BIRBAL RAM MEENA, Jaipur V. ITO, Jaipur

ITA 410/JPR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62004 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 04-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA KUMARI MEENA
• Assessee Lawyers: G M MEHTA
• Keywords: Source of fund

Judgement Text

1 ITA 410-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : A JAIPUR. BEFORE SHRI R.K. GUPTA AND SHRI SANJAY ARORA ITA NO. 410/JP/2011 ASSTT. YEAR : 2003-04. SHRI BIRBAL RAM MEENA, VS. THE INCOME-TAX OFFICER , JAIPUR. WARD 1(4), JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.M. MEHTA RESPONDENT BY : MS ROSHANTA KUMARI MEENA DATE OF HEARING : 12.04.2012. DATE OF PRONOUNCEMENT : 20.4.2012. ORDER DATE OF ORDER : 20/04/2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2003-04. 2. GROUND NO. 1 IS AGAINST REOPENING OF THE ASSESSM ENT UNDER SECTION 147/148 WAS NOT PRESSED, THEREFORE, THE SAME IS DISMISSED AS NO T PRESSED. 3. GROUND NO. 2 IS AGAINST SUSTAINING ADDITION OF R S. 12,91,000/- ON ACCOUNT OF CASH FOUND AT THE RESIDENCE OF ASSESSEE DURING THE COURS E OF SEARCH BY CBI. 4. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN OFFICER OF IN ARCHAEOLOGICAL DEPARTMENT. A SEARCH OPERATION WAS CARRIED OUT BY THE CBI ON 24.4.2002 AT THE RESIDENCE OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH FOUND AND SEIZED 2 WHEN IT WAS EXPLAINED THAT ASSESSEES BROTHER-IN-LA W SHRI RATAN LAL MEENA WAS A PROPERTY DEALER AND AN EXISTING INCOME-TAX ASSESSEE . DURING THE COURSE OF SURVEY THE ASSESSEE WAS NOT PRESENT AS HE WAS OUT OF STATION O N GOVERNMENT DUTY. HOWEVER, HIS BROTHER-IN-LAW SHRI RATAN LAL MEENA WAS PRESENT WHO OWNED THAT CASH OF RS. 12,91,000/- BELONGING TO HIM. SHRI RATAN LAL MEENA, BROTHER-IN- LAW OF THE ASSESSEE HAS CLAIMED OWNERSHIP OF RS. 12,91,000/- AND HAS MOVED AN APPLI CATION BEFORE CBI COURT TO RELEASE THE AMOUNT. THE AMOUNT OF RS. 12,91,000/- WAS OUT OF RS. 14,21,000/- BEING SALE VALUE OF SHOP AND HOUSE BELONGING TO SHRI RATAN LAL MEENA . IT WAS STATED THAT THIS AMOUNT WAS RECEIVED AS ADVANCED ON ACCOUNT OF SALE OF HIS PROP ERTY TO CHITTARMAL S/O SHRI BHOORA RAM OF VILLAGE SIRAS KI NANGAL,TEHSIL AMER, DIST. J AIPUR. DURING THE ASSESSMENT PROCEEDINGS, IT WAS STATED THAT SHRI RATAN LAL MEEN A HAS FILED HIS RETURN OF INCOME SHOWING RS. 12,91,000/- OWNED BY HIM AND RETURN OF SHRI RATAN LAL MEENA HAS BEEN ACCEPTED ALSO BY THE DEPARTMENT. STATEMENT OF SHRI RATANLAL MEENA RECORDED ON 23.2.2004 BY THE AO BY WHICH HE HAS ADMITTED THAT H E RECEIVED THE SAID AMOUNT AS ADVANCE AGAINST SALE OF HIS HOUSE AT GOPALPURA BYE PASS AND ONE SHOP IN MAHESH NAGAR. OUT OF TOTAL CONSIDERATION OF RS. 14,21,000/-, HE R ECEIVED ADVANCE OF RS. 12,91,000/-. AN AGREEMENT DATED 2.4.2002 WAS EXECUTED WITH SHRI LAX MINARAIN AND SHRI CHITTARMAL. SUMMONS WERE ISSUED IN THE NAME OF LAXMINARAIN AND CHITTARMAL. HOWEVER, THE SUMMONS WERE RECEIVED BACK UNSERVED. THE AO OBSERV ED THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH FOUND DURING THE COURSE OF SEARCH BY CBI, THEREFORE, THE AMOUNT WAS HELD BELONGING TO THE ASSESSEE. THE CON TENTION THAT THE AMOUNT BELONGS TO SHRI RATAN LAL MEENA WAS NOT ACCEPTED BY OBSERVING THAT SEARCH WAS CONDUCTED ON 24.2.2002 WHEREAS SHRI RATAN LAL MEENA HAS FILED RE TURN OF INCOME ON 26.2.2004. 3 ACCORDINGLY, THE AO REJECTED THE CLAIM OF THE ASSES SEE AND HELD THAT THE AMOUNT SEIZED BELONGED TO ASSESSEE ONLY. THEREFORE, HE MADE AN A DDITION OF RS. 13,39,685/- AS INCOME OF THE ASSESSEE. SIMILAR SUBMISSIONS WERE FILED BE FORE LD. CIT (A). IT WAS STATED THAT THE SUMMONS COULD NOT BE SERVED ON THE PURCHASERS OF TH E PROPERTY AS NEW ADDRESS OF BOTH THE PERSONS WERE NOT AVAILABLE. HOWEVER, AT THE TI ME OF APPELLATE PROCEEDINGS NEW ADDRESS OF THE PURCHASERS WERE GIVEN. IT WAS SUBMI TTED THAT RS. 12,91,000/- BELONGS TO SHRI RATAN LAL MEENA AND THE BALANCE AMOUNTS WERE C LAIMED TO BELONGED TO THE ASSESSEE AND HIS FAMILY MEMBERS. DURING THE APPELLATE PROCEE DINGS, STATEMENTS OF SHRI RATAN LAL MEENA AND SHRI CHITTARMAL WERE RECORDED BY AO AT A LATER STAGE. THE AO WAS ASKED TO VERIFY THE CONTENTION AND SEND HIS REPORT. IN THE REMAND REPORT DATED 24.2.2009 IT WAS STATED THAT SUMMONS WERE ISSUED TO SHRI CHITTARMAL AND LAXMINARAIN AND THEY APPEARED BEFORE HIM AND THEIR STATEMENTS RECORDED. SHRI LAX MINARAIN HAD ADMITTED THAT HE HAD 15 BIGHAS OF AGRICULTURAL LAND WHICH WAS SOLD FOR RS. 13 LACS. SHRI CHITTARMAL ALSO STATED THAT HE ALSO OWNED 15 BIGHAS OF AGRICULTURAL LAND W HICH WAS SOLD FOR RS. 16 LACS, COPY OF THE SALE DEED EXECUTED BETWEEN 11.10.2001 TO 15.10. 2001 WAS FILED. IT WAS ALSO SUBMITTED THAT SHRI LAXMINARAIN HAS SIGNED THE REGI STRIES. HOWEVER, AO DID NOT ACCEPT THE STATEMENT OF BOTH THE PERSONS AS THERE WERE CER TAIN DISCREPANCIES. IN REGISTRY IT WAS FOUND THAT THEY HAVE RECEIVED AMOUNT OF RS. 11,48,6 00/- WHEREAS IN THE STATEMENT THEY HAVE STATED THAT THEY HAVE RECEIVED RS. 13 LACS AND RS. 16 LACS RESPECTIVELY. SIMILARLY, THE SALE CONSIDERATION SHOWN BY BOTH THE PERSONS DI FFERS AS ONE HAS ACCEPTED PAYMENT OF RS. 6,25,000/- WHEREAS THE OTHER HAS STATED RS. 6 L ACS. IT WAS STATED BY ONE THAT THEY HAVE PURCHASED THE HOUSE IN QUESTION ON AGREEMENT FROM S HRI RATAN LAL MEENA IN VILLAGE SURAJNAGAR WHEREAS THE OTHER HAS STATED THAT THE HO USE WAS PURCHASED AT SURYANAGAR. 4 THEREFORE, FOR THIS REASON IT WAS STATED THAT STATE MENT OF BOTH THESE PERSONS ARE NOT RELIABLE. IT WAS ALSO STATED ALSO STATED THAT THE MATTER WAS SUB-JUDICE. THEREAFTER, THE ASSESSEE FILED REPLY STATING THAT SHRI RATAN LAL ME ENA HAS FILED PETITION BEFORE CBI COURT TO RELEASE THE AMOUNT SEIZED AND CBI COURT DEPOSITE D RS. 12,91,000/- IN THE NAME OF SHRI RATAN LAL MEENA IN THE FORM OF FDR IN THE NATIONALI ZED BANK VIDE ORDER DATED 3.12.2008. THEREFORE, IT WAS SUBMITTED THAT ONCE SHRI RATAN LA L MEENA HAS CATEGORICALLY ADMITTED CASH FOUND WAS BELONGING TO HIM WHICH WAS RECEIVED BY HIM OUT OF SALE CONSIDERATION OF HIS LAND, LAND HAS BEEN TRANSFERRED IN THE NAMES OF SHRI LAXMINARAIN AND SHRI CHITTARMAL. VARIOUS DOCUMENTS FILED IN RESPECT OF SALE AGREEMEN T AND FILED BEFORE CBI COURT, WERE FILED BEFORE LD. CIT (A). HOWEVER, THE LD. CIT (A) WAS ALSO NOT SATISFIED WITH THE EXPLANATION AS THE MATTER IS CEASED BY CBI COURT AN D THERE WAS A CONTRADICTION OF STATEMENT OF BOTH THE PURCHASERS. THEREFORE, HE CO NFIRMED THE ADDITION OF RS. 12,91,000/- AND REMAINING ADDITION WAS DELETED. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. THE CONTENTIONS RAISED BEFORE LD. CIT (A) WERE R EITERATED HERE BEFORE THE TRIBUNAL BY LD. A/R. ATTENTION OF THE BENCH WAS DRAWN ON VA RIOUS DOCUMENTS, AFFIDAVITS FILED BEFORE CBI AND COPIES OF THE SAME WERE FILED BEFORE AO AND LD. CIT (A). ON A QUERY FROM THE BENCH THAT WHAT STATEMENT WAS GIVEN BEFORE CBI BY SHRI RATAN LAL MEENA, IT WAS STATED THAT EFFORTS WERE MADE TO GET THE COPY O F STATEMENT, BUT CBI HAS NOT PROVIDED ANY COPY OF STATEMENT. 7. ON THE OTHER HAND, THE LD. D/R PLACED RELIANCE O N THE ORDERS OF AO AND LD. CIT (A). 5 8. AFTER CONSIDERING THE ORDERS OF THE AUTHORITIES BELOW, SUBMISSIONS OF THE ASSESSEE AND ALSO TAKING INTO VARIOUS EVIDENCES PLACED ON RE CORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED ON THIS ISSUE. THERE IS NO DOUBT THAT CASH WAS FOUND AT THE TIME OF SEARCH CONDUCTED BY CBI. THERE IS NO DOUBT THAT ASSESSEE WAS OUT OF STATION ON GOVERNMENT DUTY AND SHRI RATAN LAL MEENA WHO IS BROTHER-IN-LAW OF THE ASSESSEE WAS PRESENT. IT HAS BEEN CATEGORICALLY ADMITTED BY SHRI RATAN LAL MEENA FROM THE DAY ONE THAT AMOUNT OF RS. 12,91,000/- WAS BELONGING TO HIM WHICH WAS RECE IVED BY HIM OUT OF CASH WITHDRAWAL FROM THE BANK AT RS. 70,000/- AND REMAINING AMOUNT OUT OF SALE AGREEMENT OF LAND ENTERED BETWEEN HIMSELF AND SHRI LAXMI NARAIN AND S HRI CHITTARMAL, COPY OF THE AGREEMENT WAS ALSO FILED. STATEMENT OF BOTH THE PER SONS I.E. SHRI LAXMINARAIN AND SHRI CHITTARMAL WERE RECORDED AND THEY HAVE CATEGORICALL Y ADMITTED THAT THEY HAVE PURCHASED THE PROPERTY FROM SHRI RATTAN LAL. THERE ARE CERTA IN DISCREPANCIES I.E. ONE PERSON SAYS THAT THE PROPERTY SITUATED AT VILLAGE SURAJNAGAR AN D OTHER SAYS THAT PROPERTY SITUATED AT VILLAGE SURYANAGAR. IT MAY BE MISTAKE IN PRONOUNCEM ENT BUT THE FACT IS THAT PROPERTY WAS SOLD BY SHRI RATAN LAL MEENA AND SAME WAS PURCHASED BY THE PURCHASERS. THEREFORE, SOURCE OF FUND OF RS. 12,91,000/- HAS BEEN DULY EXP LAINED AND WHICH SHOULD HAVE BEEN ACCEPTED. MATTER IS SUB-JUDICE IN COURT OF ASSESSEE BY CBI BUT IT IS CLEARLY ESTABLISHED THAT AMOUNT OF RS. 12,91,000/- WAS BELONGING TO SHRI RAT AN LAL MEENA AND NOT TO THE ASSESSEE. THEREFORE, FOR ALL PRACTICAL PURPOSES IT SHOULD HAVE BEEN ACCEPTED THAT THE AMOUNT OF RS. 12,91,000/- WAS BELONGING TO SHRI RAT AN LAL MEENA AND NOT TO THE ASSESSEE. IN VIEW OF ALL THESE FACTS AND CIRCUMSTA NCES OF THE CASE AND WITHOUT FURTHER GOING INTO DETAIL, WE HOLD THAT THE AMOUNT OF RS. 1 2,91,000/- DOES NOT BELONG TO ASSESSEE BUT IT BELONG TO SHRI RATAN LAL MEENA AND ACCORDING LY IT CANNOT BE ASSESSED IN THE HANDS 6 OF ASSESSEE. FOR THE SAKE OF CLARIFICATION ALSO, S HRI RATAN LAL MEENA HAS SHOWN THIS AMOUNT IN HIS RETURN AND SAME HAS BEEN ACCEPTED BY THE DEPARTMENT AND THIS FACT HAS BEEN NOTED IN THE ORDER OF LD. CIT (A). COPY OF BALANCE SHEET AS ON 31.3.2004 IS PLACED AT PAGE 91 AND AMOUNT OFRS. 12,91,000/- HAS BEEN SHOWN IN A SSETS SIDE BY SHRI RATAN LAL MEENA. COPY OF RETURN IS PLACED AT PAGE 96. COPY OF BALANC E SHEET FOR A.Y. 2003-04 AND THE AMOUNT OF RS. 12,91,000/- HAS BEEN SHOWN IN ASSETS SIDE FOR THIS YEAR ALSO. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE DELETE THE ADDITI ON OF RS.12,91,000/-. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20 .4.2012. SD/- SD/- ( SANJAY ARORA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SHRI BIRBAL RAM MEENA, JAIPUR. THE ITO WARD 1(4), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 410/JP/2011) BY ORDER, AR ITAT JAIPUR.