9911796707
TMI Blog2017 (12) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... hout prejudice to ground No:1 and in the alternative, if the order passed by the AO is held as enforceable and tenable in law. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that addition of Rs. 2,00,000/- for investment made by the AO and confirmed by the 1st appellate authority pertaining to the alleged investment in unexplained FD's and that of Rs. 29,760/- pertaining to the interest alleged to have been received on the said FD's and that of Rs. 17,40,197/- pertaining to the alleged investment in fictitious FD's is improper, unwarranted, unjustified, contrary to the provisions of law and facts prevailing in the case. The addition made by the AO and confirmed by the 1st appellate authority on these issues be deleted. The appellant be granted just and proper relief in this respect. 3. The assessment order passed by the AO and confirmed by the 1st appellate authority in violation of rules of natural justice stands vitiated and not tenable in law. The order so passed be cancelled being in violation of rules of natural justice. 3. The ground of appeal No.1 raised by the assessee is not pressed and hence, the same is dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly mentioned of providing copies of relevant documents and statements of bank employees recorded during the course of search proceedings and also post-search enquiries. The assessee was also allowed to cross-examine the bank employees. Vis-à-vis show cause notice was issued as to why the said amount should not be added in the hands of assessee, another notice was given to the assessee and as the assessee had not brought on fresh facts on record, the Assessing Officer based on the old facts, upheld the addition in the hands of assessee. 6. The CIT(A) also noted that onus was upon the assessee and / or the bank to demonstrate that they were not the owners of impugned FDRs and somebody else were the owners. The assessee was the Director of the bank and hence, he could not disconnect itself from the banking activities. Thus, in the set aside proceedings, onus was cast on the assessee to demonstrate and bring on record the actual owner of impugned FDRs i.e. names and addresses of the persons and sources thereof. After considering the submissions of assessee which are reproduced under para 4.5, the CIT(A) observed that the main submissions of the assessee was FDRs were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut also by several bank employees and hence, the facts relating to ownership of hand writing on FD register becomes unimportant. The CIT(A) further observed that the assessee was provided with statements of bank employees and was also allowed cross-examination. The CIT(A) vide top para at page 15 further held that in respect of some of FDRs when confronted with the real owners i.e. Shri Nandlal Jethani, Shri L.K. Agarwal and others, they admitted the same as belonging to them as unaccounted income. Therefore, since the bank had identified the impugned FDRs as belonging to the appellant, substantive addition was correctly made in the hands of assessee. He also referred to the protective addition made in the hands of bank. 8. The second contention of assessee that he was the Director Incharge of Raviwar Peth branch at the relevant time was found to be not correct since the head office of the Co-operative Bank was situated at Yerwada, Pune. The plea of cross-examination was thus, held to have been allowed. The next plea of assessee of double taxation both in the hands of assessee and bank was held to be not correct since protective additions were only made in the hands of bank. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in his statement stated that Rs. 2 lakhs belonged to the assessee and thereafter, the assessee retracts the said statement. However, no such statement was available on record. Our attention was drawn to RTI application made in this regard, which is placed at page 73 of the Paper Book. He pointed out that that the Assessing Officer says that same belongs to the assessee. However, in response to RTI application, no document was given to the assessee. In respect of sum of Rs. 17,40,197/-, the learned Authorized Representative for the assessee stressed that nothing could be added in his hands as no direct evidence was found and on without prejudice basis, at best, sum of Rs. 2,12,444/- could be added in the hands of assessee. 11. The learned Departmental Representative for the Revenue pointed out that survey was conducted at Agrasen Bank on 13.08.2002 and two kinds of registers were found. The total entries of FDRs found were Rs. 2.30 crores. He pointed out that the statement of branch manager Mr. Kole was recorded. The Assessing Officer in the first round at page 6 had talked about the markings to identify, which in turn, related to the assessee. However, the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 132(4) of the Act on 05.09.2002, the assessee denied having placed the said amount in different names out of his own funds. However, post survey investigation, the assessee filed a letter dated 30.10.2002, in which he confirmed that the FD of Rs. 2 lakhs i.e. FDR Nos.020922 to 020935 belonged to him and he shall pay taxes thereon on the undisclosed FDRs. Consequent thereto, the said FDRs were encashed from the bank and Pay Order was obtained for Rs. 2 lakhs and interest thereon of Rs. 29,760/- and the same was deposited in the personal deposit account of the Commissioner of Income Tax, Pune on 05.11.2002. The Assessing Officer and CIT(A) in the first round and thereafter, even after the order of Tribunal remanding back to the file of Assessing Officer, included the said sum of Rs. 2 lakhs and interest of Rs. 29,760/- as undisclosed income of the assessee. The first issue which has been raised is against the said addition in the hands of assessee. The learned Authorized Representative for the assessee made elaborate submissions before us in this regard. However, in view of the factum of FDRs being encashed and the amount being deposited on assessee's behalf in the personal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee before the Assessing Officer was that even during the course of search on the premises of Co-operative Bank, no such FDRs were found. He further stressed that in the absence of any of the employees having given any statement or evidence in connection with FDRs sought to be taxed in his hands, then no addition merits to be made. However, the Assessing Officer did not accept the plea of assessee since the assessee in the post search proceedings had accepted that first FDRs totaled Rs. 2 lakhs found in different names and earmarked to the assessee, were owned up by the assessee as his income. Rejecting the plea of assessee, the Assessing Officer held that the facts of case were similar to the FDRs of Rs. 2 lakhs and hence, non active FDRs as per FDRs register earmarked for the assessee could not be disowned by him. Consequently, the Assessing Officer further accepted the plea of assessee of range of certain FDRs on maturity restricted the addition to Rs. 17,40,197/- being unexplained investment from undisclosed income during the block period. The Tribunal while deciding the appeal of assessee remitted the issue back to the file of Assessing Officer with directions to demonstrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. She was shown the pages on which star mark as well as the name of Vinod Kumar Bansal was written and whether the same was in her handwriting, then she said that the marking and name were not in her handwriting, she could not say whose handwriting it was. 16. Another cross-examination was of Mrs. Shobha Suresh Waghchaure, which is placed at pages 70 to 72 of the Paper Book, in which she confirmed her earlier statement. She was asked whether she knew the assessee and she replied that the person was not Director Incharge of Raviwar Peth branch. She was the branch manager and she was asked whether FDRs in fictitious names were made without following formalities and had she received any instructions of such type to oblige a particular customer to open or to encash FDRs in fictitious name of the Director Incharge of Raviwar Peth branch. She stated that no such instructions or directions were received from the Director Incharge Vinod Kumar Bansal in her tenure as branch manager. The assessee sought certain information under the RTI Act and the order under section 19(6) of the RTI Act is placed at pages 73 and 74 of the Paper Book. In this, the assessee had asked for the cop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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