TMI Blog2013 (8) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit from M/s Deepak Security of Rs.81,94,000/- - The assessee has to establish by pointing out the relevant entries that the amount of Rs.70,14,083/- is on account of profit from M/s. Deepak Security of Rs.81,94,000. The assessee has failed to furnish such reconciliation before the CIT(A) as well as before us - Onus is on the assessee as it was contention of the assessee that the amount of Rs.70,14,083/- was out of the transaction of Rs.81,94,000/- but the assessee has failed to discharge the onus by not furnishing relevant records and relevant reconciliation. As per the judgment by Hon'ble Madras High Court in the case of CIT vs. Krishnaveni Ammal, [1983 (1) TMI 3 - MADRAS High Court] wherein it was held that the law of evidence mandates that if the best evidence is not placed before the Court, an adverse inference can be drawn against the person who ought to have produced it - In the case under consideration, assessee were asked to furnish copies of Bank accounts but the same were not produced. In the light of the facts of the case and failure on the part of the assessee, the addition made by the A.O. while making assessment under section 153A is correct and in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of Bank from where the demand draft was purchased and nothing has been explained regarding the source of cash sent to the assessee. Therefore, the A.O. made addition of Rs.17,14,083/-. 5. The CIT(A) deleted the addition as under :- (Page nos.3,4 5) "3.2 Appellant's submissions along with assessment order have been considered carefully. Assessment records have also been perused. Return of income filed by the appellant in due course on 31.10.2006 has also been treated the same as filed in response to notice u/s 153A. The above mentioned original return has been processed on same returned income of Rs.15,98,855/- as per intimation dt. 15.02.2007 issued u/s 143(1). During the course of search operations conducted on 28.03.2008 in case of appellant along with her family members, no incriminating document or any material has been found relating to the addition so made by the A.O. Section 153A does not authorise the AO framing of a de novo assessment. The power given by the first proviso of section 153A to assess income for six asstt. years has to be confined to the undisclosed income unearthed during search operations or on the basis of seized material and documents. It is a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquired by the AO himself on receipt of confirmation from the depositor, it cannot be presumed that the deposits made by the creditor is money belonging to the appellant herself. In the absence of any material on record brought by the A.O. as s result of search operations or during the course of assessment proceedings to establish that the sources of the creditors' deposits flew from the appellant, those cash credits cannot be treated as unexplained income of the appellant. In my view, the appellant has duly discharged onus cast on her regarding creditors' identity and creditworthiness along with genuineness of the transactions. Further, AO has made huge addition exceeding Rs.70,00,000/- without even mentioning the section of the I.T. Act under which it is made. Burden on the appellant as envisaged u/s 68 is found to be duly discharged by her. Discretion conferred on the AO u/s 69 of the I.T. Act to treat the source of investment as the income of the appellant, if the explanation offered by the appellant is not found satisfactory, is to be exercised in a judicial manner with due application of mind keeping in view facts and circumstances of the case. AO has not brought any adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Revenue Authorities. Ld. Authorised Representative submitted that the A.O. has wrongly recorded that amount received from M/s Deepak Security against transaction of sale and purchase of shares represents income of the assessee from unexplained sources. The A.O. recorded his finding in extremely casual manner without there being an iota of evidence to support his allegation. The A.O. made addition purely on the basis of presumption and surmises. He further submitted that the A.O. made addition without mentioning section under which he made the addition. The alternate submission of the ld. Authorised Representative was that even if it is assumed that payment of Rs.70,14,083/- as being unexplained income, the same being not assessable as income from salary, income from house property, income from business, a income from capital gains but being assessable under the residual head of 'income from other sources' would not result into any escapement of income as the income computed by adopting any of such course would not result in enhancement of total income of the assessee as compared to the returned income. 9. Alternatively, the ld. Authorised Representative referred to page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked by the Bench to the ld. Authorised Representative to furnish the copies of bank account of ICICI and IDBI Bank account but the same were not furnished. The copies of ICICI and IDBI Bank accounts were called for to verify the fact pointed out by the ld. Authorised Representative that Rs.70,14,083/- is part of Rs.81,94,000/-. The details of deposit of Rs.70,14,083/- was not pointed out by the assessee nor such details are available on record. However, unless contrary materials are put on record, the fact recorded by the A.O. is to be taken as correct which is that the assessee has deposited cash and cheques in the denomination of Rs.49,000/- and Rs.54,000/- totaling to Rs.70,14,083/- in both the Bank accounts. The CIT(A) without appreciating the facts recorded by the A.O. and without verifying the Bank accounts, deleted the addition. The CIT(A) is not correct in observing that during the course of search, no incriminating documents were found, therefore, addition cannot be made because the order of the A.O. is in consonance with provisions of section 153A of the Act. The CIT(A) has wrongly accepted alternate contention of the assessee and allowed telescoping benefit against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. made addition of Rs.88,000/- on account of house hold expenses. The CIT(A) has deleted the said addition following his orders for earlier years. 14. The ld. Representatives of the parties submitted that this issue is covered in favour of the assessee by the order of I.T.A.T., Agra Bench in ITA No.246/Agra/2011 vide order dated 31.07.2013. The relevant finding of I.T.A.T. is reproduced as under :- "4. We have heard Ld. Representatives of the parties and records perused. We find that on identical set of facts addition has been deleted by the CIT(A) in A.Y. 2006-07 and that order of the CIT(A) has been confirmed in ITA No.344/Agra/2011 in the case of ACIT Vs. Smt. Julie Gupta order even dated. The relevant findings is reproduced as below :- "At the outset, the ld. Authorised Representative submitted that this issue is squarely covered by the order of I.T.A.T., Agra Bench in ITA Nos.155/Agra/2011 in the case of Shri Praveen Gupta vide order dated 23.03.2012. The relevant finding of I.T.A.T. is reproduced as under :- "On consideration of the rival submissions, we do not find any merit in this ground of appeal of the Revenue. The AO purely made estimated addition without br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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