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TMI Blog2015 (8) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (A), is totally contrary to the provisions of law and facts on the record and hence, the same may kindly be deleted in full. 3) The ld. AO further erred in law as well as on the facts of the case in charging interest u/s 234B & 234D of the Act. The appellant totally denies its liability of charging of any such interest. The interest so charged, being contrary to the provisions of law and facts, kindly be deleted in full. 2. Ground no. 1 and 2 are against confirming addition of Rs. 4,85,082/- by the ld. CIT (A) which was in assessment order Rs. 12,85,823/-. The assessee has shown income from rent, profit from trading, interest and dividend income. He filed his return of income for the year under consideration on 31.10.2006 at Rs. 1,87,485/-. The case was scrutinized under section 143(3) of the Act. The AO observed that during the year the assessee had made heavy sales, purchases of shares and units of different mutual funds. Source of investments made in acquiring units of various mutual funds was examined during the assessment proceedings. For this purpose, source of deposit in assessee's bank account maintained with Standard Chartered Bank vis-à-vis computerized pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed by the assessee to have been made on 20.11.2005 was not made on 20.11.2005. Instead the same was made on 21.11.2005. Therefore, the explanation submitted by the assessee regarding cash shortage on 20.11.2005 was not found correct by the AO. The AO further observed that as regards so called agreement to sale dated 20.02.2006, this agreement has been written on an stamp of Rs. 100/- having serial no. F 888923 and shown in the name of M/s. Goodwill Fincom Pvt. Ltd. by stamp vendor Shri Chetan Saini, Barodia Basti, Jaipur vide his register sl. No. 7887 dated 02.02.2008. Enquiries u/s 133(6) were conducted with the Office of the Collector (Stamps), Jaipur. In response, the Officer- in-Charge, District Record Cell, Jaipur vide his office letter no. Record/08/293 dated 12.09.2008 had sent a copy of relevant page for 02.02.2006 of the Registrar of Stamp Vendor Shri Chetan Saini. He has also stated that on 02.02.2006 there are sl. No. 2319 to 2335 only in the said register. On that basis it was found by the AO that the name of purchase of said stamp i.e. M/s. Goodwill Fincom Pvt. Ltd. was not reflected there. The ld. AO again had given the show cause notice on 28.11.2008 which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap had been made up through a cooked up story of obtaining advance against property on 20.02.2006 and returning back the same on 21.02.2006. This cooked up story had been broken due to the fact that the stamp used for purpose of agreement is not proper and hence had no evidentiary value. Even after confronting the fact, the assessee had not been able to furnish any satisfactory explanation. In view of the above discussion made by the AO, he held that under the Agreement to Sale entered into on 20.02.2006 was only a made up story which cannot be given any cognizance. The assessee had not been able to furnish any satisfactory and acceptable explanation for the shortage of cash amount of Rs. 7,72,516.45 created on 20.02.2006. It was also held that the payment to the extent of Rs. 7,72,516.45 had been made by the assessee to M/s. Jai Hanumant out of his undisclosed income. Accordingly, the AO made an addition of Rs. 7,72,516.45 in the income of the assessee. Thus total addition was made by the AO at Rs. 12,85,082.90. 3. Being aggrieved by the order of AO, assessee carried the matter before ld. CIT (A) who had allowed the assessee's appeal partially by observing as under :- "6. The ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention on pages 38 and 39 of the paper book and argued that said statement should be read in totality which clearly explained the factual position that modus operandi adopted by the bank as regards its working and also as regards the recording of the transactions. It has been admitted by Shri Nitin Gupta, Manager (Operations) in answer to question no. 2 that bank was operating 365 days branch till 2007 (up to June, 2007) and in answer to question no. 3 he admitted that all transactions on Sundays and holidays comes by value dated next working day. To be clear if any transaction is executed on Sunday it would reflect in per records and customers statement on Monday or next working day. In answer to question no. 4, Shri Nitin Gupta replied that there is no record for withdrawing the cash on 20.11.2005 but he had brought with him a copy of statement of Shri Dinesh Agarwal and certified copy of cash withdrawal cheque of Rs. 8,90,000/- which was reflecting in their record on 21.11.2005. Thus the Manager (Operations) categorically answered all the transactions took place on Sundays and holidays but were being recorded and being reflected in the bank's record on next Monday or next worki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to draw adverse inference on the basis of evidence submitted before the lower authorities. The assessee has furnished the explanation of Rs. 8,00,000/- on 20.02.2006 before the lower authorities. Accordingly addition confirmed by the ld. CIT (A) deserves to be deleted. Alternatively it was argued that in any case even if it is held that the assessee has failed to prove the availability of sufficient cash or the AO was justified in making addition of cash shortage of Rs. 5,12,516/- on 20.11.2005 and of Rs. 7,12,516/- on 20.02.2006, the earlier date addition may kindly be telescoped into the later date addition and at the worst it is only the balance of Rs. 1,99,949/- may be confirmed. 5. At the outset, the ld. D/R supported the order of ld. CIT (A). 6. We have heard the rival contentions and perused the material on record. The bank authorities have certified that assessee has withdrawn Rs. 8,90,000/-on 20.11.2005 which was entered in the bank register on 21.11.2005. The Standard Chartered Bank on these days were working for 365 days. It is normal practice of Bank that any transaction made by 365 days working branch on holidays is reported on Monday in case transaction is made o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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