GANESH LAL KUMAWAT, Jaipur V. ITO, Jaipur

ITA 1025/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5631 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Order Result: 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
• Assessee Lawyers: PROVIDING A COPY OF
• Keywords: Additional evidence
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 133(6); 69A

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. 1025/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI GANESH LAL KUMAWAT 879, DEVI NAGAR, NEW SANGANER ROAD JAIPUR CUKE VS. THE ITO WARD- 2(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ALZPK 3268 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.S. SHEKHAWAT, CA 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 : 25/01/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 27-10-2016 FOR THE ASSESSMENT YEAR 2008 -09 RAISING THEREIN FOLLOWING GROUND:- THE AO MADE THE ADDITION OF RS. 8.50 LACS IGNORIN G THE (I) GENUINE CREDIT ENTRY THROUGH BANK A/C (II) SUBMISSION OF CONFIRMATION LETTER BY SHRI GAJENDRA PRASAD LOHI A AND (III) PAN CARD OF SHRI LOHIA AGAINST THE PROVISION OF I.T. ACT.. ITA NO. 1025/JP/2016 SHRI GANESH LAL KUMAWAT VS. ITO, WARD- 2(2), 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:- 3.3.2 DETERMINATION: (I) THE BRIEF FACTS OF THE CASE ARE THAT A SUM OF RS. 8.50 LACS WAS CREDITED IN THE BANK ACCOUNT OF THE A PPELLANT IN 18-09-207 MAINTAINED WITH PNB, NEW SANGANER, JAIPUR . THE AO REQUIRED THE APPELLANT TO EXPLAIN THE SOURCE OF THE SAID AMOUNT BUT NO EXPLANATION WAS FURNISHED. THE AO ALS O ENQUIRED FROM THE BANK OF THE APPELLANT BUT OF NO A VAIL AND FINALLY THE AO MADE AN ADDITION OF RS. 8.50 LACS U/ S 69A OF THE ACT AS UNEXPLAINED MONEY. (II) DURING APPELLATE PROCEEDINGS, IT WAS SUBMITTED BY THE APPELLANT THAT THE SAID AMOUNT WAS PAID BY S HRI GAJENDRA PRASHAD FOR CONTRACT WORK AND THE APPELLAN T FILED CONFIRMATION, COPY OF PAN CARD AND DRIVING LICENSE OF SHRI GAJENDRA PRASAD AS AN ADDITIONAL EVIDENCE UNDER RUL E 46A OF THE I.T. RULES AND THE SAME WERE ADMITTED AS AN ADDITIONAL EVIDENCE AS THESE GOES TO THE ROOT OF THE MATTER. (III) THE ABOVE ADDITIONAL EVIDENCES WERE FORWARDED TO THE AO FOR ITS COMMENTS AND MAKING NECESSARY ENQ UIRIES. IN ORDER TO VERIFY THE CLAIM OF THE APPELLANT, THE AO ISSUED SUMMONS U/S 131 OF THE ACT TO SHRI GAJENDRA PRASHAD WHICH WAS DULY SERVED UPON HIM REQUIRING HIM TO ATTEND TH E PROCEEDINGS BEFORE AO ALONGWITH COPY OF HIS RELEVAN T BANK STATEMENT AND THE COPY OF HIS ITR FOR THE A.Y. 2008 -09. HOWEVER, ON THE DATE FIXED FOR HEARING, NO COMPLIAN CE WAS MADE BEFORE THE AO. THUS IT IS EVIDENT THAT THE APP ELLANT THROUGH PROVED THE IDENTITY OF SHRI GAJENDRA PRASHA D, IT FAILED TO PROVE THE GENUINENESS AND CREDITWORTHINES S OF SHRI GAJENDRA PRASHAD. IT MAY BE MENTIONED THAT THE BURD EN IS ON THE APPELLANT TO EXPLAIN THE SOURCE OF MONEY CREDIT ED IN ITS BANK ACCOUNT AND INITIALLY, IT DISCHARGED THE BURDE N BY FILING CONFIRMATION AND PAN OF SHRI GAJENDRA PRASHAD AND T HE ONUS NOW SHIFTED TO THE AO. THE AO ISSUED SUMMON U/ S 131 ITA NO. 1025/JP/2016 SHRI GANESH LAL KUMAWAT VS. ITO, WARD- 2(2), JAIPUR . 3 OF THE ACT BUT NO COMPLIANCE WAS MADE AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE APPELLANT BY PROVIDING A COPY OF THE REMAND REPORT OF THE AO AND NOW THE BURDEN TO P ROVE THE TRANSACTION UNDER CONSIDERATION WAS AGAIN SHIFTED T O THE APPELLANT, WHICH IT FAILED TO DISCHARGE. (IV) IT IS THEREFORE, IN VIEW OF THE ABOVE DISCUSSI ON HELD THAT SINCE THE APPELLANT FAILED TO PROVE THE D EPOSIT OF A SUM OF RS. 8.50 LACS IN ITS BANK ACCOUNT, THE AO WA S JUSTIFIED IN MAKING ADDITION OF RS. 8.50 LACS TO TH E INCOME OF THE APPELLANT AND HENCE THE SAME IS HEREBY SUSTAINE D. THUS THIS GROUND OF APPEAL IS HEREBY REJECTED. 2.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE PRAYED THAT LOWER AUTHORITIES HAVE ERRED IN CONFIRMING THE ADDITION O F RS. 8.50 LACS U/S 69A OF THE ACT IN THE HANDS OF THE ASSESSEE FOR WHICH T HE LD. AR OF THE ASSESSEE FILED THE WRITTEN SUBMISSION ALONGWITH NEC ESSARY DETAILS RELATING TO THE AMOUNT OF RS. 8.50 LACS. 2.3 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE AO NOTICED FROM THE BANK STATEMENT OF THE ASSESSEE THA T A SUM OF RS. 8.50 LACS WAS CREDITED IN HIS BANK ACCOUNT ON 18-09-2007 FOR WHICH THE AO REQUIRED THE ASSESSEE TO FURNISH THE SOURCE OF AMOU NT CREDITED IN HIS BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION. IT IS NOTED FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAD FILED REPLY ON 8-2-2016 STATING ITA NO. 1025/JP/2016 SHRI GANESH LAL KUMAWAT VS. ITO, WARD- 2(2), JAIPUR . 4 THEREIN THAT RS. 8.50 LACS WERE CREDITED THROUGH CHEQUE NO. 726704. ACCORDING TO THE AO, THE SOURCE OF AMOUNT WAS NOT E XPLAINED BY THE ASSESSEE. THE AO THEREFORE, SENT A LETTER DATED 23- 02-2016 TO THE BRANCH MANGER, PNB, NEW SANGANER ROAD, JAIPUR AND ASKED AS UNDER:- THE APPELLANT IN THE ABOVE MENTIONED CASE ARE PENDING WITH THE UNDERSIGNED. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED HIS BANK STATEM ENT OF SAVING BANK ACCOUNT NO. 4087000100024990 MAINTAINED WITH YOUR BANK. ON PERUSAL OF THE ACCOUNT, IT IS NO TICED THAT THE AMOUNT OF RS. 8.50,000/- HAS BEEN CREDITED IN T HE ACCOUNT OF THE ASSESSEE ON 18-09-2007 VIDE CHEQUE NO. 72670 4. THE AMOUNT WAS CREDITED FROM THE CHEQUE RECEIVED OF THE BANK OF RAJASTHAN LTD. MADRAMPURA, AJMER ROAD, JAIPUR. Y OU ARE REQUESTED TO PLEASE FURNISH THE ACCOUNT NO. NAME OF THE PERSON FROM WHOM CHEQUE WAS CREDITED IN ACCOUNT OF THE ASSESSEE. IT IS ALSO REQUESTED TO PLEASE PROVIDE TH E COPY OF CHEQUE CREDITED IN THE ACCOUNT. THE ABOVE INFORMATION IS CALLED FOR U/S 133(6) OF T HE I.T. ACT. IT IS REQUESTED TO KINDLY FILE INFORMATIO N WITHIN 3 DAYS OF RECEIPT OF THIS LETTER. PLEASE NOTE THAT FA ILURE IN FURNISHING OF INFORMATION WITHIN TIME ALLOWED MAY A TTRACT PENAL PROVISION U/S 272A(2) OF THE INCOME-TAX ACT, 1961. THE AO ALSO SENT VARIOUS LETTERS TO THE BANK BUT NO REPLY RELATING THE AMOUNT OF RS. 8.50 LACS CREDITED IN THE ACCOUNT OF THE ASSESSEE WAS SENT TO THE AO BY THE BANK. ACCORDING TO THE AO, THE ASSESS EE HAS NOT FURNISHED THE SOURCE OF AMOUNTS SO CREDITED IN HIS ACCOUNT. T HEREFORE, THE AO HAD NO OPTION EXCEPT TO ADD THE AMOUNT OF RS. 8.50 LACS U/S 69A OF THE ACT ON ITA NO. 1025/JP/2016 SHRI GANESH LAL KUMAWAT VS. ITO, WARD- 2(2), JAIPUR . 5 ACCOUNT OF UNEXPLAINED MONEY CREDITED IN THE BANK A CCOUNT OF THE ASSESSEE. THEREFORE, THE AO ADDED RS. 8.50 LACS TO THE TOTAL INCOME OF THE ASSESSEE WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) IN FIRST APPEAL. IN APPEAL BEFORE THIS BENCH, THE LD. AR OF THE ASSESSE E SUBMITTED THAT THE ASSESSEE IS A WAGE CONTRACTOR AND HE PERFORMS THE W ORK OF CONSTRUCTION OF THE HOUSE FOR WHICH HE FILED A COPY OF AFFIDAVIT SI GNED BY THE ASSESSEE INDICATING THEREIN THE WORK HE PERFORMED AT DIFFERE NT PLACES (PAGE 26 OF ASSESSEE'S PAPER BOOK). FURTHER THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD PERFORMED THE CONSTRUCTION JOB IN THE HOUSE OF SHRI GAJENDRA PRASAD LOHIYA R/O K-100, KISAN NAGAR, SHYA M NAGAR,AJMER ROAD, JAIPUR WHO HAD PAID RS. 8.50 LACS VIDE CHEQUE NO. 726704 AND SHRI GAJENDRA PRASAD GAVE A CONFIRMATION LETTER (PAGE 27 ASSESSEE'S PAPER BOOK). IT IS ALSO NOTED THAT THE SHRI GAJENDRA PRAS AD HAD SUBMITTED HIS PAN AACPL 9538 R TO THIS EFFECT (PAGE 28 OF ASSESSE E'S PAPER BOOK). FURTHER IT IS NOTED FROM THE PUNJAB NATIONAL BANK S TATEMENT IN THE CASE OF THE ASSESSEE THAT ON 18-09-2007 A CHEQUE BEARING NO. 726704 AMOUNTING TO RS. 8.50 LACS WAS DEPOSITED IN HIS ACCOUNT AND A LSO CREDITED IN HIS ACCOUNT. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANC ES OF THE CASE, IT IS NOTED THAT THESE THREE INGREDIENTS LIKE IDENTITY, C REDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS ARE FULFILLED IN TH E CASE OF THE ASSESSEE AS ITA NO. 1025/JP/2016 SHRI GANESH LAL KUMAWAT VS. ITO, WARD- 2(2), JAIPUR . 6 SHRI GAJENDRA PRASAD HAD CONFIRMED THE PAYMENT OF R S. 8.50 LACS TO THE ASSESSEE VIDE CHEQUE NO.726704 ON 18-09-2007 AGAINS T COMPLETION OF CONSTRUCTION WORK OF HIS HOUSE. HENCE IN SUCH A SIT UATION, ADDITION OF RS. 8.50 LACS CONFIRMED BY THE LD. CIT(A) IN THE HANDS OF THE ASSESSEE U/S 69A OF THE ACT IS DIRECTED TO BE DELETED. THUS THE SOLITARY GROUND OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 /01/2 017 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /01/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI GANESH LAL KUMAWAT, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 2 (2), 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.1025/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR