ITO, JALORE V. Shri Hukum Singh Rao, JALORE

ITA 278/JODH/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6242 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 278/JODH/2017 (ASSESSMENT YEAR-2009-10 INCOME TAX OFFICER, WARD-2, SHIVAJI NAGAR, JALORE (RAJ). VS HUKUM SINGH RAO, L/H OF LATE SHRI PRITHIVI SINGH RAO, RAO KA MOHALLA, JHUNJHANI ROAD, BHINMAL, DISTT.- JALORE. (APPELLANT) (RESPONDENT) PAN: EBXPS 4998 P REVENUE BY SH. RAVINDER MITTAL DCIT DR ASSESSEE BY NONE DATE OF HEARING 21/05/2018 DATE OF PRONOUNCEMENT 25/05/2018 O R D E R PER: R.C. SHARMA, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-2, JODHPUR DATED 28/03/2017 FOR THE A.Y. 2009-10 IN THE MATTER OF ORDER U/S 143(3) READ WITH SECTION 14 7 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS T HE ACT, FOR SHORT]. 2 ITA 278/JODH/2017 ITO VS HUKUM SINGH RAO 2. IN THIS APPEAL, THE REVENUE IS AGGRIEVED FOR DEL ETING THE ADDITION OF RS. 46,97,000/- MADE ON ACCOUNT OF UNEX PLAINED CASH DEPOSIT U/S 69 OF THE ACT. 3. NO BODY APPEARED ON BEHALF OF THE ASSESSEE IN SP ITE OF GIVING THE OPPORTUNITY, THEREFORE, THE BENCH DECIDED TO DISPOS E OFF THE APPEAL AFTER CONSIDERING THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE AND THE MATERIAL PLACED ON RECORD. 4. I HAD CAREFULLY GONE THROUGH THE ORDERS OF THE A UTHORITIES BELOW AND I FOUND THAT THE ADDITION OF RS. 46,97,000/- SO MADE BY THE A.O. U/S 69 OF THE ACT, WAS DELETED BY THE LD. CIT(A) AFTER OBSERVING A S UNDER: 5.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND S UBMISSIONS OF THE APPELLANT AND I FIND THAT THE AO MADE THE ADDITION OF RS. 46, 97,000/- U/S. 69 OBSERVING THAT THE JUSTIFICATION GIVEN BY THE APPEL LANT WAS NOT SUPPORTED WITH DOCUMENTARY EVIDENCES. THE AO WHILE MAKING THE ADDITION TRIED TO ESTABLISH THAT THE AMOUNT/SOURCE OF THE DEPOSIT WHI CH HAS BEEN CLAIMED TO HAVE RECEIVED FROM ELDER SON OF THE ASSESSEE, WAS N OT THE ACTUAL SOURCE AND THE MONEY SO DEPOSITED WAS OUT OF THE UNDISCLOS ED SOURCES. I FIND THE OBSERVATIONS MADE BY THE AO ARE WITHOUT ANY BASIS A ND NOT SUPPORTED WITH ANY COGENT EVIDENCES. I FIND THAT THE AO DID N OT CONSIDER THE BANK STATEMENT OF SH. HUKAM SINGH FILED BEFORE HIM WHERE IN THE DEBIT ENTRY OF RS. 46,97,000/- IS DULY REFLECTED. THE DATE ON WHIC H THE CASH WAS DEPOSITED IN THE APPELLANTS BANK AND DATE OF WITHDRAWAL FROM ACCOUNT OF ASSESSEE HAS A CHRONOLOGICALLY PROGRESSIVE LINKAGE OF EVENTS , WHICH NEGATES THE 3 ITA 278/JODH/2017 ITO VS HUKUM SINGH RAO AOS OBSERVATION THAT CONSIDERATION SO RECEIVED FRO M SH. HUKUM SINGH, WAS NOT THE ACTUAL SOURCE. HERE SOURCE, PURPOSE AND SEQUENCE OF EVENT DULY ESTABLISH THAT THERE WAS CERTAINLY A NEXUS BET WEEN THE MOUNT RECEIVED BY SH. HUKUM SINGH AND AMOUNT DEPOSITED BY THE APPELLANT IN HIS BANK ACCOUNT. 5.3.1 IT MAY BE NOTED THAT SHRI HUKUM SINGH RAO, EL DER SON OF THE ASSESSEE WAS REGULARLY ASSESSED TO TAX AT MUMBAI AND FILED THE R ETURN OF INCOME WITH PAN EARPS6704L. FROM THE ASSESSMENT ORDER, NOWHERE IT IS PROVED THAT THE AO EVER DOUBTED THE CAPACITY OF SH. HUKUM SINGH RAO. ONCE THE APPELLANTS LEGAL HEIR MAKES A CLAIM THAT AMOUNT WA S RECEIVED FROM SH. HUKUM SINGH RAO, THEN BURDEN SHIFTS ON THE AO TO ES TABLISH THAT SH. HUKUM SINGH RAO DID NOT HAVE THE CAPACITY TO GIVE M ONEY TO HIS FATHER. THE APPELLANT BY FILING VARIOUS EVIDENCES ESTABLISH ED THAT LATE SH. PRIVTHI SINGH RAO (THE DECEASED APPELLANT)WAS SUFFERING FRO M CANCER AND UNDERGOING TREATMENT. FOR HIS TREATMENT, HIS ELDER SON SH. HUKUM SINGH GAVE MONEY, HENCE, THE SAME CANNOT BE TREATED AS LO AN. ULTIMATELY, SH. PRIVTHI SINGH RAO DIED ON 13-03-2013 AFTER PROLONGE D ILLNESS. 5.3.2 I FIND THAT IN THE INSTANT CASE, THE APPELLAN T HAS DULY DISCHARGED HIS ONUS BY FILING ALL POSSIBLE EVIDENCES/DETAILS TO PROVE THE SOURCE OF THE DEPOSITS. THE AOS ALLEGATION DOUBTING THESE EVIDENCES ARE SIMPLY BASED ON HIS ASSUMPTION AND PRESUMPTION. ANY ADDITION BASED ON A SSESSING OFFICERS FANCIES AND WHIMS CANNOT BE SUSTAINED. THE DECISION S RELIED ON BY THE APPELLANT ARE QUITE RELEVANT ON THE ISSUE IN HAND. ACCORDINGLY, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TRE ATING THE CASH DEPOSIT OF RS. 46,97,000/- AS UNEXPLAINED. THE ADDITION MADE B Y THE ASSESSING OFFICER AT RS. 46,97,000/- IS DELETED. THE GROUNDS OF APPEA L ARE ALLOWED. 4 ITA 278/JODH/2017 ITO VS HUKUM SINGH RAO 5. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN FURTHER APPEAL BEFORE THE ITAT. 6. I HAD CAREFULLY GONE THROUGH THE ORDERS OF THE A UTHORITIES BELOW. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER FOUND THAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 46,97,0 00/- IN HIS SAVING BANK ACCOUNT MAINTAINED WITH SBBJ, BRANCH-BHINMAL. THE A SSESSEE DID NOT FURNISH HIS RETURN OF INCOME FOR AY 2009-10. ACCORDINGLY, T HE AO INITIATED THE PROCEEDINGS U/S. 147/T48 BY ISSUING NOTICE U/S. 148 OF THE ACT ON 09-05- 2012. IN THE ASSESSMENT SO FRAMED, THE ASSESSING OF FICER ADDED THE AMOUNT SO DEPOSITED IN THE BANK ACCOUNT. BY THE IMPUGNED O RDER, THE LD. CIT(A) HAS DELETED THE ADDITION BY OBSERVING THAT THE AMOUNT S O DEPOSITED WAS RECEIVED FROM THE SON OF ASSESSEE OUT OF HIS BANK WITHDRAWALS. THE SON OF THE ASSESSEE WAS REGULARLY ASSESSED TO TAX. THE LD. CIT( A) HAS ALSO OBSERVED THAT NO WHERE, THE ASSESSING OFFICER HAS DOUBTED TH AT SHRI HUKUM SINGH RAO, THE ELDER SON OF THE ASSESSEE, WHO HAS GIVEN TH E MONEY, HAS NO CAPACITY TO ADVANCE THE FUND FOR THE TREATMENT OF F ATHER. THE DETAILED FINDINGS SO RECORDED BY THE LD. CIT(A) ARE AS PER T HE MATERIAL ON RECORD, THEREFORE, DO NOT REQUIRE ANY INTERFERENCE IN OUR P ART. ACCORDINGLY, THE SAME IS HEREBY UPHELD. 5 ITA 278/JODH/2017 ITO VS HUKUM SINGH RAO 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 25/05/2018. SD/- [R.C. SHARMA] ACCOUNTANT MEMBER DATED : 25/05/2018 *RANJAN COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6. GUARD FILE (ITA NO. 278/JODH/2017) ASSISTANT REGISTRAR JODHPUR BENCH