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TMI Blog2024 (5) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of material available on record. ITA No. 943/Del/2020 [Assessment Year : 2008-09] 3. First, we take up the appeal of the Revenue for the Assessment Year 2008-09 i.e. ITA No. 943/Del/2020. The Revenue has raised following grounds of appeal:- 1. "On the facts and circumstances of the case the Ld. CIT(A) has erred in law in restricting the addition amounting to Rs. 35,76,000/- out of Rs. 4,47,71,100/- made by the assessing officer on account of unexplained cash deposits made by the assessee, without appreciating the facts brought on record by the AO in assessment order as no substantial documents has been brought on record regarding the source of cash deposits. 2. Appellant craves leave to add, amend, alter, modify, delete and of change any of the above grounds on or before the date of hearing." 4. The only effective ground raised by the Revenue in this appeal is against the restricting the addition of INR 35,76,000/- out of total addition of INR 4,47,71,100/- made by the Assessing Officer ("AO") on account of unexplained cash deposits. 5. Facts giving rise to the present appeal are that the case of the assessee was re-opened on the basis of information received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... net profit rate should be applied or peak credit may be added in his case. 6.2.3 Vide letter dated 11/09/2019 assessee was asked to explain why there was no compliance even during remand proceedings and he was asked to submit an affidavit regarding the claim of his illness and also submit P&L account, balance sheet and GP and NP rates of last two years and next two years to support his contention regarding applicability of reasonable profit rate. However, no response was submitted by the assessee till date which shows that he has no explanation regarding the cash deposits in his account. 6.2.4 The report of DDIT shows that the shop of the assessee was about 8 feet in front and did not appear to be containing the stock which is commensurate with the cash deposits in the bank account. The assessee's residence and shop at home also did not match with the transaction shown in STR in his bank account. No reply whatsoever has been given at any stage by the assessee nor any documentary evidence such as books of accounts/bills/vouchers regarding business activity submitted in remand proceedings or appellate proceedings to support his contention that net profit of 0.83% may be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Calcutta High Court held that it is necessary for the assessee to prove prima facie the transaction which results in a cash credit in his books of account. Such proof includes proof of the identity of his creditor, the capacity of such creditor to advance the money and lastly the genuineness of the transaction. Only after the assessee has adduced evidence to establish prima facie the aforesaid, the onus shifts to the department. The Madras High Court in the case of V. Datchinamurthy v. Asstt. Director of Inspection [1984] 149 ITR 341 (Mad.) held that it has been a long accepted principle of income-tax law that an assessee is obliged to explain the nature and source of cash credits in his accounts and in the absence of satisfactory explanation on his part, the assessing authorities can very well proceed to treat the amount of cash credits in question as representing the taxpayer's income, The Kerala High Court in the case of ITO v. Diza Holdings (P.) Ltd. [2002] 120 Taxman 539 (Ker.) held that it is clear on the terms of section 68 that the burden is on the assessee to offer a satisfactory explanation about the nature and source of the amount found credited in the books of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the appellant is that assuming that he had failed to establish the case put forward by him, it does not follow as a matter of law that the amounts in question were income received or accrued during the previous year, that it was the duty of the department to adduce evidence to show from what source the income was derived and why it should be treated as concealed income. In the absence of such evidence, it is argued, the finding is erroneous. We are unable to agree. Whether a receipt is to be treated as income or not, must depend very largely on the facts and circumstances of each case. In the present case the receipts are shown in the account books of a firm of which the appellant and Govindaswamy Mudaliar were partners. When he was called upon to give explanation he put forward two explanations, one being a gift of Rs. 80,000 and the other being receipt of Rs. 42,000 from business of which he claimed to be the real owner. When both these explanations were rejected, as they have been, it was clearly open to the Income-tax Officer to hold that the income must be concealed income. There is ample authority for the position that where an assessee fails to prove satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case the Ld. CIT(A) has erred in law in restricting the addition amounting to Rs. 1,59,96,541/- out of Rs. 19,99,56,770/- made by the assessing officer on account of unexplained cash deposits made by the assessee, without appreciating the facts brought on record by the AO in assessment order as no substantial documents has been brought on record regarding the source of cash deposits. 2. Appellant craves leave to add, amend, alter, modify, delete and or change any of the above grounds on or before the date of hearing." 13. Facts in this case are also identical and similar as in ITA No. 943/Del/2020 [AY 2008-09] except figures. 14. We have heard Ld. CIT DR for the Revenue and perused the material available on record. We find that the facts and issues are similar and identical to the ITA No. 943/Del/2020 [AY 2008-09] except figures. Ld. CIT DR for the Revenue has adopted the same arguments in respect of grounds of appeal. Since the facts are identical and no change into the facts and circumstances has been pointed by the Revenue in the year under appeal, the grounds raised in this appeal filed by the Revenue are dismissed. Our decision in ITA No. 943 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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