Parmod Kumar Paineik, Shimla V. ITO-Ward-2, Shimla

ITA 34/CHANDI/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5998 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Set aside
• Section: 22; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 34/CHD/2021 ASSESSMENT YEAR : 2012-13 PARMOD KUMAR PAINEIK VILL: CHAITHA, KOTKHAI, SHIMLA THE ITO WARD-2, SHIMLA PAN NO: AUBPP5844Q APPELLANT RESPONDENT !' ASSESSEE BY : SHRI VISHAL MOHAN, ADVOCATE #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 09/09/2021 '()*! & DATE OF PRONOUNCEMENT : 09/09/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 01/04/2021 OF THE LD. CIT(A) NATIONAL FACELESS APPEAL CENTRE (NFAC), DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE REOPENING OF THE CASE UNDER SECTION 147 RW.S. 148 OF THE INCOME TAX ACT, 1961. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS NOT JUSTIFIED IN UPHOLDING AN ADDITION OF RS 15,00,000/- MADE TO THE TAXABLE INCOME OF THE ASSESSEE BY TREAT ING THE DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE AS INCOME FROM UNDISCL OSED SOURCES. 3. THAT THE ORDER OF THE LD COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND FACTS. 2 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF ADDITION OF RS. 15,00,000/- MADE BY T HE A.O. ON ACCOUNT OF DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF THE INFORMATION THAT THE ASSESSEE HAD DEPOSITED RS. 15,00,000/- IN HIS BANK ACCOUNT DURING THE F.Y. 2011-12 RELEVANT TO A.Y. UNDER CONSIDERATION A ND HAD NOT FILED RETURN OF INCOME INITIATED THE PROCEEDINGS UNDER SECTION 147 R.W.S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). IN RE SPONSE THE ASSESSEE FURNISHED THE BANK ACCOUNT STATEMENT, COPY OF JAMABANDI AND C OPY OF FEW SALE BILLS. THE A.O. ASKED THE ASSESSEE ABOUT THE SOURCE OF CAS H DEPOSITS IN HIS BANK ACCOUNT AMOUNTING TO RS. 15,00,000/-. IN RESPONSE, THE ASSESSEE SUBMITTED AS UNDER: HE ALONGWITH HIS BROTHERS ARE RESIDING IN A JOINT FAMILY AND ENTIRE LAND IS IN THE NAME OF ALL BROTHERS. THE ORCHARD ON THE SAID LAND IS ALSO CO-OWNED BY ALL BROTHERS. COPY OF JAMABANDI AND BANK ACCOUNT STATEM ENTS ARE ATTACHED HEREWITH FOR READY REFERENCE'. 4.1 THE A.O. AFTER CONSIDERING THE SUBMISSIONS OF T HE ASSESSEE OBSERVED THAT THE JAMABANDI FURNISHED BY THE ASSESSEE DID NOT IND ICATE SHARE OF EACH CO- OWNER IN THE LAND / ORCHARD AND ASKED THE ASSESSEE TO IDENTIFY HIS SHARE TO LAND HOLDING FROM WHICH HE HAD CLAIMED SOURCE OF CASH DE POSITS OF RS. 15,00,000/- FROM SALE OF AGRICULTURAL PRODUCE. THE ASSESSEE STA TED THAT HE IS AN AGRICULTURIST AND THE CASH DEPOSITED IN THE BANK ACCOUNT REPRESEN TS SALE PROCEEDS OF THE AGRICULTURE PRODUCE ON WHICH INCOME TAX WAS NOT LEV IABLE AND THAT HE WAS NOT LIABLE TO FILE THE INCOME TAX RETURN. 4.2 THE A.O. MADE THE ADDITION OF RS. 15,00,000/- B Y OBSERVING IN PARA 4.1 OF THE ASSESSMENT ORDER DT. 29/11/2017 AS UNDER: 4.1 IN FACT, THE ASSESSEE COULD NOT GIVE ANY SATISF ACTORY DOCUMENTS TO PROVE THAT HE HAS SOLD AGRICULTURAL PRODUCE FROM THE LAND OWNED BY HIM NOR COULD HE 3 EXPLAIN THE SOURCE OF CASH DEPOSITS IN HIS BANK ACC OUNTS. HE HAS WITHDRAWN MONEY FROM ONE ACCOUNT AND CLAIMED TO HAVE DEPOSITE D THE SAME IN ANOTHER ACCOUNT. PERUSAL OF BANK ACCOUNT HELD WITH UCO BANK SHOWS THAT THE CASH OF RS. 15 LAKH HAS BEEN DEPOSITED IN THIS ACCOUNT ON DIFFE RENT DATES SPREAD OVER THE ENTIRE FINANCIAL YEAR AND THE ASSESSEE HAS INVESTED THE ENTIRE DEPOSITS IN TERM DEPOSITS/ CFDS. THE ASSESSEE STATED THAT HE HAS WIT HDRAWN CASH FROM H.P. STATE CO-OP. BANK ACCOUNT AND DEPOSITED THE SAME IN UCO BA NK BUT COULD NOT RECONCILE HIS CLAIM VIS-A-VIS WITHDRAWAL AND DEPOSI TS. MOREOVER, HE COULD NOT EXPLAIN TIE SOURCE OF DEPOSITS IN THE H.P. STATE CO -OPERATIVE BANK ACCOUNT. IT IS ALSO PERTINENT TO MENTION HERE THAT THERE IS NO WIT HDRAWAL FROM HIS BANK ACCOUNTS TOWARDS EXPENDITURE AGAINST AGRICULTURAL INCOME OR HOUSE-HOLD EXPENDITURE. ALL IN ALL, THE ASSESSEE COULD NOT SUBSTANTIATE THE SOURCE OF CASH DEPOSITS OF RS. 15 LAKH WHICH HE UNSUCCESSFULLY ATTEMPTED TO EXPLAIN OUT OF AGRICULTURAL INCOME. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A)AND SUBMITTED THAT HE WAS PRIMARILY AN AGRICULTURIST, E ARNING HIS INCOME FROM APPLE ORCHARD AND THAT APART FROM THIS HORTICULTURE INCOM E, THE ASSESSEE DID NOT HAVE ANY OTHER SOURCE OF LIVELIHOOD. IT WAS FURTHER SUBM ITTED THAT ALL THE DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE WERE EITHE R FROM HIS OWN BANK ACCOUNT OR FROM THE ACCOUNT OF HIS BROTHERS WHO WER E LIVING IN A JOINT FAMILY AND HENCE THEY SOLD THE APPLE PRODUCE TOGETHER. IT WAS ALSO STATED THAT AS AND WHEN THE FUNDS WERE NEEDED BY ANY ONE OF THE BROTHE RS THE SAME WERE TRANSFERRED AND GIVEN TO HIM. THE ASSESSEE ALSO FUR NISHED THE COPY OF BANK ACCOUNT AND COPY OF THE SALE BILLS OF THE AGRICULTU RE PRODUCE IN SUPPORT OF HIS CLAIM. HOWEVER THE LD. CIT(A) DID NOT FIND MERIT IN THE SUBMISSION OF THE ASSESSEE AND SUSTAINED THE ADDITION BY OBSERVING IN PARA 5.4 OF THE IMPUGNED ORDER AS UNDER: 5 . 4 THE ASSESSING OFFICER HAD CONSIDERED ALL THE SUBMISSIONS MADE BY THE APPELLANT. HE OBSERVED THAT THERE IS NO EVIDENCE TO PROVE THAT THE APPELLANT OWNED CERTAIN PORTION OF THE ORCHARD. THE JAMABANDI FURNISHED BY THE APPELLANT DID NOT INDICATE THE SHARE OF EACH CO-OWN ER IN THE ORCHARD. FURTHER, THE APPELLANT COULD NOT TARNISH ANY EVIDENCE TOWARDS EXPENDITURE MADE F OR PRODUCING THE CROP. ALL THE SALES BILLS PRODUCED BY THE APPELLANT WERE IN THE NAME OF ONE MR. PARDEEP, PROBABLY THE BROTHER OF TH E APPELLANT. THUS, THERE WAS NO EVIDENCE PRODUCED BY THE APPELLANT TO PROVE HIS CONTENTION THAT THE CASH DEPOSITS MADE IN THE BANK ACCOUNT WERE OUT OF THE SALE OF AGRICULTURAL PRODUCED FURTHER, THE APPELLANT DID NOT OFFER ANY EXPLANATION WHY THE CASH WAS WITHDRAWN ON VARIOUS DATES AND HOW THEY WERE DEPOSITED IN A DIFFERENT 4 BANK ACCOUNT. SINCE, THERE IS NO CONCLUSIVE EVIDENCE TO PROVE THE APPELL ANT'S EXPLANATION, THE ACTION OF THE ASSESSING OFFICER IN ADDING THE AMOUNT OF RS. 15,00,000/- AS INCOME OF THE APPELLANT IS UPHELD. T HE APPEAL ON THIS GROUND IS DISMISSED. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT NE ITHER THE A.O. NOR THE LD. CIT(A) APPRECIATED THE FACTS IN RIGHT PERSPECTIVE A ND DID NOT CONSIDER THIS VITAL FACT THAT THE DEPOSITS IN THE BANK ACCOUNT WERE OUT OF THE WITHDRAWALS MADE FROM THE BANK ACCOUNTS OF HIS BROTHERS AND ALSO FRO M HIS OWN BANK ACCOUNT IN WHICH THE DEPOSITS WERE MADE FROM THE SALE OF AGRIC ULTURE PRODUCE. HOWEVER HE ADMITTED THAT THE COPIES OF THE BANK ACCOUNTS OF HIS BOTHER WERE NOT PRODUCED EITHER BEFORE THE A.O. OR BEFORE THE LD. C IT(A) AND THAT THE SAME HAS BEEN PRODUCED FIRST TIME BEFORE THIS BENCH OF THE T RIBUNAL (COPIES OF THE SAME ARE PLACED AT PAGE NO. 14 TO 21 OF THE ASSESSEES C OMPILATION). IT WAS ALSO STATED THAT THE ASSESSEE FURNISHED THE COPY OF ACCO UNT FROM THE COMMISSIONER AGENT M/S KHURANA SONS, NEW SUBZI MANDI, AZADPUR, D ELHI (COPIES OF WHICH ARE PLACED AT PAGE NO. 22 TO 23 OF THE ASSESSEES PAPER BOOK), BUT THE SAME WERE NOT CONSIDERED EITHER BY THE A.O. OR BY THE LD. CIT (A). 8. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED TH E ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT APPEARS THAT THE DOCUMENTS NOW FURNISHED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM THAT THE DEPOSITS IN HIS BANK ACCOUNT WERE FROM THE WITHDRAW ALS FROM THE BANK ACCOUNTS OF HIS BROTHERS AND HIS OWN ACCOUNT AND THE DEPOSIT S WERE MADE FROM THE SALE OF AGRICULTURE PRODUCE, THE SAID BANK ACCOUNTS WERE NOT EITHER BEFORE THE A.O. 5 OR BEFORE THE LD. CIT(A), HOWEVER, THOSE DOCUMENTS ARE VERY RELEVANT TO RESOLVE THE PRESENT CONTROVERSY. WE THEREFORE DEEM IT APPRO PRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRE SH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 09/09/2021 ) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 09/09/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR