SHRI Rakesh Ajab Singh Thakur, Indore V. The ITO, Ward 2(1), Indore

MA 109/Ind/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5778 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV JAIN
• Keywords: Unexplained investment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO. 109 /IND/201 7 (ARISING OUT OF ITA NO. 945 /IND/201 6 ) ASSESSMENT YEAR: 200 9 - 10 SHRI RAKESH AJAB SINGH THAKUR, INDORE. / VS. ITO , WARD 2(1), INDORE. BHOPAL (APP LICANT ) (REVENUE ) P.A. NO. AVKPT2329L APP LICANT BY SHRI RAM GILDA, ADV. RESPONDENT BY SHRI RAJEEV JAIN, SR. DR. DATE OF HEARING: 26.02.2018 DATE OF PRONOUNCEMENT : 28 .0 2 .2018 / O R D E R PER KUL BHARAT , J.M: BY THIS MISC. APPLICATION , THE ASSESSEE SEEKS AMENDMENT IN THE ORDER OF TRIBUNAL DATED 28.07.2018 PASSED IN I.T.A.NO. 945/IND/2016 FOR ASSESSMENT YEAR 200 9 - 10 . - : 2 : - 2. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS MADE OUT IN THE MISC. APPLICATION, WHICH READS AS UNDER: WHILE PARTLY ALLOWING DEPARTMENTAL APPEAL, IN PARA NO. 9 OF THE ORDER, THE PEAK AMOUNT OF RS. 11,54,448/ - WAS TREATED AS UNEXPLAINED AMOUNT/INVESTMENT OF THE ASSESSEE AND ADDITION WAS SUSTAINED TO THAT EXTENT. WHILE SUSTAINING THIS ADDITION OF PEAK AMOUNT DURING THE Y EAR, THE OPENING BALANCE OF RS. 6,51,254/ - AS ON 29.03.2008, (COMING FROM LAST YEAR) ESCAPED ATTENTION OF HON'BLE TRIBUNAL AND HENCE DESERVES SUITABLE AMENDMENT IN THE ORDER. AFTER CONSIDERATION OF THE OPENING BALANCE OF RS. 6,51,254/ - ( WHICH IS DULY EXPLAINED AS PER PAGE NO. 74 OF THE PAPER BOOK. ) , THE POSITION WOULD BE AS FOLLOWS : - PEAK AMOUNT AS ON 7.01.2009 10,54,558 . 00 LESS: OPENING BALANCE 29.03.2008 I.E. AS ON 01.04.2008 6 , 51,254.00 ADDITION SUSTAINABLE 4,03,304.00 P R A Y E R THE PETITIONER, THEREFORE, PRAYS THAT SUITABLE AMENDMENT, BE MADE IN ORDER DATED 28.07.2017 RESTRICTING THE ADDITION TO THE EXTENT OF RS. 4,03,304/ - . 3. LD. DR OPPOSED THE SUBMISSIONS OF THE ASSESSEE. 4 . WE HAVE CONSIDERED THE FACTS, RIVAL S UBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE PARA 9 OF THE ORDER OF THE TRIBUNAL. WE HAVE ALSO PERUSED THE PAGE NO. 74 OF THE PAPER BOOK , IN WHICH THE AMOUNT OF RS. 6,51,254/ - HAS BEEN SHOWN AS OPENING - : 3 : - BALANCE AS ON 1.4 .2008. WE HAVE GONE THROUGH PARA 9 OF THE ORDER OF THE TRIBUNAL. WE FIND THAT THE TRIBUNAL WHILE DECIDING THE ISSUE HAS HELD AS UNDER : - 8 . HOWEVER, AS THE AO HAS NOT DISPUTED THIS FACT THAT THE ASSESSEES FATHER OWN AGRICULTURAL LAND WHICH BRINGS AGRICULTURAL INCOME TO THE FATHER OF THE ASSESSEE AND SAME IS NOT TAXABLE AS PER PROVISIONS OF THE ACT. WHEN WE CONSIDER THE AFFIDAVIT OF THE ASSESSEES FATHER SHOWN ON 20.01.2016 THEN, AS WE FOUND HE HAS AGRICULTURAL ESTATE THAT HE OWNS 8 ACRE AGRICULTURA L LAND AND HE EARNS 5 LAKHS PER YEAR FROM SALE OF AGRICULTURAL CROPS. FROM THE COPY OF THE BANK PASSBOOK WE ALSO OBSERVED THAT IN THE BEGINNING OF F.Y. 2008 - 09 PERTAINING TO PRESENT A.Y. 2009 - 10 THE BANK BALANCE WAS RS. 6,21,254/ - WHICH WAS BROUGHT FORWARD TO THE PRESENT A.Y. AND PEAK ACCOUNT FOUND CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE DURING F.Y. 2008 - 09 AS ON 06.01.2009 WAS RS.11,54,558/ - . FROM THE COPY OF SAME PASSBOOK WE ALSO OBSERVED THAT ASSESSEE WITHDREW VARIOUS AMOUNTS WHICH ALSO DEPOSITED VAR IOUS AMOUNTS DURING THE F.Y. THEREFORE, TOTAL OF DEPOSITS CANNOT BE TREATED INCOME OF THE ASSESSEE FOR MAKING ADDITION AS UNEXPLAINED INVESTMENT. 9. HOWEVER, THE PEAK AMOUNT OF RS.11,54,448/ - DESERVES TO BE TREATED AS UNEXPLAINED AMOUNT/INVESTMENT OF THE A SSESSEE. THEREFORE, CONCLUSION DRAWN BY THE LD. - : 4 : - CIT(A) IS NOT CORRECT AND JUSTIFIED AS THE AMOUNT OF SALE PROCEEDS OF AGRICULTURAL LAND CANNOT BE TAKEN INTO CONSIDERATION AFTER TWO YEARS FOR EXPLAINING HUGE CASH DEPOSIT TO THE BANK AMOUNT OF THE ASSESSEE. WE CANNOT IGNORE THIS FACT THAT THE FATHER OF THE ASSESSEE IS NOT HAVING ANY BANK ACCOUNT AND HE IS ALSO DOING MONEY LENDING TO OTHER FARMERS FROM WHICH HE IS EARNING INTEREST INCOME WHICH IS NOT EXEMPT AND HE IS USING SAVING BANK ACCOUNT OF THE ASSESSEE F OR KEEPING HIS (FATHER OF ASSESSEE) ALL THE FUNDS. FINALLY, WE REACH THE LOGICAL CONCLUSION THAT THE PEAK AMOUNT FOUND DURING THE ENTIRE FINANCIAL YEAR CAN BE TREATED AS UNEXPLAINED INVESTMENT/INCOME OF THE ASSESSEE FOR MAKING ADDITION AND THE LD.CIT(A) WA S NOT CORRECT I N DELETING THE ENTIRE ADDITION. THEREFORE, GROUNDS OF THE REVENUE ARE PARTLY ALLOWED AND THE AO IS DIRECTED TO CALCULATE TAX ETC. ACCORDINGLY, AS DIRECTED ABOVE. 5 . FROM THE ABOVE FINDING, IT IS EVIDENT THAT THE OPENING BALANCE OF RS. 6,51,254/ - AS ON 1.4.2008 IS NOT TAKEN INTO ACCOUNT INADVERTENTLY WHILE COMPUTING THE PEAK. WE, THEREFORE, FIND MERIT INTO THE AVERMENT OF THE LD. COUNSEL FOR THE ASSESSEE. WE, THEREFORE, MODIFY OUR ORDER AND DIRECT THE AO TO EXCLUDE THE OP ENING BALANCE FROM THE PEAK AMOUNT AS ON 7.1.2009 . HENCE, THE ADDITION IS SUSTAINED TO THE EXTENT OF RS. - : 5 : - 4,03,304/ - . THEREFORE, THE APPLICATION OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE STA NDS ALLOWED AS INDICATED ABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 2 8 . 0 2 .2018. S D / - (MANISH BORAD) S D / - (KUL BHARAT) ACCOUNTANT MEMBER JUDICIALMEMBER INDORE : DATED : 2 8 / 0 2 /2018 . CPU* COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE