ITO, Jaipur V. Late shri JITENDRA BHATNAGAR THROUGH L/H, Jaipur

ITA 1022/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99340 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 26-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH
• Assessee Lawyers: MUKESH KHANDELWAL C A DHK
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 1022/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 . THE INCOME TAX OFFICER, WARD 3(1), JAIPUR. CUKE VS. LATE SHRI JITENDRA BHATNAGAR, THROUGH L/H SMT. SHEELA BHATNAGAR, C-181, BHARAT MARG, HANUMAN NAGAR, VAISHALI NAGAR, JAPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR /TAN NO. AIWPB 4251 E VK;DJ VIHY LA-@ ITA NO. 1023/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 . THE INCOME TAX OFFICER, WARD 3(1), JAIPUR. CUKE VS. SMT. SEELA BHATNAGAR, C-181, BHARAT MARG, HANUMAN NAGAR, VAISHALI NAGAR, JAPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AIWPB 4252 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA SINGH (JCIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MUKESH KHANDELWAL (C.A) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.10.2015. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 9/10/2015. 2 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR. VKNS'K@ ORDER PER BENCH : THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST T WO SEPARATE ORDERS OF LD. CIT (A)-I, JAIPUR DATED 04.10.2013 FOR THE A.Y. 2007-08. THE SOLE COMMON GROUND RAISED IN THESE APPEALS IS AS UNDER :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADD ITION OF RS. 40,95,720/- MADE ON ACCOUNT OF UNEXPLAINED AMOUNT R ECEIVED FROM FOREIGN. 2. SINCE COMMON GROUND IS INVOLVED IN THESE APPEALS , THEREFORE, BOTH THE APPEALS ARE DISPOSED OFF BY THIS CONSOLIDATED ORDER . 3. BRIEF FACTS OF THE CASE ARE THAT THE AO ON THE B ASIS OF INFORMATION RECEIVED FROM FOREIGN TAX AUTHORITIES THAT DURING THE PREVIOU S YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08 THE ASSESSEE HAD RECEIVED A SUM OF DKK (DANISH KRONE) 511965 AMOUNTING TO APPROXIMATELY INDIAN RS. 40,95,720 @ RS 8/- PER KRONE WHICH WERE UNDISCLOSED DUE TO NON FILING OF ANY RETURN BY THE ASSESSEE, ISSUED A NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 AND SUBSEQUENTLY ORDER DATED 30.12.2011 WAS PASSED U/S 148/143(3) OF THE IN COME TAX ACT, 1961. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAD SUBMITTED ALL THE BANK ACCOUNTS OF THE DECEASED ASSESSEE BUT THE LD. AO CO ULD NOT TRACE OUT ANY CREDIT OF SIMILAR AMOUNT IN ANY SUCH BANK ACCOUNTS. HOWEVER , ONLY ON THE BASIS OF SUCH 3 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR. INFORMATION THE AO CONSIDERED THIS AMOUNT AS UNDISC LOSED INCOME OF THE ASSESSEE AND ADDED THE SAME IN THE TOTAL INCOME OF THE ASSESSEE. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT (A). THE ASSESSEE CHALLENGED THE ADDITION ON THE BASIS O F THE FACT THAT AO HAS MADE THIS ADDITION MERELY ON THE BASIS OF A PIECE OF INF ORMATION WITHOUT ANY POSITIVE PROOF TO JUSTIFY THE INFORMATION IN HIS POSSESSION. BEFORE LD. CIT (A), THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT EVEN THOUGH THE AO HIMSELF HAD ADMITTED THE FACT HE COULD NOT LOCATE SUCH TRANSFER ENTRY IN THE BANK ACCOUNT(S) OF THE ASSESSEE EVIDENCING SUCH REMITTANCE OF RS. 4 0,95,270/-, BUT HE HAS MADE THE ADDITION MERELY ON THE BASIS OF INFORMATIO N WHICH HAS NO LEG TO STAND. THEREFORE, THE LD. A/R REQUESTED FOR DELETING THE AD DITION. THE LD. CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING IN P ARA 6 AND 6.1 OF HIS ORDER AS UNDER :- 6. I HAVE CONSIDERED FACTS OF THE CASE. IT IS NOTI CED THAT THE AO HAS MADE THE ADDITION ON THE ONLY GROUND THA T THERE WAS SOME INFORMA5TION TO THE EFFECT THAT DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT HAD RECEIVED DKK 511965, AMOUNTING TO RS. 40,95,720/-. HOWEVER, NO FACTS HAVE BEEN BROUGHT ON RECORD TO SHOW THAT THIS AMOUNT HAD, IN F ACT, BEEN RECEIVED BY THE APPELLANT. IN THE ASSESSMENT ORDER, THE AO HAS OBSERVED AS UNDER :- 4 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR. HOWEVER, THE BANK STATEMENTS IN RESPECT OF THE ASSESSEE, HIS WIFE AND HIS SON HAVE ALREADY BEEN FIL ED ON RECORD IN THE SAID STATEMENTS, I HAVE PERSONALL Y GONE THROUGH EACH AND EVERY TRANSACTIONS WHICH HAS BEEN MENTIONED IN THE BANK STATEMENTS, BUT NOWHERE FOUND THE REMITTANCES SENT BY THE SON OF THE ASSESS EE TO HIS FATHER LATE SHRI JITENDRA KUMAR BHATNAGAR BETWEEN 01.04.2006 TO 31.03.2007. 6.1. THE AO HAS FURTHER OBSERVED THAT THE ENTRY OF R S. 40,95,720/- WAS NOT REFLECTED IN THE BANK ACCOUNT. TH E RELEVANT PARA OF THE ASSESSMENT ORDER READS AS UNDE R :- I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE AND FOUND THAT THOUGH THE ENTRY OF RS. 40,95,720/- IS NOT REFLECTED IN THE SAID BANK ACCOU NT YET DURING THE COURSE OF DISCUSSION, IT IS ESTABLISHED FACT THAT ON THE BASIS OF INFORMATION, THE AMOUNT WAS TRANSFERRED FROM FOREIGN COUNTRY TO INDIA THROUGH BANKING CHANNEL. I HAVE ALSO TRIED MY BEST EFFORTS TO RECONCILE THE FIGURE BUT ALL IN VAIN. IN THESE CIRCUMSTANCES I HAVE LEFT WITH NO OTHER OPTION BUT T O ADD THIS AMOUNT OF RS. 40,95,720/- TREATING THE INC OME OF THE ASSESSEE AS UNEXPLAINED. IT IS THUS OBVIOUS THAT THE AO HAS NOT BEEN ABLE TO BRING ANY MATERIAL ON RECORD TO SHOW THAT THE APPELLANT HAD IN FACT RECEIVED THE IMPUGNED AMOUNT FROM ABROAD DURING THE YEAR UNDER CONSIDERATION. THERE IS NO EVIDENCE TO SUPPORT THE ADDITION MADE BY THE AO. THE AO HAS GONE THROUGH THE BANK ACCOUNTS PRODUCED BY THE APPELLANT BUT NO TRANSFER OF MONEY AMOUNTING TO DKK 511965 COULD BE DETECTED BY HIM. TH E ADDITION THEREFORE APPEARS TO BE WITHOUT ANY BASIS A ND IS ACCORDINGLY DELETED. 5 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR. 5. NOW THE REVENUE IS BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. D/R RELYING ON THE ORDER OF THE AO, REQUESTED TO CONFIRM THE ORDER OF THE AO. 6.1. ON THE OTHER HAND, THE LD. A/R FOR THE ASSESSE E REITERATED THE ARGUMENTS AS MADE BEFORE THE LD. CIT (A) AND REQUESTED THAT IN ABSENCE OF ANY EVIDENCES/DETAILS ABOUT THE INFORMATION SO RECEIVED ABOUT THE TRANSFER OF MONEY, DATE OF REMITTANCE, DETAILS OF BANK ACCOUNT WHEREFRO M THIS MONEY WAS REMITTED AND THE DESTINATION WHERE THIS MONEY WAS ALLEGED TO HAVE BEEN RECEIVED, THE ORDER OF LD. CIT (A) DESERVES TO BE CONFIRMED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE LD. AO AND THE LD. CIT (A) . UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT (A) DESERVES TO BE SUSTAINED AS IT WAS THE DUTY OF THE AO TO SUPPORT THE ADDITION ON THE BASIS OF POSITIVE EVIDENCE(S) ABOUT THE ALLEGED REMITTANCE OF DKK 511 965 WHICH THE AO HAS ABSOLUTELY FAILED. IN ABSENCE OF ANY EVIDENCE, THE ADDITION MADE BY THE LD. AO IS WITHOUT ANY BASIS. ACCORDINGLY THE ORDER OF THE LD. CIT (A) ON THIS ISSUE IS CONFIRMED. 6 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9.10.2015. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 9/10/ 2015 DAS/ VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO WARD 3(1), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT-(1) LATE SHRI JITENDRA BHATNAGAR, THRO UGH L/H SMT. SHEELA BHATNAGAR, (2) SMT. SHEELA BHATNAGAR, J AIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1022 & 1023/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR. 7 ITA NOS. 1022 & 1023/JP/2013 A.Y. 2007-08 ITO VS. SH. JITENDRA BHATNAGAR & SMT. SHEELA BHATNA GAR.