Dy. Commissioner of Income Tax , Lucknow V. Shri Sunil Kumar Jhunjhunwala , Barabanki

ITA 51/LKW/2013

• Counselvise Citation: 5123714 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R RASTOGI
• Section: 69; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.51/LKW/2013 ASSESSMENT YEAR:2009 - 10 SHRI SUNIL KUMAR JHUNJHUNWALA, OPPOSITE KOTWAN, FAIZABAD ROAD, BARABANKI. PAN:AAQPJ0350E VS DY.C.I.T., RANGE - V, LUCKNOW. (RESPONDENT) (APPELLANT) SHRI C. P. SINGH, D. R. APPELLANT BY SHRI K. R. RASTOGI, C. A. RESPONDENT BY 11/11/2014 DATE OF HEARING 17 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 29/11/2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUND S: 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE A.O. OF RS.18,74,800/ - U/S 68 OF THE INCOME - TAX ACT, 1961 ON ACCOUNT OF CASH DEPOSITED IN HANK ACCOUNT. HE FAILED TO APPRECIATE THAT THE ASSESSEE COULD NOT EXPLAIN SATISFACTORILY THE SOURCE OF THE CASH DEPOSITED IN THE SAID BANK ACCOUNT. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE A.O. OF RS.2,25,140/ - BY WAY OF CONTRACT RECEIPT AND RENT ON THE BASIS OF TDS CERTIFICATES AVAILABLE . THE CIT (A) FAILED TO APPRECIATE THAT THIS INCOME WAS NOT REFLECTED IN THE RETURN OF INCOME FILED BY THE ASSESSEE. 2 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT (A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. REGARDING GROUND NO. 1, WE FIND THAT THE ADDITION OF RS.18,74,800/ - WAS MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT IN RESPECT OF CASH DEPOSIT IN BANK ACCOUNT OF THE ASSESSEE WITH ICICI BANK. IN THI S REGARD, IT IS OBSERVED BY CIT(A) THAT SINCE THE AMOUNT IN DISPUTE WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND IS NOT CREDITED IN THE BOOKS OF THE ASSESSEE, ADDITION IS NOT JUSTIFIED U/S 68 BUT THE SOURCE OF CASH DEPOSIT IN BANK HAS TO BE EXAMIN ED AS PER THE PROVISIONS OF SECTION 69 OF THE ACT. THEREAFTER, IT IS OBSERVED BY CIT(A) THAT THE ASSESSEE HAS SUBMITTED CASH FLOW STATEMENT FOR THE PRESENT YEAR. THE CONTENTS OF THE CASH FLOW HAS BEEN REPRODUCED ON PAGE 6 AND WE FIND THAT EVEN AFTER CONS IDERING THIS CASH DEPOSIT IN BANK ACCOUNT OF THE ASSESSEE, THE ASSESSEE IS SHOWING CASH IN HAND OF RS.20.50 LAC. THE CIT(A) HAS GIVEN A FINDING THAT THE CASH FLOW STATEMENT HAS NOT BEEN ADVERSELY COMMENTED BY THE ASSESSING OFFICER AND ON THIS ISSUE , HE HA S GIVEN A FINDING THAT THIS CASH DEPOSIT IS OUT OF INCOME OF RS.30 LAC SURRENDERED BY THE ASSESSEE. THESE FINDINGS OF CIT(A) COULD NOT BE CONTROVERTED BY LEARNED D.R. OF THE REVENUE. SINCE THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN BANK, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE. GROUND NO. 1 IS REJECTED. 5. REGARDING GROUND NO. 2, WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 8(2) OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 8(2) I HAVE EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE. I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND THE REMAND REPORT AND THE SUBMISSIONS OF THE APPELLANT. SECTION 44AE OF T HE ACT LAYS DOWN PRESUMPTIVE SCHEME OF TAXATION FOR COMPUTING PROFITS AND GAINS OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGES. THE 3 APPELLANT HAS SHOWN INCOME OF RS.60,000/ - IN THE RETURN OF INCOME FROM PLYING OF TRUCK. I FIND THAT THE AO HAS MAD E AN ADDITION OF RS.2,25,140/ - PERTAINING TO RECEIPTS FROM TRUCK PLYING WITHOUT CONSIDERING THE EXPENSES MADE FOR THAT PURPOSE. FURTHER, IN THE CASH FLOW STATEMENT MENTIONED ABOVE, THE APPELLANT HAS SHOWN EXPENSES ON TRUCK PLYING AT RS.1,65,140/ - WHICH GIV ES A SURPLUS OF RS.60,000/ - . THERE IS THEREFORE NO JUSTIFICATION IN THE ADDITION OF RS.2,24,140/ - MADE BY THE AO. THE ADDITION MADE BY THE AO IS DELETED GIVING RELIEF TO THE APPELLANT. GROUND OF APPEAL NUMBER 5 AND 5.1 IS ALLOWED. 5.1 FROM THE ABOVE P ARA FROM THE ORDER OF LEARNED CIT(A), WE FIND THAT THIS ISSUE WAS DECIDED ON THE BASIS THAT OUT OF RECEIPT OF RS.2,25,140/ - AS PER TDS CERTIFICATE, THE ASSESSEE HAS INCURRED EXPENDITURE OF RS.1,65,140/ - AS PER CASH FLOW STATEMENT AND THE BALANCE AMOUNT OF RS. 60,000/ - WAS DECLARED AS INCOME. HE HAS ALSO GIVEN A FINDING THAT IN THE CASE OF ASSESSEE, SECTION 44AE IS APPLICABLE AND THEREFORE, NO ADDITION IS JUSTIFIED. THESE FINDINGS OF CIT(A) COULD NOT BE CONTROVERTED BY LEARNED D.R. OF THE REVENUE AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). GROUND NO. 2 IS ALSO REJECTED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /12/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR