Sh. Amit Kumar, Barnala V. ITO, Barnala

ITA 1043/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95794 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Business income
• Section: 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMC CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT ITA NOS. 1043 TO 1045/CHD/2014 ASSESSMENT YEARS: 2007-08 TO 2009-10 SH. AMIT KUMAR, VS. THE ITO, S/O SH. SUSHIL KUMAR, WARD-BARNALA DISTT. BARNALA PAN NO. BPZPK7810M (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : NONE DATE OF HEARING : 04.12.2015 DATE OF PRONOUNCEMENT : 31.12.2015 ORDER PER H.L.KARWA, VP THESE THREE APPEALS BY THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE. ITA NO. 1043/CHD/2014 :- 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS:- 1 THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING T HE ISSUANCE OF NOTICE U/S 148 OF THE ACT AND FRAMING THE ASSES SMENT THEREAFTER IN A MUCH AS THERE HAS BEEN NO ESCAPEMEN T OF INCOME WARRANTING ISSUANCE OF NOTICE U/S 148 OF THE ACT A ND AS SUCH THE ASSESSMENT FRAMED IS ILLEGAL, ARBITRARY AND UNJUSTI FIED. 2 2 THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 83,700/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN BANK WHICH IS ARB ITRARY AND UNJUSTIFIED. 3 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S 234A AND B WHICH IS NOT CHARGEABLE IN THE FACTS OF THE CASE. 3. AT THE TIME OF HEARING OF THE APPEAL, SHRI TEJ M OHAN SINGH, LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS FOR GROUND NO.1 OF T HE APPEAL AND ACCORDINGLY, I DISMISS THE SAME AS NOT PRESSED. 4. VIDE GROUND NO.2 OF THE APPEAL THE ASSESSEE HAS CHALLENGED THE ACTION OF THE CIT(A) IN UPHOLDING THE ADDITION OF RS. 83,700/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN BANK. THE ASSESSEE IS AN INDIVIDUAL AND EARNING INCOME FROM MEDICAL STORE. THE ASSESSING OFFICER AS KED THE ASSESSEE TO EXPLAIN THE OPENING CASH IN HAND AT RS. 2,54,550/- AS ON 1. 4.2006 AND WAS ALSO ASKED TO PRODUCE SALE / PURCHASE VOUCHERS OF MEDICAL STORE. THE ASSESSEE COULD NOT PRODUCE SALE BILLS AND SALES SHOWN. THE ASSESSEE AL SO FAILED TO PRODUCE ALL THE PURCHASE BILLS. THE ASSESSEE IN HIS STATEMENT ADMIT TED THAT BOOKS WERE GOT PREPARED AFTER RECEIPT OF NOTICE ISSUED U/S 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE ASSESSING OFFICER OBSERVED TH AT BOOKS OF ACCOUNT AND EXPLANATION SUBMITTED BY THE ASSESSEE WERE NOTHING BUT AN AFTERTHOUGHT TO EXPLAIN THE CASH DEPOSIT IN BANK ACCOUNT. THEREFORE , THE EVIDENCE CREATED BY THE ASSESSEE WERE TREATED AS NON GENUINE. THE ASSESSEE COULD NOT PROVE THE SOURCES OF CASH DEPOTS OF RS. 2,55,000/- IN HIS SAVING BANK ACCOUNT. ACCORDING TO ASSESSING OFFICER, THE PEAK OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE CAME TO RS. 1,50,000/- AS ON 2.12.2006. THE ASSESSE E HAS SHOWN BUSINESS INCOME AT RS. 99,500/-, THEREFORE, PROPORTIONATE BE NEFIT OF RS. 66,300/- WAS 3 GIVEN AS INCOME EARNED UPTO 2.12.2006. THEREFORE, THE ADDITION OF RS. 83,700/- WAS MADE AS UNEXPLAINED INVESTMENT IN THE BANK. 5. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION ST ATING THAT ASSESSEE FAILED PRODUCE THE SALE BILLS AND THE COMPLETE PURCHASE VO UCHERS. HE FURTHER OBSERVED THAT THE RETURN OF INCOME WAS FILED ONLY AFTER ISSU E OF NOTICE U/S 148 AND ACCOUNTS WERE ACCORDINGLY PREPARED. ACCORDING TO CI T(A), THE ADDITION WAS RIGHTLY MADE BY THE ASSESSING OFFICER AFTER GIVING THE BENEFIT OF PROPIONATE INCOME EARNED DURING THE YEAR. 6. I HAVE HEARD SHRI TEJ MOHAN SINGH, LD. COUNSEL F OR THE ASSESSEE. IT IS CLEAR THAT THE ASSESSEE HAD MISERABLY FAILED TO PRO VE THE SOURCE OF CASH DEPOSIT OF RS. 2,55,000/- IN HIS SAVING BANK ACCOUNT. THE A SSESSEE HAD ALSO FAILED TO PRODUCE ANY ORIGINAL RECORD I.E. SALES / PURCHASE V OUCHERS ETC. IT IS ALSO EVIDENT FROM THE RECORD THAT THE BOOKS OF ACCOUNT WERE GOT PREPARED AFTER RECEIPT OF NOTICE U/S 148 OF THE ACT. IN MY OPINION, THE BOO KS OF ACCOUNT AND EXPLANATION SUBMITTED BY THE ASSESSEE ARE NOTHING BUT AN AFTERT HOUGHT TO EXPLAIN THE CASH DEPOSIT IN BANK ACCOUNT. I FULLY AGREE WITH THIS OBSERVATION OF THE ASSESSING OFFICER THAT THE EVIDENCE RECORDED BY THE ASSESSEE IN THE SHAPE OF BOOKS OF ACCOUNT AFTER RECEIPT OF NOTICE U/S 148 OF THE AC T CANNOT BE TREATED AS GENUINE. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, I DECLINE TO INTERFERE WITH THE ORDER OF THE CIT(A) ON THIS ISSU E. ACCORDINGLY, I REJECT GROUND NO.2 OF THE APPEAL. 7. GROUND NO.3 OF THE APPEAL RELATES TO CHARGING OF INTEREST U/S 234A AND 234B OF THE ACT. THIS GROUND OF APPEAL IS STATED TO BE CONSEQUENTIAL IN NATURE. I HOLD ACCORDINGLY. 4 8. NO OTHER POINT WAS RAISED OR ARGUED BEFORE ME. 9. IN THE RESULT, THE APPEAL IN ITA NO. 1043/CHD/20 14 IS DISMISSED. ITA NO. 1044/CHD/2014 :- 10. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS:- 1 THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING T HE ISSUANCE OF NOTICE U/S 148 OF THE ACT AND FRAMING THE ASSESSMENT THEREAFTER IN A MUCH AS THERE HAS BEEN NO ESCAPEMENT OF INCOME WARRANTING ISSUANCE OF NOTICE U/S 148 OF THE ACT AND AS SUCH THE ASSESSMENT FRAMED IS ILL EGAL, ARBITRARY AND UNJUSTIFIED. 2 THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 68,5 75/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN BANK W HICH IS ARBITRARY AND UNJUSTIFIED. 3 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S 234A AND B WHICH IS NOT C HARGEABLE IN THE FACTS OF THE CASE. 11. AT THE TIME OF HEARING OF THE APPEAL, SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS FOR GROUND NO.1 OF T HE APPEAL AND ACCORDINGLY, I DISMISS THE SAME AS NOT PRESSED. 12. VIDE GROUND NO.2 OF THE APPEAL THE ASSESSEE HAS CHALLENGED THE ACTION OF THE CIT(A) IN UPHOLDING THE ADDITION OF RS. 68,575/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN BANK. THE ASSESSING OFFIC ER HAS DISCUSSED THIS ISSUE IN PARA 1.4 OF THE ASSESSMENT ORDER, WHICH READS AS UNDER:- 5 1.4 THE MAXIMUM BALANCE IN THE BANK ACCOUNT WAS RS. 2,59,519/- AS ON 16..2.2008. THE ASSESSEE HAD AN OP ENING BALANCE OF RS. 20,044/- AS ON 01.4.2007. AN ADDITIO N OF RS. 83,700/- HAS ALSO BEEN MADE IN THE ASSESSMENT YEAR 2007-08 ON ACCOUNT OF CASH DEPOSITS IN THE SAME ACCOUNT IN THE HANDS OF THE ASSESSEE. THE ASSESSEE HAS SHOWN BUSINESS IN COME AT RS. 99,700/- THEREFORE, PROPORTIONATE BENEFIT OF RS . 87,200/- IS BEING GIVEN AS INCOME EARNED UP TO 16.02.2008. T HEREFORE, NET ADDITION OF RS. 68,575/- IS BEING MADE AS UNEXP LAINED INVESTMENT IN BANK. 13. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION FO R THE REASONS STATED IN PARA 6.2 OF THE IMPUGNED ORDER. 14. IT IS OBSERVED THAT IN THIS YEAR ALSO THE SALE BILLS AND BOOKS OF ACCOUNT WERE PREPARED ONLY AFTER ISSUANCE OF NOTICE U/S 14 8 OF THE ACT. THE ASSESSEE FAILED TO PRODUCE SALES / PURCHASE BILLS. THE ASSES SING OFFICER HAS GIVEN DUE BENEFIT OF THE PROPORTIONATE INCOME EARNED DURING T HE YEAR AS WELL AS ADDITION MADE IN THE EARLIER YEARS AND, THEREFORE, THE LD. C IT(A) WAS JUSTIFIED IN UPHOLDING THE ADDITION OF RS. 68,575/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BANK ACCOUNT. THERE IS NO MATERIAL ON RECORD TO CON TROVERT THE FINDINGS OF THE LOWER AUTHORITIES. CONSEQUENTLY, I REJECT GROUND NO . 2 OF THE APPEAL. 15. GROUND NO.3 OF THE APPEAL RELATES TO CHARGING O F INTEREST U/S 234A AND 234B OF THE ACT. THIS GROUND OF APPEAL IS STATED TO BE CONSEQUENTIAL IN NATURE. I HOLD ACCORDINGLY. 16. NO OTHER POINT WAS RAISED OR ARGUED BEFORE ME. 17. IN THE RESULT, THE APPEAL IN ITA NO. 1044/CHD/2 014 IS DISMISSED. 6 ITA NO. 1045/CHD/2014 :- 18. GROUND NO.1 OF THE APPEAL READS AS UNDER:- 1 THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING T HE ISSUANCE OF NOTICE U/S 148 OF THE ACT AND FRAMING THE ASSES SMENT THEREAFTER IN A MUCH AS THERE HAS BEEN NO ESCAPEMEN T OF INCOME WARRANTING ISSUANCE OF NOTICE U/S 148 OF THE ACT A ND AS SUCH THE ASSESSMENT FRAMED IS ILLEGAL, ARBITRARY AND UNJUSTI FIED. 19. AT THE TIME OF HEARING OF THE APPEAL, SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS FOR GROUND NO.1 OF T HE APPEAL AND ACCORDINGLY, I DISMISS THE SAME AS NOT PRESSED. 20. GROUND NOS.2 & 3 OF THE APPEAL READ AS UNDER:- 2. THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 6,00 ,000/- FROM MOTHER TO BE UNDISCLOSED INVESTMENT OF THE ASS ESSEE WHICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE CIT(A) HAS ERRED IN TREATING THE GIFT RECE IVED OF RS. 1,20,000/- FROM FATHER TO BE UNDISCLOSED INVEST MENT IN BANK OF THE ASSESSEE WHICH IS ARBITRARY AND UNSTUDI ED. 21. THE FACTS RELATING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE HAS DEPOSITED RS. 13,70,000/- IN HIS ACCOUNT ON DIFFERENT DATES D URING THE ASSESSMENT YEAR 2008-09 RELATING TO ASSESSMENT YEAR UNDER CONSIDERA TION. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PROVE THE SOURCES OF DEPOS ITS IN HIS SAVING ACCOUNT. IN RESPONSE TO THE AFORESTATED QUERY, THE ASSESSEE VID E HIS REPLY DATED 27.10.2011 STATED THAT HE HAD RECEIVED GIFT FROM HIS CLOSE REL ATIVES, WHO ARE INCOME TAX 7 ASSESSEES. THE ASSESSEE HAD SHOWN A CASH GIFT OF R S. 6 LAKHS FROM HIS MOTHER SMT. ASHA RANI AND ANOTHER GIFT OF RS. 1,20,000/- F ROM HIS FATHER SHRI SUSHIL KUMAR. THE ASSESSEE CLAIMED THAT THESE WERE THE SOU RCES OF CASH DEPOSITS IN HIS BANK ACCOUNT. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE STATING THAT THE ASSESSEE HAD FAILED TO FI LE ANY DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF THE GIFT AND CAPACITY OF D ONOR, THEREFORE, THE ALLEGED GIFT OF RS. 6 LAKHS RECEIVED FROM SMT. ASHA RANI WA S ADDED TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY, THE ASSESSING OFFICER M ADE AN ADDITION OF RS. 1,20,000/- STATING THAT THE ASSESSEE HAD FAILED TO FILE ANY DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF GIFT AND CAPACITY OF TH E DONOR. THUS, THE ASSESSING OFFICER MADE TOTAL ADDITION OF RS. 7,20,000/-. 22. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION ST ATING THAT THERE WAS NO EVIDENCE OF EARNING ANY INCOME BY SMT. ASHA RANI AN D SHRI SUSHIL KUMAR. HE FURTHER POINTED OUT THAT THE BOOKS OF ACCOUNT WERE PREPARED AFTER ISSUANCE OF NOTICE U/S 148 OF THE ACT. ACCORDING TO CIT(A) TH E ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND THE CREDITW ORTHINESS OF THE DONORS. 23. I HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE A ND HAVE PERUSED THE MATERIALS AVAILABLE ON RECORD. SHRI TEJ MOHAN SINGH , LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE AUTHORITIES BELOW HAV E NOT APPRECIATED AND CONSIDERED THE EVIDENCE PRODUCED BY THE ASSESSEE DU RING THE COURSE OF ASSESSMENT PROCEEDINGS TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND THE CAPACITY OF THE DONOR TO MAKE THE GIFTS IN FAVOUR O F THE ASSESSEE. SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE INVITED O UR ATTENTION TO THE WRITTEN SUBMISSIONS SUBMITTED BEFORE THE CIT(A), WHICH READ S AS UNDER:- 8 3.2 AS STATED EARLIER, ASSESSEE MADE A CASH DEPOS IT OF RS.1370000.00 MADE BY ASSESSEE IN HIS SB A/C WITH STATE BANK OF PATIALA, BHADAUR. THE ASSESSEE DULY EXPLAINED THE SOURCE OF CASH D EPOSIT IN THE COURSE OF ASSESSMENT PROCEEDINGS VIDE HIS LETTER DT. 22.06.20 11 AND 27.10.2011 WHICH HAS BEEN REPRODUCED AT PAGE NO. 2 OF THE IMPUGNED O RDER. LD. A.O. WAS NOT SATISFIED WITH GENUINENESS OF GIFTS REFERRED ABOVE AND TREATED THE SAME AS UNDISCLOSED INCOME OF ASSESSEE. 3.3 A PERUSAL OF ASSESSMENT ORDER REVEALS THAT TH E FOLLOWING FACTS ARE NOT IN DISPUTE:- (A) THE IDENTITY OF BOTH THE DONORS IS NOT IN DOUB T AS BOTH HAPPENS TO BE PARENTS OF ASSESSEE; (B) BOTH THE DONORS HAS GIVEN AN AFFIDAVIT AFFIRMING THE THEIR RESPECTIVE GIFTS TO ASSESSEE; (C) AFFIRMATION OF BOTH THE DONORS IN EXAMINATION O N OATH RECORDED BY A.O. (H) BOTH DONORS HAVE REGULAR SOURCE OF INCOME SINCE 1984 OR BEFORE. 3.3. THE STATEMENTS OF SMT. ASHA RANI AND SH. SUSHI L KUMAR WERE RECORDED ON 04.11.2011 BY ASSESSING OFFICER, IN THEIR RESPECTIV E STATEMENTS, THEY HAVE DULY CONFIRMED THE GIFTS TO ASSESSEE OUT FUNDS AVAILABLE AND DULY RECORDED IN THEIR RESPECTIVE BOOKS OF ACCOUNT. TO FURTHER SUBSTANTIATE THE GENUINENESS OF GIFTS AS SESSEE PLACED FOLLOWING DOCUMENTS/DETAILS ON RECORD:- . A) AFFIDAVIT DT 22.10.2011 OF SMT. ASHA RANI B) AFFIDAVIT DT. 22.10.2011 OF SH. SUSHIL KUMAR C) BALANCE SHEET, .PROFIT & LOSS A/C,CAPITAL A/C F OR THE F.YS. 2008-09 & 2009-10 OF SMT. ASHA RANI PREPARED AS PER THE BOOKS OF ACCOUNT. D) BALANCE SHEET, PROFIT & LOSS A/C, CAPITAL A/C F OR THE F.YS.2008-09 & 2009-10 OF SH. SUSHIL KUMAR PREPARED AS PER THE BOO KS OF ACCOUNT. 3.4 IT IS RELEVANT TO MENTION HERE THAT SMT. ASHA R ANI HAS STATED IN HER STATEMENT THAT SHE IS IN BUSINESS OF STITCHING OF L ADIES SUITS SINCE 1984 AND BEEN MAINTAINING ROUGH DAY BOOK TO RECORD DAY TO DA Y TRANSACTIONS. THE 9 ASSESSEE IS NOT REQUIRED TO MAINTAIN REGULAR BOOKS OF ACCOUNT AS HER TURNOVER/INCOME IS BELOW THE LIMIT PRESCRIBED U/S 4 4AA(2) OF THE IT ACT,1961. AFTER THE RECEIPT OR NOTICE U/S 148 BY HER HUSBAND AND HER SONS, SHE GOT HER DAY BOOK DATA COMPUTERIZED ON ACCOUNTING SOFTWARE A ND GOT PREPARED CASH BOOK(CASH FLOW STATEMENT) AND BALANCE SHEET(STATEME NT OF AFFAIRS) IN ORDER TO PROVE THE GENUINENESS OF GIFTS GIVEN TO HER FAMILY MEMBERS. CUMULATIVE CASH BALANCE AS PER BOOKS OF ACCOUNT WAS SAVED BY ASSESS EE OVER A PERIOD OF TIME. THE REASON FOR NOT FILING HER ITRS IS ATTRIBUTED TO THE FACT THAT INCOME OF THE ASSESSEE HAS BEEN BELOW TAXABLE LIMITS IN THE PRECE DING YEARS. THE ASSESSEE HAS BEEN HAVING INCOME FROM BUSINESS SINCE 1984.THE CASH IN HAND IS SUPPORTED BY BOOKS OF ACCOUNT OF ASSESSEE. IT IS NO T THE CASE OF ID. A.O. THAT SMT. ASHA RANI WAS NOT DOING ANY BUSINESS. SIMILAR IS THE CASE OF OTHER DONOR SH. SUSHIL KUMAR . HE IS HAVING REGULAR SOURCE OF INCOME FROM BUSINESS AS WELL AGRICULTURE SINCE LONG TIME. HE IS ALSO MAINTAINING ROUGH DAY BOOK TO RECORD DAY TO DAY TRA NSACTIONS. THE ASSESSEE IS NOT REQUIRED TO MAINTAIN REGULAR BOOKS OF ACCOUNT A S HER TURNOVER/INCOME IS BELOW THE LIMIT PRESCRIBED U/S 44AA(2)OF THE LT ACT ,1961. AFTER THE RECEIPT OF NOTICE U/S 148 BY HER HUSBAND AND HER SONS , SHE GOT HER DAY BOOK DATA COMPUTERIZED ON ACCOUNTING SOFTWARE A ND GOT PREPARED CASH BOOK(CASH FLOW STATEMENT) AND BALANCE SHEET(STATEME NT OF AFFAIRS) IN ORDER TO PROVE THE GENUINENESS OF GIFTS GIVEN TO HER FAMILY MEMBERS. CUMULATIVE CASH BALANCE AS PER BOOKS OF ACCOUNT WAS SAVED BY ASSESS EE OVER A PERIOD OF TIME. THE REASON FOR NOT FILING HER ITRS IS ATTRIBUTED TO THE FACT THAT INCOME OF THE ASSESSEE HAS BEEN BELOW TAXABLE LIMITS IN THE PRECE DING YEARS. THE ASSESSEE HAS BEEN HAVING INCOME FROM BUSINESS SINCE 1984.THE CASH IN HAND IS SUPPORTED BY BOOKS OF ACCOUNT OF ASSESSEE. IT IS NO T THE CASE OF ID. A.O. THAT SH.SUSHIL KUMAR WAS NOT DOING ANY BUSINESS. WITH REGARD TO THE CREDITWORTHINESS OF DONORS, THE ASSESSEE HAS BEEN ABLE TO DISCHARGE THE ONUS CAST UPON HIM BY FURNISHING THE FINANCIAL STATEMENTS OF DONORS AS ALSO THEIR CONFIRMATION (AFFIDAVIT) W.R.T GIFTS OF RS. 600000.00 AND RS.120000.00. THE ID. A.O. HAS FAILED TO APPRECIATE THE DOCUMENTS FILED AS PER S.NO. 3.3 ABOVE IN THE COURSE OF ASSESSMENT PROCEEDINGS. 10 IF ID. A.O. WAS NOT SATISFIED WITH EXPLANATIONS OFF ERED BY ASSESSEE, IT WAS INCUMBENT UPON THE HIM TO PROVE ON THE BASIS OF COG ENT EVIDENCE THAT THE TRANSACTION WAS NOT GENUINE. THERE IS NO SUCH EVIDE NCE BROUGHT ON RECORD. IT IS SEEN THAT THE CONCLUSIONS OF THE ASSESSING OFFIC ER WITH REGARD TO THE GENUINENESS OF THE TRANSACTIONS ARE MERELY CONJECTU RAL AND ARE BASED ON SURMISES AND ASSUMPTIONS. SUCH CONJECTURES AND ASSU MPTIONS CANNOT TAKE THE PLACE OF PROOF, ONCE THE ASSESSEE HAS DISCHARGED TH E PRIMARY BURDEN WHICH HAD BEEN CAST UPON HIM. IT IS A TRITE LAW THAT THE ADDITIONS COULD NOT BE MADE MERELY ON GENERALIZED OBSERVATIONS OR ON SUSPICION. SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT THE DECISIONS RELIED UPON BY THE ASSESSEE ARE AS UNDER: - I) A.K. SACHDEVA V CIT (ITA 251/2009) OF P&H HIGH COUR T II) SURESH KAKAR V CIT 324 ITR 231 (DELHI HIGH COURT ) III) AMITA DEVI V CIT GAUHATI (ITAT THIRD MEMBER) 53 DTR 214/521 IV) CIT V RAM NARIAN GOEL 224 ITR 180(P&H) V) CIT VS. KAMDHENU STEEL AND ALLOYS LTD V CIT 206 TAX MAN 254 24. ACCORDING TO LD. COUNSEL FOR THE ASSESSEE, THE LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS OF THE ASSESSEE SUBMITTE D BEFORE HIM. HE FURTHER POINTED OUT THAT THE AUTHORITIES BELOW HAVE CONCLUD ED THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF GIFTS / TRANSACTIONS AND T HE CAPACITY OF THE DONOR TO MAKE GIFTS. HOWEVER, THE AUTHORITIES BELOW HAVE FAI LED TO APPRECIATE THE EXPLANATION AND THE EVIDENCE GIVEN BY THE ASSESSEE IN ORDER TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND CAPACITY OF THE DONORS TO MAKE GIFT IN FAVOUR OF THE ASSESSEE. IN MY OPINION, THERE IS A SUBSTANC E IN THE SUBMISSIONS MADE BY SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE. CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, AND ALSO THE SETTLED LEGAL POS ITION, I THINK IT APPROPRIATE TO SET ASIDE THE ORDER OF THE CIT(A) ON BOTH THE ISSUE S AND REMAND THE MATTER TO ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE 11 WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. THUS, GROUND NOS. 2 & 3 OF THE APPEAL ALL OWED FOR STATISTICAL PURPOSES. 24. GROUND NO 4 OF THE APPEAL READS AS UNDER:- THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S 234A AND B WHICH IS NOT C HARGEABLE IN THE FACTS OF THE CASE. 25 IT IS CLAIMED THAT THIS GROUND OF APPEAL IS CONS EQUENTIAL IN NATURE AND I HOLD ACCORDINGLY. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE SAME IN ACCORDANCE WITH LAW. 26. NO OTHER POINT WAS RAISED OR ARGUED BEFORE ME. 27. IN THE RESULT, THE APPEAL IN ITA NO. 1045/CHD/2 014 IS ALLOWED PARTLY FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2015 SD/- (H.L.KARWA) VICE PRESIDENT DATED : 31 ST DECEMBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 12