2020 (3) TMI 593

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.... Commercial Co-operative Bank as unaccounted bank account of the appellant, instead of holding the same as belonging to H.K. Mistry(HUF). It is prayed that the ground needs to be adjudicated properly and the cash credit account no. 118 with Commercial Co-operative Bank be held as belonging to HUF of H.K. Mistry. 2. On the facts and circumstances of the case, the L'd CIT(A)-5 is not justified both-in law and on facts in refusing give credit of opening cash balance of Rs. 8,61,809/- as on 01.04.2009 belonging to the HUF of H.K. Mistry and confirming addition of Rs. 9,56,477/- and not giving deduction of opening balance of Rs. 8,61,809/-. It is prayed that the opening cash balance of Rs. 8,61,809/- be given deduction out of Rs. 956477/-. 3. On the facts and circumstances of the case, the L'd CIT(A)-5 is not justified both in law and on facts (taken as alternative ground) in not admitting claim of interest of Rs. 55146/- on the ground that the conditions u/s 31(l)(iii) is not satisfied and the interest belonged to HUF which had not filed Returns of Income. It is prayed that the interest payment of Rs. 55,146/- of cash credit a/c. no.....

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....a, under section 144A of the Act and justified his stand before him in the manner as discussed above. 3.4 However, the learned Additional CIT disagreed with the contention of the assessee by observing that the account belongs to the assessee as confirmed by the bank that such CC account was opened in the name of M/s H.K. Mistry Prop. Haren Kantilal Mistry (the assessee). Furthermore, for opening the bank account the PAN and the driving license of the assessee was furnished to the commercial bank. But the learned Additional CIT admitted the fact that the impugned account has been used for the business transactions carried out by the member of HUF namely Smt. Alkaben H Mistry Proprietor Darshan Traders. Accordingly, the learned additional CIT directed the AO to allow the benefit of Rs. 3,52,193/- being the amount of sales shown by the member of the HUF for Rs. 4,00,088/- as reduced by the amount of expenses of Rs. 47,895/- only. In view of the above direction by the learned Additional CIT as discussed above, the AO treated the balance amount of Rs. 9,56,477/- (Rs. 13,08,670/- cash deposited minus the transactions carried out by the member HUF amounting to Rs. 352193/-) belongin....

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....as been placed on records to justify the claim that the account belonged to his HUF. In view of the detailed discussion made by the Assessing Officer in the body of the order and the directions of the Addl. CIT, Range-2, Baroda issued to the Assessing Officer and considering the facts of the case and the reply of Bank, Commercial Co-operative Bank Ltd., it is hereby held that the Cash Credit A/c No. 118 belongs to the appellant. On same facts, this type of addition was confirmed by me in A.Y. 2006-07 and 2007-08 in CAB/11-41/13-14 and CAB/11-412/13- 14 vide order dated 30.06.2014. There is no reason to differ from those orders. Accordingly, the addition of Rs. 9,56,477/- is confirmed and Ground No. 1 is dismissed. 5.1 The learned CIT (A), regarding the availability of cash for Rs. 8,61,809/- as opening balance, has also disregarded the contention of the assessee by observing as under: 4.4.2 I am of the view that the Assessing Officer has correctly considered the amount of Rs. 9,56,477/- as unexplained investments of the appellant under the provisions of section 69 of the Act. The contentions of the appellant that there was opening cash balance in HUF account is not veri....

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....fore we are not inclined to repeat the same for the sake of brevity and convenience. From the preceding discussion, the following issues emerge for our consideration: i. Whether the impugned bank account belongs to the assessee or HUF in the given facts and circumstances. ii. Whether there was the opening cash balance available for Rs. 8,61,809/- in the books of HUF which needs to be adjusted against the deposit of cash. iii. Whether the assessee is eligible for deduction of the interest expenses incurred on the impugned cash credit bank account against the income on account of deposit of cash in such bank. 8.1 Regarding the 1st issue, we find that the assessee has furnished his PAN, driving license for opening the bank account. The bank opening form was also signed by him in the capacity of the proprietor as confirmed by the bank. We also find that the cases for the assessee were reopened by the AO under section 148 of the Act for the assessment years 2006-07 and 2007-08 on the reasoning that the assessee has deposited cash in the impugned bank account which has escaped assessment. The AO accordingly made the addition to the total income of the assess....