Sh. Rajender Sharma, Delhi V. ITO, New Delhi

CO 33/DEL/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1200 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 25-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY

Judgement Text

ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SHRI H.S. SIDHU , JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO. 6460 /DEL/201 2 A.Y. : 2008 - 09 INCOME TAX OFFICER, WARD - 2 6 ( 3 ), NEW DELHI ROOM NO.314 - D , VIKAS BHA W AN, NEW DELHI VS. SH. RAJENDER SHARMA , 96, SAINIK ENCLAVE, VIPIN GARDEN, NAWADA, HASTAL MOHAN GARDEN, NEW DELHI 110 059 (PAN: AVRPS9895D) (APPELLANT) (RESPONDENT) AND C.O. NO. 33 /DEL/201 3 (IN ITA NO. 6460/ DEL/201 2) A.Y. : 2008 - 09 SH. RAJENDER SHARMA , 96, SAINIK ENCLAVE, VIPIN GARDEN, NAWADA, HASTAL MOHAN GARDEN, NEW DELHI 110 059 (PAN: AVRPS9895D) V S. INCOME TAX OFFICER, WARD - 2 6 ( 3 ), NEW DELHI ROOM NO.314 - D , VIKAS BHA W AN, NEW DELHI (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. VIKRAM SAHAY, SR. DR ASSESSEE BY : NONE DATE OF HEARING : 25 - 8 - 201 5 DATE OF ORDER : 0 1 - 9 - 201 5 ORDER PER H.S. SIDHU, JM: - TH ESE ARE THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE EMANATE OUT OF THE COMMON O RDER DATED 23 .1 0 .201 2 PASSED BY THE LD. CIT(A) - XXIV , NEW DELHI PERTAINING TO ASSESSMENT YEAR 200 8 - 0 9 . ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 2 2. THE GROUNDS RAISED IN THE REVENUE S APPEAL READ AS UNDER: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE , AND IN LAW CIT(A) E RRED IN - 1. DELETING THE ADDITION OF RS. 10 , 80 ,000/ - MADE BY THE AO ON PROTECTIVE BASIS AFTER RELYING ON THE ASSESSEE S SUBMISSION THAT MONEY BELONGED TO SH. NARESH BALIYAN. 2. DELETING THE ADDITION WITHOUT EXAM INING THE FATE OF SUBSTANTIVE ADDITION MADE IN CASE OF SH. NARESH BALIYAN. 3. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 3. THE GROUNDS RAISED IN THE ASSESSEE S CROSS OBJECTION READ AS UNDER: - 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE CIT(A) HAS RIGHTLY DELETE THE ADDITION MADE ON PROTECTIVE BASIS IN THE HANDS OF ASSESSEE. 2. THAT THE ADDITION IS UNJUSTIFIED AND UNSUSTAINABLE IN LAW AS WELL AS ON MERITS IN VIEW OF THE COMPLETE DETAILS AND DO CUMENTS BEING FURNISHED BEFORE AO. 3. THAT WITHOUT PREJUDICE, NO ADDITION CAN BE MADE EVEN ON THE PROTECTIVE BASIS UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. REVENUE S APPEAL 4. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOT H THE PARTIES, THEREFORE, NO NEED TO REPEAT HERE FOR THE SAKE OF BREVITY. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIE W ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 3 THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. LD. DR RELIED UPON THE ORDER PASSED BY THE AO. AFTER HEARING THE LD. DR AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT LD. CIT(A) HAS DECIDED THE ISSUE IN DISPUTE VIDE PARA NO. 2 TO 5. THE SAME ARE REPRODUCED HEREUNDER TO FACILITATE READY REFERENCE: - 2. RETURN OF INCOME WAS FILED ON 17.03.2009 DECLARING INCOME AT RS.1,06,250/ - . THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE 143(2) WAS ISSUED O N 14.09.2009. IN THIS CASE, THE AO HAD RECEIVED AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.11,21,000/ - IN HIS SAVING BANK ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK, KAKROLA BRANCH. ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF DE POSIT. THE ASSESSEE SUBMITTED AN AFFIDAVIT DATED 21.11.2010, STATING THAT RS.10,80,000/ - WAS DEPOSITED IN CASH ON VARIOUS DATES OUTSIDE DELHI BY SH. NARESH BALIYAN FOR WHOM THE APPELLANT WAS WORKING DURING THAT PERIOD. SH. NARESH BALIYAN HAD RECEIVED PAYME NT OF RS.6,80,000/ - FOR SALE OF PLOT TO SH. MURLI MANOHAR OF DISTT. NAWADA, BIHAR AND RS.4 LACS FOR SALE OF PLOT TO SH. SHAILENDAR KUMAR OF DISTT. DHANBAD, JHARKHAND. THE AO MENTIONED IN THE ASSESSMENT ORDER THAT SH. NARESH BALIYAN HAD ADMITTED IN HIS CONF IRMATION THAT THE AMOUNT DEPOSITED IN THE BANK OF THE APPELLANT HAS BEEN TRANSFERRED/RECEIVED BY HIM AND THAT HE WAS THE BENEFICIARY OF THE SAID AMOUNT. THE AO HAS THEREFORE GIVEN A FINDING THAT AMOUNT OF RS.10,80,OOO/ - HAS TO BE CONSIDERED AS INCOME IN TH E HANDS OF SH. NARESH ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 4 BALIYAN ASSESSED WITH ITO WARD 26(4), NEW DELHI WITH PAN NUMBER ADQPB8836L. THE AO FORWARDED THIS INFORMATION TO ITO WARD 26(4), BUT, TO BE ON THE SAFE SIDE, HE ADDED THE AMOUNT OF RS.10,80,OOO/ - TO THE INCOME OF THE APPELLANT ON PROT ECTIVE BASIS. 3. AGGRIEVED BY THE ORDER OF THE AO, THE APPELLANT IS IN APPEAL BEFORE THE UNDERSIGNED AND HAS IMPUGNED THE ADDITIONS MADE' TO HIS INCOME. 4.1 THE APPELLANT SUBMITTED THAT SINCE IT HAS ALREADY BEEN ESTABLISHED THAT THE AMOUNT OF RS.10,80,0 00/ - BELONGED TO SH. NARESH BALIYAN, THE MONEY SHOULD NOT HAVE BEEN ADDED TO HIS INCOME. ON PROTECTIVE BASIS. I AGREE WITH THE CONTENTION OF THE APPELLANT AND FINDING MERIT IN THE SAME, THE AMOUNT OF RS.10,80,OOO/ - ADDED TO THE INCOME OF THE APPELLANT ON P ROTECTIVE BASIS IS HEREBY DELETED. 5. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 6.1 AS PER THE DOCUMENTARY EVIDENCE FILED BY THE REVENUE IN THE SHAPE OF PAPER BOOK VIDE PARA 4 & 5 READS AS UNDER: - 4. AN UNDERTAKING GIVEN BY SH. NARESH BALY AN THAT AMOUNT OF RS. 10,80,000/ - WAS DEPOSITED IN THE ACCOUNT OF SH. RAJENDER SHARMA. 5. AS PER THE OFFICE REPORT OF THIS WARD 26(4), NEW DELHI IT IS NOTICED THAT NO APPEAL HAS BEEN FILED BY SH. NARESH BALYAN AGAINST THE ASSESSMENT ORDER PASSED U/S. 14 3(3)/147 ON 31.3.2014. ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 5 7. WE HAVE ALSO PERUSED THE LETTER DATED 13.8.2014 WRITTEN BY MS. SANGEETA KAPPOR, INCOME TAX OFFICER, WARD 26(3), NEW DELHI TO SH. MANOJ CHOPRA, SR. DR, ITAT, F - BENCH, KHAN MARKET, NEW DELHI. THE CONTENTS OF THE AFORESAID LETT ER DATED 13.8.2014 ARE REPRODUCED HEREUNDER: - F.NO. ITO WARD 26(3)/2014 - 15/ DATED 13.8.2014 TO SH. MANOJ CHOPRA, SR. DR, ITAT, F - BNENCH, KHAN MARKET, NEW DELHI SIR, SUB: - SUBMITTED THE REQUISITE INFORMATION AS PER OUR TELEPHONIC CONVERSATION, KINDLY FIND ENCLOSED HEREWITH AN ASSESSMENT ORDER UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961 PASSED BY THE ITO WARD 26(4), NEW DELHI IN THE CASE OF SH. NARESH BALIYAN, H.NO. 125, SHYAM PARK, NAWADA, NEW DELHI 110 059. IN THIS REGARD, IT IS SUBMITTED THAT AO WARD 26(4) WAS ASKED TO SH. NARESH BALIYAN TO EXPLAIN THE REASONS FOR RECEIVING CASH AMOUNTING TO RS. 10,80,000/ - FROM SH. RAJENDER SHARMA. IN RESPONSE TO THE SAID QUERY SH. NARESH BALIYAN STATED, IN TH IS REGARD IT IS SUBMITTED THAT SH. RAJENDER SHARMA WAS WORKING WITH ME FOR SALE / PURCHASE OF PLOTS, FLATS ON COMMISSION BASIS AND THE SAME AMOUNT IS DEPOSITED BY CONCERNED PARTY IN HIS ACCOUNT AND SUBSEQUENTLY THE SAME AMOUNT IS TRANSFERRED IN MY ACCOUNT AND THE SAME AMOUNT IS ALSO I SHOWN IN MY RETURN OF INCOME FOR THE AY 2008 - 09. IT IS ALSO STATED, THAT AS PER OFFICE RECORD OF THE AO, WARD 26(4), NEW DELHI THE ASSESSEE (SH. NARESH BALIYAN) IS NOT FILED ANY APPEAL AGAINST THE ORDER AT THIS TIME. YOURS FAITHFULLY, ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 6 SD/ - (SANGEETA KAPOOR) INCOME TAX OFFICER, WARD 26(30, NEW DELHI 8. KEEPING IN VIEW OF THE AFORESAID ORDER PASSED BY THE LD. CIT(A) AS WELL AS THE PAPER BOOK FILED BY THE LD. DR ON THE ISSUE IN DISPUTE, WE ARE OF T HE VIEW THAT THE SUBSTANTIAL ASSESSMENT HAS BEEN MADE IN THE CASE OF NARESH BALIYAN FOR ASSTT. YEAR 2008 - 09, WHO HAS DEPOSITED ALL TAX DUE WITH THE INCOME TAX DEPARTMENT AND HAS NOT FILED ANY APPEAL BEFORE THE HIGHER AUTHORITIES MEANING THEREBY HE ACCEPTED THE ASSESSMENT ORDER. THE ASSESSEE ASSESSMENT IS PROTECTIVE ASSESSMENT, THEREFORE, THIS PROTECTIVE ASSESSMENT HAS RIGHTLY BEEN CANCELLED BY THE LD. CIT(A) BY PASSING A WELL REASONED ORDER. NO INTERFERENCE IS CALLED FOR IN THE IMPUGNED ORDER ON OUR PART, HENCE, WE UPHOLD THE IMPUGNED ORDER DATED 23.10.2012 PASSED BY THE LD. CIT(A) AND ACCORDINGLY THE DISMISS THE APPEAL OF THE REVENUE. ASSESSEE S CROSS OBJECTION 9. ASSESSEE HAS FILED THE CROSS OBJECTION, WHICH IS ONLY SUPPORTING THE LD. CIT(A) ORDER. AS WE HAVE ALREADY UPHELD THE ORDER OF THE LD. CIT(A) AND DISMISSED THE REVENUE S APPEAL, AS AFORESAID, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS B ECOME INFRUCTUOUS, HENCE, THE SAME IS DISMISSED AS INFRUCTUOUS. ITA NO. 6460 /DEL/201 2 & CO NO. 33 /DEL/201 3 7 1 0 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND C ROSS O BJECTION FILED BY THE ASSESSEE IS ALSO STANDS DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 0 1 - 0 9 - 201 5 . S D / - S D / - [ L.P. SAHU ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 0 1 / 0 9 /201 5 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