Income Tax Officer -1 (3) , Kanpur V. Shri Rajesh Passan , Kanpur

ITA 591/LKW/2012

• Counselvise Citation: 59123714 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 05-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B P SINGH
• Assessee Lawyers: S K GARG; P K KAPOOR
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.591/LKW/2012 ASSESSMENT YEAR:2008-09 INCOME TAX OFFICER 1(3) KANPUR V. SHRI. RAJESH PASSAN 59/39, BIRHANA ROAD KANPUR TAN/PAN:AGJPP5460E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. B. P. SINGH, D.R. RESPONDENT BY: SHRI. S. K. GARG, ADVOCATE & SHRI. P. K. KAPOOR, C.A. DATE OF HEARING: 17 12 2014 DATE OF PRONOUNCEMENT: 08 01 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS, WHICH ARE AS UNDER:- 1. THE LD. CIT(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.16,00,000/- MADE ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE ASSESSEE'S BANK ACCOUNT WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER. 2. THAT THE LD. CIT (A)-LL, KANPUR HAS ERRED IN NOT APPRECIATING THE FACT THAT ASSESSEE COULD NOT CITE ANY VALID REASON FOR .WITHDRAWING TOTAL OF RS.27,50,000/- FROM COMPANY'S CURRENT ACCOUNT AND DEPOSITING CASH OF RS.16,00,000/- IN HIS PERSONAL ACCOUNT EVEN THOUGH HE ALSO HAD POWER OF ATTORNEY TO OPERATE :- 2 -: THE COMPANY'S SAID CURRENT ACCOUNT WHICH WAS ALSO HELD IN THE SAME BANK BRANCH. 3. THAT THE LD. CIT(A)-II, KANPUR HAS FAILED TO APPRECIATE THE FACT THAT ASSESSEE COULD NOT FURNISH ANY EXPLANATION AS TO HOW THE BALANCE OF RS.L1,50,000/-, REMAINING OUT OF THE TOTAL OF RS.27,50,000/- SAID TO BE WITHDRAWN FROM COMPANY'S ACCOUNT, WAS UTILIZED. 4. THAT THE LD.CIT(A)-LL, KANPUR HAS FAILED TO APPRECIATE THE FACT THAT ASSESSEE COULD NOT SUPPORT WITH SATISFACTORY EVIDENCE, ITS CLAIM THAT OUT OF THE DEPOSIT OF RS.16,00,000/- IN HIS ACCOUNT, RS.12,00,000/- WAS UTILIZED FOR STAMP PURCHASE, WHILE RS.4,01,000/- WAS USED FOR INCIDENTAL EXPENSES. 5. THAT THE ORDER OF LD. CIT(A) II, KANPUR DATED 28.9.2012 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER DATED 31.12.2010 BE RESTORED. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. D.R. HAS CONTENDED THAT THE ASSESSEE HAS DEPOSITED A CASH OF RS.16 LAKHS IN HIS S.B. ACCOUNT. THE SOURCE OF DEPOSIT WAS STATED TO BE WITHDRAWAL OF CASH BY THE FIRM, M/S REALTY ROTOMAC WITH WHOM ASSESSEE WAS WORKING AS A PROJECT MANAGER. THE LD. D.R. HAS INVITED OUR ATTENTION TO THE FACT THAT THIS AMOUNT DEPOSITED IN THE S.B. ACCOUNT OF THE ASSESSEE REMAINED UNEXHAUSTED, THEREFORE, THE CONTENTION OF THE ASSESSEE THAT PART OF WITHDRAWN AMOUNT OF THE FIRM WAS DEPOSITED IN THE PERSONAL ACCOUNT IN ORDER TO MEET THE FUTURE EXPENDITURES TO BE INCURRED BY THE FIRM, CANNOT BE ACCEPTED. THE LD. D.R. HAS FURTHER CONTENDED THAT SINCE THIS AMOUNT WAS NOT SPENT TILL THE END OF THE FINANCIAL YEAR, THIS AMOUNT WOULD HAVE BEEN SHOWN IN THE NAME OF THE ASSESSEE IN THE BALANCE SHEET OF M/S REALTY ROTOMAC, FIRM WITH WHOM ASSESSEE WAS WORKING AS A PROJECT MANAGER. BUT IN THE ABSENCE OF BALANCE SHEET, THESE FACTS CANNOT BE VERIFIED. THE LD. D.R. HAS FURTHER CONTENDED :- 3 -: THAT SINCE ONUS IS UPON THE ASSESSEE TO ESTABLISH THE SOURCE OF DEPOSITS AND ASSESSEE COULD NOT DISCHARGE THE SAME, THE ORDER OF THE ASSESSING OFFICER MAKING ADDITION UNDER SECTION 69 OF THE ACT DESERVES TO BE RESTORED AFTER SETTING ASIDE THE ORDER OF THE LD. CIT(A). 3. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS CONTENDED THAT THE ASSESSEE WAS MERE A TRUSTEE OF M/S REALTY ROTOMAC, AS HE HAS DEPOSITED RS.16 LAKHS OUT OF CASH WITHDRAWALS OF M/S REALTY ROTOMAC, WHICH WAS GIVEN TO HIM TO MEET THE DAY-TO-DAY EXPENSES, AS HE WAS REQUIRED TO INCUR ALL THESE EXPENSES BEING THE PROJECT MANAGER OF M/S REALTY ROTOMAC. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE BANK STATEMENTS OF THE FIRM AS WELL AS THE ASSESSEE, IN WHICH CASH OF RS.27.50 LAKHS WAS WITHDRAWN ON 26.2.2008 FROM THE ACCOUNT OF THE FIRM AND RS.16 LAKHS WAS DEPOSITED IN THE ASSESSEES S.B. ACCOUNT ON THE SAME DAY. THEREFORE, DEPOSIT WAS DULY EXPLAINED BY THE ASSESSEE. MOREOVER, THE ASSESSEE HAS ALSO FILED CONFIRMATION LETTER OF M/S REALTY ROTOMAC, WHICH IS AVAILABLE AT PAGE 3 OF THE COMPILATION OF THE ASSESSEE. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE DOCUMENTS FILED BEFORE US, WE FIND THAT THE CASH OF RS.27.50 LAKHS WAS WITHDRAWN FROM THE ACCOUNT OF M/S REALTY ROTOMAC ON 26.2.2008 AND ON THE SAME DAY A CASH OF RS.16 LAKHS WAS DEPOSITED IN THE S.B. ACCOUNT OF THE ASSESSEE. UNDISPUTEDLY THE ASSESSEE IS WORKING AS A PROJECTOR MANAGER WITH M/S REALTY ROTOMAC, BUT FROM A PERUSAL OF THE BANK STATEMENT OF THE ASSESSEE, IT IS NOTICED THAT HE HAD DEPOSITED A CASH OF RS.16 LAKHS ON 26.2.2008 BUT THE SAID AMOUNT WAS NOT SPENT TILL END OF THE FINANCIAL YEAR. IN SUCH A CIRCUMSTANCE, THE OUTSTANDING BALANCE AMOUNT MUST HAVE BEEN SHOWN IN THE BALANCE SHEET OF THE PARTNERSHIP FIRM, BUT THE BALANCE SHEET IS NOT PLACED ON RECORD BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE, IN THIS REGARD, HAS SUBMITTED THAT SINCE THE BALANCE SHEET :- 4 -: BELONGS TO THE FIRM I.E. M/S REALTY ROTOMAC AND THE SAME IS NOT AVAILABLE WITH THE ASSESSEE, THE MATTER MAY BE RESTORED BACK TO THE ASSESSING OFFICER TO VERIFY THE FACTS WHETHER CORRESPONDING AMOUNT WAS SHOWN IN THE BALANCE SHEET OF THE FIRM IN THE NAME OF THE ASSESSEE. IF THE FACTS ARE FOUND TO BE CORRECT, NO ADDITION UNDER SECTION 69 OF THE ACT IS CALLED FOR, AS THE SOURCE IS EXPLAINED. SINCE BOTH THE PARTIES HAVE AGREED WITH THIS PROPOSITION, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY FROM THE BALANCE SHEET OF M/S REALTY ROTOMAC AND IF THE CORRESPONDING AMOUNT WAS SHOWN IN THE NAME OF THE ASSESSEE IN THE BALANCE SHEET, NO ADDITION UNDER SECTION 69 OF THE ACT IS CALLED FOR IN THE HANDS OF THE ASSESSEE. OTHERWISE, THE ASSESSING OFFICER IS FREE TO ACT IN ACCORDANCE WITH THE LAW. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH JANUARY, 2015 JJ:1712 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR