ITO, Kishangarh V. ANURAG VYAS, Kishangarh

ITA 863/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99316 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATHEJA
• Assessee Lawyers: WRITTEN SUBMISSION DHK
• Keywords: Business income; Onus to prove
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 863/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ITO KISHANGARH CUKE VS. SHRI ANURAG VYAS VYAS BHAWAN, OLD CITY, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ANPPP 5213 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATHEJA FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : WRITTEN SUBMISSION LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/09/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17/09/2015 VKNS'K@ ORDER PER T.R. MEENA, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LD. CIT(A), AJMER DATED 05-09-2013 FOR THE ASSESSMENT YEAR 2005-06 WHEREIN THE SOLITARY GROUND OF THE REVENUE IS AS U NDER:- IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A), AJMER HAS ERRED IN:- (I) CANCELLING THE PENALTY U/S 271(1) OF RS. 10,67,138/- ON ACCOUNT OF ADDITION MADE BY THE AO U/S 69A FOR THE UNEXPLAINED CASH DEPOSIT OF RS. 31,74,500/- IN THE SB ACCOUNT MAINTAINED WITH IDBI, WITHOUT APPRECIATING THE FACTS OF THE CASE. ITA NO.863//JP/2013 ITO, KISHANGARH VS. SHRI ANURAG VYAS, KISHANGARH. 2 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE RESPO NDENT ON THE DATE OF HEARING EXCEPT FILING THE WRITTEN SUBMISSIONS TO THIS EFFECT. THE BENCH DECIDED TO PROCEED IN THE MATTER EX-PARTE BASED ON THE MATERIAL AVAILABLE ON RECORD. 2.2 THE BRIEF FACTS OF THIS CASE ARE THAT ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT ON 29-11-2007 DETERMINING THE TAX ABLE INCOME OF THE ASSESSEE AT RS. 32,99,330/- BY THE AO AS AGAINST RE TURNED INCOME OF RS. 1,24,826/-. WHILE DETERMINING THE TAXABLE INCOME OF THE ASSESSEE, THE AO MADE ADDITION OF RS. 31,74,500/- U/S 69A OF THE ACT . HOWEVER, THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATI ON WITH REGARD TO THE NATURE AND SOURCE OF ACQUISITION OF MONEY FOUND DEP OSITED IN HIS SB ACCOUNT MAINTAINED WITH IDBI, KISHANGARH. TO THIS E FFECT, THE ASSESSEE FILED THE REPLY BEFORE THE LD. CIT(A) WHO VIDE ORDE R DATED 16-03-209 DISMISSED THE APPEAL OF THE ASSESSEE WITH THE OBSER VATION THAT THE ASSESSEE COULD NOT DISCHARGE HIS ONUS TO PROVE THE SOURCE AN D NATURE OF CASH DEPOSIT FOUND IN THE BANK NOR ANY OTHER EVIDENCE EI THER BEFORE THE AO OR BEFORE HIM. THE AO ALSO OBSERVED THAT IT WAS THE PR IMARY ONUS ON THE ASSESSEE TO PROVE THE SOURCE OF POSSESSION OF MONEY IN SPITE OF PROVIDING VARIOUS OPPORTUNITIES BUT THE ASSESSEE FAILED TO P RODUCE THE NECESSARY EVIDENCE AS TO THE DEPOSIT OF CASH FOUND IN THE SB BANK MAINTAINED WITH IDBI. THEREFORE, THE AO OBSERVED THAT IT IS A FIT C ASE WHERE PENALTY U/S ITA NO.863//JP/2013 ITO, KISHANGARH VS. SHRI ANURAG VYAS, KISHANGARH. 3 271(1)(C) IS LEVIABLE ON THE ASSESSEE BECAUSE OF CO NCEALMENT OF FACTS AND FURNISHING OF INACCURATE PARTICULARS OF HIS INCOME. THUS THE AO IMPOSED THE PENALTY OF RS. 10,67,138/- U/S 271(1)(C) WITH F OLLOWING COMPUTATION. TAX ON ASSESSED INCOME (RS.,32,99,330) RS. 10,81,3 83/- TAX ON INCOME OTHER THAN CONCEALED RS. 14,2 45/- INCOME (RS. 1,24,826/-) AMOUNT OF TAX SOUGHT TO BE EVADED RS. 10,67,138/- MINIMUM PENALTY LEVIABLE I.E. @ 100% OF TAX SOUGHT TO BE EVADED RS. 10,67,138/- MAXIMUM PENALTY LEVIABLE I.E. @ 300% OF TAX SOUGHT TO BE EVADED RS. 32,01,41 4/- PENALTY LEVIED @ 100% OF TAX SOUGHT TO BE EVADED RS. 10,67,138/- 2.3 AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO HAS CANCELLED THE PENALTY BY OBSERVING AS UNDER:- 3.3 I HAVE CONSIDERED THE CONTENTION OF THE APPELLANT AS WELL AS THE ASSESSMENT ORDER. IT IS SE EN THAT THE AO HAD MADE THE ADDITION U/S 69A OF THE I.T. ACT IN RESPECT OF DEPOSITS IN THE IDBI BANK A/C OF RS. 31,74,500/ -. THE HON'BLE ITAT VIDE ITS ORDER DATED 22-08-2013 HAS A CCEPTED THE EXPLANATION OF THE A THAT ASSESSEE HAS EARNED C OMMISSION INCOME AGAINST THE SUPPLY OF MARBLE TO THE OUTSTATI ON PARTIES WHO HAD MADE THE ABOVE DEPOSITS. THE FINDINGS OF TH E HON'BLE ITAT ARE AS UNDER:- 5. HEARD PARTIES WITH REFERENCE TO MATERIAL ON RE CORD. THE PERUSAL OF MATERIAL ON RECORD REVEALS THAT THER E IS NO DISPUTE TO THE PECULIAR FACTS THAT THE DEPOSITS IN APPELLANTS BAN K ACCOUNT ARE NOT ITA NO.863//JP/2013 ITO, KISHANGARH VS. SHRI ANURAG VYAS, KISHANGARH. 4 MADE BY THE ASSESSEE HIMSELF BUT ARE THE DEPOSITS M ADE AT OUT STATIONS BY DIFFERENT PERSONS. THE ASSESSEE HAD RETURNED COM MISSION INCOME FROM SUPPLY OF MARBLE AND EXPLAINED THAT SUCH COMMI SSION WAS RECEIVED ON THE AMOUNTS THAT ARE DEPOSITED IN HIS B ANK ACCOUNT BY HIS CLIENTS. THE ASSESSING OFFICER HAD ADMITTED THE COM MISSION AS DECLARED BY THE ASSESSEE. SINCE THE MONEY DEPOSITE D IN THE ACCOUNT OF THE ASSESSEE IS NOT A DEPOSIT BY HIM, AND IS AN AMO UNT HELD FOR OTHERS AND STOOD ALSO WITHDRAWN AND PAID TO THE CONCERNED SUPPLIERS, THE SAME COULD NOT BE TREATED AS UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. THE LD. D/R, HOWEVER, SOUGHT TO STATE THAT THE ASSE SSING OFFICER MERELY ACCEPTED THE INCOME OF COMMISSION AT RS. 1,26,850/- AS THE APPELLANT RETURNED THE SAME IN THE RETURN VOLUNTARILY FILED B Y HIM. THAT WILL NOT SUBSTANTIATE HIS CASE. WE, HOWEVER, DO NOT FIND AN Y MERIT IN THIS PLEA OF THE REVENUE AS THE INCOME RETURNED BY THE ASSESS EE FROM COMMISSION HAS NOT BEEN ASSESSED ON PROTECTIVE BASIS BUT FIND THAT THE ASSESSMENT HAS BEEN COMPLETED ON SUBSTANTIVE BASIS AFTER CONSI DERING THE RECEIPTS OF RS. 194,797/- AGAINST WHICH INCIDENTAL EXPENSES TO BUSINESS HAVE BEEN DEFRAYED BY AN AMOUNT OF RS. 69,971/- SO AS TO ARRIVE AT THE INCOME OF RS. 1,24,824/- FROM THE BUSINESS INCOME R ETURNED BY HIM. IN THE OVER ALL CONSPECTUS AND CONSIDERING THE PECULIA R FACT THAT THE ASSESSING OFFICER HAS ASSESSED HIM AS A COMMISSION AGENT AT AN INCOME DERIVED ON SUCH DEPOSITS, NO JUSTIFICATION I S FOUND IN SUSTENANCE OF THE ADDITION. WE, THEREFORE, DELETE THE ADDITIO N MADE UNDER SECTION 69A OF THE ACT AND ALLOW THE GROUND RAISED IN APPEA L BY THE ASSESSEE. FROM THE PERUSAL OF THE ABOVE ORDER, IT IS APPARENT THAT EXPLANATION OF THE ASSESSEE REGARDING THE NATU RE AND SOURCE OF DEPOSIT IN THE SAVING BANK A/C IN IDBI HA S BEEN ACCEPTED AS PER ABOVE ORDER. AS THE ADDITION MADE B Y THE AO HAS BEEN DELETED IN THE QUANTUM APPEAL, THERE RE MAINS NO BASIS FOR THE LEVY OF PENALTY ON A SUM OF RS. 31 ,74,500/-. AS SUCH THE PENALTY LEVIED BY THE AO OF RS. 10,67,1 38/- IS CANCELLED. 2.4 THE LD. DR RELIED ON THE ORDER OF THE AO. 2.5 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. WE FIND FROM THE RECORDS THAT THIS BENCH OF ITAT VIDE ITS ORDER DATED 22-08-2013 IN ITA NO. 419/JP/2013 (SHRI ANUR AG VYAS VS. ITO, KISHANGARH) HAS DECIDED THE QUANTUM APPEAL RELAT ING TO SECTION 69A IN ITA NO.863//JP/2013 ITO, KISHANGARH VS. SHRI ANURAG VYAS, KISHANGARH. 5 FAVOUR OF THE ASSESSEE. THE LD. CIT(A) HAS ALSO TAK EN INTO CONSIDERATION THE DECISION OF THIS BENCH (SUPRA) WHILE DECIDING T HE PENALTY APPEAL THAT WHEN THE ADDITION MADE BY THE AO HAS BEEN DELETED I N THE QUANTUM APPEAL THEN THERE REMAINS NO BASIS FOR LEVY OF PENA LTY ON A SUM OF RS. 31,74,500/-. HENCE, THE LD. CIT(A) DELETED THE PENA LTY OF RS. 10,67,138/- LEVIED BY THE AO. THEREFORE, IN THIS VIEW OF THE MA TTER, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) ON THIS ISSUE WHICH IS CONFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/09/2015. SD/- SD/- (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER ( TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17 /09/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT THE ITO, KISHANGARH 2. IZR;FKHZ@ THE RESPONDENT- SHRI ANURAG VYAS, KISHANGARH 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 3. VK;DJ VK;QDR@ CIT 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.863/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR