Sh. Mohan Singh, Kharar V. ITO, Mohali

ITA 1131/CHANDI/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5096 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHSR
• Assessee Lawyers: S K MUKHI
• Keywords: Peak credit; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO.1131/CHD/2016 ASSESSMENT YEAR: 20 08-09 SHRI MOHAN SINGH, VS. THE ITO, H.NO. 243, WARD NO. 3, WARD 6(2), MUNDI KHARAR (PUNJAB). MOHALI. PAN NO. AWHPS2133B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MUKHI RESPONDENT BY : SHRI MANJIT SINGH,SR.DR DATE OF HEARING : 08.06.2017 DATE OF PRONOUNCEMENT : 07.06.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 11.08.2016 OF CIT (APPEALS )-2 CHANDIGARH PERTAINING TO 2008-09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : (A) THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONC URRING WITH THE ORDERS PASSED BY THE A.O., CONFIRMING ADDITION TO THE EXTE NT OF RS 11,50,000/- WHCIH IS ILLEGAL, WITHOUT JURISDICTION, ARBITRARY A ND THUS BAD IN LAW AND SO NEEDS TO BE QUASHED. (B) THAT WITHOUT PREJUDICE TO ABOVE, THE APPELLANT ALSO DISPUTES QUANTUM OF ADDITION AS HIGHLY EXCESSIVE AND THUS PE RVERSE. 2. THE LD. AR IN THE CONTEXT OF THE GROUND RAISED SUBMITT ED THAT THE DEPOSITS MADE IN THE SAID BANK ACCOUNT WERE NOT ADDRES SED BY THE ASSESSEE AS THE PRIMARY NAME IN THE SAID ACCOUNT WAS OF HIS WIFE EVEN THOUGH IT WAS A JOINT ACCOUNT WITH THE ASSESSEE. THE DE POSITS WERE FROM THE AGRICULTURAL INCOME, HOWEVER THE DETAILS COULD NOT BE E XPLAINED AS THE ASSESSEE WAS UNDER THE BELIEF THAT ONLY HIS SOLE ACC OUNT WAS BEING QUESTIONED. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT IN OR DER TO EXPLAIN THE DEPOSITS, THE ISSUE MAY BE RESTORED TO THE ASSESSIN G OFFICER. INVITING ATTENTION TO PAPER BOOK PAGE NO. 4 WHICH IS A COPY OF T HE STATEMENT OF ACCOUNT, IT WAS SUBMITTED THAT THE ASSESSEE HAS DEPOSIT ED AMOUNTS ON DIFFERENT DATES AND THEREAFTER MADE WITHDRAWALS AND SUBSE QUENTLY THE VERY SAME AMOUNTS WERE DEPOSITED BACK BECAUSE PURCHA SE OF SOME PROPERTY WAS CONTEMPLATED WHICH ULTIMATELY DID NOT MATER IALIZE. 2 ACCORDINGLY, IT WAS PRAYER THAT AT BEST ONLY THE PEAK AMOUNT MAY BE ADDED. 3. THE LD. SR.DR SHRI MANJIT SINGH, WAS REQUIRED TO ADDRESS THE LIMITED PRAYER OF THE ASSESSEE. ADDRESSING THE SAME IT WA S SUBMITTED BY HIM THAT THE ASSESSEE HAS REPEATEDLY TRIED TO AVOID DIS CLOSING THE SPECIFIC BANK ACCOUNT WHEREIN RS. 13,60,000/- WAS FOUND DEPOSITED IN THE YEAR UNDER CONSIDERATION. REFERRING TO AND READING OUT FROM TH E FINDINGS RECORDED IN THE ASSESSMENT ORDER, IT WAS SUBMITTED THAT DESPITE THE REPEATED QUERIES OF THE ASSESSING OFFICER, THE ASSESSEE H AS CONSISTENTLY MAINTAINED THAT HE WAS HAVING ONLY ONE BANK ACCOUNT NA MELY S.B. A/C NO. 594702010002901 WITH UNION BANK OF INDIA, SECTOR 40- C, CHANDIGARH. IN SUPPORT OF THE SAME, THE ASSESSEE PLACED ON RECORD COPY OF THE REGISTRATION DEED DATED 10.06.2005 IN RESPECT OF SA LE OF LAND MEASURING 12 KANAL 12 MARLA FOR RS. 35 LACS WHEREIN THE PROPORTIONATE SHARE OF THE ASSESSEE WAS RS. 5,84,000/- RECEIVED THROUG H BANK DRAFT OF CENTURIAL BANK OF PUNJAB LTD. HOWEVER, THE DEPOSIT OF RS. 13,60,000/- WAS FOUND TO HAVE BEEN MADE IN A DIFFERENT BANK AND ON D IFFERENT DATES AND ALSO AND NOT IN ROUND FIGURES. THUS, IT COULD NOT BE CO NSIDERED TO BE THE FDRS MATURED AMOUNT WHICH COULD HAVE BEEN SAID TO HAVE BEEN DEPOSITED BY THE ASSESSEE. THE AO CONFRONTED THE ASSE SSEE WITH THIS FACT. INVITING FURTHER ATTENTION TO THE FINDING OF THE ASSE SSING OFFICER, IT WAS EMPHASIZED THAT THERE WAS A COMPLETE GAP OF THREE FINANCIAL YEARS. THUS, IN THE ABSENCE OF ANY FACTS AND FIGURES, WHERE NO S ALES RECORDS OF ANY AGRICULTURAL PRODUCE WERE PLACED ON RECORD, THE ASSE SSEE WAS REQUIRED BY THE AO TO AGAIN EXPLAIN THIS FACT. READING FR OM THE ASSESSMENT ORDER, IT WAS THE SUBMISSION OF THE LD. SR.DR THAT THE BRAZEN ATTITUDE OF THE ASSESSEE IN TRYING TO MISLEAD THE DEPARTM ENT IS EVIDENT FROM THE FACT THAT AGAIN ON 27.12.2010, DURING THE ASSESSM ENT PROCEEDINGS, THE ASSESSEE MAINTAINED THAT HE HAD NO OT HER BANK ACCOUNT AND FURTHER CLAIMED THAT HE HAD NO KNOWLEDGE OF ANY OTHE R ACCOUNT. IT WAS SUBMITTED THAT IN COMPLETE DISREGARD TO THE FACTS, T HE ASSESSEE HAD THE AUDACITY TO FILE THE AFFIDAVIT AGAIN MENTIONING THAT THIS W AS THE SOLE BANK ACCOUNT OF THE ASSESSEE I.E. THE S.B. ACCOUNT WITH T HE UNION BANK OF INDIA. WITH REGARD TO THE CASH DEPOSIT OF RS. 13,60,000/ -, THE ASSESSEE WAS AGAIN AUDACIOUS TO ASK THE DEPARTMENT TO PROVIDE THE DETAILS CLAIMING NO KNOWLEDGE OF ANY OTHER BANK ACCOUNT. T HE ADDITIONS, IN THESE CIRCUMSTANCES WERE MADE BY THE ASSESSING OFFICE R AS THE 3 AMOUNT OF RS. 13,60,000/- IN S.B. A/C NO. 20060065 IN THE CA THOLIC SYRIAN BANK, CHANDIGARH IN THE NAME OF SMT. AJMER KAUR W/O SARDAR MOHAN SINGH WAS EVIDENT. 3.1 IT IS ONLY IN THE APPELLATE PROCEEDINGS BEFORE THE CIT (A) THAT THE ASSESSEE CAME UP WITH ANOTHER BANK ACCOUNT JOINTLY HE LD WITH HIS WIFE SMT. AJMER KAUR IN CATHOLIC SYRIAN BANK LTD., CHANDIGARH HA VING BANK ACCOUNT NO. 20060065. THE MATTER WAS REMANDED BY THE CIT(A) AND EVEN THEN THE ASSESSEE COULD NOT EXPLAIN THE DEPOSIT. A CCORDINGLY, IT WAS HIS SUBMISSION THAT THE ADDITION TO THE EXTENT SUSTAINED BY THE LD. CIT(A) SHOULD BE RETAINED. 4. THE LD. AR IN REPLY SUBMITTED THAT THE RELIEF GRANTED BY THE LD. CIT(A) IS NOT SUFFICIENT AS THE ASSESSEE UNDER A MISTAKEN BELIEF, REPEATEDLY GAVE EVIDENCES ONLY OF HIS OWN BANK ACCOUN T AND DID NOT UNDERSTAND THAT THE JOINT ACCOUNT WITH HIS WIFE WAS ALSO BEING ENQUIRED INTO. ACCORDINGLY, IT WAS HIS PRAYER THAT THE ASSESSEE MAY BE PR OVIDED AN OPPORTUNITY TO ADDRESS THE PROPER FACTS WITH EVIDENCES, IF NEED BE . 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. I FIND THAT THE SUBMISSIONS OF THE LD. SR.DR THAT THE ASSESSEE HAS NOT COME UP WITH FULL FACTS AND FIGURES AND INFACT, HAS T RIED TO AVOID MENTIONING THE JOINT ACCOUNT OWNED ALONGWITH HIS WIFE, IS A FACT ON RECORD. WHETHER THIS WAS A CONSCIOUS AND A DELIBERATE ACT OR A MISTAKEN ACT, IS NOT COMING OUT FROM THE ORDERS. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE HAS DECLARED INCOME FROM HOUSE PROPE RTY AND AGRICULTURAL INCOME, HOWEVER THE FACT REMAINS THAT THE PRA YER THAT THE ADDITION BE LIMITED TO PEAK CREDIT OR THAT IT WAS THE SAME AMOUNT WHICH WAS BEING RE-DEPOSITED AS THE TRANSACTION OF PURCHASE FOR WHICH IT WAS WITHDRAWN DID NOT MATERIALIZE CAN ONLY BE CONSIDERED WHEN SUPPORTING FACTS ARE MADE AVAILABLE. SINCE NO SUPPORTING EVIDENCES ARE RELIED UPON BEFORE THE TAX AUTHORITIES, THESE FACTS ARE NOT COMING OUT FROM THE O RDERS. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IS SUE IS SET ASIDE BACK TO THE FILE OF THE ASSESSING OFFICER WHEREIN THE ASSES SEE IS DIRECTED TO PLACE FULL FACTS AND EVIDENCES BEFORE THE ASSESSING OFFICER . IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED AND IS U TILIZED BY MAKING A COMPLIANCE BEFORE THE SAID AUTHORITY. IT IS MADE CLEAR TH AT IN THE EVENTUALITY OF ABUSE, THE ASSESSING OFFICER WOULD BE AT LIBERT Y TO PROCEED TO DECIDE THE ISSUES ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4 ACCORDINGLY, IN THE BEST INTEREST OF THE TAX PAYER ITSELF, T HE ASSESSEE IS ADVISED TO COME UP WITH FULL FACTS AND SUPPORTING EVIDENCE S. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JUNE,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.