Shri Sheetal Kothari, JAIPUR V. ACIT, UDAIPUR

ITA 476/JODH/2010

• Counselvise Citation: 47623314 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Section: 143(3); 153A

Judgement Text

1 ITA 476(2)-10 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 476/JODH/2010 ASSTT. YEAR : 2002-03. SHRI SHEETAL KOTHARI VS. THE ACIT, CENTRAL CIRCL E-2, S/O SHRI GENDMAL KOTHARI UDAIPUR. BEHIND GOVT. SEC. SCHOOL, RISHABHDEO TEHSIL KHERWARA, UDAIPUR. ITA NO. 477/JODH/2010 ASSTT. YEAR : 2002-03. SHRI MITHUN KOTHARI VS. THE ACIT, CENTRAL CIRCLE -2, S/O SHRI GENDMAL KOTHARI UDAIPUR. BEHIND GOVT. SEC. SCHOOL, RISHABHDEO TEHSIL KHERWARA, UDAIPUR. (APPELLANTS) (RESPONDENT) APPELLANT BY : SHRI SHRAWAN GUPTA RESPONDENT BY : SHRI SUBHASH CHANDRA DATE OF HEARING : 15.12.2011. DATE OF PRONOUNCEMENT : 16.12.2011. ORDER DATED : 16/12/2011. PER R.K. GUPTA, J.M. THESE ARE TWO APPEALS BY TWO DIFFERENT ASSESSEES I .E. SHRI SHEETAL KOTHARI AND SHRI MITHUN KOTHARI RELATING TO ASSESSMENT YEAR 200 2-03. 2 2. ASSESSMENTS IN THESE CASES WERE COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3). 3. LEGAL GROUND I.E. ASSESSMENT ORDER PASSED UNDER SECTION 153A READ WITH SECTION 143(3) WAS BAD IN LAW, WAS NOT PRESSED IN CASE OF B OTH THESE ASSESSEES, THEREFORE, THEY ARE DISMISSED AS NOT PRESSED. 4. REMAINING ISSUE IN BOTH THESE APPEALS IS AGAINST CONFIRMING THE ADDITION OF RS. 1,14,800/- EACH ON ACCOUNT OF PAYMENT FOR PURCHASE OF LAND OF 1/3 RD SHARE FROM UNDISCLOSED SOURCES. 5. IN THESE CASES SEARCH AND SURVEY ACTION WAS CARR IED OUT ON 2.12.2004 AT THE RESIDENTIAL AND BUSINESS PREMISES OF SHRI GENDMAL K OTHARI AND HIS SONS INCLUDING THESE TWO APPELLANTS. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER OBSERVED THAT ASSESSEE JOINTLY WITH HIS FATHER SHRI GENDMAL KOTHARI AND BROTHER SHRI MITHUN KOTHARI HAD PURCHASED SOME LAND FOR A TOTAL CONSIDERATION OF RS. 3 LAKHS ON 15.9.2001 ON WHICH EXPENSES AGGREGATING TO RS. 44,4 00/- ON STAMP DUTY AND REGISTRATION CHARGES WERE ALSO INCURRED. THE ASSESSEE HAD ALSO MADE ADVANCE PAYMENT ON 17.5.99 TO SHRI GURUDEV DHARMENDRA PARMANAND WHO WAS BEING SHO WN AS DEBTOR FROM ASSESSMENT YEAR 2000-01 ONWARDS AND INTEREST INCOME ON THE SAM E WAS ALSO BEING SHOWN. WHEN ASKED TO EXPLAIN THE SOURCE OF INVESTMENT IN THE PU RCHASE OF THE PROPERTY ALONG WITH EVIDENCE, THE ASSESSEE IN HIS REPLY DATED 6.10.2006 SUBMITTED THAT HE HAD MADE PAYMENT OF RS. 70,000/- THROUGH CHEQUE AGAINST 1/3 RD SHARE IN THE SAID PLOT BUT INADVERTENTLY THE ACCOUNTANT AND AUTHORIZED REPRESENTATIVE HAD TREATE D THIS PAYMENT AS DEBTOR INSTEAD OF INVESTMENT IN THE PLOT. THE SAME WAS OFFERED FOR T AXATION PURPOSE IN THE RELEVANT YEAR OF ASSESSMENT AGAINST SUCH PLOT AS PER THE ASSESSEES REPLY DATED 6.10.2006. HOWEVER, THE 3 ASSESSING OFFICER HELD THAT THE PAYMENT FOR THE PUR CHASE OF LAND HAD BEEN MADE FROM UNDISCLOSED SOURCES AND THE ASSESSEES SHARE BEING 1/3 RD WAS RS. 1,14,800/-. ACCORDINGLY, HE MADE ADDITION OF RS. 1,14,800/- EAC H IN CASE OF BOTH THE ASSESSEES. 6. SAME CONTENTIONS WERE REITERATED BEFORE LD. CIT (A) AS IT WAS SUBMITTED THAT RS. 70,000/- WAS GIVEN AS ADVANCE ON ACCOUNT OF PURCHAS E OF LAND ON 17.5.99 BY CHEQUE AND BALANCE AMOUNT OF RS. 44,800/- WAS ALSO GIVEN, WHO WAS ALSO NOT SATISFIED WITH THE EXPLANATION. ACCORDINGLY HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. NOW BOTH THE ASSESSEES ARE IN APPEAL HERE BEFORE THE TRIBUNAL. 8. THE LD. COUNSEL OF THE ASSESSEE FILED WRITTEN SU BMISSIONS. 9. ON THE OTHER HAND, LD. D/R PLACED RELIANCE ON TH E ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A). 10. AFTER CONSIDERING THE WRITTEN SUBMISSIONS AND P ERUSING THE MATERIAL ON RECORD, WE FIND THAT BOTH THESE ASSESSEES SHOULD BE ALLOWED RE LIEF. THESE ARE SMALL ASSESSEES AND THEY ARE NOT WELL CONVERSANT WITH THE ACCOUNTS. IN FACT, THE AMOUNT OF RS. 70,000/- WAS PAID THROUGH CHEQUE IN 1999 AND COPY OF SALE DEED I S ALSO PLACED ON RECORD WHEREIN THIS FACT IS MENTIONED THAT AMOUNT OF RS. 70,000/- WAS P AID BY CHEQUE NO. 390167 DATED 17.5.1999. THEREFORE, NO ADDITION CAN BE MADE OF TH IS AMOUNT IN THE YEAR UNDER CONSIDERATION. FURTHER IT IS SEEN THAT THE REMAININ G AMOUNT OF RS. 44,800/- WAS PAID OUT OF CASH IN HAND AFTER WITHDRAWAL FROM UDAIPUR CENTRAL COOPERATIVE BANK. COPY OF ACCOUNT IS PLACED ON RECORD SHOWING WITHDRAWAL OF RS. 44,10 0/-. THEREFORE, IN VIEW OF THESE FACTS, WE HOLD THAT THOUGH THEY HAVE PAID THE CONSIDERATIO N THROUGH KNOWN SOURCES BUT WERE NOT ABLE TO EXPLAIN PROPERLY AS THE ACCOUNTANT WRONGLY SHOWN THIS AMOUNT AS DEBTOR AND AS INTEREST INCOME WHILE FILING RETURN OF INCOME WITHO UT CONSULTING THE ASSESSEE. KEEPING IN 4 MIND ALL THESE FACTS AND CIRCUMSTANCES, A LENIENT V IEW IS TAKEN AND THE ADDITION IS DELETED. SIMILAR FACTS ARE INVOLVED IN BOTH THE CASES, THERE FORE, ON THE SAME REASONING, THE ADDITION IS DELETED. 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SHRI SHEETAL KOTHARI, UDAIPUR. SHRI MITHUN KOTHARI, UDAIPUR. THE ACIT, CENTRAL CIRCLE-2, UDAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 476(2)/JODH/2010) BY ORDER, AR ITAT JODHPUR.