HANUMAN PD. MANGAL, Jaipur V. ITO, Jaipur

ITA 280/JPR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59552 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 04-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Salary income
• Section: 143(3)

Judgement Text

1 ITA 280-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ITA NO. 280/JP/2011 ASSTT. YEAR : 2006-07. SHRI HANUMAN PRASAD MANGAL, VS. THE INCOME-TAX OFF ICER, E-85, SIDHARTH NAGAR, WARD 6(1), MALVIYA NAGAR, JAIPUR. JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 16.02.2012. DATE OF PRONOUNCEMENT : 17.02.2012. ORDER DATE OF ORDER : 17/02/2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE ADDI TION OF RS. 3,02,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK. 3. THE ASSESSEE DERIVES INCOME FROM SALARY AND CAR HIRING. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS RECEIVED SALARY OF R S. 40,800/- FROM M/S. ANJALI SAREES AND EARNED NET PROFIT OF RS. 92,220/- FROM CAR HIR ING CHARGES. THE ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 98,7 72/- WHICH WAS ASSESSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 AT RS. 4,07,943/ - BY MAKING ADDITION OF RS. 2 3,02,000/- ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOU NT BY HOLDING THE SAME AS UNEXPLAINED. 4. THE DETAILED WRITTEN SUBMISSIONS WERE FILED BEFO RE LD. CIT (A) ALONG WITH BALANCE SHEET OF FINANCIAL YEARS 2004-05 AND 05-06. IT WAS EXPLAINED THAT THERE WAS OPENING BALANCE AVAILABLE WITH THE ASSESSEE AS ON 1.4.2005. IT WAS FURTHER SUBMITTED THAT THE AO HAS NOT DOUBTED THE INCOME DECLARED AND THE IN-FLOW OF FUNDS SHOWN IN CASH FLOW STATEMENT. IT WAS FURTHER SUBMITTED THAT THE AO MA DE ADDITION ON THE BASIS THAT REPLY FILED BY ASSESSEE IS NOT FOUND CONVINCING AND LD. C OUNSEL OF THE HAS ALSO SURRENDERED THE SAME DURING THE ASSESSMENT PROCEEDINGS. AN AFFIDAV IT TO THIS EFFECT WAS FILED BEFORE LD. CIT (A) THAT ASSESSEE NEVER AUTHORIZED THE A/R TO S URRENDER THE AMOUNT BEFORE AO. ALL THE DETAILS RELATING TO INCOME-TAX RETURN AND BALAN CE SHEET ETC. FOR IMMEDIATELY PRECEDING YEARS I.E. 2005-06 AND 06-07 WERE FILED BEFORE AO. COPIES OF THE SAME WERE ALSO FILED BEFORE LD. CIT (A). AFTER CONSIDERING THE SUBMISSI ONS AND PERUSING THE MATERIAL ON RECORD, THE LD. CIT (A) WAS ALSO NOT SATISFIED WITH THE CONTENTION OF THE ASSESSEE. HE OBSERVED THAT MERELY BY PRODUCING FABRICATED CASH B OOK AND INCORPORATING CERTAIN JOURNAL ENTRIES IN CASH BOOK THE APPELLANT CANNOT BE ALLOWE D ANY RELIEF. THE LD. CIT (A) FURTHER NOTED THAT ASSESSEE HAS SHOWN PETTY SALARY INCOME O F RS. 40,800/- BUT NO CONFIRMATION HAS BEEN FILED EVEN IN RESPECT TO SALARY INCOME. TH E CONTENTION OF ASSESSEE THAT A SUM OF RS. 64,500/- WAS WITHDRAWAL FROM BANK EARLIER WAS N OT ACCEPTED. ACCORDINGLY HE REJECTED THE CONTENTION OF THE ASSESSEE AND CONFIRM ED THE ACTION OF THE AO. 5. NOW ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUN AL. 6. THE CONTENTIONS RAISED BEFORE THE LD. CIT (A) WE RE REITERATED HERE BEFORE THE TRIBUNAL. ATTENTION OF THE BENCH WAS DRAWN ON CASH FLOW STATEMENT FOR ASSESSMENT YEAR 3 2005-06 AS WELL AS 06-07 ALONG WITH CERTAIN OTHER E VIDENCES FILED BEFORE LOWER AUTHORITIES. 7. ON THE OTHER HAND, THE LD. D/R STRONGLY PLACED R ELIANCE ON THE ORDER OF LD. CIT (A). 8. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) AND WRITTEN SUBMISSIONS, I FIND THAT BOTH THE LOWER AUTHORITIES DISALLOWED THE CLAIM OF THE ASSESSEE ONLY ON SUSPICION. THE FACTUAL ASPECT WAS NOT TAKEN INTO C ONSIDERATION THAT ASSESSEE IS ASSESSED TO TAX AND FILING HIS INCOME-TAX RETURN REGULARLY. CO PIES OF RETURN FOR FINANCIAL YEARS 2005- 06 AND 06-07 ARE PLACED ON RECORD. CASH FLOW STATE MENT IS ALSO PLACED ON RECORD. THE ASSESSEE IS SHOWING SALARY INCOME + INCOME FROM CA R HIRING CHARGES AT RS. 40,800/- AND RS. 92,220/-. SIMILAR INCOME HAS BEEN SHOWN FOR AS SESSMENT YEAR 2005-06 ALSO. THIS ASPECT HAS NOT BEEN TAKEN INTO CONSIDERATION BY BOT H THE LOWER AUTHORITIES. THE ASSESSEE HAS PREPARED BALANCE SHEET ALONG WITH CASH FLOW STA TEMENT ALSO. WITHDRAWAL FOR HOUSEHOLD EXPENSES AND OTHER WITHDRAWAL FOR LIP HAS BEEN SHOWN IN THE BALANCE SHEET AND THEREAFTER WHATEVER THE AMOUNT WAS LEFT WITH TH E ASSESSEE THAT WAS GIVEN TO CERTAIN PERSONS OR WAS DEPOSITED IN THE BANK. A SUM OF RS. 1,40,000/- WAS RECEIVABLE BY THE ASSESSEE FROM VARIOUS DEBTORS AND THE SAME WAS RECE IVED DURING THE YEAR UNDER CONSIDERATION AND OUT OF THE SAME, THE ASSESSEE ;HA S DEPOSITED THE AMOUNT IN THE BANK. THEREFORE, MERELY SAYING THAT THE ACCOUNT OF THE AS SESSEE FABRICATED WITHOUT BRINGING ANY POSITIVE EVIDENCE ON RECORD, IN MY VIEW, AO AND LD. CIT (A) WERE NOT JUSTIFIED. 8.1. REGARDING THE SURRENDER OF AMOUNT BY THE ASSES SEE BEFORE THE AO, AN AFFIDAVIT HAS BEEN FILED BEFORE LD. CIT (A) STATING THAT ASSESSEE NEVER DIRECTED THE A/R TO SURRENDER THE SAME. IN INCOME-TAX PROCEEDINGS, THERE IS NO ESTOP PEL. THEREFORE, DUE TO WRONG NOTION 4 ANY AMOUNT SURRENDERED, HOWEVER, OTHERWISE EXPLAINA BLE, THEN ASSESSEE HAS RIGHT TO AGITATE BEFORE HIGHER AUTHORITY. THE LD. CIT (A) H AS TAKEN INTO CONSIDERATION THIS ASPECT AND, THEREFORE, HE HAS DEALT WITH THE ISSUE ON MERI T. AS STATED ABOVE, FROM THE CASH FLOW STATEMENT AND FROM BALANCE SHEET OF ASSESSMENT YEAR S 2006-07 AND 07-08, IT IS SEEN THAT ASSESSEE WAS HAVING SUFFICIENT CASH BALANCE FOR DEP OSITING IN THE BANK. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, I DELETE THE ADDITION OF R S. 3,02,000/-. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17 .02.2012. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SHRI HANUMAN PRASAD MANGAL, JAIPUR. THE ITO WARD 6(1), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 280/JP/2011) BY ORDER, AR ITAT JAIPUR.