Sh. Rajendra Prasad Chaturvedi, Mathura V. I.T.O.-3(3), Mathura

ITA 36/AGR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89207 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 25-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BELU SINHA
• Assessee Lawyers: PANKAJ GARGH
• Keywords: Onus to prove

Judgement Text

I.T.A. NO.36/AGRA/2014 ASSESSMENT YEAR: 2006-07 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE: SHRI G.C. GUPTA, VICE-PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 36/AGRA/2014 ASSESSMENT YEAR: 2006-07 SHRI RAJENDRA PRASAD CHATURVEDI, VS. INCOME-TAX OFF ICER, 1031, MARU GALI, MATHURA. 3(3), MATHURA. [PAN : ACXPC 2849 Q] APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SMT. BELU SINHA, SR. D.R. DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 24.07.2015 O R D E R PER G.C. GUPTA, V.P. : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2006-07 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). THERE IS DELAY OF 297 DAYS IN FILING THE PRESENT APPEAL BEFORE THE TRIBUNAL. T HE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY, EXPLAIN ING THE REASONS FOR THE DELAY IN FILING THE PRESENT APPEAL BEFORE THE T RIBUNAL. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE WAS SUFFERING FROM HYPERTENSION AND DEPRES SION SINCE FEBRUARY, 2013 AND COULD NOT HAND OVER THE APPELLAT E ORDER TO THE CHARTERED ACCOUNTANT SHRI S.K. SHARMA WHO ARGUED TH E CASE BEFORE THE CIT(A). HE SUBMITTED THAT CORROBORATIVE EVIDENC E IN THE FORM OF MEDICAL CERTIFICATE FROM DR. HARI SHANKER, MATHURA HAS BEEN ENCLOSED I.T.A. NO.36/AGRA/2014 ASSESSMENT YEAR: 2006-07 PAGE 2 OF 4 WITH THE APPLICATION FOR CONDONATION OF DELAY. THE LEARNED DR OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS REGARDI NG THE ISSUE OF CONDONATION OF DELAY. IN THE CIRCUMSTANCES EXPLA INED BY THE LD. COUNSEL FOR THE APPELLANT, WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME BEFORE THE TRIBUNAL AND ACCORDINGLY, THE DELAY OF 297 DAYS IN PREFERRING TH E APPEAL BEFORE THE TRIBUNAL IS CONDONED. 4. THE ONLY EFFECTIVE GROUND OF APPEAL OF ASSESSEE IS GROUND NO. 2, WHICH IS REPRODUCED AS UNDER : 2. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADDITION OF RS.8,00,000/- OUT OF THE ADDITION OF RS.8,20,420/- MADE BY THE ASSESSING OFFICER FOR SO CALLED UNDISCLOSED INCOME BEING THE AMOUNT OF CASH DEPOSIT ED IN BANK. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE, A BRAHMIN BY CASTE, IS DOING TRADITIONAL PROFESSION OF PANDITAI AT MATHURA. HE SUBMITTED THAT THE ASSESSEE HAS NO OTHE R SOURCE OF INCOME EXCEPT PANDITAI AND COULD NOT HAVE EARNED A SUM OF RS.8,00,000/- FROM THIS PROFESSION AT MATHURA. HE S UBMITTED THAT IT IS A NO ACCOUNT CASE AND NO CAPITAL ACCOUNT WAS PREPAR ED BY THE ASSESSEE. HE SUBMITTED THAT THE AMOUNT OF RS.9,00,0 00/- WAS DEPOSITED BY THE ASSESSEE IN ITS BANK ACCOUNT ON RE CEIPT THEREOF FROM HIS AGED AND AILING MOTHER, WHO, IN TURN, GOT THE S AME AMOUNT FROM THE FATHER OF THE ASSESSEE WHO HAS ALSO EXPIRED. HE SUBMITTED THAT I.T.A. NO.36/AGRA/2014 ASSESSMENT YEAR: 2006-07 PAGE 3 OF 4 THE AMOUNT DEPOSITED IN THE BANK ACCOUNT WITH CENTR AL BANK OF INDIA, MATHURA WAS THE LIFETIME SAVING OF HIS FATHER, WHO EXPIRED ON 11.01.2002 AND THEREFORE, THERE COULD NOT BE ANY DO CUMENTARY EVIDENCE FOR THE SAME. 6. THE LEARNED DR REFERRED TO THE RELEVANT PORTION OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVE NUE, WHEREIN IT IS SPECIFICALLY RECORDED THAT THE ASSESSEE COULD NOT G IVE ANY SATISFACTORY REPLY TO THE QUERY OF THE AO REGARDING THE SOURCE OF RS.9,00,000/- DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. SHE SUBMITTED THAT ONUS WAS ON THE ASSESSEE TO PROVE TH E SOURCE OF DEPOSIT IN THE BANK ACCOUNT. SHE RELIED ON THE ORDE R OF THE AO AND THE CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT T HE BASIC FACTS OF THE CASE ARE NOT IN DISPUTE IN THIS CASE. THE ASSES SEE IS ENGAGED IN THE ANCESTRAL AND TRADITIONAL PROFESSION OF PANDIT AI IN THE RELIGIOUS CITY OF MATHURA. HIS CLAIM IS THAT THE AMOUNT OF RS .9,00,000/- DEPOSITED IN THE BANK ACCOUNT REPRESENTS LIFETIME S AVINGS OF HIS LATE FATHER. WE FIND THAT THERE IS NO MATERIAL BROUGHT O N RECORD TO SUGGEST THAT HIS FATHER HAS UTILIZED THIS LIFETIME SAVING A MOUNT IN CREATION OF SOME OTHER ASSETS OR FIXED DEPOSITS ETC. DESPITE TH AT THE ONUS TO PROVE THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT IS ON THE ASSESSEE, BUT IT IS ALSO TRUE THAT WHILE MAKING AN ADDITION O N ACCOUNT OF UNDISCLOSED INCOME, A REALISTIC VIEW, CONSIDERING A LL THE FACTS AND CIRCUMSTANCES, HAS TO BE TAKEN. IN THE PRESENT CASE BEFORE US, I.T.A. NO.36/AGRA/2014 ASSESSMENT YEAR: 2006-07 PAGE 4 OF 4 CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE FACT THAT THE ASSESSEE COULD NOT FILE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CASE, BUT THE DEPARTMENT , ON THE OTHER HAND, HAS ALSO NOT PROVED THAT LIFETIME SAVINGS OF ASSESSEES FATHER WERE UTILIZED IN CREATION OF SOME MOVABLE OR IMMOVA BLE ASSETS AND THAT THE DISPUTED AMOUNT OF RS.9,00,000/- WAS NOT G IVEN BY LATE FATHER OF THE ASSESSEE TO THE MOTHER OF THE ASSESSE E WHO, IN TURN, IS SAID TO HAVE GIVEN THE MONEY TO THE ASSESSEE, WE AR E OF THE VIEW THAT THE ENDS OF JUSTICE SHALL BE MET IF ADDITION OF RS. 3,50,000/- IS SUSTAINED AS AGAINST ADDITION OF RS.8,00,000/- SUST AINED BY THE CIT(A) BY WAY OF ESTIMATE AND PREPONDERANCE OF PROB ABILITIES AND THE BALANCE ADDITION IS DELETED. ACCORDINGLY, THE GROUN D OF APPEAL NO. 2 OF THE ASSESSEE IS PARTLY ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JULY, 2015. SD/- SD/- INTURI RAMA RAO G.C. GUPTA (ACCOUNTANT MEMBER) (VICE- PRESIDEN T) DATED: AGRA: 24 TH JULY, 2015 *AKS/- COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE(6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA