JAGDISH MEENAE, Jaipur V. ITO, Jaipur

ITA 1002/JPR/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54181 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: P K KASLIWAL
• Section: 80C; 131; 68; 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 1002/ JP/2010 ASSESSMENT YEAR 2007-08 PAN: AFMPM 9894 B SHRI JAGDISH MEENA VS. THE ITO E-617, LALKOTHI SCHEME WARD 6(2) JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) ASSESSEE BY: SHRI P.K. KASLIWAL DEPARTMENT BY : SHRI D.K. MEENA DATE OF HEARING: 15-09-2011 DATE OF PRONOUNCEMENT: 23-09-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORD ER OF THE LD. CIT(A), II, JAIPUR DATED 13-05-2010 FOR THE ASSESSMENT YEA R 2007-08. 2.1 THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AGAINST ADDITION OF RS. 4.00 LACS AND RS. 8.00 LACS DEPOSITED IN THE BA NK ACCOUNT ON 15-04-06 AND ON 15-09-06. 2 2.2 THE AO DURING THE COURSE OF PROCEEDINGS NOTICED THAT THE ASSESSEE HAS MADE DEPOSITS IN THE BANK ACCOUNT IN CASH. THE ASSE SSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF THE AMOUNTS DEPOSITED IN THE BANK. SINCE THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF THE AMOUNTS, THERE FORE, THE AO MADE THE ADDITION OF RS. 12.00 LACS. 2.3 BEFORE THE LD. CIT(A), THE ASSESSEE MADE THE FO LLOWING SUBMISSIONS:- RS.4.00 LACS DEPOSIT DATE IS 15-04-2006. THIS AMOUNT RELATES TO TRANSACTION OF PROPERTY IN WHICH CASH HAS BEEN RECEIVED FROM THE PURCHASER AND SAME IS TRANSFERRED TO THE SELLER OF THE PROPERTY ON 18-04- 06, ENTRY FOR WHICH IS REFLECTING IN BANK PASS BOOK. THE LD. AO HAS MADE ADDITION ON THE GROUND THAT NO DETAILS OF THE PURCHASER AND SELLER HAS BEEN GIV EN BUT IT IS NOT POSSIBLE TO KEEP THE COPY OF THE REGISTRY OF THE TRANSACTION AS THE ASSESSEE HAS NOWHERE INVOLVED IN THIS TRANSACTION AND WORKING ONLY AS PROPERTY AGENT FROM WHICH HE IS EARNING COMMISSION INCOME. IT IS THEREF ORE, REQUESTED TO KINDLY DELETE THE ADDITION OF RS. 4.00 LACS. RS.8.00 LACS DEPOSIT DATE IS 15-09-06.THE LD. AO HAS MADE ADDITION ON THE GROUND THAT NO DETAILS OF THE PURCHASER AND SELLER HAS BEEN GIVEN BUT DURING THE COURSE OF ASSESSMENT WE HAD SUBMITTED THAT THIS AMOUNT HAS BEEN RECEIVED FROM RAJASTHAN PAPSHU CHIKITSA SHIKSH A 3 PRABANDAN SHODH SANSTHAN THROUGH HIS SECRETARY MR. DEEN DAYAL JAKHAR, AC-4, GAYATRI SADAN, GAYATRI MAR G, OPP, JILA PARISHAD, BANIPARK, JAIPUR BEING THE PROSPECTIVE BUYER OF THE PROPERTY ON 24-12-05 THROU GH CHEQUE AND THE SAME HAS BEEN WITHDRAWN ON SAME DATE ENTRY OF WHICH IS REFLECTING IN BANK PASS BOOK, COP Y OF BANK ACCOUNT HAS ALSO BEEN PRODUCED DURING THE ASSESSMENT PROCEEDINGS. DUE TO SOME REASONS TRANSACTION COULD NOT GET COMPLETED AND ASSESSEE HAS RETURNED BACK THIS AMOUN T TO THE BUYER WHICH HAS BEEN PAID BY DEPOSITING CASH IN BANK ACCOUNT AND THEN ISSUING HIM A CHEQUE OF SAME AMOUN T. THIS HAS BEEN VERIFIED BY THE LD. AO DURING THE COU RSE OF ASSESSMENT PROCEEDINGS. IF THE AO WAS WILLING TO KN OW THE SOURCE OF DEPOSIT, HE SHOULD HAVE SUMMONED THE CREDITOR U/S 131 OF THE ACT. THUS IT IS CLEAR THAT THE ASSESSEE HAS DISCHARGED HIS LIABILITY TO PROVE THE IDENTITY AND GENUINENESS OF THE TRANSACTIONS WHEREAS THE AO HAS NOT DISCHARGED HIS LIABILITY TO SUMMON AND ENQUIRE THE PARTIES TO VERIFY THE CREDITWORTHINESS AND GENUINEN ESS. IN THIS TRANSACTION, ASSESSEE IS NOWHERE INVOLVED AND THIS SUM CANNOT BE TREATED AS INCOME U/S 68 OF THE ASSES SEE. 2.4 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S CONFIRMED THE ADDITION OF RS. 12.00 LACS AFTER OBSERVING AS UNDE R:- 4 I HAVE CONSIDERED FACTS OF THE CASE AND ARGUMENTS TAKEN BY SHRI JAIN QUITE CAREFULLY. IT IS SEEN THAT NEITHER IN ASSESSMENT PROCEEDINGS NOR IN APPELLATE PROCEEDINGS ANY DETAILS OF THE PURCHASER AND THE PROPERTY COULD BE GIVEN FOR WHICH RS. 4.00 LACS CASH HAS BEEN RECEIVED WHIC H HAS BEEN DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT ON 15-04-06. SIMILARLY, IN RESPECT OF RS. 8.00 LACS DE POSITED IN BANK ON 15-09-06 NO EVIDENCE COULD BE GIVEN THAT THE MONEY WITHDRAWN ON 24-12-06 WAS REMAINED INTACT WIT H THE APPELLANT TILL 15-09-06 WHEN AGAIN IT WAS DEPOS ITED IN THE BANK ACCOUNT. THERE IS NO DOCUMENTARY EVIDENCE IN SUPPORT OF CONTENTION OF THE APPELLANT. CONSIDERING THE FACT OF CASH DEPOSIT IN THE BANK ACCOUNT AND THE FA CT THAT APPELLANT HAS FAILED TOTALLY IN SUBMITTING NECESSAR Y DETAILS AND EVIDENCE REGARDING GENUINENESS OF THE CASH AVAILABILITY FOR THE PURPOSE OF SAID DEPOSIT IN THE BANK ACCOUNT, IN MY CONSIDERED VIEW THE ASSESSING OFFICE R WAS JUSTIFIED IN MAKING SAID ADDITION OF RS. 12.00 LACS WHICH IS HEREBY CONFIRMED BY REJECTING RELEVANT GRO UND OF APPEAL. 2.5 WE HAVE HEARD BOTH THE PARTIES. WE HAVE GONE TH ROUGH THE BANK ACCOUNT FILED BY THE ASSESSEE IN THE PAPER BOOK. TH ERE HAS BEEN DEPOSIT IN CASH AND THERE ARE WITHDRAWALS FROM THE BANK IN CAS H. ON 24 TH DEC. 2005, A SUM OF RS. 8.00 LACS WAS WITHDRAWN FROM THE BANK. O N 15 TH APRIL, 2006, A 5 SUM OF RS. 4.00 LACS HAS BEEN DEPOSITED . THEREAFTE R A SUM OF RS. 8.00 LACS WAS DEPOSITED IN THE BANK ON 15TH SEPT. 2006. THERE ARE OTHER ENTRIES IN THE BANK ACCOUNT. WHEN ONE CONSIDERS THE WITHDRAWALS OF CASH OF RS. 8.00 LACS ON 24-12-05 THEN SOURCE OF RS. 4.00 LACS ON 15-04-0 6 STANDS EXPLAINED. IT IS NOT THE CASE OF THE REVENUE THAT CASH WITHDRAWN O 2 4 TH DEC. 2005 HAS BEEN INVESTED OR UTILIZED SOMEWHERE ELSE. HENCE, AFTER C ONSIDERING THE DEPOSITS TO THE EXTENT OF RS. 12.00 LACS AND CONSIDERING THE WI THDRAWAL OF RS. 8.00 LACS IN CASH, WE FEEL THAT DIFFERENCE IS TO BE CONFIRMED AS UNEXPLAINED DEPOSIT IN THE BANK U/S 69 OF THE ACT. HENCE, THE ADDITION TO THE EXTENT OF RS. 4.00 LACS IS CONFIRMED AND THE ASSESSEE WILL GET THE RELIEF O F RS. 8.00 LACS. 3.1 THE SECOND GRIEVANCE OF THE REVENUE IS THAT THE AO HAS ERRED IN NOT ALLOWING THE DEDUCTION IN RESPECT OF LIC PREMIUM OF RS. 49,221/- U/S 80C OF THE ACT. 3.2 WE HAVE HEARD BOTH THE PARTIES. THERE IS NO MEN TION IN RESPECT OF NOT ALLOWING DEDUCTION OF LIC PREMIUM U/S 80C OF THE AC T IN THE ASSESSMENT ORDER. THIS ISSUE IS ALSO NOT ARISING FROM THE ORDE R OF THE LD. CIT(A) AS THE GROUNDS OF APPEAL RAISED BEFORE THE LD. CIT(A) WAS IN RESPECT OF UNEXPLAINED CASH DEPOSITS. SINCE THIS ISSUE IS NOT ARISING FROM THE ORDER OF THE LOWER AUTHORITIES, THEREFORE, THIS GROUND OF APPEAL IS DI SMISSED AS NOT MAINTAINABLE. 6 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 23-09 -2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 23 /09/2011 *MISHRA COPY FORWARDED TO :- 1. SHRI JAGDISH MEENA, JAIPUR 2. THE ITO .WD6 (2), JAIPUR 3. THE LD. CIT BY ORDER 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.1002/JP /10) A.R, ITAT, JAIPUR 7 8