The ITO, 2(3), Indore V. SHRI Manoj Agrawal, Indore

ITA 34/IND/2014

• Counselvise Citation: 3422714 RSA 2014
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA
• Keywords: Additional evidence
• Section: 68

Judgement Text

PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : ABXPA1126H I.T.A.NO. 34 /IND/201 4 A.Y. : 2008-09 ITO. 2(3), INDORE VS. SHRI MANOJ A G RAWAL, INDORE APPELLANT RE SPONDENT C.O.NO.03/IND/2014 (ARISING OUT OF I.T.A.NO. 34/IND/2014) A.Y. : 2008-09 SHRI MANOJ AGRAWAL, ITO INDORE 2(3), VS. INDORE INDORE CROSS OBJECTOR RESPONDENT DEPARTMENT BY : SHRI R.A.VERMA, SR. DR ASSESSEE BY : SHRI H.P.VERMA, ADV. DATE OF HEARING : 29 . 0 4 .2014. DATE OF PRONOUNCEMENT : 13. 06 .201 4 SHRI MANOJ AGARWAL, INDORE. I.T.A.NO. 34/IND/2014 A.Y. 2008-09 2 PAGE 2 OF 6 O R D E R PER JOGINDER SINGH, J. M. THE REVENUE HAS PREFERRED THIS APPEAL CHALLENGING T HE ORDER DATED 29.10.2013 OF FIRST APPELLATE AUTHORITY , INDORE. THE ASSESSEE HAS ALSO PREFERRED CROSS OBJECTION. 2. FIRST WE SHALL TAKE UP APPEAL OF THE REVENUE, WHERE IN FIRST GROUND RAISED PERTAINS TO DELETING THE ADDITI ON OF RS. 13,86,691/- BY ESTIMATING COPIES OF RETURN OF SHRI AJAY AGARWAL AS ADDITIONAL EVIDENCE. THE CRUX OF ARGUMEN T ON BEHALF OF REVENUE IS IN SUPPORT OF THE ADDITION MAD E U/S 68 BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD.CO UNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE FACT IN BRIEF ARE THAT THE LD. CIT(A) ADMITTED CERTAIN ADDITIONAL EVIDENCE AS THE ASSESSEE COULD NOT PRODUCE THE EVIDENCE BEFORE THE ASSESSING OFFICER. SHRI AJAY AGARWAL, IS A NRI RESIDING IN SINGAPORE A ND IS BROTHER OF THE ASSESSEE. SHRI MANOJ AGARWAL, INDORE. I.T.A.NO. 34/IND/2014 A.Y. 2008-09 3 PAGE 3 OF 6 4. THE REVENUE HAS CHALLENGED ADMISSION OF ADDITIONAL EVIDENCE BY THE LD.CIT(A). WE NOTE THAT THE REMAND REPORT WAS SOUGHT FROM THE ASSESSING OFFICER, WHO VIDE REPORT DATED 5.3.2013 SUBMITTED THE REMAND REPORT. CERTAIN DEPOS ITS WERE FOUND IN THE BANK ACCOUNT. DURING ASSESSMENT PROCEE DINGS, NO CONFIRMATIONS WERE FILED BY THE ASSESSEE AND IN THE STATEMENT CHEQUE NO. AND BANK DETAILS WERE ALSO NOT AVAILABLE. THE POSTAL ADDRESS OF SHRI AJAY AGARWAL WAS ALSO NO T FURNISHED AS REQUIRED BY THE ASSESSING OFFICER VIDE LETTER DATED 14.9.2010. THE ASSESSEE ALSO DID NOT SUBMIT THE IDE NTITY PROOF OF SHRI AJAY AGARWAL. LIKEWISE, FOR CREDITWORTHINES S OF SHRI AJAY AGARWAL, NO DOCUMENTS WERE SUBMITTED BY THE AS SESSEE. THE STAND OF THE REVENUE IS THAT THE ASSESSEE FAILE D TO PROVE THE IDENTITY, CREDITWORTHINESS OF THE LENDER AND AL SO GENUINENESS. WE NOTE THAT SHRI AJAY AGRAWAL IS RUNN ING SOFTWARE BUSINESS IN THE NAME OF CHOICE SOFTWARE (S ) PVT. LIMITED IN SINGAPORE. THE FUNDS WERE TRANSFERRED FR OM SINGAPORE. THERE IS A FINDING IN THE IMPUGNED ORDER THAT SHRI AJAY AGRAWAL IS ASSESSED TO TAX IN SINGAPORE AND BE FORE HIM A SHRI MANOJ AGARWAL, INDORE. I.T.A.NO. 34/IND/2014 A.Y. 2008-09 4 PAGE 4 OF 6 COPY OF RETURN FILED IN SINGAPORE FOR THE ASSESSMEN T YEAR 2007- 08 WAS FURNISHED. THE CREDITWORTHINESS WAS PROVED A ND HE CONFIRMED OF GIVING LOAN BY FILING AN AFFIDAVIT. IN VIEW OF THESE FINDINGS, WE FIND NO JUSTIFICATION TO INTERFERE WIT H THE FINDING AND THE CONCLUSION OF THE LD. CIT(A). 5. IDENTICAL IS THE CASE WITH RESPECT TO THE MONEY REC EIVED FROM RASHI AGARWAL, WHO HAS A TRADE IN A HOSPITAL I N SINGAPORE. THEREFORE, ON THIS COUNT ALSO, THE INFER ENCE DRAWN BY THE LD.CIT(A) IS AFFIRMED. 6. LAST GROUND PERTAINS TO RESTRICTING THE ADDITION TO RS. 6,28,824/- FROM RS. 10,59,043/-. ON GOING THROUGH T HE REPORT, THERE ARE ABOUT 53 ENTRIES OF CASH DEPOSITS. THE EX PLANATION OF THE ASSESSEE IS THAT THESE AMOUNTS WERE WITHDRAWN I N CASH FROM ICICI BANK AND DEPOSITED IN IDBI BANK AND FROM IDBI A/C, INVESTMENT WAS MADE IN MUTUAL FUNDS AND SHARES . CONSIDERING THE TOTALITY OF FACTS, IT IS NOT CLEAR AS TO WHAT WAS THE SOURCE OF DEPOSIT OF CASH WHICH HAS NOT BEEN EX PLAINED BY THE ASSESSEE AS IS EVIDENT FROM PAGE 20 OF THE PAPE R BOOK, THESE ARE MERELY SALE AND PURCHASES. THIS GROUND IS REMANDED SHRI MANOJ AGARWAL, INDORE. I.T.A.NO. 34/IND/2014 A.Y. 2008-09 5 PAGE 5 OF 6 BACK TO THE FILE OF LD. ASSESSING OFFICER WITH A DI RECTION TO EXAMINE THE CLAIM OF THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM A ND FURTHER IS EXPECTED TO EXPLAIN THE SOURCE OF SUCH DEPOSIT. THE ASSESSEE BE GIVEN DUE OPPORTUNITY. THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. NOW, WE SHALL TAKE UP CROSS OBJECTION OF THE ASSESS EE, WHEREIN MAINTAINING ADDITION OF RS. 6,28,824 U/S 68 OF THE ACT HAS BEEN CHALLENGED. 8. SINCE WE HAVE SENT THE GROUND NO.3 IN TOTAL TO THE FILE OF THE ASSESSING OFFICER, THE CROSS OBJECTION RAISE D BY THE ASSESSEE IS ALSO SENT TO THE FILE OF ASSESSING OFFI CER FOR EXAMINATION. THEREFORE, THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 9. FINALLY, THE APPEAL OF THE REVENUE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES, WHEREAS CROSS OBJECTION OF TH E ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. SHRI MANOJ AGARWAL, INDORE. I.T.A.NO. 34/IND/2014 A.Y. 2008-09 6 PAGE 6 OF 6 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13.06.2014. SD/- SD/- ( R. C. SHARMA ) ( JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13.06.2014. CPU* 8.5.