Shri Gautam Sharma, JODHPUR V. ACIT, JODHPUR

ITA 92/JODH/2015

• Counselvise Citation: 9223314 RSA 2015
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THIS CONSOLIDATED
• Assessee Lawyers: DEVELOPERS FACTS
• Keywords: Corroborative evidences
• Section: 131; 143(3); 92; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI G.C. GUPTA, H O NBLE VICE PRESIDENT SHRI R.C. SHARMA , HONBLE ACCOUNTANT MEMBER ITA NO S . 92 & 93 / JODH / 20 1 5 [ ASSESSMENT YEAR S 2008 - 09 & 2010 - 11 ] SHRI GAUTAM SHARMA VS. THE A.C.I.T HOUSE NO. 221 - 222, CENTRAL CIRCLE - 2 SHYAM NAGAR SCHEME JODHPUR DEV NAGAR, PAL LINK ROAD JODHPUR PAN NO : AWDPS 1276 K (APPELLANT) (RESPONDENT) A SSESSEE B Y : SHRI AMIT KOTHARI DEPARTMENT B Y : SHRI S.L. MOURYA DA TE OF H EARING : 31 . 0 8 .201 5 DATE OF PRONOUNCEMENT : 04 . 0 9 . 201 5 ORDER PER R.C. SHARMA, AM : - TH ESE ARE TWO APPEAL S FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A ) - 1, JAIPUR DATED 17 .0 2 .201 5 FOR A.YS. 2008 - 09 AND 2010 - 2011 IN THE MATTER OF ORDER PA SSED U/S 143(3) R.W.S 153A OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT, FOR SHORT]. 2 2. COMMON GROUNDS HAVE BEEN TAKEN IN BOTH THE A.YS UNDER CONSIDERATION WHICH PERTAIN TO THE ADDITION ON ACCOUNT OF CAPITAL CONTRIBUTION TO THE FIRM M /S AYUSHI BUILDERS AND DEVELOPERS. FACTS AND CIRCUMSTANCES IN BOTH THE CASES ARE SAME AND SINCE THE ISSUES INVOLVED ARE COMMON, WE ARE ADJUDICATING UPON THEM BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. RIVAL CONTENTIONS HAVE BE EN HEARD AND RECORDS PERUSED. FACTS, IN BRIEF, ARE THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S 153A OF THE ACT, THE AO DID NOT ACCEPT RS. 1 5 LAKHS OF CAPITAL CONTRIBUT ED BY THE ASSESSEE IN THE FIRM M/S AYUSHI BUILDERS AND DEVELOPERS I N WHICH HE WAS A PARTNER. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE ADDITION OF RS. 10 LAKHS AFTER CONSIDERING THE REMAND REPORT. HOWEVER, HE HAS CONFIRMED THE ADDITION OF RS. 5 LAKHS. THE REVENUE IS NOT IN APPEAL AGAINST THE DELETION OF RS. 10 L AKHS AND ONLY THE ASSESSEE IS IN APPEAL FOR CONFIRMING THE ADDITION OF RS. 5 LAKHS. FROM THE RECORD WE FOUND THAT REGULAR BOOKS OF ACCOUNTS OF M/S AYUSHI BUILDERS AND DEVELOPERS WERE FOUND AT THE TIME OF SEARCH IN WHICH THE ENTRIES OF CAPITAL CONTRIBUTION OF THE FIRM WERE DULY REFLECTED. THE 3 ASSESSMENT OF THE FIRM FOR A.Y. 2005 - 06 AND 2006 - 07 WERE ALSO COMPLETED AFTER DETAILED SCRUTINY AND THE CAPITAL CONTRIBUTION MADE TO THE FIRM WAS DULY ACCEPTED. HOWEVER , THE AO HAD TAKEN ONLY THE CREDIT SIDE OF THE C APITAL ACCOUNT AND THERE ARE WITHDRAWALS FROM THE FIRM ALSO WHICH HAD BEEN COMPLETELY OVER LOOKED. WE FOUND THAT RS. 15 LAKHS WAS GIVEN BY THE ASSESSEE TO SHRI AYUSHI BUILDERS OUT OF WITHDRAWALS MADE FROM THE BANK ACCOUNT. THE ASSESSEE HAD RECEIVED DEPOS ITS FROM SHRI MANISH JAIN WHICH WAS DEPOSITED IN BANK AND OUT OF THE SAID BALANCE THE PAYMENT WAS BEING MADE TO THE FIRM. THE SOURCE OF MONEY ADVANCE IS THEREFORE, FULLY VERIFIABLE AND THE REFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING SUCH ADDITION S OF RS 5 LAKHS . 4 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD , WE FOUND THAT W ITH RESPECT TO RECEIPT OF RS. 5 LAKHS BY SHRI MANISH JAIN, WE FOUND THAT TO VERIFY THE DEPOSIT OF RS. 5 LAKHS, THE AO HAS CALLED SHRI MAN ISH JAIN BY ISSUING SUMMONS U/S 131 ON 18.12.2014. SHRI MANISH JAIN ATTENDED ON 06.01.2015 AND HIS STATEMENT WAS RECORDED U/S 131 4 OF THE ACT. AS PER THE STATEMENT AND SUPPORTING EVIDENCE SUBMITTED BY HIM, IT IS CLEAR THAT HE HAS ADVANCED THE AMOUNT TO TH E ASSESSEE. WE HAD ALSO VERIFIED THE ACCOUNT OF THE ASSESSEE SHRI GAUTAM SHARMA IN THE BOOKS OF THE FIRM M/S AYUSHI BUILDERS AND DEVELOPERS SHOWING INTER ALIA THAT THE CASH DEPOSIT OF RS. 15 LAKH S WAS RECEIVED ON 15.01.2008. W E HAD ALSO VERIFIED THE COPY OF IDBI BANK STATEMENT IN THE BOOKS OF THE ASSESSEE SHOWING THAT WITHDRAWAL OF RS. 15 LAKHS WAS MADE FROM THE BANK ON 15.01.2008. THIS COPY OF BANK ACCOUNT ALSO SHOWED THAT PRIOR TO WITHDRAWAL ON 15.01.2008, A CHEQUE OF RS. 5 LAKHS WAS RECEIVED THROUGH S HRI MANISH JAIN AND THE SAME WAS ALSO DEPOSITE D IN THE SAID BANK ACCOUNT. W E HAD ALSO VERIFIED THE ACCOUNTS OF SHRI MANISH JAIN FOR THE RELEVANT A.Y. 2008 - 09 UNDER CONSIDERATION. COPY OF ACCOUNT OF SHRI MANISH JAIN FOR THE A.Y. 2009 - 10 SHOWING REPAYMENT OF ADVANCE RECEIVED FROM HIM HAS ALSO BEEN VERIFIED. SUCH REPAYMENTS WERE PARTLY MADE BY THE ASSESSEE SHRI GAUTAM SHARMA AND PARTLY BY SHRI MULIDHAR SHARMA ON BEHALF OF SHRI GAUTAM SHARMA. COPY OF ACCOUNT OF SHRI MANISH JAIN IN THE BOOKS OF SHRI MURLIDHA R SHARMA, WHO WAS ALSO ONE OF THE PARTNER OF THE FIRM M/S AYUSHI BUILDERS AND DEVELOPERS, FOR A.Y. 2009 - 10 SHOWED REPAYMENT OF ADVANCE TO SHRI MANISH JAIN. FURTHERMORE, THE ITAT ORDER OF THE JODHPUR BENCH IN THE CASE OF M/S AYUSHI BUILDERS 5 FOR A.YS. 2004 - 05 TO 2010 - 11 DATED 14 - 08 - 2014 ALSO INDICATES THAT SUCH ADVANCE FOR BOOKING OF PLOTS WAS RECEIVED FROM VARIOUS BUYERS. THE ADDITION S MADE BY THE AO IN RESPECT OF SUCH ADVANCES WERE DELETED BY THE TRIBUNAL AFTER GIVING DETAILED FINDING. 5. IN VIEW OF THE ABOVE DOCUMENTARY EVIDENCES, WE DO NOT FIND ANY MERIT FOR ADDITION OF RS. 5 LAKHS SUSTAINED BY THE LD. CIT(A) IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF CAPITAL CONTRIBUTION TO HIS FIRM M/S AYUSHI BUILDERS AND DEVELOPERS. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09 IS ALLOWED. 7 . SIMILARLY, FOR A.Y. 2010 - 11, THE AO HAS MADE ADDITION OF RS. 26 , 1 0,000/ - AS ALLEGED IN THE UNEXPLAINED CAPITAL CONTRIBUTION. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE ADDITION OF RS. 12,50,000/ - AND UP HELD THE ADDITION OF RS. 13,60,000/ - AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. HOWEVER, THE REVENUE IS NOT IN APPEAL BEFORE US AGAINST THE DELETION OF ADDITION OF RS. 12,50,000/ - . 6 8 . FOR THIS YEAR ALSO, HE HAD VERIFIED THE COPY OF BANK AC COUNT OF SHRI GAUTAM SHARMA WITH IDBI IN WHICH CHEQUE/DD OF RS. 6,60,000/ - AND RS. 7 LAKHS WERE CREDITED. COPY OF ACCOUNT OF THE FIRM M/S AYUSHI BUILDERS AND DEVELOPERS IN THE BOOKS OF SHRI GAUTAM SHARMA SHOWING THAT RS. 13,60,000/ - WAS GIVEN BY CHEQUE TO THE FIRM M/S AYUSHI BUILDERS AND DEVEL OPERS HAS ALSO BEEN VERIFIED. W E HAD ALSO VERIFIED THE RECEIPT OF CHEQUE OF RS. 13,60,000/ - GIVEN TO THE FIRM M/S AYUSHI BUILDERS AND DEVELOPERS AS CAPITAL CONTRIBUTION DULY SUPPORTED BY BANK STATEMENT OF SHRI GAUTA M SHARMA WITH IDBI SHOWING CREDIT BY CHEQUE OF RS. 6,60,000/ - AND RS. 7 LAKHS OUT OF WHICH CHEQUE OF RS. 13,60 ,000/ - WAS GIVEN TO THE FIRM. W E HAD ALSO VERIFIED THE BANK ACCOUNT OF HDFC SHOWING RECEIPTS OF RS. 13,60,000/ - BY CHEQUE. IN VIEW OF THESE DOCUM ENTARY EVIDENCES WHICH WERE ALSO PLACED BEFORE THE LOWER AUTHORITIES, WE DO NOT FIND ANY MERIT FOR SUSTAINING ADDITION OF RS. 13,60,000/ - MADE AS CAPITAL CONTRIBUTION. 7 9 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS. 92 & 93/JODH/2015 ARE ALLOWED. ORDER PRON OUNCED IN THE COURT ON 04 - 0 9 - 201 5 . SD/ - SD/ - (G.C. GUPTA) ( R.C. SHARMA ) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 04 TH SEPTEMBER , 2015 . VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR