Dy. Commissioner of Income Tax, Lucknow V. Shri Indu Prakash Mishra, Lucknow

ITA 170/LKW/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1103 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH MISHRA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 170/LKW/2016 ASSESSMENT YEAR: 2012 - 13 DY. CIT RANGE V LUCKNOW V. SHRI INDU PRAKASH MISHRA 45, GOMTI SADAN, RIVER BANK COLONY LUCKNOW T AN /PAN : AHVPM3053H (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI RAJIV KUMAR, D.R. RESPONDENT BY: SHRI RAKESH MISHRA, ADVOCATE DATE OF HEARING: 08 02 201 8 DATE OF PRONOUNCEMENT: 20 0 2 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE REVENUE EMANATES FROM THE ORDER OF THE LD. CIT(A) - II, LUCKNOW DATED 22/1/2016 ON THE FOLLOWING GROUNDS OF APPEAL: - 1 . THE COMMISSIONER OF INCOME - TAX (APPEAL) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,00,000/ - MADE ON ACCOUNT OF INCOME FROM ASTROLOGY & VASTU SHASTRA IGNORING THE FACT THAT THE ASSESSEE DID NOT MAINTAIN CLIENT REGISTER FOR CALCULATION OF TOTAL RECEIPT. 2 . THE COMMISSIONER OF INCOME - TAX (APPEAL) HAS ERRED IN LA W AND ON FACTS IN RESTRICTING THE ADDITION TO RS.4,58,100/ - AS AGAINST RS. 39,26,19 5 / - MADE AS INCOME FROM OTHER SOURCES IGNORING THE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE ITA NO.170/LKW/2016 PAGE 2 OF 8 INCOME AS AGRICULTURAL INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS . 3 . THE COMMISSIONER OF INCOME - TAX (APPEALS), LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 12,66,200/ - MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT IGNORING THE FACT THAT THE ASSESSEE DID NOT PRODUCE ANY SU BSTANTIAL EVIDENCE IN SUPPORT OF THE CREDITWORTHINESS/ GENUINENESS OF DEPOSITS SO MADE. 4 . THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEALS, AS STATED ABOVE, AS AND WHEN NEED TO DO SO ARISES WITH THE PRIOR PERMISSION O F THE TRIBUNAL. 2 . THE FACTS IN THIS CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME SHOWING TOTAL INCOME AT RS.27,46,253/ - . THE ASSESSMENT WAS COMPLETED BY THE DCIT, RANGE V, LUCKNOW (ASSESSING OFFICER) AT AN INCOME OF RS.92,08,650/ - VIDE ORDER PASSED UNDER SECTION 143(3) OF THE ACT BY MAKING VARIOUS ADDITIONS/DISALLOWANCES AS APPEARING IN THE ORDER OF THE ASSESSING OFFICER. 3 . WITH REGARD TO GROUND NO.1 RELATING TO THE ADDITION OF RS.10 LAKHS MADE ON ACCOUNT OF INCOME FROM ASTROLOGY & VASTU SHASTRA, THE ASSESSING OFFICER OBSERVED AS UNDER: - ASSESSEE WAS ASKED VIDE ORDER SHEET QUERY DATED 16.03.2015 TO PRODUCE CLIENT REGISTER FOR ASTROLOGY AND VASTU SHASTRA PROFESSION AND DATE WAS GIVEN ON 18.03.2015. ON 18.03.2015 THE AR OF THE ASSESSES APPEARED AND GIVE N A LATEST MAINTAINED CLIENT REGISTER AS RECEIPTS GIVEN PROFIT AND LOSS ACCOUNT. AFTER PERUSAL OF REGISTER ITS APPEAR THAT THE ASSESSEE HAD NOT MAINTENANCE OF CUSTOMER/CLIENT REGISTER AT THE TIME OF SERVICE PROVIDED TO THE CUSTOMERS. IN ABSENCE OF CLIENT R EGISTER IT IS NOT POSSIBLE TO VERIFY WHAT RECEIPT HAS BEEN CHARGED FROM EACH CLIENT/VISITORS FOR PROVIDING CONSULTATION ON ASTROLOGY/VASTU SHASTRA. NOW A DAYS IT IS A GENERAL ITA NO.170/LKW/2016 PAGE 3 OF 8 PRACTICE OF ASTROLOGER TO CHARGE HEAVY FEES FOR PROVIDING CONSULTATION. THUS, REC EIPT FROM CLIENT IS NOT VERIFIABLE. LOOKING TO THIS FACT BOOKS OF ACCOUNTS OF THE ASSESSEE FOR ASTROLOGY BUSINESS IS REJECTED U/S 145(3) OF THE I.T. ACT, 1961 AND AN ADDITION OF RS.10,00,000/ - IS HEREBY MADE IN TOTAL RECEIPT ASTROLOGY/VASTU SHASTRA WHICH W I LL GIVE A EQUAL ADDITION OF RS. 10,00,000/ - IN NET PROFIT. THUS, T HERE WILL BE AN ADDITION OF RS. 10,00,000/ - IN NET PROFIT. 4 . AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSION BEFORE HI M WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A) IN HIS ORDER, THEREFORE, NEED NOT TO BE REPEATED HEREIN AGAIN. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ON THE ISSUE AND THE ASSESSMENT ORDER, HELD AS UNDER: - 4(4) I HAVE EXAMINED TH E FACTS AND CIRCUMSTANCES OF THE CASE. I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. I FIND THAT IDENTICAL ISSUE HAD COME UP IN CASE OF THE APPELLANT IN THE ASSESSMENT YEAR 2011 - 2012 IN APPEAL NUMBER 87/10/JT.CIT/R - 5/LKO/14 - 15 WHEREIN IN THE APPELLATE ORDER DATED 27.03.2015 THE ADDITION OF RS. 10,00,000/ - WAS DELETED IN PARAGRAPH 4.5 OF THE SAID APPELLATE ORDER. RESPECTFULLY FOLLOWING THE FINDINGS RECORDED IN THE SAID APPELLATE ORDER AND SINCE THERE I S NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE FOR THE ASSESSMENT YEAR 2012 - 2013 UNDER CONSIDERATION AS COMPARED TO THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2011 - 12, THE IMPUGNED ADDITION OF RS.10 LAKHS MADE BY THE ASSESSING OFFICER IS DELETED GIV ING RELIEF TO THE APPELLANT. 5 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FIND THAT THE RELIEF GRANTED TO THE ASSESSEE BY THE LD. CIT(A) IS BASED ON THE CRITERIA THAT ON THE IDENTICAL ISSUE AND SIMILAR FACTS & ITA NO.170/LKW/2016 PAGE 4 OF 8 CIRCUMSTANCES IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2011 - 12 THE LD. CIT(A) HAD DELETED THE ADDITION OF RS.10 LAKH S MADE BY THE ASSESSING OFFICER. THE LD. CIT(A) , FOLLOWING THE ORDER OF THE LD. CIT(A) FOR ASSESSMENT YEAR 2011 - 12 , HAS GRANTED RELIEF TO THE ASSESSEE. SINCE THE DEPARTMENT DID NOT CHALLENGE THE ORDER OF THE LD. CIT(A) FOR ASSESSMENT YEAR 2011 - 12 AND THE LD. D.R. HAS NOT BROUGHT BEFORE US ANY CONTRARY FACTS TO DEVIATE FROM THE FINDINGS RECORDED THE LD. CIT(A), W E FIND NO INFIRMITY WITH THE FINDINGS OF THE LD. CIT(A) . T HEREFORE, THE ORDER OF THE LD. CIT(A) ON THIS ISSUE IS CONFIRMED. ACCORDINGLY GROUND NO.1 OF THE APPEAL OF THE REVENUE IS DISMISSED. 6 . NEXT GROUND RELATES TO THE RESTRICTION OF ADDITION OF RS.4,58,100/ - BY THE LD. CIT(A) AS AGAINST RS.39,26,1 95/ - MADE BY THE ASSESSING OFFICER AS INCOME FROM OTHER SOURCES IGNORING THE FACT THAT ASSESSEE COULD NOT SUBSTANTIATE THE INCOME AS AGRICULTURAL INCOME. 7 . THE LD. CIT(A) IN HIS ORDER HAS OBSERVED THAT THERE ARE TWO FACETS INVOLVED IN THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSEE SHOWN AGRICULTURAL INCOME OF RS.10,16,480/ - IN THE CAPITAL ACCOUNT AS REFLECTED IN THE BALANCE SHEET AS ON 31/3/2012. HOWEVER, WHILE FILING OF RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION THE AGRICULTURAL INCOME W AS WRO NGLY SHOWN AS RS.42,25,400/ - IN THE RELEVANT COLUMN. THE ASSESSEE CLAIMS THAT THE RETURN OF INCOME HAD WRONG FIGURE AND THE CORRECT FIGURE AS PER BALANCE SHEET SHOULD BE TAKEN AS THE AGRICULTURAL INCOME FOR THE YEAR UNDER CONSIDERATION. THE LD. CIT (A) REFERRED TO THE BOARD CIRCULAR NO.14 (XL - 35) DATED 11/4/1955 WHICH CLEARLY OUTLINES THE NEED TO COLLECT ONLY LEGITIMATE TAX FROM THE ASSESSEE. IT EMPHASIS THAT THE ASSESSING OFFICER SHOULD NOT TAKE ADVANTAGE OF AN ASSESSEES IGNORANCE TO COLLECT MORE TAX OUT OF HIM THAN LEGITIMATELY DUE FROM THE ASSESSEE. THE LD. CIT(A) FURTHER MADE ITA NO.170/LKW/2016 PAGE 5 OF 8 REFERENCE TO THE DECISION OF THE ITAT MUMBAI BENCH IN THE CASE OF SUJATA TRADING PVT. LTD. VS. INCOME TAX OFFICER, 8(3)(2), MUMBAI [2015] 152 ITD 492 WHEREIN IT WAS HELD T HAT WHERE ASSESSEE - COMPANY AT THE TIME OF FILING OF THE RETURN OF INCOME ELECTRONICALLY HAD INADVERTENTLY FILLED COLUMN REGARDING DETAILS OF AUDIT UNDER SECTION 44AB WRONGLY, PENALTY UNDER SECTION 271B OF THE ACT WOULD NOT BE LEVIABLE. FURTHER, IN THE CAS E OF SHRIKANT REAL ESTATES PVT. LTD. VS. INCOME TAX OFFICER 4(3)(4), MUMBAI [2013] 140 ITD 155, IT WAS HELD BY THE ITAT MUMBAI BENCH THAT CLERICAL MISTAKES/ERRORS IN E - RETURN ARE CONDONABLE. WHEN SUCH RETURN IS FILED , THERE IS A POSSIBILITY OF ENTERING IN CORRECT DATA WITHOUT HAVING THE EXPERT KNOWLEDGE. IN VIEW OF THESE DISCUSSIONS, THE LD. CIT(A) HELD THAT AGRICULTURAL INCOME CREDITED IN THE CAPITAL ACCOUNT AS RS.10,16,480/ - IS THE CORRECT FIGURE AND THE MISTAKE IN NOT FILING THE RETURN OF INCOME OF RS.4 2,25,400/ - WAS WRONGLY SHOWN IN THE RELEVANT COLUMN AND IT IS NOT CORRECT FIGURE. THE ASSESSING OFFICER, T HEREFORE, WAS DIRECTED TO TAKE THE AGRICULTURAL INCOME OF THE ASSESSEE AT RS.10,16,480/ - . 8 . NEXT ISSUE INVOLVED IN THIS APPEAL RELATES TO THE GENUINE NESS OF THE AGRICULTURAL INCOME SHOWN. 9 . THE LD. CIT(A) OBSERVED THAT IDENTICAL ISSUE HAD COME UP FOR CONSIDERATION IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2011 - 12 WHEREIN ADDITION OF RS.4,58,100/ - WAS CONFIRMED BY THE LD. CIT(A) . RESPECTFULLY FOLLO WING THE FINDINGS RECORDED IN THE SAID APPELLATE ORDER, SINCE THERE WAS NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE FOR ASSESSMENT YEAR 2012 - 13 WHICH IS UNDER CONSIDERATION, THE LD. CIT(A) RESTRICTED THE ADDITION TO RS.4,58,100/ - AS AGAINST RS.39, 26,195/ - MADE BY THE ASSESSING OFFICER. ITA NO.170/LKW/2016 PAGE 6 OF 8 10 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FIND THAT THE LD. CIT(A) WHILE ARRIVING AT THE FINDINGS CONSIDERED THAT THERE WAS A MISTAKE BONA - FIDE IN PUTTING CORRECT FIGURE FOR AGRICULTURAL IN COME AND FOLLOWING VARIOUS TRIBUNAL ORDERS, THIS INADVERTENT BONA - FIDE MISTAKE WAS RECTIFIED BY THE LD. CIT(A) , IN WHICH WE FIND NO INFIRMITY. SECONDLY WE OBSERVE THAT REGARDING GENUINENESS OF THE AGRICULTURAL INCOME SHOWN ON THE SIMILAR FACTS AND CIRCUMS TANCES IN THE PRECEDING ASSESSMENT YEAR 2011 - 12 , AN ADDITION OF RS.4,58,100/ - MADE BY THE ASSESSING OFFICER WAS CONFIRMED AND UNDER THE SIMILAR FACTS AND CIRCUMSTANCES . T HE LD. CIT(A) HAS MAINTAINED STATUS QUO AND HAS RESTRICTED THE ADDITION TO TH AT EXTEN T, WHICH ALSO IN OUR HUMBLE OPINION HAS CORRECTLY DONE. WE DO NOT FIND ANY INFIRMITY WITH THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE AND THE RELIEF GRANTED TO THE EXTEN T AS INDICATED IN THE ORDER OF THE LD. CIT(A) IS SUSTAINED. THIS GROUND OF APPEAL BY THE REVENUE IS ALSO DISMISSED. 11 . THE NEXT GROUND RELATES TO THE DELETION OF ADDITION OF RS.12,66,200/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. 12 . WITH REGA RD TO THIS GROUND, THE OBSERVATION OF THE ASSESSING OFFICER IS REPRODUCED AS UNDER: - A S PER AIR INFORMATION, ASS ESSEE HAS DEPOSITED CASH OF RS. 10 LACS OR MORE IN A SAVIN G BANK ACCOUNT AMOUNTING TO RS. 12,66,200/ - ON 31.03.2012 FROM STATE BANK OF INDIA, SHOP NO. 12, QUTAB PLAZA, SHOP CENT, DLF QUTAB ENCLAVE, GURGAON (HARYANA). THE ASSESSEE WAS ASKED VIDE ORDER SHEET ENTRY DATED 22.07.2014 TO EXPLAIN SOURCE OF THIS DEPOSIT. IN THIS REGARD THE ASSESSEE IN HIS REPLY DATED 29.10.2014 SUBMITTED THAT THERE IS NO SUCH SINGLE TRANSACTION OF RS. 1 266200/ - ON 31.03.2012 IN SBI BANK A/C 20000241312. THE ASS ESSEE H AS NOT GIVEN SOURCE OF CASH RS. 1266200/ - WHICH WAS DEPOSITED IN BANK. THUS, THIS ITA NO.170/LKW/2016 PAGE 7 OF 8 AMOUNT REMAINED ON EXPLAINED AND TREATED AS INCOME FROM UNDISCLOSED SOURCE U/S 69A OF THE I.T. ACT, 1961 AND ADDED TO TOTAL INCOME OF THE ASSESSEE. 13 . THE ASSESSEE FILED WR ITTEN SUBMISSION ON THE ISSUE BEFORE THE LD. CIT(A) WHICH IS ON RECORD AS APPEARING IN THE ORDER OF THE LD. CIT(A) AND AFTER CONSIDER ING THE SUBMISSIONS MADE BY THE ASSESSEE AND THE ASSESSMENT ORDER, THE LD. CIT(A) HAS HELD AS UNDER: - 7(4) I HAVE EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE. I HAVE CONSIDERED THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. I FIND THAT THE AO HAS FAILED TO CONSIDER THE CONTENTION OF THE APPELLANT THAT THE IMPUGNED DEPOSIT IS NOT A CA SE OF A SINGLE ENTRY BUT A CASE OF CONTINUOUS DEPOSIT OF CASH IN THE BANK ACCOUNT THROUGHOUT THE YEAR. THE APPELLANT IS DERI VING AGRICULTURAL INCOME OF RS. 10,16,480/ - IN CASH AND ALSO T HE PROFESSIONAL RECEIPTS OF RS. 34,06,115/ - OUT OF WHICH CASH HAS BEEN D EPOSITED IN THE BANK ACCOUNT. THE APPELLANT HAD PRODUCED BOOKS OF ACCOUNTS AS IS EVIDENT FROM PARAGRAP H 1 OF THE ASSESSMENT ORDER FROM WHICH THE CASH DEPOSIT IN BANK ACCOUNT WAS VERIFIABLE. THE ADDITION OF RS. 12,66,200/ - MADE BY THE AO IS DELETED GIVING RE LIEF TO THE APPELLANT 14 . WE HAVE PERUSED THE CASE RECORDS, ANALYSED THE FACTS & CIRCUMSTANCES AND WE FIND THAT THE FINDINGS RECORDED BY THE LD. CIT(A) THAT THE ASSESSING OFFICER WAS UNABLE TO CONSIDER THE CONTENTIONS OF THE ASSESSEE THAT THE DEPOSIT IS NOT A CASE OF SINGLE ENTRY BUT A CASE OF CONTINUOUS DEPOSIT OF CASH IN THE BANK THROUGHOUT THE YEAR. THE ASSESSEE HA S DERIV ED AGRICULTURAL INCOME OF RS.10,16,4 80/ - IN CASH AND ALSO PROFESSIO NAL RECEIPTS OF RS.34,06,115/ - OUT OF WHICH CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAD PRODUCED BOOKS OF ACCOUNT WHICH IS EVIDENT EVEN FROM THE ASSESSMENT ORDER, FROM WHICH CASH DEPOSIT IN THE BANK ACCOUNT WAS ITA NO.170/LKW/2016 PAGE 8 OF 8 VERIFIABLE. THE ASSESSING OFFICER HAS STATED THAT THE SOURCE OF CA SH DEPOSIT IN THE BANK ACCOUNT WAS NOT GIVEN, HOWEVER, ASSESSEE HAS EXPLAINED THAT IT HAD COME FROM AGRICULTURE INCOME WHICH THE ASSESSING OFFICER HAS NOT BELIEVED. THE ASSESSING OFFICER HAS ALSO NOT BROUGHT OUT ANY SPECIFIC REASON AS TO WHY IT CANNOT BE ACCEPTED AS AGRICULTURAL INCOME. WE, THEREFORE, FIND NO INFIRMITY WITH THE FINDINGS OF THE LD. CIT(A) AND THE RELIEF GRANTED TO THE ASSESSEE ON THIS ACCOUNT IS SUSTAINED. THIS GROUND OF APPEAL OF THE REVENUE IS ALSO DISMISSED. 15 . GROUND NO.4 IS GENERAL IN N ATURE WHICH NEEDS NO ADJUDICATION. 16 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 / 0 2 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH FEBR UARY , 201 8 JJ: 0802 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR