Shri Tejraj Simlot C/o- Maharwal & Associates, B-23, 24, City Center Sansar Chandra Road, Jaipur, Jaipur V. ITO Ward-4(5), Jaipur, Ward-4(5), Jaipur

ITA 726/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7357 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA; RAJENDRA SINGH
• Keywords: Gift; Onus to prove
• Section: 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 726/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI TEJRAJ SIMLOT, SHASTRI NAGAR, SHYAM MARG, C-96, JAIPUR. CUKE VS. THE ITO, WARD-4(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BQDPS 5929 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SMT. SUHANI MAHARWAL (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (JCIT) & SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/07/2019 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 26/07/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 22.03.2019 OF THE LD. CIT(A)-2, JAIPUR FOR THE ASSE SSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED SOLITARY GROUND OF APPEAL A S UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD.AO ERRED IN TREATING THE CASH DEPOSIT IN SAVING BANK ACCOUNT AS UNEXPLAINED MONEY U/S 69A AND ACCORDINGLY ERRED IN ADDING 18910 0/- AS AN ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 2 INCOME OF ASSESSEE HOWEVER LD. CIT(A) REDUCED THE A DDITION TO RS. 171000/- WHICH IS ILLEGAL, UNJUSTIFIED AND LIABLE T O BE QUASHED. 2. THE ASSESSEE IS AN INDIVIDUAL AND DID NOT FILE ANY RETURN OF INCOME U/S 139 OF THE ACT. THE ASSESSING OFFICER RECEIVED AIR INFORMATION SHOWING DEPOSIT OF CASH IN THE BANK ACCOUNT OF RS. 2,47,490/- APART FROM THE COMMISSION INCOME RECEIVED DURING THE YEAR OF R S. 27,490/-. THE AO ACCORDINGLY REOPENED THE ASSESSMENT BY ISSUING NOTI CE U/S 148 ON 29.03.2017. IN RESPONSE TO THE NOTICE U/S 148 OF TH E ACT THE ASSESSEE FILED HIS RETURN OF INCOME ON 24.06.2017 DECLARING TOTAL INCOME OF RS. 1,59,900/-. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE AO NOTED THAT THERE IS CASH DEPOSIT IN THE BANK ACCOUNT OF T HE ASSESSEE OF RS. 2,30,000/- ON 29.06.2009. THE AO ASKED THE ASSESSEE TO FILE THE COMPLETE DETAILS OF THE CASH DEPOSIT WITH SUPPORTING EVIDENC E. IN RESPONSE, THE ASSESSEE FILED ONLY CASH ACCOUNT SHOWING OPENING B ALANCE. THE AO WAS NOT SATISFIED WITH THIS EXPLANATION THAT THE SOURCE OF DEPOSIT IS ONLY FROM OPENING BALANCE OF CASH IN THE HAND OF THE ASSESSEE . THE ASSESSEE FURTHER SUBMITTED A LETTER DATED 14.08.2017 AND EXPLAINED T HE SOURCE OF DEPOSIT AS OPENING BALANCE OF RS. 1,31,400/- AND WITHDRAWAL FROM THE BANK. IN SUPPORT OF THE OPENING BALANCE THE ASSESSEE HAS ALS O CLAIMED THE SAVING DURING THE YEAR FROM THE MONTH OF APRIL TO JUNE, 20 09 AND MISCELLANEOUS ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 3 GIFT RECEIVED FROM VARIOUS FRIENDS AND RELATIVES TO THE EXTENT OF RS. 31,000/- AS WELL AS LOAN TAKEN FROM THE FAMILY MEMB ER OF RS. 33,000/-. THE AO ACCEPTED THE SAVING DURING THE YEAR OF RS. 4 0,900/- AND THE BALANCE AMOUNT OF RS. 1,89,100/- WAS TREATED AS UNE XPLAINED MONEY U/S 69A OF THE I.T. ACT. THE ASSESSEE CHALLENGED THE AC TION OF THE AO BEFORE THE LD. CIT(A) AND REITERATED HIS CONTENTION OF OPE NING BALANCE, GIFT RECEIVED AS WELL AS LOAN TAKEN FROM THE FAMILY MEMB ER. THE LD. CIT(A) ACCEPTED THE LOAN OF RS. 18,000/- TAKEN FROM SHRI L OKRAJ SIMLOT BROTHER OF THE ASSESSEE AND GRANTED RELIEF TO THAT EXTENT. THU S, THE BALANCE ADDITION OF RS. 1,71,000/- WAS CONFIRMED BY THE LD. CIT(A). 3. BEFORE US THE TRIBUNAL THE LD. AR OF THE ASSESSE E HAS SUBMITTED THAT THE ASSESSEE HAS FILED THE CASH FLOW STATEMENT BEFO RE THE AO TO SHOW THE OPENING BALANCE OF CASH IN THE HAND OF THE ASSESSEE OF RS. 1,31,400/-. FURTHER, THE ASSESSEE FILED THE CONFIRMATION AND DE CLARATION REGARDING THE GIFT RECEIPT FROM VARIOUS PERSONS TOTAL AMOUNTING T O RS. 31,000/-. THE LD. CIT(A) HAS ACCEPTED THE LOAN TAKEN FROM THE BROTHER HOWEVER, THE LOAN OF RS. 15,000/- TAKEN FROM THE WIFE WAS NOT ACCEPTED D ESPITE THE ASSESSEE HAS FILED CONFIRMATION AS WELL AS AFFIDAVIT IN SUPP ORT OF THE CLAIM. THUS, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT WHEN THE ASSESSEE HAS DISCHARGED ITS ONUS TO PROVE IDENTITY AND CREDITWOR THINESS OF THE LOAN ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 4 CREDITOR AS WELL AS DONOR AND ALSO PROVE THE GENUI NENESS BY FILING THEIR CONFIRMATION AS WELL AS AFFIDAVITS THEN, THE ADDIT ION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS NOT JUSTIFIED. SHE H AS RELIED UPON THE HONBLE DELHI HIGH COURT IN CASE OF CIT VS. MAYAWATI 338 I TR 563. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT EXCEPT A CASH FLOW STATEMENT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENC E TO ESTABLISH THE OPENING CASH IN HIS HAND AS CLAIMED BY THE ASSESSEE . FURTHER, THE ASSESSEE HAS SHOWN LOAN AS WELL AS GIFT FROM VARIOU S PERSONS HOWEVER, IN THE ABSENCE OF ANY PROOF OF INCOME OF DONOR AS WEL L AS THE LOAN CREDITOR THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED. HE HA S RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD IT IS NOTED THAT IN SUPPORT OF T HE SOURCE OF DEPOSIT MADE IN THE BANK ACCOUNT TO THE EXTENT OF RS. 1,31,000/- AS SUSTAINED BY THE LD. CIT(A) THE ASSESSEE EXPLAINED THAT HE HAS RECEIVED GIFT OF RS. 31,000/- FROM 7 PERSONS ON THE OCCASION OF MARRIAGE ANNIVER SARY OF THE ASSESSEE. THE IDENTITY OF THOSE DONORS IS NOT IN DISPUTE AS A SSESSEE FILED THE DECLARATION OF GIFT AS WELL AS THEIR IDENTITY PROOF . THE DETAILS OF THE GIFT RECEIVED BY THE ASSESSEE FROM 7 PERSONS ARE AS UNDE R:- ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 5 SR.NO. NAME AMOUNT 1. MAHENDRA SHEKHAR BHIWANI 5000 2. GIRRAJ SHANKER 5000 3. GEETA BHIWANI 5000 4. YOGESHWARI MATHUR 4000 5. MADHUBALA MATHUR 4000 6. SANTOSH MATHUR 4000 7. GIRRAJ SIMLOT 4000 TOTAL 31,000/- FROM THE DETAILS OF THE GIFT IT IS CLEAR THAT VERY SMALL AND PETTY AMOUNT ARE CLAIMED TO HAVE BEEN RECEIVED ON THE OCCASION OF MA RRIAGE ANNIVERSARY WHICH IS NOT UNUSUAL ON SUCH OCCASION. FURTHER, WHE N THE ASSESSEE HAS PRODUCED THE DECLARATION OF THESE 7 PERSONS CONFIRM ING THE GIFT TO THE ASSESSEE ON THE MARRIAGE ANNIVERSARY AS WELL AS THE ASSESSEE WAS ALSO READY TO PRODUCE THESE PERSONS FOR VERIFICATION OF THE AO THEN THE ASSESSEE WAS DISCHARGED ITS ONUS TO PROVE THE IDENT ITY AND CREDITWORTHINESS OF THE DONORS AS WELL AS GENUINENE SS OF THE TRANSACTIONS. IN THE ABSENCE OF ANY CONTRARY FINDING OR MATERIAL TO SO THAT THESE PERSONS ARE NOT HAVING THE MEANS TO GIVE THE GIFT OF SUCH A MOUNTS THE CLAIM OF THE ASSESSEE CANNOT BE REJECTED. ACCORDINGLY, IN THE FA CTS AND CIRCUMSTANCES ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 6 OF THE CASE WHEN THE ASSESSEE WAS READY TO PRODUCE THESE PERSONS FOR EXAMINATION OF THE AO THE ADDITION TO THE EXTENT OF RS. 31,000/- IS NOT SUSTAINABLE. 5.1 AS REGARDS LOAN AMOUNT OF RS. 15,000/- CLAIMED TO HAVE BEEN RECEIVED FROM WIFE ONCE THE CONFIRMATION AND AFFIDA VITS OF THE WIFE WAS FILED THEN HAVING REGARD TO THE QUANTUM OF LOAN OF RS. 15,000/- THE CREDITWORTHINESS OF THE WIFE CANNOT BE DISPUTED AS THE SAVING TO THE EXTENT OF SUCH SMALL MONEY IS NOT UNUSUAL. THEREFORE, IN V IEW OF THE FACT THAT THE ASSESSEE HAS PRODUCED CONFIRMATION AND ALSO OFFERED TO PRODUCE HIS WIFE FOR ENQUIRY AND EXAMINATION THE REJECTION OF THE CL AIM IS NOT JUSTIFIABLE WITHOUT ANY CONTRARY FACT OR MATERIAL. ACCORDINGLY, THE ADDITION TO THE EXTENT OF RS. 15,000/- SUSTAINED BY THE LD. CIT(A) IS DELETED. 5.2 AS REGARDS THE OPENING BALANCE CLAIMED BY THE A SSESSEE IT IS NOTED THAT SINCE THE CASH BALANCE IS NOT SUPPORTED BY ANY EVIDENCE WHICH CAN BE INDEPENDENTLY VERIFIED BUT THE ASSESSEE HAS CLAIMED THAT THERE WAS WITHDRAWAL FROM THE BANK IN THE EARLIER YEARS TO TH E EXTENT OF RS. 1,31,400/-. THE CLAIM OF THE ASSESSEE CANNOT BE ACC EPTED AS THE WITHDRAWAL WAS NOT IN THE RECENT PAST BUT THERE WAS A GAP OF 1-2 YEARS IN SOME OF THE WITHDRAWAL WHICH CANNOT BE ACCEPTED AS AVAILABLE WITH THE ITA 726/JP/19 SHRI TEJRAJ SIMLOT VS. ITO 7 ASSESSEE DURING THE YEAR. ACCORDINGLY, THE SAID CL AIM OF OPENING BALANCE IN THE ABSENCE OF VERIFIABLE DOCUMENTARY EVIDENCE C ANNOT BE ACCEPTED. 5.3 HENCE THE ADDITION OF RS. 46,000/- IS DELETED AND BALANCE IS CONFIRMED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/07/2019. SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL; @ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26 /07/2019 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI TEJRAJ SIMLOT, JAIPUR. 2. IZR;FKH @ THE RESPONDENT- THE ITO, WARD-4(5), 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. 726/JP/19) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR