ITO, Kishangarh V. GANPAT RAJ JAIN, Kishangarh

ITA 43/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99570 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJINDER SINGH
• Keywords: Tax effect
• Section: 69

Judgement Text

ITA NO. 43/JP/2013 THE ITO, KISHANGARH VS. SHRI GANP AT RAJ JAIN 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 YADA V, AM VK;DJ VIHY LA-@ ITA NO. 43/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ITO KISHANGARH CUKE VS. SHRI GANPAT RAJ JAIN D-7, MARBLE MANDI, MADANGANJ LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ASGPS 1812 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJINDER SINGH, JCIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/12/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 18/12/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM:- THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 17-10-2012 FOR THE ASSESSMENT YEAR 2005 -06 WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A), AJMER HAS ERRED IN:- (1) RESTRICTING THE ADDITION OF RS. 20,74,500/- TO RS. 2,07,450/-MADE BY AO ON ACCOUNT OF UNEXPLAINED DEP OSITS IN THE SAVING BANK ACCOUNT WITH IDBI BY APPLYING GROSS PROFIT RATE ITA NO. 43/JP/2013 THE ITO, KISHANGARH VS. SHRI GANP AT RAJ JAIN 2 OF 10% WITHOUT CONSIDERING THE TOTALITY OF FACTS AN D CIRCUMSTANCES OF THE CASE AND MERELY RELYING UPON T HE EARLIER JUDGEMENT OF THE JURISDICTIONAL ITAT. (2) TREATING THE DEPOSITS MADE IN THE IDBI A/C AS T HE TURNOVER WHEN THE BANK ACCOUNT IS OF THE NATURE OF SAVING BA NK ACCOUNT. (3) TREATING THE DEPOSITS MADE IN THE IDBI A/C A TH E TURNOVER WITHOUT ESTABLISHING THE NEXUS BETWEEN THE DEPOSITS AND WITHDRAWALS VIS-A-VIS BUSINESS TRANSACTIONS. (4) TREATING THE DEPOSITS AS TURNOVER WHEN THE CAS H DEPOSIT IN BANK SHOULD BE EXPLAINED BY ASSESSEE, OTHERWISE IT IS UNEXPLAINED INCOME U/S 69 OR 69B AS UPHELD BY APEX COURT IN THE CASE OF CIT VS. K CHINNATHAMBAN (SC) 292 ITR 68 2 (5) IGNORING THE ARGUMENT OF THE AO GIVEN DURING TH E APPEAL PROCEEDINGS THAT THE ASSESSEE FAILED TO PRODUCE THE EVIDENCE OF MARBLE BUSINESS. 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPIT E OF SERVICE OF NOTICE OF THIS HEARING, CONSEQUENTLY THE REVENUE APPEAL IS DECIDED EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR AND PERUSAL OF THE M ATERIAL AVAILABLE ON RECORD. ITA NO. 43/JP/2013 THE ITO, KISHANGARH VS. SHRI GANP AT RAJ JAIN 3 2.2 IT IS OBSERVED THAT THE DEMAND/ TAX EFFECT IN THE REVENUE APPEAL IN QUESTION IS TO THE TUNE OF RS. 6,52,050/-. UNDER TH E POWERS VESTED BY SEC. 268A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUED CI RCULARNO.21 OF 2015 DATED 10.12.2015(F NO. 279/MISC. 142/2007-ITJ( PT) INSTRUCTING THE AUTHORITIES BELOW DEPARTMENTAL APPE AL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DO ES NOT EXCEED LESS THAN RS.10 LACS. THE CIRCULAR IS SPECIF ICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 2.3 SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIRE CTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDRAWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 2.4 THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEP TIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY CBDT FOR THE A PPEAL THE SAME IS NOT MAINTAINABLE IN VIEW OF FORE GOINGS. ACCORDINGLY TH E APPEAL OF THE DEPARTMENT IS DISMISSED AS NOT PRESSED/WITHDRAWN. ITA NO. 43/JP/2013 THE ITO, KISHANGARH VS. SHRI GANP AT RAJ JAIN 4 3.0 IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 /12/201 5. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18/12/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, KISHANGARH, 2. IZR;FKHZ@ THE RESPONDENT-SHRI GANAPAT RAJ JAIN,MADANGANJ-KISH ANGARH 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.43/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR