RAM LAL BAIRWA, Jaipur V. ITO, Dausa

ITA 744/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4939 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 31-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA DHK
• Assessee Lawyers: F REHMAN
• Keywords: Unexplained cash credit; Depreciation; Peak credit; Additional evidence; Corroborative evidences; Onus to prove
• Section: 68

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. 744/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 SHRI RAM LAL BAIRWA PROP. M/S. GOTHWAL SERVICE CENTRE AGRA ROAD, DAUSA CUKE VS. THE ITO WARD - DAUSA DAUSA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ACGPB 4052 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI F. REHMAN, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SHRI R.A. VERMA, ADDL.CIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 18 /11/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 12-08-2014 FOR THE ASSESS MENT YEAR 2004-05 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 7.00 LACS MADE U/S 68 OF THE ACT ON ACCOUNT OF CREDITS IN THE IMP REST ACCOUNT. ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 2 2. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS.2.50 L ACS MADE ON ACCOUNT OF UNEXPLAINED CAPITAL INTRODUCED. 3. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF RS.D1 1,735/- MADE ON ACCOUNT OF LOSS CLAIMED BY THEFT/ ROBBERY. 4. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF THE F OLLOWING EXPENSES. S.N. HEAD OF EXPENSES EXPENSES CLAIMED (RS.) DISALLOWED BY AO (RS.) EXPENSES SUSTAINED BY CIT(A) (RS.) 1. STAFF WELFARE 3,48,861/- 7,960/- 2. TELEPHONE EXPENSES 12,58,484/- 9,983/- 3. DEPRECIATION ON CAR 33,849 16,864/- 4. RUNNING & MAINTENANCE OF CAR 2,427/- RESTRICTED UPTO RS. 15,000/- TOTAL 37,234/- RS. 15,000/- 5. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN CONFIRMING THE APPLICATION OF SECTION 1 45(2). THE PROVISION SO INVOKED AND CONFIRMED BY THE LD. CIT(A ) BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, THE SA ME MAY KINDLY BE DELETED. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, BRIEF FA CTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRA DING OF PETROL AND DIESEL IN THE NAME AND STYLE OF M/S. GOTHWAL SERVICE CENTR E. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON ON 1-11-2004 DECLARING TOTAL INCOME OF RS. 1,06,229/-. THE RETUR N OF INCOME WAS ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 3 ACCOMPANIED WITH COMPUTATION OF INCOME, AUDIT REPOR T U/S 44AB IN FORM NO. 3CD AND 3CD, ANNEXURES TO AUDIT REPORT, LIC PRE MIUM PAYMENT RECEIPTS, COPIES OF TAX CHALLANS, TDS CERTIFICATE E TC. THE CASE OF THE ASSESSEE WAS TAKEN UP FOR COMPULSORY SCRUTINY. ACCO RDINGLY, NOTICE U/S 143(2) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. THE AO WHILE EXAMINING THE CASH BOOK NOTED THAT THE ASSESS EE DURING THE YEAR UNDER CONSIDERATION HAD INTRODUCED A SUM OF RS. 27. 30 LACS IN CASH ON VARIOUS DATES IN HIS OWN NAME UNDER THE ACCOUNT HEA D OF RAMLAL IMPREST A/C, DETAILS OF WHICH IS REPRODUCED AT PA GE 2 AND 3 OF THE ASSESSMENT ORDER. THE AO VIDE ENTRY SHEET DATED 7-1 1-2006 REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCES OF THESE DEPOSITS A LONGWITH EVIDENCES. THE ASSESSEE VIDE HIS LETTER DATED 5-12-2006 SUBMITTED THE REPLY BEFORE THE AO AND ASSESSEE VIDE ANOTHER LETTER DATED 11-12-2 006 SUBMITTED BEFORE THE AO A COMBINED CERTIFICATE DULY SIGNED BY VARIOU S CREDITORS NAMELY SHRI RAM SINGH GURJAR, RAMKARAN GURJAR, JAI NARAYAN MEENA, KALYAN SAHAI GURJAR, BABULAL GURJAR IN WHICH IT IS STATED THAT AS AND WHEN ASSESSEE NEEDED CASH TO RUN THE PETROL PUMP THEY US ED TO ACCOMMODATE HIM OUT OF THEIR AGRICULTURAL INCOME AND THEY DID N OT HAVE ANY BANK ACCOUNT NOR THEY WERE INCOME-TAX ASSESSEE. THE AO W AS NOT SATISFIED ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 4 WITH THE SUBMISSIONS OF THE ASSESSEE AND ALSO OBSER VED CERTAIN DEFICIENCIES IN THE RECORDS/ DETAILS OF THE ASSESSE E. THE AO THUS OBSERVED THAT THERE WERE DEPOSITS AND WITHDRAWALS BOTH ON DI FFERENT DATES. THE AO THEREFORE, WORKED OUT THE PEAK AT RS. 7.00 LACS ON DATED 15-01-2004 AND MADE THE ADDITION TO THAT EXTENT U/S 68 OF THE ACT. 2.2 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) WHO HAD CONFIRMED THE ACTION OF THE AO BY OB SERVING AS UNDER:- 5.5 I HAVE PERUSED THE ASSESSMENT ORDER, SUBMISSI ON MADE BY THE A.R. AS WELL AS REMAND REPORT OF THE AO AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN ADDITION OF RS. 7 LA CS HAS BEEN MADE U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED D EPOSITS IN THE BANK ACCOUNT. THE AO HAD FOUND TOTAL CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT OF RS. 27.30 LACS AND AFTE R CAREFUL EXAMINATION OF THE ACCOUNT, GIVING CREDIT FOR THE W ITHDRAWALS MADE, A PEAK CREDIT BALANCE OF RS. 7 LACS WAS WORKE D OUT. 5.6 THE APPELLANT HAS STATED THAT THIS BALANCE REPR ESENTS THE AMOUNT OF CASH LOANS RECEIVED FROM VARIOUS PERS ONS/ CREDITORS AND FILED EVIDENCE TO PROVE THEIR GENUINENESS. THE APPELLANT HAS STATED THAT ALL THE LOANS WERE RECEIVED IN CASH AND PRODUCED FEW CREDITORS BEFORE THE AO I THE COURSE OF REMAND PROC EEDINGS. IT IS SUBMITTED THAT THERE IS NO JUSTIFICATION ON THE PAR T OF THE AO IN MAKING THE ADDITION. 5.7 HAVING CONSIDERED THE EVIDENCE AVAILABLE ON REC ORD, I FIND THAT THE APPELLANT HAS BEEN GIVEN NUMEROUS OPP ORTUNITIES IN THE LAST SO MANY YEARS DURING WHICH THE APPEAL PROC EEDINGS HAVE REMAINED PENDING BUT STILL HAS FAILED TO FURNISH CO MPLETE EVIDENCE IN THIS REGARD. DURING THE COURSE OF SCRUTINY PROCE EDINGS, IT WAS FOUND THAT THE TOTAL CASH DEPOSITS MADE BY THE APPE LLANT IN THE BANK ACCOUNT ARE RS. 27,30,000/- DURING THE PERIOD UNDER CONSIDERATION ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 5 AND AFTER A DATEWISE SUMMARY WAS PREPARED AND PEAK BALANCE OF RS. 7 LACS AS ON 15-01-2004 HAS BEEN WORKED OUT BY THE AO ON PAGE 2/3 OF THE ORDER. THE APPELLANT HAS SOUGHT TO EXPLAIN THIS CREDIT BALANCE OF RS. 7 LACS IN THE ACCOUNT STATING THAT CASH LOANS WERE RAISED, WHICH HAVE BEEN REPAID DURING THE YEAR ITSELF. 5.8 THE APPELLANT HAS HOWEVER, FAILED TO ADDUCE ENO UGH EVIDENCE SO AS TO SATISFY THE ONUS WHICH IS PLACED UPON HIM U/S 68 OF THE I.T. ACT. THE APPELLANT HAS FAILED TO FURNIS H EVIDENCE WITH REGARD TO THE GENUINENESS OF THE TRANSACTIONS AND R EITERATED THE SUBMISSIONS FILED EARLIER. THE DETAILS OF LACK OF E VIDENCE HAVE BEEN ELABORATELY DISCUSSED ABOVE IN THE REMAND REPORT OF THE AO. THEREFORE, I HOLD THAT THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS AS REQUIRED U/S 68 OF THE I.T. ACT. I ALSO PLACE RE LIANCE ON THE FOLLOWING JUDGEMENTS, IN THIS REGARD. (I) HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAMLAL AGARWAL VS. CIT 280 ITR 547 HAS HELD THAT ASSESSEE MUST PROVE IDENTITY AND CREDITWORTHINESS. FINDING BY INC OME AUTHORITY THAT CREDITOR LACKS CREDITWORTHINESS THAN THE ADDITION MADE UU68 WAS HELD TO BE VALID. (II) HON'BLE ITAT HYDERABAD BENCH HAS HELD IN A CA SE REPORTED IN 023 ITR (TRIB.) 0528 THAT INITIAL BURDE N IS ON ASSESSEE TO PROVE GENUINENESS OF CREDITS. DETAILS O F CREDITORS BANK ACCOUNT IS NOT ENOUGH TO FULFILL THE REQUIREME NTS OF SECTION 68 OF THE ACT. (III) FURTHER, HON'BLE SUPREME COURT IN THE CASE O F VIJAY KUMAR TALWAR VS. CIT REPORTED IN 330 ITR 1 (SC) (20 10) HAS HELD THAT WHERE ASSESSEE DID NOT PRODUCE ANY EV IDENCE TO REBUT THE PRESUMPTION DRAWN AGAINST HIM U/S 68 OF T HE I.T. ACT, THE ADDITION MADE BASED ON AMOUNTS CREDITED IN THE ACCOUNTS U/S 68 WAS HELD TO BE VALID, IN THE ABSENC E OF ANY COGENT EVIDENCE. (IV) HON'BLE PUNJAB & HARYANA HIGH COURT HAS HELD IN THE CASE OF PAPNEJA TRADERS VS. CIT REPORTED IN 337 ITR 172 ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 6 (P&H) (2011) THAT ADDITION MADE ON ACCOUNT OF CASH CREDITS HELD TO BE JUSTIFIED AS THE ASSESSEE FAILED TO PROV E THE CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRA NSACTION. (V) 68 DTR 181 (KER.) (2012) TP ABDULLA VS. ACI T IT WAS HELD THAT BURDEN OF PROOF IS ON THE ASSESSEE MERE PRODUCTION OF CONFIRMATION LETTERS DOES NOT DI SCHARGE THE LIABILITY OF THE ASSESSEE TO OFFER SATISFACTORY EXPLANATION FOR THE LOANS RECEIVED. AO IS ENTITLED TO RECORD HI S NON- SATISFACTION AFTER GOING THROUGH THE MATERIALS AND DOCUMENTS PRODUCED BY THE ASSESSEE DO NOT LEAVE TO A PROPER, REASONABLE OR ACCEPTABLE EXPLANATION AS REGARDS THE RECEIPT IN THE BOOKS. ADDITION HELD TO BE JUSTIFIED. (VI) 330 ITR 1 (SC) 2010 - VIJAY KUMAR TALWAR VS . CIT ASSESSEE DID NOT PRODUCE ANY EVIDENCE TO REBUT THE PRESUMPTION DRAWN AGAINST HIM U/S 68 OF THE I.T. AC T. IN THE ABSENCE OF ANY COGENT EVIDENCE, THE ADDITION MADE B ASED ON AMOUNTS CREDITED IN THE ACCOUNTS U/S 68 WAS HELD TO BE VALID. 5.9 IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT AO WAS JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T. ACT AND CONFIRM THE ADDITION OF RS. 7 LAC MADE BY T HE AO UNDER THIS HEAD. 2.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 7.00 LACS MADE BY THE AO U/S 68 OF THE ACT FOR WHICH THE ASSESSEE HAS FILED ALL THE DETAILS BEFORE THE AUTHORITIES BELOW. THE ASSESSEE HAS ALSO FILED THE WRITTEN SUBMISSION WHICH HAS BEEN TAKING INTO CONSIDERATION . ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 7 2.4 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN QUESTION IS CONF IRMING THE ADDITION OF RS. 7.00 LACS BY THE LD. CIT(A) U/S 68 OF THE ACT. IT IS NOTED FROM THE RECORD THAT THE AO WHILE EXAMINING THE CASH BOOK OB SERVED THAT ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD INTRODUCED A SUM OF RS. 27.30 LACS ON VARIOUS DATES IN HIS OWN NAME UNDER THE ACC OUNT HEAD OF RAM IMPREST AND THE DETAILS OF THE SAME ARE MENTIONED AT PAGES 2 AND 3 OF THE ASSESSMENT ORDER. THE AO REQUIRED THE ASSESSEE TO FILED DETAILS BUT THE ASSESSEE FILED THE REPLY VIDE HIS LETTER DATED 5-12 -2006 INDICATING THE DETAILS OF IMPREST AMOUNT OF RS. 27.30 LACS (ASSESS EE'S PAPER BOOK PAGES 1 TO 4). FURTHER THE ASSESSEE FILED THE SUPPORTING EV IDENCE VIDE HIS LETTER DATED 11-12-2006 ALONGWITH A COMBINED CERTIFICATE ( ASSESSEE'S PAPER BOOK PAGE 7) DULY SIGNED BY VARIOUS CREDITORS NAMELY SHR I RAM SINGH GURJAR, RAMKARAN GURJAR, JAI NARAYAN MEENA, KALYAN SAHAI GU RJAR, BABULAL GURJAR IN WHICH IT IS STATED THAT AS AND WHEN ASSES SEE NEEDED CASH TO RUN THE PETROL PUMP THEY USED TO ACCOMMODATE HIM OUT OF THEIR AGRICULTURAL INCOME AND THEY DID NOT HAVE ANY BANK ACCOUNT NOR T HEY WERE INCOME-TAX ASSESSEE. THE AO WAS NOT SATISFIED WITH THE SUBMISS IONS OF THE ASSESSEE ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 8 AND ALSO OBSERVED CERTAIN DEFICIENCIES IN THE RECOR DS/ DETAILS OF THE ASSESSEE. THUS THE AO OBSERVED AT PAGE 3 OF THE ASS ESSMENT ORDER THAT THE THERE WERE DEPOSITS AND WITHDRAWALS BOTH ON DIFFERE NT DATES AND HE WORKED OUT THE PEAK AT RS. 7 LACS ON DATED 15-01-20 04 WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) WITH THE OBSERVATIONS T HAT THE ASSESSEE HAS FAILED TO FURNISH COMPLETE EVIDENCES WITH REGARD T O THE GENUINENESS OF THE TRANSACTIONS AND REITERATED THE SUBMISSIONS FIL ED EARLIER. IN APPELLATE PROCEEDINGS, IT IS NOTED FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAD FILED THE CONSOLIDATED I.D. PROOF I.E. COMBINED CER TIFICATE (APB PAGE 7) DULY SIGNED BY VARIOUS CREDITORS NAMELY SHRI RAM SI NGH GURJAR (RS.1.00 LAC), RAMKARAN GURJAR (RS. 25,000/-), BABULAL GURJA R (RS. 4,50,000/-, JAI NARAYAN MEENA (RS. 75,000) & KALYAN SAHAI GURJAR ( RS. 50,000/-), IN WHICH IT IS STATED THAT AS AND WHEN ASSESSEE NEEDED CASH TO RUN THE PETROL PUMP THEY USED TO ACCOMMODATE HIM OUT OF THEIR AGRI CULTURAL INCOME AND THEY DID NOT HAVE ANY BANK ACCOUNT NOR THEY WERE IN COME-TAX ASSESSEE. THE ASSESSEE FILED THE AFFIDAVITS (APB PAGES 55,57, 59,61,63) OF THE ABOVE CREDITORS GIVING THE RESPECTIVE AMOUNTS BY THEM TO THE ASSESSEE . THE ASSESSEE ALSO FILED THE STATEMENT GIVEN BY THE ABOV E CREDITORS BEFORE THE AO (APB PAGES 85,87,, 83-85, 72-77, 77-79 AND 80-82 ,). THE ASSESSEE ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 9 HAS ALSO FILED THE CERTIFICATES FROM PATWARI OF REV ENUE DEPTT ABOUT LAND HOLDINGS IN RESPECT OF THE ABOVE CASH CREDITORS WHI CH INDICATE THAT THESE CREDITORS HAD SUFFICIENT PIECES OF LAND (APB PAGES 41,42,43-46,47-48 AND 50-52). TAKING INTO CONSIDERATION THE ABOVE FACTS A ND CIRCUMSTANCES OF THE CASE, IT IS NOTED THAT THE ASSESSEE HAD FILED A LL THE EVIDENCES LIKE ID PROOF, CONSOLIDATED CONFIRMATIONS, SEPARATE AFFIDAV IT BY EACH OF THE CREDITORS, COPIES OF LAND HOLDING SHOWING THEIR OWN ERSHIP ON THE AGRICULTURAL LAND. THUS THE GENUINENESS, CREDITWORT HINESS AND CAPACITY OF THE RESPECTIVE CASH CREDITORS ARE PROVED. HENCE, TH E GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, THE AO OB SERVED FROM THE CAPITAL ACCOUNT OF THE ASSESSEE THAT THE ASSESSEE H AD ENHANCED HIS CAPITAL WITH A SUM OF RS. 2,50,000/- ON 2-12-2003. SINCE NO SUPPORTING EVIDENCES PROVING THE SOURCE OF THIS INCREASE WAS P ROVIDED BY THE ASSESSEE, THEREFORE, THE AO VIDE HIS LETTER DATED 2 9-11-2006 SHOW CAUSED THE ASSESSEE ABOUT THE CREDIT SHOWN AT RS. 25.00 LA CS ON 2-12-2003 IN HIS LEDGER ACCOUNT. THE AO THUS REQUIRED THE ASSESSEE T O EXPLAIN THE SOURCE OF RS. 2,50,000/- SHOWN IN THE PROPRIETORSHIP FIRM ON 2-12-2003. THE ASSESSEE VIDE LETTER DATED 5-12-2006 (REPRODUCED AT PAGE 8 OF THE ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 10 ASSESSMENT ORDER) SUBMITTED THAT HIS FATHER EXPIRED ON 18-05-2000 AND HIS MOTHER EXPIRED ON 25-03-2000 AND ON THAT OCCASION A DISTRIBUTION OF IMMOVABLE ASSETS TOOK PLACED AMONGST THREE BROTHERS AND HE BEING THE YOUNGEST WAS GIVEN RS. 2.50 LACS WHICH HE DEPOSITED IN CAPITAL ACCOUNT OF HIS PROPRIETARY FIRM. FURTHER THE ASSESSEE VIDE ANO THER LATTER DATED 11-12- 2006 (REPRODUCED AT PAGE 8 OF THE ASSESSMENT ORDER) SUBMITTED A CONFIRMATION DULY SIGNED BY THE THREE BROTHERS STAT ING THAT THEIR FATHER AND MOTHER HAD EXPIRED AND ON THAT OCCASION A SETTLEMEN T WAS MADE AMONGST THEM AND ACCORDINGLY A SUM OF RS. 2.50 LACS WAS GIV EN TO THE ASSESSEE. THE BROTHERS ARE IN GOVT. SERVICES AND THE ASSESSEE WAS RESIDING WITH THE PARENTS AND TAKING CARE OF THEM. THEY GAVE THIS AMO UNT OF RS. 2.50 LACS TO THE ASSESSEE WILLINGLY. THE ASSESSEE HAD FILED COPI ES OF JAMABANDI OF THE LAND MEASURING 1.96 CRORES IN THE JOINT NAME OF THE ASSESSEE AND HIS TWO BROTHERS AND MOTHER AND PHOTOCOPY OF VAHMI SAMJHOTA WAS FILED AT PAGES 9 OF THE PAPER BOOK. THE AO OBSERVED SOME DEFICIENC IES AT PAGE 8 AND 9 OF THE ASSESSMENT ORDER LIKE COPY OF DEATH CERTIFIC ATE HAS NOT BEEN FILED BY THE ASSESSEE EVIDENCING THE ACTUAL DATE OF DEATH OF PARENTS, THE SOURCES OF RS. 2.50 LACS AS MOVEABLE ASSETS WITH HIS PARENTS C OULD NOT BE EXPLAINED BY THE ASSESSEE, RETURN OF INCOME / BANK ACCOUNT IN SUPPORT OF THIS ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 11 CONTENTION COULD NOT BE FILED BY THE ASSESSEE, THE ASSESSEE DID NOT PRODUCE THE OTHER TWO BROTHERS TO EVIDENCE HIS CLAIM ETC. H ENCE, THE AO WAS NOT SATISFIED WITH THE SUBMISSION OF THE ASSESSEE AND T HUS MADE AN ADDITION OF RS. 2.50 LACS U/S 68 OF THE ACT AS UNEXPLAINED CRED IT IN THE HANDS OF THE ASSESSEE. 3.2 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ACTION OF THE AO BY OB SERVING AS UNDER:- 6.5 I HAVE PERUSED THE ASSESSMENT ORDER, SUBMISSI ONS MADE BY THE A.R. AS WELL AS REMAND REPORT OF THE AO AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN ADDIT ION OF RS. 2,50,000/- WAS MADE BY THE AO ON ACCOUNT OF CAPITA L INTRODUCED BY THE APPELLANT. THE ADDITION WAS MADE AS THE APPELLANT COULD NOT PRODUCE SUFFICIENT EVIDENCE BE FORE THE AO TO SUBSTANTIATE ITS CONTENTIONS. 6.6 THE APPELLANT HAS BEEN ABLE TO PRODUCE HIS BROTHERS BEFORE THE AO FOR RECORDING OF THEIR STATE MENTS TO SUPPORT HIS VERSION THAT AMOUNT WAS RECEIVED BY HIM ON ACCOUNT OF FAMILY PARTITION OF ASSETS. HOWEVER, TH E APPELLANT AND HIS BROTHERS HAVE FAILED TO PRODUCE ANY EVIDENC E IN SUPPORT OF THE OWNERSHIP OF THE ASSETS AND ALSO FOR SALE OF SUCH ASSETS. IN THE ABSENCE OF SUCH EVIDENCE, THE S TATEMENTS GIVEN BY THE APPELLANT ARE ONLY SELF SERVING IN NAT URE. 6.7 CONSIDERING THE EVIDENCE AVAILABLE ON RECORD, I CONFIRM THE ADDITION OF RS. 2,50,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CAPITAL INTRODUCTION. ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 12 3.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2.50 LACS U/S 68 OF THE ACT. THE LD. AR OF THE ASSESSEE FILED THE WR ITTEN SUBMISSION HAS BEEN TAKEN INTO CONSIDERATION. 3.4 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 3.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE ASSESSMEN T ORDER THAT THE ASSESSEE HAD ENHANCED HIS CAPITAL WITH A SUM OF RS. 2.50 LAC S FOR WHICH THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPO SIT OF RS. 2.50 LACS IN THE PROPRIETORSHIP FIRM. THE ASSESSEE SUBMITTED THE REPLY BEFORE THE AO THAT HIS PARENTS PASSED AWAY AND DUE TO SETTLEMENT AMONGST THREE BROTHERS, THE ASSESSEE WAS GIVEN RS. 2.50 LACS WILL INGLY BY THEM. THE AO OBSERVED SOME DEFICIENCIES IN THE SUBMISSIONS OF TH E ASSESSEE LIKE COPY OF DEATH CERTIFICATE HAS NOT BEEN FILED BY THE ASSE SSEE EVIDENCING THE ACTUAL DATE OF DEATH OF PARENTS, THE SOURCES OF RS. 2.50 LACS AS MOVEABLE ASSETS WITH HIS PARENTS COULD NOT BE EXPLAINED BY T HE ASSESSEE, RETURN OF INCOME / BANK ACCOUNT IN SUPPORT OF THIS CONTENTION COULD NOT BE FILED BY THE ASSESSEE, THE ASSESSEE DID NOT PRODUCE THE OTHE R TWO BROTHERS TO EVIDENCE HIS CLAIM ETC. HENCE, THE AO WAS NOT SATIS FIED WITH THE ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 13 SUBMISSION OF THE ASSESSEE AND THUS MADE AN ADDITIO N OF RS. 2.50 LACS U/S 68 OF THE ACT AS UNEXPLAINED CREDIT IN THE HANDS OF THE ASSESSEE. IN FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO WITH THE OBSERVATION THAT THE ASSESSEE HAD NOT BEEN ABLE TO PRODUCE HIS BROTHERS BEFORE THE AO FOR RECORDING THEIR STATEMENTS TO SUP PORT HIS VERSION THAT THE AMOUNT WAS RECEIVED BY HIM ON ACCOUNT OF FAMIL Y PARTITION OF ASSETS. THE ASSESSEE WAS NOT ABLE TO SHOW THE EVIDENCE IN S UPPORT OF THE OWNERSHIP OF THE ASSETS AND FOR SALE OF SUCH ASSETS . HENCE, TAKING INTO CONSIDERATION ALL THE ASPECTS OF THE CASE AND SUBMI SSIONS OF THE ASSESSEE, I CONCUR WITH THE FINDINGS OF THE LD. CIT(A) WHICH IS SUSTAINED. THUS GROUND NO. 2 OF THE ASSESSEE IS DISMISSED. 4.1 APROPOS GROUND NO. 3, THE AO OBSERVED THAT THAT THE ASSESSEE HAD CLAIMED LOSS BY THEFT AMOUNTING TO RS. 11,735/- FOR WHICH THE AO REQUIRED THE ASSESSEE TO EXPLAIN AND JUSTIFY THE SA ME WITH EVIDENCES . THE ASSESSEE DID NOT FILE ANY EVIDENCE IN SUPPORT OF HI S CONTENTION. THUS THE AO HAD NO OTHER ALTERNATIVE EXCEPT TO DISALLOW A SU M OF RS. 11,735/- IN THE HANDS OF THE ASSESSEE. 4.2 IN FIRST APPEAL, THE LD. CIT(A) HAS CONFIRMED T HE ACTION OF THE AO BY OBSERVING AS UNDER:- ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 14 7.2 THE A.R. OF THE APPELLANT HAS CONTENDED IN TH IS REGARD AS UNDER:- THE LD. AO HAVE DISALLOWED A SUM OF RS. 11,735/- WHICH WAS IN FACT CLAIMED ON ACCOUNT OF THEFT. THE LD. AO NEVER RELIED ON OUR SUBMISSION AND NEVER INVESTIGAT ED / ENQUIRED THE TRUTH IN THIS MATTER. IN THIS MATTER, THE SUBMISSION OF ASSESSEE TO BE RELIED BY THE LD. AO A FTER CONSIDERING THE TRUTH. 7.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS SUBMISSION MADE BY THE APPELLANT AND FIND THAT AN A DDITION OF RS. 11,735/- HAS BEEN MADE ON ACCOUNT OF CLAIM OF LOSS BY THEFT/ ROBBERY. SINCE NO EVIDENCE WAS PRODUCED B EFORE THE AO AT THE STAGE OF ASSESSMENT, AN ADDITION WAS MADE UNDER THIS HEAD. THE APPELLANT HAS REITERATED THE SUBMIS SIONS FILED EARLIER BEFORE THE AO AND NO EVIDENCE COULD BE FILE D AT THE APPELLATE STAGE. THE APPELLANT HAS FAILED TO FILE A COPY OF THE FIR OR ANY OTHER DOCUMENTS OF THE INCIDENT FOR THE LOSS CLAIMED ON ACCOUNT OF THEFT. 7.4 THUS, I CONFIRM THE ADDITION OF RS. 11,735/- MADE BY THE AO UNDER THIS HEAD. 4.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION. THE LD. AR OF THE ASSESSEE FI LED THE WRITTEN SUBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION. 4.4 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 4.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE ASSESSMEN T ORDER THAT THE ASSESSEE HAD CLAIMED LOSS BY THEFT AMOUNTING TO RS. 11,735/- FOR WHICH THE AO ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 15 REQUIRED THE ASSESSEE TO EXPLAIN AND JUSTIFY THE S AME WITH EVIDENCES BUT THE ASSESSEE DID NOT FILE ANY DOCUMENTARY EVIDENCE AS TO THEFT OF THE AMOUNT. THE AO DISALLOWED THE SAME AND THE LD. CIT( A) ALSO CONFIRMED THE ACTION OF THE AO AS THE ASSESSEE DID NOT FILE A COPY OF THE FIR OR ANY OTHER DETAILS OF THE INCIDENT FOR THE LOSS CLAIMED ON ACCOUNT OF THEFT. THE ASSESSEE HAS ALSO NOT FILED ANY SUPPORTING EVIDENCE ON THIS ISSUE BEFORE THE BENCH AT THE TIME OF HEARING. HENCE, I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THIS ISSUE WHICH IS SUSTAINED. THUS GROUND NO. 3 OF THE ASSESSEE IS DISMISSED. 5.1 APROPOS GROUND NO. 3 OF THE ASSESSEE, THE OBSER VATION OF THE LD. CIT(A) GRANTING THE RELIEF TO THE ASSESSEE AMOUNTIN G TO RS. 22,234/- IS AS UNDER:- 8.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S SUBMISSIONS ADDITIONAL EVIDENCE BY A.R. AND CASES R ELIED UPON AND FIND THAT AN ADDITION OF RS. 37,234/- HAS BEEN MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF VARIOUS EX PENSES. THE DISALLOWANCE HAS BEEN MADE BY THE AO OUT OF STA FF WELFARE EXPENSES. THE DISALLOWANCE HAS BEEN MADE BY THE AO OUT OF STAFF WELFARE EXPENSES, TELEPHONE EXPENSE S AND RUNNING, MAINTENANCE & DEPRECIATION OF CAR. THE DISALLOWANCE WAS MADE ON THE GROUND THAT SOME OF TH E EXPENSES WERE NOT SUPPORTED WITH VOUCHERS, NO LOG B OOK HAS BEEN MAINTAINED ON ACCOUNT OF ELEMENT OF PERSONAL USAGE. 8.4 THE APPELLANT HAS STATED THAT DISALLOWANCE IS N OT JUSTIFIED AS COMPLETE BOOKS OF ACCOUNTS HAVE BEEN ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 16 MAINTAINED AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE AO. CERTAIN JUDICIAL DECISIONS HAVE BEEN QUOTED TO SUPPORT THAT NO DISALLOWANCE ON ACCOUNT OF PERSONA L USAGE OF CAR COULD BE MADE. 8.5 CONSIDERING THE SUBMISSIONS MADE AND MATERIAL PLACED ON RECORD, I FIND FORCE IN THE ARGUMENTS OF THE APPELLANT AND HOLD THAT THE DISALLOWANCE MADE BY TH E AO ON ACCOUNT OF EXPENSES IS ON THE HIGHER SIDE. HOWEVER , CONSIDERING THE FACT THAT THE APPELLANT ALSO COULD NOT PRODUCE ANY CONTROVERTING EVIDENCE AND HAS ONLY MADE BALD STATEMENTS, IT WOULD BE JUST AND FAIR TO RESTRICT T HE DISALLOWANCE TO RS. 15,000/- UNDER THIS HEAD. THE A PPELLANT WOULD GET A RELIEF OF RS. 22,234/- ON THIS ACCOUNT. 5.2 AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSION OF THE A SSESSEE, IT IS NOTED THAT THE LD. CIT(A) HAS GRANTED SUFFICIENT RELIEF TO THE ASSESSEE AMOUNTING TO RS. 22,234/- TAKING INTO CONSIDERATION THE ASSESSM ENT ORDER AND THE SUBMISSIONS OF THE ASSESSEE BEFORE HIM. HENCE, I CO NCUR WITH THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE. THUS GROUND NO. 4 OF THE ASSESSEE IS DISMISSED. 6.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 5. HENCE, THE SAME IS DISMIS SED BEING NOT PRESSED. ITA NO. 744/JP/2014 SHRI RAM LAL BAIRWA VS. ITO, DAUSA 17 7.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/11/20 16. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18 /11/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAM LAL BAIRWA, DAUSA 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, DAUSA 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. 744/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR