SHRI MANZOOR AHMED BHAT,SRINAGAR vs. INCOME TAX OFFICER, WARD-3(2), JAMMU

It is seen from order sheet entries, that this appeal has been fixed up earlier on numerous occasions and as per date wise noting it is seen that on earlier fifteen occasions the Ld A/R of the assessee, has filed application for adjournments citing praying for time on the ground of not being legally prepared to argue the case (lack of papers) and citing various other reasons on different dates, and each time adjournments has been granted to the assessee, which proves that notice has been properly served and the assessee and his Ld Advocate , both are aware of the ongoing hearing process. (The appeal memo in form 36 has been counter signed by one Mr. G. Arora Advocate as authorized representative)

The Ld. DR is present in the court and we proceed to hear him, consult the materials on record and dispose of the appeal on merits.

The brief facts emerging from record is that the return filed by the assessee declaring an income of Rs. 1. 85 lakhs has been selected under CASS and statutory notice u/s 143(2) has been issued, followed by notice u/s 142(1), and one Sh. M (which proves that the assessee has received the notice and is aware of the ongoing proceedings) and subsequently the matter was represented by one Mr Subhas C Datta Advocate (as per information on assessment record).

The main issue pertains to a particular information gathered by the AO, from the bankers u/s 133(6) of the Act ,that cash deposit of Rs. 20,41,820/-, has been made by the assessee, in Jammu and Kashmir bank A/c , in its Chandni Chowk, Delhi Branch , during the FY under appeal, and on the failure on the part of the assessee and his Ld. AR, to explain the source thereof in spite of repeated opportunities, the said amount of Rs. 20.41 lakhs has been added back u/s 68 of the Act to the returned income.

The matter was carried in appeal before the first appellate authority and written submissions were filed by assessee along with additional evidences containing copies of bank account statement of J & K Bank, Chandni Chowk Branch, Delhi (A/c 4402) and also of Srinagar Branch (A/c 24A), along with copies of agreement of sale of property at Malvia Nagar, Delhi, which were admitted by the first appellate authority under Rule 46A, consequently calling for remand report.

The copy of remand report was forwarded to the assessee for rebuttal and the response of the assessee was taken on record, where the assessee has claimed to have could not produce any documentary evidence in support of such contention, in spite of repeated opportunities, resulting in dismissal of the appeal.

Now the assessee is before the tribunal on the grounds contained in the memo of appeal in form 36, and one of the main contention as arising from the grounds are that no proper opportunity has been provided by the assessing officer and by the Ld first appellate authority and as such the assessee could not appear due to circumstances beyond his control.

The Ld. DR relied on the order of the Ld CIT ( A ) and also referred to the assessment order to argue that it is an admitted fact as evident from the J & K Bank statement and also from the written submission that the assessee has deposit the cash in his Delhi bank a/c and has utilized the said amount for property purchase in Delhi (as evident from appellate order para 4.3), but it is not the utilization part , but the source of the deposit is under question and the same is required to be explained and proved, and the assessee has not filed any documentary evidence or details in support of the sale of jewellery of his wife , as claimed , and in absence of any proper explanation whatsoever, the addition is to be sustained and he prayed for upholding the order of the first appellate authority. the factual contents of the assessment order and the observation of the Ld. CIT (A), and we are of the opinion that it is admitted fact that cash has been deposited in bank by the assessee, in his own bank account and as per narration in the CIT (A) order (para 4.3 ) the said amount has been utilized for purchase of house property by the assessee himself , which points to the fact that the ultimate beneficiary of the said amount is also the assessee himself .

The nature and source of the cash deposit has not been explained by the assessee with supporting documentary evidence at any stage whatsoever, and in this case there has not been any dearth of opportunity provided to the assessee, at all stages , and for all practical purpose, if the assessee (or his Advocate ) really had the documentary evidence of sale of jewellery in their custody, the same could have been easily presented before the tribunal, at any time, during the last fifteen occasions when adjournments has been sought and allowed.

As such we are of the opinion that the assessee has not been able to explain the nature and source of the cash deposited in the bank account in J&K bank (Delhi branch) as discussed in above paragraphs, and under the circumstances we have no hesitation in upholding the order of the Ld CIT ( A ) on this issue .