TMI Blog2017 (4) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer and failed to furnish any concrete evidences of earning agricultural income and also failed to prove that cash was deposited by them in the above mentioned bank account of the assessee. We have also perused the copies of statement recorded u/s 131 of these two persons in which they have revealed their ignorance about nature of business of the AOP and purpose for which the cash was given by them to the assessee. As perused the copy of deed of the AOP the agreement of AOP was made on the hundred rupees non- judicial stamp paper and nowhere date of stamp paper was indicated, the signing parties also had nowhere mentioned the date of signatures on this deed. We have further noticed that in the copy of the AOP deed it was mentioned that it was cratered on 31st of March 2008 and at serial number 3 of this deed it was stated that bank account number 058015739 in the ICICI bank will be used for its business purposes. In this connection we have gone through the copy of bank statement filed in the paper book submitted by the assessee and noticed that bank account number 058015739 with the ICICI bank was opened on 12th of May 2008 whereas the date of creation of the trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d these are decided together as under. 4. Brief facts of the case are that during the course of assessing proceedings, the assessing officer noticed as per AIR information that assessee had deposited cash of ₹ 17,42,300/- in the saving bank account maintained with ICICI bank. During the course of assessing proceedings at the initial stage the assessee had denied to have bank account with ICICI bank. The assessee stated he was having two bank accounts with Saraswat Co-operative Bank. On further questioning about any other bank account, he revealed that he was having account No. 624401086077 with ICICI Bank which was maintained till 31st March, 2008. He again explained that from the period 01-04-2008 transactions in the said bank a/c was made for the purpose of AYUSHI investment (AOP) in which he was one of the member. On being specifically questioning about the cash deposit of ₹ 17,42,300/- in the ICICI bank a/c and after persuasion by the assessing officer, he ultimately provided copy of statement of saving bank a/c. no. 058401500739 maintained in his name with ICICI bank. He further explained that this bank a/c. pertained to AYUSHI investments (AOP) where he was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer examined these two persons regarding their claim of generating income from agricultural activities and found that except copies of 7/12 of agricultural land, they have not produced any other evidence like nature of agricultural land, evidences of agricultural income generated from agricultural activities, copy of bills of sale for agriculture products etc. Therefore, the assessing officer held that assessee could not prove and explained the cash credit of ₹ 19,37,590/- in the ICICI bank a/c which was added to the total income of the assessee as unexplained cash credit. 6. Aggrieved against the impugned order of the assessing officer the assessee preferred appeal before Ld. CIT(A).The Ld. CIT(A) had sustained the addition by observing as under:- 6.1 I have considered the assessment order as well as the submissions of the appellant. The Grounds of appeal- Ground No. 1 pertains to the addition of ₹ 46,010/- being the amount of unexplained deposit in Bank account. In the reply filed on 10/12/2012, the appellant submitted on page 2 of his Paper Book that he is not able to give proper evidence regarding the deposits of ₹ 46,010/- even during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jbahi C Shah, of denial of any knowledge regarding AOP, in the statement on oath recorded u/s 131 of IT Act shows that the transactions are not genuine and it is a make believe story. Another fact which proves that the whole submission is an afterthought, is the Clause 3 of the Deed of AOP of Ayushi Investment dated 31.03.2008, wherein it is mentioned that bank account no.058401500739 in ICICI bank in name of appellant will be used for business by AOP. Interestingly, the bank account opening form shows that the said bank account in ICICI Bank was opened on 12.05.2008 i.e 44 days after the signing of the AOB Deed which shows that AOP deed was ante-dated/back dated to show the source of cash deposits in the bank accounts. 6.2.2 The affidavits have been filed by the appellant in support of the cash deposits. But mere filing of affidavits does not prove that the submissions made by the person swearing the affidavit is true and correct. It is a settled law that affidavit need not always be accepted as correct. It is neither a rule of prudence nor rule of law that the statements made in an affidavit which remains uncontroverted must invariably be accepted as true and reliable. Ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in one or more books. The deposits in such bank accounts may reflect. Unaccounted sales. ; Unaccounted cash introduced. : Unaccounted loan received from other. Unaccounted loans returned by others. Unaccounted sale proceeds of investments such as shares, properties. 6.2.7 Details may not be available to segregate the deposits into the above heads and quantity the total amount under each of the above heads. Estimating the profit as a percentage of the total of the deposits would be incorrect. In such cases, working out the peak credits (receipts) or the debits (Payment) may give an indication of the total unaccounted money in the possession of the assessee which may be assessed as his income. 6.2.8 But the peak credit statements can be prepared only if records for the receipt and payment of money for the entire accounting period are kept. The record need not be regular books of account maintained under double entry system. Even a rough account where dates of receipt and payment of money are recorded would suffice. For example: where an assessee maintained undisclosed bank accounts, from the bank account statements, peak credit or the pea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im but someone else the onus is on him to establish it because the ordinary presumption is that he is the owner as the money etc. was found in his possession. Similarly, in all cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where, however, the assessee claims exemption, the burden is on the assessee to prove it to be exempt. Same is the position in case of allowances, deductions, or claims of loss, etc. Similarly, where there is a statutory rebuttable presumption against the assessee, as in case of cash credits etc., u/s 68 or unexplained investment u/s 69, the initial burden of proof is on the assessee to show that the cash credit is genuine or the investment is not unexplained. The AO should, therefore always examine as to who has to discharge the burden of proof. It may also be noted that in the course of assessment, the burden of proof may shift from one to the other. For instance, if the assessee discharges his initial burden of proof, the onus shifts to the Assessing Officer who must bring out facts to refute assessee's version. 6.2.12. The proceedings under the Income Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee who wants to evade tax is to have some recitals made in a document either executed by him or executed in his favour then the door will be left wide open to evade tax. A little probing was sufficient in the present case to show that the apparent was not the real. The taxing authorities were not required-to put on blinkers while looking at the documents produced before them. They were entitled to look into the surrounding circumstances to find out the reality of the recitals made in those documents. CIT v. Durga Prasad More [1971] 82 ITR 540, at pp. 545, 547 (SC). 6.4 On the basis of the facts and circumstances, it is evident that the appellant has failed to discharge the burden of proof regarding the cash deposits in the Bank account. In absence of any evidence and failure to produce any evidence to substantiate his claim, the addition of ₹ 19,37,590/- u/s 69 of the IT, Act is confirmed and the ground of appeal is dismissed. (Addition Confirmed Rs ₹ 19,37,590/-) 7. During the course of appellate proceedings before us, the learned counsel contended that ld. CIT(A) had erred in sustaining the addition which was duly explained by the assessee. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the copies of statement recorded u/s 131 of these two persons in which they have revealed their ignorance about nature of business of the AOP and purpose for which the cash was given by them to the assessee. 8.1 We have also perused the copy of deed of the AOP available in the paper book and noticed that the agreement of AOP was made on the hundred rupees non- judicial stamp paper and nowhere date of stamp paper was indicated, the signing parties also had nowhere mentioned the date of signatures on this deed. We have further noticed that in the copy of the AOP deed it was mentioned that it was cratered on 31st of March 2008 and at serial number 3 of this deed it was stated that bank account number 058015739 in the ICICI bank will be used for its business purposes. In this connection we have gone through the copy of bank statement filed in the paper book submitted by the assessee and noticed that bank account number 058015739 with the ICICI bank was opened on 12th of May 2008 whereas the date of creation of the trust deed was stated to be 31.03.2008.These facts indicate that the creation of the trust deed as AOP was the afterthought steps taken by the assessee. We further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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