TMI Blog2012 (9) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... s explanation, which also impinge on the genuineness aspect of the transaction/s. Addition u/s 69A justified Addition made by estimating income from counseling and lecturing at Rs. 5.00 lacs, as against Rs. 3.52 lacs disclosed by the assessee, in the absence of maintenance of any books of account - assessee contesting power of estimation by AO on ground that assessee was not required to maintain books of accounts - Held that:- Assessee was required to maintain books of accounts u/s 44AA and if books are defective AO has power to estimate income, However that there has to be some basis with the AO in enhancing the assessee's income as declared, and which we find as completely absent in the present case. Accordingly, the addition supposing a higher income is, in our view, not sustainable in law, and is thus directed for deletion - Decided partly in favor of assessee - I.T.A No. 889/JP/2009 - - - Dated:- 22-6-2012 - S/SHRI R.K. GUPTA, AND SANJAY ARORA, JJ. Assessee by Shri Deepak Chopra, Advocate-AR Revenue by Shri D.K. Meena, Junior DR O R D E R Per Sanjay Arora, AM: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's father, expired on March 10, 2004 at Jaipur, and subsequently the assessee moved back to Mumbai. During his period of residence at Jaipur, the assessee was appointed by the State Govt. in an advisory capacity for the SSI sector and, accordingly, earned some income by way of counseling as well as lecturing students and other interest groups, disclosing a (net) income of Rs. 1.96 lacs and Rs. 1.56 lacs from the two activities respectively for the relevant previous year, i.e., April, 2005 to Mach, 2006. The cash for Rs. 10.00 lacs given by his father was deposited by the assessee in his regular bank account during this period, and which the Department has considered as unexplained, i.e., as to its nature and source. Why would the assessee, if he harbored any wrong intentions, deposit the same in his regular bank account? The same only goes to prove the assessee's bona fides. All the three ingredients of a genuine credit, i.e., identity, capacity, and genuineness, which though are applicable only to a credit u/s. 68, and not to the monies, etc. u/s 69A of the Act, are, however, satisfied in the facts and circumstances of the case. The identity is proved inasmuch as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said orders was browsed during the course of hearing itself, with the Bench finding the same as prima facie not applicable in the facts and circumstances of the case. 3.4 The ld. DR , on the other hand, would rely on the orders of the authorities below. 4. We have heard the parties, and perused the material on record, giving our careful consideration to the matter. 4.1 Our first observation in the matter is that the assessee has relied upon, per his written submissions, on the decision, inter alia, in the case of Lt. Magnilal Agarwal vs. ACIT, 300 ITR 372 (Raj.). The same, though not adverted to during the course of hearing nor finding place in the decisions enclosed by the assessee in its paper-book, shall nevertheless be dealt with, being by the hon'ble jurisdictional High Court and, therefore, binding on us. The said decision stands perused. However, we find the same as inapplicable in the facts and circumstances of the case. The reliance by the assessee thereon is on the basis that once an explanation stands advanced by the assessee, the onus shifts to the Revenue. That, in fact, represents trite law. But the moot question is: Whether the assessee has discharged the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., which provisions are themselves rules of evidence, statutorily incorporated, to be rendered by assessee is qua the nature and source of the subject matter of the explanation, viz. the credit, money, bullion, investment, etc. Why, the decision relied upon, as for example in the case of Dy. CIT vs. Prakash H Shroff, 3 SOT 171 (Ahd.), itself clarifies it to be so. 4.3 As regards the three ingredients, we find that though the document (gift letter dated 10-01-2004) is neither witnessed nor attested, yet no doubt stands expressed by the Revenue in respect of the identity of the donor, the assessee's father. The same, therefore, has to be considered as established. 4.4 As regards the donor s capacity, we find that no material whatsoever in its respect has been furnished by the assessee at any stage, including before us. In fact, all that in our view the assessee was required to show in this regard is to exhibit the source of the gift money, as stated in the gift letter, and which he has abysmally failed to. The assessee's father, being a patient of cancer and over 90 years of age (in January, 2004), the sale of land could not have been transacted by him without the active assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple, as, that the said asset was liquidated long back (so that it could not be accepted as the source of the relevant funds), or that the asset could not possess the stated value, or that the money was used somewhere else, etc., and unless it does so, with credence, the assessee s explanation will hold. In fact, in the facts and circumstances of the present case, and even as the assessee's explanation qua proving the donors capacity does not travel beyond making a bald assertion, we find that the Revenue has raised a very valid argument. That is, even assuming the receipt of money from the stated source (which though cannot be a matter of presumption), i.e., the sale of land by the assessee s father; he being a chronic patient of a usually fatal ailment, in advanced age, where even normal medical expenses run high, availability of a surplus of Rs. 10.00 lacs would still be in considerable doubt. The assessee meets this by stating to have met all the medical bills of his father, though again without the support of any material. The assessee's case thus becomes a no-getter, whichever way we look at it. The capacity of the ostensible donor thus remains totally unproved. As afore-sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would also be to no avail. Does the assessee mean to imply that he has some other unaccounted bank accounts as well, in which the amount could have been deposited? To pay the tax, legitimately due, and to recover the same, is the bounded duty of the citizen and the State respectively [refer: Mc. Dowell Co. Ltd. v. CTO (1985) 154 ITR 148 (SC)]. 4.7 The assessee has also, per its written submissions, sought to make out a case of lack of opportunity. Nothing, in fact, could be more inconsistent with facts or farther from truth. In fact, to be fair to the assessee, no such argument was raised by the ld. AR during hearing before us. Rather, we observe no ground to that effect as having been raised before the first appellate authority as well. The assessee's explanation centers around the gift letter dated 10-01-2004, and the attending circumstances (of his father s illness, and subsequent death) which have not been doubted, and duly considered by both the authorities below. There is no case of lack of opportunity; the hearing of his appeal having been in fact specifically adjourned by the tribunal on earlier occasion(s), only to enable the assessee to adduce any evidence in support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ACIT vs. Nem Prakash Khandaka Jain, 35 TTJ 382 (Jp.) was found unsustainable in law, being based on a mere suspicion of the assessee having perpetrated a fraud on the Revenue. The decision in the case of ITO vs. Nagardas Jashraj, 28 ITD 386 (Ahd.) concerns the scope of legal fiction introduced by section 69A of the Act, and which stands discussed hereinabove; the matter stands well-settled by the apex court (refer: Chuharmal vs. CIT (supra) and CIT vs. K. Chinnathamban (supra)). The decision in the case of ACIT vs. Radhey Shyam Bansal, 68 TTJ 136 (Rajkot) rests on the appreciation of the facts of that case; the tribunal finding the assessee to have met the burden of proof on it by furnishing the relevant documents, which were not rebutted by the Revenue. The same is, thus, distinguishable on facts. 5. In view of the foregoing, we confirm the application of sec. 69A in the instant case by the Revenue and, accordingly, dismiss the assessee's Ground No. 1. 6. The second ground by the assessee is in respect of the addition in the sum of Rs. 1,47,605/-, made by estimating his income from counseling and lecturing at Rs. 5.00 lacs, as against Rs. 3.52 lacs disclosed by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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