RAJESH KUMAR GUPTA, Jaipur V. ITO, Jaipur

ITA 542/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4984 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Section: 40A(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 542/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI RAJESH KUMAR GUPTA PROP.: M/S. HUNDIWALA JEWELLERS GOL MARKET, RAJGARH CUKE VS. THE ITO WARD- 1(4) ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABTPG 9506 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MANISH AGARWAL , CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20 /10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 14-03-2016 FOR THE ASSESSMENT YEAR 2007-08 RAISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAININ G THE ADDITION OF RS. 2,99,981/- MADE U/S 40A(3) OF THE I .T. ACT, 1961 WITHOUT APPRECIATING THE FACT THAT RETURN OF I NCOME WAS FILED BY THE ASSESSEE ON PRESUMPTIVE BASIS U/S 44AF OF THE I.T. ACT, 1961 AND THEREFORE, NO FURTHER DISALLOWAN CE U/S 40A(3) COULD HAVE BEEN MADE. THEREFORE, THE ADDITIO N OF RS. 2,99,981/- DESERVES TO BE DELETED. ITA NO. 542/JP/2016 SHRI RAJESH KUMAR GUPTA VS. ITO, WARD- 1 (4), ALWA R . 2 WITHOUT PREJUDICE TO THE GROUND OF APPEAL NO. 01 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE DISA LLOWANCE MADE U/S 40A(3) BY IGNORING THE EXCEPTIONAL CIRCUMS TANCES AS ENUMERATED UNDER RULE 6DD AND THE NECESSARY EVID ENCES SUBMITTED IN SUPPORT OF THE CLAIM IN SHAPE OF AFFID AVITS OF THE RECIPIENTS. THUS THE DISALLOWANCE SO MADE DESERVES TO BE DELETED. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT SIMILAR ISSUE WAS DECIDED BY ITAT (SMC) JAIPUR BENC H IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2006-07 VIDE ITS ORDER DATED 12-04-2015 IN ITA NO. 734/JP/2015. HENCE, THIS ISSUE IS COVERED I N ASSESSEE'S OWN CASE WHICH MAY KINDLY BE CONSIDERED. 2.2 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE SUBMISSION OF THE LD. AR OF THE ASSESSEE THAT SIMILAR ISSUE WAS DECIDED BY THIS BEN CH IN FAVOUR OF ASSESSEE VIDE ITS ORDER DATED 12-04-2016 BY OBSERVI NG AS UNDER:- 2.7 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. RESPECTFULLY FOL LOWING THE DECISION OF ITAT AHEMDABAD BENCH IN THE CASE OF GOPALSINGH R RAJPUROHIT VS. ACIT, (SUPRA), I HOLD T HAT ONCE THE ASSESSEE HAS FILED HIS RETURN U/S 44AF, NO FURT HER DISALLOWANCE CAN BE MADE U/S 40A(3) OF THE ACT. IT IS NOTEWORTHY THAT IN THIS CASE NO TRADING IRREGULARIT Y WAS FOUND AND ADDITION HAS BEEN SUSTAINED ONLY ON TECHN ICAL ISSUE OF SECTION 40A(3) OF THE ACT. THE PRESUMPTIVE SYSTEM OF ITA NO. 542/JP/2016 SHRI RAJESH KUMAR GUPTA VS. ITO, WARD- 1 (4), ALWA R . 3 TAX U/S 44AF STARTS WITH NON-OBSTANTE CLAUSE AND OV ERRIDES OTHER PROVISIONS. IN VIEW THEREOF, THERE IS NO JUST IFICATION IN MAKING THE ADDITION WHICH IS DELETED. SINCE THE ADD ITION IS DELETED ON MERITS, THERE IS NO NEED TO GO INTO ALTE RNATIVE GROUND. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE ORDER OF ITAT (SMC) JAIP UR BENCH DATED 12-04-2016 IN ASSESSEE'S OWN CASE (SUPRA), I DIRECT TO DELETE THE ADDITION OF RS. 2,99,981/- CONFIRMED BY THE LD. CIT(A) AS TH E ISSUES RAISED BY THE ASSESSEE ARE COVERED BY ITAT ORDER DATED 12-04-2016 . 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /10/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJESH KUMAR GUPTA, RAJGARH 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1 (4), ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 542/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR