ACIT, Ajmer V. PRAKASH CHAND VIJAYVARGIYA, Kishangarh

ITA 906/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5219 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH
• Assessee Lawyers: N KATARIA CA DHK
• Keywords: Unexplained investment; Tax effect

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 HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 906/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. PRAKASH CHAND VIJAYVARGIYA, NEAR VIJAY SIZING, BEHIND BUS STAND, MADANGANJ, KISHANGARG. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAJVP 2585 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 915/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. SURAJMAL KUMAWAT, BEHARI POL, NAYA SHEHAR, MADANGANJ, KISHANGARG. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. BIQPK 8829 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 918/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. SURBHI KOTHARI, NEAR JANGID DHARMSHALA, AZAD NAGAR, MADANGANJ, KISHANGARG. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AXTPS 5463 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES VK;DJ VIHY LA -@ ITA NO. 924/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. KIRAN AGARWAL, RADHA KUNJ, DAGA GALI, AJMER ROAD, MADANGANJ, KISHANGARG. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AGRPA 6835 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 925/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AJMER. CUKE VS. ABHISHEK KUMAWAT, KAMAL KUNJ, MAIN ROAD, SHIVAJI NAGAR, MADANGANJ, KISHANGARG. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ALIPK 7227 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI N. KATARIA (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/07/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 01/08/2016. VKNS'K@ ORDER PER: BENCH. THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A)-2, UDAIPUR DATED 28/09/2015, 16/09/2 015, 17/09/2015, 3 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES 18/09/2015 AND 22/09/2015 FOR THE ASSESSMENT YEAR 2 008-09, 2009-10 AND 2010-11, WHEREIN THE REVENUE HAS RAISED FOLLO WING GROUNDS:- GROUNDS OF ITA NO. 906/JP/2015 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD CIT(A) WAS RIGHT IN MODIFYING THE COMMISSION INCOME OF RS. 300/- DETERMINED BY THE A.O. TO RS. 225/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD CIT(A) WAS RIGHT IN CONFIRMING THE ADDIT ION OF RS. 5,05,532/- IN HIS ORDER AND LATER ON GIVING RELIEF OF RS. 75/- PER RS. 1 LAC AS EXPENSES IN THE SAME ORDER. GROUNDS OF ITA NO. 915/JP/2015 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN MODIFY ING THE G.P. ADDITION, MADE BY THE A.O. ON TRANSACTION FACILITAT ED BY THE ASSESSEE, BY HOLDING THAT ONLY NET COMMISSION INCOME OF RS. 225/- PER RS. 1 LAC COULD BE TAXED ON THE BANK DEPOSITS TAKEN BY THE A.O AS TURNOVER WITHOUT GIVING ANY SPECIFIC FINDINGS ON ALL THE OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS.' 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FAC TS THAT THE ASSESSEE HAS FAILED TO PRODUCED ALL THE 4 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES DEPOSITORS AND THE BENEFICIARIES AND IN ABSENCE OF BASIC DETAILS, IT WAS NOT PROVED BY THE ASSESSEE THA T HE WAS PROVIDING FACILITY OF BRINGING UNRECORDED SALES PROCEEDS OF ANY SELLERS THROUGH HIS BANK ACCOUNTS A ND THEREFORE IN THIS SITUATION, THERE WAS NO OTHER OPTI ON EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS A RE NOTHING BUT ASSESSEES OWN TRADING RECEIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AND EXPENSES .' 3. (I) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING T HE FACTS THAT IN THIS CASE IT WAS ESTABLISHED BY THE A. O. THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENT S THE SALE PROCEEDS .' (II) THE A.O. HAS RIGHTLY APPLIED THE RATE ON GROS S PROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUN T OF DEPOSITS IN HIS BANK ACCOUNTS AS TRADING RECEIPT S BEING UNRECORDED SALES IN HIS HANDS.' GROUNDS OF ITA NO. 918/JP/2015 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN MODIFY ING THE G.P. ADDITION, MADE BY THE A.O. ON TRANSACTION FACILITAT ED BY THE ASSESSEE, BY HOLDING THAT ONLY NET COMMISSION INCOME OF RS. 225/- PER RS. 1 LAC COULD BE TAXED ON THE BANK DEPOSITS TAKEN BY THE A.O AS TURNOVER WITHOUT 5 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES GIVING ANY SPECIFIC FINDINGS ON ALL THE OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS.' 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FAC TS THAT THE ASSESSEE HAS FAILED TO PRODUCED ALL THE DEPOSITORS AND THE BENEFICIARIES AND IN ABSENCE OF BASIC DETAILS, IT WAS NOT PROVED BY THE ASSESSEE THA T HE WAS PROVIDING FACILITY OF BRINGING UNRECORDED SALES PROCEEDS OF ANY SELLERS THROUGH HIS BANK ACCOUNTS A ND THEREFORE IN THIS SITUATION, THERE WAS NO OTHER OPTI ON EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS A RE NOTHING BUT ASSESSEES OWN TRADING RECEIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AND EXPENSES .' 3. (I) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING T HE FACTS THAT IN THIS CASE IT WAS ESTABLISHED BY THE A. O. THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENT S THE SALE PROCEEDS .' (II) THE A.O. HAS RIGHTLY APPLIED THE RATE ON GROS S PROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUN T OF DEPOSITS IN HIS BANK ACCOUNTS AS TRADING RECEIPT S BEING UNRECORDED SALES IN HIS HANDS.' GROUNDS OF ITA NO. 924/JP/2015 6 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS RIGHT IN HOLDING THAT ONLY NET COMMISSION INCOME OF RS. 225/- PER RS. 1 LAC COULD BE TAXED OH THE BANK DEPOSITS 66,19,137/- AND IN REDUCING THE ADDITION OF RS. 26,03,610/- TO THE EXT ENT OF NET COMMISSION INCOME WITHOUT GIVING ANY SPECIFIC FINDINGS ON THE OWNER OF THE DEPOSITS MADE IN THE BA NK ACCOUNTS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FAC TS THAT THE ASSESSEE HAS BEEN UNABLE TO PRODUCE THE DEPOSITORS AND THE BENEFICIARIES AND IN ABSENCE OF BASIC DETAILS, IT WAS NOT PROVED BY THE ASSESSEE THA T SHE WAS PROVIDING FACILITY OF BRINGING UNRECORDED SA LES PROCEEDS OF ANY SELLER THROUGH HER BANK ACCOUNTS AN D THEREFORE IN THIS SITUATION, THERE WAS NO OTHER OPTI ON EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS A RE NOTHING BUT ASSESSEE'S OWN TRADING RECEIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AND EXPENSES. 3 . (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING T HE FACTS THAT IN THIS CASE IT WAS ESTABLISHED BY THE A. O. THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENT S THE SALE PROCEEDS. 7 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES (II) THE A.O. HAS RIGHTLY APPLIED THE RATE ON GROS S PROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUN T OF DEPOSITS IN HER BANK ACCOUNTS AS TRADING RECEIPT S BEING UNRECORDED SALES IN HER HANDS. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FA CTS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF EXCESS DEPOSITS OF RS. 26,03,610/- IN HER BANK ACCOUNT WHI CH WAS NOT REFLECTED IN THE ANNUAL ACCOUNT, DESPITE OPPORTUNITIES OF BEING HEARD GRANTED BY THE AO TO EXPLAIN THE SAME.' GROUNDS OF ITA NO. 925/JP/2015 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION O F RS. 13,84,495/- MADE BUT THE A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENT BY HOLDING THAT ONLY NET COMMISSION OF RS.225/- PER RS. 1 LAC OF TRANSACTION FACILITATED COULD BE TAXED ON THE BANK DEPOSITS/REC EIPTS RELATING TO SERVICE PROVIDING ON COMMISSION BASIS WITHOUT GIVING ANY SPECIFIC FINDINGS ON THE OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FAC TS THAT THE ASSESSEE HAS BEEN UNABLE TO PRODUCE THE DEPOSITORS, WHO HAD DEPOSITED CASH IN BANK ACCOUNT, 8 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES SHE ALSO FAILED TO GIVE THE NAME AND ADDRESSES OF T HE PERSONS (BENEFICIARIES) AND IN ABSENCE OF THESE BAS IC DETAILS, IT WAS NOT PROVED BY THE ASSESSEE THAT SHE WAS PROVIDING FACILITY OF BRINGING UNRECORDED SALES PRO CEEDS OF ANY SELLER THROUGH HER BANK ACCOUNTS AND THEREFO RE IN THIS SITUATION, THERE WAS NO OTHER OPTION EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS ARE NOTHING BUT ASSESSEE'S OWN TRADING RECEIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AND EXPENSES. 3 . (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING T HE FACTS THAT IN THIS CASE IT WAS ESTABLISHED BY THE A. O. THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENT S THE SALE PROCEEDS. (II) THE A.O. HAS RIGHTLY APPLIED THE RATE ON GROS S PROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUN T OF DEPOSITS IN HER BANK ACCOUNTS AS TRADING RECEIPT S BEING UNRECORDED SALES IN HER HANDS. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FA CTS THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF EXCESS DEPOSITS OF RS. 13,84,495/- DURING THE COURS E OF ASSESSMENT PROCEEDINGS DESPITE OPPORTUNITIES OF BEI NG HEARD GRANTED BY THE AO TO EXPLAIN THE SAME.' 9 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES 2. ALL THE APPEALS ARE BEING HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE, A COMMON ORDER IS BEING PASSED IN ALL THE APPEAL. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON THE RECORD. IT IS OBSERVED THAT THE DEMAND/ TAX EFFECT IN ALL THE REVENUES APPEALS ARE LESS THAN RS. 10 LACS. UNDER THE POWERS VESTED BY SEC. 268A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUE D CIRCULAR NO.21 OF 2015 DATED 10.12.2015(F NO. 279/MISC. 142/ 2007- ITJ(PT) INSTRUCTING THE AUTHORITIES BELOW THAT THE DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DE MAND/TAX EFFECT DOES NOT EXCEED LESS THAN RS.10 LACS. THE CIR CULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 3. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIREC TED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE TH E DEMAND/TAX EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDRA WN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 4. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPTIO NS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DIS PUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY CB DT FOR THE APPEAL THE 10 ITA 906/JP/2015 & ORS. CASES ACIT VS PRAKASH CHAND VIJAYVARGIYA WITH ORS. CASES SAME IS NOT MAINTAINABLE IN VIEW OF FORE GOINGS. AC CORDINGLY THE APPEALS OF THE DEPARTMENT ARE DISMISSED AS NOT PRESSED/WITHD RAWN. 5. IN THE RESULT, ALL THE APPEALS OF REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/08/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01 ST AUGUST, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CENTRAL CIRCLE, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- SHRI PRAKASH CHAND VIJAYVARGIYA/SHRI SURAJMAL KUMAWAT/SMT. SURBHI KOTHARI/SMT. KIRAN AGA RWAL/ SHRI ABHISHEK KUMAWAT, KISHANGARH. 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. 906,915,918,924 & 925/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR