9911796707
TMI Blog2015 (8) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee also filed the evidences of cash payment to M/s. Jai Hanumant on 20.02.2006 that on same day assessee received ₹ 8,00,000/- from M/s. Goodwill Fincom Pvt. Ltd. against an agreement to sale his shop situated at B-22, Transport Nagar, Jaipur for ₹ 21 lacs entered on 20.02.2006. These evidences were produced before the AO but ld. AO doubted these evidences without any adverse material brought on record. The company is a legal entity under the law. The evidences furnished before the AO which had not been appreciated properly. The ld. CIT (A) also passed a cryptic order. No specific finding has been given by her in her order dated 31.01.2013. She simply reduced ₹ 8,00,000/- from ₹ 12,85,082/- and confirmed the addition of ₹ 4,85,082/-, but no finding regarding the cash received by the assessee from the Standard Chartered Bank on 20.11.2005 has been given by her. Therefore, we reverse the order of ld. CIT (A) and allow the assessee’s appeal. - Decided in favour of assessee. - ITA No. 327/JP/2013 - - - Dated:- 11-8-2015 - SHRI R.P. TOLANI AND SHRI T.R. MEENA, JJ. For The Assessee : Shri Mahendra Gargieya and Shri Fazlur Rahman Khan, (Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the year under reference there was shortage of cash in the hands of the assessee. However, payment was made to firm M/s. Jai Hanumant. This resulted in shortage of cash on impugned dates. Therefore, the assessee was asked to furnish his explanation vide show cause notice issued on 30.06.2008. The show cause notice has been reproduced by the AO on pages 2 3 which was replied by the assessee by letter dated 21.07.2008 which has also been reproduced by the AO on pages 3 4 to verify the correctness of the submissions of the assessee. The ld. AO enquired under section 131/133(6) of the IT Act with the concerned bank authority and stamp issuing authority. In response to notice under section 133(6) regarding withdrawal of ₹ 8,90,000/- on 20.11.2005, the Standard Chartered Bank has intimated that We are not able to locate any withdrawl on 20th Nov., 2005 from account No. 751-1-003633- 8 in the name of Mr. Dinesh Agarwal. Statement under section 131 also recorded by the AO of Shri Nitin Gupta, Manager (Operations) on 10.09.2008, who had confirmed that during the relevant period the Bank was working as 365 days branch and the transactions entered into on holidays were re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations) of Standard Chartered Bank shows that assessee has withdrawn ₹ 8,90,000/- on 21.11.2005. The letter dated 27.10.2008 of Bank cannot be given more credence than oath statement recorded under section 131 of the IT Act in view of the fact that the ld. AO held that there was a shortage of amount to the tune of ₹ 5,12,566/- on 20.11.2005. The assessee had made cash payment to this extent to M/s. Jai Hanumant out of his undisclosed income. Therefore, addition of ₹ 5,12,566.45 is made to the total income of the assessee on this account. As regards cash shortage of ₹ 7,12,516/- on 20.02.2006, copies of ledger and cash book of M/s. Goodwill Fincom Pvt. Ltd. cannot be given any cognizance because this company is a group company of the assessee. All the Directors of the company are close family members of the assessee viz. Bhabhi, wife, brothers, father etc. Even the so called agreement entered into with this company was signed by Smt. Kusum Agarwal who is family member of assessee. In turn, the assessee was in a position to arrange the affairs of this company to suit his need which he had also done. When agreement to sale itself has been proposed to be fabrica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had received ₹ 8,00,000/- as advance on 20.2.2006 from M/s. Goodwill Fincom Pvt. Ltd, Jaipur against an agreement to sell a shop for which necessary proofs were also submitted during assessment proceedings but were not considered by the AO. Therefore the addition of ₹ 8,00,000/- is directed to be deleted, as also pleaded alternatively by the appellant, and the balance of ₹ 4,85,082/- (Rs.12,85,082 ₹ 8,00,000) is upheld. 4. Now the assessee is before us. The ld. A/R of the assessee submitted that assessee had submitted all the evidences confirming the availability of sufficient cash on the subjected date. It was submitted that withdrawal of ₹ 8,90,000/-was made on 20.11.2005 only which being a Sunday, transaction was recorded by the bank authority on subsequent day i.e. on Monday and in support a letter dated 14.7.2008 issued by the Bank stating that the Bank was operating as a 365 days branch from 07.02.2003 to 01.07.2007 and all transactions done on Sundays and National holidays were being posted on the next working day, was filed. The AO conducted enquiry under section 133(6) from the Bank and also recorded the statement of Shri Nitin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brothers vs. ACIT, 22 Tax World 684 (JD). Any statement recorded at the back of the assessee or any evidence collected by the Revenue authorities should be allowed to rebut by the assessee as held in case of Vimal Chand Golecha vs. ITO Others, 134 ITR 119 (Raj.). The ld. A/R further has drawn our attention on pages 34 to 37 of the paper book and argued that bank itself certified in its letter dated 17th October, 2008 which was submitted before the AO vide his reply dated 11.12.2008 to prove that cash had been withdrawn on 20.11.2005. However, since November 20, 2005 was a Sunday, the said amount had been posted in the account on 21st November, 2005. Therefore, addition made by the AO is deserves to be deleted. The ld. A/R further argued that there was no cash shortage. The ld. CIT (A) must have deleted the addition on its merit itself once she never disagreed with assessee s contentions and the evidences produced before her were neither doubted nor rebutted. Although by doing so, she has indirectly confirmed the addition of ₹ 5,12,566/- without assigning any reason in her order. There was no justification to confirm the addition of ₹ 5,12,566/- in respect to the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded under section 131 of Shri Nitin Gupta in piece meal not in its entirety and also has not given copy to the assessee which is against the principles of natural justice as any evidence collected by the revenue that is to be confronted with the assessee before its use. The assessee asked to supply copy of the statement which was supplied by the AO at the appellate stage. Further assessee also filed the evidences of cash payment to M/s. Jai Hanumant on 20.02.2006 that on same day assessee received ₹ 8,00,000/- from M/s. Goodwill Fincom Pvt. Ltd. against an agreement to sale his shop situated at B-22, Transport Nagar, Jaipur for ₹ 21 lacs entered on 20.02.2006. These evidences were produced before the AO but ld. AO doubted these evidences without any adverse material brought on record. The company is a legal entity under the law. The evidences furnished before the AO which had not been appreciated properly. The ld. CIT (A) also passed a cryptic order. No specific finding has been given by her in her order dated 31.01.2013. She simply reduced ₹ 8,00,000/- from ₹ 12,85,082/- and confirmed the addition of ₹ 4,85,082/-, but no finding regarding the cash ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
