Lost misplaced passbook entries-Account holder presumed to know bank deposits withdrawals details – ITAT

Lost misplaced passbook entries-Account holder presumed to know bank deposits withdrawals details even if account is closed as there is no impediment to obtain a duplicate pass book-ITAT

ABCAUS Case Law Citation:
ABCAUS 1096 (2017) (01) ITAT

Assessment Year : 2011-12

Brief Facts of the Case:
The assessee as proprietor of a Poultry business and was also plying trucks. The assessee had made several cash deposits in his bank account and was called upon by the Assessing Officer (AO) to explain the same.

The assessee explained that the bank account was in the joint name and sometimes the deposit and withdrawal in the said bank account had also been made by the wife of the assessee, also. It was submitted that the bank account in question had been closed approximately two years back and the copy of the bank statement was not available with the assessee who was not having even the knowledge of the credit/debit entries made during the aforesaid year. However it was submitted that the deposit and withdrawals represented gross receipts against truck plying and withdrawals for expenses related to the truck playing.

Not convinced with the explanation offered, the AO made an addition for the difference of total cash deposits in the bank account less gross receipts shown in respect of transport business the income from which had been declared on estimated basis u/s 44AE.

The assessee carried the issue in appeal before the CIT(A)., However, for want of evidence, the addition made by the AO was upheld. The CIT(A), in his order had also observed that no request was made by the appellant to supply .copy of the bank account.

Aggrieved, the assessee was before the ITAT.

Contentions of the Appellant Assessee:
It was submitted that right from the assessment stage, the assessee had been asking the tax authorities for providing him with AIR information relied upon by them. It was submitted that the assessee’s attempts to obtain the details from the bank were not successful. It was further submitted that this argument had been raised even before the CIT(A) and he failed to address it. It was pointed out that the CIT(A) had given an unambiguous finding that no request has been made by the appellant to supply copy of the bank account. The assessee objected that observation of the CIT(A) was a wrong one and the AR was ready to file an affidavit in this regard.

Observations made by the Tribunal:
The Tribunal observed that the argument that assessee despite his attempts seeking the details from the tax authorities were not successful, cannot be accepted as neither any evidence in support of the said claim has been made nor is the need for the assessee to seek it from the tax authorities.

The ITAT observed that the specific bank account was owned by the assessee as his account. Thus, he was not a stranger and would be well within his rights to obtain a copy from the bank. The details of deposits and withdrawals in the bank account of the assessee are logically presumed to be available with the account holder and even in the eventuality of misplacing the pass book, no impediment to procuring a duplicate pass book can be said to be in existence.

The ITAT observed that no evidence had been filed by the assessee either before the ITAT or before the tax authorities below to demonstrate any efforts, if actually made to seek a copy of his bank pass book from his Bank. The general argument advanced that the bank has refused to provide a copy of the old pass book could not be accepted without any evidence.

The Tribunal stated that it is well understood that the details of the specific bank account even if closed subsequently would necessarily be available with the bank. The banks whether private or nationalized under the laws of the land are obliged on a token payment in providing duplicate copy of saving bank account in case of a written request for issuance of a duplicate pass book.

The blanked statement that the bank refused to provide copy of the saving bank account cannot be countenanced as the act of not providing the same may make the bank liable for obstruction in the delivery of justice. The assessee if so considered necessary would also be at liberty to request the tax authorities to provide him with a copy of the AIR information available with them

Held:
In the interests of substantial justice the order of CIT(A) was set aside and restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.