THE ITO, 2(3), INDORE vs. SHRI ARVIND KUMAR JAIN, INDORE

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)

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.

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

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.”

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.

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.

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.

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