ITO, Jaipur V. RATAN KUMAR, Jaipur

ITA 334/JPR/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2041 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S R SHARMA C A DHK
• Keywords: Unexplained investment; Source of fund
• Section: 143(3); 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 334/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. THE INCOME TAX OFFICER, WARD-6(2), JAIPUR. CUKE VS. SMT. RATAN KANWAR, 116, LUV KUSH NAGAR-I, TONK PHATAK, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ACBPK 4523 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.R. SHARMA (C.A.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05.06.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16/06/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, JAIPUR, DATED 20.02.2014 PERTAINING TO A.Y. 2009-10 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE L. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 43,00,000/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 OF THE I.T. ACT, 1961. 2. THE APPELLANT CRAVES ITS RIGHTS TO ADD, AMEND O R ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT, T HE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMEN T WAS FRAMED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE ORDER 2 ITA NO. 334/JP/2014. SMT. RATAN KANWAR, JAIPUR. DATED 23.12.2011. WHILE FRAMING THE ASSESSMENT, THE AO OBSERVED THAT THE ASSESSEE HAD MADE INVESTMENT IN AN AGRICULTURAL LAN D THE SOURCE OF INVESTMENT WAS STATED TO BE SOURCE OF THE SOURCE OF LOAN TAKEN TO THE OTHER PERSONS ONE OF THE LOAN OF RS. 43 LAKHS WAS CLAIMED TO HAVE BEEN TAKEN FROM SMT. ANITA KUMARI ON 1/07/2008 THIS LOAN WAS DOUBTED BY THE AO AND THERE FORE MADE AN ADDITION OF RS. 43 LAKHS AS AN UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, DELETED THE ADDITION. 3. AGAINST THIS, THE REVENUE IS IN PRESENT APPEAL. LD. DEPARTMENTAL REPRESENTATIVES SUPPORTED THE FINDING OF THE AO. 4. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS AND ALSO SUPPORT ED THE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT, DURING THE COURSE OF THE APPELLA TE PROCEEDINGS, THE LD. CIT(A) HAD SOUGHT REMAND REPORT FROM THE AO AND DURING THE REMAND PROCEEDINGS THE ASSESSEE FILED COPIES OF THEIR BANK ACCOUNT FOR THE PERIOD 01/04/2007 TO 31/03/2009, DETAILS OF IMMEDIATE SOURCES OF THE FUNDS PROVIDED , COPY OF RETURN OF INCOME ALONG WITH COMPUTATION TRADING PROFIT AND LOSS ACCO UNT, BALANCE SHEET AND AUDIT REPORT OF SMT. ANITA KUMARI AND SHRI SANJAY KUMAR F OR THE PERIOD OF AYS 2008-09 AND 2009-10. LD. COUNSEL PLACED RELIANCE ON THE JU DGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF A RAVALI TRADING CO. VS. ITO (2008) 220 CTR (RAJ.) 622. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AO DOUBTED THE LOAN GIVEN BY THE AO BY SMT. ANITA KUMARI TO THE 3 ITA NO. 334/JP/2014. SMT. RATAN KANWAR, JAIPUR. ASSESSEE ON THE GROUND THAT BANK ACCOUNT WAS OPENED ON 30/06/2008 AND AN AMOUNT OF RS. 43 LAKHS BY CASH WAS DEPOSITED ON 1/7 /2008 AND ON 1/7/2008 ITSELF. THIS AMOUNT WAS TRANSFERRED IN THE ACCOUNT OF THE A SSESSEE WHEN THE SUMMON WAS ISSUED, IT WAS UN SERVED OF SMT. ANITA KUMARI ON TH E ADDRESS GIVEN BY THE ASSESSEE IN CONFIRMATION AND HE PROCEEDED TO MAKE ADDITION O N THIS ACCOUNT AS UNEXPLAINED INVESTMENT BY THE ASSESSEE. HOWEVER, LD. CIT(A) AF TER CONSIDERING THE SUBMISSIONS AND THE REMAND REPORT OF THE AO DECIDED ISSUE IN FA VOUR OF THE ASSESSEE BY OBSERVING AS UNDER:- 2.5 I HAVE CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER, APPELLANT'S WRITTEN SUBMISSION; AOS REMAND REPORT AND APPELLANT 'S REJOINDER. ASSESSING OFFICER MADE THE ADDITION OF RS. 43 LAKHS RECEIVED BY WAY OF LOAN BY THE APPELLANT ON THE GROUND THAT CREDITWORTHINESS OF TH E LENDER WAS NOT PROVED. ASSESSING OFFICER SUMMONED THE LENDER WHO IS STAYIN G OUTSTATION AND DID NOT APPEAR THEREFORE HE CONCLUDED THAT CREDIT WAS NOT E XPLAINED. DURING APPEAL PROCEEDINGS, APPELLANT SUBMITTED AFFIDAVITS FROM LE NDER AND HER HUSBAND ALONG WITH BANK STATEMENTS OF THESE PERSONS. THE S OURCE OF LENDING TO THE APPELLANT WAS CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT. THE SOURCE OF SUCH CASH DEPOSIT WAS FROM THE WITHDRAWALS MADE BY HER HUSBAND OUT OF SALE PROCEEDS OF AGRICULTURAL LAND. THEREFORE, APP ELLANT SUBMITTED THAT SOURCE OF FUND IN THE HANDS OF LENDER WAS ALSO PROVED BY T HE APPELLANT. BOTH LENDER AND HER HUSBAND SUBMITTED AFFIDAVITS ADMITTING THAT LOAN WAS GIVEN TO THE APPELLANT AND ALSO EXPLAINING THE SOURCE OF SUCH LO AN. APPELLANT ALSO SUBMITTED THAT ALL THE DETAILS CALLED BY THE AO WER E SUBMITTED. ONLY LENDER COULD NOT BE PRODUCED BEFORE THE AO SINCE SHE WAS S TAYING OUTSTATION AND WAS NOT PREPARED TO COME ON APPELLANTS REQUEST. I T WAS FURTHER ARGUED THAT AO COULD HAVE ENFORCED THE ATTENDANCE OF LENDER. B UT JUST ON THE BASIS OF NON-ATTENDANCE BY THE LENDER, ADVERSE VIEW CANNOT B E TAKEN IN THE CASE OF APPELLANT WHEN COMPLETE ONUS IS DISCHARGED BY HER. IN THE REMAND REPORT ASSESSING OFFICER EXAMINED THE EVIDENCES SUBMITTED BY THE APPELLANT AND IT WAS REPORTED BY HIM THAT THE SOURCE OF LOAN WAS STA TED TO BE CASH WITHDRAWALS FROM THE BANK ACCOUNT OF LENDER'S HUSBA ND. HOWEVER, IT WAS MENTIONED BY THE AO THAT THERE IS NO PROOF THAT CAS H DEPOSIT IS OUT OF CASH WITHDRAWAL FROM THE BANK ACCOUNT OF HER HUSBAND. A CCORDINGLY, AO SUBMITTED THAT CREDITWORTHINESS OF LENDER IS NOT PR OVED. APPELLANT ARGUED IN REJOINDER THAT COMPLETE ONUS WA S DISCHARGED BY SUBMITTING NOT ONLY CONFIRMATION, BANK STATEMENT OF THE LENDER BUT ALSO 4 ITA NO. 334/JP/2014. SMT. RATAN KANWAR, JAIPUR. AFFIDAVITS FROM LENDER AND HER HUSBAND EXPLAINING T HE SOURCE OF MONEY LENT TO THE APPELLANT. IT IS NOT IN DISPUTE THAT LENDER 'S HUSBAND SOLD AGRICULTURE LAND AND OUT OF SUCH SALE PROCEEDS, HE WITHDREW CAS H TO THE EXTENT OF RS. 56 LAKHS FROM THE BANK ACCOUNT. OUT OF THIS CASH WITH DRAWAL, LENDER DEPOSITED IN HER BANK ACCOUNT AND THE SAME WAS GIVEN BY WAY O F LOAN TO THE APPELLANT. THERE CANNOT BE ANY PROOF WITH REGARD TO SOURCE OF CASH DEPOSIT OUT OF CASH WITHDRAWAL FROM THE BANK APART FROM THE AFFIDAVIT O F BOTH THE PERSONS. IT WAS FURTHER SUBMITTED BY THE APPELLANT THAT IF SOUR CE OF THE LENDER WAS NOT FOUND ACCEPTABLE BY THE AO, ADVERSE VIEW CANNOT BE TAKEN IN THE CASE OF APPELLANT WHO HAD COMPLETELY DISCHARGED HER ONUS. FOR ANY LOAN OR CREDIT TO BE TREATED AS EXPLAINED, THREE INGREDIENTS ARE TO B E PRESENT- IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE LENDER. IN THE CASE OF APPELLANT, IDENTITY OF THE LENDER IS ESTABLISHED. TRANSACTION IS BY CHEQUE AND RECORDED IN THE BANK STATEMENT THEREFORE GENUINENES S IS ALSO ESTABLISHED. AS REGARDS CREDITWORTHINESS, THE SOURCE OF LOAN WAS EX PLAINED TO BE FROM THE SALE PROCEEDS OF AGRICULTURE LAND FOR WHICH NECESSA RY EVIDENCES WERE SUBMITTED. CONSIDERING THESE FACTS AND RELYING ON THE RELEVANT DECISIONS, IT IS CLEAR THAT APPELLANT HAS DISCHARGED HER ONUS BY EXP LAINING THE LOAN TAKEN BY HER AND THEREFORE ADDITION CANNOT BE MADE IN HER CA SE. ACCORDINGLY, ADDITION ON ACCOUNT OF LOAN MADE BY THE AO IS DELETED. 5.1 ABOVE FINDING ON FACT IS NOT CONTROVERTED BY TH E REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THE AO MADE ADDITION ON THE GROUND THAT THE SOURCE OF THE SOURCE OF LOAN AMOUNT COULD NOT BE EXPLAINED . HOWEVER, THE LD. CIT(A) IN HIS ORDER HAS OBSERVED THAT THE AO IN HIS REMAND REPORT , REPORTED THAT SOURCE OF LOAN WAS STATED TO BE CASH WITHDRAWAL FROM THE BANK ACCO UNT OF HER HUSBAND. MOREOVER, THE FACTUM OF SALE OF AGRICULTURAL LAND BY THE HUSB AND OF SMT. ANITA KUMARI IS NOT DISPUTED BY THE REVENUE. 5.2 THEREFORE, IN OUR VIEW, THE LD. CIT(A) HAS ADOP TED A POSSIBLE VIEW WITH REGARD TO AVAILABILITY OF FUND FROM DEPOSIT IN THE BANKS ACCOUNTS OF SMT. ANITA KUMARI. 5 ITA NO. 334/JP/2014. SMT. RATAN KANWAR, JAIPUR. 5.3 ON THE CONTRARY, THE AO DID NOT BRING ANY MATER IAL ON RECORDS SUGGESTING THAT THE CASH BELONGED TO THE ASSESSEE. HENCE, WE SEE NO MERIT INTO THE GROUND OF THE REVENUE. APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 334/JP/2014 IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 16 TH DAY OF JUNE 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 16/06/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO, WARD-6(2), JAIPUR. 2. THE RESPONDENT SMT. RATAN KANWAR, 116, LUV KUS H NAGAR-I, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 334/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR