Kiran Devi, V. ACIT CC-14,

ITA 1129/DEL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9606 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 21-01-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 28-03-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: RANJEET KESWANI
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI D.R.SINGH, JM AND SHRI R.C.SHARMA, AM ITA NO.1129/DEL/2008 ASSESSMENT YEAR : 1998-99 SMT.KIRAN DEVI, F-1U 112, PITAM PURA, DELHI. PAN NO.AAKPD2954J. VS. ASSTT.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-14, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RANJEET KESWANI, CA. RESPONDENT BY : SMT.KAVITA BHATNAGAR, CIT-DR. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A) DATED 30.1.2008 FOR THE AY 1998-99, IN THE MATTER OF ORDE R PASSED U/S 153C OF THE IT ACT. 2. THE GRIEVANCE OF THE ASSESSEE RELATES TO ADDITIO NS CONFIRMED U/S 68 IN RESPECT OF INVESTMENT IN IDBI BONDS AT RS.41,600/-, IMPROVEMENT OF PROPERTY AT RS.22,341/- AND GREATER NOIDA PROPERTY AT RS.79,850 /- AND ON ACCOUNT OF AVAILABLE CASH IN HAND AMOUNTING TO RS.2,05,265/-. DURING TH E COURSE OF HEARING, THE LEARNED AR ONLY PRESSED THE GROUND RAISED WITH RESP ECT TO ADDITION MADE ON ACCOUNT OF AVAILABLE CASH AMOUNTING TO RS.2,05,265/ -. ACCORDINGLY, WE DISMISS THE OTHER GROUNDS RAISED WITH RESPECT TO THE ADDITI ONS MADE U/S 68 IN-LIMINE AND ONLY ADJUDICATE UPON THE ADDITION MADE WITH RESPECT TO AVAILABLE CASH. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THERE WAS A SEARCH AT THE RESIDENTIAL PREMISES OF SHRI K.N.MEHROTRA. DURING THE COURSE OF SEARCH, CERTAIN DOCUMENT WAS ALLEGED BY SHRI MEHROTRA AS BE LONGING TO THE ASSESSEE SMT.KIRAN DEVI. ACCORDINGLY, THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ITA-1129/DEL/2008 2 SMT.KIRAN DEVI BY FRAMING ASSESSMENT U/S 153C OF TH E IT ACT. IN RESPECT OF CASH FOUND AT THE RESIDENCE OF THE ASSESSEE AT THE TIME OF SEARCH, THE AO ASKED THE AVAILABILITY OF CASH. THE CONTENTION OF THE ASSESS EE WAS THAT THERE WAS AN OPENING CASH BALANCE OF RS.6,70,095/- AS ON 1.4.1997, COPY OF BANK STATEMENT IN RESPECT OF ASSESSEES BANK ACCOUNT NO.7652 IN STATE BANK OF IN DIA FOR FY 1996-97 WAS ALSO SUBMITTED TO PROVE THE AVAILABILITY OF CASH PRIOR T O 1.4.1997. DETAILED STATEMENT OF AMOUNT WITHDRAWN FROM THE BANK AS WELL AS AMOUNT UT ILIZED WERE GIVEN ACCORDING TO WHICH THERE WAS A CLOSING BALANCE OF RS.6,70,095 /-. AFTER TAKING THIS AS OPENING BALANCE, THE CASH FOUND AT THE TIME OF SEAR CH WAS FOUND TO BE SUFFICIENTLY EXPLAINED. HOWEVER, THE AO DID NOT AGREE WITH THE SAME AND ADDED THE AVAILABLE CASH WHILE FRAMING THE ASSESSMENT U/S 153C. BY THE IMPUGNED ORDER, CIT(A) REWORKED OUT THE AVAILABLE CASH AND ADDITION WAS RE TAINED TO THE EXTENT OF RS.2,05,265/-, AGAINST WHICH THE ASSESSEE IS IN FUR THER APPEAL BEFORE US. 4. AT THE OUTSET, LEARNED AR PLACED ON RECORD THE O RDER OF THE ITAT IN THE CASE OF OTHER MEMBER OF THE SAME FAMILY GROUP IN IT A NO.1102/DEL/2008, ORDER DATED 16.10.2009, WHEREIN SIMILAR ADDITION MADE ON ACCOUNT OF AVAILABILITY OF CASH WAS DELETED BY THE TRIBUNAL. WE HAVE CAREFULLY GON E THROUGH THE ORDER OF THE TRIBUNAL IN THE CASE OF ANOTHER FAMILY MEMBER OF TH E ASSESSEE I.E. SMT.MEENA DEVI (SUPRA) WHICH ALSO PERTAINS TO THE SAME SEARCH BEING CARRIED OUT WHEREIN ADDITION WAS RETAINED BY THE CIT(A) ON ACCOUNT OF C ASH FOUND DURING THE COURSE OF SEARCH. FOLLOWING WAS THE OBSERVATION OF THE TRIBU NAL WHILE DELETING THE SAID ADDITION:- NOW, REGARDING LAST ITEM OF ADDITION OF RS.8,53,01 1/- ON ACCOUNT OF CASH IN HAND AS ON 1.4.1997, WE FIND THAT ALL THROU GH IT IS THE CLAIM OF THE ASSESSEE THAT SHE IS HAVING AGRICULTURAL INC OME AND CASH IN HAND IS OUT OF THIS AGRICULTURAL INCOME. IN THE PR ESENT YEAR ALSO, SHE HAS SHOWN AGRICULTURAL INCOME AT RS.3,47,388/- AND THE ASSESSING OFFICER HAS ACCEPTED THE SAME AND ADDED THE SAME FO R RATE PURPOSE ONLY ON LAST PAGE OF THE ASSESSMENT ORDER. AGRICUL TURAL LAND FROM WHICH AGRICULTURAL INCOME IS DECLARED IS OLD LAND A ND NOT NEW LAND ACQUIRED DURING THE PRESENT YEAR. IN THE BALANCE S HEET FOR YEAR ITA-1129/DEL/2008 3 ENDING 31.3.1996 & 31.3.1997 APPEARING ON PAGE NO.1 8 & 19 OF THE PAPER BOOK, AGRICULTURAL INCOME SHOWN IS RS.244,541 /- AND RS.286,086/- RESPECTIVELY. SIMILAR INCOME IS SAID TO BE THERE IN EARLIER YEARS. IN VIEW OF THESE FACTS, IT CANNOT B E SAID THAT THE SOURCE OF CASH IN HAND OF ON RS.853,011/- SHOWN BY THE ASS ESSEE AS ON 31.3.1997 IS NOT EXPLAINED. THE ASSESSING OFFICER HAS ACCEPTED THE CASH IN HAND TO THE EXTENT OF RS.1 LAKH WHEREAS LD. CIT(A) HAS ACCEPTED THE INCREASE IN CASH IN HAND DURING THIS Y EAR OF RS.152,473/- BEING DIFFERENCE OF RS.10,05,485/- (CL OSING BALANCE) AND RS.853,011/- (OPENING BALANCE). WE FAIL TO UND ERSTAND AS TO WHY SUCH OPENING CASH IN HAND OF RS.853,011/- IS TR EATED AS UNEXPLAINED WHEN INCREASE IN CASH IN HAND IN THE PR ESENT YEAR OF RS.152,473/- OUT OF AGRICULTURAL INCOME IS ACCEPTED AND SUCH AGRICULTURAL INCOME IN EARLIER YEARS CANNOT BE RULE D OUT AND THERE IS NO FINDING THAT SUCH AGRICULTURAL INCOME IN EARLIER YEARS WAS USED FOR SOME OTHER PURPOSES. IN VIEW OF ABOVE DISCUSSION, WE HOLD THAT OPENING CASH IN HAND IS ALSO EXPLAINED AND HENCE WE DELETE THIS ADDITION OF RS.853,011/-. 5. AS THE FACTS AND CIRCUMSTANCES OF THE CASE OF TH E ASSESSEE ARE IN PARI- MATERIA WITH THAT OF SMT.MEENA DEVI AS DISCUSSED HE REINABOVE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH AS N ARRATED ABOVE, WE DELETE THE ADDITION OF RS.2,05,265/- AS RETAINED BY THE CIT(A) . 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN PART. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST JANUARY, 2010. SD/- SD/- (D.R.SINGH) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09.02.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR ITA-1129/DEL/2008 4