HEMRAJ SAINI, Jaipur V. ITO (TDS), Kota

ITA 340/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7763 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURADHA JCIT LD DR DHK
• Assessee Lawyers: MANISH AGAWAL CA LD

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S SMC, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM VK;DJ VIHY LA-@ ITA NO. 340/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2010-11 SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL C/O SHRI O.P AGARWAL, FCA H-8, CHITTARANJAN MARG, C-SCHEME, JAIPUR CUKE VS. I.T.O. WARD-2(3), ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BTOPS4097M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGAWAL, CA, LD.AR JKTLO DH VKSJ LS@ REVENUE BY : MISS ANURADHA, JCIT, LD.DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20/03/2019 MN?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 24 /04/2019 VKNS'K@ ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD.CIT(A)-22, ALWAR DATED 28/03/2017 FOR THE A.Y. 2 010-11 IN THE MATTER OF ORDER PASSED U/S 143(3)/147 OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT). 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN I NDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF COMMISSION AGENT OF VEGE TABLES IN THE NAME AND STYLE OF M/S HEMRAJ SOHANLAL. RETURN OF IN COME FOR THE YEAR UNDER APPEAL WAS FILED ON 11.02.2011 DECLARING TOTA L INCOME AT RS.3,43,500/-. SUBSEQUENTLY, CASE OF ASSESSEE WAS R EOPENED BY ISSUE ITA NO.340/JP/2017 SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL 2 OF NOTICE U/S 148. IN RESPONSE TO THE SAME ASSESSEE HAS DECLARED SAME INCOME AS WAS DECLARED IN THE RETURN FILED U/S 139(1). 4. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS T HE AO OBSERVED THAT THE ASSESSEE HAD RECEIVED PAYMENTS ON 24-11-09 AND 25-11-09 TO THE TUNE OF RS.16,00,000/- AND RS.13,39 ,000/- FROM HANIF KHAN, WHO WAS LOOKING AFTER SALE AND DISTRIB UTION OF VEGETABLES. THE AO FURTHER STATED THAT ASSESSEE HAD MADE PAYMENT TO ITS CREDITORS ON 23-11-09 WHEREAS CASH WAS RECEIVED BY THE ASSESSEE ON 24 TH & 25H NOV.09. ACCORDINGLY, HE CONCLUDED THAT PAYM ENTS SO RECORDED BY ASSESSEE ON 23 RD NOV.09 I.E. ONE DAY PRIOR IS UNEXPLAINED. ACCORDINGLY, HE ADDED RS.29,39,000/- ( RS.16,00,000 + RS. 13,39,000) IN ASSESSEE S INCOME, AGAINST WHICH THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONF IRMED THE ACTION OF THE AO. THE ASSESSEE IS IN APPEAL BEFORE ME. 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECO RD THAT ASSESSEE IS A SMALL BUSINESSMAN CARRYING ON BUSINESS OF VEGETAB LES ON COMMISSION BASIS, AFTER OBTAINING THE SAME IN THE A UCTION CONDUCTED IN KRISHI MANDI. IN THIS BUSINESS, THE ASSESSEE WA S TAKING ASSISTANCE OF ONE, SHRI HANIF KHAN, WHO WAS LOOKING AFTER DIST RIBUTION OF VEGETABLES AND COLLECTION FROM CUSTOMERS. IN THE CO URSE OF RE- ASSESSMENT, THE AO OBSERVED THAT SHRI HANIF KHAN HA S WITHDRAWN ITA NO.340/JP/2017 SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL 3 CASH TO THE TUNE OF RS.16,00,000/- AND RS.13,39,000 /- FROM HIS BANK ACCOUNT ON 24-11-09 AND 25-11-09 RESPECTIVELY, HOWE VER, ASSESSEE HAD RECORDED THIS AMOUNT IN HIS BOOKS ON 23-11-09. ACCORDINGLY, THE AO TREATED AN AMOUNT OF RS.29,39,000/- AS UNEXPLAIN ED IN THE HANDS OF ASSESSEE AS ON 23-11-2009. IN THIS REGARD, THE STATEMENT OF SHRI HANIF KHAN WAS RECORDED, WHEREIN HE STATED THAT HE WAS LOOKING AFTER BUSINESS OF ASSESSEE, SHRI HEMRAJ SAINI AND ALSO HA VING HIS OWN TRUCK BUSINESS IN WHICH HE WAS CARRYING THE VEGETABLES. H E FURTHER STATED THAT THE AMOUNT OF RS.16,00,000/- AND RS. 13,39,000 /- WAS WITHDRAWN BY HIM FROM HIS BANK ACCOUNT ON 24 TH & 25 TH NOV., 09 RESPECTIVELY, WHICH WAS HANDED OVER TO THE ASSESSEE AS HIS SALE P ROCEEDS. THUS, NEITHER WITHDRAWAL OF CASH FROM THE BANK WAS DOUBTE D NOR IT WAS DOUBTED THAT CASH WAS HANDED OVER TO ASSESSEE. MERE LY ON THE PLEA THAT ENTRY WAS DONE BY ASSESSEE IN HIS BOOKS ON 23 RD NOVE.09, WHICH IS ONE DAY PRIOR TO THE DAY OF RECEIPT, THE AO HAS TREATED THE SAME AS UNEXPLAINED. IT APPEARS THAT IT WAS MERELY AN INADV ERTENT MISTAKE OF RECORDING THE RECEIPT ON 23-11-09 IN PLACE OF 24 TH & 25 TH NOV., 09, WHICH CREATED ENTIRE CONFUSION. TO ASCERTAIN THAT T HE ASSESSEE HAS USED THIS AMOUNT ON 23-11-09 NEITHER THE AO NOR THE LD.CIT(A) MADE AN ENQUIRY WITH THE PERSON, TO WHOM PART OF THE AMO UNT WAS ALLEGEDLY PAID BY ASSESSEE. IT IS ALSO NOT IN DISPUTE THAT TO TAL AMOUNT OF RS.29,39,000/- (RS.16,00,000 + RS. 13,39,000/-) WAS RECEIVED BY THE ASSESSEE AGAINST SALE PROCEEDS THROUGH SHRI HANIF K HAN, WHO USED TO ITA NO.340/JP/2017 SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL 4 COLLECT THE SALE PROCEEDS ON BEHALF OF ASSESSEE FRO M VARIOUS PERSONS SITUATED OUTSIDE AND DELIVERED THE SAME TO THE ASSE SSEE. THE ASSESSEE HAS CREDITED THE SAME AS HIS INCOME WHEN IT WAS ACTUALLY RECEIVED BY HIM AND HE WAS UNAWARE OF THE FACT FROM WHICH SOURCES SHRI HANIF KHAN HAS GIVEN THE AMOUNT TO HIM. SINCE SHRI HANIF KHAN WAS ALSO DOING HIS TRANSPORT BUSINESS MERELY BECAUSE TH E WITHDRAWAL FROM HIS BANK ACCOUNT WAS ON 24 TH AND 25 TH NOV.09, IT CAN NOT BE PRESUMED THAT SHRI HANIF KHAN WAS NOT HAVING OTHER AMOUNT IN HIS HANDS. THUS, THE TOTALITY OF FACTS AND CIRCUMSTANCE S INDICATE THAT IT WAS MERELY AN INADVERTENT MISTAKE OF ENTRY IN THE BOOKS OF ACCOUNT I.E ONE DAY PRIOR, WHICH HAS LED TO ALL THE CONFUSI ONS. SINCE NEITHER THE RECEIPT OF AMOUNT AS INCOME IS DOUBTED NOR WITHDRA WAL OF AMOUNT BY SHRI HANIF KHAN FROM HIS BANK ACCOUNT IS DOUBTED, T HERE IS NO REASON FOR MAKING ANY ADDITION FOR THIS CONFUSION. ACCORDI NGLY, I DIRECT THE AO TO DELETE THE ADDITION OF RS.29,39,000/- ( RS. 16,0 0,000 + RS.13,39,000/-). 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH APRIL, 2019. SD/- JES'K LH 'KEKZ (RAMESH C SHARMA) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24 APRIL, 2019 ITA NO.340/JP/2017 SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL 5 *PP/SPS VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI HEMRAJ SAINI PROP: M/S. HEMRAJ SOHANLAL, ALWAR (RAJ.) 2. IZR;FKHZ@ THE RESPONDENT- THE I.T.O WARD 2(3), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 340/JP/2017 VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR