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Income Tax Appellate Tribunal, “SMC-B” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA
O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee and the same is directed against the order of ld. CIT (A), Davangere dated 30.06.2016 for Assessment Year 2005-06.
The grounds raised
by the assessee are as under. “1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
2. The learned CIT[A] is not justified in sustaining the addition of Rs.3,77,500/- as against addition made of RS.15,10,000/- as unexplained cash deposit under the head short term capital gains under the facts and in the circumstances of the appellant's case.
3. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s.234-A and 234B of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled.
4. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.”
Page 2 of 4 3. This appeal is filed late by assessee and the delay is of 95 days. The assessee has made an application for condonation of this delay along with an affidavit of the assessee and also an affidavit of the Chartered Accountant who was handling the tax matters of the assessee. It is stated by the assessee that on receipt of the order of CIT(A), he had placed the same in the hands of his AR Shri Jaded Siddappa, Chartered Accountant, seeking further advice in the matter but because of his pre-occupation in his profession in the months of July to September, he had omitted to immediately advise the assessee on the further course of action in the matter and thereafter, the assessee approached him in December 2016 and at that point of time, it was advised by him for filing the second appeal after engaging a counsel at Bangalore. He further stated in the affidavit of the assessee that after this, the assessee approached M/s. Venkatesan & Co., Chartered Accountants, Bangalore who prepared the appeal for filing before the Tribunal and this delay is 95 days in filing the appeal before the Tribunal was because of these reasons. In support of this, the assessee has also submitted an affidavit of the concerned Chartered Accountant Shri Jaded Siddappa. Considering these facts, the delay in filing the appeal is condoned.
Regarding the merit of the appeal, the ld. AR of assessee reiterated the same contentions which were raised by assessee before CIT (A). The ld. DR of revenue supported the order of CIT(A).
I have considered the rival submissions. I find that the issue in dispute is decided by CIT (A) as per Para 3 of his order and the relevant part of this Para from the order of CIT (A) is reproduced hereinbelow for ready reference. “3. In this regard, the assessee's AR has submitted that, the a/c wherein cash of Rs.15,10,000/- is deposited is held with Canara Bank, Seshadripuram Branch, Bhadravathi. According to the assessee, the deposits and withdrawals are reflected in the regular books maintained by the assessee for the business. The assessee is maintaining regular books of a/cs for his contract business which are audited u/s 44AB of the Act. On a perusal of the entries in the Pass Books, I find the cash balance appearing as on 31/03/2005 of Rs.2,05,377/- matches with the balance shown in the audited Balance Sheet. Examination of the account reveals that, contract receipts are deposited into this a/c and FDs amounting to Rs.19,23,324/- are Page 3 of 4 debited to this a/c for bank guarantee purpose. It is also revealed that EMD refunds which are appearing in the returns are credited to this a/c. The original bank pass books of Canara Bank, Seshadripuram Branch is submitted to me for perusal. The closing balance of Rs.129/- as on 31/03/2004 matches with the closing bank balance indicated in the Balance Sheet. Same way, the closing cash balance appearing in the said bank a/c of Rs.2,05,777/- also appears in the Balance Sheet for the year ending 31/03/2005. When the AR was requested to produce the books for verification, he stated that the books are not traceable, due to lapse of nearly a decade. The AR has however furnished a fund flow statement, wherein all the transactions including the cash deposits in question are reflected. The fund flow statement reveals that the assesse has drawn a total sum of Rs.11,32,500/- during the year by way of cash and according to the assesse this is the amount which has been deposited in to this account by way of cash. I find, after analysing cash flow statement that, cash deposits to the extent of Rs.11,32,500/- can reasonably be considered as source for the cash deposit of Rs.15,10,000/-. The balance amount of Rs.3,77,500/- is to be considered as unexplained cash deposit. Addition to this extent is confirmed. The appellant thus gets a relief of Rs.11,32,500/- (out of Rs. 15,10,000/-).”
From the above Para reproduced from the order of CIT(A), it is seen that as per the fund flow statement submitted by assessee before CIT(A), it was noted by CIT(A) that assessee has drawn from bank a total sum of Rs. 11,32,500/- during the year by way of cash and ld. CIT(A) has granted the benefit to this extent and addition of only balance amount of Rs. 3,77,500/- was confirmed out of total cash deposit of Rs. 15.10 Lakhs. The same cash flow statement submitted by assessee before CIT(A) is available on page no. 11 of the paper book filed before the Tribunal and as per the same, it is seen that the self withdrawals is only Rs. 11,32,500/- whereas the cash deposit in bank is Rs. 15.10 Lakhs. Considering all these facts, I find no reason to interfere in the order of CIT(A) on this issue.
In the result, the appeal filed by the assessee is dismissed. Order pronounced in the open court on the date mentioned on the caption page.