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TMI Blog2017 (3) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and explanation of the appellant. 2. He has erred in law and on facts in treating the business of cloth as an afterthought. 3. He has also erred in law and on facts in not considering the affidavit of Shri Piyush Patel confirming the sales made to the appellant and also terming the affidavit as self serving document. 4. He has also erred in treating the cash deposit made in the Banks as out of undisclosed sources. 5. On the facts the cash deposits in the Banks made by the appellant ought to have been held as explained and the addition of Rs. 10,54,000/- ought not to have been upheld. 3. Briefly stated, the assessee filed return of income declaring total income of Rs. 3,81,652/- for the relevant Assessment Year 2009-10. The income was declared under the head "salary, business and other sources" for the year under consideration. The case was selected for scrutiny assessment. It was found by the Assessing Officer that during the year under consideration, the assessee has deposited cash of Rs. 18,70,000/- in Axis Bank Ltd, Vastrapur Branch, Ahmedabad and also cash of Rs. 10,54,000/- in ICICI Bank, Vastrapur Branch, Ahmedabad. The assessee was required to prove the source o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 133(6) was not responded to by the supplier. It was asserted on behalf of the assessee that bills and confirmation of accounts furnished by the assessee and her husband are genuine and proper. The assessee further insisted that the Assessing Officer may again ask or investigate his business relationship with the impugned parties, if so considered expedient. The Assessing Officer, however, observed that the purported purchase made in course of alleged trading of cloth merchandise could not be substantiated by the assessee at all. The Assessing Officer further observed that the assessee has not requested for any cross-examination of deponent Shri Piyush Patel, Proprietor of M/s. Jay Ambe Sales Corporation, who gave incriminating statement against the assessee. Further, in the absence of any reply from another party namely Utsav Corporation in response to notice under Section 133(6), the Assessing Officer held that the entire gamut of explanation given by the assessee to support the source of cash deposits is without any factual basis. The Assessing Officer accordingly treated the cash deposit of Rs. 10,54,000/- deposited in ICICI Bank as undisclosed income of the assessee. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the cash deposits out of non-existent trading business is an eyewash and without any discernible basis. The CIT(A) accordingly upheld the action of the Assessing Officer and dismissed the appeal of the assessee. 5. Aggrieved thereto, the assessee is in appeal before the ITAT. 6. The ld. AR for the assessee, at the outset, submitted that the facts of both the cases in appeal are on identical footing. The assessee herein is wife of Shri Anil Yashpal Khosla whose appeal has also been combined along with the present appeal owing to similarity in facts. Coming to the facts of the present assessee, the ld. AR submitted that cash deposit of Rs. 10,54,000/- in question is sourced out of realization of sale proceeds of goods in cash and therefore, the action of the Revenue in holding the cash deposits as unexplained income is totally unwarranted. Addressing the concern raised by the Assessing Officer on bona fides of the transactions and corresponding purchases of the goods supplied by Utsav Corporation and Jay Ambe Sales Corporation, it was submitted that Proprietor of Jay Ambe Sales Corporation has appeared before the Assessing Officer in response to notice under Section 133(6). Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 131 in spite of the request of the assessee, the evidence of the supplier could not have been used against the assessee. The ld. AR thus contended that the assessment order is vitiated. The ld. AR next relied upon the decision of the Hon'ble Supreme Court in the case of Tekram, 93 DTR 350 (SC), to submit that when the additional evidence in the form of affidavit was filed which is relevant, the Assessing Officer ought to have looked into the same before coming to any conclusion on the issue. The ld. AR also relied upon the decision of the Delhi Tribunal in the case of Cheil India Pvt Ltd, 172 TTJ 302, with a prayer that the matter may be set aside to the file of the Assessing Officer to examine the contents of the affidavit. The ld. AR next relied upon the decision of the ITAT in the case of Anar A. Shah in ITA No.672/Ahd/2015, order dated 29.05.2015, for setting aside the order of the Assessing Officer as no reasonable time was granted to the assessee to confront the statement of one of the suppliers. The ld. AR also placed reliance upon the decision of the Hon'ble Gujarat High Court in the case of Zenith Processing Mills vs. CIT, 219 ITR 721 (Guj.), to submit that showcause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment. The Assessing Officer, having noted the inexplicable story made out by the assessee, issued notice to the so called suppliers. While one of the parties has not appeared before the Assessing Officer at all, the other party has categorically denied the bills allegedly issued by them. Thus, no outstanding liability against the alleged purchases can be said to be subsisting in so far as the purported supplier attended before the Assessing Officer. 8.2 We take note that as per the submissions of the assessee before the Assessing Officer, the assessee has never asked for cross-examination of the statement of Shri Piyush Patel - a copy of which was duly provided to the assessee. The assessee has merely requested the Assessing Officer to reinvestigate the business relationship with the supplier viz. Jay Ambe Sales Corporation in the manner he deems fit. 8.3. The affidavit, with a view to retract the earlier oral statement, is admittedly filed after the assessment order has been passed. Interestingly, as per the affidavit, the supplier admitted that the sales bills issued are stated to be bogus in the oral statement. The supplier in the affidavit has claimed to have been coerced i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r external evidence, the contents of affidavit cannot be admitted in evidence per se. The retraction of the earlier statement in total reversal of the earlier stand is without any corroboration. It is not known as to how the outstanding payments of alleged purchases have been made later. The trading is claimed to have been made only for the part of the period ostensibly to give legitimacy to the cash deposits. The trading has abruptly come to an end in the mid of the year without any perceptible reasons. The entire narrative smacks of outright deception to justify the deposits. 8.5. Similar pattern of transactions was found in the case of the husband of the assessee, where another cash deposit of Rs. 18,70,000/- was found to have been made. In that case also, while the sales has been claimed to be realized in cash and deposited in bank, the payment towards purchases remains outstanding, except for a paltry amount of Rs. 85,000/-. 8.6. In the background of sordid facts noted above, the explanation of the assessee towards cash deposits is bald and without any corroboration. On the contrary, one of the suppliers has come forward and given oral statement exploding the myth. The later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inadmissible as evidence. In these circumstances, it was not, in our humble opinion, obligatory on the part of the Revenue to take cognizance of the retraction affidavit. To reiterate, the retraction is clearly an afterthought without any prayer for cross-examination. In contrast, in Prakashchand Nahta's case (supra), there was a specific prayer for crossexamination which was not assailed by the Revenue and accordingly, it was held that the assessment order is vitiated. As noted, the facts in the instant case are totally different. 8.8. Now, we shall advert to the decision of the Hon'ble Supreme Court in Tekram (supra) relied upon. The mater was remanded back in that case for fresh disposal after finding the merit in the fresh documents filed by the assessee in that case. As noted, we find no merit in the retraction of the supplier in the light of circumstances narrated hereinabove. The generic reasons assigned for earlier oral statement against the assessee on threat of reopening is also weird. Thus, the aforesaid decision of the Hon'ble Supreme Court is also not applicable in the circumstances of the present case. Similarly, the decision of the Co-ordinate bench of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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