Shri Brijesh Dilipbhai Patel, Tal.Anand v. The ACIT.,Circle,, Nadiad

ITA 3407/AHD/2008 | 2002-2003
Pronouncement Date: 09-09-2011 | Result: Dismissed

Appeal Details

RSA Number 340720514 RSA 2008
Assessee PAN AGPPP7481D
Bench Ahmedabad
Appeal Number ITA 3407/AHD/2008
Duration Of Justice 2 year(s) 10 month(s) 25 day(s)
Appellant Shri Brijesh Dilipbhai Patel, Tal.Anand
Respondent The ACIT.,Circle,, Nadiad
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-09-2011
Date Of Final Hearing 05-09-2011
Next Hearing Date 05-09-2011
Assessment Year 2002-2003
Appeal Filed On 14-10-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI MUKUL SHRAWAT JUDICIAL MEMBER AND SHRI A N PAHUJA ACCOUNTANT MEMBER ITA NO.3407/AHD/2008 (ASSESSMENT YEAR:-2002-03) SHRI BRIJESH DILIPBHAI PATEL SHYAM BUNGLOW KARAMSAD TAL: ANAND V/S ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE ANAND PAN: AGPPP 7481 D [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI M G PATEL AR REVENUE BY:- SHRI SAMIR TEKRIWAL DR DATE OF HEARING:- 05-09-2011 DATE OF PRONOUNCEMENT:- 09-09-2011 O R D E R A N PAHUJA: THIS APPEAL FILED ON 14.10.2008 BY THE ASSESSEE AGAINST AN ORDER DATED 23-07-2008 OF THE LD. CIT(AP PEALS)-IV BARODA FOR THE ASSESSMENT YEAR 2002-03 RAISES FO LLOWING GROUNDS:- [1] LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HAS GRA VELY ERRED IN NOT APPRECIATING THE FACTS AND PROOFS OF AGRICULTURAL I NCOME EARNED AND INTRODUCED AS CAPITAL OF RS.7 60 000/- AND CONFIRME D ADDITION OF IT. SAME MAY BE DELETED. [2] LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HAS ERRED IN APPRECI- ATING THE FACTS AND PROOFS REGARDING SALE OF VEHICLE AND INTRODUCTION OF SALE PROCEEDS AS CAPITAL OF RS.4 00 000/- AND CONFIRME D MADE ADDITION AS INCOME. SAME MAY BE DELETED. [3] LD. ASSTT. COMMISSIONER OF INCOME TAX (APPEALS-IV) HAS GRAVELY ERRED IN NOT APPRECIATING THE FACT THAT DEPOSIT IN LO AN ACCOUNT OF RS.99 000/- IS MADE OUT OF AGRICULTURAL SURPLUS AS EXPLAIN ED DURING THE PROCEEDING AND CONFIRMED UNLAWFUL ADDITION AS INCOM E U/S. 69C OF THE ACT. SAME MAY BE DELETED. YOUR APPELLANT CRAVES LEAVE TO ADD AMEND AND/OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OF FINAL HEARING OF TH E CASE. 2 ITA NO.3407/AHD/2008 2. ADVERTING FIRST TO GROUND NO.1 IN THE APPEAL F ACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING SALA RY INCOME OF RS.50 000/- AND SHARE INCOME OF RS.13 83 953/- FROM THE FIRM M/S ABHISHEK POOJA CONSTRUCTION WAS FILED ON 20-05-2005 BY THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS FOR THE YEAR UNDER CONSIDERATION I.E. AY 2002-03 IN THE CASE OF M/S ABHISHEK POOJA CONSTRUCTION CO. KARAMSAD IT WAS NOTICED TH AT SHRI BRIJESH D PATEL THE ASSESSEE A PARTNER IN THE SAID FIRM INT RODUCED AN AMOUNT OF RS.56 70 991/- [RS.49 10 991/- + RS.7 60 000/-] IN THE FIRM. SINCE THE SOURCE OF THE ABOVE INVESTMENT IN THE FIRM WAS NOT SATISFACTORILY EXPLAINED BY THE FIRM THE AO HAD REASONS TO BELIEV E THAT INCOME CHARGEABLE TO TAX ESCAPED THE ASSESSMENT WITHIN THE MEANING OF PROVISIONS OF SECTION 147 OF THE OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERRED TO AS THE ACT].ACCORDINGLY A NOTICE U/S 148 OF THE ACT WAS SERVED UPON THE ASSESSEE ON 13-05-2005. DURING THE COURSE OF REASSESSMENT PROCEEDINGS IN RESPONSE TO A NOTICE DATED 04-07-2006 THE ASSESSEE SUBMITTED A COPY OF A JOI NT DECLARATION MADE BY SHRI HASMUKHBHAI M PATEL [UNCLE OF THE ASSE SSEE] AND SHRI DILIPBHAI M PATEL [FATHER OF THE ASSESSEE] AND POIN TED OUT THAT THEY HAD 29 VIGHAS OF AGRICULTURAL LAND IN THE NAME OF FA MILY MEMBERS. THEY ALSO CULTIVATED AGRICULTURAL LAND OF AROUND 6 VIGHAS PURCHA SED BY THEM FOR WHICH DOCUMENTS WERE YET TO BE EXECUTED BESIDES MORTGAGED L AND OF AROUND 13 VIGHAS. THEY CULTIVATED VARIOUS CROPS LIKE POTATO CHICORY BANANA AND GRAINS BESIDES PLANTATION OF FRUITS LIKE MANGO AMLA SITAFAL L EMON ETC.. THE ASSESSEE ALSO FURNISHED FOLLOWING DETAILS OF PARTIES TO WHOM CR OPS WERE SOLD : (A) POTATO CHICORY LEMON ETC.: PARTY ITEM AMOUNT OF SALE ------------------- ----------- ----------------- --- 1. M/S ANVARBHAI POTATO 3 87 796 ADAMBHAI KAPADIA NARSANDA 2. CHICORY 1 09 590 3. SUNDRY PARTY LEMON 94 612 ------------- 5 91 936 3 ITA NO.3407/AHD/2008 (B) AMLA CHIKU MANGO SITAFAL ETC. FRUITS SOLD 2 04 650 2.1 THE ASSESSEE FURTHER SUBMITTED THAT A GRICULTURAL INCOME BEING EXEMPT THE RELEVANT EVIDENCE LIKE SALE INVOICES ETC. WERE NOT PR OPERLY MAINTAINED AND ALMOST ENTIRE SALE PROCEEDS WERE RECEIVED IN CASH. THEREF ORE THE ASSESSEE PLEADED THAT IT WAS DIFFICULT TO PRODUCE COMPLETE RECOR D FOR THE YEAR ENDING ON 31-3-2002 AND CONNECTED EVIDENCE. INTER ALAI A CHART SHOWING THE AMOUNT INTRODUCED IN THE CAPITAL A/C OF THE ASSESSE ES WITH M/S ABHISHEK POOJA CONSTRUCTION CO. FOR THE PERIOD 1-4- 2001 TO 31-3- 2002 WAS ALSO FILED 2.2 AFTER CONSIDERING THE DETAILS SUBMITTED BY TH E ASSESSEE THE AO NOTICED THAT OUT OF THE SUM OF RS.56 70 991/- AMOU NT AGGREGATING RS.11 60 000/- WAS INTRODUCED BY WAY OF CASH. AS RE GARDS CASH OF RS.7 60 000/- REFLECTED IN CAPITAL ACCOUNT OF THE A SSESSEE WITH M/S ABHISHEK POOJA CONSTRUCTION CO. THE AO DID NOT AC CEPT THE SUBMISSIONS OF THE ASSSESEE DUE TO THE FOLLOWING RE ASONS :- (I) THE ALLEGED AGRICULTURAL INCOME IS NOT REFLECTED IN ANY OF THE RETURNS OF INCOME FILLED BY THE ASSESSEE. NO EVIDENCE HAS BEEN SUBM ITTED TO SHOW THAT THE AGRICULTURAL INCOMES/MEMBERS SHARE OF A GRICULTURAL INCOME IS REFLECTED IN THEIR INDIVIDUAL RETURN. (II) THE ASSESSEE IS NOT MAINTAINING PRIMARY RECORDS FROM WHERE HE CAN GET ANY SUPPORT IN RESPECT OF HIS EXPLANATION AND THERE FORE THE CREDIT ENTRIES CANNOT BE CONSIDERED AS SUBSTANTIATED. (III) FURTHER THE ASSESSEE HAS NOT BEEN ABLE TO CORREL ATE THE AGRICULTURE INCOME WITH CREDIT ENTRIES IN THE BOOKS OF THE AFORESAID FIRM. IN FACT THE ASSESSEE IS UNABLE TO EXPLAIN CRUCIAL ENTRIES OF HIS BU SINESS TRANSACTIONS. THE ASSESSEE HAS ATTENDED TO DRAW SUPPORT FRO M THE SUBMISSIONS MADE BY SHRI ARVINDBHAI ADAMBHAI VAHORA WH EREIN A CLAIM IS MADE THAT DURING THE FINANCIAL YEAR 2001-02 T HE ASSESSEE HAS SOLD POTATOES OF RS.3 88 000/- AND CHICORY OF THE VA LUE OF RS.1 10 000/-. NO DOCUMENTARY EVIDENCE IN SUPPORT OF T HIS CLAIM IS SUBMITTED ON THE GROUND THAT ALL THE RECORDS PERTAINI NG TO THESE TRANSACTIONS WERE DESTROYED DURING COMMUNAL RIOTS ON 07/0 3/2002. (IV) OUT OF THE ENTIRE SALE PROCEEDS AGGREGATING RS.7 9 6 586/- OF AGRICULTURAL PRODUCE OF THE FAMILY MEMBERS RS.7 60 00 0/- IS ALLEGED 4 ITA NO.3407/AHD/2008 TO HAVE BEEN UTILIZED BY THE ASSESSEE FOR HIS BUSINESS AS CONTENDED. SINCE CULTIVATION IS AN ON-GOING PROCESS REQUIR ING PERIODIC EXPENDITURE IF IS STRANGE THAT ONLY A SUM OF RS.36 586/- (7 96 586 - 7 60 000) IS AVAILABLE FOR SUCH EXPENSES. (V) IT IS ALSO NOT ACCEPTABLE THAT THE AGRICULTURAL INCOME OF THE MEMBER OF THE FAMILY IS AROUND RS.8 LACS PER ANNUM] PARTICULARL Y WHEN IN SUBSEQUENT YEARS THE YIELD SHOWN (AS PER DOCUMENTS FILLED BY THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDINGS) AT RS.3 37 152/- AND RS.3 50 454/- FOR THE FINANCIAL YEARS 2005-06 AND 2006-07 RESPECTIVELY. OBVIOUSLY THE ASSESSEE HAS MADE A FUTILE E XERCISE TO EXPLAIN THE CREDIT ENTRIES APPEARING IN THE ABOVE FIR M ON THE BASIS OF AGRICULTURE INCOME OF THE FAMILY MEMBERS. (VI) ONE MORE SIGNIFICANT FEATURE WHICH EMERGED IN THE ASSESSEE'S CASE IS THAT IN THE FINANCIAL YEAR 2000-01 RELEVANT TO TH E ASSTT. YEAR 200 1-02 ALSO THE ASSESSEE HAD INTRODUCED SIMILAR CASH CREDIT AGGREGATING TO RS. 38 00 000/- IN THE CAPITAL ACCOUNT M /S. ABHISHEK POOJA CONSTRUCTIONS CO. THE SOURCE OF THE SAME AT THAT T IME WAS EXPLAINED TO BE OUT OF LOANS TAKEN FROM VARIOUS FARMER S. THE EXPLANATION OF THE ASSESSEE WAS NOT FOUND CONVINCING AND THEREFORE ADDITION OF THE SAID AMOUNT WAS MADE U/S 6 8 OF THE ACT. IN THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS TAKEN A DIFFERENT STAND TO EXPLAIN CASH CREDITS BY ATTRIBUTING THE SOURCE TO AGRICULTURAL TURNOVER OF THE FAMILY'S AGRICULTURAL A CTIVITIES. THIS CLEARLY PUTS A QUESTION MARK ON THE SO-CALLED SUBSTANTIAL A GRICULTURE INCOME OF ASSESSEE'S FAMILY LEADING TO NON-ACCEPTANCE OF HUGE AGRICULTURE INCOME. ACCORDINGLY THE AO ADDED THE AFORESAID AMOUNT OF RS.7 60 000/- TO THE TOTAL INCOME OF THE ASSESSEE. 3. ON APPEAL THE LEARNED CIT(A) UPHELD THE ADDITIO N IN THE FOLLOWING TERMS:- 3.2. I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUBMISSI ONS OF THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT. THE APPEL LANT ADMITS THAT THE LAND BELONGED TO THE HUF. THE APPELLANT ALSO ADMITS T HAT THE INCOME FROM SUCH LAND IS INCOME FROM THE HUF. WHY WAS THIS INCOME SHOWN IN THE HANDS OF THE APPELLANT IS NOT CLEAR. WAS THIS AMOUNT OF RS.7 60 000/- LOAN TO THE APPELLANT? HOW WAS IT TRANSFERRED TO HIS ACCOUNT . NO EXPLANATIONS ARE OFFERED. FURTHER NO EVIDENCE HAS BEEN FILED BY T HE APPELLANT TO ESTABLISH A NEXUS BETWEEN SALE OF AGRICULTURAL GOODS AND INTRODUCTION OF CASH IN CAPITAL ACCOUNT. THE NATURE OF TRANSACTION BETWE EN THE HUF AND THE INDIVIDUAL IS NOT CLEAR. THE REASONS FOR INCREASE IN I NCOME FROM IN THE CURRENT YEAR IS ALSO NOT EXPLAINED. THE APPELLANT HAS MER ELY SUBMITTED THAT THE ENTIRE INCOME CLAIMED TO BE FROM AGRICULTURAL SOURCE S HAS BEEN GIVEN TO THE APPELLANT BY THE HUF TO BE INTRODUCED AS HIS CAP ITAL. NO 5 ITA NO.3407/AHD/2008 SUBSTANTIATING EVIDENCE HAS BEEN FILED TO BACK THIS SUBMISSI ON. IN VIEW OF THE FACT THAT THE SOURCE OF INVESTMENT MADE IN CASH BY THE APPELLANT IS NOT SATISFACTORILY EXPLAINED THE ADDITION O F RS.7 60 000/-BY THE ASSESSING OFFICER IS CONFIRMED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED AR ON B EHALF OF THE ASSESSEE WHILE CARRYING US THROUGH PAGE 11 OF THE P APER BOOK REITERATED THEIR SUBMISSIONS BEFORE THE LEARNED CI T(A). THE LEARNED DR ON THE OTHER HAND VEHMENTLY SUPPORTED THE FIND INGS OF THE LEARNED CIT(A) AND CONTENDED THAT THERE WAS NO EVID ENCE IN SUPPORT OF AGRICULTURAL INCOME NOR SUCH INCOME HAS BEEN RE FLECTED IN HIS RETURN BY THE ASSESSEE. WHILE REFERRING TO PAGE 11 & 14 OF THE PAPER BOOK THE LD. DR ADDED THAT NEITHER DATE OF INCURRI NG OF ALLEGED EXPENDITURE TOWARDS AGRICULTURAL ACTIVITIES NOR DAT E OF SALE OF AGRICULTURAL PRODUCE IS MENTIONED. THE POTATO AND C HICORY IS ALLEGED TO HAVE BEEN SOLD TO AMVARBHAI ADAMBHAI KAPADIA WHI LE CONFIRMATION HAS BEEN SUBMITTED BY AMVARBHAI ADAMB HAI VAHORA THE LD. DR POINTED OUT. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THR OUGH THE FACTS OF THE CASE AS IS APPARENT FROM THE AFORESAID FACTS THE ASSESSEE INTRODUCED CASH OF RS.7 60 000/- IN HIS CAPITAL AC COUNT WITH M/S ABHISHEK POOJA CONSTRUCTION CO. AND CLAIMED THAT T HIS WAS THROUGH AGRICULTURAL INCOME FROM THE LAND BELONGING TO HUF. ADMITTEDLY THE ASSESSEE DID NOT HAVE ANY PRIMARY RECORDS AND EVIDENCE IN RESPECT OF SALE OF AGRICULTURAL PRODUCE . WE FIND THAT THE ALLEGED AGRIC ULTURAL PRODUCE VIZ. POTATO AND CHICORY IS STATED TO HAVE BEEN SOLD TO AMVARBHAI ADAMBHAI KAPADIA[PAGE 14 OF THE PAPERBOOK] AND POTA TO SEEDS ARE ALSO STATED TO HAVE BEEN PURCHASED FROM THE SAME PE RSON[PG.11 OF THE PAPER BOOK] WHILE COPY OF CONFIRMATION PLACED BEFORE US IN RESPECT OF SALE OF AGRICULTURAL PRODUCE REVEALS THE NAME OF ANVARBHAI ADAMBHAI VAHORA[PAGE 26 OF THE PAPERBOOK] . THE LD. AR APPEARING BEFORE US DID NOT EVEN ATTEMPT TO EXPLAIN THIS 6 ITA NO.3407/AHD/2008 DISCREPANCY. THE AO NOTICED THAT OUT OF THE ENTIRE ALLEGED SALE PROCEEDS AGGREGATING RS.7 96 586/- ON ACCOUNT OF AGRICULTURAL P RODUCE BY THE FAMILY MEMBERS RS.7 60 000/- IS ALLEGED TO HAVE BEEN INTRODU CED IN THE CAPITAL OF THE AFORESAID FIRM LEAVING ONLY A SUM OF RS.36 586/- FOR EXPENSES .THE ASSESSEE CLAIMED THAT THE AGRICULTURAL INCOME OF THE MEMBERS OF HIS FAMILY WAS AROUND RS.8 LACS PER ANNUM .BUT THE AO FOUND THAT ONLY AN AM OUNT OF RS.3 37 152/- WAS REFLECTED IN THE FINANCIAL YEAR 2005-06 AND RS.3 50 454/- IN THE FY 2006-07 AND NO BASIS OR EVIDENCE WAS PRODUCED IN SUPPORT OF AGR ICULTURAL INCOME OF RS. 8 LACS..IN THESE CIRCUMSTANCES ESPECIALLY WHEN ADMITTEDLY NO EVIDENCE WAS FILED BY THE ASSESSEE TO ESTABLISH NEXUS BETWEEN SALE OF AGRICULT URAL PRODUCE AND INTRODUCTION OF CASH IN CAPITAL ACCOUNT THE LD. CIT(A) UPHELD THE FINDINGS OF THE AO. THE SITUATION REMAINS THE SAME EVEN BEFORE US. THE LD. AR DID NOT REFER US TO ANY MATERIAL EVIDENCING SALE OF AGRICULTURA L PRODUCE . IN THE ABSENCE OF ANY BASIS WE ARE NOT INCLINED TO INTER FERE. THEREFORE GROUND NO.1 IN THE APPEAL IS DISMISSED. 6. GROUND NO.2 IN THE APPEAL RELATES TO AN ADDITION OF RS.4 00 000/-. THE ASSESSEE CLAIMED BEFORE THE AO T HAT AN AMOUNT OF RS.1 50 000/- ON 12-04-2001 AND RS.2 50 000/- ON 01-05-2001 WAS INTRODUCED BY WAY OF CASH THROUGH SALE OF QU ALLIS CAR ALLEGEDLY SOLD DURING THE YEAR TO SHRI AMIT PRAMOD BHAI DESAI OF NADIAD FOR A SUM OF RS.6 00 001/-. THE AO NOTICED FROM A COPY OF AGREEMENT FOR SALE OF CAR AND DELIVERY NOTE THAT RS .5 000/- WAS PAID ON 18/3/2001 BY THE PURCHASER OF THE CAR AND THE RE MAINING AMOUNT OF RS.5 95 000/- WAS AGREED TO BE PAID AS UNDER: RS.1 50 000 ON 12/04/2001 RS.2 50 000 ON 01/05/2001 RS.1 95 000 ON 20/06/2001 6.1 ON PERUSAL OF THE DOCUMENTS RELATING TO THE PURCHASE & SALE OF VEHICLE THE AO NOTICED THAT THOUGH THE SAID VEHICL E WAS PURCHASED BY THE ASSESSEE IN TERMS OF A HIRE PURCHASE AGREEME NT WITH THE 7 ITA NO.3407/AHD/2008 KARAMSAD URBAN CO-OP BANK LTD. KARAMSAD THE ASSES SEE CLAIMED TO HAVE SOLD THE SAME WITHOUT ANY REFERENCE TO THE BANK AND CONTINUED TO PAY EVEN THE HIRE-PURCHASE INSTALMENTS TO THE BANK SUBSEQUENT TO THE ALLEGED SALE. SINCE THE VEHICLE W AS REGISTERED IN IN THE NAME OF THE BANK IN THE REGISTRATION BOOK OF THE VEHICLE UPTO 17/06/2002 (REFER TO CERTIFICATE DATED 17/06/2002 I SSUED BY THE KARAMSAD URBAN CO-OP BANK IN THIS REGARD] APPARENT LY THE VEHICLE COULD NOT BE TRANSFERRED IN THE NAME OF MR. AMITBHA I P. DESAI. IN RESPONSE TO A LETTER DATED 07/12/2006 SHRI A.P. DE SAI VIDE HIS LETTER DATED 8/12/2006 STATED THAT HE PURCHASED THE VEH ICLE OUT OF FUNDS RECEIVED FROM MY RELATIVES AND HAD NOT FILED RETURN O F INCOME FOR THE A.Y. 2002- 03. HOWEVER THE AO DID NOT ACCEPT THE SUBMISSIONS OF TH E ASSESSEE ON THE GROUND THAT SINCE THE VEHICLE BELONGED TO THE BANK I N THE REGISTRATION BOOK OF THE VEHICLE UPTO 17/06/2002 AS PER CERTIFICATE DATE D 17/06/2002 ISSUED BY THE KARAMSAD URBAN CO-OP BANK AND THEREFORE E COULD NOT B E TRANSFERRED IN THE NAME OF MR. AMITBHAI P. DESAI NOR THE SAID PURCHASER HAD ANY APPARENT SOURCES OF OWN FUNDS TO PURCHASE THE VEHICLE NOR WAS HE ASSE SSED TO TAX. ACCORDINGLY THE AO TREATED THE TRANSACTION OF SAL E OF CAR FICTITIOUS AND ADDED AN AMOUNT OF RS.4 00 000/- U/S. 69 OF THE ACT.. 7. ON APPEAL THE LEARNED CIT(A) UPHELD THE ADDITIO N IN THE FOLLOWING TERMS:- 4.3. I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUBMISSI ONS OF THE APPELLANT. NO WHERE HAS THE APPELLANT GIVEN ANY REASON FOR THE SAID SALE OF THE QUALLIS CAR. THE PRIMARY ONUS LIES ON THE APPEL LANT TO ESTABLISH THE SOURCE OF ANY SUMS BEING INTRODUCED BY HIM. IN THIS CASE N EITHER THE CREDITWORTHINESS OF THE SO CALLED PURCHASER NOR THE GENUIN ENESS OF TRANSACTION HAS BEEN ESTABLISHED. IT CANNOT BE REBUTTED T HAT THE APPELLANT CAN SELL A VEHICLE AT A LOSS BUT TO GO ON INCURRING A LOSS FOR MORE THAN A YEAR AFTER THE SO CALLED SALE APPEARS DIFFICULT TO ACCE PT. FURTHER THE VEHICLE CONTINUED TO STAND IN THE NAME OF THE APPELLAN T WHICH CASTS DOUBTS ON THE TRANSACTION. SINCE NEITHER THE CREDITWORTHINESS O F THE PURCHASER NOR THE GENUINENESS OF THE TRANSACTION HAS BEEN ESTABLISHED I HELD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN ADDING BACK THE SUM OF RS.4 00 000/- AS INCOME FROM UNEXPLAINED SOURCES. 8 ITA NO.3407/AHD/2008 8. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED AR ON B EHALF OF THE ASSESSEE WHILE REITERATING THEIR SUBMISSIONS BEFORE THE LEARNED CIT(A) CONTENDED THAT VEHICLE WAS SOLD TO THE AFO RESAID PERSON IN TERMS OF CONFIRMATION PLACED ON PAGE 10 OF THE PAPE RBOOK. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE FINDIN GS OF THE LEARNED CIT(A) AND SUBMITTED THAT EVEN AFTER ALLEGED SALE OF CAR THE ASSESSEE PAID INSTALMENTS OF LOAN TO THE THE KARAMS AD URBAN CO-OP BANK AND THE VEHICLE WAS REGISTERED IN THE NAME OF THE BANK ITSELF. APPARENTLY THE ASSESSEE COULD NOT SELL PROPERTY BE LONGING TO THE BANK NOR THE PURCHASER HAD ANY APPARENT SOURCES OF FUNDS TO PURCHASE THE VEHICLE. THERE WAS NOTHING TO SUGGEST THAT THE VEHICLE WAS EVER REGISTERED IN THE NAME OF MR. AMITBHAI P. DESAI THE LD. DR ADDED. 9. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. INDISPUTABLY THE ASSESSEE CONTINUED PAYIN G INSTALMENTS OF LOAN TO THE THE KARAMSAD URBAN CO-OP BANK FOR THE VEHICLE REGISTERED IN THE NAME OF THE BANK ITSELF NOR PLACE D ANY EVIDENCE BEFORE THE LOWER AUTHORITIES ESTABLISHING CREDITWO RTHINESS OF MR. AMITBHAI P. DESAI OR GENUINENESS OF THE TRANSACTION S OF RECEIPT OF CASH FROM HIM. THERE IS NOTHING TO SUGGEST THAT TH E ASSESSEE COULD SELL THE VEHICLE BELONGING TO THE BANK NOR THE PURC HASER HAD ANY APPARENT SOURCES OF FUNDS TO PURCHASE THE VEHICLE. IN THESE CIRCUMSTANCES THE LD. CIT(A) UPHELD THE ADDITION THE PRIMARY ONUS LYING ON THE ASSESSEE TO ESTABLISH THE SOURCE OF AN Y SUMS INTRODUCED BY HIM HAVING NOT BEEN DISCHARGED. EVE N BEFORE US THE LD. AR ON BEHALF OF THE ASSESSEE DID NOT PLACE ANY MATERIAL SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MAT TER. THERE IS NOTHING TO SUGGEST THAT THE VEHICLE WAS EVER REGIST ERED IN THE NAME OF MR. AMITBHAI P. DESAI . IN THE ABSENCE OF ANY BA SIS WE HAVE NO HESITATION IN UPHOLDING THE FINDINGS OF THE LOWER A UTHORITIES. THEREFORE GROUND NO.2 IN THE APPEAL IS DISMISSED. 9 ITA NO.3407/AHD/2008 10. GROUND NO.3 IN THE APPEAL RELATES TO AN ADDITIO N OF RS.99 000/- . ON PERUSAL OF AE COPY OF THE STATEMENT OF ACCOUNT S IN RESPECT OF H.P. ACCOUNT NO.1622 WITH THE KARAMSAD URBEN CO-OP. BANK LTD. FOR THE PERIOD 17-01-2000 TO 17-06-2002 THE AO NOTICED THAT ASSESSEE MADE FOLLOWING REPAYMENTS IN CASH :- DATE CASH DEPOSITED ASST. YEAR SUB-TOTAL ---------- ------------------ ------------ ----- ------- 14-06-2001 50000 2002-03 13-08-2001 15000 2002-03 26-03-2002 34000 2002-03 99000 17-06-2002 239587 2003-04 239587 10.1 TOA QUERY BY THE AO SEEKING DOCUMENTARY EV IDENCE IN SUPPORT OF THE SOURCES OF THESE FUNDS THE ASSESSEE DID NOT RESPOND . ACCORDINGLY THE SAID AMOUNT OF RS.99 000/- WAS TREATED AS UNEXPLAINED EXP ENDITURE AS PER THE PROVISIONS OF SEC. 69C OF THE ACT. 11. ON APPEAL THE LEARNED CIT(A) UPHELD THE ADDITI ON IN THE FOLLOWING TERMS:- 5.3. IN APPEAL THE APPELLANT SUBMITTED THAT THE SOU RCE OF THIS DEPOSITS WERE MADE OUT OF SURPLUS FUNDS AVAILABLE FROM AGRICULTUR AL INCOME. APART FROM MAKING THIS BALD STATEMENT NO EFFORT WAS MADE TO LINK THE REPAYMENT IN THE BANK WITH INCOME FROM AGRICULTURE. THIS BECOMES SP ECIALLY IMPORTANT IN VIEW OF THE FACT THAT THE APPELLANT HIMSELF HAS NOT DECLARED ANY INCOME FROM AGRICULTURE IN HIS INDIVIDUAL CAPACITY. IN VIEW OF T HE FACT THAT THE SOURCE OF THIS REPAYMENT TO THE BANK IN CASH DO NOT STAND SATISFACTORILY EXPLAINED THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING T HE ADDITION OF RS.99 000/- AND SAME IS CONFIRMED. 12 THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED AR ON B EHALF OF THE ASSESSEE MERELY SUBMITTED THAT AMOUNT COULD NOT BE ADDED U/S 69C OF THE ACT WHILE THE LEARNED DR SUPPORTED THE FINDI NGS OF THE LD. CIT(A). 10 ITA NO.3407/AHD/2008 13 WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF 3.HE CASE. INDISPUTABLY THE ASSESSEE DID NOT SUBMI T ANY EVIDENCE BEFORE THE LOWER AUTHORITIES ESTABLISHING SOURCES OF AFORESAID REPAYMENTS TO THE BANK. THE LD. AR DID NOTHING TO IMPROVE THE SITUATION EVEN BEFORE US. WE MAY POINT OUT THAT S IMPLY MENTION OF WRONG SECTION BY THE AO DOES NOT MEAN THAT THE ASS ESSEE ESTABLISHED SOURCES OF REPAYMENT OF AFORESAID AMOUN T OF LOAN/INTEREST TO THE BANK. THE POWER EXERCISED BY A COMPETENT AUTHORITY CANNOT BE REGARDED AS ILLEGAL SIMPLY BECA USE A WRONG SECTION IS MENTIONED IF THE SAID AUTHORITY HAS JURI SDICTION UNDER SOME OTHER PROVISION. SO WE ARE OF THE VIEW THAT THE MEN TION OF A WRONG SUB-SECTION IS NOT FATAL TO THE VALIDITY OF THE ADD ITION WHEN THE ASSESSEE DID NOT EXPLAIN THE SOURCES OF REPAYMENT T O THE BANK. SINCE THE LD. AR DID NOT EVEN WHISPER BEFORE US IN RESPECT OF SOURCES OF REPAYMENT OF AFORESAID AMOUNT OF RS.99 0 00/- WE HAVE NO HESITATION IN UPHOLDING THE FINDINGS OF THE LD. CIT(A). THE ONUS IS ON THE ASSESSEE TO ESTABLISH THE SOURCES OF FUNDS SINCE FACTS RELATING TO THESE TRANSACTIONS ARE WITHIN HIS SPEC IFIC KNOWLEDGE. IN VIEW OF THE FOREGOING ESPECIALLY WHEN THE LD. AR D ID NOT PLACE ANY MATERIAL BEFORE US SO AS TO ENABLE US TO TAKE A DIF FERENT VIEW IN THE MATTER WE ARE NOT INCLINED TO INTERFERE. THEREFORE GROUND NO. 3 IN THE APPEAL IS DISMISSED. 14. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF RESIDUARY GROUND IN THE APPEAL ACCORDINGLY THIS G ROUND IS DISMISSED. 15. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. 11 ITA NO.3407/AHD/2008 16. IN THE RESULT APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 9-09-2011 SD/- SD/- ( MUKUL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 9-09-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI BRIJESH DILIPBHAI PATEL SHYAM BUNGLOW KAR AMSAD TAL: ANAND 2. ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE AN AND 3. CIT CONCERNED 4. CIT(A)-IV BARODA 5. DR ITAT AHMEDABAD BENCH-B AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY R EGISTRAR/ASSISTANT REGISTRAR ITAT AHMEDABAD