Smt. Sangeeta Sangwan, New Delhi V. ITO, Gurgaon

ITA 10/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2439 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AAKRITI DAWAN
• Keywords: Set aside
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. K. N. CHARY, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.10/DEL/2017 ASSESSMENT YEAR: 2012-13 SANGEETA SANGWAN MAYANK JAIN, ADVOCATE JAIN SINGH AND COMPANY, 2 CENTRAL LANE, (BASEMENT), BENGALI MARKET, NEW DELHI-110001 PAN NO.AAXPS6683C VS ITO WARD 4 (1), 6 TH FLOOR HSIIDC BUILDING, VANIJYA NIKUNJ, UDHYOG VIHAR, PHASE-V GURGAON (APPELLANT) (RESPONDENT) APPELLANT BY MS. AAKRITI DAWAN, ADVOCATE RESPONDENT BY SH. N.K. BANSAL, SR. DR. DATE OF HEARING: 28/10/2021 DATE OF PRONOUNCEMENT: 28/10/2021 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL FILED BY THE ASSESSEE IS PREFERRED AGA INST THE ORDER OF THE CIT(A)-1, GURGAON DATED 23.09.2016 FOR A.Y.2012-13. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.59 LACS MADE U/S. 69 A OF THE ACT BY THE AO. 2 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS THE AO NOTIC ED CREDIT ENTRIES OF RS.59 LACS IN THE ACCOUNT OF THE ASSESSE E. THE ASSESSEE WAS ASKED TO EXPLAIN THE CREDIT OF RS.59 LACS. THE ASSESSEE EXPLAINED THAT THE SAID AMOUNT WAS BORROWED BY HER FROM HER BROTHER IN LAW DALJIT SINGH. THE AO ASKED THE ASSE SSEE TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE TRANSACTION AND THE CAPACITY OF THE LENDER. ON RECEIVING NO PLA USIBLE REPLY THE AO COMPLETED THE ASSESSMENT BY MAKING ADDITION OF R S.59 LACS AS ALLEGED UNSECURED LOANS U/S. 69 A OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A ) AND VEHEMENTLY CONTENDED THAT RS.59 LACS WAS BORROWED T HROUGH VARIOUS CHEQUES. IT WAS CONTENDED THAT THE ENTIRE TRANSACTION HAS BEEN MADE THROUGH BANKING CHANNEL. IT WAS EXPL AINED THAT SH. DALJIT SINGH WAS HOSPITALIZED AND WAS NOT IN A POSITION TO CONFIRM THE TRANSACTION BUT THE SAME IS VERIFIABLE FROM THE BANK STATEMENTS. THE CIT(A) WAS CONVINCED THAT THE ASSE SSEE HAS FAILED TO DISCHARGE THE INITIAL BURDEN CAST UPON HE R AND CONFIRMED THE ADDITION. 5. BEFORE US THE COUNSEL FOR THE ASSESSEE REITERATE D WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 3 6. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDING S OF THE AO AND REITERATED THAT THE ASSESSEE HAS FAILED TO DISC HARGE THE PRIMARY ONUS. 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE A UTHORITIES BELOW. IT IS TRUE THAT RS.59 LACS HAVE BEEN BORROW ED BY THE ASSESSEE THROUGH VARIOUS CHEQUES AS UNDER :- SR. NAME OF THE BANK ACCOUNT NO. DATE AMOUNT 1 ORIENTAL BANK OF COMMERCE 08892151008057 18.10.2011 24,00,000/ - 26.12.2011 5,00,000/ - 27.01.2012 5,00,000/ - 2. ICICI BANK 103101509045 24.10.2011 25,00,000/ - TOTAL 59,00,000/ - 8. THE CLAIM OF THE ASSESSEE THAT THE IMPUGNED AMOU NT HAS BEEN BORROWED FROM HER BROTHER IN LAW SH. DALJIT SI NGH CANNOT BE BRUSHED ASIDE LIGHTLY MERELY BECAUSE SH. DALJIT SIN GH COULD NOT BE PRODUCED BEFORE THE AO FOR CONFIRMATION OF THE T RANSACTION. 9. WE ARE OF THE CONSIDERED VIEW THAT IF AT THE ASS ESSMENT STAGE AND AT THE STAGE OF THE FIRST APPELLATE PROCEEDINGS SH. DALJIT SINGH WAS INCAPACIATED AND COULD NOT APPEAR BEFORE THE AO , THE 4 ASSESSEE SHOULD GET ONE MORE OPPORTUNITY TO CONFIRM THE TRANSACTION OF THE LOAN BY DALJIT SINGH. 10. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE SET ASIDE THE ASSESSMENT TO THE FILES OF THE AO. THE ASSESSE E IS DIRECTED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTION BY BRINGING ON RECORD COGENT MATERIAL E VIDENCES. THE AO IS DIRECTED TO EXAMINE THE SAME AND DECIDE THE I SSUE AFRESH AFTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 12. DECISION ANNOUNCED IN THE OPEN COURT IN THE PRE SENCE OF BOTH REPRESENTATIVES ON 28.10.2021. SD/- SD/- (K. NARSIMHA CHARY) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEM BER *NEHA* DATE:-28.10.2021 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI 5 DATE OF DICTATION 2 8 .10.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2 8 .10.2021 DATE ON WHICH THE TYPED D RAFT IS PLACED BEFORE THE OTHER MEMBER 2 8 .10.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 2 8 .10.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 2 8 .10.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 2 8 .10.2021 DATE ON W HICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 8 .10.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 8 .10.2021 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER