ITO, Jaipur V. SHRI RAMKISHAN SHARMA S/O BHIRURAM, Jaipur

ITA 768/JPR/2010

• Counselvise Citation: 76823114 RSA 2010
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD JOHARI
• Keywords: Additional evidence
• Section: 271(1)(c); 142(1); 144

Judgement Text

1 ITA 768-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 768 & 784/JP/2010 ASSTT. YEAR : 2006-07. THE INCOME-TAX OFFICER, VS. SHRI RAMKISHAN SHARMA S/O SH. WARD 7(2), JAIPUR. BHAIRURAM, JAISINGHPURA, SAN GANER, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD JOHARI RESPONDENT BY : SHRI P.C. PARWAL ORDER DATE OF ORDER : 24/06/2011. PER BENCH : THESE ARE TWO APPEALS BY DEPARTMENT AGAINST THE TW O SEPARATE ORDERS OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. THE APPEAL IN ITA NO. 768/JP/2010 RELATES TO QUA NTUM ADDITION OF RS. 78,00,500/- DELETED BY LD. CIT (A) WHICH WAS MADE BY AO WHILE P ASSING ORDER UNDER SECTION 144. 3. THE FACTS IN THIS CASE ARE THAT ON THE BASIS OF INFORMATION GATHERED FROM THE BANK, THE AO NOTICED THAT THERE WERE CREDITS OF RS. 78,00 ,500/- DURING THE FINANCIAL YEAR 2005- 06 WITH ASSESSEES BANK CENTRAL BANK OF INDIA. NOT ICE UNDER SECTION 142(1) WAS ISSUED REQUIRING TO FILE THE RETURN AND EXPLAIN THE SOURCE OF DEPOSIT. HOWEVER, NONE APPEARED NEITHER ANY REPLY WAS FILED. THEREFORE, AO COMPLETE D THE ASSESSMENT UNDER SECTION 144 MAKING THE IMPUGNED ADDITION MENTIONED ABOVE. 2 4. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT NO NOTI CE WAS RECEIVED BY THE ASSESSEE, THEREFORE, ASSESSMENT ORDER IS BAD IN LAW. IN RESPE CT TO DEPOSIT OF RS. 78,00,000/- OR ODD, IT WAS SUBMITTED THAT THIS AMOUNT WAS RECEIVED FROM HIS FATHER WHO SOLD HIS LAND UNDER AGREEMENT AND A SUM OF RS. 1.20 CORES WAS RECEIVED BY HIM. COPIES OF BANK ACCOUNT OF HIS FATHER ALONG COPY OF HIS BANK ACCOUNT, COPY OF SALE AGREEMENT ENTERED BY HIS FATHER FOR SELLING THE LAND IN QUESTION WERE FILED. IT WA S FURTHER SUBMITTED THAT ENTIRE ADDITION OF RS. 1.20 CRORES HAVE BEEN MADE IN THE HANDS OF HIS FATHER ALSO AND SAME IS PENDING BEFORE THE LD. CIT (A). AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, THE LD. CIT (A) REJECTED THE FIRST GROUND AGAINST A SSESSMENT PASSED UNDER SECTION 144. HOWEVER, ON MERIT IT WAS FOUND THAT THE SOURCE OF D EPOSIT IS EXPLAINED AS AMOUNT OF RS. 78,00,000/- OR ODD HAVE BEEN RECEIVED BY THE ASSESS EE FROM HIS FATHER, COPY OF BANK ACCOUNT OF BOTH THE PARTIES WERE AVAILABLE BEFORE H IM. IT WAS FURTHER HELD BY LD. CIT (A) THAT THE AMOUNT IN QUESTION IS TAXABLE IN THE HANDS OF THE FATHER AND THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF ASSESSEE IS FROM THE SAME AM OUNT RECEIVED BY HIS FATHER ON ACCOUNT OF SALE AGREEMENT ENTERED BY HIM. ACCORDIN GLY, THE ADDITION MADE BY AO WAS DELETED. 5. THE LD. D/R PLACED RELIANCE ON THE ORDER OF AO. 6. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). 7. THE DEPARTMENT HAS ALSO FILED AN ADDITIONAL GROU ND BY WHICH IT WAS STATED THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN ACCEPTING THE ADDI TIONAL EVIDENCE. 8. IN THIS REGARD THE LD. COUNSEL OF THE ASSESSEE S TATED THAT BOTH THE BANK ACCOUNTS WERE AVAILABLE BEFORE THE AO AND ON THE BASIS OF DE POSITS IN BANK THE ADDITIONS HAVE 3 BEEN MADE IN THE HANDS OF THE ASSESSEE AS WELL AS I N THE HANDS OF HIS FATHER AND ONLY COPIES OF THESE BANK ACCOUNTS WERE FILED BEFORE LD. CIT (A). THEREFORE, NO ADDITIONAL EVIDENCE WAS FILED BY THE ASSESSEE. 9. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT ADDITIONAL GROUND RAISED BY THE DEPARTMENT IS A LEGAL GROUND, THEREFORE, THE SAME IS ADMITTED. HOWEVER, ON MERIT THE SAME IS REJECTED AS NO ADDITIONAL EVIDENCE WERE FILED BEFORE LD. CIT (A). THE AO MADE ADDITION ON THE BA SIS OF DEPOSITS IN BANK AND BOTH THESE BANK ACCOUNTS WERE AVAILABLE BEFORE HIM. COPI ES OF BANK ACCOUNT WERE FILED BEFORE LD. CIT (A) TO ESTABLISH THAT THE AMOUNT OF RS. 78, 00,000/- OR ODD HAVE BEEN TRANSFERRED FROM THE ACCOUNT OF THE ASSESSEES FATHER. THEREFOR E, THERE IS NO ADDITIONAL EVIDENCE., ACCORDINGLY THE ADDITIONAL GROUND RAISED BY THE DEP ARTMENT IS REJECTED. 10. ON MERIT ALSO WE FIND NO INFIRMITY IN THE FIND ING OF LD. CIT (A). THE LD. CIT (A) HAS ASCERTAINED THAT THE AMOUNT OF RS. 78,00,000/- OR ODD IS TRANSFERRED FROM THE ACCOUNT OF THE FATHER OF THE ASSESSEE WHO RECEIVED RS. 1.20 CRORES ON ACCOUNT OF SALE OF LAND VIDE SALE AGREEMENT. SOURCE OF THIS AMOUNT IS EXPLAINED . WE HAVE ALREADY DISPOSED THE APPEAL OF THE FATHER OF THE ASSESSEE AND RESTORED T HE MATTER TO THE AO TO EXAMINE THE ISSUE AFRESH IN RESPECT TO ASSESSABILITY OF THE AMOUNT OF RS. 1.20 CORES. THE ADDITION OF THE SAME AMOUNT CANNOT BE MADE IN TWO HANDS. THE REAL OWNER OF THE AMOUNT IS FATHER OF THE ASSESSEE, THEREFORE, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A). 11. THE APPEAL IN ITA NO. 784/JP/2010 IS AGAINST DE LETING THE PENALTY OF RS. 25,69,548/- LEVIED UNDER SECTION 271(1)(C) OF THE I T ACT ON THE AMOUNT OF ADDITION OF RS. 78,00,500/-. 4 12. THE BASIS OF PENALTY HAS ALREADY BEEN QUASHED. WE HAVE ALREADY CONFIRMED THE ORDER OF LD. CIT (A) DELETING THE ADDITION OF RS. 7 8,00,000/- OR ODD, THEREFORE, NO PENALTY CAN BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT. ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A) IN DELETING THE LEVY OF PENALTY. 13. IN THE RESULT, APPEALS OF THE DEPARTMENT ARE DI SMISSED. 14. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24 .6.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- THE ITO WARD 7(2), JAIPUR. SHRI RAMKISHAN SHARMA, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 768(2)/JP/2010) BY ORDER, AR ITAT JAIPUR.