Shri Mukesh T.Variava, Surat v. The Addl.CIT.,Range-3,, Surat

ITA 3321/AHD/2009 | 2006-2007
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 332120514 RSA 2009
Assessee PAN AAPPV1255K
Bench Ahmedabad
Appeal Number ITA 3321/AHD/2009
Duration Of Justice 4 month(s) 30 day(s)
Appellant Shri Mukesh T.Variava, Surat
Respondent The Addl.CIT.,Range-3,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 14-05-2010
Date Of Final Hearing 22-04-2010
Next Hearing Date 22-04-2010
Assessment Year 2006-2007
Appeal Filed On 15-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH BEFORE SHRI G.D. AGARWAL VICE-PRESIDENT (AZ) AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.3321/AHD/2009 [ASSTT.YEAR: 2006-07] MUKUSH T VARIAVA VS ADDL. COMMISSIONER OF 45 SNEHSMRUTI SOCIETY INCOME TAX RANGE-3 RANDER ROAD SURAT SURAT PAN NO.AAPPV1255K (APPELLANT) (RESPONDENT) REVENUE BY : SMT. NEETA SHAH SR-DR ASSESSEE BY: SHRI RASESH SH AH AR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II SURAT IN APPEAL NO.CAS/II/ 350/08-09 DATED 22-09-2009. THE ASSESSMENT WAS FRAMED BY THE ACIT RANGE-3 SUR AT U/S 143(3) OF THE INCOME- TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 26-12-2008 FOR ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT U/S.68 OF THE ACT. FO R THIS ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUND:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT HE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF R S.62 78 885/- U/S. 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT AS PER FOLLOWING DETAILS:- NAME OF FAMILY MEMBERS AMOUNT ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 2 SHRI MUKESH T VARIAWA (INDIVIDUAL) 1958885 SMT. PAYAL MUKESH VARAIWA (WIFE) 520000 SHRI THAKORDAS NANABHAI VARIAWA (HUF) 3380000 MISS VRUTIKA MUKESH VARIAWA (DAUGHTER) 420000 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT THE ASSESSEE IS AN ARCHITECT BY PROFESSION AND HE FILED RETURN OF INCO ME FOR THE RELEVANT ASSESSMENT YEAR 2006-07 ON 12-05-2006 DECLARING TOTAL INCOME A T RS67 969/- AND THE CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE U/S.143(2) OF THE ACT ON 17-04-2007. SUBSEQUENTLY THE ASSESSEE REVISED ITS RETURN OF IN COME DECLARING TOTAL INCOME AT RS.7 00 659/- ON 08-05-2007. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS DECLARED GROSS RECEIPTS AT RS.4 16 LAKH AND FOLLOWI NG ARE THE SOURCE OF HIS INCOME:- (I) ARCHITECT & VALUATION FEE RS.1 25 000/- (II) DALALI INCOME RS. 78 000/- (III) OTHER INCOME RS. 79 800/- (IV) RENT INCOME RS.1 33 200/- DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDING S THE ASSESSING OFFICER NOTICED FROM THE SAVINGS BANK ACCOUNT NO.2190 WITH SURAT PE OPLES CO-OP. BANK LTD. RANDER ROAD SURAT IN THE NAME OF ASSESSEE THAT THE RE ARE DEPOSITS AMOUNTING TO RS.19 58 885/- IN CASH FROM THE MONTH OF JUNE06 TO DEC.05. HE FURTHER NOTED THAT MAJORITY OF THE DEPOSITS ARE IN THE AMOUNTS RANGING FROM RS.40 000/- TO RS.45 000/- AND AO ALSO NOTED THAT THERE ARE OTHER SAVINGS BANK ACCOUNTS OF THE FAMILY MEMBERS OF THE ASSESSEE AS UNDER:- (I) THE SAVINGS BANK A/C. NO.3761 MAINTAINED WITH S URAT PEOPLES CO-OP. BANK LTD. RANDER ROAD SURAT OF ASSESSEE HUF IN THE NAME OF SHRI MUKESH VARIAVA AND SMT. PAYAL M VARIAVA JOINTLY AN D THERE ARE DEPOSITS AMOUNTING TO RS.33.80 LAKH AND CASH HAS BE EN DEPOSITED FROM AUG05 TO DEC05 RANGING FROM RS.40 000/- TO R S.45 000/-. (II) THE SAVINGS ACCOUNT NO.3177 MAINTAINED WITH SU RAT PEOPLES CO-OP. BANK LTD. RANDER ROAD SURAT IN THE NAME OF SMT. PA YAL M VARIAVA & SHRI MUKESH T VARIAVA WHEREIN AMOUNT OF RS.5.20 LA KH HAS BEEN DEPOSITED IN THE MONTH OF AUG05 TO SEPT05 AND MAJ ORITY OF DEPOSITS RANGES FROM RS.40 000/- TO RS.45 000/-. (III) SIMILARLY SAVINGS ACCOUNT NO.204 MAINTAINED W ITH SURAT PEOPLES CO- OP. BANK LTD. IN THE NAME OF MISS. VRUIKA MUKESH VA RIAVA AND ASSESSEE AND AMOUNTS DEPOSITED RS.4.20 LAKH IN CASH DURING THE ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 3 MONTH OF AUG05 AND MAJORITY OF THE DEPOSITS ARE IN THE RANGE OF RS.40 000/- TO RS.45 000/-. ACCORDING TO ASSESSING OFFICER THESE SAVINGS BANK A CCOUNTS ARE OPERATED BY THE ASSESSEE AND THE CASH DEPOSITS ARE MADE BY THE ASSE SSEE IN HIS ACCOUNT IN THE SAVINGS BANK OF HUF AS WELL AS WIFE AND DAUGHTER. T HERE IS NO EXPLANATION ABOUT THE DEPOSITS AND THE SOURCES OF THESE DEPOSITS ARE NOT EXPLAINED. ACCORDINGLY THE AO HELD THAT THE ASSESSEE HAS DEPOSITED HIS OWN INCOME IN CASH FROM UNDISCLOSED SOURCES AND SAME IS NOT REFLECTED IN THE BOOKS OF A CCOUNT OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AND ACCORDINGLY THE CASH A MOUNT OF RS.19 58 885/- IS ASSESSED AS UNDISCLOSED INCOME. SIMILARLY THE ASSE SSING OFFICER FURTHER NOTED THAT SIMILAR ARE THE FACTS ABOUT THE CASH DEPOSITS MADE BY ASSESSEE IN OTHER FAMILY MEMBERS INCLUDING HUF IN THE RESPECT BANK ACCOUNTS AND ACCORDINGLY THE TOTAL CASH DEPOSITS IN ALL FOUR ACCOUNTS ARE TREATED AS UNEXPL AINED CASH OF THE ASSESSEE AND ADDITION U/S68 OF THE ACT WAS MADE AMOUNTING TO RS. 62 78 885/-. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE CIT(A). CIT(A) ALS O CONFIRMED THE ACTION OF THE ASSESSING OFFICER UPHOLDING THE ADDITION MADE BY HI M. AGGRIEVED NOW ASSESSEE CAME IN SECOND APPEAL BEFORE US. 4. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SHRI RASESH SHAH STATED THE FACTS THAT THE ASSESSEE AND HIS FAMILY MEMBERS HAVE BEEN REGULARLY FILING RETURN OF INCOME AND HIS FAMILY CONSIST OF SELF WIFE SMT. PA YAL M VARIAVA DAUGHTER MS. VRUTIKA M VARIAVA. HE STATED THAT ASSESSEES FAMILY MEMBERS WERE REGULARLY FILING RETURN OF INCOME AND IN ADDITION ASSESSEE IS THE K ARTA OF HIS FATHERS HUF (BIGGER HUF) WHICH IS ALSO FILING RETURN OF INCOME REGULAR LY. HE STATED FURTHER THAT ASSESSEE AND HIS FAMILY MEMBERS INCLUDING HUF ARE HAVING SAV INGS BANK ACCOUNTS AT SURAT PEOPLES CO-OPERATIVE BANK LTD WHICH WERE MAINTAIN ED FOR THE LAST SO MANY YEARS. THESE BANK ACCOUNTS ARE REFLECTED IN THE BALANCE SH EET ATTACHED WITH RETURN OF INCOME FILED BY ASSESSEE HIS FAMILY MEMBERS AND HU F. HE FILED THE DETAILS OF THE BANK A/C WHICH ARE AS UNDER:- SR. NO NAME OF THE ASSESSEE A/C NO. 1 SHRI MUKESH T VARIAWA (INDIVIDUAL) 2190 ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 4 2 SHRI THAKORDAS NANABHAI VARIAWA (HUF) 3761 3 SMT. PAYAL MUKESH VARAIWA (WIFE) 3177 4 MISS VRUTIKA MUKESH VARIAWA (DAUGHTER) 204 HE STATED THAT THE ASSESSING OFFICER DURING THE COU RSE OF ASSESSMENT PROCEEDINGS REQUIRED THE ASSESSEE TO FILE THE BANK ACCOUNTS OF THE FAMILY MEMBERS INCLUDING ASSESSEES HUF WHICH WERE FILED. ON PERUSAL OF BAN K ACCOUNTS ASSESSING OFFICER OBSERVED THAT TOTAL CASH OF RS. 62 78 885/- IS DEPO SITED IN DIFFERENT BANK ACCOUNTS MAINTAINED BY THE FAMILY OF THE ASSESSEE INCLUDING THE ASSESSEE AND HIS HUF AT SURAT PEOPLES CO-OPERATIVE BANK LTD. ON DIFFERENT DATES. HE NARRATED THE FACT THAT THE ASSESSING OFFICER THEREFORE ASKED TO PROVE THE SOURCE OF THESE DEPOSITS AND ALSO ASKED THE ASSESSEE TO SHOW THE GENUINENESS OF LOAN SHOWN IN THE BALANCE SHEET OF ASSESSEE. LD. COUNSEL STATED THAT THE ASSESSING OFF ICER ASKED THE ASSESSEE TO FURNISH BALANCE SHEET OF FAMILY MEMBERS ALONG WITH RETURN OF INCOME FILED WITH THE DEPARTMENT. HE STATED THAT ALL THESE DETAILS ASKED FOR BY ASSESSING OFFICER VIDE ORDER SHEET DATED 30.10.2008 WERE FILED VIDE LETTE R DATED 17.11.2008 EXPLAINING CASH DEPOSIT INTO BANK ACCOUNT AND ALSO FILED COPIE S OF CASH BOOK AND BANK BOOK FOR A.Y 2006-07. HE STATED THE FACT THAT IN RESPECT OF THE LOAN ASSESSEE FILED THE COPY OF THE ACCOUNTS AND BALANCE SHEET OF DEPOSITORS ALONG WITH ACKNOWLEDGEMENT OF FILING OF RETURN OF INCOME BY THEM. HE FURTHER STATED THAT ALL BOOKS OF ACCOUNTS LEDGER AND OTHER STATUTORY RECORDS BANK STATEMENTS WERE PRODU CED ON 17-11-2008 BY ASSESSEES ADVOCATE AND SUBMITTED COPIES OF BALANCE SHEET OF FAMILY MEMBERS ALONG WITH RETURNS OF INCOME FILED BY THEM ON SAME DATE AND FURTHER ON 24-12-2008 ASSESSEES ADVOCATE ATTENDED AND FILED LEDGER COPIE S OF RECEIPT OF ASSESSEE FOR PROVING CASH DEPOSITS INTO THE BANK ACCOUNT. ACCORD ING TO THE LD. COUNSEL THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE SUBMIS SIONS AND EVIDENCES FILED BY THE ASSESSEE AND MADE ADDITION OF RS.19 58 885/- AS IN COME FROM UNDISCLOSED SOURCES BY OBSERVING THAT ASSESSEE HAS NOT SHOWN THE SOURCE OF CASH DEPOSIT INTO THE BANK A/C AND THAT IN THE CASH BOOK HE ONLY PASSED THE E NTRY BY SURAT PEOPLES BANK 2190 CASH DEPOSITED. ACCORDING TO THE LD. COUNSEL THE AO OBSERVED THAT ASSESSEE HAS SHOWN THE GROSS RECEIPT OF RS.4 16 000/- BUT HE HAS DEPOSITED CASH OF RS. 19 59 885/-. ON SIMILAR LINES ASSESSING OFFICER AL SO MADE ADDITION OF CASH DEPOSITED ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 5 INTO THE BANK A/C IN CASE OF HIS WIFE SMT PAYAL VAR IAVA DAUGHTER MS VRITIKA VARIAVA AND HUF. ACCORDINGLY HE MADE TOTAL ADDITION OF RS. 62 78 885/-. HE STATED THAT THE ASSESSING OFFICER ALSO OBSERVED THAT ASSESSEE HAS T AKEN LOAN OF RS.13 00 000/- FROM THAKORDAS VARIAVA (HUF) AND A FURTHER AMOUNT O F RS.3 00 000/- HAS COME OUT OF THE BANK BALANCE OF THAKORDAS VARIAVA(HUF) OF EA RLIER YEARS. HOWEVER IN RESPECT OF RS.10 00 000/- HE OBSERVED THAT IT CAME OUT OF CASH DEPOSITED DURING THE YEAR INTO THE SAVING BANK A/C OF HUF AS THE ENTIRE CASH DEPOSITS OF THAKORDAS (HUF) WAS ADDED HE DID NOT MAKE SEPARATE ADDITION IN THE CAS E OF ASSESSEE. BUT HE TREATED RS.10 00 000/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER STATED THAT THE ASSESSEE BEFORE CI T(A) ALSO FILED DETAILED PAPER BOOK WITH COPY OF CASH BOOK BANK BOOK BANK STATEM ENT AND FINANCIAL STATEMENTS OF ASSESSEE HIS WIFE HIS DAUGHTER AND HIS HUF AND CO NTENDED BEFORE CIT(A) THAT CASH DEPOSITED INTO BANK ACCOUNT OF ALL THE PARTIES ARE TALLIED WITH THE CASH BOOK MAINTAINED ON DAY TO DAY BASIS BY ASSESSEE FAMILY MEMBERS AND HUF. HE EXPLAINED THE ACCUMULATION OF CASH BEING OUT OF OPE NING BALANCE WITHDRAWAL FROM BANK ACCOUNT AND CURRENT YEAR INCOME IN CASH. HE AL SO STATED THAT DESPITE THE FACT THAT THE CIT(A) CALLED FOR THE REMAND REPORT FROM A SSESSING OFFICER AFTER FORWARDING THE PAPER FILED BY ASSESSEE FOR HIS COMMENTS BUT TH E ASSESSING OFFICER DID NOT CHANGE ITS FINDING AND HE GAVE THE ADVERSE REMAND R EPORT. 5. ON THE OTHER HAND THE LD. SR-DR SMT. NEETA SHAH ARGUED THAT THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION AND CIT(A) AFTER GIVING DETAILED REASONING IN APPELLATE ORDER AFTER TAKING REMAND RE PORT FROM AO HAS CONFIRMED THE ADDITION. SHE ARGUED THAT THE CASH DEPOSITS IN THE FOUR BANK ACCOUNTS WERE VERY UNUSUAL AND TOTALLY UNRELATED IN ANY MANNER WHATSOE VER TO THE ACTIVITIES BOTH PROFESSIONAL AND BUSINESS OF THE ASSESSEE AS ALSO H IS HUF AND THE IMMEDIATE FAMILY MEMBERS. SHE STATED THAT THE AO FOUND THAT DURING T HE YEAR THE ASSESSEE HAD ENTERED INTO CERTAIN LAND TRANSACTIONS AND IT LOGI CALLY WOULD FOLLOW THAT SUCH CASH RECEIPTS HAD BEEN GENERATED BY THE LAND TRANSACTION S AND WHAT THE ASSESSEE DID WAS TO BRING SUCH CASH INTO THE BOOKS OF ACCOUNT OF HIS IMMEDIATE FAMILY MEMBERS HIS HUF AND HIS INDIVIDUAL HANDS BUT UNFORTUNATELY FOR HIM THE AIR EXPOSED THE MODUS OPERANDI ADOPTED BY HIM AND FURTHER HE HAD OP ENED FOUR BANK ACCOUNTS IN HIS NAME AND THE NAMES OF HIS WIFE AND TWO DAUGHTER S IN THE SAME BANK I.E. THE ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 6 SURAT PEOPLES CO-OP. BANK LTD. SURAT. ACCORDING TO HER THE COPIES OF THE STATEMENTS OF THESE ACCOUNTS AS ALSO THE CHEQUES IS SUED AND RECEIVED BY THE ACCOUNT HOLDERS CLEARLY REVEALED THAT THE DEPOSITS TOTALING RS.62 78 885/- IN THESE FOUR ACCOUNTS WERE MADE IN CASH AND THE ACCOUNTS WE RE ALL OPERATED BY THE ASSESSEE HIMSELF. SHE STATED THAT THIS FACT HAS BEE N ACCEPTED BY THE ASSESSEE IN HIS WRITTEN SUBMISSION EVEN THOUGH IT HAS BEEN CLAIME D THAT THE ASSESSEE ONLY SIGNED ON THE REVERSE OF THE CHEQUES AGAINST THE WITHDRAWA LS MADE IN CASH WHEREAS THE CHEQUES WERE SIGNED BY THE ACCOUNT HOLDERS. ACCORDI NGLY SHE STATED THAT THE FACT REMAINS THAT THE ASSESSEE CONTROLLED ALL THE FOUR B ANK ACCOUNTS AND DEPOSITS WERE MADE BY HIM AND WITHDRAWALS. IN VIEW OF THESE FACTS SHE STATED THAT THE AO WAS FULLY JUSTIFIED IN CONSIDERING AND ADDING THE SAID DEPOSITS ONLY IN THE HANDS OF THE ASSESSEE AND THE SUBMISSION OF THE ASSESSEE ON THIS ISSUE HAS ABSOLUTELY NO MERIT WHATSOEVER AS THE FACTS OF THE CASE ARE VERY CLEAR AND ESTABLISHED BEYOND ANY DOUBT. ACCORDING TO HER THE DOMINANT CONTROL EXERC ISED BY THE ASSESSEE OVER THE SAID BANK ACCOUNT AND THE MAIN ARGUMENT OF THE ASSE SSEE IS THAT THE DEPOSITS IN THE BANK ACCOUNT COULD NOT BE CONSIDERED IN ISOLATION A ND THAT THE DEPOSITS HAD COME FROM OUT OF THE CASH BOOK AND THAT THE CASH BOOK HA D BEEN PRODUCED FOR VERIFICATION BEFORE THE ASSESSING OFFICER THAT THIS WAS THE MAI N GROUND ON WHICH THE MATTER WAS REMANDED TO AO AND LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY ARGUED THAT THE AO HAD NOT TAKEN INTO CONSIDERATION THE CASH BOOKS PRO DUCED BY THE ASSESSEE AND THAT THE SOURCE OF ALL THE DEPOSIT WAS THE ASSESSEES CA SH BOOK IN ASSESSMENT PROCEEDINGS THE ASSESSEE WAS UNABLE TO FURNISH ANY EXPLANATION REGARDING THE SOURCE OF THE CASH DEPOSITED IN THE CASH BOOK. SHE STATED THAT EVEN IN APPELLATE PROCEEDINGS HOWEVER IT HAS BEEN CLAIMED THAT SUBST ANTIAL PORTION OF THE DEPOSITS HAD COME OUT OF THE CASH WITHDRAWALS BUT THE FACT O F THE MATTER IS THAT THE FOUR BANK ACCOUNTS OF THE ASSESSEE AND HIS FAMILY MEMBERS DE TAILS OF WHICH CAME TO THE NOTICE OF THE AO ONLY THROUGH THE AIR CONTAINED SU BSTANTIAL CASH DEPOSITS WHICH HAD ABSOLUTELY NO CONNECTION OR LINK WITH THE NATUR E OF THE ASSESSEES PROFESSION OF BUSINESS OR ANY OF THE OTHER RECEIPTS DISCLOSED BY HIM AS ALSO OF HIS HUF HIS WIFE AND THE DAUGHTER. SHE STATED THAT EVEN IN APPELLATE PROCEEDINGS APART FROM MAKING VARIOUS BASELESS ALLEGATIONS AGAINST THE AO NO EXP LANATION HAS BEEN FURNISHED AS TO WHERE SUCH SUBSTANTIAL CASH CAME FROM IN THE HAN DS OF THE ASSESSEE OR IN THE HANDS OF HIS FAMILY MEMBERS AND THE HUF. SHE FURTHE R STATED THAT APART FROM RAISING ONLY TECHNICAL ISSUES NO SUBSTANTIVE EXPLANATION HA S BEEN FURNISHED OR EVIDENCE ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 7 PRODUCED TO SHOW THE SOURCE OF THE RECEIPTS OF SUCH CASH OR EVEN THE PECULIAR DEPOSITS OF IDENTICAL SUMS THROUGHOUT THE YEAR. IN VIEW OF THESE FACTS SHE FINALLY URGED THE BENCH TO UPHOLD THE ORDERS OF THE LOWER A UTHORITIES AND CONFIRMED THE ADDITION. 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO PERUSED THE CASE RECORDS INCLUDING THE ASSESSMENT ORDER THE ORDER OF CIT(A) AND THE PAPER BOOK FILED BY THE ASSESSEE CONSISTING PAGES 1 TO 202. THE ASSESSEE HAS ALSO FI LED CHART SHOWING CASH AND BANK BALANCES FOR THE ASSESSMENT YEAR 2006-07 AND ALSO F OR THE PRECEDING ASSESSMENT YEARS. NOW WE WILL DISCUSS THE CASH DEPOSITS MADE IN THE INDIVIDUAL CASES. I) FIRST WE WILL TAKE UP THE CASE OF ASSESSEE MUKE SH T. VARIAVA (INDIVIDUAL). WE FIND THAT THE ASSESSEE HAS FILED THE FOLLOWING PAPE RS BEFORE THE LOWER AUTHORITIES AND EVEN NOW BEFORE US IN HIS PAPER BOOK:- A) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET INCL UDING SCHEDULES OF INVESTMENTS AND CURRENT ASSETS PROFIT AND LOSS A/C . AND CAPITAL A/C. FOR THE YEAR UNDER CONSIDERATION. B) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET AND CAPITAL A/C. FOR THE YEAR ENDING 31.03.2005 AND 31.03.2007. C) WORKING OF CASH DEPOSITS IN BANK A/C. NO.2190; C ASH WITHDRAWALS FROM BANK A/C. NO.2190 AND WORKING OF OTHER CASH RECEIVED DUR ING THE YEAR. D) COPY OF BANK STATEMENTS OF AC. NO.2190 OF THE SU RAT PEOPLE CO-OP. BANK LTD FOR FINANCIAL YEAR 2005-06. E) COPY OF BANK A/C. NO.2190 AS APPEARING IN THE BO OKS OF ACCOUNT FOR FINANCIAL YEAR 2005-06 F) COPY OF CASH BOOK AS APPEARING IN THE BOOKS OF A CCOUNT FOR FINANCIAL YEAR 2005-06. FROM THE ABOVE DOCUMENTS ARGUMENTS OF BOTH THE SID ES AND FROM THE ORDERS OF LOWER AUTHORITIES WE FIND A FACT THAT THE ASSESSEE HAS DEPOSITED RS19 58 885/- INTO BANK A/C NO.2190 WITH SURAT PEOPLES CO-OPERATIVE B ANK LTD. THE ASSESSEE HAS BEEN FILING RETURN OF INCOME FOR THE PAST SEVERAL Y EARS AND THIS BANK A/C HAS BEEN REFLECTED IN BALANCE SHEET OF ASSESSEE ATTACHED WIT H RETURN OF INCOME FILED BY HIM SINCE THE OPENING OF THE BANK ACCOUNT. THE CASH DEP OSITED INTO BANK ARE TALLIED WITH CONTRA ENTRY REFLECTED IN PAYMENT SIDE OF CASH BOOK . THE CASH BOOK IS MAINTAINED ON DAY TO DAY BASIS. THE ASSESSING OFFICER AND CIT(A) HAS NOT DOUBTED ANY ENTRY MADE IN CASH BOOK. WE FURTHER FIND FROM THE WORKING OF C ASH WITHDRAWAL VIS--VIS WITH THE WITHDRAWALS DEPOSITED IN CASH BOOK THAT THERE WAS O PENING CASH BALANCE OF RS. 8 89 758/- AND CASH WITHDRAWAL FROM SAME BANK A/C D URING THE YEAR OF RS. ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 8 15 57 000/- AND IN ADDITION THERE WAS CASH INCOME O F RS.2 56 000/- SO AS AGAINST CASH DEPOSIT OF RS19 58 885 THERE WAS CASH INFLOW OF RS.27 02 758/-. THE SUMMARY OF THE CASH INFLOW AND OUTFLOW IS AS UNDER:- OPENING BALANCES AS PER CASH BOOK 8 89 758 ADD : CASH WITHDRAWALS FROM THE BANK DURING THE YEAR 15 57 000 TOTAL 24 46 758 ADD : CASH INCOME/ CASH RECEIVED DURING THE YEAR DIRECTLY 2 59 001 TOTAL 27 02 759 LESS : CASH DEPOSITED IN THE BANK DURING THE YEAR (19 58 885) CASH BALANCE 7 43 874 LESS : WITHDRAWAL FOR BUSINESS/PERSONAL AND OTHER PURPOSES (6 47 329) CLOSING CASH BALANCE AS PER A/C 96 545 II) SIMILAR ARE THE FACTS AS REGARDS TO THE DEPOSIT S MADE BY SMT. PAYAL M VARIAVA WIFE OF THE ASSESSEE. THE ASSESSEE HAS FIL ED THE FOLLOWING DETAILS BEFORE THE LOWER AUTHORITIES AND EVEN NOW BEFORE US IN HIS PAPER BOOK REGARDING THE DEPOSITS MADE BY SMT. PAYAL M VARIAYA ASSESSEES WIFE:- A) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET INCL UDING SCHEDULES OF INVESTMENTS AND CURRENT ASSETS AND CAPITAL A/C. FOR THE YEAR UNDER CONSIDERATION B) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET PRO FIT & LOSS A/C. CAPITAL A/C. FOR THE YEAR ENDING 31.03.05 AND 31.03.07. C) WORKING OF CASH DEPOSITS IN BANK A/C. NO.3177; C ASH WITHDRAWALS FROM BANK A/C. NO.3177 AND WORKING OF OTHER CASH RECEIV ED DURING THE YEAR. D) COPY OF BANK STATEMENTS OF A/C. 3177 OF THE SURA T PEOPLE CO-OP. BANK LTD. FOR F.Y. 2005-06. E) COPY OF BANK A/C. NO.3177 AS APPEARING IN THE BO OKS OF ACCOUNT FOR F.Y. 2005-06. ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 9 F) COPY OF CASH BOOK AS APPEARING IN THE BOOKS OF A CCOUNTS FOR F.Y. 2005- 06. FROM THE ABOVE WE FIND THAT SMT. PAYAL M VARIAVA H AS DEPOSITED A SUM OF RS 5 70 000/- INTO BANK A/C NO. 3177 WITH SURAT PEOPLE S CO-OPERATIVE BANK LTD IN CASH AND HAS BEEN FILING RETURN OF INCOME FOR PAST SEVER AL YEARS AND THIS BANK A/C HAS BEEN REFLECTED IN HER BALANCE SHEET ATTACHED WITH R ETURN OF INCOME FILED BY HER SINCE THE OPENING OF THE BANK ACCOUNT. WE FIND THAT THE C ASH DEPOSITED INTO BANK ARE TALLIED WITH CONTRA ENTRY REFLECTED IN PAYMENT SIDE OF CASH BOOK AND THE CASH BOOK IS MAINTAINED ON DAY TO DAY BASIS. THE ASSESSING OFFIC ER AND CIT(A) HAS NOT DOUBTED ANY ENTRY MADE IN CASH BOOK. WE FURTHER FIND FACTS OF THE CASE AND WORKING OF CASH SUBMITTED BY THE ASSESSEE AND ALSO WITHDRAWALS FROM THE BANK ACCOUNT THAT THERE WAS OPENING CASH BALANCE OF RS.1 76 808/- AND CASH WITHDRAWAL FROM SAME BANK A/C DURING THE YEAR OF RS.7 15 000/- AND IN ADDITIO N THERE WAS CASH INCOME OF RS. 2 22 750/-. SO AS AGAINST CASH DEPOSIT OF RS.5 70 0 00 THERE WAS CASH INFLOW OF RS. 11 14 558/-. THE SUMMARY OF THE CASH INFLOW AND OUT FLOW IS AS UNDER:- OPENING BALANCES AS PER CASH BOOK 1 76 808 ADD : CASH WITHDRAWALS FROM THE BANK DURING THE YEAR 7 15 000 TOTAL 8 91 808 ADD : CASH INCOME/ CASH RECEIVED DURING THE YEAR DIRECTLY 2 22 750 TOTAL 11 14 558 LESS : CASH DEPOSITED IN THE BANK DURING THE YEAR 5 70 000 CASH BALANCE 7 43 874 LESS : WITHDRAWAL FOR BUSINESS/PERSONAL AND OTHER PURPOSES 2 43 700 CLOSING CASH BALANCE AS PER A/C 3 00 858 III) NOW WE WILL TAKE UP THE CASE OF SHRI THAKORDAS NANABHAI VARIAVA (HUF) THE ASSESSEE HAS FILED THE FOLLOWING DETAILS BEFORE THE LOWER AUTHORITIES AND EVEN NOW BEFORE US IN HIS PAPER BOOK REGARDING THE DEPOS ITS MADE BY THAKORDAS N VARIAVA (HUF):- ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 10 I) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET INCL UDING SCHEDULES OF INVESTMENTS AND CURRENT ASSETS AND CAPITAL A/C. FOR THE YEAR UNDER CONSIDERATION. II) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET PR OFIT & LOS A/C. CAPITAL A/C. FOR THE YEAR ENDING 31.03.05 AND 31.03.07. III) WORKING OF CASH DEPOSITS IN BANK /C. NO.3761; CASH WITHDRAWALS FROM BANK A/C. NO.3761 AND WORKING OF OTHER CASH RECEIVE D DURING THE YEAR. IV) COPY OF BANK STATEMENTS OF A/C. NO.3761 OBTAINE D FROM THE SURAT PEOPLE CO-OP. BANK LTD. FOR F.Y. 2005-06. V) COPY OF BANK A/C. NO.3761 AS APPEARING IN THE BO OKS OF ACCOUNTS FOR F.Y. 2005-06. VI) COPY OF CASH BOOK AS APPEARING IN THE BOOKS OF ACCOUNT FOR F.Y. 2005- 06. WE FIND THAT THE HUF HAS DEPOSITED RS33 80 000/- IN TO BANK A/C NO.3761 WITH SURAT PEOPLES CO-OPERATIVE BANK LTD AND HUF HAS BEEN FIL ING RETURN OF INCOME FOR THE PAST SEVERAL YEARS AND THIS BANK A/C HAS BEEN REFLE CTED IN ITS BALANCE SHEET ATTACHED WITH RETURN OF INCOME FILED BY IT SINCE THE OPENING OF THE BANK ACCOUNT. WE FURTHER FIND FROM THE WORKING OF CASH WITHDRAWALS FROM BANK AND DEPOSIT MADE IN THE CASH BOOK THAT THE CASH DEPOSITED INTO BANK ARE TALLIED WITH CONTRA ENTRY REFLECTED IN PAYMENT SIDE OF CASH BOOK AND THE CASH BOOK IS MAIN TAINED ON DAY TO DAY BASIS. THE ASSESSING OFFICER AND CIT(A) HAS NOT DOUBTED AN Y ENTRY MADE IN CASH BOOK. WE FIND FROM THE WORKING OF CASH WITHDRAWAL SUBMITTED BY THE ASSESSEE THAT THERE WAS OPENING CASH BALANCE OF RS.22 05 263/- AND CASH WI THDRAWAL FROM SAME BANK A/C DURING THE YEAR OF RS. 14 60 000/- AND IN ADDITION THERE WAS CASH INCOME OF RS. 1 200/-. SO AS AGAINST CASH DEPOSIT OF RS. 33 80 00 0 THERE WAS CASH INFLOW OF RS. 36 66 463/-. THE SUMMARY OF THE CASH INFLOW AND OUT FLOW IS AS UNDER : OPENING BALANCES AS PER CASH BOOK 22 05 263 ADD : CASH WITHDRAWALS FROM THE BANK DURING THE YEAR 14 60 000 TOTAL 36 65 263 ADD : CASH INCOME/ CASH RECEIVED DURING THE YEAR DIRECTLY 1 200 TOTAL 36 66 463 ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 11 LESS : CASH DEPOSITED IN THE BANK DURING THE YEAR (33 80 000) CASH BALANCE 2 86 443 LESS : WITHDRAWAL FOR BUSINESS/PERSONAL AND OTHER PURPOSES NIL CLOSING CASH BALANCE AS PER A/C 2 86 443 IV) WE FIND FROM THE PAPER BOOK OF THE ASSESSEE THA T THE FOLLOWING DOCUMENTS HAVE BEEN FILED BY THE ASSESSEE BEFORE THE LOWER AU THORITIES AND EVEN NOW BEFORE IN THE CASE OF DEPOSITS MADE IN THE BANK ACC OUNT OF MISS VRUTIKA M. VARIAVA (DAUGHTER):- 1) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET INCL UDING SCHEDULES OF INVESTMENTS AND CURRENT ASSETS PROFIT & LOSS A/C. AND CAPITAL A/C. FOR THE YEAR UNDER CONSIDERATION. 2) COPIES OF FINAL ACCOUNTS I.E. BALANCE SHEET PRO FIT & LOSS A/C. FOR THE YEAR ENDING 31.03.05 AND 31.03.07. 3) WORKING OF CASH DEPOSIT IN BANK A/C. NO.204; CAS H WITHDRAWALS FROM BANK A/C. NO.204 AND WORKING OF OTHER CASH RECEIVED DURI NG THE YEAR. 4) COPY OF BANK STATEMENT OF A/C. NO.204 OBTAINED F ROM SURAT PEOPLE CO-OP. BANK LTD. FOR F.Y. 2005-06. 5) COPY OF BANK A/C. NO.204 AS APPEARING IN THE BOO KS OF ACCOUNT FOR F.Y. 2005-06. 6) COPY OF CASH BOOK AS APPEARING IN THE BOOKS OF A CCOUNT FOR F.Y. 2005-06. WE FIND THAT MIS. VRUTIKA M VARIAYA THE DAUGHTER O F THE ASSESSEE HAS DEPOSITED RS 4 00 000/- INTO BANK A/C NO. 204 WITH SURAT PEOPLES CO-OPERATIVE BANK LTD. SHE HAS BEEN FILING HER RETURN OF INCOME FOR THE LAST T HREE YEARS AND THIS BANK A/C HAS BEEN REFLECTED IN HER BALANCE SHEET ATTACHED WITH R ETURN OF INCOME FILED BY HER SINCE THE OPENING OF THE BANK ACCOUNT. BEFORE THREE YEARS SHE WAS MINOR AND HER INCOME WAS BEING CLUBBED IN THE HANDS OF ASSESSEE. THE CAS H DEPOSITED INTO BANK ARE TALLIED WITH CONTRA ENTRY REFLECTED IN PAYMENT SIDE OF CASH BOOK AND THE CASH BOOK IS MAINTAINED ON DAY TO DAY BASIS. THE ASSESSING OFFIC ER AND CIT(A) HAS NOT DOUBTED ANY ENTRY MADE IN CASH BOOK. WE FURTHER FIND FROM T HE WORKING OF THE CASH WITHDRAWAL VIS--VIS WITH THE WITHDRAWALS DEPOSITED IN THE CASH BOOK THAT THERE WAS ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 12 OPENING CASH BALANCE OF RS.5 25 246/- AND CASH WITH DRAWAL FROM SAME BANK A/C DURING THE YEAR OF RS.1 91 575/-. SO AS AGAINST CAS H DEPOSIT OF RS.4 00 000 THERE WAS CASH INFLOW OF RS.7 16 575/-. THE SUMMARY OF TH E CASH INFLOW AND OUTFLOW IS AS UNDER:- OPENING BALANCES AS PER CASH BOOK 5 25 246 ADD : CASH WITHDRAWALS FROM THE BANK DURING THE YEAR 1 91 575 TOTAL 7 16 821 ADD : CASH INCOME/ CASH RECEIVED DURING THE YEAR DIRECTLY NIL TOTAL 7 16 575 LESS : CASH DEPOSITED IN THE BANK DURING THE YEAR (4 00 000) CASH BALANCE 3 16 826 LESS : WITHDRAWAL FOR BUSINESS/PERSONAL AND OTHER PURPOSES (2 16 168) CLOSING CASH BALANCE AS PER A/C 1 00 658 7. IN VIEW OF THE ABOVE FACTS AND DISCUSSION EXPLAI NING THE CASH INFLOW AND OUTFLOW IN EACH CASE THE FOLLOWING FACTS ARE EMERG ING:- A. THAT ALL THE PERSONS ARE MAINTAINING CASH BOOK O N DAILY BASIS AND AT THE TIME OF DEPOSIT OF CASH INTO THE BANK ACCOUNT THERE WAS SUFFICIENT CASH AVAILABLE WITH THE CONCERNED PERSON TO MAKE DE POSITS. B. THAT THE CASH WAS DEPOSITED OUT OF OPENING CASH CASH WITHDRAWAL FROM BANK AND CURRENT YEARS CASH INCOME. SO THE SOU RCE OF DEPOSIT IS WELL EXPLAINED. C. THAT THE COMPLETE NARRATION FOR RECEIPT OF CASH INTO THE CASHBOOK IS AVAILABLE WHICH ARE SUPPORTED BY DOCUMENTARY EVIDEN CE IN THE FORM OF INCOME IN CASH AND WITHDRAWAL FROM THE BANK ACCOUNT . THE WITHDRAWALS FROM BANK ACCOUNTS ARE SUPPORTED BY BANK STATEMENTS . ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 13 D. THAT THE ASSESSING OFFICER AND CIT (A) HAVE NOT FOUND ANY OMISSION OR DEFECT IN THE CASH BOOK. E. THAT ALL THE PERSONS HAVE BEEN REGULARLY FILING RETURN OF INCOME MAINTAINING COMPLETE BOOKS OF ACCOUNT. THE BANK ACC OUNT IS REFLECTED IN THE BALANCE SHEET OF ALL PERSONS ATTACHED WITH T HE RETURN OF INCOME. F. THAT THE BANK ACCOUNTS OF THE FAMILY MEMBERS WER E ONLY ADMINISTERED BY THE ASSESSEE BUT THEY WERE NOT OPERATED BY THE A SSESSEE. ASSESSEE ONLY SIGNED ON THE REVERSE OF THE CHEQUES AGAINST THE WITHDRAWALS MADE IN CASH WHEREAS THE CHEQUES WERE SIGNED BY THE ACCOUNT HOLDERS. IN THE CASE OF HUF ASSESSEE BEING THE KARTA OF HUF OPERATED AND ADMINISTERED THE BANK ACCOUNT OF HUF. G. THAT THE ASSESSEE AS THE KARTA SIGNED THE CONFIR MATION OF THE LOAN OBTAINED FROM THE HUF. THERE IS NOTHING WRONG WHEN THE CONTRA ACCOUNT IS SIGNED BY THE SAME PERSON BUT ACTING IN DIFFERENT C APACITY AS THE KARTA OF HUF. THE HUF IS ASSESSED TO TAX AND HIS RETURN OF I NCOME FOR A.Y 06-07 AND EARLIER YEARS WERE FILED AND THE NECESSARY EVID ENCE IN THE FORM OF ACKNOWLEDGEMENT OF RETURN OF INCOME AND FINAL STATE MENT OF HUF WERE FILED BEFORE THE ASSESSING OFFICER AND CIT (A) 8. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES FI RST OF ALL WE ARE OF THE CONFIRMED VIEW THAT THE CASH DEPOSITS IN THE BANK A CCOUNTS MADE BY THE ASSESSEE HIS FAMILY MEMBERS AND HIS HUF ARE EXPLAINED DEPOSI TS AS NARRATED ABOVE. IT IS A FACT THAT THESE DEPOSITS ARE CREDITED IN BANK PASS BOOKS OF THE ASSESSEE HIS WIFE HIS DAUGHTER AND HIS HUF. SECTION 68 OF THE ACT ES SENTIALLY CONTENTS A DEEMING PROVISIONS WHICH APPLIES ONLY WHEN THE ASSESSEES E XPLANATION ABOUT CASH CREDIT FOUND IN HIS BOOKS OF ACCOUNTS AS UNEXPLAINED ADDI TION CAN BE MADE. BUT IN THE PRESENT CASE THE ASSESSEE HAS SATISFACTORILY EXPLA INED THE CASH DEPOSITS IN THE BANK ACCOUNTS. EVEN OTHERWISE THESE CASH DEPOSITS ARE IN THE BANK PASS BOOKS AND ARE NOT HIT BY SECTION 68 OF THE ACT. WE ARE OF THE VIEW WHEN THE MONEYS ARE DEPOSITED IN A BANK THE RELATIONSHIP CONSTITUTED B ETWEEN THE BANKER AND THE CUSTOMER IS ONE OF DEBTOR AND CREDITOR AND NOT OF T RUSTEE AND BENEFICIARY. THE BANK PASS BOOK SUPPLIED BY THE BANK TO ITS CONSTITUENT I S ONLY A COPY OF THE CONSTITUENTS ACCOUNT IN THE BOOKS MAINTAIN BY THE BANK. IT IS N OT AS IF THE PASS BOOK IS MAINTAINED ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 14 BY THE BANK S THE AGENT OF THE CONSTITUENT NOR CAN IT BE SAID THAT THE PASS BOOK IS MAINTAINED BY THE BANK UNDER THE INSTRUCTIONS OF TH E CONSTITUENT. HENCE THE PASS BOOK SUPPLIED BY THE BANK TO THE ASSESSEE CANNOT BE REGARDED AS THE BOOK OF THE ASSESSEE THAT IS A BOOK MAINTAINED BY THE ASSESSE E OR UNDER HIS INSTRUCTIONS. THEREFORE A CASH CREDIT FOR THE PREVIOUS YEAR SHOW N IN THE ASSESSEES BANK PASS BOOK BUT NOT SHOWN IN THE CASH BOOK MAINTAINED BY T HE ASSESSEE FOR THAT YEAR DOES NOT FALL WITHIN THE AMBIT OF SECTION 68 AND AS SUCH THE SUM SO CREDITED IS NOT CHARGEABLE TO TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. ACCORDINGLY THE PROVISIONS OF SEC.68 OF THE ACT WILL NOT APPLY TO THE DEPOSITS HOWEVER THE ASSESSEE HAS EXPLAINED THE DEPOSITS SATISFACTORILY IN VIEW OF THE GIVEN FACTS AND CIRCUMSTANCES. 9. ANOTHER ASPECT IN THE PRESENT CASE ARGUED BY THE LD. COUNSEL THAT EVEN THE DEPOSITS MADE BY THE FAMILY MEMBERS INCLUDING HUF H AS BEEN ADDED IN THE HANDS OF THE ASSESSEE WITHOUT ANY BASIS AND WITHOUT GIVIN G ANY FINDING AS REGARDS TO THE FACT THAT THE DEPOSITS ARE THE BENAMI DEPOSITS OF T HE ASSESSEE. WE FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THE DEPOSITS MADE BY FAMILY MEMBERS IN THEIR RESPECTIVE BANK ACCOUNTS ADDED BY THE ASSESSING OFFICER ONLY O N ONE PREMISE I.E. THAT THE BANK ACCOUNTS OF THE FAMILY MEMBERS WERE OPERATED B Y THE ASSESSEE. THE ASSESSEES ANSWER TO THIS ALLEGATION WAS THAT THESE BANK ACCOUNTS WERE ONLY ADMINISTERED BY THE ASSESSEE ONLY BY SIGNING ON THE REVERSE OF THE CHEQUES AGAINST THE WITHDRAWALS MADE IN CASH WHEREAS THE CHEQUES WERE SIGNED BY THE ACCOUNT HOLDERS. IN THE CASE OF HUF ASSESSEE BEING THE KAR TA OF HUF OPERATED AND ADMINISTERED THE BANK ACCOUNT OF HUF. WE FIND FROM THE FACTS OF THE CASE THAT THE COMPLETE NARRATION FOR RECEIPT OF CASH INTO THE CAS HBOOK IS AVAILABLE WHICH ARE SUPPORTED BY DOCUMENTARY EVIDENCE IN THE FORM OF IN COME IN CASH AND WITHDRAWAL FROM THE BANK ACCOUNT. THE WITHDRAWALS FROM BANK AC COUNTS ARE SUPPORTED BY BANK STATEMENTS AND THE SOURCE HAS BEEN EXPLAINED BY THE ASSESSEE. THAT ALL THE FAMILY MEMBERS INCLUDING HUF HAVE BEEN REGULARLY FILING RE TURN OF INCOME MAINTAINING COMPLETE BOOKS OF ACCOUNT. THE BANK ACCOUNT IS REFL ECTED IN THE BALANCE SHEET OF ALL PERSONS ATTACHED WITH THE RETURN OF INCOME. ACCORD INGLY WE ARE OF THE VIEW THAT THE ASSESSING OFFICER IS NOT ABLE TO SHOW THAT THE ASSE SSEE IS THE REAL OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS OF THE FAMILY ME MBERS. THE BURDEN OF SHOWING THAT A PARTICULAR TRANSACTION IS BENAMI AND THE OWN ER IS NOT THE REAL OWNER ALWAYS ITA NO.3321/AHD/2009 A.Y. 2006-07 MUKESH T VARIAVA V. AIT RANGE-3 SURAT PAGE 15 RESTS ON THE PERSON ASSERTING IT TO BE SO AND THIS BURDEN HAS TO BE STRICTLY DISCHARGED BY ADDUCING LEGAL EVIDENCE OF DEFINITE CHARACTER WH ICH WOULD EITHER DIRECTLY PROVE THE FACT OF BENAMI OR ESTABLISH CIRCUMSTANCES UNERRINGL Y AND REASONABLY RAISING AN INFERENCE OF THAT FACT. THE ESSENCE OF BENAMI IS TH E INTENTION OF THE PARTIES AND NOT UNOFTEN SUCH INTENTION IS SHROUDED IN A THICK VEIL WHICH CANNOT BE EASILY PIERCED THROUGH. BU SUCH DIFFICULTIES DO NOT RELIEVE THE PE RSON ASSERTING THE TRANSACTION TO BE BENAMI OF THE SERIOUS ONUS THAT RESTS ON HIM NOR J USTIFY THE ACCEPTANCE OF MERE CONJECTURES OR SURMISES AS A SUBSTITUTE FOR PROOF. IT IS NOT ENOUGH MERELY TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION BECAUSE THE COURT CAN NOT DECIDE ON THE BASIS OF SUSPICION. IT HAS TO ACT ON LEGAL GROU NDS ESTABLISHED BY EVIDENCES. ACCORDINGLY WE ARE OF THE VIEW THAT THESE DEPOSITS IN THE NAMES OF FAMILY MEMBERS INCLUDING HUF SHOULD HAVE BEEN CONSIDERED ONLY IN T HEIR HANDS HAD THESE NOT BEEN EXPLAINED BUT SUCH IS NOT THE CASE HERE. 10. ONE MORE ADDITION OF LOAN TAKEN OF RS.10 LAKH A DDED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT THE ASSESSEE HAS SUBSTANT IALLY PROVED THAT THE THAKORDAS VARIAVA HUF IS ASSESSED TO INCOME-TAX HAVING SUBSTA NTIAL SOURCES OF INCOME AS NOTED IN PARA-6 (III) OF THIS ORDER. ACCORDINGLY THIS LOAN CANNO T BE TREATED AS UNEXPLAINED AND NO ADDITION IS WARRANTED ON THIS AC COUNT. 11. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS DAY OF 14 TH MAY 2010 SD/- SD/- ( G.D.AGARWAL ) ( MAHAVIR SINGH ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD DATED : 14/05/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-II SURAT 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD