RAJENDRA KUMAR TAK, Jaipur V. DCIT, Jaipur

ITA 535/JPR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5503 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 16-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KOTHARI CIT DHK
• Assessee Lawyers: TARUN MITTAL
• Keywords: Unexplained investment

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NOS. 535 TO 539/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2005-06 TO 2009-10 RAJENDRA KUMAR TAK, AMRIT RAGHUNATH JI KA, OPP.- HAWA MAHAL, JAIPUR. CUKE VS. D.C.I.T. CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AANPT 4628 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI TARUN MITTAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI D.S. KOTHARI (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08/02/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/02/2016. VKNS'K@ ORDER PER BENCH THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE COMMON ORDER DATED 01/3/2013 OF THE LEARNED C.I.T.(A)(CENTR AL), JAIPUR FOR A.YS. 2005-06 TO 2009-10. THE COMMON EFFECTIVE GROUNDS OF ALL THE APPEALS ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE 2 ITA NO. 535 TO 539/JP/2013 RAJENDRA KUMAR TAK VS DCIT DISALLOWANCE OF 1,76,421/- FOR A.Y. 2005-06, RS. 2,45,811/- FOR A.Y. 2006-07, RS. 7,66,372/- FOR A.Y . 2007-08, RS. 1,07,753/- FOR A.Y. 2008-09 AND RS. 94,902/- FOR A.Y. 2009-10 U/S 40(A)(IA) OF THE INCO ME TAX ACT, 1961 ARBITRARILY. 1.1 THAT THE LD. CIT HAS FURTHER ERRED IN IGNORING TH E SUBMISSION MADE MORE PARTICULARLY WHEN THE AMOUNT IN DISPUTE WAS NOT PAYABLE AT THE END OF THE PREVIOU S YEAR UNDER APPEAL, THEREFORE, THE DISALLOWANCE OF' 1,76,421/- FOR A.Y. 2005-06, RS. 2,45,811/- FOR A.Y . 2006-07, RS. 7,66,372/- FOR A.Y. 2007-08, RS. 1,07,753/- FOR A.Y. 2008-09, RS. 94,902/- FOR A.Y. 2009-10 SO MADE DESERVES TO BE DELETED. 1.2 IN THE ALTERNATIVE, THAT THE LD. CIT(A) HAS FUR THER ERRED IN SUSTAINING DISALLOWANCE OUT OF THE EXPENSES CLAIMED IN TRADING ACCOUNT BY IGNORING THE FACT THA T THE LD. AO HAS INVOKED THE PROVISIONS OF SECTION 145(3) AND MADE TRADING ADDITION OF' 1,40,000/- THEREFORE NO SEPARATE DISALLOWANCE CAN BE MADE BASED ON THE ENTRIES CONTAINED IN SAME BOOKS OF ACCOUNT, HENCE THE DISALLOWANCE OF' 1,76,421/- FOR A.Y. 2005-06, RS. 2,45,811/- FOR A.Y. 2006-07, RS. 7,66,372/- FOR A.Y. 2007-08, RS. 1,07,753/- FOR A.Y . 2008-09, RS. 94,902/- FOR A.Y. 2009-10 SO SUSTAINED DESERVES TO BE DELETED. 2 WITHOUT PREJUDICE TO ABOVE AND IN THE ALTERNATIVE , LD. CIT HAS GROSSLY ERRED IN NOT ALLOWING THE BENEFIT OF TELESCOPING AND SET OFF OF THE ADDITIONS MADE INTO EACH OTHER AND ALSO WITH THE ADDITIONS MADE IN IMMEDIATELY PRECEDING AND SUCCEEDING YEARS IN THE CASE OF ASSESSEE OR HIS FAMILY MEMBERS MORE PARTICULARLY WHEN THE ADDITIONS ON ACCOUNT OF 3 ITA NO. 535 TO 539/JP/2013 RAJENDRA KUMAR TAK VS DCIT UNEXPLAINED INVESTMENT IN JEWELLERY OWNED BY ALL FAMILY MEMBERS HAS BEEN MADE IN THE HANDS OF SHRI LAXMI NARAIN TAK, FATHER OF APPELLANT. 2. REGARDING ALL THE APPEALS, THE LD AR OF THE ASSE SSEE HAS SUBMITTED THAT ALL THE ISSUES IN ALL THE APPEALS AR E COVERED BY THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR PASSED IN THE ASSESSEES GROUP CASE (BROTHER OF THE ASSESSEE) NAMELY IN THE CASE O F SURESH KUMAR TAK VS. DCIT IN ITA NOS. 317 TO 320/JP/2013 ORDER DATED 23/4/2013. THEREFORE, HE PRAYED TO ALLOW ALL THE APPEALS OF THE ASSESSEE. 3. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LOWER AUTHORITIES AND PRAYED TO UPHOLD THE ORDER OF THE LD CIT(A). 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE ID ENTICAL ISSUE INVOLVED IN ALL THE APPEALS, HAVE BEEN DECIDED BY T HE COORDINATE BENCH IN ASSESSEES GROUP CASE (BROTHER OF THE CASE) FOR A.Y. 2006-07 TO 2009- 10 VIDE ORDER DATED 23/04/2013. THE OPERATIVE PORTIO N OF THE COORDINATE BENCHS ORDER IS REPRODUCED AS UNDER:- 6. HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECO RD AND THE CASE LAWS BROUGHT TO OUR NOTICE. ADMITTEDLY, THE CORRECT PROFITS COULD NOT BE DEDUCED FROM THE BOOKS OF 4 ITA NO. 535 TO 539/JP/2013 RAJENDRA KUMAR TAK VS DCIT ACCOUNT MAINTAINED BY THE ASSESSEE REQUIRING REJECT ION OF BOOKS OF ACCOUNT BY APPLICATION OF PROVISIONS OF SECTION 145(3) OF THE ACT. THE ASSESSING OFFICER JUSTIFIABLY REJECTED THE ACCOUNTS AND ESTIMATED INC OME IN ALL THE FOUR YEARS UNDER CONSIDERATION TO THE BE ST OF HIS JUDGMENT. WHEN SUCH AN ESTIMATE IS MADE, IT IS IN SUBSTITUTION OF THE INCOME THAT IS TO BE COMPUTED U /S 29 OF THE ACT. IN OTHER WORDS, ALL THE DEDUCTIONS, WH ICH ARE REFERRED TO U/S 29 OF THE ACT ARE DEEMED TO HAV E BEEN TAKEN INTO ACCOUNT WHILE MAKING SUCH AN ESTIMATE. THIS WILL ALSO MEAN THAT THE EMBARGO PLACED IN SECTION 40 OF THE ACT IS ALSO TAKEN INTO ACCOUNT . SUCH A VIEW HAS BEEN ENTERTAINED BY THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF INDWELL CONSTRUCTIONS VS. CIT (SUPRA). THE VIEW ENTERTAINED B Y THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE BANWARILAL BANSIDHAR (SUPRA) ALSO OPERATES IN THE SA ME FIELD. THIS BEING THE POSITION IN LAW, THE EMBARGO PLACED IN SECTION 40(A)(IA) IS DEEMED TO HAVE BEEN TAKEN INTO ACCOUNT BY THE ASSESSING OFFICER, WHILE H E COMPLETED THE ASSESSMENT ON ESTIMATE BASIS. NO SEPARATE DISALLOWANCE OF EXPENSES BY APPLICATION OF SECTION 40(A)(IA) OF THE ACT WAS CALLED FOR IN ALL T HE YEARS UNDER APPEAL. THE LD. CIT(A) HAS THUS ERRED IN SUSTAINING THE DISALLOWANCE, WHICH WE HEREBY DIRECT T O 5 ITA NO. 535 TO 539/JP/2013 RAJENDRA KUMAR TAK VS DCIT DELETE AND ALLOW THE GROUNDS RAISED IN ALL THE FOUR APPEALS BY THE ASSESSEE IN THAT REGARD. BY RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINAT E BENCH IN ASSESSEES GROUP CASE, WE REVERSE THE ORDER OF THE LD CIT(A) AN D ALLOW ALL THE FIVE ASSESSEES APPEALS. 5. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/2016 SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH FEBRUARY, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- RAJENDRA KUMAR TAK, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CENTRAL CIRCLE-2, JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.535 TO 539/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR