Harkesh Kumar, Zirakpur V. ITO, W-3(5), Chandigarh

ITA 1028/CHANDI/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3320 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN J
• Keywords: Gift; Salary income; Opportunity of being heard; Corroborative evidences; Assessment record; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO.1028/CHD/2019 / ASSESSMENT YEAR : 2010-11 SHRI HARKESH KUMAR, HOUSE NO. 460, PREET COLONY, ZIRAKPUR. VS THE ITO, WARD 3(4), CHANDIGARH. ./ PAN NO: AIKPK3631P / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE # ! ' / REVENUE BY : SHRI ARVIND SUDERSHAN, JCIT-DR $ % ! &/ DATE OF HEARING : 30.01.2020 '()* ! &/ D ATE OF PRONOUNCEMENT : 11.02.2020 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE W HEREIN THE CORRECTNESS OF THE ORDER DATED 26.04.2019 OF CI T(A)-1 CHANDIGARH PERTAINING TO 2010-11 ASSESSMENT YEAR IS ASSAILED ON THE FOLLOWING GROUNDS : 1. THE ORDER OF LD. CIT (APPEALS) -1 IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2. THAT LD. ASSESSING OFFICER & LD. CIT (APPEALS) DID NOT GIVE THE OPPORTUNITY OF BEING HEARD BY ISSUING NOTICE FOR AD DITION OF THE CASH DEPOSIT IN RETURNED INCOME OF ASSESSEE 3. THAT WITHOUT ANY ADVERSE MATERIAL IN RECORD LD. ASS ESSING OFFICER & LD. CIT (APPEALS) ERRONEOUSLY NOT ACCEPTING THE EVIDENC E AND EXPLANATION OF THE ASSESSEE. THIS S BAD IN EYES OF LAW 4. THAT ASSESSEE DISCHARGE HIS ONUS OF PROOF BUT LD. A SSESSING OFFICER AND LD. CIT (APPEALS) DID NOT VERIFY THE EVIDENCES, SUP PORTING AND PROOFS. THAT WAS NOT A HEALTHY ASSESSMENT PROCEEDING. ITA 1028/CHD/2019 A.Y. 2010-11 PAGE 2 OF 5 5. THE LD. ASSESSING OFFICER AND LD. CIT (APPEALS) WIT HOUT ANY ADVERSE DOCUMENTARY EVIDENCE DID NOT GIVEN PROPER WEIGHTAGE OF ASSESSEE REPLY. EVEN ASSESSEE HAS GIVEN ALL DETAILS OF CASH RECEIVE D WITH SUPPORTING EVIDENCES. 6. THAT THE LD. CIT (APPEALS) HAS NOT CONSIDERED THE C ASE ON MERITS AND ALSO NOT CALLED ANY INFORMATION FROM ASSESSEE. 7. THE APPELLANT CARVES LEAVE TO ADD, ALTER AMEND O R FOREGO ANY GROUND (S) OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. THE APPEAL WAS PASSED OVER. DESPITE THIS THE ASSESSEE REMAINED UNREPRESENTED. HOWEVER, CONSIDERING THE M ATERIAL AVAILABLE ON RECORD, IT WAS DEEMED APPROPRIATE TO P ROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELL ANT ON MERIT AFTER HEARING THE LD. SR.DR. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE WAS REQUIRED TO EXPLAIN THE DEPOSIT OF RS. 6,50,000/- I N HIS BANK ACCOUNT. THE ASSESSEE BEFORE THE CIT(A) PLACED CER TAIN EVIDENCES WHICH HAVE BEEN CONSIDERED IN THE FOLLOWING MANNER: 5.2.1. BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT HAS DEPOSITED CA SH OF RS.6,50,000/- ON 04.03.2010 IN HIS BANK ACCOUNT AND AO HAS DISALLOWED THIS AMOUNT FOR WANT OF EXPLANATION OF SOURCE OF CASH WITH SUPPORTING EVIDENCE. THE APPELLANT HAS CLAIMED WHICH WAS FOUND TO BE TRUE FROM ASSESSMENT RECORD THAT HE HAS SUBMITTED ALL THE DOCUMENTS AS DETAILED IN THE TABLE BELOW: SR. NO. DATE RECEIPT SOURCE AMOUNT (IN RS.) SUPPO RTING DOCUM ENTS ANALYSIS 1 2 3 4 5 6 1 06.01.2010 CASH WITHDRAWAL FROM PNB ACCOUNT NO. 0574000100141294 20,000/- ANN-4 FACTUALLY CORRECT BUT IT IS DOUBTFUL THAT HE HAS DEPOSITED SAME CASH ON 04.02.2010. 2 19.01.2010 CASH WITHDRAWAL FROM PNB ACCOUNT NO. 0574000100141294 35,000/- ANN- 4 FACTUALLY CORRECT BUT IT IS DOUBTFUL THAT HE HAS DEPOSITED SAME CASH ON 04.02.2010. 3 01.03.2010 SALE PROCEEDS OF MARUTI CAR, HAVING REGISTRATION NO. 1,20,000/ ANN - 5 A RECEIPT OF PURCHASER BUT NO CONFIRMATION FROM ITA 1028/CHD/2019 A.Y. 2010-11 PAGE 3 OF 5 PB65C2556 TO SH. GURINDER SINGH S/O BAGH SINGH, DERABASSI, MOHALI THE PURCHASER. 4 01.03.2010 ACCUMULATED CASH FROM SALARY INCOME DURING THE YEAR ALONG WITH PREVIOUS YEAR SAVING FROM SALARY INCOME. 2,28,000/- ANN-6 AN AFFIDAVIT FROM ASSESSEE. IT IS JUST A SELF SERVING DOCUMENT. HE HAS FAILED TO SUBMIT A DETAILED ANALYSIS ALONGWITH SUPPORTING EVIDENCE THAT HE HAS SURPLUS CASH AFTER ALL THE EXPENSES. PREVIOUS YEAR'S SAVINGS ARE NOT CORROBORATED WITH ANY EVIDENCE. 5 02.03.2010 GIFT FROM FATHER IN LAW SH. PREM CHAND HAVING PAN NO. AFLPC0256Q RESIDING AT RAM BAAG COLONY, VIVEK VIHAR, HABERTPUR, DEHRADUN. 1,00,000/ - ANN - 7 AN UNDATED PHOTO COPY OF A RECEIPT FROM FATHER IN LAW WHEREIN IT IS SAID THAT HE HAS GIVEN THIS AMOUNT IN 2009. NO SPECIFIC DATE, COPY OF RETURN OR BANK STATEMENT PROVIDED TO PROVE CREDITWORTHINESS. 6 02.03.2010 GIFT FROM SISTER IN LAW SH. PREM CHAND PAN NUMBER HSEPS6708C RESIDING AT RAM BAAG COLONY, VIVEK VIHAR, HABERTPU, DEHRADUN 40,000/- ANN-8 AN AFFIDAVIT DATED 05.12.2017 FROM S ISTER IN LAW SMT SEEMA SHARMA THAT SHE HAS GIVEN RS.40,000/- IN FY 2009- 10. NO SPECIFIC DATE, COPY OF RETURN OR BANK STATEMENT PROVIDED TO PROVE CREDITWORTHINESS. 7 01.03.2010 GIFT FROM BROTHER IN LAW SH. AMIT KUMAR SHARMA HAVING PAN NO. DIEPS3255L RESIDING AT RAM BAAG COLONY, VIVEK VIHAR, HABERTPUR, DEHRADUN 35,000/- ANN-9 AN AFFIDAVIT DATED 05.12.2017 FROM SISTER IN LAW SH. AMIT K. SHARMA THAT HE HAS GIVEN RS.35,000/- IN FY 2009- 10. NO SPECIFIC DATE, COPY OF RETURN OR BANK STATEMENT PROVIDED TO PROVE CREDITWORTHINESS. 8 01.03.2010 GIFT FROM SISTER IN LAW, MS. KALPANA SHARMA, BHANDARI BAGH, VISHKARMA COLONY, LANE 3, 12/1 DEHRADUN 42,000/ - ANN - 10 AN UNDATED RECEIPT FROM SISTER IN LAW SMT KALPNA SHARMA THAT SHE HAS GIVEN RS.42,000/- IN FY 2009- 10. NO SPECIFIC DATE, COPY OF RETURN OR BANK STATEMENT PROVIDED TO PROVE CREDITWORTHINESS. 9 01.03.2010 GIFT FROM SISTER IN LAW MS. RENU SHARMA HAVING PAN NO. BNJPS8788Q, AMARPURI COLONY MANDI. 30,000/- ANN- 11 AN AFFIDAVIT DATED 05.12.2017 FROM SISTER IN LAW SMT RENU SHARMA THAT SHE HAS GIVEN RS.30,000/- IN FY 2009- 10. NO SPECIFIC DATE, COPY OF RETURN OR BANK STATEMENT PROVIDED TO PROVE CREDITWORTHINESS. 3.1 ON A CONSIDERATION OF THE SAME, IT IS SEEN THAT AS FAR AS THE EXPLANATION AS SET OUT IN SR.NO. 1 AND 2 ARE CONCER NED, THE ITA 1028/CHD/2019 A.Y. 2010-11 PAGE 4 OF 5 ADDITION APPEARS TO HAVE BEEN SUSTAINED ON ACCOUNT OF SUSPICIONS. QUA SR.NO. 3, IF THE EVIDENCE FILED WAS CONSIDERED TO BE NOT SUFFICIENT, THE ASSESSEE SHOULD HAVE BEEN GI VEN AN OPPORTUNITY TO FILE CONFIRMATION ETC. FROM THE PURC HASER. ALTERNATELY SINCE THE CAR APPEARS TO HAVE BEEN SOLD AND THERE IS NO POWER WITH THE ASSESSEE TO PERSUADE THE PURCHASE R TO FILE ANY CONFIRMATIONS ETC., THE MATTER OUGHT TO HAVE BEEN E NQUIRED INTO BY THE TAX AUTHORITIES. IT IS SEEN THAT NO EFFORT HAS BEEN MADE TO EVEN ARRIVE AT A CONCLUSION WHETHER THE ASSESSEE OW NED THE SPECIFIC CAR AT THE RELEVANT POINT OF TIME WHICH IS CLAIMED TO HAVE BEEN SOLD BECAUSE IF THE BARE FACTS ARE ASCERTAINED , ONLY THEM A DECISION COULD HAVE BEEN ARRIVED AT. SIMILARLY FOR THE EXPLANATION AT SR.NO. 4, THE CONTENTS OF THE AFFIDA VIT OUGHT TO HAVE BEEN DISCUSSED. THE ASSESSEE IS CLAIMING TO H AVE ACCUMULATED SALARY, THERE IS NO DISCUSSION WHAT-SO- EVER WHETHER THE ASSESSEE WAS GAINFULLY EMPLOYED AND FOR HOW MAN Y YEARS; THERE IS NO DISCUSSION WHY HE COULD NOT HAVE SAVED THE STATED AMOUNT OF RS. 2,28,000/-. THE ADDITIONS APPEAR TO HAVE BEEN SUSTAINED IN THE ABSENCE OF ANY RELEVANT DISCUSSION ON ACCOUNT OF SUSPICION. SIMILARLY, QUA THE GIFTS ADDRESSED A T SR.NO. 5, 6, 7 AND 9, AFFIDAVITS OF THE RELATIVES ARE RELIED UPON. I FIND THAT IN CASE THE AFFIDAVITS FILED WERE TO BE DISCARDED, THE N THE REASONS FOR SO DISCARDING SHOULD BE CONFRONTED TO THE ASSES SEE AND OPPORTUNITY TO MAKE GOOD THE CLAIM BY OTHER SUPPORT ING ITA 1028/CHD/2019 A.Y. 2010-11 PAGE 5 OF 5 EVIDENCES ETC. OUGHT TO HAVE BEEN PROVIDED. SIMILA RLY FOR EXPLANATION QUA GIFT AT SR.NO. 8, AN UNDATED RECEIP T IS SHOWN TO HAVE BEEN RELIED UPON. THE ASSESSEE SHOULD HAVE BE EN COMMUNICATED THAT THE EVIDENCE IS NOT SUFFICIENT AN D HE COULD HAVE BEEN DIRECTED TO SUPPORT HIS CLAIM BY WAY OF A FFIDAVIT ETC. IN THE ABSENCE OF ANY RELEVANT DISCUSSION AS TO WHY THE EVIDENCES HAVE NOT BEEN CONSIDERED TO BE ACCEPTABLE , THE FINDING ARRIVED AT CANNOT BE SUSTAINED. THE IMPUGNED ORDER FOR WANT OF RELEVANT DISCUSSION IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO PAS S A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH FEBRUARY,2020. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER POONAM (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT4. $ / ( )/ THE CIT(A)5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER 8 # / ASSISTANT REGISTRAR