ITO, Jaipur V. SHRI KAILASH AGARWAL, Jaipur

ITA 562/JPR/2012

• Counselvise Citation: 56223114 RSA 2012
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: VIMAL CHOPRA C A DHK
• Keywords: Additional evidence

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. 562/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO WARD- 4 (2) JAIPUR CUKE VS. SHRI KAILASH AGARWAL C-3, AMBA BARI, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABRPA 9090 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO.55/JP/2012 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 562/JP/2012) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI KAILASH AGARWAL C-3, AMBA BARI, JAIPUR CUKE VS. THE ITO WARD- 4 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABRPA 9090 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI AJAY MALIK, JCIT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIMAL CHOPRA, C.A. LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/02/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 19-03-2012 FOR THE ASSESSME NT YEAR 2008-09. THE ASSESSEE HAS FILED THE CROSS OBJECTION. ITA NO. 562/JP/2012 ITO, WARD- 4 (2) VS. SHRI KAILASH AGARWAL, . . 2 2.1 THE GROUND RAISED BY THE REVENUE IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS. 29,75,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT WITHOUT APPRECIATING F ACTS AND CIRCUMSTANCES OF THIS CASE. 2.2 THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN HI S C.O. 1. THAT THE ASSESSEE IS NRI AND LANDED IN INDIA O N 23-07-2012 AND OPENED THE ENVELOPE CONTAINING FORM 36 ON 25-07-2012 AS SUCH THE RECEIPT OF NOTICE BY ASSESSE E BE DEEMED TO BE 25 TH JULY, 2012 AND ACCORDINGLY THE CROSS OBJECTION FILED THROUGH THIS FORM 36A MAY BE ACCEPT ED. 2. THAT THE ADDITION OF RS. 29,75,000/- BY THE LD. AO WAS DUE TO UNEXPLAINED DEPOSIT IN THE ACCOUNT ON ACCOUNT OF CHEQUES WORTH RS. 20,10,000/- AND CASH WORTH RS. 9,65,000/- AS SUCH THE ADDITIONS WERE AGITATED THROUGH SEPARATE GROUNDS BEFORE CIT(A). THE GROUND OF APPE AL FILED BY THE LD. AO THEREFORE, DESERVES TO BE DECIDED ACC ORDINGLY FOR CHEQUES AND CASH ON THE LINES AS WAS PLEADED BE FORE THE CIT(A) . 3. THAT THE LD. AO ERRED IN LAW AND ON FACTS BY ADDING A SUM OF RS. 20,10,000/- AS UNEXPLAINED DEPO SIT IN THE BANK BY WAY OF OTHER THAN CASH ON PRESUMPTION, SURMISES AND CONJECTURES. 4. THAT LD. AO ERRED IN LAW AND ON FACTS BY ADDING A SUM OF RS. 9,65,000/- AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT WHILE IGNORING THE VITAL FACTS THAT TH IS BANK ACCOUNT IS A NRO A/C WHICH WAS OPENED FOR THE FIRST TIME ON 14-11-2007 TO SAFE PARK THE CASH IN HAND AS ON 31-0 3-2007. THE ASSESSEE HAD DEPOSITED CASH FROM TIME TO TIME A S PER THE IMMEDIATE SOURCE EXPLAINED BY THE ASSESSEE. THE ADD ITION IS THEREFORE, BASED ON PRESUMPTION, SURMISES AND CONJE CTURES. ITA NO. 562/JP/2012 ITO, WARD- 4 (2) VS. SHRI KAILASH AGARWAL, . . 3 3.1 THE BENCH HAS OBSERVED DURING HEARING THAT THE C.O. OF THE ASSESSEE IS DELAYED BY 19 DAYS FOR WHICH A CONDONAT ION APPLICATION SUPPORTED BY AN AFFIDAVIT IS FILED BY THE ASSESSEE AND IT IS DEPOSED THAT THE ASSESSEE WAS OUT OF COUNTRY AND LANDED IN INDIA ON 23-07-2012. THEREAFTER IMMEDIATELY THE APPEAL WAS FILED ON 30-0 7-2012. IT IS PLEADED THAT DELAY IN FILING THE APPEAL MAY BE CONDONED. 3.2 THE LD. DR IS HEARD. 3.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE AFFIDAVIT FILED BY TH E ASSESSEE, IT EMERGES THAT THE ASSESSEE WAS OUT COUNTRY AND ON COMING BAC K TO INDIA, THE CROSS OBJECTION WAS FILED PROMPTLY WITHOUT FURTHER DELAY. THUS IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT TH E ASSESSEE WAS PREVENTED WITH SUFFICIENT CAUSE FOR NOT FILING THE CROSS OBJECTION IN TIME AND THEREFORE, THE DELAY IN FILING THE CROSS OBJECT ION IS CONDONED. 4.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME CLAIMING UNDER THE STATUS AS A RESIDENT INDI AN WHEREAS DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS CLAIMED TO BE A NON-RESIDENT. FROM THE ITS INFORMATION, THE AO FOUND THAT THE ASS ESSEE HAD PURCHASED ITA NO. 562/JP/2012 ITO, WARD- 4 (2) VS. SHRI KAILASH AGARWAL, . . 4 IMMOVABLE PROPERTY FOR RS. 31,19,750/- AT MUMBAI ON WHICH AN AMOUNT OF RS. 1,58,750/- WAS SPENT FOR STAMP DUTY PURPOSES . THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE THEREOF. ACCORDING TO A O, THE ASSESSEE DID NOT FILE PROPER DETAILS ABOUT NRO ACCOUNT. CONSEQUE NTLY, THE AMOUNT OF RS. 29,75,000/- WAS ADDED AS UNEXPLAINED DEPOSITS I N THE BANK ACCOUNT OF THE ASSESSEE. 4.2 AGGRIEVED ASSESSEE PREFERRED FIRST APPEAL WHERE IN THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER:- THE ASSERTION OF THE AO THAT THE ASSESSEE HAD PLOUGHED BACK ITS OWN MONEY WAS OF NO AVAIL. THE RE VENUE WAS REQUIRED TO PROVE THIS ALLEGATION. THE REVENUE WAS REQUIRED TO BRIDGE THE GAP BETWEEN THE SUSPICION AN D PROOF IN ORDER TO BRING HOME THIS ALLEGATION. I THEREFORE , HOLD THAT THE APPELLANT HAS DISCHARGED THE BURDEN THAT LAY ON HIM IN RESPECT OF DEPOSITS OF RS. 29,75,000/- IN HIS BANK ACCOUNT. I ACCORDINGLY DIRECT THE AO TO DELETE THE ADDITION OF RS. 9,65,000/- ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT AND RS. 20,10,000/- ON ACCOUNT OF DEPOSITS BY WAY OF CHEQUES. THESE GROUNDS OF APPEAL ARE ALLOWED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED. 4.3 AGGRIEVED, BOTH THE PARTIES ARE BEFORE US. 4.4 THE LD. DR CONTENDS THAT THE LD. CIT(A) HAS GIV EN RELIEF ON THE BASIS OF ADDITIONAL EVIDENCE FILED BEFORE HIM. FROM THE FINDINGS GIVEN IN THE ORDER OF LD. CIT(A), IT DOES NOT EMERGE OUT AS TO HOW THE FINANCIAL ITA NO. 562/JP/2012 ITO, WARD- 4 (2) VS. SHRI KAILASH AGARWAL, . . 5 CAPACITY OF THE ASSESSEE QUA THESE DEPOSITS WERE PR OVED. THE ENTIRE MATTER HAS BEEN DECIDED ON THE BASIS DISCHARGING OF ONUS. THE LD. CIT(A) HAS SUMMARILY ACCEPTED THE ASSESSEE'S VERSION WITHOUT A PPRECIATING THE FACTS AND THE AO DID NOT ADDUCE PROPER EVIDENCE. THUS IN THE ABSENCE OF ANY FINDINGS AND EXPLANATION, THE MATTER HAS BEEN DECID ED WITHOUT CONDUCTING ANY INDEPENDENT ENQUIRY. THE POWER WHICH IS VESTED TO LD. CIT(A) BY THE ACT IS COTERMINOUS TO ASSESSING OFFICER. 4.5 AT THE SAME TIME, THE LD. COUNSEL FOR THE ASSES SEE BY WAY OF C.O. HAS RAISED ISSUE THAT THE GROUNDS RAISED WERE NOT C ONSIDERED BY THE LD. CIT(A) WHILE DISPOSING OF THE APPEAL. 4.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN VIEW OF THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ARGUMENTS RAISED, BOTH THE PARTIES AGREED UPON THAT THE MATTER MAY BE SET ASIDE AND RESTORED BACK TO THE F ILE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THUS THE APPEAL OF THE REVENUE AS WELL AS C.O. OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 562/JP/2012 ITO, WARD- 4 (2) VS. SHRI KAILASH AGARWAL, . . 6 5.0 IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS C.O. OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 13 /03/20 15. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 TH MARCH 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 4 (2), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI KAILASH AGARWAL, JAIPUR . 3. VK;DJ VK;QDRVIHY@ THE CIT(A). 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.562/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR