Kailash Chand Sharma Near Charbhuja Mandir v. Order

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No.111/2023 Kailash Chand Sharma Near Charbhuja Mandir, Aged About 64Years, Old Kekri, Kekri, Ajmer - 305404 ----Appellant Versus Commissioner Of Income Tax 1, New Central Revenue BuildingStatue Circle Jaipur (Raj.)----RespondentFor Appellant(s) : Ms.Dolly Sharma, Adv. for Mr.PrateekKasliwal, Adv. For Respondent(s): Mr.AnuragMathur,Adv.forMr.Shantanu Sharma, Adv. HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 05/07/2024 -AVNEESH JHINGAN, J (ORAL): 1.This appeal is filed under Section 260A of the Income TaxAct, 1961 (hereafter ‘the Act’) against the order dated 22.06.2021passed by the Income Tax Appellate Tribunal, Jaipur Bench, Jaipur(hereafter ‘the Tribunal’). 2.The brief facts are that the appellant is income tax assesseeand filed the income tax return for Assessment Year of 2014-15,declaring income from pension of Rs.6,05,250/-. The Departmentgot information of cash deposit of Rs.47,30,000/- in the bankaccount of the appellant. Notice under Section 143(3) of the Actwas issued. The appellant replied that cash deposited belonged toKana Ram, who had sold an immovable property and was nothaving a bank account. Further that the amount was to be returned to Kana Ram on his opening the bank account. KanaRam was summoned, he filed reply through his counsel taking acontrary stand. Addition of Rs. 34,50,000/- was made in theassessment finalized vide order dated 26.12.2018. The first appealwas dismissed on 22.02.2019. The appellant failed before thetribunal hence, the present appeal. 3.The following substantial questions of law have been proposed in the appeal:- i)Whether the Order of the Ld. ITAT haserred in law and in the facts and circumstancesof the case in confirming the addition ofRs.10,15,921/- as cash credit levied by theA.O. u/s 68 of the Income Tax Act.ii)Whether facts put forth by the Appellant-Assessee in an Affidavit could be disregardedwithout any material to dislodge the positiontaken by the Appellant-Assessee?erred in law and in the facts and circumstancesof the case in confirming the addition ofRs.10,15,921/- as cash credit levied by theA.O. u/s 68 of the Income Tax Act.ii)Whether facts put forth by the Appellant-Assessee in an Affidavit could be disregardedwithout any material to dislodge the positiontaken by the Appellant-Assessee? iii)Whether in the facts and circumstances ofthe case the ITAT was justified in law being notacting as the last fact finding authority?the case the ITAT was justified in law being notacting as the last fact finding authority? iv)Whether in the facts & circumstances ofthe case the ITAT has acted perversely?the case the ITAT has acted perversely? 4.Learned counsel for the appellant submits that the appellantdischarged the onus by explaining the cash deposited was of KanaRam and it was for assessing officer to bring out the truth.Contention is that the account statements were attached to showthat the cash deposited was transferred at the instance of KanaRam. Reliance is placed upon the decision of the Delhi High Courtin the case of Commissioner of Income Tax Vs. DivineLeasing and Finance Ltd. reported in [(2008)299 ITR 268(Delhi)]. 5.Learned counsel for the Department defends the impugnedorder and submits that the appellant failed to explain the cashdeposit made in the bank account. 6.The appellant failed to discharge the onus of explaining thecash deposit. The explanation put forth fell flat, on denial by Mr.Kana Ram that cash belonged to him. No income tax returns ofKana Ram, were produced to establish that the sale of immovableproperty was declared in the returns. The credit worthiness ofkana Ram was not proved. 5.Learned counsel for the Department defends the impugnedorder and submits that the appellant failed to explain the cashdeposit made in the bank account. 6.The appellant failed to discharge the onus of explaining thecash deposit. The explanation put forth fell flat, on denial by Mr.Kana Ram that cash belonged to him. No income tax returns ofKana Ram, were produced to establish that the sale of immovableproperty was declared in the returns. The credit worthiness ofkana Ram was not proved. 7.The explanation that the amount of Kana Ram was depositedin the bank account of the appellant, was falsified by denial ofKana Ram. The stand set up that the amount was to betransferred to Kana Ram on his opening the bank account waslater changed. It was stated that the cash amount weretransferred to various persons at the instance of Kana Ram. Itwould be pertinent to note that even this stand was notsubstantiated. The bank statements produced had debit entriesbut no where indicated that transfers were made at the instanceof Kana Ram. 8.Reliance on the decision of the Delhi High Court in the caseof Commissioner of Income Tax Vs. Divine Leasing and Finance Ltd. (supra) is of no avail. The Delhi High Court wasdealing with the issue where the subscription received by a publiclimited company from a public issue was doubted. On failure ofAssessing Officer to bring on record the material evidence toindicate that shareholders were benamidars or fictitious persons orpart of capital represented the income of the company was fromundisclosed sources, the deletion of addition was upheld. In the case in hand the cash was deposited in bank account of appellantand there was failure to explain the source of cash. 9.No case is made out for interference in concurrent findingsrecorded by both the appellate authorities. No question of lawmuch less substantial question of law arises for consideration. 10.The appeal is dismissed. (ASHUTOSH KUMAR), J(AVNEESH JHINGAN), J HS/MADAN/39 Reportable:- Yes