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TMI Blog2016 (8) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... l income of Rs. 4,05,265/- comprising of income under the head 'income from house property' and 'income from business and profession' of dealing in financing of three wheeler/scooters on commission basis. The case of the assessee was selected for scrutiny. During the course of scrutiny the Assessing Officer observed from the Annual Information Return (AIR) that the assessee had deposited cash amounting to Rs. 92,80,000/- in bank accounts maintained with the UTI bank in the name of the assessee and his minor sons Master Sahil Sethi and Master Sarik Sethi. From the perusal of the bank statements, the Assessing Officer observed that cash was regularly deposited in the bank accounts in reference. He also noted that cash deposited was withdrawn from time to time. Though the assessee was granted opportunity, the assessee did not provide any logical reason for deposit and withdrawal of the cash in bank accounts. In view of the facts, the Assessing Officer worked out the peak cash credit of Rs. 36,80,000/- based on cash deposits and withdrawal in the bank accounts and in absence of any explanation from the assessee added the same as unexplained cash credit in terms of section 68 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/-. Aggrieved, the Revenue filed appeal before the Tribunal, raising the grounds as under: 1. On the facts and circumstances of the case, the learned CIT(A) has erred in deleting the addition of Rs. 36,80,000/- made by the Assessing Officer on account of cash credit u/s 68 of the I.T. Act, 1961. 2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 6. The Tribunal, after considering the arguments of the both parties set aside the order of the Ld. Commissioner of Income-tax (Appeals) and restored that of the Assessing Officer. The relevant findings of the Tribunal are as under: "7. We have heard both the parties and gone through the material available on record. There is no dispute that the assessee had been making cash deposits in the UTI Bank in the names of his two minor sons. The assessee is engaged in the business of financing three-wheelers. The assessee has alleged to have received Rs. 33,00,000- as advance out of total sale consideration of Rs. 45,00,000/- for sale of property, which was let out to UTI Bank. No evidence has been brought on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal without the paper book and without even giving chance to the assessee to file the papers. After hearing the ld. counsel of the parties, the Hon'ble High Court in judgment dated 07/02/2011, restored the matter to the Tribunal to hear the parties afresh in taking into consideration the said material to decide the issue again. The relevant paragraphs of the judgment are reproduced as under: "3. Learned counsel for the appellant has produced certain papers indicating that in the appeal notice was issued to the assessee for 11th January, 2010, when the assessee appeared. However, on that date the representative of the Department filed an application for adjournment on the ground that he wanted to see the assessment records. Case was adjourned to 16th March, 2010. On that date again, the departmental representative sought an adjournment stating that he intended to file a paper book. Acceding to his request, the case was again adjourned to 5th May, 2010. It is pointed out by Mr. Kapoor, learned counsel for the appellant, that paper book was not filed, which could have contained the material/document on the consideration whereof CIT(Appeal) had deleted the addition. However, on 5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement submitted by the assessee before the Id. CIT(A) 9. On the direction of the bench, the Authorized Representative of the assessee also filed following documents before the bench: Documents filed vide letter dated. 02.08.2012: i. Remand report submitted by the Assessing Officer before Commissioner of Income Tax(A)-XXVII in pursuance to application for admission of additional evidence U/s. 250 r/w Rule 46A. ii. Copy of cash flow statement of the assessee for the period of 01.04.2005 to 08.04.2005 reflecting repayment of advance money on 07.04.2005 along with bank statement of Sh. K.K. Sethi (Assessee), Mr. Sarik Sethi (son) and Mr. Sahil Sethi (Son) reflecting withdrawal of Rs. 33,00,000/- in April, 2005. iii. Affidavit of Sh. Krishan Kr. Sethi stating repayment of Rs. 15,00,000/- out of his cash withdrawn from Bank in April, 2005. iv. Affidavit of Shri Jyoti Sethi stating payment of Rs. 18,00,000/- out of her cash withdrawn from Bank in April, 2005. Documents filed vide letter dated 15.11.2012: i. Copy of confirmation of Anju Garg for Sale/Purchase in respect of a portion in property No. F-2/25, Krishna Nagar, Delhi-51, With Sh. Krishan Kumar Sethi, S/o- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the onus under section 68 of the Act, the assessee is required to furnish identity and creditworthiness of the creditors and the genuineness of the transaction. In the instant case, the assessee did not furnish any evidences during the course of assessment proceedings to discharge its onus under Section 68 of the Act. In remand proceeding, the Assessing Officer objected admission of the additional evidences and requested the Ld. Commissioner of Income-tax (Appeals) to call for certain documents from the assessee like receipt of payments made by the proposed buyers to the assessee, cancellation of the sale agreement, original copy of documents etc, however, Ld. Commissioner of Income-tax (Appeals), decided appeal without considering the request of the Assessing Officer. The Tribunal in the order dated 14/05/2010 held that no evidence had been brought on record by the assessee to suggest that the amounts deposited on various dates have come out from the sale consideration received in advance from the prospective buyers. 13. The Tribunal observed that the ld. Commissioner of Income Tax(Appeals) did not record any findings as why the amount of Rs. 33 lakh received from the buyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajendra Kumar Garg (Page 10 of the assessee paper book ) was only Rs. 1,54,000/-. Further the total income of another proposed buyer Sh. Gaurav Gupta (page 11 of the assessee paper book) was merely Rs. 69,616/-. No evidence in support of income of Sh. Dinesh Gupta is filed in the paper book submitted by the assessee. No other documents evidencing the financial capacity of the proposed buyer to advance the money were submitted. Looking to the amounts of total income of the proposed buyers, the creditworthiness of the creditors is also not getting established. 17. In view of the above, the assessee has failed to discharge its onus in respect of the genuineness of the transaction as well as creditworthiness of the creditors and, therefore, in our opinion the Ld. Commissioner of Income-tax (Appeals) was not justified in deleting the addition made by the Assessing Officer under section 68 of the Act for the peak amounts of deposits in bank accounts, accordingly we set aside the order of the ld. Commissioner of Incometax (Appeals) and restore the order of the ld. Assessing Officer. 18. In the result, appeal of the Revenue is allowed. The decision is pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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