The ITO, Ward-3(1), JAMNAGAR V. Shri Abhabhai K. Karmur, Jam-Khambhalia

ITA 1294/RJT/2010

• Counselvise Citation: 129424914 RSA 2010
• Duration Of Justice: 3 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 29-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI
• Assessee Lawyers: CHETAN AGARWAL CA
• Keywords: Salary income; Source of fund
• Section: 147; 68; 69; 148; 28; 144; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM AND SHRI B. R. JAIN, A M ITA NO. 1294/RJT/2010 / ASSESSMENT YEAR : 2005-06 INCOME-TAX OFFICER, WARD-3 (1) JAMNAGAR ( / APPELLANT) SHRI ABHABHAI K. KARMUR, (PROP OF M/S. PARISHRAM PETROLEUM), DHARAMPUR, JAMNAGAR-DWARKA RD, JAM-KHAMBALIA, JAMNAGAR PAN : AHTPK 0143 L / RESPONDENT ! '# / REVENUE BY DR. JAYANT B. JHAVERI, DR $% ! '# / ASSESSEE BY SHRI CHETAN AGARWAL, CA ' & ' %( / DATE OF HEARING 07.01.2014 ) %( / DATE OF PRONOUNCEMENT 10.01.2014 / ORDER .. , / T. K. SHARMA, J. M.: THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 16.09.2010 OF LD. CIT(A), J AMNAGAR DELETING THE ADDITION OF RS.12,11,600/- OUT OF THE TOTAL ADDITION OF RS.13, 11,600/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN T HE BANK FOR THE ASSESSING YEAR 2005-06. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE WAS AN EMPLOYEE OF BSNL TILL FY 2004-05 RELEVANT TO AY 2005-06 WHEN HE RETIRED FROM HIS SERVICES. ON THE BASIS OF THE ANNUAL INFORMATION RETURN FILED U/S 28 5BA OF THE ACT BY THE VIJAYA BANK, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 DATED 2 3.08.2007 WAS ISSUED TO THE ASSESSEE TO FILE THE RETURN OF INCOME FOR THE ASSES SMENT YEAR UNDER APPEAL. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED HIS FIRST RE TURN OF INCOME ON 03.10.2007, IN WHICH INTER-ALIA THE ASSESSEE SHOWN PENSION INCOME OF RS. 27,935/- FROM THE BSNL, EXEMPT CLAIM OF RS.1,31,074 BEING GRATUITY AND RS.1,87,982 /- BEING COMMUTED VALUE OF PENSION. THE ASSESSING OFFICER FRAMED THE ASSESSMEN T U/S 144 R.W.S. 147 ON 29.12.2008, WHEREIN HE MADE AN ADDITION OF RS.13,11 ,600/- U/S 68 ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN M/S. VIJAY BANK ON THE BASIS OF ANNUAL INFORMATION RETURN SUBMITTED BY THE BANK. ON APPEAL, THE LD. CIT(A) D ELETED THE ADDITION OF RS.12,11,600/- 1294-RJT-2010 - SHRI ABHABHAI K KARMUR 2 OUT OF THE TOTAL ADDITION OF RS.13,11,600/- MADE BY THE ASSESSING OFFICER FOR THE DETAILED REASON GIVEN IN PARAGRAPH NO.10 OF THE IMPUGNED ORD ER WHICH IS REPRODUCED HEREUNDER:- 10. I HAVE CAREFULLY CONSIDERED THE ISSUE AND GONE THROUGH THE RECORDS, IT IS SEEN THAT THE ASSESSING OFFICER HAS MADE ADDITION O F CASH DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT IN THE YEAR UNDER CONSIDER ATION. THE APPELLANT IS HAVING AGRICULTURAL INCOME AND SALARY INCOME FROM BSNL. HE WAS NOT FILING HIS INCOME TAX RETURN OR MAINTAINING BOOKS OF ACCOUNTS. THE AR HAS SUBMITTED THAT THE CASH WAS DEPOSITED FROM ACCUMULATION OF CASH FROM SALE P ROCEEDS OF AGRICULTURAL INCOME, SALARY INCOME AND WITHDRAWAL FROM BANK. SAL ARY INCOME OF THE APPELLANT WAS FROM BSNL, SUPPORTED WITH FORM NO.16 AND CASH W ITHDRAWALS FROM BANK ARE SUPPORTED BY BANK STATEMENT. WITH REGARDS TO AGRICU LTURAL INCOME, AR HAS SUBMITTED REVENUE RECORDS AND SALES BILLS OF AGRICU LTURAL PRODUCES SINCE 1997 ALONG WITH CASH FLOW STATEMENT. MAJORITY OF PURCHAS ERS OF AGRICULTURAL PRODUCES APPEARED BEFORE ASSESSING OFFICER IN REMAND PROCEED ING AND CONFIRMED THE TRANSACTION WITH EVIDENCES, SOME APPEARED AND CONFI RMED THE TRANSACTION, BUT COULD NOT PRODUCE EVIDENCES, SINCE THE MATTER IS OL D AND SOME PARTIES DID NOT RESPOND TO THE NOTICES OF THE AO, BUT ALL THE NOTIC ES WERE SERVED, PROVING THEIR EXISTENCE. THE CASH FLOW STATEMENT SUBMITTED BY THE AR FOR THE PERIOD 1997 TO 2004, SHOWS AGGREGATED AGRICULTURAL INCOME OF RS.10 17090, SALARY INCOME OF RS.7429906, WITHDRAWAL FROM BANK RS.995500 AS SOURC E OF FUNDS AND RS.595000 AS HOUSE HOLD EXPENDITURE AND RS.874400 A S DEPOSIT IN BANK. IN ALL THE APPELLANT WAS HAVING BALANCE OF RS.1459216 FOR MAKING CASH DEPOSIT IN THE BANK. THOUGH THE APPELLANT HAS TRIED TO PROVE DEPOS IT OF RS.1311600 WITH HELP OF AGRICULTURAL INCOME, SALARY INCOME AND WITHDRAWAL F ROM BANK, IT CANNOT BE SAID THAT, IT IS PROVED BEYOND ANY DOUBT. HENCE IT IS FA IR TO SUSTAIN REASONABLE LUMPSUM ADDITION OF RS.100000 AND BALANCE IS DELETE D. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE REVENUE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 3. AT THE TIME OF HEARING, ON BEHALF OF THE REVENUE , DR. JAYANT B. JHAVERI, DR, APPEARED AND POINTED OUT THAT THE ASSESSEE, DESPITE OF REPEATED NOTICES, FAILED TO EXPLAIN THE SOURCES OF THE DEPOSITS IN M/S. VIJAYA BANK; THEREFORE THE ASSESSING OFFICER RIGHTLY MADE THE ADDITION OF RS.13,11,600/- U/S 69 OF THE INCOME-TAX ACT, 1961 ON ACCOUNT OF UNEXPLAINED DEPOSITS IN BANK. 4. AS AGAINST THE AFORESAID SUBMISSION MADE BY THE LD. DR, THE LD. COUNSEL OF THE ASSESSEE SHRI CHETAN AGARWAL, CA POINTED OUT THAT T HE CASH WAS DEPOSITED IN BANK FROM ACCUMULATION OF CASH FROM SALE PROCEEDS OF AGR ICULTURAL INCOME, SALARY INCOME AND WITHDRAWAL FROM BANK. SALARY INCOME OF THE APPELLAN T WAS FROM BSNL WHICH WAS SUPPORTED WITH FORM NO.16 AND CASH WITHDRAWALS FROM BANK ARE SUPPORTED BY BANK STATEMENT. HE ALSO SUBMITTED THAT REVENUE RECORDS A ND SALES RECORDS BILLS OF AGRICULTURAL PRODUCES SINCE 1997 ALONGWITH CASH FLOW STATEMENT A LREADY FILED BEFORE THE LD. CIT(A) AND MAJORITY OF PURCHASERS OF AGRICULTURAL PRODUCES APPEARED BEFORE THE ASSESSING 1294-RJT-2010 - SHRI ABHABHAI K KARMUR 3 OFFICER DURING THE ASSESSMENT PROCEEDINGS, HOWEVER SINCE THE MATTER IS OLD, SOME PARTIES DID NOT RESPOND TO THE NOTICES ISSUED BY TH E ASSESSING OFFICER. HE ALSO SUBMITTED THAT IN THE SAID CASH FLOW STATEMENT FOR THE PERIOD 1997 TO 2004, IT IS SHOWN THE AGRICULTURAL INCOME OF RS.1017090, SALARY INCOM E RS.742906, WITHDRAWAL FROM BANK RS.995500 AS SOURCE OF FUNDS AND RS.595000 AS HOUSE HOLD EXPENDITURE AND RS.874400 AS DEPOSIT IN BANK. HE FURTHER SUBMITTED THAT IN ALL THE ASSESSEE WAS HAVING BALANCE OF RS.1459216 FOR MAKING CASH DEPOSIT. IN THIS VIEW OF THE MATTER, THE VIEW TAKEN BY THE LD. CIT(A) BE UPHELD. 5. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY C ONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE ASSESSEE WAS A SALARIED EMPLOYEE OF BSNL TILL FY 2004-05 RELEVANT TO AY 2005-06 WHEN HE RETIRED FROM HIS SERVICE. DURING THE ASSESSMENT YEAR UNDER APPEAL, HE GOT PENSION AN D COMMUTED VALUE OF PENSION. BEFORE THE LD. CIT(A) THE ASSESSEE PLACED ON REVENU E RECORD RECORDS OF AGRICULTURAL LAND, COPIES OF AGRICULTURAL BILLS AND SALARY CERTI FICATES. THE LD. CIT(A) FORWARDED THESE DOCUMENTS TO THE ASSESSING OFFICER FOR VERIFICATION . THE ASSESSING OFFICER IN HIS REMAND REPORT ADMITTED THAT SOME OF THE PURCHASERS OF AGRI CULTURAL PRODUCE WERE APPEARED BEFORE THE ASSESSING OFFICER AND CONFIRMED TO HAVE MADE PURCHASES FROM THE ASSESSEE. SOME OF THE PURCHASERS CONFIRMED THE TRAN SACTIONS BUT WERE NOT ABLE TO SUBSTANTIATE AS THE MATTER WAS OF THE PERIOD 1997 T O 2005 AND THEY HAVE DESTROYED THEIR BOOKS OF ACCOUNTS AND SOME HAVE NOT RESPONDED THE N OTICES ISSUED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER IN HIS REMAND REPORT ALSO MENTIONED THAT THE REVENUE RECORDS INDICATE THAT THE ASSESSEE IS HOLDING THE A GRICULTURAL LAND JOINTLY WITH HIS TWO BROTHERS. THEREFORE, THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE SHOULD BE CONSIDERED AT ONE-THIRD. WITH REGARD TO THE CONTENT ION THAT THE INCOME WAS ASSESSED U/S 68, THE ASSESSING OFFICER IN THE REMAND REPORTED ST ATED THAT DUE TO MISTAKE SECTION WAS MENTIONED AS 68 INSTEAD OF SECTION 69 OF THE INCOME -TAX ACT, 1961. BEFORE THE LD. CIT(A), IN REJOINDER TO REMAND REPORT, THE ASSESSEE CONTENDED THAT MOST OF THE PURCHASERS HAD APPEARED BEFORE THE ASSESSING OFFICE R AND HAD CONFIRMED THE TRANSACTIONS EVEN THOUGH THE SAME PERTAINED TO THE PERIOD FROM 1997 TO 2005. THEREFORE, ON DOUBTS AND SUSPICION THE PLEA OF ACCU MULATION OF AGRICULTURAL INCOME CANNOT BE REJECTED. THE REVENUE RECORDS INDICATE TH AT THE ASSESSEE IS HOLDING 1294-RJT-2010 - SHRI ABHABHAI K KARMUR 4 AGRICULTURAL LAND JOINTLY WITH HIS TWO BROTHERS. IT WAS SUBMITTED THAT THE ASSESSEE INHERITED AGRICULTURAL LAND, HENCE NAMES OF HIS BRO THERS ARE APPEARING IN REVENUE RECORDS. COPY OF THE LAND RECORDS AND BANK ACCOUNT OF HIS TWO BROTHERS WERE ALSO SUBMITTED. THE AMOUNT WITHDRAWN FROM BANK AND SALAR Y INCOME WAS NOT DISPUTED BY THE ASSESSING OFFICER. AFTER CONSIDERING THE REMAND RE PORT AND COMMENTS OF THE ASSESSEE THEREON, IN THE IMPUGNED ORDER THE LD. CIT(A) SUSTA INED A REASONABLE LUMPSUM ADDITION OF RS.1,00,000/- AND DELETED THE BALANCE. IN OUR CO NSIDERED OPINION, THE REASONING GIVEN BY THE LD. CIT(A) IN THIS REGARD IS FAIR AND REASONABLE LOOKING TO THE CONSPICUOUS FACTS OF THE CASE. THEREFORE, WE DECLINE TO INTERFE RE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- SD/- (B. R. JAIN) (T. K. SHARM A) #( '* / ACCOUNTANT MEMBER '* /JUDICIAL MEMBER *#+ ,*-/ ORDER DATE 10.01.2014 /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- INCOME-TAX OFFICER, WARD-3 (1), JAMNAG AR 2. /RESPONDENT- SHRI ABHABHAI K. KARMUR, JAM-KHAMBALIA , JAMNAGAR 3. '-2- % & 3% / CIT, JAMNAGAR 4. & 3%- / CIT(A), JAMNAGAR 5 . 678 % , , / DR, ITAT, RAJKOT 6 . 89 :; / GUARD FILE. *#+ '# / BY ORDER , TRUE COPY PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.