The ITO, Ward-7(1),, Ahmedabad v. M/s. Jaydeep Jewellers, Dist.Ahmedabad

ITA 3525/AHD/2007 | 1999-2000
Pronouncement Date: 11-03-2011 | Result: Dismissed

Appeal Details

RSA Number 352520514 RSA 2007
Bench Ahmedabad
Appeal Number ITA 3525/AHD/2007
Duration Of Justice 3 year(s) 6 month(s) 22 day(s)
Appellant The ITO, Ward-7(1),, Ahmedabad
Respondent M/s. Jaydeep Jewellers, Dist.Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 11-03-2011
Date Of Final Hearing 07-03-2011
Next Hearing Date 07-03-2011
Assessment Year 1999-2000
Appeal Filed On 20-08-2007
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI G. D. AGRAWAL VP & MUKUL KR. SHRAWAT JM INCOME-TAX OFFICER WARD- 7(1) AHMEDABAD. M/S JAYDEEP JEWELLERRS MAIN BAZAR BAREJA TA. DASCROI DIST. AHMEDABAD APPELLANT VS. RESPONDENT AND ITA NO. ASST. YEAR 3901/AHD/2007 2001-2002 M/S JAYDEEP JEWELLERRS MAIN BAZAR BAREJA TA. DASCROI DIST. AHMEDABAD. INCOME-TAX OFFICER WARD-7(1) AHMEDABAD. APPELLANT VS. RESPONDENT REVENUE BY: SHRI G. S. SOURYAWANSI DR ASSESSEE BY : SHRI M. K. PATEL AR O R D E R PER MUKUL KUMAR SHRAWAT JUDICIAL MEMBER. ALL THE SIX APPEALS ALONG WITH THE CROSS OBJECTIONS HAVE ARISEN FROM THE IDENTICAL ORDERS OF CIT(A) XIII AHMEDABAD DATED 25.5.2007. SINCE THE FACTS AND ISSUES INVOLVED ARE IDENTICAL IN ALL THESE APPEALS AND ITA NO. C.O.NO. ASST. YEAR 1.3525/AHD/2007 1999-2000 2.3526/AHD/2007 350/AHD/2007 2000-2001 3. 3527/AHD/2007 351/AHD/2007 2002-2003 4. 3528/AHD/2007 352/AHD/2007 2003-2004 5. 3529/AHD/2007 353/AHD/2007 2004-2005 ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 2 CROSS OBJECTIONS THEREFORE THEY ARE CONSOLIDATED AND HEREBY DECIDED BY THIS SINGLE ORDER. (A) REVENUES APPEALS :- 2. GROUND NO.1 FOR ALL THE YEARS IS IN RESPECT OF ADDITION UNDER SECTION 68 OF THE INCOME-TAX ACT. FOR ASST. YEAR 19 99-00 RS.5 11 224/- A.Y. 2000-01 RS.4 26 645/- A.Y.2002-03 RS.14 79 25 8/- A.Y. 2003-04 RS.19 87 086/- AND A.Y.2004-05 RS.56 560/- WERE RES PECTIVELY TAXED. 3. A SURVEY WAS CONDUCTED ON 14.3.2005. THE ASSESSE E FIRM IS IN THE BUSINESS OF TRADING AND JOB WORK OF JEWELLERY. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS CERTAIN QUERIES WERE RAISED IN RESPECT OF THE CHANGE IN THE ACCOUNTS OF THE ASSESSEE. THAT CHANGE WAS NOTICED AS PER THE REVISED RETURN WHICH WAS STATED TO BE FILED IN COMPLIANCE OF NOTICE U/S 148 OF INCOME-TAX ACT 1961(HEREIN AFTER THE ACT). THE AO HAS FOUND THAT THE ASSESSEE HAD SHOWN A CERTAIN LOAN LIABILITY OUT OF WHICH A SUM OF RS.5 11 224/- PERTAINED TO THE ASST. YEAR 1999-00. THE ASSESSEE WAS ASKED TO GIVE THE NAMES AND ADDRESSES OF THE DEPOSI TORS. AS PER THE AO THE REQUISITE DETAILS WERE NOT FURNISHED THEREFORE FOR ASST. YEAR 1999-00 TAXED A SUM OF RS.5 11 224/- UNDER SECTION 68 OF TH E ACT. 4. LIKEWISE FOR ASST. YEAR 2000-01 IT WAS NOTICED B Y THE AO THAT THE ASSESSEE HAD SHOWN DEPOSITS OF RS.7 78 057/-. IN TH IS REGARD THE AO HAS ALSO REFERRED A STATEMENT OF MR. ROHIT N. SONI WHIC H WAS RECORDED UNDER SECTION 133A OF THE ACT DATED 14.3.2005. THE CLAIM OF THE ASSESSEE WAS THAT THE DEPOSITORS HAVE DULY CONFIRMED THEIR RESPE CTIVE DEPOSITS AND BY FILING THEIR CONFIRMATIONS THE ASSESSEE HAD DISCHAR GED ITS PRIMARY ONUS OF THEIR IDENTITY GENUINENESS AND CREDITWORTHINESS. ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 3 5. ALMOST IDENTICAL WAS THE SITUATION IN ASST. YEAR 2002-03. THE AO HAS NOTICED THAT UNEXPLAINED CASH CREDITS WERE TO T HE TUNE OF RS.18 70 413/-. 6. FOR ASST. YEAR 2003-04 THE UNEXPLAINED CASH CRED ITS WERE OF RS.25 07 606/- AND FOR ASST. YEAR 2004-05 THE AMOUN T OF CASH CREDITS WAS RS.7 49 012/-. FOR ALL THE YEARS AGAINST THE SAID A DDITIONS APPEALS WERE FILED FOR EACH YEAR BEFORE THE FIRST APPELLATE AUTH ORITY. 7. DURING THE COURSE OF HEARING BEFORE LD. CIT(A) I T WAS VEHEMENTLY STATED THAT THE ASSESSEE HAS DISCHARGED THE ONUS OF PROVING THE CREDITWORTHINESS IDENTITY OF THE CREDITORS AND GEN UINENESS OF THE TRANSACTIONS BY FURNISHING THEIR CONFIRMATION LETTE RS ALONG WITH THEIR PAN. TO VERIFY THE SAME LD. CIT(A) HAS CALLED THE PRESE NT AO AND ON PERUSAL OF RECORD IT WAS FOUND THAT THE ASSESSEE HAS ACTUAL LY FURNISHED THE CONFIRMATIONS COMPLETE ADDRESSES PAN ALONGWITH TH E COPIES OF THEIR CONTRA ACCOUNTS. THE THEN AO HAS AFFIRMED THAT THOS E WERE FILED THROUGH WRITTEN SUBMISSIONS AND AVAILABLE ON RECORD. 8. FOR ASST. YEAR 1999-00 ON EXAMINATION OF RELEVAN T EVIDENCES LD. CIT(A) HAS DELETED THE ADDITION OF RS.5 11 224/-. 9. FOR ASST. YEAR 2000-01 IT WAS FOUND THAT THE DEP OSITORS TO THE EXTENT OF RS.3 51 412/- HAVE APPEARED AND AFFIRMED THE TRANSACTIONS THEREFORE THE LD. CIT(A) HAS DELETED THE ADDITION UP TO THAT EXTENT AND THE BALANCE AMOUNT OF RS.4 26 645/- WAS CONFIRMED. 10. FOR ASST. YEAR 2002-03 ALMOST IDENTICAL WAS THE SITUATION BECAUSE LD. CIT(A) HAS FOUND THAT ONLY TO THE EXTENT OF RS. 3 91 155/- THE ASSESSEE WAS ABLE TO DISCHARGE THE PRIMARY ONUS TO PROVE THE GENUINENESS OF THE ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 4 DEPOSIT HENCE IT WAS DELETED HOWEVER REST OF THE AMOUNT OF RS.14 79 258/- BEING NOT ESTABLISHED HENCE CONFIRME D. 11. FOR ASST. YEAR 2003-04 OUT OF THE TOTAL ADDITIO N OF RS.25 07 606/- A SUM OF RS.5 20 520/- WAS DELETED BEING THE PRIMARY ONUS WAS DISCHARGED. HOWEVER IN RESPECT OF THE BALANCE AMOUNT OF RS.19 87 086/- THE ACTION OF THE AO WAS CONFIRMED. 12. IN ASST. YEAR 2004-05 THE POSITION WAS THAT THE TOTAL ADDITION UNDER SECTION 68 WAS MADE OF RS.7 49 012/- BUT THE ASSESS EE WAS ABLE TO ESTABLISH THE GENUINENESS OF THE DEPOSITS TO THE EX TENT OF RS.6 92 452/- HENCE THE SAID AMOUNT WAS DELETED AND THE BALANCE O F RS.56 560/- WAS CONFIRMED. 13. NOW THE REVENUE IS IN APPEAL CHALLENGING THE PA RT RELIEF GRANTED BY THE LD. CIT(A) AND THE ASSESSEE IS IN CROSS OBJECTI ON IN RESPECT OF THE BALANCE AMOUNT WHICH WAS CONFIRMED BY THE LD. CIT(A ). 14. WE HAVE HEARD BOTH THE SIDES. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. FROM THE SIDE OF R EVENUE LD. DR MR. SOURYAWANSI HAS CONTESTED THAT THE ADDITIONS WERE M ADE PRIMARILY BECAUSE OF THE REASONS THAT THE ASSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 68. HE HAS ALSO CONTESTED THA T THE ASSESSEE HAS MADE CHANGES IN THE BALANCE SHEET AFTER THE SURVEY AND F ILED THE REVISED ACCOUNTS AS PER THE RETURNS FILED IN COMPLIANCE OF NOTICE U/S 148 OF THE ACT. ACCORDING TO HIS ARGUMENTS LAW OF ESTOPPEL SHO ULD APPLY ON THE ASSESSEE BECAUSE THE RETURN ORIGINALLY FILED ALONG WITH THE BALANCE SHEET COULD NOT BE ALLOWED TO BE CHANGED ESPECIALLY AFTER THE SURVEY OPERATION. ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 5 15. ON THE OTHER HAND FROM THE SIDE OF THE RESPOND ENT ASSESSEE MR. M. K. PATEL HAS SUBMITTED THAT THE REQUISITE DETAIL S RELEVANT CONFIRMATIONS AND THE PAN OF ALL THE DEPOSITORS WER E DULY FURNISHED DURING THE ASSESSMENT PROCEEDINGS. THIS FACT WAS EV EN AFFIRMED BY THE AO BEFORE THE LD. CIT(A). HE HAS ALSO REPLIED THAT THE LAW OF ESTOPPEL COULD NOT BE APPLIED IN THE PRESENT SITUATION BECAU SE THE ASSESSEE HAD TO FILE A RETURN IN COMPLIANCE OF NOTICE U/S 148 AND I N THAT RETURN HE WAS EXPECTED TO FILE THE TRUE AND CORRECT POSITION OF A CCOUNTS WHICH WERE FOUND AT THE TIME OF SURVEY OPERATION. 16. HAVING HEARD THE RIVAL SUBMISSIONS WE ARE OF TH E CONSIDERED VIEW THAT THE ASSESSEE HAS ADMITTEDLY DISCHARGED ITS PRIMARY ONUS BY FURNISHING THE CONFIRMATION LETTERS RELEVANT COPIE S OF ACCOUNTS AND THE PAN OF THE RESPECTIVE PARTIES. THIS FACT WAS ADMITTED B Y THE AO BEFORE THE LD. CIT(A). IT WAS CONFIRMED THAT ON PER USAL OF ASSESSMENT RECORD IT WAS FOUND THAT ALL THOSE EVIDENCES AND DE TAILS WERE FURNISHED BY THE ASSESSEE WHICH WERE FOUND PLACED IN THE ASSESSM ENT RECORD. ONCE REVENUE AUTHORITIES AS WELL AS THE FIRST APPELLATE AUTHORITY HAVE AFFIRMED THAT THE ASSESSEE HAS DULY DISCHARGED ITS PRIMARY O NUS AS PRESCRIBED U/S 68 OF THE ACT BY FILING THEIR CONFIRMATIONS THEIR IDE NTITY CREDITWORTHINESS ALONG WITH PAN OF THOSE PARTIES THEREFORE WE FIND NO FALLACY IN THE VIEW TAKEN BY THE LD. CIT(A). IT IS PERTINENT TO MENTION THAT ONLY IN RESPECT OF ASST. YEAR 1999-00 THE TOTAL ADDITION WAS DELETED. HOWEVER IN RESPECT OF REST OF THE YEARS ON VERIFICATION OF ACCOUNTS AND O N THE BASIS OF CONFIRMATIONS BY THOSE RESPECTIVE PARTIES ONLY PAR T RELIEF TO THE EXTENT BEING SATISFIED WAS GRANTED AND REST OF THE AMOUNT WHICH WAS NOT ESTABLISHED AS PER THE PARAMETERS UNDER SECTION 68 OF THE ACT WAS CONFIRMED. IN VIEW OF THIS FOR ALL THE YEARS GROUN DS RAISED BY THE REVENUE ON THIS ISSUE ARE HEREBY DISMISSED. ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 6 17. APROPOS GROUND NO.2 FOR ASST. YEAR 1999-00 AND 2000-01 IT WAS NOTICED BY THE AO THAT PARTNERS HAVE RESPECTIVELY I NTRODUCED IN THEIR CAPITAL ACCOUNTS FRESH CAPITAL WHICH WAS STATED TO BE IN THE FORM OF GOLD AND SILVER. THE EXPLANATION OF THE ASSESSEE WAS THA T SUCH CAPITAL IN THE SHAPE OF GOLD AND SILVER WAS INTRODUCED OUT OF THEI R ANCESTRAL PROPERTY INHERITED. THE FACTS HAVE REVEALED THAT THE STATEME NTS OF ALL THE PARTNERS WERE RECORDED UNDER SECTION 131 OF THE ACT. IN THEI R STATEMENTS THEY HAVE CONFIRMED HAVING INTRODUCED CAPITAL OUT OF THEIR IN DIVIDUAL SOURCE OF INCOME. IT WAS ALSO NOTED THAT THE PARTNERS WERE IN DIVIDUALLY SUBJECTED TO TAX. THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT ACCEPTED BY THE AO AND REJECTED THE EXPLANATION REGARDING THE SOURCE O F GOLD AND SILVER CLAIMED TO BE ANCESTRAL FAMILY PROPERTY AND STRIDHA N. FOR ASST. YEAR 1999-00 AN ADDITION OF RS.4 89 848 WAS MADE AND FOR ASST. YEAR 2000-01 ADDITION OF RS.6 07 501/- WAS MADE. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. 18. THE LD. CIT(A) HAS EXAMINED THE FACTS AND PRIMA RILY ON THE GROUND THAT THE PARTNERS WERE INDEPENDENTLY SUBJECTED TO T AX AND THEY HAVE CONFIRMED THE SAID INTRODUCTION OF CAPITAL IN THEIR CAPITAL ACCOUNT AS PER THE STATEMENT RECORDED UNDER SECTION 131 OF THE ACT AND THAT THE SOURCE WAS STATED TO BE OUT OF THE INHERITED GOLD AND SILV ER HENCE FOLLOWING FEW CASE LAWS HELD THAT THE FIRM COULD NOT BE ASSESSED IN RESPECT OF THE CAPITAL INTRODUCED BY THE SAID PARTNERS. RELIANCE WAS PLACE D ON SEVERAL DECISIONS NAMELY (1) CIT VS. METACHEM INDUSTRIES 245 ITR 16 0 (M.P) AND (2) ACIT VS. PATEL RAJESH KUMAR KANTILAL 64 TTJ 460. 19. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES AS ALSO ON CAREFUL PERUSAL OF THE FINDINGS OF THE AUTHORITIES BELOW ON CE IT WAS AN ADMITTED FACTUAL POSITION THAT THE PARTNERS ARE INDEPENDENTLY SUBJECTED TO TAX ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 7 AND THEY HAVE AFFIRMED THEIR RESPECTIVE CAPITAL ACC OUNT AS PER THE STATEMENT RECORDED U/S 131 AND ALSO EXPLAINED SOURC E OF THE SAID INTRODUCTION OF CAPITAL CLAIMED TO BE OUT ANCESTRAL PROPERTY IN THE SHAPE OF GOLD AND SILVER THEREFORE TOTALITY OF THE CIRCUMS TANCES THUS DEMONSTRATED THAT THERE WAS NO FALLACY IN THE VIEW TAKEN BY LD. CIT(A). IN OUR CONSIDERED OPINION HE HAS RIGHTLY PLACED RELIANCE O N CERTAIN JUDGMENTS THEREFORE HIS VIEW IS HEREBY CONFIRMED. THIS GROUN D OF THE REVENUE IS THEREFORE DISMISSED. 20. FOR ASST. YEAR 2000-01 GROUND NO.3 IS IN RESPECT OF AN ADDITION OF RS. 75 000/- PERTAINING TO GIFT AMOUNT INTRODUCED IN THE CAPITAL ACCOUNT OF THE THREE PARTNERS OF THE FIRM. THERE WE RE THREE CREDITS OF RS.25 000/- IN THE ACCOUNTS OF THE THREE PARTNERS O F THE FIRM. THE EXPLANATION WAS THAT THE SAID GIFTS WERE RECEIVED B Y WAY OF GIFTS FROM FRIENDS AND RELATIVES ON THE OPENING CEREMONY OF TH E SHOP. IT WAS EXPLAINED THAT THOSE GIFTS WERE RECEIVED IN THEIR I NDIVIDUAL CAPACITY. THE AO WAS NOT CONVINCED AND HELD THAT THE ADDITION IN THE PARTNERS CAPITAL ACCOUNT WAS NOT DULY SUPPORTED BY THE EVIDENCES ETC . HENCE TAXED THE ENTIRE AMOUNT IN THE HANDS OF THE FIRM. 21. WHILE DEALING WITH THIS GROUND LD. CIT(A) HAS R ELIED UPON HIS EARLIER DECISION ON THE SAME LINE THAT ONCE THE PAR TNERS WERE INDEPENDENTLY SUBJECTED TO TAX AND DISCLOSED THE NE CESSARY INFORMATION AS PER THEIR RESPECTIVE RETURNS OF INCOME THEREFORE SHOULD NOT BE SUBJECT TO TAX AGAIN IN THE HANDS OF THE PARTNERSHIP FIRM. 22. ON HEARING BOTH THE SIDES AND CONSIDERING THE E NTIRETY OF THE CIRCUMSTANCES OF THE CASE WE ARE ALSO OF THE VIEW T HAT THE LD. CIT(A) HAS RIGHTLY FOLLOWED HIS EARLIER DECISION THROUGH WHICH IT WAS HELD BY PLACING RELIANCE ON FEW PRECEDENTS THAT ONCE THE PARTNERS HAVE AFFIRMED ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 8 THROUGH THE STATEMENTS RECORDED U/S 131 THE INTRODU CTION OF CAPITAL IN THEIR RESPECTIVE CAPITAL ACCOUNTS AND ALSO INDIVIDU ALLY THEY WERE SUBJECTED TO TAX INDEPENDENTLY THEN THERE WAS NO REASON TO TAKE ANOTHER VIEW IN RESPECT OF THE IMPUGNED GIFTS INTRODUCED IN THEIR CAPITAL ACCOUNT. WE HEREBY CONFIRM THE FINDING OF LD. CIT(A) AND DISMISS THIS GROUND OF REVENUE. 23. GROUND NO.4 FOR ASST. YEAR 2000-01 IS IN RESPECT OF AN ADDITION OF RS. 5 92 278/- THE UNDISCLOSED EXPENDITURE ON DEAD STO CK AND SHOP CONSTRUCTION. THE AO HAS OBSERVED THAT AS PER THE OLD BALANCE SH EET THE AMOUNTS TOWARDS ASSETS SIDE WERE AS FOLLOWS :- (1) DEAD STOCK RS.332902/- (2) VEHICLE RS.159181/- (3) BUILDING RS.269179/- ---------------- RS.751262/- IN THE REVISED BALANCE SHEET A CONSOLIDATED FIGURE OF RS.7 51 259/- WAS MENTIONED. HOWEVER ON VERIFICATION THE BREAK UP WA S MENTIONED AS FOLLOWS :- (1) DEAD STOCK RS.132902/- (2) VEHICLE RS.159181/- (3) BUILDING RS.459156/- ------------------ RS.751259/- SINCE THERE WAS A CHANGE IN THE AMOUNTS THEREFORE AN EXPLANATION WAS CALLED FOR. THE AO HAS NOTED THAT NO REGISTER FOR D EAD STOCK WAS MAINTAINED BY THE ASSESSEE. SINCE THERE WAS DISCREP ANCY IN THE BUILDING ACCOUNT ALSO IN THE ACCOUNT OF DEAD STOCK THEREFOR E IN THE ABSENCE OF EXPLANATION OF THE SOURCE OF CONSTRUCTION IN THE SH OP THE TOTAL OF THE TWO WAS TAXED AT RS.5 92 078/-. ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 9 24. THE LD. CIT(A) HAS HELD THAT AS FAR AS THE COST OF FIXTURES AND FURNITURE WAS CONCERNED IT WAS WRONGLY HELD AS DEAD STOCK AND THE VERY BASIS OF MAKING THE IMPUGNED ADDITION SUFFERED FROM INFIRMITY. IN RESPECT OF THE EXPENDITURE INCURRED TOWARDS CONSTRUCTION/RE NOVATION FOR SHOP IT WAS HELD THAT THE SUPPORTING VOUCHERS WERE PLACED A ND THE AO REMAINED SILENT ABOUT THE GENUINENESS OF THESE BILLS AND VOU CHERS THEREFORE THE ADDITION WAS WRONGLY MADE. NOW THE REVENUE HAS CHAL LENGED THOSE FINDINGS OF LD. CIT(A). 25. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH AND ALSO CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE ARE NOT INCLINED TO AGREE WITH THE FINDINGS OF LD. CIT(A). WE HAVE NOTED THAT THERE WAS CHANGE IN THE BALANCE SHEET AS FURNISHED BY THE ASSESSEE ON T WO OCCASIONS. AS PER OLD BALANCE SHEET THE VALUE OF THE DEAD STOCK WAS S TATED TO BE RS.3 32 902/- HOWEVER AS PER THE REVISED STATEMENT IT WAS REDUCED TO RS.1 32 902/-. ABOUT THIS DISCREPANCY NO SATISFACTO RY REPLY WAS FURNISHED BY THE ASSESSEE AND LD. CIT(A) HAD GONE WRONG IN HO LDING THAT THE AO HAD WRONGLY PRESUMED THAT IT WAS THE ACCOUNT OF DEA D STOCK. HOWEVER AS PER THE ASSESSMENT ORDER IT WAS THE ASSESSEES BALA NCE SHEET AND IT WAS ASSESSEES EXPLANATION THROUGH WHICH THE AO HAD CO ME TO KNOW THAT THE SAID AMOUNT REPRESENTED THE DEAD STOCK. AS AGAINST THAT THE LD. CIT(A) HAS GIVEN A FINDING THAT THE SAID FIGURE REPRESENTE D THE COST OF FURNITURE AND FIXTURES. ON WHAT BASIS HE HAD ARRIVED AT THE S AID CONCLUSION IS NOT CLEAR FROM THE JUDGMENT. HOWEVER LD. DR HAS VEHEME NTLY CONTESTED THAT THE ASSESSEE MUST NOT HAVE CHANGED THE BALANCE SHEE T IN RESPECT OF THE NOMENCLATURE OF THE ASSETS. NATURALLY THE ASSESSEE IS AWARE ABOUT HIS AFFAIRS AND THEREFORE HE HAS MENTIONED THAT THE A MOUNT REPRESENTED THE ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 10 DEAD STOCK. IT IS ASSESSEES ONEROUS DUTY TO EXPLAI N THE NATURE OF THE ENTRIES CORRECTLY AND TO BEAR THE CONSEQUENCES IF F AILED. LIKE-WISE IN RESPECT OF THE BUILDING A/C EARLIER T HE FIGURE WAS AT RS.2 59 179/- WHICH WAS INCREASED TO RS.4 59 156/-. THE LD. CIT(A) HAS NOT MENTIONED ABOUT FURNISHING OF ANY RECONCILIATIO N IN THIS REGARD. WHAT WAS ALL THOSE BILLS AND VOUCHERS WHICH WERE ALLEGED LY EXAMINED BY THE LD. CIT(A) AND HOW THE AMOUNT UNDER THE HEAD BUILDING H AD GONE UP AND WHY IT WAS NOT CORRECTLY DISCLOSED IN THE OLD BALAN CE SHEET AT THE FIRST STANCE. WE HAVE NOT FOUND ANY REASONABLE ANSWER OF THESE QUESTIONS FROM THE ORDER OF THE LD. CIT(A). IN OUR CONSIDERED OPIN ION THE ASSESSEE HAS TO DEMONSTRATE THROUGH BILLS AND VOUCHERS THE NATURE O F INVESTMENT MADE IN THE BUILDING CONSTRUCTION/RENOVATION. THEREAFTER TH E NEXT STEP IS TO ESTABLISH THE SOURCE OF THE FUNDS. FURTHER ASSESSEE IS UNDER STRICT OBLIGATION TO RECONCILE THE CHANGE IN THE FIGURES O F BALANCE SHEETS. BECAUSE OF THESE REASONS WE ARE OF THE VIEW THAT TH E REVENUE WAS RIGHTLY AGGRIEVED BY THE SAID DECISION OF LD. CIT(A) THERE FORE WE DEEM IT PROPER TO RESTORE THIS ISSUE BACK TO THE STAGE OF FIRST AP PELLATE AUTHORITY TO EXAMINE AFRESH IN THE LIGHT OF OUR OBSERVATIONS MAD E HEREINABOVE NEEDLESS TO SAY AFTER PROVIDING ADEQUATE OPPORTUNIT Y OF HEARING TO BOTH THE SIDES. THIS GROUND IS THEREFORE ALLOWED FOR STATISTICAL PURPOSE. 26. FOR ASST . YEAR 2002-03 & 2003-04 GROUND NO.2 IS IN RESPECT OF CASH DEPOSITS IN THE BANK OF THE ASSESSEE RESPECTIVELY AMOUNTING TO RS.11 49 000/- AND RS.25 30 000/-. 27. ON EXAMINATION OF CURRENT ACCOUNT OF COMMERCIAL BANK LTD. IT WAS NOTICED BY THE AO THAT CERTAIN CASH DEPOSITS HAVE B EEN MADE. THE AO HAS ADDED ALL THOSE CASH DEPOSITS WHICH WERE ABOVE RS.5 0 000/- FOR BOTH THE YEARS. WHEN THE MATTER HAD GONE IN APPEAL IT WAS EX PLAINED THAT SUFFICIENT ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 11 CASH AS WELL AS SALES RECEIPTS FROM JOB WORK WERE D ISCLOSED DURING THE YEARS UNDER CONSIDERATION AND OUT OF THOSE RECEIPTS THE ASSESSEE HAD DEPOSITED THE AMOUNTS IN QUESTION IN BANK. THE LD. CIT(A) HAS ACCEPTED THE EXPLANATION AS PER THE FOLLOWING OBSERVATIONS : - 4.3 IN ORDER TO DECIDE THE ISSUE I HAVE CAREFULLY CONSIDERED THE VARIOUS ARGUMENTS OF THE LD. AR AND HAVE PERUSED THE ASSESS MENT ORDER. THE APPELLANT HAS OBTAINED LOANS AND ADVANCES TO THE EX TENT OF RS.18 70 413/- IN CASH OUT OF WHICH RS.3 91 155/- HAS BEEN ACCEPTE D TO BE GENUINE AS PER THE DISCUSSION IN PARA 3.3 ABOVE. WITH THE RESULT THE BALANCE OF THE DEPOSITS TOTALING TO RS.14 79 258/- I.E. (RS.18 70 413/- MINUS RS.3 91 155/-) ARE HELD TO BE THE UNACCOUNTED INCOM E OF THE FIRM U/S 68 OF THE ACT. IT IS NOT IN DISPUTE THAT ALL THESE DEPOSI TS WERE INTRODUCED BY THE FIRM IN THEIR BOOKS OF ACCOUNTS IN CASH. THE APPELL ANT THUS CAN BE SAID TO HAVE UNACCOUNTED CASH OF RS.14 79 258/- AND IN THE INTEREST OF JUSTICE AND FAIR PLAY THE CASH DEPOSITED IN THE BANK CAN BE AL LOWED TO BE SET OFF AGAINST SUCH ADDITION. SINCE THE TOTAL CASH DEPOSIT S RELATING TO THE CURRENT ASSESSMENT YEAR AMOUNTING TO RS.13 19 000/- ARE LES S THAN RS.14 79 258/- HAVING BEEN SEPARATELY CONFIRMED IN PARA 3.3 ABOVE ANY FURTHER ADDITION ON ACCOUNT OF THE CASH DEPOSITED IN THE BANK WOULD RESULT INTO DOUBLE ADDITION. THE ADDITION OF RS.11 49 000/- IS THEREFO RE DELETED. LIKE-WISE FOR ASST. YEAR 2003-04 ASSIGNING THE SAM E REASONS THE ADDITION WAS DELETED. 28. AFTER PERUSING THE ORDERS OF THE AUTHORITIES BE LOW AND ON HEARING BOTH THE SIDES WE HAVE FOUND THAT THE AO WAS NOT JU STIFIED IN MAKING THE ADDITION OF ALL THOSE AMOUNTS WHICH WERE FOUND DEPO SITED IN CASH IN THE BANK. IT WAS AN ADMITTED FACTUAL POSITION THAT THE SALES AND THE JOB RECEIPTS WERE RECEIVED IN CASH AND DULY RECORDED IN THE BOOKS OF ACCOUNTS. OUT OF THE SAID RECORDED RECEIPTS IT WAS STATED TO BE DEPOSITED IN THE BANK . THAT EXPLANATION WAS NOT CONTROVERTED BY THE REVENUE. THEREFORE IN OUR CONSIDERED OPINION LD. C IT(A) HAS RIGHTLY ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 12 DELETED THE ADDITION. WE FIND NO FORCE IN THIS GROU ND OF REVENUE HENCE DISMISSED. 29. FOR ASST. YEAR 2004-05 THE AO HAS MADE THE ADDITION OF RS.20 30 000/- FOUND DEPOSITED IN CASH IN THE CURR ENT ACCOUNT OF KALUPUR COM. CO-OP. BANK. WHEN THE MATTER WAS CARRIED BEFORE LD. CIT(A) IT WAS HELD THAT CONSIDERING THE SALES OF TH E YEAR PLUS CASH LOANS RECEIVED ETC.; STILL THERE WAS A SHORTAGE OF CASH T O THE EXTENT OF RS.5 48 271/-. WITH THE RESULT THE SAID ADDITION OF RS.20 30 000/- WAS REDUCED TO RS.5 48 271/- AS PER FOLLOWING OBSERVATI ON :- 4.3 IN ORDER TO DECIDE THE ISSUE I HAVE CAREFULLY CONSIDERED THE VARIOUS ARGUMENTS OF THE LD. AR AND HAVE PERUSED THE ASSESS MENT ORDER. THE APPELLANT HAS OBTAINED LOANS AND ADVANCES TO THE EX TENT OF RS.25 35 000/- IN CASH OUT OF WHICH RS. 1.05 000-HAVE BEEN ACCEPT ED BY THE ASSESSING OFFICER AND BALANCE OF RS 6 92 452/- HAS BEEN ACCEP TED TO BE GENUINE AS PER THE DISCUSSION IN PARA 3 3 ABOVE. WITH THE RESU LT THE BALANCE OF THE DEPOSITS TOTALLING TO RS.56 560/- ARE HOLD TO BE T HE UNACCOUNTED INCOME OF THE FIRM U/S. 68 OF THE ACT. IT IS NOT IN DISPUT E THAT ALL THESE DEPOSITS WERE INTRODUCED BY THE FIRM IN THEIR BOOKS OF ACCOU NTS IN CASH. THE APPELLANT THUS CAN BE SAID TO HAVE CASH OF RS.7.49 012/- INTRODUCED THROUGH CASH DEPOSITS AND IN THE INTEREST OF JUSTIC E AND FAIR PLAY THE CASH DEPOSITED IN THE BANK CAN BE ALLOWED TO BE SET OFF AGAINST SUCH CASH AND ANY FURTHER ADDITION ON ACCOUNT OF THE CASH DEPOSIT ED IN THE BANK WOULD RESULT INTO DOUBLE ADDITION.. THIS LEAVES [HE BALAN CE OF DEPOSITS TO R.13 85 988/-(RS.21 35 000 MINUS RS.7 49 012/-). T HE APPELLANT HAS DECLARED CASH SALES OF RS.17 09 117/- APART FROM H AVING JOB WORK INCOME OF RS.1 03 808/-.THE CONTENTION RAISED BY THE LD AU THORISED REPRESENTATIVE THAT THE APPELLANT WAS DEPOSITING TH E CASH SALES AND OTHER INCOME IN ITS BANK ACCOUNTS IS ALSO FORTIFIED BY TH E FACT THAT ALL THE PURCHASES HAVE BN MADE THROUGH THE CHEQUES ISSUED FROM THE SAME BANK ACCOUNT. THE APPELLANT HAS DECLARED GROSS PROFIT OF RS.7 33 909/- OUT OF CASH SALES OF RS.17 09 117/-WHICH CAN BE SAID TO BE LYING DEPOSITED IN THE BONK AS SURPLUS CASH. SIMILARLY THE JOB WORK INCOM E RECEIVED IN CASH OF RS.1 03 808/- WAS DEPOSITED IN THE BANK. THE CREDIT OF CASH OF RS. 8 37 717/-( RS.7.33.909/- + RS.L 03 808/-) THUS CAN BE ALLOWED TO THE APPELLANT IN ORDER TO EXPLAIN A PART OF THE BALANCE CASH DEPOSITS OF RS13 85 988/-. THE ADDITION OF THE BALANCE AMOUNT I .E. RS.5 48 271/-(RS. ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 13 13 85 988 MINUS RS.8 37 717) IS THEREFORE REQ UIRED TO BE CONFIRMED . THE APPELLANT THUS GETS A RELIEF OF RS.14 81 T 729/-. 30. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF THE VIEW THAT LD. CIT(A) HAS THOROUGHLY EXAMINED THE SOURCE OF THE CASH DEPOSITS IN THE BANK ACCOUNT AND AFTER CONSIDERING THE RELEV ANT INFORMATION AND THE EVIDENCES HE HAS RIGHTLY DECIDED TO GRANT PART RELI EF TO THE EXTENT THE ASSESSEE HAD TENDERED SATISFACTORY EXPLANATION. WE FIND NO REASON TO INTERFERE WITH THOSE FINDINGS ON FACTS HENCE CONFIR M THE VERDICT OF LD. CIT(A) AND DISMISS THIS GROUND OF REVENUE. (B) C.O. NO.350/AHD/2007 ASST. YEAR 2000-01 31. IN THIS CROSS OBJECTION THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- (1) THE LD. CIT(A) HAS ERRED IN TREATING THE BALANCE SH EET AND PROFIT & LOSS ACCOUNT AS BOOKS OF ACCOUNT AND CONFIRMING T HE ADDITION ON THE BASIS OF DEPOSITS AS PER ORIGINAL BALANCE SH EET WHEREAS NO SUCH DEPOSITS ARE APPEARING IN THE BOOKS OF ACCO UNTS. (2) THE LD. AO AND THE CIT(A) HAS ERRED IN LAW AND ON F ACTS IN NOT ACCEPTING THE REVISED TRADING A/C P & L A/C AND BA LANCE SHEET FILED WITH THE RETURN OF INCOME IN RESPONSE TO NOTI CE U/S 148 OF THE ACT WHICH ARE BASED ON CORRECT STATE OF AFFAIR S. IN VIEW OF FACTS SUBMISSION AND EVIDENCES FILED THE AO AND T HE CIT(A) OUGHT TO HAVE ACCEPTED THE SAID REVISED ACCOUNTS WH ILE IGNORING THE ORIGINAL ACCOUNTS ATTACHED WITH THE ORIGINAL RE TURN THE SAME BEING INCORRECT FOR THE VALID REASONS STATED IN THE SUBMISSIONS FILED BEFORE THE AO AND THE CIT(A). (3) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION TO THE EXTENT OF RS.4 26 645/- OUT OF THE TOTAL ADDITION OF RS.7 78 057/- ON ACCOUNT OF CASH CREDITS BEING T HE DIFFERENCE BETWEEN THE CLOSING AND THE OPENING BALANCE AS PER THE ORIGINAL BALANCE SHEET AND WHICH IS NOT REFLECTED IN THE BOO KS OF ACCOUNT. IN VIEW OF THE FACTS SUBMISSIONS AND EVIDENCES FIL ED THE IMPUGNED ADDITION OF RS.4 26 645/- ALSO REQUIRES TO BE DELETED. C. O. NO.351/AHD/2007 ASST. YEAR 2002-03 ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 14 32. IN THIS CROSS OBJECTION FOLLOWING GROUNDS HAVE BEEN RAISED :- (1) THE LD. CIT(A) HAS ERRED IN TREATING THE BALANCE SH EET AND PROFIT & LOSS ACCOUNT AS BOOKS OF ACCOUNT AND CONFIRMING THE ADDITION ON THE BASIS OF DEPOSITS AS PER ORIGINAL BALANCE SHEET WHEREAS NO SUCH DEPOSITS ARE APPEARING IN THE BOOKS OF ACCOUNTS. (2) THE LD. AO AND THE CIT(A) HAS ERRED IN LAW AND ON F ACTS IN NOT ACCEPTING THE REVISED TRADING A/C P & L A/C AND BA LANCE SHEET FILED WITH THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT WHICH ARE BASED ON CORRECT STATE OF AFFAIRS. IN VIE W OF FACTS SUBMISSION AND EVIDENCES FILED THE AO AND THE CIT( A) OUGHT TO HAVE ACCEPTED THE SAID REVISED ACCOUNTS WHILE IGNOR ING THE ORIGINAL ACCOUNTS ATTACHED WITH THE ORIGINAL RETURN THE SAM E BEING INCORRECT FOR THE VALID REASONS STATED IN THE SUBMISSIONS FIL ED BEFORE THE AO AND THE CIT(A). (3) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION TO THE EXTENT OF RS.14 79 258/- OUT OF THE TOTAL ADDITION OF RS.18 70 413/- ON ACCOUNT OF CASH CREDITS BEING THE DIFFERENCE BETWEEN THE CLOSING AND THE OPENING BALANCE AS PER THE ORIGINAL BALANCE SHEET AND WHICH IS NOT REFLECTED IN THE BOO KS OF ACCOUNT. IN VIEW OF THE FACTS SUBMISSIONS AND EVIDENCES FILED THE IMPUGNED ADDITION OF RS.14 79 258/- ALSO REQUIRES TO BE DELE TED. C.O. NO.352/AHD/2007 ASST. YEAR 2003-04 33. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN TH IS CROSS OBJECTION :- (1) THE LD. CIT(A) HAS ERRED IN TREATING THE BALANCE SH EET AND PROFIT & LOSS ACCOUNT AS BOOKS OF ACCOUNT AND CONFIRMING THE ADDITION ON THE BASIS OF DEPOSITS AS PER ORIGINAL BALANCE SHEET WHEREAS NO SUCH DEPOSITS ARE APPEARING IN THE BOOKS OF ACCOUNTS. (2) THE LD. AO AND THE CIT(A) HAS ERRED IN LAW AND ON F ACTS IN NOT ACCEPTING THE REVISED TRADING A/C P & L A/C AND BA LANCE SHEET FILED WITH THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT WHICH ARE BASED ON CORRECT STATE OF AFFAIRS. IN VIE W OF FACTS SUBMISSION AND EVIDENCES FILED THE AO AND THE CIT( A) OUGHT TO HAVE ACCEPTED THE SAID REVISED ACCOUNTS WHILE IGNOR ING THE ORIGINAL ACCOUNTS ATTACHED WITH THE ORIGINAL RETURN THE SAM E BEING INCORRECT ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 15 FOR THE VALID REASONS STATED IN THE SUBMISSIONS FIL ED BEFORE THE AO AND THE CIT(A). (3) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION TO THE EXTENT OF RS.19 87 086/- OUT OF THE TOTAL ADDITION OF RS.25.07 606/- ON ACCOUNT OF CASH CREDITS BEING THE DIFFERENCE BETWEEN THE CLOSING AND THE OPENING BALANCE AS PER THE ORIGINAL BALANCE SHEET AND WHICH IS NOT REFLECTED IN THE BOO KS OF ACCOUNT. IN VIEW OF THE FACTS SUBMISSIONS AND EVIDENCES FILED THE IMPUGNED ADDITION OF RS.19 87 086/- ALSO REQUIRES TO BE DELE TED. C.O.NO.353/AHD/2007 ASST. YEAR 2004-05 34. IN THIS C.O. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS :- (1) THE LD. CIT(A) HAS ERRED IN TREATING THE BALANCE SH EET AND PROFIT & LOSS ACCOUNT AS BOOKS OF ACCOUNT AND CONFIRMING T HE ADDITION ON THE BASIS OF DEPOSITS AS PER ORIGINAL BALANCE SH EET WHEREAS NO SUCH DEPOSITS ARE APPEARING IN THE BOOKS OF ACCO UNTS. (2) THE LD. AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE REVISED TRADING A/C P & L A/C AND BA LANCE SHEET FILED WITH THE RETURN OF INCOME IN RESPONSE TO NOTI CE U/S 148 OF THE ACT WHICH ARE BASED ON CORRECT STATE OF AFFAIR S. IN VIEW OF FACTS SUBMISSIONS AND EVIDENCES FILED THE AO AND THE CIT(A) OUGHT TO HAVE ACCEPTED THE SAID REVISED ACCOUNTS WH ILE IGNORING THE ORIGINAL ACCOUNTS ATTACHED WITH THE ORIGINAL RE TURN THE SAME BEING INCORRECT FOR THE VALID REASONS STATED IN THE SUBMISSIONS FILED BEFORE THE AO AND THE CIT(A). (3) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION TO THE EXTENT OF RS.56 560/- OUT OF THE TO TAL ADDITION OF RS.7 49 012/- ON ACCOUNT OF CASH CREDITS BEING THE DIFFERENCE BETWEEN THE CLOSING AND THE OPENING BALANCE AS PER THE ORIGINAL BALANCE SHEET AND WHICH IS NOT REFLECTED IN THE BOO KS OF ACCOUNT. IN VIEW OF THE FACTS SUBMISSIONS AND EVIDENCES FIL ED THE IMPUGNED ADDITION OF RS.56 550/- ALSO REQUIRES TO B E DELETED. (4) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION TO THE EXTENT OF RS.5 48 271/- OUT OF TOTA L ADDITION OF RS.20 30 000/- MADE BY THE AO ON ACCOUNT OF CASH D EPOSITED IN BANK AS UNEXPLAINED WITHOUT PROPER CONSIDERATION AND APPRECIATION OF THE FACTS OF THE CASE. IN VIEW OF T HE FACTS AND ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 16 SUBMISSIONS FILED AS WELL AS LEGAL POSITION THE IM PUGNED ADDITION OF RS.5 48 271/- REQUIRES TO BE DELETED. 35. IN ALL THESE CROSS OBJECTIONS ALMOST IN IDENTIC AL MANNER THE CROSS OBJECTOR HAS CHALLENGED THE FINDINGS OF LD. CIT(A). THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT WERE CONSIDERED ONLY THERE AFTER PART RELIEF WAS GRANTED WHILE DECIDING SOME OF THE GROUNDS OF THE A SSESSEE. RATHER IT IS WRONG ON THE PART OF THE CROSS OBJECTOR TO RAISE TH IS GROUND THAT THE REVISED TRADING AND PROFIT AND LOSS ACCOUNTS HAVE N OT BEEN ACCEPTED BY THE LD. CIT(A). WE HAVE OBSERVED THAT THE LD. CIT(A) HA S DULY CONSIDERED THE REVISED ACCOUNTS AND THEREAFTER DECIDED EACH GROUND AS DEEMED FIT. WE FIND NO FORCE IN THE GROUND NOS.1 & 2 OF THE CROSS OBJECTOR AND THEREFORE DISMISS THE SAME. 36. THROUGH GROUND NO.3 IN ALL THE CROSS-OBJECTIONS THE PART RELIEF IN RESPECT OF THE CASH CREDITS IS CHALLENGED. HOWEV ER WE HAVE ALREADY DISCUSSED THE VERACITY OF THE PART RELIEF GRANTED B Y THE LD. CIT(A) AND CONFIRMED THE SAME. SINCE THE ASSESSEE HAS FAILED T O FURNISH THE NECESSARY INFORMATION AS PRESCRIBED U/S 68 IN RESPECT OF SOM E OF THE DEPOSITS THEREFORE LD. CIT(A) HAS RIGHTLY HELD THAT THE ONU S AS PRESCRIBED U/S 68 WAS NOT PROPERLY DISCHARGED. IN VIEW OF THIS GROUN D NO.3 FOR ALL THE CROSS OBJECTIONS IS HEREBY DISMISSED. 36.1) FOR A.Y.04-05 IN CROSS-OBJECTION THE ASESSEE HAS CHALLENGED THE PART RELIEF GRANTED BY THE LD.CIT(A) IN RESPECT OF THE CASH DEPOSITS IN A BANK. AFTER CONSIDERING THE OVER ALL CIRCUMSTANCES WE HAVE UPHELD THE VIEW TAKEN BY CIT(A) AS ABOVE WHILE DECIDING THE AP PEAL OF THE REVENUE. CONSEQUENTLY THIS GROUND IS ALSO DISMIUSSED. (C) ITA NO.3901/AHD/2007 ASST. YEAR 2001-02 (ASS ESSEES APPEAL) ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 17 37. THIS APPEAL IS BARRED BY 77 DAYS. AN APPLICATIO N FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT DATED 28.JUN 2010 FRO M ONE SHRI BHOGILAL S. RANPARA HAS BEEN FILED. THE CONTENTS OF THE AFFIDAV IT ARE AS UNDER :- I THE UNDERSIGNED BHOGILAL SUKHLAL RANPARA AGED 69 YEARS RESIDING AT SURAJ 8/14 GUNDAWADI RAJKOT AFFIRM AND STATE AS UNDER : 1. I WAS EMPLOYED AS AN ACCOUNTANT WITH M/S JAYDEEP JE WELLERS BAREJA IN THE C.Y.2007. I WAS ATTENDING TO THE ACCO UNTS WORK AS WELL AS ATTENDING TO CHARTERED ACCOUNTANT FOR INCOM E-TAX WORK. 2. IN THE YEAR 2007 I HAD COLLECTED THE APPEALS ALONG WITH CHALLANS TO BE SUBMITTED TO HON. INCOME-TAX APPELLA TE TRIBUNAL FOR THE ASSESSMENT YEARS 1999-00 TO 2004-05. 3. I HAD COLLECTED THE APPEALS AND CHALLANS AND KEPT I N THE DRAWER OF MY TABLE WHERE I WAS WORKING. 4. I LEFT THE JOB WITH EFFECT FROM 01.08.2007 AND I FO RGOT TO INFORM THE PARTNERS OF THE FIRM REGARDING ITAT APPEAL PAPE RS AND CHALLANS COLLECTED BY ME FROM CHARTERED ACCOUNTANT. 5. WHATEVER STATED ABOVE IS TRUE TO THE BEST OF MY KNO WLEDGE AND BELIEF. 38. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 39. GROUND NOS.1 & 2 ARE IDENTICAL AS RAISED IN THE CROSS OBJECTIONS BY THE ASSESSEE. WE HAVE ALREADY ASSIGNED OUR REASO NS THAT THESE GROUNDS HAVE NO FORCE THEREFORE FOR THIS APPEAL AS WELL T HESE TWO GROUNDS ARE HEREBY DISMISSED. 40. THE ONLY GROUND LEFT IS GROUND NO.3 WHICH IS REPRODUCED BELOW: (3) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION OF RS.2 54 629/- ON ACCOUNT OF CASH CREDIT S BEING THE ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 18 DIFFERENCE BETWEEN THE CLOSING AND THE OPENING BALA NCE AS PER THE ORIGINAL BALANCE SHEET AND WHICH IS NOT REFLECT ED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE FACTS SUBMISSIONS AND EVIDENCES FILED THE IMPUGNED ADDITION OF RS.2 54 6 29/- REQUIRES TO BE DELETED. 41. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES THE MAIN DISTINCTION NOTICED BY LD. CIT(A) IN RESPECT OF THE CASH CREDIT ADDITION FOR THE YEAR UNDER CONSIDERATION WAS THAT NO CONFIRMATION OR REL ATED EVIDENCES WERE FILED BEFORE THE AO AS IT WAS FILED IN RESPECT OF T HE OTHER YEARS. THE CONCERNED AO WAS PRESENT BEFORE THE LD. CIT(A) AND ON PERUSAL OF THE ASSESSMENT RECORD IT WAS INFORMED THAT THE ASSESSEE HAD NOT FILED ANY WRITTEN CONFIRMATION IN RESPECT OF THE DEPOSITS INT RODUCED DURING THE YEAR AMOUNTING TO RS.2 54 629/-. BECAUSE OF THESE REASON S LD. CIT(A) HAS CONFIRMED THE ADDITION AS IS EVIDENT FROM THE FOLLO WING OBSERVATIONS:- 3.3 IN ORDER TO DECIDE THE ISSUE I HAVE CAREFULLY CONSIDERED THE VARIOUS ARGUMENTS PUT UP BY THE LD. AR IN THIS REGARD AND HAVE ALSO P ERUSED THE ASSESSMENT ORDER. WHILE THE AO HAS HELD ALL THE DEPOSITS INTRODUCED DURING THE YEAR AGGREGATING TO RS.2 54 629/- TO BE UNEXPLAINED ON THE GROUND THAT THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE IN THE FORM OF THEIR NAMES COMPLETE A DDRESSES PANOS. AND COPIES OF THEIR CONTRA ACCOUNTS ETC. THE LD. AR ON THE OTHER HAND EMPHATICALLY ARGUED THAT WRITTEN CONFIRMATIONS IN RESPECT OF ALL THE DEPOSIT S WERE DULY SUBMITTED BEFORE THE LD. AR THROUGH THEIR LETTERS DATED 23/8/06 10/11/2006 AND 16/12/2006 AND THE OBSERVATIONS OF THE AO IN THIS REGARD ARE THEREFORE FACTUALLY INCORRECT. IN ORDER TO VERIFY SUCH CONTENTION OF THE LD. AR THE PRESENT A O MS. LATHA V. KUMAR WAS REQUESTED TO CONFIRM WHETHER ANY CONFIRMATIONS OF T HE DEPOSITS INTRODUCED DURING THE CURRENT ASSESSMENT YEAR WERE FILED OR NOT. ON PERUS AL OF THE RECORDS SHE HAS CONFIRMED THAT THE CONTENTION OF THE LD. AR RAISED IN THIS REGARD IS NOT CORRECT BECAUSE THE APPELLANT DID NOT FILE ANY WRITTEN CONFIRMATION S OF THE DEPOSITORS TOTALING TO RS.2 54 629/- INTRODUCED DURING THE YEAR. SHE HAS F URTHER CONFIRMED THAT THESE DEPOSITORS WERE CALLED BY THE THEN AO IN PERSON BUT AGAIN THEY DID NOT FILE ANY EVIDENCE IN THIS REGARD. IN THIS BACKGROUND OF THE MATTER WHERE THE APPELLA NT HAS NOT BEEN ABLE TO PROVE THE GENUINENESS AND CREDITWO RTHINESS OF THE DEPOSITS THE PRIMARY ONUS CASTED ON THE APPELLANT IN TERMS OF SE CTION 68 OF THE ACT CANNOT BE SAID TO BE DULY DISCHARGED. IT IS THEREFORE HELD T HAT THE APPELLANT WAS NOT ABLE TO DISCHARGE THE PRIMARY ONUS TO PROVE THE GENUINENESS OF THESE DEPOSITS AND ADDITION OF RS.2 54 629/- MADE ON THIS ACCOUNT IS THEREFORE LIABLE TO BE CONFIRMED. THE ALTERNATIVE CONTENTION OF THE AR THAT NO ADDITI ON AT THE FIRST PLACE COULD BE MADE AS THESE ARE NOT APPEARING IN THEIR BOOKS OF A CCOUNTS IS NOT TENABLE BECAUSE ALL ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 19 THESE DEPOSITS ARE APPEARING IN THE ORIGINAL BALANC E SHEET WHICH WAS PREPARED ON THE BASIS OF ENTRIES REFLECTED IN THEIR REGULAR BOOKS O F ACCOUNTS. EVEN BEFORE US THE ASSESSEE HAS NOT IMPROVED ITS C ASE AND SINCE THE REVENUE AUTHORITIES HAVE GIVEN A FINDING THAT THE R EQUISITE CONFIRMATIONS ETC. WERE NOT FURNISHED AS PRESCRIBED U/S 68 THERE FORE WE FIND NO FALLACY IN THE ORDER OF LD. CIT(A). THIS GROUND OF THE ASSE SSEE IS DISMISSED AND THE CROSS OBJECTION IS DISMISSED. 42. IN THE RESULT - ITA NO.3525/AHD/2007 ASST. YEAR 1999-2000 (REVENUE S APPEAL) IS DISMISSED. ITA NO.3526/AHD/2007 ASST. YEAR 2000-2001 (REVENUE S APPEAL) IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3527/AHD/2007 ASST. YEAR 2002-03 (REVENUES APPEAL) IS DISMISSED. ITA NO.3528/AHD/2007 ASST. YEAR 2003-04 (REVENUES APPEAL) IS DISMISSED ITA NO.3529/AHD/2007 ASST. YEAR 2004-05 (REVENUES APPEAL) IS DISMISSED ITA NO.3901/AHD/2007 ASST. YEAR 2001-2002 (ASSESSEE S APPEAL) IS DISMISSED. ALL THE FOUR CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 11.3.11. SD/- SD/- (G.D. AGRAWAL) (MUKUL KR. SHRAWAT) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD DATED : 11/3/11 MAHATA/- ITA NOS.3525 3526/AHD/2007 & OTHERS AND CO NOS.350 TO 353/AHD/2007 ASST. YEARS 1999-2000 TO 2004-2005 20 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 7/3/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 8/3/ 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..