Hemant Murlidhar Parihar, PALI V. ITO, PALI

MA 67/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2531 (ITAT-JODHPUR)
• Duration Of Justice: 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 30-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JODHPUR BENCH: J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) M .A. NO. 67 /JODH/201 4 (ARISING OUT OF ITA NO. 442 /JODH/201 2 ) (A.Y. 200 7 - 0 8 ) M.A. NO. 68/JODH/2014 (ARISIN G OUT OF ITA NO. 443/JODH/2012) (A.Y. 2008 - 09) SHRI HEMANT MURLIDHAR PARIHAR V S ITO, 8, WHITE HOUSE, PALI. WARD - 1,PALI. PAN NO. AKWPP6056F (APPELLANT) (RESPONDENT) ASSESSEE BY : - SHRI AMIT KOTHARI. DEPARTMENT BY : - SHRI M AHESH KUMAR - D.R. DATE OF HEARING : 01 / 10 /201 4 DATE OF PRONOUNCEMENT : 08 / 10 /2014 O R D E R P E R HARI OM MARATHA, J.M. : THROUGH THIS MISCELLANEOUS APPLICATIONS (M.A.S) THE ASSESSEE - APPLICANT HAS SOUGHT RECTIFICATION OF THE ORDER DATED 2 3.07.2014 PASSED IN ITA NOS. 442 AND 443/JODH/2012 ( A.YS. 2007 - 08 AND 2008 - 09) IN ASSESSEES CASE. THIS APPLICATION HAS BEEN FILE D U/S 254(2) OF THE 2 INCOME TAX ACT, 1961(THE ACT FOR SHORT) STATING THAT RECTIFIABLE MISTAKE(S) HAS CREPT IN THIS ORDER. 2. THE GROUNDS RAISED IN APPLICATION FOR A.Y. 2007 - 08 ARE AS UNDER: - 1. THE HON'BLE TRIBUNAL HAD PASSED A COMMON ORDER FOR ASSESSMENT YEAR 2007 - 08 AND 2008 - 0 9 . IN A.Y. 2007 - 08 THERE WAS ONLY APPEAL BY THE APPELLANT. 2. THE GROUND NO. 2 OF THE APPELLANT WAS AS UN DER: 'THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 8,15,000/ - ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSIT IN BANK ACCOUNT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 3. THE APPELLANT EXPLAINED THE SOURCE OF DEPOSIT IN THE BANK ACCO UNT WHICH ARE CONSIDERED BY THE HON'BLE ITAT AT PAGE 7 AND 8 OF THE APPELLATE ORDER. THE SUMMARY OF THE SOURCES EXPLAINED BY THE APPELLANT AND AS STATED IN THE ORDER ITSELF IS AS UNDER: 3 THE ABOVE SOURCE WELL EXPLAINS THE DEPOSIT IN BANK ACCOUNT. THE HON'BLE ITAT AND IN PARA 9 THE HON'BLE ITAT HAS ALSO STATED THAT THE FACTUM OF LOAN HAS BEEN DULY EXPLAINED ON RECORD. HOWEVER THE CREDIT OF THESE LOAN AMOUNT HAD NOT BEEN GIVEN TO THE APP ELLANT. THIS HAS RESULTED INTO AN APPARENT MISTAKE OF FACT, AND THE APPELLANT RESPECTFULLY SUBMIT THAT THE ISSUE MAY BE RECONSIDERED IN THE FACTS ABOVE. IT WAS SUBMITTED THAT THE ALL DEBIT AND CREDIT IN THE AGRICULTURE ACCOUNT IS ON ACCOUNT OF AGRICULTURE SALE PRODUCE AND AGRICULTURE LOAN TAKEN BY THE APPELLANT FROM WHICH WITHDRAWAL AND DEPOSIT ARE BEING ALSO MADE. THE APPELLANT HAD EXPLAINED IMMEDIATE SOURCE OF DEPOSIT IN ACCOUNT. THE OVERALL FUND FLOW STATEMENT EXPLAINS THE ACCOUNT. IT WAS SUBMITTED THAT FOR EARNING AGRICULTURE INCOME THE TOTAL AGRICULTURE RECEIPTS WOULD BE MORE WHICH ALSO ADEQUATELY EXP LAINS THE DEPOSIT IN QUESTION. OPENING BALANCE OF CASH IN PERSONAL 1,71,483 OPENING BALANCE OF CAS H I N BUSINESS ACCOUNT RS. 3,32,71 5 / - AGRICULTURE INCOME DURING THE YEAR AND AS ACCEPTED IN APPEAL PROCEEDINGS. 1,90,700 KISSAN GOLD LOAN TAKEN DURING THE YEAR IN CASH 3,40,000 KISAN CREDIT CARD LOAN TAKEN DURING THE YEAR 2,05,000 TOTAL SOURCES 9,07,18 3 4 IT APPEARS THAT INADVERTENTLY THE DECISION ON ASSESSEE'S GROUND OF APPEAL FOR AY 2007 - 08 HAVE NOT BEEN GIVEN AND IT IS THE REFORE, REQUESTED THAT THE ASSESSEE'S APPEAL FOR SAID YEAR MAY KINDLY BE DECIDED. 2.1 FOR A.Y. 2008 - 09, IN MA NO. 68/JODH/2014 FOLLOWING GROUNDS HAVE BEEN RAISED : - 1. TH E HON'BLE TRIBUNAL HAD PASSED A COMMON ORDER FOR ASSESSMENT YEAR 2007 - 08 AND 200 8 - 0 9 . IN A.Y. 2007 - 08 THERE WAS ONLY APPEAL BY THE APPELLANT AND BY THE DEPARTMENT. 2. THE GROUND NO. 2 OF THE APPELLANT WAS AS UNDER : 'THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 2,12,000/ - ON ACCOUNT OF DEPOSIT MADE IN KCC AND KGC ACCOU NT AND CAPITAL CONTRIBUTION TO HIS CONCERN. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 3. THE DEPARTMENT HAD ALSO CHALLENGED THE RELIEF ALLOWED AND THE GROUND 3 RAISED BY THE DEPARTMENT IS AS UNDER : 'RESTRICTING THE ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS MADE IN KISAN CREDIT CARD AND KISAN GOLD CARD A/C AS WELL AS UNEXPLAINED CAPITAL INTRODUCED IN M/S AKSHAR COMMUNICATION TO RS. 2,12,000/ - AND RS. 1,30,000/ - RESPECTIVELY MADE BY AO.' THE APPELLANT EXPLAINED THE SOURCE OF DEPOSIT IN TH E BANK ACCOUNT WHICH ARE CONSIDERED BY THE HON'BLE ITAT AT PAGE 15 AND 8 OF THE APPELLATE ORDER. THE SUMMARY OF THE SOURCES 5 EXPLAINED BY THE APPELLANT AND AS STATED IN THE ORDER ITSELF IS AS UNDER : THE ABOVE SOURCE WELL EXPLAINS THE DEPOSIT IN BANK ACCOUNT. THE HON'BLE ITAT AND IN PARA 15.4 THE HON'BLE ITAT. HOWEVER THE CREDIT OF THESE LOAN AMOUNT HAD NOT BEEN GIVEN TO THE APPELLANT. THIS HAS RESULTED INTO AN APPARENT MISTAKE OF FACT, AND THE APPELLANT RESPECTFULLY SUBMIT THAT THE ISSUE MAY BE RECONSIDERED IN THE FACTS ABOVE. IT WAS SUBMITTED THAT THE ALL DEBIT AND CREDIT IN THE AGRICULTURE ACCOUNT IS ON ACCOUNT OF AGRICULTURE SALE PRODUCE AND AGRICULTURE LOAN TAKEN BY THE APPELLANT FROM WHICH WITHDRAWAL AND DEPOSIT ARE BEING ALSO MADE. THE APPELLANT HAD E XPLAINE D IMMEDIATE SOURCE OF DEPOSIT IN ACCOUNT. THE OVERALL FUND FLOW STATEMENT EXPLAINS THE ACCOUNT. IT WAS SUBMITTED THAT FOR EARNING AGRICULTURE INCOME THE TOTAL AGRICULTURE RECEIPTS WOULD BE MORE WHICH ALSO ADEQUATELY EXPLAINS THE DEPOSIT IN QUESTION. IT AP PEARS THAT INADVERTENTLY TH E DECISION ON ASSESSEE'S GROUND OF APPEAL FOR AY 2008 - 09 HAVE NOT BEEN GIVEN AND IT IS THEREFORE, REQUESTED THAT THE ASSESSEE'S APPEAL FOR SAID YEAR MAY KINDLY BE DECIDED. OPENING BALANCE OF CASH IN BUSINESS ACCOUNT RS. 3,32,715/ - AGRICULTURE INCOME DURING THE YEAR AND AS ACCEPTED IN APPEAL PROCEEDINGS. 1,81,000 KISSAN GOLD LOAN TAKEN DURING THE YEAR IN CASH 24.7.07 AND 26.7.2007 2,05,000 TOTAL SOURCES 3,86,000 6 3. ON THE OTHER HAND THE LD. D.R. HAS STATED THAT THERE ARE NO RECTIFIABLE MISTAKE(S) IN THE TRIBUNAL ORDER. 3.1 AFTER TREADING THROUGH THE TRIBUNAL ORDER IN THE LIGHT OF THE SUBMISSION AND GROUNDS RAISED IN THIS APPLICATION, WE HAVE FOUND THAT THIS BENCH HAS HELD THE FACTUM OF LOAN AS DULY EXPLAINED. IT IS N OTICED THAT THE GROUND NO. (2) RAISED IN A.Y. 2007 - 08 AND 2008 - 09, REMAINED UNDECIDED, IN EFFECT. IN FACT WE WOULD ADD THAT THE CREDIT FOR THE AGRICULTURAL INCOME AND THE AGRICULTURAL LOAN AND OPENING CASH BALANCE HAVE TO BE GIVEN TO THE ASSESSEE. WITH THI S ADDITION IN THE TRIBUNAL ORDER, WE ALLOW THESE M.AS TO THE EXTENT AND MODIFY OUR ORDER. 4. IN THE RESULT, TO THE EXTENT STAND ABOVE THESE M.AS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 08 TH OCTOB ER , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08 TH OCTO BER , 2014 VL / - 7 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. TH E DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR