Shri Niranjan Agrawal, V. The ACIT, 3(1),

ITSSA 63/IND/2006

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7959 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-11-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-04-2011
• Assessment Year: misc
• Appeal Filed On: 09-05-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: KAMLESH JAIN
• Keywords: Block assessment
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 63/IND/2006 BLOCK PERIOD 1.4.1996 TO 13.11.2002 SHRI NIRANJAN AGARWAL INDORE GIR NO. N-709 ::: APPELLANT VS ACIT 3(1), INDORE ::: RESPONDENT APPELANT BY SHRI KAMLESH JAIN RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 29.11.2012 DATE OF PRONOUNCEMENT 2 4 .01.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED CIT(A) DATED 12.1.2006 FOR THE BLOCK P ERIOD 1.4.1996 TO 13.11.2002. THE FACTS, IN BRIEF, ARE THAT THERE WAS A SEARCH AT THE ASSESSEES BUSINESS/RESIDENTIAL PREMISES AND TH E BLOCK ASSESSMENT ORDERS WERE FRAMED ON VARIOUS MEMBERS OF THE 2 GROUP. AFTER THE CIT(A) PASSED THE ORDER, THE ASS ESSEE WAS IN APPEAL BEFORE THE TRIBUNAL. 2. THE ASSESSEE HAS FILED APPEAL VIDE ITA NO. 63/IN D/06 WHICH WAS DECIDED BY THE TRIBUNAL VIDE CONSOLIDATED ORDER DATED 29.11.2011. THEREAFTER, MISCELLANEOUS APPLICATION WAS FILED TO ALLEGE THAT GROUND NOS. 5 AND 6 OF THE APPEAL WERE LEFT TO BE DECIDED. THE TRIBUNAL VIDE ITS ORDER DATED 31 ST OCTOBER, 2012 IN RESPECT OF MA NO. 88/IND/2012 (ARISING OUT OF IT(SS ) A NO. 63/IND/06) RECALLED ITS ORDER TO THE LIMITED EXTENT OF DECIDING GROUND NOS. 5 AND 6. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIN D THAT IN GROUND NO. 5 THE ASSSESEE HAS ALLEGED ADDITION OF R S. 11,000/-. FROM RECORD WE FIND THAT AS PER THE BANK STATEMENT, THE ASSESSSEE HAS WITHDRAWN CASH FROM THE BANK AMOUNTIN G TO RS. 8,000/- ON 29.1.2001 WHICH WAS USED FOR DEPOSITING RS. 11,000/-. THE CONTENTION OF THE ASSESSEE WAS THAT THE BALANCE OF RS. 3,000/- WAS FROM CASH BALANCE AVAILABLE WITH HI M. THE CIT(A) CONFIRMED THE ADDITION OF RS.11,000/- WHICH DESERVES TO BE REVERSED IN VIEW OF THE FACT THAT AS PER THE BAN K STATEMENT PLACED ON RECORD AT PAGE 77, THE ASSESSEE HAS WITHD RAWN CASH OF RS. 8,000/- ON 29.1.2001 WHICH WAS MUCH PRIOR TO TH E DATE OF 3 DEPOSIT ON 26.2.2001. THE BALANCE AMOUNT OF RS. 3, 000/- WAS OUT OF THE CASH BALANCE AVAILABLE WITH THE ASSESSEE . ACCORDINGLY, NO ADDITION IS WARRANTED IN RESPECT OF CASH DEPOSIT OF RS. 11,000/- IN THE BANK ACCOUNT ON 26.2.2001. 4. WITH RESPECT TO THE ADDITION OF RS. 11,500/- DE POSITED IN THE BANK ON 18.1.2003, THE CONTENTION OF THE ASSSES SEE WAS THAT IT WAS OUTSIDE THE BLOCK PERIOD. AS PER THE COPY OF BANK STATEMENT PLACED AT PAGE 80 OF THE PAPER BOOK, IT A PPEARS THAT THE CASH WAS DEPOSITED ON 18.1.2003, HOWEVER, THIS FACT MISSED THE ATTENTION OF THE PERSON PREPARING SUBMISSION OF THE ASSESSEE BEFORE THE CIT(A). IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER VER IFYING THE DATE OF DEPOSIT AS PER BANK STATEMENT WITH RESPECT TO THE B LOCK PERIOD WHICH STARTS FROM 1.4.1996. WE DIRECT ACCORDINGLY. 5. THE ASSESSEE HAS RAISED THE GROUND AGAINST THE A DDITION OF RS. 2,50,000/- DEPOSITED IN UCO BANK ACCOUNT ON 17. 10.2002. THE CONTENTION OF THE ASSESSEE WAS THAT THE FATHER OF THE ASSESSEE, SHRI KAILASH CHAND AGRAWAL, AND THE BROTH ER OF THE ASSSESSEE, SHRI MUKESH AGRAWAL, SOLD THEIR HOUSES V IDE REGISTERED SALE DEED DATED 6.3.2003 FOR A SUM OF RS .20,31,000/-. AS PER THE SALE DEED, THE SELLER CONFIRMED THE RECE IPT OF RS. 3 LACS 4 ON 15.10.2002. OUT OF THIS AMOUNT, THE BROTHER OF ASSESSEE GAVE LOAN OF RS. 1,50,000/- TO THE ASSESSEE WHICH WAS RE CEIVED BY HIM IN CASH ON 15.10.2002 AND THE FATHER OF THE ASSSESS EE GAVE RS. 50,000/- OUT OF THE AMOUNT RECEIVED AS ADVANCE. TH E BALANCE AMOUNT OF RS. 50,000/- WAS OUT OF THE ASSESSEES SA VINGS. THE ASSESSEE HAS DEPOSITED TOTAL AMOUNT OF RS. 2,50,000 /- ON 17.10.2002 WHICH WAS NOT ACCEPTED BY THE AO. IT AP PEARS THAT SINCE THE SALE DEED WAS EXECUTED ON 6.3.2003 WHEREA S THE RECEIPT OF THE AMOUNT BY THE ASSESSEE FROM HIS BROTHER AND FATHER WAS SHOWN EARLIER TO THE DATE OF SALE, THE LOWER AUTHOR ITIES HAVE NOT ACCEPTED THE ASSESSEES PLEA OF GIVING MONEY BY THE FATHER AND THE BROTHER. IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO THE AO TO EXAM INE THE ACTUAL RECEIPT OF ADVANCE AMOUNT OF RS. 3 LACS BY THE FATH ER AND BROTHER OF THE ASSESSEE AGAINST SALE OF HOUSE WHICH WAS ALL EGED TO BE GIVEN ON 15.10.2002 OUT OF WHICH ADVANCE WAS GIVEN TO THE ASSESSEE AND THE ASSESSEE HAS DEPOSITED RS. 2,50,00 0/- ON 17.10.2002. THE ASSESSEE IS ALSO DIRECTED TO FILE CASH FLOW STATEMENT OF FATHER AND THE BROTHER TO INDICATE AVA ILABILITY OF CASH ON THE DATE OF ADVANCE TO SUBSTANTIATE THE CLAIM OF RECEIPT OF ADVANCE OUT OF SUCH CASH BALANCE. WE DIRECT ACCORD INGLY. 5 6. IN GROUND NO. 6 THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 7,20,197/- INCURRED ON CONSTRUCTION OF GODOWN. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS THAT THIS ADDITION WAS MADE BY PASSING AN ORDER U/S 154 DATED 29.6.2005. SINCE THIS AMOUNT WAS NOT ADDED IN THE ORIGINAL ASS ESSMENT ORDER, NO GROUND WAS TAKEN BEFORE THE CIT(A). ACCO RDINGLY, THIS GROUND REMAINS TO BE DECIDED BY THE CIT(A). 7. AFTER CONSIDERING THE MATERIAL PLACED ON RECORD VIS--VIS THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI KAILASH C HAND AGRAWAL, WHEREIN SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBU NAL AND THE ADDITION WAS DELETED, IN THE INTEREST OF JUSTICE, W E RESTORE THIS ISSUE TO THE FILE OF THE CIT(A) FOR DECIDING THE SA ME AFRESH ON MERIT. WE DIRECT ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN OPEN COURT ON 24.1.2013. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER JANUARY 24,2013 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR 6