OM PRAKASH SHARMA, Jaipur V. ITO, Jaipur

ITA 852/JPR/2013

• Counselvise Citation: 85223114 RSA 2013
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Source of fund; Additional evidence

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 VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 852/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI OM PRAKASH SHARMA E-252, UDAI PATH, SHYAM NAGAR JAIPUR CUKE VS. THE ITO WARD- 2 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AFPPS 3052 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI K.L. MOOLCHANDANI, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 06-09-2013 FOR THE ASSESSMENT YEAR 20 08-09 WHEREIN THE SOLD GROUND OF THE ASSESSEE IS THAT THE AUTHORITIES BELOW ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 5,63,000 /- IN RESPECT OF CASH CREDITS. 2.1 LD. COUNSEL FOR THE ASSESSEE FILED THE PAPER BO OK ALONG WITH WRITTEN SUBMISSIONS. IT IS CONTENDED THAT THE ASSES SEE IS A RETIRED PERSON ITA NO. 852/JP/2013 SHRI OM PRAKASH SHARMA VS. ITO, WARD- 2(4), JAIPUR . 2 NOW SETTLED IN USA. AT THE RELEVANT TIME ALL HIS FA MILY MEMBERS WERE SETTLED IN USA AND ASSESSEE HAVING APPLIED FOR US V ISA WAS CONSTRAINED TO REMAIN IN INDIA. HE WAS PUTTING UP WITH HIS BRO THER AT JAIPUR SHRI JAGMANDER SWAROOP SHARMA AT 21A, SHANTI VIHAR, TONK ROAD. ASSESSEES SOURCES OF INCOME COMPRISED OF PENSION, INTEREST INCOME AND CAPITAL GAINS. WHILE VERIFYING THE BANK A/C, THE AO FOUND A DEPOSIT OF RS. 10,41,000/- AND WITHDRAWAL OF RS. 7,31,500/-; A SSESSEE SUBMITTED EXPLANATION IN THIS BEHALF, WHICH DID NOT FIND FAVO UR OF LD. AO. BESIDES REJECTING ASSESSEES EXPLANATION THAT HE WAS PUTTIN G UP WITH HIS BROTHER AND BEING OLD WAS LIVING FRUGAL LIFE; HOUSEHOLD EXP ENSES WERE ALSO ESTIMATED AT RS. 2,40,000/-. THE ABOVE ADDITION OF RS. 5,63,000/- WAS MADE AS AN AGGREGATE OF PEAK OF THE CASH CREDIT AND ALLEGED HOUSE WITHDRAWALS EXPENSES WHICH WERE NOT INCURRED BY THE ASSESSEE. WHILE DOING SO LD. AO FAILED TO APPRECIATE THE ASSESSEES SUBMISSION IN CORRECT PERSPECTIVE. 2.2 AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL BEF ORE LD. CIT(A) AND FILED ADDITIONAL EVIDENCE BY APPLICATION DATED. 22- 08-13 TO FURTHER BUTTRESS HIS CONTENTIONS. UNFORTUNATELY LD. CIT(A) FAILED TO CONSIDER THE APPLICATION FOR ADDITIONAL EVIDENCE AND SUMMARILY D ISMISSED THE APPEAL BY HOLDING AS UNDER: - ITA NO. 852/JP/2013 SHRI OM PRAKASH SHARMA VS. ITO, WARD- 2(4), JAIPUR . 3 4.1 IT IS NOTED THAT THE APPELLANT HAS NOT BEEN ABLE TO GIVE ANY COGENT REASON TO EXPLAIN THE SAID DEPOSIT. THE APPELLANT HAS TRIED TO EXPLAIN THE DEPOSIT FROM HIS PAST SAVI NGS. HOWEVER, EVEN AT THE APPELLATE STAGE, NO CONCRETE E VIDENCE HAS BEEN FURNISHED TO EXPLAIN THE SOURCE OF MONEY D EPOSITED IN THE BANK ACCOUNT. IT IS FURTHER NOTED THAT THE A O HAS ALREADY GIVEN DUE CREDIT FOR THE WITHDRAWALS AND DE POSITS OF THE CASH IN THE ACCOUNTS OF THE APPELLANT. SINCE NO SPECIFIC EVIDENCE HAS BEEN FURNISHED BY THE APPELLANT, THE A DDITION MADE BY THE AO APPEARS TO BE JUSTIFIED AND IS ACCOR DINGLY, CONFIRMED. 2.3 THE LD. AR SUBMITTED THAT THESE FINDINGS ARE NO T WELL-REASONED FOR THE FOLLOWING REASONS:- (I) IN THE WRITTEN SUBMISSIONS, A TOTALING MISTAKE OF RS.16,000/- WAS POINTED OUT IN THE WORKING OF THE SURPLUS FUNDS AVAILABLE FOR ROTATION. HOWEVER, THIS FACT W AS NOT CONSIDERED AND ADJUDICATED WHILE CONFIRMING THE ADD ITION ON THIS COUNT. (II) THE WORKING OF THE SURPLUS FUNDS OF RS.4,91,500/- AS ESTIMATED BY THE AO IN THE ASSESSM ENT ORDER WAS CONFIRMED BY THE LEARNED CIT (A) WITHOUT CONSID ERING THE CONTENTIONS OF THE APPELLANT MADE IN THIS REGAR D. AS EVIDENT FROM THE WRITTEN SUBMISSIONS AND THE AFFIDA VIT OF SHRI JAGMANDER SWAROOP SHARMA, AT THE GIVEN POINT O F TIME, THE APPELLANT WAS ALL ALONE IN INDIA AND WAS PUTTIN G UP WITH HIS BROTHER SHRI JAGMANDER SWAROOP SHARMA AT HIS RE SIDENCE SO ALL HIS DAY TO DAY REQUIREMENTS LIKE TEA, MILK, FRUITS, MEALS ETC. WERE TAKEN CARE OF BY HIS BROTHER. THE APPELLA NT HAD NOT ITA NO. 852/JP/2013 SHRI OM PRAKASH SHARMA VS. ITO, WARD- 2(4), JAIPUR . 4 TO INCUR ANY EXPENDITURE ON THIS ACCOUNT. THIS FACT HAD ALSO BEEN CONFIRMED BY THE BROTHER OF THE APPELLANT IN T HE AFFIDAVIT AS SUBMITTED BEFORE THE LEARNED CIT(A). T HE LEARNED CIT (A) DID NOT CONSIDER THIS FACT WHILE DE CIDING THE APPEAL AND DID NOT ALLOW CREDIT OF RS.216000/- (RS. 240000- 24000) TO ESTIMATE THE SURPLUS FUNDS AVAILABLE WITH THE APPELLANT FOR ROTATION. IF SUCH CREDIT OF RS.216000 /- IS ALLOWED THEN THE SURPLUS FUNDS AVAILABLE WITH THE A PPELLANT WOULD WORK OUT AT RS.707500/- AS AGAINST RS.4,91,50 0/- WORKED OUT BY THE AO; RESULTING REDUCTION IN THE AD DITION BY RS.216000/-. SUCH CREDIT MAY KINDLY BE ALLOWED NOW IN THE BACK-GROUND OF ABOVE FACTS AND THE ADDITION MADE ON THIS ACCOUNT BE REDUCED BY RS.216000/- AS CONTENDED IN T HE WRITTEN SUBMISSIONS. (III) LIKEWISE, NO CREDIT OF RS.333500/- OUT OF THE PAST SAVING WAS ALSO ALLOWED BY THE LEARNED CIT (A) ON THE PLEA THAT NO CONCRETE EVIDENCE HAS BEEN FURNISHED TO EXPLAIN THE SOURCE OF MONEY DEPOSITED IN THE BANK ACCOUNT WHILE ARRIVING AT THE ABOVE CONCLUSIONS, THE LEARNED CIT (A) HAD IGNORED THE PAST HISTORY OF THE CASE. AT THE GIVEN POINT OF TIME THE APPELLANT WAS 62 YEARS. OLD AND WAS REGULA RLY ASSESSED TO TAX FOR LAST SO MANY YEARS. HIS SPOUSE AND CHILDREN HAD BEEN RESIDING IN USA FOR LAST SO MANY YEARS AND WERE WILL SETTLED. THEY HAD BEEN SENDING MONEYS TO THE APPELLANT FROM USA REGULARLY AS INFORMED BY THE APP ELLANT IN HIS LETTER (COPY SUBMITTED HEREWITH FOR YOUR KIN D PERUSAL AND RECORD). HAVING CONSIDERED THE WRITTEN SUBMISSI ONS AND THE FACTS AS COMMUNICATED BY THE APPELLANT VIDE ABO VE LETTER, IT MAY KINDLY BE APPRECIATED THAT THE APPELLANT WAS IN A POSITION TO SAVE RS.333500/- ARE SATISFACTORILY EXP LAINED IN THE BACK-GROUND OF FAMILY HISTORY OF THE APPELLANT. (IV) THE RELIEF OF RS.16000/- ON ACCOUNT OF THE TOTALING MISTAKE AS POINTED OUT ABOVE MAY KINDLY BE ALLOWED. ITA NO. 852/JP/2013 SHRI OM PRAKASH SHARMA VS. ITO, WARD- 2(4), JAIPUR . 5 2.4 LD. DR SUPPORTED THE ORDERS OF AUTHORITIES BELO W. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS ABOUT ASSESSEE BEING PENSIONER AND FAMILY ANTECEDENTS ARE NOT DISPUTED BY THE REVENUE. LOOKIN G AT THE EXPLANATION ABOUT THE FINANCIAL SUMMARY IN RESPECT OF CASH CRE DIT AS MENTIONED ABOVE AND ALLEGED MISTAKE OF RS. 16,000/- THE CONTENTIONS OF THE LD. COUNSEL DESERVE TO BE MERITED. LD. CIT(A) FAILED TO CONSIDE R ASSESSEES APPLICATION FOR ADDITIONAL EVIDENCE AND SUMMARILY D ISMISSED THE APPEAL BY ABOVE OBSERVATIONS. IN THESE FACTS AND CIRCUMSTA NCES ADDITION TO THE EXTENT OF CASH CREDIT AND MISTAKE OF RS. 16,000/- D ESERVE TO BE DELETED. 2.6 APROPOS THE HOUSE HOLD WITHDRAWALS, IT HAS NOT BEEN DISPUTED THAT ASSESSEE WAS STAYING WITH HIS BROTHER WHO IS CLAIME D TO BE A WELL TO DO PERSON OWNING OWN HOUSE. BE THAT AS IT MAY, IT CANN OT BE ASSUMED THAT ASSESSEE DID NOT HAVE TO INCUR POCKET EXPENSES. THE REFORE, POCKET EXPENSES ARE ESTIMATED AT RS. FIVE THOUSAND PER MON TH I.E. RS. 60,000/- FOR THIS YEAR. THE ADDITION QUA HOUSE HOLD WITHDRAW ALS AND TOTAL ADDITION IN RESPECT OF ASSESSEES GROUNDS STANDS REDUCED TO RS. 60,000/-. ITA NO. 852/JP/2013 SHRI OM PRAKASH SHARMA VS. ITO, WARD- 2(4), JAIPUR . 6 3.0 IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /11/ 2015 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI OM PRAKASH SHARMA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 852/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR