ITO, Kota V. NARESH GUPTA, Kota

ITA 735/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5156 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 31-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMAADDL
• Keywords: Unexplained cash credit; Unexplained investment; Tax effect
• Section: 69

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 HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 735/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 THE ITO WARD- 2(2), KOTA CUKE VS. SHRI NARESH GUPTA CHH-4, SABARMATI COLONY, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABXPG 5076 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 743/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI NARESH GUPTA CHH-4, SABARMATI COLONY, KOTA CUKE VS. THE ITO WARD- 2(2),KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABXPG 5076 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA,ADDL.CIT - DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY:SHRI PRAKASH CHAND YADAV,ADCOCATE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30 /08/2016 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE APPEALS ARE THE CROSS APPEALS FILED AGA INST THE ORDER OF THE LD. CIT(A), KOTA FOR THE ASSESSMENT YEAR 2010-1 1. 2.0 THE REVENUE HAS RAISED SOLITARY GROUND AS UNDER :- ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 2 THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N OF RS. 17,02,450/- OUT OF TOTAL ADDITION OF RS. 23,94, 000/ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK. 3.0 THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL. (I) THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GROSSLY ERRED IN CONSIDERIN G THE AMOUNT OF RS. 6,00,000/- AS INCOME WHICH WAS RECEIV ED AS ADVANCE FOR SALE OF LAND AND LATER REFUNDED ON ACCO UNT OF CANCELLATION OF DEAL DUE TO NON-PAYMENT OF LAST INS TALMENT. (II) THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES O F THE CASE THE LD. CIT(A) GROSSLY ERRED IN CONSIDERIN G RS. 91,550/- AS OPENING CASH BALANCE AS ON 01-04-2008 I NSTEAD OF RS. 2,41,550/- IN MAKING AN ADDITION OF BALANCE RS. 1,50,000/- AS UNEXPLAINED INCOME. 4.1 FIRST OF ALL, I TAKE UP THE APPEAL OF THE REVEN UE IN ITA NO. 735/JP/2014 WHEREIN I HAVE PERUSED THE MATERIALS AV AILABLE ON RECORD AND OBSERVED THAT THE DEMAND/ TAX EFFECT IN THE REVENUE S APPEAL IN QUESTION IS BELOW RS. 10.00 LACS . UNDER THE POWERS VESTED BY SEC. 268A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUED CIRCULARNO.21 OF 2015 DATED 10.12.2015(F NO. 279/MISC. 142/2007-ITJ(PT) INSTRUC TING THE AUTHORITIES BELOW DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EX CEED RS.10 LACS. THE CIRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 4.2 SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIRE CTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 3 EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDR AWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 4.3 THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEP TIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DIS PUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY C BDT FOR THE APPEAL THE SAME IS NOT MAINTAINABLE IN VIEW OF FORE GOINGS. AC CORDINGLY THE APPEAL OF THE DEPARTMENT IS DISMISSED AS NOT PRESSED/WITHD RAWN. 5.1 NOW I TAKE UP THE APPEAL OF THE ASSESSEE WHEREI N THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL. (I) THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GROSSLY ERRED IN CONSIDERIN G THE AMOUNT OF RS. 6,00,000/- AS INCOME WHICH WAS RECEIV ED AS ADVANCE FOR SALE OF LAND AND LATER REFUNDED ON ACCO UNT OF CANCELLATION OF DEAL DUE TO NON-PAYMENT OF LAST INS TALMENT. (II) THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES O F THE CASE THE LD. CIT(A) GROSSLY ERRED IN CONSIDERIN G RS. 91,550/- AS OPENING CASH BALANCE AS ON 01-04-2008 I NSTEAD OF RS. 2,41,550/- IN MAKING AN ADDITION OF BALANCE RS. 1,50,000/- AS UNEXPLAINED INCOME. 6.1 APROPOS GROUND NO. 1 OF THE ASSESSEE WHEREIN BR IEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE RETURN OF INCO ME ON 30-07-2010 DECLARING TOTAL INCOME OF RS. 7,61,640/-.THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ON 2-06-2011 AND THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS. ACCORDINGLY, THE NOTICES U /S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE ALONGWITH QUESTIONNAIRE SEEKING DETAILS BY THE ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 4 AO. IN RESPONSE TO NOTICE, THE LD. AR OF THE ASSESS EE ATTENDED THE ASSESSMENT PROCEEDINGS AND PRODUCED THE RELEVANT RE CORDS / DETAILS WHICH WERE EXAMINED ON TEST CHECK BASIS BY THE AO. THE AO DURING ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE DERIVED INCO ME FROM SALARY OF RS. 3,60,000/- FROM M/S. SHIV JYOTI SR. SECONDARY S CHOOL, RENTAL INCOME OF RS. 3,26,124/- AND CAR HIRING INCOME UNDER THE H EAD INCOME FROM OTHER SOURCES OF RS. 1,74,580/-. THE AO OBSERVED THAT AS PER INFORMATION AVAILABLE WITH THE DEPARTMENT DURING THE YEAR, THE ASSESSEE HAD MADE CASH DEPOSIT OF RS. 18,00,000/- IN THE SAVING BANK ACCOUNT FOR WHICH THE ASSESSEE WAS ASKED BY THE AO VIDE ORDER SHEET ENTRY DATED 3-10-2012 TO FURNISH EXPLANATION OF CASH DEPOSIT OF RS. 18.00 LA CS MADE IN THE BANK ACCOUNT. IN RESPONSE THERETO, THE ASSESSEE VIDE LET TER DATED 22-10-2012 FILED FOLLOWING REPLY. A) ALL THE CASH DEPOSITS AND CASH WITHDRAWALS ARE FROM OBC BANK, INDIAN BANK A/C NO.5522 AND ANOTHER INDIA N BANK A/C NO.0243. ALSO THE AMOUNT OF CASH WITHDRAWN AND DEPOSITED IN BANK HAS NOT MUCH DIFFERENCE. THIS IS BECAUSE, THE ASSESSEE WAS WILLING TO PURCHASE A PROPERTY DUR ING THE YEAR. CASH WAS WITHDRAWN FROM THE BANK IN ANTICIPAT ION OF ANY DEAL FOR THE SAME BUT HAVING NO SUCH DEAL, IT W AS AGAINST DEPOSITED INTO BANK. THE COPY OF AGREEMENT IS ATTAC HED HEREWITH IN ANNEXURE -1B. B) THE ASSESSEE HAS RECEIVED ADVANCE OF RS. 6,00,00 0/- AGAINST LAND AT BORABAS. ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 5 THE AO ON 22-10-2012 FURTHER ASKED THE ASSESSEE TO FURNISH CASH BOOK FOR THE PERIOD 1-04-2009 TO 31-03-2010. IN RESPONSE THERETO, ON 6-11-2012, THE ASSESSEE FILED THE COPY OF CASH BOOK FOR F.Y. 2008-09 AND 2009-10. THE AO PERUSED REPLY FILED BY THE ASSESSE E WITH CASH BOOK PRODUCED AND NOTICED THAT THE ASSESSEE HAD MADE AN AGREEMENT TO SHRI RANGLAL FOR SALE OF AGRICULTURAL LAND AMOUNTING TO RS. 38.00 LACS FOR WHICH RS. 6.00 LACS WERE RECEIVED AS ADVANCE AND TH E SAME WAS DEPOSITED ON 6-1-2010 IN CASH IN THE BANK ACCOUNT BY THE ASSE SSEE. THE AO VIDE ORDER SHEET ENTRY DATED 6-11-2012 FURTHER RAISED FO LLOWING QUERY FROM THE ASSESSEE. WHETHER THE ABOVE TRANSACTION CONVERTED INTO SALE . IF YES, FURNISH COPY OF SALE DEED. IF THE ANSWER IS NEGATIVE, THEN PRODUCE SHRI RANGLA L FOR VERIFICATION. THE AO THEN ISSUED SHOW CAUSE LETTER DATED 3-12-201 2 TO THE ASSESSEE FOR FURNISHING EXPLANATION, THE RELEVANT PORTION OF WHI CH IS AS UNDER:- 16. NEITHER, YOU HAVE PRODUCE SALE AGREEMENT OF TRANSACTION NOR SHRI RANGLAL FROM WHOM YOU HAVE REC EIVED RS. 6.00 LACS FOR VERIFICATION I.E. SOURCE OF CASH DEPOSITS, IT WILL BE PRESUMED THAT THE ABOVE CASH DEPOSIT OF RS. 6.00 LACS MADE BY YOU IN THE BAN IS YOUR UNDISCLOSED INCOME. PLEASE FURNISH EXPLANATION AS TO WHY THE SAME SHOULD NOT B E ADDED IN YOUR TOTAL INCOME U/S 69 OF THE I.T. ACT, 1961. IN NUT SHELL, THE AO OBSERVED THAT SHRI RANGLAL COU LD NOT EXPLAIN THE SOURCE OF ADVANCE OF RS.6.00 LACS AND HE DID NOT FU RNISH THE COPY OF THE ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 6 BANK STATEMENT. THE ASSESSEE ALSO HAS FAILED TO PRO VE THE CAPACITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S OF THE CREDITOR WITH WHOM THE ADVANCE OF RS. 6.00 LACS WAS TAKEN BY THE ASSESSEE. THUS THE AO OBSERVED THAT THE ASSESSEE HAD INTRODUCED A SUM OF RS. 6.00 LACS OUT OF HIS UNEXPLAINED INCOME IN THE GARB OF INVESTMENT IN SAVING BANK ACCOUNT WHICH WAS STATED TO BE RECEIVED FROM SHRI R ANGLAL AGAINST ADVANCE OF PROPERTY. THE CREDITWORTHINESS OF SHRI R ANGLAL WAS NOT PROVED. THE AO CONSIDERING THE TRANSACTIONS OF OTHE R AMOUNTS AS MENTIONED IN THE ASSESSMENT ORDER HELD THAT THE SUM OF RS. 23,94,000/- WAS DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT A S HIS UNACCOUNTED / UNEXPLAINED INCOME AND ADDED THE SAME TO THE INCOM E OF THE ASSESSEE U/S 69 OF THE ACT. 6.2 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION OF RS. 6.00 L ACS BY OBSERVING AS UNDER:- I HAVE GONE THROUGH ASSESSEE'S SUBMISSION AND AO FINDINGS. IT WAS SEEN THAT THE TOTAL AMOUNT DEPOSITED IN BANK CAN BE DIVIDED INTO TWO PARTS:- (I) RS. 1,94,000/- DEPOSITED IN ACCOUNT NO. 72984 55222 (II) RS. 22.00 LACS DEPOSITED IN ACCOUNT NO. 87061 0243 & 089620010001050. THE AMOUNT OF RS. 22.00 LCS CAN BE FURTHER DIVIDE D INTO TWO PARTS:- (I) RS. 6,00,000/- CLAIMED TO HAVE BEEN DEPOSITED O UT OF RECEIPT FROM SHRI RANG LAL. ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 7 (II) BALANCE RS. 16.00 LACS CLAIMED TO HAVE BEEN DE POSITED FROM EARLIER WITHDRAWALS AND OPENING BALANCE. RS.6,00,000/- CLAIMED TO HAVE BEEN RECEIVED FROM SHRI RANG LAL IT WAS SEEN THAT INITIALLY ASSESSEE VOLUNTARILY SUR RENDERED THIS AMOUNT OF RS. 6,00,000/-. LATER ON, THE ASSESSEE RETRACTED AND CLAIMED THAT R S. 6,00,000/- WERE RECEIVED FROM SHRI RANG LAL AS ADVANCE AGAINST SALE OF LAND. THE ENTIRE PAYMENT OF RS. 22,00,000/- (RS. 16,00,00 0/- RECEIVED BY ASSESSEE'S BROTHER, SHRI MAHESH GUPTA) WAS CLAIMED TO HAVE BEEN RECEIVED IN CASH. IN THE STATEMENT OF SHRI RANG LAL, HE STATED THAT R S. 22.00 LACS WERE LYING AT HOME. HE ALSO STATED THAT THIS AMOUNT WAS OUT OF HIS SAVINGS (RS. 6.1 LACS) AND BALANCE AMOUNT WAS RECEI VED FROM WIFE, BROTHER, BROTHERS WIFE, FATHER, SON AND UNCLES SO N. SHRI RANG LAL IS A SMALL FARMER WHO LIVES IN A JOI NT FAMILY OF THREE BROTHERS. THE SOURCE OF EARNING WAS FROM AGRI CULTURE LAND (15 BIGHAS) AND SALE OF MILK. THE TOTAL INCOME OF HIS F AMILY WAS STATED TO BE RS. 3.00 TO 3.50 LACS PER ANNUM. SHRI RANG LAL AND HIS BROTHERS HAD BANK ACCOUNT, HO WEVER, NONE OF THE TRANSACTION WAS ROUTED THROUGH BANK ACC OUNT. THE ASSESSEE CLAIMED THAT ADVANCE OF RS. 6.00 LACS RECEIVED FROM SHRI RANG LAL WAS RETURNED IN JULY 2010 AFTER MUTUAL SET TLEMENT. ASSESSEE'S BROTHER SHRI MAHESH GUPTA CLAIMED THAT ADVANCE OF R S. 16.00 LACS RECEIVED FROM SHRI RANG LAL WAS RETURNED IN JULY 20 10 AFTER FORFEITURE OF RS. 2.00 LACS (AS PER ASSESSEE'S REPLY DATED 16- 01-2013 AND HIS BROTHER REPLY DATED 16-01-2013 BEFORE AO. THIS MEAN T THAT THERE SHOULD BE NO OUTSTANDING AMOUNT IN THE BALANCE SHEE T IN THE NAME OF SHRI RANG LAL. HOWEVER, IN THE BALANCE SHEET OF SHR I MAHESH GUPTA AS ON 31-03-2011 ON THE LIABILITY SIDE, NAME OF SHRI R ANG LAL JI APPEAR WITH A FIGURE OF RS. 16.00 LACS. CONSIDERING THE ABOVE, I AM OF THE OPINION THAT THE CREDITWORTHINESS OF SHRI RANG LAL WAS NOT PROVED. I AM ALSO OF THE OPINION THAT THE GENUINENESS OF THE TRANSACTION ALS O REMAINED DOUBTFUL. THEREFORE, ADDITION OF RS. 6.00 LACS WAS JUSTIFIED ON THIS COUNT. ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 8 6.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE PRAYED FOR DELETION OF ADDITION OF RS. 6.00 LACS FOR WHICH THE LD. AR O F THE ASSESSEE SUBMITTED HIS MAIN SUBMISSION AS UNDER:- 19. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO OR BY THE LD. CIT(A) TO DISLODGE THE DOCUMENTARY EVIDE NCES FILED BY THE ASSESSEE VIS-A-VIS TRANSASCTION OF PRO POSED SALE OF LAND AT BORABASS WITH SHRI RANGLAL (PAGE 14-15 O F APB) 20. IT IS PERTINENT TO MENTION HERE THAT ON 7-03-2 013 SHRI RANGLAL HAD APPEARED BEFORE THE AO AND HAS CONFIRME D THAT HE HAS ENTERED INTO A LAND DEAL OF 9 BIGHA WITH ASS ESSEE AND HIS BROTHER. THE TOTAL CONSIDERATION WAS RS. 38 LAK H AND HE HAD ADVANCED AN AMOUNT OF RS. 6 LAKHS (PAGE 17-18 O F APB). 21. IT IS SUBMITTED THAT A PERUSAL OF THE STATEMENT OF SHRI RANGLAL THAT HE HAS DULY CONFIRMED THE ADVANCEMENT OF MONEY AND FORFEITURE OF RS. 2 LAKHS. HOWEVER, FOR T HE REASONS BEST KNOWN TO THE AO THE AO HAS DISCARDED T HE STATEMENT AND HAS ADDED THE ENTIRE CASH DEPOSITED A S UNEXPLAINED CASH CREDIT TO THE INCOME OF THE ASSESS EE. 22. IT IS PERTINENT TO MENTION HERE THAT THE ASSESS EE HAS RETURNED THE ENTIRE AMOUNT OF RS. 6.00 LACS TO RANG LAL IN CASH IN JULY 2010 (PAGE 59 OF APB) WHICH IS THE SUBMISSI ON OF THE ASSESSEE BEFORE AO DATED 16-01-2013. THIS FACT IS ALSO NOTED BY THE AO IN ASSESSMENT ORDER. HOWEVER, NO AD VERSE INFERENCE HAS BEEN DRAWN AGAINST THE ASSESSEE IN NE XT ASSESSMENT YEAR AS NO ADDITION UNDER ANY SECTION, A LLEGING UNEXPLAINED INVESTMENT EVER BEEN MADE. 23. IT IS SUBMITTED THAT SO FAR AS THE PRESENT ASS ESSEE IS CONCERNED, THE ASSESSEE DULY DISCHARGED HIS BURDEN. THE CREDITOR HAS ALSO APPEARED BEFORE THE AO AND HAS CO NFIRMED THE TRANSACTION. THEREFORE, IN VIEW OF THE SETTLED POSITION OF LAW NO ADDITION CAN BE MADE IN THE HANDS OF ASSESSE E IF THE SOURCE FURTHER FAILED TO EXPLAIN HIS SOURCE. IN OTH ER WORDS, THE AO IS NOT PERMITTED TO EXAMINE THE SOURCE OF SO URCE, ONCE THE CREDITOR APPEARED AND CONFIRMED THE ADVANC EMENT ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 9 OF MONEY. RELIANCE CAN BE PLACED ON THE FOLLOWING JUDGEMENTS. (A) CIT VS. DIAMOND PRODUCTS LTD. (2009) 21 DTR 9 (DEL.) (B) CIT VS. NAMI CHAND KOTHARI, 264 ITR 254 (GAU.) CIT VS. SHIV DHOTI PEARLS & INVESTMENTS LTD. (2015) 99 CCH 0171 (DEL.HC) 24. IT IS NEXT SUBMITTED THAT IN THE CASE OF SHEO N ARAIN DULI CHAND REPORTED IN 72 ITR 766 (ALL.) HON'BLE A LLAHABAD HIGH COURT HELD THAT THERE IS NO PRESUMPTION THAT A WITNESS APPEARING FOR AN ASSESSEE COME FORWARD TO GIVE FALS E EVIDENCE TO OBLIGE AN ASSESSEE. 25. IT IS SUBMITTED THAT AO AND LD. CIT(A) HAVE ERR ED IN RELYING ON THE OFFER OF SURRENDER MADE BY THE ASSES SEE FOR THE AMOUNT OF RS. 6.00 LACS. SINCE IT IS SETTLED POSITI ON OF LAW THAT THERE IS NO ESTOPPEL AGAINST THE STATUTE AND IF AN INCOME IS NOT TAXABLE WITHIN FOUR CORNERS OF INCOME TAX LA W, THE SAME CANNOT BE TAXABLE MERELY BECAUSE THE ASSESSEE HAS OFFERED THE SAME UNDER MISCONCEPTION OF LAW. 26. A REFERENCE IN THIS REGARD CAN BE MADE TO THE JUDGEMENT OF HON'BLE APEX COURT IN THE CASE OF CI T VS. V.MR.P.FIR REPORTED IN 56 ITR 67 (SC) WHEREIN THEIR LORDSHIPS OF THE SUPREME COURT HAVE OBSERVED AS UND ER:- THE DOCTRINE OF APPROBATE AND REPROBATE IS ONLY A SPECIES OF ESTOPPEL; IT APPLI ES ONLY TO THE CONDUCT OF PARTIES. AS IN THE CASE OF ESTOPPEL, IT CANNOT OPERATE AGAINST THE PROVISION O F A STATUTE. IF A PARTICULAR INCOME IS NOT TAXABLE UNDE R THE I.T. ACT ,IT CANNOT BE TAXED ON THE BASIS OF ESTOPP EL OR ANY OTHER EQUITABLE DOCTRINE. EQUITY IS OUT OF PLAC E TO TAX LAW; A PARTICULAR INCOME IS EITHER ELIGIBLE TO TAX DEDUCT THE TAXING STATUTE OR IT IS NOT. IF IT IS NO T, THE ITO HAS NO POWER TO IMPOSE TAX ON THE SAID INCOME. (A) MAYANK PODDAR VS. CWT , 262 ITR 633 (CAL.) ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 10 (B) CIT VS. BHARAT GENERAL INSURANCE , 81 ITR 303 (DEL.) SONIA MAGGU VS. CIT, 186 TAXMAN 402 (DEL.) 6.4 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 6.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE AO MAD E AN ADDITION OF RS. 23,94,000/- AS MENTIONED IN THE ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE BECAUSE OF NON-FURNISHING THE DETAILS OF T HE AMOUNTS DEPOSITED IN THE BANKS AND THE SAME WAS TREATED AS UNEXPLAINED I NCOME OF THE ASSESSEE. IN APPEAL, THE LD. CIT(A) OBSERVED THAT T HE ASSESSEE HAD FAILED TO EXPLAIN THE SOURCE OF RS. 6,91,550/- WHICH INCLUDED RS. 6.00 LACS CLAIMED TO HAVE BEEN RECEIVED FROM SHRI RANG LAL AND RS. 91 ,550/- TREATED AS UNEXPLAINED OUT OF OPENING CASH BALANCE OF RS. 2,41 ,550/-. IT IS NOTED FURTHER THAT THIS GROUND OF APPEAL RELATES TO CONF IRMATION OF ADDITION OF RS. 6.00 LACS BY THE LD. CIT(A) AS THE AO HAD TAK EN INTO CONSIDERATION THE AMOUNT OF RS. 6.00 LACS AS UNEXPLAINED INCOME O F THE ASSESSEE IN THE GARB OF INVESTMENT. FROM THE RECORDS, IT IS OBSERVE D THAT SHRI RANGLAL APPEARED BEFORE THE AO AND CONFIRMED THAT HE HAD EN TERED INTO A LAND DEAL OF 9 BIGHA WITH THE ASSESSEE AND HIS BROTHER. THE TOTAL CONSIDERATION WAS TO THE TUNE OF RS. 38 LACS FOR WHICH SHRI RANGL AL HAD ADVANCED AN AMOUNT OF RS. 6 LACS AS PER PAGES 17 AND 18 OF THE ASSESSEE'S PAPER BOOK. IT IS ALSO NOTED THAT THE ASSESSEE HAD RETURNED TH E AMOUNT OF RS. 6.00 LACS ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 11 TO SHRI RANGLAL IN CASH IN JULY, 2010 (PAGE 59 OF A PB) AND THIS FACT WAS NOTED BY THE AO IN THE ASSESSMENT ORDER. IT IS ALSO OBSERVED FROM THE STATEMENT OF SHRI RANGLAL THAT A SUM OF RS. 2.00 LA CS WAS NOT PAID BY THE ASSESSEE. THE ASSESSEE SUBMITTED THAT THE SUM OF RS . 2.00 LACS WAS FORFEITED BECAUSE OF NOT COMPLYING WITH THE TERMS O F AGREEMENT FOR PURCHASE OF LAND FROM THE ASSESSEE. CONSIDERING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE CASE LAWS REL IED UPON BY THE ASSESSEE (SUPRA), THE ADDITION CONFIRMED BY THE LD. CIT(A) IS DIRECTED TO BE DELETED. THUS GROUND NO. 1 OF THE ASSESSEE IS AL LOWED. 7.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, IT IS NOT ED THAT THE LD. CIT(A) HAS CONFIRMED THE ADDITION OF RS. 91,550/- B Y OBSERVING AS UNDER:- OPENING CASH BALANCE IT WAS SEEN THAT ASSESSEE HAS CLAIMED OPENING CASH BALANCE OF RS. 2,41,550/- AS ON 01-04-2008. THE ASSESSEE CLAIM ED THAT OPENING CASH BALANCE AS ON 01-04-2009 WAS RS. 1,65,750/-. T HE ASSESSEE SUBMITTED A CASH FLOW STATEMENT FROM 01-04-2008 TO 31-03-2010 SHOWING VARIOUS DRAWINGS, SAVINGS AND INCOME. THE CLAIM OF OPENING BALANCE AS ON 01-04-2008, WAS NOT SUPPORTED BY ANY EVIDENCE EXCEPT ASSESSEE'S CLAIM T HAT IT WAS FILING INCOME TAX RETURN SINCE 1995-96 AND IN A.Y. 2009-10 , IT HAS BEEN DECLARED INCOME OF RS. 5,62,450/-. IN THE A.Y. 2010-11, ASSESSEE HAS SHOWN INCOME OF R S. 13,92,000/- AND CLAIMED EXPENSES OF RS. 14,06,000/- WHICH SHOWS THAT THE ASSESSEE HAD PRACTICALLY NO SAVING DURING THE Y EAR. ASSESSEE HAD PERSONAL BORROWINGS ON WHICH HE WAS PA YING INTEREST. THE ASSESSEE HAS ALSO TAKEN HUGE LOAN FRO M BANKS ON WHICH ALSO HE WAS PAYING INTEREST. IT IS DIFFICULT TO BEL IEVE THAT A PERSON HAVING HUGE CASH BALANCE WOULD BORROW MONEY ON INTE REST. ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 12 CONSIDERING THE ABOVE, I AM OF THE OPINION THAT OPE NING CASH BALANCE AS ON 01-04-2008 CAN BE AT BEST TAKEN AT RS . 1.5 LACS. THIS WOULD RESULT IN AN ADDITION OF RS. 91,550/- (2,41,550-1,50,000) 7.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE LD. CIT(A) HAD WRONGLY CONFIRMED THE ADDITION O F RS. 91,550/- FOR WHICH THE LD. AR FILED THE FOLLOWING SUBMISSIONS. 27. IN RESPECT OF THE ADDITION OF RS. 91,550/- IT IS SUBMITTED THAT THE LD. CIT(A) HAS EXCEEDED HIS JURI SDICTION IN CHANGING THE OPENING BALANCE OF PREVIOUS ASSESSMENT YEAR. IT IS SUBMITTED THAT THE LD. CIT(A) HAS ARBITRARILY CHANG ED THE PREVIOUS YEAR OPENING BALANCE WITHOUT ANY BASIS. IT IS SUBMI TTED THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT CLOSING BALANC E OF 31-03-2008 WOULD BECOME THE OPENING BALANCE OF 01-04-2008 AND WITHOUT ANY BASIS THE LD. CIT(A) COULD NOT ALTER THE OPENING BA LANCE OF 01-04- 2008, PARTICULARLY WHEN THAT YEAR IS NOT IMPUGNED B Y THE AO AND THE SAME WAS NOT BEFORE THE LD. CIT(A). 7.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 7.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE ANY EVIDENCE BEFORE THE LD. CIT(A) AS TO THE CLAIM OF OPENING BALANCE AS ON 01-04-2008. THE ASSESSEE SUBMITTED BE FORE THE LD. CIT(A) THAT HE HAS BEEN FILING THE INCOME TAX RETURN SINCE 1995-96 AND IN A.Y. 2009-10, THE ASSESSEE HAD DECLARED INCOME OF RS. 5, 62,450/-. THE LD. CIT(A) CONCLUSIVELY OBSERVED THAT THE ASSESSEE HAD PERSONAL BORROWINGS ON WHICH THE ASSESSEE WAS PAYING INTEREST. THE ASSE SSEE HAD TAKEN HUGE LOANS FROM BANKS ON WHICH THE ASSESSEE WAS ALSO PAY ING INTEREST AND IT IS ITA NO. 735/2014 THE ITO, WARD- 2(2), KOTA VS. SHRI NARESH GUPTA, KO TA 13 DIFFICULT FOR HIM TO BELIEVE THAT A PERSON HAVING H UGE CASH BALANCE WOULD BORROW MONEY ON INTEREST. IN THIS VIEW OF THE MATTE R, I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY SUSTAIN ED THE ADDITION OF RS. 91,550/-. THUS GROUND NO. 2 OF THE ASSESSEE IS DISM ISSED. 8.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AND THAT OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/ 082016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 /08/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 2 (2), KOTA 2. IZR;FKHZ@ THE RESPONDENT- SHRI NARESH GUPTA, KOTA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 735/JP/2014 VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR