ITO, BHARATPUR V. PRAMOD KUMAR AGARWAL, DHOLPUR

ITA 42/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5617 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 21-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Assessee Lawyers: RJENDRA AGARWAL
• Keywords: Additional evidence; Corroborative evidences
• Section: 68

Judgement Text

ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA . 42/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. VKNS'K@ ORDER FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : RJENDRA AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.11.2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06 /01/2016 VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, AM THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A),ALWAR, DATED 06.11.2013 WHEREIN REVENUE HAS TAKEN THE FOLLOWING GROUND OF APPEAL : 1. THE LD. CIT(A) ALWAR HAS ERRED IN LAW AS WELL AS O N THE FACTS AND CIRCUMSTANCES OF THE CASE IN DELETING THE ADD ITION OF RS. 10,00,000/- MADE BY THE AO BY ON ACCOUNT OF UNEXPLA INED CREDITS U/S 68 OF THE IT ACT, 1961. THE INCOME TAX OFFICER, WARD-3, BHARATPUR CUKE VS. SHRI PRAMOD KUMAR AGARWAL, 1 JAWAHAR NAGAR, DHOLPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABYPA 1635L ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 2 2. AT THE OUTSET, IT WAS BROUGHT TO THE NOTICE OF THE B ENCH THAT EARLIER THE COORDINATE BENCH OF ITAT VIDE ITS ORDER 24 .12.2010 HAD SET ASIDE MATTER TO THE FILE OF THE AO TO EXAMINE THE MA TTER AFRESH AND THE SAME MATTER HAS AGAIN REACHED THE ITAT IN THE SUBJE CT APPEAL. 2.1 IN THE LIGHT OF THE PAST HISTORY. IT WOULD BE RELE VANT TO BRIEFLY RECAPITULATE THE FACTS WHICH ARE RELEVANT FOR THE I SSUE UNDER CONSIDERATION. 2.2 DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDIN GS , THE AO NOTED THAT THE ASSESSEE HAS ACCEPTED FRESH UNSECURED LOANS OF RS.10,00,000/- FROM SHRI MAHENDRA KUMAR JAIN DURING THE YEAR UNDER CONSIDERATION. AS PER THE AO, IN VIEW OF NON-FURNISHIN G OF THE CONFIRMATION OF SHRI MAHENDRA KUMAR JAIN, THE GENUINE NESS OF TRANSACTIONS AND CREDIT WORTHINESS OF THE ABOVE PERSO N IS NOT PROVED, HE ADDED THE AID AMOUNT OF RS. 10,00,000/- IN ASSESS EES HANDS U/S 68 OF THE ACT. THEREAFTER, THE ASSESSEE CARRIED THE MA TTER IN APPEAL AND FURNISHED ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A) IN THE FORM OF ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 3 DEMAND DRAFT FOR RS. 10,00,000/- ISSUED IN FAVOUR OF T HE ASSESSEE, BANK STATEMENT, AFFIDAVIT, ITR RECEIPT OF SHRI M.K. JAIN . RELYING ON THE EVIDENCES SUBMITTED BY THE ASSESSEE, LD. CIT(A) ALL OWED RELIEF TO THE ASSESSEE. ON PERUSAL OF THE REVENUE THE COORDINATE BENCH OF ITAT WAS OF THE VIEW THAT SINCE THE AO HAD NOT BEEN GIVEN AN OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCES, THE MATTER SHOULD B E REMANDED TO THE AO TO PROVIDE HIM EQUAL OPPORTUNITY AND TO DECIDE THE ISSUE AFRESH. PURSUANT TO DIRECTIONS OF THE COORDINATE BENCH, THE A O PASSED FRESH ASSESSMENT ORDER DATED 17.22.2011. DURING THE COURS E OF THE SAID SET- ASIDE PROCEEDINGS, THE APPELLANT AGAIN SUBMITTED THE EVIDENCE FILED EARLIER BEFORE THE LD. CIT(A) NAMELY COPY OF DEMAND D RAFT ISSUED IN FAVOUR OF THE ASSESSEE, COPY OF BANK ACCOUNT OF SHRI M.K . JAIN, COPY OF ITR AND COPY OF AFFIDAVIT EXECUTED BY SHRI M.K. JAIN. ON PERUSAL OF THE BANK STATEMENT OF SHRI M.K. JAIN, THE AO NOTICED THAT AN AMOUNT OF RS. 10,00,000/- HAS BEEN TRANSFERRED/CREDITED IN ITS BA NK ACCOUNT ON 09.03.2006 AND THE ASSESSEE HAS NOT FURNISHED ANY JUSTIFICATION IN SUPPORT OF THE SOURCE OF MONEY CREDITED IN HIS BANK ACC OUNT ON ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 4 09.03.2006. AS PER THE AO, PRIOR TO THE CREDIT OF RS . 10,00,000/- THERE WAS NO SUCH HEAVY TRANSACTION IN THE BANK ACCOUNT OF SH RI M.K. JAIN. THE AO THUS CAME TO THE CONCLUSION THAT THE ASSESSEE H AS TRANSFERRED HIS OWN MONEY THROUGH SHRI M.K. JAIN AND ACCORDINGLY T HE TRANSACTIONS REMAINED UNVERIFIABLE AND THE ONUS ON THE ASSESSEE TO PROVE THE LOAN CONTINUE TO REMAIN UNDISCHARGED. IN LIGHT OF THAT HE AGAIN MADE AN ADDITION OF RS. 10,00,000/- U/S 68 OF THE ACT IN THE H ANDS OF THE ASSESSEE. 2.3 THE ASSESSEE BEING AGGRIEVED AGAIN CARRIED THE MATTER BEFORE THE LD. CIT(A). THE LD. CIT(A) CALLED FOR THE REMAN D REPORT FROM THE AO WHEREIN THE AO HAS SUBMITTED THAT SHRI M.K. JAIN APPEARED BEFORE HIM AND SUBMITTED THAT HE HAS RECEIVED RS. 27,38,38 8/- AS PART OF HIS RETIREMENT BENEFITS WHICH WAS UTILIZED FOR GIVING THE AFORESAID LOANS OF RS. 10,00,000/- HOWEVER, IN RESPECT OF SUM OF RS. 10,00,000/- WHICH WAS CREDITED IN HIS ACCOUNT MAINTAINED WITH A XIS BANK DATED 09.03.2006, SHRI M.K. JAIN COULD NOT CONFIRM FROM WH ERE THE SAID ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 5 MONEY HAS COME. FURTHER THE ASSESSEE IN HIS CROSS R EPLY REMAND REPORT SUBMITTED BEFORE THE LD . CIT (A) WHICH READS AS UNDER: WE PRAY TO YOUR HONOUR TO PLEASE CONSIDER OUR SUBMISSIONS AND ALLOW THE APPEAL. AS DESIRED BY YOUR HONOUR WE ARE ENCLOSING HEREWITH THE PHOTOCOPY OF THE SALE DEED EXECUTED BY SMT . PUSHPA JAIN W/O MAHENDRA KUMAR JAIN FOR SALE OF HER FLAT NO. 239 B LOCK-C MILLENIUM APARTMENTS, SECTOR 18, ROHINI, DELHI- 85 IN EVIDENC E OF RECEIPT OF RS. 10,00,000/- VIDE BANKER CHEQUE NO. 79 8743 DATED 27.02.2006 (PHOTOCOPY ENCLOSED HEREWITH) WHICH WAS DEPOSI TED AND CREDITED ON 09.03.2006 IN THE JOINT A/C OF SHRI MAHENDRA KUM AR JAIN AND SMT. PUSHPA JAIN A/C NO. 202010100008341 DATED 22, 01,2009 WITH AXIS BANK SATNA(MP) WHICH WAS UTILIZED FOR GIVING LOAN O F RS. 10,00,000/- TO APPELLANT ON 11.03.2006. KINDLY CONSIDER T HE SAME DETAILED SUBMISSIONS MADE DURING THE COURSE OF HEARING HELD ON 22.08.2013, 2.07.2012 & 09.11.2012 AND ON VARIOUS OTHER DATES AND DECIDE THE APPEAL ACCORDINGLY. 2.4 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AS WELL AS THE REMAND REPORT CALLED FROM THE AO CAME T O THE CONCLUSION THAT THE ASSESSEE HAS COMPLIED WITH ALL THE INGREDIE NTS OF SECTION 68 OF THE ACT. HE ACCORDINGLY DELETED THE SAID ADDITION WIT H THE FOLLOWING FINDINGS WHICH ARE CONTAINED IN PARA 4.5 OF HIS ORDE R WHICH READS AS UNDER: I HAVE GONE THROUGH THE ASSESSMENT ORDER, REMAND REPORT AND SUBMISSIONS MADE BY THE AR AND FIND THAT THE ADDITION OF RS. ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 6 10,00,000/- HAS BEEN MADE BY THE AO ON THE GROUND THAT NO SUPPORTING EVIDENCE COULD BE FILED BY THE APPELLANT AS R EGARDS THE CREDITS IN THE BANK ACCOUNT OF THE CREDITOR BEFORE ADVANCI NG THE LOAN TO THE ASSESSEE. IT IS SUBMITTED THAT THE APPELLANT HAS DISCHARGED HIS BURDEN U/S 68 OF THE IT ACT AS REGARDS CONFIRMATION OF THE LOAN, FURNISHING OF ASSESSMENT PARTICULARS PAN ETC AND COPY OF THE BANK ACCOUNT HAS BEEN FILED. IN THE COURSE OF APPAELLATE PROCE EDINGS THE MATTER WAS REMANDED TO THE AO AND HAS MERELY REPEATED T HE SAME CONTENTIONS WITHOUT JUSTIFYING THE REASONS FOR SUSTAINING THE SAI D ADDITION. THE APPELLANT HAS ALSO BEEN ABLE TO OBTAIN A CO PY OF THE SALE DEED OF THE PROPERTY TO SUBSTANTIATE THE SOURCE OF CREDIT S IN THE BANK ACCOUNT OF THE SAID CREDITOR, WHO HAS ADVANCED FUNDS TO THE AP PELLANT. THUS, THE APPELLANT HAS BEEN ABLE TO PROVE THE SOURCE OF T HE SOURCE. 2.5 THE LD. DR RELIED ON THE ORDER OF THE AO AND C ONTENDED THAT THE CREDITWORTHINESS OF THE CREDITOR REMAIN UNDISCHARG ED HENCE THE AO WAS CORRECT IN MAKING THE ADDITION OF RS. 10,00,000/ -. 2.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE ORDER O F THE LOWER AUTHORITIES BOTH IN CONTEXT OF THE ORIGINAL PROCEEDI NGS AND SUBSEQUENTLY IN THE SET-ASIDE PROCEEDINGS THE IDENT ITY AS WELL AS GENUINENESS OF THE LOANS TRANSACTIONS CANNOT BE DISP UTED. THE REVENUES SOLE GROUND IS THAT THE ASSESSEE HAS NOT PROVED THE CREDITWORTHINESS OF SHRI M.K. JAIN WHO HAS ADVANCED A LOAN OF RS. 10 ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 7 LAKHS TO THE ASSESSEE AND IN ABSENCE OF THAT THE BU RDEN ON THE ASSESSEE REMAIN UNDISCHARGED U/S 68 OF THE ACT. IT IS NOTED THAT SHRI M.K. JAIN HAS STATED BEFORE THE AO THAT HE WAS RECE IVED A SUM OF RS. RS. 27,38,388/ ON HIS RETIREMENT. SECONDLY REGARDIN G THE SPECIFIC CREDIT OF RS. 10,00,000/- IN BANK ACCOUNT OF SHRI M.K . JAIN , IT HAS BEEN STATED THAT THE SAID SUM OF RS. 10,00,000/- HAS BEE N RECEIVED ON ACCOUNT OF SALE OF FLAT IN SECTOR 18, ROHINI, DELHI-8 5 WHICH WAS CREDITED IN JOINT ACCOUNT OF SRI M.K. JAIN AND SMT. PUSHPA JAIN ON 09.03.2006. GIVEN THAT THE LOAN WAS ADVANCED ON 11. 03.2006 VIDE A/C PAYEE DD AND AT THAT TIME THE ASSESSEE HAS SUFFICIE NT FUNDS OUT OF HIS RETIREMENT BENEFIT AND ON THE SALE OF FLAT, THE SAME P ROVED BEYOND ANY DOUBT THE CREDITWORTHINESS OF SHRI M.K. JAIN TO RS. 10,00,000/-TO THE ASSESSEE. IN THIS REGARD, IT IS NOTED WITH APP ROVAL A CLEAR FINDING OF LD. CIT(A) THAT THE APPELLANT HAS BEEN ABLE TO OBTAIN A COPY OF THE SALE DEED OF THE PROPERTY TO SUBSTANTIATE THE SOURCE OF CREDITS IN THE BANK ACCOUNT OF THE SAID CREDITOR, WHO HAS ADVANCED FUNDS TO THE APPELLANT. THUS, THE APPELLANT HAS BEEN ABLE TO PR OVE THE SOURCE OF ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 8 THE SOURCE. THE LD. DR HAS NOT CONTROVERTED THE S AID FINDING OF LD. CIT(A). IN LIGHT OF THAT WE AGREE WITH THE FINDINGS OF THE LD. CIT(A) THAT THE ASSESSEE HAS PROVIDED NECESSARY EXPLANATION AB OUT THE NATURE AND SOURCES OF THE DEPOSIT OF RS.10,00,000/- AND THE SAME CANNOT BE TAXED UNDER THE PROVISIONS OF SECTION 68 OF THE IT A CT, 1961. HENCE WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT( A) AND GROUND TAKEN BY THE REVENUE IS DISMISSED. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 06 / 01/2016 SD/- SD/- (R.P. TOLANI) (VIKRAM SINGH YADAV) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED : 06 /01/2016 PILLAI COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT, ITO, WARD -3, BHARATPUR 2.THE RESPONDENT, SHRI PRAMOD KUMAR AGARWAL, DHOLPU R 3,THE CIT, ALWAR ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 9 4.THE CIT(A)-ALWAR 5.THE DEPARTMENTAL REPRESENTATIVE, ITAT, JAIPUR 6 GUARD FILE (ITA NO. 42/JP/14) BY ORDER ASSISTANT REGISTRAR. ITA NO. 42/JP/14 SHRI PRAMOD KUMAR AGARWAL V. ITO, WD.3 BHARATPUR 10 TO, THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR. SIR, SUB: REQUEST FOR SUPPLY OF PEN DRIVE AND FILLING OF TONER REG.: ***** YOU ARE REQUESTED TO PLEASE AR RANGE TO FILLING OF TONER IN THE PRINTER AND ALSO TO SUPPLY TO ME A PEN DRIVE AT THE EARLIE ST SO THAT I MAY BE ABLE TO WORK SMOOTHLY. YOURS FAITHFULLY, (P.K.R.C.PILLAI) SR. PS. JAIPUR DATED: 9.12.2015