RAJ SINGH SHEKHAWAT, Jaipur V. ITO, Jaipur

ITA 1024/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5643 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Assessee Lawyers: RAJ SINGH SHEKHAWAT; S S SHEKHAWAT
• Keywords: Residential status; Additional evidence
• Section: 142(1); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 1024/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI RAJ SINGH SHEKHAWAT A-V/401-B, KAMAL APARTMENT NO.2 OPP. METAL FACTORY, BANIPARK, JAIPUR CUKE VS. THE ITO WARD- 3 (5) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BNEPS 9009 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.S. SHEKHAWAT CA & SHRI RAJ SINGH SHEKHAWAT ASSESSEE JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/01/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/01/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 29-09-2016 FOR THE ASSESSME NT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUND:- THE LD. AO AS WELL AS LD. CIT(A), JAIPUR MADE/SUSTAINED ADDITION OF RS. 6,00,752/- AGAINST T HE PROVISION OF LAW IGNORING FACTUAL POSITION. ITA NO. 1024/JP/2016 SHRI RAJ SINGH SHEKHAWAT VS. ITO, WARD-3(5), JAIPUR . 2 2.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.1.2 DETERMINATION (I) THE BRIEF FACTS OF THE CASE ARE THAT ON THE B ASIS OF AIR INFORMATION THAT THE APPELLANT HAD MADE INVE STMENT OF RS. 12,21,152/- IN THE MUTUAL FUNDS DURING THE Y EAR UNDER CONSIDERATION, THE AO ISSUED NOTICE U/S 148 OF THE ACT WHICH WAS SERVED UPON THE LAST KNOWN ADDRESS OF THE APPEL LANT THROUGH AFFIXTURE. HOWEVER, NO RETURN OF INCOME W AS FILED IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. TH E AO ISSUED NOTICE U/S 142(1) OF THE ACT BUT AGAIN NO C OMPLIANCE WAS MADE. CONSEQUENTLY, THE AO MADE ASSESSMENT U/S 147/144 OF THE ACT AND DETERMINED THE TOTAL INCOME OF THE APPELLANT AT RS. 12,21,152/- (II) DURING APPELLATE PROCEEDINGS, IT WAS SUBMITTED BY THE A.R. THAT THE APPELLANT IS A NON RESIDENT IN DIAN (NRI) AND IS STAYING AT SINGAPORE FOR THE LAST SO MANY YE ARS AND THE EARLIER A.R. DID NOT MADE ANY COMPLIANCE TO THE STA TUTORY NOTICES AND MADE A PRAYER FOR ADMISSION OF ADDITION AL EVIDENCE UNDER RULE 46A OF THE IT RULES. AS THE APP ELLANT WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE DETAILS BEFORE THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS , THE SAME WERE ADMITTED AS ADDITIONAL EVIDENCE UNDER RUL E 46A OF THE I.T. RULES AND THE COPIES OF THE SAME ALONGW ITH THE WRITTEN SUBMISSIONS WERE FORWARDED TO THE AO TO MAK E NECESSARY ENQUIRIES AND TO INTIMATE THE RESIDENTIAL STATUS OF THE APPELLANT, WHETHER THE INVESTMENT MADE DURING T HE YEAR UNDER CONSIDERATION WERE DISCLOSED OR OTHERWISE AND ANY OTHER INCOME ACCRUED OR ARISEN IN INDIA TO THE APPE LLANT DURING THE YEAR CONSIDERATION AS IT WAS STATED BY T HE A.R. THAT THE INVESTMENT IN MUTUAL FUNDS MADE OUT OF THE TRANSFERS IN THE NRE ACCOUNT OF THE APPELLANT FROM ITS AT SINGAPORE. ITA NO. 1024/JP/2016 SHRI RAJ SINGH SHEKHAWAT VS. ITO, WARD-3(5), JAIPUR . 3 (III) IN ITS REMAND REPORT, THE RESIDENTIAL STATUS OF THE APPELLANT WAS STATED AS NON RESIDENT, THEREFORE, THE AO IS DIRECTED TO TAKE THE RESIDENTIAL STATUS OF THE APPE LLANT AS NON RESIDENT BY DETERMINING THE TOTAL INCOME OF THE AP PELLANT. (IV) IN THE REMAND REPORT, THE AO STATED THAT OUT O F THE INVESTMENT MADE DURING THE YEAR UNDER CONSIDERA TION, THE APPELLANT COULD NOT EXPLAIN THE SOURCE OF INVESTMEN T MADE IN MUTUAL FUNDS AMOUNTING TO RS. 3 LAC ON 31-12-2007 A ND RS. 3,00,752/- ON 31-03-2008. IN ITS REJOINDER TO THE R EMAND REPORT, IT WAS STATED BY THE A.R. THAT THE INVESTME NTS IN THE MUTUAL FUNDS WERE MADE THROUGH THE NRE ACCOUNT OF T HE APPELLANT AND ALL THE PARTIAL PAYMENTS MAY BE CONSI DERED. (V) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AD THE MATERIAL PLACED ON RECORD. IT IS NOTED THAT AS PER THE AIR INFORMATION PLACED ON RECORD, THE ABOVE INVESTMENTS OF RS. 3 LAC ON 31-12-2007 AN D RS. 3,00,752/- ON 31-03-2008 WERE MADE IN THE MUTUAL FU NDS OF IDFC, HOWEVER, THE DETAILS OF INVESTMENT MADE BY TH E APPELLANT IN THE MUTUAL FUNDS DURING THE YEAR UNDER CONSIDERATION DO NOT INCLUDE THE INVESTMENT IN IDFC MUTUAL FUND AT ALL. THEREFORE, THE INVESTMENT OF RS. 6,00, 752/- IN IDFC MUTUAL FUND IS FOUND TO BE UNEXPLAINED AND HER EBY SUSTAINED AND THE BALANCE INVESTMENT OF RS. 6,20,40 0/- WHICH WAS FOUND TO BE EXPLAINED BY THE AO IS HEREBY DELET ED. (VI) IT WAS NOTED FROM THE DETAILS OF AIR INFORMATION THAT THE APPELLANT HAS ALSO RECEIVED A SUM OF RS. 20,400/- (8,676+11,724) FROM SUNDRAM MUTUAL FUND ON WHICH TDS OF RS. 894/- (118+776) WAS MADE BY THE PA YER. THE APPELLANT HAS ALSO EARNED INTEREST INCOME OF RS . 4,341/- ON ITS SAVING BANK ACCOUNT AS ADMITTED BY THE A.R. VIDE ITS REPLY DATED 12-08-2016. AS THE SAME WERE NOT OFFERE D FOR TAXATION, THE AO IS DIRECTED TO INCLUDE THE SAME IN THE TOTAL INCOME OF THE APPELLANT. IN VIEW OF THE RELEVANT PR OVISIONS OF THE ACT, NO NOTICE FOR ENHANCEMENT OF INCOME WAS GI VEN AS THE OVERALL INCOME OF THE APPELLANT IS NOT BEING IN CREASED. ITA NO. 1024/JP/2016 SHRI RAJ SINGH SHEKHAWAT VS. ITO, WARD-3(5), JAIPUR . 4 4. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 2.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION OF RS. 6,00,752/-WITH FOLLOWIN G WRITTEN SUBMISSION DATED 17-01-2017. THE ASSESSEE SHRI RAJ SINGH SHEKHAWAT PERSONALLY VISITED TO THE IDFC AUTHORITIES AND OBTAINED CERTIF ICATE OF STATUS OF HIS INVESTMENT. INVESTMENT WAS MADE ORIGINALLY IN THE MUTUAL FUNDS OF SCCF. THE SCCF IS RENAMED AS IDFC AND NOW CERTIF ICATE OF THE IDFC IN TWO PAGES IS SUBMITTED HEREWITH. NOW MY HUMBLE REQUEST AS EXPLANATION IS AS UNDER:- 1. RS.3,00,000/- INVESTED ON 31 DEC 2007 IN IDFC CLASSIC EQUITY GROWTH FUND IS SWITCH-IN-FROM IDFC E QUITY FUND DIVIDEND (RENAMED FROM SCCF) THAT WAS INVEST ED ON 9 JUNE 2006 AND WAS ALREADY PART OF THE INVESTMENT AS PER ASSESSEE'S BANK STATEMENT AND STATEMENT FROM MUTUAL FUND, A COPY OF WHICH IS ATTACHED HEREWITH. THE TOTAL VALUE OF INVESTMENT REMAINS SAME JUST THE SWITCH. SO THE SOU RCE OF INVESTMENT IS WELL EXPLAINED. 2. RS. 3,00,752/-INVESTED ON 31 MARCH 2008 IN IDFC FUND ASSESSEE HAD NOT INVESTING ANYTHING IN IDFC FUND ON 31 MARCH 2008. THIS IN FACT IS TOTAL OF RS. 3,00,000/- THE FUND SWITCHED OUT PLUS RS. 752/- STT (SECURITY TRANSACTION TAX) DEDUCTED BY IDFC AT SOURCE. 2.3 DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. ITA NO. 1024/JP/2016 SHRI RAJ SINGH SHEKHAWAT VS. ITO, WARD-3(5), JAIPUR . 5 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORDS THAT THE ASSESSEE HAD INVESTED RS. 3,00,000/- ON 31 ST DEC. 2007 IN IDFC CLASSIC EQUITY GROWTH DIVIDEND (RENAMED FROM SCCF). IT WAS INVESTED OUT OF THE SWITCH OUT OF INVESTMENT MADE BY THE ASSESSEE ON 9 TH JUNE, 2006. THUS THE AMOUNT WAS ALREADY PART OF THE INVESTMENT AS PER THE BANK STATEMENT AND STATEMENT FROM MUTUAL FUNDS WHICH ARE EVIDENT FROM PAGES 25,26, 29 AND 30 OF THE ASSESSEE'S PAPER BOOK. HENCE, THIS AM OUNT OF RS. 3.00 LACS CANNOT BE SUSTAINED AS ADDITION TO THE INCOME OF TH E ASSESSEE. AS REGARDS THE OTHER AMOUNT OF RS. 3,00,752/- WHICH INCLUDES T HE AMOUNT OF RS. 752/- AS SECURITY TRANSACTION TAX, IT IS NOTED THAT THE ASSESSEE HAS CLAIMED THAT HE HAS NOT MADE ANY SUCH INVESTMENT IN IDFC AS ON 31-03- 2008. IT IS FURTHER NOTED THAT THIS ENTRY OF FUND A MOUNTING TO RS. 3.00 LACS IS SWITCHED OUT PLUS RS. 752/- AS STT DEDUCTED BY IDFC AT SOURCE WHICH COMES TO RS. 3,00,752/-. IT IS EVIDENT FROM PAGE 25 TO 26 OF THE ASSESSEE'S PAPER BOOK. THE ASSESSEE CLAIMED THAT HE HAD NOT MADE ANY INVESTMENT AS ON 31-03-208. THEREFORE, IN THE INTE REST OF EQUITY AND JUSTICE, THE ISSUE OF RS. 3,00,752/- IS RESTORED T O THE FILE OF THE AO FOR VERIFICATION. IF THE AO FINDS THE SAME IN ORDER THE N THE RELIEF MAY BE ITA NO. 1024/JP/2016 SHRI RAJ SINGH SHEKHAWAT VS. ITO, WARD-3(5), JAIPUR . 6 ALLOWED ACCORDINGLY. THUS THE APPEAL OF THE ASSESSE E IS PARTLY ALLOWED FOR STATISTICAL PURPOSES 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/201 7 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 /01/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJ SINGH SHEKAHWAT, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 3(5),JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 1024/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR