SHRI VINOD SAIN, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 1050/JPR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1446 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MEHLA
• Assessee Lawyers: SATISH AJMERA
• Keywords: Search and seizure; Source of fund
• Section: 143(3); 147; 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1050/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2009-10 VINOD SAIN, 33, KARNI COLONY, WARD NO. 1, HARMADA, JAIPUR- 302013 CUKE VS. ITO WARD-7(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BWPPS0957J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SANJEEV MATHUR & SHRI SATISH AJMERA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A. K. MEHLA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 07/03/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 18/03/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-3, JAIPUR DATED 31.10.2017 FOR A.Y 2009-10 W HEREIN THE EFFECTIVE GROUND RELATES TO SUSTENANCE OF ADDITION OF RS. 13, 75,000 WITHOUT CONSIDERING THE FACT THAT THE SAID AMOUNT STOOD EXP LAINED TO THE AO HIMSELF AND IN NOT CONSIDERING THE STATEMENT OF RAJENDRA KU MAR SAIN BEFORE THE AO. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 147 READ WITH SECTION 143(3) VIDE ORDER DATED 23.03.2015 WHEREIN THE ASSESSING OFFICER HAS BROUGH T TO TAX AN AMOUNT OF RS. 13,75,000/- AS UNEXPLAINED DEPOSIT FOUND DEPOSI TED IN THE BANK ACCOUNT OF THE ASSESSEE. ITA NO. 1050/JP/2017 VINOD SAIN, JAIPUR VS. ITO, WARD 7(4), JAIPUR 2 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEES EXPLANATION WAS SOUGHT AND IN HIS RESPONSE, THE ASS ESSEE SUBMITTED THAT THE SAID AMOUNT WAS GIVEN BY HIS COUSIN BROTHER SH. RAJENDRA KUMAR SAIN AS THE LATTER WANTED TO PURCHASE A HOUSE. IN ORDER TO VERIFY THE SAID EXPLANATION SO SUBMITTED BY THE ASSESSEE, STATEMENT OF SH. RAJENDRA KUMAR SAIN WAS RECORDED BY THE ASSESSING OFFICER DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, WHEREIN IN RESPONSE TO QUES TION NO. 7, HE HAS STATED THAT HE HAS GIVEN THE SAID AMOUNT TO THE ASS ESSEE FOR PURCHASE OF A RESIDENTIAL HOUSE. HOWEVER, THE AO DID NOT ACCEPT T HE SAID EXPLANATION FOR THE REASON THAT SH. RAJENDRA KUMAR SAIN WAS ALSO HA VING A BANK ACCOUNT MAINTAINED WITH BANK OF BARODA. ACCORDINGLY, A SHOW CAUSE WAS ISSUED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS. IN RESPONSE, THE ASSESSEE SUBMITTED THAT SH. RAJENDRA KUMAR SAIN IS EDUCATED UPTO 5 TH CLASS AND LIKE OTHER UNEDUCATED VILLAGERS, HE IS AF RAID OF OPERATING HIS BANK ACCOUNT AND GIVEN THAT HE WANTED TO PURCHASE A RESI DENTIAL HOUSE, HE HAS GIVEN AN AMOUNT OF RS. 13,75,000/- TO THE ASSESSEE OUT OF THE SALE PROCEED OF AGRICULTURE LAND. HOWEVER, THE AO DID NOT FIND T HE SAID EXPLANATION ACCEPTABLE AND BROUGHT TO TAX THE AMOUNT OF RS. 13, 75,000/- AS UNEXPLAINED DEPOSIT IN THE HANDS OF THE ASSESSEE. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CI T(A) WHO HAS CONFIRMED THE SAID ADDITION. 4. DURING THE COURSE OF HEARING, THE LD. AR REITER ATED THE SUBMISSIONS MADE BEFORE THE AO AND SUBMITTED THAT IN HIS REPLY TO THE AO, THE ASSESSEE STATED THAT SUCH AMOUNT BELONGS TO HIS COU SIN SH RAJENDRA KUMAR SAIN. IT WAS SUBMITTED THAT SHRI RAJENDRA KUM AR SAIN ALONG WITH HIS BROTHER AND SISTER SOLD THEIR AGRICULTURE LAND SITUATED AT TEHSIL AMER ON 19.04.2008 FOR A TOTAL CONSIDERATION OF RS 22,40,00 0/-RECEIVED IN CASH, OUT ITA NO. 1050/JP/2017 VINOD SAIN, JAIPUR VS. ITO, WARD 7(4), JAIPUR 3 OF SUCH AMOUNT, MR RAJENDRA KUMAR SAIN GAVE AN AMOU NT OF RS 9,00,000/- TO THE ASSESSE ON 23.04.2008 AND RS 4,75,000/- ON 2 4.04.2008 TO KEEP THE MONEY ON HIS BEHALF. THE ASSESSEE DEPOSITED SUCH SU M ON THE SAME DAY IN HIS BANK ACCOUNT. IT WAS SUBMITTED THAT THE AO MADE AN ADDITION MERELY ON THE GROUND THAT MR. RAJENDRA KUMAR SAIN, COUSIN OF ASSESSEE HIMSELF HAD THE BANK ACCOUNT. IN ANSWER TO QUESTION NO.1 OF THE STATEMENT RECORDED BY THE LD A.O, MR RAJENDRA KUMAR SAIN HAS STATED THAT HE IS EDUCATED UPTO 5 TH CLASS, AND WE SUBMIT THAT ALL VILLAGERS, WHO ARE NO T VERY EDUCATED ARE AFRAID OF OPERATING BANK ACCOUNTS AND SO THE FACT THAT MR. RAJENDRA KUMAR SAIN WAS HIMSELF HAVING THE BANK ACCOUNT DOES NOT HAVE A NY RELEVANCE ON THE SOURCE OF FUNDS. THE AO HAS NOWHERE STATED FROM WHE RE THE APPELLANT COULD HAVE GOT THE FUNDS AND HAS MERELY STATED THAT THE INCOME IS UNDISCLOSED. IT WAS SUBMITTED THAT THERE IS NO INFI RMITY IN SOMEONE HAVING A SMALL BANK ACCOUNT, OPERATION OF WHICH HE DOES NO T REALLY UNDERSTAND DUE TO HIS LACK OF EDUCATION AND BEING A VILLAGER, AND GIVING THE AMOUNT TO HIS SENIOR COUSIN AS THE AMOUNT ALSO INCLUDES TH E SHARE OF HIS SISTER, TO KEEP IT SAFE FOR HIM AND TO RETURN AS AND WHEN REQU IRED BY HIM. IT WAS FURTHER SUBMITTED THAT MR. RAJENDRA KUMAR SAIN IN H IS REPLY TO THE QUESTION NO 7 OF HIS STATEMENT U/S 131 OF INCOME TAX ACT, 19 61 BEFORE THE ASSESSING OFFICER HAS SPECIFICALLY STATED THAT HE H AS GIVEN RS. 13,75,000/- OUT OF THE SALE PROCEED OF AGRICULT URE LAND TO THE ASSESSEE AS HE WANTED TO PURCHASE A HOUSE. THE SOURCE OF THE AMOUNT OF RS. 13,75,000/- HAS ALSO BEEN ESTABLISHED AND ASSES SE HAS DISCHARGED THE ONUS COMPLETELY REGARDING SOURCE OF SOURCE. THE SAL E OF AGRICULTURE LAND BY RAJENDRA KUMAR SAIN TOOK PLACE ON 19/04/2008 AND TH E AMOUNTS WERE DEPOSITED IN THE BANK ON 23R D APRIL AND 24 TH APRIL 2008 RESPECTIVELY. IT WAS FURTHER SUBMITTED THAT MR RAJENDRA KUMAR SAIN HAS A LSO CONFIRMED IN HIS REPLY TO QUESTION NO 7 THAT THE SAID AMOUNT OF RS. 13,75,000/- HAD ALSO BEEN RETURNED BY THE ASSESSEE TO HIM BY 5/07/2008 F ROM WHICH MR ITA NO. 1050/JP/2017 VINOD SAIN, JAIPUR VS. ITO, WARD 7(4), JAIPUR 4 RAJENDRA KUMAR SAIN PURCHASED A PLOT FOR RS. 11,51, 000 ON 18/07/2008 AND HE REQUIRED SOME MONEY FOR THE MARRIAGE OF HIS SISTER. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE HAS PROVED THAT THE SAID AMOUNT DOES NOT BELONG TO HIM NOR IT IS UNDISCLOSED INCOME OR INVESTMENT AND HAS FULLY DISCHARGED THE ONUS AND THE ADDITION SO MADE BY THE AO AND SUSTAINED BY THE LD CIT(A) BE DELETED. 5. THE LD DR IS HEARD WHO HAS RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS A SETTLED LEGAL PROPOSI TION THAT WHERE AN AMOUNT IS FOUND DEPOSITED IN ASSESSEES BANK ACCOUNT, THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH DEPOSITS AND PROVIDE THE NECESSARY EXPLANATION. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE ASSESSEE HAS SUBMITTED THAT THE AMOUNT OF RS 13.75 LACS FOUN D DEPOSITED IN HIS BANK ACCOUNT BELONGS TO HIS COUSIN BROTHER, RAJENDRA KUM AR SAIN. IN ORDER TO VERIFY THE VERACITY OF SUCH EXPLANATION, THE AO HAS SUMMONED RAJENDRA KUMAR SAIN AND HIS STATEMENT WAS RECORDED U/S 131 O F THE ACT. IN HIS STATEMENT, HE HAS CATEGORICALLY ADMITTED THAT HE HA S GIVEN THE AMOUNT TO THE ASSESSEE OUT OF SALE PROCEEDS OF THEIR AGRICULT URAL LAND. HE HAS ALSO STATED THE PURPOSES OF GIVING SUCH DEPOSIT TO THE A SSESSEE AND ALSO THE FACT THAT THE SAID AMOUNT HAS SUBSEQUENTLY BEEN REFUNDED BACK BY THE ASSESSEE TO HIM. THE EXPLANATION REGARDING SOURCE OF DEPOSI T IN ASSESSEES BANK THUS STAND CORROBORATED BY THE STATEMENT OF RAJENDR A KUMAR SAIN TO WHOM SUCH MONEY BELONGS AND THE LATTER HAS ALSO EXPLAINE D THE SOURCE OF SUCH DEPOSITS IN HIS HAND WHICH ARISE OUT OF SALE OF THE IR AGRICULTURAL LAND HOLDING. IN OUR VIEW, IN LIGHT OF THESE UNDISPUTED FACTS WHICH HAVE NOT BEEN DISPUTED BY THE REVENUE, THE ONUS CAST ON THE ASSESSEE STOOD DISCHARGED AND THE SOURCE OF DEPOSITS IN THE ASSESS EES BANK ACCOUNT IS ITA NO. 1050/JP/2017 VINOD SAIN, JAIPUR VS. ITO, WARD 7(4), JAIPUR 5 THUS FULLY EXPLAINED. WE ACCORDINGLY DIRECT THE AS SESSING OFFICER TO DELETE THE ADDITION SO MADE IN THE HANDS OF THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 18/03/2019 SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18/03/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VINOD SAIN, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 7(4), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1050/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR