2011 (12) TMI 240 - HC - Income Tax

Unexplained credit builder and colonizer - deposits received out of the four parties deposit received from two parties added as income from unexplained cash credit Held that - U/s 68 of the Act, the appellant has to prove the nature and source of the deposit. In case of deposit received from Sri Wazir Ahmad, identity of the creditor have been established, yet the appellant had failed to establish his capacity to advance Rs. 88,000/-. Mere explanation that he had borrowed the money from his close relatives, would not be sufficient without there being any further proof of the identity of the persons who had lent the money to Sri Wazir Ahmad. In respect of the deposit of Sri Jamal Ahmad, he did not appear before the A.O. in spite of summon having been sent and the appellant also did not take any steps to produce him, thus the identity and source of the deposit of Jamal Ahmad remain unproved. Therefore, the two deposits have rightly been added u/s 68 Decided against the assessee.

Summary

Issues:
1. Justification of confirming additions under Section 68 of the Income Tax Act despite partial acceptance of the assessee's explanation for deposits.
2. Confirmation of additions under Section 68 despite the explanation provided by the assessee regarding the identity and source of the credited amounts.

Analysis:
1. The appellant, a builder and colonizer, filed its income tax return for the assessment year 1988-89, which led to an investigation revealing deposits made in various names. The Assessing Officer accepted some deposits but questioned others. Specifically, deposits made by Sri Nazeer Ahmad and Sri Jamal Ahmad were disputed. The Assessing Officer found that Sri Nazeer Ahmad failed to prove his capacity to deposit Rs. 88,000, and Sri Jamal Ahmad did not appear before the Officer despite summons. Consequently, these two deposits totaling Rs. 1,03,000 were added as unexplained cash credit under Section 68 of the Act. Appeals to the C.I.T.(A) and the Tribunal were unsuccessful.

2. During the appeal process, the appellant's counsel argued that Sri Nazeer Ahmad admitted to depositing Rs. 88,000 for purchasing a shop, claiming the money was borrowed from relatives in Saudi Arabia. Regarding the Rs. 15,000 deposit by Sri Jamal Ahmad, the appellant's counsel contended that non-appearance should not lead to disbelief. However, the Senior Standing Counsel for the Revenue argued that the source of the Rs. 88,000 deposit by Sri Nazeer Ahmad was not established, and the non-appearance of Sri Jamal Ahmad raised doubts about the source of his deposit.

3. The Court carefully considered the arguments and the requirements under Section 68 of the Act. It was noted that while the identity of the creditors was established, the appellant failed to prove the source of the disputed deposits. In the case of Sri Nazeer Ahmad, the appellant could not establish his capacity to deposit Rs. 88,000, and merely stating that the money was borrowed was deemed insufficient without further evidence of the lenders' identities. Similarly, the non-appearance of Sri Jamal Ahmad left the identity and source of his deposit unproven. Therefore, the additions under Section 68 were deemed justified, and the Tribunal's decision was upheld as legally sound.

4. Ultimately, the Court concluded that the additions under Section 68 were correctly made as the appellant failed to provide sufficient evidence regarding the nature and source of the disputed deposits. The Tribunal's decision was deemed free from legal errors, leading to the dismissal of the appeal.