TMI Blog2023 (1) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2nd round of proceedings, the assessee failed to furnish all the details as sought by the AO. Even in the proceedings before us, the assessee has merely placed reliance upon the documents, which were already considered during the 1st round proceedings. Thus, due to the failure of the assessee in not complying with the directions issued by the coordinate bench of the Tribunal [ 2014 (10) TMI 1062 - ITAT MUMBAI] we find no infirmity in the impugned order passed by the learned CIT(A). Accordingly, the addition made by the AO is upheld. As a result, grounds raised by the assessee are dismissed. - ITA No. 567/Mum./2019 - - - Dated:- 11-1-2023 - SHRI OM PRAKASH KANT , ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL , JUDICIAL MEMBER Assessee by : Shri Prayag Jha Revenue by : Smt. Mahita Nair ORDER PER SANDEEP SINGH KARHAIL, J.M. The present appeal has been filed by the assessee challenging the impugned order dated 19/09/2018, passed under section 250 of the Income Tax Act ( the Act ) by the learned Commissioner of Income Tax (Appeals)-45, Mumbai [ learned CIT(A) ], for the assessment year 2009 10. 2. In this appeal, the assessee has raised following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises, engaged in the business of reselling of engineering tools and hardware iron and steel. For the year under consideration, the assessee filed its return of income on 30/03/2010, declaring a total income of Rs. 63,660. Vide order dated 23/12/2011, passed under section 143(3) of the Act, the Assessing Officer ( AO ) determined the total income of the assessee at Rs.3,99,60,790. In further appeal, the learned CIT(A) vide order dated 22/02/2013, dismissed the appeal filed by the assessee. Aggrieved by the order passed by the learned CIT(A), the assessee preferred an appeal before the Tribunal. The coordinate bench of the Tribunal vide its order dated 10/10/2014, set aside the order passed by the learned CIT(A) and restored the issue to the file of the AO with a direction to examine them afresh. The coordinate bench also directed the assessee to fully cooperate with the AO in completing the assessment by furnishing all details that will be called for and by producing the parties as required by the AO. In compliance with the directions issued by the coordinate bench of the Tribunal, the AO issued various notices to the assessee requesting to produce all the parties from whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken for consideration and the assessee was given opportunity to establish the truthfulness and correctness of the statement made in the affidavit. In this case, the assesse himself as deponent and by issuing summons an opportunity for cross examination of deponent is availed. The assessee failed to substantiate the statement with any evidence and failed to produce parties. iv) The assessee in response to final show cause notice dated 23.01.2015 submitted that money was put in aforesaid two banks A/c and commission was not declared because they have told me to do the same (complete details of these parties is submitted to your honour vide my C.A. letter dt. 05.01.2015) and they convince me that nothing happened to them till today as they are regular hawala dealers. . The acceptance of the assesse clearly shows that he was very much aware about the unaccounted illegal transactions done by him with a clear Intention to evade taxable Income by using various means. v) The affidavit filed by the assessee cannot be taken as evidence as per Hon'ble Supreme Court decision in the case of Mehta Parekh Co. Vs. CIT (SC) 30 ITR 181. In this case the assessee failed to produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble ITAT had carefully considered revenue's contention that the assessee had failed to produce parties before the A.O. during the regular assessment proceedings. But after considering the unconditional undertaking given by the assessee it thought of giving one more opportunity to him. While doing so the Hon'ble ITAT had cast onus to produce the parties squarely on the assessee. The assessee has failed to discharge the onus cast upon him by not producing the parties. The assessee did not establish the alleged source of the deposit of cash made by him in his bank accounts under reference. 6.0 It is therefore concluded that the assessee during the accounting period relevant to this assessment year is found to be the owner of the unaccounted cash of amount of Rs.3,95,46,000/- under reference and the provisions of section 69A of the Act are attracted in his case. Hence, this amount of cash of Rs.3,95,46,000/- under reference is added to his returned income for this assessment year as his income from undisclosed sources. Also the penalty proceedings u/s 271(1)(c) of the Act are initiated for the same. A notice u/s 274 rws 271(1)(c) of the Act is issued separately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the AO in support of his argument, wanted to shift onus to the department by filing a copy of an old affidavit dated 16.11.2011 and wanted the AO to enquire each and every detail given by him with the parties. During the remand report in the first round of litigation, the AO issued summons to the 3 major parties as per the address details given by the assessee; but there was no reply. If the parties do not reply, it is the responsibility of the assessee to produce them and prove that the said parties actually exist and gave him the cash which is the bone of contention, because, it is his claim that cash does not belong to him, but belongs to some other people. The person who makes a claim that money deposited in his own account actually does not belong to him, has to prove to the satisfaction of the AO by filing confirmations, sufficient documentary evidence and producing the parties: The parties are assessee's witnesses; it is for him to produce. Department cannot be asked to produce them because they are not department witnesses. 5.7 An affidavit cannot be accepted unless it is supported by sufficient supporting evidence. The earlier CIT(A) in his order dt. 22.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vide aforesaid order, are as under: 7. We have heard the rival contentions and perused the record. At the time of hearing, the Ld A.R submitted that the assessee has furnished all the details pertaining to the parties from whom the funds were received. She further submitted that the assessee has also made one to one reconciliation linking the deposits with the cheques issued. On the contrary, the Ld D.R submitted that the assessee could not produce the concerned parties before the assessing officer. In the rejoinder, the Ld A.R submitted that the assessee shall be in a position to produce all the parties, if one more opportunity is given. In support of the same, the Ld AR furnished a letter dated 09-10-2014 written by the assessee. In the said letter, the assessee has undertaken to fully co-operate with the tax authorities and also agreed to produce all the relevant parties who have given cash to the assessee and to whom cheques were issued. Further the assessee has also agreed to furnish all other details. Under these set of facts, we are of the view that, in the interest of natural justice, the assessee may be given one more opportunity to prove the cash deposits made into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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