ITO, UDAIPUR V. Shri Bhupendra Singh Solanki, UDAIPUR

ITA 63/JODH/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7956 (ITAT-JODHPUR)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-11-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: LOKESH MATHUR
• Keywords: Depreciation; Source of fund; Additional evidence; Corroborative evidences; Non compliance
• Section: 142(1); 148; 6; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 63/JU/2012 ASSESSMENT YEAR : 2003-04 THE ITO, VS SHRI BHUPENDRA SINGH SOLANKI, WARD-2(1), UAIPUR UDAIPUR PAN NO. ADLPS32116C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R.KOKANI RESPONDENT BY : SHRI LOKESH MATHUR DATE OF HEARING : 27.11.2012 DATE OF PRONOUNCEMENT : 14.12.2012 ORDER PER N.K.SAINI, A.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER DATED 30.11.2011 OF CIT(A), UDAIPUR FOR THE ASSESSMENT YE AR 2003-04. 2. THE ONLY GROUND RAISED IN THE APPEAL READS AS UNDER:- 2 ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF TH E CASE, THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 12,50,000/- MADE U/S 68 OF THE INCO ME TAX ACT, 1961. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE DID NOT FILE THE RETURN OF INCOME IN SPITE OF HAVING PAN NUMBER. THE ASSES SING OFFICER WAS HAVING AN INFORMATION THAT THE ASSESSEE CLAIMED TO HAVE AD VANCED A SUM OF RS. 12,50,000/- ON 28.2.2003 IN CASH TO ONE SHRI KALU R AM OF UDAIPUR. THEREFORE, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' IN SHORT] ON 11.8.2006 TO THE ASSESSEE TO FILE HIS RETURN OF INCOME BUT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE U/S 142(1) OF THE ACT ON 27.2.2007 REQUIRING THE ASSESSEE TO FURNISH THE INF ORMATION. THE CASE WAS FIXED TIME TO TIME BUT THE ASSESSEE DID NOT APPEAR. THE ASSESSING OFFICER COMPLETED THE ASSESSEE EX.PARTE ON THE BASIS OF INF ORMATION AVAILABLE ON RECORD AS PER THE PROVISIONS OF SECTION 144 OF THE ACT. T HE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE DURING THE COURSE OF COU RT PROCEEDINGS IN CASE NO.1317/03 IN HIS STATEMENT ON OATH IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE NO.3, UDAIPUR STATED THAT HE HAD GIVEN A SUM OF RS. 12,50,000/- ON 28.2.2003 IN CASH TO ONE SHRI KALU RAM AND RECEIVED A CHEQUE OF THE SAME AMOUNT FOR LATER DATE. THE CHEQUE WAS LATER ON DISH ONOURED AND THE ASSESSEE MADE A CASE AGAINST SHRI KALU RAM FOR PROSECUTING A S PER THE PROVISIONS OF SECTION 138 OF NEGOTIABLE INSTRUMENT ACT WHEREIN TH E ASSESSEE HAD MADE THE CLAIM AS STATED ABOVE. THE COURT VIDE ORDER DATED 3.11.2004 HELD THAT THE CHEQUE WAS GIVEN TO THE ASSESSEE FOR PAYMENT OF LOA N GIVEN BY THE ASSESSEE ON 3 28.2.2003. THE ASSESSING OFFICER ACCORDINGLY, MADE THE ADDITION OF RS. 12,50,000/- BY INVOKING THE PROVISIONS OF SECTION 6 9A OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER TO THE LD CIT(A) AND SUBMITTED THAT IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, HE SOUGH T ADJOURNMENT ON 9.3.2007 FOR NEXT DATE I.E. 19.3.2007. IT WAS FURTHER STATE D THAT SHRI PRAKASH CHAND BALDI, C.A. WAS LOOKING AFTER THE PROCEEDINGS BUT H E WAS PREVENTED FROM PREPARATION OF PAPERS OR INFORMATION ON ACCOUNT OF DEPRESSION CAUSED DUE TO DEATH OF HIS ELDER BROTHER FOR WHICH HE WAS UNDER T REATMENT AND THE ASSESSEE WAS ENTIRELY DEPENDENT ON HIS CONSULTANT, SO HE WAS PREVENTED FROM SUBMITTING THE REPLIES AND EVIDENCE. THE SUBMISSIO NS OF THE ASSESSEE ALONG WITH ADDITIONAL EVIDENCE CONSISTING OF VARIOUS DOCU MENTS REGARDING NATURE AND SOURCES OF FUNDS, WERE SENT TO THE ASSESSING OFFICE R FOR HIS COMMENTS OR ADMISSIBILITY. HOWEVER, ON MERITS OF THE SAID SUB MISSIONS & DOCUMENTS, THE ASSESSING OFFICER STATED THAT AS PER THE RECORD, T HE THEN AR, SHRI A.K. BALDI ONLY SOUGHT ADJOURNMENT ON 9.3.2007 ON THE GROUND T HAT ASSESSEE HAD NOT PROVIDED REQUISITE DETAILS AND DOCUMENTS AND THERE WAS NO POWER OF ATTORNEY ON RECORD. THE ASSESSING OFFICER FURTHER OBSERVE D THAT THE ASSESSEE IS AN ADVOCATE BY PROFESSION AND WELL CONVERSANT WITH THE NON COMPLIANCE OF THE NOTICE WHICH WERE INTENTIONALLY AVOIDED. SO THE ASS ESSEE WAS NOT PREVENTED BY SUFFICIENT CAUSE TO MAKE COMPLIANCE. HOWEVER, FOR THE CAUSE OF JUSTICE, THE ADDITIONAL EVIDENCE MAY BE CONSIDERED ON MERITS. I N RESPONSE TO THE ABOVE COMMENTS OF THE ASSESSING OFFICER, THE ASSESSEE SUB MITTED TO THE LD CIT(A) THAT THE ASSESSING OFFICER HAD ACCEPTED THE APPEARA NCE OF SHRI C.P. BADLI CA WITH THE ADJOURNMENT APPLICATION ON 9.3.2007 AND AD JOURNED HEARING FOR 4 19.3.2007. IT WAS ALSO STATED THAT THE THEN CIT(A) HAS ASKED THE REPORT UNDER RULE 46A AFTER CONSIDERING THE EVIDENCE AND THE AS SESSEE WAS DEALING IN CRIMINAL CASES AND NOT HAVING KNOWLEDGE IN CIVIL AN D REVENUE CASES. IT WAS FURTHER STATED THAT THE ASSESSING OFFICER HAD EXAMI NED THE EVIDENCE DURING THE REMAND PROCEEDINGS. IT WAS ALSO STATED THAT HE HAD ALWAYS BEEN IN BELOW TAXABLE LIMIT, SO ASSESSEE THOUGHT THAT THERE WAS N O STATUTORY REQUIREMENT OF FILING THE RETURN OF INCOME. 5. THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE ASSESSEE INITIALLY REQUESTED FOR ADJOURNMENT WHICH WAS GRANTED TWICE, HOWEVER, LATER ON THERE WAS NO COMPL IANCE. THE LD CIT(A) WAS OF THE VIEW THAT AUTHORIZED REPRESENTATIVE SH C.P. BALDI WAS NOT ABLE TO REPRESENT THE CASE AS HE WAS DEPRESSED DUE TO DEATH OF HIS ELDER BROTHER AND THE ASSESSEE WAS DEPENDENT ON THE CONSULTANT TO FILE TH E SUBMISSIONS, THEREFORE, THERE WAS SUFFICIENT CAUSE WHICH PREVENTED THE ASSE SSEE FROM FILING THE SUBMISSIONS AND EVIDENCE UNDER RULE 46A(I)(B) OF TH E ACT. HE ALSO OBSERVED THAT THE ASSESSING OFFICER HAD MENTIONED THAT FOR T HE SAKE OF JUSTICE, THE EVIDENCE MAY BE CONSIDERED ON MERITS. HE ACCORDING LY ADMITTED THE EVIDENCE. THE CIT(A) POINTED OUT THAT THE ASSESSEE DID NOT F ILE THE RETURN AS HIS INCOME WAS BELOW TAXABLE LIMIT AND ACCOMMODATION, MEALS EX PENSES WERE MET BY HIS FATHER. HE FURTHER OBSERVED THAT THE ASSESSEES OWN CAPITAL AS PER BALANCE SHEET AS ON 31.3.2003 WAS RS.3,86,738/- AS PER BALANCE SHEET AND RS. 75,000/- + RS. 50,000/- WERE RECEIVED FROM SHRI KAMAL SING H RATHORE AND SMT. MAJULA 5 RATHORE AND RS. 3,50,000/- FROM SMT. BHANWARI BAI, A DEBTOR OF THE ASSESSEE AND AN AMOUNT OF RS. 7,75,000/- WAS RECEIVED FROM H IS MOTHER SMT. SUSHILA DEVI SOLANKI. OUT OF THE ABOVE FUNDS, RS. 12,50,00 0/- WERE GIVEN TO SHRI KALU RAM LEAVING BALANCE OF RS. 21,321/- WITH THE ASSESS EE AND AS PER THE BALANCE SHEET FOR THE YEAR ENDING 31.3.2003 THE LD CIT(A) STATED THAT THE ASSESSEE ENCLOSED AFFIDAVITS OF SHRI KAMAL SINGH RATHORE, SM T. SUSHILA DEVI AND SMT. BHANWARI DEVI. THE ASSESSEE ALSO SUBMITTED THAT HI S FATHER IN LAW SHRI AMAR SINGH SOLANKI WHO EXPIRED ON 27.7.2009 WAS A LAWYER AND FILED HIS COPIES OF RETURNS OF INCOME FROM 2000-01 TO 2003-04 AND MENT IONED THAT HIS CAPITAL AS ON 27.7.2002 (ON HIS DEATH) STOOD AT RS. 6,32,694/- + LOAN CREDITORS OF RS. 50,000/- WHICH WERE INVESTED IN FIXED ASSETS OF LOA N DEBTORS, BANK BALANCE AND CASH BALANCE. HE WAS SUCCEEDED BY ASSESSEES MOTHE R SMT. SUSHILA DEVI WHO WAS HAVING CAPITAL OF RS. 1,69,556/- WHICH INCREASE D TO RS. 1,91,521/- AS ON 31.3.2003. THE CAPITAL OF HER HUSBAND WAS ALSO MERG ED INTO HER CAPITAL LEADING TO NET CAPITAL BALANCE OF RS. 7,32,485/- AND SHE TO OK LOAN OF RS. 2,50,000/- FROM SMT. NANI BAI OUT OF THE SAID BALANCE, A LOAN OF RS. 7,75,000/- WAS GIVEN TO THE ASSESSEE WHO IS HER ELDEST SON. THE AFFIDA VIT OF SMT. SUSHILA DEVI SOLANKI TO THIS EFFECT WAS ALSO FURNISHED. IT WAS FURTHER STATED THAT SHRI KAMAL SINGH RATORE AND SMT. MANJULA RATHORE WERE ALSO REG ULAR INCOME TAX PAYERS. THEIR AFFIDAVITS WERE ALSO FURNISHED. THE ASSESSING OFFICER IN HIS REMAND REPORT REGARDING THE ABOVE SUBMISSIONS STATED AS UN DER:- I) AS REGARDING CAPITAL BALANCE OF RS. 3,86,778/- A S ON 31.3.2002 AND UNSECURED LOANS OF RS. 1,25,000/- FROM SMT. MANJULA RATHOR AND SHRI KAMAL SINGH RATHOR, THE A.O. HAS MENTIONED THAT NO RETURNS EARLIER TO IT 6 WERE FURNISHED SO THIS CAPITAL BALANCE IS UNPROVED . OUT OF ABOVE FUND RS. 3,50,000/- WERE CLAIMED TO HAVE BEEN ADVANCED TO SM T. BHANWARI BAI ( A DEBTOR IN THE BALANCE SHEET) WHICH HAVE STATED TO H AVE BEEN RECOVERED. ONLY AFFIDAVIT OF SMT. BHANWARI BAI IN THIS REGARD HAS BEEN SUBMITTED AND THESE TRANSACTIONS ARE IN CASH AND NO DOCUMENTA RY EVIDENCE HAS BEEN FILED ON RECORD. SO, AFFIDAVITS ARE NOT ACCEPTABLE AS THEY ARE AFTERTHOUGHT ONLY. THE AFFIDAVIT OF SMT. MANJULA RATHORE OF RS.5 0,000/- AND SHRI KAMAL SINGH RATHOR OF RS. 75,000/- ALSO HAVE BEEN PREPARE D AS AFTERTHOUGHT AS THESE ARE MERELY CASH LOANS AND NO DATE OF CASH REC EIPT HAS BEEN MENTIONED IN THE AFFIDAVITS. II) AS REGARDING SOURCE OF FUNDS OF SMT. SUSHILA D EVI RATHOR, MOTHER OF ASSESSEE FOR LOAN OF RS. 7,75,000/-, THE CLAIM O F ASSESSEE THAT CAPITAL OF LATE SHRI AMAR SINGH SOLANKI HAS BEEN RECEIVED BY H ER AMOUNTING TO RS. 6,32,694/- IS SUPPORTED BY THE RETURNS WHICH MAY BE ACCEPTED. AS PER BALANCE SHEET, OUT OF ABOVE CAPITAL LATE SHRI AMAR SINGH SOLANKI HAD ADVANCED TO SHRI MODI LAL RS. 2,26,000/-AND SHRI MO HIT RS. 2 LAKH, THE RECOVERY OF THESE AMOUNTS HAVE BEEN CLAIMED. FURTHE R LOAN OF RS. 2.50 LAKH HAS BEEN CLAIMED STATED TO HAVE BEEN RECEIVED BY SM T. SUSHILA DEVI FROM SMT. NANI BAI. ALL THESE TRANSACTIONS WITH SHRI MOD I LAI, SHRI MOHIT AND SMT. NANI BAI HAVE BEEN CLAIMED TO HAVE BEEN MADE I N CASH. THE AFFIDAVIT OF SMT. NANI BAI WAS FURNISHED. THE CANCELLED CHEQU E OF SHRI MOHIT BANSAL WAS FURNISHED. COPY OF PROMISSORY NOTE EXECUTED BY SHRI MODI LAL I N FAVOUR OF SMT. SUSHILA DEVI SHOWING ACKNOWLEDGEMENT OF RECEIPT OF PAYMENT BY SMT. SUSHILA DEVI ON 27.1.2003 HAS BEEN FILED. ALL THESE EVIDENCES DO NOT PROVE THAT THESE LOANS WERE RECOVERED BY SMT. SUSHI LA DEVI FOR ADVANCING LOAN TO THE ASSESSEE. SO LOAN OF RS.7,75, 000/- BY SMT. SUSHILA DEVI REMAINS UNEXPLAINED. IN GIST, THE A.O. MENTIONED AS UNDER:- FROM THE ABOVE DISCUSSION IT CAN BE VERY WELL INFER RED THAT- 7 THE ASSESSEE HAS CLAIMED ALL THE TRANSACTIONS FOR S OURCE OF LOAN TO SHRI KALU RAM PARIHAR IN CASH. THE ASSESSEE ONLY FURNISHED EVIDENCE OF CASH TRANSA CTIONS IN FORM OF AFFIDAVITS OF SOME OF HIS FAMILY MEMBERS AND RELATI VES. NO DATES OF CASH TRANSACTIONS HAVE BEEN MENTIONED I N THE AFFIDAVITS. THE EVIDENCE IN FORM OF AFFIDAVITS APPEARS TO HAVE BEEN CREATED AS MEASURE OF AFTERTHOUGHT FOR SOURCE OF FUND OF RS. 1 2,50,000/- ADVANCE TO SHRI KALU RAM PARIHAR. 6. THE ASSESSEE IN RESPONSE TO THE REMAND REPORT O F THE ASSESSING OFFICER SUBMITTED TO THE LD CIT(A) AS UNDER:- I) THE APPELLANT STATED THAT HIS CAPITAL OF RS. 3, 86,738/- AS ON 31.3.2002 CANNOT BE DENIED AS ASSESSEE WAS HAVING B ELOW TAXABLE LIMIT WHICH PREVENTED BY FILING THE RETURN. THE ASSESSEE IS IN PRACTICE SINCE 1984 AS LAWYER. HE WAS LIVING WITH HIS FATHER AND SOME OF THE EXPENSES WERE CONTRIBUTED BY HIS WI FE SMT. SEEMA SOLANKI WHO IS ASSESSEE OF INCOME-TAX HAVING PAN NUMBER. THIS ENABLED THE APPELLANT TO ACCOMMODATE T HE CAPITAL UNSECURED LOAN OF RS. 50,000/- AND RS. 75,000/- FRO M SMT. MAJULA RATHORE AND SHRI KAMAL SINGH RATHORE HAVE BE EN RECEIVED. THEY ARE HAVING PAN NUMBERS AND THE AFFID AVITS HAVE BEEN FILED. SHRI KAMAL SINGH RATHOR HAS MADE THE FU NDS AVAILABLE IN JANUARY, 2002 AS PER AFFIDAVIT AND SMT . MANJULA RATHOR DID THE SAME ON 21.2.2002. SMT. BHANWARI BAI HAS CONFIRMED IN THE AFFIDAVIT THAT AMOUNT WAS GIVEN ON HER BEHALF BY THE APPELLANT TO THE CONTRACTOR SHRI RAJ KUMAR TALE SRA FOR CONSTRUCTION OF 'RUDRAKSH BHAWAN'. THE DOCUMENTARY PROOF OF RS. 3.50 LAKH GIVEN TO CONTRACTOR SHRI RAJ KUMAR TA LESRA ON 8 BEHALF OF SMT. BHANWARI BAI HAS BEEN FILED. ACCORDI NGLY, IT HAS BEEN CLAIMED THAT UNSECURED LOANS AND SUNDRY DEBTOR S OF THE ASSESSEE AS ON 31.3.2002 ARE DULY SUPPORTED BY THE DOCUMENTS. (II) AS REGARDING THE LOAN OF RS. 7,75,000/- FROM A SSESSEE'S MOTHER, SMT. SUSHILA DEVI, IT HAS BEEN STATED THAT THERE WAS CAPITAL OF RS.6,32,694/- STANDING IN THE NAME OF HE R HUSBAND ON 27.9.2002 WHICH STANDS ACCEPTED. HER AFFIDAVIT TO T HIS EFFECT HAS BEEN FILED. SHRI MODI LAI AND SHRI MOHIT WERE DEBTO RS OF LATE SHRI AMAR SINGH SOLANKI FOR RS. 2,27,000/- AND RS. 2 LAKH RESPECTIVELY. PROMISSORY NOTE HAS BEEN FILED SHOWIN G THAT SMT. SUSHILA DEVI HAS RECEIVED THE AMOUNT FROM SHRI MODI LAI ON 27.1.2003. THE CANCELLED CHEQUE OF RS. 2 LAKH OF SH RI MOHIT BANSAL ALSO CONFIRMS RECEIPT OF THE AMOUNT BY HER. RS. 2,50,000/- WERE RECEIVED BY SMT. SUSHILA DEVI FROM HER MOTHER SMT. NANI BAI ON 29.11.2002 AS LATE SHRI AMAR SINGH SOLANKI H AD TAKEN CARE OF SMT. NANI BAI. SHE HAS FILED AN AFFIDAVIT T O THIS EFFECT AND ALSO STATED THE SOURCE OF FUNDS. THE CASH FLOW STAT EMENT WAS GIVEN TO THE A.O. (III) THE A.O. IS NOT IN POSSESSION OF ANY EVID ENCE TO HOLD ASSESSEE'S ABOVE FUND HAVE NOT BEEN RECEIVED /RECOV ERED FROM VARIOUS PERSONS. THE A.O. WAS REQUESTED TO CONFRONT VARIOUS CREDITORS AND CONCERNED PERSONS TO CLEAR ANY DOUBT REGARDING CONTENTS OF AFFIDAVITS WHOM HE DID NOT EXAMINE. THE CONTENTS OF AFFIDAVITS CANNOT BE REJECTED UNLESS FOUND OTHERWIS E. IN THIS CONTEXT, APPELLANT RELIED ON THE FOLLOWING CASE LAW S:- A) JAI KUMAR JAIN VS. ACIT (2005) 34 TAX WORLD 22 4 (JAIPUR BENCH) B) KULDEEP CHAND GARGEE VS. ITI (2007) 37 TAX WORLD 127(JODHPUR BENCH) 9 C) ANAND PRAKSH GUPTA VS. ACIT (2004) 32 TAX WORLD 221 (JODHPUR BENCH) ETC. 7. THE ASSESSEE ALSO FILED THE DETAILS OF SOURCES O F FUNDS ALONG WITH EVIDENCE WHICH HAS BEEN REPRODUCED BY THE LD CIT(A) AT PAGE NO.10 OF THE IMPUGNED ORDER AND READS AS UNDER:- STATENT SHOWING DETAILS ON SOURCE OF CASH/FUND DURI NG THE YEAR 2002-2003 (1.04.2002 TO 31.03.2003) DATE AMOUNT SOURCE SUPPORTING EVIDENCE (I) 01.04.02 27314.00 OPNG BAL: 2001-02 BALANCE B/S YEAR ENDING 3 1..03.02 (SELF) (II)31.03.03 FEB., 2003 100000.00 RECOVERED FROM SUNDRY DEBTORS SMT. BHANWARI DEVI (BAI) ACHARYA (I) B/S YEAR ENDING 31.03.02 WHEREIN APPEARED AS DEBTOR, (II) AFFIDAVIT DATED 09.05.08 OF SMT. BHANWARI DEVI( ACHARYA (DEBTOR) IN CONFIRMATION OF AMOUNT OWED TO B.S. SOLANKI (CONSTRUCTION OF RUDRAKSH BHAWAN, MAHA KALESHWAR TEMPLE) (III) AFFIDAVIT DATED 24.02.09 OF RAJ KUMAR TALESRA (CONTRACTOR) IN CONFIRMATION OF CONSTRUCTION AMOUNT IN A/C OF BHANWARI DEVI REED, FROM B.S. SOLANKI. 12.02.03 100000.00 --------- DO ----- --------- DO ----- 15.02.03 150000.00 ---------- DO ----- --------- DO ----- (350000.00) (III) 22.02.03 50000.00 RECOVERED FROM SUNDRY DEBTOR SHRI CHANDRA SHEKHAR B/S YEAR ENDING 31.03.02 (ASSESSEE HIMSELF) 10 (IV) 31.10.02 18000.00 SHRI VIJAY SINGH (DEBTOR) --------- DO ----- 28.11.02 18850.00 SHRI AJIT SINGH (DEBTOR) --------- DO ----- (V) 25.02.03 775000.00 LOAN FROM SMT. SUSHILA SOLANKI (MOTHER) AMOUNT RECEIVED FROM SMT. SUSHILA SOLANKI (MOTHER) OUT OF HER OWN CAPITAL FUND PLUS CAPITAL SUCCEEDED FROM HER LATE HUSBAND AMAR SINGH SOLANKI EVIDENT FROM -(I) B/S OF SMT. SUSHILA SOLANKI YEAR ENDING 31. 02.02 & 3 1.03. 03 (II) B/S OF LATE HUSBAND AMAR SINGH SOLANKI FOR YEAR ENDING 31.03 .02 & 27.09.02. (III) AFFIDAVIT DATED 08.05.08 OF SMT. SUSHILA SOLANKI IN CONFIRMATION OF LOAN GIVEN, (IV) AFFIDAVIT DATED 08.05.08 OF NANI BAI (MOTHER OF SMT. SUSHILA SOLANKI) IN CONFIRMATION OF LOAN GIVEN BY HER TO (SUSHILA SOLANKI). (VI) 27.02.03 48280.00 INCOME EARNED 1 & E A/C AND B/S FOR THE YEAR ENDING 31.03.03. (VII) 27.02.03 1877.00 DEPRECIATION ON FURNITURE ______ DO ___ TOTAL 1289321.00 8. THE LD CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, REMAND REPORT OF THE ASSESSING OFFICER AS WELL AS ASSESSMENT ORDER OBSERVED THAT THE ASSESSEE WAS PRACTICING AS A LAWYER SINCE 1984. HOWEVER, NO RETURN WAS FILED AS HE WAS HAVING INCOM E BELOW TAXABLE LIMIT. HE FURTHER OBSERVED THAT THE ASSESSEE WAS LIVING IN JOINT FAMILY, IN THAT SITUATION, THE CAPITAL ACCUMULATION OF RS. 3,86,738 /- IN 18 YEARS WAS REASONABLE AND EVEN DURING CURRENT YEAR THE ASSESS EE HAS SHOWN INCOME OF RS.48,280/- AND IF PROPORTIONATE INCOME WAS TAKE N TO BE IN EARLIER YEARS, EVEN THEN THIS MUCH CAPITAL CAN BE ACCUMULATED. T HE LD CIT(A) FURTHER 11 OBSERVED THAT UNSECURED FROM SMT. MANJULA RATHORE A ND SHRI KAMAL SINGH RATHORE AMOUNTING TO RS. 50,000/- AND RS. 75,000/- RESPECTIVELY WERE DULY SUPPORTED BY THEIR AFFIDAVITS AND NOTHING CONTRARY WAS ON THE RECORD, SO THE ABOVE LOANS WERE ACCEPTABLE. HE FURTHER OBSERVED T HAT RECOVERY FROM SMT. BHANWARI DEVI WAS SUPPORTED BY AFFIDAVIT AND DOCUME NTS REGARDING CONSTRUCTION OF RUDRAKSH BHAWAN WAS EXPLAINED BY TH E ASSESSEE. AS REGARDS THE SOURCES OF FUNDS OF SMT. SUSHILA DEVI, FROM THE CAPITAL OF LATE SHRI AMAR SINGH SOLANKI AMOUNTING TO RS. 6,32,694/-, THE LD C IT(A) OBSERVED THAT THE SAME HAD NOT BEEN DOUBTED AS THE RETURNS WERE REGUL ARLY FILED. THE LD CIT(A) POINTED OUT THAT THE ASSESSEE HAD FILED A COPIES OF RETURNS FROM 2000-01 TO 2003-04 OF SHRI AMAR SINGH SOLANKI WHICH REVEALED THAT ADVANCES TO SHRI MODI LAL AND MOHIT OF RS. 2,26,000/- AND RS. 2 LAKH RESPECTIVELY WERE SHOWN. THAT AMOUNTS HAD BEEN RECEIVED BACK AS SEEN FROM CA NCELLED PROMISSORY NOTE AND CANCELLED CHEQUE PRODUCED BEFORE THE ASSESSING OFFICER. AS REGARDS TO RS. 2,50,000/- RECEIVED FROM SMT. NANI BAI, MOTHER OF S MT. SUSHILA DEVI, AN AFFIDAVIT HAD BEEN FILED IN WHICH SHE HAD SHOWN HER SOURCES OF FUNDS ALSO. THE LD CIT(A) CATEGORICALLY STATED THAT THERE WAS NOTHI NG CONTRARY ON THE RECORDS REGARDING THE ABOVE AVERMENTS. HE, THEREFORE, WAS O F THE VIEW THAT NO EVIDENCE CONTRARY TO THE EXPLANATION SUBMITTED BY THE ASSESS EE WAS ON RECORD AND THAT THE ASSESSEE HAD GIVEN SOURCE OF FUNDS ALONG WITH E VIDENCE REGARDING AMOUNT OF RS. 12,50,000/- ADVANCED BY HIM TO SHRI KALU RAM . ACCORDINGLY, THE ADDITION OF RS. 12,50,000/- WAS DELETED. NOW THE DE PARTMENT IS IN APPEAL. 12 9. THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE A SSESSING OFFICER AND LD COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND STRONGLY SUPPORTED THE IMPUGNED ORDER PAS SED BY THE LD CIT(A). 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIALS AVAILABLE ON RECORD. I N THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSMENT WAS FRAMED BY THE ASSES SING OFFICER U/S 144 OF THE ACT. THE ASSESSEE EXPLAINED THE REASONS FOR HI S NON APPEARANCE WHICH WAS MAINLY DUE TO HIS COUNSEL WHO WAS UNDER DEPRESSION CAUSED DUE TO DEATH OF HIS ELDER BROTHER FOR WHICH HE WAS UNDER TREATMENT AND THE ASSESSEE WAS TOTALLY DEPENDANT UPON HIS C.A. MR. C.P. BALDI. THE ASSESS EE FURNISHED THE EVIDENCE BEFORE THE LD CIT(A) WHICH WERE ADMITTED UNDER RULE 46-A OF THE INCOME TAX RULES. THE LD CIT(A) EXAMINED THE EVIDENCE PRODUCED BY THE ASSESSEE AND FOUND THAT NOTHING CONTRARY WAS AVAILABLE ON THE RE CORD. THE LD CIT(A) AFTER BEING SATISFIED THAT THE ASSESSEE WAS HAVING THE FU NDS TO GIVE LOAN OF RS. 12,50,000/- TO SHRI KALU RAM, DELETED THE ADDITION. NOTHING IS BROUGHT ON RECORD TO REBUT THE FINDINGS GIVEN BY LD CIT(A), TH EREFORE, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE IMPUGNED ORDER PASSED BY LD CIT(A). MOREOVER, IN THE PRESENT CASE, THE ASSESSEE HAD GIV EN NAMES OF THE CREDITORS SHRI KAMAL SINGH RATHORE AND SMT. MANJULA RATHO RE FROM WHOM HE HAS TAKEN LOAN OF RS. 50,000/- AND RS. 75,000/- RESPECT IVELY. THE ASSESSEE ALSO EXPLAINED THE SOURCES OF HIS CAPITAL OF RS. 3,86,73 8/- AS ON 31.3.2003. HE ALSO FILED AN AFFIDAVIT OF HIS MOTHER STATING THEREIN TH AT A LOAN OF RS. 7,75,000/- WAS GIVEN TO THE ASSESSEE BY HER. THE SOURCES OF THE S AID AMOUNT WAS ALSO EXPLAINED WHICH WAS MAINLY CAPITAL OF THE HUSBAND O F SMT. SUSHILA DEVI, 13 MOTHER OF THE ASSESSEE WHICH WAS TO THE TUNE OF RS . 6,32,694/-, TO SUBSTANTIATE THAT THE ASSESSEE FURNISHED THE COPIES OF RETURN FI LED BY HIS FATHER WHEN HE WAS ALIVE. THE ASSESSEE ALSO FILED THE AFFIDAVIT OF SMT . NANI BAI, HIS GRANDMOTHER, WHO HAD GIVEN A SUM OF RS. 2,50,000/- TO HER DAUGHT ER SMT. SUSHILA DEVI, THE MOTHER OF THE ASSESSEE AND FROM THIS LOAN AND CAPIT AL OF HUSBAND SHRI AMAR SINGH SOLANKI, THE LOAN AMOUNTING TO RS. 7,75,000/- WAS GIVEN TO THE ASSESSEE BY HIS MOTHER SMT. SUSHILA DEVI. THEREFORE, THE ASS ESSEE FULLY EXPLAINED THE SOURCES FOR GIVING A LOAN OF RS. 12,50,000/- TO SHR I KALU RAM OF UDAIPUR AND THE LD CIT(A) AFTER PROPER VERIFICATION CAME TO THE CONCLUSION THAT THE ADDITION OF RS. 12,50,000/- WAS NOT JUSTIFIED. WE THEREFORE , DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 11. IN THE RESULT, THE APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14.12.2 012 ) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 14 TH DECEMBER, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR 14