ACIT, Ajmer v. SURAJMAL KUMAWAT, Kishangarh

ITA 917/JPR/2015 | 2011-2012
Pronouncement Date: 20-10-2016 | Result: Allowed

Appeal Details

RSA Number 91723114 RSA 2015
Assessee PAN AGZPN3162H
Bench Jaipur
Appeal Number ITA 917/JPR/2015
Duration Of Justice 10 month(s) 13 day(s)
Appellant ACIT, Ajmer
Respondent SURAJMAL KUMAWAT, Kishangarh
Appeal Type Income Tax Appeal
Pronouncement Date 20-10-2016
Appeal Filed By Department
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 20-10-2016
Assessment Year 2011-2012
Appeal Filed On 07-12-2015
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHE S JAIPUR A JH FOE FLAG ;KNO] YS[KK LNL; OAA JH YFYR DQEKJ] U;KF;D LNL; DS LE{K BEFORE: SHRI VIKRAM SINGH YADAV AM & SHRI LALIET KUMAR JM VK;DJ VIHY LA-@ ITA NO. 913 & 914/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 TO 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SHRI DEVKI NANDAN KUMAWAT KAMAL KUNJ MAIN ROAD SHIVAJI NAGAR MADANGANJ KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AGZPN 3162 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 909 TO 912/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 TO 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SHRI MANISH KUMAR SINGHAL SINGHAL SADAN JAIN COLONY MADANGANJ KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BHHPS 8381 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 916 & 917/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 & 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SHRI SURAJMAL KUMAWAT BEHARI POL NAYA SHEHAR MADANGANJ KISHNGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BIQPK 8829 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 2 VK;DJ VIHY LA-@ ITA NO. 919 TO 921/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 TO 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SMT. SURABHI KOTHARI NEAR JANGID DHARAMSALA AZAD NAGAR MADANGANJ KISHNGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AXTPS 5463 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 905 907 & 908/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 2010-11 & 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SHRI PRAKASH CHAND VIJAYVARGHIYA NEAR VIJAY SIZING BEHIND BUS STAND MADANGANJ KISHANGRH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAJPV 2585 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 922 & 923/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 & 2010-11 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SMT. KIRAN AGARWAL DAGA GALI AJMER ROAD MADANGANJ KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AGRPA 6835 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 3 VK;DJ VIHY LA-@ ITA NO. 926 927 & 928/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 TO 2011-12 THE ACIT CENTRAL CIRCLE AJMER CUKE VS. SHRI ABHISHEK KUMAWAT KAMAL KUNJ MAIN ROAD SHIVAJI NAGAR MADANGANJ KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ALIPK 7227 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIKILESH KATARIA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.S. DAGUR (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.08.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/10/2016. VKNS'K@ ORDER PER BENCH: ALL THESE APPEALS HAVE BEEN FILED BY THE REVENUE AG AINST THE ORDER OF LD CIT(A) WHERE THE FACTS AND CIRCUMSTANCES OF THE CAS E AND THE GROUNDS OF APPEAL ARE COMMON. THE SAME WERE HEARD TOGETHER AN D DISPOSED OFF BY THIS CONSOLIDATED ORDER. IN CASE OF ACIT VS. SHRI DEVKINANDAN KUMAWAT (ITA N O. 913/JP/15) THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) WAS RIGHT IN MODIFYING THE G.P. ADDITION MADE BY THE AO ON TRANSACTION FACILITATED BY THE ASSESSEE BY HOLDING THAT ONLY N ET COMMISSION INCOME OF RS. 225/- PER RS. 1 LAC COULD BE TAXED ON THE BA NK DEPOSITS TAKEN BY ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 4 THE AO AS TURNOVER WITHOUT GIVING ANY SPECIFIC FIND INGS ON ALL THE OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS. (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FACTS THAT THE AS SESSEE HAS FAILED TO PRODUCED ALL THE DEPOSITORS AS WELL AS ALL THE BEN EFICIARIES TO WHOM PAYMENTS WERE MADE IN ABSENCE OF DETAILS IT WAS NOT PROVED BY THE ASSESSEE THAT HE WAS PROVIDING FACILITY OF BRINGING UNRECORDED SALES PROCEEDS OF ANY SELLERS THROUGH HIS BANK ACCOUNTS AND THEREFORE IN THIS SITUATION THERE WAS NO OTHER OPTION EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS ARE NOTHING BUT ASSESSEES OWN TRADIN G RECEIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AND EXPENSES. (III)(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FACTS THAT IN THI S CASE IT WAS ESTABLISHED BY THE AO THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENTS THE SA LE PROCEEDS. (B) THE AO HAS RIGHTLY APPLIED THE RATE ON GROSS P ROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUNT OF DEPOSITS IN HIS BA NK ACCOUNTS AS TRADING RECEIPTS UNRECORDED SALES IN HIS HANDS. 2. IN THIS CASE THE ISSUE UNDER CONSIDERATION RELA TES TO CASH DEPOSITS IN BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. THE AO H AS HELD THESE RECEIPTS AS RECEIPTS FROM THE BUSINESS OF MARBLE TRADING AND TH E LD CIT(A) HAS HELD THAT THESE RECEIPTS BELONG TO THE MARBLE TRADERS AND ASS ESSEE WHO HAS FACILITATED THESE RECEIPTS SHOULD BE BROUGHT TO TAX IN TERMS OF HIS COMMISSION INCOME. 2.1 IT IS NOTED THAT THE SIMILAR FACTS AND CIRCUMST ANCES OF THE CASE AND THE GROUNDS OF APPEAL HAVE BEEN TAKEN BY THE REVENUE IN OTHER CASES. FURTHER IN CASE OF SMT. KUSUM DEVI VIJAYVARGIYA AND OTHERS IN CASE OF ITA NO. 942/JP/15 & OTHERS EXACTLY IDENTICAL ISSUE HAD COME UP EARLI ER BEFORE ANOTHER BENCH COMPRISING ONE OF US. 2.2 DURING THE COURSE OF HEARING THE LD AR AS WELL AS LD DR SUBMITTED THAT THE ARGUMENTS AND CONTENTIONS RAISED IN CASES OF SM T. KUSUM DEVI VIJAYVARGIYA AND OTHERS SHALL APPLY EQUALLY IN THE CASES PRESENT LY BEFORE US. FOR THE SAKE OF BREVITY WE HAVE THEREFORE NOT LISTED DOWN THE RIVA L CONTENTIONS AS THE SAME HAVE BEEN ELABORATELY DISCUSSED AND DOCUMENTED IN C ASE OF SMT. KUSUM DEVI VIJAYVARGIYA AND OTHERS. ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 5 2.3 THE RELEVANT FINDINGS IN CASE OF SMT. KUSUMDEVI VIJAYVARGIYA & OTHERS (ITA NO. 942/JP/15 & OTHERS) DATED 20.10.2016 CONT AINED IN PARA 2.3 TO 2.14 ARE HOWEVER REPRODUCED AS UNDER: 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES T O CASH DEPOSITS AMOUNTING TO RS.11 37 60 458 MADE IN SIX BANK ACCOUNTS MAINTAINE D BY THE ASSESSEE. THE AO HAS HELD THESE RECEIPTS AS RECEIPTS FROM THE BUS INESS OF MARBLE TRADING AND THE LD CIT(A) HAS HELD THAT THESE RECEIPTS BELONG T O THE MARBLE TRADERS AND ASSESSEE WHO HAS FACILITATED THESE RECEIPTS SHOULD BE BROUGHT TO TAX IN TERMS OF HER COMMISSION INCOME. UNDISPUTEDLY THESE BANK AC COUNTS ARE OPENED IN THE NAME OF THE ASSESSEE AND OPERATED BY THE ASSESSEE H ERSELF WITH THE ASSISTANCE OF HER HUSBAND. THE STAND OF THE ASSESSEE IS THAT SHE IS NOT CARRYING ON ANY BUSINESS IN THE NATURE OF MARBLE TRADING AS ALLEGED BY THE AO. SHE HAS FURTHER STATED THAT ALL THESE BANK ACCOUNTS WERE USED BY VA RIOUS MARBLE TRADERS OPERATING IN AND AROUND KISHANGARH TO BRING CASH A GAINST THEIR UNRECORDED SALES MADE TO VARIOUS PARTIES FROM ALL OVER INDIA. THE ASSESSEE FURTHER SUBMITTED THAT THE CASH DEPOSITED BY THE VARIOUS PA RTIES WAS SUBSEQUENTLY WITHDRAWN AND HANDED OVER TO THE MARBLE TRADERS TO WHOM THE SAID MONEY BELONG. THE ASSESSEE SUBMITTED THAT FOR THE ACTIVIT Y OF FACILITATING THE RECEIPT OF CASH IN HER BANK ACCOUNTS AND SUBSEQUENT WITHDRAWA L AND HANDING OVER THE CASH TO THE MARBLE TRADERS SHE USED TO GET THE COM MISSION FROM THE SAID MARBLE TRADERS. HERE IT IS RELEVANT TO NOTE THAT T HE ENTIRE TRANSACTIONS IN VARIOUS BANK ACCOUNTS IN TERMS OF MONITORING THE C ASH DEPOSITS AS WELL AS SUBSEQUENT WITHDRAWAL AND HANDING OVER THE CASH HA S BEEN CARRIED OUT BY THE ASSESSEE HERSELF WITH THE ASSISTANCE OF HER HUSBAN D TO WHOM SHE HAS AUTHORISED AND NOT BY THE MARBLE TRADERS. HERE IT I S ALSO RELEVANT TO NOTE THAT THE AO HAS ALSO STATED IN HIS ORDER ABOUT THE SAID MARKET PRACTICE IN THE BUSINESS OF MARBLE TRADING WHERE THERE IS LARGE SCA LE UNDER INVOICING AND UNDER BILLING OF SALES. THE LD. AO HAS STATED THAT GEN ERALLY FOR OBTAINING SALE CONSIDERATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOMETOWN OR THROUGHOUT INDIA THE TRADERS OBTAIN PA RT AMOUNT THROUGH CHEQUES AND FOR BALANCE AMOUNT THEY HAVE BEEN US ING THEIR CONFIDANTS (FACILITY PROVIDERS). THE CONFIDENTS ARE HAVING M ULTIPLE BANK ACCOUNTS EITHER IN ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 6 THEIR NAME OR IN THE NAMES OF THEIR FAMILY MEMBERS OR CONCERN/FORMS. THEIR BANK ACCOUNT NUMBERS ARE INTIMATED TO THE BUYERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTUALLY ON -MONEY IN THE BANK ACCOUNT OF THE CONFIDANTS. THE BUYERS DEPOSIT AMOU NT BELOW RS. 50 000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEI PT OF AMOUNT IN BANK ACCOUNT THE CONFIDANTS I.E FACILITY PROVIDERS WIT HDRAW THE AMOUNT OF ON- MONEY AND HAND OVER TO THE BENEFICIARIES I.E. SELLE RS. THE AO HAS THEREFORE GIVEN HIS PRIMA FACIE FINDING THAT THE ASSESSEE IS FOUND PRIMA FACIE ENGAGED IN PROVIDING FACILITY TO BRING CASH PAYMENTS OF THE M ARBLE TRADERS BY ALLOWING THEM TO USE HER BANK ACCOUNT WHICH IS IN CONFORMITY WITH THE PREVAILING MARKET PRACTICE IN THIS REGION. 2.4 THE SAID PRIMA FACIE FINDING BY THE AO IS ON TH E BASIS OF STATEMENT OF THE ASSESEEE AND HER HUSBAND WHICH HAVE BEEN RECORDED D URING THE COURSE OF SURVEY. WITH A VIEW TO ARRIVE AT A DEFINITIVE FIND ING AND TO CORROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILITY PROVIDERS THE AO HAS ASKED THE ASSESSEE SPECIFIC QUESTIONS DURING TH E COURSE OF ASSESSMENT PROCEEDINGS WHEREBY THE ASSESSEE WAS ASKED TO PROVI DE PARTY-WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH W AS WITHDRAWN AND HANDED OVER BY THE ASSESSEE. 2.5 IN COMPLIANCE THE ASSESSEE HAS STATED THAT THE DETAILS OF MARBLE TRADERS ALONGWITH ADDRESSES WERE FURNISHED TO THE INVESTIG ATION WING WHO HAS CARRIED OUT THE SURVEY RECORDED HER AND HER HUSBANDS STAT EMENT AND ALSO OBTAINED VARIOUS EXERCISE BOOK DIARIES AND LOOSE PAPERS. O N PERUSAL OF THE STATEMENT OF ASSESSEES HUSBAND WHICH WAS RECORDED DURING THE CO URSE OF SURVEY AND PLACED ON RECORD WE FIND THAT IN RESPONSE TO VARIOUS QUE STIONS SUCH AS QUESTION NO. 11 14 15 16 & 19 WHICH ARE RAISED IN THE CONTEXT OF VARIOUS EXERCISE BOOK DIARIES AND LOOSE PAPERS FOUND DURING THE COURSE OF SURVEY THE ASSESSEES HUSBAND HAS STATED THAT ALL THESE DOCUMENTS CONTAIN ED DATA IN TERMS OF NAMES AND ADDRESSES OF VARIOUS PARTIES WHO HAVE DEPOSITED THE MONEY IN HER VARIOUS BANK ACCOUNTS AND ALSO DETAILS OF VARIOUS MARBLE TR ADERS/BENEFICIARIES TO WHOM THAT MONEY BELONGS. 2.6 HERE THE FUNDAMENTAL QUESTION THAT ARISES FOR C ONSIDERATION IS WHERE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 7 ASSESSEE THE ONUS TO PROVE THAT CASH BELONGS TO TH E ASSESSEE OR TO SOMEONE ELSE LIES ON WHOM- ON THE ASSESSEE OR ON THE REVENU E. IN THIS REGARD WE REFER TO THE DECISION OF HONBLE SUPREME COURT IN CASE OF CHUHARMAL VS CIT (1988) 172 ITR 0250 WHEREIN THE HONBLE SUPREME COURT HAS LAID DOWN TH E FOLLOWING PROPOSITION IN LAW: THE HIGH COURT IN ITS ORDER NOTED THAT THE RAIDING PARTY BY VIRTUE OF THE SEARCH ENTERED INTO THE BEDROOM OF THE ASSESSEE ON 12TH MA Y 1973 AND SEIZED THE WATCHES. A PANCHNAMA WAS PREPARED. THE DEPARTMENT F OUND THAT THE ASSESSEE WAS THE OWNER. SEC. 110 OF THE EVIDENCE ACT IS MATE RIAL IN THIS RESPECT AND THE HIGH COURT RELIED ON THE SAME WHICH STIPULATES THAT WHEN THE QUESTION IS WHETHER ANY PERSON IS OWNER OF ANY-THING OF WHICH H E IS SHOWN TO BE IN POSSESSION THE ONUS OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON WHO AFFIRMS THAT HE IS NOT THE OWNER. IN OTHER WORDS I T FOLLOWS FROM THE WELL-SETTLED PRINCIPLE OF LAW THAT NORMALLY UNLESS THE CONTRARY IS ESTABLISHED TITLE ALWAYS FOLLOWS POSSESSION. IN THE FACTS OF THIS CASE INDUBITABLY POSSESSION OF THE WRIST- WATCHES WAS FOUND WITH THE PETITIONER. THE PETITION ER DID NOT ADDUCE ANY EVIDENCE FAR LESS DISCHARGE THE ONUS OF PROVING TH AT THE WRIST-WATCHES IN QUESTION DID NOT BELONG TO THE PETITIONER. HENCE T HE HIGH COURT HELD AND IN OUR OPINION RIGHTLY THAT THE VALUE OF THE WRIST-WA TCHES IS THE INCOME OF THE ASSESSEE. IN THIS CONNECTION REFERENCE MAY BE MADE TO THE VIEWS EXPRESSED BY JUSTICE TULZAPURKAR AS HIS LORDSHIP THEN WAS OF T HE BOMBAY HIGH COURT IN THE CASE OF J.S. PARKAR VS. V.B. PALEKAR (1974) 94 ITR 616 (BOM) : TC42R.1775 WHERE ON A DIFFERENCE OF OPINION BETWEEN JUSTICE D ESHPANDE AND JUSTICE MUKHI JUSTICE TULZAPURKAR AGREED WITH JUSTICE DESH PANDE AND HELD ON THE QUESTION WHETHER THE EVIDENCE ESTABLISHED THAT THE PETITIONER WAS THE OWNER OF THE GOLD SEIZED THOUGH THERE WAS NO DIRECT EVIDENC E PLACED BEFORE THE TAXING AUTHORITIES TO PROVE THAT THE PETITIONER HAD ACTUAL LY INVESTED MONEYS FOR PURCHASING THE GOLD IN QUESTION THE INFERENCE OF T HE OWNERSHIP OF THE GOLD IN THE PETITIONER IN THAT CASE RESTED UPON CIRCUMSTANT IAL EVIDENCE. THERE ALSO GOLD WAS SEIZED FROM A MOTOR LAUNCH BELONGING TO THE PET ITIONER IN THAT CASE. THERE A CONTENTION WAS RAISED THAT THE PROVISION IN S. 11 0 OF THE EVIDENCE ACT WHERE A PERSON WAS FOUND IN POSSESSION OF ANYTHING THE ONU S OF PROVING THAT HE WAS NOT THE OWNER WAS ON THE PERSON WHO AFFIRMED THAT H E WAS NOT THE OWNER WAS INCORRECT AND INAPPLICABLE TO TAXATION PROCEEDINGS. THIS CONTENTION WAS REJECTED. THE HIGH COURT OF BOMBAY HELD THAT WHAT W AS MEANT BY SAYING THAT ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 8 THE EVIDENCE ACT DID NOT APPLY TO THE PROCEEDINGS U NDER THE ACT WAS THAT THE RIGOUR OF THE RULES OF EVIDENCE CONTAINED IN THE EV IDENCE ACT WAS NOT APPLICABLE BUT THAT DID NOT MEAN THAT WHEN THE TAXING AUTHORIT IES WERE DESIROUS OF INVOKING THE PRINCIPLES OF THE ACT IN PROCEEDINGS B EFORE THEM THEY WERE PREVENTED FROM DOING SO. SECONDLY ALL THAT S. 110 OF THE EVIDENCE ACT DOES IS THAT IT EMBODIES A SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE WHICH COULD BE ATTRACTED TO A SET OF CIRCUMSTANCES THAT SATISFY ITS CONDITIONS. (EMPHASIS SUPPLIED ) 2.7 IN LIGHT OF ABOVE IT IS CRYSTAL CLEAR THAT WHE RE THE CASH IS FOUND IN POSSESSION OF THE ASSESSEE BY VIRTUE OF DEPOSITS IN HER BANK ACCOUNTS MAINTAINED AND OPERATED BY HER THE ONUS IS ON THE ASSESSEE TO DISCHARGE THE BURDEN THAT CASH DOESNT BELONG TO HER AND BELONG T O THE MARBLE TRADERS. FURTHER THE ASSESSEE HAS TO ADDUCE NECESSARY EVIDE NCE TO SUBSTANTIATE HER CLAIM. 2.8 THE NEXT QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER IN THE INSTANT CASE THE ASSESSEE HAS DISCHARGED HER ONUS IN TERMS OF EXPLAINING THE NATURE AND SOURCE OF DEPOSITS AND WITHDRAWALS IN VARIOUS B ANK ACCOUNTS THROUGHOUT THE YEAR. THE ASSESSEE HAS STATED IN HER STATEMEN T RECORDED DURING THE COURSE OF SURVEY THAT SHE HAS GIVEN THE PARTICULARS OF THE DEPOSITORS AND THE BENEFICIARIES TO THE INVESTIGATION WING. ADMITTEDL Y THE ASSESSEE WAS THEREFORE HAVING KNOWLEDGE AND ACCESS TO THE INFORMATION/DAT A IN TERMS OF VARIOUS DEPOSITERS AND THE BENEFICIARIES. THE ASSESSEE CO ULD HAVE SUBMITTED THE SAID INFORMATION/DATA TO THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSE SSEE WAS NOT HAVING ACCESS TO THE SAID INFORMATION OR WAS PREVENTED BY SUFFICI ENT CAUSE FROM SHARING THESE INFORMATION WITH THE AO. IT IS NOT THE PLEA OF THE ASSESSEE ALL THESE DOCUMENTS WERE SEIZED DURING THE COURSE OF SURVEY A ND SHE WAS NOT HAVING ACCESS TO ALL THESE DOCUMENTS WHICH WERE ADMITTEDLY MAINTAINED BY HER WHILE TRANSACTING THROUGH HER BANK ACCOUNTS. IN OUR VIEW IT IS FOR THE ASSESSEE IN WHOSE BANK ACCOUNTS THE MONEY HAS BEEN FOUND DEPOSI TED TO EXPLAIN THE NATURE AND SOURCE OF SUCH DEPOSITS AND IT IS IN RES PECT OF EVERY SUCH TRANSACTION THE ASSESSEE HAS TO PROVIDE THE NECESSARY EXPLANATI ON TO THE AO. SIMILARLY THE CLAIM OF THE ASSESEEE THAT THE MONEY WAS WITHDRAWN AND GIVEN TO THE VARIOUS BENEFICIARIES HAS TO BE EXPLAINED FOR EACH OF THE T RANSACTIONS AND THE NECESSARY ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 9 LINKAGE/NEXUS HAS TO BE ESTABLISHED BY THE ASSESSEE . THE SAME IS IN CONFORMITY WITH THE PROPOSITION OF LAW LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF R.S. RATHORE 212 ITR 350 (RAJ.). IN THAT CASE EVEN THOUGH THE DECISION WERE RENDERED IN THE CONTEXT OF SECTION 68 TO OUR MIND THE SAME IS EQUALLY RELEVANT FOR FACTS UNDER CONSIDERATION EVEN THOUGH THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS AND THE AO HAS NOT INV OKED SECTION 68 SPECIFICALLY IN THE INSTANT CASE. THE HONBLE HI GH COURT HAS OBSERVED AS UNDER: SEC. 68 REFERS TO CASH CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE. IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATI SFACTORY THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS INCOME OF THE ASSESSEE IN THE PREVIOUS YEAR. THE BURDEN THEREFORE IS ON THE ASS ESSEE TO EXPLAIN SATISFACTORILY WITH REGARD TO THE AMOUNTS WHICH HAVE BEEN CREDITED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THE SOURCE AND THE NATURE OF THE R ECEIPT HAS TO BE PROVED BY THE ASSESSEE AND IF HE FAILS TO PROVE SATISFACTORI LY THE SOURCE AND NATURE OF THE AMOUNT RECEIVED THE ASSESSING AUTHORITY IS ENTITLE D TO DRAW AN INFERENCE THAT THE RECEIPT IS ASSESSABLE INCOME OF THE ASSESSEE. THE TRIBUNAL HAS CAST DOUBTS WITH REGARD TO THE INVESTMENTS AND HAS EVEN OBSERVE D THAT SOME OF THEM ARE NOT EVEN GENUINE. A DUTY WAS CAST ON THE TRIBUNAL T O HAVE EITHER REMITTED THE MATTER TO THE CIT(A) OR TO THE ASSESSING AUTHORITY TO FIND OUT THE CORRECT POSITION. THERE MAY BE A NUMBER OF CREDITORS OF SIMILAR NATU RE BUT THE ASSESSEE HAS TO DISCHARGE HIS BURDEN IN RESPECT OF ALL OF TH EM. THE BURDEN WAS TO BE DISCHARGED BY THE ASSESSEE AND ALL THE CREDITORS WE RE NOT PRODUCED THEIR ADDRESSES WERE NOT GIVEN AND COGENT REASONS WERE GI VEN BY THE ITO. WHEN THE TRIBUNAL WAS OF THE VIEW THAT SOME OF THE INVESTMEN TS WERE NOT GENUINE IT SHOULD NOT HAVE UPHELD THE ORDER OF THE CIT(A) AND THE PROPER COURSE WAS TO SET ASIDE THE ORDER OF THE CIT(A) WITH A DIRECTION TO E ITHER ALLOW SUCH AMOUNTS FOR WHICH THE ASSESSEE HAS BEEN ABLE TO PROVE SATISFACT ORILY THE INVESTMENT OR TO GIVE HIM THE OPPORTUNITY TO PROVE SUCH UNEXPLAINED INVESTMENTS. THE OBSERVATIONS OF THE TRIBUNAL MAKES IT CLEAR THAT TH E TRIBUNAL ITSELF WAS IN DOUBT ABOUT THE CORRECTNESS OF ITS OWN CONCLUSION WHEN IT OBSERVED THAT SOME OF THE CASH CREDITS WERE NOT GENUINE. THUS THE FINDING RE CORDED BY THE TRIBUNAL THAT SOME OF THE CASH CREDITS WERE NOT GENUINE VITIATES THE ORDER PASSED BY IT. THE BURDEN TO BE DISCHARGED BY THE ASSESSEE HAS NOT BEE N DISCHARGED AND THE ORDER OF THE CIT(A) COULD HAVE BEEN CONFIRMED ONLY IF THE TRIBUNAL WAS SATISFIED THAT ALL THE INVESTMENTS WERE SATISFACTORILY EXPLAINED. THE TRIBUNAL ITSELF WAS NOT IN ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 10 A POSITION TO FEEL SATISFIED WITH REGARD TO THE EXP LANATION SUBMITTED AND OBSERVED THAT SOME OF THE INVESTMENTS WERE NOT GENU INE. IT WAS NOT JUSTIFIED ON THE PART OF THE TRIBUNAL IN SUCH A CASE TO UPHOLD T HE ORDER OF THE CIT(A). WHILE EXPLAINING THE VARIOUS CREDITS AND INVESTMENTS IT MAY BE POSSIBLE THAT THE ASSESSEE MAY BE SUCCESSFUL IN EXPLAINING SOME OF TH EM BUT THAT DOES NOT BY ITSELF MEAN THAT THE ENTIRE INVESTMENTS HAVE TO BE CONSIDERED AS EXPLAINED. EVEN LAPSE OF TIME OR INABILITY OF THE ASSESSEE WOU LD NOT MAKE THE UNEXPLAINED INVESTMENT AN EXPLAINED ONE. IT IS EACH AND INDIVID UAL ENTRY ON WHICH THE MIND HAS TO BE APPLIED BY THE TAXING AUTHORITY WHEN AN E XPLANATION IS OFFERED BY THE ASSESSEE. IF NO EXPLANATION HAS BEEN OFFERED IN RES PECT OF A PARTICULAR ENTRY THE TAXING AUTHORITY WILL BE JUSTIFIED IN COMING TO THE CONCLUSION THAT THE SAID INVESTMENT IS UNEXPLAINED. IT IS NOT THE TOTALITY O F THE CREDIT ENTRIES WHICH ARE TO BE ALLOWED OR TO BE DISALLOWED. THIS WORK HAS TO BE DONE ON THE BASIS OF THE EXPLANATION OFFERED FOR DIFFERENT ENTRIES AND IF TH E EXPLANATION OF THE ASSESSEE IS ACCEPTABLE ON THE BASIS OF THE EVIDENCE PRODUCED BEFORE THE TAXING AUTHORITY THE TRIBUNAL CAN COME TO THE CONCLUSION THAT SUCH I NVESTMENT IS FULLY EXPLAINED. IN THESE CIRCUMSTANCES THE TRIBUNAL WAS NOT JUSTIF IED IN CONFIRMING THE ORDER OF THE CIT(A) AND THERE IS CONTRADICTION IN ITS DECISI ON IN HOLDING THAT ALL INVESTMENTS CANNOT BE TREATED AS UNEXPLAINED THOUGH SOME OF THEM ARE CERTAINLY NOT GENUINE. THE MATTER IS REMITTED BACK TO THE TRIBUNAL TO CONSIDER EACH INDIVIDUAL INVESTMENT FOR WHICH AN EXPLANATION HAS BEEN GIVEN. IF THE TRIBUNAL IS SATISFIED WITH THE EXPLANATION SUBMITTE D BY THE ASSESSEE THEN THE INVESTMENT TO THAT EXTENT HAS TO BE ALLOWED AND THE ENTIRE SUM CANNOT BE ALLOWED IN GENERAL. (EMPHASIS SUPPLIED) 2.9 IN OUR VIEW MERELY BY MAKING A STATEMENT BEFOR E THE ASSESSING OFFICER THAT THE DETAILS OF THE DEPOSITORS AND THE BENEFICI ARIES WERE SUBMITTED TO THE INVESTIGATION WING THE ONUS CAST ON THE ASSESSEE I S NOT DISCHARGED. IT IS FOR THE ASSESSEE TO EXPLAIN EACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIO NED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS FOUND DURING THE COURSE OF SURVE Y. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND REC ONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITTED EITHER DURING THE COURS E OF SURVEY OR DURING THE ASSESSMENT PROCEEDINGS OR EVEN DURING THE APPELLATE PROCEEDINGS. ONCE THE SAID EXERCISE HAS BEEN UNDERTAKEN AND EXAMINED THE QUESTION OF LOOKING AT THE CIRCUMSTANTIAL EVIDENCES OR THE THEORY OF PROBABILI TY AS TO WHETHER THE ASSESSEE ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 11 HAS THE NECESSARY INFRASTRUCTURE TO UNDERTAKE MARBL E TRADING CAN BE LOOKED AT. WHERE THE TRANSACTION DETAILS ARE AVAILABLE THE SA ME SHOULD TAKE PRECEDENCE OVER THE CIRCUMSTANTIAL EVIDENCE. THE ASSESSING OF FICER THEREAFTER HAS TO APPLY HIS DISCRETION AND SEE WHETHER HE IS COMFORTABLE WI TH THE EXPLANATION OF THE ASSESSEE OR NOT AND THEN TAKE A FINAL VIEW IN THE M ATTER. 2.10 HAVING SAID THAT WE ARE ALSO INTRIGUED BY THE INACTION ON THE PART OF THE REVENUE AND IN PARTICULAR THE AO WHEREBY HE HAS FAI LED TO CONSIDER THE DETAILS OF THE DEPOSITORS AND BENEFICIARIES AS CLAIMED TO BE SUBMITTED BY THE ASSESSEE DURING THE COURSE OF SURVEY. IDEALLY THE AO SHOULD HAVE CONFRONTED THE ASSESSEE WITH THE DETAILS FOUND DURING THE SURVEY A ND SOUGHT AN EXPLANATION REGARDING VARIOUS DEPOSITS AND WITHDRAWALS IN RESPE CT OF VARIOUS BANK ACCOUNTS MAINTAINED BY THE ASSESSEE THE DETAILS IN RESPECT OF WHICH HAS BEEN OBTAINED BY THE AO BY ISSUING NOTICES CALLING FOR THE INFORM ATION FROM THE VARIOUS BANKS. IT SEEMS TO US THAT THE REASON FOR INACTION ON THE PART OF THE AO IS ACCOUNT OF AO NOT HAVING NECESSARY RECORDS OF SURVEY MAINTAINE D BY THE INVESTIGATION WING. THERE THUS SEEMS TO BE A CLEAR LACK OF CO-OR DINATION BETWEEN THE INVESTIGATION WING AND THE ASSESSING OFFICER HANDLI NG THE ASSESSMENT. WE DO NOT SEE A JUSTIFIABLE REASON ESPECIALLY WHERE THE C ASE OF THE ASSESSEE ALONGWITH OTHER SIMILAR ASSESSES WERE CENTRALIZED BEFORE A S INGLE ASSESSING AUTHORITY WHY THE SURVEY RECORDS CANNOT BE SHARED WITH THE S AID AUTHORITY SO THAT THE EFFORTS INITIATED THROUGH SURVEY CAN LEAD TO A LOGI CAL CONCLUSION BY ARRIVING AT THE APPROPRIATE ASSESSMENT IN THE HANDS OF RIGHT PE RSONS. THE FACT IS THAT HUGE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE AND IT IS THE ASSESSEES PLEA THAT MONEY D OES NOT BELONG TO HER AND IT BELONGS TO SOME OTHER BENEFICIARIES. THE MONEY THER EFORE BELONGS TO SOMEONE WHO SHOULD BE BROUGHT TO TAX AS PER LAW WHERE THE P LEA OF THE ASSSESSEE IS ACCEPTED. 2.11 NOW LOOKING AT THE ORDER OF THE LD CIT(A) WE FIND THAT EVEN LD CIT(A) HAS MERELY GONE THROUGH THE SURVEY REPORTS AND THE STAT EMENTS RECORDED DURING THE COURSE OF SURVEY. HOWEVER AS WE HAVE NOTED AB OVE WITH A VIEW TO ARRIVE AT A DEFINITIVE FINDING THERE IS A NECESSITY TO CO RROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILIT Y PROVIDERS. AND FOR THAT INFORMATION RELATING TO PARTY-WISE DETAILS OF DEPOS ITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 12 TO WHOM THE CASH WAS WITHDRAWN AND HANDED OVER BY T HE ASSESSEE IS REQUIRED TO BE EXAMINED. IT IS FOR THE ASSESSEE TO EXPLAIN E ACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIONED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS F OUND DURING THE COURSE OF SURVEY AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ES TABLISHED BY THE ASSESSEE. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND RECONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITT ED DURING THE APPELLATE PROCEEDINGS OR EXAMINED BY THE LD CIT(A). 2.12 IN OUR VIEW THE MATTER REQUIRES A DEEPER AND A COORDINATED EXAMINATION BY THE AUTHORITIES AT THE HIGHER LEVEL TO BRING THE CORRECT FACTS ON RECORD WHICH SHOULD CONCLUSIVELY ESTABLISH THAT EITHER THE ASSES SEE IS THE OWNER OF THE MONEY FOUND DEPOSITED IN HER BANK ACCOUNTS AS CLAIMED BY THE AO OR THE ASSESSEE IS MERELY A FACILITATOR AND EARNS COMMISSION INCOME AS CLAIMED BY THE ASSESSEE. ACCORDINGLY WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE MATTER AFRESH WITH THE FOLLOWING DIRECTIONS: (1) THE ASSESSEE SHALL PROVIDE ALL THE REQUISITE D ETAILS IN TERMS OF NAMES AND ADDRESS AND OTHER REQUISITE PARTICULARS OF THE DEPO SITORS AS WELL AS OF THE BENEFICIARIES; (2) THE ASSESSEE HAS TO EXPLAIN THE NATURE AND SOU RCE OF THE TRANSACTIONS IN TERMS OF DEPOSITS AND ESTABLISH THE NECESSARY LINKA GE BETWEEN THE DEPOSITS AND THE SUBSEQUENT WITHDRAWALS TO VARIOUS INDIVIDUAL BE NEFICIARIES; (3) THE LD CIT(A) SHALL CALL FOR THE RECORDS MAIN TAINED BY THE INVESTIGATION WING IN RESPECT OF THE SURVEY PROCEEDINGS AND CONF RONT THE SAME TO THE ASSESSEE TO PROVIDE HER A SUITABLE OPPORTUNITY; (4) THE BENEFICIARIES TO BE CONFRONTED WITH THE DET AILS SUBMITTED BY THE ASSSESSEE AND CALL FOR THEIR CONFIRMATION AND/OR PE RSONAL APPEARANCES AND/OR COORDINATE WITH THEIR RESPECTIVE CITS/ASSESSING OFF ICERS; AND (5) NEEDLES TO SAY BOTH THE PARTIES SHALL BE PROVI DED SUITABLE OPPORTUNITY AND THEY SHALL EQUALLY COOPERATE AND SHALL SUBMIT NECES SARY EXPLANATION/INFORMATION/DOCUMENTS AS AVAILABLE AND REQUIRED BY THE LD CIT(A). ITA NO.913/JP/15& OTHERS ACIT CC AJMER VS. SHRI DEVKINANDAN KUMAWAT 13 2.13 WITH THE ABOVE DIRECTIONS WE SET-ASIDE THE MA TTER TO THE FILE OF THE LD CIT(A) FOR A FRESH EXAMINATION AND THE APPEAL OF TH E REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 2.14 HAVING CONSIDERED THE CONTENTIONS OF THE RIVAL PARTIES AND NOTING THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASES AR E PARI-MATERIA WITH THE FACTS AND CIRCUMSTANCES IN CASE OF SMT. KUSUM DEVI VIJAYVARGIYA AND OTHERS THE DECISION TAKEN BY THE COORDINATE BENCH IN SMT. KUSUM DEVI VIJAYVARGIYA AND OTHERS (SUPRA) SHALL APPLY MUTATIS-MUTANDIS IN THE INSTANT CASES. THE APPEAL OF THE REVENUE IN ALL THESE CASES IS THU S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/10 /2016. SD/- SD/- (LALIET KUMAR) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 20/ 10/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT CENTRAL CIRCLE AJMER 2. IZR;FKHZ@ THE RESPONDENT- SHRI DEVKINANDAN KUMAWAT KISHANGAR H & OTHERS 3. VK;DJ VK;QDR@ CIT (CENTRAL) JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-II UDAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.913/JP/2015 & OTHERS) VKNS'KKUQLKJ@ BY ORDER GK;D IATHDKJ@ ASSISTANT. REGISTRAR.