SHRI BANSI LAL, Kota V. CIT, Kota

ITA 593/JPR/2012

• Counselvise Citation: 59323114 RSA 2012
• Duration Of Justice: 3 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 11-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANGAL JCIT DHK
• Keywords: Income from undisclosed sources; Principle of natural justice; Additional evidence
• Section: 144

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. 593/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI BANSI LAL S/O SHRI RAM RAKH VILLAGE NAYAGAON AHIRAN, KOTA CUKE VS. THE DCIT CIRCLE- 2 KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEWPL 6949 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 538/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 THE DCIT CIRCLE- 2 KOTA CUKE VS. SHRI BANSI LAL S/O SHRI RAM RAKH VILLAGE NAYAGAON AHIRAN, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEWPL 6949 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY :SHRI KAILASH MANGAL, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/05/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12/06/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THESE ARE CROSS APPEALS I.E. ONE BY REVENUE AND TH E OTHER BY ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) , KOTA DATED 30-03-2012 FOR THE ASSESSMENT YEAR 2007-08. ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 2 2.1 THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE ORDER OF THE LD. CIT(A), KOTA TO DELETE T HE ADDITION OF RS. 13.73 LACS OUT OF TOTAL ADDITION OF RS. 21,55,390/- ASSESSED BY AO IS CONTRARY TO LAW AND THE FACTS OF THE CASE. 2. THE ORDER OF THE LD. CIT(A), KOTA HAVE PARTLY AL LOWED THE ADDITION MADE BY THE AO U/S 144 OF THE ACT IS C ONTRARY TO LAW AND THE FACTS OF THE CASE. 2.2 THE GROUND RAISED BY THE REVENUE IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A), KOTA HAS ERRED IN:- (I) DELETING THE ADDITION OF RS. 12.83 LACS ON ACCO UNT OF UNEXPLAINED DEPOSITS WITHOUT GOING INTO THE EXAMINA TION OF THE SOURCES OF THE BANK DEPOSITS IN ASSESSEE'S BANK AND JUST BELIEVING IN THE STATEMENT OF THE ASSESSEE THAT THE Y CAME OUT OF EARLIER WITHDRAWALS. 2.3 NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY WRITTEN SUBMISSIONS ARE FILED IN SPITE OF SEVERAL NOTICES, CONSEQUENTLY WE ARE LEFT WITH NO ALTERNATIVE BUT TO DECIDE THE APPEAL ON MER ITS, EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR AND PERUSAL OF THE M ATERIAL AVAILABLE ON RECORD. 2.4 BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT WAS FRAMED EX-PARTE U/S 144 OF THE ACT. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS THOUGH ONE SHRI D.D. AGARWAL, AR FOR ASSESSEE APPEARED ORALLY CONTENDING THAT DEPOSITS INCLUDED SOME MONEY RECEIVED ON SALE OF AG RICULTURE LAND DETAILS ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 3 WERE NOT FILED. HIS REQUEST FOR ADJOURNMENT WAS ALL OWED FOR FILING THE EVIDENCE AND EXPLANATION BY FIXING THE DATE OF HEAR ING ON 10-12-2010; HOWEVER NEITHER ASSESSEE APPEARED NOR ANY SUBMISSIO NS OR EVIDENCE WAS FILED. THEREFORE, THE INCOME OF THE ASSESSEE WAS AS SESSED U/S 144 BY THE AO AS UNDER:- 1.CONCEALED INCOME FROM UNDISCLOSED SOURCES RS. 21, 53,000/- 2. INTEREST INCOME RS. 2,386/- TOTAL INCOME RS. 21,55,386/- R/O RS. 21,55,390 2.5 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL, HOW EVER FRAMING THE EX-PARTE ASSESSMENT WAS NOT CHALLENGED. ADDITIONAL EVIDENCE WERE FILED BEFORE THE LD. CIT(A) WHO ADMITTED THE SAME WITHOUT REFERRING TO RULE 46A AND WITHOUT CALLING OBJECTIONS OR REMAND REPORT FROM AO. THE LD. CIT(A) IN THESE CIRCUMSTANCES AWARDED PARTIAL RELIE F TO THE ASSESSEE BY OBSERVING AS UNDER:- I HAVE EXAMINED THE FACTS OF THE CASE, DETAILS SU BMITTED BY THE ASSESSEE AND AOS FINDINGS. THE FOLLOWING POINT S ARE WORTH CONSIDERING.:- (1) THE ASSESSEE SUBMITTED CASH FLOW STATEMENT, BALANCE SHEET FOR ASSESSMENT YEAR 2006-07 AND 2007- 08 AS ADDITIONAL EVIDENCE. (2) NO EVIDENCE IN SUPPORT OF CASH BALANCE OF RS. 5,29,767/- AND SUNDRY ADVANCES OF RS. 3,14,360/- WA S FURNISHED BEFORE ME. ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 4 (3) OPENING CASH BALANCE AND SUNDRY DEBTORS CANNOT BE BELIEVED FOR THE SIMPLE REASON THAT ASSES SEE WAS HAVING BANK ACCOUNT AND STILL CLAIMED THAT LARG E AMOUNT OF CASH WAS KEPT IN CASH. THE ASSESSEE AS PE R HIS OWN SUBMISSION DID NOT OWN ANYTHING OTHER THAN THE AGRICULTURAL LAND SOLD BY HIM AND IT WAS UNLIKE LY THAT HE WAS HAVING SO MUCH OF CASH WITH HIM. NORMALLY, NOBODY KEEPS SUCH A HUGE AMOUNT IN CASH AT HOME. MOREOVER, NO EVIDENCE IN SUPPORT OF CASH BALANCE OR SUNDRY DEBTORS WAS FURNISHED. (4) THE ASSESSEE WITHDREW A SUM OF RS. 30,000/- ON 23-03-2006. IF IT IS BELIEVED THAT THE ASSESSEE WAS HAVING HUGE CASH WITH HIM, HE WOULD NOT WITHDRAW SUCH A HUGE AMOUNT FROM THE BANK. ACCORDINGLY, THE AVAILABLE CASH BALANCE AS ON 31-03-2006 CAN BE REASONABLY TAKEN AT RS. 30,000/- (5) IN RELATION TO SUNDRY DEBTORS EVEN THE NAMES OF DEBTORS WERE NOT FURNISHED. ACCORDINGLY, IT IS HEL D THAT THERE WAS NO SUNDRY DEBTOR. (6) REGARDING SALE OF AGRICULTURE LAND , COPY OF SA LE AGREEMENT AND JAMABANDI WAS FURNISHED AND IT WAS SEEN THAT AS PER JAMABANDI THE LAND WAS TRANSFERRED TO THE BUYER ON 02-06-2006. (7) IT CAN BE BELIEVED THAT ASSESSEE RECEIVED RS. 4,50,000/- FROM SALE OF AGRICULTURE LAND. (8) THE ASSESSEE CLAIMED THAT HE HAS RECEIVED RS. 4,50,000/- FROM SALE OF AGRICULTURE LAND ON 15-05- 2006. HOWEVER, IT WAS SEEN THAT STAMPS WEE PURCHASED N 26-05-2006 AND REGISTRY WAS DONE ON 02-06-2006. MOREOVER, THE AO IN HIS REPORT HAS ALSO MENTIONED THAT THE LAND WAS SOLD ON 02-06-2006 AND ASSESSEE RECEIVED CASH OF RS. 4,50,000/- AROUND 31- 05-2006. ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 5 9. THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS. 90,000/- ON 19-05-2006 AND IT CANNOT BE BELIEV ED THAT THE ASSESSEE EARNED RS. 90,000/- IN SHORT PERI OD OF TWO MONTHS (1-04-206 TO 2-06-2006). MOREOVER, NO EVIDENCE IN SUPPORT OF AGRICULTURE INCOME WAS PRODUCED. ACCORDINGLY, THE INCOME FROM AGRICULTURE IS TAKEN AS NIL. 10. THE ASSESSEE SUBMITTED AFFIDAVIT OF THREE PERSONS AND IT WAS CLAIMED THAT LOAN OF RS. 9,00,00 0/-, RS. 50,000/-, RS. 2,00,000/- WAS GIVEN TO THESE PER SONS BY CHEQUE AND WAS RECEIVED BACK IN CASH AFTER FEW DAYS. THE ASSESSEE WAS ASKED TO FURNISH BANK ACCOUN T OF THESE PERSONS TO SHOW THAT THE MONEY WAS ADVANCE D BY CHEQUE. HOWEVER, THE A/R DID NOT PRODUCE THE SAM E AND STATED THAT THESE PERSONS DO NOT HAVE ANY BANK ACCOUNT AND THE AMOUNTS WERE PAID BY BEARER CHEQUES. IN THE LIGHT OF ABOVE DISCUSSIONS, THE CASH DEPOSIT ED BY ASSESSEE WERE ANALYSED AS UNDER:- 1. THE ASSESSEE DEPOSITED RS. 9,00,000/- ON 23-05-2006. THE SOURCE OF WHICH WAS SHOWN AS OPENIN G BALANCE (RS. 5,29,767/-), AMOUNT RECEIVED FROM SUND RY DEBTORS (RS. 2,29,200/-), SALE OF AGRICULTURE LAND (RS. 4,50,000/-), AND AGRICULTURE INCOME (RS. 90,000/-). HOWEVER, AS DISCUSSED ABOVE, ONLY A SUM OF RS. 30,000/- WAS TREATED AS OPENING CASH BALANCE. SUNDRY DEBTORS WERE ALREAD Y HELD AS NON-EXISTENCE. THE SALE PROCEEDS FROM SALE OF AG RICULTURE LAND WAS ALSO HELD TO HAVE BEEN RECEIVED AFTER 15-0 5-2006. IT WAS ALREADY HELD THAT THERE WAS NO INCOME FROM AGRICULTURE. 2. ACCORDINGLY, OUT OF RS. 9,00,000/- DEPOSITED BY ONLY A SUM OF RS. 30,000/- IS TREATED AS EXPLAINED AND BALANCE AMOUNT RS. 8,70,000/- IS TREATED AS UNEXPLA INED. 3. THE ASSESSEE DEPOSITED CASH OF RS. 8,13,000/- ON 2-06-06. IT WAS SEEN THAT A SUM OF RS. 9,00,000 /- WAS ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 6 WITHDRAWN ON 24-05-06 AND IT CAN BE REASONABLY PRE SUMED THAT PART OF THIS AMOUNT WAS RE-DEPOSITED BY THE AS SESSEE. 4. SIMILARLY, THE ASSESSEE HAS DEPOSITED VARIOUS SMALLER AMOUNTS. HOWEVER, IT WAS SEEN THAT ASSESSEE HAS WITHDRAWN HIGHER AMOUNT OF CASH FEW DAYS BEFORE THE DATE OF THESE DEPOSITS. ACCORDINGLY, IT CAN BE PRESUMED THA T THE SOURCE OF DEPOSIT WAS AMOUNT WITHDRAWN BY ASSESSEE ITSELF.. 5. THE ASSESSEE RECEIVED RS. 4,50,000/- ON SALE OF AGRICULTURE LAND. I HAVE ALREADY HELD THAT THIS AMO UNT WAS RECEIVED AROUND 31-05-2006. 6. IT IS ALSO WORTH MENTIONING THAT ASSESSEE HAS PURCHASED AGRICULTURE LAND OF RS. 3,77,280/- ON 24- 05-2006 AND IT CAN REASONABLY BE PRESUMED THAT OUT OF RS. 4 ,50,000/- RECEIVED FROM SALE OF AGRICULTURE LAND, THIS AMOUNT WAS INVESTED. IN VIEW OF ABOVE DISCUSSION, ADDITION OF RS. 8,70, 000/- IS CONFIRMED. THE AO IS DIRECTED TO DELETE THE BALANCE ADDITION O F RS. 13,73,000/-. 2.6 THE LD. DR DURING THE COURSE OF HEARING CONTEND S THAT THE RECORD INDICATES THE NON-COOPERATIVE ATTITUDE OF THE ASSES SEE AS HE MADE NO REPRESENTATION BEFORE THE AO AS WELL AS BEFORE ITA T. NO PAPER BOOKS OR WRITTEN SUBMISSIONS ARE FILED TO APPRECIATE WHAT WE RE THE CONTENTS OF APPLICATION FOR ADDITIONAL EVIDENCE AND THE NATURE OF EVIDENCE BASED ON WHICH THE RELIEF IS AWARDED. SINCE NOTHING WAS DELI BERATELY FILED BEFORE THE AO CONSEQUENTLY, THE ASSESSMENT WAS FRAMED U/S 144 IN THE ABSENCE OF ANY EVIDENCE OR EXPLANATION. THE LD. CIT(A) ADMI TTED THE ADDITIONAL ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 7 EVIDENCE WITHOUT MENTIONING THE REASONS FOR ADMISSI ON, BESIDES NO REMAND REPORT AND OBJECTION OF THE AO WAS CALLED FO R ON THE ADDITIONAL EVIDENCE PURPORTED TO BE FILED BY THE ASSESSEE UNDE R RULE 46A OF INCOME TAX RULES. THUS THE PRINCIPLES OF NATURAL JUSTICE H AVE NOT BEEN COMPLIED WITH BY THE LD. CIT(A) AND PARTIAL RELIEF HAS BEEN GIVEN TO THE ASSESSEE ON THE BASIS OF PERSONAL INFERENCE DRAWN AND NOT BY SP EAKING FINDINGS WHICH IS UNSUSTAINABLE. IN VIEW THEREOF, THE ORDER OF THE AO MAY BE UPHELD AND THAT OF THE LD. CIT(A) MAY BE REVERSED. 2.7 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD IN THE PRESENT FACTS AND CIRCUMSTANCES OF TH E CASE. WE FIND MERIT IN THE ARGUMENTS OF THE LD. DR; IT EMERGES THAT THE ASSESSEE HAS NOT BEEN COOPERATIVE BEFORE THE AO AS WELL AS BEFORE ITAT. N EITHER ANY WRITTEN SUBMISSION NOR ANY PAPER BOOK IS FILED TO ENABLE US TO VERIFY THE FACTS, CONTENTS OF ADDITIONAL EVIDENCE TO GIVE PROPER FIND INGS THEREON. BOTH THE PARTIES ARE AGGRIEVED AS PART RELIEF GIVEN BY THE L D. CIT(A) IS SERIOUSLY QUESTIONED BY REVENUE. IN THE ABSENCE OF PROPER INF ORMATION, ADDITIONAL EVIDENCE AND RECORD IN THIS BEHALF, WE FIND NO REAS ON EXCEPT TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH LAW. THUS BOTH THE APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES. ITA NO. 538/JP/2012 DCIT , CIRCLE- 2, KOTA VS. SHRI BANSI LAL, KOTA 8 3.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/06/20 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:- 12 /06/2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BANSI LAL, KOTA 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CIRCLE-2, KOTA 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. 593/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR