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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R
PER SHRI MANISH BORAD, AM
The instant appeal of the revenue pertaining to the assessment
year 2009-10 is directed against the order of the Commissioner of
Income Tax (Appeals)-I, Indore, arising out of order dated 28.3.2013
passed u/s 143(3)/148 of Income Tax Act (in short referred as ‘Act’)
Act framed by the ITO 2(3), Indore.
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 2. In this appeal, the assessee has taken the following grounds of
appeal :-
“On the facts and in the circumstances of the case, ld. CIT(A)
erred in deleting the additions made of Rs. 5,64,912/- on the
basis of peak credit in bank a/c of M/s Jain Construction and
of Rs. 2,99,892/- as profit on turnover through said bank a/c.
The learned CIT(A) held that this bank a/c has been
considered/assessed in the case of Shri Pushpendra Jain,
brother of the assessee. Whereas it is apparent from the
assessment order in the case of Shri Pushpendra Jain that this
bank account has neither been mentioned nor been considered.
Erred in deleting the additions made of Rs.18,86,799/- on the
basis of peak credit in bank account of M/s Sunshine
Enterprises and of Rs. 8,97,321/- as profit on turnover through
said bank a/c. The learned CIT(A) held that this bank a/c has
been considered/assessed in the case of Shri Purhpendra Jain,
brother of the assessee. Whereas it is apparent from the
Assessing Officer in the case of Shri Pushpendra Jain that this
bank account has not been assessed properly.
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 3. Erred in deleting the aforesaid additions without appreciating
the fact that as per page 3 of the ADIT(Inv.)-II Indore’s
confidential report F. No. ADIT(Inv.) II/Ind/FIU/10-11/2149
dated 15.9.2010, there was no evidence that Shri Pushpendra
Jain was carrying out any trade/business activity. Hence, there
was no basis to conclude that the business was being run by
Shri Pushpendra Jain and that he could own the business
income of the assessee
Erred in deleting the aforesaid additions without appreciating
the fact that as per the assessee’s d-mat a/c no. IN300450 with
the IDBI Bank Ltd., he was holding scripts valuing Rs.
11,98,206/- as on 31.03.2009 and had purchased during the
relevant year 2000 shares of Hindalco Industries valuing Rs.
2,38,000/- No person without substantial means could have
purchased/held this heavy a portfolio and on this ground alone,
additions should not have been deleted.”
Briefly stated, the facts of the case, as culled out from record,
are that the assessee is engaged in the business of plying of soil
complector. He declared income of Rs. 1,47,630/- in the return of
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 income. As per the information possessed by the Assessing Officer
the assessee was involved in the business named M/s Jain
Construction and M/s Sunshine Enterprises with his brother Shri
Pushpendra Jain. The Assessing Officer issued notice u/s 148
followed by notice u/s 43(2) of the Act which was served upon the
assessee. It was contended by the assessee that these two business
concerns M/s Jain Construction and M/s Sunshine Enterprises are
owned by Pushpendra Jain and income from these businesses is
declared in the return of income filed by Shri Pushpendra Jain.
However, the Assessing Officer brushed aside the submissions
made by the assessee and went ahead with completing the
assessment after making additions u/s 68 of the Act at
Rs.24,51,711/- and estimated the profits u/s 44AF of the two
business concerns at Rs. 11,97,213/-. The income assessed at Rs.
31,96,550/-. Aggrieved, the assessee preferred appeal before the
learned Commissioner of Income Tax (Appeals) and succeeded in
full. The learned Commissioner of Income Tax (Appeals) deleted the
additions observing as under :-
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 “5. As explained by appellant before the ADIT (Inv.)-II, Indore,
that both the bank accounts one in name of M/s Jain
Construction and other in name of M/s Sunshine Enterprise were
held by his brother Shri Pushpendra Jain. The total deposits in
these accounts were of Rs. 2,02,69,512/- on which a profit of
Rs.10,13,476/- was disclosed by Shri Pushpendra Jain and duly
accepted by his A.O. ITO 4(4), Indore in order passed u/s
144/147 dated 21.12.2013. In view of the same there is no
basis to differ from statement recorded by ADIT (Inv.)-II, Indore
and view taken by ITO 4(4), Indore and there is no locus standi
to add any amount in hands of appellant on account of those
bank accounts which are pertaining to appellant’s brother. As a
result all the grounds of appeal are allowed.”
Against the above findings of the learned Commissioner of Income
Tax (Appeals), the revenue is in appeal before the Tribunal.
Before us the learned DR supported the orders of the
authorities below. On the other hand, the learned counsel for the
assessee submitted that the learned Commissioner of Income Tax
(Appeals) has given specific finding that both the business
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 concerns were not owned by the assessee and the alleged
transactions in the bank accounts were also belonging to two
business concerns and, therefore, the learned Commissioner of
Income Tax (Appeals) deleted the additions.
We have heard both the parties and perused the material
available on record. The revenue is aggrieved with the additions
deleted by the learned Commissioner of Income Tax (Appeals) which
were made by the Assessing Officer on the premise that two
business concerns M/s JainConstruction and M/s Sunshine
Enterprises are owned by the assessee and the income therefrom
were not declared in the return of income. Certain additions were
also made on the basis of alleged bank accounts in the name of the
above two concerns. On going through the findings of the learned
Commissioner of Income Tax (Appeals) we find that the brother of
the assessee Shri Pushpendra Jain duly disclosed the business
income from M/s JainConstruction and M/s Sunshine Enterprises
in his return of income showing net proit of Rs.10,13,476/- which
has been duly accepted by the Assessing Officer ITO Ward 4(4),
Indore, in the order passed u/s 144/147 of the Act dated
ITO vs. Arvind Kumar Jain ITA No. 545/Ind/2014 21.12.2013. The learned DR failed to controvert the findings of the
learned Commissioner of Income Tax (Appeals) as also to bring any
new material on record. We, therefore, on the totality of the facts
and the given circumstances, find no reason to interfere with the
findings of the learned Commissioner of Income Tax (Appeals) and
accordingly dismiss the grounds of appeal of the revenue.
In the result, the appeal of the revenue stands dismissed.
Pronounced in open Court on 29th June, 2018.
Sd/- sd/-
(KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER
29 June, 2018 Dn/- Copy to – Appellant/Respodent/Pr.CIT/CIT(A)/DR/Guard File By order Private Secretary