Sh Sanjay Sirohi, Ghaziabad V. Addl. CIT, Ghaziabad

ITA 1068/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3496 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 10-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 24-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: SATISH KUMAR GUPTA
• Keywords: Unexplained cash credit; Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI G BENCH , NEW DELHI BEFORE SHRI R.K. PANDA ACCOUNTANT MEMB E R AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 10 68 /DEL /201 4 [ ASSESSMENT YEAR: 20 0 8 - 09 ] SHRI SANJAY KUMAR C/O SIROHI ESTATE, SECTOR 8 HOUSE NO. 8, CHIRANJIV VIHAR GHAZIABAD PAN : AIAPS 3397 N VS. THE I . T .O WARD 8 ( 1 ) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SATISH KUMAR GUPTA, FCA R EVENUE BY: SH RI S.S. RANA , CIT - DR DATE OF HEARING : 1 0 .0 4 .2017 DATE OF PRONOUNCEMENT : 17 .0 4 .2017 ORDER PER R.K. PANDA , ACCOUNTANT MEMBER : - THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28 . 11 .201 3 OF THE CIT(A) , MUZAFFARNAGAR RELATING TO A.Y. 200 8 - 09 . 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE ORDER PASSED U/S 143(3) BY THE LEARNED AO AND ORDER PASSED U/S 250 BY THE ID CIT(A) WAS WITHOUT CONSIDERING THE ENTIRE FACTS IN THE RIGHT PERSPECTIVE. 2 ITA NO.1068/DEL/2014 2. THAT THE LEARNED LOWER AUTHORITIES HAD ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF RS .398275/ - BY DISALLOWING COMMISSION GIVEN TO VEENA MITTAL TREATING AS NOT GENUINE. 3. THAT THE LEARNED LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF RS.5 , 00 , 324 / - TREATING THE SALE OF JEWELLERY BY HIS WIFE SMT. SARIKA AS UNEXPLAINED CASH CREDITS AS PER THE PROVISIONS OF SECTION 68 AS PROTECTIVE ADDITION IN THE HANDS OF THE APPELLANT. 4. THAT THE LEARNED LOWER AUTHORITIES HAD FURTHER ERRED IN LAW AND ON FACTS BY CLUBBING RS 177000/ - GIVEN AS SALARY TO SMT. SARIKA (WIFE OF THE APPE LLANT) BY M/S SIROHI ESTATE (PRO P.SANJAY SIROHI) IN THE HANDS OF APPELLANT. 5. THAT THE AFORESAID ORDER U/S 143(3) AND ORDER U/S 250 ARE ILLEGAL, UNJUST AND ARBITRARY. 6. THAT THE OBSERVATIONS MADE BY THE LEARNED AO ARE INCONSISTENT WITH THE FACTS AND THE LEGAL POSITION. 7. WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE APPELLANT RESERVES IT'S RIGHT TO ADD OR DELETE ONE OR MORE GROUNDS. 3. THE LD. COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING DID NOT PRESS GROUND NO. 3 FOR WHICH THE SAME IS DISMISSED AS NOT P RESSED. 4 . GROUND NOS. 1, 5, 6 AND 7 BEING GENERAL IN NATURE, ARE DISMISSED. 5. SO FAR AS THE REMAINING TWO GROUNDS ARE CONCERNED , WE FIND THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30.9.2008 DECLARING TOTAL INCOME OF RS. 4,86,850/ - . THE A.O COMPLETED THE 3 ITA NO.1068/DEL/2014 ASSESSMENT ON A TOTAL INCOME OF RS. 15,16,250/ - BY DISALLOWING THE C OMMISSION OF RS. 3,98,275/ - PAID T O SMT VEENA MITATL AND CLUBBING SALARY OF RS. 1,77,000/ - PAID TO SMT SARIKA, W/O THE ASSESSEE BY M/S SIROHI ESTATE, WHICH IS THE PROPRIETARY CONCERN OF THE ASSESSEE. THE A.O MADE DISALLOWANCE OF THE COMMISSION PRIMARILY ON THE GROUND THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM AND DID NOT GIVE SUFFICIENT DETAILS AND DID NOT PRODUC E SMT. VEENA MITTAL FOR HIS EXAMINATION. SIMILARLY THE A.O CLUBBED THE SALARY PAID TO SMT. SARIKA ON THE GROUND THAT SHE BEING A HOUSE WIFE IS NOT CONTRIBUTING TO THE BUSINESS OF HER HUSBAND. 6. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF THE A.O ON THE GROUND THAT THE ASSESSEE DID NOT PRODUCE SMT. VEENA MALIK BEFORE THE A.O FOR EXAMINATION AND THE ASSESSEE DID NOT FURNISH THE NATURE OF SERVICES RENDERED BY THE SAID PERSON . SO FAR AS CLUBBING OF SALARY OF RS. 1,77,000/ - IS CONCERNED, HE OBSERVED THAT IN THE CASE OF SARIKA, W/O ASSESSEE, SUCH ADDITION HAS BEEN CONFIRMED ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE. IT IS THE SUBMISSION OF THE LD. AR THAT GIVEN AN OPPOR TUNITY, HE WILL PRODUCE SMT. VEENA MALIK BEFORE THE A.O TO SUBSTANTIATE THE NATURE OF SERVICE RENDERED BY HER. SO FAR AS THE ISSUE RELATING TO CLUBBING OF SALARY INCOME IS CONCERNED, HE ALSO REQUESTED THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE A.O. 4 ITA NO.1068/DEL/2014 7. THE LD. DR, WHILE OBJECTING TO THE ARGUMENTS ADVANCED BY THE LD. AR FOR RESTORING THE ISSUE TO THE FILE OF THE A.O, SUBMITTED THAT DESPITE REPEATED OPPORTUNITIES GIVEN BY BOTH THE LOWER AUTHORITIES, THE ASSESSEE HAS NOT DISCHARGE THE ONUS CAST ON HIM. THE REFORE, THERE IS NO POINT IN RESTORING THE FILE TO THE A.O. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES , P ERUSED THE ORDERS OF THE A.O AND THE LD. CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E DECISION S RELIED UPON BY THE ASSESSEE AS FILED IN THE PAPER BOOK. WE FIND SINCE THE ASSESSEE DID NOT PRODUCE SMT. VEENA MALIK BEFORE THE A.O TO SUBSTANTIATE THE NATURE OF SERVICES RENDERED BY HER, THE A.O DISALLOWED THE COMMISSION OF RS. 3,98,275/ - PAID TO HER. SIMILARLY, THE A.O CLUBBED THE SALARY RECEIVED BY THE WIFE OF THE ASSESSEE SMT. SARIKA IN THE HANDS OF THE ASSESSEE ON THE GROUND THAT SHE IS A HOUSEWIFE AND NOTHING WAS PRODUCED BEFORE HIM TO SUBSTANTIATE THAT SHE HAS CONTRIBUTED TO THE BUSINES S CARRIED ON BY HER HUSBAND FROM WHERE SHE HAS RECEIVED SALARY. WE FIND IN THE ABSENCE OF ANY DETAILS BEFORE THE LD. CIT(A), HE CONFIRMED THE ADDITION MADE BY THE A.O. IT IS THE SUBMISSION OF THE LD. AR THAT GIVEN AN OPPORTUNITY, HE WILL PRODUCE SMT. VEE NA MALIK BEFORE THE A.O TO SUBSTANTIATE THE NATURE OF SERVICES RENDERED BY HER. CONSIDERING THE TOTALITY OF THE FACTS A ND CIRCUMSTANCE OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE A.O WITH A DIRECTI ON TO GIVE ONE MORE OPPORTUNITY TO 5 ITA NO.1068/DEL/2014 THE ASSESSEE TO PRODUCE SMT. VEENA MALIK FOR HIS EXAMINATION AND SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGARDING THE NATURE OF SERVICES RENDERED BY HER TO GET SUCH HUGE COMMISSION. SIMILARLY, THE ASSESSEE IS ALS O DIRECTED TO PRODUCE SMT. SARIKA BEFORE THE A.O TO SUBSTANTIATE THE NATURE OF SERVICES RENDERED BY HER TO GET SALARY FROM A CONCERN OWNED BY HER HUSBAND. THE A.O IS DIRECTED TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. ABOVE TWO GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 7 .0 4 .2017. SD/ - SD/ - ( BEENA PILLAI ) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB E R DATED: 1 7 . 0 4 .2017 V. LAKSHMI COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR 6 ITA NO.1068/DEL/2014 DATE DRAFT DICTATED ON 11 .0 4 .2017 DRAFT PLACED BEFORE AUTHOR 12 .0 4 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .0 4 .2017 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.