SMT. RAMAWATI, Jaipur V. ITO, BHARATPUR

ITA 701/JPR/2014

• Counselvise Citation: 70123114 RSA 2014
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP SHARMA
• Keywords: Onus to prove
• Section: 143(3); 131; 68; 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 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. 701/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SMT. RAMWATI W/O- SHRI RAM SINGH, VILLAGE- KATHERA CHOUTH, DEEG- BHARATPUR (RAJ). CUKE VS. THE I.T.O. WARD 2, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AVBPR 1675 E VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI DILIP SHARMA( ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/02/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 10/04/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19/09/2014 PASSED BY THE LEARNED CIT (A), ALWAR FOR A.Y. 2010-11. THE EFFECTIVE GROUNDS OF APPEALS ARE AS UNDER:- 1) THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN CONFIRMING THE ADDITION OF RS. 52 LACS MADE BY THE A.O. ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT ITA701/JP/2014_ SMT. RAMWATI VS. ITO 2 IN THE BANK U/S 68 OF THE INCOME TAX ACT, 1961. HE HAS FURTHER ERRED IN CONFIRMING THE ADDITION IGNORI NG THAT:- (A) THE SAID AMOUNT IS RECEIVED BY THE ASSESSEE AGAINST SALE OF THE AGRICULTURAL LAND FOR RS. 72 LACS FOR WHICH SALE DEED IS EXECUTED FOR RS. 20 LACS ONLY FOR WHICH ASSESSEE HAS BROUGHT ON RECORD THE BANK ACCOUNT OF THE BUYER OF THE LAND SMT. KIRAN DEVI AND HER HUSBAND/RELATIVE SH. GIRIRAJ AND SH. LATOOR SINGH WHO HAVE WITHDRAWN RS. 80 LACS FROM THEIR BANK ACCOUNT ON 11/05/2009 OUT OF WHICH RS. 72 LACS WAS PAID TO THE ASSESSEE AGAINST THE SALE OF LAND WHICH WAS DEPOSITED BY HER BY OPENING THE BANK ACCOUNT ON THE SAME DATE. (B) ASSESSEE HAS DISCHARGED HER INITIAL BURDEN TO PROVE THE SOURCE OF CREDIT IN HER BANK ACCOUNT BUT STILL HOLDING THAT SHE HAS FAILED TO DISCHARGE THE ONUS U/S 68 TO PROVE THE IDENTITY OF THE CREDITOR, THEIR CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSACTION AND OVERLOOKING THE FACT THAT THE ADDITION MADE U/S 68 IS ILLEGAL AND BAD IN LAW INASMUCH AS THIS SECTION DOES NOT APPLY TO THE DEPOSIT MADE IN THE BANK ACCOUNT. 1.1) THE LD. CIT(A) HAS ERRED ON FACTS AND IN CONFIRM ING THE ABOVE ADDITION WITHOUT REBUTTING THE VARIOUS EVIDENCES FILED AND CASE LAWS RELIED UPON BY SOLELY BASING HIS DECISION ON THE GROUND THAT ASSESSEE HAS FAILED TO PRODUCE THE BUYER SMT. KIRAN DEVI FOR EXAMINATION IN THE REMAND PROCEEDINGS BEFORE THE A.O. 2) THE ASSESSEE CRAVES TO ALTER, AMEND, MODIFY ANY O F THE GROUNDS OF APPEAL. 3) NECESSARY COST BE ALLOWED TO THE ASSESSEE. ITA701/JP/2014_ SMT. RAMWATI VS. ITO 3 2. ALL THE GROUNDS OF THE ASSESSEES APPEAL ARE REV OLVING AROUND THE ASSESSEES INCOME ON ACCOUNT OF UNEXPLAINED CASH DE POSITED U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT RS. 5 2 LACS. THE LD. ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS IN TEREST INCOME DURING THE YEAR UNDER CONSIDERATION. SHE FILED RETURN ON 0 8/11/2010 AT TOTAL INCOME OF RS. 2,52,748/-. THIS CASE WAS SCRUTINIZED U/S 143(3) OF THE ACT. THE LD. ASSESSING OFFICER OBSERVED THAT ON PERU SAL OF BANK ACCOUNT THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 72 LACS ON 11/5/2009 IN PUNJAB NATIONAL BANK, DEEG BHARATPUR IN HER SAVINGS BANK ACCOUNT NO. 0989000100362622. THE ASSESSEE WAS GIVEN REASONABLE O PPORTUNITY OF BEING HEARD ON UNEXPLAINED SOURCE OF CASH DEPOSITED IN HER BANK ACCOUNT, WHICH IS BEEN AVAILED BY THE ASSESSEE. SHE FILED A WRITTEN REPLY, WHICH HAS BEEN REPRODUCED BY THE ASSESSING OF FICER ON PAGE 2,3, AND 4 OF THE ASSESSMENT ORDER. THE ASSESSEE SUBMITTE D THAT SHE HAS SOLD AGRICULTURAL LAND SITUATED AT VILLAGE PAIGAON, TEHSIL- CHHATA, DISTRICT- MATHURA TO SMT. KIRAN DEVI, WIFE OF SHRI GIRIRAJ SIN GH OF DISTRICT MATHURA AT RS. 20 LACS AS PER REGISTERED SALE DEED. HOWEVER, THE CASH WAS DEPOSITED IN THE BANK ACCOUNT WAS RS. 72 LACS. IT IS SUBMITTED THAT THE REMAINING AMOUNT OF RS. 52 LACS WAS RECEIVED FROM SM T. KIRAN DEVI, W/O- SHRI GOPAL SINGH @ LATOOR SINGH IN CASH. THE L D ASSESSING OFFICER ITA701/JP/2014_ SMT. RAMWATI VS. ITO 4 ISSUED NOTICE TO SMT. KIRAN DEVI (PURCHASER) TO VER IFY THE FACTS OF THE CASE. IN RESPONSE TO NOTICE TO SMT. KIRAN DEVI, HER HUSBAND GIRIRAJ SINGH APPEARED BEFORE THE ASSESSING OFFICER AND FUR NISHED WRITTEN REPLY BEFORE HIM AND CLAIMED THAT PURCHASER HAD PAID RS. 20 LACS FOR PURCHASING OF AGRICULTURAL LAND, BESIDES THIS, NO E VIDENCE HAS BEEN PLACED BY THE ASSESSEE TO EXPLAIN THE SOURCE OF RS. 52 LACS. THEREFORE, LD ASSESSING OFFICER MADE ADDITION OF CASH DEPOSITE D RS. 52 LACS AFTER ACCEPTING THE 20 LACS CASH DEPOSITED FROM THE SALE PROCEED OF AGRICULTURAL LAND U/S 68 OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A ), WHO HAD CONFIRMED THE ADDITION BY OBSERVING AS UNDER:- 4.5 I HAVE PERUSED THE ASSESSMENT ORDER, REMAND RE PORT OF THE A.O. AND SUBMISSIONS MADE AND CROSS REPLY OF THE APPELLANT AND FIND THAT AND ADDITION OF RS. 52 LACS HAS BEEN MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEP OSITS IN THE BANK ACCOUNT OF THE APPELLANT. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY THE A.O. THA T AN AMOUNT OF RS. 72 LACS HAS BEEN DEPOSITED IN CASH ON A SINGLE DAY I.E. 11 TH MAY, 2009 IN HER SAVING ACCOUNT IN PNB, DEEG, BHARATPUR BRANCH. IT WAS EXPLAINED BY THE APPE LLANT THAT SHE HAS SOLD AGRICULTURAL LAND IN DISTRICT MAT HURA AND ITA701/JP/2014_ SMT. RAMWATI VS. ITO 5 AS PER SALE DEED REGISTERED, THE SAME CONSIDERATION RECEIVED IS ONLY RS. 20 LACS. IT IS SUBMITTED BY TH E APPELLANT THAT BALANCE AMOUNT OF RS. 52 LACS HAS BEEN RECEIVE D FROM THE PURCHASER OF LAND SMT. KIRAN DEVI, W/O- SH. GIR RAJ SINGH, R/O- KOSI KALAN, DISTRICT- MATHURA. THE APPEL LANT COULD NOT SUBSTANTIATE THE SOURCES OF CASH DEPOSITS IN THE BANK ACCOUNT. THE A.O. HAS GIVEN A NUMBER OF OPPORTUNITIES TO THE APPELLANT TO PRODUCE THE BUYER OF LAND, WHO IS STATED TO HAVE GIVEN THE CASH BUT THE APPELLA NT FAILED TO PRODUCE THE BUYER. 4.6 THE APPELLANT HAS EXPLAINED THAT THE AMOUNT DEPO SITED IN CASH IS ON ACCOUNT OF CASH SALE OF LAND FOR WHICH TH E REGISTERED SALE DEED HAS BEEN EXECUTED AT RS. 20 LA CS ONLY. THE APPELLANT HAS ALSO FILED COPIES OF BANK ACCOUNT OF THE BUYER OF LAND SMT. KIRAN DEVI AND HER HUSBAND SHRI GIRRAJ SINGH, WHEREIN HUGE CASH DEPOSITS AND WITHDRAWALS FRO M THE BANK ACCOUNT ARE REFLECTED IN THE SAME PERIOD. IT IS STATED THAT THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT ARE THE AMOUNTS WITHDRAWN BY THESE T WO PERSONS. THE ADDITIONAL EVIDENT FILED BY THE APPELLA NT WAS FORWARDED TO THE A.O. FOR EXAMINATION AND SUBMISSION OF REMAND REPORT. 4.7 THE A.O. IN THE COURSE OF REMAND PROCEEDINGS GIV EN ENOUGH OPPORTUNITIES TO THE APPELLANT TO PRODUCE TH E BUYER ITA701/JP/2014_ SMT. RAMWATI VS. ITO 6 OF LAND TO SUBSTANTIATE THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT. THE APPELLANT HAS STATED THAT THE BUY ER SMT. KIRAN DEVI IS KNOWN TO HER FOR A LONG TIME BUT STILL FAILED TO PRODUCE HER FOR EXAMINATION BEFORE THE A.O. I CONCU R WITH THE A.O. THAT INITIAL BURDEN LIES UPON THE APPELLAN T TO PROVE THE SOURCES OF CREDITS IN HER BANK ACCOUNT. THE APPE LLANT HAS CLEARLY FAILED TO DISCHARGE THE ONUS WHICH LAY U PON HER UNDER THE PROVISIONS OF SECTION 68 OF THE IT ACT I.E . TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE CREDI TOR, GENUINENESS OF THE TRANSACTION ETC. IN THIS CASE, I FIND THAT SUFFICIENT OPPORTUNITY HAS BEEN GIVEN TO THE APPELL ANT TO PROVE THE SOURCES OF CREDITS IN THE BANK ACCOUNT BU T THE APPELLANT HAS WHOLLY AND SQUARELY FAILED TO ADDUCE E NOUGH EVIDENCE IN THIS REGARD. 4.8 LD. CIT(A) HAS RELIED ON THE FOLLOWING CASE LAWS:- (I) RAMLAL AGARWAL VS. CIT 280 ITR 547. (II) HYDERABAD ITAT DECISION 023 ITR (TRIB) 0528. (III) VIJAY KUMAR TALWAR VS. CIT 330 ITR 1 (SC) (2010). (IV) PAPNEJA TRADERS VS. CIT 337 ITR 172 (P&H)(2011) (V) ACRON FINANCE PVT. LTD. VS. CIT 238 CTR 344 (P&H) (2011) ITA701/JP/2014_ SMT. RAMWATI VS. ITO 7 4.9 IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT THE A.O. WAS JUSTIFIED IN TREATING THE CASH DEPOSITS OF RS. 52 L ACS AS UNEXPLAINED INCOME OF THE APPELLANT. ACCORDINGLY, I CONFIRM THE ADDITION OF RS. 52 LACS MADE BY THE A.O . U/S 68 OF THE IT ACT. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LEARN ED A.R. FOR THE ASSESSEE SUBMITTED AS UNDER:- 1. IT IS A KNOWN FACT THAT GENERALLY THERE IS A DIFFERE NCE BETWEEN SALE CONSIDERATION AS RECORDED IN THE REGISTERED SALE DE ED AND THE ACTUAL CONSIDERATION OF AN IMMOVABLE PROPERTY PARTICULARLY THE AGRICULTURAL LAND. THIS IS DONE BY THE PURCHASER TO SAVE THE STAM P DUTY. IN THE PRESENT CASE ALSO, IN THE REGISTERED SALE DEED, IT IS STATED THAT THE SAID AGRICULTURAL LAND IS SOLD FOR RS. 20 LACS BUT SUCH RECITAL IS MADE ONLY TO SAVE THE STAMP DUTY AND THE ACTUAL CONSIDER ATION RECEIVED BY THE ASSESSEE IS RS.72 LACS. THE AO INSPITE OF THE ASSESSEES REQUEST TO RECORD THE STATEMENT OF SMT. KIRAN DEVI HAS NEITHER RECORDED HER STATEMENT NOR THE STATEMENT OF HER HUS BAND SH. GIRRAJ SINGH WHO IS STATED TO HAVE FURNISHED A WRITTEN SUBM ISSION. HE HAS ALSO NOT PROVIDED THE COPY OF SUCH WRITTEN SUBMISSIO N TO THE ASSESSEE AND ALSO NOT CALLED THE BANK STATEMENT OF PURCHASER AND HER HUSBAND BEFORE COMPLETING THE ASSESSMENT. 2. IMMEDIATELY AFTER COMPLETION OF THE ASSESSMENT, THE ASSESSEE VIDE LETTER DATED 02.04.2013 AGAIN REQUESTED THE AO TO P ROVIDE THE COPY ITA701/JP/2014_ SMT. RAMWATI VS. ITO 8 OF WRITTEN REPLY FILED BY SMT. KIRAN DEVI/SH. GIRRAJ SINGH AND ALSO REQUESTED TO CALL THE BANK STATEMENT OF SMT. KIRAN DEVI AND HER HUSBAND SH. GIIRAJ SINGH BY ISSUING NOTICE U/S 133( 6) TO THE BANK MANAGER. IN RESPONSE, THE AO VIDE LETTER DATED 02.0 4.2013 REFUSED TO CALL THE BANK STATEMENT ON THE LAME EXCUSE THAT THE SAME CANNOT BE CALLED AS NO PROCEEDINGS ARE PENDING BEFORE HIM. ALL THESE FACTS SHOWS THAT AO WAS NOT INCLINED TO GO INTO THE TRUTH O F THE MATTER. 3. IN THE MEANWHILE, THE ASSESSEE HAS OBTAINED THE BANK ACCOUNT OF SMT. KIRAN DEVI, HER HUSBAND SH. GIRRAJ AND HER REL ATIVE SH. LATOOR SINGH MAINTAINED WITH PNB, KOSHIKALA AND ALSO LETTER DATED 05.03.2013 ISSUED BY THE AO TO KIRAN DEVI AND REPLY GIVEN BY KIRAN DEVI/GIRRAJ SINGH IN DAK COUNTER ON 08.03.2013. FRO M THESE BANK STATEMENTS, IT CAN BE NOTED THAT THEY HAVE DEPOSITE D RS. 40 LACS EACH IN THEIR BANK ACCOUNT OPENED ON 16.04.2009/17. 04.2009. FROM THESE ACCOUNTS, THEY HAVE WITHDRAWN RS. 80,00,000/- O N 11.05.2009. OUT OF THIS AMOUNT, RS.72 LACS WAS PAID TO THE ASSESSEE ON 11.05.2009 AGAINST THE PURCHASE OF THE SAID AGRI CULTURAL LAND WHICH WAS DEPOSITED BY THE ASSESSEE IN HER BANK ACCOU NT ON THE SAME DATE I.E. 11.05.2009. IN FACT, THIS ACCOUNT WAS OPENED BY THE ASSESSEE ONLY ON 11.05.2009 WITH THE AMOUNT OF RS.1, 000/- GIVEN BY THE PURCHASER AND THE BALANCE AMOUNT OF RS.71,99 ,000/- WAS ALSO DEPOSITED IN THIS BANK ACCOUNT ON THE SAME DAT E. ALL THESE FACTS CLEARLY ESTABLISH THAT THE SOURCE OF THE AMOUNT DEP OSITED IN THE BANK ACCOUNT IS NOTHING BUT THE SALE CONSIDERATION OF THE AGRICULTURAL LAND SOLD BY ASSESSEE TO SMT. KIRAN DE VI. THE AO HAS ITA701/JP/2014_ SMT. RAMWATI VS. ITO 9 ALSO ACCEPTED THAT OUT OF RS. 72 LACS, RS. 20 LACS REPRESENT THE SALE PROCEEDS OF THE AGRICULTURAL LAND BUT AT THE SAME T IME HE HAS NOT ACCEPTED THE CLAIM OF THE ASSESSEE THAT THE REMAINI NG AMOUNT OF RS. 52 LACS ALSO REPRESENTS THE SALE PROCEEDS OF AG RICULTURAL LAND WITHOUT CALLING THE BANK ACCOUNT OF THE PURCHASER FR OM THE BANK AND TO RECORD THE STATEMENT OF THE PURCHASER AND AL LOWING OPPORTUNITY TO CROSS EXAMINE THEM INSPITE OF ASSESS EES REQUEST. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, ADDITION OF RS. 52 LACS MADE BY THE AO AND CONFIRMED BY CIT(A) IS UNJUSTIFIE D. 4. THE AO AT PAGE 4 OF HIS ORDER HAS STATED THAT THE PU RCHASER SMT. KIRAN DEVI WAS GRANTED OPPORTUNITY VIDE LETTER DATED 05.03.2013 TO ATTEND THE OFFICE FOR CROSS EXAMINING THE ISSUE ON 08.03.2013. THIS IS INCORRECT. THE AO VIDE LETTER DATED 05.03.2013, O NLY REQUIRED SMT. KIRAN DEVI TO ATTEND THE OFFICE OR GIVE THE WRITTEN REPLY ON 08.03.2013 WITH THE INFORMATION ABOUT THE AMOUNT FOR WHICH THE LAND IS PURCHASED FROM THE ASSESSEE AND TO GIVE THE EVIDENCE FOR THE SAME. IN REPLY, SMT. KIRAN DEVI AND GIRRAJ SING H FILED REPLY ON 08.03.2013 IN THE DAK COUNTER STATING THAT THEY HAV E PURCHASED THE LAND FROM ASSESSEE FOR RS. 20 LACS. IN THE LETTER S END BY THE AO TO SMT. KIRAN DEVI THERE IS NO DISPATCH NUMBER AND IN THE REPLY GIVEN, THE SIGNATURE OF KIRAN DEVI APPEARS TO BE FORGED AS IN THE SALE DEED SHE HAS PUT THE THUMB IMPRESSION WHEREAS IN THE REPL Y SHE HAS PUT THE SIGNATURE. ALL THIS CAST A SHADOW OF DOUBT ABOUT THE VERACITY O F LETTER DATED 05.03.2013 ISSUED BY THE AO TO SMT. KI RAN DEVI AND THE REPLY DATED 08.03.2013 STATED TO BE FILED BY HER. TH EREFORE, ONLY ON ITA701/JP/2014_ SMT. RAMWATI VS. ITO 10 THE BASIS OF THE SO CALLED LETTER FILED BY KIRAN DE VI/GIRRAJ, THE SALE CONSIDERATION OF THE PROPERTY CONSIDERED BY THE AO AT RS. 20 LACS AS AGAINST RS. 72 LACS IS INCORRECT AND CANNOT BE A BA SIS OF MAKING ADDITION OF RS. 52 LACS AS UNEXPLAINED INCOME OF TH E ASSESSEE. 5. SO FAR AS OTHER OBSERVATIONS OF THE AO ARE CONCERNE D, THE SAME ARE NOT RELEVANT IN AS MUCH AS FROM THE FACTS STATED AB OVE, IT IS ESTABLISHED THAT SMT. KIRAN DEVI HAS PAID RS. 72 LA CS AGAINST PURCHASE OF AGRICULTURAL LAND FROM THE ASSESSEE AND THE AO FOR THE REASONS BEST KNOWN TO HIM HAS NOT EXAMINED SMT. KIR AN DEVI NOR PROVIDED ANY OPPORTUNITY TO CROSS-EXAMINE HER. FURT HER, STATING THE NAME OF HUSBAND OF SMT. KIRAN DEVI AS GOPAL SINGH I NSTEAD OF SH. GIRRAJ SINGH IN THE REPLY FILED BY ASSESSEE WAS ONLY A TYPOGRAPHICAL MISTAKE. HENCE, THE REASONS GIVEN BY THE AO FOR MAK ING THE ADDITION ARE FRIVOLOUS. 6. IN THE REMAND PROCEEDINGS THE AO ISSUED SUMMONS U/S 131 TO THE ASSESSEE AND TO SMT. KIRAN DEVI. STATEMENT OF THE A SSESSEE WAS RECORDED WHERE SHE AFFIRMED THAT THE ACTUAL SALES CO NSIDERATION IS RS.72 LACS WHICH IS DEPOSITED IN HER BANK ACCOUNT. H OWEVER, SUMMONS SEND TO SMT. KIRAN DEVI IS STATED TO HAVE R ETURNED BACK WITH THE REMARK INCOMPLETE ADDRESS. NO EVIDENCES OF THE POSTAL AUTHORITIES RETURNING BACK THE SUMMONS WAS BROUGHT O N RECORD BY THE AO. FURTHER WHEN THE AO HAS THE ADDRESS OF THESE PERSONS AS MENTIONED IN THE BANK ACCOUNT AND WHEN IN COURSE OF ASSESSMENT PROCEEDINGS THE LETTER SENT TO HER HAS BEEN REPLIED BY HER, THE ITA701/JP/2014_ SMT. RAMWATI VS. ITO 11 OBSERVATION OF THE AO IN THE REMAND REPORT THAT ASS ESSEE FAILED TO PRODUCE SMT. KIRAN DEVI IS JUST TO SIDETRACK THE IS SUE KNOWING WELL THAT IN THE CIRCUMSTANCES OF THE CASE IT WAS IMPOSS IBLE FOR ASSESSEE TO PRODUCE SMT. KIRAN DEVI. SO FAR AS IDENTITY OF K IRAN DEVI IS CONCERNED THE SAME IS PROOF FROM HER PHOTO AFFIXED ON THE SALE DEED AND THE ADDRESS GIVEN THEREAT. ALL THESE SOURC E SHOWS THAT AO IN THE REMAND PROCEEDINGS HAS INTENTIONALLY NOT EXE RCISED HIS POWERS TO ENFORCE ATTENDANCE OF SMT. KIRAN DEVI NOR HE HAS BROUGHT ANY EVIDENCE ON RECORD THAT SOURCE OF DEPOSIT IN TH E BANK ACCOUNT OF THE ASSESSEE IS FROM ANY OTHER SOURCE OTHER THAN THE SALE OF THE LAND. 7. THE LD. CIT(A) HAS ALSO IGNORED ALL THE EVIDENCES FIL ED BEFORE HIM TO PROVE THAT THE SOURCE OF DEPOSIT IN THE BANK ACCOUN T IS NOTHING BUT THE SALE PROCEEDS OF THE AGRICULTURAL LAND SOLD BY THE ASSESSEE. THE IDENTITY OF THE BUYER SMT. KIRAN DEVI IS PROVED FRO M THE SALE DEED AND HER CREDITWORTHINESS AND GENUINENESS OF THE TRAN SACTION IS PROVED FROM THE BANK ACCOUNT. THE CIT(A) HAS ERRED IN HOLDING THAT ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS TO PROVE THE IDENTITY AND THE CREDITWORTHINESS OF SMT. KIRAN DEVI AND THE GENU INENESS OF THE TRANSACTION. THEREFORE, CIT(A) HAS ERRED IN CONFIRMI NG THE ADDITION BY IGNORING THE VARIOUS MATERIAL EVIDENCES FILED BE FORE HIM AND BY SOLELY RELYING ON THE REMAND REPORT OF THE AO. 8. IT IS A FACT ON RECORD THAT THE ASSESSEE IS AN ILLI TERATE LADY & HAS NO SOURCE OF INCOME OTHER THAN AGRICULTURAL INCOME. EV EN THE LOWER ITA701/JP/2014_ SMT. RAMWATI VS. ITO 12 AUTHORITIES HAVE NOT FOUND ANY OTHER SOURCE OF INCO ME IN THE HANDS OF THE ASSESSEE. HENCE, IT CANNOT BE PRESUMED THAT ASSESSEE HAS ANY UNDISCLOSED INCOME WHICH IS DEPOSITED IN THE BAN K ACCOUNT. IN THESE CIRCUMSTANCES, EVEN IF THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT IS NOT FOUND TO BE SATISFACTORY EXPLAINED, NO ADDITION CAN BE MADE IN THE PECULIAR FACTS OF THE CASE IN VIEW OF HO NBLE SUPREME COURT DECISION IN CASE OF CIT VS. P.K. NOORJEHAN 237 ITR 570. IN THIS CASE, ASSESSEE WAS A MUSLIM LADY AGED 20 YEARS. SHE MADE CERTAIN INVESTMENTS IN LAND. THE EXPLANATION OF ASSE SSEE REGARDING THE SOURCE OF THE PURCHASE MONEY FOR THESE INVESTME NTS WAS THAT THE SAME WERE FINANCED FROM OUT OF THE SAVINGS FROM THE INCOME OF THE PROPERTIES WHICH WERE LEFT BY HER MOTHERS FIRST HUSBAND. THE SAID EXPLANATION OFFERED BY THE ASSESSEE WAS REJECTE D AND ADDITION WAS MADE U/S 69. THE TRIBUNAL, HOWEVER, HELD THAT EVEN THOUGH THE EXPLANATION ABOUT THE NATURE AND SOURCES OF THE PUR CHASE MONEY WAS NOT SATISFACTORY BUT IN THE FACTS AND CIRCUMSTAN CES OF THE CASE IT WAS NOT POSSIBLE FOR THE ASSESSEE TO EARN THE AMOUNT INVESTED IN THE PROPERTIES AND THAT BY NO STRETCH OF IMAGINATIO N COULD THE ASSESSEE BE CREDITED WITH HAVING EARNED THIS INCOME IN THE COURSE OF THE ASSESSMENT YEAR OR WAS EVEN IN A POSITION TO EARN IT FOR A DECADE OR MORE. THE TRIBUNAL TOOK THE VIEW THAT ALTHOU GH THE EXPLANATION OF THE ASSESSEE WAS LIABLE TO BE REJECTE D, S. 69 OF THE ACT CONFERRED ONLY A DISCRETION ON THE ITO TO DEAL WI TH THE INVESTMENT AS INCOME OF THE ASSESSEE AND THAT IT DI D NOT MAKE IT MANDATORY ON HIS PART TO DEAL WITH THE INVESTMENT AS INCOME OF THE ASSESSEE AS SOON AS THE LATTERS EXPLANATION HAPPEN ED TO BE ITA701/JP/2014_ SMT. RAMWATI VS. ITO 13 REJECTED. ACCORDING TO THE HIGH COURT, THE TRIBUNAL HAD NOT COMMITTED ANY ERROR IN TAKING INTO ACCOUNT THE COMP LETE ABSENCE OF RESOURCES OF THE ASSESSEE AND ALSO THE FACT THAT HA VING REGARD TO HER AGE AND THE CIRCUMSTANCES IN WHICH SHE WAS PLACED SHE COULD NOT BE CREDITED WITH HAVING MADE ANY INCOME OF HER O WN AND IN THESE CIRCUMSTANCES THE TRIBUNAL WAS RIGHT IN REFUSIN G TO MAKE AN ADDITION OF THE VALUE OF THE INVESTMENTS TO THE INC OME OF THE ASSESSEE. LD. COUNSEL APPEARING FOR THE REVENUE, HA S URGED THAT THE TRIBUNAL AS WELL AS THE HIGH COURT WERE IN ERROR I N THEIR INTERPRETATION OF S. 69 OF THE ACT. IT WAS HELD BY H ONBLE SUPREME COURT AS UNDER:- WE ARE UNABLE TO AGREE. AS POINTED OUT BY THE TRIB UNAL, IN THE CORRESPONDING CLAUSE IN THE BILL WHICH WAS INTRODUC ED IN PARLIAMENT, THE WORD 'SHALL' HAD BEEN USED BUT DURING THE COURS E OF CONSIDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE, THE SAID WORD WAS SUBSTITUTED BY THE WOR D 'MAY'. THIS CLEARLY INDICATES THAT THE INTENTION OF PARLIAMENT IN ENACTING S. 69 WAS TO CONFER A DISCRETION ON THE ITO IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFACTOR ILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE ITO IS NOT OBLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOM E IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FO UND TO BE NOT SATISFACTORY. THE QUESTION WHETHER THE SOURCE OF TH E INVESTMENT SHOULD BE TREATED AS INCOME OR NOT UNDER S. 69 HAS TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF EACH CASE. IN OTHER WO RDS, A DISCRETION HAS BEEN CONFERRED ON THE ITO UNDER S. 69 OF THE AC T TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND SA TISFACTORY AND THE ITA701/JP/2014_ SMT. RAMWATI VS. ITO 14 SAID DISCRETION HAS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. IN THE INSTAN T CASE, THE TRIBUNAL HAS HELD THAT THE DISCRETION HAD NOT BEEN PROPERLY EXERCISED BY THE ITO AND THE AAC IN TAKING INTO ACC OUNT THE CIRCUMSTANCES IN WHICH THE ASSESSEE WAS PLACED AND THE TRIBUNAL HAS FOUND THAT THE SOURCES OF INVESTMENTS COULD NOT BE TREATED AS INCOME OF THE ASSESSEE. THE HIGH COURT HAS AGREED W ITH THE SAID VIEW OF THE TRIBUNAL. WE ALSO DO NOT FIND ANY ERROR IN THE SAID FINDING RECORDED BY THE TRIBUNAL. THERE IS THUS NO MERIT IN THESE APPEALS AND THE SAME ARE ACCORDINGLY DISMISSED. THE RATIO LAID DOWN IN THIS CASE IS EQUALLY APPLICABL E ON THE FACTS OF THE PRESENT CASE AND THEREFORE THE ADDITION MADE BY AO IS UNCALLED FOR AND BE DELETED. 9. THE HONBLE ITAT, JAIPUR BENCH IN CASE OF SH. RAJESH GUPTA VS. ITO IN ITA NO. 1458/JP/2010 ORDER DATED 08.04.2011 (PB 41-46) AND IN CASE OF DEEPAK SAREN VS. ITO IN ITA NO. 619/JP/2009 DATED 31.03.2010, IN SOMEWHAT SIMILAR CIRCUMSTANCES BY RELYING ON THE DECISION OF SUPREME COURT IN CASE OF CIT VS. P.K. NO ORJEHAN SUPRA AND AFTER CONSIDERING ALL THE CIRCUMSTANTIAL EVIDEN CES INCLUDING THE SOURCE OF INCOME, DELETED THE ADDITION MADE BY THE AO WHERE THERE IS DIFFERENCE IN WHAT IS WRITTEN IN THE SALE DEED AN D WHAT WAS THE ACTUAL CONSIDERATION IN RESPECT OF THE SALE OF PROP ERTIES. 10. THE LOWER AUTHORITIES HAVE MADE THE ADDITION U/S 68. SECTION 68 APPLIES WHEN ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE. IT IS A FACT ON RECORD THAT ASSESSEE DOES NOT MAINTAIN ANY ITA701/JP/2014_ SMT. RAMWATI VS. ITO 15 BOOKS OF ACCOUNT. BANK STATEMENT IS NOT BOOKS OF AC COUNT OF THE ASSESSEE AS HELD IN CASE OF CIT VS BHAICHAND H GANDH I 141 ITR 67 (BOM). IN CASE OF MS. MAYAWATI VS DCIT 19 SOT 460 (DELHI), IT WAS HELD THAT THE PASSBOOK OF BANK CANNOT BE TREATED AS BOOKS OF ACCOUNTS. AGAIN THE LUCKNOW BENCH IN CASE OF KAMAL K UMAR MISHRA VS. ITO 143 ITD 686 HELD THAT MAINTENANCE OF BOOKS O F ASSESSEE IS A CONDITION PRECEDENT FOR MAKING ADDITION U/S 68 A ND, THEREFORE, PROVISIONS OF SEC. 68 COULD NOT BE INVOKED ON THE B ASIS OF DEPOSITS MADE IN THE BANK ACCOUNT OF ASSESSEE. HENCE, THE C REDIT APPEARING IN ASSESSEE PASS BOOK/BANK STATEMENT RELEVANT TO A PARTICULAR PREVIOUS YEAR, WHERE THE ASSESSEE DOES NOT MAINTAIN BOOKS OF ACCOUNTS, WOULD NOT ATTRACT PROVISION OF SECTION 68. THEREFORE, ADDITION MADE BY LOWER AUTHORITIES U/S 68 IS LEGALLY INCORRECT. IN VIEW OF ABOVE, ADDITION OF RS. 52 LACS MADE BY AO AND CONFIRMED BY THE CIT(A) BE DELETED. 5. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. ASSESSING OFFICER AND CIT(A) AS THE ASSESSEE HAS NO T PROVED THE GENUINENESS OF THE TRANSACTION, CREDITWORTHINESS OF THE ASSESSEE AND IDENTITY OF THE PERSONS. THEREFORE, HE RIGHTLY CONFI RMED THE ADDITION. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE PRIMAR Y BURDEN TO PROVE ITA701/JP/2014_ SMT. RAMWATI VS. ITO 16 THE CASH DEPOSITED IN THE BANK ACCOUNT IS ON THE AS SESSEE, WHICH HAS NOT BEEN DISCHARGED FULLY. SHE HAS ALLOWED TIME TO P RODUCE THE PURCHASER TO EXPLAIN THE TRANSACTIONS WHETHER THEY H AVE PAID THE AMOUNT TO THE ASSESSEE OR NOT WITH EVIDENCE. HENCE S UFFICIENT TIME HAS BEEN PROVIDED BY THE ASSESSING OFFICER AT THE TIME OF REMAND REPORT EVEN THE ASSESSEE COULD NOT PRODUCE THE PURCHASER T O VERIFY THE TRANSACTION. THE CASE LAWS RELIED UPON BY THE ASSESS ING OFFICER ARE SQUARELY APPLICABLE ON THE ASSESSEE. THE CASE LAW REF ERRED BY THE LD. AR IS ON SECTION 69 OF THE ACT I.E. UNEXPLAINED INVEST MENT. THE LD. AR ALSO REFERRED THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BHAICHAND H GANDHI (SUPRA), ITAT DELHIS BENCH ORDER IN MS. MAYAWATI VS. DCIT (SUPRA) AND ITAT LUCKNOWS BENCH ORDE R IN KAMAL KUMAR MISHRA VS. ITO (SUPRA) IS ON DIFFERENT ISSUE, THEREFORE, THE CASE LAWS ARE NOT SQUARELY APPLICABLE BUT IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) TO THE ASSESSING OFFIC ER TO GIVE ONE MORE CHANCE TO THE ASSESSEE TO EXPLAIN THE SOURCE OF CAS H DEPOSITED AS THE BURDEN LIES ON HER. ACCORDINGLY, WE SET ASIDE THE OR DER OF THE CIT(A) TO THE LD ASSESSING OFFICER. ITA701/JP/2014_ SMT. RAMWATI VS. ITO 17 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 10 TH APRIL, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. RAMWATI, BHARATPUR 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 2, BHARATPUR. 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. 701/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR