SHRI RAJESH KISHORE SHARMA, JAIPUR V. INCOME TAX OFFICER, WARD-3-3, JAIPUR

ITA 990/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3726 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 1 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: 2008-2009
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: G M MEHTA
• Section: 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE -A, 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. 990/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2008-09 RAJESH KISHORE SHARMA, WARD NO. 13, VILLAGE & POST- CHOMU PUROHITAN, VIA KHATU SHYAMJI (SIKAR) CUKE VS. ITO WARD-3(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BKOPS8716C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI G. M. MEHTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/12/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/02/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1, JAIPUR DATED 23.05.2018 WHEREIN THE ASSES SEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. 1. LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IGNORI NG AND NOT DECIDING THE GROUND OF APPEAL THAT ACTION UNDER SEC TION 147 BY ISSUING NOTICE U/S 148 OF ACT IS BAD IN LAW SINCE T HE APPELLANT DID NOT RECEIVE THE NOTICE U/S 148 OF I.T. ACT. 2. THE LD. CIT (A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF RS. 7,86,000/- ON ACCOUNT OF TWO DEPOSITS OF CASH IN BA NK, THE SOURCES OF WHICH WERE FULLY AND TRULY EXPLAINED DURING THE FIR ST APPELLATE STAGE BY SUBMITTING THE AVAILABLE SUPPORTING/DOCUMENTARY EVIDENCES IN REMAND PROCEEDINGS TO THE LD. AO WHO, WITHOUT VERIF YING THEM, ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 2 PREFERRED TO SENT A NEGATIVE REMAND REPORT TO LD. C IT(A), ON THE BASIS OF WHICH ORDER APPEALED AGAINST WAS PASSED. 2. AT THE OUTSET, IT IS NOTED THAT THE APPEAL IS DE LAYED BY 22 DAYS. THE ASSESSEE HAS SUBMITTED THAT THE APPEAL COULD NOT BE FILED DUE TO HIS BAD HEALTH PROBLEM AND IN SUPPORT AN AFFIDAVIT HAS BEEN FILED. AFTER HEARING BOTH THE PARTIES, THE DELAY IN FILING THE APPEAL IS HEREBY CONDONED. 3. GROUND NO. 1 WAS NOT PRESSED BY LD. AR DURING TH E COURSE OF HEARING. HENCE, THE SAME IS DISMISSED AS NOT PRESSE D. 4. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE SUSTENANCE OF ADDITION OF RS. 7,86,000/- ON ACCOUNT OF TWO CASH D EPOSITS IN HIS BANK ACCOUNT DURING THE YEAR. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S 148 READ WITH SECTION 144 WHEREIN THE ASSESSING OFFICER HAS BROUGHT TO TAX AN AMOUNT OF RS. 12,35,000/- AS THE ASSESSEE HAS FAILED TO FURNISH T HE SOURCE OF CASH DEPOSITS IN HIS BANK ACCOUNT AND IN VIEW OF THE DEP OSITS SO MADE REMAINING UNVERIFIED. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD. CIT(A). DURING THE APPELLATE PROCEEDINGS BE FORE THE LD CIT(A), THE ASSESSEE SUBMITTED THAT HE HAS DEPOSITED AN AMOUNT OF RS. 6,50,000/- ON 09.04.2007 IN HIS BANK ACCOUNT WHICH WAS CASH GIVEN BY SMT. SHANTI DEVI AN ILLITERATE LADY WHO WANTED TO PURCHASE A PIECE O F LAND, SO SHE GAVE MONEY TO HIM TO PURCHASE THE SAID PIECE OF LAND. IN SUPPORT, AN AFFIDAVIT OF SMT. SHANTI DEVI WAS ALSO SUBMITTED. FURTHER, THE ASSESSEE SUBMITTED THAT HE HAS GIVEN A CHEQUE OF RS. 1,36,000/- TO SH. KALY AN SINGH FOR DEPOSIT IN HIS KISHAN CREDIT CARD IN LIEU OF RS. 1,36,000/- WH ICH WAS DEPOSITED IN HIS ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 3 BANK ACCOUNT. IT WAS FURTHER SUBMITTED THAT REST ALL DEPOSITS WERE MADE OUT OF EARLIER WITHDRAWALS FROM HIS BANK ACCOUNT. 6. THE LD. CIT(A) CALLED FOR THE REMAND REPORT FRO M THE ASSESSING OFFICER. IN HIS REMAND REPORT, IT WAS STATED BY THE AO THAT A SUM OF RS. 4,49,500/- CAN BE CONSIDERED TO BE DEPOSITED IN THE BANK ACCOUNT OUT OF EARLIER WITHDRAWALS MADE FROM THE ASSESSEES BANK A CCOUNT AND REMAINING CASH DEPOSITS OF RS. 7,86,000/- REMAINED UNEXPLAINE D AS A STORY WAS CONCOCTED BY THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS. 7. THE LD. CIT(A) REFERRED TO THE AFFIDAVIT SUBMITT ED BY SMT. SHANTI DEVI WHEREIN IT IS STATED THAT SMT. SHANTI DEVI HAS SOLD AN AGRICULTURE LAND ON 04.04.2007 FOR A CONSIDERATION OF RS. 8 LACS, OUT O F WHICH SHE HAD GIVEN A SUM OF RS. 6,50,000/- TO THE ASSESSEE ON THE SAME D ATE FOR PURCHASE OF ANOTHER LAND AND SINCE THE AGREEMENT FOR SALE OF LA ND WAS CANCELLED SUBSEQUENTLY, SHE HAD DECIDED NOT TO PURCHASE LAND AND HAD TAKEN BACK HER MONEY FROM THE ASSESSEE. THE LD. CIT(A) STATED THAT NEITHER THE DATE OF CANCELLATION NOR ANY DOCUMENTARY EVIDENCE WAS FILED BY THE ASSESSEE IN THIS REGARD. THE LD CIT(A) HELD THAT SMT. SHANTI DEVI BE LONGS TO BAWARIA CASTE, WHICH IS NOTIFIED AS SCHEDULED CASTE AS PER THE P ROVISIONS OF SECTION 42(B) OF RAJASTHAN TENANCY ACT, 1955 AND SHE CANNOT TRANS FER HER AGRICULTURE LAND TO A NON-SCHEDULE CASTE PERSON, THE PURPORTED BUYER SHRI MAHENDRA KUMAR SHUKLA, WHO IS A BRAHMIN BY CASTE. FURTHER, T HE LD CIT(A) HELD THAT THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE WHICH MAY ESTABLISH THAT SHE WAS OWNING ANY PIECE OF AGRICULTURE LAND A S ON 04.04.2007 AND MERE FURNISHING AN AFFIDAVIT DO NOT PROVE THE CREDI TWORTHINESS OF SMT. SHANTI DEVI AND IT IS NOTHING BUT SELF-SERVING DOCUMENT AND THUS NO COGNIZANCE COULD BE GIVEN TO IT AND ADDITION OF RS 6.5 LACS SO MADE BY THE AO WAS CONFIRMED. ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 4 8. REGARDING THE SOURCE OF CASH DEPOSIT OF RS. 1,3 6,000/- IN THE BANK ACCOUNT OF THE ASSESSEE ON 12.04.2007, THE LD CIT(A ) HELD THAT THOUGH THE ASSESSEE HAD STATED THAT HE HAD ISSUED A CHEQUE OF RS. 1,36,000/- TO SHRI KALYAN SINGH ON 11.04.2007 HOWEVER, NO EVIDENCE WAS FILED WHICH MAY ESTABLISH THAT THE AMOUNT OF RS. 1,36,000/- WAS TRA NSFERRED TO KISAN CREDIT CARD AND WAS WITHDRAWN ON 11.04.2007 AS CLAIMED BY THE ASSESSEE. ACCORDINGLY, THE ADDITION OF RS 1,36,000 WAS ALSO C ONFIRMED. 9. REGARDING THE REMAINING CASH DEPOSITS OF RS 4,4 9,500, THE LD CIT(A) TAKING COGNIZANCE OF THE AOS REMAND REPORT WHEREIN THE LATTER HAS CONFIRMED THAT CASH DEPOSITS TO THE EXTENT OF RS. 4 ,49,500/- WERE MADE OUT OF EARLIER CASH WITHDRAWALS FROM THE SAID BANK ACCO UNT, THE ADDITION WAS DELETED. 10. NOW, THE ASSESSEE IS IN APPEAL BEFORE US IN RE SPECT OF ADDITION OF RS 6,50,000 AND RS 1,36,000 TOTALLING TO RS. 7,86,0 00/- WHICH WAS SUSTAINED BY THE LD CIT(A). DURING THE COURSE OF H EARING, THE LD. AR REITERATED THE SUBMISSION MADE BEFORE THE LOWER AUT HORITIES. IT WAS FURTHER SUBMITTED THAT REGARDING CASH DEPOSIT OF RS. 1,36,0 00/-, SH. KALYAN SINGH HAS SINCE EXPIRED AND THE SAME HAS BEEN CONFIRMED B Y HIS DAUGHTER MS. SANTOSH KANWAR. FURTHER, OUR REFERENCE WAS DRAWN T O BANK STATEMENT OF THE ASSESSEE WHEREIN BOTH THE TRANSACTIONS OF ISSUA NCE OF CHEQUE NO. 795021 DT. 11.04.2007 FOR RS 1,36,000 AND RE-DEPOSI T OF EQUAL AMOUNT OF CASH IN ASSESSEES BANK ON NEXT DAY ON 12.04.2007 I S CLEARLY APPEARING AND IT WAS ACCORDINGLY SUBMITTED THAT THE AFFIDAVIT GIV EN BY DAUGHTER OF LATE SHRI KALYAN SINGH ALONG WITH THE BANK STATEMENT OF THE A SSESSEE DULY SUPPORT THE EXPLANATION SO GIVEN BY THE ASSESSEE IN SUPPORT OF DEPOSIT OF RS 1,36,000. REGARDING SOURCE OF CASH DEPOSIT OF RS. 6,50,000/-, THE LD AR ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 5 DRAWN OUR ATTENTION TO THE CONFIRMATION BY WAY OF A FFIDAVIT SUBMITTED BY SMT. SHANTI DEVI AS WELL AS COPY OF THE AGREEMENT T O SELL WHICH SHE HAS ENTERED INTO WITH SHRI NAVNEET KUMAR KHORWAL TO SE LL HER AGRICULTURE LAND FOR RS. 8 LACS OUT OF WHICH SHE HAS RECEIVED AT RS. 7 LACS AND OUT OF WHICH, SHE HAS GIVEN RS 6.5 LACS TO THE ASSESSEE FOR PURCH ASE ANOTHER PIECE OF LAND. IT WAS SUBMITTED THAT IN THE SAID AGREEMENT T O SELL, THE PARTICULARS OF THE AGRICULTURE LAND SO OWNED BY SMT SHANTI DEVI IS CLEARLY MENTIONED AND THE LD CIT(A) IS NOT CORRECT THAT THERE IS NOTHING ON RECORD TO SUGGEST THAT SHE OWNED THE AGRICULTURE LAND. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE HAS DULY DISCHARGED HIS INITIAL BURDEN IN TERMS OF IDENTITY, CREDITWORTHINESS OF THE SMT SHANTI DEVI AND GENUINE NESS OF THE TRANSACTION AND THE SOURCE OF CASH DEPOSIT IS THUS CLEARLY CORR OBORATED BY THE AFFIDAVIT AND THE COPY OF AGREEMENT TO SELL ENTERED INTO BY S MT SHANTI DEVI. 11. THE LD DR IS HEARD WHO HAS RELIED ON THE FINDIN GS OF THE AO AND THE LD CIT(A) WHICH WE HAVE ALREADY CONSIDERED AND NOT BEEN REPEATED FOR SAKE OF BREVITY. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS A SETTLED PROPOSITION T HAT WHERE DEPOSITS ARE FOUND CREDITED IN THE ASSESSEES BANK ACCOUNT, THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH DEPOSITS. REGARDING SOURCE OF CASH DEPOSIT OF RS. 1,36,000/-, THE ASSESSEE HAS EXPLAINED THAT HE HAS ISSUED A CHEQUE IN FAVOUR OF LATE SHRI KALYAN SINGH IN LIEU OF CASH GI VEN BY HIM. THE SAID EXPLANATION IS CORROBORATED BY THE CONFIRMATION GIV EN BY DAUGHTER OF LATE SH. KALYAN SINGH AND THE BANK STATEMENT OF THE ASSE SSEE WHEREIN BOTH THE TRANSACTIONS OF ISSUANCE OF CHEQUE NO. 795021 DT. 1 1.04.2007 FOR RS 1,36,000 AND DEPOSIT OF EQUAL AMOUNT OF CASH IN ASS ESSEES BANK ON NEXT DAY ON 12.04.2007 IS CLEARLY APPEARING AND THE LINK AGE IS CLEARLY ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 6 ESTABLISHED. THE ADDITION OF RS 1,36,000 IS ACCORDI NGLY DIRECTED TO BE DELETED. 13. REGARDING SOURCE OF CASH DEPOSIT OF RS. 6,50,00 0/-, THE ASSESSEES EXPLANATION IS THAT HE HAS RECEIVED THE SAID AMOUNT FROM SMT SHANTI DEVI WHO WANTED TO PURCHASE A PIECE OF LAND AND LATER ON , SINCE THE SAID TRANSACTION DIDNT MATERLISE, HE HAS REFUNDED THE A MOUNT TO HER. THE SAID EXPLANATION IS CORROBORATED BY THE AFFIDAVIT SUBMIT TED BY SMT. SHANTI DEVI. FURTHER, IN TERMS OF SOURCE OF CASH IN HANDS OF SMT SHANTI DEVI, AN AGREEMENT TO SELL HAS BEEN SUBMITTED WHICH SHE HAS ENTERED INTO WITH SHRI NAVNEET KUMAR KHORWAL (AND NOT WITH SHRI MAHENDRA K UMAR SHUKLA AS STATED BY THE LD CIT(A)) ON 4.4.2007 TO SELL HER AG RICULTURE LAND FOR RS. 8 LACS OUT OF WHICH SHE HAS RECEIVED RS. 7 LACS AND T HE BALANCE AMOUNT TO BE RECEIVED AT THE TIME OF REGISTRY. THE CONTENTS OF THE AGREEMENT OF SELL REMAIN UNCONTROVERTED BEFORE US. THE SOURCE OF CAS H DEPOSIT OF RS 6,50,000 IS THUS REASONABLY EXPLAINED BY THE ASSESS EE AND THE INITIAL BURDEN CAST ON THE ASSESSEE IN TERMS OF IDENTITY AND CREDI TWORTHINESS OF SMT SHANTI DEVI AND GENUINENESS OF THE TRANSACTION HAS BEEN DI SCHARGED. THE ADDITION OF RS 6,50,000 IS THUS DIRECTED TO BE DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 28/02/2019. 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:- 28/02/2019 ITA NO. 990/JP/2018 RAJESH KISHORE SHARMA VS. ITO, JAIPUR 7 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- RAJESH KISHORE SHARMA WARD NO. 13, V ILLAGE & POST- CHOMU PUROHITAN, VIA KHATU SHYAMJI (SIKAR) 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-3(3). JAIPUR 3. VK;DJ VK;QDR@ CIT 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. 990/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR