Shri Ashok Kumar Tak, JODHPUR V. ITO, MOUNT ABU

ITA 239/JODH/2013

• Counselvise Citation: 23923314 RSA 2013
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 239/JODH/2013 (A.Y. 2009-10) SHRI ASHOK KUMAR TAK VS THE INCOME-TAX OFFICER C/O M/S CHORDIA & ASSOCIATES MOUNT ABU 21, MANJI KA HATTA, PAOTA, JODHPUR . PAN NO. AGGPM 0658 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARUN CHORDIA. DEPARTMENT BY : SHRI N.A. JOSHI- DR. DATE OF HEARING : 11/10/2013. DATE OF PRONOUNCEMENT : 18/10/2013. O R D E R PER HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE FOR A.Y. 2009-10 IS DI RECTED AGAINST THE ORDER OF LD. CIT(A), DATED 25/02/2013. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE, AS AN INDIVIDUAL, FILED HIS RETURN OF INCOME ON 15/03/201 0 DECLARING TOTAL INCOME OF RS. 1,45,875/- FOR A.Y. 2009-10. IT WAS NOTICED THAT THE IN 2 THE ASSESSEES BANK ACCOUNT WITH MNSBL, CERTAIN CRE DIT ENTRIES WERE APPEARING. WHEN ASSESSEE WAS ASKED TO EXPLAIN, HE STATED THAT THIS ACCOUNT, IN FACT, BELONGED TO ONE SHRI GANPAT SINGH , S/O SHRI CHANDAN SINGH, R/O SIROHI. THE ASSESSEE ALSO FILED POWER O F ATTORNEY DATED 26.4.2007 EXECUTED BY SHRI GANPAT SINGH. THE ASSES SEE ALSO FILED AN AFFIDAVIT OF SELF DATED 19.9.2011 STATING THAT THE TRANSACTION AS APPEARING IN HIS MNSBL ACCOUNT BELONGED TO SHRI GAN PAT SINGH AND NOT TO THE ASSESSEE. HOWEVER, THE A.O. DID NOT AGREE. THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNT. ACCORDINGLY, THE A. O. ADDED ENTIRE CREDIT ENTRY FOUND IN THIS SAVING BANK ACCOUNT TOTA LING TO RS. 23,29,288/- U/S 69A OF THE ACT. AGGRIEVED, THE ASS ESSEE FILED APPEAL, BUT WAS NOT SUCCESSFUL IN GETTING THE ENTIRE AMOUNT DELETED. HOWEVER, HE FOUND THAT 14 ENTRIES TOTALING TO RS. 8,30,321/- PERTAINED TO DRAFT CANCELLATION AMOUNT, WHICH WERE MADE FROM THE VERY SAME SAVING BANK ACCOUNT ITSELF. THEREFORE, HE HAS GIVEN PART RELIEF OF RS. 8,30,321/- AND HAS SUSTAINED THE REMAINING ADDITION OF RS. 14,98,907/- AS UNEXPLAINED CREDIT ENTRY. NOW THE ASSESSEE HAS FILED THE SECOND APPEAL BY TAKING MAINLY TWO GROUNDS OF APPEAL. 3 3. AFTER HEARING BOTH THE SIDES VIS A VIS THE SUBMI SSIONS OF THE PARTIES, AND PERUSAL OF WRITTEN SUBMISSIONS, WE HAV E FOUND THAT ADMITTEDLY, THE ASSESSEE HAS NOT MAINTAINED ANY BOO KS OF ACCOUNT. THE ASSESSEE HAS CHALLENGED THAT THE IMPUGNED ADDIT ION CANNOT BE MADE UNDER THE PROVISIONS OF SECTION 69A OF THE ACT . HE HAS ARGUED THAT IF IN ANY F.Y. THE ASSESSEE IS FOUND TO BE OWN ER OF ANY MONEY, BULLION, ETC. AND IF SUCH MONEY, BULLION, ETC. IS N OT FOUND RECORDED IN THE BOOKS OF ACCOUNT AND THE ASSESSEE OFFERS NO EXP LANATION ABOUT THE NATURE AND SOURCE OF MONEY, BULLION, ETC., OR THE S AME IS NOT FOUND TO BE SATISFACTORY, ADDITION CAN BE MADE. AS PER THE ASSESSEE, BECAUSE THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUN T, SECTION 69A OF THE ACT WILL NOT APPLY. FOR THIS PROPOSITION, HE H AS PLACED RELIANCE ON THE FOLLOWING TWO DECISIONS: 1. DR. PRAKASH TEWARI VS. CIT [1984] 148 ITR 474 [ MP] 2. KANTILAL CHANDULAL & CO. VS. CIT [1982] 136 ITR 889 [CAL] 4. ON THE OTHER HAND, THE LD. D.R. HAS ARGUED THAT U/ 69A OF THE ACT, ONLY WHEN THE ASSESSEE MAINTAINS BOOKS OF ACCO UNT THEN THE QUESTION OF RECORDING OF SUCH MONEY, BULLION, ETC. IS A REQUISITE CONDITION, OTHERWISE NOT. HE HAS FURTHER ARGUED TH AT THE ASSESSEE HAS 4 OFFERED EXPLANATION ABOUT THE CREDIT ENTRIES IN THE BANK ACCOUNT BUT THE SAME HAVE NOT BEEN FOUND TO BE SATISFACTORY BY THE A.O. THEREFORE, THE PROVISIONS OF SECTION 69A WOULD APPL Y. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE A.O. IS BOUND TO CONSIDER THE FACTS OF A PARTICULAR ISSUE IN ITS TOTALITY. ON PERUSAL OF THE FACTS AND CIRCUMSTANCES OF THIS C ASE AND PROPER EVALUATION OF AVAILABLE EVIDENCE, IT IS CRYSTAL CLE AR THAT THE ASSESSEE HAS EXPLAINED THAT THE ENTRIES APPEARING IN HIS SAV INGS BANK ACCOUNT RELATE TO BUSINESS OF TRADING IN LIQUOR OF SHRI GAN PAT SINGH AND CREDIT ENTRIES REPRESENT HIS MONEY ONLY AND THE ASSESSEE W AS SIMPLY A POWER OF ATTORNEY HOLDER OF SHRI GANPAT SING. IT IS APPE ARING FROM RECORD THAT THE BUSINESS OF TRADING IN LIQUOR WAS CONDUCTED FOR AND ON BEHALF OF SHRI GANPAT SINGH. A COPY OF POWER OF ATTORNEY DAT ED 29.5.2007 CLEARLY EVIDENCES THAT THE PERIOD OF VALIDITY OF TH IS POWER OF ATTORNEY IS BETWEEN 23.5.2007 AND 31.3.2008. THE BUSINESS O F LIQUOR CAN BE CONDUCTED THROUGH LICENSED SHOP WITH SPECIFIC CODE NUMBER ALLOTTED BY THE RAJASTHAN STATE BREWERIES CORPORATION LTD. [RS BCL] WHICH IS AN AUTONOMOUS BODY CREATED BY THE GOVERNMENT OF RAJAST HAN. SHRI GANPAT SINGH WAS ALLOTTED SPECIFIC CODE NO. 240262, WHICH CONTINUED UPTO THE F.Y. 2008-09. THUS, FROM THE FACTS AND CI RCUMSTANCES OF THE 5 CASE AND EVIDENCES AVAILABLE ON RECORD, IT CAN BE E ASILY INFERRED THAT THE ENTRIES IN THE BANK ACCOUNT REPRESENT BUSINESS TRANSACTIONS ONLY. THE ASSESSEE HAS OBTAINED FEW TREASURY CHALLANS FOR THE AMOUNT DEPOSITED IN FAVOUR OF RSBCL FOR PURCHASE OF LIQUOR DEDUCTION COPIES OF THE SAME ARE ENCLOSED AT PAGES 18 AND 19 OF THE PAP ER BOOK WHICH ARE IN THE NAME OF SHRI GANPAT SINGH. POWER OF ATTORNE Y DATED 29.5.2007, COPY ENCLOSED, IS SELF-EXPLANATORY AND CLEARLY EXPL AINS THE TRANSACTIONS RECORDED IN THE BANK ACCOUNT AS PERTAINING TO SHRI GANPAT SINGH. THE ASSESSEE IS NOT THE OWNER OF THESE TRANSACTIONS. TH E A.O. COULD HAVE CONTRADICTED THE SAID SHRI GANPAT SING AND COULD HA VE COME TO A DIRECT ADVERSE INFERENCE BUT HE HAS FAILED TO DO SO. ACCO RDINGLY, IT WOULD NOT BE JUST AND FAIR TO MAKE ADDITION OF CREDIT ENTRIES APPEARING IN THIS BANK ACCOUNT. THE ASSESSEE IS NOT PURSUING ANY BUS INESS. THE A.O. HAS NOT GIVEN ANY SUCH FINDING IN HIS ORDER. ACCORDING LY, WE ORDER TO DELETE THE ENTIRE ADDITION AND ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH OCTOBER, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 TH OCTOBER, 2013. 6 VL/ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR