Devendra Kumar Jhanwr, Bhilwara V. ITO, Ward-2, Bhilwara

ITA 259/JODH/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9712 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S YADAV LD
• Assessee Lawyers: P C PARWAL CA LD
• Keywords: Onus to prove
• Section: 143(3); 142(1); 69A

Judgement Text

1 ITA NO.259/JODH/2019 SH. DEVENDRA KUMAR JHANWAR ASSESSMENT YEAR: 2017-18 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.259/JODH/2019 ( / ASSESSMENT YEAR: 2017-18) SH. DEVENDRA KUMAR JHANWAR C/O KALANI & CO.(CA) 5 TH FLOOR, MILESTONE BUILDING, GANDHINAGAR TURN, TONK ROAD JAIPUR, RAJASTHAN-302 015. / VS. ITO WARD - 2 BHILWARA RAJASTHAN. ./ ./PAN/GIR NO. AOUPJ-6136-N ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI P.C. PARWAL (CA)- LD. AR REVENUE BY : SHRI A.S. YADAV - LD. SR. DR / DATE OF HEARING : 02/11/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2017-18 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX(APPEALS), AJMER, [IN SHORT REFERRED T O AS CIT(A)], APPEAL NO.481/2018-19 DATED 10/06/2019 ON FOLLOWING EFFECTIVE GROUNDS:- 2 ITA NO.259/JODH/2019 SH. DEVENDRA KUMAR JHANWAR ASSESSMENT YEAR: 2017-18 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.8 LACS U/S 69A OF THE IT ACT BY TREATING THE CASH FOUND AND SEIZED DURING ACTION U/S 132A AS UNEXPLAINED INCOME OF THE ASSESS EE. 1.1. THE LD. CIT(A) HAS FURTHER ERRED ON FACTS AND IN LAW IN CONFIRMING THE ABOVE ADDITION BY NOT ACCEPTING THE CONTENTION OF A SSESSEE THAT THE SAME BELONGS TO HER MOTHER BY INCORRECTLY HOLDING THAT A SSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE HIS CONTENTION WITH ANY INDEPENDENT DOCUMENTARY EVIDENCE. AS EVIDENT, THE ASSESSEE IS AGGRIEVED BY CONFIRMATI ON OF CERTAIN ADDITION U/S 69A FOR RS.8.00 LACS. 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING WRITTEN SUBMI SSIONS AND DOCUMENTS PLACED IN THE PAPER BOOK. THE JUDICIAL PR ECEDENTS AS RELIED UPON DURING THE COURSE OF HEARING HAVE DULY BEEN DELIBERATED UPON. OUR ADJUDICATION TO THE SUBJECT MATTER WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. 3.1 THE IMPUGNED ADDITION STEM FROM THE FACT THAT A N AMOUNT OF RS.8 LACS IN CASH (IN OLD CURRENCY NOTES OF DENOMIN ATION OF RS.500 & RS.1000 AS DEMONETIZED BY GOVERNMENT ON 08/11/201 6) WAS FOUND FROM THE POSSESSION OF THE ASSESSEE ON 18/11/ 2016 AT ARRIVAL TERMINAL OF MAHARANA PRATAP AIRPORT, UDAIPUR, RAJAS THAN. ACCORDINGLY, WARRANT OF AUTHORIZATION U/S 132A WAS ISSUED BY PR. DIRECTOR OF INCOME TAX (INV.), JAIPUR, RAJASTHAN IN THE CASE OF THE ASSESSEE TO REQUISITION THE SAID AMOUNT OF RS.8 LAC S. THE APPRAISAL REPORT BELONGING TO THE ASSESSEE WAS FORWARDED TO L D. AO AND ACCORDINGLY AN ASSESSMENT WAS FRAMED U/S 143(3) ON 26/12/2018 WHEREIN THE SAID AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE U/S 69A. 3 ITA NO.259/JODH/2019 SH. DEVENDRA KUMAR JHANWAR ASSESSMENT YEAR: 2017-18 3.2 THE ASSESSEE SUBMITTED THAT THE CASH CARRIED BY THE ASSESSEE BELONGED TO HER MOTHER SMT. KAMLA DEVI JHANWAR WHO WAS MORE THAN 80 YEARS OF AGE. THE MONEY WAS SAVED BY HER OU T OF PAST SAVINGS AND DUE TO DEMONETIZATION OF CURRENCY, THE SAID AMOUNT WAS GIVEN TO HER SON FOR DEPOSITING THE SAME AT SHA HPURA IN HER BANK ACCOUNT SINCE MUMBAI BRANCH OF THE BANK DENIED TO DEPOSIT THE SAME. 3.3 ACCORDINGLY, DOCUMENTARY EVIDENCES WERE CALLED FROM THE ASSESSEE VIDE NOTICE U/S 142(1) WHICH WAS RESPONDED TO BY THE ASSESSEE VIDE SUBMISSIONS DATED 18/12/2018 WHEREIN THE ABOVE STATED FACTS WERE REITERATED. IT WAS SUBMITTED THAT THE MOTHER GAVE LOANS ON INTEREST AGAINST MORTGAGE OF JEWELERY WHIC H WERE RETURNED FROM TIME TO TIME. HOWEVER, NO BOOKS OF ACCOUNTS WE RE STATED TO BE MAINTAINED BY THE MOTHER. THE ASSESSEE ALSO SOUGHT TO JUSTIFY THE CIRCUMSTANCES IN WHICH THE CASH WAS BEING CARRIED O UT BY DRAWING ATTENTION TO THE MEDICAL TREATMENT BEING TAKEN BY H ER MOTHER FROM TIME TO TIME AT MUMBAI AND OTHER PLACES. IN SUPPORT OF THE SUBMISSIONS, AFFIDAVIT OF THE MOTHER AS WELL AS THR EE BORROWERS WAS PLACED ON RECORD. HOWEVER, DISCREPANCIES WERE FOUND IN THE AFFIDAVIT AND THE MEDICAL TREATMENT PLEA WAS TERMED AS MERE AFTER- THOUGHT AND COOKED-UP STORY. VARIOUS OTHER FLAWS WE RE NOTED IN THE ARGUMENTS TAKEN BY THE ASSESSEE WHICH HAVE ALREADY BEEN ENUMERATED IN THE ASSESSMENT ORDER. THE BANK ACCOUN T BEING MAINTAINED BY THE MOTHER HAD NOMINAL BALANCE AND TH E SAID BANK WAS NEVER USED FOR DEPOSIT OF SURPLUS FUND OF MONEY LENDING BUSINESS. THEREFORE, REJECTING THE VARIOUS PLEAS RA ISED BY THE 4 ITA NO.259/JODH/2019 SH. DEVENDRA KUMAR JHANWAR ASSESSMENT YEAR: 2017-18 ASSESSEE, THE AFORESAID AMOUNT WAS ADDED TO THE INC OME OF THE ASSESSEE. 4. THOUGH THE ASSESSEE CONTESTED THE ADDITION BEFOR E LD. CIT(A) VIDE IMPUGNED ORDER DATED 10/06/2019 BY WAY OF ELAB ORATE WRITTEN SUBMISSIONS AS EXTRACTED IN THE IMPUGNED ORDER, HOW EVER, LD. CIT(A) CHOSE TO CONFIRM THE ADDITION SINCE THE ARGU MENTS WERE BEREFT OF DOCUMENTARY EVIDENCES. AGGRIEVED, THE ASS ESSEE IS IN FURTHER APPEAL BEFORE US. 5. UPON CAREFUL CONSIDERATION OF FACTUAL MATRIX AS ENUMERATED IN PRECEDING PARAGRAPHS, WE FIND THAT COMPLETE ONUS TO PROVE THE SOURCE OF CASH OF RS.8 LACS WAS ON THE ASSESSEE. TH E ASSESSEE ATTRIBUTED THE SAME TO PAST SAVINGS AS WELL AS INTE REST ON LOAN EARNED BY HER MOTHER. IN SUPPORT, AFFIDAVIT OF THE MOTHER WAS ALSO FILED. HOWEVER, AS NOTED BY LD. AO, THE ASSESSEE MI SERABLY FAILED TO SUPPORT THE ARGUMENTS WITH DOCUMENTARY EVIDENCES . NO FRESH MATERIAL HAS BEEN PLACED BEFORE US THAT WOULD WARRA NT US TO TAKE A DIFFERENT VIEW IN THE MATTER. HOWEVER, KEEPING IN V IEW THE FACT THAT THE ASSESSEE IS AN INDIVIDUAL EARNING MEAGER INCOME OF RS.3.09 LACS, WE DEEM IT FIT TO AFFORD ANOTHER OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. THEREFORE, WE ARE INCLINED T O RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO RE-ADJUDICA TE THE ISSUE AFTER AFFORDING ANOTHER OPPORTUNITY OF HEARING TO THE ASS ESSEE, WHO IN TURN, IS DIRECTED TO SUBSTANTIATE HIS CASE. 5 ITA NO.259/JODH/2019 SH. DEVENDRA KUMAR JHANWAR ASSESSMENT YEAR: 2017-18 6. THE APPEAL STAND ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. SD/- SD/- (SANDEEP GOSAIN) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , ) / DR, ITAT, JODHPUR 6. '+,-! / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.