Govind Chitlangia, Kishangarh vs Department Of Income Tax

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 44/JP/2013 fu/kZkj.k o"kZ@Assessment Year : 2009-10

Income Tax Officer, cuke Govind Chitlangia Kishangarh. Vs. 1523/15, Dayanand Colony, Ram Nagar, Ajmer.

LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADWPC 0522 C vihykFkhZ@Appellant izR;FkhZ@Respondent

jktLo dh vksj ls@ Revenue by : Mrs. Neena Jeph (JCIT) fu/kZkfjrh dh vksj ls@ Assessee by : None (A.D. on record)

lquokbZ dh rkjh[k@ Date of Hearing : 25/03/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 17/04/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

This is an appeal filed by the Revenue against the order dated

11/10/2012 passed by the learned CIT (A), Ajmer for A.Y. 2009-10. The

effective grounds of appeal are as under:-

2 ITA 44/JP/2013_ ITO Vs. Govind Chitlangia

"In view of the facts and circumstances of the case the ld.

CIT(A) has erred in:-

1) restricting the addition of Rs. 33,80,090/- to Rs.

3,38,009/- made by A.O. on account of unexplained deposits in the saving bank account with IDBI by applying G.P. rate of 10% without considering the totality of facts and circumstances of the case and merely relying upon the earlier judgment of the jurisdictional ITAT;

2) treating the deposits made in the IDBI a/c as the turnover when the bank account is of the nature of Saving Bank Account;

3) treating the deposits made in the IDBI a/c as the turnover without establishing the nexus between the deposits and withdrawals viz a viz business transactions;

4) treating the deposits as turnover when the cash deposit in bank should be explained by assessee, otherwise it is unexplained income under sec. 69 or 69B as upheld by the Apex Court in the case of CIT Vs. K. Chinnathamban (SC) 292 ITR 682;

5) treating the deposits as turnover ignoring the argument of the A.O. given during the appeal proceedings that the assessee failed to produce the evidence of Marble business."

2. All the grounds of the revenue's appeal are revolving around

restricting the addition of Rs. 33,80,090/- to Rs. 3,38,009/- made by the

A.O. on account of unexplained deposits in the savings bank account by

applying G.P. rate of 10%. The Ld. Assessing Officer observed that the

assessee is having income from trading of marble as well as income 3 ITA 44/JP/2013_ ITO Vs. Govind Chitlangia

from other sources. The assessee had filed his return of income on

31/3/2010 for A.Y. 2009-10 declaring total income of Rs. 1,49,150/-.

The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in

short the Act). The assessee was given various notices and asked to

explain the cash deposited in the same bank account maintained with

PNB of Rs. 33,09,700/-. The assessee's attitude was non-cooperative

before the Assessing Officer, therefore, he decided the case in absence

of any submission made by him by relying on the decision of the

Hon'ble Rajasthan High Court in the case of Pawan Kumar Pareek Vs.

ITO, Jodhpur and whole cash deposited in the said bank account was

added in the income U/s 69A of the Act as unexplained money.

3. Being aggrieved by the order of the Assessing Officer, the

assessee carried the matter before the ld. CIT(A), who had allowed the

appeal partly by observing that this cash deposited in the bank account

pertained to marble business, therefore, he held that all deposits does

not part of the income. He also relied on various case laws mentioned

on page No. 6 of its order. He confirmed the addition to the extent of

10% of the above deposits i.e. Rs. 3,38,009/- (10% of Rs. 33,80,090/-)

treating the same as profit on trading turnover of business. Out of 4 ITA 44/JP/2013_ ITO Vs. Govind Chitlangia

addition, the appellant has already declared income of Rs. 1,49,146/- in

the return on estimate basis. Accordingly, the addition to the extent of

Rs. 1,88,863/- is upheld and balance deleted.

4. Now the Revenue is in appeal before us. The learned D.R.

vehemently supported that the assessee did not appear before the

Assessing Officer and has not filed any evidence to corroborate these

entries with the marble business. It is also not clear from the order of

the CIT(A) that estimated income disclosed by the assessee is including

the income generated through this bank account as this bank account

has not been disclosed. She supported the order of the Assessing

Officer and prayed to reverse the order of the ld. CIT(A). From the side

of the assessee, no one appeared even proper notice has been served

on him from time to time.

5. We have heard the rival contentions of both the parties and

perused the material available on record. It is undisputed fact that total

cash was deposited at Rs. 33,80,090/- in the bank account. The nature

of bank account was savings bank account with PNB not IDBI as

mentioned by the Assessing Officer in grounds of appeal. The ld CIT(A)

has considered the Coordinate Jodhpur ITAT Bench's decision but the 5 ITA 44/JP/2013_ ITO Vs. Govind Chitlangia

facts of the case referred by the ld CIT(A) has not been coming out

from the order that whether these cash deposited from assessee's place

of business or outside the place. It is revealed from the order of the Ld.

CIT(A) that the assessee has received this amount from different

stations i.e. Vishakhapatnam, Daltonganj, Dehradun etc. It is a fact that

while collecting the evidence from the bank directly by the Assessing

Officer or having evidence with the assessee the nature of transaction

can be determined. The burden lies on the assessee to prove that these

entries are business purposes and this cash was sent by purchasers. It

is also not clear from the order of the ld CIT(A) that what action has

been taken by the Assessing Officer in subsequent year and preceding

year and whether any additions were made in that year also. The ld

CIT(A) has decided the case without calling remand report from the

Assessing Officer, which is against the principles of natural justice.

Therefore, in the interest of justice, we set aside this issue to this

Assessing Officer and the assessee is directed to appear before him and

produce all the evidences to judge the nature of transaction, so that

real income can be assessed.

6 ITA 44/JP/2013_ ITO Vs. Govind Chitlangia

6. In the result, the revenue's appeal is allowed to statistical

purposes only.

Order pronounced in the open court on 17/04/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 17th April, 2015

*Ranjan

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

1. vihykFkhZ@The Appellant- ITO, Kishangarh.

2. izR;FkhZ@ The Respondent- Govind Chitlangia, Ajmer.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

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

6. xkMZ QkbZy@ Guard File (ITA No. 44/JP/2013)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar