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Income Tax Appellate Tribunal - Jaipur

Satish Kumar Yadav, Alwar vs Ito, Alwar on 21 December, 2016

           vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
       IN THE INCOME TAX APPELLATE TRIBUNAL,
                 JAIPUR BENCHES , JAIPUR

      Jh HkkxpUn] ys[kk lnL; ,o Jh dqy Hkkjr] U;kf;d lnL; ds le{k
     BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM

            vk;dj vihy la-@ITA No. 845/JP/2016
            fu/kZkj.k o"kZ@Assessment Year : 2009-10

Shri Satish Kumar Yadav                       cuke     The ITO
S/o Shri Late. Shri Nand Ram Yadav            Vs.     Behror
VPO - Gunti, Behror                                   Alwar
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADBPY 8665 M
vihykFkhZ@Appellant                                   izR;FkhZ@Respondent

            vk;dj vihy la-@ITA No. 846/JP/2016
            fu/kZkj.k o"kZ@Assessment Year : 2009-10

Shri Raj Kumar Yadav                          cuke     The ITO
S/o Shri Late. Shri Nand Ram Yadav            Vs.     Behror
VPO - Gunti, Behror                                   Alwar
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: CCVPK 4767 R
vihykFkhZ@Appellant                                   izR;FkhZ@Respondent

      fu/kZkfjrh dh vksj ls@Assessee by: Shri P.C. Parwal, CA
      jktLo dh vksj ls@ Revenue by :Ms. Neena Jeph, JCIT

            lquokbZ dh rkjh[k@ Date of Hearing :        08/12/2016
            ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 21/12/2016

                         vkns'k@ ORDER

PER BHAGCHAND, AM

Both these appeals have been filed by different assessee against separate orders of the ld. CIT(A), Alwar dated 20-07-2016 for the assessment year 2009-10 raising ground of appeal as under:-

Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

''1. That the ld. AO has erred in law as well as on the facts and circumstances of the case in making an addition of Rs. 50.00 lacs within the meaning of Section 69A o the I.T. Act, 1961 and the ld. CIT(A), Alwar has erred in sustaining the same.

''1. That the ld. AO has erred in law as well as on the facts and circumstances of the case in making an addition of Rs. 1,17,12,000/- within the meaning of Section 69A o the I.T. Act, 1961 and the ld. CIT(A), Alwar has erred in sustaining the same.

2.1 The facts of the case as emerges from the order of the ld. CIT(A) in the case of Shri Satish Kumar Yadav is as under:-

''4.5 I have perused the assessment order as well as remand report of the AO, submissions and cross reply of the appellant including the judicial citations given therein and find that an addition of Rs. 50 lakhs has been made by the AO on account of unexplained cash deposits in the bank account of the appellant u/s 69A of the I.T. Act. During the course of assessment proceedings, the appellant has failed to furnish any details regarding source of funds deposited in the bank account. Therefore, in the absence of any evidence, the deposits made in cash were held by the AO as unexplained income of the appellant u/s 69A of the I.T. Act.

4.6 In the course of present proceedings, it is submitted that appellant's father late Shri Nand Ram entered into an agreement with shri Pratap Singh Son of Shri Nahar Singh resident of Khilona Bagh near Pratap Nagar, 129/47, Model Town, New Delhi, for sale of his agricluiture land situated at Gram Keshwana Rajput, Patwar Malpura, Tehsil Kotputli, Distt. Jaipur vide Khasra No 180 Area 1.04 hectare, Khasra No. 182 Ara 470 hectae, Khasra No. 183 Area 1.09 hectare, Khasra No. 187 Area 1.45 hectare total area 8.28 hectare, vide agreement to sale dated 28th Nov. 2008.

Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

This agreement was executed in the presence of Shri Sheo Chand Saini S/o Ganpat Resident of Mohalla Sabalpur Tehsile Behror Distt. Alwar and Shri Pawan Sharma son Shri Bhagwan Das Sharma Mohalla Sabalpur Tehsil Behror District Alwar and Shri Pawan Sharma Son of Shri Bhagwan Dass Sharma Mohalla Buchakheda Tehsil Kotputli Distt. Jaipur and was duly attested by notary on that date. A copy of the agreement to sale was filed on record.

4.7 It is stated in the agreement that it is a valid for a period of one year and sale registry will be executed in the favour of Shri Pratap Singh or in the name of any other person as may be directed by him. Accordingly, a sale deed was executed by assessee's father for Khasra No. 180 & 182 on 21-11-2008for Khasra No. 183 on dated 22-11-2008 and has given physical possession of Khasra No. 189 (in place of Khasra No. 187) in favour of / to Shri Somnath Buildtech Private Ltd., New Delhi. A copy of these deeds has been filed.

4.8 It is submitted that cash amounting to Rs. 50,00,000/- was deposited on 24-11-2008 and demand draft amounting to Rs. 31,00,000/- in the joint bank account form proceeds received on account of sale of agriculture land. This sale deed in respect of Khasra Number 180 and 182 executed on 21-11-2008 was registerd on 24-11-2008. The details of datewise receipt of amount as per agreement to sale is as follows.

                 Date               Amount           Model
                 28-11-2007         27,00,000        Cash
                 10-01-2008         15,00,000        Demand Draft
                 21-11-2008         1,57,00,000      Cash
                 21-11-2008         31,00,000        Demand Draft
                   Total            2,30,00,000

4.9 It is submitted that an amount of Rs. 50,00,000/- deposited on 24-11-2008 by the assessee in his bank account is out of the sale proceeds of Rs. 1,57,00,000/- received on 21-11-208, 22-11-208 and 23-11-2008 being Saturday and Sunday, therefore, the money could be deposited on the next bank's working day i.e. 24-11-2008. It is further stated by the appellant that only source of 4 ITA No. 845/JP/2016 Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

income of assessee's father Shri Nand Ram was agriculture activity and agriculture operation. The assessee's father Shri Nand Ram was not having any other source of income. The bank account in which the assessee has deposited the amount is a joint bank account in the name of his father Shri Nand Ram and himself i.e. Shri Raj Kumar.

4.10 The detailed submission filed by the appellant were to the AO for examination and after giving an opportunity of being heard to the appellant. The AO in his remand report has categorically given a finding that sources for deposit of cash in the bank account of the appellant could not be substantiated with evidence. The appellant has failed to attend the proceedings for recording of statements for substantiating the contents of the affidavit filed in the course of present proceedings. AO has given a number of opportunities in the course of remand proceedings but no further evidence could be filed by the appellant. The appellant also failed to produce any witness to the sale agreement before the AO in the course of remand proceedings.

4.11 Having considered the detailed submissions made on this issue including judicial citations. I find that a number of opportunities were given to the appellant in the course of assessment proceedings but no supporting evidence was filed at that stage. In the course of appellant proceedings, written submissions alongwith copy of sale deeds, agreements, receipt, affidavit was filed to explain the source of cash deposits in the bank account. However, in the course of remand proceedings, the appellant has again failed to attend the proceedings for examination of the evidence and averments made in the affidavit filed. The appellant in the cross reply filed has reiterated the submissions filed earlier and has failed to produce any further evidence.

4.12 I have carefully examined the evidence placed on record and find that as per agreement to sell dated 28-1-2007 for sale of land at a total sale consideration of Rs. 2.30 crores, executed by Shri Nand Ram father of the appellant, an amount of Rs. 1,60,00,000/- was received in cash by him on the same date. Therefore, deposit of cash in the bank account of the appellant on 24-11-2008 of Rs. 50,00,000/- remains unexplained. The affidavit filed by the appellant to explain the source of cash deposit on 24- 5 ITA No. 845/JP/2016 Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

11-2008 does not conform to the facts as per the receipt available on record. The agreement executed in Nov. 2008 states that a consideration of Rs. 92,00,000/- has been paid vide demand drafts drawn in the name of two co-owners of the land Shri Nand Ram and his brother (1/2 share each). The agreement dated 28-11-2007 only specifies the receipt of cash of Rs. 1.60 crores.

4.13 Further, I find that appellant has time and over again failed to attend the proceedings and also failed to produce the witness before the at the assessment stage and again in the course of remand proceedings. The best evidence appellant has filed is only an affidavit by himself and his brother and of one of the witnesses Shri Pawan Sharma. But appellant has neither himself attended the proceedings nor could produce any of the witnesses. Further, there are huge gaps in the dates of deposition of cash in the bank account and the dates of receipt of cash as per the sale agreement filed. Therefore, in the absence of any evidence other than the self serving statements, I hold that AO was justified in treating the amount of Rs. 50,00,000/- as unexplained income of the appellant u/s 69A of the I.T. Act .'' 2.2 During the course of hearing, the ld. AR of the assessee filed the written submission with the prayer that the ld. CIT(A) has erred in confirming the addition to the extent of Rs. 50.00 lacs in the case of assessee Shri Satish Kumar Yadav and the same should be deleted.

2.3 The ld. DR relied on the orders of the lower authorities.

2.4 We have heard the rival contentions and perused the materials available on record. It is noted from the records that the AO had made an addition of Rs. 50.00 lacs u/s 69A of the Act on account of unexplained cash deposit in the bank account of the assessee. The AO observed that 6 ITA No. 845/JP/2016 Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

the assessee had failed to furnish any details regarding sources of funds deposited in the bank account. It is also noted from the records that an amount of Rs. 50.00 lacs was deposited on 24-11-208 by the assessee in his bank account out of sale proceeds of Rs. 1,57,00,000/- received on 21- 11-2008, 22-11-2008 and 23-11-2008 being Saturday and Sunday.

Therefore, the money could be deposited by the assessee on the next bank's working day i.e. 24-11-2008. It is submitted by the assessee before the AO that his father Shri Nand Ram had only source of income from agricultural activity and his father Shri Nand Ram was not having any other source of income. It is further noted that the bank account in which the assessee had deposited the amount was a joint bank account in the name of his father Shri Nand Ram and the assessee himself. It is further noted that the detailed submissions filed by the assessee were forwarded to the AO for examination of the case of the assessee after giving an opportunity of being heard to the assessee. The AO in his remand report had categorically given a finding that sources of cash deposit in the bank account of the assessee could not substantiated with evidence. The assessee had failed to attend the proceedings for recording of statements for substantiating the contents of the affidavit filed in the course of proceedings. The AO conclusively came to the conclusion during remand 7 ITA No. 845/JP/2016 Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

proceedings that the assessee had failed to produce any witnesses as to the sale agreement, before him. In appellate proceedings, the ld. CIT(A) observed that as per agreement to sell dated 28-11-2007 for sale of land at a total sale consideration of Rs. 2.30 crores executed by Shri Nand Ram father of the assessee, an amount of Rs. 1.60 crores was received in cash by him on the same date. According to him, the cash deposit of Rs. 50.00 lacs on 24-11-2008 in the bank account of the assessee remained unexplained. The ld. CIT(A) also observed that the affidavit filed by the assessee to explain the source of cash deposit on 24-11-2008 did not conform to the facts as per the receipt available on record. The ld. CIT(A) observed that the agreement dated 28-11-2007 only specified the receipt of cash of Rs. 1.60 crores. The ld. CIT(A) thus observed that the assessee had failed to produce the witnesses at the assessment stage and in the course of assessment proceedings. Thus the ld. CIT(A) held that the AO was justified in treating the amount of Rs. 50.00 lacs as unexplained income of the assessee u/s 69A of the Act. We have also pondered the detailed submissions of the ld. AR of the assessee. The ld. AR of the assessee submitted that the assessee had no source of income other than the agricultural. Even the lower authorities have not found any other source of income in the hands of the assessee. From the order of the ld.

Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

CIT(A) at para 4.9, it shows that the bank account in which the assessee had deposited the amount is a joint account in name of his father Shri Nand Ram and assessee himself. Thus in such a situation, it will be in the interest of equity and justice to restore the issue to the file of the AO to decide it afresh by providing reasonable opportunity of being heard to the assessee to ascertain the money whether it pertains to his father or the assessee . The assessee is also directed to submit all the relevant records and papers concerning the issue in question before the AO. Thus the solitary issue of the assessee is allowed for statistical purposes.

3.1 Now we take up the appeal in the case of Shri Raj Kumar Yadav assessee (ITA No. 846/JP/2016 for the assessment year 2009-10) wherein the assessee has raised the solitary ground as under:-

''1. That the ld. AO has erred in law as well as on the facts and circumstances of the case in making an addition of Rs. 1,17,12,000/- within the meaning of Section 69A o the I.T. Act, 1961 and the ld. CIT(A), Alwar has erred in sustaining the same.

3.2 We have heard the rival contentions and perused the materials available on record. It is noted that the issue in question is similar to the facts in the case of Shri Satish Kumar Yadav (ITA No. 845/JP/2016) wherein the appeal of the assessee is allowed for statistical purposes.

Since the issue in the case of Shri Raj Kuamr Yadav (ITA No. 9 ITA No. 845/JP/2016 Shri Satish Kumar Yadav vs. ITO, Behror, Alwar .

846/JP/2016) is similar, therefore, the decision taken in the case of Shri Satish Kumar Yadav shall apply mutatis mutandis in the case of Shri Raj Kuamr Yadav also. Thus this appeal of the assessee is allowed for statistical purposes .

4.0 In the result, the appeals of the above assessee's are allowed for statistical purposes.

Order pronounced in the open Court on 21 -12-2016.

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(KUL BHARAT)                                        (Bhagchand)
U;kf;d lnL; /Judicial Member             ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur
fnukad@Dated:-                   21/12/ 2016
*Mishra

vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:

1-2. vihykFkhZ@The Appellant- Shri Satish Kumar Yadav & Shri Raj Kumar Yadav Behror

3. izR;FkhZ@ The Respondent- The ITO, Ward-Behror

4. vk;dj vk;qDr¼vihy½@ CIT(A).

5. vk;dj vk;qDr@ CIT,

6. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

7. xkMZ QkbZy@ Guard File (ITA No. 845 & 846/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar