ITO, New Delhi v. Shri Sanjiv Goyal, New Delhi

ITA 4764/DEL/2012 | 2007-2008
Pronouncement Date: 07-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 476420114 RSA 2012
Assessee PAN ACTPG0126C
Bench Delhi
Appeal Number ITA 4764/DEL/2012
Duration Of Justice 2 year(s) 2 month(s)
Appellant ITO, New Delhi
Respondent Shri Sanjiv Goyal, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 07-11-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 07-11-2014
Date Of Final Hearing 22-09-2014
Next Hearing Date 22-09-2014
Assessment Year 2007-2008
Appeal Filed On 06-09-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI I. C. SUDHIR JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T.A. NO. 4764/DEL/2012 ASSESSMENT YEAR : 2007-08 ITO WARD 46(4) VS. SHRI SANJIV GOYAL NEW DELHI D-209 KRISHNA PARK FLAT NO.06 MAIN DEVLI ROAD NEW DELHI. GIR / PAN:ACTPG0126C C.O. NO.61/DEL/2012 (ASSESSMENT YEAR 2007-08) SHRI SANJIV GOYAL VS. ITO WARD 46(4) D-209 KRISHNA PARK NEW DELHI FLAT NO.06 MAIN DEVLI ROAD NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI BRRKUMAR SR. DR RESPONDENT BY : SMT SHIKHA GOYAL FCA ORDER PER T.S. KAPOOR AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 11.06.2012. THE ONLY ISSUE RAISED BY THE REVE NUE IS THE ACTION OF LD. CIT(A) BY WHICH HE HAD ALLOWED A RELIEF OF RS. 11 5 5 000/- WHICH THE A.O. HAD ADDED BACK AS UNEXPLAINED CASH DEPOSIT U/S 68 O F THE ACT. THE ASSESSEE HAS ALSO FILED C.O. TO THE APPEAL FILED BY THE REVE NUE WHEREIN HE HAD TAKEN 7 GROUNDS OF CROSS OBJECTION. HOWEVER THE CRUX OF G RIEVANCE OF THE ASSESSEE ITA NO.4764/DEL/12 C.O.61/DEL/2012 2 IS THE ACTION OF LD. CIT(A) BY WHICH HE HAD SUSTAIN ED THE ADDITION OF RS.6 10 000/- OUT OF TOTAL ADDITION OFRS.17 65 000/ - MADE BY THE A.O. U/S 68 OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME UNDER THE HEAD SALARY AND THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. DURING THE ASSESSMENT PROCEEDINGS THE A .O. OBSERVED THAT THE ASSESSEE HAD MADE INVESTMENT IN MUTUAL FUNDS AND FO R MAKING INVESTMENTS; THE ASSESSEE HAD DEPOSITED CASH IN HIS BANK ACCOUNT . THEREFORE THE ASSESSEE WAS SHOW CAUSED TO SUBSTANTIATE THE SOURCE OF CASH DEPOSITED. IN REPLY TO THE QUERY THE ASSESSEE SUBMITTED A CASH FLOW STATEMENT WHEREIN HE TOOK OPENING BALANCE OF CASH IN HAND OF RS.4 52 400/- AND CLAIME D TO HAVE RECEIVED RS.2.56 LACS ON ACCOUNT OF SALE OF OLD ARTICLES RS .3.50 LACS AS GIFT FROM HIS MOTHER RS.1.65 LACS AS GIFT RECEIVED ON KUAN PUJA AND RS.1.40 LACS A GIFT RECEIVED ON WEDDING ANNIVERSARY AND FURTHER A WITHD RAWAL FROM BANK AS SOURCE OF DEPOSITS. IN SUPPORT THE LD. A.R. OF TH E ASSESSEE FILED A COPY OF PARTITION DEED WITH HIS FATHER WHEREIN HE CLAIMED T HAT HE HAD RECEIVED RS.2.50 LACS ON ACCOUNT OF FAMILY SETTLEMENT AND FU RTHER RECEIVED FURNITURE ARTICLES PAINTINGS ETC WORTH RS.2.75 LACS AS PART OF FAMILY SETTLEMENT. THE ASSESSEE ALSO FILED AFFIDAVITS WHEREIN HE CLAIMED T HAT CASH RECEIVED ON ACCOUNT OF SALE OF CERTAIN GOODS RECEIVED FROM HIS FATHER AMOUNTING TO RS.2.56 LACS WAS DEPOSITED IN CASH ON VARIOUS DATES . SIMILARLY THE ASSESSEE HAD FILED A DECLARATION OF GIFT SWORN IN BY ASSESSE ES MOTHER WHEREIN SHE CONFIRMED TO HAVE MADE A GIFT OF RS.3.50 LACS TO HI S SON. SIMILARLY THE ASSESSEE ALSO FILED AFFIDAVIT IN SUPPORT OF HIS CLA IM FOR RECEIPT OF GIFT ON ACCOUNT OF KUAN PUJA AND MARRIAGE ANNIVERSARY. THE ASSESSEE ALSO AGREED TO ITA NO.4764/DEL/12 C.O.61/DEL/2012 3 OFFER AN AMOUNT OF RS.6.10 LACS FOR TAXATION STATIN G THAT TO BUY PEACE OF MIND HE IS OFFERING THE SAME. HOWEVER THE A.O. W AS NOT SATISFIED AND HE DISALLOW THE CLAIM OF THE ASSESSEE AND MADE AN ADD ITION OF RS.17.65 LACS AS INCOME FROM OTHER SOURCES BY HOLDING AS UNDER: THE SUBMISSIONS WERE MADE BY AR'S LETTER DATED 23. 11.2009 AS FOLLOWS AND STATED THAT:- A. THE OLD ARTICLES AND OTHER USED ITEMS RECEIVED O N PARTITION WERE SOLD ON AUCTION ON AS IS WHERE IS BASIS. THE NAMES OF FEW KABARIS 1 SCRAP DEALERS WERE PROVIDED WITHOUT ANY ADDRESSES. B. THE MOTHER OF THE ASSESSEE WAS NOT ASSESSED TO T AX AND DID NOT FILE HER INCOME TAX RETURN EVER. IT WAS STATED THAT SHE HAD ACCUMULATED QUITE A SUM DURING HER LIFE TIME COMPRISED HER STRE EDHAN AND GIFTS RECEIVED ON VARIOUS OCCASIONS AFTER HER MARRIAGE FR OM RELATIVES AND FRIENDS. C) THE KUAN PUJAN CEREMONY WAS CELEBRATED IN ELABOR ATE FASHION AS IT HAS RELIGIOUS CUSTOMARY AND SOCIAL IMPORTANC E AND RECOGNITION ON 7-4-2006 AT RADHA KRISHNA TEMPLE KAILASH COLONY DELHI. THE- ASSESSEE RECEIVED GIFTS FROM HIS RELATIVES AND FRIE NDS AS IT IS COMMON PRACTICE AMONGST VAISH AGGARWAL THE COMMUNITY TO W HICH ASSESSEE BELONGS. AS EVIDENCE THE ASSESSEE SUBMITTED THE COP Y OF INVITATION LETTER. NO OTHER EVIDENCE WAS PROVIDED. D. THE ASSESSEE CELEBRATED HIS WEDDING ANNIVERSARY ON 15-6-2009 AS IT WAS ANNIVERSARY AFTER THE BIRTH OF THE SON THE A SSESSEE INVITED GUESTS INCLUDING RELATIVES AND FRIENDS. THE ASSESSEE RECEI VED GIFTS IN CASH AND KIND FROM RELATIVES AND FRIENDS. THE ASSESSEE D OES NOT REMEMBER THE PRECISE DETAILS OF CASH GIFTS RECEIVED FROM GUE STS AS BEING SALARIED EMPLOYEE; HE DID NOT MAINTAIN THE RECORD OF SUCH TR ANSACTIONS. E. THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUN TS HENCE STATEMENT OF AFFAIRS COULD NOT BE PREPARED. THE DET AILS OF ASSETS WERE PROVIDED. F. AN AFFIDAVIT DATED 10-11-2009 WAS SUBMITTED BY A SSESSEE STATING THAT HE DEPOSITED AMOUNT OF RS 2 02 4001- IN SAVING BANK ACCOUNTS WITH ICICI BANK GK-I AND IOB GK-II N DELHI ON VAR IOUS DATES OUT OF HIS PAST SAVINGS AND WITHDRAWALS FROM BANK. 11. THE ASSESSEE IN THE NEXT HEARING ON 12-12-2009 ATTENDED THE PROCEEDINGS AND VIDE LETTER DATED 10-12-2009 OFFERE D THE FOLLOWING ITA NO.4764/DEL/12 C.O.61/DEL/2012 4 AMOUNTS FOR TAXATION (RELEVANT EXTRACT OF THE LETTE R DATED 10-12-2009 IS REPRODUCED BELOW) :- A. R 2 50.000/- RECEIVED BY THE ASSESSEE FROM FAMIL Y PARTITION VIDE PARTITION DEED DATED 24TH MARCH 2006. B. RS 2 56 000/- RECEIVED BY ASSESSEE FROM DISPOSAL OF THE ARTICLES RECEIVED IN PARTITION DURING 1 ST AND 2 ND APRIL 2006. C. RS 1 04 000/- RECEIVED AS CASH GIFTS ON THE OCCA SION OF THE WEDDING E ANNIVERSARY OF THE ASSESSEE ON 15TH JUNE 2006. D. IT WAS STATED THAT ASSESSEE OFFERED ABOVE AMOUNT S FOR AN AMICABLE END TO THE ASSESSMENT PROCEEDINGS AS ASSES SEE IS NOT IN A POSITION TO PROCURE SUFFICIENT EVIDENCE TO SUPPORT THE ABOVE MENTIONED AMOUNTS. 12. THE ASSESSEE THEREFORE OFFERED A TOTAL AMOUNT O F RS 6 10 000/- FOR TAXATION ON HIS OWN STATING THAT THERE WAS NO S UFFICIENT EVIDENCE TO PROVE THE GENUINENESS OF CLAIM OF THE ASSESSEE. BUT IN RESPECT OF OTHER CLAIMS WHICH WERE NOT OFFERED FOR TAXATION THE ASSE SSEE WAS NOT HAVING ANY EVIDENCE TO ESTABLISH THE AUTHENTICITY O F SAME. BUT HOW ASSESSEE PICK AND CHOOSE THESE THREE AMOUNTS IS BEY OND ANYBODY'S UNDERSTANDING. THE REMAINING AMOUNTS I) GIFT OF RS 3 50 000/- FROM MOTHER II) RS 1 65 000/- AS GIFTS RECEIVED ON KUAN PUJAN III) HOW THE AMOUNT OF RS 4 52 4001- ACCUMULATED AS CASH IN HAND WAS NOT EXPLAINED BY THE ASSESSEE. BUT ASSESSEE FAIL TO OFF ER THESE AMOUNTS. THE REASONS ARE BEST KNOWN TO THE ASSESSEE AND WHAT WAS CRITERIA FOR OFFERING ABOVE AMOUNTS AND NOT OFFERING REMAINING A MOUNTS AS BOTH WERE ON IDENTICAL FOOTING. ACCORDINGLY A LETTER NO ITO WARD 46(4)/2009-10/334 DATED 10-12- 2009 WAS ISSUED TO ASSESSEE ASKING TO :- A. TO PRODUCE THE MOTHER OF THE ASSESSEE FROM WHO G IFT OF RS 3 50 000/- IS CLAIM D TO BE RECEIVED TO VERIFY THE GENUINENESS OF THE GIFT TRANSACTION. B. TO PRODUCE THE DETAILS OF THE EXPENDITURE INCURR ED ON THE CEREMONY WITH EVIDENCE AND SOURCES OF WITHDRAWALS O F EXPENSES INCURRED C. SOURCE OF ACCUMULATION OF CASH IN HAND IS NOT EX PLAINED PLEASE PROVIDE THE SOURCES FOR THE SAME WITH RELEVANT DOCU MENTARY EVIDENCE. 12.1 THE PROCEEDINGS WERE ADJOURNED FOR 15-12-2009 FOR SUBMISSION OF ABOVE. ON THIS DATE AN ADJOURNMENT WAS SOUGHT VI DE AR'S LETTER DATED 15-12-2009 STATING THE MOTHER OF THE ASSESSEE HAS GONE HER ITA NO.4764/DEL/12 C.O.61/DEL/2012 5 NATIVE PLACE TO ATTEND MARRIAGE IN THE CLOSE RELATI ONS AND IS WOULD BE BACK BY WEEKEND. PROCEEDINGS WERE REQUESTED TO BE A DJOURNED FOR A WEEK. ON AR'S REQUEST THE PROCEEDINGS WERE ADJOURNE D FOR 21-12- 2009 WITH REQUEST TO COMPLY ON ALL THE POINTS AS AS KED FOR. IT WAS ALSO COMMUNICATED THAT IN CASE OF NON COMPLIANCE EX-PART E ASSESSMENT WOULD BE COMPLETED. DESPITE THIS NONE ATTENDED THE PROCEEDINGS ON 21-12-2009. 13. STILL BEFORE COMPLETING THE ASSESSMENT PROCEEDI NGS THE ASSESSEE WAS PROVIDED ONE MORE OPPORTUNITY BY ISSUING LETTER DATED 22-12- 2009 NO 344 ASKING THE ASSESSEE TO EXPLAIN AS TO WH Y THE CASH DEPOSITS APPEARING IN THE BANK ACCOUNTS SHOULD NOT BE TREATED AS UNEXPLAINED DEPOSITS AND ASSESSED AS YOUR INCOME FR OM UNDISCLOSED SOURCES AND DECIDING THE OTHER ISSUES INVOLVED ON T HE BASIS OF MATERIAL AVAILABLE ON RECORDS. THE PROCEEDINGS WERE FIXED FOR 29-12- 2009. 14. THE ASSESSEE WAS HAVING SAVINGS BANK ACCOUNT NU MBER 51764 WITH IOB GK-II BRANCH AND SB A/C NO 002901056265 W ITH ICICI BANK GK-I BRANCH. THESE BANK ACCOUNTS SHOWS TOTAL C ASH DEPOSITS AS FOLLOWS :- S NO DATE OF DEPOSIT AMOUNT OF CASH DEPOSIT IN ICI CI AMOUNT OF CASH DEPOSIT IN BANK ACCOUNT (IN RS) LOB ACCOUNT (IN RS) - 1 3-4-6 50 000 2 3-4-6 15 000 3 4-4-6 1 00 000 4 4-4-6 50 000 5 5-4-06 50 000 6 05-04-06 50 000 7 06-04-06 50 000 8. 06-04-06 1 00 000 9 07-04-06 1 00 000 10 07-04-06 1 00 000 -- 11 08-04-06 1 00 000 12 08-04-06 1 50 000 13 18-04-06 50 000 14 17-6-06 1 00 000 15 19-06-06 1 00 000 ITA NO.4764/DEL/12 C.O.61/DEL/2012 6 16 21-06-06 1 00 000 17 30-06-06 50 000 18 07-03-07 3 00 000 19 15-03-07 50 000 20 22-03-07 1 00 000 TOTAL 7 50 000 10 15 000 15_ THE TOTAL CASH DEPOSITS APPEARING IN THE BANK A CCOUNT OF THE ASSESSEE ARE AMOUNTING TO RS 17 65 000/-_ AS EVIDEN T ABOVE THE ASSESSEE ON NUMBER OF OCCASIONS AND SPECIFICALLY WA S ASKED TO PROVIDE THE NATURE AND SOURCE OF THESE CASH DEPOSI TS. THE SUBMISSIONS PROVIDED BY THE ASSESSEE WERE NOT CONCL USIVE AND WAS NOT FOUND TO BE SATISFACTORY DUE TO FOLLOWING REASONS- I. THE ASSESSEE INITIALLY SUBMITTED VIDE LETTER DA TED 26-08-2009 THAT THE ASSESSEE BEING ONLY SON RECEIVED CASH AM OUNTS AS GIFT FROM HIS FATHER AMOUNTING TO RS 12 LACS OVER A PERIOD OF TIME. II. LATER ON THE ASSESSEE SUBMITTED UNDERTAKING IN THE FORM OF AFFIDAVITS AND DECLARATION ABOUT THE INFLOW OF CASH IN TO HIS HANDS. NONE OF THE AFFIDAVITS/DECLARATION ANYWHERE MENTION S EVEN A SINGLE PENNY RECEIVED FROM HIS FATHER AS GIFT. THERE WAS C OMPLETE CONTRADICTION TO WHAT THE ASSESSEE HAS STATED EARLI ER. III. FURTHER ALL THE DETAILS SUBMITTED IN THE AFFI DAVITS / DECLARATIONS WAS NOT SUPPORTED EVEN WITH SINGLE SUPPORTIVE DOCUM ENTARY EVIDENCE WHICH COULD PROVE THE GENUINENESS OF THE CLAIM MADE BY THE ASSESSEE. EXCEPT AN INVITATION CARD FOR KUAN PUJAN CEREMONY W HICH IS ALSO PRIMA FACIE APPEAR TO BE GENERATED RECENTLY ON A CO MPUTER WITH THE SOFTWARE. AS IT WAS WITHOUT ANY ENVELOPE OR ORIGINA L OF WHICH WAS NOT PRODUCED IT WAS ONLY A PHOTOCOPY. V ON NUMBER OF OCCASIONS THE ASSESSEE WAS REQUESTED TO PROVIDE THE DETAILS OF THE PERSONS FROM WHOM AMOUNTS WERE RECEI VED AS GIFTS OR THE PERSONS TO WHOM ARTICLES CLAIMED TO BE SOLD. TH E ASSESSEE DURING THE WHOLE OF THE ASSESSMENT PROCEEDINGS DID NOT PRO VIDE ANY COMPLETE THIRD PARTY DETAILS FROM WHOM CROSS VERIFICATION CO ULD BE DONE. IT WAS INTENTIONAL ON THE PART OF THE ASSESSEE TO PROVIDE UNCOMPLETE INFORMATION. V. THE ASSESSEE OFFERED TOTAL AMOUNT OF RS 6 10 00 0/- FOR TAXATION IN THE ABSENCE OF ANY EVIDENCE. THIS TOTAL REPRESEN TS RS 2 50 000/- ITA NO.4764/DEL/12 C.O.61/DEL/2012 7 CLAIMED TO BE RECEIVED FROM THE FAMILY PARTITION DE ED DATED 24-3- 2006 RS 2 56 000/- CLAIMED TO BE RECEIVED FROM DIS POSAL OF ARTICLES RECEIVED DURING PARTITION AND RS 1 04 000/- CLAIMED TO BE RECEIVED AS CASH GIFTS ON THE OCCASION OF WEDDING ANNIVERSARY. BY OFFERING THESE AMOUNTS THE ASSESSEE HIMSELF ADMITS THAT WHATEVER H AS BEEN STATED BY WAY OF AFFIDAVITS WAS NOT TRUE AND WAS NOT BACKED B Y PROPER EVIDENCE. WHAT CRITERIA WAS TAKEN FOR OFFERING THESE AMOUNTS AND NOT OFFERING OTHERS WHILE POSITION AND STATUS OF THE ALL THESE A FFIDAVITS 1 DECLARATION WERE IDENTICAL. THIS CLEARLY ESTABLISHE D THE FACT WHATEVER HAS BEEN STATED IN OTHER AFFIDAVITS / DECLARATIONS WHICH ARE NOT OFFERED FOR TAX CANNOT BE FOUND TO TRUE AND AUTHEN TICATED. VI. EVEN THE ASSESSEE FAILED TO PRODUCE HIS MOTHER FROM WHOM GIFT OF RS 3 50 0001- IS CLAIMED TO BE RECEIVED. NOT TO MENTION THE OTHERS. IT WAS MENTIONED IN THE AFFIDAVIT DATED 3-4-2006 TH AT SHE HAS MADE GIFT TO AVOID ANY DISPUTE AT ANY FUTURE DATE. THE A SSESSEE BEING ONLY SON BELIES THE CLAIM OF ANY DISPUTE AT FUTURE DATE. IN THE CASE OF CASH GIFTS MERE IDENTIFICATION OF THE DONOR AND SHOWING MOVEMENT OF AMOUNT EVEN THROUGH BANK CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. IN THE INSTANT THE MOVEMEN T OF AMOUNT IS BY WAY OF CASH WHICH PUT ADDITIONAL BURDEN ON THE ASSE SSEE TO ESTABLISH THE TRUTHFULNESS OF HIS CLAIM. THE ONUS LIES ON THE DONEE NOT ONLY TO ESTABLISH THE IDENTITY OF THE DONOR BUT ALSO THE DO NOR'S CAPACITY TO MAKE SUCH A GIFT. WHERE THERE WAS NOTHING ON RECORD TO SHOW AS TO I) WHAT WAS THE FINANCIAL CAPACITY OF THE DONORS (II) WHAT WAS THE CREDITWORTHINESS OF THE DONORS (III) WHAT WAS THE KIND OF RELATIONSHIP THE DONOR HAD WITH THE DONEE-ASSESSEE (IV) WHAT AR E THE SOURCES OF THE FUNDS GIFTED TO THE ASSESSEE AND (V) WHETHER THE DONORS HAD THE CAPACIT Y OF GIVING LARGE AMOUNTS OF GIFT TO THE ASSESSEE. THE HONORABLE DELH I HIGH COURT IN THE CASE OF CIT V ANIL KUMAR (2008) 167 TAXMAN 143 (DELHI)HAS UPHELD THE ADDITION MADE ON ABOVE BASIS AND ESPECIA LLY WHEN THE DONEE IS NOT PRODUCED BEFORE THE ASSESSING OFFICER DESPITE BEING ASKED TO DO SO. ALL THESE FACTS ARE APPLICABLE IN THE INS TANT CASE AND HENCE GIFT TRANSACTION IS NOT FOUND TO BE GENUINE. VII) REGARDING CASH GIFTS OF RS 1 65 000/- CLAIMED TO BE RECEIVED ON THE OCCASION OF KUAN PUJAN CEREMONY THE ASSESSEE FA ILED TO OFFER ANY EVIDENCE WHICH COULD PROVE THE CEREMONY WAS ACTUALL Y HELD EXCEPT THE INVITATION CARD WHICH IS NOT SUFFICIENT. THE ASSES SEE WAS PROVIDED ITA NO.4764/DEL/12 C.O.61/DEL/2012 8 WITH MORE THAN SUFFICIENT OPPORTUNITIES TO PROVIDE THE EVIDENCE BUT FAILED TO DO SO. HENCE THE CLAIM OF THE ASSESSEE A BOUT THESE CASH GIFTS IS NOT ACCEPTED. VIII. THE PARTITION DEED DATED 24-03-2006 AT PAGE 2 SECOND LINE FROM THE TOP SHOWS THAT ASSESSEE'S FATHER RECEIVED A SUM OF RS 2 50 000/- ON THE CLOSURE OF BUSINESS AS PROCEEDS OF FURNITURE S TOCK IN TRADE AND GOODWILL. IN THE PARAGRAPH (A) ON SAME PAGE FIRST T WO LINES STATES THAT 'THE FIRST PARTY HAS AGREED TO GIVE A SUM OF RS 2 5 0 000/- OUT OF I THE TOTAL SUM OF RS 3 50 000/-WHICH HE RECEIVED FROM CL OSURE OF BUSINESS' . HERE IT IS CLAIMED THAT AMOUNT WAS RECEIVED AS RS 3 50 000/- AND ON THE SAME PAGE THE AMOUNT IS NOTED AS RS 2 50 000/-. THE ASSESSEE FAILED TO OFFER ANY EXPLANATION FOR THIS DIFFERENCE . AS ALL THESE FIGURES ARE AFTER THOUGHT AND FIGURES ARE QUOTED WITHOUT AN Y BASIS THE CONTENTS OF THE PARTITION DEED CANNOT FOUND TO BE T RUE AND CORRECT. FURTHER IT IS ALSO STATED THAT THE ASSESSEE'S FATHE R DUE TO HIS OLD AGE RELATED AILMENTS CLOSED DOWN THE BUSINESS IN 1996. HOW AFTER A PERIOD OF 15 YEARS THE STOCK-IN-TRADE GOODWILL FU RNITURE ETC WAS SOLD AT SUCH A SUM. AS THE HE CLAIMED TO BE RUNNING THE BUSINESS OF WHOLE SALE OF SPICES AND OTHER CONDIMENTS HOW THE STOCK I N TRADE WAS STILL OF SUCH QUALITY THAT COULD FETCH SUCH A GOOD RETURNS WAS NOT EXPLAINED. HOW TH E VALUATION OF GOODWILL FURNITURE STOCK IN TRADE ETC WAS DONE W HERE IT WAS RECORDED WHERE WERE THE BOOKS OF THE ACCOUNTS ETC. WAS NOT EXPLAINED BY THE ASSESSEE. HENCE THE STORY GIVEN BY THE ASSES SEE CANNOT BE ACCEPTED TO TRUE. IX. THE SUBMISSION OF AFFIDAVITS I DECLARATION IS CLEARLY AN AFTERTHOUGHT AND MANIPULATION ON THE PART OF THE AS SESSEE IN COLLUSION WITH THE NOTARY PEOPLE WHO HAD ISSUED THE STAMP PAP ERS THIS WOULD BE ESTABLISHED FROM THE FOLLOWING:- S STAMP PAPER DATE OF SERIAL NO IN DATE O F ISSUED BY ASSESSEE/ NO SERIES AND ISSUE BY THE NOTARY MOTH ER NUMBER THE NOTARY REGISTER 1 30AA 464041 16-06-06 12356 16-6-06 AFFIDAVIT F OR MARRIAGE ANNIVERSARY ON WHICH CASH GIFT RS 1.04 LACS CLAIMED TO RECEIVED. 2 30AA 464043 03-04-06 6742 3-4-05 AFFIDAVIT SAL E OF ARTICLES FOR ITA NO.4764/DEL/12 C.O.61/DEL/2012 9 RS 2.56 LACS 3 30AA 464189 08-04-06 8245 08-04-06 AFFIDAVIT KUAN PUJAN CEREMONY CASH GIFT R~5 LACS. 4 30AA 464190 03-04-06 8842 03-04-06 (AFFIDAVIT FOR GIN FROM MOTHER RS 3.5 LACS) 5 H 755069 I03-04-06 41263 03-04-06 DECLARATION -OF GIFT BY MOTHER SMT MANORMA GOYAL. 6 H 755067 24-03-06 35162 24-03-06 PARTITION D EED B. STAMP PAPER NO 30AA 464043 DATED 03-04-2006 IS ENTERED AT SI NO 6742 IN THE NOTARY REGISTER AND STAMP PAPER N O OF SAME SERIES 30M 464190 (GAP OF 147 BETWEEN THEM) DATED 03-04-20 06 ( BOTH OF SAME DATE) IS ENTERED AT SI NO 8842. THIS MEANS THE RE WERE 2100 (8842 - 6742) ENTRIES BETWEEN THEM ON THE SAME DATE . IT IS NOT POSSIBLE BY ANY STRETCH OF IMAGINATION. THE ONLY INFERENCE I S THAT THESE ARE ISSUED RECENTLY ON A BACK DATE AND ENTRIES ARE SHOW N WHICH WERE LEFT BLANK. TWO STAMP PAPER TAKEN ON SAME DATE WOULD BEA R CONTINUOUS SERIAL NUMBER IN THE REGISTER AS WELL AS STAMP PAPE R SERIAL NUMBER. WHICH IS NOT THE CASE. C. STAMP PAPER AT SI NO 5 AND 6 OF SAME SERIES WITH ONLY ONE NUMBER BETWEEN THEM IS ENTERED AT REGISTER OF NOTAR Y AT SERIAL NO OF 35162 AND OTHER AT 41263 WITH 6101 ENTRIES BETWEEN THEM. THIS IS NOT POSSIBLE WITHOUT MANIPULATION. D. STAMP PAPER AT SI NO 1 (30AA 464041) WHICH HAPPE N TO BE EARLIEST IN THE SERIES BUT IS ISSUED AND ENTERED AL MOST TWO AND A HALF MONTHS FROM THE STAMP PAPER NUMBERS (30AA 464043 4 64189 AND 464190) AFTER THE EARLIER ONE. THIS SHOULD HAVE BEE N OTHER WAY ROUND. E. EVEN THE STAMP PAPERS WITH CONSECUTIVE SERIAL NU MBER (30AA 464189 AND 30AA 464190) ARE ISSUED ON DIFFERENT DAT ES WITH A TIME GAP OF 5 DAYS AND ENTERED AT NOTARY REGISTER WITH A GAP OF 597 ENTRIES BETWEEN THEM. F. THE ABOVE FACTS CLEARLY ESTABLISH THE MANIPULATI ON ON THE PART OF THE ASSESSEE AND BEYOND DOUBT PROVES THAT IT WAS AN AFTERTHOUGHT. THE AFFIDAVITS / DECLARATIONS ARE NOT MADE ON THE D ATES AS MENTIONED IN THEM BUT ONLY RECENTLY WHEN THE ASSESSEE WAS ASK ED TO PROVIDE THE SOURCE AND QUERIES WERE RAISED TO PROVE THE SOURCE AND NATURE OF CASH DEPOSITS. X: ' AS FAR AS CASH FLOW STATEMENT OF THE ASSESSEE IS CONCERNED IT IS ALSO NOT ACCEPTABLE DUE TO FOLLOWING REASONS- ITA NO.4764/DEL/12 C.O.61/DEL/2012 10 A. IT SHOWS OPENING CASH IN HAND AT RS 4 52 400/- T HE SOURCE AND HOW THIS WAS ACCUMULATED WAS NOT EXPLAINED DESPITE BEING GIVEN NUMEREOUS OPPORTUNITIES. B. THERE IS CASH DEPOSIT OF RS 3 00 000/- ON 07-03 -2007 IN ICICI BANK ACCOUNT WHICH DID NOT FIND MENTION IN THE CASH FLOW STATEMENT. HOW AND WHY THIS AMOUNT WAS IGNORED IS NOT EXPLAINE D BY THE ASSESSEE. IF THIS DEPOSIT IS CONSIDERED THE CASH IN HAND ON 22-03-2007 TURNS NEGATIVE AND SUBSEQUENT ENTRIES ARE ALSO INCR EASE NEGATIVE AMOUNT FURTHER. C. THE BANK STATEMENT OF ICICI BANK SUBMITTED BY T HE ASSESSEE VIDE LETTER DATED 23-11-2009 WAS FUDGED AND FORGED AS ENTRY OF RS 3 LAC OF CASH DEPOSIT ON 7-03-2007 IS COMPLETELY MISS ING AND ON SAME DATE A WITHDRAWAL ENTRY OF RS 337/- IS SHOWN THE NA RRATION OF WHICH IS PROVIDED AS TRFR TO YOURSELF. WHILE THE BANK STATEM ENT OBTAINED FROM THE ICICI BANK BY ISSUING SUMMON U/S 131 SHOWS FOLLOWING TRANSACTION ON 07-03-2007 :- DATE NARRATION WITHDRAWALS DEPOSITS BALANCE 07-MAR BY CASH 3 00 000 3 79 790.6 07-MAR TRFR TO YO 830964 3 00 337 79 363.62 07-MAR HUTCH AC 830960 1 445 77 918.62 HOWEVER COPY OF SAID ACCOUNT SUBMITTED BY THE ASSES SEE SHOWS THE FOLLOWING ENTRIES ON 07-MAR WHICH IS REPRODUCED BEL OW:- DATE PARTICULARS CHQ NO WITHDRAWALS DEPOSITS B ALANCE 07-MAR TRFR TO YOUR SELF 830964 337.00 79 363.62 CR 07-MAR HUTCH AC 830960 1 445 77 918.62CR I D. THE ASSESSEE ALSO MADE CORRECTION IN THE TOTALIN G THE STATEMENT OF ICIC BANK WITHDRAWALS AND DEPOSIT AMOUNT WHILE P ROVIDING THE COPIES OF THE BANK STATEMENTS. E. WHEN THE ASSESSEE HIMSELF OFFERED AN AMOUNT OF R S 6 10 000/- FOR TAXATION THE WHOLE OF CASH FLOW STATEMENT BECOM ES OF NO RELEVANCE CAN NOT BE ACCEPTED AS TRUE AND CORRECT. F. THE ASSESSEE CLAIMED TO CELEBRATE TWO OCCASIONS ON ELABORATE FASHION (KUAN PUJAN AND MARRIAGE ANNIVERSARY) WHICH RESULTED IN TOTAL CASH GIFTS OF RS 2 69 000/- DURING THE YEAR B UT CASH FLOW STATEMENT NOWHERE SHOWS AMOUNTS USED FOR ORGANIZING THESE ITA NO.4764/DEL/12 C.O.61/DEL/2012 11 CEREMONIES. HIS HOUSE HOLD WITHDRAWALS WERE IN THE RANGE OF RS 8000/- TO RS 9000/- DURING THE PERIOD APRIL 2006 T O AUGUST 2006 IN WHICH THESE CEREMONIES CLAIMED TO BE HELD (ONE ON 7 TH APRIL 2006 AND OTHER ON 15TH JUNE 2006). IT AS IF THE FRIENDS AND RELATIVE CAME AND SHOWERED CASH GIFTS ON THE ASSESSEE AND THEY WE NT BACK WITHOUT BURDENING THE ASSESSEE. THE ASSESSEE SUBMITTED THAT EXPENSES RELATED TO KUAN PUJAN WERE INCURRED BY IN-LAWS STILL THERE SO MANY EXPENSES WHICH THE ASSESSEE HAD TO INCUR ON HIS OWN. XI. BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS PROVIDED WITH ONE MORE OPPORTUNITY BY ISSUING LETTE R DATED 22-12- 2009 FIXING THE PROCEEDINGS FOR 29-12- 2009 TO EXPL AIN AS TO WHY THE CASH DEPOSITS SHOULD NOT BE TREATED AS UNEXPLAINED DEPOSITS AND ASSESSED AS INCOME OF THE ASSESSEE. IN RESPONSE TO THIS AR SUBMITTED A LETTER DATED 29-12-2009 AND STATED AS FOLLOWS:- A. DUE TO ILLNESS OF THE MOTHER OF THE ASSESSEE MOT HER COULD NOT BE PRODUCED AND RELIED ON THE AFFIDAVIT SUBMITTED BY T HE ASSESSEE. THESE AFFIDAVITS HAVE BEEN PROVED TO BE MANIPULATED AS ME NTIONED ABOVE. FURTHER IN EARLIER SUBMISSION IT WAS STATED THAT MO THER OF THE ASSESSEE HAS GONE TO NATIVE PLACE TO ATTEND THE MARRIAGE IN THE CLOSE RELATIONS. B. IT WAS STATED THAT MOTHER AND FATHER OF THE ASS ESSEE SOLD THE PROPERTY IN 2004AND OUT OF THE PROCEEDS GIFT WAS MA DE. THE SALE DEED DATED 06-05-2004 SHOWS THAT THE SALE PROCEEDS OF PR OPERTY WERE RECEIVED BY THE CHEQUES BUT THE ASSESSEE DID NOT SU BMIT ANY EVIDENCE THAT GIFT AMOUNT WAS WITHDRAWAL FROM BANK. IT WAS A LSO NOT EXPLAINED WHY THE GIFT TRANSACTION WAS NOT MADE THROUGH CHEQU E. THE ASSESSEE TRIED TO SAY THAT WHATEVER HAS BEEN STATED EARLIER VIDE AFFIDAVIT/DECLARATION OF GIFT DEED DATED 3-4-2006 A RE NOT CORRECT. THE ASSESSEE AGAIN TAKES A U-TURN BY COMING UP WITH ALL THE NEW STORY THAT TOO WITHOUT ANY BASIS. THE EARLIER AS WELL AS THESE SUBMISSIONS ARE WITHOUT ANY BASIS AND PROPERTY DOCUMENTARY EVID ENCE. C. REGARDING KUAN PUJAN IT WAS STATED THAT EXPENDIT URE WAS INCURRED BY IN LAWS AND ALSO PRODUCED THE CONFIRMAT ION FROM SMT BIMLA DEVI MOTHER IN LAW OF THE ASSESSEE EVIDENCE OF HALL BOOKING BILL FROM THE CATEREOR AND LIST OF PERSONS FROM WHO M GIFTS IS CLAIMED TO BE RECEIVED. IN THE LIST NO RELATIONSHIP IS PROV IDED. REGARDING BOOKING OF HALL CHARGES IS CONCERNED RECEIPTS COUL D NOT BE PROVIDED ONLY A CERTIFICATE IS GIVEN FROM IT SHOWS THAT PAYM ENT MADE BY ASSESSEE AND NOT HIS MOTHER-IN-LAW. NO IDENTITY AND CREDITWORTHINESS ITA NO.4764/DEL/12 C.O.61/DEL/2012 12 IS SUBMITTED BY THE ASSESSEE. AS SHE ALSO CLAIMED T O MADE A GIFT OF RS 21 000/- IN ADDITION TO RS 17 500/- CLAIMED TO BE I NCURRED ON THE CEREMONY. THE ASSESSEE EARLIER CLAIMED THAT CEREMON Y WAS CELEBRATED IN ELABORATE FASHION WHICH RESULTED IN NET GIFTS OF RS 1.65 LACS BUT CLAIMS THAT ONLY RS 17 500/- WERE SPENT ON THE CERE MONY. FURTHER IN THE ABSENCE OF ANY IDENTIFICATION AND CREDITWORTHIN ESS OF SMT BIMLA DEVI THE SAME CAN N T BE ACCEPTED. HENCE SUBMISSION S OF THE ASSESSEE IS NOT FOUND TO ACCEPTABLE. D. REGARDING SALE OF OLD FURNITURE THE ASSESSEE STA TED THAT CONFIRMATION CANNOT BE OBTAINED FROM AND ASSESSEE R EQUESTED THAT COMMISSION MAY BE ISSUED TO VERIFY THE FACTS. WHAT THE ASSESSEE FAILED TO APPRECIATE THAT TILL DATE NO COMPLETE ADDRESSES HAVE BEEN PROVIDED IN THE ABSENCE OF WHICH THESE CANNOT BE VERIFIED. T HE ASSESSEE GOT SUFFICIENT TIME AND WAS ATTENDING THE PROCEEDINGS F ROM THE MONTH OF MARCH 2009. RIGHT THROUGH THE ASSTT. PROCEEDINGS THE ASSESSEE HAS TAKEN CONTRADICTORY STANDS AS MENTIONED EARLIER. ON HIS SUBMISSION DATED 29-12-2009 ASSESSEE REQUESTED TO ISSUED COMMI SSION WHEN THE ASSESSMENT IS BARRED BY LIMITATION WITHIN TWO DAYS. THIS IS AN ATTEMPT BY THE ASSESSEE TO DELAY THE PRO CEEDINGS AND REFUSE TO TAKE THE ONUS OF PROVING THE SAME. FURTHER THIS AMOUNT HAS ALREADY BEEN OFFERED BY THE ASSESSEE VIDE LETTER DATED 10-1 2-2009 WHICH IS PLACED ON RECORDS. THERE IS NO POINT IN RAISING THE ISSUE. IT AGAIN SHOWS THE ASSESSEE'S TOTALLY DIVERGENT STANDS ON MA TTER. HENCE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE. E. IT IS ALSO STATED THAT ASSESSEE DID NOT ATTEND O NLY ONE HEARING IS NOT CORRECT. THE ASSESSEE DID NOT ATTEND ON THE ADJ OURNED DATES OF 13- 4-2009 7-10- 2009 30-11-2009 AND 21-12-2009. FURT HER THE ASSESSEE IS PROVIDED WITH SUFFICIENT OPPORTUNITIES AND NOTHING HAS BEEN DECIDED WITHOUT OBTAINING THE RESPONSE OF THE ASSESSEE. F. THE ASSESSEE FURTHER STATED THAT AMOUNT OF RS 6 10 000/- WAS OFFERED TO BUY PEACE OF MIND AND TO AVOID ANY HARDSHIP TO T HE CLOSE FAMILY RELATIVES. THE ISSUE HAS BEEN DISCUSSED IN DETAILS IN THE PRECEDING PARAGRAPHS. G. NO EVIDENCE AS TO HOW THE CASH IN HAND OF RS 4 5 2 400/- ACCUMULATED IS PRODUCED. THE ASSESSEE RELIED ON THE CASH FLOW STATEMENT THE AUTHENTICITY OF WHICH IS NOT ESTABLIS HED AS MENTIONED ABOVE. ITA NO.4764/DEL/12 C.O.61/DEL/2012 13 XII. WHEN PROVIDED WITH AN OPPORTUNITY TO EXPLAIN THE ASSESSEE DID NOT COME UP WITH ANY EVIDENCE. THE ASSESSEE TRIED A LL THE WRONG TRICKS WHICH HE COULD THINK OF TO GIVE COLOR TO THE CASH D EPOSITS AS COMING FROM AUTHENTICATED SOURCES. WHILE DOING THIS HE FOR GOT TO REMEMBER THE EARLIER SUBMISSIONS (GIFT FROM FATHER OF RS 12 LACS) WHICH LED THE CONTRADICTORY STANDS IN HIS SUBSEQUENT SUBMISSIONS. HE FUDGED THE BANK ACCOUNTS TO GIVE CASH FLOW STATEMENT TO LOOK L IKE GENUINE. WHILE PROVIDING THE AFFIDAVITS THE ASSESSEE FORGOT THE CH RONOLOGY OF DATES WHILE FABRICATING THE INFORMATION. THE ABOVE FACTS CLEARLY AND WITHOUT ANY IOTA OF DOUBT PROVES THAT CASH DEPOSITS STANDS UNEXPLAINED AS PER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT AND IT REPRESENTS THE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES . ACCORDINGLY AN ADDITION OF RS 17 65 000/- IS MADE TO THE TOTAL INC OME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271 (1 )(C) ARE INITIATED A GAINST THE ASSESSEE FOR CONCEALING AND FURNISHING INACCURATE PARTICULAR S ABOUT HIS INCOME ON THE BASIS OF WRONG FALSE MANIPULATED AND FABRI CATED SUBMISSIONS. (ADDITION RS 17 65 000/) 3. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) ON THE BASIS OF VARIOUS SUBMISSIONS PARTLY ALLOWED THE CLAIM OF THE ASSESSEE WHEN HE DELETED ADDITION OF RS.11.55 LACS AND UPHELD THE ADDITION OF RS.6.10 LACS BY HOLDING AS UNDER: CONCLUSION: CONSIDERING ALL THE SUBMISSIONS MADE BY THE COUNSE L OF THE APPELLANT TOGETHER WITH THE PERUSAL OF THE DOCUMENTS EVIDENC ES AND OTHER RELEVANT MATERIAL PLACED DURING THE APPELLATE PROCE EDINGS IT HAS BEEN CONCLUDED THAT THE LEARNED ASSESSING OFFICER HAS OV ERLOOKED THE APPLICABILITY OF THE PROVISIONS OF SECTION 68 OF TH E INCOME TAX ACT 1961 AND ADDED THE ENTIRE CASH DEPOSIT MADE BY THE APPELLANT IN HIS BANK ACCOUNTS AMOUNTING RS.17 65 000/- AS UNEXPLAIN ED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT 1961. THE C OUNSEL OF THE APPELLANT QUOTED FROM JUDICIAL PRONOUNCEMENTS AND S TRESSED THE FACT OF NON APPLICABILITY OF THE PROVISIONS OF THE SECTI ON 68 IN CASE OF THE APPELLANT AS HE IS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT UNDER SECTION 44AA OF THE INCOME TAX ACT 1961 READ WITH RULE 6F OF THE ITA NO.4764/DEL/12 C.O.61/DEL/2012 14 INCOME TAX RULES 1962 AS THE APPELLANT BEING A SA LARIED ASSESSEE. IN AGREEMENT WITH THE SUBMISSION OF THE COUNSEL OF THE APPELLANT FURTHER THE COUNSEL HAS SUBMITTED THAT THE ASSESSING OFFICE R ISSUED SHOW CAUSE NOTICE FOR RS.16 26 000/- AND ADDED RS.17 65 000/- WITHOUT CONFRONTING THE INFORMATION AVAILABLE WITH HIM OR P ROVIDING AN OPPORTUNITY TO THE APPELLANT. HE FURTHER SUBMITTED THAT THE LEARNED ASSESSING OFFICER IGNORED THE CASH WITHDRAWALS AMOU NTING RS.5 43 0001- FROM THE SAME BANK ACCOUNTS WHILE CO NSIDERING THE CASH DEPOSITS IN THE BANK ACCOUNTS DESPITE CASH FL OW STATEMENT PROVIDED BY THE APPELLANT. AS CONCLUDED ABOVE THE TOTAL ADDITION OF RS.17 65 000/- IN THE RETURNED INCOME OF THE APPELLANT IS UNWARRANTED AND BAD IN LAW ON THE OTHER HAND AS THE APPELLANT HAD VOLUNTARILY OFF ERED BEFORE THE ASSESSING OFFICER RS.6 1 0 000/- FOR TAX IN ORDER TO BUY PEACE OF MIND FOR HIMSELF AND TO AVOID FURTHER LITIGATION WHICH WAS IGNORED BY THE ASSESSING OFFICER. FURTHER THE ASSESSING OFFICER HA S NOT CONSIDERED THE CASH WITHDRAWAL OF RS.5 43 000/- BY THE APPELLA NT FROM HIS BANK ACCOUNT AND ALSO DID NOT VERIFY THE GENUINENESS OF THE CONTENTIONS OF THE APPELLANT. HOWEVER KEEPING IN VIEW THE INTEREST OF THE REVENU E I FIND NO REASON THAT THE LEANED ASSESSING OFFICER IGNORED THE OFFER BY THE APPELLANT TO TAX RS.6 10 000/- AND TAXED THE SAME UNDER SECTION 68 OF THE INCOME TAX ACT 1961. ACCORDINGLY THE LEARNED ASSESSING OF FICER IS DIRECTED TO ACCEPT THE VOLUNTARY OFFER OF THE APPELLANT. THE TOTAL INCOME OF THE APPELLANT BE ASSESSED AT RS. 5 92 880 + 6 10 000 = 12 02 880 REMAINING ADDITION OF RS.11 55 000/- IS HEREBY DELE TED AS NON APPLICABILITY OF THE SECTION 68 OF THE INCOME TAX A CT 1961 AS THERE IS CASH WITHDRAWAL OF RS.5 43 000/- FROM SAME BANK A/C AS DIFFERENT OCCASIONS IN THE FAMILY. IN THE RESULT THE APPEAL IS PARTLY ALLOWED. 4. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US AN D ASSESSEE HAS FILED C.O. AGAINST PART CONFIRMATION OF THE ADDITION. 5. AT THE OUTSET LD. D.R. SUBMITTED THATS THE ASS ESSEE WAS AN EMPLOYEE AND HE HAD DEPOSITED MASSIVE AMOUNT IN HIS BANK ACC OUNT AND HE FILED ITA NO.4764/DEL/12 C.O.61/DEL/2012 15 VARIOUS AFFIDAVITS CLAIMING VARIOUS AMOUNTS RECEIVE D FROM VARIOUS PERSONS BUT HE COULD NOT SUBSTANTIATE AND ASSESSEE HAS ALSO CHANGED HIS STANDS AND MOR4EOVER HE OFFERED FOR TAXATION AN AMOUNT OF RS. 6.10 LACS WHICH ITSELF PROVES THAT THE ASSESSEE HAD NO EVIDENCE TO SUBSTAN TIATE HIS CLAIM. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS TAKEN OPENI NG BALANCE OF RS.4.52 LACS AS CASH IN HAND WITHOUT ANY BASIS AS ASSESSEE WAS N OT MAINTAINING ANY BOOKS OF ACCOUNT. HOWEVER LD. CIT(A) WITHOUT GOING INT O THE VERIFICATION OF OPENING BALANCE ALLOWED THE RELIEF. IT WAS SUBMIT TED THAT LD. CIT(A) DID NOT GIVE ANY REASON FOR ALLOWING RELIEF FOR RS.11.5 5 LACS EXCEPT WITHDRAWAL OF RS.5.43 LACS MADE BY THE ASSESSEE FORM HIS BANK ACCOUNT. 6. LD. A.R. ON THE OTHER HAND SUBMITTED THAT ON ENQ UIRY FROM A.O. THE ASSESSEE HAD FILED ALL THE RELEVANT INFORMATION/DOC UMENTS. THE A.O. DID NOT REQUIRE ANY FURTHER INFORMATION. HOWEVER HE MADE ADDITION WITHOUT CONFRONTING IT TO THE ASSESSEE. IT WAS FURTHER SUB MITTED THAT THE ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS AND THER EFORE ADDITION U/S 68 ITSELF WAS NOT WARRANTED. RELYING ON THE CASE LAW RELIED UPON BY LD. CIT(A) THE LD. A.R. SUBMITTED THAT SECTION 68 IS N OT APPLICABLE TO A PERSON WHO IS MAINTAINING BOOKS OF ACCOUNTS. ARGUING UPON THE CROSS OBJECTION THE LD. A.R. SUBMITTED THAT SINCE SECTION 68 WAS NO T APPLICABLE SO LD. CIT(A)S ACTION IN CONFIRMING THE PART ADDITION WAS NOT JUSTIFIED. 7. LD. D.R. SUBMITTED THAT THE ADDITION SUSTAINED B Y LD. CIT(A) WAS BASED UPON AGREED ADDITION MADE BY THE ASSESSEE DUR ING ASSESSMENT PROCEEDINGS. 8. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE HAD CLAIMED T O HAVE OPENING BALANCE OF ITA NO.4764/DEL/12 C.O.61/DEL/2012 16 RS.4.52 LACS AND HAS ALSO FILED VARIOUS AFFIDAVITS AND DOCUMENTS CLAIMING TO HAVE RECEIVED VARIOUS AMOUNTS ON VARIOUS OCCASIONS WHICH HE PARTLY WITHDREW AND OFFERED A PART FOR TAXATION. IN REST OF DOCUMENTS THE A.O. FOUND VARIOUS DISCREPANCIES AND ALSO HE OBSERVED TH AT DOCUMENTS WERE NOT SUBSTANTIATED. HOWEVER IT IS A FINDING OF FACT TH AT DURING THE ASSESSMENT YEAR THE ASSESSEE HAD WITHDRAWN AN AMOUNT OF RS.5. 43 LACS FROM HIS BANK ACCOUNT. LD. CIT(A) AFTER CONSIDERING THE WITHDRAW AL MADE FROM HIS BANK ACCOUNT AND AFTER CONSIDERING THE OTHER EVIDENCES A ND WITHOUT COMMENTING UPON A.O.S FINDINGS AND AGREED ADDITION HAS PARTL Y ALLOWED THE RELIEF TO THE ASSESSEE. OUT OF TOTAL CASH DEPOSITS OF RS.17. 65 LACS RS.5.43 LACS WERE DEPOSITED OUT OF BANK WITHDRAWALS ITSELF AND FURTHE R RS.6.10 LACS WAS OFFERED FOR TAXATION LEAVING BEHIND UNEXPLAINED BALANCE OF RS.6.12 LACS. THE A.O. HAS CITED MANY DISCREPANCIES IN THE AFFIDAVITS AND LASO IN THE CASH FLOW STATEMENT. THE A.O. HAD ALSO CITED ONE INSTANCE OF RS.3 LACS DEPOSIT IN ICICI BANK ACCOUNT ON WHICH CIT(A) DID NOT RETURN A NY FINDINGS. LD. CIT(A) ALSO DID NOT RETURN ANY FINDINGS ON THE HUGE AMOUNT OF RS.4.52 LACS TAKEN BY ASSESSEE AS OPENING BALANCE. THOUGH A.O. HAS MENTIONED ADDITION U/S 68 OF THE ACT BUT THE FACT REMAINS THAT HE HAD MADE ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT WHICH H E HELD TO BE INCOME OF ASSESSEE. THEREFORE LD. CIT(A) HAS ALSO WRONGLY R ELIED UPON THE CASE LAWS RELATING TO SECTION 68 OF THE ACT. THEREFORE KEEPI NG IN VIEW ALL THESE FACTS AND CIRCUMSTANCES WE SUSTAIN ADDITION OF RS.6.12 L ACS AS BEING UNEXPLAINED AMOUNT. IN VIEW OF THE ABOVE THE APPEAL OF REVENU E IS PARTLY ALLOWED AND ADDITION IS SUSTAINED TO THE EXTENT OF RS.6.12 LACS . AS WE HAVE ALREADY CONSIDERED THE VOLUNTARY OFFER OF RS.6.10 LACS FOR TAXATION AND HAS ITA NO.4764/DEL/12 C.O.61/DEL/2012 17 CONSIDERED THE SAME IN CASH AVAILABLE WITH THE ASSE SSEE FOR DEPOSIT IN BANK THEREFORE CROSS OBJECTIONS OF ASSESSEE ARE DISMISS ED. 9. IN VIEW OF THE ABOVE APPEAL FILED BY THE REVENU E IS PARTLY ALLOWED WHEREAS C.O. FILED BY THE ASSESSEE IS DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH NOV. 2014. SD./- SD./- ( I. C. SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 07 TH NOV. 2014 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DEL HI. TRUE COPY. BY ORDER (ITAT NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BE FORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER