Ashok Kumar Vs ITO (ITAT Chandigarh)
Before parting, it needs be highlighted that for India to achieve the status of a USD 5 trillion economy, the banking industry necessarily needs to have a very robust and transparent mechanisms of zero tolerance of abuse of power without which the Indian ambition can only remain a pipe dream. It can never be over emphasized that in the backdrop of growing NPAs as a threat to the banking sector it is the need of the hour that by practicing rigorous transparency and openness with the ability to critical self regulate their functioning, the banking industry has got the ability to separate the grain from the chaff. The need to encourage and applaud innovation and improvement in governance in the banking sector must be tempered with strict accountability and zero tolerance for abuse of trust and power. The Indian dream of becoming a 5 trillion USD economy is not a mere optimistic dream these aspirations have all the ingredients of inherent potential of an achievable aim. However, this aspiration necessarily has to ride on the shoulders of the banking and financial sectors. Their robustness cannot be compromised. The accountability of individual aberrations must be seen to be fixed to check the rampant irresponsible egos of a few black sheep giving it a bad name. The fact that the Indian growth is to be powered by the Banking and financial sector is well understood. The fact that it is still woefully dis-proportionate and very small vis-à-vis the economy needs proper appreciation. The fact that it is the most powerful engine powering this growth and thus, has a direct role alongwith the tax machinery cannot be ignored. Hence, the robustness cannot be compromised with.
Thus, similarly, the tax authorities necessarily need to have effective and meaningful protocols in place in order to ensure that they are not only trained to be citizen friendly but also seen to be so with robust powers of engaging positively with small town assessees and enabling them to be tax compliant. To expect that the U.S.D. 5 trillion aspirations can be realized with selective encouragements without the active involvement of the village economy and the small town aspirations is being very short sighted. The aspirations can only be realized if the Indian juggernaut in its entirety is put in motion. I am of the view that in order to realize this generally feasible and not highly optimistic ambition of a global economic force status. The tax authorities should be necessarily and urgently trained to enable the nurturing, fuelling and funneling of the small town aspirations of the citizens coupled with the powering provided by the banking and the financial sectors which can ensure the entry of India as a responsible economic force to be reckoned with in the global economic powerhouse of nations. Hence, I am of the view that the citizen/assessee friendly environment and workforce necessarily needs to be set in place at the earliest. Hence, it is my humble suggestion that creation of a TAX ADVISORY CELL is the urgent need of the hour.
FULL TEXT OF THE ORDER OF ITAT CHANDIGARH
The present appeal has been filed by the assessee wherein the correctness of the order dated 12.03.2020 of CIT(A) Karnal pertaining to 2011-12 assessment year is assailed on various grounds. These read as under :
1. Because the action is under challenge on facts & law for concluding the reassessment u/s 147/148 that an amount of Rs. 28,52,200/-.
2. Because the action for upholding the addition of Rs. 27,00,000/-as concealed income u/s 69 is under challenge on facts & law inspite of the statement of the Branch Manager and the representation to the Chairman of Punjab National Bank not finding any consideration in the conclusions.
3. Because in accordance with the section 250(4) of the Act there is misuse of the powers by the CIT(A) by not considering the material facts, containing material particulars on record for adjudicating the controversy in hand.
4. Because the remand report of the Assessing Officer substantiated with the statement of the Bank Manager being a 3rdparty itself justifies & reveals the contention of the assessee to be correct and requiring examination by the Assessing Officer/ CIT(A).
5. Because the prayer is for kindly allowing any addition, modification, deletion, amendment in the grounds of appeal along with the consequential benefit thereon before the disposal of the appeal in the interest of substantial justice for a decision in accordance with law.
2. At the time of hearing, an adjournment application was moved on behalf of the assessee. None was present in support thereof. However, considering the material available on record, it was deemed appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merits after hearing the ld. Sr.DR.
3. The relevant facts of the case are that in view of cash deposits made in assessee’s Saving Bank account No.0660000100036648 maintained with Punjab National Bank, Fatehpur an addition of Rs. 27 lacs was made by the AO.
4. The assessee challenged this addition before the CIT(A) stating that the amount had not been deposited by him. The deposits were stated to be deposits unauthorized by the assessee. Considering possibly the narrations in the bank account, it was submitted that probably some Bank personnel misused the assessee’s bank account by depositing the cash amount by way of a single voucher. It was pointed out that while accepting the deposit, the Bank officials did not record the details of the specific currency denominations being deposited and also failed to record the details of the address, PAN etc. of the depositor. It was pointed out that the cash deposits were accepted without following these protocols. A perusal of the impugned order shows that it was stated that; The cash deposit slip dt. 31.12.2010. Pg.2 obtained ‘ from PNB Bank during assessment proceedings & submitted before AO clearly mentions’ that there is a single cash deposit slip of Rs. 27,00,000/- without any details of currency & without any address of depositor. Moreover, no PAN details of assessee has been mentioned on cash deposit slip which is mandatory for any cash deposit over Rs. 50,000/-. Further to submit that assessee has not issued any cheque for withdrawal of any amount on dt. 01.01.2011. It is humbly submitted that no withdrawal of huge amount can be made without issuing cheque Hence, this clearly shows that deposit & withdrawals have been made by someone else on behest of bank authority & not by assessee.
4.1 It was submitted that since the deposits were not made by the assessee and ultimately transferred vide internal bank transfer, entries in account No. 0904000210151272 the said account holder consequently was the possible beneficiary and the assessee was not answerable for the same. The account holder of the specific bank account could be answerable. It was stated, “In view of above submissions, It is prayed that enquiry be made to find out the real owner/beneficiary of said transactions.
4.2 It is further seen that the assessee relied upon the fact that the amount stood withdrawn by way of transfer entries to another account of some other person whose particulars were known to the bank itself. It was argued that the details of this account holder No. 0904000210151272 was with the Bank, as such the addition in assessee’s hand was said to be not maintainable. A perusal of the submissions extracted in page 4 of the impugned order shows that it was stated, “Further to submit that there is transfer entry of deposit amounting to Rs. 1 7,70,000/- on dr. 31.12.2010 & similarly .amount withdrawn & transferred to account no. 0904000210151272, amounting Rs- 4,50,000/- on same day dt.31. 12.2010 & balance amount withdrawn through transfer entry of Rs-13,20,000/ -on dt .01.01.201 1.the very next date. The said entries are similarly unauthorized transactions (supra). The Said entries are similarly unauthorized transaction are easily traceable as the same are transfer entries & the real beneficiary of said transactions are the account holder of transferor of amount to assessee’s account & transferee of withdrawn amount from assessee’s account.
(emphasis supplied)
4.3 It is also seen that the assessee also relied upon the letter written to PNB Chairman stating more or less the above facts. Copy of which was stated to have been made available to the CIT(A) at Paper Book page 9 requesting the said authority to also make an enquiry regarding unauthorized deposit and withdrawal of amount from his bank account.
4.4 The lack of PAN detail of the person depositing the money was also highlighted.
4.5 The assessee as per record also requested the tax authorities to make enquiry about the real owner/beneficiary of the said transactions.
5. It is seen that the First Appellate Authority instead relying
upon the remand report of the AO extracted in para 3.2 of the impugned order at pages 5 & 6 confirmed the addition in the hands of the assessee. The specific Remand report extracted in the order reads as under :
“2. In this connection, brief facts are that the case of the assesses was taken into scrutiny by issue of notice u/s 148 of the I.T. Act, 1961 to examine the source of cash deposit of Rs. 35,90,000/- made during the F.Y. 2010-11 in his bank account maintained with Punjab National Bank, Village Fatehpur, Distt. Kaithal. In response to notice u/s 148, the assessee filed return of income declaring income of Rs. 1,52,000/-
3 During the course of assessment proceedings, it was required to explain the source of cash deposits made in bank account at Rs. 35,99,000/- with documentary evidence. In response thereto the Ld. Counsel on behalf of the assessee has submitted reply on 30.10.2018 and stated that the source of cash deposits in bank of Rs. 35,99,000/- are out of agriculture income, out of gift received from Brother-in-law and out of withdrawal from the same bank account and out of family savings lying with the assessee.
4. The reply of the assessee was considered by the A.O. but reply on source of (deposit of Rs.27,00,000/- was not treated tenable and additions of Rs.27,00,000/- was made to the total income o f the assessee u/s , 69 of the I.T. Act, 1961.
5. Aggrieved with the order of the A.O. the assessee filed appeal before your goodself and submitted additional evidence on the basis of which remand report has been called for on the basis of additional evidence submitted by the assessee after verification of the same.
6. Now, in compliance to the directions issued vide letter under reference, summons were issued to the Bank Manager for recording his statement. In compliance to summons, Sh. Naresh Bhim, Manager of Punjab National Bank, Village Fatehpur Distt Kaithal attended and furnished written reply on the issue. His statement was also recorded which is placed on records. He has given his explanation in his statement on all the issues raised in additional evidences furnished by the assessee during appellate proceedings. On the issue of deposit of Rs. 27,00,000!– in the bank account of the assessee, statement of the Manager is reproduced as under :
