SUSHIL KUMAR MEENA, Jaipur V. ITO, Jaipur

ITA 142/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5587 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH
• Assessee Lawyers: MANISH AGARWAL CA DH R LS
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES SMC, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA- @ ITA NO. 142/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 SUSHIL KUMAR MEENA, C-29, SARASWATI NAGAR, GAITOR ROAD, MALVIYA NAGAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AHKPM 1304 J VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJR LS @ REVENUE BY : SHRI RAJENDRA SINGH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 14/12/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 13/01/2016 VKNS'K @ ORDER PER: R.P. TOLANI, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 10/12/2013 BY THE LEARNED CIT(A)-II, JAIPUR FOR A.Y . 2008-09 RAISING FOLLOWING GROUNDS AGITATING THAT THE LD CIT(A) HAS ER RED IN LAW AND ON FACTS IN :- ITA 142/JP/2014_ SUSHIL KUMAR MEENA VS. ITO 2 (I) CONFIRMING THE ADDITION OF RS. 20,000/- FROM P ROFESSIONAL INCOME ON AD HOC ESTIMATION FOR POSSIBLE LEAKAGE OF REVENUE. (II) CONFIRMING THE ADDITION OF RS. 5,40,500/- ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT HOLDING THEM TO BE UNE XPLAINED ON PEAK BASIS, REJECTING THE ASSESSEES PROPER EXPLANATION. (III) NOT ALLOWING THE TELESCOPING OF RS. 20,000/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRACTICING ADVOCATE WHO FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,07,500/-. DURING THE COURSE OF ASSESSMENT PROCEED INGS, LD. ASSESSING OFFICER VERIFIED ASSESSEES SAVINGS ACCOU NT IN BANK OF RAJASTHAN AND QUESTIONED ABOUT DEPOSITS OF VARIOUS DATES. ASSESSEE EXPLAINED EACH DEPOSITS AS OUT OF OPENING CASH BALA NCE OF RS. 1,74,000/- ON 01/4/2007, CASH BALANCE AVAILABLE WITH HIM AND SOME OF THE DEPOSITS WERE MADE AFTER WITHDRAWING CORRESPONDING AMOUNT FROM SAME A/C. THE LD ASSESSING OFFICER DID NOT ACCEPT TH E ASSESSEES CONTENTION AND WORKED OUT A NEGATIVE PEAK OF RS. 4,2 6,500/- ON THE BASIS OF A CASH FLOW STATEMENT AND WORKING OUT THE P EAK OF NEGATIVE CASH BALANCE AT RS. 4,26,500/- ON 098/2/2008 AND FU RTHER BY TAKING CASH IN HAND OF RS. 2,19,000/- AS ON 31/3/2008, AS PER THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2008-09 WORKED OUT THE ITA 142/JP/2014_ SUSHIL KUMAR MEENA VS. ITO 3 UNEXPLAINED CASH OF RS. 1,14,000/- AT THE END OF TH E YEAR, THEREBY MADE THE AGGREGATE ADDITION OF RS. 5,40,500/- (4265 00 + 114000) AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT BY THE ASSESSEE. BESIDES THE LD ASSESSING OFFICER ADDED A SUM OF RS. 20,000/ - ON AD HOC BASIS AS ESTIMATED INCOME OF THE ASSESSEE TO COVER ANY PO SSIBLE LEAKAGE. 3. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WH ERE IT WAS CONTENDED THAT WHILE WORKING OUT THE ALLEGED CASH FLO W STATEMENT, THE LD ASSESSING OFFICER FAILED TO CONSIDER: (I) THE INCOME OF CURRENT YEARS AMOUNTING TO RS. 1 ,17,500/- (II) AN AMOUNT OF RS. 5 LACS WERE WITHDRAWN FROM THE BANK ACCOUNT ON 12/4/2007 BY SHRI RAM MOHAN, NEPHEW OF THE ASSESS EE BY BEARER CHEQUE, AS DUE TO PROFESSIONAL ENGAGEMENT, THE ASSE SSEE HAS TO REQUEST THE NEPHEW TO BRING THE CASH. THIS AMOUNT RE MAINED UNUTILIZED AND WAS REDEPOSITED IN THE BANK. IN THIS BEHALF, THE ASSESSEE FILED AN AFFIDAVIT FROM HIS NEPHEW SHRI RAM MOHAN, WHICH WAS REFUSED TO BE ADMITTED AS ADDITIONAL EVIDENCE UN DER RULE 46A BY LD. CIT(A). LD. CIT(A) HOWEVER DISMISSED ASSESSEES APPEAL. AGGRI EVED ASSESSEE IS BEFORE ITAT. ITA 142/JP/2014_ SUSHIL KUMAR MEENA VS. ITO 4 LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACTS AND CONTENDS THAT A CASH FLOW STATEMENT EXPLAINING ALL THE CREDIT AND DEBIT ENTRIES WAS FILED BY THE ASSESSEE, WHICH DEMONSTRATED THAT TH ERE WAS NO AVAILABILITY OF CASH WITH ASSESSEE ON THE BASIS OF A BOVE EXPLANATION; SAME HAS NOT BE REBUTTED IN EFFECTIVE TERMS. AUTHOR ITIES BELOW HAS ASSUMED THAT NEPHEW CANNOT WITHDRAW THE CASH AND EXPLA NATION ABOUT REDEPOSIT HAS BEEN REJECTED WITHOUT ANY JUSTI FICATION. ASSESSEE IS A PRACTICING ADVOCATE AND EXPLAINED ALL THE RELEVANT ENTRIES IN THE BANK ACCOUNT IN QUESTION BY FILING A PROPER REPLY AND CASH FLOW STATEMENT. THE AFFIDAVIT OF NEPHEW WAS IN SUP PORT OF A BANK ENTRY WHICH WAS QUESTIONED AND REPLIED. LD. ASSESSING OFFICER BEFORE DISBELIEVING THIS REPLY, DID NOT INTIMATE THE ASSES SEE. IN THESE CIRCUMSTANCES, THERE WAS NO WAY LEFT FOR THE ASSESSEE EXCEPT TO FILE THE AFFIDAVIT BEFORE THE LD CIT(A). IN THE INTEREST OF NATURAL JUSTICE, THE LD CIT(A) OUGHT TO HAVE CONSIDERED THE SAME. IT IS C ONTENDED THAT THE ADDITION IN QUESTION ARE UNJUSTIFIED AND MAY BE DEL ETED. 4. THE LD DR HAS SUPPORTED THE ORDER OF THE LD CIT(A) . 5. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. APROP OS THE ADDITION OF RS. 20,000/- ON AD HOC BASIS QUA THE PROFESSIONAL I NCOME OF THE ITA 142/JP/2014_ SUSHIL KUMAR MEENA VS. ITO 5 ASSESSEE, I SEE NO JUSTIFICATION IN SUCH ADDITION, WHICH IS MADE ON A POSSIBILITY TO AVOID ANY LEAKAGE OF REVENUE. THIS AD DITION IS DELETED. 5.1 APROPOS THE ADDITION ON ACCOUNT OF CASH CREDITS , IT IS APPARENT FROM THE RECORD THAT THE ASSESSEE HAS EXPLAINED ALL THE BANK ENTRIES, WHICH HAVE BEEN DISBELIEVED WITHOUT REBUTTING THE EXP LANATION OF THE ASSESSEE AND MATERIAL AVAILABLE ON RECORD. THE MAJO R ADDITION IS ATTRIBUTABLE TO DISBELIEVING OF THE ASSESSEES EXPL ANATION FOR RS. 5 LACS WITHDRAWN BY HIS NEPHEW SHRI RAM MOHAN BY BEARER CHEQU E. IT HAS NOT BEEN ACCEPTED IGNORING THE AFFIDAVIT FILED BY T HE ASSESSEE IN THIS BEHALF. A BEARER CHEQUE CAN BE ISSUED BY THE ASSESS EE BY BANKING NORMS IN THE NAME OF NEPHEW, WHICH IS A PERFECTLY V ALID TRANSACTION. BESIDES ASSESSEE HAS A RIGHT TO SUPPORT HIS REPLY I F IS REJECTED ON ASSUMPTIONS. SIMILARLY, NON CONSIDERATION OF THE AS SESSEES CURRENT YEARS PROFESSIONAL INCOME AS CASH AVAILABLE TO THE ASSESSEE FROM TIME TO TIME IS UNWARRANTED. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES, I AM OF THE CONSIDERED VIEW THAT THE ASSESSEE EXPLAINE D THE ENTRIES OF THE BANK ACCOUNT IN A REASONABLE MANNER AND DISCHAR GED HIS ONUS IN THIS BEHALF. THE SAME HAS BEEN REBUTTED ON ASSUMPTI ONS WHICH COULD NOT BE SUSTAINED. IN VIEW THEREOF, THE ADDITION QUA BANK DEPOSITS IS DELETED. ITA 142/JP/2014_ SUSHIL KUMAR MEENA VS. ITO 6 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 13 TH JANUARY, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SUSHIL KUMAR MEENA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 6(1), 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. 142/JP/2014 VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR