Varinder Kumar Sood v. Commissioner Of Income Tax-Il, Jalandhar

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No.280 of 2014 (O&M)Date of decision:452015 Varinder Kumar Sood Versus ...Appellant Commissioner of Income Tax-Il, Jalandhar ...Respondent CORAM: HON'BLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE!HON’BLE MR. JUSTICE G.S,. SAANDHAWALIAI Present: Mr. J.S.Bhasin, Advocate for the appellant. Mr. Vivek Sethi, Advocate for the respondents, S.J. VAZIFDAR, A.C.J. (ORAL) inThis is an appeal against the order of the Income Tax AppellateTribunal partly allowing the respondent's appeal against the order of theCommissioner of Income Tax (Appeals) as regards the deletion of anaddition ot=8.75 lacs made by the Commissioner of Income Tax in respectof the assessment year 2009-10. ?DThe appellant has filed this appeal contending that thefollowing substantial questions of law arise for determination of this Court. (1)Whether on facts and on law, the Tribunal was justified todeny the assessee's claim of having utilised the amountdrawn on earlier occasion, to explain deposit on a later date,for want of books of account, when the AO had disallowed iton an erroneous assumption that it was not a cash withdrawalfrom bank but a debit by ‘clearing’, which however, wasaccepted to be cash withdrawal by CIT(A) ?deny the assessee's claim of having utilised the amountdrawn on earlier occasion, to explain deposit on a later date,for want of books of account, when the AO had disallowed iton an erroneous assumption that it was not a cash withdrawalfrom bank but a debit by ‘clearing’, which however, wasaccepted to be cash withdrawal by CIT(A) ?(141)Whether the Tribunal was justified in holding that the onu was on assessee to establish the availability of funds drawnin earlier year, to explain deposits in a later year, contrary tothe decisions of this Hon'ble Court in the cases of ShivCharan Dass vs. CIT(1980) 126 ITR 263 (P&H) and CIT vPrem Chand Jain (1991) 189 ITR 320 (P&H) laying downthat sans any evidence of amount utilised elsewhere,department could not reject a good explanation into noexplanation? (111)Whether the ITAT was justified in ignoring its own earlierdecision on identical issue without distinguishing the sameon facts?)decision on identical issue without distinguishing the sameon facts?) (iv)Whether the impugned order of the ITAT is legallysustainable when it is perverse on facts?sustainable when it is perverse on facts? 3,We find that there is no question of law much less a substantialquestion of law that arises in this case. It is purely a matter of appreciationof facts. We are concerned here only with the addition of the sum of=875lacs. The appeals have been filed by both the parties before Income TaxAppellate Tribunal regarding other additions also, 4As regards the addition of the said amount of 48.75 lacs, theAssessing Officer held that it had not been clarified by the assessee as towhy he chose to open an account with Axis Bank, Kapurthala alongwith oneLakhbir Singh by giving his own PAN number. Lakhbir Singh was a jointaccount holder. Lakhbir Singh is stated to be an agriculturist and theassessee 1S a Ayurvedic doctor by profession. No business connectionbetween the two has been established. It is only stated that they knew eachother and that the account was opened as Lakhbir Singh himself did nothave PAN number. We will assume that a sum of.L8.75 lacs was found tohave been deposited in the Axis Bank account on 21.4.2008. When asked -3- the HDFC Bank alongwith his wife and that he had withdrawn an amount of410 lacs from that account on 14.1.2008. Part of the said sum of=10 lacswas then deposited on 21.4.2008 in the Axis Bank account. The appellant'scontention 1s that the source of48./5 lacs is therefore, established, namely,the amount withdrawn from HDEC Bank. The amount of48.75 lacsdeposited in Axis Bank was from out of the amount of 410 lacs withdrawnfrom HDEC Bank. The Tribunal did not accept the assessee's case regardingthe source of sum oT|L8.75 lacs. -3- the HDFC Bank alongwith his wife and that he had withdrawn an amount of410 lacs from that account on 14.1.2008. Part of the said sum of=10 lacswas then deposited on 21.4.2008 in the Axis Bank account. The appellant'scontention 1s that the source of48./5 lacs is therefore, established, namely,the amount withdrawn from HDEC Bank. The amount of48.75 lacsdeposited in Axis Bank was from out of the amount of 410 lacs withdrawnfrom HDEC Bank. The Tribunal did not accept the assessee's case regardingthe source of sum oT|L8.75 lacs. 5 This is a pure question of fact. It was a question of appreciationof evidence to be decided on a balance of probabilities. We are unable tohold that findings of the Tribunal are perverse or absurd. It is important tonote that the HDFC Bank account was in the joint names of theassessee/appellant and his wife. There is no explanation as to why thatamount was deposited in the joint account of Lakhbir Singh. This assumeseven greater significance in view of the fact that there is no businessrelationship even claimed between Lakhbir Singh and appellant/assessee,The appellant claims to have added his name only to accommodate LakhbirSingh because he did not have PAN card number. Even according to theappellant, Lakhbir Singh was entitled to operate the account. There is noexplanation as to why Lakhbir Singh would have been entitled/permitted tooperate the account although the amount of=10 lacs withdrawn from HDECBank and alleged to have been deposited with Axis Bank belonged only tothe appellant and his wife and in respect whereof Lakhbir Singh had nointerest whatsoever. 6 Therefore, it is a pure question of fact. The authorities relied ITA No 280 of 2014 -4_ good reason not to accept the appellant's case regarding the source of the funds. TiThe appeal is, therefore, dismissed, (S.J. VAZIFDAR)ACTING CHIEF JUSTICE 452015Meenu (G.S. SANDHAWALITA)JUDGE