AMIT KUMAR ALIAS PINTU, BHARATPUR V. ITO, BHARATPUR

ITA 371/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 47970 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: K K GUPTA; RAJENDRA AGARWAL
• Keywords: Loose papers
• Section: 69; 148; 6; 132; 133A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR (BEFORE SHRI N.L. KALRA, ACCOUNTANT MEMBER) ITA NO. 371/JP/2011 ASSESSMENT YEAR: 2005-06 PAN ALGPK 5292 B SHRI AMIT KUMAR ALIS PINTU VS. THE ITO S/ SHRI MOHAN LAL KHATRI WARD- 2 R/O 218, SWARN JAYANTI NAGAR BHARATPUR BHARATPUR (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI RAJENDRA AGARWAL AND SHRI K.K. GUPTA DEPARTMENT BY: SHRI D.K. MEENA ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), ALWAR DATED 24-03-2010 FOR THE ASSESSMENT YEAR 2005-06. 2.1 THE REGISTRY ISSUED A LETTER TO THE LD. CIT(A), ALWAR TO ASCERTAIN THE CORRECTNESS OF THE SERVICE OF THE APPELLATE ORDER B ECAUSE THE APPELLATE ORDER WAS DATED 24-03-2010 WHILE THE ASSESSEE HAS MENTION ED IN FORM NO. 36 THAT THE ORDER WAS COMMUNICATED TO HIM ON 22 ND MARCH, 2011. THE LD. CIT(A), ALWAR VIDE LETTER DATED 12 TH MAY, 2011 HAS INTIMATED THAT THE APPELLATE ORDER SENT BY THE REGISTERED POST WAS RETURNED BACK AS UN SERVED BY THE POSTAL AUTHORITIES. THE LD. AR OF THE ASSESSEE FILED THE APPLICATION FOR OBTAINING THE 2 ORIGINAL APPELLATE ORDER AND THE ORIGINAL APPELLATE ORDER WAS SERVED ON 22- 03-2011. IN VIEW OF THESE FACTS, THE APPEAL FILED B Y THE ASSESSEE IS NOT BELATED. 2.2 THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 3,98,675/- AS UNEXPL AINED INVESTMENT U/S 69 OF THE ACT STATING THAT THE ASSESSEE INVESTED THE A MOUNT IN PRIVATE LOTTERY RUN BY SANTOSH CHAPPALWALA, BHARATPUR. 2.3 DURING THE COURSE OF PROCEEDINGS BEFORE ME, THE LD. AR HAS STATED THAT THE ISSUE STANDS COVERED BY THE DECISION OF ITAT JA IPUR BENCH IN THE CASE OF ITO VS. SHRI PREM CHAND NARANG (ITA NO.1183/ JP/201 0 DATED 11-02- 2011). IN THAT CASE, THE TRIBUNAL HAS UPHELD THE RE OPENING OF THE ASSESSMENT. IN RESPECT OF THE ADDITION MADE ON THE BASIS OF TH E LOOSE PAPERS FOUND AT THE BUSINESS PREMISES OF SHRI NARESH MATLANI, THE ADDIT ION WAS DELETED BY THE TRIBUNAL. IT WILL BE USEFUL TO REPRODUCE THE FOLLOW ING PARAGRAPH FROM THE ORDER OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRI P REM CHAND NARANG, (SUPRA). 2.6. WE HAVE NOTICED THAT THE STATEMENTS OF SHRI BA NWARI LAL AND SHRI OM PRAKASH HAD BEEN RECORDED ON 19 TH DEC. 2007. THESE STATEMENTS HAVE BEEN RECORDED BEFORE THE INITIATION OF PROCEEDINGS U/S 148 OF THE ACT. THE INFORMATIONS CONTAINED IN THESE STA TEMENTS CAN BE USED FOR REOPENING OF THE ASSESSMENT. HOWEVER, AFTER REOPENI NG OF THE ASSESSMENT, THE AO WAS REQUIRED TO CONFRONT THE EVIDENCE TO THE ASSESSEE AND IN CASE 3 THE ASSESSEE WANTED TO HAVE CROSS EXAMINATIONS OF T HESE TWO PERSONS THEN SAID CROSS EXAMINATIONS WAS REQUIRED. IT IS NOTICED THAT BOTH THESE TWO PERSONS WERE NOT HAVING INCOME BELOW TAXABLE LIMIT AND THEREFORE, WERE NOT INCOME TAX ASSESSEES. THE QUANTUM INVOLVED IN B OTH THE CASES IS AROUND RS. 15,000/-. THE ITAT AMRISTAR BENCH IN THE CASE OF ITO VS. BALRAM JAKHAR, 98 TTJ 924 CANCELLED THE ASSESSMENT ON REASONS INCLUDING THE FACT THAT THE AO DID NOT GIVE OPPORTUNITY TO CR OSS EXAMINE THE PERSONS WHO HAD GIVEN THE STATEMENTS AGAINST THE ASSESSEE B EHIND HIS BACK. THE LD. CIT(A) HAS ALSO MENTIONED THAT THE CROSS EXAMINATIO NS HAVE NOT BEEN PROVIDED. WE THEREFORE, FEEL THAT THE LD. CIT(A) W AS JUSTIFIED IN DELETING THE ADDITION ON THE ISSUE OF ADDITION ON THE GROUND OF NOT PROVIDING CROSS EXAMINATIONS TO THE ASSESSEE. 2.7 SECTION 292C REFERS TO THE PRESUMPTION IN RESPE CT OF BOOKS OF ACCOUNT AND DOCUMENTS FOUND IN THE POSSESSION AN D CONTROL OF ANY PERSON IN THE COURSE OF SURVEY U/S 133A OF THE ACT. THE PRESUMPTION WHICH MAY BE MADE FOR ANY PROCEEDINGS UNDER THE ACT ARE AS UNDER:- ( I ) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONE Y, BULLION, JEWELLERYOR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; ( II ) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OT HER DOCUMENTS ARE TRUE; AND ( III ) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH B OOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRIT ING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUME D TO HAVE BEEN SIGNED BY, OR TO BE IN THE HANDWRITING OF, ANY PART ICULAR PERSON, ARE IN THAT PERSONS HANDWRITING, AND IN THE CASE OF A DOC UMENT STAMPED, EXECUTED OR ATTESTED, THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED.] 2.8 SECTION USES THE WORD MAY. THE WORD MAY L EAVE IT TO THE COURT TO MAKE OR NOT TO MAKE PRESUMPTION ACCORD ING TO THE CIRCUMSTANCES OF THE CASE. SUCH PRESUMPTION IS OPTI ONAL AND THE COURT IS NOT BOUND TO MAKE IT. SECTION HAS NOT CONTAINED THE WORD SHALL PRESUME. 4 SIMILAR WORDING OF MAY PRESUME IS CONTAINED IN SE CTION 132(4A) OF THE ACT. THE JURISDICTIONAL HIGH COURT IN THE CASE OF C IT VS. SMS INVESTMENT CORPORATION (P) LTD, 207 ITR 364 HAS HELD THAT PRES UMPTION IS REBUTTABLE. IN THAT CASE, SEIZED PAPER SHOWED THE CALCULATION O F COMPOUNDING INTEREST WHILE AGREEMENT WAS IN RESPECT OF RECEIVING THE SIM PLE INTEREST. THE HON'BLE HIGH COURT HELD THAT PRESUMPTION IN SECTION 132(4A) IS REBUTTABLE. IN VIEW OF THE FACTUAL POSITION, THE RE OPENING OF THE ASSESSMENT WAS INVALID ON THE GROUND THAT THE ASSESSEE HAS REC EIVED COMPOUND INTEREST. THE PRESUMPTION MENTIONED IN SECTION 132 (4A) IS SIMILAR TO PRESUMPTION U/S 292C OF THE ACT. THE ITAT AHEMDABAD BENCH IN THE CASE OF UNIQUE ORGANIORS AND DEVEOPERS (P) LTD VS. DCIT , 70 TTJ 131 HELD THAT PRESUMPTION CANNOT BE APPLICABLE TO A THI RD PARTY FROM WHOSE POSSESSION SUCH DOCUMENTS HAVE NOT BEEN FOUND BY T HE REVENUE. THE HON'BLE APEX COURT IN THE CASE OF STATE OF WEST BEN GAL VS. EITA INDIA LTD (2003) 5 SCC 239 HAD AN OCCASION TO CONSIDER TH E DISTINCTION BETWEEN THE WORD MAY AND SHALL PRESUME. IN THE CASE OF MAY PRESUME THE FACT IS TO BE CONSIDERED AS PROVED UNLESS AND UNTIL IT IS DISPROVED OR MAY CALL FOR PROVE OF IT. THE ITAT AHEMDABD BENCH IN TH E CASE OF SHETH AKSHAY PUSHPAVADAN VS. DCIT, 130 TTJ 42 (UO) HELD T HAT PAYMENT OF ON-MONEY ON THE BASIS OF DIARY SEIZED FROM THE THIR D PARTY CANNOT BE CONSIDERED FOR THE PURPOSE OF MAKING ADDITION U/S 6 9 OF THE ACT. WE THEREFORE, HOLD THAT THE LD. CIT(A) WAS JUSTIFIED I N DELETING THE ADDITION. THE LD. CIT(A) HAS ALSO CONSIDERED THE ALTERNATE SU BMISSIONS IN RESPECT OF AVAILABILITY OF FUNDS WITH ALL THE FAMILY MEMBERS O F THE ASSESSEE AND THE ADDITION COULD NOT HAVE BEEN MADE EVEN IF THE ENTRY IN THE DOCUMENT IS TO BE PRESUMED AS CORRECT. 2.4 FOLLOWING THE ORDER OF THE ITAT JAIPUR BENCH (S UPRA) , I HOLD THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDI TION OF RS. 3,98,675/-. 5 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30-06 -2011. SD/- (N.L. KALRA) ACCOUNTANT MEMBER JAIPUR DATED: 30/06/2011 *MISHRA COPY FORWARDED TO:- 1. SHRI AMIT KUMAR ALIAS PINTU, BHARATPUR 2.THE I.T.O. , WARD -2, BHARATPUR BY ORDER 3.THE LD. CIT(A) 4.THE LD. CIT 5.THE LD. DR 6.THE GUARD FILE (I.T.A. NO 371/JP/11) A.R. IT AT: JAIPUR 6 7