Shri Bhawar Singh Chouhan, Indore, Indore V. ITO 1 (2), Indore

ITA 442/Ind/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1626 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV JAIN
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.442/IND/2017 ASSESSMENT YEAR 2009-10 REVENUE BY S HRI R AJEEV JAIN , SR.DR ASSESSEE BY SHRI RAJESH MEHTA, C.A DATE OF HEARING 26 .11. 2018 DATE OF PRONOUNCEME NT 27 .11 .2018 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL IS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009-10 AND IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I (IN SHORT LD.CIT(A)], INDORE DATED 15 .03.2017 WHICH IS ARISING OUT OF THE ORDER U/S 143(3)/147 OF THE I NCOME TAX ACT 1961(IN SHORT THE ACT) DATED 27.03.2014 FRAMED BY ITO-1(2), INDORE. SHRI BHA NWAR SINGH CHOUHAN, 495 SUDAMA NAGAR, INDORE VS. INCOME TAX OFFICER - 1 (2) , INDORE ( APPELLANT ) (RESPONDENT ) PAN NO. A NZPC3739L BHANWAR SINGH CHAUHAN ITA NO.442/IND/2017 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; 1. ADDITION OF RS. 23,00,000 ULS 68:THAT THE ASSES SING OFFICER ERRED IN MAKING ADDITION AND CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 23,00,0001- U/S 68 ON ACCOUNT: OF LOANS AND ADVANCE S GIVEN BY SUNITA AND SHAKUNTALA CHAUHAN TO OTHERS IN THE EARLIER YEA RS WERE RECEIVED BACK THROUGH CASH ROUTE DURING THE FINANCIAL YEAR 2 008-2009 AND DEPOSITED IN UNION BANK OF INDIA I.E. RS. 11,40,000 /- AND RS. 11,60,000/-. RESPECTIVELY. THE AMOUNT OF ADVANCES R ECEIVED BACK WAS OF SUNITA AND SHAKUNTALACHAUHAN AND NOT OF THE ASSESSE E HENCE SHALL NOT BE ADDED IN THE INCOME OF ASSESSEE. THUS, THE ADDIT ION IS WRONG, ILLEGAL AND UNLAWFUL, LOOKING AT THE FACTS OF THE CASE AND IN THE EYES OF LAW, HENCE; NEEDS TO BE DELETED. 2. ADDITION OF RS. 49,92,000 ULS 68:THAT THE ASSES SING OFFICER ERRED IN MAKING ADDITION AND CIT(A) ERRED BY CONFIRMING THE ADDITION OF RS. 49,92,000 U/S 68 AS ADVANCE GIVEN FOR PURCHASE OF A GRICULTURE LAND WAS RECEIVED BACK, THE SAME WAS ADVANCED BY THE ASS ESSEE AND HIS WIFE, IN JUST PRECEDING PREVIOUS YEAR DATED 05/0112 008, THE AMOUNT WHICH WAS GIVEN IN PRECEDING YEAR WAS ONLY RECEIVED BACK DURING THIS YEAR, THERE WAS NO FRESH CREDIT. FROM THE TOTAL ADD ITION OF RS. 25 LAKH PERTAINED TO HIS WIFE WHO IS JOINT ACCOUNT HOLDER I N THE BANK THEREFORE SHE ALSO DEPOSITED HER 25 LAKH ALONG WITH HER HUSBA ND. THUS THE ADDITION ON ACCOUNT OF ADVANCE RECEIVED BACK IS ILL EGAL, WRONG AND UNLAWFUL AND AGAINST THE FACTS OF THE CASE; HENCE N EEDS TO BE DELETED. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE MADE A REQUEST FOR SETTING ASIDE ALL THE ISSUES RAISED IN THIS APP EAL TO THE FILE OF LEARNED ASSESSING OFFICER (IN SHORT LD.A.O) FOR DENOVO BHANWAR SINGH CHAUHAN ITA NO.442/IND/2017 3 ADJUDICATION PLEADING THAT THE NEXUS OF THE ALLEGED ADDITIONS MADE U/S 68 OF THE ACT AT RS.23,00,000/- AND RS.49, 92,000/- WITH REGARD TO THE ADVANCES GIVEN FOR THE PURPOSES OF LOAN AS WELL AS FOR THE PURCHASE OF AGRICULTURAL LAND RELAT ES TO THE PRECEDING FINANCIAL YEARS AND THE ALLEGED SUM WERE RECEIVED BACK DURING THE FINANCIAL YEAR 2008-09 I.E. ASSESSM ENT YEAR 2009-10. HE FURTHER PLEADED THAT THE STATEMENT OF AFFAIRS AND CAPITAL ACCOUNT WERE PLACED BEFORE THE LD.A.O FOR P RECEDING YEARS AND STATEMENTS WERE ALSO RECORDED. 4. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE THOUG H SUPPORTED THE ORDERS OF BOTH THE LOWER AUTHORITIES, DID NOT OPPOSED TO THE REQUEST MADE BY LD. COUNSEL FOR THE ASSESSEE FOR SETTING ASIDE THE MATTER TO THE FILE OF LD.A.O. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. 6. THE ASSESSEE IS AGGRIEVED WITH THE ADDITIONS MAD E BY THE LD.A.O WHICH STANDS CONFIRMED BY LD.CIT(A) RELATING TO THE UNEXPLAINED CREDIT U/S 68 OF THE ACT AT RS.23,00,00 0/- FROM BHANWAR SINGH CHAUHAN ITA NO.442/IND/2017 4 MRS. SUNITA CHOUHAN AND SHAKUNTALA CHOUHAN AT RS.11,40,000/- AND RS.11,60,000/- RESPECTIVELY. AS SESSEE IS ALSO AGGRIEVED WITH THE ADDITION U/S 68 OF THE ACT AT RS.49,92,000/- MADE BY THE LD.A.O FOR THE ALLEGED AMOUNT RECEIVED FROM SHRI BAHADUR SINGH DABI. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT AS REGARDS THE AMOUNT OF RS.23,00,000/- RECEIVED FROM MRS. SUNITA CHOUHAN A ND SHAKUNTALA CHOUHAN IS CONCERNED, THE ALLEGED SUM WA S GIVEN AS LOAN AND ADVANCE BY THE ASSESSEE IN THE EARLIER YEARS AND THE SAME WAS RECEIVED BACK IN CASH DURING FINANCIAL YEAR 2008-09. SIMILARLY AS REGARDS THE ALLEGED ADDITION OF RS.49,92,000/- MADE U/S 68 OF THE ACT IS CONCERNED, THE AMOUNT WAS GIVEN AS ADVANCE FOR PURCHASE OF AGRICUL TURAL LAND ON 5.1.2008 JOINTLY BY THE ASSESSEE AND HIS WIFE. IT WAS STRONGLY PLEADED BY THE LD. COUNSEL FOR THE ASSESSE E THAT THE ALLEGED CASH CREDITS ARE NOT FRESH CASH CREDIT DURI NG THE YEAR RATHER THESE SUMS WERE GIVEN BY THE ASSESSEE AND HI S WIFE IN THE PRECEDING YEARS AND THE ALLEGED SUM WERE RECEIV ED BACK DURING THE YEAR. THE REQUEST FOR GIVING ONE MORE O PPORTUNITY TO GO BEFORE THE LD.A.O FOR FRESH ADJUDICATION HAS BEE N MADE BY BHANWAR SINGH CHAUHAN ITA NO.442/IND/2017 5 THE LD. COUNSEL FOR THE ASSESSEE WHICH GOES UNOPPOS ED BY THE DEPARTMENTAL REPRESENTATIVE. 7. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE AND IN THE INTEREST OF JUSTICE, GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE AND ACCORDINGLY SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THE MATTERS RAISED IN GROUND NO.1 & 2 TO THE FILE OF LD.A.O FOR DENOVO ADJUDICATION IN THE LIGHT OF VARIOUS DOCUMENTS, STATEMENT OF AFFAIRS, CAPITAL ACCOUNT, S TATEMENTS OF MRS. SUNITA CHOUHAN, SHAKUNTALA CHOUHAN AND SHRI BAHADUR SINGH DABI. LD.A.O SHALL ALSO VERIFY THE CO NTENTIONS MADE BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSU ES ACCORDINGLY. LD. A.O SHOULD ALSO CARRY NECESSARY I NVESTIGATION TO SATISFY ABOUT THE SOURCE OF AGRICULTURAL INCOME CLAIMED BY THE ASSESSEE WHICH HAS BEEN ACCUMULATED SINCE LAST MANY YEARS AND THE ALLEGED ACCUMULATED FUNDS WERE USED T O PROVIDE LOANS AND ALSO TO PROVIDE ADVANCE FOR PURCHASE OF A GRICULTURAL LAND. NEEDLESS TO MENTION THAT PROPER OPPORTUNITY O F BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE. BHANWAR SINGH CHAUHAN ITA NO.442/IND/2017 6 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 27.11.201 8. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 27 NOVEMBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE