ACIT, Alwar V. SHRI ASHOK KUMAR BANSAL, Dausa

ITA 542/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54220 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-10-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: S L PODDAR
• Section: 133A; 132

Judgement Text

1 ITA 542-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 542/JP/2011 ASSTT. YEAR : 2005-06. THE ACIT, CIRCLE-1, VS. SHRI ASHOK KUMAR BANSAL, ALWAR. PROP. M/S. KRISHI SEWA KENDRA, HINDAUN ROAD, MAHUA (DAUSA) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.K. MEENA RESPONDENT BY : SHRI S.L. PODDAR DATE OF HEARING : 14.10.2011 DATE OF PRONOUNCEMENT : 21.10.2011 ORDER DATE OF ORDER : 21/10/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-506. 2. FIRST GROUND IN THE APPEAL OF THE DEPARTMENT IS AGAINST DELETING ADDITION OF RS. 13,50,000/- ON ACCOUNT OF UNDISCLOSED INCOME NOTED IN THE DIARY. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION UNDER SECTION 132 OF THE IT ACT WAS CARRIED OUT AT THE RESIDENCE OF THE ASSESSEE AND SURVEY UNDER SECTION 133A OF THE ACT WAS ALSO CARRIED OUT AT THE BUSINESS PRE MISES OF SHRI ASHOK KUMAR BANSAL, PROPRIETOR OF M/S. KRISHI SEWA KENDRA, MAHUA (DAUSA ). AS A RESULT OF SEARCH/SURVEY, IT WAS NOTICED THAT ASSESSEE WAS INDULGING IN UNACCOUN TED INVESTMENTS AND TRADING OF 2 PROPERTIES AND SHARE ACTIVITIES AND HAD EARNED UNAC COUNTED INCOME WHICH WAS OFFERED FOR TAXATION. 4. DURING THE ASSESSMENT PROCEEDINGS, THE AO OBSERV ED THAT ON THE BASIS OF ANNEXURE A-1, EXHIBIT-1 THE INVESTMENT MADE IN BOOK ING OF VARIOUS PLOTS AT RS. 13,07,136/- OUT OF UNDISCLOSED INCOME SURRENDERED D URING THE COURSE OF SEARCH. ASSESSEE HAD ADMITTED RS. 13.50 LACS BORROWED FROM VILLAGERS . SINCE THE SOURCE OF THIS BORROWING COULD NOT BE EXPLAINED, THEREFORE, ASSESSEE HAD DIS CLOSED ADDITIONAL INCOME OF RS. 13.50 LACS IN COURSE OF SEARCH AND THE SAME HAS BEEN SHOW N AS INCOME IN THE RETURN. HOWEVER, THE AO WAS OF THE VIEW THAT THIS ADDITIONAL INCOME OF RS. 13.50 LACS IS A SEPARATE DISCLOSURE WHICH IS NOT RELATED TO THE SUM OF RS. 1 3,07,136/- INVESTED ON ACCOUNT OF BOOKING OF VARIOUS PLOTS. THEREFORE, HE MADE A FUR THER ADDITION OF RS. 13.50 LACS. 5. DETAILED SUBMISSIONS WERE FILED BEFORE LD. CIT ( A) WHO AFTER CONSIDERING THE SUBMISSIONS FOUND THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 1`3.50 LACS AS ASSESSEE HAD ALREADY SURRENDERED THIS AMOUNT WHILE FILING THE RETURN OF INCOME. ACCORDINGLY HE DELETED THE ADDITION. 6. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) ON WHICH RELIANCE HAS BEEN PLACED BY RESPECTIVE PARTIES, WE FIND NO INFIR MITY IN THE FINDING OF LD. CIT (A). DURING SEARCH, IT WAS NOTICED THAT ASSESSEE HAD BOO KED VARIOUS PLOTS INVESTING RS. 13,07,136/- AND IT WAS STATED THAT INVESTMENT HAS B EEN MADE OUT OF BORROWINGS AS LOAN FROM VILLAGERS. SINCE ASSESSEE COULD NOT PROVE THE BORROWINGS, THEREFORE, THE AMOUNT OF RS. 13.5 LACS WAS SURRENDERED. OUT OF BORROWINGS O F RS. 13.5 LACS, THE INVESTMENT OF RS. 13,07,136/- WAS MADE, THEREFORE, THERE IS NO QUESTI ON OF MAKING ANY SEPARATE ADDITION OF 3 RS. 13.5 LACS. ACCORDINGLY WE HOLD THAT LD. CIST ( A) WAS CORRECT IN DELETING THIS ADDITION AND THE ACTION OF THE LD. CIT (A) IS CONFIRMED. 7. NEXT ISSUE RELATES TO DELETING THE ADDITION OF R S. 1,50,000/- ON ACCOUNT OF INVESTMENT IN PURCHASE OF AGRICULTURAL LAND. 8. THE AO MADE THIS ADDITION AS PER ANNEXURE A-1 EX HIBIT-19 ON ACCOUNT OF INVESTMENT IN AGRICULTURAL LAND CONSIDERING NOT REC ORDED IN BOOKS OF ACCOUNT. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT DURING THE COURSE OF SEARCH, A DOCUMENT SHOWING INVESTMENT MADE BY ASSESSEE IN PURCHASE OF AGRICULT URAL LAND WAS FOUND. THIS TRANSACTION PERTAINS TO PURCHASE OF AGRICULTURAL LAND AT VILLAG E SEDPUR, TEHSILL MAHWA, DISTRICT DAUSA, WHICH WAS PURCHASED FOR A TOTAL CONSIDERATION OF RS . 6,00,000/- AND REGISTERED ON 3.1.2005, WHICH WAS DULY RECORDED IN BOOKS OF ACCOU NT OF THE ASSESSEE. COPY OF CERTIFICATE OF GRAM PANCHAYAT IN CONNECTION WITH SI TUATION OF SO CALLED PLOT IN QUESTION, ALONG WITH COPIES OF KHASRA GIRDAWARI/JAMABANDI AND DEEDS OF PURCHASE OF SAID LAND, WAS FILED. AFTER CONSIDERING THE SUBMISSIONS, THE LD. CIT (A) NOTED THAT ENTIRE TRANSACTION IN RESPECT TO PURCHASE OF AGRICULTURAL LAND HAVE BEEN RECORDED IN BOOKS OF ACCOUNT. THEREFORE, AO WAS NOT JUSTIFIED IN MAKING A SEPARAT E ADDITION OF RS. 1,50,000/-. 9. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A), AGAIN WE FIND NO INFIRMITY IN THE FINDINGS OF LD. CIT (A). WE NOTED THAT IN F ACT THE LAND IN QUESTION WAS PURCHASED FOR RS. 6,00,000/-. IT WAS FURTHER FOUND THAT THE PURCHASER HAS ENTERED INTO AGREEMENT WITH SOME OTHER PERSON I.E. JAGDISH PRASAD MEENA AN D TO SAFEGUARD HIS INTEREST, THE ASSESSEE ALSO ENTERED INTO AN AGREEMENT WITH SHRI J AGDISH PRASAD MEENA AND AN AGREEMENT WAS PREPARED AND IN THIS AGREEMENT ITSELF IT HAS BEEN MENTIONED THAT TO PROTECT THE INTEREST OF ASSESSEE THIS AGREEMENT WAS ENTERED . THE PLOT OF AGRICULTURAL LAND IS THE 4 SAME AS THE KHASRA NUMBER ETC. ENTERED IN THE SALE DEED AND IN THE SAME AGREEMENT ARE THE SAME. THEREFORE, BENEFIT OF DOUBT HAS TO BE GIV EN TO THE ASSESSEE. ACCORDINGLY WE HOLD THAT LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 1,50,000/-. THEREFORE, WE CONFIRM THE ORDER OF LD. CIT (A). 10. NEXT ISSUE RELATES TO DELETING THE ADDITION OF RS. 1,49,000/- MADE ON ACCOUNT OF SALE OF PLOT. 11. THE AO MADE ADDITION OF RS. 1,49,000/- DEPOSITE D IN UTI BANK OUT OF SALE PROCEEDS OF RADHIKA VIHAR PLOT AS RECORDED IN ANNEX URE A-1 EXHIBIT 1. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT PLOT OF RADHIKA VIHAR WAS S OLD FOR RS. 1,49,000/- AND IN REPLY TO QUESTION NO. 9, WHICH IS REPRODUCED IN THE ORDER OF ASSESSMENT, IT WAS CLEARLY MENTIONED THAT LOUT OF SALE PROCEEDS, THE ASSESSEE HAS DEPOSI TED THE AMOUNT IN UTI BANK ON 7.2.2005. AFTER CONSIDERING THE SUBMISSIONS, THE L D. CIT (A) FOUND THAT ASSESSEE HAD SOLD THE PLOT OF RADHIKA VIHAR WHICH WAS PURCHASED FOR R S. 1,32,500/-, WHICH HAS ALREADY BEEN SURRENDERED AS THIS AMOUNT INCLUDED IN THE AMO UNT OF RS. 13.7 LACS OR ODD. THERE WAS A PROFIT OF RS. 16,500/- WHICH HAS ALSO BEEN SH OWN IN THE RETURN OF INCOME. TOTAL OF THIS AMOUNT COMES TO RS. 1,49,000/- AND THE SAME WA S DEPOSITED IN THE UTI BANK. THEREFORE, THIS CANNOT BE TERMED AS DEPOSIT FROM UN DISCLOSED SOURCES. ACCORDINGLY WE HOLD THAT LD. CIT (A) WAS JUSTIFIED IN DELETING THI S ADDITION ALSO. 12. NEXT ISSUE IS AGAINST DELETING THE ADDITION OF RS. 28,000/- AND RS. 78,000/- ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT OF ASSESSEE S WIFE AND ASSESSEE. 13. AO MADE ADDITION OF RS. 28,000/- ON THE BASIS O F ANNEXURE A-1 EXHIBIT 12 & 17. THE EXPLANATION OF THE ASSESSEE THAT THE DEPOSIT IS IN THE BANK ACCOUNT OF THE ASSESSEES WIFE WHO IS INDEPENDENTLY ASSESSED TO TAX AND THIS AMOUNT IS RECORDED IN HER BOOKS OF 5 ACCOUNT WAS NOT ACCEPTED BY THE AO. THE LD. CIT (A ) ACCEPTED THIS EXPLANATION AND, THEREFORE, HE DELETED THIS ADDITION. 14. AFTER CONSIDERING THE ORDERS OF AO AND LD. CIT (A), WE FIND THAT LD. CIT (A) WAS JUSTIFIED IN DELETING THIS ADDITION AS THE AMOUNT D EPOSITED IN UTI BANK WAS IN ACCOUNT OF ASSESSEES WIFE WHO IS ASSESSED TO TAX INDEPENDENTL Y AND CASH DEPOSIT AMOUNT IS RECORDED IN HER BOOKS OF ACCOUNT WHICH ARE DISCLOSED. THERE FORE, THERE IS NO QUESTION OF TREATING THIS AMOUNT AS UNDISCLOSED AND MAKING ADDITION IN T HE HANDS OF ASSESSEE. ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A) ON THIS ISSUE A LSO. 15. THE ADDITION OF RS. 78,000/- WAS MADE BY MENTIO NING THAT A SUM OF RS. 50,000/- AND RS. 28,000/- ARE DEPOSITED IN CASH ON 24.4.2004 AND 4.11.2004 IN UTI BANK. IT WAS SUBMITTED THAT THESE CASH DEPOSITS ARE OUT OF WITHD RAWAL FROM THE CASH BOOK WHICH IS DULY DISCLOSED, WAS NOT ACCEPTED BY THE AO. HOWEVER, TH E LD. CIT (A) ACCEPTED THIS CONTENTION AND DELETED THE ADDITION. 16. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. CIT (A), AGAIN WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT (A) AS THE AMOUNT OF DEPOSI T IS RECORDED IN THE REGULAR BOOKS OF ACCOUNT OF THE PROPRIETORSHIP CONCERN OF THE ASSESS EE AND, THEREFORE, THERE IS NO QUESTION OF TREATING THIS AMOUNT AS FROM UNDISCLOSED SOURCE. ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A) IN THIS RESPECT ALSO. 17. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 18. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 .10.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, 6 D/- COPY FORWARDED TO :- THE ACIT, CIRCLE-1, ALWAR. SHRI ASHOK KUMAR BANSAL, MAHUA (DAUSA) THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 542/JP/2011) BY ORDER, AR ITAT JAIPUR.