Shri Mohd. Shah Alam, New Delhi V. ACIT, New Delhi

CO 10/DEL/2012

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3222 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 9 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHNA PAUL
• Keywords: Additional evidence; Tax effect
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER CROSS OBJECTION NO. 10/DEL/2012 (IN ITA NO. 5450/DEL/2011) ASSESSMENT YEAR: 2008-09 MOHD. SHAHALAM VS. ACIT, CIRCLE 36(1), SHOP NO. 4, ROYAL PLACE NEW DELHI COMPLEX, LAXMI NAGAR, NEW DELHI 110 092 (PAN: AFGPA6024F) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. C.S. ANAND, CA REVENUE BY : MS. ASHNA PAUL, SR. DR ORDER THIS CROSS OBJECTION HAS BEEN FILED BY THE ASSESSE E AGAINST THE IMPUGNED ORDER DATED 12.9.2011 PASSED BY THE LD. C IT(A)-XXVII, NEW DELHI RELATING TO ASSESSMENT YEAR 2008-09. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. IT IS PERTINENT TO MENTION HERE THAT THE REVENUE HAS FILED THE MAIN APPEAL BEING ITA NO. 5450/DEL/2011 AGAINST TH E IMPUGNED ORDER, WHICH HAS BEEN DISMISSED BY THE TRIBUNAL VID E ITS ORDER DATED 03.02.2016 ON ACCOUNT OF LOW TAX EFFECT AND THE CR OSS OBJECTION 2 FILED BY THE ASSESSEE HAS ALSO BEEN DISMISSED AS IN FRUCTUOUS. BUT LATER ON THE ASSESSEE FILED THE MISC. APPLICATION NO. 26/DEL/2017 (IN CO NO. 10/DEL/2012) FOR RECALLING THE TRIBUNALS O RDER DATED 03.02.2016 PASSED IN ITA NO. 5450/DEL/2011 & CROSS OBJECTION NO. 10/DEL/2012 (IN ITA NO. 5450/DEL/2011) (AY 2008-09) AND ACCORDINGLY, THE ITAT VIDE ITS ORDER DATED 29.9.201 7 HAS ALLOWED THE AFORESAID MISC. APPLICATION FILED BY THE ASSESSEE A ND RESTORE THE CROSS OBJECTION FILED BY THE ASSESSEE. AFTER RESTORING TH IS CROSS OBJECTION, FILED BY THE ASSESSEE, THE PRESENT CROSS OBJECTION CAME UP FOR HEARING BEFORE THE BENCH AND AT THE TIME OF HEARING LD. COU NSEL OF THE ASSESSEE STATED THAT AO HAS MADE THE ADDITION OF RS . 24,50,000/- AND THE LD. CIT(A) HAS REDUCED IT TO RS. 11,00,000/- BY TREATING CASH IN HAND AS UNDISCLOSED INCOME U/S. 68 OF THE I.T. AC T, 1961. HE FURTHER STATED THAT ASSESSEE HAS GIVEN ALL THE NECESSARY EX PLANATION ALONGWITH THE DOCUMENTARY EVIDENCES TO THE REVENUE AUTHORITY, BUT THE SAME HAS NOT BEEN PROPERLY CONSIDERED BY THEM AND THE ADDITI ON IN DISPUTE I.E. AMOUNTING TO RS. 11 LACS WAS WRONGLY BEEN CONFIRME D BY THE LD. CIT(A), WITHOUT APPRECIATING THE EVIDENCE AND EXPLA NATION FILED BY THE ASSESSEE. HE HAS ALSO FILED THE WRITTEN SUBMISSION DATED 13.11.2017 ALONGWITH SOME ADDITIONAL EVIDENCE CONTAINING PAGES 1 TO 32 IN WHICH HE HAS ATTACHED THE COPY OF WRITTEN SUBMISSION DATE D 19.7.2011 ADDRESSED TO CIT(A) IN ASSESSEES OWN CASE AND RELY DATED 25.8.2011; LETTER DATED 13.12.2010 REGARDING THE CASH IN HAND AVAILABLE AS ON 3 OPENING DATE BROUGHT FORWARDED FROM SUSPENSE ACCOU NT WITH TRUST EXTRACT OF RELEVANT CASH BOOK ENTRIES; COPY OF CASH BOOK FOR FY 2006- 07 TO SUBSTANTIATE TO CONTINUITY OF CASH IN HAND AS ON 31.3.2007 AND C/F TO NEXT YEAR; PHOTO COPY OF BALANCE SHEET FOR T HE AY 2007-08 IN ASSESSEES OWN CASE; PHOTO COPY OF ASSESSMENT ORDER FOR AY 2007-08 DATED 4.12.2009 PASSED U/S. 143(3) BY ACIT 36(1), N EW DELHI IN ASSESSEES OWN CASE; LETTER DATED 9.12.2010 EXPLAIN ING THE EACH CASH DEPOSITS ENTRIES IN THE SAVING BANK ACCOUNT OF THE ASSESSEE ALONGWITH SOURCES THEREOF; PHOTOCOPY OF SAVING BANK ACCOUNT A /C NO. 09560100026246 WITH AXIS BANK FOR THE FY 1.4.2007 T O 31.3.2008 IN THE CASE OF MOHD. SHAH ALAM; AND COPY OF CASH BOOK FOLIO 1 & 2 FROM 1.4.2007 TO 19.4.2007 DEPICTING CASH DEPOSIT ENTRIE S OF RS. 5,00,000/- AND RS. 6,00,000/- AS ON 16.4.2007 AND 17.4.2007. H E STATED THAT THE ADDITION IN DISPUTE MAY BE DELETED AND THE CROSS OB JECTION FILED BY THE ASSESSEE MAY BE ALLOWED. 3.1 ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSE AND STATED THAT ASSESSEE HAS NOT FI LED ANY DOCUMENTARY EVIDENCE BEFORE THE AUTHORITIES BELOW AND IF THIS BENCH IS GOING TO ACCEPT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSE E THEN THE ISSUE IN DISPUTE MAY BE SENT BACK TO THE AO FOR VERIFICATION AND DECIDE THE ISSUE AFRESH, AS PER LAW. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE IMPUGNED ORDER AND THE APPLICATION DATED 13.11. 2017 FILED BY THE 4 ASSESSEE UNDER RULE 29 OF THE ITAT RULES, 1963 FOR PRODUCTION OF ADDITIONAL EVIDENCES. I HAVE ALSO PERUSED THE CONTE NTION RAISED BY THE ASSESSEE IN THE SAID APPLICATION WHICH IS REPRODUCE D AS UNDER:- 13TH NOVEMBER 2017 TO THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH- SMC NEW DELHI SIRS, REF: MOHD. SHAHALAM ITA NO, 5450/ DEL/2011 & CO. NO . 10/ DEL/2012 FOR A.Y. 2008-09 SUB: APPLICATION UNDER RULE 29 OF ITAT RULES, 1963 FOR PRODUCTION OF ADDITIONAL EVIDENCES RESPECTED SIR, RESPECTFULLY SUBMITTED: 1 THAT AS REGARDS THE ADDITION OF RS. 11,00,000/- CONFIRMED BY THE ID. CIT(A), OUT OF THE TOTAL ADDITION OF RS. 24,50,000/- MADE BY THE ID. A.O., IT IS RESPECTFULLY POINTED OUT THA T THE ID. CIT(A) HAD REJECTED THE ASSESSEE'S EXPLANATION WITH REGARD TO AVAILABILITY OF CASH IN HAND AT RS. 14,50,000/- OUT OF THE SUSPENSE ACCOUNT, WHILE STATING THAT 'THE APPELLANT HAS FAILED TO EXP LAIN THE SOURCE OF THE SAME WITH DOCUMENTARY EVIDENCE'. 2 THAT IT IS RESPECTFULLY STATED THAT: 5 (A) THE ASSESSEE HAD EXPLAINED THE SOURCE OF CASH DEPOSITED IN HIS BANK ACCOUNT ON TWO OCCASIONS VIZ; RS. 5,00,000/- ON 16.04.2007 AND RS. 6,00,000/- ON 17.04.2007, AS OUT OF THE OPENING CASH OF RS. 15,73,775/-, AS APPEARING IN HIS CASH BOOK; (B) THE ASSESSEE HAD PRODUCED HIS CASH BOOK AND BA NK STATEMENTS / PASS BOOK FOR F.Y. 2007-08, DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS FOR A.Y. 2008-09. AS PER THE CASH BOOK FOR A.Y. 2007-08, THE OPENING CASH BALANCE SHOWN WAS RS. 1,23,775/-. ON THE SAME DAY THE ACCOUNTANT HAD INCREASED THE CASH BY RS. 14,50,000/- (WHICH AMOUNT WAS SHOWN UNDER THE HEAD 'SUSPENSE ACCOUNT' AS ON 31.03.2007); (C) THE ASSESSMENT FOR A.Y. 2007-08 WAS ALREADY DO NE U/S 143(3), DURING WHICH THE ASSESSEE HAD PRODUCED HIS CASH BOOK AND BANK STATEMENTS / PASS BOOKS FOR F.Y. 2006-07. AS PER THE CASH BOOK FOR F.Y. 2006-07 , TOTAL CASH AVAILABLE ON THE LAST DAY WAS RS. 15,73,775/-. HOWEVER, THE ACCOUNTANT HAD SHOWN RS. 14,50,000/- UNDER THE HEAD 'SUSPENSE ACCOUNT' AND RS.1,23,775/- UNDER THE HEAD 'CASH IN HAND' AS ON 31.03.2007. 3 THAT THE ASSESSEE HAD NOT BEEN ALLOWED A SUFFICI ENT OPPORTUNITY TO ADDUCE EVIDENCE TO SUBSTANTIATE HIS CLAIM APROPOS SOURCE OF CASH OF RS. 15,73,775/- (RS . 1,23,775/- + RS. 14,50,000/-) AVAILABLE WITH HIM AS ON 31.03.2007. 4 THAT THE SOURCE OF SUCH CASH AS ON 31.03.2007, W AS THE SURPLUS OF CASH WITHDRAWN OUT OF ASSESSEE'S BAN K 6 ACCOUNTS AND CASH DEPOSITED IN ASSESSEE'S BANK ACCOUNTS IN F.Y. 2006-07, THE ENTRIES OF WHICH WERE RECORDED IN THE CASH BOOK. 5 THAT THE ASSESSEE IS HEREBY SEEKING PERMISSION O F THE HON'BLE BENCH TO FILE PHOTOCOPIES OF ASSESSEE'S BAN K STATEMENTS / PASS BOOK AND ALSO HIS CASH BOOK FOR F.Y. 2006-07, BY WAY OF ADDITIONAL EVIDENCES, TO SUPPORT HIS CLAIM OF HAVING CASH OF RS. 15,73,775/- AS ON 31.03.2007 AS WELL AS ON 01.04.2007. 6 THAT THIS HON'BLE BENCH IS PRAYED TO KINDLY ALLO W SUCH EVIDENCES TO BE ADDUCED. THANKING YOU YOURS TRULY SD/- (MOHD. SHAH ALAM) ASSESSEE ENCL AS ABOVE 4.1 I HAVE ALSO GONE THROUGH THE LIST OF ENCLOSURE S FILED UNDER RULE 29 OF THE ITAT RULES, 1963 CONTAINING PAGES 1 TO 39 IN WHICH THE ASSESSEE HAS ATTACHED THE COPY OF CASH BOOK FOR FY 2006-07; COPY OF BANK STATEMENT (AXIS BANK A/C NO. 6248) FOR FY 2 006-07; COPY OF BANK STATEMENT (UTI BANK A.C NO. 5326) FOR FY 2006- 07 AND COPY OF BANK STATEMENT (PUNJAB & SINDH BANK A/C NO. 933) FO R FY 2006-07. AS I AM NOT COMMENTING UPON THE ADDITIONAL EVIDENCE S FILED BY THE 7 ASSESSEE, AS AFORESAID, HENCE, I AM OF THE CONSIDE RED VIEW THAT ADDITIONAL EVIDENCES FILED BY THE ASSESSEE GOES TO THE ROOT OF THE MATTER AND NEEDS THOROUGH VERIFICATION/INVESTIGATIO N AT THE LEVEL OF THE AO, THEREFORE, I ADMIT THE AFORESAID ADDITIONAL EVI DENCES AND DIRECT THE AO TO VERIFY THE SAME AND THEREAFTER DECIDE THE ISS UE IN DISPUTE, AS PER LAW ONLY WITH REGARD TO RESTRICTED ADDITION OF RS. 11 LACS. 5. IN THE RESULT, THE CROSS OBJECTION FILED BY TH E ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/11/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 17/11/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES