Income Tax Appellate Tribunal – Jaipur
Shri Shyam Gidwani, Jaipur vs Income Tax Officer, Ward-6-1, … on 21 October, 2021 vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR
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BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA. No. 808/JP/2018
fu/kZkj.k o”kZ@Assessment Years : 2008-09
Shri Shyam Gidwani cuke The ITO,
3-N, A-16, Jawahar Nagar, Vs. Ward-6(1),
Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AGBPG 9944 Q
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj l@
s Assessee by : Shri Mahendra Gargieya (Adv.) &
Shri Devang Gargieya (Adv.)
jktLo dh vksj ls@ Revenue by : Shri A.S. Nehra (Add.CIT)
a
lquokbZ dh rkjh[k@ Date of Hearing : 04/10/2021
mn?kks”k.kk dh rkjh[k@Date of Pronouncement : 21/10/2021
vkns’k@ ORDER
PER: VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against the order of ld.
CIT(A)-2, Jaipur dated 15.03.2018 for the assessment year 2008-09.
2. Briefly the facts of the case are that based on review of the AIR
information, the Assessing Officer observed that the assessee has
made cash deposit of Rs. 22,97,600/- in his bank account maintained
with ICICI Bank. Given that the assessee has not filed any return of
income, the AO believed that income to the extent of Rs. 22,97,600/-
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has escaped assessment and reasons were recorded and notice U/s
148 was issued on 18.03.2015. In response, the assessee filed his
return of income declaring total income of Rs. 79,950/- and thereafter,
after calling for information/explanation from the assessee, the
assessment was completed U/s 147 r.w.s. 143(3) vide order dated
23.10.2015 at an assessed income of Rs. 15,77,550/- by making
addition of Rs. 14,97,600/- U/s 69A of the IT Act.
3. Being aggrieved, the assessee carried the matter in appeal
before the ld. CIT(A) who has since confirmed the addition so made by
the Assessing Officer. Again the said findings and order of the ld
CIT(A), the assessee is now in appeal before us.
4. In ground No. 1 & 2, the assessee has challenged the
assumption of jurisdiction by the Assessing officer U/s 147 of the Act.
5. In this regard, the ld. AR submitted that the law mandatorily
requires the Assessing officer to obtain prior approval of the
PCCIT/CCIT/CIT before issuance of notice u/s 148, where such notice is
issued after lapse of 4 years from the end of the relevant assessment
year and from the JCIT in case the notice u/s 148 is issued before 4 years
from the end of the relevant assessment year. It was submitted that it is
also established principle of law that if a particular authority has been
designated to record his/her satisfaction on any particular issue, then it is
that authority alone who should apply his/her independent mind to record
his/her satisfaction. The specific designation of Pr. CIT/CCIT/CIT w.r.t
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obtain sanction before issuing of notice u/s 148 after 4 years, has been
enacted by the legislation with a particular intent.
6. It was submitted that in the instant case, notice u/s 148 (which is
w.r.t A.Y. 2008-09) was issued on 18.03.2015 i.e. beyond the period of
4 years, hence as per Section 151, approval of Pr. CIT/CCIT/CIT should
have been obtained. However, a bare perusal of reasons recorded
(received with AO’s letter dated 12.04.2021) shows that such an
approval has been taken from ld. JCIT, Range – 6, who is not the
authorized & competent authority u/s 151 to accord such a sanction.
Hence, the impugned notice u/s 148 and the consequently, impugned
assessment order passed u/s 147 must be quashed on this ground itself
in absence of requisite approval from the competent authority U/s 151
of the Act.
7. In support of his contentions, reliance was placed on the Hon’ble
Delhi High Court decision in case of CIT vs. SPL’s Siddhartha Ltd. (2012)
taxmann.com 138, Hon’ble Rajasthan High Court in case of Dhadda
Exports vs. ITO (2015) 58 taxmann.com 176 and Hon’ble Mumbai High
Court decision in case of Miranda Tools (P.) Ltd. vs. ITO (2020) 114
taxmann.com 584. It was submitted that in the aforesaid decision of
Hon’ble Bombay High Court, an earlier decision in case of CIT vs.
Aquatic Remedies (P.) Ltd. [2018] 96 taxmann.com 609 again passed
by the Hon’ble Mumbai High Court has been considered and an appeal
filed by the Department against the said decision before the Hon’ble
Supreme Court has since been dismissed and case decided in favour of
the assessee.
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8. Per contra, the ld. DR has relied on the order of the lower
authorities and it was submitted that the reopening of the assessment
was done after recording of the reasons that the income to the tune of
Rs 22,97,600 has escaped assessment and after obtaining prior
approval of the JCIT who was the competent authority U/s 151 of the
Act. It was submitted that once an approval has been taken from the
competent authority, the AO was not in breach of law and there is no
infirminity in the action of the AO in assumption of jurisdiction u/s 147
where the AO has recorded specific reasons based receipt of
information that the income has escaped assessment. The ld DR
accordingly supported the order of the lower authorities.
9. We have heard the rival contentions and perused the material
available on record. The proposition which has been advanced by the
ld A/R and raised for our consideration is that the Assessing officer has
failed to sought the authorization from the relevant and competent
authority prior to issuance of notice u/s 148 of the Act and the
impugned notice u/s 148 and the consequently, the assessment order
passed u/s 147 therefore be quashed and set-aside. What is therefore
required to be seen is the law as applicable prior to the issuance of
notice u/s 148 and requirement therein in terms of authority which was
competent to authorize the issuance of such notice.
10. It is noted that the provisions of section 151 have undergone a
change and substituted by the Finance Act, 2015, w.e.f. 1.06.2015.
Undisputedly, in the instant case, the notice U/s 147 of the Act was
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issued on 18.03.2015 and in terms of unamended law as existing prior
to issuance of notice u/s 148 and applicable in the instant case, the
provisions of section 151 read as under:-
“151. Sanction for issue of notice.-(1) In a case where an
assessment under sub-section (3) of section 143 or section
147 has been made for the relevant assessment year, no notice
shall be issued under section 148 [ by an Assessing Officer, who
is below the rant of Assistant Commissioner [ or Deputy
Commissioner], unless the [joint] Commissioner is satisfied on the
reason recorded by such Assessing Officer that it is a fit case for
the issue of such notice:
Provided that, after the expiry of four years from the end of the
relevant assessment year, no such notice shall be issued unless[
Principal Chief Commissioner or] the Chief Commissioner or [
Principal Commissioner’ or Commissioner is satisfied, on the
reasons recorded by the Assessing Officer aforesaid, that it is a fit
case for the issue of such notice.
(2) In a case other than a case falling under sub-section (1), no
notice shall be issued under section 148 by an Assessing Officer,
who is below the rank of [Joint] Commissioner, after the expiry
of four years from the end of the relevant assessment year,
unless the [Joint] Commissioner is satisfied, on the reasons
recorded by such Assessing Officer, that it is a fit case for the
issue of such notice.”
11. Admittedly, in the instant case, no assessment u/s 143(3) or
section 147 has been made for the impugned assessment year prior to
issuance of notice u/s 148 of the Act and the impugned notice u/s 148
has been issued after the expiry of period of 4 years from the end of
the impugned assessment year i.e. AY 2008-09. The provisions of
Section 151(2) of the Act will be applicable in the instant case and in
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terms of which, the prior approval of the JCIT is required to be obtained
before issuance of notice U/s 148 of the Act that it is a case fit case for
such issuance of such notice and thus, JCIT has been designated as the
competent authority. During the course of hearing, a report was called
from the AO and on review of the report provide by ITO, Ward 6(1),
Jaipur dated 12.04.2021, it is noted that the approval U/s 151 of the Act
has been obtained from the Joint Commissioner of Income Tax, Range-
6, Jaipur. Therefore, it is manifest from the record that the approval
has been taken from the JCIT who was the competent authority at the
relevant point of time before issuance of notice U/s 148 of the Act.
12. The contention advanced by the ld A/R that approval from Pr.
CIT/CCIT/CIT should have been obtained in the instant case as the
notice u/s 148 has been issued after lapse of 4 years from the end of
the relevant assessment year is apparently guided by the amended law
which, as we have noted above, is made effective by the legislature
w.e.f 1.06.2015 and there is nothing in law which provides that the
same will be applicable retrospectively. The amended law is not
applicable in the instant case as it is a settled legal proposition that the
law as applicable on the date of issuance of notice has to be seen and
not the law which has been amended subsequently as the authorization
of the competent authority has to be obtained prior to issuance of such
notice and not post-facto and it is only the authority who is competent
at the relevant point in time which can authorize such action. Therefore,
the contention so advanced cannot be accepted.
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13. We have also gone through the decision of the Hon’ble Rajasthan
High Court in case of Dhadda Exports (supra) heavily relied upon by the
ld A/R. In that case, the facts of the case were that the original
assessment was completed u/s 143(3) and thereafter, notice u/s 148
was issued after expiry of four years from the end of the relevant
assessment year and in terms of proviso to section 151(1), the approval
of CCIT or CIT has to be taken whereas the AO had sought approval of
the JCIT and in that context, the Hon’ble High Court held that where
specific provisions have been inserted in terms of proviso to section
151(1), the Assessing officer cannot find escape route by taking
recourse to section 292B of the Act and the notice so issued therefore
was held to be invalid in eyes of law. The relevant findings of the
Hon’ble High Court are respectfully noted as under:
“11. The objection to show cause-notice under Section 148 of the
IT Act has been rejected by the Income Tax Officer by impugned
order dated 15.01.2015 citing, apart from various reasons, also
the reason that required sanction of Commissioner of Income
Tax was not taken due to oversight that assessment of the
assessee firm had already been completed under Section
143(3). It was stated that mistake was committed inadvertently
and is curable by recourse to Section 292B of the IT Act. That
plea is liable to be rejected because when specific provision has
been inserted to the proviso to Section 151 (1), as a
prerequisite condition for issuance of notice, namely, sanction of
the Commissioner or the Chief Commissioner, the assessing
officer cannot find escape route for not doing so by relying on
Section 292B. The Delhi High Court in CIT Vs. SPL’s Siddhartha
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Limited, has while holding that when a particular authority has
been designated to record his/her satisfaction on any particular
issue, then it is that authority alone who should apply his/her
independent mind to record his/her satisfaction and satisfaction
so recorded should be ‘independent’ and not ‘borrowed’ or
‘dictated’ satisfaction, rejected contention of the revenue that
obtaining approval from the authority other than the one who
was competent to grant such approval, was mere irregularity
committed by the Income Tax Officer. And that it was rectifiable
under Section 292B of the IT Act cannot be accepted as such
irregularity is not curable under Section 292B.
12. In the opinion of this court also, resort to Section 292B of
the IT Act cannot be made to validate an action, which has
been rendered illegal due to breach of mandatory condition of
the sanction on satisfaction of Chief Commissioner or
Commissioner under proviso to sub-section (1) of Section 151.
This is an inherent lacunae affecting the very correctness of the
notice under Section 148 and is such which is not curable by
recourse to Section 292B of the IT Act.”
14. In the instant case, as against provisions of section 151(1) read
with proviso thereto, the provisions of section 151(2) are applicable as
no assessment has been completed earlier either u/s 143(3) or section
147 and in terms of mandatory condition prescribed under section
151(2), the Assessing officer has duly sought and obtained approval
from the JCIT who was the competent authority as so prescribed under
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law before issuance of notice u/s 148 of the Act. This is thus no
oversight on part of the Assessing officer and no inherent lacunae
affecting the very correctness of the notice issued under Section 148
of the Act. Therefore, the said decision is distinguishable on facts and
doesn’t support the case of the assessee. Similar is the case with the
other decisions relied upon by the ld A/R which stand distinguishable on
facts. Therefore, the contention so advanced by the ld A/R cannot be
accepted and the same is hereby dismissed.
15. Another contention which has been raised by the ld A/R is that a
specific request was made to the AO vide letter dated 10.01.2017 to
supply copy of the reasons recorded prior to issuance of notice u/s 148
but no response was given by the AO and reliance was placed on
various Court decisions in support of the proposition that mandatory
requirement to communicate the reasons has not been followed by the
AO which renders the subsequent proceedings as invalid in eyes of law.
16. In this regard, firstly, it is noted that the AO in the assessment
order has stated that “the reasons for reopening were duly conveyed to
the assessee” and therefore, on this basis itself, where the reasons
have been duly communicated to the assessee, the contention so
advanced by the ld A/R deserve to be rejected.
17. Having said that, it is noted that the assessment was completed
u/s 147 r/w 143(3) vide order dated 23.10.2015 and after completing of
the assessment proceedings, the assessee is claiming to have requested
the AO vide his letter dated 10.01.2017 to supply copy of the reasons.
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We therefore find that during the entirety of the assessment
proceedings, the assessee has neither sought copy of the reasons so
recorded nor any objections have been filed against such reasons
during the assessment proceedings and therefore, where the assessee
has not sought and has infact participated in the assessment
proceedings, we don’t find there is any prejudice which has been
caused to the assessee and even there is no violation of any of the
directions so laid down by the Courts in this regard. Thus, the
contention so advanced cannot be accepted.
18. Another contention which has been raised by the ld A/R is that
the AO had no reason to believe but reason to suspect that the income
has escapement assessment and there is no honest application of mind
and it was clearly a case of borrowed satisfaction. We have gone
through the reasons so recorded by the Assessing officer and find that
the AO was having sufficient material in his possession for formation of
prima facie belief that the income has escaped assessment in the hands
of the assessee. In the result, the contention so advanced cannot be
accepted.
19. In the result, ground no. 1 and 2 of assessee’s appeal are
dismissed.
20. Now, coming to the merits of the case and ground of appeal no. 3
taken by the assessee. In this regard, the ld A/R submitted that based
on the AIR information, when asked as regards the deposits of
Rs.22,97,600/- in the bank account, the assessee produced a cash book
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with detailed narration of the entries made therein. The AO tabulated
self-explanatory chart of such deposits at pg 2 & 3 of the assessment
order. The explanations furnished w.r.t. various deposits, was accepted
to the extent of Rs.4 lakhs being the gifts received by the assessee from
his father and also the advance of Rs.4 lakhs received towards the sale
of property G-8, Raj Plaza, Raja Park Shop, Jaipur. However, the
explanation w.r.t. the remaining balance of Rs.14,97,600/- was
disbelieved and rejected as per chart below:
S.No. Particulars Amount (Rs.) Source
1. Opening Balance 3,20,000/- Cash Book (AO
Pg-3)
2. Deposited by Smt. Dimple Home Tuitions,
(Wife of the assessee) out Cash Gifts
of her past savings) 6,00,000/- received on
Festivals
Stridhan
3. Balance Amount (various
Out of Bank
amounts deposited in 5,77,600/-
Withdrawals
Bank).
Total 14,97,600/-
Accordingly, an amount of Rs.14,97,600/- was added u/s 69A as
unexplained income of the assessee for the given year. In the first
appeal, the assessee filed detailed written submission dated 09.02.2017
and additional written submission dated 22.02.2017, however, the ld.
CIT(A) summarily confirmed the addition vide order dated 15.03.2018 in
appeal no. 363/15-16.
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21. It was submitted that the lower authorities rejected the
contention of the availability of opening cash in hand of Rs.3,20,000/-
simply saying that the assessee failed to file any documentary evidence
in support and that the assessee was not filing ROI regularly which does
not appear to be a correct fact. It is submitted that the assessee was
already filing ROI in the past as well. The recent being in AY 2006-07,
when the ROI was filed on dated 15.09.2006 declaring total income of
Rs.96,355/-.
22. It was submitted that it was mainly out of a gift of Rs.3 Lakhs
received from the mother through her bank account vide cheques no.
769252 and 769251 in the F.Y. 2004-05 and 2005-06 respectively and
even a copy of bank statement of the assessee showing the deposit of
Rs.3,00,000/- was submitted before the AO vide letter dated
05.10.2015, and even reproduced and admitted by the AO at Pg 3.
However, since the same was not available while appearing before the
CIT (A), a specific request was made to the AO vide letter dated
10.01.17 to supply a copy of such bank statement but unfortunately
there was no response given by the AO. Unfortunately, even the CIT (A)
has comfortably ignored these facts and instead of calling for the
assessment records, wrongly stated that Bank account of the assessee,
showing corresponding credit, was not produced, which fact is contrary
to the record available before AO.
23. It was submitted that the lower authorities have completely
ignored such crucial evidences, which directly prove the source of the
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opening balance. It is a fact that neither the AO nor the CIT(A) made
any enquiry directly from the bank to ascertain the truth of the claimed
transfer of gift amount from mother of the assessee. In absence of
categorical rebuttal of cogent evidences though available on record,
there is no scope of any assumption or presumption. If the revenue fails
to discharge the onus shifted to them they are bound to accept the
explanation and un-rebutted evidence furnished by the assessee.
Hence, opening balance of Rs. 3,00,000/- was fully established. The
rest minor amount of Rs.20,000/-, was out of the past savings of the
assessee. The impugned addition to this extent, therefore, deserves
deletion.
24. It was submitted that the wife of the assessee is aged 28 yrs and
belongs to Sindhi community. It is a matter of common knowledge in
Sindhi community the parents and other relatives from both the sides
are used to give handsome gifts to her daughter/daughter-in-law on
various occasions. Moreover, ladies are bold and open minded and are
normally engaged in some income earning activity.
25. It was submitted that there apart, she had been taking batch
tuitions of the children upto 8th standard since last several years. Alist of
students was submitted. The ld. AO rejected the contention simply
saying that it seems to be an afterthought story, which is not at all a
valid ground to reject the explanation in as much as an evidence was
submitted by the assessee which must have been rebutted or
controverted by the AO and could not be ignored merely on suspicion.
It is a fact that AO did not make any enquiry from any of the tutors /
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students even though their mobile numbers were given. In absence of
categorical rebuttal of cogent evidence available on record, there is no
scope of any assumption or presumption. In addition, she was in receipt
of customary gifts from both the sides on different occasions, regular
pin money, which could constitute her Stridhan, the very fact of cash
deposit by her, is the evidence of availability of past/current savings.
The habit of savings in Indian society and particularly by the Women is
well known in the world. The cash found and got exchanged during
demonetization period is the best example. Thus, in any case, the
human probability preponders in favor of the assessee keeping in mind
the entirety of the facts and circumstances that, a lady of 38 years from
sindhi community, must have saved at least to the extent claimed.
26. It was also submitted that a reading of the impugned order
suggest that the AO proceeded on mere suspicion and started with a
negative mind in as much as the explanation w.r.t. the source of Rs.6
lakhs from the wife was also rejected in a few words. Similarly, he
doubted the deposit of the bank of Rs.22,97,600/- saying that it was
beyond imagination that a low paid employee was able to make savings
of such a huge amount. Thus, the AO proceeded with a preconceived
notion that the deposits made in the bank account was completely
sourceless and that has certainly the acceptance of a valid and plausible
explanation put forth by the assesse before him.
27. It was submitted that the assessee has been working since last
several years. Belonging to Sindhi community where there is a tradition
of entering into business at an early age, the appellant also started from
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the age of 15 years and continued till he was 29 years in relevant
assessment year and has been earning salary. He was in receipt of
salary income of Rs. 84,000/- as evident from ROI filed on 15.09.2006
for AY 2006-07 and ROI filed on 26.08.2015 for AY 2008-09 (in
response to notice u/s 148 of the Act. There apart, the current year
income was Rs. 1,00,460/-.Thus, taking a fair average at the rate of Rs.
65,000 p.a. for the period of 14 years after reducing his out of pocket
expenses he was in receipt of Rs. 8.50 lakhs.
28. It was further submitted that family of the appellant consisted of
four members being himself, wife, one son around 4 years and father,
who is residing their own house. Looking to their simple habits and no
club membership nor other lavish expenses, being from sindhi
community, their monthly expenses was Rs. 10,000 p.m. /1,20,000 p.a.
which was met by the father only. Thus, the assessee could save Rs.
8.50 lakhs. Even assuming the contentions in the hands of wife of Rs. 6
lakhs is not accepted in full, the saving in the hand of the husband of
around Rs. 3 lakhs (approx.) (Rs. 8.50 lakhs less Rs. 5.70 lakhs) was
available for deposit.
29. It was submitted that the ld. AO completely ignored that it was
not only deposits in the bank account but at the same time, the assesse
also kept on making withdrawals from the same very bank account and
the amount so withdrawn were certainly available with the assesse. The
AO proceeded one way only completely ignoring the fact of withdrawal.
Even assuming there was no evidence at all of the source, if the AO
wanted to make use of the material i.e. bank account and the deposits
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made therein, such material must have been used in the best possible
manner to make a best judgment assessment. If he could rely on a part
of the evidence, which was used against the assesse, he couldn’t have
ignored the other part of the same very evidence, simply because that
other part was to the favor of the assessee. Based on the same very
bank account, a chart has been prepared which shows the continuous
cash deposits and cash withdrawals leading to a peak of Rs.16,66,100/-
on dated 04.12.2007, out of which a sum of Rs.8,00,000/- has been
accepted by AO (being the advance received of Rs.4 lakhs and gift
received from father for Rs.4 lakhs) resulting in the remaining peak of
Rs. 8,66,100/-. Out of this remaining amount, opening balance available
of Rs.3,20,000/- of which a sum of Rs.3,00,000/- received on account of
gift from mother duly supported by copies of cheques(PB 19-20), if
considered, leaves a mere sum of Rs. 5,66,100/- which otherwise
sourced from the savings of his wife. The ld. CIT (A) is silent on this
aspect. In support, reliance was placed on the following decisions:-
• Sind Medical Stores vs. CIT (2015) 117 DTR 78 (Raj.)
• Chetan Gupta vs. ACIT (2013) 144 ITD 344 (Del.)
• Smt. Maina Devi v/s ITO (2005) 98 TTJ 21 (JD)
• ACIT v/s Ram Gopal Manda (2008) 40 TW 16 (Jd)
• Thyarmal Bal Chand 165 ITR 453 (Raj).
30. It was submitted that the AO completely ignored the settled law
that u/s 68, 69 etc. only a discretion has been conferred upon the AO to
be exercised judiciously but he is not always obliged to make the
addition if the explanation is not found satisfactory. Kindly refer CIT v/s
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P. K. Noorjahan (1999) 237 ITR 570 (SC). In view of the above facts of
availability of sufficient cash, the impugned addition may kindly be
deleted in full.
31. Per contra, the ld. DR has relied on the order of the lower
authorities and our reference was drawn to the findings of the ld CIT(A)
at para 3.3 of her order which read as under:-
“3.3 …….It is seen that the AO has accepted an amount of Rs. 8
Lacs for which the sources had been explained, however
regarding the balance amount the AR could not produce and
documentary evidence for the claim made by it regarding the
opening balance. As has been correctly observed by the AO
regular returns of income are not being filed by the assessee and
the claim of gift from the mother could not be proved. The copies
of cheques produced in the present proceedings were illegible
and the corresponding bank account of the assessee in which the
same were deposited were also not produced. In view of the
same, the explanation for this amount cannot be accepted. Again
as regards the amounts given by the wife, no details whatsoever
evidencing the availability of Rs. 6 Lakhs with her were produced
either during the assessment proceedings or in the appellate
proceedings, only general submissions regarding gifts, stridhan
and tuitions were made. The balance amounts were explained
through past savings and again were not supported by any
evidences. As per the ITR filed for assessment year 2006-07 the
assessee had only shown salary income of Rs. 84,000/- and
income from other sources of 12,000/-, it is unimaginable how
with such meager income, past savings of these amounts could
be accumulated.
As regards the alternate plea taken by the AR regarding the peak
credit, firstly this theory would apply when the deposits made are
from explained scources whereas in the case of the appellant, the
major deposits have remained unexplained. Reliance is placed on
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the decision of [2012] 25 taxmann.com 440 (Delhi) in the ITAT,
Delhi bench ‘E’ Manoj Kumar Jain vs. ITO, the head note is
reproduce below:-
“Section 69 of the Income-tax, 1961- unexplained investments –
Assessment year 2006-07- where assessee could not explain
source of amount deposited in bank, addition made under section
69 was justified [ in favour of Revenue]
“Thus, it is clearly evident that the appellant could not explain the
sources of the cash deposits made during the year in the savings
bank account , the addition of the same as unexplained income
under section 69A by the AO, is conformed. Ground of appeal is
dismissed.”
32. We have heard the rival contentions and perused the material
available on record. The issue under consideration relates to source of
cash deposits of Rs 14,97,600/- in the bank account maintained by the
assessee.
33. Firstly, it has been claimed that an amount of Rs 3,20,000/- has
been deposited out of opening cash in hand as on 1.04.2007 and the
source of such opening cash in hand has been claimed to be receipt of
gift of Rs 3,00,000/- from the assessee’s mother in the financial year
2004-05 and 2005-06. The ld CIT(A) has returned a finding that claim
of gift from the mother couldn’t be proved and copies of cheques
produced were illegible and corresponding bank account of the assessee
in which the same were deposited were also not produced. It has been
claimed before us that the copies of cheques as well as bank statement
of the assessee showing deposit of cheque were submitted before the
AO and the same has not been considered by the ld CIT(A). We
accordingly remand the matter back to the file of the AO to verify the
19 ITA No. 808/JP/2018
Shri Shyam Gidwani vs. ITO
said claim of the assessee and decide as per law after providing
reasonable opportunity to the assessee.
34. Secondly, it has been claimed that an amount of Rs 6,00,000/-
has been deposited out of tuition fee receipts from assessee’s wife and
in support of such contention, a list of students has been submitted
along with their phone mobile numbers before the Assessing officer and
no enquiry or categorical rebuttal has been done by the Assessing
officer. If we were to consider the contention so advanced by the ld AR
and look at the list of eight students along with tentative fees of
Rs 800-1000/- shown against their name, we find that it adds up to a
figure of Rs. 96,000/- on the higher side and still, the remaining amount
remain to be unexplained. The explanation which has been submitted is
that the assessee’s wife has been teaching for past several years and
she has been receiving the tuition fees from the students besides there
are other household savings which have been handed over to the
assessee for deposit during the year. We find that such an explanation
has to be supported with certain credible facts and figures for each of
the past years and should be balanced and not one-sided in terms of
receipts, expenditure and savings for each of the past years and
availability thereof. And therefore, a mere explanation without
reasonable corroboration with facts and figures remains merely an
assertion and which cannot be accepted on face value. In the result, the
explanation so submitted in support of source of deposit of Rs 6 lacs
cannot be accepted and is hereby dismissed.
20 ITA No. 808/JP/2018
Shri Shyam Gidwani vs. ITO
35. Regarding the balance amount of Rs 5.77 lacs, it has been
claimed to be out of past savings. We find that where the assessee has
already claimed deposits of Rs 3.2 lacs out of opening cash in hand, the
same is nothing the past savings which is available at the beginning of
the year. In such a situation, we failed to understand how the assessee
is claiming source of cash deposits out of opening cash in hands and
past savings twice. In any case, no credible evidence has been placed
on record in terms of past savings as so claimed and the contention so
advanced is hereby dismissed.
36. Regarding alternate plea of working out the peak credit, it has been
claimed that there are deposits which have been made out of earlier
withdrawals during the year and the same has been ignored by the
Assessing officer. In absence of any findings recorded by the AO, we
set-aside the matter to the file of the AO to examine the said claim of
the assessee and decide as per law after providing reasonable
opportunity to the assessee.
In the result, the appeal of the assessee is partly allowed for
statistical purposes.
Order pronounced in the open Court on 21/10/2021.
Sd/- Sd/-
¼ lanhi xkslkbZ ½ ¼foØe flag ;kno½
(Sandeep Gosain) (Vikram Singh Yadav)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 21/10/2021.
21 ITA No. 808/JP/2018
Shri Shyam Gidwani vs. ITO
*Santosh
vkns’k dh izfrfyfi vxzfs ‘kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Shyam Gidwani, Jaipur.
2. izR;FkhZ@ The Respondent- ITO, Ward-6(1), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.
6. xkMZ QkbZy@ Guard File { ITA No. 808/JP/2018}
vkns’kkuqlkj@ By order,
lgk;d iathdkj@Asst. Registrar
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