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Income Tax Appellate Tribunal, ‘D’BENCH,
Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals),XXIV, Kolkata dated 29-08-2014 for the assessment year 2009-10.
In this appeal, the assessee has raised the following grounds of appeal:-
1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) has acted arbitrarily and illegally by dismissing the appeal, on mere presumption and conjecture sustained the addition of deposit in bank Rs.22,97,710/- is unwarranted and illegal.
2. For that the explanation as to cash deposit in bank Rs.22,97,710/- is within the monetary capacity of the appellant, so the Ld. CIT(A) ought to have considered the explanation and allow the appeal.
3. For that the appellant being a salaried person is covered by sec. 44AB of the I.T Act, as such there is no books of accounts to be maintained by the appellant, but it does empower the AO to make addition of Rs.22,97,710/- as unexplained investment in bank. Siddhartha Protim Majumder 1
4. For that on the facts of the case the appellant reserve the right to adduce any further ground or grounds if necessary, on or before the hearing of the appeal.
Subsequently, the assessee has also raised the following additional ground of appeal
by relying on the decision of the Hon’ble Supreme Court in the case of NTPC Vs. CIT reported in 229 ITR 383(SC):-
1. For that on the facts of the case, the addition of deposit in cash Rs.22,97,710/- with ICICI Bank is wrong, instead it should have bee n assessed on peak basis.
4. Therefore, we proceed to hear the additional ground treating the same as only effective ground is to be decided in this appeal of assessee.
The brief facts of the case are that the assessee is an individual and derives income from salary filed his return of income through online declaring total income of Rs.95,287/- for the A.Y under consideration on 20-03-2010. Under scrutiny notices u/s. 143(2) & 142(1) of the Act were issued. Against which the assessee appeared and furnished before the AO various papers, bank statement and written submission in support of said return filed. On an information from AIR the AO found that the assessee had deposited cash amounting to Rs.22,99,710/- in different dates in ICICI Bank, R.N. Mukherjee Branch, Kolkata i.e 04-04-08 to 31-03-09. In explanation through a written submission the assessee stated that he was extending his financial help within his limitation to his relatives and friends, who were in need under bonafide causes i.e. for the help of daughter’s marriage, medical treatment. The assessee also submitted that all the amounts totalling to Rs.22,99,710/- were repaid in the FY 2008-09. Basing on his Siddhartha Protim Majumder 2 written submission, the AO has asked the assessee to furnish the names and addresses along with their respective PAN of such relatives and friends, who got the help from the assessee. But, however, the assessee could not furnish such information as sought by the AO. Accordingly, the AO treated the whole amount as undisclosed source of income of assessee and added the same to the total income and to that effect an order u/s. 143(3) of the Act was passed on 30-11-2011.
Before the CIT-A the assessee challenged the impugned order of the AO in doing so by contending through his written submission that this amount was part of his past savings and was kept in the custody of his spouse. The same was subjected to tax being part of his past savings. The spouse of assessee being custodian of past savings gave the same to assessee for deposit in the saving bank account on different dates in the FY 2008-09 relevant to AY 2009-10. He also submitted before him that the impugned amount being part of past savings of assessee needs no confirmation. Before him the assessee submitted that the assessee being a salaried person needs no compulsion to maintain any books of account, which is mandatory u/s. 44AA of the Act and saving bank statement cannot be regarded as books of the same.
However, the CIT-A has not accepted such contentions of assessee and confirmed the impugned order of the AO by observing that the assessee could not furnish the details in respect of his relatives and friends as was asked by the AO in the assessment proceedings. The CIT-A found that the submission before him was that the amount involved in question being part of his past savings and the assessee’s submissions before AO were quite different. Relevant finding of the CIT-A in confirming the action of the AO is reproduced herein below:- But the appellant failed LO file any name and address of his relatives and friends. In the appellate proceedings, the A/R of the appellant taken new argument "the cash are out of my past saving which was kept in the custody of my spouse." But the appellant not file any supporting evidence which established that the cash deposits are out of his past saving and his wife is having the cash. The appellant frequently change his stand about the source of cash deposit in bank account, he taken the argument at the time of assessment proceeding that the cash deposits are received from his friends and relatives out of his past saving but in the appellate proceedings he change his stand and taken the plea that the cash deposit in bank accounts out of his past saving which was kept with his wife. The appellant failed to prove his claim that the cash deposit in bank account out of his past saving. I have gone through the return of income the appellant shown Gross Salary for the A. Y. 2009-10 of Rs.1,95,287/-. The appellant not having any financial statement. The appellant who earned Rs.1 ,95,287 /-. How he made the savings of huge amount of Rs.22,97,710/-. This is general principal that nobody kept his money idle. Every person want to earn from their saving. So the argument of the appellant that he kept his saving with his wife is not tenable. Further, the appellant did not produce any evidence which established that he made the saving and he deposited Rs.22,99,710/- out of his past saving. In this way the appellant failed to prove the source of the said cash deposit of Rs.22,99,710/- in the bank accounts. Therefore, I am fully agree with the action of the A.O. to treat Rs.22,99,710/- as unexplained cash deposit in bank account. Hence, I confirm the addition made by the A.O. of Rs.22,97,710/- as unexplained cash deposit in bank account. These grounds are not allowed.”
Before us the ld.AR of the assessee in support of his contention filed the details of cash deposit for the period 04- 04-2008 to 31-03-2009 of Rs.22,99,710/- and the bank statement of ICICI Bank for the period April 01, 08 to March 31, 09 at pages 1 to 6 in paper book and argued that the AO made the addition being undisclosed income of assessee and the CIT- A confirmed the same on the ground that the assessee failed to file the details of name and address of assessee’s relatives and friends, who got the financial help from assessee of Rs. 22,99,710/-. In support of assessee’s contention the ld.AR of the assessee has also relied on the order dated 18-06-2013 of the Co-ordinate Bench, ITAT, Kolkata in the case of ITO, Kolkata Vs. Deb Kumar Jana and argued that wherein amount was withdrawn from bank for purchase of goods and for business expenses and balance amount again was deposited with the bank. The Tribunal disposed of the issue in favour assessee by dismissing the revenue’s appeal. The ld.AR of the assessee has also relied on the order dated 24-08-2016 of the Co-ordinate Bench, ITAT, Kolkata in the case of Sri Biswajit Saha Vs. ITO, W 49(4), Kolkata.
In reply, the ld.DR relied on the orders of the authorities below. He also submits that the assessee’s submissions before the AO and CIT-A were different in support of the contention. Before the AO the assessee submitted that cash deposits in the bank were repayments of his relatives and friends by way of receipts by the assessee in need of financial help. Before the CIT-A the assessee contended that the amount involved in question was part of his past savings kept under the custody of his wife and used to deposit the same on direction of his wife. Thus, he argued that the contentions of assessee were not clear in respect of issue involved in this appeal. He relied on the order of the Co-ordinate Bench, ITAT, Ahmadabad in the case of Vikas Jain 10 Heard rival submissions and perused the material available on record. It is observed that the ld.DR before us has rightly pointed out that the contentions of assessee before the AO and the CIT-A are fully different and distinct to each other. It is also noticed that on the basis of written submissions as filed before the AO the assessee was asked by him to furnish the details of such persons i.e. relatives and friends those who have Siddhartha Protim Majumder 5 been given financial help by the assessee. We find that the assessee could not submit such details before the AO in support of his contentions. We further find that before the CIT-A the contention of assessee was that the amount involved in question was being his past savings kept under the custody of his wife and thus, the submission of assessee is different as found by CIT-A. We further find that before us the ld.AR of the assessee has also filed the details of cash deposit of Rs.22,99,710/- for the period of 04-04-08 to 31-03-09 and the copies of ICICI Bank Statement for the period of April 01, 08 to March 31, 2009. Admittedly, these details were not filed before the AO for his consideration at the time of assessment proceedings. The case laws as relied on by the assessee before us are not applicable to the present case only for the reason as discussed above that the material evidence as filed before us containing pages 1 to 6 in paper book covering the additional ground seeking to assess the issue in hand on peak basis and we find that the same as raised by the assessee for the first time before us. In such circumstances, taking into consideration the submissions before us and in the interest of justice, we deem it fit and proper to remand the issue to the file of the AO for his consideration and to pass an order in accordance with law after giving the assessee adequate opportunity of hearing. The assessee shall be at liberty to file requisite evidences, if any, to substantiate his claim/contention.