Anesh Nandkumar Agarwal, Pune V. Income-tax Officer, Ward - 2(1), Pune

ITA 761/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3705 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH GAWLI
• Assessee Lawyers: K SRINIVASAN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.760/PUN/2018 / ASSESSMENT YEAR : 2013-14 NILESH NANDKUMAR AGARWAL, B-14, ASHWINI CO-OP. HSG SOCIETY, SHIVAJINAGAR, MUMBAI-PUNE ROAD, PUNE 411 005 PAN : AELPA9995B VS. ITO, WARD -2(1), PUNE (APPELLANT) (RESPONDENT) . / ITA NO.761/PUN/2018 / ASSESSMENT YEAR : 2013-14 ANESH NANDKUMAR AGARWAL, B-14, ASHWINI CO-OP. HSG SOCIETY, SHIVAJINAGAR, MUMBAI-PUNE ROAD, PUNE 411 005 PAN : AAVPA6809J VS. ITO, WARD -2(1), PUNE (APPELLANT) (RESPONDENT) . / ITA NO.762/PUN/2018 / ASSESSMENT YEAR : 2013-14 NANDKUMAR MAIDHAN AGARWAL, B-14, ASHWINI CO-OP. HSG SOCIETY, SHIVAJINAGAR, MUMBAI-PUNE ROAD, PUNE 411 005 PAN : AAVPA6807G VS. ITO, WARD -2(1), PUNE (APPELLANT) (RESPONDENT) APPELLANT BY SHRI K. SRINIVASAN RESPONDENT BY SHRI RAJESH GAWLI DATE OF HEARING 20-02-2019 DATE OF PRONOUNCEMENT 21-02-2019 ITA NOS.760 TO 762/PUN/2018 NILESH N. AGARWAL AND 2 OTHERS 2 / ORDER PER R.S.SYAL, VP : THESE APPEALS BY THREE RELATED BUT DIFFERENT ASSESSEES RELATE TO THE ASSESSMENT YEARS 2013-14. SINCE COMMON ISSUE IS RAISED IN ALL THESE APPEALS, I AM, THEREFORE, PROCEEDINGS TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.760/PUN/2018 NILESH N. AGARWAL : 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.11,54,662/- ON ACCOUNT OF N ON- GENUINE BUSINESS ACTIVITY/EXPENSES. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E MADE CERTAIN CASH DEPOSITS IN HIS SAVINGS BANK ACCOUNTS MAINTAINED WITH COSMOS BANK, BANK OF INDIA AND HDFC BANK. ON BEING CALLED UPON TO PRESENT THE SOURCE OF SUCH DEPOSITS, THE ASSESSEE SUBMITTED THAT THE DEPOSITS WERE MADE OUT OF CASH BALANCE IN THE CASH BOOK. THE ASSESSEE FUR THER EXPLAINED THAT THE RECEIPTS IN CASH BOOK WERE MAINLY FROM CAS H SALES. THE ASSESSING OFFICER (AO) REQUIRED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT WHICH THE ASSESSEE COULD NO T. IT ITA NOS.760 TO 762/PUN/2018 NILESH N. AGARWAL AND 2 OTHERS 3 WAS HOWEVER MAINTAINED THAT HE MADE PURCHASES IN CASH AN D ALSO EFFECTED SALES IN CASH AND THE DEPOSITS IN THE BANKS W ERE OUT OF SUCH CASH SALES. THE AO TOOK UP THE FIGURE OF CA SH SALES AT RS.29,20,795/- AS INCOME FROM OTHER SOURCES . AFTER ALLOWING DEDUCTION ON ACCOUNT OF INTEREST AND CONSIDERING THE PROFIT ALREADY SHOWN BY THE ASSESSEE AT RS.12,30,197/- A LONG WITH CERTAIN EXPENDITURE BOOKED AT RS.11,54,662/-, THE AO MADE AN ADDITION OF RS.23,84,860/-, COMPRISING OF DISALLOWANCE OF EXPENDITURE AT RS.11.54 LAKH AND NON-GENUIN E SALES. THE LD. CIT(A) SUSTAINED THE ADDITION BY OBSERVING TH AT THE ASSESSEE COULD NOT PRODUCE EVEN A SINGLE DOCUMENT TO SHOW THAT HIS BANK TRANSACTIONS REPRESENTED BUSINESS RECEIP TS. THE ASSESSEE HAS COME UP IN APPEAL AGAINST THE SUSTENANCE OF SUCH AN ADDITION. 4. I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVAN T MATERIAL ON RECORD. THE ASSESSEE HAS FILED A PAPER BOOK COMPRISING OF 207 PAGES AS ADDITIONAL EVIDENCE. THE LD. AR CONTENDED THAT THE FILES CONTAINING PURCHASE VOUCHERS ETC. WERE MISPLACED AND COULD NOT BE LOCATED DURING THE COURSE OF PROCEEDINGS BEFORE THE AUTHORITIES BELOW, AS THOSE WERE KEP T ITA NOS.760 TO 762/PUN/2018 NILESH N. AGARWAL AND 2 OTHERS 4 SEPARATE WHEN RENOVATION AND CONSTRUCTION WORK WAS GOING O N. A REQUEST WAS MADE THAT A FURTHER OPPORTUNITY SHOULD BE GIVE N TO THE ASSESSEE TO ADDUCE EVIDENCE IN SUPPORT OF GENUINEN ESS OF TRANSACTIONS RECORDED IN HIS BANK ACCOUNTS, WHICH IS NOW AVAILABLE. IN VIEW OF THE FACT THAT THE AUTHORITIES BELOW HAVE DISBELIEVED THE GENUINENESS OF TRANSACTIONS OF PURCHASES, S ALES AND EXPENSES ON THE GROUND THAT SUPPORTING VOUCHERS WE RE NOT AVAILABLE AND THE ASSESSEE IS NOW CLAIMING TO HAVE COLLECTED ALL SUCH EVIDENCE, I AM OF THE CONSIDERED OPINION THAT THE E NDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER ON THIS SCORE IS SET-ASIDE AND THE MATTER IS RESTORED TO THE FILE OF A O. I ORDER ACCORDINGLY AND DIRECT HIM TO FRAME THE ASSESSMENT AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS MADE CLEAR THAT THE ASSESSEE WILL BE AT LIBER TY TO LEAD ANY FRESH EVIDENCE IN SUPPORT OF HIS CLAIM WHICH HE CONSIDERS EXPEDIENT. ITA NO. 761/PUN/2018 ANESH N. AGARWAL ITA NO.762/PUN/2018 NANDKUMAR M. AGARWAL 5. THE FACTS AND CIRCUMSTANCES OF THESE TWO APPEALS ARE ADMITTEDLY SIMILAR TO THOSE OF SH. NILESH N. AGARWAL. IN THE ITA NOS.760 TO 762/PUN/2018 NILESH N. AGARWAL AND 2 OTHERS 5 CASE OF SH. ANESH N. AGARWAL, THE LD. CIT(A) SUSTAINED THE ADDITION AT RS.10,56,852/-; WHEREAS IN THE CASE OF SH. NANDKUMAR M. AGARWAL, HE SUSTAINED THE ADDITION AT 13,98,470/-. SH. ANESH N. AGARWAL IS BROTHER OF SH. NI LESH N. AGARWAL, WHOSE APPEAL HAS BEEN DISPOSED OFF ABOVE. S H. NANDKUMAR M. AGARWAL IS FATHER OF SH. NILESH N. AGARWAL. IN VIEW OF THE FACT THAT THE FACTS AND CIRCUMSTANCES OF THESE TWO APPEALS ARE ADMITTEDLY SIMILAR, FOLLOWING THE VIEW TAKEN HEREINABOVE, I SET-ASIDE THE IMPUGNED ORDERS AND REMIT THE MATTER TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT THE AO TO FRAME THE ASSESSMENTS AFRESH IN CONFORMITY WITH THE DIRECTIONS GIVEN IN THE CASE OF SH. NILESH N. AGARWAL ABOVE . 6. IN THE RESULT, ALL THE THREE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 21 ST FEBRUARY, 2019 ITA NOS.760 TO 762/PUN/2018 NILESH N. AGARWAL AND 2 OTHERS 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-3, PUNE 4. THE PR. CIT-2, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 20-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 21-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *