SHRI BHUP SINGH, , BHARATPUR V. ITO, WARD-2, , BHARATPUR

ITA 80/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9105 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 17-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA ACIT
• Assessee Lawyers: O P BATHEJA ITP
• Keywords: Gift; Additional evidence; Tangible material; Reassessment proceedings
• Section: 150(1); 69A; 48; 147; 148; 6; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 80/JP/2020 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2011-12 SHRI BHUP SINGH 498 ANAH GATE, WARD NO. 7, BHARATPUR. CUKE VS. THE ITO, WARD-2, BHARATPUR. TOLFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: CTQPS 5712 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RE SPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI O.P. BATHEJA (ITP) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :03/08/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER OF LD. CIT(A), ALWAR DATED 19.11.2019 FOR THE ASSESSMENT Y EAR 2011-12 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING ADD ITION OF RS. 7,00,000/-, IGNORING THE SUBMISSIONS AND DOCUME NTARY EVIDENCES FILED BY THE APPELLANT, REMAND REPORT OF THE AO AND HIS OWN FINDING IN PARA 5.6 OF THE APPELLATE ORDER. ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 2 2. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LA W IN GIVING DIRECTION U/S 150(1) OF THE ACT, WHICH IS BEYOND HI S POWER. 3. ADDITIONAL GROUND: (I) THAT THE LD. AO ERRED IN LAW IN INITIATING PROCEEDINGS U/S 147/148 ON THE BASIS OF AIR INFORMA TION WITHOUT ANY INDEPENDENT APPLICATION OF MIND WITHOUT EVEN EX AMINING THE TRUTHFULNESS OF THE INFORMATION. THEREFORE, THE PRO CEEDINGS INITIATED SIMPLY ON THE BASIS OF AIR INFORMATION WI THOUT ANY VERIFICATION ETC., ON THE BASIS OF WRONG FACTS IS B AD IN LAW, VOID AB INITIO AND DESERVES TO BE QUASHED. (II) THE LD. PR. CIT, ALWAR HAS ALSO ACCORDED APPRO VAL U/S 151(1) IN A ROUTINE AND MECHANICAL MANNER WITHOUT ANY APPL ICATION OF MIND AND WITHOUT GOING THROUGH THE RELEVANT INFORMA TION HAVING WRONG FACTS AND FIGURES. THE PROCEEDINGS DESERVE TO BE QUASHED ON THIS COUNT ALSO. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSMENT WAS COMPLETED U/S 144 R.W.S. 147 OF THE ACT DATED 04.12 .2018 WHEREIN THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS. 61,32 ,671/- TOWARDS UNEXPLAINED U/S 69A OF THE ACT. BEING AGGRIEVED, TH E ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND REQU ESTED FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES. 3. THE LD. CIT(A) AFTER CALLING FOR THE REMAND REPO RT FROM THE ASSESSING OFFICER AND THE REJOINDER SUBMITTED BY TH E ASSESSEE HAS HELD THAT SINCE THE ASSESSING OFFICER IN THE REMAND PROC EEDINGS HAS ADMITTED THAT THERE ONLY TWO FDRS OF RS. 5,00,000/- EACH AND RS. 7,00,000/- WHICH ARE FRESH DEPOSITS MADE DURING THE YEAR, THER E IS NO JUSTIFICATION ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 3 LEFT FOR THE ADDITION MADE BY THE ASSESSING OFFICER , HOWEVER, THE SOURCE OF FRESH DEPOSIT OF RS. 7,00,000/- WAS HELD DEVOID OF ANY CREDIBLE EVIDENCES, HE ACCORDINGLY, SUSTAINED THE ADDITION T O THE EXTENT OF RS. 7,00,000/- AND THE REMAINING ADDITION MADE BY T HE ASSESSING OFFICER IS DELETED. AGAINST THE SAID FINDINGS OF TH E LD CIT(A) SUSTAINING THE ADDITION OF RS 7,00,000/-, THE ASSESSEE IS IN A PPEAL BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE IS HAVING 27 BIGHAS OF AGRICULTURAL LAND A ND NO OTHER SOURCE OF INCOME EXCEPT AGRICULTURAL INCOME. IT WAS SUBMITTED THAT RS. 2,40,000/- WAS DEPOSITED IN HIS BANK ACCOUNT OUT OF HIS AGRICU LTURAL INCOME AND PROOF REGARDING THE LAND HOLDING AND THE SOURCE OF SUCH DEPOSIT HAS BEEN CONFIRMED BY WAY OF AN AFFIDAVIT OF THE ASSESS EE WHICH HAS NOT BEEN PROPERLY APPRECIATED BY THE LOWER AUTHORITIES. IT WAS FURTHER SUBMITTED THAT RS. 4,60,000/- WAS RECEIVED BY THE A SSESSEE FROM HIS SON SHRI MAHAVEER SINGH BY WAY OF A GIFT WHO HAD SO LD A PLOT OF AGRICULTURAL LAND ON THE SAME DAY AND IN SUPPORT, COPY OF SALE DEED OF LAND SOLD BY THE ASSESSEE AND AFFIDAVIT OF ASSESSEE S SON WAS SUBMITTED BEFORE THE LD CIT(A) WHICH HAS AGAIN NOT BEEN PROPE RLY APPRECIATED. IT WAS FURTHER SUBMITTED THAT REST RS. 40,000/- WAS DE POSITED OUT OF PREVIOUS CASH WITHDRAWAL OF RS. 50,000/- FROM THE S AME BANK ON 16.12.2010. IT WAS ACCORDINGLY SUBMITTED THAT THE A O IN HIS REMAND REPORT, THE LD CIT(A) IN HIS APPELLATE ORDER HAVE N OT CONTROVERTED THE SUBMISSIONS OF THE ASSESSEE, CONTENTS OF THE AFFIDA VIT AND OTHER DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE, TH EREFORE, THE ADDITION OF RS. 7,00,000/- SUSTAINED BY THE LD. CIT (A) MAY KINDLY BE DELETED. ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 4 5. PER CONTRA, THE LD. DR SUBMITTED THAT THE ASSESS MENT IN THIS CASE WAS ORIGINALLY COMPLETED U/S 144 OF THE ACT. THEREF ORE, THERE IS NO INFORMATION AVAILABLE BEFORE THE ASSESSING OFFICER REGARDING THE SOURCE OF SUCH DEPOSITS AND ACCORDINGLY THE ADDITION WAS M ADE BY THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT DU RING THE APPELLATE PROCEEDINGS, THE ASSESSEE SUBMITTED CERTAIN ADDITIO NAL EVIDENCES AND MATTER WAS REMANDED TO THE ASSESSING OFFICER WHEREI N THE LATTER HAS CONFIRMED THAT THE ASSESSEE HAS MADE FRESH CASH DEP OSITS OF RS. 7,00,000/- DURING THE YEAR. IT WAS FURTHER SUBMITTE D THAT THE LD. CIT(A) HAS DULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AS WELL AS THE AFFIDAVITS AND OTHER DOCUMENTARY EVIDENCES WITH REG ARD TO SOURCE OF SUCH DEPOSITS IN PARA 5.7 OF HIS ORDER AND SINCE TH E SAME WERE FOUND NOT CREDIBLE, THE LD AR CONTENTION IS DEVOID OF ANY MERIT. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEES SUBMISSIO NS AS WELL AS EVIDENCES SUBMITTED DURING THE APPELLATE PROCEEDING S HAVE BEEN DULY CONSIDERED BY THE LD. CIT(A) AND THE CONTENTION OF THE LD. AR THAT THE SAME HAVE NOT BEEN DULY CONSIDERED IS NOT CORRECT. HE ACCORDINGLY SUPPORTED THE FINDINGS BY THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED ISSUE UND ER CONSIDERATION IS WHETHER THE ASSESSEE HAS OFFERED SATISFACTORY EXPLA NATION IN SUPPORT OF CASH DEPOSIT OF RS 7 LACS IN HIS BANK ACCOUNT DURIN G THE YEAR AND WHETHER SUCH EXPLANATION IS SUPPORTED BY ANY VERIFI ABLE EVIDENCE ON RECORD OR NOT. THE ASSESSEE HAS SUBMITTED THAT THE SOURCE OF SUCH CASH DEPOSIT IS OUT OF HIS AGRICULTURE INCOME, GIFT RECE IVED FROM HIS SON AND FROM PREVIOUS CASH WITHDRAWALS. IN SUPPORT, IT IS CLAIMED THAT THE LAND ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 5 HOLDING, AFFIDAVIT OF THE ASSESSEE, THE AFFIDAVIT O F SON OF THE ASSESSEE, COPY OF THE SALE DEED HAVE BEEN SUBMITTED BEFORE TH E LOWER AUTHORITIES AND WHICH HAVE NOT BEEN PROPERLY APPRECIATED AND HA VE NOT BEEN CONTROVERTED. ON THE OTHER HAND, THE CONTENTION OF THE LD DR IS THAT THE SAME HAVE BEEN DULY CONSIDERED AND NOT FOUND CR EDIBLE, HENCE REJECTED BY THE LD CIT(A). IN ORDER TO APPRECIATE T HE RIVAL CONTENTIONS, DURING THE COURSE OF HEARING, WE ASKED THE LD AR WH ETHER THE DOCUMENTARY EVIDENCES HAVE BEEN FURNISHED BEFORE US . IN RESPONSE, HE SUBMITTED THAT THE SAME HAVE NOT BEEN SUBMITTED FOR THE REASON THAT THE SAME HAVE NOT BEEN CONTROVERTED AND THUS A CCEPTED BY THE LOWER AUTHORITIES. GIVEN THAT THE DOCUMENTARY EVIDE NCE IN SUPPORT OF THE ASSESSEES EXPLANATION IS NOT AVAILABLE BEFORE US, WE ARE UNABLE TO TAKE A VIEW IN THE MATTER AND WE DEEM IT APPROPRIAT E THAT THE MATTER IS SET-ASIDE TO THE FILE OF THE LD CIT(A) WHO SHALL EX AMINE THE SAME AFRESH AND PASS A SPEAKING ORDER AFTER PROVIDING REASONABL E OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE GROUND NO. 1 IS ALLOW ED FOR STATISTICAL PURPOSES. 7. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED TH E ACTION OF THE LD CIT(A) IN GIVING DIRECTIONS U/S 150(1) OF THE ACT T O BRING TO TAX INTEREST ON FDRS WITHOUT ANY SHOW-CAUSE NOTICE. SINCE WE HA VE SET-ASIDE THE OTHER MATTER, THIS MATTER IS ALSO SET-ASIDE TO THE FILE OF THE LD CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING REASONABLE T O THE ASSESSEE. IN THE RESULT, THE GROUND IS ALLOWED FOR STATISTICAL P URPOSES. 8. IN THE ADDITIONAL GROUNDS OF APPEAL, THE ASSESSE E HAS CHALLENGED THE INITIATION OF PROCEEDINGS U/S 148 AND APPROVAL GRANTED BY THE LD PR ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 6 CIT U/S 151 OF THE ACT. IT WAS SUBMITTED THAT THE AO HAS ISSUED NOTICE U/S 148 ON THE BASIS OF SOME AIR INFORMATION FOR VE RIFICATION OF THE SOURCE OF FDRS OF RS. 40,32,671/- AND CASH DEPOSITS OF RS. 21,00,000/- IN THE BANK ACCOUNT OF THE ASSESSEE. AS PER HIM THE ESCAPED INCOME IN THE CASE OF THE ASSESSEE FOR THE A.Y. 2011-12 WAS R S. 61,32,671/- FOR WHICH HE HAS ISSUED NOTICE U/S 147/148. WHEREAS, ON THE BASIS OF SUBMISSIONS OF THE ASSESSEE AND STATEMENT OF GRANDS ON OF THE ASSESSEE RECORDED BY AO, THE AO HAS ADMITTED THAT DURING THE YEAR THERE WERE FRESH CASH DEPOSITS OF RS. 7 LAKHS ONLY AND THE ASS ESSEE HAD ACQUIRED FDRS OF RS. 10 LAKHS ONLY, THAT TOO OUT OF MATURITY AMOUNTS OF FDRS OF EARLIER YEAR. THE PROCEEDINGS INITIATED BY THE AO U /S 147/148 ON THE BASIS OF WRONG FACTS, SIMPLY FOR VERIFICATION OF SO URCE OF BANK DEPOSITS AND WITHOUT ANY TANGIBLE MATERIAL ARE BAD IN LAW AN D DESERVE TO BE QUASHED. IT WAS SUBMITTED THAT THE APPROVAL HAS BEE N ACCORDED BY THE LD PR CIT, ALWAR ON BASIS OF WRONG FACTS WITHOUT AN Y APPLICATION OF MIND. 9. WE FIND THAT IT IS A CASE WHERE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME PRIOR TO THE ISSUE OF NOTICE U/S 1 48 OF THE ACT. BASIS INFORMATION RECEIVED FROM AIR THAT THERE ARE DEPOSI TS IN THE ASSESSEES BANK ACCOUNTS, THE AO AGAIN ISSUED NOTICES TO THE A SSESSEE, HOWEVER THERE WAS NO COMPLIANCE ON PART OF THE ASSESSEE. T HEREFORE, BASIS SUCH AIR INFORMATION, THE NOTICE U/S 148 HAS BEEN ISSUED . IT IS THEREFORE A CASE WHERE THERE IS TANGIBLE INFORMATION IN POSSESS ION OF THE AO THAT THERE ARE DEPOSITS IN THE ASSESSEES BANK ACCOUNT A ND THEREAFTER, THE AO HAS TAKEN STEPS TO REACH OUT TO THE ASSESSEE TO VERIFY SUCH DEPOSITS AND TO FILE HIS RETURN OF INCOME, HOWEVER, THERE HA S BEEN COMPLETE NON- ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 7 COMPLIANCE ON PART OF THE ASSESSEE, THEREFORE, IN S UCH CIRCUMSTANCES, WHERE THE AO FORMS A PRIMA FACIE BELIEF THAT THE IN COME HAS ESCAPED ASSESSMENT AND ISSUE NOTICE U/S 148, WE DONOT SEE A NY INFIRMITY IN THE ACTION OF THE AO IN EXERCISING HIS JURISDICTION U/S 147 OF THE ACT AND IN THE ACTION OF THE LD PR CIT IN ACCORDING HIS APPROV AL. AS FAR AS VARIATION IN THE QUANTUM OF DEPOSITS AS STATED IN THE REASONS AND FINALLY ASSESSED PURSUANT TO THE FIRST APPELLATE PROCEEDINGS IS CONC ERNED, WE FIND THAT THE QUANTUM OF DEPOSITS IS BASED ON THE INFORMATION SHARED BY THE BANK WITH THE REVENUE DEPARTMENT AND FORMS PART OF THE AIR INFORMATION AND WHERE BASED ON SUBSEQUENT EXAMINATI ON DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS, THERE IS VARI ATION IN SUCH QUANTUM OF DEPOSITS, THE SAME CANNOT BE A BASIS TO HOLD THE VERY INITIATION OF REASSESSMENT PROCEEDINGS AS BAD IN LA W. THE DECISIONS RELIED UPON BY THE LD AR ARE DISTINGUISHABLE ON FAC TS AND THUS, DOESNT SUPPORT THE CASE OF THE ASSESSEE. IN THE RESULT, T HE GROUND OF APPEAL IS DISMISSED. IN THE RESULT, THE APPEAL IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 03/08/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/08/2020. *SANTOSH ITA NO.80/JP/2020 SHRI BHUP SINGH VS. ITO 8 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BHUP SINGH, BHARATPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2, BHARATPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 80/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR