ITO, Kishangarh V. NARENDRA CHOUDHARY, Ajmer

ITA 178/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5294 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P R MEENA JCIT DHK
• Assessee Lawyers: AJAY SOMANI
• Keywords: Peak credit
• Section: 68; 144

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 VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO. 178/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, KISHANGARH CUKE VS. SHRI NARENDRA CHOUDHURY, 27, INDIRA NAGAR MADANGANJ KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADYPC 9784 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 184/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI NARENDRA CHOUDHURY, 27, INDIRA NAGAR MADANGANJ KISHANGARH CUKE VS. THE INCOME TAX OFFICER, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADYPC 9784 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI AJAY SOMANI (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.R. MEENA(JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11.03.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 26/05/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 2 THESE ARE CROSS APPEALS FILED BY THE REVENUE AS WEL L AS THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DAT ED 06.12.2013 WHEREIN THE FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 178/JP/14 (REVENUE) 1. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A), AJMER HAS ERRED IN RESTRICTING THE ADDITION TO RS. 10,49,760/- AS AGAINST THE ADDITION MADE OF RS. 28,15,190/- BY THE AO U/S 69A OF THE IT ACT, WITHOUT APPRECIATING THE FACTS OF TH E CASE. 2. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A), AJMER HAS ERRED IN DELETING THE ADDITION OF RS. 7,0 0,000/- MADE Y THE AO U/S 68 OF THE IT ACT WITHOUT APPRECIATING THE FACTS OF THE CASE . ITA NO. 184/JP/14 (ASSESSEE) 1. THAT THE LD. CIT(A), AJMER HAS ERRED IN CONFIRMING ADDITIONS OF RS.10,49,760/- U/S 69A AND RS. 5788/- AS SB INTER EST AS: RS. 6,00,000/- RECEIVED BACK FROM SHRI GYAN SINGH A ND SHRI PAWAN KUMAR ON 01.05.2008 HAS NOT BEEN CONSIDERED A S SOURCE FROM THE DEPOSIT IN SB A/C NO.19090200000002 0 ON 09.05.2008. DESPITE THE EVIDENCES AND STATEMENT S OF THE PERSON WHO HAD GIVEN THE SUM SHRI GYAN SINGH U/S 131. RS.4,49,760/- (OUT OF RS. 10,40,760/- AS PEAK SHORT FALL) CANNOT BE CONSIDERED UN EXPLAINED AMOUNT ADS SOURCE S THERETO ARE ON RECORD AND SUBSTANTIATED BY PAST FI NAL A/C AND ITRS ON RECORD. 2. THAT WITHOUT PREJUDICE TO GROUND NO.1, THE ADDIT ION OF RS. 10,49,760/- SHOULD BE REDUCED TO RS. 2,28,219/- BEI NG 10% OF RS.22,82,190/- WHICH STOOD DEPOSITED IN 2 SAVING BA NK ACCOUNT IN LIGHT OF CONSISTENT DECISIONS OF HONOURABLE ITAT RAJASTHAN. ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 3 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FILED RETURN OF INCOME ON 27.10.2010 DECLARING INCOME OF RS.2,72,180/- AND AGRICULTURAL INCOME OF RS.62,550/-. THE AO HAS MENTIONED THAT AS PER THE BANK STATEMENT FROM THE SAID BANKERS, AS SESSEE IS MAINTAINING TWO BANK ACCOUNTS IN WHICH FOLLOWING DE POSITS HAVE BEEN MADE. 1. SB A/C NO. 190902000000018 CASH RS. 5,03,000/- CLEARING RS. 7,00,000/- TOTAL RS.12,03,000/- 2. SB A/C NO.190902000000020 CASH RS. 23,12,190/- INTEREST RS. 5,788/- TOTAL RS.23,17,978/- THE AO MENTIONED THAT THE ASSESSEE HAS NOT FURNISHE D ANY EXPLANATION REGARDING SOURCE OF CASH AND CHEQUE DE POSITED IN THE ABOVE TWO ACCOUNTS. AS ASSESSEE HAD NOT FURNISHED ANY REPLY, ASSESSMENT WAS COMPLETED U/S 144 OF THE IT ACT A ND THE ADDITION OF RS. 28,15,190/- WAS MADE U/S 69A OF THE IT ACT O N ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT AND RS . 7 LACS U/S 68 OF THE IT ACT ON ACCOUNT OF UNEXPLAINED CHEQUE DEPO SITS. FURTHER ADDITION ON ACCOUNT OF BANK INTEREST OF RS. 5788/- WAS MADE AS INCOME FROM OTHER SOURCES. 2.1 IN RESPECT OF THE ADDITION OF RS. 28,15,190/- M ADE U/S 69A OF THE IT ACT AND THE ASSESSEES EXPLANATION, THE LD. CIT(A), AJMER HAS GIVEN HIS FINDINGS AS UNDER: ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 4 1. (A) AS REGARDING DEPOSIT BY CLEARING OF RS, 7,00,000/- IN SAVING BANK ACCOUNT NO.190902000000018 ASSESSEE HAS EXPLAI NED THAT THIS AMOUNT WAS RECEIVED ON 31.05.2008 BY CHEQUE NO.2072 41 FROM KISHANGRH HI-TECH PARK LTD. AS ASSESSEE ALONGWITH S HRI OMPRAKASH, CONTRACTOR HAD DEPOSITED THE EARNEST MONEY SEEKING FOR THE AWARD OF CONTRACT OF RS. 13,00,000/- (ASSESSEES CONTRIBUTIO N BEING RS. 6,00,000/- WITHDRAWN ON 09.05.2008 FROM ACCOUNT NO. 190901000000020). THE ASSESSEE EXPLAINED THAT THE ABOVE CONTRACT WAS NOT AWARDED TO THE TO THE ASSESSEE AND MONEY W AS REFUNDED. THE ASSESSEE WAS WRONGLY GIVEN CHEQUE OF RS. 7,00,0 00/- AND ASSESSEE HAS SETTLED THE ABOVE ACCOUNT WITH SHRI OM PRAKASH, CONTRACTOR. THE ABOVE FACT WAS AL SO CONFIRMED BY SHRI OM PTRAKASH, CONTRACTOR AS WELL AS CERTIFICAT E WAS ALSO ISSUED BY THE INDIAN OVERSEAS BANK REGARDING THE ISSUE OF DD IN FAVOUR OF KISHANGARH HI-TECH PARK LTD. AND REFUND RECEIVED FROM THE ABOVE CONCERN. BOTH OF THE ENTRIES ARE REFLECTED IN THE ASSESSEES ABOVE TWO BANK ACCOUNTS. THE SOURCE OF ORIGINAL FUND I.E. APPLICATION FOR THE TENDER IS BY CASH DEPOSITS IN THE ACCOUNT NO. 19090 1000000020. THE CASH DEPOSITS HAVE BEEN SEPARATELY CONSIDERED IN T HE PEAK CREDITS DEPOSITS STATEMENT DISCUSSED BELOW. IN VIEW OF AB OVE EVIDENCES, THE ADDITION U/S 68 OF RS. 7,00,000/- IS NOT SUSTAINABL E AND IS DELETED. (B) AS REGARDING CASH DEPOSITS, ASSESSEE HAS GIVEN THE ANALYSIS OF PEAK CREDITS OF CASH DEPOSITS IN THE AB OVE TWO BANK ACCOUNTS. AS PER ABOVE STATEMENT, THE PEAK OF CASH DEPOSITED IN THE ABOVE TWO BANK ACCOUNTS IS RS. 10,49,760/- AS ON 10 .10.2008. FURTHER AS REGARDING THE SOURCE OF ABOVE DEPOSITS N ARRATED IN THE CHART ABOVE, ASSESSEES CLAIM THAT ASSESSEE HAS REC EIVED BACK THE AMOUNT OF RS. 6,00,000/- ON 01.05.2008 WHICH WAS EA RLIER GIVEN TO SHRI GYAN SINGH FOR THE PURCHASE OF LAND FOR RS. 5 0,00,000/- AT MALAKSAR AS PER ORAL AGREEMENT, IT MAY BE MENTIONED THAT AO IN HIS REMAND REPORT DATED 18.09.2013 HAS MENTIONED THAT STATEMENTS OF SHRI GYAN SINGH AND ASSESSEE WAS RECORDED. HOWEVER , NO EVIDENCE ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 5 IN FORM OF AGREEMENT FOR THE SAID PURCHASE OF LAND, PAYMENT OF ADVANCE, RECEIPT FOR RETURNING MONEY OR ANY CORRES PONDENCE WITH THE GOVERNMENT AUTHORITIES REGARDING THE ENCROACHME NT ON THE LAND AND VACATION THEREOF AS CLAIMED, CANCELLATION OF TH E DEAL ETC. HAVE BEEN SUBMITTED. IN VIEW OF ABOVE FACTS, THE CLAIM MADE IN THE STATEMENT BY THE ASSESSEE IS NOT SUPPORTED BY ANY E VIDENCE TO THIS EFFECT. AS REGARDING THE OPENING LIQUID BALANCE AS ON 30.0 3.2008 AS PER FINAL ACCOUNTS PRODUCED OF RS. 1,08,161/- RECEIPT FROM SU NDRY DEBTORS OF RS. 3,00,000/- IT MAY BE MENTIONED THAT ASSESSEE HA D FILED THE RETURN AS NO ACCOUNTS CASE EVEN IN A.Y. 2007-08 ALSO. I T HAS NOT BEEN SHOWN THAT IN SUCH RETURNS THERE WERE ANY SUCH BALA NCES AVAILABLE FOR BANK DEPOSITS MADE DURING THE CURRENT YEAR. AS REGARDING THE ASSESSEES CLAIM OF CURRENT YEARS INCOME BEING DEPOSITED IN THE ABOVE BANK ACCOUNTS, NO EXPLANATIO N HAS BEEN ESTABLISHED BETWEEN THE DEPOSITS IN ABOVE TWO ACCOU NTS AND EARNING OF THE ASSESSEE OVER THE YEAR. THE SAME IS TREATED TO HAVE BEEN UTILISED FOR HOUSEHOLD AND PERSONAL EXPENSES ETC. IN VIEW OF ABOVE CIRCUMSTANCES, ABOVE CONTENTION OF THE APPELLANT IS WITHOUT SUBSTANCE. IN VIEW OF ABOVE DISCUSSION , THE PEAK CREDIT OF TH E BANK DEPOSITS IN THE ABOVE TWO SAVING BANK ACCOUNTS IN INDIAN OVERSE AS BANK AMOUNTING TO RS. 10,49,760/- IS CONFIRMED AND BALAN CE AMOUNT ADDED U/S 69A IS DELETED. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL ON RECORD. FIRSTLY, ADDITION REGARDING DEPOSIT OF CHEQUE OF RS 7,00,000 HAS RIGHTLY BEEN DELETED BY THE LD CIT(A). SECONDLY, THE EXPLANATION OF THE ASSESSEE REGARDING THE SOURCES O F DEPOSITS HAS BEEN DULY CONSIDERED THOUGH NOT ACCEPTED BY THE LD CIT(A) AND THE PEAK THEORY HAS RIGHTLY BEEN INVOKED BY THE LD CIT( A) IN THE FACTS OF THE PRESENT CASE. WE DO NOT SEE ANY INFIRMITY IN T HE ORDER OF THE LD ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 6 CIT(A) AND WE HEREBY AFFIRM THE ABOVE FINDINGS OF L D CIT(A) CONFIRMING THE ADDITION OF RS. 10,49,760/- IN THE H ANDS OF THE APPELLANT. FURTHER, WE DONT SEE ANY BASIS OR JUSTIFICATION IN REDUCING THE ADDITION OF RS. 10,49,760/- TO RS. 2,28,219/- BEING 10% OF RS.22,82,190/- WHICH STOOD DEPOSITED IN 2 SAVING BA NK ACCOUNT. ACCORDINGLY, WE DISMISSED THE GROUNDS OF APPEAL IN BOTH THE CROSS APPEALS. IN THE RESULT THE APPEAL FILED BY THE REVENUE AND A SSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/ 05/2016. SD/- SD/- ( R.P. TOLANI ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 26/ 05 /2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE INCOME TAX OFFICER, KISHANGA RH 2. THE RESPONDENT- SHRI NARENDRA CHOUDHURY, KISHAN GARH 3. THE CIT(A) AJMER 4. THE CIT, AJMER 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 178 & 184 /JP/14 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR ITA NO. 178/JP/14 & ITA NO. 184/JP/14 ITO, KISHANGARH VS. SHRI NARENDRA CHOUDHURY, KISHA NGARH. 7