SHRI NITIN KUMAR MOYAL,SIKAR vs. INCOME TAX OFFICER, WARD-1, SIKAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 474/JPR/2019 fu/kZkj.k o"kZ@Assessment Year : 2013-14 cuke Shri Nitin Kumar Moyal Income Tax Officer, Vs. Ward-17, Shastri Nagar, Ward-1, Sikar. Sikar. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: ATBPK 3208 L vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Daulat Ram Moyal jktLo dh vksjls@Revenue by: Shri A.S. Nehra (Addl.CIT) lquokbZ dh rkjh[k@Date of Hearing :02/08/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 11/08/2023 vkns'k@ORDER

PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee aggrieved from the order of the Learned Commissioner of Income Tax (Appeals)- 4th, Jaipur [herein after referred to as “ld.CIT(A)”] dated 25.01.2019 for the assessment year 2013-14.

2 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO “1. That on the facts and in the circumstances of the case the learned AO was wrong in initiating proceedings u/s 148 of the I T Act and passing the assessment Order u/s 143 (3) read with section 147 of the Act .The assessment order passed by the learned AO and proceeding u/s 148 sustained by the appellate authority is bad in law, illegal and unjustified. 2. That on facts & in the circumstances of the case the learned AO has also erred in sustaining addition of Rs 10649030/- made by the learned AO u/s 69A of the Act without properly considering the reply furnished by the appellant and evidences produced during the course of assessment and appellate proceedings. 3. That on facts & in the circumstances of the case the learned AO has also erred in making addition of Rs10649030/- being total of deposit/ credit entitles in assessee's bank accounts with Bank of Baroda Jaipur and Punjab National Bank Sikar as unexplained income. 4. That on the facts & in the circumstances of the case both the leaned lower authorities have also erred in not properly considering the entries in the bank account and considering the total amount of credits in bank accounts of Rs 10649030/- as unexplained income particularly when the said entries also consist of a sum of Rs 1250000/- as credited on account of bounced cheques and amounts of Rs 3906898/- and Rs 1455000/- being amounts received by cheques and cash amounts deposited from identifiable persons duly supported by documents.’’

3 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO 5. Apropos ground No. 1 to 4 of the assessee, the facts emerges from the order of the ld. CIT(A) are as under:-

“6. I have perused the written submissions submitted by the Ld. A/R and the order of AO. The basic issue is of deposit of 38,29,000/- in cash on various dates in the appellant's Bank Accounts. Before the AO, appellant contended that the said deposit belongs to Shri Amit Goyal who deposited the said money. Shri Amit Goyal was examined by the AO and he categorically stated that he has nothing to do with the said cash deposits. 6.2 The details of examination of Shri Amit Goyal and letter submitted by Shri Amit Goyal can be seen in the assessment order. The main finding of the AO are as under: I have perused all the above submission, statements, affidavit. Now question before me is, whom the money deposited in bank account are belongs, to the assessee or to Amit Goyal. I have considered the following point to reach the conclusion : 1. In this case the Notice u/s 148 was issued on 29.09.2016 and the assessee filed his submission on 27.09.2017 i.e. approx. one year later. In that reply, the assessee submitted that the bank account was operated by Sh. Amit Goyal. Yet in the affidavit he said that both the bank accounts were utilized by Sh. Amit Goyal, Tirupati College and also by himself. However, vide reply dated 19.12.2017, he included the name of Amit Goyal and Scholl Management. In other words, I unable to find who is the owner/operator of the bank account according to assessee - He himself, Mr. Amit Goyal, Tirupati College or unnamed School Management. 2. In the reply dated 19.12.2017, the assessee produced micro details of the bank transactions. Even mobile numbers were brought on records. How it is possible to person to make to micro details about the bank transactions, when, if accept for a second, that transaction were not related to him or not carried out by the him specially. There is only possibility, that these transaction were carried out by the assessee.

4 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO 3. The bank accounts are in the name of the assessee, his PAN are mentioned in the bank database even periodically cheques were issued by the assessee, in these circumstances, how it can be accepted that these sum were not related to him. 4. The assessee filed affidavit that the transactions were belonged to Sh. Amit Goyal/Tirupati College/Scholl Management. However, Sh. Amit Goyal also filed an affidavit and denied having any such transaction as stated by the assessee. Since there are two affidavits and both are saying just opposite fact, in my opinion, the both affidavits loss. their legal power itself. 5. The assessee except his affidavit and statement has brought noting on records which can co-relate or at least prove in lesser degree that the transactions were not related to him. 6- The assessee claimed that the interest earned from these savings bank accounts his but, the transactions are not. This is a significant contradictory stand which is taken by the assessee. 7. The nature and source of these deposits remain unexplained. Therefore, considering overall facts of the case, I inclined to treat that the cash/credit entries made by the assessee himself and belongs to him. 6.3 Perusal of the order and submissions made by the appellant indicates that the factual observation of the AO are not rebutted by the appellant. In nutshell the money deposited in cash in the saving bank of appellant is held to be unexplained as held by the AO. On the facts and in the circumstances of the case, the addition of Rs. 1,06,49,030/- is confirmed. 7. In the result, the appeal is dismissed.”

5 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO submission concerning the issue in question from page 1 to 18 before the Bench. It is also noteworthy to mention that at page 17 and 18 the assessee has submitted that AO was not justified in making assessment in his hands and not making the same in the hands of the actual owner of the money. The relevant para at page 17 is mentioned as it is for the sake of convenience.

‘’I further submit that the assessment has been made in my name ignoring the facts brought to the notice of A.O., I request your honour to kindly consider all the above facts and dismiss-delete the addition made in my hands. I am not the substantial owner of the money deposited in my bank accounts. The Assessment Officer was not justified in making assessment in my hands and not making the same in the hands of the actual owner of the money.”

6 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO prior permission from the higher authorities, requiring the assessee took deliver the return of income within 30 days from the receipt of the notice. Conclusively, the AO made addition in the hands of the assessee by holding as under:- “The notice was sent by post, duly served upon the assessee. On 27.10.2016, the assessee requested to allow 20 days for compliance. Notice u/s 142(1) with questionnaire was issued on 05.06.2017. The assessee filed adjournment applications on 13.06.2017, 28.06.2017, 13.07.2017, 03.08.2017 and 24.08.2017. Finally, the assessee filed his ITR on 12.09.2017 declaring following particulars of his income:- Income from salary Rs. 1,09,500/- Income from other sources Rs. 1,413/- Gross Total income Rs. 1,10,913/- Less: 80TTA Rs. 1,413/- Net Income Rs. 1,09,500/- Notice u/s 143(2) and notice u/s 142(1) with questionnaire was issued on 15.09.2017 and the assessee was requested to furnish the details of bank account, nature and source of deposit made in bank accounts. “I have perused all the above submission, statements, affidavits. Now question before me is, whom the money deposited in bank account are belongs, to the assessee or to Amil Goyal. I have considered the following point to reach the conclusion: 1. In this case the Notice u/s 148 was issued on 29.09.2016 and the assessee filed his submission on 27.09.2017 i.e. approx. one year later. In that reply, the assessee submitted that the bank account was operated by Shri Amit Goyal. Yet in the affidavit he said that both the bank accounts were utilized by Shri Amit Goyal, Tirupati College and also by himself. However, vide reply dated 19.12.2017, he included the name of Amil Goyal and School Management. In other words, I unable to find who is the owner/operator of the bank account according to assessee - He himself, Mr Amit Goyal, Tirupati College or unnamed School Management.

7 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO 2. In the reply dated 19.12.2017, the assessee produced micro details of the bank transactions. Even mobile numbers were brought on records. How it is possible to person to make to micro details about the bank trasnsactions, when, if accept for a second, that transaction were not related to him or not carried out by the him specially. There is only possibility, that these transaction were carried out by the assessee. 3. The bank accounts are in the name of the assessee, his PAN are mentioned in the bank database even periodically cheques were issued by the assessee, in these circumstances, how it can be accepted that these sum were not related to him. 4. The assessee filed affidavit that the transactions were belongs to Shri Amit Goyal/Tirupati College/School Management. However, Shri Amit Goyal also filed an affidavit and denied having any such transaction as stated by the assessee. Since there are two affidavits and both are saying just opposite fact, in my opinion, the both affidavits loss their legal power itself. 5. The assessee except his affidavit and statement has brought noting on records which can co-relate or at least prove in lesser degree that the transactions were not related to him. 6. The assessee claimed that the interest earned from these savings bank accounts his but, the transactions are not. This is a significant contradictory stand which is taken by the assessee. 7. The nature and source of these deposits remain unexplained. Therefore, considering overall facts of the case, I inclined to treat that the cash/credit entries made by the assessee himself and belongs to him. As per section 69A of the Income tax Act, 1961, where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year. Section 69A deals with unexplained moneys of which the assessee is found to be the owner. The burden is on the assessee to prove the source of deposit in

8 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO his bank accounts. Where the nature and source of a deposit whether it be of money or other property cannot be satisfactorily explained by the assessee, it is open to the revenue to hold that it is the income of the assessee and no further burden lies on the revenue to show that the income is from any particular sources. In this regard reliance is placed on the following judgments:- (a) Hon'ble High Court of Gujrat in the case of Commissioner of Income-tax -1 v/s. Sharwan Kumar Sharma reported in (2014) 49 Taxmann.com 101 (Gujrat) has confirmed the addition made by the assessing officer on account of huge cash deposits in the assessee's bank account as the assessee could not file explanation satisfactorily. 4. As per information available with the department, there is total Rs.91,22,995/- credit/cash deposits in the bank account maintained with Bank of Baroda, Jaipur A/c No.01130100007314. Few entries are as under:- 11.08.2012 Cash deposit Rs.10,69,000/- 13.08.2012 Cash deposit Rs.9,00,000/- 14.08.2012 Cash deposit Rs.5,05,000/- 16.08.2012 Cash deposit Rs. 2,50,000/- 19.09.2012 SERJAI-Jaipur Rs. 3,00,000/- 22.09.2012 Cash deposit Rs. 2,05,000/- 26.09.2012 Transfer in entry Rs. 1,00,000/- 28.09.2012 Transfer in entry Rs. 1,07,500/- 05.10.2012 SERJAI-JAIPUR Rs. 9,30,000/- 05.10.2012 Cash deposit Rs. 4,00,000/- 02.11.2012 SERJAI-JAIPUR Rs. 13,25,000/- 17.11.2012 RTGS Rs. 6,00,000/- 28.03.2013 By Cash Rs. 5,00,000/- 29.03.2013 SERJAI-JAIPUR Rs. 10,00,000/-

9 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO Also there is total 53,21,035/- credit/cash deposits in the bank account maintained with Punjab National Bank, Sikar A/c No.0847000102758112. Few entries are as under: 06.10.2012 RTGS Rs. 13,25,000/- 14.08.2012 RTGS Rs. 5,20,000/- 13.08.2012 RTGS Rs. 9,00,000/- 13.08.2012 RTGS Rs. 5,25,000/- 13.08.2012 By Own Cheque Rs. 9,30,000/- 11.08.2012 RTGS Rs. 10,50,000/-

It is noticed that the bank account maintained with Punjab National Bank, Sikar A/c No.0847000102758112, there are total transfer in entry from one account to another account of the assessee i.e. amount deposited in cash and subsequently transfer in the PNB account. Therefore, the total deposit in the PNB account is reduced to that extent. After working of amount transfer one account of other, net deposit in the PNB account is calculated at Rs.15.26,035/-. In the present case, as we find that the money belongs to assessee also as the assessee failed to file satisfactory explanation or reply in regard to the deposits/credit entries, Rs.1,06.49,030/- 191,22,995/- + 15,26,035] in his saving bank accounts is treated as assessee's unexplained income in term of Section 69A of the Income tax Act, 1961 and added to the returned income of the assessee. In first appeal, the ld. CIT(A) has confirmed the action as narrated above. The Bench has meticulously gone through the entire episode in this case and where his grievance is that the Assessing Officer was not justified in making assessment in his hands and not making the

10 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO same in the hands of the actual owner of the money. The Bench feels that the object of the Court is to provide adequate justice to the assessee and it will be in the interest of equity and justice to restore the matter to the file of the AO to decide it afresh but providing adequate opportunity of being heard to the assessee. The Assesee is also directed to submit all the necessary details / submissions including the submissions produced before us before concerning the issue before the AO to dispel the doubt in the case. Hence, the appeal of the assessee is allowed for statistical purpose.

In the result, the appeal of the assesseeis allowed for statistical purpose. Order pronounced in the open court on 11/08/2023.

Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;dlnL;@Judicial Member Tk;iqj@Jaipur

11 ITA No. 474/JPR/2019 Shri Nitin Kumar Moyal vs. ITO fnukad@Dated:- 11/08/2023 *Santosh आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- Shri Nitin Kumar Moyal, Sikar 1. 2. izR;FkhZ@ The Respondent- ITO, Ward-1, Sikar. 3. vk;djvk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZQkbZy@ Guard File (ITA No. 474/JPR/2019) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत