SHRI RAJENDRA JAIN, Indore V. THE ITO WARD-3(3), Indore

ITA 542/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5812 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 17-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI RAJENDRA JAIN, D-701, SHEHNAI RESIDENCY, A.B.ROAD, INDORE PAN: AAUPJ0734E VS. ITO WARD 3(3), INDORE APPELLANT RESPONDENT APPELLANT BY SHRI RAJESH MEHTA, C. A. RESPONDENT BY SHRI MOHD. JAVED, DR DATE OF HEARING 18.08.2016 DATE OF PRONOUNCEMENT 18.08.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, INDORE [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 29.02 .2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12 AS AGAINST APPE AL DECIDED IN ASSESSMENT ORDER DATED 28.03.2014 OF IT O WARD 3(3) INDORE [HEREINAFTER REFERRED TO AS THE AO]. I.T.A. NO. 542/IND/2016 ASSESSMENT YEAR: 2011-12 SH.RAJENDRA JAIN, INDORE VS. ITO WD.3(3), INDORE I. T.A.NO. 542/IND/2016 AY 2011-12 PAGE 2 OF 5 2. GROUND NOS.1 & 2 OF THE APPEAL RELATE TO ADDITION O F RS. 11,15,500/- ON ACCOUNT OF CASH DEPOSIT IN SAVIN G BANK ACCOUNT AND RS. 2 LAKHS ON ACCOUNT OF ADVANCE RECEI PT AGAINST SALE OF PLOTS. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER AND CHARTERED ACCOUNTANT AND ALSO DOING PROFESSIONAL WORK ON RETAINER BASIS. THE AO NO TED THAT THE ASSESSEE HAS MADE CASH DEPOSITS AMOUNTING TO RS . 11,15,500/- IN HIS BANK ACCOUNT WITH OVERSEAS BANK. THUS, THESE WERE EXPLAINED AS REIMBURSEMENT OF EXPENSES I NCURRED BY THE ASSESSEE ON BEHALF OF HIS RELATIVES. THESE W EE EXPLAINED TO THE AO, DURING THE COURSE OF HEARING THROUGH CAS H BOOK AND LEDGER. HOWEVER, THE AO MADE ADDITION WITHOUT AF FORDING OPPORTUNITY OF HEARING AND WITHOUT LOOKING AT THE FA CTS OF THE CASE. THE AO ALSO MADE ADDITION OF RS. 2 LAKHS ON A CCOUNT OF ADVANCE AGAINST PLOT OF SALE SHOWN IN THE BALANCE S HEET UNDER UNSECURED LOAN. IT WAS EXPLAINED TO THE AO THAT THI S AMOUNT WAS RECEIVED FOR ADVANCE AGAINST THE SALE OF PLOTS. THE LD. CIT(A) HAS ALSO UPHELD THE ACTION OF THE AO HOLDING THAT SH.RAJENDRA JAIN, INDORE VS. ITO WD.3(3), INDORE I. T.A.NO. 542/IND/2016 AY 2011-12 PAGE 3 OF 5 SUFFICIENT OPPORTUNITY WAS ALLOWED, BUT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF DEPOSIT. AS REGARDS ADDITI ON OF RS. 2 LAKHS IS CONCERNED, THE LD. CIT(A) NOTED THAT THE A SSESSEE HAS SHOWN TO HAVE RECEIVED ADVANCE OF RS. 12 LAKHS FOR S ALE OF PLOT AS PER THE SALE AGREEMENT DATED 24.12.2009 OUT OF T OTAL CONSIDERATION OF RS. 30 LAKHS, WHEREAS AS PER THE BA LANCE SHEET, THE ADVANCE RECEIVED WAS SHOWN AT RS. 14 LAKHS . THEREFORE, THE DIFFERENCE OF RS. 2 LAKHS WAS ADDED B Y THE ASSESSING OFFICER, WHICH THE ASSESSEE COULD NOT EXPL AIN. THE LD. CIT(A) HAS ALSO CONFIRMED THE SAME. 4. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE AO AND CIT(A) HAS OVERLOOKED THE EVIDENCES PRODUCED BEFORE THEM. NO PROPER OPPORTUNI TY WAS ALLOWED. THE DEPOSITS MADE IN THE OVERSEAS BANK WERE OUT OF REIMBURSEMENT OF EXPENSES BY THE RELATIVES OF THE A SSESSEE. THE ASSESSEE IS USED TO INCUR EXPENSES ON BEHALF OF THE RELATIVES THROUGH HIS DEBIT CARDS, WHICH WERE SUBSEQU ENTLY REIMBURSED BY THE RELATIVES OF THE ASSESSEE. SIMILA RLY, THE AO HAS FAILED TO EXAMINE THE PROSPECTIVE BUYER OF THE PLOT OF LAND FROM WHOM AN AMOUNT OF RS. 14 LAKHS WAS RECEIVED. SH.RAJENDRA JAIN, INDORE VS. ITO WD.3(3), INDORE I. T.A.NO. 542/IND/2016 AY 2011-12 PAGE 4 OF 5 THEREFORE, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PLEADED THAT THIS REQUIRES VERIFICATION AT THE LEVE L OF THE AO AND EXAMINATION OF THE CONCERNED PERSON AND EVIDENC ES. 5. THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE ALSO EXPRESSED NO OBJECTION IF THE ORDER IS SET-ASIDE TO THE FILE OF THE AO. 6. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERI AL ON RECORD. IN THE INTEREST OF JUSTICE AND FAIR PLAY , WE SET ASIDE THE ORDER OF THE AO WITH THE DIRECTION TO EXAMINE TH E PROSPECTIVE BUYER OF THE PLOT OF LAND FROM WHOM AN A MOUNT OF RS. 14 LAKHS WAS RECEIVED. THE AO SHALL AFFORD THE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEN DEC IDE THE MATTER AFRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. SH.RAJENDRA JAIN, INDORE VS. ITO WD.3(3), INDORE I. T.A.NO. 542/IND/2016 AY 2011-12 PAGE 5 OF 5 THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 18 TH AUGUST, 2016. (D.T.GARASIA) JUDICIAL MEMBER (O.P.MEENA) ACCOUNTANT MEMBER DATED :18 TH AUGUST, 2016. CPU* COPY OF THE ORDER FORWARDED TO : THE ASSESSEE/ PCIT- INDORE/ CIT(A)-I, INDORE, AO/ D R- INDORE BENCH/ GUARD FILE. BY ORDER ASSISTANT REGISTRAR OF ITAT, INDORE BENCH