Jaswant Singh Meel, SRIGANGANAGAR V. ITO, SRIGANGANAGAR

ITA 264/JODH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7842 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Assessee Lawyers: U C JAIN
• Keywords: Unexplained cash credit
• Section: 68; 145

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JODHPUR BENCH: J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) I.T.A. NO. 264 /JODH/201 4 (A.Y. 200 1 - 0 2 ) SHRI JASWANT SINGH MEEL V S ITO, 74, KOTWALI ROAD WARD - 2 , SRIGANGANAGAR. SRIGANGANAGAR. PAN NO. ABBPM 9383 J (APPELLANT) (RESPONDENT) ASSESSEE BY : - SHRI U.C. JAIN DEPARTMENT BY : - SHRI JAI SINGH - D.R. DATE OF HEARING : 22 /0 9 /201 4 DATE OF PRONOUNCEMENT : 08 / 1 0 /2014 O R D E R P E R HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE, FOR A.Y. 2009 - 10 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) DATED 2 2 . 0 1.201 4 . 2 2. BRIEFLY STATED THE FACTS OF THE CASE A RE THAT THE ASSESSEE DERIVED INCOME FROM RENT AND INTEREST. FOR A.Y. 2009 - 10, HE FILED HIS RETURN OF INCOME ON 29.03.2010 DECLARING TOTAL INCOME OF RS. 3,65,180/ - , BESIDES AGRICULTURAL INCOME OF RS. 36,400/ - AS AGAINST WHICH, ASSESSMENT HAS BEEN COMPLETED AT RS. 23,44,380/ - . THE A.O HAS ADDED RS. 8,50,000/ - ON ACCOU NT OF UNEXPLAINED DEPOSIT IN BANK AND RS. 11,29,200/ - AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE LD. CIT(A) HAS ALSO CONFIRMED BOTH THESE ADDITIONS. NOW THE ASSESSEE IS FURTHER AGGRIEVED AND HAS DISPUTED BOTH THESE SUSTAINED ADDITIONS. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT A S PER AIR INFORMATION, THE ASSESSEE DEPOSITED CASH IN JAM M U AND KASHMIR BANK LTD. JAIPUR JKB MI ROAD, JA IPUR OF RS. 35,00,000/ - . HOWEVER, ON RECONCIL I ATION OF THE CASH DEPOSIT ENTRIES WITH RESPECT TO CASH BOOK OF THE ASSESSEE MAINTAINED AND SOURCE OF WITHDRAW A LS AS SHOWN IN THE CASH BOOK AND COPY OF ACCOUNT FUR NISHED , IT IS SEEN THAT AS PER CASH BOOK MAINTAI NED AND PRODUCED BY THE ASSESSEE THERE W AS OPENING BALANCE OF RS. 1,07,63 9/ - AS ON 1 - 8 - 2008. ON THE SAME DATE, THE ASSESSEE DEPOSITED THE CASH AMOUNT OF RS. 8,50,000/ - WITH THE ABOVE BANK IN HIS ACCOUNT NO. 6161. THE ASSESSEE VIDE ITS LETTER DATED 16 - 11 - 201 1 CONTENDED THAT THE 3 ASSESSEE WITHDR E W A SUM OF RS, 15,00,000/ - IN CASH FROM THE BOOKS OF M/S ASHOK KUMAR DAVENDER KUMAR MEEL, UDAIPUR AND PASSING NECESSARY ENTRY IN ITS CASH BOOK THEREAFTER DEPOSITED THE SUM OF RS. 8,50,000/ - IN THE ABOVE SAID BANK ACCOUNT ON 1 - 8 - 2008 . HERE, IT MAY BE MENTIONED THAT THE ASSESSEE VIDE ITS LETTER DATED 2 - 9 - 2011 FURNISHED COPY OF ACCOUNT IN THE BOOKS OF M/S ASHOK KUMAR D E VENDER KUMAR MEEL, HO UDAIPUR FOR THE PERIOD 1 - 4 - 2008 TO 31 - 3 - 2009 RELEVANT TO THE A.Y. 2009 - 10. ON PERUSA L OF THE SAID COPY OF ACCOUNT, IT WA S SEEN THAT THERE WA S NO CASH WITHDRAW A L OF RS. 15,00,000/ - ON 1 - 8 - 2008 AS CONTENDED BY THE ASSESSEE VIDE ITS REPLY DATED 16 - 11 - 2011. T HE ASSESSEE HA D FURNISHED PHO TO COPY OF THE SAID ACCOUNT. TH IS CLEARLY SHOWED THAT THE PHOTO COP Y AS FURNISHED BY THE ASSESSEE WA S A BOGUS ONE AND HE TRIED TO EXPLAIN HIS UNEXPLAINED CASH DEP OSIT WITH THE SAID BANK ACCOUNT . THE A.O, THEREFORE , ADDE D THE SUM OF RS. 8,50,000/ - AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT . THE A.O HAS REJECT ED THE BOOKS OF ACCOUNT BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE ACT. THEREAFTER, ON PERUSAL OF THE BALANCE SHEET, IT WAS SE E N THAT THERE ARE FOLLOWING UNSECURED LOANS/DEPOSITS: 4 AMT. INT T TO TAL 1. SH. TEJ P AL NUNIA RS. 5,92,000 RS. 5,92,000 2. SH. JAIKISHAN KOTHARI RS. 2,00,000 12000 RS. 2,12,000 3. SMT.SUNITA SHARDA RS. 1,00,000 8400 RS. 1, 08,400 4. SH. DINESH KUMAR JAIN RS. 1,00,000 8400 RS. 1,08,400 5. SH. S URINDER MONIHAR RS.1,00,000 8400 RS. 1,08,400 RS. 11,29,200 T HE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE DEPOSITS AS PER THE CONDITIONS LAI D DOWN UNDER SEC. 68 OF THE I.T. ACT, 1961. THE ASSESSEE SUBMITTED THAT ALL THE PAYMENTS WERE THROUGH ACCOUNT PAYEE CHEQUES AND ALL THE CREDITORS ALSO GAVE THEIR CONFIRMATORY LETTERS. BUT THE A.O WAS NO AGREEABLE WITH THE CAPACITY OF THE DEPOSITORS AND H AS ADDED A SUM OF RS. 11,29,200/ - U/S 68 OF THE ACT. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) WHO HAS ALSO CONFIRMED THESE ADDITIONS. IN FACT, NOBODY HAS APPEARED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS CONFIRMED THE ADDITION EXP ARTE. 4. BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. THE LD. A.R SHRI U.C. JAIN VEHEMENTLY ARGUED THAT BOTH THE ADDITIONS ARE UNCALLED FOR AND UNJUSTIFIED. REGARDING ADDITION OF RS. 8,50,000/ - , IT WAS STATED THAT THE ASSESSEE HAD PRODUCED PROOF OF WITHDRAW A L FROM THE FIRM OF RS. 15 LAKHS ON 1.8.2008 AND DEPOSITED OUT OF IT A SUM OF RS. 8,50,000/ - IN HIS BANK ACCOUNT. THE ASSESSEE HAD PRODUCED PROOF IN THE FORM OF ACCOUNT FROM THE BOOKS OF M/S ASHOK 5 KUMAR DEVENDER KUMAR MEEL. THER EAFTER, THE A.O DID NOT ASK THE ASSESSEE TO PROVE ANYTHING FUR T HER. HE HAS NOT BOTHERED TO EXAMINE M/S ASHOK KUMAR DEVENDER KUMAR MEEL. THEREFORE, THIS ADDITION IS UNJUSTIFIED. HE FURTHER ARGUED THAT THE LD. CIT(A) HAS PASSED THIS ORDER EXPARTE. HOWEVE R, REMANDING THE MATTER BACK WOULD BE A FUTILE EXERCISE AS HE IS GOING TO CONFIRM THESE ADDITIONS. IN THE LIGHT OF THE ABOVE, HE HAS OBSEQUIOUSLY PLEADED THAT THE MATTER AND BE DECIDED JUDICIOUSLY BASED ON THE EVIDENCE PRODUCED BY THE ASSESSEE DURING ASSE SSMENT PROCEEDINGS AND SHOULD NOT REMAND THE MATTER BACK TO THE LD. CIT(A). 5. ON THE OTHER HAND, THE LD. D.R HAS INSISTED THAT THE MATTER GO BACK TO THE LD. CIT(A) HAS HE HAS NOT DECIDED THE ISSUES ON MERITS. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS W E HAVE FOUND THAT THE ASSESSEE HAD PRODUCED ENOUGH EVIDENCE BEFORE THE A.O AND COPIES THEREOF ARE ENCLOSED IN ASSESSEES PAPER BOOK FILED B EFORE US. THE DEPARTMENT HAS NOT DENIED THAT THESE EVIDENCE WERE NOT PRODUCED BEFORE THE A.O, RATHER, FROM THE ASSES SMENT ORDER ITSELF , T HE PRODUCTION OF THESE EVIDENCE BEFORE THE A.O GETS CERTIFIED. WHEN THE ASSESSEE HAS PROVED THAT WITHDRAWAL OF RS. 15 LAKHS WAS MADE FROM 6 M/S ASHOK KUMAR DEVENDRA KUMAR MEEL, UDAIPUR, THE A.O CANNOT SIMPLY DOUBT IT AND BRAND IT AS BOG US WITHOUT ANY CONTRARY EVIDENCE ON RECORD. THEREFORE, WE DO NOT APPROVE THE ADDITION OF THIS AMOUNT IN ASSESSEES HANDS AND ORDER DELETION OF THE SAME. 7. SECOND ISSUE IS REGARDING ADDITION OF RS. 11,29,200/ - U/S 68 OF THE ACT. IT WAS ARGUED BY THE LD. A.R THAT WHEN THE A.O HAS REJECTED BOOKS OF ACCOUNT U/S 145(3) OF THE AC T , HOW CAN ANY ADDITION BE MADE U/S 68 OF THE ACT ON THE BASIS OF ENTRIES RECORDED IN THOSE REJECTED BOOKS. TO SUPPORT HIS CONTENTION, THE LD. A.R SHRI U.C. JAIN HAS RELIED ON VARIOU S JUDGMENTS INCLUDING THAT OF THE HON'BLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF ARAVALI TRADING COMPANY VS. ITO REPORTED IN 20 0 8 [220] CTR [RAJ] 622, COPY OF WHICH IS ENCLOSED AT PAGES 16 ONWARDS OF THE ASSESSEES PAPER BOOK. 8. ON THE CONTR ARY, THE LD. D.R HAS SUPPORTED THE FINDINGS OF THE AUTHORITIES BELOW. 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE HAVE FOUND THAT THE A.O HIMSELF REJECTED THE BOOKS OF ACCOUNT AND INVOKED THE PROVISIONS OF SECTION 145 OF THE ACT WHICH IS CLEARLY EVIDENT FROM LAST BUT ONE 7 PAGE OF HIS ORDER. NO ADDITION U/S 68 CAN BE MADE BECAUSE ONLY THOSE AMOUNTS WHICH ARE FOUND CREDITED IN THE BOOKS OF THE ASSESSEE CAN BE ADDED U/S 68 OF THE ACT. IN ANY OTHER CASE, THE ASSESSEE HAD PRODUCED REQUISITE EVIDENCE IN THE F ORM OF CONFIRMATIONS FROM AGRICULTURAL LAND THOSE PERSONS WHICH ARE DETAILED AS UNDER: AMT. INT T TOTAL 1. SH. TEJ PAL NUNIA RS. 5,92,000 RS. 5,92,000 2. SH. JAIKISHAN KOTHA RI RS. 2,00,000 12000 RS. 2,12,000 3. SMT.SUNITA SHARDA RS. 1,00,000 8400 RS. 1, 08,400 4. SH. DINESH KUMAR JAIN RS. 1,00,000 8400 RS. 1,08,400 5. SH. S URINDER MONIHAR RS.1,00,000 8400 RS. 1,08,400 RS. 11,29,200 THE ASSESSEE PRODUCED CONFIRMATORY LETTERS FROM THE DEPOSITORS AND ALL PAYMENTS ARE THROUGH ACCOUNT PAYEE CHEQUES. THE CUMULATIVE EFFECT OF THESE EVIDENCE AND ABOVE NOTED FACTS AND JUDGMENT IN THE CASE OF ARAVALI TRADING COMPANY [SUPRA] IS THAT THIS ADDITION MADE U/S 68 OF THE ACT HAS TO BE DELETED FROM THE HANDS OF THE ASSESSEE. WE ORDER ACCORDINGLY AND ALLOW GROUND NO. 2 OF ASSESSEES APPEAL. 10. THE OTHER GROUNDS OF APPEAL WERE NOT PRESSED BY THE LD. A.R. 8 11 . IN THE RESULT, THE APPEAL OF T HE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 08 TH OCTOBER , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM M ARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08 TH OCTOBER, 2014 VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR