HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 9 / 2017 Raj Kumar Agarwal ----Appellant Versus Commissioner Of Income Tax ----Respondent For Appellant(s) : Mr. S.L. Poddar For Respondent(s) : HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 15/05/2017 1. By way of this appeal, appellant has assailed judgment and order of learned Tribunal whereby Tribunal has dismissed appeal and confirmed order of AO as well as CIT(A). 2. Counsel for appellant has framed following substantial question of law:- Whether on facts and circumstances of case Ld. ITAT was justified under law while confirming addition of Rs. 5 lacs deposited in bank on 14/7/2007 by assessee money received back from Smt. Manju Yadav to whom said amount was advanced in connection with deal of property and which was cancelled and assessee surrendered said advanced amount for tax before authorities as mentioned on page 22 of exhibit.2. (2 of 4) [ITA-9/2017] 3. While considering case, CIT(A) has observed as under:- (vii). It is seen that though evidence was found during course of search regarding making advance of Rs. 5 lakh to Smt. Manju Yadav for purchase of land, but no evidence was found regarding return of this advance to him as was claimed by assessee during course of assessment proceedings while trying to explain cash deposit of Rs. 5 lakh in his bank account. However, during course of earlier appellate proceedings, additional evidence by way of receipt had been made which is being made part of this order as Annexure-A. It is signed allegedly by Smt. Manju Yadav and apart from signatures of appellant it also has signatures of witness. Sh. Ramnath Choudhary. matter went up for adjudication before Hon. ITAT who gave specific directions regarding additional evidence that it should not only be accepted but should also be examined and verified. In spite of repeated opportunity during course of assessment and subsequently during appellate proceedings and submission of remand report, appellant was unable to produce Smt. Manju Yadav or her husband Sh. Chetram Yadav or witness to this receipt namely Sh. Ramnath Choudhary. Thus, AO was prevented from following instructions of Hon. ITAT regarding verification of this receipt. (viii). AO had been given specific instructions to send summons to Sh. Chetram Yadav, Manju Yadav and Sh. Ramnath Choudhary by me while calling for remand report. summons were returned with remark that unknown or left from address given . Similarly notice u/s 131 could not be served on Sh. Shankar Lal Sharma at address given in receipt that is 101, Adarsh Nagar, Jaipur, it being incomplete; nor was appellant able to provide correct address. However, Sh. Ram Nath Choudhary witness appeared who categorically admitted that he had been directed by Sh. Rambabu Gupta to sign on receipt and that he had no knowledge about transactions between Smt. Manju Yadav and appellant that is Rajkumar Agarwal or her husband; not was any money returned before him. Moreover, AO has made very pertinent observation that signatures of Smt. Manju Yadav on this receipt are different from those on seized agreement to sale on which she had signed on account of having (3 of 4) [ITA-9/2017] received advance from appellant. 4. same was confirmed by Tribunal and Tribunal in para 6 reads as under:- We have heard rival contentions of both parties and perused material available on record. As per order passed by Tribunal in first round, it is for assessee to establish that money of Rs. 5.00 lacs was returned by Mrs. Manju Yadav as per receipt dated 10/3/2007. record shows that despite repeated opportunities given to assessee, assessee was not able to produce any evidence or said Mrs. Manju Yadav to prove that money was given by her. On contrary, ld Assessing officer in remand report has submitted that signature of Mrs. Manju Yadav on receipts are different from nature of on agreement to sale. Further witness to alleged agreement to sell has categorically mentioned that he had no knowledge about transaction between Mrs. Manju Yadav and appellant or her husband. In view thereof, we have no other option but to uphold order passed by ld CIT(A). contention of lad AR for assessee that assessee has surrendered amount of Rs. 5.00 lacs and paid tax on that amount, cannot be considered in these proceedings as jurisdiction of ld Assessing Officer and also of Tribunal in present case, is governed by direction issued earlier by Tribunal vide order dated 22/1/2010. similar submissions were made by assessee in earlier round of litigation. However, Tribunal do not deem it appropriate to accept same and after recording submissions, remanded matter back to ld Assessing Officer as mentioned hereinablve. In light of above, appeal is devoid of merit and accordingly, same is dismissed . 5. In view of concurrent finding and question of law which has been framed. In that view of matter, no substantial question is arises, therefore, appeal deserves to be dismissed. (4 of 4) [ITA-9/2017] same is dismissed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/91 Raj Kumar Agarwal v. Commissioner of Income-tax