A.C.I.T., Circle-2, Gwalior V. Shri Omprakash Gupta, Gwalior

ITA 20/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0438 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 4 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-01-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2012

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 19 & 20/AGRA/2012 ASSTT. YEAR : 2008-09 & 2009-10 A.C.I.T., CIRCLE 2, VS. SHRI OMPRAKASH GUPTA, GWALIOR. ADIVASI MOHALLA, NAKA CHANDRAVADNI, LASHKAR, GWALIOR. (PAN : APLPG 8584 R) C.O. NO. 15 & 16/AGRA/2012 (IN ITA NO. 19 & 20/AGRA/2012) ASSTT. YEAR : 2008-09 & 2009-10 SHRI OMPRAKASH GUPTA, VS. A.C.I.T., CIRCLE 2, ADIVASI MOHALLA, NAKA CHANDRAVADNI, GWALIOR. LASHKAR, GWALIOR. ITA NO. 21/AGRA/2012 ASSTT. YEAR : 2008-09 A.C.I.T., CIRCLE 2, VS. SHRI SACHIN MOHAN GUPTA , GWALIOR. ADIVASI MOHALLA, NAKA CHANDRAVADNI, LASHKAR, GWALIOR. (PAN : AGBPG 3492 K) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI V. BAPNA, C.A. DATE OF HEARING : 09.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 11.01.2013 ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 2 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE DEPARTME NTAL APPEALS AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE. 2. THE LD. COUNSEL FOR THE ASSESSEE SEEKS PERMISSIO N TO WITHDRAW BOTH THE CROSS OBJECTIONS NOS. 15 & 16/AGRA/2012. THE SAME ARE ACC ORDINGLY DISMISSED AS WITHDRAWN. 3. IN ITA NO. 19 & 20/AGRA/2012, THE REVENUE CHALLE NGED THE ORDER OF THE LD. CIT(A), GWALIOR DATED 25.10.2011 FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10, CHALLENGING THE DELETION OF ADDITIONS OF RS.22,78,7 35/- AND RS.3,34,763/- ON ACCOUNT OF UNEXPLAINED CASH RECEIVED ON VARIOUS DAT ES RESPECTIVELY IN BOTH THE ASSESSMENT YEARS. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A BROKER OF KIRANA GOODS. A SEARCH OPERATION U/S. 132 OF THE IT ACT HAS BEEN CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ALONG WITH HIS SON SACHIN MOHAN GUPTA ON 12.05.2008 AND ACCORDINGLY, PROCEEDINGS U/S. 153A H AVE BEEN INITIATED. IN BOTH THE ASSESSMENT YEARS UNDER APPEALS, THE ASSESSEE CHALLE NGED THE ADDITIONS OF RS.22,78,735/- AND RS.3,34,763/- BEFORE THE LD. CIT (A) MADE ON ACCOUNT OF ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 3 UNEXPLAINED CASH. THE AO ON PERUSAL OF THE SEIZED M ATERIAL AS BS-01/19 NOTICED THAT THE ASSESSEE HAS RECEIVED CASH ON VARIOUS DATE S, DETAILS OF WHICH ARE MENTIONED AT PAGE 3 OF THE ASSESSMENT ORDER AND PAGE 6 OF THE APPELLATE ORDER IN A SUM OF RS.22,78,735/-. IN THE ABSENCE OF ANY EXPLANATION I N RESPECT OF THE NATURE AND SOURCE OF CASH RECEIPTS, IT WAS TREATED AS UNEXPLAI NED CASH RECEIVED DURING THE COURSE OF BUSINESS AND ADDITION WAS MADE OF RS.22,7 8,735/- IN ASSESSMENT YEAR 2008-09. SIMILAR ADDITION WAS MADE OF RS.3,34,763/- IN ASSESSMENT YEAR 2009-10 ON THE BASIS OF THE SAME SEIZED PAPER. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT THE ADDITION HAS BEEN MADE ON VARIOUS D ATES ON ACCOUNT OF AMOUNTS RECEIVED AND AMOUNTS PAID. THIS IS NOTHING BUT TOTA L OF CASH. THE AMOUNT RECEIVED AND PAID FROM THE CUSTOMERS HAS BEEN TOTALED WRONGL Y. IT WAS STATED THAT NO SUCH CASH HAS BEEN RECEIVED BY THE ASSESSEE FOR THE PURP OSE OF MAKING ADDITION. THE LD. CIT(A), CONSIDERING THE EXPLANATION OF THE ASSESSEE AND PERUSAL OF THE SEIZED DOCUMENTS DELETED BOTH THE ADDITIONS. THE FINDINGS OF THE LD. CIT(A) IN PARA 5.3 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 5.3. APPELLANTS SUBMISSIONS HAVE BEEN CONSIDERED CAREFULLY ALONG WITH ASSESSMENT ORDER AND RECORDS. CONCERNED SEIZED ANNEXURES I.E. BS-01/19 HAVE ALSO BEEN PERUSED. THE RELEVANT LOOSE PAPERS, AS PERUSED, HAVE BEEN FOUND FROM THE APPELL ANTS PREMISES AND ARE THUS, PRESUMED TO BE BELONGING TO THE APPEL LANT IN TERMS OF SECTION 292C OF THE I.T. ACT. IN FACT, THE APPELLAN T HIMSELF HAS NOT DENIED THE OWNERSHIP OF THE SAME. HOWEVER, PRESUMPT ION AVAILABLE TO THE A.O. U/S. 132(4) READ WITH SEC. 292C IS TO THE EXTENT THAT BOOKS OF ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 4 ACCOUNTS, OTHER DOCUMENTS OR ASSETS FOUND DURING SE ARCH BELONG TO THE APPELLANT. THE ONUS TO ESTABLISH THAT ANY UNDIS CLOSED INCOME CAN BE ATTRIBUTED TO THE APPELLANT OUT OF SUCH EVIDENCE S REMAINS ON THE A.O., AS THE SAID PRESUMPTION DOES NOT OVERRIDE OR EXCLUDE SEC. 68 AND DOES NOT DISPENSE WITH THE NECESSITY OF ESTABLI SHING BY INDEPENDENT EVIDENCE THE GENUINENESS OF THE CREDITS U/S. 68 [PUSHKAR NARAIN SARAF VS. CIT (1990) 183 ITR 388 (ALL.)]. IT HAS BEEN HELD BY VARIOUS COURTS THAT A NEXUS SHOULD BE ESTABLISHED B ETWEEN THE DOCUMENT AND THE UNDISCLOSED OF THE APPELLANT. THE ONUS WOULD LIE UPON THE A.O. TO PROVE THAT THE CONTENTS MENTIONED IN THE DOCUMENTS OR PAPERS RESULT INTO UNDISCLOSED INCOME OF THE APP ELLANT. THE PRIMARY BURDEN TO RELATE THE CONTENTS OF THE DOCUME NTS OR PAPERS WITH THE INCOME OF THE APPELLANT WILL LIE UPON THE A.O. ONCE THIS PRIMARY BURDEN IS DISCHARGED BY THE A.O., THE ONUS WILL SHI FT ON THE APPELLANT TO DISPROVE THAT SUCH CONTENTS ARE NOT HIS INCOME. IN THE APPELLANTS CASE, FOR INSTANCE, THE PAYMENTS RECEIVED ON 17.10. 07 AS MENTIONED IN THE SEIZED DOCUMENTS ARE REPRODUCED AS UNDER : DATED 17.10.2007 6729 5000 4610 71668 7498 5589 4377 40000 6019 5000 1626 43000 1945 2293 1673 20000 865 2055 4726 7048 3762 TOTAL 23056 19937 17012 185478 243000 245483 2470 245470/- 13 [KPZ LGH GS THUS, THE APPELLANTS SUBMISSIONS ARE FOUND ACCEPTA BLE WHICH HAVE BEEN FURTHER REITERATED BY WAY OF FILING OF AN AFFI DAVIT EVEN BEFORE THE A.O. EXPLAINING THAT HIS BUSINESS INVOLVES RECEIPT OF AMOUNTS FROM BUYERS AND THEN PAYMENT TO SELLERS ON WHICH HE EARN S COMMISSION @ 1%. THE ENTRIES MADE DO NOT EVEN SHOW FROM WHOM THE IMPUGNED AMOUNTS HAVE BEEN RECEIVED OR PAYMENT MADE EXCEPT F OR SOME PLACES IN THE ENTIRE SEIZED DOCUMENTS AS RELIED ON BY THE A.O. A.O. HAS ASSESSED THE SAME AS UNDISCLOSED INCOME OF THE APPE LLANT WITHOUT MAKING ANY ENQUIRY OR BRINGING ANY MATERIAL ON RECO RD TO ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 5 SUBSTANTIATE THAT THE APPELLANT HAS ACTUALLY EARNED THE INCOME RECORDED IN THESE LOOSE PAPERS. THE APPELLANT HAS H IMSELF DECLARED THE COMMISSION EARNED FROM TRANSACTIONS SHOWN IN TH E SEIZED DOCUMENTS, AS MENTIONED IN PRECEDING PARAS. ACCORDI NGLY, A.O. IS NOT FOUND JUSTIFIED IN MAKING THE IMPUGNED ADDITION AS UNEXPLAINED CASH. THE SAME IS HEREBY, DELETED. 5. THE LD. DR RELIED UPON THE ORDER OF THE AO AND S UBMITTED THAT SINCE THE SEIZED PAPER WAS RECOVERED FROM THE POSSESSION OF T HE ASSESSEE, THE ASSESSEE SHALL HAVE TO EXPLAIN THE SAME AND SEIZED PAPER DISCLOSED THE RECEIPTS MADE BY THE ASSESSEE. THEREFORE, THE ADDITION IS JUSTIFIED. ON THE OTHER HAND, THE COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO THE SEIZED PAPER FROM THE PAPER BOOK AND ALSO RE LIED UPON THE AFFIDAVIT OF THE ASSESSEE FILED BEFORE THE AO, IN WHICH THE ASSESSEE EXPLAINED THAT HE HAS EARNED ONLY COMMISSION AND IT WAS A ROUGH NOTING IN RESPEC T OF THE DEALINGS MADE FROM THE CUSTOMERS. THEREFORE, THE ADDITION IS UNJUSTIFI ED, AS THE ASSESSEE HAS ALSO DISCLOSED COMMISSION INCOME. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD AND DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE OR DER OF THE LD. CIT(A) IN DELETING THE ADDITION. IT IS NOT IN DISPUTE THAT THE ASSESSE E IS A BROKER OF KIRANA GOODS AND PURCHASED GOODS ON BEHALF OF HIS CLIENTS WHO ARE RE TAILERS AND THE ASSESSEE EARNED COMMISSION INCOME. THE SEIZED PAPERS HAVE BEEN NOTE D IN THE IMPUGNED ORDER AND ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 6 THE COPY HAS BEEN FILED IN THE PAPER BOOK AND IT WO ULD NOT LEAD TO ANYWHERE THAT THE ASSESSEE RECEIVED ANY UNACCOUNTED CASH. THE ENT RIES IN THE SEIZED PAPER DID NOT SHOW FROM WHOM THE IMPUGNED AMOUNTS HAVE BEEN RECEI VED OR PAYMENTS MADE. FURTHER, THE AO DID NOT MAKE FURTHER ENQUIRIES WITH REGARD TO THE ENTRIES CONTAINED IN THE SEIZED PAPER. THEREFORE, THE FINDINGS OF THE AO HAVE NOT BEEN SUBSTANTIATED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD TO JUSTI FY THE IMPUGNED ADDITION. THE LD. CIT(A) ON PROPER APPRECIATION OF THE SEIZED PAP ER RIGHTLY DELETED BOTH THE ADDITION. IN THE RESULT, BOTH THE DEPARTMENTAL APPE ALS FAIL AND ARE DISMISSED. IN THE RESULT, THE DEPARTMENTAL APPEALS IN ITA NO. 19 & 20 /AGRA/2012 ARE DISMISSED. 7. IN THE DEPARTMENTAL APPEAL IN ITA NO. 21/AGRA/20 12, THE REVENUE CHALLENGED THE ORDER OF LD. CIT(A), GWALIOR DATED 19.10.2011 F OR THE ASSESSMENT YEAR 2008- 09, CHALLENGING THE DELETION OF ADDITION OF RS.22,7 8,735/- ON ACCOUNT OF UNEXPLAINED CASH RECEIVED ON VARIOUS DATES ON PROTE CTIVE BASIS. IT IS AN APPEAL AGAINST THE ASSESSEE, SHRI SACHIN MOHAN GUPTA IN WH OSE CASE PROTECTIVE ASSESSMENT HAS BEEN MADE OF THE SAME AMOUNT, IN RES PECT OF WHICH SUBSTANTIVE ADDITION HAS BEEN MADE IN THE CASE OF ASSESSEE, SHR I OM PRAKASH GUPTA. THE LD. CIT(A) WHILE DELETING THE SUBSTANTIVE ADDITION IN T HE CASE OF OM PRAKASH GUPTA ALSO DELETED THE PROTECTIVE ADDITION IN THE CASE OF ASSESSEE, SHRI SACHIN MOHAN GUPTA. SINCE, WE HAVE DISMISSED THE DEPARTMENTAL AP PEAL IN THE CASE OF SHRI OM ITA NO. 19, 20, 21 & C.O. 15 & 16/AGRA/12 7 PRAKASH GUPTA WHERE SUBSTANTIVE ADDITION WAS MADE, THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PROTECTIVE ADDITION IN TH E CASE OF THE ASSESSEE, SHRI SACHIN MOHAN GUPTA. IN THE RESULT, DEPARTMENTAL APPEAL IN ITA NO. 21/AGRA/2012 IS ALSO DISMISSED. 8. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS ARE DISMISSED AND BOTH THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED AS WITHDRA WN. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY