SHRI MAM RAJ SINGH, Jaipur V. ITO, Sikar

ITA 339/JPR/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7770 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 09-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: G M MEHTA

Judgement Text

ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 339/JP/2012 ASSESSMENT YEARS : 2002-03 PAN : ADTPS 9189 G SHRI MAM RAJ SINGH VS. THE ITO S/O SHRI MANGU RAM WARD- 2, SIKAR VIILAGE & POST: DEWAS (SIKAR) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.M. MEHTA DEPARTMENT BY: SHRI D.C. SHARMA DATE OF HEARING: 27-08-2014 DATE OF PRONOUNCEMENT: 05-09-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 13-01-2012 FOR THE AS SESSMENT YEAR 2002-03. 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 1. HENCE, THE SAME IS DISMIS SED BEING NOT PRESSED. 3.1 THUS THE SOLITARY GROUND OF THE ASSESSEE IS AS UNDER:- LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF RS. 2.50 LACS OUT OF CASH FOUND AND SEI ZED FROM THE POSSESSION OF THE ASSESSEE BY ACCEPTING TH E EVIDENCE FOR SOURCE OF CASH IN PART ONLY. ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 2 4.1 THE BRIEF FACTS OF THE CASE ARE THAT RAJASTHAN POLICE INTERCEPTED A CAR IN WHICH THE ASSESSEE WAS TRAVELING WITH HIS COMPAN IONS AND AN AMOUNT OF RS. 4.00 LACS WAS SEIZED FROM THE ASSESSEE AND RS. 2.00 LACS WAS SEIZED FROM OTHER PERSON I.E. SHRI INDER RAJ, TOTALING TO RS. 6 .00 LACS. THUS THE AO MADE AN ADDITION OF RS. 6.00 LACS IN ASSESSEE'S HANDS. 4.2 IN FIRST APPEAL, THE LD. CIT(A) RESTRICTED THE ADDITION TO RS. 2.50 LACS BY FOLLOWING OBSERVATION. . I HAVE FOUND FORCE IN THE CONTENTION OF THE L D. AR THAT OUT OF CASH SEIZURE OF RS. 6 LACS, ONLY RS. 4 LACS WAS BELONGING TO THE APPELLANT. THUS THE AOS STAND, I. E. THE ENTIRE CASH SEIZURE OF RS. 6 LACS WAS RELATED TO THE APPEL LANT IS FOUND CONTRAY TO THE FACTUAL POSITION, AS DICUSED HEREINA BOVE. II. REGARDING THE SOURCES OF CASH SEIZURE, RELATED TO THE APPELLANT (I.E. RS. 4 LACS) IS CONCERNED, IN TH IS REGARD IT IS OBSERVED THAT THE APPELLANT HAS LINKED THE SAME WIT H THE CASH WITHDRAWALS MADE BY HER WIFE FROM THE SAVING BANK A CCOUNT NO. 1391 WITH INDIAN OVERSEAS BANK AS UNDER:- SR. NO. DATE OF WITHDRAWALS AMOUNT 1. 06-09-2001 RS. 1,50,000/- 2. 10-09-2001 RS. 50,000/- 3. 12-09-2001 RS. 50,000/- 4. 11-10-2001 RS. 2,00,000/- RS. 4,50,000/- ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 3 THE ISSUE OF PROBABILITY OF AVAILABILITY OF THE ABO VE CASH WITHDRAWALS, AS ON THE DATE OF THE SEIZURE OF CASH FROM THE APPELLANT, IS CONSIDERED, IN VIEW OF THE EXPENDITUR E/ INVESTMENT MADE BY THEM IN THE CONSTRUCTION OF HOUSE AND THE T IME GAP INVOLVED THEREIN, AS SUCH. IN THIS REGARD, IT IS FO UND THAT THE APPELLANT HAS GIVEN CONTRADICTORY INFORMATION IN HI S STATEMENT DATED 14-10-2001. THIS IS SO, WHILE REPLYING QUESTI ON NO. 5, HE INFORMED THAT ONE HOUSE WAS BEING CONSTRUCTED, WHIC H CONSISTED OF 4 ROOMS, DRAWING ROOM AND DINING HALL ETC. AND RS. 7-8 LACS HAD BEEN INVESTED IN SUCH CONSTRUCTION . HOWEVER, SUBSEQUENTLY WHILE REPLYING TO QUESTION NO. 13, HE CONTENDED THAT SO FAR ONLY RS. 2 TO 2.5 LACS HAS BEEN SPENT O N SUCH CONSTRUCTION. MOREOVE3R, IT IS ALSO A MATTER OF FAC T THAT THE APPELLANT WAS SHOWING A MEAGER INCOME (RS. 38444/- IN A.Y. 2002-03)IN HIS RETURN. SIMILARLY HIS WIFE WAS ALSO NOT HAVING ANY REGULAR INCOME AS SUCH. AS THE APPELLANT HIMSEL F HAS ADMITTED THAT BY TIME OF SEIZURE OF THE CASH, 4 ROO MS AND OTHER FACILITIES WERE CONSTRUCTED IN THE NEARLY COMPLETED HOUSE OF HIS WIFE, THUS IT IS OBVIOUS THAT SUBSTANTIAL AMOUNT HA D ALREADY BEEN INVESTED BY THEN IN SUCH CONSTRUCTION. THUS, C LAIMING THE INVESTMENT OF RS. 2 TO 2.5 LACS IN THE HOUSE CONST RUCTION, IS FOUND CONTRADICTORY TO THE EARLIER POSITION TAKEN B Y THE APPELLANT IN THIS REGARD AND ALSO INADEQUATE TO EXP LAIN SUCH SUBSTANTIAL QUANTUM OF CONSTRUCTION, AS DISCUSSED A BOVE. MOREOVER, THE APPELLANT HAS ALSO NOT EXPLAINED THE SOURCE OF THE ABOVE INVESTMENT IN THE HOUSE, IF HIS CLAIM I.E . THOSE ENTIRE CASH WITHDRAWALS OF RS. 4.5 LACS FROM THE BANK WERE REMAINED ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 4 UTILIZED TILL THE DATE OF CASH SEIZURE FROM THE APP ELLANT, IS ADMITTED. CONSIDERING AL THE ABOVE FACTUAL POSITION, IT IS FE LT THAT THE CASH WITHDRAWALS MADE BY THE WIFE OF THE APPELL ANT IN THE MONTH OF NOV. 2001, TO THE EXTENT OF RS. 2.50 LACS AS DISCUSSED ABOVE, MUST HAVE UTILIZED IN CONSTRUCTION OF THE HO USE AS SUCH. THUS, TO SUCH EXTENT THE SOURCE OF THE CASH SEIZURE OF RS. 4 LACS IS FOUND NON-CONVINCING AND IMPROBABLE, UNDER THE G IVEN SITUATION. HOWEVER, IN MY CONSIDERED VIEW, THE OTHE R CASH WITHDRAWAL OF RS. 2 LACS FROM THE APPELLANTS WIFE BANK ACCOUNT ON 11-10-2001, (I.E. JUST TWO DAYS PRIOR TO THE SEI ZURE OF THE CASH), MIGHT BE CONSIDERED AS LINKED TO CASH FOUND IN THE POSSESSION OF THE APPELLANT, AS THE PROXIMITY OF TH E DATES INVOLVED IN SUCH TRANSACTIONS/ MATTERS ARE FOUND SU PPORTING THE APPELLANTS CLAIM MADE IN THIS REGARD. IN VIEW OF THE ABOVE DELIBERATION, IT IS HELD THAT OUT OF TOTAL CASH WITHDRAWALS OF RS. 4.50,000/- FROM THE B ANK ACCOUNT, ONLY RS. 2 LACS IS FOUND RELEVANT AND RELATED TO TH E CASH SEIZURE OF RS. 4 LACS FROM THE POSSESSION OF THE APPELLANT AND THE BALANCE AMOUNT OF RS. 2,50,000/-HAS BEEN CONSIDERED AS UTILIZED IN CONSTRUCTION OF HOUSE AS SUCH. ACCORDIN GLY, THE ADDITION MADE BY THE AO OF RS. 6 LACS HAS BEEN REST RICTED TO RS. 2,50,000/- ONLY. IN THE LIGHT OF THE ABOVE, THE AO IS HEREBY DIRECTED TO GIVE RELIEF OF RS. 3,50,000/- , OUT OF THE TOTAL ADDITION MADE OF RS. 6 LACS AND THE BALANCE ADDITION OF RS. 2,50,000/- IS ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 5 HEREBY CONFIRMED. CONSEQUENTLY, THIS GROUND OF APPE AL IS PARTLY UPHELD. 4.3 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT WHEN THE WITHDRAWAL OF RS. 2.00 LACS DATED 11-10-2001 IS HELD TO BE FROM W IFE ACCOUNT THEN THERE IS NO JUSTIFICATION IN NOT ACCEPTING THE ASSESSEE CLAI M THAT AMOUNT OF RS. 1.50 LACS DATED 06-09-2001, RS. 50,000/- DATED 10-09-200 1 AND RS. 50,000/- DATED 12-09-2001 WERE ALSO FROM THE ACCOUNTS OF THE WIFE. IT IS PLEADED THAT THE ADDITION RETAINED HAS NO JUSTIFICATION. 4.4 THE LD. DR CONTENDS THAT THE LD. CIT(A) HAS CON SIDERED ALL THE RELEVANT FACTS AND WORKED OUT THE BALANCE ADDITION OF RS. 2.50 LACS ON THE BASIS OF THE WORKING GIVEN IN THE ORDER ABOVE AND L OOKING AT THE SEIZURE OF CASH FOR BUILDING CONSTRUCTION BY THE ASSESSEE AND OTHER RELEVANT FACTORS, THE ASSESSEES EXPLANATION IS THAT PERIODICALLY CASH WA S WITHDRAWN FROM INDIAN OVERSEAS BANK, FATEHCPUR AND KEPT AT HOME IDLE AND THEN CARRIED TO JAIPUR FOR PURCHASE OF BUILDING MATERIAL. SINCE THE ASSESS EE COULD NOT GET ANY COMPETITIVE RATE, SO NO PURCHASES WERE MADE, THIS C ONTENTION HAS NO LEGS TO STAND UPON. IT IS PLEADED THAT LD. CIT(A) HAS BEEN VERY REASONABLE AND FAIR TO THE ASSESSEE. THUS HIS ORDER SHOULD BE UPHELD. 4.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND NO MERIT IN THE ASSESS EE'S CLAIM THAT ON VARIOUS ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 6 DATES OVER A PERIOD OF TIME THE CASH WAS WITHDRAWN AT INDIAN OVERSEAS BANK, FATHERPUR AND KEPT IDLE AT HOME AND THEN THE AGGREG ATE AMOUNT WAS TAKEN TO JAIPUR AFTER A MONTH FOR PURCHASE OF BUILDING MATER IALS. SINCE THE RATES OF THE BUILDING MATERIALS WERE NOT COMPETITIVE THEREFORE, THE ENTIRE AMOUNT WAS TAKEN BACK IN CASH BUT IN THE MEANTIME THE POLICE I NTERCEPTED THE VEHICLE ON THE WAY. THE ENTIRE THEORY IS HEAR-SAY AND NO CORRO BORATIVE EVIDENCE IN THIS BEHALF HAS BEEN LAID BY THE ASSESSEE. IN VIEW THERE OF, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHICH IS UPHELD. 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 -09-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 5 TH SEPT. 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI MAM RAJ SINGH, SIKAR 2. THE ITO, WARD- 2, SIKAR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 399/JP/2012) AR ITAT, JAIPUR ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 7 ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 8 ITA NO. 3391/JP/2012 SHRI MAM RAJ SINGH VS. ITO 9