ITO, RAJSAMAND V. Dr. B.L. Pagaria, RAJSAMAND

ITA 13/JODH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4907 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: SHYAM SINGHVI
• Section: 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 13/JODH/2013 (A.Y. 2005-06) ITO, VS DR. B.L. PAGARIA, WARD-1, NEAR MUKHERJEE CHOURAHA, RAJSAMAND. KANKROLI, RAJSAMAND. PAN NO. ABEPP9885F (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SHYAM SINGHVI. DEPARTMENT BY : SH. G.R. KOKANI- DR. DATE OF HEARING : 05/08/2013. DATE OF PRONOUNCEMENT : 29/08/2013. O R D E R PER HARI OM MARATHA, J.M. : THIS APPEAL OF THE REVENUE FOR A.Y. 2005-06 IS DIR ECTED AGAINST THE ORDER OF LD. CIT(A) DATED 11/10/2012. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE RUNS A NURSING HOME AND FOR A.Y. 2005-06, HE FILED HIS RET URN OF INCOME (ROI) ON 28/07/2005 DECLARING TOTAL INCOME OF RS. 92,260/ -. THIS ROI WAS 2 PROCESSED U/S 143(1) ON 03/01/2006. SUBSEQUENTLY, A SURVEY U/S 133-A OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI ASHOK KUMAR JAIN PROP. M/S. NEELAM MARBLES, RAJSAMAND. DURING THIS SURVEY CERTAIN PAPERS FOUND WERE IMPOUNDED AS ANNEXURES 1 TO 11 WHICH CON TAINED DETAILS OF MONEY LENDING TRANSACTIONS BY THE ASSESSEE WITH ASH OK KUMAR JAIN. THESE TRANSACTIONS HAVE BEEN CONSIDERED UNDER PROCE EDINGS INITIATED AS PER SECS. 147 AND 148 OF THE ACT. AS PER PAGE 11 OF EXHIBIT-1, ADMITTEDLY WRITTEN ON 12/11/2004 BY THIS ASSESSEE, THESE ARE TRANSACTION BETWEEN ASHOK KUMAR AND THE ASSESSEE HI MSELF AND OTHERS MEMBERS OF HIS FAMILY. THE ASSESSEE DR. B.L. PAGARI A HAS ADMITTED THIS FACT IN HIS STATEMENT RECORDED U/S 133 OF THE ACT O N 05/02/2007. HOWEVER HE ADDED THAT THE DATE MENTIONED ON THIS PA GE AS 12/11/2004 MAY NOT BE EXACTLY CORRECT AND CAN VARY. IT IS FOUN D THAT DR. PAGARIA AND OTHER MEMBERS OF HIS FAMILY HAD TRANSACTIONS OF RS. 5 LAKH ON 18/06/2004 BUT BOTH THESE TRANSACTION ARE NOT FOUND RECORDED IN THEIR BANK ACCOUNTS. SIMILARLY RECEIPT OF INTEREST AMOUNT S ARE NOT VERIFIABLE FROM THEIR ROIS. ACCORDINGLY, THE A.O. HAS ADDED RS . 10 LAKHS AND INTEREST AMOUNT OF 79,283/- AFTER SEEKING EXPLANATI ON OF THE ASSESSEE, IN HIS HANDS IN THIS ASSESSMENT YEAR. 3 2.1 AGGRIEVED, THE ASSESSEE WENT BEFORE LD. CIT(A), WHO HAS ACCEPTED THE VERSION OF THE ASSESSEE PAGE NO. 11 IS A SUMMARIZED STATEMENT OF THE ORIGINAL TRANSACTIONS OF LOANS. HE HAS FURTHER FOUND THAT THE MEMORANDA DETAILS OF THIS LOAN ACCOUNT AT PAGES 1 TO 10 OF ANNEXURE (OR EXH)-I ARE IN AGREEMENT WITH THE BOOKS OF SHRI ASHOK KUMAR JAIN AND ARE FOR THE PERIOD UPTO 31/03/2006 A S AGAINST 12/11/2004. HE HAS ALSO ACCEPTED THE SOURCE OF THES E ADVANCES TO BE OUT OF DUES OF RS. 29.5 LACS AVAILABLE WITH THE FAM ILY. RELATED INTEREST HAS ALSO BEEN DELETED ON THE ABOVE LOGIC. NOW THE R EVENUE IS AGGRIEVED WHO HAS FILED THIS APPEAL BY RAISING THE FOLLOWING GROUNDS :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN: 1. DELETING THE ADDITION OF RS. 10 LAC S MADE ON ACCOUNT OF UNACCOUNTED ADVANCES OF RS. 5 LACS MAD E ON SPECIFIC DATE I.E. 18.06.04 & ANOTHER RS. 5 LACS MA DE ON ANOTHER SPECIFIC DATE I.E. 03.07.04 TO SHRI A.K. BO HRA (JAIN), AS IS CLEARLY REFLECTED ON PAGE NO. 11 OF E X-1 AND ALSO IGNORING THE FACT THAT SAID TRANSACTIONS MENTI ONED ON PAGE 11 OF EX-1 WAS ADMITTED BY THE ASSESSEE TO BE BELONGING TO HIM. 4 2. IGNORING THE FACT THAT THESE TWO ADVANCES OF RS . 5 LACS EACH HAVE BEEN MADE UNCONTROVERTEDLY ON 18.06.04 AN D 03.07.04 RESPECTIVELY, IRRESPECTIVE OF THE CONTENTI ON OF THE ASSESSEE THAT DATE MENTIONED ON THE TOP OF PAGE 11 OF EX. 1 (BEING 'UPTO 12.11.04') IS NOT CORRECT (TH OUGH THE CONTENTION ITSELF IS TOTALLY WRONG AND ALSO BEING UNSUPPORTED BY ANY DOCUMENTARY OR CIRCUMSTANTIAL EVIDENCE.) AND HENCE THESE REMAINED UNACCOUNTED. 3. DELETING THE ADDITION OF RS. 79,283/- ON ACCOUN T OF UNACCOUNTED INTEREST RECEIPTS. 2.2 WE HAVE HEARD RIVAL SUBMISSIONS. WE HAVE ALSO G ONE THROUGH THE ENTIRE WRITTEN RECORD AVAILABLE INCLUDING THE WRITT EN SUBMISSIONS ETC. 2.3 THE LD. D.R. HAS RELIED ON THE ASSESSMENT ORDER AND THE STATEMENT OF THE ASSESSEE. HE HAS ALSO REFERRED TO THE RELEVANT PAPERS FOUND DURING SURVEY. HE HAS SUPPORTED GROUNDS TAKEN BY REITERATING THE ENTIRE REASONING GIVEN BY THE A.O. FOR MAKING THE I MPUGNED ADDITIONS. 2.4 PER CONTRA LD. A.R. HAS HEAVILY RELIED ON THE O RDER OF LD. CIT(A) AND HAS ALSO RELIED ON OTHER EVIDENCE AND ALSO ON H IS WRITTEN SUBMISSION. HE HAS FURTHER ARGUED THAT THESE VERY A CCOUNTS HAVE BEEN CONSIDERED BY THE SAME A.O. IN THE HANDS OF SHRI AS HOK KUMAR JAIN IN 5 THE A.Y. 2005-06. IN SUPPORT OF THIS HE HAS SUBMITT ED COPIES OF ASSESSMENT ORDER DATED 02/03/2007 FOR A.Y. 2005-06 IN THE CASE OF SHRI ASHOK KUMAR JAIN AND ALSO A COPY OF ORDER DATED 20/ 12/2010 VIDE WHICH PROCEEDINGS INITIATED U/S 271D OF THE ACT IN THE A.Y. 2005-06 IN RESPECT OF THE SAME LOAN ACCOUNTS WERE DROPPED. 2.5 AFTER CONSIDERING ALL THESE DOCUMENTS VIS--VIS THE ENTIRE EVIDENCE AVAILABLE ON RECORD, WE ARE SATISFIED THAT LD. CIT(A) HAS TAKEN A CORRECT DECISION IN DELETING THE IMPUGNED ADDITIO NS. THERE IS NO DISPUTE ABOUT THE ADVANCEMENT OF LOANS IN QUESTION. ONLY DISPUTE IS REGARDING THE DETAILS OF ADVANCE AND THE YEAR TO WH ICH THESE ADVANCES / RECEIPTS BELONG AND PERTAIN TO, WHEN IN RESPECT O F SAME AMOUNTS THE A.O. HIMSELF HAS TAKEN A VIEW THAT THESE AMOUNTS DONT PERTAIN TO A.Y. 2005-06, THEN HOW AND WHY THE SAME AMOUNTS CAN BE TREATED IN ASSESSEES HANDS IN A DIFFERENT ASSESSMENT YEAR. IT IS FOUND THAT IN THE CASE OF SHRI ASHOK KUMAR JAIN ADDITION MADE BY THE A.O. ON THE BASIS OF MONEY LENDING DETAILS AS PER THESE PAPERS HAVE B EEN DELETED BY THE LD. CIT(A) AS WELL. IT IS NOT A CORRECT METHOD TO P ICK AND CHOOSE TWO ENTRIES FROM PAGES NO. 11 OUT OF NUMBER OF ENTRIES. THE IMPOUNDED PAPER(S) HAS TO BE EXAMINED IN ITS ENTIRELY. THE A. O. HAS NOT DISPUTED THE CLAIM THAT PAGE NO. 11 CONTAINED SUMMARIZED DET AILS OF LOAN 6 ACCOUNT FROM 01/04/2004 TO 31/03/2006. THIS AMOUNT OF RS. 10 LAKHS IN FOUND INCLUDED IN THE AMOUNT OF RS. 10,50,000/- GIVEN ON VARIOUS DATES STATEMENTS FROM 01/05/2005 TO 16/03/2006 AS A PPEARING IN THE LEDGER ACCOUNT OF SHRI ASHOK KUMAR JAIN. THE A.O. H AS NOT GIVEN ANY FINDING IN THIS REGARD. THE MEMORANDA DETAILS OF TH E LOAN ACCOUNTS OF THE FAMILY MEMBERS OF THE ASSESSEE AT PAGES 1 TO 10 OF ANNEXURE I WITH SHRI ASHOK KUMAR JAIN ARE FOUND IN AGREEMENT W ITH HIS BOOKS OF ACCOUNTS. ON THE VERY FACTS THE VERY SAME ADDITIONS MADE IN ASHOK KUMAR JAINS HANDS HAVE BEEN CONSIDERED BY LD. CIT( A). ACCORDINGLY, WE CONFIRM THE IMPUGNED FINDING AND CANNOT ALLOW TH IS APPEAL OF THE REVENUE. 3. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH AUGUST, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29 TH AUGUST, 2013. VL/ 7 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT BY ORDER 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR