High Court Of Punjab & Haryana
CIT vs. Ashok Arora
Section 69
Asst. Year 1997-98
J.S. Khehar & Hemant Gupta, JJ.
IT Appeal No. 59 of 2009
9th March, 2009
Counsel Appeared : Yogesh Putney, for the Appellant
JUDGMENT
J.S. KHEHAR, J. :
The assumption that the respondent-assessee had evaded his tax liability was made by the AO (in the assessment order dt. 24th March, 2005) on the basis of material depicting that the assessee had invested in fixed deposits in banks i.e., the Bank of Maharashtra and the Punjab National Bank. The explanation tendered by the respondent- assessee was that the aforesaid deposits were made out of money received from the sale of lottery tickets. Insofar as the assessment under reference is concerned, i.e., for the asst. yr. 1997-98, the respondent-assessee had not filed any return of income. The AO was of the view that income from the sale of lottery tickets invested as fixed deposits in different banks, as well as interest derived by the respondent-assessee on the aforesaid fixed deposits had escaped assessment. A notice under s. 148 of the IT Act, 1961, was issued to the respondent-assessee on 22nd March, 2004, after getting appropriate approval. The aforesaid notice was served on the respondent- assessee on 24th March, 2004. In response to the aforesaid notice, the respondentassessee filed a return (for the asst. yr. 1997-98) declaring his income at Rs. 1,64,614. Statutory notices under ss. 142 and 143 of the IT Act, 1961, were issued to the respondentassessee. His response was sought through a detailed questionnaire furnished to him. Summons were also issued to the bankers with whom the respondent-assessee had maintained his fixed deposits. Summons were also issued to the Rajasthan State Lotteries, Jaipur, for gathering further information on the issue. In response to the questionnaire furnished to the respondent-assessee, he submitted his reply. He also produced his books of account. On the basis of the aforesaid exercise carried out by the AO, the AO arrived at the conclusion that the respondent-assessee had deposited Rs. 63,23,642 by way of fixed deposits with different banks, without satisfactorily explaining the source of the aforesaid investment. Since the AO was not satisfied with the explanation tendered by the respondent-assessee, the same was treated as unexplained investment under s. 69 of the IT Act, 1961. As such, an addition of Rs. 1,25,76,000 was made by the AO to the income of the respondent-assessee.
Besides the aforesaid addition, penalty proceedings were initiated against the respondentassessee under s. 271(1)(c) of the IT Act, 1961, on the ground that the respondent-assessee had failed to file his return of income within the postulated time. Additionally, penalty proceedings were also initiated against the respondent-assessee under s. 271B of the IT Act, 1961, as he had failed to get his accounts audited. Dissatisfied with the determination rendered by the AO, as also penalty proceedings initiated against him, the respondent-assessee preferred an appeal before the CIT(A), Faridabad. Before the aforesaid appellate authority, the respondent- assessee asserted that investments in the nature of fixed deposits were made by him in different banks out of cash received from vendors (of the lottery tickets). To substantiate his aforesaid claim, the respondent-assessee relied on confirmation of all the vendors on plain paper, along with affidavits of as many as 20 such vendors. In his effort to repudiate an inference being drawn against him for not producing the vendor, the contention of the respondent-assessee was that he had closed the said lottery business about ten years before the receipt of any notice by him, and as such it was impossible for him to trace the vendor. The respondent-assessee also produced confirmation from the vendors before the CIT(A), Faridabad, with a request that the same be taken on record as additional evidence under r. 46A of the IT Rules, 1962. Besides pointedly relying on the aforesaid evidence, the respondent-assessee also asserted that in identical circumstances similar pleas raised by the respondent-assessee for the asst. yr. 1996-97 had been accepted, whereupon the addition made for the aforesaid assessment year was deleted.
Having taken into consideration the factual position depicted by the assessee, as has been noticed in the foregoing paras, as well as the fact that the AO who appeared before the CIT(A), Faridabad, acknowledged that no new facts had been brought on the record for the asst. yr. 199798 (besides the material which had been taken into consideration in respect of an identical controversy pertaining to the preceding asst. yr. 1996-97) as also the fact that the AO had also verified the genuineness of some of the vendors by deputing Inspectors, and had arrived at the conclusion that the same were genuine. As also the fact that the present controversy in respect of the asst. yr. 1997-98 was identical to the controversy which was earlier adjudicated upon for the asst. yr. 1996-97, the CIT(A), Faridabad, arrived at the conclusion that it could not be held that the FDR deposits made in the name of the respondent-assessee valuing Rs. 49,76,000 in the Bank of Maharashtra and Rs. 76,00,000 in the Punjab National Bank had been made from out of unexplained funds. The CIT(A), Faridabad, accordingly, deleted the aforesaid addition made in the income of the respondent-assessee based thereon. Dissatisfied with the order passed by the CIT(A), Faridabad, dt. 11th May, 2006, the Revenue preferred an appeal before the Tribunal. For the same reasons as were recorded by the CIT(A), the Tribunal dismissed the appeal preferred by the Revenue vide an order dt. 3rd July, 2008.
The order passed by the CIT(A), Faridabad and the Tribunal are subject-matter of challenge through the instant appeal.
We have considered the submissions advanced by the appellant. In fact in their entirety, the submissions advanced on behalf of the Revenue are based on the order passed by the AO dt. 24th March, 2005.
We have considered the aforesaid submissions advanced by the learned counsel for the appellant. We however, find no merit therein. Firstly, it is not a matter of dispute that an identical controversy as against the same assessee pertaining to the asst. yr. 1996-97 was allowed in favour of the respondent-assessee on the same facts and circumstances, as in the present appeal. Secondly, the respondent-assessee had produced confirmations from all vendors on plain paper, along with affidavits of as many as 20 such vendors affirming the transfer of funds by them to the respondent-assessee on account of sale/purchase of lottery tickets. Thirdly, his excuse for not producing the vendors for verification was that he had closed the instant business about a decade before the issue was raised, and as such, it was not possible for him to trace all the vendors. Fourthly, out of the confirmations/affidavits produced by the respondent-assessee verification was carried out by the AO. Same verification was also sought to be conducted through an Inspector of the Department. Allconfirmations/affidavits which were sought to be verified were found to be genuine. Fifthly, it was acknowledged by the AO before the CIT(A) that no new facts had been brought on the record of the controversy pertaining to the asst. yr. 1997-98 besides those which were taken into consideration for the asst. yr. 1996-97.
In view of the above, there is absolutely no scope for interference with the orders passed by the CIT(A) dt. 11th May, 2006, and the Tribunal dt. 3rd July, 2008.
For the reasons recorded hereinabove, we find no merit in this appeal, the same is accordingly dismissed.
[Citation : 329 ITR 578]
