Raj Kumar Agarwal v. Commissioner Of Income Tax

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 9 / 2017 Raj Kumar Agarwal ----Appellant Versus Commissioner Of Income Tax ----Respondent _____________________________________________________ For Appellant(s) : Mr. S.L. PoddarFor Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYASJudgment 15/05/2017 1.By way of this appeal, the appellant has assailed thejudgment and order of the learned Tribunal whereby the Tribunalhas dismissed the appeal and confirmed the order of AO as well asthe CIT(A). 2.Counsel for the appellant has framed the followingsubstantial question of law:- “Whether on the facts and circumstances of thecase the Ld. ITAT was justified under law whileconfirming the addition of Rs. 5 lacs deposited inbank on 14/7/2007 by the assessee moneyreceived back from Smt. Manju Yadav to whomthe said amount was advanced in connection witha deal of property and which was cancelled andthe assessee surrendered the said advancedamount for tax before the authorities asmentioned on page 22 of exhibit.2.” 3.While considering the case, the CIT(A) has observed asunder:- “(vii). It is seen that though evidence was foundduring the course of search regarding making anadvance of Rs. 5 lakh to Smt. Manju Yadav forpurchase of land, but no evidence was foundregarding the return of this advance to him as wasclaimed by the assessee during the course ofassessment proceedings while trying to explain thecash deposit of Rs. 5 lakh in his bank account.However, during the course of earlier appellateproceedings, additional evidence by way of areceipt had been made which is being made part ofthis order as Annexure-A. It is signed allegedly bySmt. Manju Yadav and apart from the signatures ofthe appellant it also has the signatures of witness.Sh. Ramnath Choudhary. The matter went up foradjudication before Hon. ITAT who gave specificdirections regarding the additional evidence that itshould not only be accepted but should also beexamined and verified. In spite of repeatedopportunity during the course of assessment andsubsequently during the appellate proceedings andthe submission of remand report, the appellant wasunable to produce Smt. Manju Yadav or herhusband Sh. Chetram Yadav or the witness to thisreceipt namely Sh. Ramnath Choudhary. Thus, theAO was prevented from following the instructions ofthe Hon. ITAT regarding verification of this receipt. (viii).The AO had been given specificinstructions to send summons to Sh. ChetramYadav, Manju Yadav and Sh. Ramnath Choudharyby me while calling for the remand report. Thesummons were returned with the remark that“unknown” or “left from the address given”.Similarly the notice u/s 131 could not be served onSh. Shankar Lal Sharma at the address given in thereceipt that is 101, Adarsh Nagar, Jaipur, it beingincomplete; nor was the appellant able to providethe correct address. However, Sh. Ram NathChoudhary the witness appeared who categoricallyadmitted that he had been directed by Sh.Rambabu Gupta to sign on the receipt and that hehad no knowledge about the transactions betweenSmt. Manju Yadav and the appellant that isRajkumar Agarwal or her husband; not was anymoney returned before him. Moreover, the AO hasmade a very pertinent observation that thesignatures of Smt. Manju Yadav on this receipt aredifferent from those on the seized agreement tosale on which she had signed on account of having 4.The same was confirmed by the Tribunal and Tribunal in para 6 reads as under:- 4.The same was confirmed by the Tribunal and Tribunal in para 6 reads as under:- “We have heard the rival contentions of both theparties and perused the material available on therecord. As per order passed by the Tribunal in thefirst round, it is for the assessee to establish thatthe money of Rs. 5.00 lacs was returned by Mrs.Manju Yadav as per receipt dated 10/3/2007. Therecord shows that despite repeated opportunitiesgiven to the assessee, the assessee was not ableto produce any evidence or said Mrs. Manju Yadavto prove that the money was given by her. On thecontrary, the ld Assessing officer in the remandreport has submitted that the signature of Mrs.Manju Yadav on the receipts are different from thenature of on the agreement to sale. Further thewitness to the alleged agreement to sell hascategorically mentioned that he had no knowledgeabout the transaction between Mrs. Manju Yadavand the appellant or her husband. In view thereof,we have no other option but to uphold the orderpassed by the ld CIT(A). the contention of the ladAR for the assessee that the assessee hassurrendered the amount of Rs. 5.00 lacs and paidthe tax on that amount, cannot be considered inthese proceedings as the jurisdiction of the ldAssessing Officer and also of the Tribunal in thepresent case, is governed by the direction issuedearlier by the Tribunal vide order dated 22/1/2010.the similar submissions were made by theassessee in the earlier round of litigation.However, the Tribunal do not deem it appropriateto accept the same and after recording thesubmissions, remanded the matter back to the ldAssessing Officer as mentioned hereinablve. In thelight of the above, the appeal is devoid of meritand accordingly, the same is dismissed”. 5.In view of the concurrent finding and the question of lawwhich has been framed. In that view of the matter, nosubstantial question is arises, therefore, the appeal deserves tobe dismissed. The same is dismissed. (VIJAY KUMAR VYAS),J. A.Sharma/91 (K.S. JHAVERI),J.