^° Tax Case No.2 of 2009 APPELLANT (Assessee) BriiBiohan Agrawal Versus RESPONDENT: (Revenue) Income Tax Officer. Raigarh. Sd/- Dhirendra Mishra Judge 3 <SL-X Sd/- R.N. Chandrakar Judge POST FOR JUDGME.NT ON 1^,JANUAR¥,2010 Sd/- Dhirendra Mishra Judge ^ci Tax Case No.2 of 2009 APPELLANT: (Assessee) RESPONDENT: (Revenue) S/o Jogdhyan Agrawal, C/o B.M. Steel, 33, Krishna Shopping Mall, Chetan Nagar, Raigarh 'CG) Versus Incoine Tax Officer, Wai'd II, Aayakar Bhawan, Chakradliar Nagar, Raigarh (CG) Present: Advocate for the Shri Raieev tbr the responden Dubey, Sr. Advocate with Shri Neelabh Dubey, appellant. T Shrivastava wi.th Smt. V. Shraddha Rao, Advocate 1t 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 Section 260-A of the Income Taji Act, 1961 (for breviti' the Acf) against the impugned order of fhe Income Tax Appellat.e Tribunal (for short. the Tribunal') (Aiinexure-A/3) on the substantial questions of law inentioned at the foot of the memo of appeal. 2. BrieHy stated, facts of the case are that the appeUant retum of income for the assessnient vear 2003-04 on 30-9-2003 declaring 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 S' g^ l^j ^ J' under Section 133-A of the Act was conducted in the business preniises of the assessee on 18-1-2003. During the course of SMrvey, excess stock of Rs.55,749/- and excess cash of Rs.7,93,618/- were found to which the assessee surrendered and offered for taxation as his income fi'om undisclosed source of income for the vear besides his regular hiconie. The assessment was completed and the order was passed under Section 143 f3) of the Act and addition for a sura. of Rs.7,93,618/- in respect of excess cash and addition of Rs.49,223/- on account of low net. profit was made. Accordingly, total income for tfae year was computed at Ss.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 Agrawal Smt. Rajnrati Devi Agrawal, wife and mother respectively, amoimt of Rs.5,60,000/- and Rs.2,34,000/- for safe custody with htm was rejected by the Assessing Officer on the foUowing grounds:- • There should have been some corroborative evidence wifh the assessee in support of his clsmii that excess monev so foiind belongs to his wife - • In order to retract froni surrendered aniount, . assessee tried to blam.e t.he departmental personriel that they created pressure on him and his views were not recorded which was held to be incorrect in t/iew of the endorsement made bv hm'i iii ^his ' • If there was no undisclosed income, whv fhe assessee made payment of advaiice tax on 4 dat.es after 18th Jaauary, 200.3 totaluig to the tiine of Rs.1,75,000/-. ^^ t^ss^^^^ ^ v.S' S ^ • The assessee's business premises is at outskirt of Pathalgaon at a solitary place and in these circumstances, no-one would like to take and briiig a huge money with hini to (tie business preraises froni home. • Considering the close relationship of the appeUant/assessee with Smt. Priti Agrawal and Smt. RaiTirati Devi Agrawal, it was observed tha-t the statement of The assessee at the assessment stage 1s only a cooked up story. • Persons claiming entrt' could not fumish any proot' that they had kept the money in the business oreniises of the assessee. The contention of the assessee fhat both of them are regularly assessed t.o tax, ihe Assessing OfB.cer aft.er gomg through the bank account statement. observed that onlv source of thetr incoiae was froiu derivi.ng interest. In. tliese circumstances, a.s bofh the ladies were advancing their. amouirt to ofher parties for earniag interest s-nd thus, the;r would not have keot the monev idle in their liouse. The appeal preferred by the assessee and the explanation offered by hiBi wifti regard to excess cash found during sur\rey 'operation was fi.ut.her dismissed by the CIT' (Appeals) on fhe ground that the assessee did not funiish his aifidavit dated 19-1-2003 immediatelv after fhe conduct oftBe siin/ev orwitliin a reasonable tune, if the assessee wanted to retract the st.atement arid sijrrender of uicome ma.de diu-ing tlie course of sur'.rey. Aflidavit is nothing but a self serving statement, as the same was ffied before the Assessing Officer 8-ft.er a. protonged delay of 23 months. Besides the ab.ove ground, CIT (Appeals) also cited other ground for concumng with tlie tmdiag of the Assessuig Of&cer and disiaissing the appeai and accordingly, "F-»: ?r:'- .; addition made bv the Assessing Otlicer for a SLUU of Rs.7,93,618/- was coii&nned aad partly allowing the appeal, relief of Rs.39,22.3/- was accorded and the Assessmg Ofllcer was directed to re-comput.e the uiterest chargeable under the various provisions of the Act. 5. Fu-i'ther appeal prefeiTed by fhe assessee has been dismissed by rhe TTibunaJ by fhe tmpugned order and contention of the assessee that excess cash found basiCaUv related to Smt. Rainrati'Devi Agrawal, motlier and Smt. Priti Agrawal, wife, was rejected with ari observation that the assessee could not produce ariy reason for not keeping such money by these two ladies in their Bank accounts, whereas ttie money was found a.t tlie oflice premises of the assessee, which was at the outside of the tovm. and ui these cfa-cumstaaces. the contention of the assessee t.hat the above two ladies had kept their inonev m cash with the e-ssessee for safety purposes is against the human probabiiity and, fheT-efore, .the sarne cannot be believed. 6. Sliri Shashaak Di_ibey, leajned senior advocate with Sliri Neelabh Dubey, axb/ocate, appearing on behalf of the appeUant argued that the Tribunals below even after rejecting the explanation of the assessee were not justified ia treating the tUiexplained inoiiei/ as income of the assessee. Bare reading of Section 69-A of the Act onlv provides that where the assessee is found t.o be owner of the unexplained money etc. and the same is not recorded ii-i the books of account. and where tlie assessee of'fers no explariation about tfae nature and source of acquisition or explanation offered by nim is found not satisfactoiy, the saizie may be deemed to be income of the assessee. However, a burden. is cast upon the Assessing Officer to prove that ujiex.T)lained monev could ha.ve been e.ai'ned bv the assessee duriftg the fmaneial year. Section 69-A refers to ownership and not 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 being the husband and son of the ladies and as such the amount in question was kept by theia in the business premises of tlie assessee and the tinding of the Tribunals that it was huinanly iniprobable for them to keep that ainount with the assessee is liighly absui'd. Both the ladies produced their accounts, income tax returns and mdex nuiabers aiid in such circijtnstances, the atbresaid amount ought to have been assessed at their hands protectiyely, as a doubt had been created as to whom fhe income belonged. 7. On the other harid, Shri Rajeev Shrivastava, leaned cozinsel for the Revenue would ai^ue that the Assessing Officer after considering the entire argTiments advanced by the assessee rejected liis explanatioa that the excess cash ainount. found in the premises was kept by his wife and mother by a reasoned order. CIT (Appeals) has further rejected the explanatioii of the assessee and dismissed the appeal preferred by the assessee. The order of the Assesstng Officer has been confirmed. The Tribunal retying upon the judgments of the Siipreme Court in the matters of Durga Prasad More (82 ITR} and Sumati Dayal (249 ITR} held that the contention of the assessee that the above two ladies had kept their raone}^ in cash with me assessee for safety 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 iri IT'A No. 125 of 1999 (The Commissioner of Income Tax, Raj.pur Versus Shri Satyansj^'an Agrawal, Raipuj}, it was argued that accepting or re.iect.mg the explanation offered bv fhe assessee is i& a fuiding of fact and the* same does not give rise to any substantial question of law. 9. Aft.er carefuUy considering fhe reasons assigned by the Tribunals below for rejecting the explanation oflered by fhe assessee 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 forums below have rejected fhe explanation by a reasoned order by recording concurrent finding of fact. Rejection of explanation offered bv the assessee is a finding of fact and the saiiie does not. give rise to any substantial question of law, as held in Sat5'-aaaiyan Agrawral (Supra). There is no substantial question of law involved in tl~u.s appeal as proposed by the assessee in fhe memo of appeal. l0.in the result, fhe appeal being without. any substance deserves t.o be dismissed and is herebv di' Sd/- Dhu-endraMishra Judge Sdf- R.N. Chandrakar Judge