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TMI Blog2016 (5) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... se the aforesaid terms for office as well as retail sale of non food items. In the light of the above documentary evidence the failure of the department to procure the presence of Maxpro India for verification of the claim made by the assessee remains unexplained. We are of the view that in the light of the documentary evidence on record the assessee has successfully explained the sale of gold through Maxpro India and the conclusions to the contrary by the revenue authorities cannot be sustained. Since the sale of gold is held to be properly explained the sale proceedings of the gold and withdrawals from the bank account was sufficiently explained the cash deposits in the bank account. The anomaly pointed out by CIT(A) is that on 19.04.2010 cash of ₹ 3,00,000/- was withdrawn from ICICI Bank and on the very same day deposit of ₹ 49,000/- is made in ICICI bank at Bikaner. As already stated it can be seen from the cash book of the assessee that as on 19.04.2010 there was the availability of cash as on 19.04.2010 even after withdrawal of ₹ 3,00,000/- to the extent of ₹ 73,000/-. In such circumstances we are of the view that there cannot be any adverse inferen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the sale of gold and receipt of cash on such sale of gold and if the withdrawals of the bank account are considered then there would be availability of cash with the assessee and therefore the source of funds out of which cash was deposited in the bank would stand explained. 4. The AO did not believe the plea of the assessee that on sale of gold cash of ₹ 3,00,000/- and ₹ 1,50,000/- was received by assessee on 02.04.2010 and 31.01.2011 respectively. In this regard AO referred to the fact that an inspector was deputed to verify whether the concern Maxpro India was existing at the address given in the purchase bill by the assessee as evidence for sale of gold. The Inspector reported to the AO that such a concern was not available at the given address. This fact was confronted to the assessee by the AO. Notice u/s 131 of the Act was also issued to Maxpro India by the AO. This was ought to be served on Maxpro India at the address given in the bill namely 89, Burtolla Street, Kolkata-700007. Inspector of Income tax department who went to serve notice u/s 131 of the Act reported that Maxpro India could not be found at the address given. He had detailed the efforts m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is treated as unexplained. On the basis of above observation, the cash deposit of ₹ 22,53,262 in aggregate to the A/C No 627601512043 and ₹ 12,26,500 in aggregate to A/c No. 627601149954 with ICICI Bank Ltd are treated undisclosed income of the assessee from undisclosed sources and added to returned income of the assessee. 7. Accordingly the cash deposits in the bank account was treated as unexplained and a sum of ₹ 34,79,762/- (Rs.22,53,262 + ₹ 12,26,500/-) was added to the total income of the assessee. 8. On appeal by the asssessee CIT(A) confirmed the order of AO. Aggrieved by the order of CIT(A) assessee has preferred the present appeal before the Tribunal. 9. We have heard the submissions of the learned counsel for the assessee, who submitted that the AO should have accepted the sale of the gold jewellery for which the assessee duly filed two purchase bills issued by Maxpro India. According to the AO the purchaser was not found traceable by the Inspector at the given address even after making local enquiry. He submitted that the purchaser was doing business at the same address which is proved from the fact that they were issued trade licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were reused for making further deposits on later dates and therefore should be netted off from total deposits made. 11. For the proposition only consolidated peak of the bank accounts could be considered for making addition of undisclosed income. The learned counsel for the assessee placed reliance on the following decisions of ITAT, Kolkata :- i) ITA No.141/Kol/2012 in the case of Dilip Kumar Nahata order dated 09.05.2012. ii) ITA No.1903/Kol/2009 in the case of Uday Shankar Mahawar. 12. The learned DR placed reliance on the order of CIT(A). 13. We have given a careful consideration to the rival submissions. We have already observed that if the receipt of sale of gold is accepted and various withdrawals of the bank accounts are considered then that would sufficiently explain the sources of funds out of which cash deposits were made in the bank accounts. It has been the plea of the assessee that he had financial problem and was in need of funds for treatment of his mother Shanti Devi Baheti and his sister Kamala Devi Harsh and his father in law Radha Kishan Damani. It was also the plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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