SHRI ANIL KUMAR MANAK BOHARA, Jaipur V. INCOME TAX OFFICER, Jaipur

ITA 929/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3634 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: RAM SWAROOP JAJOO
• Keywords: Principle of natural justice; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 929/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 SHRI ANIL KUMAR MANAK BOHRA E-344B, VKI AREA, JAIPUR. CUKE VS. THE ITO, WARD-4(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACTPM 0682 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDEN T FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAM SWAROOP JAJOO (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C.KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 01/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 03/05/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-2, JAIPUR DATED 25.09.2017 FOR THE ASSESSMEN T YEAR 2009-10 WHEREIN THE ASSESSEE HAS CHALLENGED THE ACTION OF T HE ASSESSING OFFICER IN BRINGING TO TAX AN AMOUNT OF RS. 4,77,882/- AS U NEXPLAINED DEPOSITS WITHOUT REJECTING HIS CASH BOOK. ITA NO. 929/JP/2017 ANIL KUMAR MANAK BOHRA VS. ITO 2 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE AS SESSEE HAS DEPOSITED CERTAIN CASH IN HIS BANK ACCOUNT AMOUNTIN G TO RS. 4,77,882/- WHICH WAS FOUND UNEXPLAINED AND THE SAME WAS BROUGH T TO TAX IN THE HANDS OF THE ASSESSEE. THEREAFTER, THE MATTER HAD T RAVELLED UP TO THE TRIBUNAL AND THE COORDINATE BENCH VIDE ITS ORDER DA TED 24.07.2015 IN ITA NO. 790/JP/2012 HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR THE REASONS THAT THE ASSESSEE HAD SUBMITTED CERTAIN EVIDENCES BEFORE THE LD. CIT(A) HOWEVER, TH E REMAND REPORT FROM THE AO WAS NOT CALLED FOR AND HENCE FOLLOWING THE PRINCIPLE OF NATURAL JUSTICE, THE MATTER WAS SET ASIDE TO THE FI LE OF THE AO AND THE ASSESSEE WAS DIRECTED TO PRODUCE ALL THE EVIDENCES BEFORE THE AO IN THE SET ASIDE PROCEEDINGS. 3. DURING THE COURSE OF SET ASIDE PROCEEDINGS, THE AO, FROM THE COPY OF DEMAT STATEMENT FILED BY THE ASSESSEE, OBSE RVED THAT CERTAIN SHARES WERE SOLD IN PRECEDING FINANCIAL YEAR I.E. F Y 2007-08 AND NOT DURING THE YEAR UNDER CONSIDERATION AS CLAIMED BY T HE ASSESSEE. FURTHER, THE DETAILS OF SHARE TRADING AND COPY OF V OUCHERS FILED BY THE ASSESSEE WERE ALSO EXAMINED BY THE AO WHICH ALSO PR OVED THAT ALL THESE SHARE TRANSACTIONS PERTAIN TO FY 2007-08. THE REFORE, THE CLAIM OF THE ASSESSEE THAT CASH OF RS. 4,77,882/- WAS ON ACC OUNT OF SALE OF SHARES DURING THE YEAR UNDER CONSIDERATION WAS NOT FOUND ACCEPTABLE AND THE SAME WAS TREATED AS UNEXPLAINED CASH DEPOS IT AND BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. ITA NO. 929/JP/2017 ANIL KUMAR MANAK BOHRA VS. ITO 3 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) OBSERVED THAT THE DE TAILS HAVE BEEN EXAMINED BY THE AO AND IN THE ABSENCE OF ANY FURTHE R DETAILS BEING PRODUCED BY THE ASSESSEE, THE DISALLOWANCE MADE BY THE AO WAS CONFIRMED. 5. NOW, THE ASSESSEE IN THIS APPEAL BEFORE US. DURI NG THE COURSE OF HEARING, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE HAS SOLD CERTAIN SHARES AMOUNTING TO RS. 1,86,794/- DURING THE FINAN CIAL YEAR 2007-08 AND HIS WIFE SMT. RITA BOHRA ALSO SOLD CERTAIN SHAR ES FOR AN AMOUNT OF RS. 3,33,843/- DURING THE F.Y. 2007-08 RELEVANT ASS ESSMENT YEAR 2008- 09. IT WAS FURTHER SUBMITTED THAT THE SAID SUM OF R S. 5,20,637/- WAS KEPT SEPARATELY FOR USE AS SAFEGUARD FUND TO BE USE D ON NEED BASIS. IT WAS FURTHER SUBMITTED THAT DURING THE YEAR UNDER CO NSIDERATION, OUT OF THE SAID AMOUNT OF RS 5,20,637, CASH AMOUNTING TO R S. 1 LAC WAS DEPOSITED IN HIS BANK ACCOUNT ON 10.04.2008, RS. 3 LACS ON 16.02.2009 AND RS. 77,882/- ON 20.03.2009, IN ALL TOTALING TO RS 4,77,882. IT WAS FURTHER SUBMITTED THAT THESE TRANSACTIONS ARE DULY REFLECTED IN THE ASSESSEES CASH BOOK AND GIVEN THE FACT THAT THE AO HAS NOT REJECTED THE CASH BOOK, THE ADDITION MADE BY HIM IS NOT WARR ANTED AND SAME BE DIRECTED TO BE DELETED. 6. PER CONTRA, THE LD. DR HAS RELIED ON THE FINDING OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, CERTAIN SHARES H AVE BEEN SOLD BY THE ITA NO. 929/JP/2017 ANIL KUMAR MANAK BOHRA VS. ITO 4 ASSESSEE AND HIS WIFE DURING THE F.Y. 2007-08 RELEV ANT TO ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS CONTENDED THAT THE S ALE PROCEEDS OUT OF SUCH SALE TRANSACTIONS WERE KEPT AS SAFEGUARD FU ND AND LATER ON DURING THE CURRENT FINANCIAL YEAR, AN AMOUNT OF RS. 477,882/- WAS DEPOSITED ON THREE DIFFERENT OCCASIONS IN HIS BANK ACCOUNT AND THE SAME IS DULY VERIFIABLE FROM THE CASH BOOK MAINTAIN ED BY HIM FOR THE F.YS. 2007-08 AND 2008-09. WE HOWEVER FIND THAT THE RE IS NO FINDING RECORDED BY THE AO OR THE LD. CIT(A) IN TERMS OF TH ESE TRANSACTIONS REFLECTED IN THE CASH BOOK FOR THE F.YS. 2007-08 AN D 2008-09 RESPECTIVELY. WE ACCORDINGLY SET ASIDE THE MATTER T O THE FILE OF THE LD. CIT(A) FOR THE LIMITED PURPOSE OF EXAMINING THE ENT RIES SO RECORDED IN THE CASH BOOK MAINTAINED BY THE ASSESSEE FOR THE TW O FINANCIAL YEARS AND WHERE THESE TRANSACTIONS ARE FOUND TO BE DULY R ECORDED IN TERMS OF THE RECEIPT OF CASH AND SUBSEQUENT DEPOSIT IN THE B ANK ACCOUNT, THE ASSESSEE MAY BE ALLOWED THE NECESSARY RELIEF AFTER VERIFICATION. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/05/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/05/2018. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ANIL KUMAR MANAK BOHRA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 4(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT ITA NO. 929/JP/2017 ANIL KUMAR MANAK BOHRA VS. ITO 5 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 929/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR