SITA RAM TANWAR, Jaipur V. ITO, Jaipur

ITA 238/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5199 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 10-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DAGUR CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3); 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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 238/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SHRI SITA RAM TANWAR, FLAT NO. 408, SARASWATI TOWER, CENTRAL SPINE, VIDHYADHAR NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 4(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADVPT 0327 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DAGUR (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.08.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 09/08/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-2, JAIPUR DATED 12.01.2015 PERTAINING TO ASSESSMENT Y EAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 36,91,0 00/- U/S 69 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF CASH DEPOSITS IN BANK. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) HAS ERRED IN NOT PROVIDING REASONABLE OPPORTUNITY O F BEING HEARD DURING THE APPELLATE PROCEEDINGS. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY UNDER SECTION 143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE 2 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR. ACT). THE AO FOR WANT OF FILING OF THE REQUISITE D ETAILS PROCEEDED TO FRAME ASSESSMENT UNDER SECTION 144 OF THE ACT. WHILE FRA MING THE ASSESSMENT, THE AO MADE ADDITION OF RS. 36,91,000/- BY INVOKING PROVIS IONS OF SECTION 69A OF THE ACT IN RESPECT OF PEAK OF CASH DEPOSITS MADE IN DIFFERENT BANK ACCOUNTS MAINTAINED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE AGGRIEVED BY THIS ORDER, PREFERRED APPEAL BEFORE LD. CIT (A), WHO AFT ER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 4. THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 29 OF ITAT RULES, 1963 SEEKING ADMISSION OF ADDITIONAL EVIDENCES IN THE FO RM OF STATEMENT FOR WORKING OUT THE PEAK DEPOSITS PREPARED BY THE ASSESSEE, COPIES OF BANK ACCOUNTS WHERE CASH WAS DEPOSITED, STATEMENT FOR WORKING OUT THE PEAK D EPOSITS PREPARED BY THE AO, EVIDENCE REGARDING SALE OF CAR, RECEIPT OF MONEY AN D OWNERSHIP OF THE VEHICLE, SALE AGREEMENT EXECUTED ON 29.12.2010 FOR SALE OF PROPER TY BY SMT. MANJU DEVI, PURCHASE AGREEMENT DATED 06.01.1998 AND EVIDENCE RE GARDING SALE OF TWO STORIED SHOP BY ASSESSEE. 5. THE ONLY EFFECTIVE GROUND IS AGAINST ADDITION OF RS. 36,91,000/- MADE UNDER SECTION 69A OF THE ACT I.E. UNEXPLAINED CASH DEPOSI TS IN THE BANK ACCOUNTS OF THE ASSESSEE. 5.1. IN RESPECT OF THE APPLICATION UNDER RULE 29 OF THE ITAT RULES, 1963, THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISS IONS AS MADE IN THE APPLICATION STATING THAT BOTH THE AUTHORITIES BELOW HAVE NOT GI VEN SUFFICIENT OPPORTUNITY FOR ADDUCING EVIDENCE. IT IS CONTENDED THAT THESE EVID ENCES WOULD DEMONSTRATE THE 3 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR. SOURCE OF DEPOSITS IN THE BANK ACCOUNTS. IT IS CONT ENDED THAT THE ADDITIONAL EVIDENCES ARE MATERIAL FOR ADJUDICATION OF THE ISSU E. IT IS FURTHER CONTENDED THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, ADDITIONAL EVI DENCES BE ADMITTED AND THE ISSUE RAISED IN THE APPEAL BE RESTORED TO THE FILE OF THE AO FOR DECISION AFRESH. 5.2. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMI SSIONS AND HAS TAKEN US THROUGH THE ASSESSMENT ORDER. THE LD. D/R HAS DRAW N OUR ATTENTION TO THE ASSESSMENT ORDER PAGES 1 & 2 IN SUPPORT OF THE CONT ENTION THAT SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE. THE ASSESSE E OUGHT TO HAVE FURNISHED THESE DETAILS BEFORE THE AO. AS THE ASSESSEE CHOOSE NOT T O FILE SUCH EVIDENCES, THEREFORE, HE DOES NOT DESERVE ANY RELIEF BY THIS TRIBUNAL. 5.3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROU GH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IN HIS APPLICATION UNDER RULE 29 HAS STATED AS UNDER :- 1. IN THE ABOVE REGARD IT IS SUBMITTED THAT THE I NCOME TAX AUTHORITIES I.E. THE LEARNED ASSESSING OFFICER AND THE LEARNED CIT ( A) HAVE DECIDED THE CASE OF THE ASSESSEE WITHOUT GIVING SUFFICIENT OPPO RTUNITY FOR ADDUCING EVIDENCE. IN VIEW OF THIS THE ASSESSEE SEEKS PERMIS SION OF THE HONBLE ITAT FOR FURNISHING OF ADDITIONAL EVIDENCE. 2. IN THE CASE OF THE ASSESSEE IN RESPECT OF DEPOSI TS IN THE BANKS SOURCES OF DEPOSITS WITH DOCUMENTARY EVIDENCES ARE AVAILABL E AND ARE BEING FURNISHED. THESE DOCUMENTARY EVIDENCES INCLUDE SALE OF IMMOVABLE PROPERTY AND CAR WHICH COULD NOT BE FURNISHED BEFOR E THE LOWER AUTHORITIES FOR WANT OF ADEQUATE OPPORTUNITIES. THU S THE ADDITIONAL EVIDENCES BEING FURNISHED ARE ONLY OF SUPPORTING AN D SUPPLEMENTARY NATURE BUT THESE GO TO THE ROOT OF THE MATTER IN EX PLAINING THE DEPOSITS IN BANK. THE ADDITIONAL EVIDENCES ARE CRUCIAL FOR T HE DISCHARGE OF JUSTICE. THEREFORE THESE MAY KINDLY BE ADMITTED. 3. IT IS SUBMITTED THAT WHEN TECHNICALITIES ARE PIT CHED AGAINST THE SUBSTANTIVE DISCHARGE OF JUSTICE, THE LATER HAS TO PREVAIL, IN A CASE WHERE THE BONAFIDES ARE NOT IN DOUBT (MARUTI CIVIL WORKS VS. ITO (2011) 136 TTJ 448 (PUNE). IT IS FURTHER SUBMITTED THAT ALL THE JUDICIAL 4 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR. INSTITUTIONS THE HONBLE ITAT BEING ONE OF THEM ARE RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE THESE ARE CAPABLE OF REMOVING INJUSTICE. TH E ASSESSEE IS ONLY FURNISHING SUPPORTING EVIDENCES ONLY. THESE ARE NOT COOKED UP OR MANIPULATED IN ANY WAY. IN VIEW OF THIS THE HONBLE ITAT IS REQUESTED TO ADMIT THE ADDITIONAL EVIDENCE AND CONSIDER THE S AME FAVOURABLY. THE FOLLOWING CASE LAWS ARE QUOTED IN SUPPORT FOR T HE ADMISSION OF THE ADDITIONAL EVIDENCE. FAVOURABLE CASE LAWS : (I) NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) (II) CIT VS. RAORAJA HANUT SINGH 117 TAXMAN 613/252 ITR 0528 (RAJ.) (III) ELECTRA (JAIPUR) PVT. LTD. VS. IAC 26 ITD 236 (IV) SMT. PRABHAVATI S. SHAH VS. CIT 231 ITR 1 (BOM.) (V) CIT VS. GANI BHAI WAHAB BHAI 232 ITR 900 (MP) (VI) SMT. SURINDER KAUR VS. ITO (2008) 118 TTJ 710 (LUCK) (VII) MASCON GLOBAL LTD. VS. ACIT (2010) 37 SOT 202 (CHENNAI) ON THE CONTRARY, THE LD. D/R HAS OPPOSED THE SUBMIS SIONS. WE FIND FROM THE RECORD THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE AUTHORITIES BELOW. HOWEVER, IT IS ALSO SETTLED POSITION OF LAW THAT NO ONE SHOULD BE TAXED FOR THE RECEIPTS FOR WHICH HE IS NOT LIABLE TO BE TAXED. I N THE INSTANT CASE THE SOLITARY ISSUE IS WITH REGARD TO THE SOURCE OF DEPOSITS MADE IN TH E VARIOUS BANK ACCOUNTS OF THE ASSESSEE AND TAXABILITY OF SUCH DEPOSITS. THEREFOR E, IN THE INTEREST OF JUSTICE, WE 5 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR. ALLOW THE APPLICATION OF THE ASSESSEE SUBJECT TO TH E CONDITIONS AS MADE HEREIN BELOW IN THIS ORDER. 6. APROPOS GROUND NO. 1, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE ADDITIONAL EVIDENCES MAY BE ADMITTED AND THIS GROUN D BE RESTORED TO THE FILE OF THE AO FOR DECISION AFRESH. 6.1. ON THE CONTRARY, THE LD. D/R HAS OPPOSED THE S UBMISSIONS AND SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE. THE ASSESSEE CANNOT TAKE BENEFIT OF HIS OWN. HENCE HE PRAYED THAT GROUND BE REJECTED . 6.2. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE ONLY ISSUE IS WITH REGARD TO THE EXPLA NATION OF SOURCE RELATED TO THE BANK DEPOSITS MADE BY THE ASSESSEE IN VARIOUS BANK ACCOUNTS MAINTAINED WITH ALLAHABAD BANK, VIDHYADHAR NAGAR, AXIS BANK, VIDHYA DHAR NAGAR, BANK OF BARODA, VIDHYADHAR NAGAR, BANK OF INDIA, VIDHYADHAR NAGAR, JAIPUR. IN OUR CONSIDERED VIEW, IF THE ASSESSEE IS ABLE TO DEMONSTRATE THE SOURCE O F DEPOSIT, IN THAT EVENT SUCH DEPOSITS MAY NOT BE AMENABLE TO CHARGING OF TAX, WH ETHER SUCH CREDITS IN THE BANK ACCOUNTS ARE TAXABLE OR NOT WOULD DEPEND UPON THE E XPLANATION OFFERED BY THE ASSESSEE. MOREOVER, THE ENTIRE CREDITS CANNOT BE SU BJECTED TO TAX IF THERE ARE DEPOSITS AND WITHDRAWALS DURING THE YEAR UNDER CONS IDERATION. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, WE HEREBY SE T ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE TO THE FILE OF THE AO AND KEEPING IN VIEW THE PAST CONDUCT OF THE ASSESSEE, THIS IS SUBJECT TO THE FOLLOWING CONDITIO NS :- 1. THE ASSESSEE WOULD MAKE PAYMENT OF COST OF RS. 1,00 0/- TO THE REVENUE AS THE DELAY SO CAUSED IS NOT ATTRIBUTABLE TO THE REVENUE. 6 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR. 2. THE ASSESSEE WOULD NOT SEEK ANY ADJOURNMENT DURING THE ASSESSMENT PROCEEDINGS. 3. THE ASSESSEE WOULD FURNISH THE REQUISITE DETAILS AS AND WHEN CALLED BY THE AO AND COOPERATE IN THE ASSESSMENT PROCEEDIN GS. IN VIEW OF ABOVE, THE IMPUGNED ORDER IS SET ASIDE. THE GROUND OF THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/08/2016 . SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 09/08/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI SITA RAM TANWAR, JAIPUR. 2. THE RESPONDENT- THE ITO, WARD 4(2), JAIPUR. 3. THE CIT, 4. THE CIT (A) 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 238/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 238/JP/2015 SHRI SITA RAM TANWAR.