ROHITASH KUMAR YADAV, Jaipur V. ITO, BEHROR

ITA 299/JPR/2011

• Counselvise Citation: 29923114 RSA 2011
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 28-10-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA

Judgement Text

1 ITA 299-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 299/JP/2011 ASSTT. YEAR : 2005-06. ROHITASH KUMAR YADAV, VS. THE INCOME-TAX OFFICER, SHYAM COLONY, NEAR POWER HOUSE, BEHROR. PAOTA, DISTT. JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATISH GUPTA RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 24.01.2012. DATE OF PRONOUNCEMENT : 02.02.2012. ORDER DATE OF ORDER : 02/02/2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-06. 2. FIRST GROUND IS AGAINST SUSTAINING ADDITION OF R S. 42,000/- UNDER SECTION 44E OF THE IT ACT. 3. THE AO MADE ADDITION BY OBSERVING THAT ASSESSEE WAS NOT MAINTAINING THE BOOKS OF ACCOUNT. HE SUBMITTED HIS INCOME TAX UNDER SECT ION 44AE AND IN THE FUND FLOW STATEMENT ASSESSEE STATED HE SOLD A TRUCK NO. HR 47 8212 IN JUNE, 2004 FOR RS. 3,80,000/-, BUT ASSESSEE DID NOT FURNISH ANY PROOF REGARDING SA LE OF TRUCK. IN THE WRITTEN SUBMISSION 2 IT IS STATED THAT THIS TRUCK WAS SOLD TO SHRI RAJ P AL YADAV OF REWARI. THE ASSESSEE AGAIN DID NOT FURNISH SALE OF THIS TRUCK. IN VIEW OF THI S FACT, THE AO HELD THAT ASSESSEE FAILED TO PROVE THE SALE OF TRUCK AND HE STATED TO USE THE AM OUNT RECEIVED FROM SALE OF TRUCK AT RS. 3,80,000/- IN PURCHASE OF A NEW TRUCK, THAT IS NOT ADMISSIBLE IN ABSENCE OF PROOF AND THE FUND FLOW /CASH FLOW PRESENTED BY ASSESSEE HAS NOT BEEN FOUND ACCEPTABLE. THEREFORE, AO ESTIMATED THE INCOME UNDER SECTION 44AE OF THE A CT BY ASSUMING THE TRUCK BEARING NO. HR 47 8212 AS NOT SOLD. IN THIS WAY, ADDITION OF RS. 40,000/- WAS MADE. IT WAS CONTENDED BEFORE LD. CIT (A) THAT ASSESSEE HIMSELF HAS SHOWN THE INCOME OF RS. 40,000/- AS INCOME FROM SHORT TERM CAPITAL GAIN ON ACCOUNT O F SALE OF TRUCK. THE TRUCK WAS SOLD IN THE MONTH OF JUNE. IT WAS SUBMITTED THAT ASSESSEE H AS PURCHASED ANOTHER TRUCK FROM SHRI OM PRAKASH SWAMI ON FINANCE TAKEN FROM MEGMA FINANC E, MUMBAI AND THE INSTALLMENT WAS STILL DUE AT THE TIME OF SALE AND THOSE INSTALL MENTS WERE TO BE PAID BY ASSESSEE HIMSELF. AN AFFIDAVIT OF THE ASSESSEE WAS ALSO FIL ED. THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 42,000/-. HOWEVER, THE AO WAS DIREC TED THAT IF CAPITAL GAIN SHOWN BY ASSESSEE ASSESSEE AT RS. 40,000/- ON ACCOUNT OF CAP ITAL GAIN SHOULD BE REDUCED AND REMAINING ADDITION MAY BE CONFIRMED IN VIEW OF PROV ISIONS OF SECTION 44AE OF THE ACT. 4. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE ORDERS OF AUTHORITIES BELOW, WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS G ROUND. THOUGH THERE WAS NO CONCRETE EVIDENCE IN RESPECT OF SALE OF TRUCK, HOWEVER, ASSE SSEE HIMSELF HAS ADMITTED THAT HE HAS PURCHASED NEW TRUCK ON FINANCE AFTER SELLING THE OL D TRUCK AND CAPITAL GAIN OF RS. 40,000/- WAS OFFERED ON THIS AMOUNT. THEREFORE, IN OUR VIEW, CAPITAL GAIN SHOULD BE ACCEPTED. HOWEVER, THE TRUCK WAS SOLD IN JUNE, THEREFORE, UPT O THE MONTH OF JUNE, THE INCOME FROM THE TRUCK HAS TO BE ADDED IN VIEW OF PROVISIONS OF SECTION 44AE. ACCORDINGLY, WE DIRECT 3 THE AO TO ACCEPT THE CAPITAL GAIN SHOWN BY ASSESSEE AND MADE FURTHER ADDITION IN VIEW OF PROVISIONS OF SECTION 44AE UPTO THE MONTH OF JUNE O F THE YEAR UNDER CONSIDERATION. WE ORDER ACCORDINGLY. THIS GROUND OF THE ASSESSEE IS ALLOWED IN PART. 5. NEXT ISSUE IS AGAINST SUSTAINING THE ADDITION OF RS. 2,56,871/-, RS. 1,02,000/- AND RS. 30,183/- UNDER SECTION 69. 6. THE ASSESSEE PURCHASED ONE TRUCK TROLLA BEARING NO. HR 47-A-1216 AND ONE TRUCK BEARING NO. HR 47-B-0689 FROM SHRI MUNNA BHAI KABAD I, KOTA AND NO BILL WAS AVAILABLE. THE AO MADE ENQUIRY THROUGH INSPECTOR WH O MAKING ENQUIRY FROM THE MARKET FROM OTHER PARTIES STATED THAT THE COST SHOWN BY AS SESSEE IS NOT CORRECT. THEREFORE, AO AFTER TAKING INTO CONSIDERATION THE INSPECTORS REP ORT MADE AN ADDITION OF RS. 2,56,871/- IN RESPECT TO TRUCK TROLLA NO. HR 47-A-1216 AND AN ADD ITION OF RS. 1,32,183/- IN RESPECT TO TRUCK NO. HR 47-B-0689. THE LD. CIT (A) CONFIRMED THE ACTION OF THE AO. 7. AFTER CONSIDERING THE SUBMISSION AND PERUSING TH E MATERIAL ON RECORD, WE FIND THAT ON IDENTICAL FACTS IN CASE OF BABU LAL JAT, AN ADD ITION WAS MADE BY THE AO UNDER SECTION 69 AT RS. 6,81,764/- UNDER SECTION 69. THE LD. CI T (A) CONFIRMED THIS ADDITION AND ON SECOND APPEAL, THE TRIBUNAL HAS DELETED THE ADDITIO N. THIS APPEAL OF SHRI BABU LAL JAT WAS DECIDED IN ITA NO. 302 & 303/JP/2011 VIDE ORDER DATED 14.10.2011. FINDINGS OF TRIBUNAL HAVE BEEN RECORDED IN PARA 12 WHICH ARE AS UNDER :- 12. AFTER CONSIDERING THE SUBMISSIONS AND PERUSI NG THE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED I N THIS GROUND. UNDISPUTEDLY, THE REPORT OF THE INSPECTOR WAS NOT C ONFRONTED TO THE ASSESSEE BEFORE DRAWING ANY ADVERSE INFERENCE. IT I S ALSO A MATTER OF FACT 4 THAT THE REPORT OBTAINED THROUGH INSPECTOR WAS OBTA INED AFTER TWO YEARS OF FILING OF RETURN I.E. DURING ASSESSMENT PROCEEDINGS AND WAS NOT OBTAINED FROM THE PERSON FROM WHOM THE TRUCKS WERE PURCHASED , RATHER THE REPORT WAS OBTAINED FROM THE OPEN MARKET TO ESTIMATE THE I NVESTMENT IN THE TRUCKS SHOWN BY ASSESSEE. THEREFORE, THERE IS NO D IRECT EVIDENCE AGAINST ASSESSEE THAT ASSESSEE HAS INVESTED OVER AND ABOVE THE AMOUNT SHOWN IN THE BALANCE SHEET. THE HONBLE SUPREME COURT IN CA SE OF KISHNICHAND CHELA RAM, 125 ITR 713 (SC) HAS CLEARLY HELD THAT W ITHOUT CONFRONTING THE MATERIAL ON WHICH BASIS THE ADDITION HAS BEEN M ADE, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PERSON AGAINST W HOM THE MATERIAL IS USED. ASSESSEE HAD FILED AFFIDAVIT SHOWING INVESTM ENT IN THE TRUCKS AND DETAILS OF INVESTMENT WAS ALSO MENTIONED IN THE AFF IDAVIT. CONTENTS OF THE AFFIDAVIT WERE NOT FOUND INCORRECT BY BRINGING ANY POSITIVE MATERIAL ON RECORD. THEREFORE, IN OUR CONSIDERED VIEW THE ESTI MATE MADE BY AO IN RESPECT TO PURCHASE OF TWO TRUCKS AND A BOLERO JEEP OVER AND ABOVE THE INVESTMENT SHOWN BY ASSESSEE WAS NOT JUSTIFIED. AC CORDINGLY, THE ADDITION MADE BY AO AND CONFIRMED BY LD. CIT (A) AT RS. 6,81 ,764/- IS DELETED. THIS GROUND OF THE ASSESSEE IS ALLOWED. SINCE FACTS ARE SIMILAR, THEREFORE, ON THE SIMILAR REASONING WE DELETE THE ENTIRE ADDITION OF RS. 2,56,871/- AND RS. 1,32,183/-. THIS GROUND OF THE ASSESSEE IS ALLOWED. 8. THERE IS ONE MORE GROUND I.E. AGAINST SUSTAINING AN ADDITION OF RS. 15,000/- OUT OF AGRICULTURAL INCOME. 9. THE ASSESSEE SHOWN AGRICULTURAL INCOME AT RS. 35 ,100/-. THE AO ACCEPTED THE AGRICULTURAL INCOME OF RS. 20,000/-. THE LD. CIT ( A) CONFIRMED THE ACTION OF THE AO. 10. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT AGRICULTURAL INCOME ACCEPTED BY AO AND LD. CIT (A) IS ON LOWER SIDE. WE FEEL THAT IF 5 AGRICULTURAL INCOME IS ACCEPTED AT RS. 30,000/- AGA INST RS. 35,100/- SHOWN BY ASSESSEE THEN IT WILL MEET THE ENDS OF JUSTICE. WE ORDER AC CORDINGLY. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 02 .02.2012. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SHRI ROHITASH KUMAR YADAV, PAOTA. THE ITO BEHROR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 299/JP/2011) BY ORDER, AR ITAT JAIPUR.