Dy. Commissioner of Income Tax, Lucknow V. Shri Kripal Singh,

ITA 681/LKW/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4392 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 133(6); 131; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ITA NO.681/LKW/2015 ASSESSMENT YEAR 2011-12 SHRI KRIPAL SINGH, 292, VIJAY NAGAR COLONY, ETAWAH PAN AFZPS 9581 G VS DCIT , RANGE - 4, LUCKNOW (RESPONDENT) (APPELLANT) SHRI AMIT NIGAM, CIT DR APPELLANT BY NONE RESPONDENT BY 09/06/2015 DATE OF HEARING 27/06/2016 DATE OF PRONOUNCEMENT O R D E R PER MAHAVIR PRASAD, JM. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) LUCKNOW DATED 25.08.2015. 2. THE SOLE GROUND OF THE ASSESSEE IS AS UNDER: THE COMMISSIONER OF INCOME TAX (APPEALS) LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETI NG THE ADDITION OF RS.41,26,500/- ON ACCOUNT OF UNEXPLAINE D CASH DEPOSIT IN BANK ACCOUNT IGNORING THE FACT THAT THE ASSESSEE DID NOT PRODUCE ANY SUBSTANTIAL EVIDENCE I N SUPPORT OF THE CREDITWORTHINESS/GENUINENESS OF DEPOSITS SO MADE. 2 3. IT WAS NOTED IN THE IMPUGNED ORDER OF THE CIT(A) WAS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IN THE CASE OF ASSESSEE AN AIR TRANSACTION REPORT NOTED THAT THE ASSESSEE HAD DEPOSITED CASH AGGREGATING IN THE TUNE OF RS.41,26,500/- IN TWO SA VING BANK ACCOUNTS, NAMELY, ALLAHABAD BANK AND PUNJAB NATIONA L BANK RESPECTIVELY. IT WAS FURTHER NOTED IN THE ASSESSMEN T ORDER THAT ASSESSEE HAD NOT DISCLOSED THE SAVINGS BANK ACCOUNT HELD BY HIM IN PNB. ACCORDINGLY, THE ASSESSING OFFICER HAD MADE TH E TOTAL ADDITION OF RS.56,07,475/-. 4. AGAINST THE SAID ASSESSMENT ORDER, ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A), WHO PARTLY ALLOWED THE AP PEAL AND DELETED THE ADDITION OF RS.41,26,500/- WITH THE FOLLOWING O BSERVATION:- AS FOR THE NINTH REASON OF THE AO REGARDING THE AP PELLANT'S TOTAL FAILURE TO SUBSTANTIATE THE CREDITWORTHINESS OF THE LESSEE, THIS, TOO, IS NOT TENABLE IN VIEW OF THE DO CUMENTS REFERRED ABOVE, WHICH HAVE NOT BEEN REBUTTED BY THE LD AO. IT IS NOT A CASE THAT THE AO DEMANDED A PARTICULAR PIECE OF EVIDENCE AND THE APPELLANT DID NOT SUBMIT THE SAME. IN THE ENTIRE ASSESSMENT PROCEEDING, THERE IS NO WHISPER A S TO WHAT DOCUMENTS THE AO WANTED IN RESPECT OF THE CREDITWOR THINESS OF THE AFORESAID PERSON. THE AO MUST BE CLEAR ABOUT THE NATURE OF HIS ENQUIRY AND THE PRECISE TYPE OF EVIDE NCE HE WANTED FROM THE ASSESSEE TO ADJUDICATE ON AN ISSUE. IT IS NOT THE CASE OF THE AO THAT THE APPELLANT DID NOT SUBMI T A SPECIFIC DOCUMENT REQUIRED BY HIM. THE AO MERELY RE CORDS AS HIS NEXT ARGUMENT THAT 'THE ASSESSEE HAD A VERY GOO D CHANCE AND HAD FULL OPPORTUNITY TO PRODUCE THE SAID PERSON S'. BUT WHAT IS TO BE NOTED HERE IS THAT THE AO NEVER DIREC TED THE APPELLANT TO PRODUCE THESE PERSONS. IF THE AO HAD A NY DOUBTS, HE COULD HAVE ASKED THE APPELLANT TO PRODUC E SMT. USHA DEVI AND OTHER CONCERNED PERSONS AND IF THE AP PELLANT 3 HAD FAILED IN PRODUCING THEM, THE AO COULD HAVE HIM SELF ISSUED SUMMONS TO THEM OR CONDUCTED ENQUIRIES THROU GH ISSUANCE OF COMMISSION UNDER SECTION 131 OF IT ACT. BASING A QUASI-JUDICIAL ORDER MERELY ON CONJECTURE IS, THERE FORE, WHOLLY INAPPROPRIATE FOR THE AO AND CANNOT SUSTAIN JUDICIA L SCRUTINY. SIMILARLY, NOTHING TURNS ON THE FACT THAT THESE PER SONS ARE NOT INCOME TAX PAYEES, AS IT IS AN ADMITTED FACT THAT T HE PERSONS IN QUESTION ARE AGRICULTURISTS AND SOURCES OF THEIR MONEY ARE GROUNDED IN AGRICULTURAL ACTIVITIES. FURTHER, THE N ON-DELIVERY OF NOTICE U/S 133(6) OF THE IT ACT, TO SMT. USHA DE VI COULD NOT BE CONSIDERED CLINCHING IN VIEW OF THE CLEAR PO STAL REMARK THAT THE ADDRESS MENTIONED ON THE UNSERVED ENVELOPE WAS 'INCOMPLETE'. THE ASSESSMENT RECORDS IN THE CASE CL EARLY REVEAL THAT THE AD NEITHER TRIED TO OBTAIN THE COMP LETE ADDRESS FROM THE APPELLANT NOR DID HE EVER ASK HIM TO PRODUCE THE PERSON IN QUESTION. UNDER THESE CIRCUMS TANCES, ADDITION MADE BY THE AO ON VAGUE AND TENUOUS REASON ING CANNOT BE SUSTAINED. THE APPELLANT HAS BEEN ABLE TO DISCHARGE THE PRIMA FACIE ONUS LYING UPON HIM REGAR DING THE SOURCE OF CREDITS IN HIS SAVING BANK ACCOUNTS. THE APPEAL, THEREFORE, MUST SUCCEED. THE ADDITION OF RS. 41,26, 500/- MADE BY THE AO IS, THEREFORE, DELETED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE A SSESSEE HAD RECEIVED CASH OF RS.31,00,000/- FROM ONE SMT. USHA SINGH TOWARDS ADVANCE AGAINST THE SALE OF AGRICULTURAL LAND AS PE R AGREEMENT TO SELL DATED 10.07.2010. IT WAS FURTHER NOTED THAT IN RESP ECT OF THE PROPOSED SALE, THE PERMISSION FROM DISTRICT ADMINISTRATION W AS SOUGHT AS THE ASSESSEE BELONGED TO SCHEDULED CASTE CATEGORY. THE SAID LETTER WAS ALSO FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) AND THE PERMISSION FOR PROPOSED SALE OF AGRICULTURAL LAND W AS DECLINED BY THE DISTRICT ADMINISTRATION AND COPY OF DENIAL OF PERMI SSION WAS ALSO ON 4 RECORD AND ON ACCOUNT OF THIS NO PERMISSION WAS GRA NTED BY THE DISTRICT ADMINISTRATION. THE PROPOSED SALE OF AGRIC ULTURAL LAND HAD TO BE CANCELED AND THE SAID AMOUNT WAS REFUNDED BACK TO M S. USHA SINGH. 6. IN VIEW OF THE AFORESAID FINDING, WE ARE OF THE CONSIDERED VIEW THAT AS THE ASSESSEE HAD RECEIVED THE MONEY AGAINST THE SALE OF LAND FOR WHICH PERMISSION FROM DISTRICT ADMINISTRATION W AS NECESSARY BECAUSE THE ASSESSEE BELONGS TO SCHEDULED CASTE CA TEGORY AND THE SAME WAS DECLINED TO THAT CONTRACT COULD NOT BE FUL FILLED. HENCE, THE AMOUNT OF RS.41,26,500/- WHICH WAS DEPOSITED IN ALL AHABAD BANK AND PUNJAB NATIONAL BANK RESPECTIVELY AND THE ASSESSEE HAS FILED THE PHOTOCOPIES OF UNREGISTERED AGREEMENT TO SALE AND C ANCELLATION DEED EXECUTED ON STAMP PAPERS OF RS.100/- ALONG WITH REC EIPTS OF PAYMENTS. WE, THEREFORE, FIND NO FORCE IN THE SUBMIS SION OF THE LD. LD. DR OF THE REVENUE REVENUE. ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) AND THE APPEAL OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (P.K. BANSAL) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/06/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REG ISTRAR