SHRI VISHNU KUMAR AGARWAL,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh HkkxpUn] ys[kk lnL; ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 526/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2005-06 cuke Shri Vishnu Kumar Agarwal The ITO Vs. P/o M/s. Deep Jyoti Co.B-219, Janta Colony, Jaipur Ward- 5(2), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABIPA 3433 B vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 548/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2005-06 cuke The ITO Shri Vishnu Kumar Agarwal Vs. Ward- 5(2), Jaipur P/o M/s. Deep Jyoti Co.B-219, Janta Colony, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABIPA 3433 B vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by: Shri S.L. Poddar, Advocate jktLo dh vksj ls@ Revenue by: Smt. Poonam Rai, DCIT- DR lquokbZ dh rkjh[k@ Date of Hearing : 12/01/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 16 /01/2017 vkns'k@ ORDER PER BHAGCHAND, AM Both these appeals are the cross appeals filed against the order of the ld. CIT(A)-II, Jaipur dated 19-03-2012 for the assessment year

2 ITA No.526/JP/2012 Shri Vishnu Kumar Agarwal vs. ITO, Ward- 5(2), Jaipur

2005-06. The grounds raised by the assessee and Revenue in the

respective appeals are as under:-

ITA No. 526/JP/2012 – Assessee

‘’That the ld. CIT(A) was not allowed cash creditors of Rs. 5,26,862/-. As the ld. CIT(A) said that the assessee not filed other documentary evidence except affidavits.’’

2.1 At the outset of the hearing, the ld. AR of the assessee vide letter

dated 12-05-2015 prayed for admission of the additional evidence under

Rule 29 of the Income Tax Rules, 1963 as to the ground raised above.

2.2 The ld. DR objected to the admission of the additional ground

raised by the assessee at the time of hearing.

2.3 I have heard the rival contentions and perused the materials

available on record. It is noted from the orders of the lower authorities

that the assessee was provided adequate opportunities for producing the

documentary evidence of the creditors such as PAN/ Voter card/ ration

card to prove their identity. Thus the lower authorities observed that the

genuineness of transactions of cash loan had not been proved and the

assessee had failed to establish the identity, creditworthiness and

genuineness of the creditors and the ld. CIT(A) restricted the addition to

the extent of Rs.5,26,862/- in the hands of the assessee as unexplained

cash credits by observing as under:-

3 ITA No.526/JP/2012 Shri Vishnu Kumar Agarwal vs. ITO, Ward- 5(2), Jaipur

‘’3.3 However, there are creditors who are not assessed to tax. Further their identity has not been proved. No other documentary evidence such as PAN / voter card/ ration card has been filed to prove their identity. The genuineness of the transactions of cash loan has also not been proved. I am therefore, of the opinion that the appellant has failed to establish the identity, creditworthiness of the following creditors and genuineness of transactions. In the case of Dhanna Lal Bhantiya, even this affidavit has not been filed. Considering the above facts, I direct the AO to restrict the addition on account of unexplained cash credits to Rs. 5,26,862/- instead of Rs. 7,53,662/- made by her. This ground of appeal is partly allowed.’’

Hence, I find no reason to interfere with the order of the ld. CIT(A) on

this issue. Further, the additional evidence filed by the ld. AR of the

assessee has no scope at the present situation of the case of the assessee

which is not admitted in spite of providing sufficient opportunities by the

lower authorities on this issue in question. Thus the appeal of the assessee

is dismissed.

ITA No. 548/JP/2012 – Revenue

‘’On the facts and in the circumstances of the case in law the ld. CIT(A) has erred in:-

(i) deleting the addition of Rs. 11,00,000/- made by the AO on account of unexplained deposits with partnership firm despite the fact that assessee could not prove the source of investment.

(ii) restricting the addition on account of unexplained cash credits to Rs. 5,26,862/- instead of Rs. 7,53,662/- made by the

4 ITA No.526/JP/2012 Shri Vishnu Kumar Agarwal vs. ITO, Ward- 5(2), Jaipur

AO despite the fact that assessee failed to prove identity, creditworthiness of the creditors and genuineness of the transaction.’’

3.1 I have heard the rival contentions and perused the materials

available on record. It is observed that the demand/ tax effect in the Revenue’s appeal in question is below Rs. 10.00 lacs . Under the powers

vested by sec. 268A(1) of the I T Act, CBDT has recently issued

CircularNo.21 of 2015 dated 10.12.2015(F No. 279/Misc.

142/2007-ITJ(Pt) instructing the authorities below

departmental appeal should not be filed before ITAT where the

demand/tax effect does not exceed Rs.10 lacs. The circular is

specifically mentioned to be applicable for all pending appeals.

3.2 Subject to some exceptions, it is further directed by CBDT that all

the departmental appeals pending before ITAT where the demand/tax

effect is less than 10 lacs should be either withdrawn or not pressed by

the departmental representatives.

3.3 The present appeal is not covered by any exceptions mentioned in

the said CBDT circular. Since the tax demand in dispute in this

departmental appeal is below the limit set out by CBDT for the appeal the

same is not maintainable in view of fore goings. Accordingly the appeal

5 ITA No.526/JP/2012 Shri Vishnu Kumar Agarwal vs. ITO, Ward- 5(2), Jaipur

of the Department is dismissed as not pressed/withdrawn. On merit also, it is observed that there is no substance in the arguments of the ld. DR on the issue raised above. Hence I find no reason to interfere with the order of the ld. CIT(A). Thus the appeal of the Revenue is dismissed. 4.0 In the result, the appeals of the assessee and Revenue are dismissed. Order pronounced in the open court on 16/01/2017. Sd/- ¼HkkxpUn½ (Bhagchand) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 16/01/ 2017 *Mishra आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Vishnu Kumar Agarwal,Jaipur izR;FkhZ@ The Respondent- The ITO, Ward- 5(2), Jaipur 2. 3. vk;dj vk;qDr¼vihy½@ CIT(A). vk;dj vk;qDr@ CIT, 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 526/JP/2012) 6. vkns'kkuqlkj@ By order,

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