SHAILESH KANTILAL SHAH,GOREGAON vs. ITO 16(2)(2), MUMBAI

During hearing, none was present for the assessee, in spite of the fact that on 05/12/2016 and 16/05/2017, this appeal was adjourned at the request of the assessee. The assessee neither presented himself nor moved any adjournment petition. It seems that the assessee has nothing to say, therefore, we have no option but to proceed ex-parte, qua the assessee, and tend to dispose of this appeal on the basis of material available on record. On the other hand, Shri V. Justin, Ld. DR, strongly defended the assessment order as well as the impugned order by placing reliance upon the reasoning contained in the order of the First Appellate Authority.

2.1. The first ground raised by the assessee pertains to confirming the addition of `47,20,000/- deposited as cash in the bank, claim to be received from Babu Bhahi Magukia and Rusik Lal Fojalal as income from undisclosed sources. We have considered the submissions of Ld. DR and perused the material available on record. The assessee, individual, at the relevant time was deriving income from share of profit and remuneration from partnership firm M/s S Kantilal & Company, capital gains, speculation profit and income from other sources, declared nil income in his return filed on 21/03/2011. The Ld. Assessing Officer while framing the assessment on 26/03/2013, u/s 143(3) of the Act, determined the total income at `1,36,69,760/-. It was found by the Ld. Assessing Officer that there was cash deposit in the bank account of the assessee in Vijaya Bank, amounting to `65,00,650/- during the Financial Year 2009-10. The assessee was asked to explain the source of such deposit. The stand of the assessee was that the amount of `23,90,000/- and ` 23,30,000/- was made by two persons namely Shri Babu Bhai M. and Shri Rasik Lal F. and the remaining amount of `17,80,650/- was out of withdrawals from the same bank account. In the absence of any plausible evidence for such deposits, the Ld. Assessing Officer made an addition of `47,20,000/- with respect to cash deposits from aforesaid two persons. It is noted that even before the Ld. Commissioner of Income Tax (Appeal), no submission was made by the assessee as is evident from para 2.4.6 of the impugned order. Meaning thereby, even before the Ld. Commissioner of Income Tax (Appeal), the genuineness of the cash deposits and the source thereof was not proved by the assessee. Before us, as mentioned earlier, the assessee neither presented himself nor moved any adjournment petition and even neither any written submissions were filed nor any documentary evidence to prove the source of the cash deposit in the bank, therefore, in view of this factual matrix, we are of the view that the onus is upon the assessee to explain the source of cash deposit. The ratio laid down by Hon'ble Apex Court in CIT vs P. Mohankala 291 ITR 278 (SC) and A. Govind Raju Mudaliar vs CIT

The next ground pertains to the amount of `16,96,362/-, claim to be received as loan, which was treated as income from undisclosed sources. The facts, in brief, are that the assessee claimed loans advances to the tune of ` 16,96,362/-. Before the Ld. Commissioner of Income Tax (Appeal), the explanation of the assessee was that out of the aforesaid mentioned amount ` 1,85,000/- was added due to cash receipt from one Smt. Jayshree S. Shah. The assessee neither produced any confirmation nor any evidence for such claim. Even before the Ld. Commissioner of Income Tax (Appeal), no evidence was filed in support of such claim.

The next ground pertains to set off of carried forward speculation loss amounting to ` 49,91,994/- which was adjusted against income from capital gain of ` 47,73,183/- in his revised computation of income. The Ld. Assessing Officer examined the assessment record of earlier years, wherein, it was found that no such loss was claimed by the assessee. The schedule BFLA and Schedule CFL did not contain any entry of any figure in support of such claim. Considering the factual matrix and the factual finding recorded in the impugned order, we affirm the stand of the Ld. Commissioner of Income Tax (Appeal).

The last ground raised by the assessee is with respect to un-reconciled difference of ` 5,95,214/- for housing loan claim to be received from financial institution. The Ld. Assessing Officer, while framing the assessment added the claimed excessive liability to the tune of ` 5,95,294/- and found that the housing loan of ` 1,15 crore was sanctioned on 01/06/2008 to M/s Kantilal & Co. where the assessee was a partner. Out of this loan, there was payment of principle amount of ` 10,78,053/- till 31/03/2010. In the personal balance sheet of the assessee, the loan revealed was ` 1,10,17,161/- as payable by the assessee to the finance company, thus, there was a difference of ` 5,95,214/-. The assessee did not offer any explanation either before the Assessing Officer or before the Ld. Commissioner of Income Tax (Appeal). Before this Tribunal also, the assessee neither presented himself nor moved any evidence to substantiate his claim. Therefore, on this count also, we affirm the stand of the Ld. Commissioner of Income Tax (Appeal).