Banwari Lal Chhabra, ANOOPGARH V. ITO, SURATGARH

ITA 342/JODH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82931 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH: JODHPUR (BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER) ITA. NO. 342 /JODH/201 4 [ ASSTT. YEAR - 200 9 - 10] SHRI BANWARI LAL CHHABRA VS INCOME - TA X OFFICER ANOOPGARH SURATGARH. PAN NO. ADMPC 1272 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH OJHA DEPARTMENT BY : SHRI JAI S INGH - D.R. DATE OF HEARING : 2 6/08/2014 DATE OF PRONOUNCEMENT : 11 /0 9 /2014 O R D E R PE R HARI OM MARATHA, J.M.: THIS APPEAL OF THE ASSESSEE FOR A.Y. 2009 - 10, IS DIRECT ED AGAINST THE ORDER OF LD. CIT (A), BIKANER, DATED 04.03.2014. 2. THE ASSESSEE HAS RAISED ADDITIONAL/REVISED GROUND WHICH HAS BEEN ADMITTED, VIDE ORDER DATED 24.07.2014. TH IS GROUND READS AS UNDER: THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) AMOUNTING TO RS. 2 , 29 , 000 / - AND RS. 3,16,150/ - IS ILLEGAL AND AGAINST LAW. 2 2.1 BRIEFLY STATED, THE FACTS OF THIS CASE ARE THAT THE ASSESSEE IS THE PROPRIETOR OF M/S PAWAN GUEST HOUS E, ANOOPGARH WHICH RUNS A GUEST - HOUSE. FOR A.Y.2009 - 10, THE ASSESSEE HAS FILED HIS RETURN OF INCOME (ROI) ON 03.11.2009, DECLARING TOTAL INCOME OF RS. 1, 39,710/ - . HE HAS ALSO SHOWN AGRICULTURAL INCOME OF RS. 1, 94,374/ - . AS AGAINST THIS , HIS TOTAL INCOME HAS BEEN COMPUTED AT RS.09, 05,925/ - . TH E AO HAS ADDED A SUM OF RS. 03, 16,150/ - ON ACCOUNT OF TRADING ADDITION, AND A SUM OF RS. 02, 29,000/ - ON ACCOUNT OF UNEXPLAINED DEPOSITS IN HIS OBC BANK ACCOUNT, INTER ALIA. BOTH THE ABOVE ADDITIONS HAVE BEEN CONFIRME D BY LD. CIT(A). THE ASSESSEE IS FURTHER AGGRIEVED AND HAS FILED H IS SECOND APPEAL. 2.3 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. THE FACTS APROPOS OF ADDITION OF RS. 3,16,150/ - ARE THAT THE ASSESSEE IS NOT MAINTAIN ING BOOKS OF ACCOUNT IN RESPECT OF GUEST - HOUSE BUSINESS. HE ONLY MAINTAINED INWARD AND OUTWARD REGISTER. THE AO HAS FOUND THAT THE INCOME CANNOT BE DEDUCED FROM INWARD/OUTWARD ENTRIES AS EXACT RECEIPTS RECEIVED HAVE NOT BEEN MAINTAINED THEREIN. THIS INSPECTOR HAS PRODUCED A REPORT AND ON THE BASIS OF THAT REPORT , T HE AO HAS ESTIMATED TOTAL RECEIPTS FROM GUEST - HOUSE BUSINESS AT RS.18,25,300/ - AS AGAINST OF RS. 4,13,850/ - DISCLOSED 3 BY THE ASSESSEE. K EEPING INTO CONSIDERATION OF THE TOWN OF ANOOPGARH WHERE THERE ARE NO GOOD HOTELS, THE AO HAS ESTIMATED OCCUPANCY @ 40% AS AGAINST SHOWN AT 22.68%, AND HAS ADDED RS. 3,16,150/ - . THE L D. CIT(A) HAS ALSO CONFI RM ED THIS ADDITION. 2.4 BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. IN OUR CONSIDERED OPINION , THIS E S T IMATED ADDITION IS BASELESS AND UNCALLED FOR. THE NUMBER OF GUEST S STAYING IN THE GUEST - HOUSE CANNOT BE ESTIMATED IN THE MANNER IT HAS BEEN DONE. HAD THERE BEEN MANY VISITORS, AS HAS BEEN RE ASONED BY THE AO AND APPROVED BY L D. CIT(A), THER E WOULD HAVE BEEN MANY MORE GOOD - HOTELS. THE ASSESSEE HAS DARED TO RUN A GUEST - HOUSE WHICH ITSELF SHOWS THAT THERE ARE NO GOOD NUMBER OF VISITORS. THE REPORT OF THE I NSPECTOR W AS NEVER CO NFRONTED TO THE ASSESSEE AND IT IS NOT COMING ON RECORD AS TO FROM WH ICH GUEST HOUSE HE HAS COMPARED THE CASE OF THE ASSESSEE. THE IMPUGNED ADDITION IS SIMPLY BASELESS AND CANNOT BE JUSTIFIED. ACCORDINGLY, WE ORDER TO DELETE THIS ADDITION. 3. THE OTHER PART OF THE ADDITIONAL GROUND IS REGARDING THE CONFI RM ED ADDITION OF RS . 2,29,000/ - . THE FACTS OF THIS ISSUE ARE THAT THE AO NOTICED CREDITS IN THE OBC BANK ACCOUNT OF THE ASSESSEE, ON 4 DIFFERENT DATES TOTALLY TO RS. 2,29,000/ - . AS PER THE ASSESSEE THE S E DEPOSITS REPRESENT LOANS TAKEN FROM DIFFERENT PERSONS AND FROM HIS AGRICU LTURAL INCOME. THE ASSESSEE HAS ALSO FILED AFFI DAVIT OF A PERSON FROM WHOM THE ASSESSEE HAS TAKEN LOAN. THE CONTENTS OF THESE AFFIDAVITS HAVE NOT BEEN CONTROVERTED BY THE AO. THE L D. AR HAS ASSERTED THAT THE DEPOSITS MADE IN BANK ACCOUNT BY THE ASSESSEE ST AND EXPLAINED ON RECORD. THE SUBMISSION OF THE ASSESSEE, IN DETAIL, IS AS UNDER : AS REGARDS ADDITION OF RS. 229000.00 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT THE ASSESSEE DEPOSITED A SUM OF RS. 229000.00 IN BANK. THE ASSESSEE SUBMITTED REPLY DA TED NIL, FOR YOUR READY REFERENCE, COPY THEREOF IS BEING ENCLOSED HEREWITH IN RESPONSE TO LETTER DATED 23.12.2011 OF THE ASSESSING OFFICER. AS FAR AS EXPLANATION OF RS. 95000.00 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT THE AMOUNT CONSISTING OF RS . 15000.00 RECEIVED FROM SH. HARNEK SINGH ON DATED 10.7.2008, RS. 18000.00 FROM SH. SATPAL ON DATED 8.7.2008, RS. 18000.00 FROM SH. CHHINDA SINGH ON DATED - 03 - 07 - 2008 AND RS. 19000.00 FROM SH. RAVINDRA KUMAR. THE REST OF AMOUNT WAS DEPOSITED OUT OF CASH LYI NG WITH HIM. ON THAT DAY THE CASH POSITION WAS RS. 69975.00. IN SUPPORT OF THE AVAILABILITY OF CASH I AM ENCLOSING HEREWITH BALANCE SHEET OF 31.03.2008. 5 SHRI. RAVINDER KUMAR THERE IS A CREDIT OF RS. 19000.00 ON 12.07.2008 THERE IS SAVING FROM AGRICULTURE I NCOME, HE IS HAVING 9 BHIGHA IRRIGATED AGRICULTURAL LAND. HE IS EXISTING INCOME - TAX ASSESSEE ASSESSED TO TAX. THE AMOUNT ADVANCED BY THE CREDITOR WAS ALSO RETURNED BACK TO THE CREDITOR ON 29.08.2008. AN AFFIDAVIT STATING FULL FACTS IS BEING ENCLOSED HEREWI TH. SHRI. HERNEK SINGH THERE IS A CREDIT OF RS. 15000.00 ON 10 - 07 - 2007THERE IS SAVING FROM AGRICULTURE INCOME; HE IS HAVING35 BHIGHA IRRIGATED AGRICULTURAL LAND. HE IS EXISTING INCOME - TAX ASSESSEE ASSESSED TO TAX. THE AMOUNT ADVANCED BY THE CREDITOR WAS AL SO RETURNED BACK TO THE CREDITOR ON 20.02.2009. AN AFFIDAVIT STATING FULL FACTS IS BEING ENCLOSED HEREWITH. SHRI SATNAL THERE IS A CREDIT OF RS. 18000.00ON 08.07.2008 REPRESENT OUT OF PROFESSION FROM PETITION WRITER THE AMOUNT ADVANCED WAS ALSO RETURNED BA CK TO HIM 06.10.2008. AN AFFIDAVIT IS BEING ENCLOSED HEREWITH IS INCOME IS BELOW THE TAXABLE LIMIT, THEREFORE, NOT ASSESSED TO TAX. SHRI.CHHINDA SINGH THERE IS A CREDIT OF RS. 18000.00 ON 03.07.2008 REPRESENT OUT OF WHICH REPRESENTS OUT OF SAVING FROM AGRI CULTURE 6 INCOME. THE ASSESSEE IS HAVING 25 BHIGHA IRRIGATED AGRICULTURE LAND. THE AMOUNT ADVANCED WAS ALSO RETURNED BACK TO HIM ON 06.10.2008. AN AFFIDAVIT IS BEING ENCLOSED HEREWITH IS INCOME IS BELOW THE TAXABLE LIMIT, THEREFORE, NOT ASSESSED TO TAX. AS R EGARDS AMOUNT OF RS. 30000.00 DEPOSITED ON 11.10.2008 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT THE ASSESSEE PREVIOUSLY ADVANCED RS. 15000.00 ON DATED 2.10.2008 AND RS. 15000.00 ON DATED 30.10.2008, THE AMOUNT WAS RECEIVED BACK BY SH. VINOD KUMAR, IN SUPPORT OF THIS I AM ENCLOSING HEREWITH THE AFFIDAVIT OF SH. BANWARI LAI STATING FULL FACT. AS REGARDS DEPOSIT OF RS. 30000.00 ON 13.10.2008 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT, AMOUNT HAS TO BE TAKEN FROM SH. HARI KISHAN WHICH WAS PREVI OUSLY GIVEN TO HIM BY MEANS OF SELF CHEQUE WHICH IS REFLECTING IN THE BALANCE SHEET OF THE LAST YEAR. I AM ENCLOSING HEREWITH AN AFFIDAVIT OF SH. BANWARI LAI AND BALANCE OF LAST YEAR. AS REGARDS AMOUNT OF RS. 25000.00 DEPOSITED ON 18.10.2008 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT, THE AMOUNT IN QUESTION WAS RECEIVED BACK BY SH. PAWAN KUMAR, AMOUNT OF RS. 15000/ - WAS ADVANCE ON 03.10.2008 AND 10000/ - ON 04.10.2008. THE AMOUNT WAS RECEIVED BACK FROM SH. PAWAN KUMAR IN SUPPORT OF THIS I AM ALSO ENC LOSING HEREWITH AN AFFIDAVIT STATING FULL FACTS OF SH. BANWARI LA L . 7 AS REGARDS AMOUNT OF RS. 49000.00 DEPOSITED ON 4.11.2008 IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT, THIS REPRESENTS AMOUNT RECEIVED BY SH. ANIL KUMAR S/O SH. RATAN LAL, THE AMOUNT WAS PREVIOUSLY ADVANCED TO SH. ANIL KUMAR AND RECEIVED BACK BY THE ASSESSEE DURING THE YEAR IN SUPPORT OF THIS I AM ENCLOSING HEREWITH BALANCE SHEET OF THE LAST YEAR. THE ASSESSEE SUBMITTED THE DETAILED EXPLANATION IN DETAIL PREVIOUSLY ALSO BEFORE THE INC OME TAX OFFICER IN RESPONSE TO NOTICE DATED 23.12.2011. THE ADDITION WAS MADE ONLY BECAUSE OF THE FACT THAT THE BOOKS OF ACCOUNTS WERE NOT MAINTAINED .THE AMOUNT WERE EXPLAINED INDIVIDUALLY IN COURSE OF HEARING VIDE LETTER DATED 23.12.2011. SOURCES OF DEPO SIT WERE EXPLAINED. THE INCOME TAX OFFICER SAID NOTHING; THEREFORE IN ABSENCES OF ANY REASON THE ADDITION MADE IS ILLEGAL. I AM ENCLOSING HEREWITH AFFIDAVIT OF ALL THE CREDITORS AND ASSESSEE MENTIONED ABOVE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES YOU WIL L OBSERVE THAT THE AMOUNT IS FULLY EXPLAINED. ADDITION OF RS. 70660.00 AS REGARDS THE DISALLOWANCES OF INTEREST IS CONCERNED, IN THIS RESPECT IT IS SUBMITTED THAT ADDITION OF RS. 70660.00 DISALLOWED BY THE ASSESSING OFFICER IS ILLEGAL AND AGAINST THE LAW. IN THIS CONNECTION, I WANT TO DRAW YOUR KIND ATTENTION TOWARDS THE FACT THAT, THE ASSESSEE UNDER CONSIDERATION WHICH WAS NOT PREVIOUSLY PAID BY THE 8 ASSESSEE. IN THIS RESPECT IT WILL BE WORTHWHILE TO MENTION HERE THAT, THE DISALLOWANCES O F THE INTEREST UNDE R SECTION 43 B OF THE INCOME - TAX ACT IS ILLEGAL AND AGAINST THE LAW. IN THIS RESPECT IT WILL BE WORTHWHILE TO SUBMIT THAT, PRIOR TO MAKE THE ADDITION, NO SPECIFIC NOTICE WHATSOEVER WAS EVEN ISSUED BY THE INCOME - TAX OFFICER, IN ABSENCE OF THE SPECIFIC NOTICE THE ADDITION MADE BY THE INCOME - TAX OFFICER IS ILLEGAL AND AGAINST THE LAW. IT IS, THEREFORE, REQUESTED THAT THE ADDITION MADE AMOUNTING TO RS. 70660.00 MAY KINDLY BE DELETED. IN THIS RESPECT IT WILL BE WORTHWHILE TO MENTION HERE THAT THIS PROVISION IS AP PLICABLE WHEN BOOKS OF ACCOUNT ARE MAINTAINED. THE AO HAS NOT POINTED OUT ANY NIXES BETWEEN INTEREST BEARING AND NON INTEREST BEARING, THEREFORE THE ADDITION IS ILLEGAL AND AGAINST THE LAW. 4. THE LIST OF EVIDENCE PRODUCED IS AS UNDER : 1. AFFIDAVIT OF SHR I BANWARI LAI CHABBRA 2. AFFIDAVIT OF SHRI CHHINDA SINGH 3. AFFIDAVIT OF SHRI HEMRAJ CHABBRA 4. AFFIDAVIT OF SHRI RAVINDRA KUMAR 5. AFFIDAVIT OF SHRI HERNEK SINGH 6. AFFIDAVIT OF SHRI SATPAL 7. AFFIDA VIT OF SHRI BANWARI LAL CHABBRA REGARDING PAWAN KUMAR 8. AFFIDAVIT OF SHRI BANWARI LA L CHABBRA REGARDING VINOD KUMAR 9. AFFIDAVIT OF SHRI BANWARI LA L CHABBRA REGARDING HARI KISHAN 10. AFFIDAVIT OF SHRI BANWARI LAL CHABBRA REGARDING ANIL KUMAR 11. BANK STATEMENT OF HEMRAJ 12. BALANCE SHEET OF BANWARI LAI CH ABBRA AS ON 31 - 03 - 2008 13. NOTICE DATED 23 - 12 - 2011 9 5. PER CONTRA, LD. SR. D.R. HAS SUPPORTED THE FINDING GIVEN BY THE AUTHORITIES BELOW. 6. AFTER CONSIDERING THE RIVAL SUBMISSION S WE CANNOT IGNORE THE EVIDENCE FILED BY DEPOSITORS. ALL OF THEM HAVE ACCEPT ED THEIR DEPOSITS, WHICH ARE VERY SMALL AND HAVE ALSO EXPLAINED THEIR RESPECTIVE SOURCES. THEIR S WORN STATEMENTS HAVE REMAINED UNCONTROVERTED. T HEREFORE, IN KEEPING WITH THE LAW WHICH IS TRITE THAT AVERMENTS OF A DULY SWORN - IN AND ATTESTED AFFIDAVIT HAS TO BE ACCEPTED UNLESS CONTROVERTED WITH THE HELP OF A POSITIVE EVIDENCE. THE REVENUE HAS NOT BROUGHT IN ANY CONTRARY EVIDENCE ON RECORD. ACCORDINGLY , WE HAVE TO DELETE THIS ADDITION AS WELL. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWE D . (O RDER PRONOUN CED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2014) SD/ - SD/ - (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 TH SEPTEMBER, 2014 VL/ 10 COPY FORWARDED TO : - 1. SHRI BANWARI LAL CHHABRA, ANOOPGARH. 2. ITO, SURATGARH. 3. CIT, BIKANER 4. CIT (A), BIKANER . 5. CIT,DR, ITAT, JODHPUR. BY ORDER, AR, ITAT, JODHPUR.