TaxTMI 
TaxTMI 
2021 (3) TMI 7
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.... The Ld. CIT(A) has erred in refusing to admit the lease deeds drawn in favour of Sri. M. Lokesh, Sri. Rajashekar and Sri. Dharmendra from whom the Appellant had received lease advance of Rs. 63,00,000/- by cash which was a part of the Source of bank deposits 5. The Ld. CIT(A) has erred in not admitting the additional evidence of Lease Deeds under Rule 46A, on the ground that he said lease Deeds were not produced before the AO without appreciating the fact that the Appellant was not in possession of the said Lease Deeds at the time of Assessment Proceedings. 6. The Ld. CIT(A) ought to have appreciated the fact that the AO vide letter dtd: 05-12-2017 directed the Appellant not to produce Bank Statements in which the lease amount was included as per the cash flow statement. 7 The Ld. CIT(A) has erred in holding that the Cash flow statement produced was not reliable on the ground that the said statement was produced for the first time during Appellate Proceedings and the amount of cash deposited on three occasions was in excess of the Lease amount of Rs. 63,00,000/- relating to three lease deeds dtd: 21-04-2014, 04-08-2014 and 09-08-2014 and it was a mismatch. 8. The Ld. C....
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....ssion of additional evidences cannot be claimed as a matter of right and it is the duty of the assessee to explain the circumstances which prevented him submitting such documents before the lower authorities. According to CIT (Appeals) the assessee has not given bona fide explanation for not admitting the additional evidences at the stage of agreement. Thus he has not admitted the additional evidences filed by the assessee. Further he observed that the assessee has not linked the cash deposits with earlier withdrawals. The assessee also not stated for what purpose the cash was withdrawn why it was redeposited. Further from the cash book, it is seen that the lease deposit of Rs. 20 lakhs is received from Shri Lokesh and Rs. 21 lakhs received from Shri Rajashekar but there are cash deposits of Rs. 26.5 lakhs from 4.8.2014 to 5.8.2014. On 9.8.2014, lease deposit ofRs. 22 lakhs is stated to have been received form Shri Dharmendra but there are cash deposits of Rs. 27 lakhs. In all the three instances, the cash deposits exceed the stated source being the lease deposits and there is no explanation given for the excess. The CIT (Appeals) was of the view that the cash book submitted by the....
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....l evidence on the ground that the said documents were not produced before the Assessing Officer. He submitted that the assessee prevented by sufficient cause in producing the following documents required for assessment :- "Documents/Books of Accounts required to be produced 1. Complete set of return of income for the A. Y 201516. 2. All Books of Accounts supporting vouchers to the expenditure debited in the P&L A/c for the year ending 31-03-2015 3. Copy of the Bank/s Account statement for the period from 01.04.2014 to 31.03.2015. 4. Confirmation from Loan Creditors, indicating their sources of income, date/mode of payment, PAN, etc 5. Proof for deduction claimed under Chapter VIA i.e., LIC Payment, Tuition fees, Medical Insurance premix etc 6. Copies of TDS Certificates, Advance Tax Paid, Self assessment tax paid challans, claimed in the return of income". The ld. AR submitted that the AO issued a letter dtd: 05-12-2017 in which he has directed the Assessee not to produce the certain details and the relevant para is reproduced as under : "Please refer to the above and notice u/s. 142(1) of the Income Tax Act, 1961 dated 07/07/2017, issued to you by this office. Ple....
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....nce produced during the Appellate proceedings. The assessee in relation to the cash deposits made into National Co-operative Bank of Rs. 8,87,000/- submitted a confirmation letter issued by the mother confirming the fact that she has gifted a sum of Rs. 4,99,000/- on 22-01-2015 and a further sum of Rs. 1,50,000/- on 10-03-2015. However the Ld. CIT(A) has rejected the explanation on the ground that no evidence was produced as regards the creditworthiness of the Donor even though she was assessed to tax vide PAN: BJFPG1882H. The Appellant submits that the Ld. CIT(A) was not justified in rejecting the explanation without causing any enquiry and also without calling for a report from the AO as to the genuineness of the Confirmation Letter. Therefore the ld. AR submitted that the order of the Ld. CIT(A) is not justifiable and hence the same is liable to be set-aside. 4.3 The assessee in so far as Rule 46A is concerned as regards admission of the Additional Evidence begs to place reliance on the decision of the this Tribunal of Delhi SMC Bench in ITA No. 140/DEL/2018 dtd: 19-06-2018 for the A.Y 2009-10 in the case of Sri. Dharmapal Tyagi v/s. ITO Ward - 1(2) Meerut, this Tribunal placin....
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....D of the Act at Rs. 3,94,540 and disclosed profit at 36% of this turnover arrived at Rs. 11,00,993. Now if we added the unexplained deposit in Bank Account of the assessee at Rs. 1,58,09,656/-, the total turnover will be at Rs. 1,62,04,196 and the assessee will have go out of provision of Section 44AD of the Act since the turnover is more than Rs. 1 Crore. As such, in our humble opinion, the ratio laid down by the judgement relied on by the ld. Counsel for the assessee in the case of Shri Girish V Yalakkishettar Vs. ITO (supra) and Sarka Jain Vs. CIT (supra) cannot be applied. Further there is no rule that when an amount is credited in the Bank Account, it must be taken as receipt from the business. The amount of deposit added u/s. 68 or 69 is income from business or income from other sources depends on the evidence and explanation furnished by the assessee. If the deposits are found in the Bank account of the assessee and the explanation as to the nature and sources of the amount is rejected by the Assessing Officer, in such an occasion, the Assessing Officer is entitled to treat the deposit as 'income from other sources' and not as 'business income'. It is merely because the asse....