JAGDISH CHOUDHARY, Jaipur v. ITO, Jaipur

ITA 183/JPR/2011 | 2006-2007
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 18323114 RSA 2011
Assessee PAN APRIL2010S
Bench Jaipur
Appeal Number ITA 183/JPR/2011
Duration Of Justice 6 month(s) 6 day(s)
Appellant JAGDISH CHOUDHARY, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 09-09-2011
Assessment Year 2006-2007
Appeal Filed On 03-03-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 183/ JP/2011 ASSESSMENT YEAR 2006-07 SHRI JAGDISH CHOUDHARY VS. THE ITO VPO KABADIYAWAS WARD- 7 (4) VIA PACHAR JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) ITA NO. 192/ JP/2011 ASSESSMENT YEAR 2006-07 THE ITO VS. SHRI JAGDISH CHOUDHARY WARD- 7 (4) VPO KABADIYAWAS JAIPUR VIA PACHAR JAIPUR (APPELLANT ) (RESPONDENT) ASSESSEE BY: SHRI MANISH AGARWAL DEPARTMENT BY : SHRI VINOD JOHRI DATE OF HEARING: 06-09-2011 DATE OF PRONOUNCEMENT:09-09-2011 ORDER PER N.L. KALRA AM:- THE ASSESSEE AS WELL AS REVENUE HAVE FILED APPEAL S AGAINST THE ORDER OF THE LD. CIT(A)-III JAIPUR DATED 15-12-201 FOR THE ASSESSMENT YEAR 2006- 07. 2 2.1 FIRST OF ALL WE TAKE UP THE APPEAL FILED BY TH E ASSESSEE AND THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UND ER. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS GROSSLY ERRED IN DISALLOWING A SUM OF RS . 27.80 LACS DEPOSITED BY MOTILAL NARAYAN SINGH AND LALLU RAM S HARMA WITHOUT GIVING ADEQUATE AND PROPER OPPORTUNITY TO E XPLAIN THE DEPOSITS. 1.1 THAT SHRI MOTILAL PAID A SUM OF RS. 8.00 LACS A S ADVANCE FOR PURCHSE OF LAND ON 0605-2005 BY CHEQUE AD ON 07 05-05 A SUM OF RS. 6.00 LACS WAS RETURNED TO SHRI MOTILAL. THIS FACT WAS NOT CONSIDERED BY THE LD. CIT(A) 1.2 SIMILARLY SHRI NARAYAN SINGH PAID AN ADVANCE FO R PURCHASE OF LAND ON 20-05-05 RS. 14.80 LACS BY CHE QUE WHILE SHRI LALLU RAM SHARMA ALSO PAID RS. 5.00 LACS ON 24 -05-05 AS ADVANCE FOR PURCHASE OF LAND BY CHEQUEM BUT THE FA CT THAT PAYMENT WAS MADE BY CHEQUE WAS NOT CONSIDERED AT AL L AND TO SUBMIT EVIDENCE IN THIS RESPECT NO TIME WAS ALLOWED . 2.2 THE AO RECEIVED THE INFORMATION FROM THE BANK T O THE EFFECT THAT A SUM OF RS. 1 38 03 966/- WAS CREDITED IN THE BANK A CCOUNT OF THE ASSESSEE. NOTICE U/S 142(1) WAS ISSUED ON 14-02-07. THE AO IN HIS ORDER HAS MENTIONED THAT HE PROVIDED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS BUT THE ASSESSEE FAILED TO M AKE ANY COMPLIANCE IN RESPECT OF EXPLAINING THE SOURCE OF THE DEPOSITS. ACCORDINGLY THE AO PASSED THE ORDER U/S 144 OF THE ACT AND TAXED THE ENTIRE DEPOSITS OF RS. 1 38 03 966/- AS INCOME OF THE ASSESSEE. 3 2.3 BEFORE THE LD. CIT(A) THE LD. AR OF THE ASSESS EE FILED THE COPY OF THE BANK ACCOUNT AND GAVE THE FOLLOWING EXPLANATION IN RESPECT OF THE DEPOSITS MADE IN THE BANK ACCOUNT. S.N AMOUNT PARTICULARS 1. 55 00 000 AMOUNT RECEIVED FROM THE SALE OF LAND BY SMT. GULAB DEVI 2. 15 00 000 AMOUNT WAS DEPOSITED THROUGH CHEQUE BUT SUBSEQUENTLY IT WAS RETURNED BACK 3. 40 21 000 AMOUNTS HAVE BEEN DEPOSITED OUT OF WITHDRAWALS IN CASH FROM THE BANK ACCOUNT 4. 27 80 000 AMOUNTS RECEIVED AS ADVANCE FOR LAND5 5. 2 966 BANK INTEREST TOTAL 1 38 03 966 2.4 THE LD. CIT(A) CONFIRMED THE ADDITION OF RS. 27 .80 LACS ON THE GROUND THAT THE ASSESSEE HAS FAILED TO ADDUCE ANY EVIDENCE IN RESPECT OF THE SOURCE OF THE FUNDS. NO ENQUIRY HAS BEEN MADE IN RESPECT O F THE SOURCE OF THE FUNDS AVAILABLE IN THE HANDS OF THE DEPOSITORS. 2.5 IN THE GROUNDS OF APPEAL IT IS MENTIONED THAT THE AMOUNT SHAVE BEEN RECEIVED THROUGH CHEQUE AND THE LD. CIT(A) HAS NOT CONSIDERED THIS FACT THAT THE AMOUNTS WERE RECEIVED THROUGH CHEQUE FROM THREE PERSONS. THE LD. AR FURTHER STATED THAT ON SIMILAR CASE THE TRIBUNAL H AS RESTORED THE ISSUE ON THE 4 FILE OF THE AO. THE LD. AR HAS FILED THE COP OF THE ORDER OF THE TRIBUNAL DATED 21-04-2011. 2.6 ON THE OTHER HAND THE LD. DR HAS FILED THE WRI TTEN SUBMISSION. ACCORDING TO THE LD. DR THE LD. CIT(A) WAS NOT CON VINCED WITH THE SOURCE OF THE DEPOSITS YET THE OBSERVATION IS SHORT OF ABS OLUTE SATISFACTION . THE LD. CIT(A) SHOULD HAVE FURTHER EXAMINED AS TO WHETHER A NY LAND WAS AVAILABLE WITH THE ASSESSEE FOR SALE. THE LD. CIT(A) SHOULD H AVE EXAMINED AS TO WHETHER THE LAND WAS ACTUALLY SOLD. IT WAS REQUESTE D THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 2.7 WE HAVE HEARD BOTH THE PARTIES. THE LD. CIT(A) REQUIRED THE AO TO SUBMIT HIS REPORT IN RESPECT OF THE ADDITIONAL EVI DENCE FILED UNDER RULE 46A . THE AO VIDE LETTER DATED 24TH APRIL 2010 STATED T HAT THE ADDITIONAL EVIDENCE SHOULD NOT BE ACCEPTED. HENCE THE LD. CIT (A) HAS DECIDED THE APPEAL ON THE BASIS OF THE ADDITIONAL EVIDENCE FILE D AND ADMITTED. IT IS THE DUTY OF THE AO TO HAVE REQUESTED THE LD. CIT(A) TO ALLOW HIM TO MAKE FURTHER ENQUIRY. PROCEEDINGS U/S 271(1) (C) OF THE ACT WERE PENDING BEFORE THE AO AND THE AO SHOULD HAVE MADE ENQUIRY IN SUCH PENALTY PROCEEDINGS. THE TRIBUNAL VIDE ORDER DATED 21-04-2011 IN THE CAS ES OF GULAB CHAND SHARMA AND OTHERS SET ASIDE THE ISSUE ON THE FILE O F THE AO AFTER OBSERVING AS UNDER:- 5 7. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT ALL THE MATERIAL I NVOLVED IN THE APPEALS OF THE DEPARTMENT AS WELL AS IN THE APPEALS OF THE ASSESSEE SHOULD BE SENT BACK TO THE FILE OF THE AO THOUGH WE ARE NOT IN AGREEMENT WITH THE CONTENTION OF THE LD. D/R THAT AO WAS NOT ALLOWED OPPORTUNITY AS LD. CIT (A) HAS ALLO WED OPPORTUNITY. ALL THE DETAILS FILED BEFORE HIM WERE SENT TO THE AO AND THIS IS THE DUTY OF THE AO TO EXAMINE THOSE DETAILS AND TO FILE REPLY. EVERY TIME THE ARGUMENT OF THE DEPA RTMENT IS THAT AMPLE OPPORTUNITY WAS NOT GIVEN AND HENCE ADDITIONA L EVIDENCE SHOULD NOT BE ADMITTED. 8. IN THE CASE OF JYOTSNA SURI THE HONBLE APEX COURT HAS HELD THAT NATURE OF ADDITIONAL EVIDENCE I S LIABLE TO BE SEEN. IF THE ADDITIONAL EVIDENCE GOES TO THE ROOT O F THE CASE THEN THEY HAVE TO BE ADMITTED TO MEET THE ENDS OF JUSTIC E. 9. THEREFORE WE STRONGLY STATE THAT THE DEPARTMENT AL AUTHORITIES SHOULD EXAMINE THE ADDITIONAL EVIDENCE SENT BY THE LD. CIT (A) AND THEY SHOULD GIVE THEIR REPORT ACCOR DINGLY. EVEN AND OTHERWISE THE LD. CIT (A) HAS CO-TERMINUS POWE R IN ADMITTING THE ADDITIONAL EVIDENCE AS PER PROVISIONS OF LAW. IN THESE CASES LD. CIT (A) HAS ALLOWED OPPORTUNITY TO THE AO THEREFORE DEPARTMENT SHOULD NOT RAISE A GROUND THA T LD. CIT (A) WAS WRONG IN ADMITTING THE ADDITIONAL EVIDENCE FILE D BEFORE HIM. ALL THE DETAILS RELATE TO THE SAME OF AGRIC ULTURAL LAND AND 6 OUT OF WHICH THE BANK DEPOSITS WERE MADE THEREFOR E THEY HAVE TO BE ADMITTED. HOWEVER AS THERE ARE MANY ENTRIES IN THE BANK ACCOUNT AND IT IS IMPOSSIBLE TO ASCERTAIN HERE THAT WHICH ENTRY IS FROM WHICH SOURCE THEREFORE TO MEET THE ENDS OF J USTICE TO BOTH THE SIDES WE RESTORE THE ENTIRE ISSUE TO THE FILE OF AO TO PASS A FRESH ORDER AFTER TAKING INTO CONSIDERATION THE VAR IOUS DETAILS FILED BEFORE LD. CIT (A). THE ASSESSEE IS FREE TO FILE FURTHER DETAILS IF NEEDED. 2.8 FOLLOWING THAT ORDER WE FEEL THAT THE ISSUE OF ADDITION OF RS. 27.88 LACS IS REQUIRED TO BE RECONSIDERED BY THE AO AFRE SH. 3.1 NOW WE WILL TAKE UP THE APPEAL OF THE REVENUE. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER: ''ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN:- (I) ACCEPTING THE ADDITIONAL EVIDENCE UNDER RULE 46 A FURNISHED BY THE ASSESSEE EVEN WHEN IT WAS NOT WARR ANTED ON FACTS. (I) SUSTAINING THE ADDITION OF RS. 27.80 LACS AS AG AINST THE ADDITION MADE BY THE AO AT RS. 1 38 03 966/- FO R THE DEPOSIT IN THE BANK ACCOUNT WITHOUT APPRECIATING TH E FACTS. 3.2 WE HAD ALREADY REPRODUCED THE FINDING OF THE TR IBUNAL IN OTHER CASES. THE FACTS IN THE INSTANT CASE ARE THE SAME AS IN TH E CASES DECIDED BY THE TRIBUNAL VIDE ORDER DATED 27-04-2011. WE THEREFORE FEEL THAT THE ISSUE RAISED IN THE APPEAL OF THE REVENUE IS ALSO TO BE C ONSIDERED AFRESH BY THE AO. 7 4. IN THE RESULT THE APPEALS OF THE ASSESSEE AS WE LL AS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09-09 -2011. SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 09 /09/2011 *MISHRA COPY FORWARDED TO :- 1. SHRI JAGDISH CHOUDHARY JAIPUR 2. THE ITO WARD- 7 (4). JAIPUR 3. THE LD. CIT BY ORDER 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.183/JP /11) A.R ITAT JAIPUR 8 9