SHRI ASHOK KUMAR AGRAWAL, Barwaha V. THE ITO-5(2), Indore

ITA 890/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5978 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Business income; Opportunity of being heard; Additional evidence
• Section: 5(2)

Judgement Text

SHRI ASHOK KUMAR AGARWAL V. ITO5 (2) INDORE / I.T.A . NO. 890/IND/2016/A.Y.:08-09 PAGE 1 OF 2 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , .. , % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER . . /. I.T.A. NO. 890/IND/2016 ( ( / ASSESSMENT YEAR:2008-09 SHRI ASHOK KUMAR AGARWAL , ASHOK TRADING COMPANY, MAHESHWAR ROAD BARWAHA VS. ITO 5(2) INDORE APPELLANT RESPONDENT PAN: AEVPA 9766 Q APPELLANT BY SHRI S.S. DESHPANDE, CA RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 16.01.2017 DATE OF PRONOUNCEMENT 16.01.2017 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-22 NEW DELHI HOLDING CONCURRENT OVER THE CIT(A) -2, IN DORE CHARGE [HEREINAFTER REFERRED TO AS THE CIT (A)] DATED 24.09.2014. THIS APPEAL PERTAINS TO ASSE SSMENT YEAR 2008-09 AS AGAINST APPEAL DECIDED IN RESPECT OF ASSESSMENT ORDER DATED 21.03.2013 PASSED U/S. 143(3)/147 OF INCOME TAX ACT, 1961(HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE ITO WARD 3(1) INDORE [HEREINAFTER REFERRED TO AS THE AO]. 2. GROUND NO. 1 TO 3 PERTAINS TO MAINTAINING OF ADDITI ON OF RS. 5,63,981/- ON ACCOUNT OF CASH DEPOSIT IN BANK IN SPITE OF THE FACTS THAT ALL ENTRIES IN CASH DEPOSIT IN BANK WERE PROVED BEFORE LD. CIT (A). 3. SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORDERS OF LOWER AUTHORITIES ARE THAT THE CASH DEPOSIT WERE NOTICED BASED ON AIR INFORMATION. THE TOTAL DEPOSIT S IN BANK WERE AT RS. 36,03,379/- WHICH INTER-ALIA INCLUDED CASH DEPOSITS OF RS. 16,34,750/- AND RS. 19,68,629/- OTHER THAN CASH DEPOSITS. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FILED ADDITIONAL EVIDENCE, WHICH WERE ADMITTED BY THE LD. CIT (A). THE LD. CIT (A) HAS ACCEPTED SOURCE OF OT HER DEPOSITS OF RS. 19,68,629/- AS PER THE BREAKUP GIVEN BY THE ASSESSEE AS OWN FUND OF RS. 7, 93,097/- RS. 1,37,750/- OF LIC LOAN, RS. 59,625/- BEING O D A/C, RS. 9,76,640/- BEING LOAN FROM ASHOK BROTHERS AND RS. 17/- SB INTEREST EXPLAINED THE SHRI ASHOK KUMAR AGARWAL V. ITO5 (2) INDORE / I.T.A . NO. 890/IND/2016/A.Y.:08-09 PAGE 2 OF 2 DEPOSITS OTHER THAN CASH. HOWEVER, WITH REGARD TO C ASH DEPOSIT OF RS. 16,34,750/- THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 5,63,981/- AFTER ALLO WING BENEFIT OF ROTATION OF FUND TO THE EXTENT OF R S. 10,00,000/- 4. BEING, AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFOR E THE TRIBUNAL. THE LD. A.R. SUBMITTED THAT ADDITIONAL EVIDENCE AS FILED AND ADMITTED WERE CONT AINING DETAILS OF ALL THE CASH DEPOSIT AS ARE APPEARING IN CASHBOOK MAINTAINED BY THE ASSESSEE. T HEREFORE, THE CASH DEPOSIT AS WELL AS OTHER DEPOSITS ARE PART OF TURNOVER OF BUSINESS AND IT IS REFLECTED IN BOOKS OF ACCOUNTS. THEREFORE, THE LD. CIT (A) WAS OUGHT TO HAVE ACCEPTED THE SAME, HENCE, LD . CIT (A) WAS NOT JUSTIFIED IN ALLOWING CREDIT OF R S. 10 LAKHS ONLY AND RETAINING ADDITION OF RS. 5,63,98 1/-. 5. THE LD. D.R. RELIED ON THE ORDERS OF LOWER AUTHORITI ES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS FILED ADDITIO NAL EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH WERE ALLOWED TO BE ADMITTED BY T HE LD. CIT (A). WE FIND THAT ALL ENTRIES OF CASH DEPOSIT ARE DULY ROTATED THROUGH CASHBOOK AND IT IS DULY REFLECTED. HOWEVER, IT APPEARS THAT THE LD. CIT (A) HAS NOT SEEMS TO HAVE CONSIDER AND EXAMINED THE DETAILS AS CLAIMED IN CASHBOOK. THEREFORE, THE LD. CIT (A) IS NOT JUSTIFIED IN ALLOWING CREDIT O F RS. 10 LAKH ON ACCOUNT OF ROTATION OF CASH OUT OF TOTAL CASH DEPOSIT OF RS. 16,34,750/- . THEREFORE, THIS LIMITED ISSUE IS REQUIRES REEXAMINATION BY THE AO. IN VIEW OF THESE CIRCUMSTANCES, WE SET-ASIDE TH E ISSUE TO THE FILE OF THE AO TO EXAMINE THE ADDITIONAL EVIDENCE PRODUCED AND WHETHER ENTRIES AR E DULY APPEARING IN CASHBOOK AND BOOKS OF ACCOUNTS. ACCORDINGLY, THIS ISSUE IS SET-ASIDE TO THE FILE OF THE AO FOR DENOVO EXAMINATION. NEEDLES S TO MENTION TO THE AO WILL ALLOW PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THESE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.01.201 7. SD/- SD/- (D.T.GARASIA) JUDICIAL MEMBER (O.P.MEENA) ACCOUNTANT MEMBER DATED : 17 TH JANUARY, 2017/OPM