JINESH CHAND JAIN, Dausa V. ITO, Dausa

ITA 215/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5372 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: RAJ MEHRA J DHK
• Keywords: Unexplained cash credit
• Section: 68; 145

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 215/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI JINESH CHAND JAIN C/O JAIN IRON STORE TEHSIL ROAD, MAHWA, DISTT.DAUSA CUKE VS. THE ITO WARD-DAUSA DAUSA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABTPJ 8760 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI SANDEEP JHANWAR, CA FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJ MEHRA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/02/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 21/04/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 27-01-2014 FOR THE ASSESSMENT YEAR 2009-10 WHEREIN THE ASSESSEE IS AGGRIEVED, THAT THE LD. CI T(A) HAS ERRED IN: (I) CONFIRMING THE DISALLOWANCE OF RS. 3,000/- OUT OF SHOP AND TRAVELING EXPENSES. (II) CONFIRMING THE ADDITION OF RS. 15,000/- MADE BYTH A O IN RESPECT OF TELEPHONE EXPENSES. (III) CONFIRMING THE PROVISION OF SECTION 145 AND TRADING ADDITION TO THE EXTENT OF RS. 40,000/- ITA NO.215/JP/2014 SHRI JINESH CHAND JAIN VS. ITO, WARD- DA USA . 2 (IV) CONFIRMING THE ADDITION OF RS. 30,000/- IN RES PECT OF MONEY BORROWED FROM SHRI RAMESH CHAND JAIN BY CONSI DERING THE SAME AS UNEXPLAINED CASH CREDIT AND THEREBY APPLYIN G THE PROVISION OF SECTION 68 OF THE ACT (V) CONFIRMING THE NON-DEDUCTION OF RS. 80,000/- WH ILE COMPUTING THE INCOME FROM SHORT TERM CAPITAL GAIN (VI) CONFIRMING THE ADDITION OF RS. 15,000/- IN RES PECT OF ALLEGED HOUSE HOLD EXPENSES 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED GROUND NO. 5. HENCE, THE SAME IS DISMISSED BEING NOT PRESSED. 3.1 BOTH PARTIES ARE HEARD ON REMAINING GROUNDS. 4.1 APROPOS GROUND NOS. 1,2,3 AND 6 WHICH PERTAIN T O SMALL AD HOC ADDITIONS AND IN MY CONSIDERED VIEW, IMPUGNED AD HO C DISALLOWANCES ARE NOT CALLED FOR IN THE GIVEN FACTS AND CIRCUMSTANCES . CONSEQUENTIALLY, THE GROUND NOS. 1,2,3 AND 6 OF THE ASSESSEE ARE ALLOWE D. 4.2 APROPOS GROUND NO. 4 I.E. ADDITION OF RS. 3,00 LACS U/S 68 OF THE ACT WHEREIN BRIEF FACTS ARE THAT THE ASSESSEE CLAIM ED TO HAVE BORROWED AN AMOUNT OF RS. 3.00 LACS BY CHEQUE FROM ONE PARTY NA MELY SHRI RAMESH CHAND JAIN. ON EXAMINATION OF BOOKS OF ACCOUNT, THE AO FOUND THAT THE LENDER HAS DEBITED AN AMOUNT OF RS. 3.00 LACS IN HI S ACCOUNT. THE AO ASKED FOR CREDITWORTHINESS OF THE LENDER. THE ASSES SEE FILED THE COPY OF ITA NO.215/JP/2014 SHRI JINESH CHAND JAIN VS. ITO, WARD- DA USA . 3 PAN, CONFIRMATION ALONG WITH COPY OF BANK ACCOUNT A ND CLAIMED THAT LENDER WAS A RETIRED GOVT. SERVANT AND PENSIONER AN D HE HAS NOT BEEN FILING HIS RETURN SINCE ASSESSMENT YEAR 1999-2000 A S HIS INCOME WAS BELOW TAXABLE LIMIT. THE AO MADE THE ADDITION IN TH IS BEHALF WHICH WAS CONFIRMED BY THE LD. CIT(A) RELYING ON HON'BLE DELH I HIGH COURT JUDGEMENT IN THE CASE OF RAJESH KALIA VS. CIT, 286 ITR 357 AND HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAM LAL AGARWAL VS. CIT,280 ITR 547. 4.3 AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL AND THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT IT HAS NOT BEEN DISPUTED THAT SHRI RAMESH CHAND JAIN IS A RETIRED GOVT. SERVANT AND PENSIONER AND HAS BEEN ASSESSED UP TO ASSESSMENT YEAR 1999-2000. HIS CONFIRMATION H AS BEEN FILED TO THE EFFECT THAT THE AMOUNT WAS ADVANCED OUT OF HIS PAST SAVINGS. IT IS CLAIMED THAT THE ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS I N RESPECT OF IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CREDITOR. W HEN THE ASSESSEE HAS DISCHARGE HIS PRIMARY ONUS THEN THERE WAS NO JUSTIF ICATION IN MAKING QUESTION AS TO CREDITWORTHINESS OF THE CREDITOR ONL Y BECAUSE THE CASH DEPOSITED BY LENDER IN HIS ACCOUNT IS 4 DAYS PRIOR TO THIS TRANSACTION. THE ASSESSEE HAS NO CONTROL OR AUTHORITY TO ASK THE LEN DER AS TO WHY HE HAS DEPOSITED THE CASH 4 DAYS BEFORE ADVANCING THE MONE Y. THUS NO ADVERSE ITA NO.215/JP/2014 SHRI JINESH CHAND JAIN VS. ITO, WARD- DA USA . 4 INFERENCE CAN BE DRAWN IN THIS BEHALF, CONSEQUENTLY THE LD. AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION. 4.4 THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A ). 4.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE FACT EMERGES FROM THE RECO RD THAT SHRI RAMESH CHAND JAIN, IS A RETIRED GOVT. SERVANT AND WAS ASSE SSED TILL HIS INCOME WAS TAXABLE I.E. UPTO ASSESSMENT YEAR 1999-2000. IT HAS NOT BEEN DISPUTED THAT THE AMOUNT HAS BEEN PAID BY CHEQUE AND CONFIRM ATION HAS BEEN FILED. THE AUTHORITIES BELOW HAVE DOUBTED THE CREDITWORTHI NESS ONLY ON THE GROUND THAT AS TO WHY CASH WAS DEPOSITED BY THE LEN DER IN HIS BANK ACCOUNT ONLY 4 DAYS PRIOR TO ADVANCING THE MONEY TO THE ASSESSEE. IN MY CONSIDERED VIEW, THERE IS MERIT IN THE CONTENTIONS OF THE ASSESSEE THAT THE MONEY WAS DEPOSITED IN CASH BY THE LENDER IN HIS BA NK ACCOUNT AND THE ASSESSEE HAS NO CONTROL OVER THE AFFAIRS OF THE LE NDER. THEREFORE, ADVERSE INFERENCE CANNOT BE DRAWN ON AN IMPOSSIBLE AND BEYO ND CONTROL SITUATION AGAINST THE ASSESSEE. THE ADVERSE INFERENCE THUS DR AWN ABOUT THE CREDITWORTHINESS OF THE LENDER IN THESE CIRCUMSTANC ES IS UNTENABLE. THUS THE ASSESSEE HAS EFFECTIVELY DISCHARGED HIS PRIMARY ONUS AND THE IMPUGNED ADDITION CANNOT BE MADE U/S 68 OF THE ACT IN THE CASE OF ASSESSEE. THUS GROUND NO. 4 OF THE ASSESSEE IS ALLO WED. ITA NO.215/JP/2014 SHRI JINESH CHAND JAIN VS. ITO, WARD- DA USA . 5 5.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/04/2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 /04/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO:- 1. VIHYKFKHZ@ THE APPELLANT- SHRI JINESH CHAND JAIN, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-DAUSA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 215/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR