SHRI KESA MAL KHANWANI, Jaipur V. ITO, Jaipur

ITA 155/JPR/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5298 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 19-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G R PAREEK JCIT DHK
• Keywords: Sale consideration of property below Jantri Value; Income from undisclosed sources; Opportunity of being heard
• Section: 50C

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 HKKXPUN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 155/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SHRI KESA MAL KHANWANI, 104/4, AGARWAL FARM, MANSAROVAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 2(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAYPK 1330 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 307/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. THE INCOME TAX OFFICER, WARD 2(4), JAIPUR. CUKE VS. SHRI KESA MAL KHANWANI, 104/4, AGARWAL FARM, MANSAROVAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAYPK 1330 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI G.R. PAREEK (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30.05.2016. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 2/06/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THESE ARE TWO CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF LD. CIT (APPEALS)-I, JAIPUR DATED 23.01.20 12 FOR THE A.Y. 2006-07. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 2 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN TAXING A SUM OF RS. 26,800/- AS ALLEGED BROKERAGE INCOME. THE AC TION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAI NST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ABOVE ADDITION OF RS. 26,800/-. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN TAXING AGRICULTURAL INCOME OF RS. 2,94,000/- AS ALLEGED UN DISCLOSED INCOME. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFI ED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ABOVE ADDITION OF RS. 2,94,000/-. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 3,0 0,000/- OUT OF THE TOTAL ADDITION OF RS. 15,22,000/- MADE BY LD. AO AS UNEXPLAINED DEPOSITS U/S 69A. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 3,00,0 00/-. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN TAXING A SUM OF R. 15,32,816/- AS ALLEGED LONG TERM CAPITAL GAIN . THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHI NG THE A BOVE ADDITION OF R. 15,32,816/-. GROUND RAISED BY THE REVENUE ARE AS UNDER :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) IS JUSTIFIED IN REDUCING THE AD DITION OF RS. 15,22,000/- TO 3,00,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. FIRST OF ALL WE WILL TAKE THE APPEAL OF THE ASSESS EE. 2. AT THE OUTSET, THE LD. A/R FOR THE ASSESSEE HAS SUBMITTED THAT HE IS NOT PRESSING GROUND NO. 1. THEREFORE, THE SAME IS DISM ISSED AS NOT PRESSED. 3 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO 3. THE LD. A/R FOR THE ASSESSEE HAS SUBMITTED THAT HE WILL BE ADDRESSING THE ARGUMENT ON THE GROUND NO. 4 ABOVE. 3.1. IT IS THE CASE OF THE ASSESSEE THAT THE ASSESS EE OWNED A HOUSE PROPERTY SITUATED AT 84/262, MANSAROVER, JAIPUR. THIS HOUSE PROPERTY WAS SOLD ON 6.10.1995 TO SMT. SITA DEVI W/O SHRI VASANDMAL, RESIDENT OF 1 2, SINDHI COLONY, NAHRI KA NAKA, JAIPUR FOR A TOTAL SALE CONSIDERATION OF RS. 2,60,0 00/-. IT IS THE CASE OF THE ASSESSEE THAT AT THE TIME OF ENTERING INTO AGREEMENT ON 6.10 .1995 SHRI KESA MAL HAS ALSO EXECUTED A REGISTERED GENERAL POWER OF ATTORNEY IN FAVOUR OF SHRI RAMCHANDRA S/O SHRI VASANDMAL, RESIDENT OF 12, SINDHI COLONY, NAHR I KA NAKA, JAIPUR. IN THE SAID GENERAL POWER OF ATTORNEY IT MENTIONED AT PAGE 3 AS UNDER :- LKJKA'K ;G GS FD MDR EQ[R;KJ VKE }KJK MDR OF.KZR ED KU DS CKJS ESA DH XBZ LELR FYF[KR O EKSF[KD DK;ZOKGH ISJOH O TOKCN SGH EQ>S ESJS FD;S GQOS DS LEKU LOHDKJ O VAXHDKJ GKSXHA ;G EQ[R;K J UKEKVKE [K.MUH; GS RFKK MDR OF.KZR EDKU IJ ESJK DCTK GSA IT IS THE CASE OF THE ASSESSEE THAT THE ENTIRE SALE CONSIDERATION OF RS. 2,60,000/- WAS RECEIVED ON EXECUTION OF THE AGREEMENT TO SALE ALON G WITH THE REGISTERED GENERAL POWER OF ATTORNEY. AT THE TIME OF EXECUTION OF THE DOCUMENT, PHYSICAL POSSESSION OF THE PROPERTY WAS ALSO HANDED OVER TO THE PURCHASER SMT. SITA DEVI. IT IS THE CASE OF THE ASSESSEE THAT SMT. SITA DEVI HAD SOLD THE PROPE RTY BEARING NO. 84/262, MANSAROVAR, JAIPUR TO ONE SHRI MAHADEV SEWANI, THRO UGH HER SON AND REGISTERED POWER OF ATTORNEY HOLDER SHRI RAMCHANDRA (POWER OF ATTORNEY HOLDER OF ASSESSEE) 4 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO FOR A CONSIDERATION OF RS. 11,21,000/-. THE VALUE OF THE PROPERTY WAS ASSESSED BY THE STAMP DUTY AUTHORITIES AT RS. 19,25,920/-. IT WAS ALSO THE CASE OF THE ASSESSEE THAT THE SAID POWER OF ATTORNEY WAS EXECUTED BY THE GENERA POWER OF ATTORNEY IN THE NAME OF SHRI RAMCHANDRA. SHRI RAMCHANDRA IS NO WHERE RELATED TO THE ASSESSEE AND WAS A STRANGER. THE AO WHILE DEALING WITH THE ISSUE, HAS MENTIONED THAT THE PROPERTY HAS BEEN SOLD BY THE ASSESSEE THROUGH GENE RAL POWER OF ATTORNEY, MOREOVER THE ASSESSEE HAS NOT SHOWN THE CAPITAL GAI N ON THE SALE MADE TO SMT. SITA DEVI. THEREFORE, A SHOW CAUSE NOTICE WAS GIVEN TO T HE ASSESSEE. THE REPLY WAS CONSIDERED AND FOUND IT NOT ACCEPTABLE. THEREFORE, THE AO MADE ADDITION OF RS. 15,32,816/- AFTER CONSIDERING THE STAMP DUTY VALUAT ION OF THE PROPERTY AS PER SECTION 50C OF THE ACT. 4. THE ASSESSEE BEING AGGRIEVED BY THE ORDER PASSED BY THE AO HAS CHALLENGED THE SAME BEFORE LD. CIT (A). THE CIT (A) VIDE HIS O RDER DATED 23.1.2012 HAS CONFIRMED THE ADDITION MADE BY THE AO. THE LD. CIT (A) HAS FORTIFIED HER REASONING BY REFERRING TO SECTION 35 OF THE STAMP DUTY ACT. THE CONCLUSION OF THE LD. CIT (A) IS AS UNDER :- 7.3. I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND SUBMISSIONS OF THE AR AND DO NOT CONCUR WITH THE SUBMISSIONS OF TH E AR BECAUSE THE FACTS OF THE CASE OF THE ASSESSEE ARE COMPLETELY DI STINCT FROM THOSE OF THE CASE RELIED ON BY THE AR. THE FACTS OF THE CASE OF THE ASSESSEE ARE COVERED UNDER THE DEEMING PROVISION OF SEC. 50C. GI VEN THE FACT THAT THE REGISTERED SALE DEED WAS SIGNED BY THE APPELLAN T AS PER EVIDENCE AVAILABLE ON RECORD HE COMES WITHIN THE PURVIEW OF SEC. 50C AS HE HAS NOT BEEN ABLE TO BRING ANY EVIDENCE ON RECORD TO TH E CONTRARY APART FROM THE IKRARNAMA DT. OCT, 1995. THIS IKRARNAMA WA S NOT REGISTERED AS REQUIRED BY THE STAMP DUTY REGISTRATION ACT OF RAJA STHAN. 5 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO THE INDIAN STAMP ACT 1899 ADAPTED BY THE RAJASTHAN STAMP LAWS (ADAPTATION) ACT, 1952 WAS OPERATIONAL ON THE DATE OF ALLEGED TRANSFER IN F.Y. 95-96. SEC. 35 OF THIS ACT IS AS FOLLOWS :- INSTRUMENTS NOT DULY STAMPED INADMISSIBLE IN EVI DENCE, ETC.- NO INSTRUMENT CHARGEABLE WITH DUTY SHALL BE ADMITTE D IN EVIDENCE FOR ANY PURPOSE BY ANY PERSON HAVING BY LAW OR CONSENT OF PARTIES AUTHORITY TO RECEIVE EVIDENCE, OR SHALL BE ACTED UP ON, REGISTERED OR AUTHENTICATED BY ANY SUCH PERSON OR BY ANY PUBLIC O FFICER, UNLESS SUCH INSTRUMENT IS DULY STAMPED. THUS IN VIEW OF THE ABOVE THE IKRARNAMA IS HELD TO BE INADMISSIBLE EVIDENCE IN FACE OF THE REGISTERED SALE DEED SIGNED BY THE APPELLANT HIMSELF. THUS THE IMPUGNED ADDITION OF RS 15,32,316 /- IN RESPECT OF LONG TERM CAPITAL GAIN IS CONFIRMED. 5. NOW THE ASSESSEE IS BEFORE US. 5.1. THE LD. A/R HAS SUBMITTED THAT THE ORDER PASSE D BY THE AUTHORITIES BELOW IS REQUIRED TO BE CANCELLED, FOR THAT PURPOSE HE HAS T AKEN US TO THE PROVISIONS OF SECTION 2(47) OF THE IT ACT WHERE THE TRANSFER HA S BEEN DEFINED AS UNDER :- ANY TRANSACTION INVOLVING THE ALLOWING OF THE POS SESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882). IT IS THE CASE OF THE ASSESSEE THAT THE SALE OF TH E PROPERTY IN THE HANDS OF THE ASSESSEE HAS TAKEN PLACE IN THE ASSESSMENT YEAR 199 6-97 AND THEREAFTER THE ASSESSEE HAS NO RIGHT, TITLE OR INTEREST IN THE PRO PERTY. IT IS THE CONTENTION OF THE ASSESSEE THAT THE PRESENT CASE SQUARELY FALLS WITHI N THE REALM OF SECTION 2(47) AND, 6 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO THEREFORE, NO ADDITION CAN BE MADE ON THE BASIS OF SALE DEED EXECUTED BY THE POWER OF ATTORNEY HOLDER WAY BACK ON 5.10.2005. 5.2. ON THE OTHER HAND, THE LD. D/R RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BELOW AND HAS SUBMITTED THAT THE DOCUME NT EXECUTED ON 5.10.1995/6.10.1995 CANNOT BE LOOKED INTO FOR ANY P URPOSE AS IT WAS A SHAM TRANSACTION AND THE AUTHORITIES BELOW HAVE RIGHTLY HELD THAT THE LONG TERM CAPITAL GAINS IS REQUIRED TO BE ASSESSED IN THE HANDS OF TH E ASSESSEE IN A.Y. 2006-07. 5.3. WE HAVE GONE THROUGH THE RECORD AND APPLIED OU R MIND. FIRSTLY, THE ADMITTED FACTS ARE THAT THE ASSESSEE HAS EXECUTED A REGISTER ED GENERAL POWER OF ATTORNEY IN FAVOUR OF SHRI RAMCHANDRA S/O SMT. SITA DEVI WIFE O F SHRI VASANDMAL. IF WE EXAMINE THE TERMS AND CONDITIONS OF GENERAL POWER O F ATTORNEY, WE WILL COME TO THE IRREVOCABLE CONCLUSION THAT THE GENERAL POWER OF AT TORNEY IS NOT THE USUAL GENERAL POWER OF ATTORNEY BUT IS IRREVOCABLE GENERAL POWER OF ATTORNEY. WE WOULD LIKE TO REPRODUCE THE CLAUSES WHICH MAKE THE GENERAL POWER OF ATTORNEY IRREVOCABLE AS UNDER :- LKJKA'K ;G GS FD MDR EQ[R;KJ VKE }KJK MDR OF.KZR ED KU DS CKJS ESA DH XBZ LELR FYF[KR O EKSF[KD DK;ZOKGH ISJOH O TOKCN SGH EQ>S ESJS FD;S GQOS DS LEKU LOHDKJ O VAXHDKJ GKSXHA ;G EQ[R;K J UKEKVKE [K.MUH; GS RFKK MDR OF.KZR EDKU IJ ESJK DCTK GSA IF WE EXAMINE THE TERMS, IT IS CLEAR THAT THE ASSES SEE HAS GIVEN ALL THE POWERS IN RESPECT OF THE PROPERTY TO SHRI RAMCHANDRA S/O SHRI VASANDMAL WHETHER IT IS IN RESPECT OF SALE OR TRANSFER OF THE PROPERTY OR WITH RESPECT TO JDA, NAGAR NIGAM, 7 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO COLLECTORATE ETC. THERE A NUMBER OF JUDGEMENTS, WHI CH RECOGNIZE THE TRANSFER OF IMMOVABLE PROPERTY BY WAY OF REGISTERED GENERAL POW ER OF ATTORNEY, AGREEMENT TO SALE, RECEIPT AND WILL. IN THE PRESENT CASE ONCE T HE ASSESSEE HAS DIVESTED HIMSELF FROM ALL POWERS IN RESPECT OF TRANSFER OF POSSESSIO N, IN OUR VIEW THE TRANSFER HAS TAKEN PLACE WITHIN THE MEANING OF SECTION 2(47) OF THE IT ACT. ACCORDINGLY, WE HAVE NO HESITATION TO HOLD THAT THE TRANSFER OF PROPERTY HAS TAKEN PLACE IN THE YEAR 1996- 97 AND, THEREFORE, THE ACTION OF THE AO AND LD. CIT (A) THEREBY ASSESSING THE PROPERTY IN THE A.Y. 2006-07 IS WITHOUT ANY JURISDI CTION. MOREOVER, ONCE THE ASSESSEE WAS ABLE TO DEMONSTRATE THAT THE SALE DEED WHICH WA S EXECUTED ON 5.10.1995 WAS SIGNED BY SHRI RAMCHANDRA AS A POWER OF ATTORNEY HO LDER OF SHRI KESA MAL, AND THE POSSESSION WAS ALSO HANDED OVER BY HIM TO THE PURCH ASER, THEN WE FAIL TO APPRECIATE AS TO HOW THE CONSIDERATION CAN BE RECEIVED BY THE ASSESSEE IF THE PROPERTY IS SOLD BY THE GENERAL POWER OF ATTORNEY PURSUANT TO THE AG REEMENT DATED 5.10.1995. OUR VIEW IS ALSO SUPPORTED BY THE FACT THAT BESIDES SHR I RAMCHANDRA SIGNING THE SALE DEED DATED 5 TH OCTOBER, 2005 IN HIS CAPACITY AS GENERAL POWER OF ATTORNEY OF SHRI KESA MAL, THE SALE DOCUMENT IS ALSO WITNESSED BY SH RI VASANDMAL (FATHER OF SHRI RAMCHANDRA), IT IS HIGHLY IMPROBABLE THAT A PERSON, NAMELY, THE FATHER OF THE ATTORNEY WILL WITNESS THE TRANSACTION WHEN THE PROP ERTY IS OWNED BY THE ASSESSEE. IN OUR VIEW, THE SIGNING OF THE SALE DEED AND WITNE SSING OF THE SAME BY THE HUSBAND OF SMT. SITA DEVI CLEARLY SHOWS THAT THE SALE OF TH E PROPERTY BY THE ASSESSEE TO SMT. SITA DEVI WAY BACK IN THE YEAR 1995. WE ALSO DO NOT APPROVE THE CONCLUSION OF LD. CIT (A) WHEREBY IT HAS BEEN MENTIONED THAT THE DOCU MENT OF 1995 CANNOT BE LOOKED INTO FOR THE PURPOSE OF EVIDENCE. IN OUR VIEW, SECT ION 17 OF THE REGISTRATION ACT IS THE CLEAR ANSWER TO THE OBJECTIONS OF LD. CIT (A). AS PER SECTION 17 OF THE 8 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO REGISTRATION ACT, UNREGISTERED AGREEMENT WHICH IS R EQUIRED TO BE REGISTERED CAN ALWAYS BE LOOKED INTO FOR COLLATERAL PURPOSE. MORE OVER, THE AGREEMENT BETWEEN THE BUYER AND SELLER IS A CONTRACT PER SE AND BY LOOKIN G TO THE DOCUMENT, IT CAN ALWAYS BE INFERRED WHETHER THE PROPERTY WAS SOLD BY THE AS SESSEE TO SMT. SITA DEVI OR NOT. IN OUR VIEW, THE AGREEMENT CAN BE LOOKED INTO FOR T HE PURPOSE OF COLLATERAL PURPOSES. IN VIEW OF THE ABOVE SAID DISCUSSION, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 6. GROUND NO. 2 RELATES TO CONFIRMING THE ADDITION ON ACCOUNT OF AGRICULTURAL INCOME. 7. AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSES SEE WAS REQUIRED TO FURNISH THE DETAILS AND DOCUMENTS/SALE BILLS OF CROPS/EVIDE NCE OF AGRICULTURE LAND HOLDINGS/GIRDWARY REPORT/JAMABANDI REPORT IN SUPPOR T OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE AT RS. 2,94,000/-. IN COMPLIANCE, THE ASSESSEE HAS FAILED TO FURNISH ANY DETAILS/EVIDENCE IN SUPPORT OF HIS CLAIM. THUS IN ABSENCE OF VERIFICATION OF THE AGRICULTURAL INCOME, THE AO HAS TREATED THE INCOME SHOWN BY ASSESSEE AT RS. 2,94,000/- AS INCOME FROM UNDISCLOSED SOURCES AND A DDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 8. ON APPEAL, THE LD. CIT (A) AFTER CONSIDERING OF THE ORDER OF THE AO, SUBMISSIONS OF THE LD. A/R AND THE REMAND REPORT OF THE AO DATED 5.12.2011, OBSERVED THAT THE ASSESSEE WAS POSSESSING AGRICULT URAL LAND BUT THE ASSESSEE COULD NOT FURNISH ANY CONCRETE EVIDENCE/DOCUMENT IN SUPPO RT OF HIS CLAIM OF EARNING AGRICULTURAL INCOME. IN ABSENCE OF SUPPORTING BILL S AND VOUCHERS IT WAS NOT POSSIBLE 9 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO TO DETERMINE THE EXACT AMOUNT OF TURNOVER OR EXPENS ES AS CLAIMED BY THE ASSESSEE, THEREFORE, THE LD. CIT (A) CONFIRMED THE ACTION OF THE AO. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE ORDERS OF THE AUT HORITIES BELOW, SUBMISSIONS OF THE LD. A/R AND REMAND REPORT SUBMITTED BY THE AO. AFTER CAREFUL CONSIDERATION OF THE MATTER, WE ARE OF THE VIEW THAT THE MATTER NEE DS RECONSIDERATION AT THE END OF THE AO. THEREFORE WE SET ASIDE THE ORDER OF LD. CIT (A) AND REMAND THE MATTER TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH AF TER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. 10. GROUND NO. 3 RELATES TO CONFIRMING THE ADDITION OF RS. 3,00,000/- AS UNEXPLAINED DEPOSIT U/S 69A. 11. DURING ASSESSMENT PROCEEDINGS, THE AO NOTED THA T THE ASSESSEE HAS CASH DEPOSITED OF RS. 16,62,000/- IN HIS BANK ACCOUNT. TO VERIFY THE THIS CASH DEPOSIT, THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF THI S DEPOSIT. IN RESPONSE, THE ASSESSEE VIDE REPLY DATED 13.12.2010 STATED THAT RS . 1,73,000/- HAS BEEN DEPOSITED OUT OF BROKERAGE INCOME, RS. 7,22,000/- HAS BEEN DE POSITED OUT OF AGRICULTURE INCOME, RS. 4,50,000/- LOAN RECEIVED FROM KANCHAN M EENA AND RS. 3,50,000/- AS LOAN TAKEN PAMMAN MAL. THE AO REQUIRED THE ASSESSEE TO FURNISH DETAILS AND DOCUMENTS IN SUPPORT OF THE AGRICULTURE INCOME OF R S. 7,22,000/- AND CLAIMED LOAN OF RS. 8,00,000/-. IN RESPONSE, THE ASSESSEE HAS FA ILED TO FURNISH ANY DOCUMENTARY EVIDENCE. THUS VERIFICATION OF THE SAME WAS NOT POS SIBLE AND IN THESE CIRCUMSTANCES 10 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO CASH DEPOSIT OF RS. 15,22,000/- REMAINED UNEXPLAINE D IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, THE AO ADDED THE SAME TO THE TOTAL INC OME OF THE ASSESSEE. 12. ON APPEAL, LD. CIT (A) CONSIDERED THE ORDER OF THE AO, SUBMISSIONS OF THE LD. A/R AND REMAND REPORT OF THE AO DATED 5.12.2011. IN REMAND PROCEEDINGS, STATEMENTS OF BOTH THE PERSONS I.E. SHRI KANCHAN LA L MEENA AND SHRI PAMMAN MAL HAVE BEEN RECORDED. THEY HAVE FILED CONFIRMATIONS A CCEPTING THAT THEY HAVE GIVEN THE LOAN TO THE ASSESSEE DUE TO PERSONAL RELATIONS. THE AO OBSERVED IN THE REMAND REPORT THAT SINCE THESE PERSONS DID NOT HAVE PAN AN D WERE NOT FILING AN INCOME TAX RETURN, CREDITWORTHINESS AND GENUINENESS OF THE LOA N WAS NOT ACCEPTABLE. THE LD. CIT (A) ON THE BASIS OF EVIDENCE ON RECORD ACCEPTED THE LOAN OF RS. 8,00,000/-. OUT OF BALANCE AMOUNT OF RS. 7,22,000/-, THE LD. CIT (A ) HELD THAT RECEIPT OF RS. 3,00,000/- WAS NOT VERIFIABLE AS DISCUSSED BY HER IN PARA 5.3. OF HER ORDER. THUS THE LD. CIT (A) ON THE BASIS OF EXPLANATION GIVEN BY TH E ASSESSEE, HAS ACCEPTED RS. 4,22,000/- ON ACCOUNT OF AGRICULTURAL INCOME. IN V IEW OF THE ABOVE OBSERVATIONS, THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 3,00,000/ - AS UNEXPLAINED DEPOSITS U/S 69A IN THE BANK ACCOUNT OF THE ASSESSEE. 13. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE ORDERS OF THE AUT HORITIES BELOW, SUBMISSIONS OF THE LD. A/R AND REMAND REPORT SUBMITTED THE A.O. A FTER CAREFUL CONSIDERATION OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER O F LD. CIT (A), THEREFORE, WE UPHOLD THE SAME. THE GROUND OF THE ASSESSEE IS REJECTED. 14. NOW WE TAKE UP THE APPEAL OF THE REVENUE. 11 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO 15. THE REVENUE HAS QUESTIONED THE REDUCTION OF ADD ITION FROM RS. 15,22,000/- TO RS. 3,00,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOS ITS. 16. WE HAVE DEALT WITH THIS ISSUE IN THE APPEAL OF THE ASSESSEE IN GROUND NO. 3 ABOVE. THE MATTER HAS BEEN DISCUSSED TAKING INTO CO NSIDERATION THE REMAND REPORT OF THE AO, CONFIRMATIONS GIVEN BY THE CASH CREDITOR FOR GIVING LOANS TO THE ASSESSEE AND ORDER OF LD. CIT (A). SINCE WE HAVE REJECTED TH E GROUND OF THE ASSESSEE, WE DO NOT FIND ANY MERIT IN THE GROUND RAISED BY THE REVE NUE. THEREFORE, THE SAME IS REJECTED. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2/06/2016 . SD/- SD/- HKKXPUN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 2/06/2016 DAS/ VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KESA MAL KHANWANI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO WARD 2(4), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 155 & 307/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR 12 ITA NO. 155/JP/2012 KESA MAL KHANWANI VS. ITO