Shri Govind Lal Sharma, BHILWARA V. ITO, BHILWARA

ITA 352/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5307 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Assessee Lawyers: GOVIND SHARMA I N PERSON
• Keywords: Income from undisclosed sources; Peak credit; Source of fund; Corroborative evidences
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 352 / JODH /201 5 (ASST. YEAR : 200 9 - 1 0 ) SHRI GOVIND LAL SHARMA , 440, MALOLA ROAD, GAYATRI NAGAR, BHILWARA . VS. ITO, WARD - 1, BHILWARA. PAN NO. CARPS 4412 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GOVIND SHARMA . ( I N PERSON) DEPARTMENT BY : SHRI S.L. MOURYA - DR DATE OF HEARING : 09 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 09 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , AJMER , DATED 2 9 /0 5 /201 5 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 3,45,488/ - 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT DURING THE YEAR , ASSESSEE HAS DEPOSITED CASH OF RS. 18,72,450/ - IN ORIENTAL BANK OF COMMERCE BANK ACCOUNT NO.00802010031900 . WHEN REQUIRE D TO FURNISH SOURCE OF SUCH BANK DEPOSITS, THE ASSESSEE SUBMITTED TH A T THE TRANSACT I ON OF RS. 18,72,450/ - WERE MADE DUE TO FREQUENT DEPOSITS & WITHDRAWALS OF THE AMOUNT. HE FURTHER SUBMITTED 2 ITA NO. 352 / JODH /201 5 THAT RS. 2,75,000/ - RECEIVED FROM SMT . KANKU BAI, MOTHER OF THE ASSESSEE , RS. 2,20,000/ - FROM LATE SHRI BALURAM SHARMA, FATHER OF THE ASSESSEE, RS. 1,50,000/ - FROM SHRI KAILASH CHOUDHARY AND RS. 50,000/ - FROM SHRI SATYA NARAYAN SEN, OWNER OF DTDC COURIER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , SMT. KANKU BAI STATED ON OATH BEFORE THE ASSESSING OFFICER THAT SHE HAD SOLD HER ANCESTRAL AGRICULTURE LAND SITUATED AT TEHSIL MANDAL AND OUT OF SALE CONSIDERATION, SHE HAD GIVEN RS. 2,75,000/ - TO THE ASSESSEE, BUT SHE FAILED TO FURNISH REGISTRY OF SAID TRANSACTION AS REQUIRED BY THE ASSESSING OFFICER. SHRI SATYA NARAYAN SEN AFFIRMED THAT HE HAS GIVEN RS. 50,000/ - WITHOUT INTEREST TO THE ASSESSEE. IN THE STATEMENT, SHRI KAILASH CHOUDHARY HAS STATED THAT HE HAS NEVER GIVEN CASH OF RS. 2,00,000/ - TO THE ASSESSEE BUT DUE TO ENGAGED IN SIMILAR BUSINESS TRANSACTIONS BETWEEN RS. 1,00,000/ - TO 50,000/ - HAVE BEEN MADE BETWEEN THEM. IN VIEW OF THE A B OVE STATEMENTS GIVEN ON OATH , THE ASSESSING OFFICER HELD THAT ONLY SHRI SATYA NARAYAN SEN HAS CONFIRMED OF HAVING GIVEN RS. 50,000/ - TO THE ASSESSEE . THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO LINK THE BANK DEPOSITS WITH WITHDRAWALS MADE BY HIM. AFTER CONSIDERING THE SUBMISSIONS AND STATEMENTS SHOWING CASH DEPOSITS AND WITHDRAWALS, THE ASSESSING OFFICER HAS NOTED THAT THE ASSESSEE HAS CLAIMED INCOME FROM BROKERAGE OF PROPERTY, INTEREST, NEWSPAPER V ENDING AND BUSINESS OF FRUITS IN HIS STATEMENTS WHILE IN THE LETTER, HE HAS STATED TO BE RUNNING KIRANA SHOP AND COURIER AGENCY , WHICH WAS ALREADY CLOSED IN 2004 . ALSO HE HAS SHOWN INCOME FROM OTHER SOURCES IN HIS RETURN OF INCOME . SO, SOURCE OF INCOME HA S NOT BEEN CORRECTLY STATED . FURTHER, NO REGISTRY OF LAND SOLD BY HIS MOTHER HAS BEEN PRODUCED BY THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION OF PEAK CREDIT BALANCE OF RS. 5,34,058/ - TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES . 4 . ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE ASSESSING OFFICER MADE THE ADDITION OF PEAK CREDIT BALANCE AS ON 3 ITA NO. 352 / JODH /201 5 13/08/2008 OF RS. 5,34,058/ - TO THE TO T AL INCOME OF THE ASSESSEE. ACCORDING TO THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS CLAIMED SOURCE OF FUNDS TO BE AS UNDER: - 1. SMT. KANKU RS. 2,75,000 2 LATE SHRI BALURAM RS. 2,20,000 3 SATYA NARAYAN SEN RS. 50,000 4 KAILASH CHAN D CHOUDHARY (RS. 1 LAKH TO RS. 1.50 LAKH) RS. 1,00,000 5 OWN FUNDS RS. 33,570 TOTAL RS. 6,78,570 THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT REGARDING RECEIPT OF RS. 2,75,000/ - FROM SMT. KANKU BAI, MOTHER OF THE ASSESSEE , IT IS SEEN THAT SHE HAS CLAIMED TO HAVE RECEIVED A SUM OF RS. 21 LAC FROM SALE OF LAND . HOWEVER, AS PER THE REGISTRATION DOCUMENTS PRODUCED, THE SALE OF THIS LAND WAS MADE ON 27/10/2008 I.E. AFTER THE PEAK CREDIT BALANCE AS ON 13/08/2008 . EVEN IN THE LETTER WRITTEN BY SHRI BABU LAL ON 17/05/2010 TO DISTRICT MAGISTRATE , IT HAS BEEN MENTIONED THAT SALE WAS MADE ONE YEAR PRIOR TO WRITING OF SAID LETTER . THE ABOVE FACT SHOWS THAT NO CREDIT FOR ANY AMOUNT RECEIVED FROM THE SALE OF LAND CAN BE GIVEN TO THE ASSESSEE AS ON DATE OF PEAK BALANCE. 5. REGARDING THE SOURCE OF FUNDS CLAIMED TO HAVE BEEN RECEIVED FROM SHRI SATYA NARAYAN SEN AND SHRI KAILASH CHOUDHARY, THE ASSESSING OFFICER HAS RECORDED THE STATEMENTS UNDER SEC. 131 OF THE IT ACT WHEREIN SHRI SATYA NARAYAN SEN AND SHRI KAILASH CHOUDHARY HAVE CONFIRMED OF HAVING GIVEN AN AMOUNT OF RS. 50,000/ - AND 1,00,000/ - TO RS. 50,000/ - RESPECTIVELY TO THE ASSESSEE. BOTH THE PERSONS HAVE ALSO FURNISHED THE AFFIDAVITS DECLARING THAT THE AMOUNT WAS GI V EN BETWEEN 1 S T JULY TO 12/15 AUGUST, 2008 TO THE ASSESSEE. THUS, THE IDENTITIES OF PAYERS AND GENUINENESS OF TRANSACTIONS HAS BEEN PROVED BY THE ASSESSEE IN ABOVE TWO CASES. SHRI SATYA NARAYAN SEN AND SHRI KAILASH CHOUDHARY ARE FILING THE RETURNS OF INCOME SINCE LAST THREE AND FOUR 4 ITA NO. 352 / JODH /201 5 YEARS. THUS, THE ASSESSEE HAS DISCHARGED HIS INITIAL ONUS REGARDING RECEIPT OF SOURCE OF FUNDS IN HIS HAND FROM THE ABOVE TWO PERSONS . 6 . REGARDING THE SUM OF RS. 2,20,000/ - CLAIMED TO H A VE BEEN RECEIVED FROM ASSESSEES FATHER LATE SHRI BALURAM SHARMA, THE ASSESSEE FAILED TO SUBMIT ANY SUPPORTING EVIDENCE TO PROVE HIS CLAIM. FURTHER, IN THE LETTER DATED 17/05/2010 ADDRESSED TO DISTRICT COLLECTOR, IT WAS MENTIONED BY LATE SHRI BALURAM THAT ONE YE AR BACK HE HA D SOLD 9 BIGHA 15 BISWA LAND SITUATED AT PALI - BHILWARA ROAD FOR WHICH RS.21,00,000/ - WAS RECEIVED WHICH WAS HANDED OVER TO HIS WIFE SMT. KANKU BAI. THUS, THERE WAS NO SALE CONSIDERATION WHICH WAS KEPT BY SHRI BALURAM WITH HIM . NO FURTHER SOURCE OF RS. 2,20,000/ - AVAILABLE WITH SHRI BALURAM HAS BEEN MENTIONED BY THE ASSESSEE. MOREOVER, THE SAID TRANSACTION IS OF THE LATER PERIOD THAN THE DATE OF PEAK DETERMINATION BY THE ASSESSING OFFICER. THEREFORE, ASSESSEES EXPLANATION IN THIS REGARD WAS REJECTED BY THE COMMISSIONER OF INCOME TAX (APPEALS). HENCE, COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED RS. 50,000/ - FROM SHRI SATYA NARAYAN SEN, RS. 1,00,000/ - FROM SHRI KAILASH CHOUDHARY AND RS. 3 3,570/ - FROM OWN FUNDS IS CONSIDERED AS EXPLAINED AND ALLOWED RELIEF OF RS. 1,88,570/ - AND CONFIRMED THE BALANCE OF RS. 3,45,488/ - . 7. THE ASSESSEE APPEARED IN PERSON AND REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES , WHEREAS DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE COMMISSIONER OF INCOME TAX (APPEALS) REJ E CTED THE EXPLANATION OF THE ASSESSEE OF HAVING RECEIVED OF RS. 2, 75 ,000/ - FROM HIS MOTHER SMT. KANKU BAI AND RS. 2,20,000/ - FROM LATE SHRI BALURAM SHARMA FATHER OF THE ASSESSEE ONLY ON THE GROUND TH A T THE PEAK CREDIT WAS DETERMINED BY 5 ITA NO. 352 / JODH /201 5 THE ASSESSING OFFICER ON 13/08/2008 AT RS. 5,34,058/ - AND AS PER THE REGIST R ATION DOCUMENT PRODUCED , THE SALE OF LAND WAS MADE ON 27/10/2008 I.E. AFTER THE PEAK CREDIT BALANCE AS ON 13/08/2008 . WE FIND THAT BOTH THE LOWER AUTHORITIES HAVE BROUGHT ABSOLUTELY NO MATERIAL ON RECORD AFTER VERIFICATION WHETHER THE FATHER OF THE ASSESSEE HAD RECEIVED THE ENTIRE AMOUNT OF RS. 21 LAC BEING CONSIDERATION OF SALE OF LAND ON 27/10/2008 OR SOME AMOUNT WAS RECEIVED EARLIER TO 27/10/2008 AND 13/08/2008 . IN OUR CONSIDERED OPINION, SOME AMOUNT OF MONEY BEING RECEIVED PRIOR TO THE REGISTRATION OF SALE DEED BY THE ASSESSEE CANNOT BE RULED OUT , HENCE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE ADDITION SUSTAINED BY THE COMMISSIONER OF INCOME TAX (APPEALS) OF RS. 3,4 5,488/ - CANNOT BE SUSTAINED . HENCE, WE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND DELETE THE BALANCE AMOUNT OF ADDITION OF RS. 3,45,488/ - AND ALLOW THE G R OUND OF APPEAL OF THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY , THE 0 9 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 0 9 TH MARCH , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER .