PR COMMISSIONER OF IT-1 JAIPUR vs. BANSIDHAR AGARWAL PROP AGARWAL CO

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 252 / 2016 Principal Commissioner of Income Tax-1, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Bansidhar Agarwal, Prop. Agarwal & Co. 1307, Kedia Bhawan Gopal Ji Ka Rasta, Jaipur 1/1/1. Shri Narain Lal Agarwal, son of Late Shri Bansidhar Agarwal Age 53 years, resident of C-55, Malviya Nagar, Jaipur 1/1/2. Shri Tara Shankar Agarwal son of Late Shri Bansidhar Agarwal Age 49 year resident of C-56, Malviya Nagar, Jaipur 1/1/3. Smt. Sunita Singhal, Married daughter of Late Shri Bansidhar Agarwal Age 54 year, resident of Santosh Sagar Colony, Brahmpuri, Jaipur 1/1/4. Smt. Kanta Gupta, Married daughter of Late Shri Bansidhar Agarwal, Age 56 year, resident of 4-D-7, Shastri Nagar, Jaipur 1/1/5. Smt. Ratan Devi Agarwal Married daughter of Late Shri Bansidhar Agarwal, age 58 year, resident of Bandi Ka Adda, Bahadurpura, Hyderabad. ----Respondent Connected With D.B. Income Tax Appeal No. 260 / 2016 Principal Commissioner of Income Tax-1, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Bansidhar Agarwal, Prop. Agarwal & Co. 1307, Kedia Bhawan Gopal Ji Ka Rasta, Jaipur through his Legal Heirs:- 1/1/1. Shri Narain Lal Agarwal, son of Late Shri Bansidhar Agarwal Age 53 years, resident of C-55, Malviya Nagar, Jaipur 1/1/2. Shri Tara Shankar Agarwal son of Late Shri Bansidhar Agarwal Age 49 year resident of C-56, Malviya Nagar, Jaipur 1/1/3. Smt. Sunita Singhal, Married daughter of Late Shri Bansidhar Agarwal Age 54 year, resident of Santosh Sagar Colony, Brahmpuri, Jaipur 1/1/4. Smt. Kanta Gupta, Married daughter of Late Shri Bansidhar Agarwal, Age 56 year, resident of 4-D-7, Shastri Nagar, Jaipur

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1/1/5. Smt. Ratan Devi Agarwal Married daughter of Late Shri Bansidhar Agarwal, age 58 year, resident of Bandi Ka Adda, Bahadurpura, Hyderabad. ----Respondent-Non applicant _____________________________________________________ For Appellant(s) : Mr. Anuroop Singhi with Mr. Aditya Vijay For Respondent(s) : Mr. Gunjan Pathak _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order 16/01/2018 Application No. 40187/17 filed in Appeal No. 252/2016 and application No. 40186/17 filed in Appeal No. 260/2016 for taking LRs of sole deceased respondent are allowed. Amended cause title be taken on record.

In both the appeals common questions of law and facts are involved, hence, they are decided by this common judgment. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the department and allowed the appeal of the assessee. This Court while admitting the matters framed following questions of law: In DBITA No. 252/2016 “Whether the Tribunal was justified in deleting the penalty levied by Assessing Officer and confirmed by CIT(A) u/s 271 (1)(c) of Rs. 11,02,543/-, levied in respect of addition of Rs. 32,43,730/-.

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In DBITA No. 260/2016 i) Whether the Tribunal was justified in deleting the addition of Rs. 2,13,15,248/- which was made on the basis of duplicate balance sheet found during survey, which was admitted by the assessee and addition was made after considering each item of the said balance sheet? ii) Whether the Tribunal was justified in reversing the order of CIT(A) and Assessing Officer and thereby deleting the addition of Rs. 32,43,730/- on account of undisclosed expenditure in purchase of plot, which was made on the basis of document found during survey and the surrender made? iii) Whether the Tribunal was justified in confirming the deletion of addition of Rs. 3,45,000/- by holding it to be an interest income whereas as per the reasoning of CIT(A) itself the same was a loan entry?” In view of the observations made by the Tribunal while considering the issue, which reads as under:- “6.3. We have heard the rival contentions and perused the material available on record. Apropos the first revenue ground from the record, it emerges that there are sufficient reasons to infer that the balance sheet found during the course of survey is an intermix of balance sheet filed with the original return and undisclosed transactions. The contents of many names and entries are nearly same in both with some difference in the amounts. The modus operandi has been explained by the assessee during the course of survey and his disclosure, maintenance of record, nature of transactions were agreed by survey party. In survey statement assessee made a surrender of Rs. 3,50,42961/- as additional income, no dispute on this amount was raised by survey party. Thereafter, assessee before any further detection by department and before assessment proceedings, suo motu and without any insistence by the department, further increased the surrender of undisclosed income at Rs. 9,38,50,009/- for all impugned transactions. Thus assessee demonstrated that he want to come clean in this behalf. Department has accepted this

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additional income declaration, there is no dispute on the issue of revenues power to give up any agreement on surrendered income. However it is to be borne in mind that department cannot chose both i.e. tax the assessee on enhanced surrendered and further go on adding separate entry one by one on assumptions. The fair course will be to take each entry, quantify each and make separate addition for each. It is very unjustified to add the surrender and further add each item, this amount to double jeopardy which is not permissible. Looking at the entirely of circumstances and fact that the assessee enhanced his surrender from Rs. 3,50,42,961/- to Rs. 9,38,50,009/-; the fact that the balance sheet reflects the sum total of his transactions as on 01.04.2008, it is not justifiable to add the totals of both the balance sheets. On verification of both the balance sheets it emerge that the one filed for income tax purposes is part of and incorporated in the one found during the course of survey. Therefore, in our considered view, the addition of Rs. 2,13,15,248/- as excess liabilities has been rightly deleted by ld. CIT(A). His order on this issue is upheld, this ground of revenue is dismissed.” In view of the concurrent finding, we see no reason to interfere in the matter. Hence, the issues are answered in favour of the assessee and against the department. The appeals stand dismissed. (VIJAY KUMAR VYAS)J. (K.S.JHAVERI)J. A.Sharma/36-37