Appellant v. Respondent:incoine Taxofficer,Wai'dii,(Revenue)Aayakar Bhawan,Chakradliarnagar, Raigarh (Cg

^°Tax Case No.2 of 2009APPELLANTBriiBiohan Agrawal(Assessee)VersusRESPONDENT:Income Tax Officer. Raigarh.(Revenue)Sd/-Dhirendra MishraJudge<SL-X3Sd/-R.N. ChandrakarJudgePOST FOR JUDGME.NT ON 1^,JANUAR¥,2010Sd/-Dhirendra[Mishra]Judge Tax Case No.2 of 2009 APPELLANT:S/o(Assessee)Jogdhyan Agrawal,C/oB.M.Steel,33,KrishnaShoppingMall,ChetanNagar,Raigarh'CG) Versus RESPONDENT:Incoine TaxOfficer,Wai'dII,(Revenue)Aayakar Bhawan,ChakradliarNagar, Raigarh (CG) Present: Dubey, Sr. Advocate with Shri Neelabh Dubey, Advocate for theappellant. Shri RaieevT Shrivastava wi.th Smt. V. Shraddha Rao, Advocatetbr the responden1t csas, «JJ (Delivered[on][ )4][ iJariuan7,]20[ 10)] The ibllowtngjixlgm.ent ofthe Coiirt was delivered by •a, J. , "Tlie appellant/assessee has preferred this appeal under Section260-A of the Income Taji Act, 1961 (for breviti' the Acf) againstthe impugned order of fhe Income Tax Appellat.e Tribunal (forshort.theTribunal')(Aiinexure-A/3)onthesubstantialquestions of law inentioned at the foot of the memo of appeal.260-A of the Income Taji Act, 1961 (for breviti' the Acf) againstthe impugned order of fhe Income Tax Appellat.e Tribunal (forshort.theTribunal')(Aiinexure-A/3)onthesubstantialquestions of law inentioned at the foot of the memo of appeal.2. BrieHy stated, facts of the case are that the appeUantretum of income for the assessnient vear 2003-04 on 30-9-2003declaring the total income of Rs.77,237/-.The above retz-tniretum of income for the assessnient vear 2003-04 on 30-9-2003declaring the total income of Rs.77,237/-.The above retz-tni'was processed under Section 143 f 11 on 12-12-20.03.A survev processed under Section 143 f 11 on 12-12-20.03.A survev S'g^l^j ^J' under Section 133-A of the Act was conducted in the businesspreniises of the assessee on 18-1-2003.During the course ofSMrvey,excessstock of Rs.55,749/-andexcess cashofRs.7,93,618/- were found to which the assessee surrenderedand offered for taxation as his income fi'om undisclosed sourceof income for the vear besides his regular hiconie.Theassessment was completed and the order was passed underSection143f3)of theActandadditionfor asura.ofRs.7,93,618/- in respectof excess cash and addition ofRs.49,223/-onaccountoflownet.profitwasmade.Accordingly,totalincomefortfae year wascomputed atSs.9,20,080/-. Interest under Section 234-B, 234-D & 244 (1A)of the Act have been chai^ed in the above order.The explanation of fhe assessee that Snit. Priti AgrawalSmt. Rajnrati Devi Agrawal, wife and mother respectively,amoimt of Rs.5,60,000/- and Rs.2,34,000/- for safe custodywith htm was rejected by the Assessing Officer on the foUowinggrounds:- Thereshouldhavebeensomecorroborativeevidence wifh the assessee in support of his clsmiithat excess monev so foiind belongs to his wife-evidence wifh the assessee in support of his clsmiithat excess monev so foiind belongs to his wife- In order to retract froni surrendered aniount,.assesseetriedtoblam.et.hedepartmentalpersonriel that they created pressure on him andhis views were not recorded which was held to beincorrect in t/iew of the endorsement made bv hm'iiii ^his 'In order to retract froni surrendered aniount,.assesseetriedtoblam.et.hedepartmentalpersonriel that they created pressure on him andhis views were not recorded which was held to beincorrect in t/iew of the endorsement made bv hm'iiii ^his ' If there was no undisclosed income, whv fheassessee made of advaiice tax on 4 dat.es paymentassessee made of advaiice tax on 4 dat.es paymentafter 18th Jaauary, 200.3 totaluig to the tiine ofRs.1,75,000/-.Rs.1,75,000/-. t^ss^^^^ ^v.S' S^ •The assessee's business is at outskirt of premisesPathalgaon at asolitaryplaceand in thesecircumstances, no-one would like to take andbriiig a huge money with hini to (tie business froni home.preraises premisesPathalgaon at asolitaryplaceand in thesecircumstances, no-one would like to take andbriiig a huge money with hini to (tie business froni home.preraises If there was no undisclosed income, whv fheassessee made of advaiice tax on 4 dat.es paymentassessee made of advaiice tax on 4 dat.es paymentafter 18th Jaauary, 200.3 totaluig to the tiine ofRs.1,75,000/-.Rs.1,75,000/-. t^ss^^^^ ^v.S' S^ •The assessee's business is at outskirt of premisesPathalgaon at asolitaryplaceand in thesecircumstances, no-one would like to take andbriiig a huge money with hini to (tie business froni home.preraises premisesPathalgaon at asolitaryplaceand in thesecircumstances, no-one would like to take andbriiig a huge money with hini to (tie business froni home.preraises •ConsideringthecloserelationshipoftheappeUant/assessee with Smt. Priti Agrawal andSmt. RaiTirati Devi Agrawal, it was observed tha-tthe statement of The assessee at the assessmentstage 1s only a cooked up story.appeUant/assessee with Smt. Priti Agrawal andSmt. RaiTirati Devi Agrawal, it was observed tha-tthe statement of The assessee at the assessmentstage 1s only a cooked up story.•Persons claiming entrt' could not fumish any proot'that they had kept the money in the businessoreniises of the assessee.The contention of theassessee fhat both of them are regularly assessedt.o tax, ihe Assessing OfB.cer aft.er gomg throughthe bank account statement. observed that onlvsource of thetr incoiae was froiu derivi.ng interest.In. tliese circumstances, a.s bofh the ladies wereadvancingtheir. amouirttoofherpartiesforearniag interest s-nd thus, the;r would not havekeot the monev idle in their liouse.that they had kept the money in the businessoreniises of the assessee.The contention of theassessee fhat both of them are regularly assessedt.o tax, ihe Assessing OfB.cer aft.er gomg throughthe bank account statement. observed that onlvsource of thetr incoiae was froiu derivi.ng interest.In. tliese circumstances, a.s bofh the ladies wereadvancingtheir. amouirttoofherpartiesforearniag interest s-nd thus, the;r would not havekeot the monev idle in their liouse. The appeal preferred by the assessee and the explanationoffered by hiBi wifti regard to excess cash found during sur\rey'operation was fi.ut.her dismissed by the CIT' (Appeals) on fhe[that][ the][ assessee][ did][ not][ funiish][ his][ aifidavit][ dated]ground19-1-2003 immediatelv after fhe conduct oftBe siin/ev orwitliina reasonable tune, if the assessee wanted to retract thest.atement arid sijrrender of uicome ma.de diu-ing tlie course ofsur'.rey.Aflidavit is nothing but a self serving statement, as thesame was ffied before the Assessing Officer 8-ft.er a. protongeddelay of 23 months.Besides the ab.ove ground, CIT (Appeals)also cited other ground for concumng with tlie tmdiag of theAssessuig Of&cer and disiaissing the appeai and accordingly, additionmadebvtheAssessingOtlicerforaSLUUofRs.7,93,618/- was coii&nned aad partly allowing the appeal,relief of Rs.39,22.3/- was accorded and the Assessmg Ofllcerwas directed to re-comput.e the uiterest chargeable under thevarious provisions of the Act. 5. Fu-i'ther appeal prefeiTed by fhe assessee has been dismissed byrhe TTibunaJ by fhe tmpugned order and contention of theassessee that excess cash found basiCaUv related to Smt.Rainrati'Devi Agrawal, motlier and Smt. Priti Agrawal, wife, wasrejected with ari observation that the assessee could notproduce ariy reason for not keeping such money by these twoladies in their Bank accounts, whereas ttie money was found a.ttlie oflice premises of the assessee, which was at the outside ofthe tovm. and ui these cfa-cumstaaces. the contention of theassessee t.hat the above two ladies had kept their inonev m cashwith the e-ssessee for safety purposes is against the humanprobabiiity and, fheT-efore, .the sarne cannot be believed. 5. Fu-i'ther appeal prefeiTed by fhe assessee has been dismissed byrhe TTibunaJ by fhe tmpugned order and contention of theassessee that excess cash found basiCaUv related to Smt.Rainrati'Devi Agrawal, motlier and Smt. Priti Agrawal, wife, wasrejected with ari observation that the assessee could notproduce ariy reason for not keeping such money by these twoladies in their Bank accounts, whereas ttie money was found a.ttlie oflice premises of the assessee, which was at the outside ofthe tovm. and ui these cfa-cumstaaces. the contention of theassessee t.hat the above two ladies had kept their inonev m cashwith the e-ssessee for safety purposes is against the humanprobabiiity and, fheT-efore, .the sarne cannot be believed. 6. Sliri ShashaakDi_ibey,leajnedsenior advocate withSliriNeelabh Dubey, axb/ocate, appearing on behalf of the appeUantargued that the Tribunalsbeloweven after rejecting theexplanation of the assessee were not justified ia treating thetUiexplained inoiiei/ as income of the assessee.Bare reading ofSection 69-A of the Act onlv provides that where the assessee isfound t.o be owner of the unexplained money etc. and the sameis not recorded ii-i the books of account. and where tlie assesseeof'fers no explariation about tfae nature and source of acquisitionor explanation offered by nim is found not satisfactoiy, thesaizie may be deemed to be income of the assessee.However, aburden. is cast upon the Assessing Officer to prove thatujiex.T)lained monev could ha.ve been e.ai'ned bv the assesseeduriftg the fmaneial year. Section 69-A refers to ownership andnot possession.Since the appellant was assessed on tacoine of'Rs. l,26,450/-, it was impossible to conceive fliat he could have earned furfher income of Rs.7,93,618/-.The appellant beingthe husband and son of the ladies and as such the amount inquestion was kept by theia in the business premises of tlieassessee and the tinding of the Tribunals that it was huinanlyiniprobable for them to keep that ainount with the assessee isliighly absui'd. Both the ladies produced their accounts, incometax returns and mdex nuiabers aiid in such circijtnstances, theatbresaid amount ought to have been assessed at their handsprotectiyely, as a doubt had been created as to whom fheincome belonged. 7. On the other harid, Shri Rajeev Shrivastava, leaned cozinsel forthe Revenue would ai^ue that the Assessing Officer afterconsidering the entire argTiments advanced by the assesseerejected liis explanatioa that the excess cash ainount. found inthe premises was kept by his wife and mother by a reasonedorder.CIT has further rejected the explanatioii of the (Appeals)assessee and dismissed the appeal preferred by the assessee.The order of the Assesstng Officer has been confirmed.TheTribunal retying upon the judgments of the Siipreme Court inthe matters of Durga Prasad More (82 ITR} and Sumati Dayal(249 ITR} held that the contention of the assessee that the abovetwo ladies had kept their raone}^ in cash with me assessee forsafety piupose is against. the human probability and, tlierefbre,the saxne ca-niiot be believed. s. Referring to the order da-ted 25-11-2009 passed by this Court iriIT'A No. 125 of 1999 (The Commissioner of Income Tax, Raj.purVersus Shri Satyansj^'an Agrawal, Raipuj}, it was argued thataccepting or re.iect.mgi& the explanation offered bv fhe assessee isa fuiding of fact and the* same does not give rise to anysubstantial question of law. 9. Aft.ercarefuUyconsideringfhereasonsassignedbytheTribunals below for rejecting the explanation oflered by fheassessee for excess of cash amoixnt found during survey s. Referring to the order da-ted 25-11-2009 passed by this Court iriIT'A No. 125 of 1999 (The Commissioner of Income Tax, Raj.purVersus Shri Satyansj^'an Agrawal, Raipuj}, it was argued thataccepting or re.iect.mgi& the explanation offered bv fhe assessee isa fuiding of fact and the* same does not give rise to anysubstantial question of law. 9. Aft.ercarefuUyconsideringfhereasonsassignedbytheTribunals below for rejecting the explanation oflered by fheassessee for excess of cash amoixnt found during survey proceeding[under][ Secti.an][ 133-A][ and][ si.irrender][ by][ the][ assessee]as undisclosed income, we are of the opinion that the forumsbelow have rejected fhe explanation by a reasoned order byrecording concurrent finding of fact.Rejection of explanationoffered bv the assessee is a finding of fact and the saiiie doesnot. give rise to any substantial question of law, as held inSat5'-aaaiyan Agrawral (Supra). There is no substantial questionof law involved in tl~u.s appeal as proposed by the assessee in fhememo of appeal. l0.in the result, fhe appeal being without. any substance deservest.o be dismissed and is herebv di' Sd/-Dhu-endraMishraJudge Sdf-R.N. ChandrakarJudge