Smt. Ginni Goel, Shimla V. DCIT, CC-II, Chandigarh

ITA 1066/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4072 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 09-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH GUPTA
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard; Principle of natural justice; Additional evidence; Set aside
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 1066/CHD/2018 (ASSESSMENT YEAR : 2010-11) SMT. GINNI GOEL VS. THE DCIT GOEL PLAZA, RAM BAZAR CENTRAL CIRCLE-II SHIMLA CHANDIGARH PAN NO. AEIPG4826Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. SUDHIR SEHGAL DEPARTMENT BY : SHRI. ASHISH GUPTA DATE OF HEARING : 27/02/2019 DATE OF PRONOUNCEMENT : 11/03/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 01/06/2018 OF LD. CIT(A)-3, GURGAON. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF ADDITION OF RS. 15,00,000/- MADE BY THE ASSESSING O FFICER ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 3. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS ACT) WAS CARRIED OUT ON 08/10/2010 IN GOEL GROUP OF CASES. THE ASSESSEE FIL ED THE RETURN OF INCOME ON 30/03/2011 DECLARING AN INCOME OF RS. 1,82,210/-. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD SHOWN RECEIPT OF RS. 15,00,000/- F ROM SHRI YADVINDER SINGH IN HER CASH FLOW STATEMENT BUT COULD NOT PRODUCE ANY DOCUMENTAR Y EVIDENCE AS REGARD TO THE SOURCE AND NATURE OF THE RECEIPT. HE ASKED THE ASSE SSEE TO SHOW CAUSE AS TO WHY THE SAID RECEIPT OF RS. 15,00,000/- SHOULD NOT BE TREAT ED UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. IN RESPONSE THE ASSESSEE SUB MITTED AS UNDER: SH. YADVINDER SINGH RS. 15,00,000/- WAS RECEIVED AS ADVANCE TOWARDS SALE OF SELF OCCUPIES HOUSE OF SMT. GINNI GOEL AT CHAURA MAINDAN , SHIMLA. SINCE THE DEAL DID NOT 2 MATURE THE AMOUNT WAS SUBSEQUENTLY REFUNDED BY SH. AJAY GOEL AND ENTRY PASSED IN THE BOOKS OF SH. AJAY GOEL. HOWEVER THE ASSESSING OFFICER DID NOT FIND MERIT IN THE AFORESAID SUBMISSION OF THE ASSESSEE AND MADE THE ADDITION OF RS. 15,00,000/-. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND REQUESTED TO ADMIT THE FOLLOWING ADDITIONAL EVIDENCES : I. COPY OF AGREEMENT CANCELLING THE AGREEMENT TO SELL ENTERED INTO BETWEEN THE APPELLANT, HER HUSBAND AS THE PROPOSED SELLERS AND SH. YADWINDER SINGH. II. COPY OF BANK ACCOUNT OF APPELLANT AND HER HUSBAND, SH. AJAY GOYAL. 5.1 THE LD. CIT(A) ASKED THE REMAND REPORT OF THE A SSESSING OFFICER WHO SUBMITTED AS UNDER: A) IN THE INTEREST OF NATURAL JUSTICE, THIS OFFICE HAS NO OBJECTION TO THE ADMITTANCE OF THE ADDITIONAL EVIDENCE. A) IT IS NOTICED THAT COPY OF BANK PASSBOOK OF SMT. GINNI GOEL AND COPY OF AGREEMENT CANCELLING THE AGREEMENT TO SELL ENTERED BETWEEN TH E ASSESSEE HER HUSBAND AS THE PROPOSED SELLERS AND SH. YADVINDER SINGH IS ALREADY ON RECORD AND WE RE DULY CONSIDERED BY THE AO. THE ASSESSEE HAS NOT GIVEN ANY EVIDENCE IN SUPPORT OF ITS CLAIM THAT THE AMOUNT WAS RECEIVED FROM SH. YADVINDER SINGH. COPY OF AGREEMENT WITH SH. YADVINDER SINGH HAS NOT BEEN FURNISHED. THE PASS BOOK OF SH. AJAY S INGH ONLY DEPICTS PAYMENT OF RS. 25,00,000 TO SH. YADVINDER SINGH. AS THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS ON IT TO PROVE THE SOURCE OF THE SAID CREDITS, THEREFORE, THE SOURCE REMAINS UNSUBSTANTIATED. AS SUCH, THE ADDITION MADE MAY BE SUSTAINED'. 5.2 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE AND THE REMAND REPORT OF THE ASSESSING OFFICER CONFIRMED THE ADDIT ION BY OBSERVING AS UNDER: I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT FILED IN THE APPELLATE PROCEEDINGS VIDE LETTER DATED 09.05.2018 AND THE CONTENTIONS OF THE APPELLANT CAN NOT BE ACCEPTED BECAUSE :- A) THE APPELLANT HAS NOT FURNISHED THE ORIGINAL AGREEMENT ON THE BASIS OF WHICH THE INITIAL ADVANCE OF RS. 15,00,000 HAS BEEN RECEIVED AND THUS THERE IS N O CREDIBILITY OF THE AGREEMENT THROUGH WHICH AGREEMENT WAS CANCELLED AND AMOUNT WAS REFUNDED. B) THE APPELLANT HAS NOT FILED THE COPY OF THE BANK A/C FROM WHICH THIS AMOUNT HAS BEEN RECEIVED, SO AS TO SHOW TO GENUINENESS OF THE PAYMENT. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION MADE BY THE AO IS CONFIRMED. 6. NOW THE ASSESSEE IS IN APPEAL. 7. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT CONSIDERING THE ADDITIONAL EVIDENCES WHICH GO TO TH E ROOT OF THE MATTER. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE ENTERED INTO AN AGREEME NT WITH ONE SHRI YADVINDER SINGH TO WHOM SHE SOLD HER RESORT KNOWN AS BRITISH RESORT LOCATED AT CHAURA MAIDAN, SHIMLA HE GAVE AN ADVANCE OF RS. 15,00,000/- EACH TO THE A SSESSEE AND HER HUSBAND VIDE CHEQUE NO. 355214 AND 355215 RESPECTIVELY EACH DT. 22/08/2009. HOWEVER LATER ON IT WAS DISCOVERED THAT THE SAID AREA BELONGS TO THE H ERITAGE ZONE AREA AND THUS NO RECONSTRUCTION OF THE PROPERTY COULD BE UNDERTAKEN. THEREFORE THE DEAL BETWEEN THE ASSESSEE AND SH. YADVINDER SINGH WAS CANCELLED AND THE AMOUNT RECEIVED WAS 3 REFUNDED TO HIM BY ASSESSEES HUSBAND A REFERENCE W AS MADE TO PAGE 15 AND 16 OF THE ASSESSEES PAPER BOOK. 7.1 IT WAS FURTHER SUBMITTED THAT THE AFORESAID FAC TS WERE WRITTEN IN THE AGREEMENT GENUINENESS OF WHICH HAD NOT BEEN DOUBTED. THEREFOR E THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT JUSTIFIED PARTICULARLY WH EN HE HAD ACCEPTED THE SIMILAR ADVANCE RECEIVED BY THE HUSBAND OF THE ASSESSEE SHR I. AJAY GOEL IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT, (COPY OF THE SAID ORDER DT. 28/03/2013 WAS FURNISHED WHICH IS PLACED ON RECORD ). 8. IN HIS RIVAL SUBMISSION LD. CIT DR STRONGLY SUPP ORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT IS NOTICED THAT IN THE SIMILAR CIRCUMSTANCES THE ADVANCE RECEIVED BY T HE HUSBAND OF THE ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTMENT WHILE PASSING THE A SSESSMENT ORDER DT. 28/03/2013 UNDER SECTION 153A(1)(B) R.W.S 143(3) OF THE ACT. I N OUR OPINION THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT CONSIDERING THE ADDITIONAL EVIDENC ES FURNISHED BY THE ASSESSEE WHICH GO TO THE ROOT OF THE MATTER IN RIGHT PERSPECTIVE. WE THEREFORE DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE LIMITED ISS UE TO THE FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND BY CONSIDERING THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE TO T HE LD. CIT(A). 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 11/03/2019 ) SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDE NT DATED : 11/03/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR