BHOORI SINGH, Jaipur V. ITO, Alwar

ITA 312/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1812 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Business income
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 312/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI BHOORI SINGH S/O SHRI SUVA VILLAGE: SAHAJAPURA, TEHSIL: KHERLI ALWAR, (RAJ) CUKE VS. THE ITO WARD- 1(3) ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: CSBPS 9583 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/10/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/12/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALWAR DATED 28-03-2017 FOR THE ASSESSMENT YEAR 2010-11 RAISING THEREIN FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF RS. 25,56,900/- MADE BY THE AO BY TREATING THE CASH DEPOSIT IN THE BANK ACCOUNT MA INTAINED BY THE ASSESSEE AS UNEXPLAINED. ITA NO. 312/JP/2017 SHRI BHOORI SINGH VS. ITO, WARD- 1 (3), ALWAR . 2 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ABOVE ADDITION ONLY ON THE BASIS OF THE ALLEGED CONDUCT AND ATTITUDE OF THE ASSESSEE WITHOU T GIVING ANY ADVERSE FINDING OR POINTING OUT ANY DISCREPANCY IN THE EXPLANATION FURNISHED BY THE ASSESSEE IN SUPPORT OF DEPOSIT IN THE BANK ACCOUNT DULY BACKED BY DOCUMENTARY EVIDENC E. 2.1 APROPOS GROUND NO. 1 AND 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 5.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S SUBMISSIONS MADE BY THE APPELLANT. FOLLOWING FACTS HAVE EMERGED. 1. THAT AN AMOUNT OF RS. 25,96,900/- WAS FOUND CRED ITED IN HIS BANK ACCOUNT MAINTAINED AT PNB, KHERLI, BEAR ING ACCOUNT NO. 2315000100235907 DURING THE YEAR UNDER CONSIDER ATION. 2. THAT IT WAS FOUND BY THE AO THAT THE ASSESSEE HA D NOT FILED ANY REGULAR RETURN OF INCOME FOR RELEVANT A.Y . 2010-11. 3. THAT THE AO ISSUED NOTICE UNDER SECTION 148 OF T HE ACT ON 5-03-2015 AND THE NOTICE WAS SERVED MANUALLY ON 21-03- 2015 AFTER THE ASSESSEE REFUSED TO TAKE THE NOTICE FROM THE POSTAL AUTHORITY. THE ASSESSEE DID NOT COMPLY WITH THE NOT ICE SERVED ON HIM. 4. THAT THE AO HAD ISSUED NOTICE UNDER SECTION 142( 1) OF THE ACT TO FILE DETAILED. AGAINST THE ASSESSEE REFU SED TO TAKE THE NOTICE FROM THE POSTAL AUTHORITY. 5. THAT FINALLY, THE ASSESSEE FILED THE RETURN FOR A.Y. 2010-11 ON 23-02-2016 DECLARING INCOME FROM BUSINES S AT RS. 1,32,625/- ITA NO. 312/JP/2017 SHRI BHOORI SINGH VS. ITO, WARD- 1 (3), ALWAR . 3 6. THAT IN THE RETURN OF INCOME, THE ASSESSEE HAS S HOWN INCOME FROM SALE/ PURCHASE OF CATTLE FEEDS AND HAS DECLARED THE INCOME UNDER SECTION 44AF OF THE ACT. 7. THAT DURING THE ASSESSMENT PROCEEDING NO DETAILS OR EVIDENCES HAVE BEEN FILED TO PROVE THE GENUINENESS OF THE BUSINESS INCOME CLAIMED BY THE ASSESSEE. 8. THAT DESPITE SEVERAL OPPORTUNITIES, THE ASSESSEE WAS NOT ABLE TO FILE ANY EVIDENCES IN SUPPORT OF HIS CL AIM ABOUT THE BUSINESS INCOME. ACCORDINGLY, THE AO HAS HELD THE C ASH AMOUNT OF RS. 25,56,900/- FOUND DEPOSITED IN HIS BANK ACCOUNT S DURING THE PERIOD RELEVANT TO A.Y. AS UNEXPLAINED AND ADDED TH E SAME TO HIS INCOME. 5.3.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS O F THE CASE. THE CONDUCT OF THE ASSESSEE AS IS EVIDENT FRO M THE ABOVE FACTS IS FAR HELPING THE AO TO COME TO A TRUE AND JUST CO NCLUSION. THE ATTITUDE OF THE ASSESSEE DURING THE ASSESSMENT PROC EEDING ALWAYS SEEMS TO BE EVASIVE. THE ASSESSEE HAD TAKEN AN UNUS UALLY LONG TIME TO FILE THE RETURN FOR A.Y. 2010-11 ON23-02-2016 IN RESPONSE TO NOTICE U/S 148 OF THE ACT SERVED O HIM ON 21-03-201 5. IT IS MY CONSIDERED VIEW THAT THE ASSESSEE HAD TAKEN SUCH A LONG TIME TO JUST CREATE A STORY ABOUT A BUSINESS OF DEALING IN CATTL E FEED. BUT THE ASSESSEE FAILED TO FILE ANY EVIDENCE ABOUT THE SALE AND PURCHASE OF THE CATTLE FEEDS. THEREFORE, IN MY CONSIDERED VIEW THE APPELLANT EXPLANATION ABOUT THE SOURCE OF CASH DEPOSITS IN TH E BANK TO THE PERCEIVED CATTLE FEED BUSINESS IS NOTHING BUT A SMO KE SCREEN WITHOUT ANY LEG TO STAND. THEREFORE, THE AO IS JUST IFIED IN TREATING THE CASH DEPOSITS OF RS. 25,56,900/- AS UNEXPLAINED IN THE HAND OF THE ASSESSEE. ACCORDINGLY, THE ADDITION OF RS. 25,5 6,900/- IS SUSTAINED AND THE APPELLANTS GROUND OF APPEAL ON T HE ISSUE IS DISMISSED. ITA NO. 312/JP/2017 SHRI BHOORI SINGH VS. ITO, WARD- 1 (3), ALWAR . 4 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION OF RS. 25,56,900/- CONFIRMED B Y THE LD. CIT(A) FOR WHICH THE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. SUBMISSION : 1. IT IS SUBMITTED THAT IN RESPECT OF THE DEPOSIT I N THE BANK ACCOUNT, THE AO HAS EARLIER SOUGHT CERTAIN INFORMATION FROM THE ASSESSEE VIDE LETTER DATED 24.07.2012. IN RESPONSE TO THE SAME, ASSESSEE VIDE HIS LETTER FILED ON 10.09.2013 (PB 9) EXPLAINED THAT HE IS ENGAGED IN THE BUSINESS AS RE TAIL TRADER OF CATTLE FEED, HIS GROSS SALE IS RS. 26,52,500/- A ND AS PER THE PROVISIONS OF SECTION 44AF HIS INCOME FROM BUSINESS IS RS. 1,32,6 25/- AND BANK INTEREST IS RS. 3,059/- AND THUS, HIS TOTAL INCOME IS BELOW THE TAXABLE LIMIT. THEREAFTER, IN RESPONSE TO NOTICE U/S 148, ASSESSEE FILED THE RETU RN DECLARING THE INCOME AS MENTIONED IN THIS LETTER. THEREFORE, THE OBSERVATI ON OF LD. CIT(A) THAT THE STAND TAKEN BY THE ASSESSEE BEFORE THE AO IS JUST T O CREATE A STORY/ SMOKESCREEN AND THAT HIS CONDUCT IS EVASIVE IS TOTA LLY ERRONEOUS AND INCORRECT. 2. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSE E IN SUPPORT OF THE INCOME DECLARED BY HIM AND THE CASH DEPOSITED I N THE BANK ACCOUNT FILED A TENTATIVE CASH FLOW STATEMENT (PB 21-22) AND IN SUPPORT OF THE SAME FILED THE COPY OF SALES REGISTER (SAMPLE PAGE AT PB 23-24), COPY OF THE KHASRA GIRDAVARI (PB 25) AND COPY AGREEMENT TO SALE DATED 16.09.2009 (PB 26-27) AS PER WHICH THE AGRICULTURAL LAND WAS SOLD ON FOR RS. 36,01,100/-. THE SALE OF THIS LAND WAS ALSO REGISTERED SUBSEQUENTLY VIDE SAL E DEED DATED 25.10.2009 (PB 28-36). THE SHARE OF THE ASSESSEE IN THE SALE OF THE AGRICU LTURAL LAND WAS RS. 12,00,366/-. FROM THE BANK ACCOUNT (PB 13-20), IT CAN BE NOTED THAT BETWEEN APRIL 2009 TO SEPTEMBER 2009, THERE WERE SM ALL DEPOSITS AND WITHDRAWALS FROM THE BANK ACCOUNT NOT EXCEEDING RS. 50,000/-. THEREAFTER, AFTER THE DATE OF AGREEMENT TO SALE/ THE DATE OF EX ECUTION OF SALE DEED, THERE IS A DEPOSIT OF RS. 2,33,000/- ON 01.10.2009 AND RS. 7,1 5,000/- ON 10.11.2009 AND RS.2,00,000/- ON 24.11.2009 AGGREGATING TO RS. 11,4 8,000/- IN HIS BANK ACCOUNT. ALL THESE EVIDENCES SHOW THAT THE DEPOSIT IN THE BANK ACCOUNT IS OUT OF THE SALE PROCEEDS OF THE CATTLE FEED/ SALE OF AG RICULTURAL LAND/ OUT OF WITHDRAWAL FROM THE BANK ACCOUNT. THUS, THE DEPOSIT IN THE BANK ACCOUNT IS FULLY EXPLAINED. 3. WITHOUT PREJUDICE TO ABOVE, THE PEAK DEPOSIT IN THE BANK ACCOUNT IS RS. 10,63,676/- ON 26.11.209 (PB 17) . THEREFORE, THE ADDITION OF RS. 25,56,900/- MADE BY THE AO IS INCORRECT. EVEN T HE SOURCE OF PEAK DEPOSIT IN THIS BANK ACCOUNT IS OUT OF THE SALE PROCEEDS OF THE AGRICULTURAL LAND AS ITA NO. 312/JP/2017 SHRI BHOORI SINGH VS. ITO, WARD- 1 (3), ALWAR . 5 EXPLAINED IN PARA 2 ABOVE. THUS, THE SOURCE OF PEAK DEPOSIT IN THE BANK ACCOUNT IS ALSO EXPLAINED. THE LD. CIT(A) WITHOUT C ONSIDERING THESE FACTS HAS SUMMARILY REJECTED THE APPEAL OF THE ASSESSEE BY HI S OWN INCORRECT NOTIONS WITHOUT CONSIDERING THE MATERIAL FACTS AND EVIDENCE ON RECORD. HENCE THE ADDITION CONFIRMED BY HIM IS NOT JUSTIFIED. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY THE LD. CIT(A) BE DIRECTED TO BE DELETED. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 2.4 THE BENCH HAS HEARD THE RIVAL CONTENTION AND GO NE THROUGH THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE C ASE ARE THAT THE AO MADE THE ADDITION OF RS.25,56,900/- BY TREATING THE CASH DEPOSIT IN THE BANK ACCOUNT AS UNEXPLAINED U/S 69A BY NOT ACCEPTING THE EXPLANATION OF ASSESSEE THAT SUCH DEPOSIT IS OUT OF THE BUSINESS R ECEIPT FROM SALE OF CATTLE FEED AND THE AMOUNT RECEIVED ON AGREEMENT TO SALE O F AGRICULTURAL LAND. IN FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION ON THE GROUND OF CONDUCT & ATTITUDE OF ASSESSEE. BENCH IS OF THE VI EW THAT THIS ALONE CANNOT BE A REASON FOR CONFIRMING THE ADDITION. THE MATERIAL/ EVIDENCE ON RECORD CANNOT BE IGNORED. IN THE PAPER BOOK, A COPY OF KHASRA GIRDAVARI AND AGREEMENT TO SELL WERE FILED BEFORE THE LD. CIT (A) (PBP 25-27). HOWEVER, THERE IS NO FINDING OF THE LD. CIT(A) ON T HESE DOCUMENTS. IT IS ALSO NOTED THAT THERE IS A DIFFERENCE IN THE AMOUN T OF SALE CONSIDERATION MENTIONED IN THE AGREEMENT TO SELL AND IN THE SALE DEED ( WHICH HAS BEEN ITA NO. 312/JP/2017 SHRI BHOORI SINGH VS. ITO, WARD- 1 (3), ALWAR . 6 FOR THE FIRST TIME PRODUCED BEFORE THE BENCH). IT A PPEARS THAT ALL THE RELEVANT CORRECT FACTS HAS NOT BEEN APPRECIATED OB JECTIVELY. CONSIDERING ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE BENCH IS OF THE CONSIDERED VIEW THAT A FRESH LOOK IS REQUIRED AT TH E LEVEL OF LD. CIT(A). THE ASSESSEE IS DIRECTED TO PRODUCE ALL THE RELEVAN T PAPERS BEFORE THE LD. CIT(A) FOR HIS CONSIDERATION. THE APPEAL OF THE AS SESSEE IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING DE NOVO. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/12/2 017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/12/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BHOORI SINGH, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1 (3), ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 312/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR