SHRI ASHARAM MEENA, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

ITA 819/JPR/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7960 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA JHA CIT DHK
• Assessee Lawyers: DEVANG GARGIEYA ADVS
• Keywords: Search and seizure; Corroborative evidences
• Section: 143(3); 68; 69

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 JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA -@ ITA NOS. 817 TO 820/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEARS : 2010-11 TO 2013-14 SHRI ASHARAM MEENA, 435, MALIYO KA MOHALLA, HASANPURA-A, JAIPUR, PLOT NO. 75, SHREE RAM VIHAR, JAGATPURA, JAIPUR. CUKE VS. A.C.I.T., CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ALJPM 7078 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MAHENDRA GARGIEYA & SHRI DEVANG GARGIEYA (ADVS) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA JHA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/08/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/08/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF LD. CIT(A)-4, JAIPUR DATED 29/08/2017 FOR THE A.Y. 2010-11 TO 2013-14 IN THE MATTER OF ORDER PASSED U/S 143(3) R.W.S. 153C OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 2 2. IN ALL THESE APPEALS, THE ASSESSEE IS AGGRIEVED FOR THE ADDITION MADE ON ACCOUNT OF AMOUNT FOUND TO BE DEPOSITED IN THE BANK ACCOUNT EITHER IN CASH OR BY CHEQUE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A MEMBER OF SHARMA GROUP, ON WHOSE PREMISES, A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 31/07/2012. DURING THE SEARCH PROCEEDINGS, AT THE PREMISES OF M/S S.K. SHARMA FINANCE CO., A BANK PASSBOOK OF BANK OF RAJASTHAN LTD. WAS FOUND (MARKED AS ANNEXURE-A1). THE A.O. MADE THE ADDITION OF CERTAIN CASH AND BANK ENTRIES REFLECTING IN THE SAID BANK PASSBOOK BY HOLDING THAT THE ASSESSEE FAILED TO DISCLOSE THESE DEPOSITS IN HIS RETURN OF INCOME, THEREFORE, THE DEPOSITS ARE LIABLE TO BE TAXED IN HIS HANDS. IN THE FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE A.O. NOW THE ASSESSEE IS IN FURTHER APPEALS BEFORE THE ITAT. 4. FROM THE RECORD, I FOUND THAT IN THE A.Y. 2010-11, AN ADDITION OF RS. 2.40 LACS WERE MADE ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. THE REFERRED TRANSACTIONS SHOWN IN THE BANK PASSBOOK OF THE ASSESSEE ARE AS UNDER: ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 3 DATE PB AMOUNT NATURE OF DEPOSIT CHEUQE RETURNED ON 04/06/2009 PB-7 1,00,000/- CHEUQE 05/06/2009 23/02/2010 PB-8 80,000/- CHEUQE 24/02/2010 23/02/2010 PB-8 60,000/- CHEUQE 24/02/2010 TOTAL 2,40,000/- THE A.O. MADE THE ADDITION OF RS. 2,40,000/- WHICH WAS CONFIRMED BY THE LD. CIT(A). 5. FROM THE RECORD, I FOUND THAT THESE WERE THE AMOUNTS RECEIVED OUT OF/AGAINST THE ADVANCES ALREADY MADE BY THE ASSESSEE IN THE EARLIER YEAR THAT IS A.Y 2006-07 TO DIFFERENT PERSONS BY THE ASSESSEE JUST TO EXTEND FINANCIAL HELP. THE THREE TRANSACTIONS OF CHEQUE DEPOSITS WHICH WERE TREATED BY THE AO AS UNEXPLAINED DEPOSITS, WERE NEVER GOT ENCASHED. THE ENTRY OF RS.1,00,000/- ON DATED 04.06.2009 MENTIONED AS '04.06.2009 BY INST 018929', GOT REJECTED ON THE VERY NEXT DAY AND IN THE BANK PASSBOOK IT IS CLEARLY MENTIONED AS '05.06.2009 REJECT: 018929 INSU.'. THE TRANSACTION IN THE BANK PASSBOOK DATED 23.02.2010 OF RS.80,000/- ALSO GOT REJECTED ON THE VERY NEXT DAY. SIMILARLY, THE TRANSACTION IN THE BANK PASSBOOK DATED 23.02.2010 OF RS.60,000/- ALSO GOT REJECTED ON THE VERY NEXT DAY. EVEN CHEQUE RETURN CHARGES OF RS. 110/- EACH TIME IS ALSO DEBITED. THUS, WHEN THE CHEQUE ITSELF DISHONOURED, ULTIMATELY, THERE WAS NO CREDIT IN THE BANK ACCOUNT OF ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 4 THE ASSESSEE WITH RESPECT TO THE CHEQUES POINTED OUT BY THE A.O., THEREFORE, THERE IS NO MERIT IN THE ADDITION SO MADE. ACCORDINGLY, I DIRECT THE A.O. TO DELETE THE ADDITION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE FOR THE A.Y. 2010-11 IS ALLOWED. 7. IN THE A.Y. 2011-12, AN ADDITION OF RS.11,40,000/- BEING THE ALLEGED UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. THE FACTS AS NOTED BY THE AO ARE THAT DURING THE SEARCH AND SEIZURE PROCEEDING ON THE PREMISES OF M/S S.K SHARMA FINANCE CO. A BANK PASSBOOK OF BANK OF RAJASTHAN LTD. WAS FOUND. IN THE BANK PASSBOOK CERTAIN TRANSACTIONS WERE SHOWN WHOSE SOURCE WAS CHEQUES RECEIVED AND CASH DEPOSITS. THE AO MADE THE ADDITION ON THE GROUND THAT THESE ARE DEPOSITS IN THE BANK ACCOUNTS WHICH IS IN THE NAME OF THE ASSESSEE AND THE ASSESSEE FAILED TO DISCLOSE THESE DEPOSITS IN HIS RETURN OF INCOME. THE REFERRED TRANSACTIONS SHOWN IN THE BANK PASSBOOK OF THE ASSESSE ARE AS UNDER: DATE PB AMOUNT NATURE OF DEPOSITS REMARKS 15.04.2010 PB-8 80,000/- CHEQUE CHEQUE RETURNED ON 16.04.2010. 15.04.2010 PB-8 60,000/- CHEQUE CHEQUE RETURNED ON 16.04.2010. 28.07.2010 PB-9 1,00,000/- CASH 80,000 OUT OF JOB WORK RECEIPTS AND ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 5 20,000 OUT OF PAST SAVINGS. 03.11.2010 PB-9 4,00,000/- CASH SHARE RECEIVED FROM PARENTS. 27.01.2011 PB-9 1,50,000/- CASH SHARE RECEIVED FROM PARENTS. 28.01.2011 PB-9 1,50,000/- CASH SHARE RECEIVED FROM PARENTS. 29.01.2011 PB-9 1,10,000/- CASH SHARE RECEIVED FROM PARENTS. 31.01.2011 PB-9 90,000/- CASH 50,000 OUT OF OWN AGRICULTURE INCOME AND 40,000 OUT OF SHARE RECEIVED FROM PARENTS. TOTAL 11,40,000/- THE AO MADE THE ADDITION OF RS.11,40,000/- WHICH WAS CONFIRMED BY THE CIT(A). 8. I HAD VERIFIED THE BANK STATEMENT AND FOUND THAT THE CHEQUE OF RS. 80,000/- DEPOSITED ON 15/04/2010 WAS DISHONOURED ON 16/04/2010 AND THE CHEQUE OF RS. 60,000/- DEPOSITED ON 15/04/2010 WAS DISHONOURED ON 16/04/2010, ACCORDINGLY, THERE IS NO MERIT IN THE ADDITION OF THESE TWO CHEQUES WHICH WERE DISHONOURED AND NO CREDIT WAS MADE IN THE BANK ACCOUNT OF THE ASSESSEE. 9. AS REGARDS TO CASH DEPOSITS AMOUNTING TO RS.10,00,000/- ON DIFFERENT DATES IT WAS SUBMITTED BEFORE THE LOWER AUTHORITIES THAT THESE ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 6 WERE OUT OF THE AGRICULTURE INCOME EARNED BY THE ASSESSEE, HIS JOB WORK RECEIPTS, SHARE OF AGRICULTURE INCOME RECEIVED FROM PARENTS AND OUT OF PAST SAVINGS. FOR THE SUBJECTED ASSESSMENT YEAR, THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,90,900. DURING THE YEAR THE ASSESSEE EARNED JOB WORK INCOME OF RS.80,000 WHICH WAS RECEIVED IN THE MONTH OF JULY 2010. THE ASSESSEE RECEIVED JOB WORK RECEIPTS IN CASH HENCE IT WAS NATURAL TO GET IT DEPOSITED IN THE BANK ACCOUNT. ACCORDINGLY, I DIRECT THE A.O. TO DELETE ADDITION OF RS. 80,000/- HOWEVER, WITH RESPECT TO THE BALANCE CASH, THE ASSESSEE COULD NOT EXPLAIN THE SOURCE WITH DOCUMENTARY EVIDENCE. ACCORDINGLY, I CONFIRM THE BALANCE ADDITION SUBJECT TO CREDIT OF RS. 50,000/- WHICH WAS CLAIMED BY THE ASSESSEE AS HIS AGRICULTURAL INCOME. THUS, OUT OF RS. 10.00 LACS, I CONFIRM ADDITION OF RS. 8,70,000/- (10,00,000 80,000 50,000). 10. IN THE RESULT, APPEAL OF THE ASSESSEE FOR THE A.Y. 2011-12 IS ALLOWED IN PART. 11. IN THE A.Y. 2012-13, AN ADDITION OF RS.3,99,403/- BEING THE ALLEGED UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. 12. I HAVE HEARD THE RIVAL CONTENTIONS AND FOUND THAT THE AO MADE THE ADDITION ON THE GROUND THAT THESE ARE DEPOSITS IN THE BANK ACCOUNTS ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 7 WHICH IS IN THE NAME OF THE ASSESSEE AND THE ASSESSEE FAILED TO DISCLOSE THESE DEPOSITS IN HIS ROI. IN THE BANK PASSBOOK DEPOSIT OF RS.3,99,403/- WAS SHOWN. THE AO TREATED THE SAID DEPOSIT AS UNEXPLAINED AND MADE ADDITION OF RS.3,99,403/- WHICH WAS CONFIRMED BY THE CIT(A). 13. IT WAS EXPLAINED BY THE LD AR THAT THE IMPUGNED AMOUNT OF RS.3,99,403/- WAS RECEIVED ON ACCOUNT OF MATURITY OF FDR TAKEN BY THE ASSESSEE ON 03.11.2010 (I.E. AY 2011-12). THE AO MADE TOTAL ADDITIONS OF RS. 11,40,000/- OUT OF DEPOSITS OF RS.22,79,403/- IN AY 2011-12 ON ACCOUNT OF UNEXPLAINED DEPOSITS MADE BY THE ASSESSEE. THE SAID ADDITIONS MADE BY THE AO ALSO INCLUDES CASH DEPOSIT MADE BY THE ASSESSEE ON 03.11.2010 OUT OF HIS AGRICULTURE INCOME. ON THE SAME DAY, THE ASSESSEE OBTAINED FDR OF RS. 4,00,000/- SHOWN IN THE BANK STATEMENT BEING TRANSFERRED. THIS FDR GOT LIQUIDATED ON 01.07.2011 AND THE ASSESSEE RECEIVED RS. 3,99,403/- AS CLOSURE PROCEEDS. IF THE AO HAD ANY DOUBT WITH REGARDS TO THE SOURCE OF DEPOSIT, HE COULD HAVE MADE DIRECT INQUIRY FROM THE BANK TO VERIFY THE SOURCE OF DEPOSIT BEING TRANSFER TO FDR IN BANK STATEMENT. THE AO HAS ALREADY MADE ADDITION OF RS.4,00,000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT IN AY 2011-12. THUS, THE SOURCE OF DEPOSIT IN THE CURRENT ASSESSMENT IS FULLY EXPLAINED. THEREFORE, NO ADDITION COULD BE MADE U/S 68 OR 69 OF THE ACT. ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 8 14. FROM THE RECORD, IT APPEARS THAT THE DEPOSIT WAS MADE OUT OF THE PROCEEDS OF THE MATURITY OF FDR WHICH WAS MADE IN THE EARLIER YEAR BY DEPOSITING OF CASH. AS I HAVE ALREADY CONFIRMED THE ADDITION IN THE EARLIER YEAR WHEN CASH WAS DEPOSITED, IT AMOUNTS TO DOUBLE ADDITION IF THE PROCEEDS OF FDR IS AGAIN ADDED IN THE ASSESSEES INCOME. IN ALL FAIRNESS, I RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR DECIDING THE ISSUE AFRESH AFTER VERIFYING THESE FACTS AND GIVING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 15. IN THE RESULT, APPEAL OF THE ASSESSEE FOR THE A.Y. 2012-13 IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 16. IN THE A.Y. 2013-14, AN ADDITION OF RS.5,00,000/- BEING THE ALLEGED UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. THE AO MADE THE ADDITION ON THE GROUND THAT THESE ARE DEPOSITS IN THE BANK ACCOUNTS WHICH IS IN THE NAME OF THE ASSESSEE AND THE ASSESSEE FAILED TO DISCLOSE THESE DEPOSITS IN HIS ROI. IN THE BANK PASSBOOK DEPOSIT OF RS.5, 00,000/- WAS SHOWN. THE AO TREATED THE SAID DEPOSIT AS UNEXPLAINED AND MADE ADDITION OF RS.5, 00,000/- WHICH WAS CONFIRMED BY THE LD. CIT(A). ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 9 17. IT WAS ARGUED BY THE LD AR OF THE ASSESSEE THAT THE IMPUGNED AMOUNT OF RS.5,00,000/- WAS RECEIVED BACK ON ACCOUNT OF INTEREST FREE ADVANCES WHICH THE ASSESSEE HAD ALREADY GIVEN TO M/S S.K. SHARMA FINANCE CO., JAIPUR VIDE CHEQUE NO.160592 DATED 01.02.2011. THE ASSESSEE RECEIVED REPAYMENT OF SAID VERY AMOUNT THROUGH ACCOUNT PAYEE CHEQUE BEARING CHEQUE NO. 089648 DRAWN ON CENTRAL BANK OF INDIA, WHICH FACT CAN BE CROSS VERIFIED FROM BANK STATEMENT OF M/S S.K. SHARMA FINANCE CO., SHOWING THE CORRESPONDING WITHDRAWAL AS TRANSFER TO THE ASSESSEE. THUS, SOURCE OF DEPOSIT OF RS. 5, 00,000/- BEING SELF- EVIDENT ON THE FACE OF SAME VERY EVIDENCE I.E. THE SEIZED ANNEXURE A-1 (BANK PASS BOOK), IS FULLY EXPLAINED AND SUPPORTED BY CORROBORATIVE EVIDENCES. 18. FROM THE RECORD, I FOUND THAT THE LD. CIT(A) IN HIS APPELLATE ORDER AT PAGE NO. 2 REPRODUCED SUBMISSION OF THE ASSESSEE TO THE EFFECT THAT COPIES OF SUCH BANK STATEMENTS SHOWING THE FACT OF CLOSURE PROCEEDS OF FDR WAS ALREADY MENTIONED. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I RESTORE BACK MATTER BACK TO THE FILE OF THE A.O. FOR DECIDING THE ISSUE AFRESH AFTER VERIFYING ABOVE FACTS AND GIVING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA 817 TO 820/JP/2017 SHRI ASHARAM MEENA VS ACIT 10 19. IN THE RESULT, APPEAL OF THE ASSESSEE FOR THE A.Y. 2013-14 IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH AUGUST, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL; @ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 TH AUGUST, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI ASHARAM MEENA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CENTRAL CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 817 TO 820/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR