DCIT, Jaipur V. SHRI BHAWANI SHANKAR SHARMA, Jaipur

ITA 546/JPR/2011

• Counselvise Citation: 54623114 RSA 2011
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 01-06-2011

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 VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 546/JP/2011 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 THE D.C.I.T. CIRCLE-6, JAIPUR. CUKE VS. SHRI BHAWANI SHANKAR SHARMA, M-33, INCOME TAX- COLONY, DURGAPURA, TONK ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AVNPS 1049 R VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT IZR;K{KSI.K @ C.O. NO. 26/JP/2014 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 546/JP/2011) SHRI BHAWANI SHANKAR SHARMA, M-33, INCOME TAX- COLONY, DURGAPURA, TONK ROAD, JAIPUR. CUKE VS. THE D.C.I.T. CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA- @ PAN/GIR NO.: AVNPS 1049 R IZR;K{KSID @ OBJECTOR IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI AJAY MALIK (ADDL.CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE (DATE WAS NOTED) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/11/2014 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 16/01/2015 ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 2 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE APPEAL BY REVENUE AND CROSS OBJECTION BY ASSESS EE ARISE FROM THE ORDER DATED 22/03/2011 OF LD. CIT (A)-II, JAIPUR. RESPECTIVE GROUNDS OF APPEAL AS WELL AS C.O. ARE AS UNDER:- GROUND IN REVENUE APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS. 13,50,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK ACCOUN T TREATING THE SAME AS EXPLAINED BY ALLOWING CREDIT O F CASH WITHDRAWN FROM THE BANK ACCOUNTS OF THE ASSESSEE ON EARLIER DATES DESPITE THE FACT THAT THE ASSESSEE FA ILED TO EXPLAIN REASONS FOR SUCH CASH WITHDRAWALS AND UTILIZA TION OF THE SAME. GROUNDS IN CROSS OBJECTION 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED CIT(APPEALS) HAS CONFIRMED THE DISALLOWANCE OF ALL THE EXPENSE @ 20% ON AD HOC BASIS. THE DISALLOWANCE BEING ARBITRARY. THE SAME MAY KINDLY BE DELETED. 2. (I) THE LEARNED CIT(APPEALS) ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE CONFIRM AS SUM OF RS. 13,79,770/- ON ACCOUNT OF UNEXPLAINED CREDITS IN TH E BANK ACCOUNT. (II) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ACCEPTING THE OPENING CASH BALANCE OF THE CASH BOOK, THE ADDITION CONFIRMED BY THE CIT (APPEALS) I S TOTALLY ARBITRARY AND BAD IN LAW. ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 3 3. THAT THE LEARNED CIT(APPEALS) ERRED IN CONFIRMIN G THE ADDITION OF RS. 12,02,500/- AS UNEXPLAINED CASH CREDIT IN SPITE OF THE CONFIRMATION FILED BY THE ASSESSEE AND WITHOUT CALLING THE CASH CREDITORS. 4. THE APPELLANT CRAVES TO ADD, ALTER, AMEND OR WITHDRAWN ANY OF THE GROUND OF APPEAL AFTER, BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. WITH REGARD TO SOLE GROUND OF THE REVENUES APPE AL AND GROUND NO. 2 AND 3 OF THE ASSESSEES C.O., THE LEARNED ASS ESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SHOWN CREDIT ENTRY I N HIS BANK ACCOUNT AT RS. 46,29,770/-. OUT OF THIS, A SUM OF RS. 25,35 ,000/- WAS DEPOSITED IN CASH ON VARIOUS DATES. THE ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BEING ON THIS ISSUE BUT NO EXPLANATI ON WAS FILED BY THE ASSESSEE. HE FURTHER FOUND THAT THIS CREDIT ENTRIES INCLUDED TRANSFER AND CLEARING AMOUNT TO THE TUNE OF RS. 20,94,770/-. THE ASSESSEE HAD SHOWN TOTAL SALES OF RS. 19 LACS IN HIS RETURN. ACCO RDINGLY, THE BALANCE CREDIT OF RS. 27,29,770/- ARE TREATED AS UNEXPLAINE D AND ADDED TO THE DECLARED INCOME OF THE ASSESSEE. SIMILARLY THE ASS ESSEE HAD SHOWN UNSECURED LOAN OF RS. 12,02,500/-, NO DETAILS OF NA ME AND ADDRESS OR AMOUNT WERE FURNISHED BY THE ASSESSEE DESPITE THE RE PEATED OPPORTUNITIES OF BEING HEARD WERE ALLOWED BY THE ASSE SSING OFFICER. ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 4 THEREFORE, THE ADDITION OF RS. 12,02,500/- WAS ALSO M ADE U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A), WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING THAT THE ASSESSEE HAD TWO BANK ACCOUNTS, ONE WITH AXIS BANK AND ANOTHER WITH MALVIYA URBAN COO PERATIVE BANK, JAIPUR. HE ANALYSED THE CASH WITHDRAWALS FROM BOTH C OUNTS ON DATE WISE AND FINALLY HE CONFIRMED THE ADDITION OF RS. 1 3,15,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITED AND ADDITION OF RS. 64,770/- ON ACCOUNT OF OPENING CASH IN HAND. REGARD ING ADDITION MADE BY THE ASSESSING OFFICER AT RS. 12,02,500/-, THE LE ARNED CIT(A) HAD CONFIRMED THE TOTAL ADDITION BY GIVING DETAIL FINDI NG ON PAGE 14-15 OF ITS ORDER AFTER CONSIDERING ALL THE EVIDENCES PRODUCED BY THE APPELLANT AND HELD THAT THE ASSESSEE HAD FAILED TO PROVE THE GENU INENESS OF THE TRANSACTION AND EXPLAINED THE CREDITWORTHINESS OF TH E CREDITORS. THUS, HE CONFIRMED 10 LACS ON ACCOUNT OF UNSECURED LOAN AND REMAINING CREDIT OF RS. 2,02,500/- WAS STATED TO BE ON ACCOUNT OF LIABILITY, WHICH WAS ALSO ALLEGED TO BE RECEIVED FROM THREE COMPANIES , FOR WHICH, NO CONFIRMATION AND COPY OF BANK ACCOUNT HAS BEEN FILE D. HE ALSO CONFIRMED THE ADDITION OF RS. 2,02,500/-. ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 5 4. NOW THE REVENUE IS IN APPEAL AS WELL THE ASSESSEE IS IN C.O. BEFORE US. THE LEARNED D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. NO ONE HAS APPEARED ON BEHALF OF THE ASSESSEE EVEN NOTICES WERE SERVED TO HIM. 5. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE M ATERIAL ON RECORD. WE HAVE ALSO PERUSED THE ORDER OF THE LEARN ED CIT(A), WHO HAD ANALYSED THE CASH DEPOSITED IN THE BANK ACCOUNT AND WITHDRAWAL MADE ON VARIOUS DATES IN THE BOTH THE ACCOUNTS I.E. IN AXIX BANK AND MALVIYA URBAN COOPERATIVE BANK, JAIPUR. THERE IS NO MATERIAL ON RECORD FROM EITHER SIDE TO CONTROVERT THE FINDING OF THE L EARNED CIT(A), THEREFORE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) . ACCORDINGLY, THE APPEAL OF REVENUE & C.O. ON GROUND NOS. 2 AND 3 OF ASSESSEE ARE DISMISSED. 6. THE FIRST GROUND OF THE ASSESSEES C.O. IS AGAINS T CONFIRMING THE AD HOC DISALLOWANCES @ 20% OUT OF EXPENSES. THE LEARN ED ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SHOWN TOTAL S ALE OF RS. 19 LACS AGAINST WHICH THE ASSESSEE HAD CLAIMED EXPENSED UNDE R THE HEAD SALARY AT RS. 6,58,500/-, WAGES AT RS. 3,36,000/- AN D CONVEYANCE AT RS. 78,753/- RESPECTIVELY. THE LEARNED ASSESSING OFFICER OBSERVED THAT AS PER INFORMATION AVAILABLE ON THE RETURN, THE ASSESS EE WAS MAINLY DOING ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 6 JOB WORK. THE TOTAL EXPENSES DEBITED IN THE P&L ACCOU NT AT RS. 10,73,253/-, WHICH WAS FOUND EXCESSIVE, NOT SUPPORTE D WITH DOCUMENTS/EVIDENCES, THEREFORE, HE DISALLOWED LUMP S UM AMOUNT @ 20% AT RS. 2,14,650/-. 7. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A ), WHO HAD CONFIRMED THE ADDITION BY OBSERVING THAT THE ASSESS EE HAD BEEN PROVIDED SUFFICIENT OPPORTUNITY TO PRODUCE THE BOOK S OF ACCOUNT BEFORE THE ASSESSING OFFICER BUT HE FAILED TO PRODUCE THE SAME AND HAD NOT ESTABLISHED THE GENUINENESS OF THE EXPENSES. EVEN B EFORE HIM, THERE WAS NO CHANGE IN THE BEHAVIOR OF THE ASSESSEE. THE BO OKS OF ACCOUNT WERE NOT PRODUCED ALONGWITH VOUCHERS BEFORE THE LEARN ED CIT(A), THEREFORE, HE HELD THAT TRADING RESULT REJECTED BY THE LEARNED ASSESSING OFFICER IS JUSTIFIED. THE ENTIRE EXPENDITURE OF RS. 12,46,053/- CLAIMED BY THE ASSESSEE WAS PAID IN CASH. THE APPELLANT HAD SHOWN BROKERAGE AND COMMISSION RECEIPTS OF RS. 19 LACS. HOWEVER, NO DETA ILS OF BROKERAGE AND COMMISSION HAD BEEN SUBMITTED BY THE APPELLANT BEFORE HIM. THE APPELLANT HAD SHOWN COMMISSION INCOME FROM M/S AEREN S BUILDERS PVT. LTD., NEW DELHI. THE ACIT, CIRCLE-6, JAIPUR, THE ASSES SING OFFICER ISSUED SUMMONS TO SAID COMPANY TO FURNISH COPY OF ASSESSEE S LEDGER ACCOUNT ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 7 IN ITS BOOKS OF ACCOUNT, HOWEVER, THE PAYER HAD NOT BEEN COMPLIED WITH THE SUMMONS. AS PER MOU DATED 05/05/2006 SIGNED BET WEEN M/S AERENS BUILDERS PVT. LTD., NEW DELHI AND ASSESSEE, T HE APPELLANT HAD RECEIVED ADVANCE OF RS. 5 LACS BY DD NO. 817594 DAT ED 05/05/2006 DRAWN ON OBC, NEHRU PLACE, NEW DELHI. THE SAID DD HAD NOT BEEN DEPOSITED IN THE BANK ACCOUNT OF ASSESSEE WITH M/S M ALVIYA URBAN COOPERATIVE BANK, JAIPUR AND THE BANK ACCOUNT WITH A XIX BANK, WHICH WAS OPENED LATER ON I.E. 29/09/2006, THEREFORE, IT WA S SURE THAT THE ASSESSEE WAS HAVING ANOTHER BANK ACCOUNT, IN WHICH T HE SAID DD HAD BEEN DEPOSITED BUT DID NOT WANT TO DISCLOSE THE BANK ACCOUNT TO THE ASSESSING OFFICER. ACCORDINGLY, HE REJECTED THE BOO KS, WHICH WAS FOUND TO BE MANIPULATED AND FABRICATED DOCUMENT. THERE WAS NO COPY OF AGREEMENT FOR PAYING RENT AND RENT RECEIPT, HAD NOT BEEN PRODUCED BEFORE HIM EVEN NAME OF THE LAND LORD OF TENANTED P ROPERTY HAD NOT PROVIDED TO HIM. THE APPELLANT HAD NOT FURNISHED TH E VOUCHERS FOR PAYMENT OF RS. 3,36,000/- IN CASH TO SHRI HARKESH M EENA FROM WHOM INNOVA CAR WAS TAKEN ON RENT. THE LOG BOOK AND DETAIL S OF TRAVELLING FROM JAIPUR TO BIKANER AND SUBSEQUENT VISITS TO VIL LAGE CHADWAL AND KARMISER HAD NOT BEEN SUBMITTED. THERE WAS NO REASON TO PAY THE SALARY IN CASH FOR RS. 6,58,500/-. IT IS ALSO NOT C LEAR FROM THE ASSESSEE ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 8 THAT SALARY CLAIMED FOR EMPLOYEES WERE EMPLOYED FOR FULL TIME OR PART TIME. THE TELEPHONE EXPENSES OF RS. 74,637/- WERE NOT PAID TO BSNL OR OTHER COMPANY BUT THEY HAVE BEEN ALLEGEDLY PAID TO SOME 8 EMPLOYEES AND THERE IS NO EVIDENCE AS TO HOW THEY IN TURN HAV E INCURRED TELEPHONE EXPENSES OF RS. 74,637/-. THE ASSESSEE COULD NOT FUR NISH ANY EVIDENCE TO CONTROVERT THE FINDING GIVE BY THE ASSESSING OFF ICER IN HIS ASSESSMENT ORDER. THEREFORE, HE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 8. NOW THE ASSESSEE IS IN C.O. BEFORE US BUT NO REPL Y ALONGWITH EVIDENCES WERE FURNISHED BY THE ASSESSEE, THEREFORE, WE ARE OF THE VIEW TO TAKE DECISION ON THE BASIS OF FACTS AVAILABL E ON RECORD. THE LEARNED DR ALSO ARGUED THAT THE ASSESSEE WAS ALWAYS N ON-COOPERATIVE AND HAD NOT GIVEN FULL INFORMATION OF THE BUSINESS ACTIVITIES AND EXPENSES TO THE LOWER AUTHORITIES. THEREFORE, THE SA ME MAY BE CONFIRMED. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED CIT(A) HAD EXAMINED ALL THE ASPEC TS OF EXPENSES CLAIMED BY THE ASSESSEE WITH EVIDENCE AND BOOKS OF A CCOUNT. THE APPELLANT HAD NOT CONTROVERTED THE FINDING GIVE BY THE ASSESSING OFFICER BEFORE THE LEARNED CIT(A). THEREFORE, WE ALSO UPHOLD T HE ORDER OF THE ITA 546/JP/2011 & C.O. 26/JP/2014_ DCIT VS BHAWANI SHANKAR SHARMA 9 LEARNED CIT(A). ACCORDINGLY, WE DISMISS THE ASSESSEE S CO. ON THIS GROUND. 10. IN THE RESULT, THE REVENUES APPEAL AS WELL AS T HE C.O. OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED 16 TH JANUARY, 2015. *RANJAN. VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE DCIT, CIRCLE-6, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI BHAWANI SHANKAR SHARMA, JAIPUR. 3. VK;DJ VK;QDRVIHY @ THE CIT(A)-II, JAIPUR 4. VK;DJ VK;QDR @ CIT, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 546/JP/2011 & C.O. 26/JP/2014). VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR