Shri Rameshwar Lal Khatik, JAIPUR v. ITO, BHILWARA

ITA 69/JODH/2014 | 2009-2010
Pronouncement Date: 07-04-2014 | Result: Partly Allowed

Appeal Details

RSA Number 6923314 RSA 2014
Assessee PAN ACFPK9682M
Bench Jodhpur
Appeal Number ITA 69/JODH/2014
Duration Of Justice 2 month(s) 1 day(s)
Appellant Shri Rameshwar Lal Khatik, JAIPUR
Respondent ITO, BHILWARA
Appeal Type Income Tax Appeal
Pronouncement Date 07-04-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 07-04-2014
Assessment Year 2009-2010
Appeal Filed On 05-02-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K.SAINI ACCOUNTANT MEMBER ITA NO. 69/JU/2014 ASSESSMENT YEAR: 2009-10 SHRI RAMESHWAR LAL KHATIK VS. THE INCOME-TAX OFFIC ER CHANDEL SADAN AGOOCHA HURDA WARD - 4 BHILWARA BHILWARA PAN NO. ACFPK 9682 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHENDRA GARGIEYA DEPARTMENT BY : SHRI N.A. JOSHI DR DATE OF HEARING : 24.03.2014 DATE OF PRONOUNCEMENT : 07.04.2014 ORDER PER HARI OM MARATHA J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 20.12.2013 FOR A.Y 2009- 2010. 2 2. THE CASE OF THE ASSESSEE IS THAT THE ASSESSEE A S AN INDIVIDUAL FILED HIS RETURN OF INCOME [ROI] FOR A. Y. 2009-10 ON 14.07.2009 DECLARING TOTAL INCOME OF RS. 2 48 880/- . THE MAIN SOURCE OF ASSESSEES INCOME IS FROM SALARY. THE ASS ESSEE HAS SHOWN INCOME FROM SALARY AT RS. 3 30 714/- FROM M/S HINDU STAN ZINC LTD. HE HAS ALSO SHOWN INCOME FROM HOUSE PROPERTY AT RS. (-) 8 137/- AFTER CLAIMING DEDUCTION U/S 24(B) OF THE INCOME-TA X ACT 1961 ['THE ACT' FOR SHORT]. THE ASSESSEE HAS CLAIMED DEDUCTI ON U/S 80C OF THE ACT OF RS. 73 699/-. THUS THE ASSESSEE HAS IN FA CT DECLARED INCOME OF RS. 2 48 880/-. DURING THE YEAR THE ASS ESSEE MADE CASH DEPOSIT OF RS. 16 25 000/- ON 16.02.2009 A ND RS. 2 15 500/- ON 19.02.2009 IN THE SAVING BANK A/C WITH THE ICIC I BANK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF THESE DEPOSITS MADE IN THE BA NK ACCOUNT. WHEN THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF T HE ALLEGED CASH DEPOSITS THE A.O. ADDED BACK THE ENTIRE AMOUNT OF RS. 18 40 500/- AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. THE ASSESSEE HAS EARNED INTEREST INCOME OF RS. 130/- ON THIS BANK AC COUNT AND FURTHER INTEREST INCOME OF RS. 301/- ON SBS ACCOUNT MAINTAINED WITH SBBJ AGOOCHA BHILWARA. THE ASSESSEE HAS NOT DISC LOSED THESE 3 INTEREST INCOMES. THEREFORE THE ASSESSEE WAS SHOW CAUSED. THE A.O. HAS FURTHER MADE ADDITION OF RS. 431/- TO HIS TOTAL INCOME. AGGRIEVED THE ASSESSEE FILED APPEAL AND THE LD. CI T(A) HAS NOT FOUND FAVOUR WITH HIM AND HAS SUSTAINED THE IMPUGNE D ADDITION OF RS. 18 40 500/-. AGAINST THIS CONFIRMATION THE AS SESSEE HAS FILED THIS APPEAL BEFORE THE APPELLATE TRIBUNAL BY RAISIN G THE FOLLOWING GROUNDS: 1. THE IMPUGNED ADDITIONS AND DISALLOWANCES MADE IN THE ORDER U/S 143(3) DATED 29.12.2011 ARE BAD IN LAW AND BAD ON FACTS OF THE CASE FOR WANT OF JURISDICTI ON AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE DELETED. 2. RS. 18 40 500/- : THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING ADDITION OF RS. 18 40 500/- U/S 69 OF THE ACT [AS UNEXPLAINED CASH DEPOSITS] IN THE BANK ACCOUNT]. T HE ADDITION MADE BY THE A.O. WITHOUT MENTIONED THE SECTION AND CONFIRMED BY THE LD. CIT(A) U/S 69 OF T HE ACT IS CONTRARY TO THE PROVISIONS OF LOWER AUTHORIT IES AND FACTS OF THE CASE. HENCE THE SAME KINDLY BE DELETED IN FULL. 4 3. THE A.O. ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN CHARGING INTEREST U/S 234B OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARGING OF ANY SUCH INTEREST. THE INTEREST SO CHARGED BEING CONT RARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELET ED IN FULL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. AFTER CONSI DERING THE FACTUAL MATRIX OF THIS CASE WE HAVE FOUND THAT THE ASSESSEE IS AN EMPLOYEE WITH M/S HINDUSTAN ZINC LIMITED AND SALARY IS HIS SOLE SOURCE OF INCOME. THE A.O. HAS MADE ADDITION FOR WANT OF SPECIFIC REPLY FROM THE ASSESSEE AND THE LD. CIT(A) HAS ALSO IGNORED THE SUBMISSIONS OF THE ASSESSEE THAT VARIOUS FAMILY MEM BERS AND RELATIVES WHO HAVE CLAIMED TO HAVE DEPOSITED THE M ONEY WERE NOT FINANCIALLY CAPABLE AND ON ACCOUNT OF SOME OTHER DI SCREPANCIES ETC. NOTED IN THE AFFIDAVITS OF THE CREDITORS. WE HAVE FOUND THAT THE RECEIPTS ARE NOT IN THE NATURE OF INCOME U/S 68 OF THE ACT. THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNT BEING A SALARIED EMPLOYEE AND IT IS NOT THE CASE OF THE A.O. THAT TH E CREDITS OF AMOUNTS IN THE BOOKS OF ACCOUNT MAINTAINED REGULARL Y FOR THE SOURCE 5 OF INCOME ARE FOUND. THEREFORE SECTION 68 HAS NO APPLICATION. IT IS QUITE POSSIBLE THAT THE ACCOUNT OF THE ASSESSEE WH O IS ONLY A SALARIED PERSON AND HAS NO OTHER SOURCE OF HIS INCO ME AS THE DEPARTMENT HAS ALSO NOT POINTED OUT TO ANY SUCH OTH ER SOURCE OF INCOME THE CONTENTION OF THE ASSESSEE IS NOT VERY UNUSUAL. IN FACT THE AMOUNTS SO RECEIVED CANNOT BE TREATED AS ASSESS EES INCOME AS DEPOSITS WERE MADE BY VARIOUS FAMILY MEMBERS AND RE LATIVES WHO WANTED TO APPLY FOR THE LIQUOR CONTRACTS. IN ABSENC E OF ANY BANK A/C THEY WERE UNABLE TO APPLY AND HENCE DEPOSITS WERE MADE BY THEM IN THE BANK A/C OF ASSESSEE. WITHIN A SHORT PE RIOD OF 15 DAYS IN THE UNSUCCESSFUL CASES THE AMOUNT OF RS.13 94 70 0/- WAS REFUNDED BACK WHICH WAS DEPOSITED IN THE SAME VERY BANK A/C WHEREAS IN THE SUCCESSFUL CASES THE DEPOSIT CONTIN UED WITH THE DISTRICT ABKARI ADHIKARI. IN THE UNSUCCESSFUL CASES THE ASSESSEE ALSO REFUNDED BACK THE ENTIRE MONEY OF RS.13 94 700/- TO THE RESPECTIVE CREDITORS (FAMILY MEMBERS AND RELATIVES) TO WHOM TH E MONEY BELONGED. THIS CONTENTION HAS NOT BEEN DISPROVED B Y THE AUTHORITIES BELOW. IN SUPPORT THE ASSESSEE HAS FI LED AFFIDAVITS OF ALL THOSE PERSONS WHICH ARE ENCLOSED IN THE PAPER BOOK AT PAGES 19 TO 40. THESE FACTS HAVE NEITHER BEEN DISPUTED NOR CON TROVERTED BY THE 6 REVENUE. IN VIEW OF THE DECISION OF THE HON'BLE RA JASTHAN HIGH COURT IN THE CASE OF SMT. HARSHILA CHORADIA VS. ITO REPORTED IN 298 ITR 349 [RAJ] THIS AMOUNT CANNOT BE TREATED AS A C ASH CREDIT IN TERMS OF SECTION 68 OF THE ACT. BY FILING AFFIDAVI TS THE ASSESSEE HAS DISCHARGED HIS INITIAL BURDEN THAT THESE AMOUNTS BE LONGING TO OTHERS AND HE HAS SIMPLY ALLOWED HIS BANK ACCOUNT TO BE UT ILIZED BY THEM. THEREAFTER IT BECOMES THE DUTY OF THE DEPARTMENT T O FIND SOME EVIDENCE TO LINK THIS MONEY WITH THE ASSESSEE. PRI MARY PRESUMPTION RAISED AND AVAILABLE TO THE REVENUE AGAINST THE ASS ESSEE GETS ANSWERED AND THE ONUS NOW SHIFTS ON REVENUE TO BRIN G FORTH SOME CERTAIN FURTHER EVIDENCE. IT WAS ARGUED BY THE LD. A.R. THAT THE CONTENTS OF AFFIDAVITS REMAIN UNREBUTTED AND UNCONT ROVERTED. FURTHER NO ADDITION U/S 69 OF THE ACT IS ALSO LEGA LLY PERMISSIBLE BECAUSE THE ASSESSEE HAS EXPLAINED THE SOURCE OF VA RIOUS DEPOSITS IN THE BANK ACCOUNT. MOREOVER THE LD. CIT(A) HAS NOT GRANTED ANY OPPORTUNITY TO THE ASSESSEE TO COUNTER HIS PROPOSED VERSION ON ADDITION U/S 69 OF THE ACT. WE HAVE FOUND NO EVIDE NCE ON RECORD TO COME TO A CONCLUSION THAT THE ASSESSEE HAD MADE INV ESTMENT FROM BENAMI NATURE OF TRANSACTION ARISING FROM BANK ACCO UNT. ACCORDINGLY WE CANNOT SUSTAIN THIS ADDITION OF RS. 18 40 400/- IN 7 ASSESSEES HANDS AND ORDER TO DELETE THE SAME FROM THE HANDS OF THE ASSESSEE. AS A RESULT GROUND NO. 2 OF THE APP EAL IS ALLOWED. 4. GROUND NO. 1 OF THIS APPEAL WHICH IS LEGAL IN N ATURE WAS NOT REALLY ARGUED BY THE LD. A.R. AND HENCE THIS GROUND STANDS DISMISSED. 5. GROUND NO. 3 OF THIS APPEAL PERTAINS TO CHARGING OF INTEREST U/S 234B OF THE ACT. CHARGING OF INTEREST IS MANDA TORY BUT THE OTHER ALLIED FACTORS LIKE DELETION OF ADDITION ETC AND SUCH OTHER ALLIED CONSIDERATIONS REQUISITE BENEFIT BECOMES AD MISSIBLE TO THE ASSESSEE. HOWEVER IT CANNOT BE ORDERED THAT NO IN TEREST BE CHARGED U/S 234B OF THE ACT. ACCORDINGLY WE CANNO T ALLOW GROUND NO. 3 AND DISMISS THE SAME. 6. GROUND NO. 4 IS SIMPLY FORMAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. 8 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL 2014. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH APRIL 2014 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT JODHPUR