ITO, Wd.-3(4), Latur V. Shri Dalgade Vijaykumar Mahadeoappa, Latur

ITA 1358/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1993 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-03-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: RAJIV HARITT

Judgement Text

ITA NO.1358/PN/2011 DALGADE VIJAYKUMAR MAHADEOAPA, LATUR IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1358 / P N/ 20 11 ASSESSMENT YEAR : 2005 - 06 ITO, WARD - 3(4) LATUR VS. DALGADE VI JA Y KUMAR MAHADEOA P PA, LATUR (APPELLANT) (RESPONDENT) PAN NO. AJSPD3608 E APPELLANT BY: N O N E RESPONDENT BY: SHRI RAJIV HARITT DATE OF HEARING : 05.03.2013 DATE OF PR ONOUNCEMENT : 07.03.2013 ORDER PER R.S. PADVEKAR, J.M.: THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A), AURANGABAD DT. 26-08-2011 FOR TH E A.Y. 2005-06. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN 1. DELETING THE ADDITION OF RS. 14,61,995/- MADE ON ACCOUNT OF INCOME FROM OTHER SOURCES. 2. NOT CONSIDERING THE FACTUAL FACTS NARRATED IN THE RE MAND REPORT SUBMITTED BY THE ASSESSING OFFICER. 2. THE FACTS REVEALED FROM THE RECORD ARE AS UNDER: ON THE BASIS OF THE INFORMATION RECEIVED FROM ANNUAL INFORMA TION RETURN (AIR) FURNISHED U/S 285BA OF THE INCOME-TAX ACT, T HE ASSESSEE WAS ISSUED NOTICE U/S 142 (1) OF THE ACT CALLING FOR THE RE TURN OF INCOME FOR THE A.Y. 2005-06 AS NOTED BY THE A.O. IT WAS NOTICED THAT THE ASSESSEE HAS MADE DEPOSITS IN CASH IN A SAVING BANK ACC OUNT AGGREGATING TO RS.14,61,995/-. IT APPEARS THAT THE ASSE SSEE DID NOT FILE RETURN OF INCOME. THE ASSESSING OFFICER THEREFORE COMPLETE D THE ASSESSMENT DETERMINING THE TOTAL INCOME OF RS. 14,61,995/- IN THE HANDS OF THE ASSESSEE. 3. THE ASSESSEE CHALLENGED THE ASSESSMENT FRAMED BY TH E ASSESSING OFFICER BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSE SSEE HAS STATED THAT HE IS IN THE BUSINESS OF TRUCK PLYING AND AG RICULTURE. HE FURTHER STATED THAT THERE WAS NO OPPORTUNITY TO THE A SSESSEE TO ATTEND BEFORE THE ASSESSING OFFICER DUE TO THE SHORT NOTICE AS T HE NOTICE WAS SERVED ON THE ASSESSEE ON THE DATE ON WHICH HE WAS R EQUIRED TO ATTEND BEFORE THE ASSESSING OFFICER I.E. 19-12-2007. THE ASSESSEE FILED THE 2 ITA NO.1358/PN/2011 DALGADE VIJAYKUMAR MAHADEOAPA, LATUR DETAILS EXPLAINING THE SOURCE FROM WHICH AMOUNT WAS DEPOSIT ED IN THE BANK ACCOUNT ON THE BASIS OF THE DETAILS FILED BY THE ASS ESSEE. THE LD. CIT(A) ASKED THE ASSESSING OFFICER TO SEND THE REMAND REP ORT. THE ASSESSING OFFICER SENT THE REMAND REPORT. IN THE REMAND REPORT, THE ASSESSING OFFICER POINTED OUT THAT TO VERIFY THE CLAIM OF TH E ASSESSEE THAT ASSESSEE HAS SOLD TRUCKS TO DIFFERENT PERSONS, SUMMONS W ERE ISSUED BUT DUE TO INCOMPLETE ADDRESS, SUMMONS WERE NOT SERVED. TH E ASSESSING OFFICER FURTHER STATED IN THE REMAND REPORT THAT HE SENT THE INSPECTOR FOR SPOT VERIFICATION. HE COULD VERIFY ONLY ONE TRUCK OWNER SH . ABDUL SAMADBHAI BUT OTHER TRUCK OWNERS WERE NON-TRACEABLE. THE ASSESSING OFFICER ALSO STATED THAT HE MADE ENQUIRY AT THE RTO OFFICE, OSMANABAD AND GULBARGA AND THEY HAVE INFORMED TRANSFER OF SOME OF THE TRUCKS IN THE NAME OF THE PERSON OTHER THAN THE PURCHASER OF THE TRUCKS. 3.1 IN SUM AND SUBSTANCE, THE ASSESSING OFFICER EXPRESSED HIS RESERVATION IN RESPECT OF THE DETAILS OF SOURCE GIVEN BY T HE ASSESSEE. THE ASSESSEE FILED THE DOCUMENTS IN THE FORM OF REGISTER EXTRA CT ISSUED BY THE REGIONAL TRANSPORT OFFICE AND FORM NO. 41 ISSUED BY THE AS SISTANT REGIONAL TRANSPORT OFFICE IN RESPECT OF 3 TRUCKS I.E. KA-32/ 5231, KA- 32/3332, KA-32/1172. THE LD. CIT(A) ACCEPTED THE EXPLAN ATION IN RESPECT OF THE SOURCE TOWARDS DEPOSIT OF THE CASH AMOU NT TO RS. 14,61,995/- IN SAVING BANK ACCOUNT WITH SBI. THE LD. CI T(A) DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.14,61,995/- AND ASSESSED THE INCOME OF THE ASSESSEE AT RS.70,000/- AS S UBMITTED BY HIM OR WORKED OUT INCOME OF TRUCK PLYING U/S 44AE OF THE A CT. THE OPERATIVE PART OF THE ORDER OF THE LD. CIT(A) IS AS UNDER: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AN D RIVAL CONTENTIONS. ON PERUSAL OF THE SAME IT IS NOTICED THAT THE APPELLANT IS AN AGRICULTURIST AND ALSO CARRYING ON TRUCK PLYIN G BUSINESS. THE FATHER OF THE APPELLANT IS ALSO AN AGRICULTURIST AND HAS OWNED TRUCKS. THE FAMILY OF THE APPELLANT AND HIS FATHER IS A JOINT FAMILY STAYING TOGETHER. DURING THE YEAR THE APPELLANT AND HIS FATHER HAVE DEPOSITED CASH AMOUNTING TO RS.44,61,995/- IN SAVING BANK ACCOUNT WITH SBI. THE SOURCE OF THE SAME HAS BEEN E XPLAINED OUT OF SALE OF 7 TRUCKS OWNED BY THE APPELLANT HIMSELF AN D HIS FATHER, WHICH IS SUPPORTED BY THE SALE RECEIPTS, AFFIDAVITS OF THE TRUC K OWNERS, RTO RECORD AND TRANSFER FORMS ISSUED FOR SALE OF TRUCKS. FURTHER THE AGRICULTURAL INCOME CLAIMED APPROXIMATELY AT RS.4,00,000/- IS ALSO SUPPORTED BY 7/12 EXTRACTS OF AGRICULTURAL LAND ADMEASURING 40 ACRES. THE APPROXIMATE AGRICULTU RAL INCOME CLAIMED AT RS.10,000/- PER ACRE DOES NOT APPEAR TO BE EXCESSIVE. THE AMOUNT OF SALE PROCEEDS OF TRUCKS IS RS.13,86,000/- AND AGRICULTURAL INCOME IS RS.4,00,000/- WHICH IS SUFFICIE NT FOR CASH DEPOSITS OF RS.14,61,995/- IN SAVING BANK ACCOUNT OF THE APPELLANT. AFTER CONSIDERING THE SUBMISSION OF THE AP PELLANT, REMAND REPORT OF THE A.O. AND THE TOTALITY OF THE FA CTS, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS REASONABLY EXP LAINED THE SOURCE OF CASH DEPOSITED OF RS.14,61,995/- IN SAVING S BANK ACCOUNT ON THE BASIS OF AVAILABLE EVIDENCE TO SUPPO RT THE SOURCE OF DEPOSIT. THE A.O. IS THEREFORE DIRECTED TO DELETE THE 3 ITA NO.1358/PN/2011 DALGADE VIJAYKUMAR MAHADEOAPA, LATUR ADDITION/INCOME ASSESSED AT RS.14,61,995/- AND ASSE SS THE INCOME OF THE APPELLANT AT RS.70,000/- AS SUBMITTED BY THE APPELLANT OR HIGHER AMOUNT TOWARDS INCOME FROM TRUCK PLYING AFTER VERIFYING THE NUMBER OF TRUCKS, PLIED BY THE APP ELLANT DURING THE YEAR AND CONSIDERING PROVISIONS OF SECTION 44AE OF THE ACT APPLICABLE FOR TRUCK PLIERS TO ARRIVE AT THEIR INCOME ON PRESUMPTIVE BASIS. NOW THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE LD. DR. NONE WAS PRESENT FOR THE ASSESSEE. WE FIND THAT ON THE BASIS OF ANNUAL INFORMATION RETURN, ASSESS MENT OF THE ASSESSEE WAS FRAMED AS PER THE FACTS ON RECORD. IT IS SEEN THAT ONLY ONE DATE WAS GIVEN TO THE ASSESSEE AND REASONS BEST KNOW N TO THE ASSESSING OFFICER, THE ASSESSMENT WAS COMPLETED IN UNDUE HASTE. IT IS FURTHER SEEN THAT BEFORE THE LD. CIT(A), THE ASSESSEE HAS FILED THE DET AILS IN RESPECT OF THE SOURCE FOR DEPOSITING THE AMOUNT IN HIS BANK ACCOUN T. THE MAIN SOURCE WAS SALE CONSIDERATION RECEIVED FROM THE SALE OF HIS TRUCKS. IT IS SEEN THAT THE ASSESSEE HAS FILED DOCUMENTARY EVIDENCE I N THE FORM OF REGISTER EXTRACTS FROM THE RTO OFFICE TO SHOW THAT HE HA S TRANSFERRED THE TRUCKS. THE ASSESSING OFFICER WAS GIVEN AN OPPORTUNITY B Y THE LD. CIT(A) BY CALLING A REMAND REPORT BUT THE ASSESSING OFFICER ONLY STATED THAT HE IS UNABLE TO VERIFY TRANSFER OF THE TRUCKS. IN OUR OPINION , THE ASSESSEE HAS EXPLAINED THE SOURCE AND THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDITION AND WORKED OUT TH E INCOME OF THE ASSESSEE AT RS.70,000/- OR U/S 44AE OF THE ACT WHICHEV ER IS HIGHER. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT( A). ACCORDINGLY, SAME IS CONFIRMED. 5. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . PRONOUNCED IN THE OPEN COURT 07.03.2013 SD/- SD/- ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK/PS PUNE, DATED 7 TH MARCH, 2013 COPY TO 1 THE DEPARTMENT 2 THE ASSESSEE 3 THE CIT(A), AURANGABAD 4 THE CIT, AU RANGABAD 5 THE DR, B BENCH, PU NE . 6 GUARD FILE. // TRUE COPY // BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, PUNE