RAMESHWAR LAL KUMAWAT, Jaipur V. ITO, Jaipur

ITA 147/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1804 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Keywords: Business income; Depreciation; Salary income; Source of fund
• Section: 69C; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, 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. 147/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2006-07 RAMESHWAR LAL KUMAWAT, 5/27, KESRICHAND, CHOUDHARY NAGAR, AJMER ROAD, JAIPUR (RAJ). CUKE VS. I.T.O. WARD 2(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHDPK 8968 K VIHYKFKHZ@ APPELL ANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.S. NEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 27/12/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19/12/2016 PASSED BY THE LD CIT(A)-1, JAIPUR FOR A.Y . 2006-07, WHEREIN THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, C IT(A) HAS ERRED BY NOT ACCEPTING THE GROUND THAT PROPER OPPORTUNITY OF BEI NG HEARD WAS NOT PROVIDED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E CIT(A) HAS ERRED BY CONFIRMING THE ADDITION OF RS. 82,456/- AS INCOME F ROM OTHER SOURCES WHEREAS THIS IS THE AGRICULTURAL INCOME. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 2 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE CIT(A) HAS ERRED BY CONFIRMING THE ESTIMATE INCOME FROM BUSINESS RS. 5, 00,000/- WITHOUT ANY REASONABLE BASIS. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED BY CONFIRMING ADDITION OF RS. 20,000/- AS INCOME EA RNED FROM PETROL PUMP IN SPITE OF FACT THAT NO INCOME IS EARNED FROM THE SAME. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE CIT(A) HAS ERRED BY CONFIRMING THE DISALLOWANCE OF DEPRECIATION AMOUNTI NG RS. 1,67,346/- 6. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE CIT(A) HAS ERRED BY CONFIRMING THE ADDITION OF RS. 3,38,000/- AGAINST P AYMENT MADE TO PURCHASE THE CAR. 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E CIT(A) HAS ERRED BY MAKING THE ADDITION OF RS. 4,76,000/- ON ACCOUNT OF PAYMENT OF EMI TOWARDS THE LOAN. 8. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE CIT(A) HAS ERRED BY CONFIRMING THE ADDITION OF RS. 1,58,500/- AS UNEXPL AINED CASH DEPOSIT INTO BANK. 2. GROUND NO.1 OF THE APPEAL IS NOT PRESSED BY THE ASSESSEE, THEREFORE, THE SAME STANDS DISMISSED AS NOT PRESSED . 3. GROUND NO. 2 OF THE ASSESSEES APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS. 82,456/- AS INCOME FROM OTHER SOURC ES. THE BRIEF FACTS ON THIS GROUND IS THAT IN THE RETURN, ASSESSEE HAS DEC LARED AGRICULTURAL INCOME OF RS.82,456/-. HOWEVER, THE AO TREATED IT AS BUSINESS INCOME FOR THE REASON THAT NO DOCUMENTARY EVIDENCE AS TO T HE CULTIVATION OF LAND AND SALE OF AGRICULTURAL PRODUCE WAS FURNISHED. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 3 4. THE LD. CIT(A) HAS UPHELD THE ACTION OF THE ASSESS ING OFFICER BY HOLDING AS UNDER: THE APPELLANT HAS NOT FILED ANY DOCUMENT BEFORE THE AO IN RESPECT OF AGRICULTURE INCOME OF RS. 82,456/- SHOWN BY IT IN ITS RETURN OF INCOME AND CONSEQUENTLY, THE AO HAS TREAT ED THE SAME AS BUSINESS INCOME. DURING THE APPELLATE PROCE EDINGS, THE APPELLANT HAS FILED A COPY OF JAMABANDI AS AN ADDIT IONAL EVIDENCE. ON A PERUSAL OF THE SAID JAMABANDI, IT WAS OBSERVED THAT 2.68 ACRES OF LAND WAS OWNED BY THE APPELLANT AL ONG WITH TWO OTHER CO-OWNERS AND IT IS NOT STATED THEREIN ABOU T THE CROPS GROWN ON THE SAID LAND DURING THE PERIOD UNDER CONSI DERATION. THE APPELLANT FAILED TO FILE ANY EVIDENCE WITH RESPEC T OF THE CULTIVATION AND THE SALE OF AGRICULTURE PRODUCE THE REOF. IT IS THEREFORE HELD THAT THE APPELLANT WAS NOT ABLE TO SU BSTANTIATE ITS CLAIM OF AGRICULTURE INCOME AND THEREFORE, THE SAME IS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES' AND NOT AS BUSINESS INCOME AS TREATED BY THE AO. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. WHILE PL EADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED THAT ASSES SEE OWNS 16 BIGHA OF AGRICULTURAL LAND ALONG WITH HIS BROTHERS. ON THIS L AND AGRICULTURAL CROP IS GROWN WHICH IS EVIDENT FROM KHASRA GIRDAWARI. THERE AR E TWO WELLS ON THE LAND. IN AY 2005-06, AGRICULTURAL INCOME OF RS. 69,750/- AND IN AY 2007-08, AGRICULTURAL INCOME OF RS.92,450/- DECLARE D BY THE ASSESSEE HAS BEEN ACCEPTED. IN THESE FACTS, THE FINDING OF T HE LOWER AUTHORITIES AS ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 4 TO THE CULTIVATION OF LAND AND GROWING OF CROPS IS I NCORRECT. IN VIEW OF THE SAME, AO BE DIRECTED TO CONSIDER AMOUNT OF RS.82,456/- AS AGRICULTURAL INCOME AND DELETE THE ADDITION MADE BY HIM BY CONSIDERING THE SAME AS BUSINESS INCOME. 6. ON THE OTHER HAND, THE LD DR HAS SUPPORTED THE O RDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD CIT(A) HAS HELD THAT ON A PERUSAL OF THE JAMABANDI, IT WAS OBSERVED THAT 2.68 ACRES OF LAND WAS OWNED BY THE APPELLANT ALONG WITH TWO OTHER CO-OWNE RS AND IT IS NOT STATED THEREIN ABOUT THE CROPS GROWN ON THE SAID LA ND DURING THE PERIOD UNDER CONSIDERATION. IT WAS FURTHER HELD THAT THE AP PELLANT FAILED TO FILE ANY EVIDENCE WITH RESPECT OF THE CULTIVATION AND THE SALE OF AGRICULTURE PRODUCE THEREOF. PER CONTRA, THE LD AR HAS CONTENDE D THAT ON THE AGRICULTURAL LAND WHICH IS OWNED BY THE ASSESSEE ALON G WITH HIS BROTHERS, AGRICULTURAL CROP IS GROWN WHICH IS EVIDENT FROM KHA SRA GIRDAWARI. WE ARE OF THE VIEW THAT THE PRIMARY ONUS IS ON THE ASSE SSEE TO DEMONSTRATE THROUGH VERIFIABLE EVIDENCE IN SUPPORT OF THE AGRIC ULTURE INCOME SO CLAIMED IN THE RETURN OF INCOME. HOWEVER, IN VIEW OF CONFLICTING CLAIMS BY BOTH THE PARTIES AND IN ABSENCE OF A SPECIFIC FI NDING IN SUPPORT OF NO ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 5 INCOME FROM THE AGRICULTURE PRODUCE FROM THE LAND S O CO-OWNED BY THE ASSESSEE, WE DEEM IT FIT TO RESTORE THE MATTE R TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH IN LIGHT OF EVIDENCE SO PRODUCED BY THE ASSESEE AND WHERE SO REQUIRED, TO CARRY OUT INDEPEN DENT VERIFICATION. IN THE RESULT, THE GROUND IS ALLOWED FOR STATISTICAL PU RPOSES. 8. GROUND NO. 3 OF THE ASSESSEES APPEAL IS AGAINST CONFIRMING THE ESTIMATE INCOME FROM BUSINESS OF RS. 5,00,000/- AND GROUND NO. 8 OF THE APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS . 14,58,500/- AS UNEXPLAINED CASH DEPOSIT INTO BANK. 9. THE BRIEF FACTS REGARDING THESE ISSUES ARE THAT A O OBSERVED THAT IN THE SHOW CAUSE NOTICE DATED 03.03.2014, ASSESSEE WAS INFORMED FOR ESTIMATING THE BUSINESS INCOME AT RS.15 LACS BUT AS SESSEE HAS NOT RESPONDED TO IT. HE THEREFORE, MADE AN ADDITION OF RS.15 LACS AS CONCEALED BUSINESS INCOME. THE AO FURTHER HELD THAT ASSESSEE HAS NOT PRODUCED SOURCE OF CASH DEPOSIT OF RS.14,58,500/- I N HIS BANK ACCOUNT WITH SBBJ SODALA AND THEREFORE, THIS AMOUNT IS ALSO ADDED U/S 69. 10. THE LD. CIT(A) HELD THAT ASSESSEE ADMITTED RECEIP T FROM PROPERTY BROKERAGE BUSINESS AT RS.15 LACS BUT AFTER CONSIDER ING THE EXPENSES, INCOME IS DECLARED AT RS.60,230/- BUT HE HAS NOT PR ODUCED BOOKS OF ACCOUNT AND BILLS/ VOUCHERS. HE THEREFORE, ESTIMATE D BUSINESS INCOME AT ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 6 RS.5 LACS AND CONFIRMED THE ADDITION FOR SAME. HE F URTHER CONFIRMED ADDITION OF RS.14,58,500/- FOR THE REASON THAT ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE BANK A CCOUNT. THE LD. CIT(A) HAS DEALT THESE ISSUES BY HOLDING AS UNDER: 3.4.2 DETERMINATION : (I) THE APPELLANT HAS SHOWN A BUSINESS INCOME OF RS. 60,230/- ON ACCOUNT OF PROPERTY DEALINGS IN ITS RETURN OF INCOM E. AS THE APPELLANT DID NOT PRODUCE BOOKS OF ACCOUNTS AND BILLS / VOUCHERS BEFORE THE AO, THE AO HAS ISSUED A SHOW CAUSE NOTICE TO THE APPELLANT R EQUIRING IT TO EXPLAIN WHY THE INCOME FROM BUSINESS SHOULD NOT BE T AKEN AT RS. 15 LAC, TO WHICH NO COMPLIANCE WAS MADE BY THE APPELLANT AND CONSEQUENTLY, THE AO HAS ESTIMATED THE INCOME FROM BUSINESS AT RS 15 LAC. (II) FURTHER, THE APPELLANT HAS MADE CASH DEPOSITS OF RS. 14,58,5007- IN ITS SAVING BANK ACCOUNT WITH S5BJ AND DURING ASSE SSMENT PROCEEDINGS, THE APPELLANT COULD NOT EXPLAIN THE SO URCE OF SUCH CASH DEPOSITS AND CONSEQUENTLY, THE AO HAS MADE ADDITION OF RS. 14,58,500/- TO THE INCOME OF THE APPELLANT U/S 69 OF THE ACT. (III) DURING APPELLATE PROCEEDINGS, IT WAS SUBMITTED BY THE APPELLANT THAT ITS TOTAL RECEIPTS FROM PROPERTY BROKERAGE BUS INESS WAS TO THE TUNE OF RS 15 LAC AND HE RECEIVED THE BROKERAGE IN CASH, WHICH WAS DEPOSITED BY IT IN ITS SAVING BANK ACCOUNT AND THUS , THE ESTIMATION OF INCOME BY THE AO ON ACCOUNT OF BUSINESS INCOME AT R S 15 LAC WAS NOT JUSTIFIED AND THE CASH DEPOSIT OF RS. 14,58,5007- S TANDS FULLY EXPLAINED. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 7 (IV) I HAVE DULY CONSIDERED THE ASSESSMENT ORDER, S UBMISSIONS OF THE APPELLANT AND THE MATERIAL PLACED ON RECORD. IT WAS ADMITTED BY THE APPELLANT THAT ITS RECEIPTS FROM PROPERTY BROKERAGE BUSINESS WAS TO THE TUNE OF RS. 15 LAC AND IT WAS SUBMITTED BY IT THAT A FTER MEETING VARIOUS EXPENSES, ITS INCOME FROM BUSINESS WAS TO THE TUNE O F RS. 60,230/-. IT IS MATTER OF FACT THAT THE AO HAS ESTIMATED THE BUSINE SS INCOME OF THE APPELLANT WITHOUT ANY BASIS AND IT WAS BASED SOLELY O N THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS. HOWEVER, IT IS ALSO A FACT THAT THE APPELLANT HAS NOT PRODUCED ITS BOOKS OF ACCOUNTS AN D BILLS/VOUCHERS BEFORE THE AO. EVEN DURING THE APPELLATE PROCEEDING S, THE APPELLANT FAILED TO FILE THE DETAILS OF SUCH EXPENSES. THEREFO RE, IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I THINK IT WOULD BE APPROPRIATE TO ESTIMATE THE BUSINESS INCOME OF THE APPELLANT AT RS. 5 LAC. THUS, THE APPELLANT WOULD GET A RELIEF OF RS 10 LAC ON THIS GROUND OF APPEAL. (V) REGARDING THE CASH DEPOSIT OF RS. 14,58,500/- I N ITS BANK ACCOUNT, THE ASSERTION OF THE APPELLANT THAT THESE WERE MADE OUT OF THE BROKERAGE RECEIVED FROM THE FARMERS IS WITHOUT ANY B ASIS AS NOT EVEN A SINGLE DOCUMENTARY EVIDENCE WAS FILED BY THE APPELLA NT TO SUPPORT SUCH ASSERTION. IT IS TRITE LAW THAT ONUS IS UPON THE APP ELLANT TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN ITS BANK ACCOUNT AND SIN CE IN THE INSTANT CASE UNDER CONSIDERATION, THE APPELLANT HAS FAILED MISER ABLY TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS 14,58,500/- IN ITS SAV ING BANK ACCOUNT WITH SBBJ DURING THE YEAR UNDER CONSIDERATION, IT IS HEL D THAT THE AO WAS JUSTIFIED IN MAKING THE ADDITION OF RS. 14,58,500/- U/S 69 OF THE ACT AND THUS THE SAME IS HEREBY SUSTAINED. HENCE, THIS GROU ND OF APPEAL IS HEREBY REJECTED. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 8 11. NOW THE ASSESSEE IS IN APPEAL BEFORE US. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED THAT THE LD. CIT(A) CONFIRMED ADDITION ON ACCOUNT OF BUSINESS INCOME AT RS.5 LACS AND ALSO ON ACCOUNT OF CASH DEPOSIT OF RS.14,58,500/- IN THE BANK ACCOUNT. IF ADDITION OF RS.5 LACS IS SUSTAINED, THEN THE SAME I S A SOURCE FOR CASH DEPOSIT OF RS.14,58,500/- IN THE BANK ACCOUNT. HON BLE SUPREME COURT IN CASE OF ANANTHARAM VEERASINGHAIAH & CO. VS. CIT 123 ITR 457 HELD THAT THERE CAN BE NO ESCAPE FROM THE PROPOSITION THAT TH E SECRET PROFITS OR UNDISCLOSED INCOME OF AN ASSESSEE EARNED IN AN EARL IER ASSESSMENT YEAR MAY CONSTITUTE A FUND, EVEN THOUGH CONCEALED, FROM WHICH THE ASSESSEE MAY DRAW SUBSEQUENTLY FOR MEETING EXPENDITURE OR INT RODUCING AMOUNTS IN HIS BOOKS OF ACCOUNT. THEREFORE, ADDITION TO THE EXTENT OF RS.5 LACS IS A DOUBLE ADDITION. 12. IT WAS FURTHER SUBMITTED THAT SO FAR AS ADDITION OF RS.5 LACS CONFIRMED BY LD. CIT(A) AS BUSINESS INCOME IS CONCER NED, THE SAME IS PURELY ON ESTIMATION, WHIMS & FANCIES AND THEREFORE, THE ADDITION BE DIRECTED TO BE DELETED. 13. IT WAS FURTHER SUBMITTED THAT SO FAR AS ADDITION OF RS.14,58,500/- IN THE BANK ACCOUNT IS CONCERNED, SOURCE OF THE SAM E IS OUT OF SALARY INCOME OF RS.90,000/-, CASH PROFITS OF BUSINESS RS. 2,27,576/- (60,230/- ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 9 + 1,67,346/-), AGRICULTURAL INCOME OF RS.82,456/-, OPENING CASH BALANCE AND OUT OF WITHDRAWAL FROM THE SAME BANK ACCO UNT. ALL THESE FACTS WERE NOT VERIFIED BY THE LOWER AUTHORITIES AND THEREFORE, THIS ISSUE BE SET ASIDE TO THE AO FOR VERIFICATION. 14. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. FIRST LY, REGARDING ESTIMATION OF BUSINESS INCOME AT RS 5 LACS BY THE L D CIT(A) AS AGAINST RS 15 LACS ESTIMATED BY THE AO, WE HEREBY AFFIRM TH E FOLLOWING FINDINGS OF THE LD CIT(A) WHICH WE FIND JUST AND REASONABLE GI VEN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE WHEREIN THE ASSESSEE HAS ADMITTED HIS RECEIPTS FROM PROPERTY BROKERAGE BUSIN ESS TO THE TUNE OF RS. 15 LAC AND IN ABSENCE OF BOOKS OF ACCOUNTS AND OTHER DETAILS IN SUPPORT OF INCURRENCE OF VARIOUS EXPENSES SO CLAIME D, THE EXPENSES REMAIN UNVERIFIABLE: (IV) I HAVE DULY CONSIDERED THE ASSESSMENT ORDER, SUBMISSIONS OF THE APPELLANT AND THE MATERIAL PLACED ON RECORD. IT WAS ADMITTED BY THE APPELLANT THAT ITS RECEIPTS FROM PROPERTY BROKERAGE BUSINESS WAS TO THE TUNE OF RS. 15 LAC AND IT WAS SUBMITTED BY IT THAT A FTER MEETING VARIOUS EXPENSES, ITS INCOME FROM BUSINESS WAS TO THE TUNE O F RS. 60,230/-. IT IS ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 10 MATTER OF FACT THAT THE AO HAS ESTIMATED THE BUSINE SS INCOME OF THE APPELLANT WITHOUT ANY BASIS AND IT WAS BASED SOLE LY ON THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS. HOWEVER, IT IS ALSO A FACT THAT THE APPELLANT HAS NOT PRODUCED ITS BOOKS OF ACCOUNTS AN D BILLS/VOUCHERS BEFORE THE AO. EVEN DURING THE APPELLATE PROCEEDING S, THE APPELLANT FAILED TO FILE THE DETAILS OF SUCH EXPENSES. THEREFO RE, IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I THINK IT WOULD BE APPROPRIATE TO ESTIMATE THE BUSINESS INCOME OF THE APPELLANT AT RS. 5 LAC. THUS, THE APPELLANT WOULD GET A RELIEF OF RS 10 LAC ON THIS GROUND OF APPEAL. 15.1 REGARDING ADDITION OF RS 14,58,500 IN RESPECT OF CASH DEPOSITS IN ASSESSEES BANK ACCOUNT MAINTAINED WITH SBBJ, THE LD AR HAS SUBMITTED THAT SOURCE OF THE SAME IS OUT OF SALARY INCOME OF RS.90,000, CASH PROFITS OF BUSINESS RS.2,27,576/-, AGRICULTURAL INC OME OF RS.82,456/, OPENING CASH BALANCE AND OUT OF WITHDRAWAL FROM THE S AME BANK ACCOUNT. IT WAS SUBMITTED THAT AS THESE FACTS WERE NO T VERIFIED BY THE LOWER AUTHORITIES, THE MATTER MAY BE SET ASIDE TO TH E AO FOR VERIFICATION. THE LD DR DIDNT RAISE ANY OBJECTION TO THE SAID REQ UEST. THE MATTER RELATING TO VERIFICATION OF SOURCE OF CASH DEPOSITS IN THE ASSESSEES BANK ACCOUNT IS ACCORDINGLY SET-ASIDE TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH TAKING INTO CONSIDERATION THE CONTENTIO N SO RAISED BY THE LD AR BEFORE US AND AFTER PROVIDING REASONABLE OPPORTU NITY TO THE ASSESSEE. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 11 15.2 THE ASSESSEE SHALL BE ELIGIBLE TO SEEK SET OFF OF INTANGIBLE ADDITIONS OF RS 5 LACS AS SUSTAINED AGAINST THE ADD ITIONS, IF ANY, AS MAY FINALLY BE DETERMINED BY THE AO AFTER DUE VERIFICAT ION OF SOURCE OF CASH DEPOSITS OF RS 14,58,000 IN SBBJ. 15.3 THE GROUNDS OF APPEAL ARE DISPOSED OFF IN LIGH T OF ABOVE DIRECTIONS. 16. GROUND NO. 4 OF THE ASSESSEES APPEAL IS AGAINS T CONFIRMING THE ADDITION OF RS. 20,000/- AS INCOME EARNED FROM PETR OL PUMP. THE AO HAS OBSERVED THAT ASSESSEE HAS PURCHASED A LAND FOR INSTALLATION OF PETROL PUMP ON 09.12.2005 ON WHICH HE INCURRED EXPEN DITURE OF RS.20,000/- AND THEREFORE, MADE THE ADDITION FOR SA ME U/S 69 OF THE ACT. THE LD. CIT(A) UPHELD THE ADDITION STATING THAT ASSES SEE HAS NOT PRESSED THIS GROUND OF APPEAL. 17. BEFORE US, THE LD AR HAS SUBMITTED THAT THE ASS ESSEE PURCHASED THE LAND AT VILLAGE SAWAR, KEKRI ON WHICH HE INCURRE D EXPENDITURE OF RS.20,000/- WHICH IS DULY REFLECTED IN STATEMENT OF AFFAIRS AS ON 31.03.2006. BEFORE THE CIT(A), COUNSEL OF THE ASSESS EE HAS INCORRECTLY NOT PRESSED THIS GROUND BUT THE FACT REMAINS IS THA T THIS LAND IS DULY ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 12 REFLECTED IN THE STATEMENT OF AFFAIRS AND THUS, SOU RCE IS FULLY EXPLAINED. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY LD. CIT(A ) BE DELETED. 18. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD AR HAS CONTENDED THAT THE ASSESSEE PURCHASED THE LAND AT VILLAGE SAWA R, KEKRI ON WHICH HE INCURRED EXPENDITURE OF RS.20,000/- WHICH IS DULY RE FLECTED IN STATEMENT OF AFFAIRS AS ON 31.03.2006. SINCE THERE IS NO FIND ING OF THE LOWER AUTHORITIES, THE MATTER IS SET ASIDE TO THE FILE OF THE AO TO EXAMINE THE SAID CONTENTION OF THE LD AR AND DECIDE AFRESH AS P ER LAW. IN THE RESULT, GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE GROUND NO. 5 OF THE APPEAL, THE ISSUE IN VOLVED IS CONFIRMING THE DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS. 1, 67,346/-. THE FACTS REGARDING THIS ISSUE ARE THAT THE ASSESSEE HAS INCO ME FROM BUSINESS APART FROM SALARY AND AGRICULTURAL INCOME. IN THE C OMPUTATION OF TOTAL INCOME IT HAS CLAIMED DEPRECIATION OF RS.1,67,346/- (PB 11). THE AO DISALLOWED THE CLAIM FOR THE REASON THAT ASSESSEE HA S NOT SUBMITTED P&L A/C AND THE PROOF OF PURCHASE OF VEHICLE ON WHICH DE PRECIATION IS CLAIMED. THE LD. CIT(A) CONFIRMED THE DISALLOWANCE BY STATING THAT ASSESSEE HAS NOT FILED THE DEPRECIATION CHART AND I T APPEARS THAT HE IS NOT SERIOUS ABOUT THIS GROUND OF APPEAL. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 13 20. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE L D AR HAS SUBMITTED THAT BEFORE THE LD. CIT(A) IT WAS EXPLAINE D THAT THE ASSESSEE HAS PURCHASED TAVERA CAR FOR RS.9,88,000/- FOR WHIC H COPY OF RC WAS FILED. THE VEHICLE WAS FINANCED BY HDFC BANK FOR WHICH THE BANK STATEMENT IS FILED. ASSESSEE IS ENGAGED IN THE BROK ERAGE BUSINESS OF REAL ESTATE AND THE INCOME OF RS.60,230/- FROM BUSINESS DECLARED BY HIM IS NET OF DEPRECIATION. THE DEPRECIATION CHART IS FILED ALONG WITH THE RETURN OF INCOME. THUS, WHEN EVIDENCE OF PURCHASE OF VEHICLE IS FILED AND THE CLAIM OF DEPRECIATION IS MADE IN THE RETURN BY FILI NG THE DEPRECIATION CHART, BOTH THE LOWER AUTHORITIES HAVE ERRED IN DISA LLOWING THE CLAIM OF DEPRECIATION FOR THE REASONS MENTIONED BY THEM. IN VIEW OF ABOVE, THE CLAIM OF DEPRECIATION BE DIRECTED TO BE DELETED. 21. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 22. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD AR HAS CONTENDED THAT NECESSARY DETAILS IN SUPPORT OF CLAIM OF DEPRE CIATION HAS ALREADY BEEN FILED WITH THE LOWER AUTHORITIES. SINCE THERE I S NO FINDING OF THE LOWER AUTHORITIES, THE MATTER IS SET ASIDE TO THE FI LE OF THE AO TO EXAMINE ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 14 THE SAID CONTENTION OF THE LD AR AND DECIDE AFRESH AS PER LAW. IN THE RESULT, GROUND IS ALLOWED FOR STATISTICAL PURPOS ES. 23. THE GROUNDS NO. 6 OF THE ASSESSEES APPEAL IS AG AINST CONFIRMING THE ADDITION OF RS. 3,38,000/- AGAINST PAYMENT MADE FOR PURCHASE OF THE CAR AND GROUND NO. 7 IS AGAINST MAKING THE ADDITION OF RS. 4,76,000/- ON ACCOUNT OF PAYMENT OF EMI TOWARDS THE LOAN. THE FACTS REGARDING THESE ISSUES ARE THAT THE AO OBSERVED THAT ASSESSEE HAS P URCHASED TAVERA CAR FOR RS.9,88,000/- BUT HAS NOT PRODUCED THE SOURCE F OR SAME. HE THEREFORE, MADE ADDITION OF THIS AMOUNT U/S 69C. 24. THE LD. CIT(A) OBSERVED THAT AGAINST PURCHASE OF CAR FOR RS.9,88,000/-, ASSESSEE HAS TAKEN LOAN OF RS.5,50,0 00/- FROM HDFC BANK BUT FOR REMAINING RS.3,38,000/-, SOURCE IS NOT EXPLAINED. FURTHER, ASSESSEE HAS PAID 10 INSTALLMENTS OF LOAN OF RS.46, 500/- EACH, I.E. RS.4,65,000/- FOR WHICH SOURCE REMAINED UNEXPLAINED. FURTHER, RS.5,000/- IS ESTIMATED ON ACCOUNT OF BANK CHARGES FOR DISHONOUR OF CHEQUES. HE THEREFORE, CONFIRMED ADDITION OF RS.8,0 8,000/- (3,38,000/- + 4,65,000/- + 5,000/-). THE LD. CIT(A) HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY HOLDING AS UNDER: 3.5.2 DETERMINATION : ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 15 (I) DURING THE YEAR UNDER CONSIDERATION, THE APPELL ANT PURCHASED A TAVERA CAR FOR A CONSIDERATION OF RS. 9, 88,000/- BUT THE APPELLANT HAS NOT PRODUCED SOURCE OF SUCH INVESTMEN T AND CONSEQUENTLY, THE AO HAS MADE ADDITION OF RS. 9,88,000/- U/S 69C OF THE ACT. DURING APPELLATE PROCEEDINGS, IT WAS SUBMITTED BY THE APPEL LANT THAT IT HAS TAKEN A LOAN OF RS. 5.50 LAC FROM THE HDFC BANK AND THE BALANCE AMOUNT OF RS. 3.38 LAC WAS AVAILABLE WITH IT OUT OF P AST SAVINGS. THE APPELLANT HAS ALSO FILED A COPY OF LOAN ACCOUNT STA TEMENT OF HDFC BANK. (II) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. THE LOAN ACCOUNT OF HDFC BANK SHOW EMI PAYMENT OF RS. 46,500/- THROUG H CHEQUE. HOWEVER, THE APPELLANT HAS NOT FILED THE COPY OF THA T BANK ACCOUNT IN WHICH THESE CHEQUES WERE DEBITED. THE LOAN REPAYMENT WA S STARTED IN JUNE, 2005 I.E. FOR 10 MONTHS IN THE YEAR UNDER CON SIDERATION. THUS, THE SOURCE OF TOTAL EMI PAYMENT OF RS. 4,65,000/- REMAI NED UNEXPLAINED. THE APPELLANT HAS NOT PROVIDED THE COMPLETE LOAN STA TEMENT AND IT APPEARS THAT THE BANK HAS CHARGED CERTAIN AMOUNTS O N ACCOUNT OF DISHONOR OF CHEQUES ISSUED BY THE APPELLANT FOR EMI AND THE TOTAL OF SUCH AMOUNTS IS ESTIMATED AT RS. 5,000/-. THE SOURC E OF PAYMENT TO HDFC BANK REMAINED UNEXPLAINED I.E. AMOUNT OF RS. 4 ,70,000/- IS HEREBY SUSTAINED. FURTHER, THE APPELLANT COULD NOT EXPLAIN THE SOURCE OF REMAINING AMOUNT OF RS. 3.38 LAC INVESTED BY IT IN THE TAVERA CAR. THEREFORE, OUT OF THE ADDITION OF RS. 9,88,000/- MAD E BY THE AO U/S 69C OF THE ACT, THE ADDITION OF RS. 8,08,000/- (4,70,00 0 + 3,38,000) IS HEREBY SUSTAINED. ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 16 25. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE L D AR HAS SUBMITTED THAT AGAINST PURCHASE OF CAR, ASSESSEE HAS TAKEN LOAN OF RS.5,50,000/- FROM HDFC BANK. THIS IS ACCEPTED BY L D. CIT(A). AGAINST THE LOAN AMOUNT, ASSESSEE WAS TO PAY EMI OF RS.16,50 0/- P.M. HOWEVER, ASSESSEE HAS ONLY PAID 8 INSTALMENTS, I.E. RS.3,72, 000/- AS IS EVIDENT FROM THE HDFC BANK STATEMENT. THEREFORE, THE AMOUNT OF RS.4,65,000/- TAKEN BY THE CIT(A) IS INCORRECT. THE BALANCE AMOUNT OF RS.3,38,000/- IN RESPECT OF PURCHASE OF CAR AND THE REPAYMENT OF LOA N INSTALLMENT OF RS.3,72,000/- IS PAID BY THE ASSESSEE FROM HIS BANK ACCOUNT WITH SBBJ SODALA, JAIPUR FROM WHERE THE AMOUNT IS WITHDRAWN/ TRA NSFERRED TO HDFC BANK ACCOUNT FOR PAYMENT TOWARDS PURCHASE OF CA R/ INSTALLMENTS. FURTHER, THE CAR LOAN FROM HDFC BANK AND THE VALUE OF CAR IS REFLECTED IN THE STATEMENT OF AFFAIRS AS ON 31.03.2006 (PB 12). THUS, THE SOURCE OF PURCHASE OF CAR AS ALSO THE REPAYMENT OF LOAN IS FU LLY VERIFIABLE. ACCORDINGLY, THE ADDITION CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. 26. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 27. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS TAKEN ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 17 LOAN OF RS 5,50,000 FROM HDFC BANK AND TO THIS EXTE NT, SOURCE OF FUNDS FOR PURCHASE OF CAR WORTH RS 9,88,000 STANDS E XPLAINED. FURTHER, THE LD AR HAS CONTENDED THAT THE BALANCE AMOUNT OF RS.3,38,000/- IN RESPECT OF PURCHASE OF CAR AND THE REPAYMENT OF BAN K LOAN INSTALLMENT OF RS.3,72,000/- IS PAID BY THE ASSESSEE FROM HIS BANK ACCOUNT WITH SBBJ SODALA, JAIPUR FROM WHERE THE AMOUNT IS WITHDRAWN/ TRA NSFERRED TO HDFC BANK ACCOUNT FOR PAYMENT TOWARDS PURCHASE OF CA R/ INSTALLMENTS. SINCE THERE IS NO FINDING OF THE LOWER AUTHORITIES, THE MATTER IS SET ASIDE TO THE FILE OF THE AO TO EXAMINE THE SAID CONTENTIO N OF THE LD AR AND DECIDE AFRESH AS PER LAW. IN THE RESULT, GROUND IS ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/2017. 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:- 27 TH DECEMBER, 2017 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAMESHWAR LAL KUMAWAT, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE I.T.O., WARD 2(4), JAIPUR 3. VK;DJ VK;QDR@ CIT ITA 147/JP/2017_ RAMESHWAR LAL KUMAWAT VS ITO 18 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. 147/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR