ITO, Kishangarh V. SHRI KAPOOR CHAND KOTHARI, Kishangarh

MA 4/JPR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2090 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Additional evidence; Onus to prove

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) M.A. NO.4/JP/2013 (ARISING OUT OF ITA NO. 318/JP/2013) ASSESSMENT YEAR : 2008-09 THE ITO VS. SHRI KAPOOR CHAND KOTHARI KISHANGARH PROP. M/S. DHARTIDHAN MINERALS HARMADA ROAD, INDUSTRIAL AREA MADANGANJ, KISHANGARH (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : WRITTEN SUBMISSION DATE OF HEARING: 11-07-2014 DATE OF PRONOUNCEMENT: 18-07-2014 ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED A MISCELLANEOUS APPLICATIO N U/S 254 (2) OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL DATED 31- 10-2012 FOR THE ASSESSMENT YEAR 2008-09. 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVE R, WRITTEN SUBMISSION IS FILED TO DISPOSE OFF THIS MISC. APPL ICATION. 2.2 THE BRIEF FACTS OF THE CASE ARE THAT DURING ASS ESSMENT PROCEEDINGS THE AO NOTICED CERTAIN CASH DEPOSITS IN IDBI BANK. THE SOURCE OF THE CASH 2 DEPOSITS IN THE BANK WAS ASKED TO EXPLAIN. THE ASSE SSEE GAVE THE EXPLANATION THAT CASH DEPOSITS WERE MADE OUT OF SALE OF INDUSTR IAL PLOT SITUATED AT KISHANGARH. THE CONFIRMATION OF RESPECTIVE BUYERS C OULD NOT BE FILED BY THE ASSESSEE CLAIMING THAT THE CURRENT ADDRESSES OF THE BUYERS WERE NOT AVAILABLE. THE ASSESSEE CLAIMED TO HAVE FILED THE COPY OF SALE DEED BEFORE THE AO. HOWEVER, IT IS CLAIMED BY THE REVENUE THAT NO COPY OF SALE DEED OR COPY OF AGREEMENT WAS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE AO MADE THE ADDITION. 2.3 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL. SOME ADDITIONAL EVIDENCES WERE FILED. THE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO. IT IS MENTIONED AT PAGE 9 TO 12 OF LD. CIT(A) S ORDER THAT THE ASSESSEE HIMSELF PRAYED THAT SOME ADDITIONAL EVIDENCES COULD NOT BE FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN CONSIDERATION OF THE REMAND REPORT, ADDITIONAL EVIDENCES AND MATERIALS AVAILABLE ON REC ORD, THE LD. CIT(A) CONFIRMED THE ADDITION. 2.4 AGGRIEVED, THE ASSESSEE PREFERRED BEFORE THE IT AT AND ITAT DELETED THE ADDITION HOLDING THAT THE ASSESSEE WAS ABLE TO EXPLAIN THE AMOUNT OF RS. 10,43,000/- OUT OF RS. 14,80,530/-. THEREFORE, THE RELIEF OF RS. 10,43,000/- WAS GIVEN. 3 2.5 THE REVENUE FILED THE MISCELLANEOUS APPLICATION ON THE GROUND THAT BEFORE THE AO THE ASSESSEE DID NOT PRODUCE ANY EVID ENCE. PARTIAL EVIDENCE WAS FILED BEFORE THE LD. CIT(A) WHO CALLED FOR THE REMAND REPORT WHICH WAS FILED IN DETAIL BUT THE AO CATEGORICALLY DEMONSTRA TED THAT THE ASSESSEE COULD DISCHARGE ITS BURDEN TO PROVE THIS AMOUNT. THE LD. CIT(A) THEREAFTER UPHELD THE ADDITION. BEFORE ITAT, THE ASSESSEE DID NOT APP EAR AND ONLY WRITTEN SUBMISSION WAS FILED. HOWEVER, ON THE BASIS OF THE WRITTEN SUBMISSION, THE IMPUGNED RELIEF HAS BEEN GIVEN. IT IS SUBMITTED THA T NEITHER APPLICATION FOR ADDITIONAL EVIDENCE NOR THE LIST OF THE ADDITIONAL EVIDENCE HAS BEEN FILED. BUT THE ITAT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASS ESSEE WITHOUT ITS PERSONAL ARGUMENTS, HEARING AND INCOMPLETE PAPER BOOK. BESIDES, WITHOUT THERE BEING ANY MATERIAL ON RECORD, THE REL IEF HAS BEEN GRANTED WITHOUT THERE BEING ANY CONFIRMATION FROM PARTY AND ON THE BASIS OF THE REPAYMENTS IN THE SUBSEQUENT YEARS. THE ASSESSMENT WAS FRAMED FOR THE ASSESSMENT YEAR 2008-09 ON 23-12-2010 I.E. AFTER 2 YEARS AFTER THE END OF THE YEAR. IF THE ASSESSEE HAS MADE PART PAYMENT IN SUBSEQUENT YEARS, THEY OUGHT TO HAVE BEEN PRODUCED DURING THE COURSE OF AS SESSMENT PROCEEDINGS. THUS THE ITAT HAS FAILED TO APPRECIATE THE MATERIAL S AVAILABLE ON RECORD AND GIVEN THE FINDING WITHOUT THERE BEING ANY RECORD IN SUPPORT OF THE FINDINGS. THUS THE FINDING OF THE ITAT IS CONTRARY TO THE REC ORD WHICH AMOUNTS TO 4 MISTAKE APPARENT FROM RECORD. IT IS PRAYED THAT THE ORDER OF THE ITAT MAY BE RECALLED. 2.6 WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSION OF THE ASSESSEE. I T EMERGES FROM RECORD THAT THE ASSESSEE DID NOT APPEAR BEFORE ITAT AND ONLY WR ITTEN SUBMISSION WAS FILED. IT EMERGES FROM RECORD THAT BEFORE AO NO PRO PER EXPLANATION AND CORROBORATIVE EVIDENCE WAS GIVEN. CONSEQUENTIALLY, THE AO MADE THE ADDITION. SOME ADDITIONAL EVIDENCE WAS FIELD BEFORE THE LD. CIT(A). FROM THE PAPER BOOK FILED BY THE ASSESSEE, IT EMERGES TH AT NEITHER APPLICATION FOR ADDITIONAL EVIDENCE NOR THE LIST OF ADDITIONAL DOCU MENT HAS BEEN FILED. BE THAT AS IT MAY, THE LD. CIT(A) FORWARDED THE ADDITI ONAL EVIDENCE TO THE AO FOR REMAND REPORT WHICH WAS FILED IN DETAIL AND IS REPRODUCED BY THE LD. CIT(A) IN HIS ORDER. THE SUM AND SUBSTANCE OF THE C ASE IS THAT THE ASSESSEE HAS FAILED TO DISCHARGE ITS BURDEN IN THE REMAND PR OCEEDING ALSO. CONSEQUENTIALLY, THE ADDITION WAS CONFIRMED BY THE LD. CIT(A). THE ITAT GIVE THE RELIEF BY OBSERVING AS UNDER:- THEREFORE, IN OUR CONSIDERED VIEW, THE ASSESSING OFFICER SHOULD HAVE ACCEPTED THE EXPLANATION TO THE EXPENDITURE OF RS. 10,43,000/- AS THE SAME WAS RECEIVED OUT OF SALE OF PLOT MENTIONED ABOVE. THIS IS NOT A CASE THAT ASSESSEE H AD UTILIZED THE AMOUNT OF SALE PROCEEDINGS SOMEWHERE ELSE. WHAT EVER THE 5 SALE PROCEEDS RECEIVED BY THE ASSESSEE, THEY WERE D EPOSITED IN BANK ACCOUNT FROM TIME TO TIME. THEREFORE, THE EXPL ANATION OF THE ASSESSEE IS SATISFACTORY TO THE EXTENT OF RS. 1 0,43,000/-. REGARDING THE AMOUNT OF RS. 4 LAC OR ODD WHICH WAS CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE, IT IS SEEN THAT A SUM OF RS. 94,080/- WAS DEPOSITED IN THE BANK VIDE CHEQUE NO. 363640 ON ACCOUNT OF JAIPUR ESCROW ACCOUNT. THIS AMOUNT WAS REFUNDED FROM JAIPUR AUTHORITY AS THE ALLOTMENT WAS NOT MADE AND, THEREFORE, THE AMOUNT WAS REFUNDED BACK TO THE ASSE SSEE. COPY OF ACCOUNT FOR GIVING MONEY FOR SHARES TRANSACTIONS FROM ASHIKA STOCK BROKING IS SUBMITTED. THEREFORE, IN OU R CONSIDERED VIEW, THE DEPOSIT OF RS. 94,080/- IS ALS O EXPLAINED. FURTHER A SUM OF RS. 96,750/- SHOWN WITHDRAWAL ON 2 4-01-2008 ON ACCOUNT OF RELIANCE POWER IPO. AGAIN ASSESSEE A PPLIED SHARES OF RELIANCE POWER IPO AND AFTER ADJUSTMENT O F ALLOTMENT MONEY OF RS. 7,310/- THE BALANCE WAS REFUNDED ON 23 -02-2008 FOR RS. 89,440/-. THESE TRANSACTIONS ARE VERIFIABLE FROM THE BANK ACCOUNT. THEREFORE, IN OUR CONSIDERED VIEW, THIS AD DITION IS ALSO TO BE DELETED.. THE RELIEF HAS BEEN GIVEN ON THE BASIS OF THE WRITT EN SUBMISSION BUT THERE IS NO MENTION IN THE ITAT ORDER ABOUT THE RELEVANT EV IDENCE AS TO WHICH BASIS RELIEF HAS BEEN GIVEN. IN VIEW OF THE ABOVE FACTS A ND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT ITAT ORDER SUFFERS FROM APPARENT MISTAKE WHICH IS RECTIFIABLE U/S 254(2) OF THE ACT. THUS WE RECALL THE ORDER 6 OF THE ITAT TO BE HEARD AFRESH. THE MISCELLANEOUS A PPLICATION OF THE REVENUE IS ALLOWED. THE REGISTRY IS DIRECTED TO INT IMATE THE DATE OF HEARING TO BOTH THE PARTIES. 3.0 IN THE RESULT, THE M.A. OF THE REVENUE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-07-2014. SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 18 TH JULY, 2014 *MISHRA COPY FORWARDED TO:- 1. THE ITO, KISHANGARH 2. SHRI KAPOOR CHAND KOTHARI, KISHANGARH 3. THE LD. CIT BY ORDER 4. THE LD. CIT(A), JAIPUR 5..THE LD. DR 6.THE GUARD FILE (MA NO. 4/JP/2013) AR ITAT, JAIPUR