M/S DURGA DUTT MAHAJAN HUF, JHUNJHUNU V. INCOME TAX OFFICER, JHUNJHUNU

ITA 13/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3946 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: S L PODDAR

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, 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. 13/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 M/S DURGA DATT MAHAJAN HUF BAWARI GATE, NAWALGARH, JHUNJHUNU. CUKE VS. THE ITO, WARD-1, JHUNJHUNU. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAHHD 1900 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 28/06/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 13/08/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-3, JAIPUR DATED 27.11.2017 FOR THE ASSES SMENT YEAR 2010-11 WHEREIN THE ASSESSEE HAS CHALLENGED THE CONFIRMATIO N OF ADDITION OF RS. 6,62,000/- U/S 69A OF THE IT ACT ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITED IN ITS BANK ACCOUNT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HUF FILED ITS RETURN OF INCOME ON 12.07.2011 DECLARING TOTAL INCO ME OF RS. 1,45,000/- ITA NO. 13/JP/2018 M/S DURGA DUTT MAHAJAN HUF. VS. ITO 2 . SUBSEQUENTLY, THE ASSESSMENT WAS COMPLETED U/S 14 3(3) OF THE IT ACT VIDE ORDER DATED 25.03.2013 WHEREIN THE ASSESSING M ADE AN ADDITION OF RS. 6,62,000/- U/S 69A OF THE ACT AND RS. 50,000/- ON ACCOUNT OF COMMISSION INCOME. ON APPEAL, THE LD. CIT(A) CONFIR MED THE ADDITION U/S 69A, HOWEVER THE ADDITION ON ACCOUNT COMMISSION INCOME WAS DELETED. 3. NOW, THE ASSESSEES IN APPEAL BEFORE US. THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND S UBMITTED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS RECEIVED BACK THE AMOUNT ADVANCED TO VARIOUS PERSONS IN THE EARLIER Y EARS AND IN SUPPORT OF ITS CONTENTION, THE ASSESSEE SUBMITTED COPIES OF AFFIDAVITS STATING THAT THE LOANS WERE TAKEN AND REPAID TO THE ASSESSEE, HO WEVER, CONFIRMATION OF ALL THE CASES COULD NOT BE SUBMITTED BEFORE TH E ASSESSING OFFICER DUE TO PAUCITY OF TIME. HOWEVER, THE ASSESSEE HAS S UBSEQUENTLY COLLECTED AFFIDAVIT AND CONFIRMATION OF ALL THE PER SONS WHICH WAS SUBMITTED BY WAY OF ADDITION EVIDENCES BEFORE THE L D. CIT(A). THE LD. CIT(A) HAS CALLED FOR THE REMAND REPORT AND ASSESSI NG OFFICER HAS EXAMINED ALL THE EVIDENCES AND HAS STATED IN THE RE MAND REPORT THAT 19 PERSONS WERE EXAMINED AND THEIR STATEMENTS WERE REC ORDED WHEREIN THEY HAVE CONFIRMED THAT THEY HAVE TAKEN LOANS FROM THE ASSESSEE DURING THE ASSESSMENT YEAR 2008-09 AND REPAID THE S AME IN THE ASSESSMENT YEAR 2010-11. HOWEVER, THE LD. CIT(A) HA S REJECTED THE EXPLANATION OF THE ASSESSEE FOR THE REASON THAT THE ASSESSEE HAS PRODUCED ONLY 19 DEBTORS WHEREAS THERE WERE 36 DEBT ORS IN TOTAL. IT WAS ACCORDINGLY SUBMITTED WHEN ALL THE NECESSARY EV IDENCES IN THE FORM OF AFFIDAVIT AND CONFIRMATION ARE ON RECORD AND EVE N WHERE MORE THAN ITA NO. 13/JP/2018 M/S DURGA DUTT MAHAJAN HUF. VS. ITO 3 HALF OF THE PERSONS WHO HAVE TAKEN ADVANCE ALSO CON FIRMED THE TRANSACTIONS BEFORE THE ASSESSING OFFICER, THERE IS NO BASIS IN THE LD. CIT(A) NOT TO ACCEPT THE EXPLANATION OF THE ASSESSE E AND CONFIRMED THE ADDITION SO MADE BY THE ASSESSING OFFICER. 3. PER CONTRA, THE LD. D/R VEHEMENTLY ARGUED THE MA TTER AND RELIED ON THE FINDINGS OF THE LD. CIT(A) WHICH ARE CONTAIN ED AT PARA 5.3 REPRODUCED AS UNDER:- 5.3 I HAVE CAREFULLY CONSIDERED THE OBSERVATION M ADE BY THE AO IN ASSESSMENT ORDER, SUBMISSION AND ADDITIONAL EVIDENC E FILED BY THE A/R OF THE APPELLANT, REMAND REPORT OF THE AO A ND REJOINDER FILED BY THE A/R OF THE APPELLANT. I FIND THAT THE APPELLANT MADE THE STORY TO EXPLAIN THE CASH DEPOSIT IN BANK ACCOU NT THROUGH TAKEN THE MONEY FROM THE ABOVE 36 PERSONS. THE OBSE RVATION OF THE ASSESSING OFFICER IS VERY RELEVANT IN THE REMAN D REPORT THAT MOST OF PERSONS ARE FAMILY MEMBERS HAVING RELATIONS WITH EACH OTHER AS WELL AS OF THE ASSESSEE. FURTHER DURING TH E COURSE OF REMAND PROCEEDINGS ALL OF THEM HAVE ACCEPTED THAT T HEY HAVE TAKEN LOAN FROM ASSESSEE DURING 2008-09 AND REPAID THE SAME IN ASSESSMENT YEAR UNDER CONSIDERATION WHICH DOES NOT PROVE TO BE RELIABLE. IT IS ALSO NOTICED THAT THE MOST OF THE P ERSONS ARE SALARY PERSONS WHO ARE WORKING AT SHOPS AT NAWALGARH OR JH UNJHUNU AND THEIR EARNING IS 5,000/- TO 7,000/- PER MONTH. IN T HIS REGARD IT IS ALSO WORTHWHILE TO MENTION HEREWITH THAT DEPOSITORS INCL UDES SMALL FARMERS AND LADIES WHO DOES NOT HAVE ANY REGULAR INCOME THE N WHO CAN GIVE MONEY WITHOUT ANY INCOME OR BENEFIT. FURTHER THE AS SESSEE HAS ITA NO. 13/JP/2018 M/S DURGA DUTT MAHAJAN HUF. VS. ITO 4 PRODUCED ONLY 19 DEBTORS AND REST OF AMOUNT ALSO RE MAINED UNEXPLAINED BY THE ASSESSEE. THE PERSONS STATED IN THE STATEMENT THAT THEY NOT G IVEN ANY INTEREST TO THE APPELLANT BUT ONGOING THROUGH THE C ONFIRMATION IT IS NOTICE THAT APPELLANT RECEIVED INTEREST WHICH IS CO NTRADICTORY. THE APPELLANT PRODUCED ONLY 19 PERSONS. HE FAILED TO PR ODUCE REMAINING PERSONS BEFORE THE ASSESSING OFFICER. THE PERSONS N OT HAVING SUFFICIENT SOURCE OF INCOME FROM THAT THEY REPAID T HE MONEY. THEREFORE CONSIDERING THE ABOVE FACTS AND OBSERVATI ON I AM THE VIEW THAT APPELLANT HIMSELF USE HIS UNDISCLOSED INC OME THROUGH THIS CHANNEL. HENCE I CONFIRM THE ADDITION MADE BY THE A SSESSING OFFICER OF RS. 6,62,000/-. THESE GROUNDS ARE NOT ALLOWED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT OUT OF 36 PERSONS, 19 PERSONS FROM WHOM THE ASSESSEE HAS RECEIVED THE AMOUNTS HAV E APPEARED BEFORE THE AO DURING THE REMAND PROCEEDINGS AND CON FIRMED THE TRANSACTION IN THEIR RESPECTIVE STATEMENTS WHICH WE RE RECORDED BY THE AO STATING THAT THEY HAVE TAKEN THE LOAN FROM THE A SSESSEE FOR THE ASSESSMENT YEAR 2008-09 AND REPAID THE SAME IN THE IMPUGNED ASSESSMENT YEAR. IN THE RESULT, THE SOURCE OF RECEI PTS TO THE EXTENT OF RS 3,41,150 HAS BEEN SATISFACTORILY EXPLAINED AND A DDITION TO THE EXTENT OF RS. 3,41,150/- IN RESPECT OF THESE 19 PERSONS IS HEREBY DIRECTED TO BE DELETED. IN RESPECT OF OTHER PERSONS, WE FIND THAT THE EXPLANATION OF THE ITA NO. 13/JP/2018 M/S DURGA DUTT MAHAJAN HUF. VS. ITO 5 ASSESSEE HAS NOT BEEN FOUND SATISFACTORY AND HENCE, THE ADDITION TO THAT EXTENT IS HEREBY CONFIRMED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/08/2018. 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:- 13/08/2018. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S DURGA DATT MAHAJAN HUF, JHUNJHUN U. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 1, JHUNJHUNU. 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. 13/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR