TaxTMI 
TaxTMI 
2015 (1) TMI 656
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....made by me, I have got the Certificates. However, the said Certificates are not traceable. Once I receive the same, I will present the same to you. Meantime, you can finalise the tax liability ignoring the Certificates which may be submitted to you in due course". The Ld. CIT(A) ought not to have accepted the assessee's explanation that he sold his business in Finland & he did not have any income in India without considering any evidence whatsoever and merely relying that the statement was recorded on oath during the course of survey. Hence the addition of Rs. 11,18,500/- may be confirmed." whereas in A.Y 2007-08 the Revenue has taken the following effective grounds of appeal : "2) The Ld CIT(Appeals) failed to appreciate the fact that the assessee could not furnish any evidence as to the bringing of approx. US$ 25,196/- to India from Finland which is equivalent to Rs. 10,58,225/-. The Ld. CIT(A) ought not to have accepted the assessee's explanation that he sold his business in Finland & he did not have any income in India without considering any evidence. Hence the addition of Rs. 10,58,225/- may be sustained. 3) The Ld CIT(Appeals) failed to appreciate the fact that the ....
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....Rs. 11,18,000/- made u/s 68." Both the parties agreed that since this ground has also arisen out of addition made for A.Y 2007-08, therefore, the appeal for A.Y 2007-08 be decided first. ITA No. 358/PNJ/2013 (A.Y - 2007-08) : 3. Ground no. 1 is general in nature in both the years and therefore does not require any adjudication. 4. Ground no. 2 in A.Y 2007-08 relates to deletion of the addition of Rs. 10,58,225/-. The brief facts of the case are that the Assessee, Vinod Kumar Bhatia migrated to Finland in the year 1975. He was running readymade garment factory in Finland. The Assessee and his family came back to India and invested the money in starting a business at Goa. He started construction of Hotel La Valencia at Morjim beach in North Goa. The construction was started in A.Y 2006-07 and completed in A.Y 2007-08. The business was started in November, 2006. A survey was conducted in the hotel premises of the Assessee on 12.2.2007. During the course of the survey no books of accounts were found. The Assessee filed balance sheet alongwith the return of income for A.Y 2007-08. On the basis of the balance sheet the fixed assets acquired by the Assessee were tabulated. On the....
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....00 This amount is cash deposited in NRO a/c 16.06.2006 30,000 This amount is cash deposited in NRO a/c 15.07.2006 40,000 This amount is cash deposited in NRO a/c 18.07.2006 45,000 This amount is cash deposited in NRO a/c 24.07.2006 35,000 This amount is cash deposited in NRO a/c 05.08.2006 40,000 This amount is shown as loan from father and Mother. Refer to note 8 which I want you to treat as cash deposited in NRO a/c. 24.08.2006 45,000 This amount is transferred from Syndicate Bank cheque No. 746438 deposited 31.08.2006 49,500 This amount is shown as loan from Father and mother. Refer to note 8 which I want you to treat as cash deposited in NRO a/c 05.09.2006 49,500 This amount is shown as loan from father and Mother. Refer to Note 8 which I want you to treat as cash deposited in NRO a/c 09.09.2006 49,000 This amount is shown as loan from father and Mother. Refer to Note 8 which I want you to treat as cash deposited in NRO a/c 03.10.2006 45,000 This amount is cash deposited in NRO a/c 29.12.2006 40,000 This amount is cash deposited in NRO a/c 01.05.2006 49,000 This ....
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....ption, the A.O. has derived the conclusion, not on the basis of any evidence in his possession, but on the basis of guess-work and surmises. In view of the facts of this case and statement of the assessee recorded during the course of survey, in my option cash deposited amounting to Rs. 10,58,225/- stands explained and A.O. is directed to delete this addition made u/s 68 of the I.T. Act. This ground of the appellant is allowed." 6. We heard the rival submissions and carefully considered the same. Before us the Assessee has filed fresh evidence in the form of bank statement showing that the Assessee has deposited sale proceeds of business of Euro 1,85,000 in the bank Nordea and the last instalment of 26,851 Euros was deposited on 11.4.2007. It was also submitted before us that the bank statement shows name of the Assessee's company "As Oy Karhusuontie". The ld. AR was fair enough to say that this statement was not produced before the authorities below. It was also submitted that this statement consists of not only the deposits out of the sale but also the transfer of the money from the account of other family members. The ld. AR even though submitted this bank statement but has n....
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....rk and surmises and business to be deleted. The A.O. is directed to delete the addition of Rs. 6,02,500/- accordingly. This ground of the appellant is allowed." 8. We heard the rival submissions and carefully considered the same. Section 68 of the Income Tax Act lays down the rule of evidence. In view of the provisions of Sec. 68 the onus is on the Assessee to prove the identity, credit-worthiness of the parties and the genuineness to the transaction. In this case, we noted that the loan has been advanced by the elder son of the Assessee whose identity and genuineness of the transaction is not under doubt. The Assessee has explained the source of his elder son who was doing part-time job in Finland and helping family business and he was staying in Finland since childhood. He explained in his statement about the source but we also noted that there are cash deposits in the account of Shri Amit Bhatia to the extent of Rs. 30,000/-, Rs. 49,000/-, Rs. 45,000/- and Rs. 49,500/- and out of this, loan has been advanced to the Assessee. The source of these cash deposits is not available and even there is no plausible evidence in this regard. To that extent we confirm the addition of Rs. ....
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....which the loan has been advanced to the Assessee. The onus, in our opinion, lies on the Assessee to prove the identity and credit worthiness of the creditor. The ld. AR even though vehemently relied on the order of the CIT(A) but no cogent material or evidence was brought on record to disprove the finding of the AO that the dates of arrival of the loan creditor is different from the dates when the cash has been deposited in the bank account of the loan creditor. We noted that the CIT(A) without verifying and disproving this finding of the AO merely deleted the addition. 11. We, therefore, in the interest of justice and fair play to both the parties set aside the order of CIT(A) on this issue and restore this issue to the file of the CIT(A) with a direction that the CIT(A) shall look into this issue afresh and verify whether the dates of arrival of Assessee's son in India are different from the dates when the cash has been deposited and whether the cash has been deposited in the account of Shri Atul Kumar Bhatia subsequent to the date of his arrival in India. In case CIT(A) finds that the amount has been deposited subsequent to the date of arrival of the deponent and amount of de....
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.... the necessary evidence alongwith the explanation. Income Tax proceedings are not criminal proceedings where oral statement or explanation without giving any evidence has an evidentiary value. In Income Tax the onus lies on the Assessee, in case he makes a claim, to adduce the evidence to support his explanation. We do not agree with CIT(A) that the onus lies on the AO to write to the bank and procure the evidence. In case the Assessee was not having the evidence, the Assessee could have very well asked the AO to verify the transactions with the bank; whether the credit given to him is out of encashment of travellers cheque or not. We, therefore, set aside the order of CIT(A) on this issue and restore this issue to the file of CIT(A) with the direction that CIT(A) shall re-decide this issue in accordance with law after giving proper and sufficient opportunity to the Assessee to adduce evidence on which the Assessee may rely. Thus, this ground stands allowed for statistical purpose. 14. In the result, the appeal filed by the Revenue for A.Y 2007-08 is partly allowed for statistical purpose. ITA NO. 357/PNJ/2013 (A.Y - 2006-07) : 15. The only issue involved in the appeal for....
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....give any explanation, the addition made by the A.O is confirmed." The Revenue has come in appeal before us in respect of deletion of the addition of Rs. 11,18,500/-. 16. We heard the rival submissions and carefully considered the same along with the order of the tax authorities below. We noted that the CIT(A) has simply deleted the addition on the basis of the A.Y 2007-08. In our opinion, each assessment year is different. Facts involved in this year relate to the cash deposited by the assessee in his bank account with ICICI Bank, Mapusa on different dates during financial year 2006-07. We noted that the addition which has been deleted by the CIT(A) in the appellate order for A.Y 2007-08 relates to A.Y 2007-08 though detail does not relate to A.Y 2006-07. During the course of proceedings for A.Y 2007-08 the Assessee has filed copy of bank statement dt. 10.3.2010 for the period 1.4.2007 to 30.4.2007 relating to Nordea bank but no copy of the bank statement was filed for the period relevant to the impugned assessment year. The Assessee in the impugned assessment year relied before us on pg. 28-32 of the paper book which consists of copy of sale deed of the sale of property in F....