JAI TRADING CO., MUMBAI v. ACIT 17(3), MUMBAI

ITA 2407/MUM/2009 | 2001-2002
Pronouncement Date: 30-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 240719914 RSA 2009
Assessee PAN AABFJ4311N
Bench Mumbai
Appeal Number ITA 2407/MUM/2009
Duration Of Justice 2 year(s) 3 month(s) 15 day(s)
Appellant JAI TRADING CO., MUMBAI
Respondent ACIT 17(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted J
Tribunal Order Date 30-07-2011
Date Of Final Hearing 15-07-2010
Next Hearing Date 15-07-2010
Assessment Year 2001-2002
Appeal Filed On 15-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI PRAMOD KUM AR (AM) ITA NO.2407/MUM/2009 ASSESSMENT YEAR : 2001-02 ITA NO.2408/MUM/2009 ASSESSMENT YEAR : 2002-03 ITA NO.2409/MUM/2009 ASSESSMENT YEAR : 2003-04 ITA NO.2410/MUM/2009 ASSESSMENT YEAR : 2004-05 ITA NO.2411/MUM/2009 ASSESSMENT YEAR : 2005-06 M/S. JAI TRADING CO. 290 A/10 ANAND NAGAR NR. GTB NAGAR SION (E) MUMBAI-37. ..( APPELLANT ) P.A. NO. (AABFJ 4311 N) VS. ASSTT. COMMISSIONER OF INCOME TAX 17(3) PIRAMAL CHAMBERS PAREL MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI ANIL SATHE RESPONDENT BY : SHRI MA NOJ MISHRA O R D E R PER D.K. AGARWAL (JM). ALL THESE APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED A GAINST THE SEPARATE ORDERS DATED 19.9.2008 PASSED BY THE LD. C IT(A) FOR THE ASSESSMENT YEARS 2001-02 2002-03 2003-04 2004-05 AND 2005-06. ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 2 SINCE FACTS ARE IDENTICAL AND GROUNDS ARE COMMON ALL TH ESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIE NCE. 2. IT IS OBSERVED THAT APPEALS ARE TIME BARRED BY 99 D AYS. IT WAS SUBMITTED BY THE ASSESSEE VIDE PETITION DATED 12.3.2009 THAT THE ORDERS APPEALED AGAINST WERE COLLECTED BY HIS AUTHORISED REPRESENTATIVE INFORMING THE ASSESSEE OF THE RECEIPT OF THE ORDERS. HOWEVER DUE TO ILLNESS HE COULD NOT CONTACT HIS COUNSEL IN TIME FOR FILING THE APPEALS AND IN SUPPORT HE ENCLOSED A MEDICAL CERTIFICATE CERTIFYING HIS ILLNESS AND WAS ADVISED REST FROM 15.12.20 08 TILL 9.3.2009. IT WAS FURTHER SUBMITTED THAT IN FACT DUE TO ILL HEALTH THE MATTER HAS NOT RECEIVED PROPER ATTENTION EARLIER ALSO. IN SUPPORT AN AFFIDAVIT DATED 22.4.2009 OF SHRI MANJIT SINGH SEHG AL PARTNER WAS ALSO FILED. IT WAS THEREFORE PRAYED THAT THE DELAY IN F ILING THE APPEALS BE CONDONED WHICH WAS NOT OBJECTED TO BY THE LD. DR. THIS BEING SO AND IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE WE ARE SATISFIED THAT THERE WAS A REASONABLE CA USE IN FILING THE APPEALS LATE BY 99 DAYS AND HENCE THE DELAY IS COND ONED. 3. BRIEFLY STATED FACTS OF THE CASE EXTRACTED FROM ITA NO.2407/M/2009 FOR ASSESSMENT YEAR 2001-02 ARE AS UNDER : 4. IN THIS CASE A TAX EVASION PETITION CONTAINING EVIDE NCES AND INFORMATION IN RESPECT OF THE ASSESSEE HAD BEEN RECEIVED BY THE ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 3 ASSESSING OFFICER FROM THE OFFICE OF THE CHIEF COMMISSIONER OF INCOME TAX MUMBAI. ON VERIFICATION OF SUCH EVIDENCES ALONG WIT H THE TAX EVASION PETITION THE ASSESSING OFFICER ISSUED NOTICE U/S. 1 48 OF THE INCOME TAX ACT 1961 (THE ACT) ON 28.3.2007. HOWEVER NO RETURN OF INCOME WAS FILED IN RESPONSE TO THE AFORESAID NOTICE. EV EN NOTICES U/S. 142(1) ISSUED BY THE ASSESSING OFFICER WERE ALSO NOT COMPLIE D WITH. SUBSEQUENTLY SUMMON U/S. 131 OF THE ACT WAS ISSUED TO S HRI HARBHAJAN SINGH AND MR. MANJIT SINGH SEHGAL WHO ARE ALLEGED TO BE PARTNERS OF M/S. JAI TRADING COMPANY BUT THESE SUMMON S WERE ALSO NOT COMPLIED WITH. SIMULTANEOUSLY ENQUIRIES WERE ALS O CONDUCTED FROM THE SBI J K GRAM THANE AND PUNJAB & MAHARASHT RA CO- OPERATIVE BANK HAVING OFFICE AT WADALA TRUCK TERMINU S MUMBAI. ON THE BASIS OF THE INFORMATION IN THE TAX EVASION PETITI ON AND FROM THE INQUIRY CONDUCTED FROM THE BANKS A SHOW CAUSE LETTER AL ONG WITH NOTICE U/S. 142(1) AND 143(2) WAS ISSUED. THE RELEVANT PARA OF THE SAME IS REPRODUCED AS UNDER:- 5. ON FURTHER ENQUIRIES WITH THE PUNJAB AND MAHARA SHTRA BANK SEVERAL CREDITS WERE FOUND IN THE BANK ACCOUNT OF THE AS SESSEE THE YEAR-WISE TOTAL OF THE CREDITS IS AS UNDER: ASST.YEAR CREDIT A/C. NO CA/053063 LO/300396 2000-01 10 36 219 - 2001-02 8 44 765 13 90 980 2002-03 24 37 231 14 04 698 2003-04 19 81 679 12 80 000 2004-05 3 42 797 6 43 742 2005-06 3 55 986 3 84 814 ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 4 IN VIEW OF THIS YOU ARE HEREBY REQUESTED TO EXPLAI N THE NATURE AND SOURCE OF THESE CREDITS ALONG WITH THE EVIDENCES. I Y OU FAIL TO FURNISH THE NATURE AND SOURCE OF THE CREDITS THEN IT WILL BE PRESUMED TO BE UNEXPLAINED CREDITS AND THE TOTAL OF TH E CREDITS AS SHOWN ABOVE WILL BE ADDED AS INCOME TO THE YEAR IT PERTAINS TO. IN RESPONSE TO THE SHOW CAUSE NOTICE SMT. MANJIT KAUR W IFE OF ONE OF THE PARTNERS SHRI MANJIT SINGH SEHGAL APPEARED AND SUBMITTED THAT HER HUSBAND IS NOT KEEPING GOOD HEALTH FOR THE LAST FE W MONTHS AND IS UNDER MEDICAL OBSERVATION. THEREFORE THERE WAS DELAY IN COMPLIANCE. IT WAS ALSO SUBMITTED THAT NO RETURNS HAVE BEEN FILED T ILL DATE AND SHE IS TRYING TO COLLECT THE RELEVANT MATERIAL AND TRY TO FURNISH AS MANY DETAILS AS POSSIBLE. VIDE LETTER DATED 26.12.2007 IT WAS SUBMITTED THAT THE FIRM HAS NO OTHER SOURCE OF INCOME EXCEPT RENT BEING RECEIVED FROM SBI J.K. GRAM BRANCH THANE. IT WAS ALSO INFOR MED THAT THE ASSESSEE FIRM HAD TAKEN LOAN FROM PUNJAB & MAHARASHTRA BANK AND CREDITS IN THE LOAN ACCOUNT HAVE BEEN REMITTED BY THE S BI THANE TO WHOM THE ASSESSEE HAS GIVEN PREMISES IN THANE ON RENT. TH E SBI BANK THANE BRANCH HAS BEEN REGULARLY PAYING TDS TO THE GOVERNMENT ACCOUNT AS PER FORM NO.16A ISSUED BY THEM. O N VERIFICATION OF THE SUBMISSION THE ASSESSING OFFICER FOUND THAT (I) CERTAIN AMOUNT OF CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT IN THE PUNJAB & MAHARASHTRA CO-OPERATIVE BANK LTD. ON ENQU IRIES MADE WITH THE MANAGER SBI J.K. BRANCH IT WAS INFORMED BY HI M ON TELEPHONE ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 5 THAT HE M/S. JAI TRADING CO. HAS TAKEN LOAN FROM PUN JAB & MAHARASHTRA CO-OPERATIVE BANK LTD. AND WAS NOT ABLE TO PAY BACK T HE LOAN. THEREFORE THE PUNJAB & MAHARASHTRA BANK HAS ASKED THE SBI J.K. BRANCH TO DEPOSIT THE RENT PAYABLE TO JAI TRADING CO . WITH PUNJAB & MAHARASHTRA CO-OPERATIVE BANK LTD. ACCORDINGLY RENT WAS DIRECTLY DEPOSITED WITH PUNJAB & MAHARASHTRA CO-OPERATIVE BANK LTD. (II) ON FURTHER VERIFICATION IT WAS ALSO FOUND THAT THE ACCOUNT NO.3011/21 HAS BEEN RECHRISTENED AS LO/300396 (NEW NUMBER) BY THE PUN JAB & MAHARASTRA CO-OPERATIVE BANK LTD. WHILE ISSUING SHOW CA USE IN PARA NO.5 THE CREDIT IN ACCOUNT NO.LO/300396 HAVE BEEN WRO NGLY CALCULATED. IN THE SHOW CAUSES CREDIT OF BOTH THESE ACCOUNT S HAS BEEN SUMMED UP. DUE TO THIS CREDIT SHOWN IN ACCOUNT NO. LO/30096 IN PARA NO.5 OF THE SHOW CAUSE IS DOUBLE THAN THE ACTUAL CRE DITS AS BOTH ARE THE SAME ACCOUNT. AFTER GIVING EFFECT OF BOTH THE ABOVE POINTS A NEW TABLE OF THE NET CREDITS SHOWN IN COL.NO.6 BELOW FOUND IN THE BANK ACCOUNTS OF THE ASSESSEE WHICH HAS REMAINED UNEXPLAINED IS AS UNDER : ASST.YEAR CREDIT A/C. NO. TOTAL RENT CREDITED IN BANK ACCOUNT NET CREDITS CA/053063 LO/300396 2000-01 10 36 219 - 10 36 219 - 10 36 219 2001-02 8 44 765 7 09 417 15 54 182 6 81 563 8 72 619 2002-03 24 37 231 7 02 349 31 39 580 13 26 192 18 13 388 2003-04 19 81 679 6 40 000 26 21 679 13 26 192 12 95 487 2004-05 3 42 797 3 21 871 6 64 668 3 31 214 3 33 454 2005-06 3 55 986 1 92 407 5 48 393 3 31 047 2 17 346 ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 6 THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE ASSESSEE HAD FAILED TO SUBMIT THE NATURE AND SOURCE OF THE NET CREDITS SHOWN IN COLUMN NO.6 ABOVE. IT IS ALSO NOTED THAT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME TILL DATE THOUGH IT WAS HAVING RENT INCOME OF RS.27 65 069/- DURING THE YEAR UNDER CONSIDERATION AND WAS LIABLE TO FILE THE RETURN OF INCOME AS PER EXISTING PROVISIONS OF THE INCOME TAX ACT. AS THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME AND HAS NOT OF FERED THIS RENTAL INCOME FOR TAXATION THE ASSESSING OFFICER PROCEEDE D TO TAX THIS AMOUNT BY COMPUTING TOTAL INCOME OF THE ASSESSEE AS PER TH E PROVISIONS OF THE ACT. WHILE DOING SO THE ASSESSING OFFICE R HAS ALSO OBSERVED THAT THE ASSESSEE IS HAVING TWO BANK ACCOUNTS WITH PUNJAB & MAHARASHTRA BANK AND DURING THE ASSESSMENT YEAR 2001-02 THERE ARE CREDITS OF RS.8 44 765/- IN CURRENT A/C. NO.053063 AND CR EDIT OF RS.7 09 417/- IN BANK A/C. NO.LO/300396 MAINTAINED W ITH PUNJAB & MAHARASHTRA BANK TOTALING TO RS.15 54 182/-. OUT OF THESE CREDITS AMOUNT OF RS.6 81 563/- IS THE RENT RECEIVED FROM SBI J.K. BRANCH WHICH HAS BEEN DIRECTLY CREDITED TO THIS ACCOUNT. THE REM AINING NET CREDIT OF RS.8 72 619/- IS FOUND UNEXPLAINED. AS THE A SSESSEE HAS FAILED TO FILE THE RETURN OF INCOME AND HAS ALSO FAILE D TO EXPLAIN THE NATURE AND SOURCES OF THESE CREDITS THE ASSESSING OFFICER TRE ATED THESE CREDITS AS UNEXPLAINED CASH CREDITS U/S.68 OF THE ACT. THEREFORE AN AMOUNT OF RS.8 72 619/- WAS ADDED TO THE TOTAL INC OME OF THE ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 7 ASSESSEE AND ACCORDINGLY THE ASSESSMENT WAS COMPLETED AS AN INCO ME OF THE 28 08 170/- VIDE ORDER DATED 28.12.2007 PASSED U/S.144 R.W.S. 147 OF THE ACT. 5. ON APPEAL BEFORE THE LD. CIT(A) IT WAS SUBMITTED T HAT WHILE COMPLETING THE ASSESSMENT UNDER THESE SECTIONS THE ASSESSING OF FICER HAS ADDED UP UNEXPLAINED CREDIT IN THE BANK OF RS.8 72 619/-. THIS ADDITION HAS BEEN MADE IN A VERY ADHOC MANNER WITHOUT APPLICATION OF MIND. HE WAS WELL AWARE THAT APPELLANT WAS HAVING REN T INCOME AND HAS RIGHTLY TAXED IT IN THE ASSESSMENT. HOWEVER TO TREA T A ENTIRE CREDITS IN THE ACCOUNT AS UNEXPLAINED CASH CREDITS IS UNWAR RANTED FOR. IN THE NOTICE ISSUED TO THE APPELLANT HE WAS ASKED TO F URNISH THE COPIES OF THE BANK STATEMENTS AND ACCORDINGLY THE APPEL LANT HAS FILED THE LETTER WHERE HE HAS CLEARLY MENTIONED THAT HE HAS NO OTHER INCOME EXCEPT RENT RECEIVED FROM SBI J.K. GRAM BRANCH THANE. FURTHER IT WAS SUBMITTED THAT THE APPELLANT HAS TAKEN A LOAN FRO M PUNJAB & MAHARASHTRA BANK. 6. AFTER CONSIDERING THE APPELLANTS SUBMISSIONS THE LD. CIT(A) OBSERVED THAT AS REGARDS CREDITS FOUND IN THE SAVING ACCOUN TS AS AFORESAID THE APPELLANT HAS NOT FURNISHED ANY EXPLANA TION THOUGH SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE APPELLANT. HE FURTHER OBSERVED THAT THE APPELLANT REITERATED THAT EXCEPT RE NTAL INCOME THE ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 8 APPELLANT DOES NOT HAVE ANY SOURCE OF INCOME IF SO WHE REFROM THE APPELLANT HAD MADE SUCH CASH CREDITS IN THE BANK. THERE WAS NO ANSWER. HE ALSO NOTED THAT THE APPELLANT HAD TAKEN LOA N FROM PUNJAB & MAHARASHTRA CO-OPERATIVE BANK LTD. AND HAS NOT PAID B ACK THE LOAN TAKEN. THE APPELLANT HAS NOT EXPLAINED THE PURPOSE O F LOAN AND FOR THAT MATTER THE UTILIZATION OF LOAN REMAINED UNEXPL AINED. IN THE ABSENCE OF ANY EXPLANATION WITH PROPER EVIDENCE THE LD . CIT(A) HELD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN COMPLETING THE ASSESSMENT U/S.144 OF THE ACT ON BASIS OF MATERIALS AVAILABLE ON RE CORD DETERMINING TOTAL INCOME OF THE APPELLANT AT RS.28 08 170/- AND ACCORDINGLY DISMISSED THE APPEAL. 7. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US TAKING AS MANY AS SIX GROUNDS OF APPE AL. HOWEVER AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT HE IS NOT PRESSING GROUND NO.1 3 AND 4 ARE AGAINST THE V ALIDITY OF THE ASSESSMENT AND GROUND NO.6 WHICH IS GENERAL IN NATURE WH ICH WAS NOT OBJECTED TO BY THE LD.DR. 8. THAT BEING SO AND IN THE ABSENCE OF ANY SUPPORTING MATERIAL PLACED ON RECORD BY THE ASSESSEE THE AFORESAID GROUNDS RAISE D BY THE ASSESSEE ARE THEREFORE REJECTED BEING NOT PRESSED. 9. GROUND NO. 2 AND 5 READ AS UNDER: ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 9 2. THE CIT(A) ERRED IN NOT APPRECIATING THE FACT T HAT MERE BANK CREDITS CAN BE EQUATED TO INCOME AFTER RECEIVING PROPER EXPLANATION FROM THE ASSESSEE TO T HAT EFFECT. 5. THE CIT(A) FAILED TO APPRECIATE THAT DUPLICATION OF CREDIT TO INCOME ACCOUNT HAS BEEN MADE BY THE ASSESSING OFFICER BASED ON THE COMPARATIVE CHART ENCLOSED 10. THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE READS A S UNDER :- THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT IN INVOKING THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT 1961 AND IN ADDING TO THE INCOME OF THE APPELL ANT A SUM OF RS.8 72 619/- AS UNEXPLAINED CASH CREDIT. 11. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE SUBMITS THAT ONE OF THE ADDITIONS ON ACCOUNT IS ADDITION OF R S.8 72 619/- U/S.68 OF THE ACT. THOUGH THE ADDITION ITSELF IS CHALL ENGED IN THE GROUNDS OF APPEAL THE CHALLENGE TO THE INVOCATION OF SEC.68 HAS NOT BEEN SPECIFICALLY REFERRED TO. THEREFORE AS A MATTER OF ABUNDANT CAUTION THE ADDITIONAL GROUND OF APPEAL HAS BEEN TAKE N. SINCE IT IS A LEGAL ISSUE AND IT REMAINED TO BE RAISED THROUGH INADV ERTENCE THEREFORE IT IS PRAYED THAT THE ADDITIONAL GROUND R AISED BY THE ASSESSEE BE ADMITTED. 12. ON MERITS HE SUBMITS THAT THERE IS NO DISPUTE THAT T HE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNT AND THE ADDITION HAS BEEN MADE IN RESPECT OF NET CREDITS IN THE BANK ACCOUNT ADDED U/S.68 OF THE ACT. HE FURTHER SUBMITS THAT THE BANK PASS-BOOK IS NO T A BOOK ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 10 MAINTAINED BY THE ASSESSEE AND HENCE THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE BANK PASS-BOOK U/S. 68 OF THE ACT IS UNCALLED FOR AND FOR THIS PROPOSITION THE RELIANCE WA S ALSO PLACED ON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN C IT VS. BHAICHAND H. GANDHI (1983) 141 ITR 67(BOM.) WHEREIN IT HAS BEEN HELD THAT THE PASS-BOOK SUPPLIED BY THE BANK TO THE ASSESSEE CAN NOT BE REGARDED AS THE BOOK OF THE ASSESSEE THAT IS A BOOK MAINTAINED B Y THE ASSESSEE OR UNDER HIS INSTRUCTION. THEREFORE A CASH CREDIT SHOWN IN THE ASSESSEE'S BANK PASS-BOOK DOES NOT FALL WITHIN THE AMBI T OF SEC.68 OF THE ACT. HE FURTHER SUBMITS THAT THE ADDITION MADE B Y THE ASSESSING OFFICER U/S.68 CAN NOT BE TREATED AS ONE MADE U/S.69A AN D FOR THIS PROPOSITION THE RELIANCE WAS ALSO PLACED ON THE DECISION O F THE TRIBUNAL IN JAWAHAR LAL OSWAL VS. ACIT (1999) 71 ITD 324 (CHD. ) WHEREIN IT HAS BEEN HELD THAT BOTH SECTIONS ARE DIFFERENT THE FI RST NOT BEING A DEEMING SECTION AND THE SECOND BEING SO AND WHERE ONE AP PLIED THE OTHER COULD NOT COME INTO PLAY. THE ELEMENT OF SUSPICIO N AND DOUBT HAS TO BE RULED OUT WHILE APPLYING DEEMING PROVISIONS . IN RESPECT OF SECTION 68 THE ASSESSEE HAS TO SATISFY THREE PRIMARY CONDIT IONS NAMELY IDENTITY FINANCIAL CAPACITY AND PROVE THE GEN UINENESS OF THE TRANSACTION IN SEC.69A THE ITEM FOUND IS DEEMED TO BE T HE INCOME OF THE PERSON IN WHOSE POSSESSION IT IS FOUND AND THE ONUS I S ON HIM TO TENDER ALL NECESSARY EVIDENCE DISCLAIMING OWNERSHIP PUT SU BSEQUENTLY ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 11 HE HAS TO BE PROVED AS THE OWNER OF THE ASSET FOUND AND THE ONUS AT THIS STAGE SHIFTS TO THE REVENUE. HE THEREFORE SUBMITS T HAT THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY T HE CIT(A) BE DELETED. 13. IN ALTERNATIVE HE SUBMITS THAT THE ASSESSING OFFICER HAS ALSO INCLUDED THE DUPLICATION OF CREDIT ENTRIES FROM ONE BA NK ACCOUNT TO ANOTHER HENCE IT IS A DOUBLE ADDITION AND HENCE THE SAME BE DELETED. 14. ON THE OTHER HAND THE LD. DR WHILE STRONGLY OPP OSING THE ADMISSION OF ADDITIONAL GROUND OF APPEAL ON THE GRO UND THAT SUCH PLEA WAS NOT TAKEN BY THE ASSESSEE EITHER BEFORE THE ASSESSING OF FICER OR BEFORE THE LD. CIT(A) SUPPORTS THE ORDER OF THE ASSESSIN G OFFICER AND THE LD. CIT(A). 15. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE R IVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIN D THAT THERE IS NO DISPUTE THAT THE FACTS RELATING TO THE ADDITIONAL GROU ND RAISED BY THE ASSESSEE ARE BORNE OUT FROM THE RECORDS. SINCE IT IS A LEG AL GROUND AND THE MATTER GOES TO THE ROOT OF THE ISSUE THEREFOR E FOLLOWING THE RATIO OF THE DECISION IN THERMAL POWER CO LTD. VS. CIT (1998) 229 ITR 383(SC) WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 12 16. ON MERITS WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNT AND THE ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED CREDITS FOUND IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. WE FURTHER FIND THAT IT HAS BEEN ADMITT ED BY THE ASSESSEE THAT THE ASSESSEE HAD TAKEN LOAN FROM PUNJAB & MAH ARASHTRA CO-OPERATIVE BANK AND THE CREDITS IN THE LOAN ACCOUNT AFTER DEDUCTING TDS HAVE BEEN REMITTED BY THE STATE BANK OF INDIA THANE TO WHOM THE ASSESSEE HAD GIVEN PREMISES ON RENT. THE ASSESSING OFFICE R HAS ALSO MADE ENQUIRY IN THIS REGARD AND OBSERVED THAT TH E ASSESSEE HAS TAKEN LOAN FROM PUNJAB & MAHARASHTRA CO-OPERATIVE BA NK LTD. AND WAS NOT ABLE TO PAY BACK THE LOAN. THEREFORE THE PUNJ AB & MAHARASHTRA CO-OPERATIVE BANK HAS ASKED THE SBI J.K. BRANCH TO DE POSIT THE RENT PAYABLE TO JAI TRADING CO. WITH PUNJAB & MAHARASHTRA CO-OPERATIVE BANK LTD. ACCORDINGLY RENT WAS DIRECTLY DEPOSITED WITH PUNJAB & MAHARASHTRA COOPERATIVE BANK LTD. 17. IN CIT VS. BHAICHAND H. GANDHI SUPRA IT HAS BEEN HELD ( PAGE 69):- AS THE TRIBUNAL HAS POINTED OUT IT IS FAIRLY WEL L SETTLED THAT WHEN MONEYS ARE DEPOSITED IN A BANK T HE RELATIONSHIP THAT IS CONSTITUTED BETWEEN THE BANKER AND THE CUSTOMER IS ONE OF DEBTOR AND CREDITOR AND NOT OF TRUSTEE AND BENEFICIARY. APPLYING THIS PRINCIPLE T HE PASS BOOK SUPPLIED BY THE BANK TO ITS CONSTITUENT IS ONL Y A COPY OF THE CONSTITUENT'S ACCOUNT IN THE BOOKS MAINTAINE D BY THE BANK. IT IS NOT AS IF THE PASS BOOK IS MAINTAIN ED BY THE BANK AS THE AGENT OF THE CONSTITUENT NOR CAN I T BE SAID THAT THE PASS BOOK IS MAINTAINED BY THE BANK U NDER ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 13 THE INSTRUCTIONS OF THE CONSTITUENT. IN VIEW OF THI S THE TRIBUNAL WAS WITH RESPECT JUSTIFIED IN HOLDING TH AT THE PASS BOOK SUPPLIED BY THE BANK TO THE ASSESSEE IN T HE PRESENT CASE COULD NOT BE REGARDED AS A BOOK OF THE ASSESSEE THAT IS A BOOK MAINTAINED BY THE ASSESSE E OR UNDER HIS INSTRUCTIONS. IN OUR VIEW THE TRIBUNAL W AS JUSTIFIED IN THE CONCLUSIONS AT WHICH IT ARRIVED. 18. APPLYING THE RATIO OF THE ABOVE DECISION TO THE FACTS OF THE PRESENT CASE WE FIND THAT THE ASSESSEE'S CASE FALLS UNDER THE EXCEPTIONS OF THE LAW LAID DOWN BY THEIR LORDSHIPS I.E. IT IS NOT AS IF THE PASS BOOK IS MAINTAINED BY THE BANK AS THE AGEN T OF THE CONSTITUENT NOR CAN IT BE SAID THAT THE PASS BOOK IS MAINTAINED BY THE BANK UNDER THE INSTRUCTIONS OF THE CONSTITUENT. THIS BEING SO AND KEEPING IN VIEW THAT THE DEPOSITS IN THE LOAN ACCOUNT WITH PUNJAB & MAHARASHT RA CO- OPERATIVE BANK AND THE PASS-BOOK MAINTAINED BY THE SAI D BANK IS UNDER THE INSTRUCTION OF THE ASSESSEE IN THE CAPACITY OF TH E AGENT OF THE ASSESSEE AND THE CREDIT ENTRIES PERTAINING TO THE RE NTAL INCOME HAVE NOT BEEN DISPUTED BY THE ASSESSEE AND FURTHER FO R THE SAME REASONS THE DECISION IN THE CASE OF JAWAHAR LAL OSWAL (SUP RA) RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE WE ARE OF TH E VIEW THAT THE ASSESSING OFFICER WAS FULLY JUSTIFIED IN MAKING THE IMPUG NED ADDITION. HOWEVER KEEPING IN VIEW THE PLEA TAKEN BY THE LD. C OUNSEL FOR THE ASSESSEE THAT SOME ENTRIES ARE CONTRA ENTRY OR TRANSFER ENT RIES FROM ONE BANK ACCOUNT TO OTHER BANK ACCOUNT WHICH HAVE ALSO B EEN ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 14 INCLUDED BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDI T WE FIND THAT THE ASSESSEE HAS NOT PLACED ANY SUPPORTING MATERIAL I N THIS REGARD. HOWEVER KEEPING IN VIEW THE INTEREST OF JUS TICE WE CONSIDER IT FAIR AND REASONABLE THAT THE MATTER ON THIS ACCOUNT SHOU LD GO BACK TO THE FILE OF THE ASSESSING OFFICER AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE REVENUE AUTHORITIES TO THIS EXTENT AND SEN D BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER WHO SHALL DECI DE THE SAME LIMITED ISSUE AFRESH IN THE LIGHT OF OUR OBSERVATIONS HE REINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. GROUND NO.2 AND ADDITIONAL GROUND ARE THEREFORE REJECTED AND GROUND NO.5 IS THEREFORE PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ITA NO.2408/MUM/2009 (ASSESSMENT YEAR 2002-03) ITA NO.2409/MUM/2009 (ASSESSMENT YEAR 2003-04) ITA NO.2410/MUM/2009 (ASSESSMENT YEAR 2004-05) ITA NO.2411/MUM/2009 (ASSESSMENT YEAR 2005-06) 19. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED THAT THE FACTS AND ISSUES RAISED IN THE ABOVE APPEALS ARE IDENTICAL AND COMMON THEREFORE THE PLEA TAKEN BY THEM IN THE ASSESSEE'S APPE AL IN ITA NO.2407/MUM/2009 FOR ASSESSMENT YEAR 2001-02 MAY BE CONSI DERED WHILE DECIDING THE ABOVE APPEALS. ITA NO.2407 08 09 10 &11/M/09 A.Y:01-02 TO 05-06 15 20. THAT BEING SO AND IN THE ABSENCE OF ANY OTHER CONT RARY MATERIAL PLACED ON RECORD BY THE PARTIES WE DIRECT THE ASSESSING OFF ICER TO FOLLOW OUR FINDINGS RECORDED IN PARAS 15 - 18 OF THIS O RDER. WE HOLD AND ORDER ACCORDINGLY. THE COMMON GROUND NO.2 AND ADDI TIONAL GROUND ARE THEREFORE REJECTED AND GROUND NO.5 IS T HEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 21. IN THE RESULT THE ASSESSEE'S APPEALS STAND PARTLY ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.7.2010. SD/- SD/- (PRAMOD KUMAR) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 30.7.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.