RAM KUMAR AGARWAL, Jaipur V. ACIT, Jaipur

ITA 619/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5188 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PA E VIHYKFKHZ IZRFKHZ
• Assessee Lawyers: S L PODDAR ADV SHR
• Keywords: Opportunity of being heard; Additional evidence
• Section: 131; 69

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 HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA- @ ITA NO. 619/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 RAJ KUMAR AGARWAL, 12-13, PATEL COLONY, SARDAR PATEL MARG, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABYPA 1261 E VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI KALIKA SINGH (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 10/08/2016 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 16/08/2016 VKNS'K @ ORDER PER: LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 07/08/2014 PASSED BY THE LD CIT(A), CENTRAL, JAIPUR FOR THE A.Y. 2007-08. THE SOLE GROUND TAKEN BY THE ASSESSEE IN APPEAL IS A S UNDER:- 1 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. A.O. HAS ERRED IN MAKING THE ADDITION OF RS. 5,00,0 00/- U/S 68 OF THE INCOME TAX ACT, 1961, AFTER THE SPECIF IC DIRECTION OF THE HONBLE ITAT. ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 2 2. THIS IS THE SECOND ROUND OF LITIGATION. IN THE FI RST ROUND, THIS TRIBUNAL VIDE ORDER 22/1/2010 HAS REMANDED THE MATTE R BACK TO THE FILE OF THE LD ASSESSING OFFICER TO EXAMINE THE CORRECTN ESS OF THE ADDITIONAL EVIDENCE I.E. RECEIPT DATED 10/3/2007 FILED BY THE ASSESSEE TO ESTABLISH THAT THE MONEY OF RS. 5.00 LACS WAS RETURNED BY MRS. MANJU YADAV AND DECIDE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD ASSESSING OFFICER HAS GRANTED OPPOR TUNITY TO THE ASSESSEE TO PROVE THE ABOVE SAID FACTS BY PRODUCING THE NECESSARY EVIDENCE. HOWEVER, THE ASSESSEE HAS FAILED TO PRODUC E THE EVIDENCE IN SUPPORT OF HIS CLAIM THAT RS. 5.00 LACS WAS RECEIVE D BACK BY MRS. MANJU YADAV. SINCE THE ASSESSEE HAS FAILED TO DISCHARGE H IS ONUS REGARDING THE SOURCE OF CASH DEPOSIT OF RS. 5.00 LACS, THEREFORE, THE ASSESSING OFFICER HAS MADE ADDITION IN THE RETURN OF INCOME TO THE EX TENT OF RS. 5.00 LACS. 3. BEING AGGRIEVED BY THE ORDER PASSED BY THE LD AS SESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A) , WHO HAD AFTER ELABORATELY DISCUSSING THE CONTENTION OF THE ASSESS EE, HAS ALSO CONFIRMED THE FINDING OF THE LD ASSESSING OFFICER. FOR THE SA KE OF CONVENIENCE AND BREVITY, THE RELEVANT FINDING OF THE LD CIT(A) IS R EPRODUCED HEREIN BELOW: VI) IN VIEW OF THE ABOVE SUBMISSION, THE APPELLANT WAS GI VEN ANOTHER' OPPORTUNITY VIDE ORDER SHEET ENTRY DATED ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 3 11.7.2014. IT WAS POINTED OUT TO THE ASSESSEE THAT S H. RAMNATH CHOUDHARY WAS IN ANY CASE THE ASSESSEES WITNESS AND NOT THE DEPARTMENTS WITNESS. THE DEPARTME NT HAD BEEN REQUIRED TO SUMMON HIM ON THE FAILURE OF T HE APPELLANT TO PRODUCE SMT. MANJU YADAV OR TO BRING A NY OTHER EVIDENCE TO GET THE ADDITIONAL EVIDENCE VERIF IED AS PER THE DIRECTIONS OF HONBLE ITAT. IT WAS ALSO POIN TED OUT TO HIM THAT IF HE HAD ANY OBJECTIONS TO THE STATEME NTS OF SH. RAMNATH CHOUDHARY THEN ANOTHER OPPORTUNITY WAS BEING GIVEN TO HIM- TO PRODUCE HIS WITNESS. ANOTHER OPPORTUNITY WAS GIVEN TO PRODUCE SMT. MANJU YADAV TO ENABLE THE DEPARTMENT FOR EXECUTING THE DIRECTIONS OF HONBLE ITAT FOR VERIFYING THE TRANSACTIONS. THE AR O F THE APPELLANT IN RESPONSE TO THIS NOTING VIDE ORDER SHE ET ENTRY DATED 17.8.2004 SUBMITTED THAT THE CASE MAY BE DECI DED AS PER MATERIAL AVAILABLE ON RECORD SINCE HE WAS UNA BLE TO PRODUCE SMT. MANJU YADAV. VII) IT IS SEEN THAT THOUGH EVIDENCE WAS FOUND DURI NG THE COURSE OF SEARCH REGARDING MAKING AN ADVANCE OF RS. 5 LAKH TO SMT. MANJU YADAV FOR PURCHASE OF LAND, BUT NO EVIDENCE WAS FOUND REGARDING THE RETURN OF THIS ADVA NCE TO HIM AS WAS CLAIMED BY THE ASSESSEE DURING THE COU RSE OF ASSESSMENT PROCEEDINGS WHILE TRYING TO EXPLAIN T HE CASH DEPOSIT OF RS. 5 LAKH IN HIS BANK ACCOUNT. HOWEVER, DURING THE COURSE OF EARLIER APPELLATE PROCEEDINGS, ADDITI ONAL EVIDENCE BY WAY OF A RECEIPT HAD BEEN MADE WHICH IS ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 4 BEING MADE PART OF THIS ORDER AS ANNEXURE-A. IT IS SIGNED ALLEGEDLY BY SMT. MANJU YADAV AND APART FROM THE SIGNATURES OF THE APPELLANT IT ALSO HAS THE SIGNATU RES OF WITNESS SH. RAMNATH CHOUDHARY. THE MATTER WENT UP FOR ADJUDICATION BEFORE HON. ITAT WHO GAVE SPECIFIC DIREC TIONS REGARDING THE ADDITIONAL EVIDENCE THAT IT SHOULD NO T ONLY BE ACCEPTED BUT SHOULD ALSO BE EXAMINED AND VERIFIE D. IN SPITE OF REPEATED OPPORTUNITY DURING THE COURSE OF ASSESSMENT AND SUBSEQUENTLY DURING THE APPELLATE PROCEEDINGS AND THE SUBMISSION OF REMAND REPORT, TH E APPELLANT WAS UNABLE TO PRODUCE SMT. MANJU YADAV OR HER HUSBAND SH. CHETRAM YADAV OR THE WITNESS TO THIS REC EIPT NAMELY SH. RAMNATH CHOUDHARY. THUS, THE AO WAS PREVENTED FROM FOLLOWING THE INSTRUCTIONS OF THE HO NBLE ITAT REGARDING VERIFICATION OF THIS RECEIPT. VIII) THE AO HAD BEEN GIVEN SPECIFIC INSTRUCTIONS TO SEND SUMMONS TO SH. CHETRAM YADAV, MANJU YADAV AND SH. RAMNATH CHOUDHARY BY ME WHILE CALLING FOR THE REMAND REPORT. THE SUMMONS WERE RETURNED WITH THE REMARK THAT UNKNOWN OR LEFT FROM THE ADDRESS GIVEN. SIMILARL Y THE NOTICE U/S 131 COULD NOT BE SERVED ON SH. SHANKAR L AI SHARMA AT THE ADDRESS GIVEN IN THE RECEIPT THAT IS 101, ADARSH NAGAR, JAIPUR, IT BEING INCOMPLETE; NOR WAS T HE APPELLANT ABLE TO PROVIDE THE CORRECT ADDRESS. HOWEV ER, SH. RAM NATH CHOUDHARY THE WITNESS APPEARED WHO CATEGORICALLY ADMITTED THAT HE HAD BEEN DIRECTED BY SH. ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 5 RAMBABU GUPTA TO SIGN ON THE RECEIPT AND THAT HE HA D NO KNOWLEDGE ABOUT THE TRANSACTIONS BETWEEN SMT. MANJU YADAV AND THE APPELLANT THAT IS RAJKUMAR AGARWAL OR HER HUSBAND; NOT WAS ANY MONEY RETURNED BEFORE HIM. MOREOVER, THE AO HAS MADE A VERY PERTINENT OBSERVAT ION THAT THE SIGNATURES OF SMT. MANJU YADAV ON THIS REC EIPT ARE DIFFERENT FROM THOSE ON THE SEIZED AGREEMENT TO SALE ON WHICH SHE HAD SIGNED ON ACCOUNT OF HAVING RECEIVE D THE ADVANCE FROM THE APPELLANT. GIVEN THE ABOVE FACTS, THE RECEIPT SUBMITTED AS AD DITIONAL EVIDENCE COULD NOT BE VERIFIED BY THE ASSESSEE AS P ER THE DIRECTIONS OF HON. ITAT AND IS HELD TO BE UNRELIABLE EVIDENCE. THE FACT REMAINS THAT THE APPELLANT FAILED TO DISCHARGE HIS ONUS REGARDING VERIFICATION OF THE RE CEIPT OF RS 5 LAKH DEPOSITED IN HIS BANK ACCOUNT. THEREFORE ADDITION OF RS. 5 LAKH TO TOTAL INCOME IS CONFIRMED U/S 69 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED AS UNDER:- THE ADDITION PERTAINS TO THE DEPOSIT OF RS. 5,00,000 /- IN BANK ON 14.03.2007 MADE BY THE ASSESSEE FROM MONEY RECEI VED BACK FROM MANJU YADAV TO WHOM MONEY WAS ADVANCED IN CONNECTION WITH A DEAL OF PROPERTY AND WAS RECEIVED B ACK ON CANCELLATION OF SUCH DEAL. WHEREAS THE ASSESSEE HAS SURRENDERED THE AMOUNT OF RS. 5 LAKH ADVANCED TO HE R AS PER ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 6 PAGE 22 OF EXHIBIT-2 BUT THE LEARNED ASSESSING OFFI CER HAS MADE A SECOND ADDITION OF THE SAME AMOUNT WHEN DEPOS ITED IN BANK ON RETURN. THE LEARNED ASSESSING OFFICER HA S DOUBTED THE RETURN OF THE AMOUNT ALTHOUGH HE HAS FAILED TO BRING ANY EVIDENCE ON RECORD THAT THE MONEY ADVANCED TO MANJU YADAV WAS UTILIZED ELSEWHERE. BEFORE THE LEARNED A.O DURING THE COURSE OF ASSESSM ENT PROCEEDING IT WAS SUBMITTED THAT THE CASH DEPOSITED IN BANK WAS THE SAME AMOUNT OF RS. 5,00,000/- WHICH WAS SURRENDERED AS ADVANCED TO MANJU YADAV AND LATER TH E SAME WAS RECEIVED BACK. AS THE AMOUNT OF RS.5,00,000/- ST OOD SURRENDERED AND INCLUDED IN THE UNDISCLOSED INCOME, NO FURTHER EVIDENCE WAS NECESSARY FOR TREATING THE DEPO SIT IN BANK AS EXPLAINED. HOWEVER, THE LEARNED A.O FAILED T O APPRECIATE THE FACTS AND HAS TREATED THE DEPOSIT AS UNEXPLAINED ON THE GROUND THAT MANJU YADAV WAS NOT PRODUCED FOR VERIFICATION. THE ACTION OF LEARNED A.O IN ASKING FOR PRODUCTION OF MANJU YADAV OR ANY OTHER EVIDENCE IN SUPPORT OF DEPOSIT IN BANK WAS NOT IN ACCORDANCE WITH LAW. ONCE THE ASSESSEE HAD SURRENDERED INCOME OF RS.5,00 ,000/- NO FURTHER EVIDENCE WAS REQUIRED. IT IS FURTHER SUBM ITTED THAT IT IS NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT THE AMOUNT OF RS. 5 LACS WAS UTILIZED ELSEWHERE. THE APPEL LANT HEREWITH FURNISHES COPY OF COMPUTATION OF INCOME FIL ED ALONG WITH THE RETURN OF INCOME EVIDENCING THE FACT OF SUR RENDER OF INCOME OF RS. 5 LACS PERTAINING TO MANJU YADAV. ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 7 5. AT THE OUTSET, THE LD CIT DR HAS VEHEMENTLY RELIE D UPON THE ORDERS PASSED BY THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AS PE R ORDER PASSED BY THE TRIBUNAL IN THE FIRST ROUND, IT IS FOR THE ASSESSEE TO ESTABLISH THAT THE MONEY OF RS. 5.00 LACS WAS RETURNED BY MRS. MANJU YA DAV AS PER RECEIPT DATED 10/3/2007. THE RECORD SHOWS THAT DESPITE REPEAT ED OPPORTUNITIES GIVEN TO THE ASSESSEE, THE ASSESSEE WAS NOT ABLE TO PRODUCE ANY EVIDENCE OR SAID MRS. MANJU YADAV TO PROVE THAT THE MONEY WAS GIVEN BY HER. ON THE CONTRARY, THE LD ASSESSING OFFICER IN T HE REMAND REPORT HAS SUBMITTED THAT THE SIGNATURE OF MRS. MANJU YADAV ON THE RECEIPTS ARE DIFFERENT FROM THE NATURE OF ON THE AGREEMENT TO SA LE. FURTHER THE WITNESS TO THE ALLEGED AGREEMENT TO SELL HAS CATEGOR ICALLY MENTIONED THAT HE HAD NO KNOWLEDGE ABOUT THE TRANSACTION BETWEEN MRS . MANJU YADAV AND THE APPELLANT OR HER HUSBAND. IN VIEW THEREOF, WE HAVE NO OTHER OPTION BUT TO UPHOLD THE ORDER PASSED BY THE LD CIT( A). THE CONTENTION OF THE LD AR FOR THE ASSESSEE THAT THE ASSESSEE HAS SU RRENDERED THE AMOUNT OF RS. 5.00 LACS AND PAID THE TAX ON THAT AMOUNT, C ANNOT BE CONSIDERED IN THESE PROCEEDINGS AS THE JURISDICTION OF THE LD ASS ESSING OFFICER AND ALSO OF THE TRIBUNAL IN THE PRESENT CASE, IS GOVERNED BY THE DIRECTION ISSUED ITA 619/JP/2014_ RAJ KUMAR AGARWAL VS. ACIT 8 EARLIER BY THE TRIBUNAL VIDE ORDER DATED 22/1/2010. THE SIMILAR SUBMISSIONS WERE MADE BY THE ASSESSEE IN THE EARLIER ROUND OF LITIGATION. HOWEVER, THE TRIBUNAL DO NOT DEEM IT APPROPRIATE TO A CCEPT THE SAME AND AFTER RECORDING THE SUBMISSIONS, REMANDED THE MATTE R BACK TO THE LD ASSESSING OFFICER AS MENTIONED HEREINABOVE. IN THE LIGHT OF THE ABOVE, THE APPEAL IS DEVOID OF MERIT AND ACCORDINGLY, THE SAME IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/08/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 16 TH AUGUST, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAJ KUMAR AGARWAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 619/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR