Shri Biswanath Agarwal, L/H of Late Antar Devi Agarwal, Purulia v. A.C.I.T.., Cir-1, Asansol, Asansol

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'A BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI J.M. AND HONB LE SRI B.C.MEENA A.M.) I.T.A. NOS. 1386 & 1387/KOL/2009 ASSESSM ENT YEARS : 1992-93 & 93-94 SHRI BISWANATH AGARWAL VS ACIT CIRCLE-1 ASANSOL (L/H OF LATE ANTAR DEVI AGARWAL) (PAN NO. AACHA 0837 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI C.DUTTA . RESPONDENT BY : SRI O.P.AGARW AL CIT (DR). O R D E R PER SHRI B.C.MEENA A.M. BOTH THESE APPEALS ARE ARISING OUT OF THE COMMON O RDER OF THE CIT(A) ASANSOL DATED 27.05.2009 FOR THE ASSESSMENT YEARS 1992-93 AND 1993-94. HENCE THEY ARE BEING DISPOSED OF BY THIS CONSOLIDAT ED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO. 1386(KOL)/2009 THE FOLLOWING GROUNDS ARE RAISED : 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITIO N OF RS.7 100/- MADE BY THE A.O. ON ACCOUNT OF GIFT. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1 00 000/- BEING DEPOSIT MADE BY THE ASSESSEE IN THE DISCLOSED BANK ACCOUNT MADE BY THE A.O. TREATING THE SAME AS UNEXPLAINED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD ALT ER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 3. WHILE PLEADING ON GROUND NO. 1 THE LEARNED A.R. SUBMITTED THAT THE LIST OF DONORS WAS GIVEN TO THE CIT(A) AND HE HAS WRONGL Y CONFIRMED THE ADDITION OF RS.7 100 ON ACCOUNT OF UNEXPLAINED GIFTS AND HE PLEADED TO DELETE THE SAME. LEARNED D.R. RELIED ON THE ORDERS OF THE AUTHORITI ES BELOW. 4. AFTER HEARING BOTH THE SIDES WE FIND THAT EVE N AFTER PROVIDING THE AMPLE OPPORTUNITIES THE ASSESSEE HAS FAILED TO PRODUCE T HE CONFIRMATIONS AND OTHER SUPPORTING EVIDENCES FROM THE DONORS. THE ONUS W AS ON THE ASSESSEE TO PROVE 2 THE GENUINENESS OF GIFTS BY ESTABLISHING THE IDE NTITY OF THE DONOR THE CAPACITY OF THE DONOR AND GENUINENESS OF THE GIFT. ASSESSEE FAILED TO DO SO. KEEPING THESE FACTS IN VIEW WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) AND WE CONFIRM THE SAME ON THIS ISSUE. 5. WHILE PLEADING ON GROUND NO. 2 THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE HAS SUBMITTED A CASH FLOW STATEMENT AND FR OM THIS CASH FLOW STATEMENT THERE WAS SUFFICIENT CASH BALANCE AVAILABLE WITH THE ASSESSEE WHICH WAS DEPOSITED IN THE BANK ACCOUNT ON 3.5.91 OF RS.50 000 AND ON 13.6.91 OF RS.50 000. HE PLEADED THAT THE ADDITION SHOULD BE DELETED. 6. ON THE OTHER HAND THE LEARNED D.R. RELIED ON T HE ORDERS OF THE AUTHORITIES BELOW. 7. AFTER HEARING BOTH SIDES AND CONSIDERING THE R ECORDS WE FIND THAT THE ASSESSEE HAS MADE THIS CASH FLOW STATEMENT BY WAY OF SHOWING RECEIPT OF RS.16 000 EACH FROM FIVE PERSONS I.E. KEDARNATH AGARWAL CHEDDILAL AGARWAL SATYANARAYAN AGARWAL KUSUM AGARWAL AND SARDHA DEV I KEDIA ON 4.5.1991. THE OPENING BALANCE HAS BEEN SHOWN AT RS.1 94 599. THE RECORD SHOWS THAT NOTHING HAS BEEN SUBMITTED BEFORE THE AUTHORITIES B ELOW IN THIS REGARD WHICH COULD ESTABLISH THE GENUINENESS OF THE CASH RECEIPT S OF RS.80 000/- FROM FIVE PERSONS ON 4.5.91 AND OPENING CASH BALANCE. CAS H INTRODUCED FROM THE UNVERIFIED PERSONS WILL NOT GIVE THE TRUTHFULNESS OF THE CASH FLOW STATEMENT. THE OPENING BALANCE OF THE CASH FLOW STATEMENT ITSELF IS UNEXPLAINED AND REMAINED UNVERIFIABLE. SINCE THE CASH FLOW STATEMENT AS WELL AS THE OPENING BALANCE SHOWN IN THE CASH FLOW STATEMENT IS UNVERIFIABLE WE FIND NO MERIT IN THE EXPLANATION PROVIDED BY THE ASSESSEE. THE DEPOSIT S REMAINS UNEXPLAINED AND. WE DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 8. GROUND NO. 3 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION AND THE SAME IS DISMISSED. 9. IN THE RESULT THE ASSESSEES APPEAL IN ITA NO. 1386(KOL)/2009 IS DISMISSED. 10. ITA NO. 1387(KOL)/2009 : WHILE PLEADING ON GROUND NO. 1 THE LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT CASH FOUND DUR ING THE SEARCH WAS RS.60 000 AND OUT OF WHICH RS. 50 000 WAS SEIZED. THERE WAS AN OPENING BALANCE OF RS.66 649 AS PER THE CASH FLOW STATEMENT FOR THE FINANCIAL YEAR 1992-93 AS ON 3 1.4.92. THE SAME SHOULD BE ACCEPTED AS EXPLAINED BY OPENING BALANCE AS SHOWN IN CASH FLOW STATEMENT . HE PLEADED TO DELETE THE ADDITION. THE D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. AFTER HEARING BOT H SIDES WE HOLD THAT WHILE DECIDING THE APPEAL IN ITA NO. 1386(KOL)/09 WE HAVE HELD THAT THE ENTRIES IN THE CASH FLOW STATEMENT ARE UNVERIFIABLE. THEREFORE T HE OPENING BALANCE SHOWN IN THE CASH FLOW STATEMENT FOR THE FINANCIAL YEAR 1992-93 ALSO REMAINED UINVERIFIABLE. THE OPENING BALANCE ON WHICH THE ASSESSEE RELIED T O EXPLAIN THE CASH FOUND DURING THE SEARCH OPERATION ITSELF IS UNRELIABLE. THEREFORE WE FIND NO MERIT IN THE APPEAL OF THE ASSESSEE AND WE DO NOT FIND ANY INFI RMITY IN THE ORDER OF THE CIT(A) ON THIS ISSUE. WE THEREFORE SUSTAIN THIS ADDITIO N. 11. WHILE PLEADING ON GROUND NO. 2 THE LEARNED A.R . SUBMITTED THAT THE CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS OF RS.3 350 AND RS.9 850 ON ACCOUNT OF INVESTMENT IN SHARES. HE SUBMITTED THAT THIS ADDITION HAS BEEN MADE ON THE BASIS OF SEIZED DOCUMENTS BUT THESE WERE NO T FOUND IN THE POSSESSION OF THE ASSESSEE. HE ALSO PLEADED THAT THE INVESTMENTS WERE NOT MADE BY THE ASSESSEE. 12. THE LEARNED D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 13. AFTER HEARING BOTH THE SIDES ON THE ISSUE W E FIND THAT THERE WERE INVESTMENTS AND RELEVANT DETAILS WERE SEIZED . THE CIT(A) UPHELD THE ADDITION HOLDING AS UNDER : BEFORE ME THE A.O. HAS FURNISHED HIS REMAND REPOR T AS UNDER : UNEXPLAINED INVESTMENTS OF RS.3 350/- ; IN THIS RE GARD I WOULD LIKE TO DRAW YOUR ATTENTION TO THE RELEVANT PORTION OF THE ORIGINAL O RDER DT. 28.02.1994 WHICH IS AS FOLLOWS: AS PER G.K.A112 TO G.KA!16 RS.3 3501- WAS INVESTED BY THE ASSESSEE ON SHARES. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF RS.3 35 0/- WITH EVIDENCE IN THE SHOW CAUSE DATED 10.11.1993. BUT NO EXPLANATION REGARDING THE SOURCES OF INVESTMENT OF RS.3 350/- HAS SO FAR BEEN FURNISHED BY THE ASSESSEE. THE AMOU NT OF RS. 3 350/- IS TREATED UNEXPLAINED AND ADDED TO HER TOTAL INCOME. BUT THE ASSESSEE IN HIS SUBMISSION FIELD BEFORE YOU R HONOUR HAS NOT DISPUTED THE FINDINGS OF GKA12 TO GKA-16. HENCE UNDER THE FACTS AND CIRC UMSTANCES THE ADDITION MADE BY THE A.O ON THIS POINT IS IN ORDER. UNEXPLAINED INVESTMENT OF SHARES FOR RS.9 8501- IN THIS REGARD ALSO I WOULD LIKE TO DRAW YOUR ATTENTION TOWARDS THE FACT THAT THE ASSESSEE H AS NOT DISPUTED IN THE SUBMISSION FILED BEFORE YOUR HONOUR THE FINDINGS OF PAGE-6 OF LF/2 PAGE-9 & 10 OF LF/2 PAGE -L2 TO 17 OF LF/2 PAGER-15 OF LF/2 PAGE-25 OF LF/8 AND PAGE-I OF LF/19. THESE SEIZED DOCUMENTS EXPLAINS THE GROUND OF ADDITION OF RS.9 850/- AS UN EXPLAINED INVESTMENT IN SHARES. BEFORE ME THE APPELLANT HAS FURNISHED HIS COMMENTS ON THE ABOVE REMARKS OF A.O. IN REMAND REPORT AS UNDER:- REGARDING UNEXPLAINED INVESTMENTS OF RS.3 350/- AN D UNEXPLAINED INVESTMENT IN SHARES FOR RS.9 8501- . IT IS SUBMITTED THAT THESE INVESTM ENTS WERE NOT MADE BY THE ASSESSEE. AS PER THE REMAND REPORT INVESTMENT OF RS.3 350/- HAS BEEN TAKEN FROM GKA/12 TO GKA/16 AND INVESTMENT _OF .3 350/- HAS BEEN TAKEN F ROM GKA/L2 TO GKA/16 AND INVESTMENTS OF RS.9 850/- HAS BEEN TAKEN FROM LF/2 LF. 18 LF/19. THESE SEIZED PAPERS ON THE BASIS OF WHICH THE ADDITION WERE MADE IN TH E HANDS OF THE ASSESSEE WERE NOT 4 FOUND FROM THE POSSESSION OF THE ASSESSEE. AS A MAT TER OF FACTS AND RECORD THERE WAS NO SEARCH WARRANT IN THE NAME OF THE ASSESSEE AND NO P ANCHANAMA WAS ALSO DRAWN IN THE NAME OF THE ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF SEIZED M ATERIAL DISCUSSED ABOVE AND THE APPELLANT HAS FAILED TO EXPLAIN THE INVESTMENT OF R S3 350/- AND RS.9 850/- RESPECTIVELY. THE ADDITIONS WERE MADE AFTER ISSUING SHOW CAUSE NO TICE BUT NO SOURCE WAS EXPLAINED BEFORE THE THEN AO. HENCE THE A.O. WAS QUITE JUSTI FIED IN MAKING THE ADDITION. BEFORE ME THE APPELLANT CAME WITH A NEW PLEA THAT THE INVESTMENTS WERE NOT MADE BY THE APPELLANT. SINCE THE ADDITIONS WERE MADE OR THE BA SIS OF SEIZED MATERIALS WHICH WERE RELATED TO SMT. ANTAR DEVI AGARWAL THE A.O. WAS JU STIFIED IN MAKING THE ADDITIONS HENCE NO INTERFERENCE IN THE A.O.S ACTION IS CALLE D FOR. SINCE NO ACCEPTABLE EXPLANATION AND EVIDENCE HA S BEEN PROVIDED BY THE ASSESSEE THEREFORE WE FIND NO FAULT IN THE ORDER OF THE CIT(A) AND WE CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE ALSO. 14. GROUND NO. 3 IS GENERAL IN NATURE AND NEEDS NO ADJUDICATION. 15. THIS APPEAL FILED BY THE ASSESSEE IS DISMISSED. 16. IN THE RESULT BOTH THE ASSESSEES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.4.2010 SD/- SD/- (D.K.TYAGI) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.4.2010 COPY FORWARDED TO :- 1) ACIT CIRCLE-1 ASANSOL. 2) SHRI BISWANATH AGARWAL L/H OF LATE ANTAR DE VI AGARWAL NATBAR SARKAR LANE PURULIA WEST BENGAL. 3) CIT(A) ASANSOL. 4) CIT ASANSOL. 5) D.R. ITAT KOLKATA. BY ORDER ASSISTANT REGISTRA R I.T.AT. KOLKATA. BCD