BANWARI LAL AGARWAL, Jaipur V. ITO, Kishangarh

ITA 210/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4851 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH CIT DHK
• Assessee Lawyers: NILESH KATARIA
• Section: 147; 144

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 HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 210/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 BANWARI LAL AGARWAL, C/O-SHRI KISHAN TEWARI, AZAD NAGAR, MADANGANJ, KISHANGARH, DISTT.- AJMER. CUKE VS. ITO, MADANGANJ, KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AASPA 0201 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NILESH KATARIA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/12/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/12/2016 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25/11/2014 PASSED BY THE LD. CIT(A), AJMER FOR THE A.Y. 2010-11. THE GROUNDS TAKEN BY THE ASSESSEE IN APPEAL ARE AS UNDE R:- 1.1 THE ORDER PASSED BY THE LD. A.O. IS BAD IN LAW A ND ON THE FACTS OF THE PRESENT CASE AND HENCE, THE SAME MAY PLEASE BE QUASHED. ITA 210/JP/2015_ BANWARI LAL AGARWAL VS ITO 2 1.2 THE LD. A.O. ERRED IN LAW AS WELL AS ON THE FACTS OF THE PRESENT CASE IN MAKING ADDITION ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE AND LD. CIT(A) ERRED IN CONFIRMING THE SAME. WITHOUT PREJUDICE TO THE ABOVE. 2. RS. 7193247:- THE LD. A.O. ERRED IN LAW AS WELL AS ON THE FACTS OF THE PRESENT CASE APPLYING OF N.P. RATE @ 10% ON THE TOTAL BANK DEPOSIT AND THE LD. CIT(A) ERRED IN CONFIRMING THE SAME. 3. RS. 54000:- THE LD. CIT(A) IS NOT JUSTIFIED IN UP HOLDING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF MARBLE COMMISSION. 4. RS. 71932:- THE LD. CIT(A) IS NOT JUSTIFIED IN SU STAINING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF COMMISSION ON CASH DEPOSITS. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE CA SE OF THE ASSESSEE WAS REOPEN AND THE ASSESSMENT U/S 144 AND 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) WAS FRAMED. TH E ASSESSING OFFICER MADE ADDITION BY APPLYING THE NET PROFIT ON THE DEP OSITS MADE IN THE BANK ACCOUNT. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), W HO AFTER CONSIDERING THE SUBMISSIONS, SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER AND DISMISSED THE APPEAL OF THE ASSESSEE. ITA 210/JP/2015_ BANWARI LAL AGARWAL VS ITO 3 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS REITERATED THE SUBMISSIONS AS MADE IN THE WRITTE N SUBMISSIONS. HE FURTHER SUBMITTED THAT THE IDENTICAL FACTS AS WERE D ECIDED BY THE HONBLE ITAT, JAIPUR BENCH IN THE CASE OF ACIT VS. SMT. KUSU MDEVI VIJAYVARGIYA IN ITA NOS. 942 TO 945/JP/2015 ORDER DATED 20/10/20 16, WHEREIN THE HONBLE BENCH HAS SET ASIDE THE ISSUES TO THE ASSES SING OFFICER FOR FRESH DECISION. THEREFORE, HE PRAYED TO SET ASIDE THE ISSU ES UNDER CONSIDERATION TO THE ASSESSING OFFICER FOR FRESH AD JUDICATION AND DECISION. 5. ON THE CONTRARY, THE LD SR. DR HAS VEHEMENTLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND GONE THROU GH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE FACTS ARE IDENTI CAL AS WERE IN ITA NOS. 942 TO 945/JP/2015, WHEREIN THE COORDINATE BENCH IN PARAGRAPH NO. 2.12 HAS DIRECTED AS UNDER:- 2.12 IN OUR VIEW, THE MATTER REQUIRES A DEEPER AND A COORDINATED EXAMINATION BY THE AUTHORITIES AT THE H IGHER LEVEL TO BRING THE CORRECT FACTS ON RECORD WHICH S HOULD CONCLUSIVELY ESTABLISH THAT EITHER THE ASSESSEE IS THE OWNER OF THE MONEY FOUND DEPOSITED IN HER BANK ACCOUNTS A S CLAIMED BY THE AO OR THE ASSESSEE IS MERELY A FACIL ITATOR ITA 210/JP/2015_ BANWARI LAL AGARWAL VS ITO 4 AND EARNS COMMISSION INCOME AS CLAIMED BY THE ASSES SEE. ACCORDINGLY, WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE MATTER AFRESH WITH THE FOLLO WING DIRECTIONS: (1) THE ASSESSEE SHALL PROVIDE ALL THE REQUISITE D ETAILS IN TERMS OF NAMES AND ADDRESS AND OTHER REQUISITE PARTICULARS OF THE DEPOSITORS AS WELL AS OF THE BENEFICIARIES; (2) THE ASSESSEE HAS TO EXPLAIN THE NATURE AND SOU RCE OF THE TRANSACTIONS IN TERMS OF DEPOSITS AND ESTABLISH THE NECESSARY LINKAGE BETWEEN THE DEPOSITS AND THE SUBSEQUENT WITHDRAWALS TO VARIOUS INDIVIDUAL BENEFICIARIES; (3) THE LD CIT(A) SHALL CALL FOR THE RECORDS MAIN TAINED BY THE INVESTIGATION WING IN RESPECT OF THE SURVEY PROCEEDINGS AND CONFRONT THE SAME TO THE ASSESSEE T O PROVIDE HER A SUITABLE OPPORTUNITY; (4) THE BENEFICIARIES TO BE CONFRONTED WITH THE DET AILS SUBMITTED BY THE ASSESSEE AND CALL FOR THEIR CONFIRMATION AND/OR PERSONAL APPEARANCES AND/OR COORDINATE WITH THEIR RESPECTIVE CITS/ASSESSING OFF ICERS; AND (5) NEEDLES TO SAY, BOTH THE PARTIES SHALL BE PROVI DED SUITABLE OPPORTUNITY AND THEY SHALL EQUALLY COOPERA TE AND SHALL SUBMIT NECESSARY EXPLANATION/INFORMATION /DOCUMENTS AS AVAILABLE AND REQUIRED BY THE LD CIT( A). SINCE THE FACTS ARE IDENTICAL, BY TAKING A CONSIST ENT VIEW, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRES H DECISION. THE ASSESSING ITA 210/JP/2015_ BANWARI LAL AGARWAL VS ITO 5 OFFICER IS DIRECTED TO DECIDE THE ISSUE IN THE LIGH T OF THE ABOVE OBSERVATION OF THE COORDINATE BENCH PASSED IN ITA N OS. 942 TO 945/JP/2015. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2016. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH DECEMBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI BANWARI LAL AGARWAL, MADANGANJ, KISHANGARH, DISTT.- AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, MADANGANJ, KISHANGARH. 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. 210/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR