ITO, Kishangarh V. SHRI PUSHPENDRA KUMAR JAIN, Kishangarh

ITA 289/JPR/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5577 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Assessee Lawyers: NIKHLESH KATARAIA CA DHK
• Keywords: Revised return
• Section: 260A; 148

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. 289/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 THE ITO KISHANGARH CUKE VS. SHRI PUSHPENDRA KUMAR JAIN MITRA NIWAS COLONY, MADANGANJ, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAOPJ 8414 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATEJA, ADDL. CIT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIKHLESH KATARAIA, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 01/01/2016 VKNS'K@ ORDER PER LALIET KUMAR, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 02-01-2012 FOR THE ASSESSMENT Y EAR 2004-05 WHEREIN THE ONLY GRIEVANCE OF THE REVENUE IS THAT T HE LD. CIT(A) HAS RESTRICTED THE ADDITION TO RS. 3,52,325/- OUT OF AD DITION OF RS. 35,23,329/- MADE BY THE AO U/S 69A OF THE I.T. ACT, 1961 ON ACC OUNT OF UNEXPLAINED DEPOSITED IN THE SAVING BANK ACCOUNT WITH IDBI BY A PPLYING GROSS PROFIT RATE OF 10%. ITA NO. 289//JP/2012 ITO ,KISHANGARH VS. SHRI PUSHPENDRA KUMAR JAIN . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED THE RETURN DECLARING INCOME OF RS. 1,03,760 ON 6-10-2004. ON THE BASIS OF ANNUAL INFORMATION RETURN (FOR SHORT AIR) FILED BY IDBI KISHANGARH BRANCH, THE AO OBSERVED THAT THERE WERE CASH DEPOSITS OF RS . 35,23,249/- DURING THE YEAR IN THE SAVINGS BANK ACCOUNT OF THE ASSESSE E. THE AO THEREFORE, ISSUED NOTICE U/S 148 AGAINST WHICH THE ASSESSEE FI LED THE REVISED RETURN ON 25-04-2011 DECLARING TOTAL INCOME OF RS. 3,88,16 5/-. THE AO ENQUIRED FROM THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS OF RS. 35,23,249/- MAINTAINED WITH IDBI. THE AO WAS NOT SATISFIED WITH THE REPLY OF THE ASSESSEE AS TO DEPOSITION OF AN AMOUNT OF RS. 35,23 ,249/- IN SAVING BANK ACCOUNT WITH IDBI. THEREFORE, THE AO MADE AN ADDITI ON OF RS. 35,23,249/- TREATING THE SAME AS INCOME FROM UNDISC LOSED SOURCES U/S 69A OF THE ACT. 2.2 AGGRIEVED THE ASSESSEE PREFERRED FIRST APPEAL B EFORE THE LD. CIT(A) WHO HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE B Y OBSERVING AS UNDER:- 3.7. KEEPING IN VIEW ALL THESE FACTS AND RESPECT FULLY FOLLOWING DECISION OF HON'BLE ITAT AND HON'BLE HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT. ANITA CHOUDHARY, AO IS DIRECTED TO CONSIDER THE TOTAL INC OME OF RS. 35,23,249/- AS UNDISCLOSED TURNOVER OF THE APP ELLANT ON WHICH GROSS PROFIT IS ESTIMATED AT 10%. AO IS THER EFORE, DIRECTED TO RESTRICT THE ADDITION ACCORDINGLY. IT I S FURTHER OBSERVED THAT APPELLANT IN THE REVISED RETURN FILED ON 25-04- 2011 HAS DECLARED ADDITIONAL INCOME OF RS. 2,84,405 /- IN RESPECT OF TRANSACTIONS RECORDED IN IDBI ACCOUNT. AO IS ITA NO. 289//JP/2012 ITO ,KISHANGARH VS. SHRI PUSHPENDRA KUMAR JAIN . 3 DIRECTED TO GIVE CREDIT OF THIS AMOUNT. GROUND NO. 1 IS THUS PARTLY ALLOWED. 2.3 DURING THE COURSE OF HEARING, THE LD. DR VEHEME NTLY RELIED ON THE ORDER OF THE AO. 2.4 THE LD. AR OF THE RELIED ON THE ORDER LD. CIT(A ) AND ALSO FILED THE DECISIONS OF COORDINATE BENCH IN THE CASE OF ITO V S. SMT. ANITA CHOUDHARY (ITA NO. 733/JP/2009 DATED 7-05-2010 FOR THE ASSESSMENT YEAR 2005-06 AND ITO VS. SHRI PUSHPENDRA KUMAR JAIN (ITA NO. 250/JP/2010 DATED 10-12-2010 FOR THE ASSESSMENT YEA R 2005-06) PRAYING THEREIN TO DISMISS THE APPEAL OF THE DEPARTMENT, 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE LD. CIT(A) HAS TAKEN INTO CONSIDERATION THE DECISION OF COORDINATE BENCH IN T HE CASE OF ITO VS SMT. ANITA CHOUDHARY (SUPRA) AND ALSO DEPARTMENTAL APPEAL BEFORE HON'BLE JURISDICTIONAL HIGH COURT AGAINST ITAT ORDE R IN THE CASE OF SMT. ANITA CHOUDHARY U/S 260A IN DB IT APPEAL NO. 289-20 10 WHICH WAS DISMISSED. THE OBSERVATION OF THE COORDINATE BENCH IN THE CASE OF ITO VS. SMT. ANITA CHOUDHARY (SUPRA) IS AS UNDER:- 4. WE HAVE HEARD BOTH THE PARTIES. THE TRIBUNAL V IDE ORDER DATED 29 TH MAY, 2009 IN THE CASE OF SHRI RAM SWAROOP IN ITA NO.113/JP/2009 FOR THE ASSESSMENT YEAR 2005-06 HAD AN OCCASION TO CONSIDER THE CASH DEPOSITS OF RS. 22.86 LACS MADE IN ITA NO. 289//JP/2012 ITO ,KISHANGARH VS. SHRI PUSHPENDRA KUMAR JAIN . 4 THE ACCOUNT OF SHRI RAM SWAROOP IN IDBI BANK. THE DEPOSITS WERE SIMILAR OF THE NATURE AS ARE AVAILABLE IN THIS CASE . THE TRIBUNAL AFTER CONSIDERING THE FACTS OF CASE HELD THAT INCOM E OF RS. 1.25 LACS TO BE ESTIMATED AND ACCORDINGLY DIRECTED THE AO TO ADD THE SAME OF RS. 1.25 LACS AS AGAINST CASH DEPOSIT DURING THE EN TIRE YEAR. THE LD.AR HAS FILED BEFORE US THE COPY OF THE BANK ACCO UNT. THE COPY OF THE BANK ACCOUNT CONTAINS 9 PAGES . THERE ARE NUMBE R OF ENTRIES IN EACH MONTH. THE MAXIMUM CREDIT BALANCE IN THE BANK ACCOUNT IS TO THE EXTENT OF RS. 1,51,905/- AS ON 11-08-2004. THE MINIMUM BALANCE IS OF RS. 563/-. THE CREDIT BALANCE AS ON 3 1-03-04 IS RS. 56,558/- WHILE CREDIT BALANCE AS ON 31-03-05 IS RS. 566/-. THIS SHOWS THAT THE AMOUNT DEPOSITED DURING THE YEAR IS LESS AS COMPARED TO THE WITHDRAWAL MADE DURING THE YEAR . T HIS IS NOT THE CASE OF THE REVENUE THAT WITHDRAWALS MADE IN THIS A CCOUNT HAVE BEEN UTILIZED ELSEWHERE. IN CASE THE AMOUNTS HAVE B EEN DEPOSITED BY THE ASSESSEE IN THE BANK ACCOUNT THEN REVENUE IS REQUIRED TO CONSIDER THE AVAILABILITY OF SUCH DEPOSITS FROM THE WITHDRAWALS MADE FROM SUCH BANK ACCOUNT. IT IS TRUE THAT THE AS SESSEE HAS NOT BEEN ABLE TO GIVE THE REQUIRED DETAILS BECAUSE SUCH DETAILS HAVE NOT BEEN KEPT BY THE ASSESSEE. UNDER SUCH CIRCUMSTANCES , ONE HAS TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES AND ACCO RDINGLY ONE WILL HAVE TO CONSIDER INCOME PORTION FROM THE TURNOVER A S MENTIONED IN THE BANK ACCOUNT. IT IS AN ACCEPTED POSITION THAT T HE ASSESSEE IS DOING THE BUSINESS IN MARBLE AND THE ASSESSEE IS NO T HAVING ANY OTHER SOURCE OF INCOME. ONCE THE ASSESSEE HAS OFFER ED AN EXPLANATION AND THE REVENUE HAS NOT ESTABLISHED THA T EXPLANATION IS FALSE THEN ONE WILL HAVE TO CONSIDER THE INCOME GENERATED FROM THE TURNOVER AS IN THE BANK ACCOUNT. IT IS TRUE THA T THE ASSESSEE HAS SHOWN GROSS PROFIT IN THE MARBLE BUSINESS AND THE L D. CIT(A) HAS PARTLY UPHELD THE ADDITION BY APPLYING THE GROSS PR OFIT RATE OF 8.78%. WE FEEL THAT IN CASE WHERE FUNDS ARE RECEIVE D FOR THE PURCHASE OF MARBLE AND THE ASSESSEE HAS TO RENDER T HE SERVICES FOR PURCHASES OF MARBLE AND TRANSPORTATION THEN THE GRO SS PROFIT RATE WILL BE SLIGHTLY HIGHER AND WE FEEL THAT THE INCOME FROM THE TURNOVER TO THE EXTENT OF OF RS. 25,20,272/- SHOULD BE ESTIMATED AT RS.2.52 LACS. AFTER CONSIDERING THE EXCESS INCOME D ECLARED IN THE RETURN TO THE EXTENT OF RS. 2.10 LACS, THE BALANCE ADDITION WILL REMAIN TO THE EXTENT OF OF RS. 42,000/- AS AGAINST RS. 11,271/- CONFIRMED BY THE LD. CIT(A). THUS THE SOLITARY GROU ND OF THE REVENUE IS PARTLY ALLOWED. ITA NO. 289//JP/2012 ITO ,KISHANGARH VS. SHRI PUSHPENDRA KUMAR JAIN . 5 WE THUS FIND MERIT IN THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE AND BY RESPECTFULLY FOLLOWING THE DECISIONS OF THE COOR DINATE BENCH IN THE CASE OF ITO VS. SMT. ANITA CHOUDHARY (SUPRA) AND A SSESSEE'S OWN CASE (SUPRA), WE FIND NO REASON TO INTERFERE IN THE ORDE R OF THE LD. CIT(A) WHICH IS SUSTAINED. THUS THE APPEAL OF THE REVENUE IS DISMISSED. 6.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1/01/2015 6 SD/- SD/- (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01 /01/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, KISHANGARH 2. IZR;FKHZ@ THE RESPONDENT- SHRI PUSHPENDRA KUMAR JAIN, KISHA NGARH 3. VK;DJ VK;QDRVIHY ) @ CIT(A), JAIPUR 3. VK;DJ VK;QDR@ CIT, JAIPUR 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.289/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR