IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA Before Shri Waseem Ahmed, Accountant Member and Shri K.Narsimha Chary, Judicial Member ITA No.1364 Kol 2015 & C.O. No.57 Kol 2015 (a o ITA No.1364 Kol 2015) Assessment Years:2012-13 ACIT, Circle-58, Bamboo Shri Ajay Verma Villa, 8 t h Floor, 169, A.J.C. Tower-1, Apartment- Bose Road, Kolkata-700 014 404 Uttara (Tritiya), V s. Rajarht, New Town, Kolkata-57 Shri Ajay Verma ACIT, Circle-58, Tower-1, Aparment-404 Bamboo Villa, 8 t h Uttara (Tritiya), Rajarhat, Floor, 169, AJC Bose New Town, Kolkata-700 157 V s. Road, Kolkata-14 [PAN No. ABXPV 0450 D] Appellant .. Respondent By Assessee Shri D.K. De Sarkar, FCA By Respondent Shri Arup Chatterjee, JCIT-SR-DR Date of Hearing 15-09-2016 Date of Pronouncement 30-09-2016 ORDER PER Waseem Ahmed, Accountant Member:- This appeal is preferred by Revenue against order of Commissioner of Income Tax (Appeals)-18, Kolkata dated 15.09.2015 for Assessment Year (AY) 2012-13 and same is being disposed of along with Cross Objection (CO) filed by assessee being C.O. No.57 Kol 2015. Assessment was framed by ACIT, Curcle- 58, Kolkata u s 143(3) of Income Tax Act, 1961 (hereinafter referred to as Act ) vide his order dated 19.03.2015. ITA No.1364 Kol 2015 & CO 57 Kol 15 A.Y. 2012-13 ACOT Cri-58 Kol vs. Sh Ajay Verma Page 2 Shri D.K. De Sarkar, Ld. Authorized Representative appeared on behalf of assessee and Shri Arup Chatterjee, Ld. Senior Departmental Representative appeared on behalf of Revenue. First we take up Revenue s appeal in ITA No.1364 Kol 2015. 2. facts in brief are that assessee in present case is individual and has filed his return of income on 23.12.2012 declaring total income of 24,10,355 -. Thereafter case was selected for scrutiny and accordingly notice u s. 143(2) r.w.s 142(1) were issued upon assessee. assessment was framed us. 143(3) of Act on income of 99,83,478 - after making certain additions and disallowances. 3. First issue raised by Revenue in Ground No.1 in this appeal is that Ld. CIT(A) erred in deleting addition made by Assessing Officer for 62.38 lacs on account of unexplained investment in fixed deposit, for which relevant ground is reproduced below:- (1) That Ld. CIT(Appeals) has erred in deleting Rs.62,38,000 - as income on account of unexplained investment in fixed deposit while in fact sources of said fixed deposits were not explained before Assessing Officer during assessment proceedings; 4. assessee has made fixed deposits with State Bank of India being c No.31951884124 dated 21.09.2011 for 62,38 lacs. At time of assessment proceedings assessee failed to furnish any explanation in respect of aforesaid deposits in bank. Therefore, AO disallowed same and added to total income of assessee. 5. Aggrieved, assessee preferred appeal before Ld. CIT(A) whereas assessee submitted that he was employee of foreign company in USA since May, 2003 and saved his earning in various NRI, NRO account. Thereafter assessee transferred his savings to Indian savings bank account when he shifted from USA in financial year 2010-11. aforesaid deposits were made out of income generated during period he stayed in USA. assessee in support of his claimed submitted bank statement of USA along with tax payment details. Accordingly Ld. CIT(A) deleted addition made by AO. ITA No.1364 Kol 2015 & CO 57 Kol 15 A.Y. 2012-13 ACOT Cri-58 Kol vs. Sh Ajay Verma Page 3 Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us. 6. Before us both parties relied on order of Authorities Below as favourable to them. At outset, we find assessee has furnished details of fixed before ld. CIT(A) along with source of money deposited in bank. Ld. DR has not brought anything on record contrary to finding of Ld. CIT(A) and in this view of matter, we do not find any reason to interfere in order of Ld. CIT(A). We hold accordingly. This ground or Revenue s appeal is dismissed. 7. Next issue raised by Revenue is that Ld. CIT(A) erred in giving relief to assessee on basis of additional evidence as violated provision of Rule 46A of IT Rules, 1962, effective ground is reproduced below:- (2) That Ld. CIT(Appeals)has violated provisions of Rule 46A of IT Rules as also principles of Natural Justice viz. Audit Alteram Partem; 8. At outset, we find that sufficient details were furnished by assessee at time of scrutiny assessment proceedings and same fact is duly recorded in order of ld. CIT(A). In this regard, Ld. DR has not brought anything contrary to submission made by assessee before Ld. CIT(A). We find no reason to interfere with finding of Ld. CIT(A). Under circumstances, this issue of Revenue s appeal is dismissed. 9. Next issue raised by Revenue in this appeal is that Ld. CIT(A) passed his order without giving any opportunity of being heard to Assessing Officer. 10. At outset, we find from appellate order that opportunity given to AO was declined. Therefore order was passed by Ld. CIT(A) without presence of AO. From above facts, we find that opportunity was provided to AO at appellate stage which was declined by AO. Ld. DR in this regard has also not brought anything contrary to finding of Ld. CIT(A). Hence, we find no reason to interfere order of Ld. CIT(A). We uphold same. This ground of Revenue is dismissed. ITA No.1364 Kol 2015 & CO 57 Kol 15 A.Y. 2012-13 ACOT Cri-58 Kol vs. Sh Ajay Verma Page 4 11. Last issue raised by Revenue in this appeal is that Ld. CIT(A) erred in giving relief of claim made by assessee for HRA u s 10(13A) of Act for which relevant ground is reproduced below:- (4) That Ld. CIT(Appeals)had erred in allowing claim of HRA u s. 10(13A) amounting to Rs.3,32,520 - ignoring fact that required evidences were not submitted before Assessing Officer at time of scrutiny proceedings; 12. Assessee in its return has claimed deduction u s 10(13A) of Act but same was disallowed by AO on ground that no documentary was furnished by assessee. 13. Aggrieved, assessee preferred appeal before Ld. CIT(A) who deleted addition made by AO. Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us. 14. Before us both parties relied on order of Authorities Below as favourable to them. At outset we find that assessee has submitted Form-16 in support of his claim for exemption u s 10(13A) of Act and said Form-16 issued by employer of assessee has been made as part and parcel of appellate order passed by Ld. CIT(A). In this regard Ld. DR has not brought anything on record contrary to finding of Ld. CIT(A). Accordingly, following precedent as above we hold that there is no infirmity in order of Ld. CIT(A). Accordingly, we uphold same. This ground of Revenue is dismissed. 15. In result, Revenue s appeal is dismissed. Coming to assessee s CO No.57 Kol 2015. 16. Ground raised by assessee is reproduced below:- 1. ld. CIT(A)-18, Kolkata has erred in law & on facts in sustaining addition of Rs.4,50,000 - made by AO on account of un-explained cash deposit into bank on wrong & infirm interpretation of fact, without providing any opportunity to explain issue (i.e numerous cash withdrawals during year for cost of leaving personal expenditures only ) raised by him for first time in impugned matter without any material brought on record. ITA No.1364 Kol 2015 & CO 57 Kol 15 A.Y. 2012-13 ACOT Cri-58 Kol vs. Sh Ajay Verma Page 5 17. assessee during year has made deposits of 4.50 lakh in its SBI account on 16.03.2012 and 17.03.2012 respectively. On question by AO about source of such deposits assessee failed to make positive reply. Therefore, AO has treated same as unexplained income of assessee. 18. Aggrieved, assessee preferred appeal before Ld. CIT(A) whereas assessee submitted that cash was deposited in bank account of assessee out of cash withdrawals of 5.15 lacs. assessee in support of his claim submitted bank statement, however, Ld. CIT(A) disregarded plea of assessee by observing as under:- observation that emanates is that in HDFC bank account cash withdrawals are from 21.09.2011 to 22.02.2012. There are 20 number of cash withdrawals with average withdrawal per transactions at 10,000 -; and in ICICI bank account cash withdrawals are from 09.04.2011 to 16.03.2012. There are 54 number of transactions with average withdrawal ranging mostly from 3,000 - to 10,000 -. Thus, obvious from facts is obvious numerous cash withdrawals during year were for cost of living personal expenditures only. It just cannot be that appellant had curious hobby to make numerous cash withdrawals during year only to then deposit at year end, and that too in account in another bank. 2 cash deposits were made in year end one on 16.03.2012 at 2,50,00 - and next day on 17.03.2012 at 2,00,000 -. Thus, argument of appellant belies human rationale. Even for extended argument s sake, if at all it could be only recent transactions which I largely extend to even consider from month of January 2012 upto March 2012, and fact is that in HDFC account withdrawals are at 55,000 - and in ICICI Bank at 48,000 -, total of both coming to 1,03,000 - only. For 3 months period, obviously these withdrawals were for cost of living personal expenditure. Being aggrieved by this order of Ld. CIT(A) assessee came in Cross Objection before us. 19. Before us Ld. AR for assessee submitted that amount of 4.50 lacs was deposited out of withdrawal from other bank account, therefore he prayed to Bench for deletion of same. On other hand, Ld. DR vehemently relied on order of Authorities Below. ITA No.1364 Kol 2015 & CO 57 Kol 15 A.Y. 2012-13 ACOT Cri-58 Kol vs. Sh Ajay Verma Page 6 20. We have heard rival contentions of both parties and perused materials available on record. From foregoing discussion, we find that assessee has withdrawn small amount of money from HDFC and ICICI banks over period of times. However, money has been deposited in two installments in span of just two days time. Ld. AR before us failed to give reasons why assessee has withdrawn money from bank account in small value and deposited same to bank in fag-end of financial year. In absence of any reason for withdrawal of money from bank account in small value and depositing same at fag-end of year under consideration, we do not find any force in argument made by AR of assessee. Therefore, we are inclined not to interfere in order of Ld. CIT(A). We hold accordingly. This ground of assessee s CO is dismissed. 21. In result, appeal of Revenue stands dismissed and that of assessee s CO is dismissed. Order pronounced in open court on 30 09 2016 Sd - Sd - (K.Narsimha Chary) (Waseem Ahmed) Judicial Member Accountant Member *Dkp, Sr.P.S - 30 09 2016 Kolkata Copy of Order Forwarded to:- 1. Assessee-Shri Ajay Verma, Tower-1, Apartment-404 Uttara (Tritiya), Rajarhat, New Town, Kolkata-157 2. Revenue-ACIT, Circle-58, 169, A.J.C.Bose Road, Kolkata-14 3. Concerned CIT 4. - CIT (A) 5. , DR, ITAT, Kolkata 6. Guard file. By order , True Copy , ACIT, Circle-58, Kolkata v. Ajay Verma