Kailash Agarwal, Jaipur 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. 562/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2008-09

The ITO cuke Shri Kailash Agarwal Ward- 4 (2) Vs. C-3, Amba Bari, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABRPA 9090 L vihykFkhZ@Appellant izR;FkhZ@Respondent C.O. No.55/JP/2012 (Arising out of vk;dj vihy la-@ITA No. 562/JP/2012) fu/kZkj.k o"kZ@Assessment Year : 2008-09

Shri Kailash Agarwal cuke The ITO C-3, Amba Bari, Vs. Ward- 4 (2) Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABRPA 9090 L vihykFkhZ@Appellant izR;FkhZ@Respondent

jktLo dh vksj ls@ Revenue by : Shri Ajay Malik, JCIT fu/kZkfjrh dh vksj ls@ Assessee by : Shri Vimal Chopra, C.A.

lquokbZ dh rkjh[k@ Date of Hearing : 19/02/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 13/03/2015

vkns'k@ ORDER PER R.P. TOLANI, JM

The Revenue has filed an appeal against the order of the ld.

CIT(A)-II, Jaipur dated 19-03-2012 for the assessment year 2008-09. The

assessee has filed the cross objection.

2 ITA No. 562/JP/2012

ITO, Ward- 4 (2) vs. Shri Kailash Agarwal, . .

2.1 The ground raised by the Revenue is as under:-

''On the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition of Rs. 29,75,000/- made by AO on account of unexplained deposits in the bank account without appreciating facts and circumstances of this case.''

2.2 The assessee has raised following grounds in his C.O.

''1. That the assessee is NRI and landed in India on 23-07-2012 and opened the envelope containing Form 36 on 25-07-2012 as such the receipt of notice by assessee be deemed to be 25th July, 2012 and accordingly the cross objection filed through this Form 36A may be accepted.

2. That the addition of Rs. 29,75,000/- by the ld.

AO was due to unexplained deposit in the account on account of cheques worth Rs. 20,10,000/- and cash worth Rs. 9,65,000/- as such the additions were agitated through separate grounds before CIT(A). The ground of appeal filed by the ld. AO therefore, deserves to be decided accordingly for cheques and cash on the lines as was pleaded before the CIT(A) .

3. That the ld. AO erred in law and on facts by adding a sum of Rs. 20,10,000/- as unexplained deposit in the bank by way of other than cash on presumption, surmises and conjectures.

4. That ld. AO erred in law and on facts by adding a sum of Rs. 9,65,000/- as unexplained cash deposit in the bank account while ignoring the vital facts that this bank account is a NRO a/c which was opened for the first time on 14-11-2007 to safe park the cash in hand as on 31-03-2007. The assessee had deposited cash from time to time as per the immediate source explained by the assessee. The addition is therefore, based on presumption, surmises and conjectures.'' 3 ITA No. 562/JP/2012 ITO, Ward- 4 (2) vs. Shri Kailash Agarwal, . .

3.1 The Bench has observed during hearing that the C.O. of the

assessee is delayed by 19 days for which a condonation application

supported by an affidavit is filed by the assessee and it is deposed that the

assessee was out of country and landed in India on 23-07-2012.

Thereafter immediately the appeal was filed on 30-07-2012. It is pleaded

that delay in filing the appeal may be condoned.

3.2 The ld. DR is heard.

3.3 We have heard the rival contentions and perused the materials

available on record. From the affidavit filed by the assessee, it emerges

that the assessee was out country and on coming back to India, the cross

objection was filed promptly without further delay. Thus in view of these

facts and circumstances, we are of the view that the assessee was

prevented with sufficient cause for not filing the cross objection in time

and therefore, the delay in filing the cross objection is condoned.

4.1 Brief facts of the case are that the assessee filed the return of

income claiming under the status as a Resident Indian whereas during the

course of assessment proceedings it was claimed to be a Non-Resident.

From the ITS information, the AO found that the assessee had purchased 4 ITA No. 562/JP/2012 ITO, Ward- 4 (2) vs. Shri Kailash Agarwal, . .

immovable property for Rs. 31,19,750/- at Mumbai on which an amount

of Rs. 1,58,750/- was spent for stamp duty purposes. The assessee was

asked to explain the source thereof. According to AO, the assessee did

not file proper details about NRO account. Consequently, the amount of

Rs. 29,75,000/- was added as unexplained deposits in the bank account of

the assessee.

4.2 Aggrieved assessee preferred first appeal wherein the ld. CIT(A)

deleted the addition by observing as under:-

''The assertion of the AO that the assessee had ploughed back its own money was of no avail. The Revenue was required to prove this allegation. The Revenue was required to bridge the gap between the suspicion and proof in order to bring home this allegation. I therefore, hold that the appellant has discharged the burden that lay on him in respect of deposits of Rs. 29,75,000/- in his bank account. I accordingly direct the AO to delete the addition of Rs. 9,65,000/- on account of cash deposits in the bank account and Rs. 20,10,000/- on account of deposits by way of cheques. These grounds of appeal are allowed.

In the result, the appeal of the assessee is treated as allowed.'

4.3 Aggrieved, both the parties are before us.

4.4 The ld. DR contends that the ld. CIT(A) has given relief on the

basis of additional evidence filed before him. From the findings given in

the order of ld. CIT(A), it does not emerge out as to how the financial 5 ITA No. 562/JP/2012 ITO, Ward- 4 (2) vs. Shri Kailash Agarwal, . .

capacity of the assessee qua these deposits were proved. The entire matter

has been decided on the basis discharging of onus. The ld. CIT(A) has

summarily accepted the assessee's version without appreciating the facts

and the AO did not adduce proper evidence. Thus in the absence of any

findings and explanation, the matter has been decided without conducting

any independent enquiry. The power which is vested to ld. CIT(A) by the

Act is coterminous to Assessing Officer.

4.5 At the same time, the ld. Counsel for the assessee by way of C.O.

has raised issue that the grounds raised were not considered by the ld.

CIT(A) while disposing of the appeal.

4.6 We have heard the rival contentions and perused the materials

available on record. In view of the entirety of the facts and circumstances

of the case and arguments raised, both the parties agreed upon that the

matter may be set aside and restored back to the file of the AO to decide

the same afresh after giving adequate opportunity of being heard to the

assessee. Thus the appeal of the Revenue as well as C.O. of the assessee

are allowed for statistical purposes.

6 ITA No. 562/JP/2012

ITO, Ward- 4 (2) vs. Shri Kailash Agarwal, . .

5.0 In the result, the appeal of the Revenue as well as C.O. of the

assessee are allowed for statistical purposes

Order pronounced in the open court on 13 /03/2015.

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

Tk;iqj@Jaipur fnukad@Dated:- 13th MARCH 2015

*Mishra

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

1. vihykFkhZ@The Appellant- The ITO, Ward- 4 (2), Jaipur

2. izR;FkhZ@ The Respondent- Shri Kailash Agarwal, Jaipur .

3. vk;dj vk;qDr¼vihy½@The CIT(A).

4. vk;dj vk;qDr@ CIT, Jaipur

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

6. xkMZ QkbZy@ Guard File (ITA No.562/JP/2012)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar