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Income Tax Appellate Tribunal, JAIPUR BENCHES “A”, JAIPUR
Before: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 365/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “A”, JAIPUR Jh jes'k lh 'kekZ] ys[kk lnL; ,oa Jh fot; iky jko] U;kf;d lnL; ds le{k BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 365/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2013-14 cuke Jaipal Singh Mahalawat, I.T.O., Vs. Q-72, Raj Aangan, NRI Colony, Ward 7(2), Pratap nagar, jaipur-302033. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACLPM 2560 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Smt. Rano Jain (Adv) & Shri Himanshu Goyal (CA) jktLo dh vksj ls@ Revenue by : Smt. Roshanta Meena (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 12/02/2019 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 19/03/2019 vkns'k@ ORDER PER: R.C. SHARMA, A.M. This is an appeal filed by the assessee against the order of ld.CIT(A)-3, Jaipur dated 23/01/2018 for the A.Y. 2013-14 in the matter order passed U/s 143(3) of the Income Tax Act, 1961 (in short the Act).
2. The main grievance of the assessee relates to confirmation of addition of Rs. 1,10,00,208/- by the ld CIT(A).
Rival contentions have been heard and record perused. The briefly stated facts of the case are that during the year under consideration, the ITA 365/JP/2018_ 2 Jaipal Singh Mahalawat Vs. ITO assessee has purchased two agricultural lands at Rs. 1,64,80,998/-. In order to verify the source of payment, the Assessing Officer called the assessee and it was explained that Rs. 1,10,00,208 was paid by cash and Rs. 54,80,800/- was paid by cheque. To explain the source of cash, the assessee submitted that the cash was received from six parties from whom advance payment for booking of plots were received. The Assessing Officer issued summons U/s 131 of the Act to all the six parties.
They appeared before the Assessing Officer and confirmed the transaction of booking and payment of cash and also source of the funds. However, the Assessing Officer did not agree with the assessee’s contention. For the balance amount of Rs. 50.00 lacs, it was explained that it was out of the past savings and the repayment of loan given in the earlier years.
However, the Assessing Officer also did not accept the same and added the entire amount of Rs. 1,10,00,208/- in assessee’s income. By the impugned order, the ld. CIT(A) has confirmed the action of the Assessing Officer against which the assessee is in further appeal before us.
It was argued by the ld AR appearing on behalf of the assessee that all the parties from whom the advance money against booking of plots were received, were called upon by the Assessing Officer by issuing the summon U/s 131 of the Act. All the parties appeared and given their statement and accepted that they have advanced the money to the ITA 365/JP/2018_ 3 Jaipal Singh Mahalawat Vs. ITO assessee. Thus, the assessee has duly discharged the source of cash in his hands. Similarly for the remaining amount, the assessee has placed before the A.O. statement of availability of funds due to past savings in so far as in the immediately preceding assessment year itself the assessee was in receipt of salary of Rs. 8.00 lacs per month in the A.Y. 2012-13, which amounts of Rs. 96.00 lacs in a year. It was also explained that the assessee was in Merchant Navy from last 25 years and had earned very handsome salary. Our attention was invited to the documentary evidences placed by these parties who appeared before the Assessing Officer to explain the source of their funds, proved their identity and confirmation of transaction of booking of plot. Our attention was also invited to the affidavits filed by all these parties which are placed on record. As per the ld AR, the assessee has discharged its onus towards the identity, genuineness and creditworthiness of these parties and if the Assessing Officer has any doubt he could have made investigation with the respective parties to take his finding to an logical end. For this purpose, reliance was placed on the decision of Hon’ble Madhya Pradesh High Court in the case of CIT Vs. Metachem Industries (2000) 245 ITR 160 (MP H.C.), Hon’ble Chhatisgarh High Court decision in the case of CIT, Bilaspur Vs Abdul Aziz in of 2014 dated 14/02/2012. Reliance was also placed on the following judicial pronouncements:
ITA 365/JP/2018_ 4 Jaipal Singh Mahalawat Vs. ITO a. CIT, Orissa vs. Orissa Corporation Pvt. Ltd., [1986] 159 ITR 78 (SC) b. M/s. Pragya Tendu Leaves Processing Company vs. CIT, Ranchi, Income Tax Appeal No.38 of 2008, Dated 12.10.2017, Jharkhand Hon'ble High Court c. CIT Vs. Value Capital services, [2008] 307 ITR 334, Delhi HC d. Smt. Vimla Rani Aggarwal Vs. ITO, Dated 31.01.2014, Agra ITAT e. Arceli Reality Limited, dated 21.04.2017, ITAT Mumbai. f. ACIT Ludhiana Vs. AP Refinery Pvt. Ltd., dated 10.02.2017, ITAT Chandigarh
Reliance was also placed by the ld AR on the judicial pronouncements laid down by the Hon’ble Jurisdictional High Court in the case of Aravali trading Co. Vs. ITO (2008) 220 CTR 622 (Raj) and Kanhailal Jangid Vs ACIT (2008) 217 CTR 354 (Raj) and it was contended that the principles laid down in these judicial pronouncements are fully applicable to the present case. The fact that the explanation furnished by the aforementioned six creditors about the sources wherefrom they acquired the money was not acceptable by the revenue could not provide necessary nexus for drawing inference that the amount admitted to be deposited by these four persons belonged to the assessee. The assessee having discharged his burden by proving the existence of the depositors
ITA 365/JP/2018_ 5 Jaipal Singh Mahalawat Vs. ITO and the depositors owing their deposits, he was not further required to prove source of source.
On the other hand, the ld DR has relied on the orders of the authorities below and contended that the assessee could not explain satisfactorily, the receipt of cash from the respective parties who booked the plots. Accordingly, the addition so made by the Assessing Officer was to be upheld.
We have considered the rival contentions and carefully gone through the orders of the authorities below. We had also deliberated on the judicial pronouncements referred by the lower authorities in their respective orders as well as cited by the ld. AR and ld. DR during the course of hearing before us in the context of factual matrix of the case.
From the record we found that the assessee is an NRI, working with Merchant Navy from last 25 years. The assessee filed his return of income for the A.Y. 2013-14 on 31.01.2015 declaring an income of Rs.7,56,750/-.
During the year under consideration, the assessee purchased two agriculture lands. The said lands were purchased in order to develop a residential colony thereon. The details of payment for such land are as under:
S. No. Particulars Amount (in Rs.) Total (in Rs.) Cash Cheque 1. Agriculture Land 30,45,000/- 16,70,000/- 47,15,000/-
ITA 365/JP/2018_ 6 Jaipal Singh Mahalawat Vs. ITO Registry Charges 3,25,817/- — 3,25,817/- Total (A) 33,70,817/- 16,70,000/- 50,40,817/-
Agriculture land 69,50,200/- 38,10,800/- 1,07,61,000/-
Registry Charges 6,79,191/- — 6,79,181/-
Total (B) 76,29,381/- 38,10,800/- 1,14,40,181/-
Total (A+B) 1,10,00,208/- 54,80,800/- 1,64,80,998/- The said two lands were purchased for a total consideration of Rs. 1,64,80,998/- out of which Rs. 1,10,00,208/- was paid in cash, which was added back to the gross total income of the assessee by the Assessing Officer on account of undisclosed income.
From the record we found that the assessee after purchasing the above mentioned two lands henceforth started booking the plots made out of the two lands of which part payments were still to be made. On booking of said plots assessee used to receive cash advances from the various parties. There were in total 6 parties involved in the said transaction and from whom the advances were received. The details of the same are as under:
Name of Party Advance Documents Amount (in Rs.) Pg. No. Gopi Devi 5,00,000/- 39-48
Rajendra Prasad 10,00,000/- 49-54 Kailash Chand Sain 10,00,000/- 55-61 ITA 365/JP/2018_ 7 Jaipal Singh Mahalawat Vs. ITO Ladulal Mali 10,00,000/- 62-80 ChitarKharol 20,00,000/- 81-90 Mohan Lai Mali 10,00,000/- 91-98
We also found from the record that the Assessee in order to prove the identity, genuineness and credit worthiness of the above mentioned parties provided for the following documents which are placed at the mentioned page No. 7 of the paper book.
Smt. Gopi Devi PB Pg. Affidavit : 41-42 Identity Proof : 43 Jamabandi : 44-48 Rajendra Prasad Affidavit : 51-52 Identity Proof : 54 Jamabandi : 53 Kailash Chand Sain Affidavit : 57-58 Identity Proof : 59 Jamabandi : 60-61 Ladu Lal Mali : Affidavit : 64-65 Identity Proof : 66 Jamabandi : 67-80 Chittar Khorol Affidavit : 83-84 Identity Proof : 85 Jamabandi : 86-90 Mohan Lai Mali Affidavit : 93-94 Identity Proof : 95 Jamabandi : 96-98
ITA 365/JP/2018_ 8 Jaipal Singh Mahalawat Vs. ITO
Thus, it is clear that all the above mentioned parties were produced before the AO and their respective statements were recorded on oath. In the statements it has duly been accepted by the said parties that they have given the above-mentioned amount to the assessee in order to book the plots. Following was stated in the individual statements recorded:
Name PB Disclosure made by parties Pg. Gopi Devi 39 On behalf of Gopi Devi his son appeared before the authority and mentioned her source of income as agriculture further in response to question no. 4 mentioned that his mother has purchased a plot of land from the assessee for which a payment of rs.5,00,000/- was made and a receipt in consideration was received by her. Rajendra Prasad 49 Rajendra Prasad in his statement mentioned that his source of income is agriculture and that he even possesses PAN. Further in response to question no.3 mentioned that he has paid a sum of Rs. 10,00,000/- in cash to the assessee in respect of booking a plot in his name and further that he will give the rest of amount on possession. Kailash Chand 55 Kailash Chand Sain in his statement mentioned that his source of Sain income is agriculture and animal husbandry and in response to question no.3 mentioned that he has paid a sum of Rs. 10,00,000/- for booking a plot to the assessee. Ladulal Mali 62 Ladulal Mali in his statement mentioned that his source of income is agriculture and animal husbandry and in response to question no.3 mentioned that he has paid a sum of Rs. 10,00,000/- for booking a plot to the assessee. Chhitar Kharol 81 Chhitar Kharol in his statement mentioned that his source of income is agriculture and animal husbandry and in response to question no.3 mentioned that he has paid a sum of Rs. 20,00,000/- for booking a plot to the assessee. Further in Question No. 4, has mentioned that he has sold one of ancestral land for 36 lacs and from there a sum of Rs.20,00,000/- was paid to the assessee. Mohanlal Mali 91 Mohanlal Mali in his statement mentioned that his source of income is agriculture and animal husbandry and in response to question no.3 mentioned that he has paid a sum of Rs. 10,00,000/- for booking a plot to the assessee.
ITA 365/JP/2018_ 9 Jaipal Singh Mahalawat Vs. ITO The assessee has therefore discharged his onus towards establishing the identity, genuineness and credit worthiness of the parties, now it was upon the AO to further investigate and question the said parties in order to satisfy himself and to take his findings to a logical end. However, nothing contrary was brought on record either by the Assessing Officer or by the ld. CIT(A) to show that the statement recorded by the above parties were incorrect. Once the assessee has discharged his onus by proving the existence of the depositors and the depositors having accepted their deposits with the assessee with the source of fund, onus shifts on the department to prove the contrary. Once this onus is discharged the presumption raised under section 68 stands rebutted and it becomes burden of revenue to prove that source of such deposits is traceable to assessee before the same can be treated as undisclosed income of the assessee concerned. However, neither the Assessing Officer nor the ld. CIT(A) has brought any contrary material on record to show that the statement made by six persons were wrong, accordingly, we do not find any merit in the addition so made by the Assessing Officer with respect to amount of 65.00 lacs received from the above parties.
From the record, we also found that the assessee had advanced approximately Rs. 50,00,000/- in market to his friends and relatives on which he was earning Interest income. The said interest income of Rs.
ITA 365/JP/2018_ 10 Jaipal Singh Mahalawat Vs. ITO 4,90,520/- is duly reflected in the return of income filed with the department as placed at page no. 2 of the Paper book. The amount advanced to the parties was received back and was paid against the purchase of agriculture lands and reply dated 08/03/2016 as placed at page No. 17 of the paper book. We also found that the assessee is working with Merchant Navy from last 25 years and earned a salary of about Rs. 8,00,000/- per month in AY 2012-13 i.e. about Rs. 96.00 lacs in the year. Accordingly, the assessee was in a capacity to save and accumulate sufficient amount of funds, which was invested in the purchase of agriculture lands. This fact was duly explained to the A.O., as is evident from the copy of order sheet. (Placed at Page No. 7 of the paper book. Accordingly, there is no justification for the addition so made by the Assessing Officer. We direct to delete the addition of Rs. 1,10,00,208/- so made by the Assessing Officer.
The Assessing Officer is also made an addition of Rs. 15,537/- in respect of interest found to be credited in the savings bank account of the assessee but not reflected in the return of income. Nothing was brought to our notice by the ld AR so as to persuade us to deviate from the findings of the Assessing Officer. Accordingly, we confirm the addition of Rs. 15,537/- made on account of interest income.
ITA 365/JP/2018_ 11 Jaipal Singh Mahalawat Vs. ITO 13. In the result, appeal of the assessee is allowed in part, in terms indicated hereinabove. Order pronounced in the open court on 19th March, 2019.
Sd/- Sd/- ¼fot; iky jko½ ¼jes'k lh 'kekZ½ (VIJAY PAL RAO) (RAMESH C SHARMA) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 19th March, 2019 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Jaipal Singh Mahalawat, Jaipur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward 7(2), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 365/JP/2018) 6. vkns'kkuqlkj@ By order,
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