TMI Blog2021 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's parents is to be accepted as source of deposit as explained, to that extent there cannot be any addition Assessee explained that mutual advisory income, the assessee deposited ₹ 4,77,346 into his bank account. However, the assessee offered income u/s. 44AD only to the extent of ₹ 3,53,740. Hence the balance amount of ₹ 1,23,603 not offered to tax. Being so, as per assessee's income in revised return 100% of the turnover to be considered as income of the assessee. Accordingly, on this count, ₹ 1,23,606 out of ₹ 4,77,346 to be taxed separately. Regarding garment sale assessee has explained that ₹ 92,54,462 is out of previous withdrawals and sale of garments and pleaded that it is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case. 2. The learned CIT[A] is not justified in sustaining the addition of ₹ 93,67,962/- out of the original addition of ₹ 1,17,52,762/- u/s. 68 of the Act as the unexplained credits in the bank accounts of the appellant under the facts and in the circumstances of the appellant's case. 3. Without prejudice to the above, the impugned addition made is highly excessive as the gross receipts cannot be treated as income and at best only the peak credit could be taxed and hence, the addition sustained by the learned CIT[A] has to be reduced substantially. 4. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent of ₹ 1,17,52,762. Aggrieved by the order of A.O., the assessee filed an appeal before the CIT (Appeals). The CIT (Appeals) observed that there is unexplained deposit into bank account of the assessee at ₹ 93,67,962 though the assessee contended that it was a redeposit of earlier withdrawal from the bank account. On appeal, the CIT (Appeals) observed that the assessee has not able to explain the same with the earlier withdrawals. According to the CIT (Appeals), no reasonable person will do such kind of things and that too so often. The explanation given by the assessee that earlier withdrawals were redeposited to bank account is not supported by any evidence. It was also noted by the CIT (Appeals) that cash deposits are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,53,740 and disclosed profit at 55.26% of this turnover arrived at ₹ 1,95,480 vide Ack. No. 256979350290711 and source was explained on same day i.e. dt. 29.07.2011 vide Acknowledgement No. 257315590290711 wherein declared entire receipt of 100% of ₹ 3,53,740 offered as income. Now if we added the unexplained deposit in Bank Account of the assessee at ₹ 1,17,52,762, the total turnover will be at ₹ 1,21,06,502 and the assessee will have go out of provision of Section 44AD of the Act since the turnover is more than ₹ 1 Crore. As such, in our humble opinion, the ratio laid down by the judgment relied on by the Ld. Counsel for the assessee in the case of Shri Girish V. Yalakkishettar Vs. ITO (supra) and Sarka Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit into bank accounts. 5.2. Regarding cheque deposit of ₹ 6,50,000/-, there cannot be any addition on this count, since there is confirmation letter given by Sri Madhu Sukumaran (PAN FVRPS 7461H). Regarding cash deposit being gift, the assessee filed confirmation letter from Chetan Sharma PAN BAAPS 9229N Dt. 3.1.2018 stating that he has given a sum of ₹ 2 lakhs by way of cash as a gift on 10.08.2010 to his son out of love and affection. Further there is a confirmation letter from Nidhi Sharma PAN AMIPS 5347J Dt. 3.1.2018 a sum of ₹ 2 lakhs gift by way of cash on 18.8.2010 to her son out of love and affection. In our opinion, the cash gift of ₹ 4 lakhs from the assessee's parents is to be accepted as source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osits of ₹ 92,54,462 to be considered as unexplained deposits from 'income from other sources'. It is ordered accordingly. 7. Now the other contention of the assessee's counsel is that the unexplained deposit into bank account cannot be considered as income u/s. 68 of the Act and it should be u/s. 69/69A of the Act. In our opinion, mentioning the wrong section is not fatal, we have to see only the substance not the form. Being so, inter alia, we confirm the addition on this count at ₹ 92,54,462. 8. Levy of interest u/s. 234B of the Act is consequential in nature and mandatory. 9. In the result, the appeal of the assessee is partly allowed. Pronounced in the open court on the date mentioned on the caption ..... X X X X Extracts X X X X X X X X Extracts X X X X
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