Income Tax Appellate Tribunal - Jaipur
Bajrang Singh Choudhary, Jaipur vs Ito, Jaipur on 7 February, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES (SMC), JAIPUR
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BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER
vk;dj vihy la-@ITA No. 1013/JP/2016
fu/kZkj.k o"kZ@Assessment Year : 2007-08
Shri Bajrang Singh Choudhary cuke The ITO
Todawat Ki Dhani, Sikarpura Vs. Ward- 7(2)
Sanganer, Jaipur Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFOPC 7587 B
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@Assessee by:Shri Mahendra Gargieya, Advocate
jktLo dh vksj ls@ Revenue by :Shri Rajendra Jha, Addl. CIT-DR
lquokbZ dh rkjh[k@ Date of Hearing : 05/01/2018
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 7/02/2018
vkns'k@ ORDER
PER BHAGCHAND, AM
The assessee has filed an appeal against the order of the ld. CIT(A)-III, Jaipur dated 21-09-2016 for the assessment year 2007-08 raising therein following grounds of appeal:-
"1. The impugned order u/s 147/144 dated 24.12.2014 is bad in law and on facts of the case, for want of jurisdiction and for various other reasons and hence the same may kindly be quashed and in any case, the impugned addition/s be deleted.
2. The very action taken u/s 147 r/w 148 is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed.2 ITA No. 1013/JP/2016
Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
Consequently the impugned assessment framed u/s 143(3)/148 dated 24.12.2014 also kindly be quashed.
3.1 The AO erred in law as well as on the facts of the case in framing the asst. u/s 144 without affording adequate and reasonable opportunity and even without complying with the mandatory statutory requirement of law. The ld. CIT(A) erred in confirming such action of the AO. The impugned order having been passed in gross breach of natural justice, kindly be quashed.
3.2 The AO erred in law as well as on the facts of the case in wrongly alleging that notice/s u/s 142(1) was/were served upon the assessee which, remained un-complied. However, such allegation/s, is totally contrary to the facts in as much as no such notice was ever served upon the assessee or anyone else duly authorized by the appellant, in this behalf. The ld. CIT(A) also erred in wrongly confirming action of the AO.
4. Rs.24,81,500/-: The ld. CIT(A) further erred in law and facts of the case in confirming the addition of Rs.24,81,500/- on the account of unexplained cash deposited in Bank. The addition so made & confirmed by the ld. CIT(A), is being completely contrary to the provisions of law and facts, kindly be deleted in full.
5. The AO further erred in law as well as on the facts of the case in charging interest u/s 234A, 234B, 234C & 234D of the Act and as also in withdrawing interest u/s 244A of the Act. The appellant totally denies its liability of charging and withdrawal of any such interest. The interest so charged/withdrawn, being contrary to the provisions of law and facts, kindly be deleted in full.
2.1 In grounds of appeal no. 1 & 2, the assessee has challenged the validity of the proceedings u/s 147 by raising different contentions also alleging the non-service of the notice u/s 148. On this aspect the AO noted as under:
"2.1 As per information online generated from the computer software of this office, you deposited the amount of Rs. 24,81,500/- in your saving bank account maintained by Malviya Urban Co-operative Bank, Vasundhara 3 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
Colony, Jaipur during the financial year 2006-07 . On the basis of above information, the assessment proceeding u/s. 147 of the Income Tax Act, 1961 in your case for the assessment year 2007-08 was initiated and consequently, notice u/s. 148 of the Income Tax Act, 1961 was also issued on 30.03.2014 which was got served upon you through the registered post but no compliance to the above notice was made by you till date. Therefore notice u/s. 142(1) of the Income Tax Act, 1961 Along with a query letter for completing the assessment proceeding were issued on 07.05.2014 fixing the case for hearing on 19.05.2014 but you did not comply with the above notice."
2.2 Being aggrieved, the assessee carried the matter before the ld. CIT(A) who called for a remand report on this aspect from the AO. The ld. CIT(A) after considering the remand report held that a proper service of the notice seems to have been made. The other contentions of the assessee also did not find her favour. Accordingly, the ld. CIT(A) dismissed both the grounds.
2.3 Now the assessee is in appeal before the Bench. Detailed submission were filed by the ld. AR during the course of hearing. Assailing the proceedings u/s 147 of the Act, the ld. AR submitted that a valid service of notice is a foundation for the validity of the re- assessment. There is a clear cut distinction between the precedent and procedure. The defect in the procedure will not normally amount to lack of jurisdiction. The notice prescribed u/s. 148 for the purpose of initiation of re-assessment proceedings is not a mere procedural requirement, but is a condition precedent to the validity of re-assessment. If it is established 4 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . that there was no valid service/service of such a notice, the AO cannot assume jurisdiction and consequently the assessment made by him pursuant thereto has to be quashed because the very notice issued u/s 148 lacks jurisdiction and is liable to be quashed. In support, he replied upon the following case laws.
• Y. Narayana Chetty & Anr. v/s ITO (1959) 35 ITR 388 (SC) • R.K. Upadhyaya v/s Shanabhai P. Patel (1987) 166 ITR 163 (SC) He further submitted that it is an admitted fact that the impugned notice was never served upon the assessee. Even the assessment was completed u/s 144 of the Act. The same was delivered to some villager through whom, the assessee came to know. Similarly, three penalty orders u/s 271B, 271(1)(c) and 271F all dated 29.06.2015 were also passed ex-parte and was never served upon the assessee hence, when came to know from the department, certified copies have been supplied on 3rd January 2018. Moreover, A bare perusal of the remand report para 1 (PB 29) clearly suggest that the revenue itself has admitted that it was not served in any case on 31.03.2014 inasmuch as the AO has clearly admitted that it was entered in the dispatch register at no.9382 only on 30.03.2014 and thereafter, it was sent through Indian Postal Service and it was handed 5 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . over to the P&T department only on 31.03.2014. It is nowhere claimed that the impugned notice was sent through registered AD only and therefore, the revenue could not have taken the benefit of the presumption raised u/s 27 of General Clauses Act, 1897. Such evidence was not confronted to the assessee. Even the ld. CIT(A), has not applied her mind on this aspect. She rejected the contention merely on suspicion. The ld. AR submitted that even making of entry in the dispatch register is not sacrosanct. He also relied upon the cases of Har Charan Singh vs. Shiv Rani, AIR 1981 SC 1284. The ld. AR also objected to the proceedings u/s 147 saying that there was no reason to believe and it was only a reason to suspicion. The mere deposit in bank account does not per se mean that some income escaped assessment. It may require further enquiry. On the basis of these contentions, he prayed that the proceedings u/s 147 be quashed.
2.4 On the other hand the ld. DR strongly relied upon the orders of the lower authorities.
2.5 I have considered the rival submissions and material available on record. During the course of hearing the ld. DR was asked to produce any evidence of service of notice u/s 148. In response, he submitted a copy of 6 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . notice u/s 148 dated 30.03.2014. It was submitted that the said notice was issued on 30.03.2014 and was dispatched on 31.03.2014. It appears that receipt by the postal department was pasted on it. In view of the fact that the notice was sent through speed post and it is not the case of the assessee that the said notice has come back unserved, it has to be presumed that the same was duly served upon the assessee. Hence, the contention of the assessee of non-service of notice and therefore the proceeding were invalid, is hereby rejected. I have also considered the other contentions but find that there is no substance therein for the reason that the AO has recorded the reason on the basis of the information received (AIR) that the assessee has deposited Rs. 24,81,500/- in his S.B. account maintained with Malviya Urban Cooperative Bank, Vasundhra Colony, Jaipur during F.Y. 2006-07. On the basis of this information only, the proceedings u/s 147 were initiated. Taking into consideration the above deliberations, facts and circumstances of the case, Grounds no. 1 and 2 of the assessee are dismissed.
3.1 During the course of hearing the ld. AR of the assessee has not pressed the Ground No. 3.1 and 3.2. Hence, the same are dismissed being not pressed.
7 ITA No. 1013/JP/2016
Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . 4.1 Apropos Ground No. 4 of the assessee, the brief facts of the case are that on the basis of the AIR information, the AO noticed that the assessee had deposited cash of Rs. 24,81,500/- in his saving bank accounts maintained with Malviya Urban Co-operative Bank, Vasundhara Colony, Jaipur. However, despite sending notices, the assessee did not avail of the opportunity and therefore, the AO added the entire cash deposits of Rs.24,81,500/- as unexplained income of the assessee. 4.2 Being aggrieved, the assessee carried the matter before the before the CIT(A), who confirmed the same by observing as under:-
"I have carefully considered the facts of the case, finding of the AO and submission of the appellant. In this ground the appellant challenged the addition of Rs. 24,81,500/- by AO on account of unexplained cash deposited cash deposit in Malviya Urban cooperative Bank of assessee.
The AO made addition of this amount as assessee failed to explain the source of cash deposit in his bank account. In appellate proceeding the Ld A/R explained the source of cash deposit as an amount received on agreement to sell the land to Sh. Daulat Daga dated 08.02.2006.
In support of the same he filed copy of the agreement. This agreement is on plain paper and therefore it cannot be believed that anyone would give such a huge amount merely on the basis of an agreement made on paper not legally enforceable. This agreement was cancelled according to appellant but again only on the basis of this plain paper and no evidence or reason was given for cancellation. Therefore 8 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
the veracity of this transaction is not proved properly at all. It appears to be a cooked up story made for justification on this amount. Accordingly the action of AO is upheld.
Further the A/R submitted a new agreement was made again for this very piece of land for which the earlier agreement (as stated above) was made and cancelled. This time the agreement to sell this land was claimed to be made with Jagdish Choudhary and assessee received advance of Rs. 10,00,000/- from him in cash.
In support of the same, assessee filed the agreement to sell. But same is again on plain (not stamp) paper. In remand proceeding also in front of the AO, assessee did not file confirmation of Sh. Jagdish Choudhary nor he was produced. Thus this agreement filed by assessee is remained unverified. Therefore, prima facie these agreements appear to be an afterthought and prepared just to prove the cash deposit of Rs. 24,81,500/-. Thus the sources of cash deposit remains unexplained and addition of AO is upheld."
4.3 Now the assessee is in appeal and has submitted as under:
"1.1 Availability of cash fully proved: It is submitted that the lower authorities did not appreciate the facts properly and judiciously. The assessee had withdrawn cash of Rs.25 Lacs [Rs.15 Lac and Rs.10 Lacs on 10.02.2006 from his saving bank a/c no. 0020311000000401 of Malviya Urban Co-operative Bank Ltd., Vasundhara Colony, Jaipur as evident from the copy of bank statement (PB 3-4). The assessee was in receipt of Rs.25 Lac through account payee cheque on dated 08.02.2006 received from one Shri Daulat Daga as advance towards the purchase of some agriculture 9 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
land of the assessee bearing Khasra No. 265, 276/2 & 277, Gram Saipura, Sanganer, Jaipur. It was decided between the parties that the buyer was to make balance payment to get the sale deed registered within a period of one year i.e. upto 07.02.2007.
2. Creditors fully confirmed the Payments:
A. Shri Daulat Daga 2.1 It is submitted that the AO has fully admitted the cash availability of Rs. 15,00,000/- out of the withdrawal of Rs.25 Lacs (i.e. Rs.15 Lac on 10.02.2006 and Rs.10 Lacs on 10.02.2016) from his saving bank a/c no.
0020311000000401 of Malviya Urban Co-operative Bank Ltd., Vasundhara Colony, Jaipur as evident from the copy of bank statement (PB-3). This was received from Shri Daulat Daga through account payee cheque on dated 08.02.2006 as advance towards the purchase of some agriculture land of the assessee bearing Khasra No. 265, 276/2 & 277, Gram Saipura, Sanganer, Jaipur.
2.2 It is pertinent to note that when the ld. CIT(A) called for a remand report from the AO on this aspect, the AO in his remand report no. 5174 dated 26.02.2016 in para-3 (PB-30) claerly admitted such explanation and even recommended that the addition 10 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . to the extent of Rs.15,00,0000/- need not be made., observing as under:
Thus, the AO not only accepted the explanation towards the deposit of Rs.25 kalh but even accepted the opening balance of cash in hand of Rs.15,85,500/- as on 27.02.2006. Kindly refer our letter dated 29.12.2015 to the AO explaining the facts (PB 13-14). The assessee even submitted copies of the confirmation along with copy of agreement. Such admission is binding upon revenue.
2.3 Unfortunately even after such admission and ample evidences, the ld. CIT(A) even ignored the remand report and confirmed the addition. Her allegations w.r.t. such agreement are nothing more than suspicion which already stood dispelled when in response to notice u/s 133(6) Shri Daga Confirmed the entire transaction and facts. The ld. CIT(A) herself was not sure when she used the word appears. The agreement was duly witnessed and notarised. Otherwise also once the direct source stand established there was no point in doubting veracity of agreement.
3. Mere Suspicion only: From the findings recorded in the orders of the authorities below it clearly appears that the AO and ld. CIT(A) proceeded merely on suspicion. A suspicion remains a suspicion unless the same is established and can never take the place of reality and for making addition/ assessment of the alleged income, it is for the AO to have proved beyond all reasonable 11 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
doubts which is completely missing as has been held in the case of Dhakeshwari Cotton Mills Ltd. (1975) 26 ITR 775 (SC).
4. The AO completely ignored the settled law that u/s 68, 69 etc. only a discretion has been conferred upon the AO to be exercised judiciously but he is not always obliged to make the addition if the explanation is not found satisfactory. Kindly refer CIT v/s P. K. Noorjahan (1999) 237 ITR 570 (SC).
B. Shri Jagdish Singh Chaudhary 5.1 Notably, thereafter, the said Shri Jagdish Choudhary vide his letter dated 15.03.2016 filed on 16.08.2016 addressed to the AO (see second remand report PB-26) clearly confirmed having advanced Rs.10 lakhs to the assessee pursuant to the purchase agreement dated 08.03.2007 (PB-12). In the said letter, he also explained his source of the amount being out of the agriculture income as also from the cash withdrawal of Rs.9 lakhs made from the saving bank account of his father.
5.2 It is evident from the face of record that there was a direct source up to Rs.9 Lacs being the cash withdrawal from the bank and the balance of Rs.1 Lac was available out of his past savings accumulated from agricultural and other source income. The ld. AO purportedly ignored the confirmation and Bank statement of Shri Jagdish Chaudhary showing a direct source and incorrectly stated that no evidence was filed to show the capacity and thus merely proceeded on suspicion. He completely failed to rebut the explanation and to disprove the evidences. His allegations in the second remand report (PB-26) are nothing but pretence only.
5.3 All the above evidences were submitted before the ld. CIT(A) also but here also she did not do better. Her allegation that no confirmation of Shri Jagdish Chaudhary was filed is completely contrary to the facts available on record kindly refer his letter dated 24.02.2016 with a copy to ld. CIT(A)-III, Jaipur. As regard 12 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . Shri Jagdish Chaudhary, the assessee, In fact, filed a second counter comment w.r.t. second remand report dated 29.08.2016 (PB 23-25), wherein it was clearly stated that "2.1 It is submitted that notably Shri Jagdish Choudhary vide his letter dated 24.02.2016 (PB-32) addressed to the ITO, W- 7(2), Jaipur clearly confirmed having advanced Rs.10 lakhs to the assessee pursuant to the purchase agreement dated 08.03.2007. In the said letter, he also explained his source of the amount being out of the agriculture income as also from the cash withdrawal of Rs.9 lakhs made from the saving bank account of his father. Such letter, in original & duly signed by Shri Jagdish Choudhary and a copy of the bank passbook, were submitted in duplicate in your office on 14.03.2016 and again the same papers in original were submitted (on 16.08.2016) to the concerned ITO vide covering letter dated 15.03.2016 requesting him to send his remand report directly to the Hon`ble CIT(A)-III, Jaipur which fact, the AO now admits in the captioned remand report.
2.2 It is submitted that however, the AO, on both the occasions, proceeded in a haste without providing adequate opportunity to the assessee and without appreciating that the matter was dependent upon the third party, who is not bound to act upon the direction of the assessee. Moreover, Shri Jagdish Choudhary was out of town i.r.t. a religious tour and hence could not make compliance. Keeping such possibilities therefore, the AO should have once again sent a notice/summoned Shri Jagdish Choudhary using the statutory powers conferred upon him only, if he had got some doubt regarding the capacity or otherwise.
2.3 It is evident from the face of record that there was a direct source up to Rs.9 Lacs being the cash withdrawal from the bank and the balance of Rs.1 Lac was available from his past savings accumulated from his agricultural income and other source income. The ld. AO merely proceeded on suspicion and 13 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . completely failed to rebut the explanation and to disprove the evidences. His allegations are nothing but pretence only. 2.4 Considering the aforesaid balance of cash in hand on 01.04.2006 of Rs.15,85,500/- available with the assessee and together with the advance of Rs.10 lacs and some other receipts the total cash in hand available with the assessee was of Rs.25,35,110/- as on 01.03.2007. It is thus out of the said cash balance of Rs.25,35,110/- as on 01.03.2007, the assessee could deposit cash of Rs.24 lacs on 12.03.2007. Moreover total payment of Rs.66,000/- towards the repayment of car loan through EMI also came out of the same.
x x x x x
4. For a ready reference and completeness the w/s filed before the ld. AO during the remand proceedings vide letters dated 29.12.2015 (PB 13-15) along with copies of bank statement, confirmations and of another letter dated 31.12.2015 along with copies of agreement to sale entered with Shri Daulat Daga on dated 08.02.2006 and with Shri Jagdish Choudhary on dated 08.03.2007, are enclosed herewith (PB 8-12).
Thus, the assessee has fully established the source of Rs.24,06,000/- being Rs.15 lacs received as advance from Shri Daulat Daga and stands duly even admitted by the ld. AO and Rs.10 Lacs received from Shri Jagdish Choudhary hence, the impugned addition, deserves to be deleted in full. "
Strangely, the same was completely ignored. Her allegation that the agreement was on plain paper only and has no evidentiary value stood proved wrong when the other party has already confirmed the transactions. She merely formed a prima facie view and use of a word appear shows no final finding or conclusion but only suspicion.14 ITA No. 1013/JP/2016
Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
5.3 Considering the cash in hand available as on 01.04.2006 of Rs.15,85,500/- as aforesaid together with the advance of Rs.10 lacs and some other receipts, the total cash in hand available with the assessee was of Rs.25,35,110/- as on 01.03.2007. Out of the said cash balance of Rs.25,35,110/- as on 01.03.2007, the assessee could certainly deposit cash of Rs.24 lacs on 12.03.2007. Moreover total payment of Rs.66,000/- towards the repayment of car loan through EMI also came out of the same.
6. For better understanding a monthly cash flow statement (PB 7) was filed which is based on the bank statement under reference i.r.t. cash transaction only.
7.1 For the completeness and recapitulation, it is submitted that the assessee was already in receipt of Rs.15 lakhs as advance in the preceding year i.e. AY 2006-07 from Shri Daulat Daga and pertinently, the AO fully admitted the cash availability of Rs.15 lakhs out of the withdrawal of Rs.25 Lakhs [Rs.15 Lac on 10.02.2006 and Rs.10 Lakhs on 10.02.2006 from his saving bank a/c as evident from the copy of bank statement filed (PB 1-2). This was received by the assessee from Shri Daulat Daga through account payee cheque on dated 08.02.2006 as advance towards the purchase of some agriculture land of the assessee bearing Khasra No. 265, 276/2 & 277, Gram Saipura, Sanganer, Jaipur.
7.2 However, the AO further suspected that the cash withdrawal of Rs.15 lakhs could not have continued with the assessee for a period of one year w.r.t. which, it is submitted that the AO has not properly and correctly appreciated the facts and circumstances of the case in as much as per the agreement to purchase, the buyer Shri Daga was committed to make the payment of the balance also by 07.02.2007, failing which, the appellant was entitled to cancel the deal. In the first part of the period, there was no occasion for the appellant to utilize the cash availability of Rs.15 Lakhs (received Rs.25 Lakhs less Rs.10 Lakhs re-deposited leaving balance of Rs.15 Lakhs) hence by one reason or other it continued. Thereafter, when the last 15 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
date of 07.02.2007 was approaching near and Shri Daga did not appear to be serious towards the completion of the deal, the appellant thought it fit to further continue with him the cash so available keeping in mind the possibility of the cancellation of the deal and refund of the advance to buyer Shri Daga, in that eventuality. It is under this background, the assessee had to continue with it the cash to that extent therefore, there was nothing abnormal. In any case, the AO has merely suspected but completely failed to prove that the cash so admittedly available, stood utilized elsewhere. Therefore, the availability to this extent has to be accepted. Thereafter, the assessee was in receipt of fresh advance of Rs.10 lakhs from Shri Jagdish Choudhary as aforesaid to refund the entire amount of Rs.25 lakhs to Shri Daga lateron.
Thus, the assessee has fully established the source of Rs.24,06,000/- being Rs.15 lacs received as advance from Shri Daulat Daga and stands duly even admitted by the ld. AO and Rs.10 Lacs received from Shri Jagdish Choudhary.
8. Supporting Case Laws:
8.1 Kindly refer CIT v/s P.V. Bhoopathy (2006) 205 CTR 495 (Mad) held "Appeal (High Court)--Substantial question of law--Income from undisclosed sources--AO did not accept various sources of income explained by the assessee and made additions under ss. 68 and 69 in respect of difference between the investments and the sources accepted by him--Tribunal accepted the explanation of the assessee vis-a-vis availability of funds with the assessee from the sale proceeds of jewellery belonging to his mother-in-law, receipt from a party and also the amount of opening balance and savings from earlier years and deleted all the additions--Findings recorded by the Tribunal are purely findings of fact--There is no reason to interfere with the same--
No substantial question of law arises--CIT vs. Pradeep Shantaram Padgaonkar (1983) 143 ITR 785 (MP) relied on" 16 ITA No. 1013/JP/2016
Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
8.2 Also refer CIT vs Kulwant Rai (2007) 210 CTR 380 (Delhi) para 16-17 Read held "Search and seizure--Block assessment-- Computation of undisclosed income--Cash found during search--Assessee had withdrawn Rs. 2 lakh from bank some time back and there is no material with the Department to show that this money had been spent and was not available with the assessee--Tribunal has found that the withdrawals shown by the assessee are far in excess of cash found during the course of search--In the absence of any material to support the view that the entire cash withdrawals must have been spent by the assessee, Tribunal was justified in holding that the addition was not sustainable--Order of the Tribunal does not give rise to a substantial question of law"
In this case, cash was found on search carried out on 04.02.2001 and was explained to be out of the cash withdrawal in Dec-2000.
8.3 Also refer Anand Prakash Soni v/s DCIT (2006) 101 TTJ 97 (Jd) (DPB 18-42) para 5-6 "Search and seizure--Block assessment--Computation of undisclosed income--Cash found during search--Assessee is entitled to furnish cash flow statement to explain the transactions when no books of account are maintained--In such circumstances it becomes the duty of the AO to verify the balance sheet and cash flow statement with the necessary material including the details already filed along with the returns in the past--Assessee explained that the cash found at the time of search was withdrawn from the bank some time back which was partly used for purchasing gold and part of the amount was given by the assessee to his wife--There is nothing to suggest the utilization of the withdrawal amount elsewhere-- Said withdrawal is duly reflected in the cash flow statement and closing cash balance is more than the amount found at the time of search--Thus, addition cannot be sustained"
8.4 Shivcharan Dass vs. CIT (1980) 126 ITR 0263 (P&H) 17 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur .
"Income from undisclosed sources--Unexplained investment-- Amount disclosed by HUF under Voluntary Disclosure Scheme--Thereafter kept lying in assessee's house with his wife till her death--ITO questioning its source after the same had subsequently been deposited with a bank in the names of assessee's then major daughters--In the absence of any evidence to the effect that the said sum was utilized by the assessee in any other manner, the Department was not justified in unreasonably rejecting a good explanation and adding the amount as income from undisclosed sources-- Further, the addition, if at all possible, could have been made only in the daughters' hands--There was no provision in 1922 Act analogous to s. 69 of 1961 Act"
Hence, the impugned addition, deserves to be deleted in full." 4.4 On the other hand, the ld. DR relied upon the orders of the authorities below.
4.5 I have carefully considered the rival contentions and perused the material available on record. I have also considered the various case laws cited by the ld. AR of the assessee. A perusal of the bank statement of SB account bearing account no. 0020311000000401 with Malviya Urban Co- operative Bank Ltd., Vasundhara Colony, Jaipur of the appellant (copy placed at page 3 of assessee's paper book) together with a statement prepared based thereon and placed at pg. 7 of assessee's paper book, show that the assessee deposited cash of Rs. 24 lakh on 12.03.2007 (PBP Page-4) followed by various small cash amounts deposited 18 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . thereafter from the month of April 2006 to February 2007 totaling to Rs. 24,81,500/-. It is noticed that the assessee has withdrawn cash of Rs. 25,00,000/- (Rs.15 Lacs and Rs.10 Lacs on 10.02.2006, PB page 3)) from the said saving bank account. The source of such withdrawal was the receipt of Rs. 25,00,000/- through account payee cheque on dated 08.02.2006, deposited in the said Bank A/c, which was received from Shri Daulat Daga as advance towards the purchase of some agriculture land. In support of this contention copy of agreement and confirmation of Shri Daga were filed. In order to verify the contention of the assessee, the ld. CIT(A) called for a remand report from the AO on this aspect. The AO made enquiry from Shri Daga by sending notice u/s 133(6) of the Act. In his remand report dated 26.02.2016, it is clearly mentioned that the representative of Shri Daga confirmed this transaction vide his letter dated 24.02.2016. The assessee further stated to be having opening balance of cash in hand on 1stJanuary 2006 i.e in the preceding year A.Y 2006-07, of Rs. 85,500/-. There was a withdrawal of cash of Rs. 25 lacs in February 2006 out of which Rs. 10,00,000/- was deposited back in the said bank account on 27.02.2006 leaving cash in hand of Rs. 15,85,500/- on 31.03.2006 PBP Page 7) which was the opening cash in hand as on 19 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . 01.04.2006 relating to the previous year for the subjected year (A.Y. 2007-08). Thereafter, again on 08.03.2007 there appears a cash deposit of Rs. 10,00,000/- which is stated to have been received from Shri Jagdish Choudhary. In support of the contention of the assessee, a letter was directly sent by said Shri Choudhary to the ITO on dated 24.02.2016 confirming the fact of giving advance of Rs. 10,00,000/- on 08.03.2007 in cash to the assessee in connection with an agreement to purchase a land from the assessee. He also submitted that the source of this amount was cash withdrawal of Rs. 9,00,000/- from the saving bank account of his father and copy of the passbook of the said bank account was also submitted with these paper and are available at Pg. 32 to 34 of the assessee's paper book. On this aspect also a remand report was called for by the ld. CIT(A) which was submitted by the AO vide his letter no. 2528 dated 29.08.2016, copy of which is placed at pg. 26 of the assessee's paper book. The AO confirmed that the confirmation of Shri Jagdish together with the details were submitted to him. It is noticed from the said letter that Shri Jagdish Choudhary clearly confirmed having given Rs. 10,00,000/- to the assessee and has also explained the source being the cash withdrawal from the bank account of his father but the AO has not 20 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . appreciated the fact and has rejected assessee's contention. It is a settled law that the assessee cannot be asked to prove the source of source. The assessee has satisfactorily explained the receipt of Rs. 25,00,000/- in the previous year A.Y. 2006-07 from Shri Daga and the consequent availability of cash in hand of Rs. 15,85,500/- being the opening cash in hand on 1.04.2006. Otherwise, the AO has also accepted this fact in his remand report. The assessee also satisfactorily explained the availability of the cash of Rs. 10 Lacs deposited in the bank of the assessee in March 2007 being advance received from one Shri Jagdish as aforesaid. After appreciating all these facts and evidences available on record and in absence of any contrary evidence brought on record by the Revenue, I do not find any justification to make the addition by the AO and the confirmation by the ld. CIT(A). The ld. CIT(A) merely commented on the agreement and proceeded on suspicion however, has ignored the substantive evidence brought on record by the assessee which completely remained unrebutted by the AO. Thus, considering the totality of facts and circumstances and in view of the uncontroverted evidences available on record I find no justification in confirming the addition of Rs, 21 ITA No. 1013/JP/2016 Shri Bajrang Singh Choudhary vs. ITO, Ward- 7(2), Jaipur . 24,81,500/- by the ld. CIT(A) which is deleted. Thus Ground No. 4 of the assessee is allowed.
5.0 The Ground No. 5 of the assessee is regarding charge of interest u/s 234A, 234B, 234C & 234D of the Act and also in withdrawing interest u/s 244A of the Act. The charging of interest is consequential and mandatory therefore the AO is directed to recompute the interest after giving effect to this order.
6.0 In result the appeal of the assessee is partly allowed as indicated above.
Order pronounced in the open court on 07 /02/2018 Sd/-
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vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Bajrang Singh Choudhary, Jaipur
2. izR;FkhZ@ The Respondent- The ITO, Ward- 7(2), Jaipur
3. vk;dj vk;qDr¼vihy½@ CIT(A).
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 1013/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar