ITO, RAJSAMAND V. Shri Giriraj Soni, RAJSAMAND

ITA 432/JODH/2013

• Counselvise Citation: 43223314 RSA 2013
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Deemed to accrue or arise in india; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NO.432/JODH/2013 ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER, VS. SHRI GIRIRAJ SONI, WARD-1, RAJSAMAND. S/O. SHRI SUGAN CHAND SONI, C/O. SHRI PAHLAD SONI, HATHI GALI, RETI MOHALLA, KANKROLI, RAJSAMAND. (PAN: AOYPS 0509 N). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.A. JOSHI, D.R. RESPONDENT BY : SHRI U.C. JAIN & SHRI RAJENDRA JAI N DATE OF HEARING : 19.11.2013 DATE OF PRONOUNCEMENT : 22.11.2013 ORDER PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2008 -09 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), UDAIPUR DATED 13.05.2013. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE, AS INDIVIDUAL, DERIVED HIS INCOME FROM PLYING TRUCK AND COMMISSION AS INSURANCE AGENT. FOR A.Y. 2008-09 HE FILED HIS RETURN ON 31.03.2009 DECL ARING TOTAL INCOME OF 2 ITA NO.432/JODH/2013 A.Y. 2008-09 RS.1,05,520/-. ON PERUSAL OF BALANCE SHEET AS ON 3 1.03.2008, IT WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS BEEN MAINTAINING FOLLOWI NG BANK ACCOUNTS :- I) THE U.C.C.B. LTD. II) BOB, KANKROLI III) THE BOR LTD. IV) HDFC BANK LTD. 3. THE ASSESSEE HAD ALSO MAINTAINED ONE SAVINGS BAN K ACCOUNT WITH IDBI BANK, RAJSAMAND WITH ACCOUNT NO.104104000045395. A S PER THIS ACCOUNT, A SUM OF RS.13,67,800/- HAD BEEN DEPOSITED DURING THE REL EVANT YEAR IN CASH. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE ABO VE AMOUNT OF CASH DEPOSIT. THE ASSESSEE REPLIED THAT HE BEING INSURANCE AGENT AND ALSO AGENT OF HDFC SLI AND RELIANCE AND ALSO BEING BROKER OF WEALTH CREATORS C O. WHICH DEALS IN MUTUAL FUND AND THE H.O. OF ALL THESE BUSINESS BEING IN UDAIPUR HE COLLECTS MONEY AND DEPOSITS THEM IN BANK. IT WAS SUBMITTED THAT HE HAD INSURAN CE OF VEHICLE OF VARIOUS PARTIES AND GOT INVESTMENT IN THE MUTUAL FUND FROM VARIOUS CUSTOMERS AND IT WAS NOT POSSIBLE TO SEND THE ENTIRE MONEY TO THE H.O. HE D EPOSITED THE MONEY THROUGH CHEQUE BUT THE A.O. WAS NOT SATISFIED. AFTER MAKIN G THE FOLLOWING OBSERVATIONS, THE A.O. HAS ADDED THE TOTAL AMOUNT OF RS.13,67,800 /- BY TREATING IT AS DEEMED INCOME OF THE ASSESSEE. THE OBSERVATION MADE BY TH E A.O. IS AS UNDER :- 3 ITA NO.432/JODH/2013 A.Y. 2008-09 THE REPLY FURNISHED BY THE ASSESSEE IS CONSIDERED . THE ASSESSEE HAS SUBMITTED THAT RS.7,61,500/- (4,00,000 + 3,61,500) DEPOSITED IN IDBI IS THE MONEY RECEIPTS FROM THE INSURANCE SUBSCRIBERS OF HD FC, RELIANCE GENERAL INSURANCE, UNITED INSURANCE AND INVESTORS OF MUTUAL FUND. VIDE NOTE SHEET ENTRY DATED 09.12.2010, THE ASSESSEE WAS ASKED TO P RODUCE CONFIRMATION LETTER OF THE INSURANCE SUBSCRIBERS AND INVESTORS IN SUPPO RT OF HIS CLAIM OTHERWISE THE SAME WILL BE TREATED AS UNEXPLAINED MONEY. THE DATE OF HEARING WAS FIXED FOR 15.12.2010. ON THE GIVEN DATE THE ASSESSEE HAS NOT FURNISHED CONFIRMATION OF ABOVE INSURANCE SUBSCRIBERS AND INV ESTORS IN SUPPORT OF HIS CLAIM. THEREFORE, ASSESSEES CONTENTION ARE NOT AC CEPTED IN ABSENCE OF CONFIRMATION LETTERS OF THE INSURANCE SUBSCRIBERS & INVESTORS IN REGARD TO ABOVE CASH DEPOSIT. IN REGARD TO BALANCE AMOUNT OF RS.6,06,300/- (13,67,800 7,61,500) THE ASSESSEE HAS OFFERED NO EXPLANATION . CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ABOVE UNDISCLOSE D CASH DEPOSIT AMOUNTING TO RS.13,67,800/- IS DEEMED TO BE INCOME OF THE ASS ESSEE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. APART FROM THIS, THE A.O. HAS ALSO MADE A SMALL ADDITION OF RS.7,344/- ON ACCOUNT OF DISALLOWANCE OUT OF EXPENSES CLAIMED. 5. AGGRIEVED, THE ASSESSEE WENT IN FIRST APPEAL AND THE LD. CIT(A) HAS DELETED BOTH THESE ADDITIONS. NOW THE REVENUE IS AGGRIEVED AND HAS FILED THIS APPEAL AGAINST THESE DELETIONS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE ENTIRE RECORDS. IT WAS FOUND THAT THE LD. CIT(A) HAS CALL ED FOR REMAND REPORT FROM THE A.O. ON ADDITIONAL EVIDENCE PRODUCED UNDER RULE 46A OF THE RULES AND THE A.O. 4 ITA NO.432/JODH/2013 A.Y. 2008-09 HAS NOT DISPUTED THE TOOTH AND NAIL EVIDENCE PRODUC ED VIA ADDITIONAL EVIDENCE ROUTE, BUT HAS MADE THE FOLLOWING OBSERVATIONS:- SINCE THE ADDITION WAS MADE FOR NOT FURNISHING THE CONFIRMATION LETTERS AS REQUIRED BY THE A.O. AND THE ASSESSEE HAVING FILED THE SAME NOW IT CAN BE SAID THAT FOR THE CASH DEPOSIT TO THE EXTENT OF RS. 4,00,000/- THE ASSESSEE HAS FURNISHED THE EVIDENCES. HOWEVER, THE FACTS REMAIN THAT THERE IS NO REASON FORTHCOMING FROM THE SUBMISSION OF THE LD. AR AS TO WHY THE ASSESSEE COULD MAKE THE COMPLIANCE BY 15.02.2010. THIS ISSUE MAY KINDLY BE DECIDED AT YOUR END. THE LD. AR IN RESPECT OF THE DEPOSIT AMOUNTING TO R S.3,62,000/- AND RS.6,06,300/- VIDE HIS LETTER DATED 09.05.2013 SUBM ITTED AS UNDER : IT IS FURTHER SUBMITTED THAT LIKE-WISE THE APPELLA NT-ASSESSEE HAD FURNISHED CONFIRMATIONS OF THE INVESTORS IN MUTUAL FUND AS AN ADDITIONAL EVIDENCE. OUT OF RS.362000/-, CONFIRMATION IN RESPECT OF RS.3 0,000/- FROM MR. SURESH KUMAR DHOBI COULD NOT BE COLLECTED AFTER SUCH LONG TIME AND ONE SHRI CHUNNI LAL EXPIRED SINCE THEN SO FROM HIS CONFIRMAT ION COULD NOT BE OBTAINED. HOWEVER, THERE IS NO ADVERSE COMMENT BY THE LD. A.O. IN RESPECT OF SUCH MONEYS GIVEN TO THE APPELLANT-ASSESSEE. IN THE REMAND REPORT, THE LD. A.O. HAS STATED THAT FOR BALANCE AMOUNT OF RS.6,06,300/-, THE ASSESSEE HAS NOT GIVEN ANY EXPLA NATION. IN THIS REGARD, IT IS SUBMITTED THAT THE ASSESSEE STATED THAT THE FREI GHT CHARGES OF TRAILER WERE DEPOSITED BY THE DRIVERS IN HIS IDBI BANK ACCOUNT. THE ASSESSEE WAS ALSO AGENT OF RELIANCE GENERAL INSURANCE AND OTHER GENER AL INSURANCE COMPANIES, AS SUCH, THE MONEYS RECEIVED FOR INSURAN CE OF MOTOR VEHICLES WERE ALSO DEPOSITED IN THE SAID BANK ACCOUNT. COPI ES OF SUCH INSURANCE COVER NOTES, ETC. WERE ALSO FURNISHED TO THE ALLOWE D. A.O. 7. AFTER CONSIDERING THE AOS ORDER AND THE REMAND REPORT AS DISCUSSED ABOVE, WE ARE ALSO OF THE OPINION THAT THE ADDITION OF RS. 13,67,800/- MADE BY THE A.O. IS NOT AT ALL JUSTIFIED. THE CONTENTION OF THE ASSESS EE STANDS PROVED WITH THE HELP OF 5 ITA NO.432/JODH/2013 A.Y. 2008-09 DOCUMENTARY EVIDENCES IN RESPECT OF DEPOSITS IN THE BANK ACCOUNTS IN THE IDBI BANK. ACCORDINGLY, THE LD. CIT(A) HAS COMMITTED NO ERROR IN DELETING THIS ADDITION OF RS.13,67,800/-. WE CONFIRM THE SAME AND DISMISS GROUND NO.1 OF REVENUES APPEAL. 8. THE DISALLOWANCE OF RS.7,344/- OUT OF CONVEYANCE OF OFFICE VEHICLE AND MISCELLANEOUS EXPENSES HAS BEEN DELETED BY CIT(A) O N THE REASONING THAT IN PRINCIPLE THE A.O. HAD NO DISPUTE IN INCURRING OF S UCH EXPENSES. THE LUMP SUM ADDITION MADE AFTER DISALLOWANCE , IN OUR CONSIDERE D OPINION, ALSO IS NOT JUSTIFIED. ACCORDINGLY, WE CONFIRM THE DELETION OF RS.7,344/- AND DISMISS THE SECOND GROUND OF REVENUES APPEAL. 9. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 22.11.2013) SD/- SD/-/ (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND NOVEMBER, 2013 PBN/* 6 ITA NO.432/JODH/2013 A.Y. 2008-09 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, JODHPUR