D.C.I.T CIR - 3,KOLKATA, ASANSOL vs. NARENDRA KHARKA, DURGAPUR

1 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH: KOLKATA [Before Shri M. Balaganesh, AM & Shri S. S. Viswanethra Ravi, JM]

I.T.A No. 1093/Kol/2013 Assessment Year: 2009-10

Deputy Commissioner of Income-tax, Vs. Narendra Kharka Circle-3, Asansol (PAN: AOHPK5061L) (Appellant) (Respondent)

Date of hearing: 25.08.2016 Date of pronouncement: 05.10.2016

For the Appellant: Shri Anil Kumar Pande, Addl. CIT, Sr. DR For the Respondent: Shri Amit Kumar, CA

ORDER Per Shri M. Balaganesh, AM:

This appeal by revenue is arising out of order of CIT(A), Asansol vide appeal No. 279/CIT(A)/Asl/W-3(1)/Asl/11-12 dated 18.02.2013. Assessment was framed by ITO, Ward-3(1), Asansol u/s. 143(3) of the Income tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2009-10 vide his order dated 26.12.2011.

2.1. The brief facts of this issue is that the assessee is a transporter following mercantile system of accounting. The assessee was owner of one goods carrying vehicle (Dumper / Tipper) which was given on hire to M/s Piyunshu Projects Pvt Ltd. The income was offered thereon u/s 44AE of the Act at the rate of Rs. 3,500/- per month in the absence of maintenance of books of accounts. The return of income was selected for scrutiny through Computer Assisted Selection of cases for Scrutiny (CASS) on the basis of AIR information in respect of cash deposits made in the assessee’s bank account with Axis Bank and ICICI Bank. The ld AO, on obtaining information u/s 133(6) of the Act from Axis Bank, City Centre Branch, in the form of bank statement of the assessee , observed that cash was deposited in the said bank account and the closing balance in the said bank account was Rs. 8,95,662.85 as on 31.3.2009 which was not disclosed in the balance sheet filed by the

2 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 assessee. The assessee replied that the transactions in Axis Bank account were reflected in his personal balance sheet which was not disclosed in the return of income due to lack of relevant column in the electronic filing of return form in ITR V. The assessee was directed to produce the last three years balance sheet and in response to the same, the authorized representative of the assessee submitted the statement of affairs of self and proprietory concern for Asst Year 2008-09 only together with the computation of total income thereon. The ld AO observed certain discrepancies in the cash on hand account and in capital account in the said statement of affairs furnished by the assessee. The ld AO observed that the assessee has prepared cash book after the starting of the assessment proceedings and not at the time of depositing the cash from the cash book to his bank accounts. He further observed that assessee has already disclosed his undisclosed income in the return of income for the Asst Year 2009-10 in the form of other income and net off of other income and depreciation of case are being used for hire. However, no evidence of letting his own car for hire is not placed on record. Accordingly, he rejected the cash book for the Asst year 2009-10 as manipulated. He found that since the source of credits in the bank accounts with ICICI Bank and Axis Bank was not properly explained by the assessee, he brought the same to tax in the sums of Rs. 1,62,000/- and Rs. 45,20,000/- respectively as unexplained cash credit u/s 68 of the Act.

2.2. Before the ld CITA, it was pleaded that the ld AO had not taken into consideration the following facts which were made clear to him during the course of assessment proceedings in respect of transactions in Axis Bank deposits as below:-

(a) Deposits of Rs 10,00,000/- on 4.7.2008 and Rs. 5,00,000/- on 11.7.2008 were amounts received by cheque from Sri Suresh Kumar Gourisaria as advance against sale of land at Raniganj. These amounts were also verified from Sri Suresh Kumar Gourisaria by deputing an Inspector of Income Tax as stated in the assessment order. (b) Cash deposit of Rs. 8.80,000/- on 9.8.2008 was made by depositing back in the bank an amount of Rs. 7,80,000/- withdrawn from the bank one day earlier on 8.8.2008 and Rs. 1,00,000/- from cash in hand. (c ) An amount of Rs. 9,90,000/- deposited on 30.8.2008 in the savings bank account is the same amount of cash withdrawn earlier on 13.8.2008. The amounts were withdrawn for

3 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 acquiring asset / land but as the deal did not come through, the same was re-deposited into bank. (d) Further two cheques of Rs. 5,00,000/- on 24.1.2009 and Rs. 2,50,000/- dated 3.3.2009 were deposited in bank. The amounts were received on sale of four wheeler vehicle (Tata Safari) of the assessee. (e) Out of Rs. 45,20,000/- added as undisclosed income , only Rs. 2,00,000/- has been deposited in cash on 3.4.2008 and Rs. 2,00,000/- deposited in cash on 26.9.2008. (f) Rs 1,62,000/- was deposited in cash in ICICI Bank during the course of financial year 2008-09. These amounts were deposited for paying instalments on vehicle loan account. A sum of Rs. 5,58,719/- was received in cash against transport receipts from M/s Piyunshu Projects Pvt Ltd apart from cheques received from them. This fact was also verified by the ld AO. This sum of Rs. 5,58,719/- explains the total cash deposits of Rs. 4,00,000/- in Axis Bank (i.e the left over portion as per point (e) above) and Rs 1,62,000/- in ICICI Bank. The meager difference of Rs. 3,281/- is met out of cash balance of the assessee.

Based on these submissions, the assessee prayed for deletion of the additions made towards cash credit u/s 68 of the Act.

2.3. The ld CITA observed that the assessee had disclosed the interest income from Axis Bank and ICICI Bank in his return of income and hence there was no intention to conceal the said bank accounts in the return. He also gave a finding that the Axis bank account maintained is for non business purposes and hence the said savings bank account balance is not to be disclosed in the e-filed return where business balance sheet is to be disclosed. He observed that the ld AO had only made a wild allegation without understanding the fact that the sources of cash deposits were explainable out of previous withdrawals itself in the same bank accounts. In respect of cheque deposits, the assessee had given proper explanation with regard to the nature of those receipts which has not been properly understood and examined by the ld AO. Accordingly he deleted the additions made in the sum of Rs. 1,62,000/- and Rs. 45,20,000/- u/s 68 of the Act. Aggrieved, the revenue is in appeal before us on the following ground:- “1. That, the Ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of Rs.1,62,000/- and Rs.45,20,000/- disallowed by the AO u/s. 68 on account of unexplained cash deposit in ICICI & Axis Bank.”

4 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 2.4. The ld DR vehemently relied on the order of the ld AO and also stated that the ld CITA had mechanically granted relief without bringing on record that the withdrawals made in the said bank account might have been utilized for any other purposes and hence not available for future cash deposits in the same bank account. In response to this, the ld AR argued that the revenue was only making an allegation that the withdrawals made earlier were utilized for some other purposes without bringing any material evidences on record.

2.5. We have heard the rival submissions. We find that the assessee had indeed disclosed the interest income emanating out of the Axis and ICICI Bank as his income in the return of income. Hence as rightly pointed out by the ld CITA that this very action of the assessee would prove that he never had any intention to conceal the bank account. Hence it could be safely concluded that the said bank accounts could not be construed as undisclosed bank accounts. Moreover, the assessee was able to explain the source of cash deposits to be met out of previous cash withdrawals in the same bank account and meager sums out of prevailing cash balance. We find that the revenue was not able to prove with material evidences on record that the previous withdrawals made in the said bank accounts were utilized for some other purposes by the assessee thereby failing to act as a source for future cash deposits. It is not in dispute that the assessee had received a sum of Rs. 5,58,719/- in cash from M/s Piyanshu Projects Pvt Ltd towards transport receipts apart from cheques received from them. It is also not in dispute that the assessee was in receipt of hire charges from M/s Piyanshu Projects Pvt Ltd. This fund is also available for explaining the source for cash deposits.

With regard to the cheque deposits of Rs. 10 lacs and Rs 5 lacs credited in the said bank account, we find that the assessee had duly explained the source and nature of those credits together with the party (Sri Suresh Kumar Gourisiria) from whom the same were received which were also subject to verification by the Inspector of Income Tax. With regard to the other cheque deposits of Rs 5 lacs and Rs 2.50 lacs, the same were explained by the assessee to be received towards sale of cars. This fact has not been disputed by the revenue before us. In fact, the same AO had accepted this fact while framing a separate addition towards capital gains on sale of the said cars. Hence we hold that there is no case made out by the revenue for making an addition in the sums of Rs. 1,62,000/- and Rs.

5 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 45,20,000/- in the facts and circumstances of the case. Accordingly, the ground no.1 raised by the revenue is dismissed.

3.1. The brief facts of this issue is that the assessee made an investment of Rs. 1,00,000/- in Max Life Insurance in Cash during the financial year 2008-09 relevant to the asst year under appeal. The ld AO added this sum as undisclosed income as the cash book was rejected by the ld AO. The assessee stated that this investment is duly reflected in his personal balance sheet The ld CITA observed that the statement of affairs of the assessee clearly explain the investment in Max Life Insurance and the same is duly reflected in the cash book of the assessee. Hence he held that the source is duly explained and accordingly deleted the addition. Aggrieved, the revenue is in appeal before us on the following ground:- “2. That, the Ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of rs.1,00,000/-, disallowed by the AO u/s. 68 on account of unexplained investment in Max Life Insurance.”

3.2. We have heard the rival submissions. We find that the ld CITA had categorically observed that the investment in Max Life Insurance is duly reflected in the cash book of the assessee. This finding has not been controverted by the revenue before us. Hence we find no infirmity in the order of the ld CITA in this regard. Accordingly, the ground no.2 raised by the revenue is dismissed.

4.1. The brief facts of this issue is that the assessee received advance from Sri Suresh Kumar Gourisaria towards advance against sale of land. The ld AO observed that the assessee paid Rs. 7,39,000/- to Mr S.K. Mukherjee as advance for purchase of residential property. Both the parties were subject matter of verification by the Inspector of Income

6 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 Tax at the instance of the ld AO. Mr Suresh Kumar Gourisaria responded that he had paid Rs. 15,00,000/- to the assessee in July 2008 and produced the bank statement in support of his response. The ld AO observed from the said bank statement, that there was a similar deposit to the tune of Rs. 15,00,000/- by cheque on the same date on which the cheque for similar amount was issued to the assessee. The ld AO also observed that the annual income of the said party was Rs. 4,13,566/-. Accordingly, the ld AO concluded that the said party did not possess sufficient creditworthiness to advance monies to the assessee and added a sum of Rs. 15,00,000/- as unexplained cash credit in the hands of the assessee. Similarly the ld AO observed that the assessee had paid Rs 7,39,000/- to Mr S K Mukherjee towards advance for purchase of residential property, whereas the said party confirmed that he had received Rs. 9,39,000/- from the assessee. Accordingly, the ld AO concluded that the sum of Rs. 2,00,000/- was met by the assessee out of his undisclosed income.

4.2. The ld CITA observed that Sri Suresh Kumar Gourisaria did not have any evidence in hand to prove that the nature of transaction is towards advance paid to assessee. These sums were credited to SB Account with Axis Bank of the assessee in two instalments of Rs. 10,00,000/- and Rs. 5,00,000/- on 4.7.2008 and 11.7.2008 respectively. The ld CITA observed that the authenticity of the transaction is not in question. The assessee stated that these sums were received as advance for sale of land and when the transactions did not fructify, the property was ultimately sold to M/s Riddhi Siddhi Health Care Pvt Ltd on 11.2.2011 and with that fund received thereon, the money was refunded by the assessee to Sri Suresh Kumar Gourisaria on 22.2.2011. The ld CITA observed that the said sale deed has been registered on 11.2.2011 with Raniganj Sub-Registrar Office, Burdwan District in favour of M/s Riddhi Siddhi Health Care Pvt Ltd. Based on these facts, the ld CITA deleted the addition made in the sum of Rs. 15,00,000/- . However, no finding has been given in respect of addition made for Rs. 2,00,000/-. Aggrieved, the revenue is in appeal before us on the following ground:- “3. That, the Ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of Rs.15,00,000/- & Rs.2,00,000/-, disallowed by the AO on account of unexplained advance received and payment made to two different parties.”

4.3. We have heard the rival submissions. We find that the sums of Rs. 15,00,000/- has been received as advance from Suresh Kumar Gourisaria which fact was also accepted by the ld AO pursuant to the physical verification by the Inspector of Income Tax. However,

7 ITA No. 1093/Kol/2013 Narendra Kharka, AY 2009-10 he only observed that the nature of the transaction has not been proved by the said party with evidence. We find that the ld CITA had also stated that the said sum was received as advance from the said party which was also refunded to the said party on 22.2.2011. He also observed that the assessee had indeed registered the sale deed for which the advance was originally received from Mr. Suresh Kumar Gourisaria but the deal did not fructify and ultimately the sale deed was registered in favour of M/s. Riddhi Siddhi Health Care Pvt Ltd on 11.2.2011. None of these facts were controverted by the revenue before us. In these circumstances, we find lot of force in the factual submissions of the ld AR in this regard and accordingly do not find any justifiable reason to interfere with the order of the ld CITA in this regard. We also find that the addition made in the sum of Rs. 2,00,000/- though made by the ld AO had been contested by the assessee before the ld CITA, the ld CITA did not give any finding with regard to the said ground, against which, the assessee is not in appeal before us. Hence in these circumstances, the revenue cannot have any grievance on the same. Accordingly, the ground no.3 raised by the revenue is dismissed.

Order pronounced in the open court on 05.10.2016

Sd/- Sd/- (S.S. Viswanethra Ravi) (M. Balaganesh) Judicial Member Accountant Member Dated : 5th October, 2016

Jd.(Sr.P.S.) Copy of the order forwarded to: APPELLANT – DCIT, Circle-3, Asansol. 1. Respondent –Shri Narendra Kharka, MS-11/12, Bengal Ambuja Housing 2 Complex, City Centre, Durgapur-713216. The CIT(A), Asansol 3. 4. CIT , Asansol 5. DR, Kolkata Benches, Kolkata /True Copy, By order,

Asstt. Registrar.