SMT. TEEJA DEVI , JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 428/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6276 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DHK
• Assessee Lawyers: S K GUPTA
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence; Onus to prove
• Section: 234B; 131; 6; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA-@ ITA NO. 428/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 SMT. TEEJA DEVI, 58-59, GUJAR BAST, WARD NO. 60, SHIV COLONY, JAIPUR. CUKE VS. I.T.O., WARD 7(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGWPD 6640 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.K. GUPTA (ADV) & SHRI S.L. JAIN (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.P. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/07/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 24/07/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THE APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A), AJMER DATED 22/01/2018 FOR THE A.Y. 2011 -12. 2. THE ASSESSEE IS AN INDIVIDUAL AND E-FILED HER RET URN OF INCOME ON 29/03/2012 DECLARING TOTAL INCOME OF RS. 1,56,900/- . THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSUED. THE ASSESSING OFFICER FINALIZED THE ASSESSMENT AT A TOTAL INCOME OF RS. 27,56,900/- WHE REIN THE ADDITION OF ITA 428/JP/2018_ TEEJA DEVI VS ITO 2 RS. 26,00,000/- WAS MADE ON ACCOUNT OF UNEXPLAINED C ASH DEPOSITS IN BANK ACCOUNT MAINTAINED WITH STATE BANK OF BIKANER & JAIPUR, RAM NAGAR BRANCH, JAIPUR. THE LD. CIT(A) HAS CONFIRMED TH E ACTION OF THE ASSESSING OFFICER. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT BY T AKING FOLLOWING GROUNDS OF APPEAL: 1. (A) THAT THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE ASSUMP TION OF JURISDICTION OF THE LEARNED INCOME TAX OFFICER WARD 4 (2), JAIPUR TO INITIATE PROCEEDINGS U/S 143(2) OF THE ACT. AND FRAME ASSESSMENT U/S 144 OF THE ACT DESPITE THE FACT THAT INITIATION OF PROCEEDING WAS NOT IN ACCORDANCE WITH THE INSTRUCTION ISSUED BY CENTRAL BOARD OF DIRECT TAXES FOR SELECTION OF CASES FOR INDIVIDUAL ASSESSEE IN FINANCIAL YEAR 2011-12 (B) THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE ASSUMP TION OF JURISDICTION OF THE LEARNED INCOME TAX OFFICER WARD 4 (2), JAIPUR TO INITIATE PROCEEDINGS U/S 143(2) OF THE ACT. AND FRAME ASSESSMENT U/SL44 OF THE ACT DESPITE THE FACT THAT THE REASON FOR SELECTION OF CASE WAS NOT PROVIDED TO THE ASSESSEE APPELLANT. ADDITION U/S 69A 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE AD HOC ADDITION OF RS.26 LACS ON ACCOUNT OF BANK DEPOSITS RS. 16 LACS ON 19.11.2010 AND RS. 10 LAC ON 21.12. 2010 BY INVOKING SECTION 6 9A OF THE ACT WHICH IS ILLEGAL AND PAR SE WITHOUT JURISDICTION. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE AD HOC ADDITION OF RS.26 LACS DESPITE THE FACTS THAT THE EXPLANATION / DOCUMENTS ABOUT NATURE AND SOURCES OF BANK DEPOSIT WAS MADE A S UNDER:- ITA 428/JP/2018_ TEEJA DEVI VS ITO 3 THAT THE ASSESSEE HAS RECEIVED SUCH AMOUNT FROM TW O SALE AGREEMENT IN REGARD TO PLOT NO. 58 AND 59,KRISHAN B AGH VIDHYDHAR NAGAR, JAIPUR APPLICATION UNDER RULE U/S 46A 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED BOTH IN LAW AND FACTS IN NOT ADMITTING APPLIC ATION UNDER RULE 46A IN REGARD TO ADMISSION OF EVIDENCE/ DOCUME NTS DURING THE COURSE OF APPELLATE PROCEEDING WITHOUT VALID RE ASON NO REAL AND REASONABLE OPPORTUNITY 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE EX PAR TY ASSESSMENT ORDER MADE U/S 144 THAT TO WITHOUT PROVIDING OPPORT UNITY OF BEING HEARD NO SERVICE OF SHOW CAUSE NOTICE 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED BOTH IN LAW AND FACTS IN UPHOLDING THE EX PAR TY ORDER WITHOUT SERVICE OF SHOW CASE NOTICE INDICATING THE REASON FOR THE PURPOSE OF ADDITION WITH NECESSARY EVIDENCE. ILLEGAL CHARGES OF INTEREST 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED BOTH IN LAW AND FACTS IN CHARGING INTEREST U/ S 234A, 234B &234C. 8. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEN D OR ALTER THE GROUND OF APPEAL ON OR BEFORE THE DATE OF APPEAL HE ARING. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, GROUND NO. 1(A) & 1(B) WAS NOT PRESSED, THEREFORE, THE SAME IS HEREBY DISMI SSED AS NOT PRESSED. 5. GROUND NO. 8 OF THE APPEAL IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. ITA 428/JP/2018_ TEEJA DEVI VS ITO 4 6. IN THE GROUNDS NO. 2 TO 6 OF THE APPEAL, THE ASS ESSEE CHALLENGED THE ADDITION MADE U/S 69A OF THE ACT AT RS. 26,00,0 00/-. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEES APPL ICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHORT THE RULE S) WITH REGARD TO ADMISSION OF ADDITIONAL EVIDENCES WERE NOT ACCEPTED. HE PLEADED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE ADDITIONAL EVI DENCES WHICH THE ASSESSEE COULD NOT PRODUCE DUE TO VARIOUS REASONS, WHICH WERE BEYOND HIS CAPACITY BEFORE THE ASSESSING OFFICER. HE HAS A LSO SUBMITTED THAT THE LD. CIT(A) HAS NOT GRANTED SUFFICIENT AND REASONABLE OPPORTUNITY BEFORE REJECTING THE APPLICATION UNDER RULE 46A OF THE RUL ES. HE FURTHER SUBMITTED THAT NO SHOW CAUSE NOTICE WAS SERVED BY THE ASSESSING OFFICER OR BY THE LD. CIT(A) PRIOR TO ADDITION AND CONFIRMAT ION OF ADDITION. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS SUBMITTED T HE DOCUMENTS REGARDING SOURCE OF DEPOSIT IN THE BANK ACCOUNT OF RS. 26,00,000/-. RS. 16,00,000/- WAS DEPOSITED ON 09/11/2010 AND RS. 10,0 0,000/- WAS DEPOSITED ON 21/12/2010 WERE ADVANCE AS PER SALE AGR EEMENT PLACED ON RECORDS. HE ALSO SUBMITTED A WRITTEN SUBMISSION IN THIS REGARD, WHICH ARE PRODUCED HEREUNDER: THE FACTS OF THE ISSUES ARE THAT DURING THE YEAR UN DER QUESTIONED ASSESSEE DEPOSITED A SUM OF RS. 26,00,000/- IN HER BANK ACCO UNT IN CASH, WHICH QUESTIONED BY THE LD. AO DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE SAME WAS DULY REPLIED BY THE ASSESSEE APPELLANT TO THE LD. AO AS WELL AS LD. CIT (A) DURING THE ITA 428/JP/2018_ TEEJA DEVI VS ITO 5 COURSE OF APPELLATE PROCEEDINGS ALSO, BUT WITHOUT A PPRECIATING THIS THING LD. CIT(A) CONFIRMED THE ADDITION AS MADE BY LD. AO FOR AMOUNTING TO RS. 26,00,000/- ON ACCOUNT OF U/S 69A AS UNEXPLAINED CASH DEPOSIT INTO BANK ACCOUNT. WE ARE PROVIDING HERE BELOW A DATE WISE STATEMENT O F IMPORTANT EVENTS AS OCCURRED; S. NO. DATE OF EVENTS PARTICULARS REMARKS 1 29.03.2012 ITR FILED FOR A.Y. 2011 - 12 FILED VOLUNTARILY BY THE INCOME FROM HOUSE PROPERTY AND INTEREST INCOME, 2 07.09.2012 CASE IS SELECTED UNDER CASS FOR REGULAR SCRUTINY CASE SELECTED FOR DEPOSITING 26.00 LAC INTO HER SAVING BANK A/C 3 14.03.2014 ORDER PASSED BUT DID NOT RECEIVE BY ASSESSEE APPELLANT U/S 144 OF THE IT ACT OR DER PASSED BY LD. AO ARBITRARILY WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD, 4 21.03.2014 ASSESSEE SUBMITTED ALL REQUIRED DOCUMENTS AND INFORMATION IN SUPPORT OF SOURCE OF CASH DEPOSITED INTO BANK ACCOUNT BEFORE LD AO, IT IS ALSO ACCEPTED BY LD. AO (KINDLY REFER POINT NO. (IV) OF PAGE 7 OF CIT (A) ORDER, 4 07.04.2014 APPEAL FILED BEFORE LD. CIT (A), AJMER BY AGGRIEVED WITH THE ORDER OF LD. AO, APPEAL FILED BEFORE LD. CIT (A), AJMER, 5 APPLICATION FILED BY ASSESSEE FOR ACCEPTING ADDITIONAL EVIDENCE UNDER RULE 46A OF IT ACT, ASSESSEE FILED EVIDENCE AND DOCUMENTS IN SUPPORT OF DEPOSIT AMOUNTING TO RS. 26.00 LAC. 6 11.7.2017 REMAND REPORT RECD BY LD. CIT (A) HAVING REMARK THAT ADDITION MADE IN ASSESSMENT ORDER MAY KINDLY BE CONFIRMED. LD. CIT (A) S ENT IT TO LD. AO FOR THEIR REPORT, THE SAME WAS SUBMITTED BY LD. AO ON 11.7.2017, 7 ASSESSEE SUBMITTED REJOINDER TO THE REMAND REPORT DATED 11.7.2017. ASSESSEE SUBMITTED A REJOINDER IN FORM OF ANSWER OF REMAND REPORT TO LD. CIT (A), 8 22.01.2018 LD. CIT (A) HAD CONFIRMED THE ORDER OF LD. AO, BY STATING THAT THE ASSESSEE COULD NOT PRODUCE EXPLANATION OR EVIDENCE IN SUPPORT OF THEIR BANK DEPOSIT FOR RS. 26.00 LAC IN HER BANK ACCOUNT (KINDLY ITA 428/JP/2018_ TEEJA DEVI VS ITO 6 REFER PARA 6.3 OF PAGE 10 OF LD. CIT (A) ORDER, BY GONE THROUGH THE ABOVE SUMMARIZED FACTS & ISSUES OF THE CASE THE DETAIL FACTUAL POSITION IS AS UNDER; (I) ASSESSEE APPELLANT DEPOSIT A SUM OF RS. 26,00,0 00/- IN HER BANK ACCOUNT WHICH SOURCES AND DETAILS ARE AS FOLLOWS; DATE PARTICULARS AMOUNT UNDER QUESTIONED SOURCE O F DEPOSITION 19.11.2010 SBBJ (SAVING A/C NO. 51101263069) 16,00,000/ - AGREEMENT TO SALE (DATED 19.11.2010) OF PLOT NO.59 OF SHIV COLONY, BEED KISHAN BAGH, JAIPUR TO SHANKER LAL, KAILASH CHAND AND PRAKASH CHAND (ANNEXED AT PAPER BOOK PAGE NO.14 TO 17), AN AFFIDAVIT TO THIS EFFECT (KINDLY REFER PAGE NO. 36 OF PAPER BOOK) 21.12.2010 SBBJ (SAVING A/C NO. 51101263069) 10,00,000/ - AGREEMENT TO SALE OF PLOT NO. 58 OF SHIV COLONY, BEED KISHAN BAGH, JAIPUR TO JAI PRAKASH & BANWARI LAL (ANNEXED AT PAPER BOOK PAGE NO.24-27), AN AFFIDAVIT TO THIS EFFECT (KINDLY REFER PAGE NO. 34 OF PAPER BOOK). (I) SOURCE OF CASH AS DEPOSITED INTO BANK ACCOUNT; 1. ON DATED 19.11.2010 (RS. 16,00,000/-); (I) THE ABOVE MENTIONED CASH WAS RECEIVED FROM SHAN KER LAL S/O NANDLAL, KAILASH CHAND S/O SHANKER LAL AND PRAKASH CHAND S/O SHANKER LAL ON ACCOUNT OF SALE OF AGREEMENT (DATED 19.11.2010) OF A PLOT (NO. 59, SHIV COLONY, BEED KISHANBAGH, JAIPUR) AS OWNED BY THE ASSESSEE APPELLANT, THE AGREEMENT IS MADE ON PROPER STAMP PAPER AS REQUIRED BY LAW, MENT IONED ALL THE CONDITION OF ITA 428/JP/2018_ TEEJA DEVI VS ITO 7 SALE, I.E. SALE CONSIDERATION, ADVANCE AMOUNT ETC. (KINDLY REFER PAGE NO. 14-17 OF PAPER BOOKS) (II) THE ABOVE MENTIONED AGREEMENT HAS DULY WITNESS ED BY THE COMPETENT AND LEGAL PERSONS WHICH'S PERSONAL DETAILS VIZ. NAME, A GE, CASTE AND COMPLETE COMMUNICATION ADDRESS WERE MENTIONED THEREON (KINDLY REFER PAGE NO.17 OF PAPER BOOK), (III) THE PROPOSED BUYERS ARE SUPPORTED THEIR VALID GOVERNMENT IDENTITY PROOF (KINDLY REFER PAGE NO. 18-20 OF PAPER BOOKS) AND THEIR EVIDENCE OF CREDITWORTHINESS WHICH IS JAMABANDI OF AGRICULTURE LAND AS OWNED BY THEM, WHICH SHOWS THEIR SOURCE OF AGRICULTURE INCOM E (KINDLY REFER PAGE NO. 21- 23 OF PAPER BOOK), 2. ON DATED 21.12.2010 (RS. 10,00,000/-); (I) THE ABOVE MENTIONED CASH WAS RECEIVED FROM JAI PRAKASH & BANWARI LAL S/O SHRI SHANKER LAL PARSAWAL ON ACCOUNT OF SALE OF AGREEMENT (DATED 20.12.2010) OF A PLOT (NO. 58, SHIV COLONY, BEED KISHAN BAGH, JAIPUR) AS OWNED BY THE ASSESSEE APPELLANT, THE AGREEMENT IS MADE ON PROPER STAMP PAPER AS REQUIRED BY LAW, MENTIONED ALL THE CONDITION OF SAL E, I.E. SALE CONSIDERATION, ADVANCE AMOUNT ETC. (KINDLY REFER PAGE NO. 24-27 OF PAPER BOOKS) (II) THE ABOVE MENTIONED AGREEMENT HAS DULY WITNESS ED BY THE COMPETENT AND LEGAL PERSONS WHICH'S PERSONAL DETAILS VIZ. NAME, A GE, CASTE AND COMPLETE COMMUNICATION ADDRESS WERE MENTIONED THEREON (KINDLY REFER PAGE NO. 27 OF PAPER BOOK), (III) THE PROPOSED BUYERS ARE SUPPORTED THEIR VALID GOVERNMENT IDENTITY PROOF (KINDLY REFER PAGE NO. 28-29 OF PAPER BOOKS), ITA 428/JP/2018_ TEEJA DEVI VS ITO 8 (II) AS CONTENDED BY THE LD. CIT (A) IN THEIR ORDER ' AS THE ADDITIONAL EVIDENCES FURNISHED BY THE APPELLANT DURING THE COURSE OF APP ELLATE PROCEEDINGS HAVE NOT BEEN ADMITTED UNDER RULE 46A AND THE APPELLANT DID NOT FURNISH ANY EXPLANATION OR EVIDENCE BEFORE THE AO WITH RESPECT TO THE CASH DEPOSITS OF RS. 26 LAC MADE IN THE BANK ACCOUNT, THEREFORE THE ACTION OF THE AO TR EATING THE CASH DEPOSITS OF RS. 26 LAC AS UNEXPLAINED INVESTMENT U/S 69A IS HELD TO BE VALID AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. ACCORDINGLY, THE ADDITI ON OF RS. 26 LAC MADE BY THE AO IS HEREBY CONFIRMED.' THE SAID CONTENTION OF LD. CIT(A) IS BASED ON PERVE RSE FINDINGS AND NOT TENABLE, AS ASSESSEE PRODUCED SUFFICIENT EVIDENCES IN SUPPORT O F THEIR CONTENTION BEFORE THE THEN, AS AN ADDITIONAL EVIDENCES WHICH WERE NOT ACC EPTED BY THE LD. AO AND EVEN NOT ALLOWED TO ASSESSEE FOR PRODUCING THE PROSPECTI VE BUYERS FOR GIVING THEIR STATEMENT IN SUPPORT OF THE TRANSACTION (THE PERSON S FROM WHOM MONEY WAS RECEIVED BY HER) (KINDLY REFER PAGE NO.38 OF PAPER BOOKS), HENCE AN AFFIDAVIT BY THE SAID PERSONS HAVE BEEN FILED BEFORE LD CIT (A) DURING THE APPELLATE PROCEEDINGS ALSO IN THIS EFFECT. THE INFORMATION/DOCUMENTS/EVIDENCES IN SUPPORT OF S OURCE OF CASH RECEIVED BY THE ASSESSEE ARE FULLY EXPLANATORY IF LD. AO AS WEL L AS LD CIT (A) HAD SOME DOUBT, THEN THE SAME COULD HAVE BEEN EXAMINED BY ISSUING T HE NOTICES UNDER SECTION 131 TO THEM. BUT THE LD. AO AS WELL AS LD. CIT (A) COULD NOT DO, WHICH THEY SHOULD HAVE DONE IN THIS REGARD. BURDEN OF PROOF; AS ASSESSEE APPELLANT DISCHARGED THEIR LIABILITY RE GARDING, PRODUCING SUFFICIENT INFORMATION/DOCUMENTS/EVIDENCES OF THE TRANSACTION, DETAILS OF ALL PARTIES OF THE TRANSACTION AND DETAILS OF WITNESSES OF THE TRANSAC TION ALSO, ALL DETAILS HAVE BEEN FURNISHED WITH THE COPIES OF ID PROOF AND CREDITWOR THINESS OF BUYERS BY SHOWING THE CAPACITY OF EVEN HE PRODUCED THE PROSPECTIVE BU YERS OF THE SALES AGREEMENT ITA 428/JP/2018_ TEEJA DEVI VS ITO 9 BEFORE THE LD. AO BUT THE SAME DID NOT EXAMINE THE M, AN AFFIDAVIT TO THIS EFFECT HAS BEEN PRODUCED BEFORE LD. CIT (A) ALSO UNDER WHI CH IT IS AFFIRMED THAT THE PROSPECTIVE BUYER NAMED SHAKER LAL & JAI PRAKASH W ERE READY TO PRODUCE THEM SELF BEFORE LD.AO FOR GIVING THEIR STATEMENT SINCE FEBRUARY, 2017 TO 15.06.2017. (I) DESPITE OF PRODUCING ALL INFORMATION/DOCUMENTS/ EVIDENCES IN SUPPORT OF THEIR CONTENTION BY THE ASSESSEE APPELLANT, THE LD. AO AS WELL AS LD. CIT (A) COULD NOT BRING ANY FINDINGS IN SUPPORT OF THEIR ALLEGATION, THAT IS WHY ADDITION SHOULD NOT BE MADE ON BASIS OF MERELY SUSPICIOUS GROUND, IT IS VERY SETTLED LAW AS PRESSED BY HONORABLE APEX COURT IN THE CASE OF K.P. VARGHE SE V. ITO [1981] 131 ITR 597 (SC)-THE ONUS OF ESTABLISHING THAT THE CONDITIONS O F TAXABILITY ARE FULFILLED IS ALWAYS ON THE REVENUE- 'THERE ARE TWO DISTINCT CONDITIONS WHICH HAVE TO BE SATISFIED BEFORE SUB-SECTION (2) CAN BE INVOKED BY THE REVENUE AND THE BURDEN OF SHOWING THAT THESE TWO CONDITIONS ARE SATISFIED RESTS ON THE REVENUE. THIS BURDEN MAY BE DISCHARGED BY THE REVENUE BY ESTABLISHING FACTS AND CIRCUMSTANCES FROM WHICH A REASONABLE INFERENCE CAN BE DRAWN THAT THE ASSESSEE HAS NOT CO RRECTLY DECLARED OR DISCLOSED THE CONSIDERATION RECEIVED BY HIM AND THERE IS UNDE RSTATEMENT OF CONCEALMENT OF THE CONSIDERATION IN RESPECT OF THE TRANSFER.' (II) IN AN ANOTHER LAND MARK JUDGMENT HON'BLE JURIS DICTIONAL HIGH COURT IN THE MATTER OF SHUBH MINES PRIVATE LIMITED (ITA 96/15) V IDE ITS ORDER DATED 03.05.2016 HELD, THERE IS NO EVIDENCE, DIRECT OR IN DIRECT, TO SHOW THAT THE MONEY SO RECEIVED ACTUALLY BELONGED TO THE ASSESSEE. NOWH ERE THE LD. AO HAS SUGGESTED THAT THE MONEY GIVEN BY SHRINARAYAN HAD ACTUALLY FL OWN FROM THE ASSESSEE. IN ABSENCE OF ANY SUCH COGENT EVIDENCE ON RECORD, NO A DDITION CAN BE MADE TO THE INCOME OF THE ASSESSEE MERELY ON SUSPICION. (III) SIMILARLY, IN P&HHC IN 294 ITR 78, THE ASSESS EE WAS FOUND TO BE IN POSSESSION OF LOOSE SLIPS AND NOT ANY VALUABLE ARTICLE OR THIN G, NEITHER THE POSSESSION NOR THE OWNERSHIP OF ANY JEWELRY MENTIONED IN THE SLIPS WAS PROVED. THEREFORE, THE TRIBUNAL HAD RIGHTLY HELD THAT THE PROVISIONS OF SE CTION 69A OF THE ACT WERE NOT ITA 428/JP/2018_ TEEJA DEVI VS ITO 10 APPLICABLE. THE TRIBUNAL ALSO HELD THAT IF THE ASSE SSEE FAILED TO EXPLAIN THE CONTENTS OF THE SLIPS, IT WAS FOR THE REVENUE TO PR OVE ON THE BASIS OF MATERIAL ON RECORD THAT THEY REPRESENTED TRANSACTIONS OF SALES OR STOCK IN TRADE BEFORE MAKING ANY ADDITION ON THIS SCORE. THE ASSESSEE HAD DULY E XPLAINED THAT THESE WERE ROUGH CALCULATIONS AND THE ASSESSEE'S EXPLANATION HAD NOT BEEN REBUTTED BY ANY MATERIAL EVIDENCE. (III) THEREFORE, IT IS HUMBLY REQUEST BEFORE YOUR ' LORDSHIP', BY PERUSAL OF THE FACTS AS ABOVE, IT IS CLEARED THAT THE CASH AS DEPOSITED IS, BY FULLY SUPPORTED BY VALID EVIDENCES WHICH ARE NOT REBUTTED BY THE LD.AO AS WE LL AS LD. CIT (A) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS APPELLA TE PROCEEDINGS. INVOCATION OF SECTION 69A IS ILLEGAL/OUT OF JURISDI CTION; SECTION 69A IS AS FOLLOWS; 'WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELRY OR OTHER VALUABLE ARTICLE AND SUCH MONEY, BULLION, JEWELRY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF AC COUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME 50 , AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULL ION, JEWELRY OR OTHER VALUABLE ARTICLE, OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE 47 [ASSESSING] OFFICER, SATISFACTORY, THE MONEY AND THE VALUE OF T HE BULLION, JEWELRY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME 50 OF THE ASSESSEE FOR SUCH FINANCIAL YEAR.]' BY BARE READING OF THIS SECTION IT IS ESTABLISHED T HAT FOR INVOKING THE SAID SECTION IT IS MANDATORY, ASSESSEE SHOULD BE FOUND TO BE OWNER OF ANY MONEY AND IT SHOULD NOT BE RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSE SSEE, EXPLANATION AS GIVEN BY THE ASSESSEE IS NOT SATISFACTORY IN THE OPINION OF AO. ITA 428/JP/2018_ TEEJA DEVI VS ITO 11 BY GONE THROUGH THE FACTS OF GIVEN CASE IT IS EVIDE NTLY ESTABLISHED THAT THE 'QUESTIONED CASH' DID NOT FOUND DURING THE SEARCH/S EIZER OR SURVEY PROCEEDINGS, RATHER FULLY EXPLAINED IN BANK ACCOUNT WHICH IS ALS O PART OF BOOKS OF ACCOUNTS, SECONDLY, THE SAID CASH IS NOT OWNED BY ASSESSEE AP PELLANT AS PER EVIDENCES/INFORMATION AS PROVIDED BY HIM TO THE DEP ARTMENT, WHICH CLEARLY SHOWS THAT THE 'CASH' AS DEPOSITED INTO BANK ACCOUN T IS CAME FROM SOME OF PROSPECTIVE BUYERS OF THE PROPERTY UNDER 'CONDITION AL AGREEMENT TO SALE OF PROPERTY' WHICH COULD NOT BE TREATED AS ABSOLUTE OW NER SHIP WITHOUT COMPLETING ALL SALE CONDITION AS STIPULATED IN THE SAID AGREEMENT. THIS SECTION CAN BE INVOKED WHERE THE ASSESSEE IS F OUND TO BE THE OWNER OF AND NOT MERELY IN POSSESSION OF THE ARTICLES SPECIFIED IN THE SECTION. BUT WHERE A PERSON IS FOUND TO BE IN POSSESSION OF ANYTHING, TH E ONUS OF PROVING THAT HE IS NOT ITS OWNER IS ON THAT PERSON IT IS HELD IN THE M ATTERS OF CHUHARMAL VS. CIT (1988) 172 ITR 250 (SC), IN CIT VS. KTMS MOHAMOOD (1997) 228 ITR 113 (MAD); & IN DIALUST VS. DY CIT (2003) 261 ITR 456 (BOM.) (IV) THE ASSESSEE APPELLANT IS AN INCOME TAX ASSESSEE AN D FILLING HER ITR BY DECLARING THE INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES (INTEREST INCOME), IT IS UNDOUBTEDLY ADMITTED BY LD . AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. BY LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE C ASE IT IS NOT POSSIBLE TO EARN SUCH A HUGE AMOUNT IN A PARTICULAR YEAR I.E. A.Y. 2 011-12 BY HER SOLELY. BY LOOKING TO THE FACTS, AS THE ASSESSEE IS OLD AGE WIDOW WHOS E HUSBAND DIED IN THE YEAR 2007 AND SINCE THEN SHE LIVES IN VERY POOR CONDITIO N WITH HER ADOPTED SON, SHE IS NOT ABLE TO DO ANY WORK BY WHICH SHE CAN EARN SUCH A HUGE AMOUNT IN A YEAR. INADVERTENTLY, SHE DEPOSITED A HUGE SUM (RS. 26.00 LAC) IN HER SAVING BANK ACCOUNT WHICH IS NOT OWNED BY HER AT THAT TIME BECA USE SHE RECEIVED THAT AMOUNT AS AGAINST ADVANCE MONEY FOR PLOT SELLING BUT TILL THE COMPLETION OF SALE SHE COULD NOT BE ABSOLUTE OWNER OF THAT CASH RESULTANT, PRESU MPTION OF REVENUE FOR TREATING ITA 428/JP/2018_ TEEJA DEVI VS ITO 12 THIS SUM RS. 26.00 LAC AS UNEXPLAINED MONEY IN THE HAND OF ASSESSEE APPELLANT IS FULLY FISHY SHOULD NOT BE CONFIRMED BY THE HON'BLE ITAT, PRAYER; IT IS, THEREFORE, VERY HUMBLY PRAYED THAT THIS HON' BLE ITAT MAY KINDLY BE PLEASED TO;- (1) ISSUE DIRECTION FOR DELETING THE ADDITION AS MA DE UNDER SECTION 69A OF IT ACT, (2) ISSUE AN ORDER FOR DELETING THE INTEREST AS CHA RGED U/S 234A & 234B OF IT ACT, (3) GRANT ANY OTHER RELIEF AS THE HON'BLE ITAT MAY DEEM FIT AND PROPER UNDER THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. 6. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND P ERUSED THE CASE LAWS AND DOCUMENTS AND EVIDENCES FILED AND AVAILABLE IN THE PAPER BOOK. THE ASSESSEE IS A WIDOW AND ALMOST ILLITERATE. THE A.R. OF THE ASSESSEE SUBMITTED A REPLY TO ITO ON 14/3/2014 WHEREIN THE FAC T REGARDING AGREEMENT TO SALE OF PLOT NO. 58 AND 59 IN SHIV COL ONY, BEED KISHAN BAGH WAS STATED (PLACED AT PAGE 5 & 6 OF PAPER BOOK) . ASSESSEE ALSO PROVIDED THE COPY OF AGREEMENTS AND ALSO I.D. PROOF OF BUYERS AND EVIDENCE FOR CREDITWORTHINESS OF BUYERS (PLACED AT PAGE NO. 18 TO 23 OF PAPER BOOK). A REQUEST WAS MADE TO LD. CIT(A) (COPY P LACED AT PAGE NO. 30 OF THE PAPER BOOK). THESE ARE THE DOCUMENTS WHICH WERE ESSENTIAL TO DECIDE THE SOURCE OF DEPOSIT. THE FACTS REGARDING TH E AGREEMENT TO SALE OF TWO PLOTS OWNED BY THE ASSESSEE I.E. PLOT NO. 58 A ND 59 LOCATED AT ITA 428/JP/2018_ TEEJA DEVI VS ITO 13 SHIV COLONY, BID KISHAN BAGH, JAIPUR HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES REGARDING THE SOURCE OF THE DEPOSI TS MADE IN THE BANK ACCOUNT. THESE AGREEMENTS WERE ALSO SENT TO A.O. BY SPEED POST WHEN HE REFUSED TO ENTERTAIN THESE DOCUMENTS DURING ASSE SSMENT PROCEEDINGS. THE LD. CIT(A) HAD ALSO NOT CONSIDERED THESE VITAL DO CUMENTS PRIOR TO DECIDING ON THE ISSUE. IN THE INTEREST OF JUSTICE A ND EQUITY, WE ARE CONSIDERING THESE EVIDENCES AND DECIDING THE ISSUE WITH REGARD TO THE SOURCES OF DEPOSIT IN THE BANK ACCOUNT. THESE AGREEM ENTS TO SALE WERE FILED BEFORE THE LD. CIT(A) AS ADDITIONAL EVIDENCES. A REQUEST WAS ALSO MADE UNDER RULE 46A OF THE RULES. THE LD. CIT(A) HAS NOT CONSIDERED THESE AGREEMENTS WITHOUT ANY CONVINCING REASON. THE A .OS REMAND REPORT DOES NOT ESTABLISH ANYTHING AGAINST THESE AG REEMENTS. THE ASSESSEE NOT ONLY FILED THE COPY OF SALE AGREEMENT BUT ALSO THE IDENTITY PROOF OF BUYERS, AFFIDAVITS AND ALSO THE DOCUMENTS TO ESTABLISH CAPACITY TO PURCHASE THESE PLOTS. THE ASSESSEE WAS ABLE TO DI SCHARGE THE ONUS ON HER. NOTHING HAVE BEEN ESTABLISHED AGAINST THESE DO CUMENTS. IN VIEW OF THESE FACTS, WE HOLD THAT THE ASSESSEE WAS ABLE TO EX PLAIN THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT BY WAY OF RECEIVING ADVA NCE TOWARDS THE SALE OF THE PLOTS OWNED BY HERSELF. THE ASSESSEE WAS O WNER OF THESE PLOTS. SHE HAD FURNISHED THE AGREEMENT TO SALE. SHE HAD FILED I.D. PROOF OF THESE BUYERS. SHE HAD AFFIDAVITS OF THESE PERSON S. THE EVIDENCE TO ITA 428/JP/2018_ TEEJA DEVI VS ITO 14 ESTABLISH CAPACITY TO PURCHASE OF BUYERS WE ALSO FIL ED. WE ALLOW THE APPEAL OF THE ASSESSEE. 8. GROUND NO. 7 OF THE APPEAL IS CHARGING INTEREST U/S 234A, 234B AND 234C OF THE ACT, WHICH IS CONSEQUENTIAL IN NATUR E AND MANDATORY, THEREFORE, NO ADJUDICATION IS REQUIRED REGARDING TH IS GROUND. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/7/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24 TH JULY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. TEEJA DEVI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 7(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 428/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR