ITO, Jaipur V. MUKESH SEXENA, Jaipur

ITA 273/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5159 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ROSHANTA MEENA
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Income from undisclosed sources; Salary income; Opportunity of being heard
• Section: 143(3); 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 273/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 I.T.O., WARD-7(1), JAIPUR. CUKE VS. MUKESH SAXENA, 262, AWHO COLONY, AMBA BARI, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ALCPS 7514 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : MRS. ROSHANTA MEENA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/05/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/06/2016. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 11/12/2012 OF THE LEARNED C.I.T.(A), BIKANER (CAMP A T JAIPUR) FOR A.Y. 2009-10. THE SOLE EFFECTIVE GROUND OF APPEAL IS AS UNDER:- (I) THE CITI(A) HAS ERRED IN DELETING THE ADDITION O F RS. 59,98,000/- MADE FOR THE UNEXPLAINED DEPOSITS OF CASH IN THE BANK ACCOUNT, DESPITE THE FACT AND CIRCUMSTANCES DETAILED BY THE ASSESSING OFFICER. 2 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA 2. THE SOLE GROUND OF THE REVENUES APPEAL IS AGAINS T DELETING THE ADDITION OF RS. 59,98,000/- MADE ON ACCOUNT OF UNEX PLAINED DEPOSITS IN THE BANK ACCOUNTS. THE ASSESSEE FILED HIS RETURN ON 28/07/2009 DECLARING TOTAL INCOME OR RS. 14,51,520/-. HE HAS INCOME FROM SALARY, INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. THE CA SE WAS SCRUTINIZED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE LD ASSESSING OFFICER OBSERVED THAT DURING THE ASSESSME NT PROCEEDINGS, IT IS NOTICED THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNT ING TO RS. 23.00 LACS IN HIS SAVINGS BANK ACCOUNT MAINTAINED WITH THE AXIX BANK LTD. AND RS. 36,98,000/- MAINTAINED WITH HDFC BANK LTD. THE LD ASS ESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BEING HEARD, WHICH WAS AVAILED BY THE ASSESSEE VIDE LETTER DATED 21/12/2011. IT IS CLAIME D THAT THE ASSESSEE WANTED TO SHIFT MUMBAI DUE TO HIS JOB AND WAS PLANNIN G TO PURCHASE A RESIDENTIAL UNIT IN MUMBAI. SINCE THE COST OF RESID ENTIAL ACCOMMODATION WAS COMPARATIVELY HIGH IN MUMBAI, THEREFORE, TO IMPL EMENT HIS PLANNING THE ASSESSEE DECIDED TO SALE HIS JAIPUR PROPERTY AS IT COULD FETCH CONSIDERABLE HIGH VALUE IN COMPARISON TO DEHRADUN P ROPERTY, FOR WHICH HE SEARCHED THE BUYER NAMELY SHRI INDER KUMAR GURJAR A ND GOT ENTERED INTO AN AGREEMENT ON 25/4/2008 FOR SALE OF HIS JAIPUR PR OPERTY FOR CONSIDERATION OF RS. 80.00 LACS. IN PURSUANCE TO AG REEMENT, THE ASSESSEE 3 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA RECEIVED RS. 60.00 LACS AS ADVANCE ON DIFFERENT DAT ES. THE AR OF THE ASSESSEE BEFORE THE LD ASSESSING OFFICER HAS SUBMIT TED THAT VIDE AGREEMENT DATED 25/4/2008 AND COPY OF THE AFFIDAVIT OF SHRI INDER KUMAR GURJAR DATED 22/12/2011 IN SUPPORT OF HIS CONTENTIO N THAT HE HAS RECEIVED RS. 60.00 LACS. THE LD ASSESSING OFFICER ASKED THE A SSESSEE TO PRODUCE SHRI INDER KUMAR GURJAR FOR CROSS VERIFICATION. ON 28/12/2011, THE AR OF THE ASSESSEE FURNISHED COPY OF ORDER DATED 10/4/200 6 REGARDING ACQUISITION OF LAND IN NIMRANA AND DETAILS OF COMPE NSATION RECEIVED BY SHRI INDER KUMAR GURJAR AND HIS FAMILY MEMBERS. THE LD ASSESSING OFFICER FURTHER HELD THAT SHARE OF SHRI INDER KUMAR GURJAR IN IMPUGNED LAND ACQUIRED BY THE RIICO WAS IN BETWEEN 1/6 TO 1/18 IN V ARIOUS KHASRAS AND HE CALCULATED HIS SHARE AT RS. 30.00 LACS. ANOTHER LAND WAS ACQUIRED BY THE RIICO ON 10/4/2006 AND THE PAYMENT WAS RECEIVED BY SHRI INDER KUMAR GURJAR SUBSEQUENTLY. BUT AFTER THE DATE OF CA SH DEPOSIT, SHRI INDER KUMAR GURJAR RECEIVED RUPEES MUCH EARLIER TO DATE O F AGREEMENT. AS SUCH THERE IS CONSIDERABLE TIME GAP IN BETWEEN RECEIPT OF COMPENSATION AND ALLEGED MONEY TRANSACTIONS TO ASSESSEE, WHICH VARIED TO 24 TO 30 MONTHS. THE DETAILS OF AVAILABILITY OF CASH IN HAND WITH THE TRANSFEROR AT THE TIME OF MAKING CASH PAYMENTS WERE NOT FURNISHED. THEREFORE, H E CONCLUDED THAT GENUINENESS OF THE TRANSACTIONS HAD NOT BEEN PROVED BY THE ASSESSEE, 4 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA CREDITWORTHINESS OF THE TRANSFEROR WAS ALSO NOT EXPLA INED. THE TRANSACTION WAS MADE IN CASH, WHICH IS DOUBTED BY THE ASSESSING O FFICER, THEREFORE, HE HELD THAT THE ASSESSEE FAILED TO EXPLAIN THE SOU RCE OF CASH DEPOSITED IN THE BANK ACCOUNTS. ACCORDINGLY HE MADE ADDITION OF RS. 59.98 LACS AS UNEXPLAINED CASH DEPOSITED IN THE BANK ACCOUNTS. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALLO WED THE APPEAL BY OBSERVING THAT THE ASSESSEE THROUGHOUT HIS CARRIER WAS IN SERVICE WITH THE GOVERNMENT CORPORATION/PRIVATE COMPANIES HAVING INC OME FROM SALARY, HOUSE PROPERTY AND INTEREST INCOME. THE ASSESSEE HA D DEPOSITED RS. 59.98 LACS IN HIS TWO BANK ACCOUNTS BETWEEN APRIL 20 08 TO SEPTEMBER, 2008. THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE D EPOSIT IN THE BANK ACCOUNT AS OUT OF THE ADVANCE OF RS. 60.00 LACS REC EIVED FROM SHRI INDER KUMAR GURJAR AGAINST THE AGREEMENT DATED 25/4/2008 FOR SALE OF THE HOUSE SITUATED AT JAIPUR FOR RS. 80.00 LACS, FOR WHI CH HE FILED NOTARIZED COPY OF THE AGREEMENT DATED 25/4/2008, AFFIDAVIT OF SHRI INDER KUMAR GURJAR, COPY OF ACQUISITION ORDER DATED 10/4/2006 O F THEIR LAND ACQUIRED BY THE LAND ACQUISITION OFFICER IN SUPPORT OF THE A VAILABILITY OF THE SOURCE OF THE FUND IN THE HANDS OF SHRI INDER KUMAR GURJAR . THE LD ASSESSING 5 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA OFFICER MADE ADDITION ONLY THAT THE ASSESSEE HAS NO T PRODUCED SHRI INDER KUMAR GURJAR FOR VERIFICATION. THERE IS A TIME GAP B ETWEEN AMOUNT RECEIVED BY SHRI INDER KUMAR GURJAR ON ACQUISITION OF HIS LAND AND PAYMENT TO THE ASSESSEE AGAINST AGREEMENT FOR SALE OF THE HOUSE. THE AVAILABILITY OF THE FUND AS PER HIS ORDER WAS ONLY RS. 30.00 LACS AS AGAINST RS. 59.98 LACS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND THEREFORE, THE CREDITWORTHINESS OF THE SHRI INDER KU MAR GURJAR WAS NOT SATISFACTORILY EXPLAINED. HOWEVER, THE LD ASSESSING OFFICER HAD RAISED QUERY REGARDING DEPOSIT IN THE BANK ACCOUNT ON 20/1 2/2011 AGAINST WHICH THE ASSESSEE FILED REPLY ON 21/12/2011 EXPLAINING T HE SOURCE OF DEPOSIT IN THE BANK ACCOUNT. THE LD CIT(A) OBSERVED THAT THE ASS ESSEE HAS FURNISHED EVIDENCE AND EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT. THERE WAS A CLOSE NEXUS OF THE AMOUNT RECEIVED AS PER SALE AGREEMENT AND THE AMOUNT DEPOSITED IN THE BANK ACCOUNT. THE L D ASSESSING OFFICER ONLY CONSIDERED THE SOURCE OF RS. 30.00 LACS WHEREAS AS PER DOCUMENT, SHRI INDER KUMAR GURJAR RECEIVED RS. 57.73 LACS AND CONSIDERED TOGETHER THE FAMILY OF SHRI INDER KUMAR GURJAR HAS RECEIVED COMPENSATION OF RS. 349.81 LACS. ONLY BECAUSE THERE IS TIME GAP BETWEEN THE DATE WHEN THE COMPENSATION RECEIVED CASH DEPOSITED IN THE BANK AC COUNTS, CANNOT BE GROUND FOR ADDITION. HE FURTHER RELIED ON THE DECIS ION OF HON'BLE SUPREME 6 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA COURT IN THE CASE OF CIT VS P.K. NOORJAHA 237 ITR 570 WHEREIN IT HAS BEEN HELD THAT SECTION 69 GIVES THE DISCRETION TO T HE ASSESSING OFFICER NOT TO MAKE ADDITION EVEN IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFACTORY CONSIDERING THE FACTS AND CIRCUMSTANCE S OF THE CASE. IT IS UNDISPUTED FACT THAT THE ASSESSEES INCOME FROM SAL ARY AND INTEREST, THERE IS NO OTHER SOURCE OF INCOME, WHICH PROVED THAT HE H AD GENERATED UNACCOUNTED INCOME. THEREFORE, IT IS PRESUMED THAT C ASH DEPOSITED BY THE ASSESSEE, WHICH WAS RECEIVED FROM SHRI INDER KUMA R GURJAR. ACCORDINGLY, HE DELETED THE ADDITION. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. AT TH E OUTSET, THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFO RE THE LD CIT(A). HE FURTHER ARGUED THAT THE ASSESSEE IS A BACHELOR OF E NGINEERING (CIVIL) FROM GOVT. ENGINEERING COLLEGE, JABALPUR IN THE YEAR 198 7 AND M-TECH FROM IIT KANPUR IN 1990, JOINED RIICO LTD. AS ASSISTANT REGI ONAL MANAGER IN THE YEAR 1992. IN COURSE OF TIME, HE BECAME SENIOR REGI ONAL MANAGER POSTED AT BHIWADI FROM WHERE HE TOOK VOLUNTARILY RETIREMENT IN FEBRUARY,2008 IN VIEW OF THE BETTER JOB OPPORTUNITY HE RECEIVED FROM M/S JSW AT MUMBAI. WHEN HE WAS IN JOB, HE PURCHASED A HOUSE AT 262, AWH O COLONY, AMBA 7 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA BARI, JAIPUR FOR RS. 3.35 LACS IN THE YEAR 2000. HE ALSO PURCHASED A PLOT NO. 300, VASANT VIHAR, PHASE-II, DEHRADUN IN THE YE AR 2001, ON WHICH HE CONSTRUCTED A HOUSE IN THE YEAR 2002 TO 2004. THE AS SESSEE WANTED TO DISPOSAL OF THE PROPERTY AMBA BARI, JAIPUR, FOR WHIC H HE ENTERED INTO AN AGREEMENT WITH SHRI INDER KUMAR GURJAR OF KALI PAHAD I, TEHSIL-BEHROR FOR SALE OF THIS HOUSE FOR RS. 80.00 LACS VIDE AGREEMEN T DATED 25/4/2008. THE ASSESSEE RECEIVED RS. 60.00 LACS FROM DIFFERENT DAT ES OUT OF THIS RS. 59.98 LACS WAS DEPOSITED IN THE TWO BANK ACCOUNTS. SHRI IND ER KUMAR GURJAR HAS FILED AN AFFIDAVIT THAT HE HAD MADE AN AGREEMENT WIT H THE ASSESSEE AND PAID RS. 60 LACS TO HIM. IT IS UNDISPUTED FACT THAT SHRI INDER KUMAR GURJAR HAD NOT APPEARED BEFORE THE ASSESSING OFFICER BUT T HE ASSESSEE HAS PRODUCED COPY OF KHASARA GIRDAWARI OF THE LAND AND T HE ORDER OF ACQUISITION OF THE LAND, WHO HAD RECEIVED COMPENSATI ON OF RS. 57.73 LACS. FURTHER HIS FAMILY ALSO RECEIVED COMPENSATION OF RS . 349.80 LACS, WHICH IS SUFFICIENT TO PROVE THE CASH DEPOSITED IN THE BANK ACCOUNT. HE FURTHER RELIED ON THE FOLLOWING CASE LAWS:- (I) SHRI HEMANT PRABHAKAR VS. DCIT IN ITA NO. 684/JP /1998 DATED 12/3/2004 (JP). (II) VINOD KUMAR GOYAL VS ACIT IN ITA NO. 310/JP/200 8 DATED 30/05/2008 (JP). 8 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA (III) CIT VS SMT. P.K. NOORJAHAN 237 ITR 570 (SC). (IV) CIT VS DAYA CHAND JAIN VAIDYA (1975) 98 ITR 280 (ALL.). (V) CIT VS V.N. SWAMY (2000) 241 ITR 363 (MAD.). (VI) HARISH KUMAR VS. DCIT 85 ITD 366 (HYD.). THEREFORE, HE PRAYED TO UPHOLD THE ORDER OF THE LD C IT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT THAT THERE WAS AN AGREEMENT BETWEEN THE ASSESSEE AND SHRI INDER KUMAR GURJAR FOR SALE OF PROPERTY SITUATED AT AMBA BARI, JAIPUR, FOR HE RECEIVED CASH OF RS. 60.00 LACS FROM THE PURCHASER, WHO HAD F ILED AFFIDAVIT BEFORE THE ASSESSING OFFICER. THERE ARE NUMBERS OF EVIDENCE S THAT THE PURCHASER HAVE RECEIVED COMPENSATION FROM THE LAND ACQUISITIO N OFFICER HIMSELF AS WELL AS HIS FAMILY MEMBERS. IT IS ALSO A FACT THAT S HRI INDER KUMAR GURJAR HAS NOT BEEN APPEARED BEFORE THE LD ASSESSING OFFIC ER BUT THE ASSESSEE HAS DISCHARGED HIS ONUS BY PRODUCING THE COPY OF AF FIDAVIT, COPY OF KHASARA GIRDAWARI AND COPY OF ACQUISITION ORDER, WHIC H PROVED THAT PURCHASER WAS HAVING SUFFICIENT CASH AT THE TIME OF PURCHASING OF HOUSE AT JAIPUR. AS PER SECTION 69, THE LD ASSESSING OFFI CER HAS DISCRETION NOT TO MAKE ADDITION IF ASSESSEES EXPLANATION IS NOT FOUN D SATISFACTORY BUT THE 9 ITA NO. 273/JP/2013 ITO VS MUKESH SAXENA FACTS AND CIRCUMSTANCES OF THE PRESENT CASE SUGGEST THAT NO ADDITION IS REQUIRED TO BE MADE IN THE GIVEN CIRCUMSTANCES AS H ELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS P.K. NOORJAHA (S UPRA), THEREFORE, WE UPHOLD THE ORDER OF THE LD CIT(A). 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 22/06/2016. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 ND JUNE,2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD- 7(1), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI MUKESH SAXENA, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.273/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR