BHOLA NATH SHAH,KOLKATA vs. I.T.O WD - 51(3),KOLKATA., KOLKATA

This appeal by assessee is arising out of order of CIT(A)-XXXII, Kolkata vide Appeal No. 124/XXXII/10-11/51(3)/Kol dated 04.01.2013. Assessment was framed by ITO, Wd-51(3), Kolkata u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2008-09 vide his order dated 31.12.2010.

The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in making addition of undisclosed income being cash deposits in AXIS Bank amounting to Rs.51.05 lacs.

Briefly stated facts relating to this issue are that the assessee is dealing in shares and share transactions are conducted through his bank account maintained with Axis Bank. The assessee has made total deposit in Axis Bank account at Rs.51.05 lacs. According to AO, the assessee could not explain the cash deposit made in savings bank account no. 191010100090951 with Axis Bank, Lake Town Branch. But the assessee explained that this cash transactions of shares were conducted through this bank account and cash receipts from the parties to whom equity shares of company’s were sold & utilized and this cash receipts were deposited in the bank from time to time as details were given in the cash book and bank book. But the AO without verifying the books of account and transactions made addition of cash deposits as unexplained. Aggrieved, assessee preferred appeal before CIT(A), who also confirmed the action of AO by putting reverse onus on assessee that the purchasers are not having any source of income and all these shares are sold in cash. The assessee has filed complete address before the AO relating to these parties but summons could not be served or persons did not attend in response to summons u/s. 131 of the Act. The entire finding of CIT(A) reads as under: “I have duly considered the assessment order, submission of the A/R, remand report and its rejoinder. I found that bank account No.191010100090951 in Axis Bank is not disclosed in the books of accounts. The AIR of the appellant made the story that the deposit of cash in the bank account is from the sales of shares. This argument of the appellant is not tenable because the Assessing Officer during the course of assessment proceedings as well as remand stage made the enquiry by the Departmental Inspector and he found that the following persons were not found at the given address. (i) Ram Sevak Singh, Adarshnagar, Konnagar, Hooghly. (ii) Kiran Gupta, ADarshnagar, Konnagar, Hooghly. (iii) Lalit Kumar Sharma, Shastrinagar, Bara Behara, Hooghly. (iv) Hari Prasad Singh, Adarh Nagar Colony, Konnagar, Hooghly. (v) Laxmi Agarwal, Adarh Nagar, Konnagar, Hooghly (vi) Krishna Devi Sharma, Adarh Nagar, Konnagar, Hooghly (vii) Biren Das, 45 New Park, Konnagar, Hooghly. (viii) Urmila Devi Daboo, 2 Narayan Prasad Lane, Kolkata-700 007. (be) Shanti Devi Vyas, 4 Muktaram Babu Street, Kolkata - 700 007. Some persons did not attend in response to the summon u/s.131 of the I.T. Act and some attended. The following facts emerged: 1) The purchaser are not having any source of income. 2) All the Sales of shares are shown in cash. 3) None of them having bank account. 4) It is also observed that how the appellant approached to them. 5) None of them have their PAN 6) Nobody filed any Income Tax Return. The above fact clearly shows that the creditworthiness of the persons are not proved. In some case the identity of the person are also not prove. In this way the appellant made a story to regularized the cash deposit in the bank account through the sale receipt of the shares that is totally false. Considering the above findings and fact of the case I am of the view that the action of the AO is as per law, treating Rs.51,05,000/- cash deposit in the undisclosed bank account. Hence, I confirm the addition of Rs.51,05,000/- made by the A.O. These grounds are not allowed.” Aggrieved, assessee preferred appeal before Tribunal.

We have heard Ld. Sr. DR and gone through facts and circumstances of the case. We find that the assessee has deposited cash amounting to Rs.51.05 lac in his savings bank account maintained with Axis Bank and this bank account was used for all his transactions of trading of shares, which are recorded in his books of account. The AO asked for details and source of deposit in that account and assessee submitted all the details and supporting of the deposits made in that account from time to time. It was explained that cash deposits were out of funds realized on sale of equity shares and for that purpose to explain the transactions of cash deposit he filed copies of sale invoices purchase invoice and relevant share certificate including the names, 3 Bhola Nath Shah, AY 2008-09 addresses and all other details of the parties to whom the sale of shares were made. Simply the AO issuing the summons u/s. 131 of the Act, some of which were served and some of which were returned unserved, presumed that these parties does not exist and the cash deposits made in bank account are unexplained cash credits of the assessee. Neither the AO nor CIT(A) has gone into these details, despite the fact that all the details were available before them for examination. In such circumstances, we are of the view that this issue be remitted back to the file of the AO for examination of these documents by the AO and giving a proper finding whether the cash deposit is out of the sale proceeds of shares. It is the onus of the AO to call for the purchasers of share from the assessee once the assessee provides the complete names and addresses with supporting evidence. In term of the above, we set aside the issue back to the file of the AO for re deciding after examining all the evidence and documents. The orders of the lower authorities are set aside the issue is remitted back to the file of AO. Appeal of assessee is allowed for statistical purposes.

In the result, appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 21.03.2016 Sd/- Sd/- (M. Balaganesh) (Mahavir Singh) Accountant Member Judicial Member