DCIT, UDAIPUR V. Shri Lalit Jain, UDAIPUR

ITA 269/JODH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54404 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Section: 142(1); 68

Judgement Text

1 ITA 269(2)10 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 269/JODH/2010 ASSTT. YEAR : 2005-06. THE DCIT, CIRCLE-2, VS. SHRI LALIT JAIN, UDAIPUR. 85, GADIA DEVRA, TEEJKA CHOWK, UDAIPUR. ITA NO. 270/JODH/2010 ASSTT. YEAR : 2005-06. THE DCIT, CIRCLE-2, VS. SHRI LOKESH JAIN, UDAIPUR. 85, GADIA DEVRA, TEEJKA CHOWK, UDAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : NONE DATE OF HEARING : 12.12.2011. DATE OF PRONOUNCEMENT : 15.12.2011. ORDER DATED : 15/12/2011. PER R.K. GUPTA, J.M. THESE ARE TWO APPEALS BY DEPARTMENT I.E. IN CASE O F SHRI LALIT JAIN AND SHRI LOKESH JAIN RELATING TO ASSESSMENT YEAR 2005-06. 2. IN BOTH THESE APPEALS OF THE DEPARTMENT, SIMILAR ISSUE IS INVOLVED, THEREFORE, THEY ARE BEING DISPOSED OFF TOGETHER. 2 3 THE DEPARTMENT IS OBJECTING IN DELETING THE ADDIT ION OF RS. 12,21,890/- IN CASE OF SHRI LALIT JAIN AND DELETION OF ADDITION OF RS. 10, 10,700/- IN CASE OF SHRI LOKESH JAIN. 4. THE ASSESSMENT IN THIS CASES WERE COMPLETED UNDE R SECTION 144. THE BRIEF FACTS DISCUSSED BY LD. CIT (A) IN CASE OF SHRI LALIT JAIN ARE THAT ASSESSEE WAS REQUIRED TO FILE RETURN IN RESPONSE TO NOTICE UNDER SECTION 142(1) I SSUED BY THE ASSESSING OFFICER. HOWEVER, NO RETURN WAS FILED INSPITE OF VARIOUS OPP ORTUNITIES GIVEN BY THE ASSESSING OFFICER. ACCORDINGLY, THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT UNDER SECTION1 44 AND AS PER INFORMATION RECEIVED THAT ASSESSEE HAS M ADE VARIOUS DEPOSITS IN AXIS BANK LTD. HE MADE THE ADDITION OF TOTAL OF DEPOSIT OF R S. 10,60,900/- UNDER SECTION 68. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT ASSESSEE IS A SMA LL TRADER ENGAGED IN RETAIL TRADE OF PAN MASALA, GUTKA ETC. IT WAS STATED THAT HE WAS DOING BUSINESS UNDER THE NAME AND STYLE OF M/S. SHALIMAR TRADING COMPANY HAVING REGISTRATION U NDER THE RVAT , COPY OF REGISTRATION CERTIFICATE WAS ALSO FILED. IT WAS SUB MITTED THAT OUT OF CASH SALES EFFECTED, THE VARIOUS DEPOSITS WERE MADE IN BANK ACCOUNT. IT WAS SUBMITTED THAT THE ASSESSEE BEING A RETAIL TRADER, AS PER PROVISIONS OF SECTION 44AF, T OTAL INCOME OF THE ASSESSEE COMES TO RS. 64,310/-. ACCORDINGLY IT WAS SUBMITTED THAT ASSESS ING OFFICER WAS NOT JUSTIFIED IN TREATING ALL THE DEPOSITS AS UNEXPLAINED UNDER SECT ION 68. AFTER CONSIDERING THE SUBMISSIONS, THE LD. CIT (A) FOUND THAT THE VARIOUS DEPOSITS IN THE BANK ARE NOT DEPOSITS IN TERMS OF SECTION 68 BUT THEY ARE TURNOVER OF THE ASSESSEE. IT WAS SEEN BY HIM THAT TOTAL TURNOVER OF THE ASSESSEE IS RS. 12,86,200/- AND @ 5 % IN VIEW OF SECTION 44AF, THE PROFIT OF THE ASSESSEE COMES TO RS. 64,310/-. ACCORDINGLY , THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 64,310/- AND IN THIS WAY RELIEF OF RS. 12,21,890/- WAS GRANTED TO THE ASSESSEE. 3 5. THE LD. D/R HAS PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE AP PEAL IS BEING DISPOSED OFF AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERI AL ON RECORD. 7. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A), WHO IN OUR VIEW, WAS JUSTIFIED IN HOLDING THAT CASH DEPOSITS MADE IN THE BANK ON VARIOUS OCCASIONS I.E. 37 NUMBER OF TIMES WAS RS. 12,86,200/-. THE DEPOSITS WERE ON ACCOUNT OF CASH SALE PROCEEDS AND THERE WERE VARIOUS WITHDRAWALS ALSO FROM TIME TO TIME. THEREFORE, THI S WAS TURNOVER OF THE ASSESSEE AND NOT THE CASH CREDITS. PROFIT UNDER SECTION 44AF HAS ALR EADY BEEN CONFIRMED BY LD. CIT (A). THEREFORE, WE SEE NO REASON TO INTERFERE WITH THE F INDING OF LD. CIT (A). ACCORDINGLY WE CONFIRM HIS ORDER. 8. IN CASE OF SHRI LOKESH JAIN ALSO, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 10,63,900/- ON THE BASIS OF INFORMATION RECEIVED FR OM THE BANK AS ASSESSEE HAS MADE VARIOUS DEPOSITS. IT WAS SUBMITTED BEFORE LD. CIT ( A) THAT THE ASSESSEE IS A SMALL TRADER ENGAGED IN RETAIL TRADE OF PAN MASALA, GUTKA ETC. A ND THE DEPOSITS ARE NOT ON ACCOUNT OF CASH CREDITS BUT ARE ON ACCOUNT OF SALE PROCEEDS OF HIS BUSINESS/TRADE. HE IS DOING THE BUSINESS UNDER THE NAME AND STYLE OF M/S. SHREE LAX MI TRADERS HAVING REGISTRATION UNDER THE RST. THE LD. CIT (A) FOUND THAT THESE DEPOSITS ARE ON ACCOUNT OF TURNOVER OF THE BUSINESS OF THE ASSESSEE AND NOT THE CASH CREDITS. BY APPLYING PROVISIONS OF SECTION 44AF, HE SUSTAINED AN ADDITION OF RS. 53,200/- AND THE REMAINING ADDITION OF RS. 10,10,700/- WAS DELETED. 9. THE LD. D/R PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 4 10. AFTER CONSIDERING THE ORDERS OF THE ASSESSING O FFICER AND LD. CIT (A), WE FIND THAT THE FACTS ARE SIMILAR TO THE CASE OF SHRI LALIT JAI N, WHERE WE HAVE ALREADY CONFIRMED THE ORDER OF LD. CIT (A) ABOVE. ON THE SAME REASONING, HERE ALSO THE ORDER OF LD. CIT (A) IS CONFIRMED. 11. IN THE RESULT, APPEALS OF THE DEPARTMENT ARE DI SMISSED. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- THE DCIT, CIRCLE-2, UDAIPUR. SHRI LALIT JAIN, UDAIPUR. SHRI LOKESH JAIN, UDAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 269(2)/JODH/2010) BY ORDER, AR ITAT JODHPUR.