a joint account of Satveer, Vashveer and Babita and not individual account of any of these persons placed at sl. no. 1, therefore, it is not relevant to the directions given by the Ld. ITAT as it is a joint account and not an account in individual capacity from where withdrawals have been made. Further, on verification of account at serial no. 4 it is seen that account no. 04725111001741 with Oriental Bank of Commerce is held jointly by Vashveer, Babita & Mohit therefore, it is joint account from where as per AR submissions only Rs. 30,000/- was withdrawn. But this withdrawal which is dated 14.10.2008 is almost 6 months before from the relevant date and is a joint account for which no credit can be given in terms of explicit directions of the Ld. ITAT which has stated clearly that persons named at sl. no. 1 & 4 are to be checked for their individual accounts and to see whether there is any withdrawal from such accounts that could have gone onto explain the impugned sum of Rs. 5 lacs. In view of the forgoing discussion, I do not find any evidence whatsoever adduced by the Ld. AR in terms of directions of the Ld. ITAT that could explain the source of impugned addition of Rs. 5 lacs.” 5. Aggrieved with such order of CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:
1. “That the AO is in error in followed the observation of CIT(A) instead of direction given by ITAT, hence addition of Rs. 5,00,000/- is arbitrary, unjust and not according to law and CIT(A) also in error in confirming the same.
2. That the AO ignored the reply of the assessee and as per assessee reply the cash was withdrawn of Rs. 5,01,000/-. Therefore, addition made by the AO of Rs. 5,00,000/- is against their facts and law and CIT(A) also in error in confirming the same.
3. That the assessee has right to add, modify or delete any grounds during the appeal proceeding.”
6. I have considered the rival arguments made by both the sides and perused the orders of the authorities below. I have also gone through the observation of the Tribunal in the first round of litigation, wherein, the matter was restored to the file of AO with certain directions the contents of which has already been reproduced in the preceding paragraphs. I find that the assessee has failed to demonstrate with evidence to the satisfaction of the AO or the CIT(A) and even before me to substantiate with cogent evidence that the persons who had advanced money to the assessee had sufficient source to explain the same. The withdrawal from the bank account shows that there is hardly any withdrawal to extend the credit of Rs. 5 lakhs to the assessee by the loan creditors. In one account held jointly by Yashveer, Babita and Mohit which is a joint account there is only a withdrawal of Rs. 30,000/- on 14.10.2008 which is almost six months before the relevant date. Therefore, the assessee in my opinion has failed to discharge the onus cast on her as per the directions of the Tribunal. The various withdrawals as shown by the assessee which is reproduced by the AO at page 2 of the assessment order shows that withdrawals were made starting from July 2008 till February, 2009 and it is seen that there are systematic period wise withdrawal of different amounts and, therefore, it cannot be said that the above persons had withdrawn on 12 different occasions have kept the money with themselves for extending loan to the assessee. It is against all human probabilities that a person will withdraw amount such as Rs. 4,500/-, 5,500/-, 10,000/-, 15,000/-, 13,000/-, 44,000/-, 40,000/-, etc. in every month and keep the same for extending loan of Rs. 5 lakhs to the assessee. Since the assessee, in my opinion, in the instant case failed to demonstrate with any cogent evidence that Yashveer, Babita and Mohit having the joint account had in fact given the money to the assessee by withdrawing from their account on a single date just before the date of the marriage, therefore, I do not find any infirmity in the order of the CIT(A) sustaining the addition. Accordingly, the same is upheld and the ground raised by the assessee is dismissed.
In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open Court on 12/06/2019