BHAGWAN SINGH POSWAL, Jaipur V. ITO, Jaipur

ITA 666/JPR/2013

• Counselvise Citation: 66623114 RSA 2013
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 23-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C JAIN
• Keywords: Peak credit; Additional evidence

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH : JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.666/JP/2013 (A.Y. 2007-08) BHAGWAN SINGH POSWAL, VS. ITO, WARD-1(4), PLOT NO.1, MAHAVEER NAGAR-A, JAIPUR. MUHANA ROAD, JAIPUR. PAN NO. AIPPP 2375 N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. JAIN. DEPARTMENT BY : SHRI D.C. JAIN - D.R. DATE OF HEARING : 15/01/2014. DATE OF PRONOUNCEMENT : 26/02/2014. O R D E R PER N.K. SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER DATED 17/04/2013 OF LD. CIT (A)-III, JAIPUR. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS. 2,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACC OUNT. 2 3 FACTS OF THE CASE IN BRIEF ARE THAT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON THE ANALYSIS OF BANK STATEMENT OF THE ASSESSEE WITH BANK OF BARODA, NEHRU PALACE, JAI PUR, NOTICED SEVERAL CASH DEPOSITS THEREIN AND SINCE THE ASSESSEE FAILED TO EXPLAIN THE CASH DEPOSITS IN HIS BANK ACCOUNT, THE ASSESSING OFFICER ADDED THE PEAK CREDIT OF RS. 2,27,000/- AS UNDISCLOSED INCOME OF THE ASSE SSEE. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) AND SUBMITTED THAT THE CASH DEPOSIT IN THE BANK ACC OUNT WAS MADE OUT OF THE CASH RECEIVED ON ACCOUNT OF RENT, SALARY AND A DVANCE AGAINST SALE OF PLOT. THE ASSESSEE FILED COPIES OF RENT AGREEMENT, SALARY CERTIFICATE AND AGREEMENT TO SALE OF PLOT. SINCE THE ABOVE EVIDENC ES WERE IN NATURE OF ADDITIONAL EVIDENCES, THE LD. CIT(A) FORWARDED THE SAME TO THE ASSESSING OFFICER FOR NECESSARY VERIFICATION AND COMMENTS. TH E ASSESSING OFFICER FORWARDED HIS REPORTS VIDE LETTERS DATED 07/01/2013 AND 26/03/2013. THE ASSESSEE CLAIMED THAT THE DEPOSIT OF RS. 2,00,0 00/- ON 06/10/2006 WAS AN ADVANCE RECEIVED FROM SHRI RAM KALYAN GURJAR ON ACCOUNT OF SALE OF PLOT. THE ASSESSEE FURNISHED COPY OF THE SALE A GREEMENT DATED 06/10/2006 SHOWING TOTAL SALE CONSIDERATION OF RS. 8,50,000/- OUT OF WHICH RS. 2,00,000/- WAS RECEIVED IN CASH AS AN ADV ANCE ON 05/10/2006. THE ASSESSEE ALSO FURNISHED COPY OF THE AFFIDAVIT D ATED 15/01/2013 OF 3 SHRI RAM KALYAN GURJAR CONFIRMING THE CONTENTS OF S ALE AGREEMENT DATED 06/10/2006. IT WAS STATED IN THE AFFIDAVIT THAT TH E FINAL SALE DEED COULD NOT BE EXECUTED TILL DATE DUE TO SHORTAGE OF FUNDS AND THE LAND WAS IN POSSESSION OF THE ASSESSEE ONLY. LD. CIT(A) POINTE D OUT THAT TO EXAMINE THE VERACITY OF THE AGREEMENT AND THE CREDITWORTHIN ESS OF SHRI RAM KALYAN GURJAR, THE ASSESSING OFFICER WAS DIRECTED T O EXAMINE HIM ON OATH AND ACCORDINGLY THE ASSESSING OFFICER ISSUED SUMMON ON 07/02/2013 TO SHRI RAM KALYAN GURJAR WHICH WAS NOT COMPLIED WITH. ANOTHER SUMMON WAS ISSUED ON 22/02/2013 WHICH WAS AGAIN NOT COMPLI ED WITH. LD. CIT(A) MENTIONED THAT THE ASSESSEE DID NOT MAKE ANY ATTEMP T TO PRODUCE SHRI RAM KALYAN GURJAR FOR EXAMINATION, SO IT WAS STRANG E AND AGAINST THE NORMAL HUMAN BEHAVIOUR THAT A PERSON OF NO MEANS HA D LEFT RS. 2,00,000/- UNCLAIMED WITH THE ASSESSEE FOR LAST SEVEN YEARS WITHOUT GETTING THE PLOT REGISTERED IN HIS NAME OR WITHOUT TAKING THE POSSESSION OF THE SAME. HE, THEREFORE, CONFIRMED THE ADDITION OF RS. 2,00,000/-. NOW THE ASSESSEE IS IN APPEAL. 5. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE RECEIVED ADVANCE FROM SHRI RAM KALYAN GURJAR AGAINS T THE SALE OF THE PLOT AND THIS FACT WAS CONFIRMED BY THE SAID PERSON VIDE AFFIDAVIT DATED 4 15/01/2013, THEREFORE, THE ADDITION MADE BY THE ASS ESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 6. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. FROM THE COPY OF THE SALE AGREEMENT DATED 06/10/2006 WHICH IS PLACED ON RECORD, IT IS NOTICED THAT THE ASSESSEE BEING OWNER OF PLOT NO. 1 , MAHAVEER NAGAR-A, MOHANA ROAD, JAIPUR ADMEASURING 638 SQ.YDS. ENTERED INTO AN AGREEMENT TO SALE WITH SHRI RAM KALYAN GURJAR FOR A SUM OF RS . 8,50,000/- AND RECEIVED RS. 2,00,000/- ON 05/10/2006 AS AN ADVANCE . THE PURCHASER OF THE LAND SHRI RAM KALYAN GURJAR ALSO FURNISHED AN A FFIDAVIT DATED 15/01/2013 STATED THEREIN THAT HE HAD DEPOSITED RS. 2,00,000/- IN THE BANK ACCOUNT OF THE ASSESSEE AS AN ADVANCE MONEY FO R PURCHASE OF PLOT NO.1, MAHAVEER NAGAR, A-BLOCK, MUHANA ROAD, OPPOSIT E V.T. ROAD, MANSROVAR, JAIPUR, THAT AFFIDAVIT WAS NOTARIZED ON 17/01/2013 AND THE CONTENTS OF THE SAID AFFIDAVIT WERE NOT REBUTTED. IT IS ALSO NOTICED THAT THE AGREEMENT TO SALE IS DULY SIGNED BY THE ASSESSE E IN THE CAPACITY OF SELLER AND BY SHRI RAM KALYAN GURJAR IN THE CAPACIT Y OF BUYER, THE SAID 5 AGREEMENT IS DULY SIGNED BY TWO INDEPENDENT WITNESS ES NAMELY SHRI ROHIT DAIMA AND SHRI JITENDRA ADHANA. WE, THEREFORE, ARE OF THE VIEW THAT THE SOURCE OF DEPOSIT OF RS. 2,00,000/- WAS ESTABLISHED BY THE ASSESSEE AND THE ADDITION SUSTAINED BY LD. CIT(A) WAS NOT JUSTIF IED. IN THAT VIEW OF THE MATTER, THE ADDITION OF RS. 2,00,000/- IS DELETED. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 26 TH FEBRUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH FEBRUARY, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JAIPUR.