Shri Shirley Sinclair, New Delhi V. ACIT, New Delhi

CO 5/DEL/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9839 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 15-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SATPAL SINGH
• Keywords: Salary income; Additional evidence
• Section: 133(6)

Judgement Text

ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `G NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.5273/DEL/2011 ASSESSMENT YEAR : 2007-08 ASSTT.COMMISSIONER OF INCOME TAX, VS SHIRL EY SINCLAIR, CIRCLE 42(1), ROOM NO.302, 71, MASJID ROAD, 3 RD FLOOR, MAYUR BHAWAN, JANGPURA, NEW DELHI. CONNAUGHT PLACE, (PAN: AMLPS2134C) NEW DELHI. C.O. NO. 5/DEL/2012 (IN I.T.A.NO.5273/DEL/2011) ASSESSMENT YEAR : 2007-08 SHIRLEY SINCLAIR, VS ACIT, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SATPAL SINGH, SR.DR RESPONDENT BY : NONE O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE AS WELL AS CO OF THE AS SESSEE HAVE BEEN PREFERRED AGAINST THE ORDER OF THE CIT(A)-XXX, NEW DELHI DATED 30.09.2011 IN APPEAL NO. 623/09-10 FOR AY 2007-08. GROUND RAISED BY THE REVENUE IN ITA NO. 5273/D/2011 2. THE REVISED GROUNDS RAISED BY THE REVENUE READ A S UNDER:- ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 2 1. ADMITTING THE ADDITIONAL EVIDENCE IN CONTRAVENT IONS OF RULE 46A WITHOUT GIVING AN OPPORTUNITY TO THE AO . 2. DELETING THE ADDITION OF RS. 10 LACS AS MADE UN DER THE HEAD INCOME FROM OTHER SOURCES IN WHICH ASSESSEE SO LD THE JEWELLERY TO SIX DIFFERENT JEWELERS AND DEPOSIT ED IN HER BANK ACCOUNT AS CASH AND THEN THE SAME WAS TRANSFERRED TO MOTHER'S ACCOUNT ON SAME DATE. IGNOR ING THE FACT THAT THE ASSESSEE WAS GIVEN MANY OPPORTUNI TIES AND HE FAILED TO PROVE THE GENUINENESS OF THE SALE TRANSACTIONS AND ALSO FAILED TO EXPLAIN AS TO HOW T HE JEWELLERY WERE SOLD AT JAIPUR AND MUMBAI ON THE SAM E DAY, MOREOVER NOTICE U/S 133(6) RETURNED BACK UNSER VED. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, AD D OR SUBSTITUTE THE GROUNDS OF APPEAL' 3. BRIEFLY STATED, THE FACTS GIVING RISE TO THI S APPEAL ARE THAT THE ASSESSEE FILED A RETURN ON 13.08.2007 DECLARING A TOTAL INCO ME OF RS.4,98,104/- COMPRISING INCOME FROM SALARY AND INCOME FROM OTHER SOURCES. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY TH ROUGH CASS AND A NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS SERVED O N THE ASSESSEE. THE AO CONSIDERED AND REJECTED THE EXPLANATION OFFERED BY THE ASSESSEE AND CONCLUDED THE ASSESSMENT WITH A FINDING THAT THE PU RPORTED SALE TRANSACTIONS OF SALE OF JEWELLERY ARE NOT GENUINE AND HAD NEVER TAKEN PLACE AND ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE PURPORTE D JEWELLERY SALE TRANSACTIONS AND THE AO ADDED THE AMOUNT OF RS. 10 LAKH TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER S OURCES. ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 3 4. BEING AGGRIEVED BY THE ABOVE ASSESSMENT OR DER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHICH WAS PARTLY ALLOWE D ON THE ISSUE OF IMPUGNED ADDITION MADE BY THE AO ACCEPTING THE WRIT TEN SUBMISSIONS AND EXPLANATIONS OF THE ASSESSEE IN THIS REGARD. NOW, THE AGGRIEVED REVENUE IS BEFORE THIS TRIBUNAL WITH THE GROUNDS AS REPRODUCED HEREINABOVE. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION TO SUPPORT HIS CASE. 5. WHEN THE CASES WERE CALLED FOR HEARING, NEIT HER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE US DESPITE DUE SERVI CE OF NOTICE AND WE ALSO NOTE THAT THERE IS NO APPLICATION FOR ADJOURNMENT O N BEHALF OF THE ASSESSEE FOR THESE CASES. AFTER CAREFUL PERUSAL OF THE RECORD, WE FOUND IT APPROPRIATE TO DECIDE THE APPEAL OF THE REVENUE AND C.O. OF THE AS SESSEE AFTER HEARING LD. DR OF THE REVENUE AND WE PROCEED TO DECIDE THE CASE S ACCORDINGLY. 6. APROPOS GROUND RAISED BY THE REVENUE, WE HAV E HARD ARGUMENTS OF LD. DR AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLAC ED ON RECORD. LD. DR SUBMITTED THAT THE CIT(A) ADMITTED AND CONSIDERED A DDITIONAL EVIDENCE OF THE ASSESSEE IN CONTRAVENTION OF RULE 46A WITHOUT C ONFRONTING THE SAME TO THE AO AND WITHOUT GIVING AN OPPORTUNITY TO THE AO TO COMMENT ON ADDITIONAL EVIDENCE. THE DR FURTHER CONTENDED THAT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 10 LAKH A S MADE UNDER THE HEAD INCOME FROM OTHER SOURCES IN WHICH THE ASSESSEE S OLD JEWELLERY TO SIX ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 4 DIFFERENT JEWELLERS AND DEPOSITED THE SALE PROCEED TO HIS BANK ACCOUNT OF HIS CASH AND THE SAME WAS TRANSFERRED TO HER MOTHERS B ANK ACCOUNT ON THE SAME DATE IGNORING THE FACT THAT THE ASSESSEE WAS GIVEN MANY OPPORTUNITIES BUT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE SAL E TRANSACTIONS AND TO EXPLAIN AS TO HOW THE JEWELLERY WAS SOLD AT JAIPUR AND MUMBAI ON THE SAME DATE. 7. THE DR SUBMITTED THAT THE IMPUGNED ORDER MAY BE SET ASIDE BY RESTORING THAT OF THE AO. ON CAREFUL PERUSAL OF IM PUGNED ORDER, WE NOTE THAT THE CIT(A) HAS GRANTED RELIEF FOR THE ASSESSEE WITH FOLLOWING FINDINGS AND CONCLUSION:- 6.8 THE ORDER OF THE A.O, AND THE WRITTEN SUBMISSI ON OF THE APPELLANT AND ARGUMENT OF THE AR HAVE BEEN CONSIDERED. THERE IS NO DOUBT AS TO THE FACT THAT A CLOSE NEXUS EXISTED BETWEEN THE RECEIPT OF MONEY INTO THE BANK ACCOUNT AND IMMEDIATE TRANSFER OF THE AMOUNT TO THE ACCOUNT OF THE MOTHER ON THE SAME DATE. THE BANK STATEMENT WAS EXAMINED AND THE FACT IS EVIDENT FROM THE STATEMENT ITSELF. THE ASSESSEE STAND IS CORRECT ON THIS ACCOUNT AS THE TRANSACTION HAPPENED ON THE VERY SAM E DATE. THE ASSESSEE HAS ALSO PRODUCED CONFIRMATIONS FROM THE PARTIES TO WHOM JEWELLERY WAS SOLD AND IN VIEW OF THAT THE TRANSACTIONS ENTERED ARE HELD TO BE GENUIN E. IN THE CASE OF OUTSTATIONED PARTIES FOR ENQUIRY, THE A O SHOULD HAVE TAKEN HELP OF LOCAL I.T.O/INSPECTOR, TO STRENGTHEN THE CASE OF DEPARTMENT. HENCE THE ADDITI ON OF RS 10 (TEN) LACS UNDER THE HEAD INCOME FROM OTHER SOURCES MADE TO THE INCOME OF THE ASSESSEE IS DELET ED. ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 5 8. IN VIEW OF ABOVE, WE OBSERVE THAT ON VERIFICATIO N OF BANK STATEMENT OF THE ASSESSEE AND HER MOTHER, THE CIT(A) REACHED TO A CONCLUSION THAT THE FACTS ARE CLEAR FROM THE STATEMENT ITSELF AS THE TR ANSACTION HAPPENED ON THE VERY SAME DATE. THE CIT(A) HAS ALSO HELD THAT THE ASSESSEE HAS ALSO PRODUCED CONFIRMATION FROM THE SAME PARTIES TO WHOM JEWELLERY WAS SOLD. IN VIEW OF THAT THE TRANSACTIONS ENTERED WERE HELD TO BE GENUINE. THE CIT(A) ALSO POINTED OUT THAT THE AO SHOULD HAVE TAK EN HELP OF LOCAL ITO/INSPECTOR TO STRENGTHEN HIS ACTION BUT THE AO F AILED TO DO SO. THEREFORE, THE ADDITION MADE BY THE AO WAS NOT FOUND TO BE SUS TAINABLE AND THE SAME WAS DELETED BY ACCEPTING EXPLANATION OF THE ASSESSE E. WE ARE UNABLE TO SEE ANY INFIRMITY OR ANY VALID REASON TO INTERFERE WITH THE SAME. ON SPECIFIC QUERY FROM THE BENCH, LD. DR COULD NOT POINT OUT AN Y FACT EMERGING OUT OF IMPUGNED ORDER THAT ANY ADDITIONAL EVIDENCE WAS ADM ITTED AND CONSIDERED BY THE CIT(A) IN CONTRAVENTION OF RULE 46A OF THE I NCOME TAX RULES, 1962 WITHOUT AFFORDING DUE OPPORTUNITY TO REBUT THE SAME AND EXAMINING AND VERIFYING THE SAME FOR THE AO. THEREFORE, WE DO NO T FIND ANY PROOF IN THE CONTENTION OF THE REVENUE ON THIS GROUND. ACCORDIN GLY, WE COME TO A CONCLUSION THAT THE APPEAL OF THE REVENUE AND GROUN DS RAISED THEREIN BEING DEVOID OF MERITS DESERVE TO BE DISMISSED AND WE DIS MISS THE SAME. ITA NO. 5273/D/2011 & CO NO.5/D/2012 ASSTT.YEAR: 2007-08 6 C.O. OF THE ASSESSEE 9. FROM A GLANCE AT THE CROSS OBJECTIONS RAISED BY THE ASSESSEE, WE OBSERVE THAT THE ASSESSEE HAS RAISED TECHNICAL CROS S OBJECTIONS TO SUPPORT HIS CASE BUT SINCE WE HAVE DISMISSED THE APPEAL OF THE REVENUE ON THE MAIN GROUND BY THE EARLIER PART OF THIS ORDER, THEREFORE , CROSS OBJECTIONS OF THE ASSESSEE DO NOT SURVIVE FOR ADJUDICATION ON MERITS. 10. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.8.2014. SD/- SD/- (S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 7 TH AUGUST, 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR