The ITO-3(3), Indore V. Shri Laxman Singh Chouhan, Indore

ITA 305/IND/2013

• Counselvise Citation: 30522714 RSA 2013
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S GAUTAM
• Assessee Lawyers: TRIBHUVAN SACHDEVA
• Keywords: Additional evidence

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 305/IND/2013 A.Y. 2008-09 INCOME TAX OFFICER 3(3), INDORE :: APPELLANT VS LAXMAN SINGH CHOUHAN VILLAGE PANOD, INDORE PAN AQJPC7524N :: RESPONDENT CO NO. 73/IND/2013 (ARISING OUT OF ITA NO.305/IND/2013) LAXMAN SINGH CHOUHAN VILLAGE PANOD, INDORE PAN AQJPC7524N :: OBJECTOR VS INCOME TAX OFFICER 3(3), INDORE :: RESPONDENT DEPARTMENT BY SHRI G.S. GAUTAM ASSESSEE BY SHRI TRIBHUVAN SACHDEVA DATE OF HEARING 19.8.2013 DATE OF PRONOUNCEMENT 19.8.2013 2 O R D E R PER JOGINDER SINGH , JUDICIAL MEMBER THE REVENUE IS IN APPEAL AGAINST THE IMPUGNED ORD ER DATED 23 RD JANUARY, 2013 PASSED BY THE LEARNED FIRST APPELLAT E AUTHORITY AND THE ASSESSEE HAS ALSO PREFERRED CROSS OBJECTION. FIRST WE SHALL TAKE UP THE APPEAL OF THE REVENUE WH EREIN THE GROUND RAISED PERTAINS TO DELETING THE ADDITION OF RS. 10,71,000/- , REPRESENTING UNEXPLAINED DEPOSIT IN THE BANK ACCO UNT, AND RS.75,000/- AS UNEXPLAINED DEPOSIT OF CASH BY ADMIT TING ADDITIONAL EVIDENCE ALLEGEDLY IN VIOLATION OF RULE 46A OF IT RULES IN THE FORM OF AFFIDAVIT WITHOUT INVITING COMMENTS OF THE ASSESSING OFFICER. 2. DURING HEARING, WE HAVE HEARD SHRI G.S. GAUTAM, LEARNED SENIOR DR, AND SHRI TRIBHUVAN SACHDEVA, LEARNED COU NSEL FOR THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE R EVENUE IS IDENTICAL TO THE GROUND RAISED BY FURTHER SUBMITTIN G THAT THERE WAS NO EVIDENCE ON RECORD THAT THE AMOUNT SO DEPOSI TED ACTUALLY WAS THE INCOME OF SHRI RANVIR SINGH CHOUHAN, NEPHEW OF THE ASSESSEE. ON THE OTHER HAND, MR. SACHDEVA STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE ASSESSEE IS A N 3 AGRICULTURIST, FILED HIS RETURN FOR THE FIRST TIME AND DURING THE RELEVANT PERIOD, THE AGRICULTURAL OPERATION WAS DON E JOINTLY ALONG WITH SHRI RANBIR SINGH CHOUHAN. OUR ATTENTION WAS INVITED TO THE PAPER BOOK AND MORE SPECIFICALLY THE AFFIDAVIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION O F THE IMPUGNED ORDER AND THE OBSERVATIONS MADE THEREIN :- 3.3 I HAVE CONSIDERED THE A.O.S ORDER AS WELL AS THE APPELLANTS SUBMISSION. HAVING CONSIDERED BOTH, I FIND FORCE IN THE ARGUMENTS OF THE APPELLAN T. IT IS EVIDENT THAT THE APPELLANT HAD JOINT HOLDER ACCO UNT WITH HIS NEPHEW SHRI RANVEER SINGH CHOUHAN, WHO IS INDULGE IN THE BUSINESS OF THE CONTRACTORSHIP. FURTHER IT IS ALSO SEEN THAT IN THE YEAR 1992, THE FAMILY GOT SEPARATED, BUT HOWEVER DUE TO OVERSIGHT, THE NAME OF THE APPELLANT COULD NOT BE REMOVED FROM THIS ACCOUNT. IT IS ALSO EVIDENT THAT SHRI RANVEE R SINGH CHOUHAN HAS ALSO SHOWN HIS GROSS RECEIPTS OF RS. 33,60,000/- FROM CONTRACTORSHIP, WHICH WAS ALSO DISCLOSED IN THE RETURN OF INCOME FILED WITH ITO 4( 1), 4 INDORE. HE HAS ALSO GIVEN AN AFFIDAVIT WHEREIN HE AFFIRMS THAT ENTIRE TRANSACTION IN THE SAID ACCOUNT S PERTAINS TO THIS BUSINESS. HE HAS ALSO VERY CATEGORICALLY STATED IN HIS AFFIDAVIT DATED 23.11.2012 THAT THERE IS NO RELATION OF ANY TRANSACTION ENTERED IN THE SAID ACCOUNT WITH THE APPELLANT, SHRI LAXMAN SINGH CHAUHAN. THIS, ON PERUSAL OF THE FACTS OF THE CASE, I FIND THAT DURIN G THE YEAR UNDER CONSIDERATION THE TRANSACTIONS MADE IN THE SAID JOINT ACCOUNT ARE WHOLLY AND SOLELY BELONG S TO RANVEER SINGH CHOUHAN. FURTHER THE COPY OF RETURN OF INCOME OF SHRI RANVEER SINGH CHOUHAN AND AFFIDAVIT FROM HIM CLEARLY DEPICTS THE ABOVE CONTENTION OF THE APPELLANT THAT THE TRANSACTIONS WERE DULY DISCLOSED BY SHRI RANVEER SINGH CHOUHAN IN HIS RETURN OF INCOME FILED FOR A.Y. 80-09, WHICH WAS FILED WITH ITO 4(1) AS ON 31.03.09. IN ADDITIO N TO THIS, I ALSO FIND THAT THE A.O. HAS NOT POINTED OUT ANY OTHER SPECIFIC EVIDENCES OR EXPLANATION FOR MAKING SUCH ADDITION. THUS TAKING NOTE OF ALL THESE FACTS, I CONSIDER IT PROPER AND APPROPRIATE TO HOLD 5 THAT THE AO WAS NOT JUSTIFIED IN MAKING THE AFORESAID ADDITION ON PROPORTIONATE BASIS WHEN THE TRANSACTION IN THE SAID ACCOUNT WAS OWNED UP BY THE RANVEER SINGH CHOUHAN, NEPHEW OF THE APPELLANT EVEN THE APPELLANT ALSO DENIED OF ANY TRANSACTION OF THIS ACCOUNT. HENCE THE ADDITION SO MADE IS INCORRECT IN THE FACTS OF THE CASE. THUS, T HE ADDITION SO MADE OF RS. 10,71,000/- IS DELETED. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. 3.1 IF THE TOTALITY OF FACTS AVAILABLE ON RECORD, O BSERVATION MADE IN THE ASSESSMENT ORDER, CONCLUSION DRAWN IN THE IM PUGNED ORDER AND THE ASSERTIONS MADE BY THE LEARNED RESPEC TIVE COUNSEL ARE KEPT IN JUXTAPOSITION AND ANALYSED, THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE WAS HAVING A JOINT ACCOUNT W ITH HIS NEPHEW SHRI RANBIR SINGH CHOUHAN. THE FAMILY GOT S EPARATED IN THE YEAR 1992 AND SHRI RANBIR SINGH CHOUHAN WAS DOI NG THE BUSINESS OF CONTRACTORSHIP WHICH WAS DULY DISCLOSED IN THE RETURN OF INCOME FILED WITH THE DEPARTMENT. AN AFF IDAVIT WAS ALSO FILED AFFIRMING THE TRANSACTION THAT THE IMPUGNED A MOUNTS PERTAIN TO HIS BUSINESS AND NOT OF THE ASSESSEE. I N THE AFFIDAVIT IT HAS BEEN CATEGORICALLY SWORN THAT THE ASSESSEE HAD NO RELATION 6 WITH THE TRANSACTIONS ENTERED INTO THE SAID JOINT A CCOUNT AND HE HAS FURTHER OWNED THAT THE DISPUTED AMOUNTS BELONG TO HIM ONLY. THE ASSESSEE IS MERELY DOING AGRICULTURAL OPERATION AND NO BUSINESS ACTIVITY IS CARRIED OUT BY HIM. IN VIEW OF THESE FACTS, WE ARE IN AGREEMENT WITH THE CONCLUSION DRAWN IN THE I MPUGNED ORDER THAT THERE WAS NO JUSTIFICATION TO MAKE THE A DDITION ON PROPORTIONATE BASIS MORE SPECIFICALLY WHEN SHRI RAN BIR SINGH CHOUHAN HAD OWNED THE TRANSACTION AND THE ASSESSEE CATEGORICALLY DENIED ABOUT ANY TRANSACTION EVEN BEF ORE THE LEARNED ASSESSING OFFICER VIDE LETTER DATED 30 TH DECEMBER, 2010 AND THE AFFIDAVIT DATED 15 TH DECEMBER, 2010 (BOTH AVAILABLE IN THE PAPER BOOK OF THE ASSESSEE). EVEN BEFORE THE LEARN ED CIT(A), THESE FACTS HAVE BEEN MENTIONED IN THE EXPLANATION OF THE ASSESSEE (PAGES 10 TO 12 OF THE PAPER BOOK). THE CO PY OF THE RETURN OF SHRI RANBIR SINGH CHOUHAN HAS ALSO BEEN M ADE AVAILABLE ALONG WITH COMPUTATION AND HIS AFFIDAVIT STATING ALL THESE FACTS WHICH ARE PART OF THE PAPER BOOK. THE FACTUAL MATRIX CONTAINED IN THE PAPER BOOK HAS NOT BEEN CONTROVERT ED BY THE REVENUE. IN VIEW OF THESE FACTS, WE FIND NO JUSTIFI CATION TO INTERFERE WITH THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. IT IS AFFIRMED. IDENTICAL IS THE SITUATION FOR THE AMOUNT OF RS.75,000/- 7 ALLEGED TO BE UNEXPLAINED DEPOSIT OF CASH. THE CONC LUSION DRAWN IN THE IMPUGNED ORDER FOR THIS AMOUNT ALSO IS AFFIR MED. 4. SO FAR AS THE CROSS OBJECTIONS RAISED BY THE ASS ESSEE ARE CONCERNED, THE LEARNED COUNSEL FOR THE ASSESSEE CON TENDED THAT IT IS IN SUPPORT OF THE ORDER OF THE LEARNED CIT(A). S INCE WE HAVE AFFIRMED THE CONCLUSION DRAWN IN THE IMPUGNED ORDER , THE CROSS OBJECTIONS OF THE ASSESSEE DOES NOT SURVIVE. FINALLY, THE APPEAL OF THE REVENUE AND THE CROSS O BJECTION OF THE ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 19.8.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 19.8.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/- 8