SHRI DEEPAK BANSAL, Jaipur V. INCOME TAX OFFICER, Jaipur

ITA 806/JPR/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4993 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISHA CHOUDHARY CIT DHK
• Assessee Lawyers: VEDANTA AGARWAL
• Keywords: Rejection of books of accounts; Gift; Corroborative evidences; Set aside
• Section: 142(1); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, (VC) JAIPUR JH LANHI XKSLKBZ] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSIAN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 806/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09. SHRI DEEPAK BANSAL, A-38, BHAN NAGAR, QUEENS ROAD, VAISHALI NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER (HQRS.) OFFICE OF PR. COMMISSIONER OF INCOME-TAX-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AKPPB 1666G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VEDANTA AGARWAL (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. MANISHA CHOUDHARY (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05.01.2021. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08 /02/2021 . VKNS'K@ ORDER PER SANDEEP GOSIAN, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 21.08.2017 OF LD. CIT (A)-1, JAIPUR FOR THE ASSESSMENT YEAR 2008- 09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW ALSO LD. CIT (A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 6,78,723/- MADE BY LD. AO BY REJECTING THE EXPLANATION FILED T HE ASSESSEE BEFORE LD. AO AS WELL BEFORE CIT (A). 2 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. 2. THIS IS THE SECOND ROUND OF APPEAL BEFORE THE TR IBUNAL. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED ON 31. 09.2009 DECLARING TOTAL INCOME AT RS. 1,09,672/-. THE CASE WAS SELECTED FOR SCRUTINY. IN THE SCRUTINY ASSESSMENT, THE AO NOTED THAT THERE IS A CASH DEPOSIT OF RS. 24,66, 204/- IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH STATE BANK OF INDIA , HATWARA ROAD, JAIPUR. ON BEING FAILED TO EXPLAIN THE SOURCE OF DEPOSIT OF TH IS AMOUNT BY THE ASSESSEE, THE ASSESSING OFFICER MADE THE ADDITION OF RS. 24,66,20 4/-. ON APPEAL BEFORE THE LD. CIT (A), THE LD. CIT (A) CONFIRMED THE ADDITION VIDE HI S ORDER IN ITA NO. 470/10-11 DATED 23.01.2012. AGGRIEVED BY THE ORDER OF THE LD. CIT (A), THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL SET ASIDE THE ORDER OF THE LD. CIT (A) AND REMITTED THE MATTER BACK TO THE ASSESSING AUTHORITY WITH THE DIRECTION TO ALLOW REASONABLE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR EXPLAINING HIS CASE AND PASS ORDER AFRESH IN ACCORDANCE WITH LAW V IDE ITS ORDER IN ITA NO. 243/JP/2012 DATED 22.08.2013. 3. IN COMPLIANCE TO THE ORDER OF THE TRIBUNAL, THE A.O. ISSUED NOTICE UNDER SECTION 142(1) OF THE IT ACT ASKING THE ASSESSEE TO FILE THE SOURCE OF CASH DEPOSIT OF RS. 36,89,710/- IN SB A/C NO. 30215156688 MAINTAINE D WITH STATE BANK OF INDIA, HATWARA ROAD, JAIPUR. IN RESPONSE, THE ASSESSEE FU RNISHED COPY OF CASH BOOK FOR THE PERIOD FROM 01.04.2007 TO 31.03.2008 SHOWING OP ENING CASH BALANCE OF RS. 6,78,723/- AS ON 01.04.2007. THE ASSESSEE WAS ASKED TO FURNISH SUPPORTING EVIDENCE IN RESPECT OF OPENING CASH BALANCE OF RS. 6,78,723/-. THE ASSESSEE COULD NOT FILE ANY CORROBORATIVE EVIDENCE BEFORE THE AO T O EXPLAIN THE OPENING CASH BALANCE AND IN SUPPORT OF THE DETAILS SUBMITTED BY HIM. THUS THE AO TREATING THE 3 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. AMOUNT OF RS. 6,78,723/- AS UNEXPLAINED, MADE THE A DDITION OF THIS AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORD ER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD.CIT (A). THE LD. CI T (A) CONFIRMED THE ORDER OF THE AO BY OBSERVING IN PARA 3.1.2 OF HIS ORDER AS UNDER :- (I) THE BRIEF FACTS OF THE CASE ARE THAT THIS IS THE SECOND ROUND OF LITIGATION. IN THE FIRST ROUND, THE AO HAS ASSESSE D THE INCOME OF THE APPELLANT AT RS. 25,75,876/- AGAINST RETURNED INCOM E OF RS. 1,09,672/- .THE MATTER TRAVELLED UPTO HONBLE ITAT AND THE MAT TER WAS SET ASIDE TO THE FILE OF AO. NOW, THE AO HAS MADE AN ADDITION OF RS. 6,78,723/- TO THE INCOME OF THE APPELLANT AS THE SAME WAS CLAI MED AS OPENING CASH IN HAND AS ON 01.04.2007, WHICH COULD NOT BE E XPLAINED SATISFACTORY BEFORE THE AO WITH DOCUMENTARY EVIDENC E. IT MAY BE MENTIONED THAT IN THE ORIGINAL ASSESSMENT ORDER, TH E ADDITIONS WERE MADE AS THE APPELLANT COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSIT IN ITS BANK ACCOUNT. (II) DURING THE APPELLATE PROCEEDINGS, EXCEPT MAKIN G THE ABOVE SUBMISSIONS, NOTHING WAS FILED BY THE APPELLANT TO SUPPORT ITS CONTENTIONS. IT IS TRITE LAW THAT THE ONUS IS ON TH E PERSON WHO IS MAKING A CLAIM. IN THE INSTANT CASE UNDER CONSIDERATION, T HE APPELLANT HAS TRIED TO EXPLAIN THE SOURCE OF CASH IN HAND AMOUNTING TO RS. 6,78,723/- BUT WITHOUT ANY DOCUMENTARY EVIDENCES. IT HAS ALREADY B EEN MENTIONED IN THE EARLIER PART OF THIS ORDER THAT A NUMBER OF OPP ORTUNITIES WERE PROVIDED TO THE APPELLANT TO EXPLAIN ITS CASE BUT T HE APPELLANT HAS FAILED TO PROVE ITS CONTENTIONS EVEN DURING THE APP ELLATE PROCEEDINGS. A CLAIM WITHOUT THE SUPPORTING EVIDENCE CANNOT BE ACC EPTED. THEREFORE, IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING AN ADDITION OF RS. 6,78,723/- TO THE INCOME OF THE APPELLANT AND THUS THE SAME IS HEREBY SUSTAINED. 4 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. 4. BEING AGGRIEVED, THE ASSESSEE CHALLENGING THE OR DER OF THE LD. CIT (A), PREFERRED APPEAL BEFORE THIS TRIBUNAL RAISING THE G ROUND THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE EXPLANATION OF THE ASSES SEE FURNISHED BEFORE THE AO AND LD. CIT (A). 5. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE IS REGULARLY ASSESSED TO TAX AND FILING THE RETURN OF INCOME AND OPENING CASH BALANCE IS DULY REFLECTED IN THE BOOKS OF ACCOUNT AS ON 01.04. 2007, THUS THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT CANNOT BE REJECTED BY T HE AO WITHOUT REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE LD. A/R HA S FURTHER CONTENDED THAT ONCE THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE NOT REJECTED B Y THE AO, THEN THE CASH WHICH IS SHOWN IN THE BOOKS OF ACCOUNTS IS AN EXPLAINED SOUR CE FOR DEPOSIT MADE IN THE BANK ACCOUNT. THE LD. A/R PLACED RELIANCE ON THE ORDER O F THIS TRIBUNAL IN THE CASE OF SMT. PINKI DEVI AGARWAL IN ITA NO. 515/JP/2018 AND SUBMITTED THAT THE ADDITION BE DELETED. 6. ON THE OTHER HAND, THE LD. D/R SUBMITTED THAT TH E ASSESSEE COULD NOT EXPLAIN THE DETAILS OF OPENING CASH BALANCE AS ON 01.04.200 7 AS MENTIONED BY THE AO AT PAGE 3 OF HIS ORDER, HENCE THE AO HAS RIGHTLY MADE THE ADDITION. THE LD. D/R RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE NOTE THAT AN IDENTICAL I SSUE HAS BEEN DECIDED BY THIS 5 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. BENCH OF THE TRIBUNAL IN THE CASE OF SMT. PINKI DEV I AGARWAL IN ITA NO. 515/JP/2018 DATED 16.01.2019 BY OBSERVING IN PARA 5 AS UNDER :- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. FOR EXPLAINING THE CA SH DEPOSIT IN THE BANK ACCOUNT OF RS. 13,82,626/-, THE ASSESSEE HAS F ILED THE CASH BOOK SHOWING THE OPENING CASH BALANCE OF RS. 11,32,626/- AND GIFT OF RS. 2,50,000/- RECEIVED DURING THE YEAR, OUT OF WHICH R S. 1,50,000/- RECEIVED FROM MOTHER SMT. SANTOSH DEVI AGARWAL AND RS. 1,00,000/- FROM FATHER SHRI MALI RAM AGARWAL. THE ASSESSEE P RODUCED THE GIFT DEEDS WHEREBY THE MOTHER AND FATHER OF THE ASSESSEE HAVE CONFIRMED THE GIFTS GIVEN OF RS. 1,50,000/- AND RS. 1,00,000/ - RESPECTIVELY TO THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE ASSESSE E HAS BEEN FILING HER RETURN OF INCOME REGULARLY AND ALSO PRODUCED THE RE TURN OF INCOME AS WELL AS BALANCE SHEETS FOR THE ASSESSMENT YEARS 200 9-10 AND 2010-11, AND THESE FACTS AND RECORDS ARE NOT IN DISPUTE. SI NCE NONE OF THE RETURNS OF INCOME IN THE PRECEDING YEAR WERE SUBJEC TED TO SCRUTINY ASSESSMENT, THEREFORE, THE AVAILABILITY OF CASH WIT H THE ASSESSEE WOULD NOT BE PROVED BY MERE FILING OF RETURN OF INCOME. HOWEVER, THE ASSESSEE HAS SHOWN THE AVAILABILITY OF CASH OF RS. 11,32,626/- IN THE BOOKS OF ACCOUNT BEING OPENING CASH BALANCE AS ON 0 1.04.2010. THE SAID CASH WAS ALSO CLOSING CASH BALANCE AS ON 31 ST MARCH, 2010 IN THE BALANCE SHEET AS ON 31 ST MARCH, 2010. THE RETURNS OF INCOME THOUGH WERE NOT SUBJECTED TO SCRUTINY, HOWEVER, ONCE THE C ASH WAS REFLECTED IN THE BOOKS OF ACCOUNT AND PART OF THE BALANCE SHE ET OF THE ASSESSEE, THEN IN THE ABSENCE OF SAID CASH INTRODUCED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, T HE ISSUE OF MAKING ADDITION BY DISALLOWING THE AVAILABILITY OF CASH IN THE HANDS OF THE ASSESSEE CAN BE CONSIDERED ONLY IN THE PRECEDING YE AR IN WHICH THE CASH WAS INTRODUCED BY THE ASSESSEE IN THE BOOKS OF ACCOUNT. THE AO 6 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. DURING THE ASSESSMENT PROCEEDINGS WAS VERY WELL AWA RE OF THE FACT THAT RS. 11,32,626/- WAS STATED TO HAVE BEEN INTROD UCED IN THE BOOKS DURING THE EARLIER ASSESSMENT YEAR AND, THEREFORE, IF THE SAID CLAIM OF THE ASSESSEE WAS NOT ACCEPTABLE THEN THE PROPER COU RSE OF ACTION WAS TO MAKE THE ADDITION OF THIS CASH INTRODUCED IN THE BOOKS OF ACCOUNT UNDER SECTION 68 IN THE RELEVANT ASSESSMENT YEAR IN WHICH THE SAID CASH WAS INTRODUCED IN THE BOOKS AND NOT IN THE YEA R UNDER CONSIDERATION WHEN IT IS SHOWN AS OPENING CASH BALA NCE. THE AO INSTEAD OF TAKING UP THE ASSESSMENT OF THE PRECEDIN G YEAR HAS MADE THE ADDITION OF THE SAID AMOUNT BY REJECTING THE SO URCE OF THE AMOUNT AS SHOWN AS OPENING CASH BALANCE. FURTHER, THE AO HAS NOT REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND, THEREFOR E, ONCE THE ASSESSEE HAS ESTABLISHED THE AVAILABILITY OF THE CA SH IN THE BOOKS OF ACCOUNT, THEN THE PROPER COURSE OF ACTION FOR REJEC TING THE SAID CLAIM AND MAKING THE ADDITION IS TO REOPEN THE ASSESSMENT OF THE EARLIER YEAR. HENCE, TO THE EXTENT OF AVAILABILITY OF CASH OF RS. 11,32,626/- BEING OPENING CASH BALANCE WHICH WAS DULY REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR THE YEAR UNDER CONSIDER ATION AS WELL AS IN THE EARLIER YEAR, THE SAME CANNOT BE REJECTED AND T HE CONSEQUENTIAL ADDITION IS NOT SUSTAINABLE. AS PER THE FACTS OF THE PRESENT CASE, THE OPENING B ALANCE AS ON 01.04.2007 HAS BEEN SHOWN IN THE TABULAR FORM BY THE ASSESSEE. THE WHOL E CASH BALANCE AMOUNT WAS FROM DIFFERENT PARTICULARS. THE AMOUNT AT POINT NO. 5 & 6 OF THE TABLE HAS ALREADY BEEN SHOWN IN THE ITR FILED. THEREFORE, KEEPING IN VIEW THE FACTS OF THE PRESEN T CASE AND CONSIDERING THE DECISION OF THIS BENCH HEREIN ABOVE, WE DELETE THE ADDITION SUSTAINED BY LD. CIT (A). 7 ITA NO. 806/JP/2017 SHRI DEEPAK BANSAL, JAIPUR. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/2021. SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) ( SANDEEP GOSIAN ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/02/2021. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI DEEPAK BANSAL, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ITO HQRS., OFFICE OF PR.CIT-1, J AIPUR. 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. 806/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR