ITO, Ludhiana V. M/s Sh. Kulwant Singh, Ludhiana

ITA 1154/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90237 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Reason to believe
• Section: 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1154/CHD/2013 ASSESSMENT YEAR: 2009-10 THE ITO, VS SHRI KULWANT SINGH, WARD III(4), S/O SHRI JAGMIL SINGH, LUDHIANA. VPO LALTON KALAN, LUDHIANA. PAN: EOTPS2485N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MITTAL, DR RESPONDENT BY : SHRI SURINDER MAHAJAN DATE OF HEARING : 09.07.2015 DATE OF PRONOUNCEMENT : 15.07.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. CIT(APPEALS)-I LUDHIANA DATED 30.09.2013 FOR ASSESSMENT YEAR 2009-10 CHALLENGING THE QUASHING OF THE RE-OPENING OF THE ASSESSMENT UNDER SECTION 147/148 OF THE INCOME TAX ACT AND IN DELETING THE ADDITION OF RS. 50,50,000/- IN BANK ACCOUNT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE IS AGRICULTURIST. THE CASE WAS TAKEN UP FOR SCRUTINY ASSESSMENT AFTER RE-OPENING DONE UNDER SECTION 147/ 148 OF THE ACT. THE ASSESSING OFFICER NOTED IN THE ASS ESSMENT 2 ORDER THAT ASSESSEE HAD MADE DEPOSIT OF RS. 50,50,0 00/- WITH BANK OF INDIA, LUDHIANA. ON THE BASIS OF THIS INFORMATION, THE CASE WAS REOPENED. THE EXPLANATIO N OF THE ASSESSEE WAS CALLED FOR. HOWEVER, IN THE ABSEN CE OF ANY REPRESENTATION FROM THE SIDE OF THE ASSESSEE, ASSESSING OFFICER MADE ADDITION OF RS. 50,50,000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT WITH BANK OF INDIA, LUDHIANA. 3. THE ASSESSEE CHALLENGED THE RE-OPENING OF THE ASSESSMENT AND ADDITION OF RS. 50,50,000/- BEFORE L D. CIT(APPEALS). THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) THAT ASSESSEE DID NOT HAVE ANY BANK AC COUNT IN BANK OF INDIA, LUDHIANA. THEREFORE, ACTION OF T HE ASSESSING OFFICER IS WHOLLY UNJUSTIFIED. THE COMME NTS OF THE ASSESSING OFFICER WERE CALLED FOR ON THE SUBMIS SIONS OF THE ASSESSEE. THE ASSESSING OFFICER IN HIS REMA ND REPORT SUBMITTED THAT DEPARTMENT HAS RECEIVED INFORMATION THAT ASSESSEE HAD DEPOSITED CASH AMOUNT ING TO RS. 50,50,000/- IN HIS SAVING BANK ACCOUNT ON TH E BASIS OF WHICH, ASSESSMENT WAS REOPENED. IT WAS AL SO REPORTED THAT THOUGH INFORMATION WAS RECEIVED OF AB OVE CASH DEPOSITS BY THE ASSESSEE IN THE SAVING BANK AC COUNT BUT NAME OF THE BANK WAS NOT MENTIONED AS PER INFORMATION PLACED ON RECORD. THE ASSESSING OFFICE R HAS MISTAKENLY MENTIONED THE NAME OF THE BANK AS BANK O F INDIA. 3 3(I) THE ASSESSEE IN THE REJOINDER SUBMITTED BEFORE LD. CIT(APPEALS) THAT HE IS AGRICULTURIST AND HAS AGRIC ULTURE INCOME ONLY AND HE HAS NOT DEPOSITED ANY AMOUNT WIT H BANK OF INDIA, LUDHIANA. THEREFORE, RE-OPENING OF THE ASSESSMENT IS INVALID AND THAT ADDITION IS ALSO WHO LLY UNJUSTIFIED. THE ASSESSING OFFICER DID NOT HAVE AN Y REASON TO BELIEVE THAT INCOME ESCAPED ASSESSMENT. THE ASSESSEE ALSO RELIED UPON CERTAIN DECISIONS IN SUPP ORT OF THE CONTENTION. THE ASSESSEE ALSO FILED AFFIDAVIT CONFIRMING THEREIN THAT ASSESSEE HAD NOT DEPOSITED ANY AMOUNT IN HIS SAVING BANK ACCOUNT IN INDIA DURING T HE YEAR UNDER CONSIDERATION. 4. THE LD. CIT(APPEALS), CONSIDERING THE FACTS OF T HE CASE IN THE LIGHT OF THE SUBMISSIONS OF ASSESSEE AN D REMAND REPORT, QUASHED THE RE-OPENING OF THE ASSESS MENT AS WELL AS DELETED THE ADDITION ON MERITS. THE FIN DINGS OF LD. CIT(APPEALS) IN PARA 7 OF THE ORDER ARE REPRODU CED AS UNDER: 7. I HAVE CONSIDERED THE FACTS OF THE CASE AND IT IS SEEN THAT THE NOTICE U/S 148 HAD BEEN ISSUED TO THE APPE LLANT ON THE BASIS OF INFORMATION THAT HE HAD DEPOSITED A N AMOUNT OF RS.50,50,000/- IN A BANK ACCOUNT. IT HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS THAT THE ONLY INFORMATION AVAILABLE WITH THE DEPARTMENT AT THE TIME OF REOPENING OF THE ASSESSME NT WAS THAT A PERSON WITH THE SAME NAME AS THAT OF THE ASSESSEE HAD DEPOSITED RS.50,50,000/- IN A BANK ACC OUNT, DETAILS OF WHICH WERE NOT AVAILABLE. THE ASSESSING OFFICER ON THE BASIS OF THIS INFORMATION PROCEEDED TO REOPE N THE 4 CASE FOR THE YEAR UNDER CONSIDERATION. I DO NOT THI NK THAT THE LIMITED INFORMATION IN POSSESSION OF THE ASSESS ING OFFICER WAS SUFFICIENT TO FORM A BELIEF THAT INCOME TO THE TUNE OF RS. 50,50,000/- HAD ESCAPED ASSESSMENT. THE INFORMATION, IN FACT CANNOT BE SAID TO BE COMPLETE TILL THE ACCOUNT NUMBER AND THE BANK BRANCH IN WHICH THE SAI D COUNT IS OWNED BY THE ASSESSEE ARE BROUGHT ON RECOR D BEFORE ASSESSMENT IS REOPENED. IT IS INTERESTING TO NOTE THAT EVEN AFTER COMPLETION OF THE ASSESSMENT AND DU RING THE REMAND PROCEEDINGS, THE ASSESSING OFFICER HAS N OT BEEN ABLE TO BRING ON RECORD ANY FURTHER INFORMATIO N TO FORTIFY THE ORIGINAL INFORMATION. SO WHAT TRANSPIRE S AS ON DATE IS THAT THE ASSESSING OFFICER PROCEEDED TO ASS ESS THE INCOME OF THE APPELLANT MERELY ON THE GROUND THAT T HE AIR INFORMATION CONTAINED HIS NAME AND FIGURE OF RS.50,50,000/- WHICH WAS NOT PUT TO FURTHER VERIFIC ATION BY THE ASSESSING OFFICER EITHER AT THE TIME OF REOP ENING OR AT THE TIME OF ASSESSMENT. THE ASSESSEE ON THE OTHE R HAND FILED AN AFFIDAVIT STATING THEREIN THAT HE HAD NOT DEPOSITED ANY AMOUNTS IN ANY SAVING BANK ACCOUNT IN INDIA AND THE ASSESSING OFFICER ON BEING GIVEN THE OPPORTUNITY TO CONTRADICT THE ASSESSEE'S STATEMENT MADE THEREIN CO ULD NOT BRING ON RECORD THE DESIRED INFORMATION. IT FINALLY SETT LES THAT THERE HAS NOT BEEN ANY INFORMATION AGAINST THE ASSE SSEE TO WARRANT A BELIEF THAT HE HAD DEPOSITED AN AMOUNT OF RS. 50,50,000/- IN A SPECIFIED BANK ACCOUNT. THEREFORE T HERE IS NO LOGICAL BASIS FOR THE ASSESSING OFFICER TO PROCEED TO REOPEN THE ASSESSMENT AND THE REOPENING CANNOT BE H ELD TO BE VALID IN THE EYES OF LAW. EVEN OTHERWISE WITH REGARD TO THE MERITS OF THE CASE, NO ADDITION IS CALLED FO R AS EVEN DURING THE REMAND PROCEEDINGS NO EVIDENCE COULD BE B ROUGHT ON RECORD TO ESTABLISH THAT THE ASSESSEE OWNED A BAN K ACCOUNT IN WHICH AN AMOUNT OF RS.50, F 50,000/- HAS BEEN DEPOSITED. IN THE CIRCUMSTANCES, THE ASSESSEE SUCCEED S WITH REGARD TO GROUND OF APPEAL AT SERIAL NO. 2 AND 3. 5 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD AND DO NOT FIND ANY JUSTIFICATION TO TAKE A DIFFERENT VIEW AS HAVE BEEN TAKEN BY THE LD. CIT(APPEALS). IT IS A FACT THAT THOUGH THE REVENUE RECEIVED SOME INFORMATION THAT ASSESSEE HAS MADE DE POSIT OF RS. 50,50,000/- WITH BANK OF INDIA, LUDHIANA BUT IN FACT, NO ACCOUNT WAS FOUND TO HAVE BEEN MAINTAINED BY THE ASSESSEE WITH BANK OF INDIA, LUDHIANA. THEREFO RE, THERE IS NO QUESTION OF MAKING ANY DEPOSIT OF RS. 50,50,000/- WITH THE SAID BANK. THE ASSESSEE DENIE D DEPOSIT OF ANY AMOUNT IN THIS BANK ACCOUNT AND EVEN AT THE LATER STAGE BEFORE LD. CIT(APPEALS), THE ASSESS EE FILED AN AFFIDAVIT TO THE EFFECT THAT HE HAD NOT DEPOSITE D ANY AMOUNT IN ANY SAVING BANK ACCOUNT IN INDIA DURING T HE YEAR UNDER CONSIDERATION. THE REVENUE HAS NOT BROU GHT ANY MATERIAL AGAINST THE ASSESSEE FOR MAKING THE AD DITION OF THE AFORESAID AMOUNT. THE CONTENTIONS OF THE AS SESSEE HAVE NOT BEEN REBUTTED THROUGH ANY EVIDENCE. THE ASSESSING OFFICER WANTED TO MAKE ADDITION OF RS. 50,50,000/-. THEREFORE, BURDEN WOULD BE UPON ASSES SING OFFICER TO PROVE THAT IN FACT ASSESSEE MADE CASH DE POSIT OF RS. 50,50,000/- IN BANK OF INDIA, LUDHIANA. EVEN NO W DEPARTMENT IS NOT ABLE TO TELL IN WHICH BANK ASSESS EE HAS MADE CASH DEPOSIT. SINCE, REVENUE FAILED TO ESTABLI SH ANY CONNECTION WITH THE BANK DEPOSIT WITH BANK OF INDIA , LUDHIANA IN THE NAME OF ASSESSEE, THEREFORE, LD. CIT(APPEALS) WAS JUSTIFIED IN DELETING THE ADDITION . WE CONFIRM HIS ORDER AND DISMISS THIS GROUND OF APPEAL OF THE 6 REVENUE. SO FAR AS THE RE-OPENING OF THE ASSESSMEN T IS CONCERNED, IT IS LEFT WITH ACADEMIC NATURE ONLY BEC AUSE RE- OPENING WAS MADE WITH REGARD TO BANK DEPOSIT OF RS. 50,50,000/- ONLY. SINCE WE HAVE CONFIRMED DELETION OF THE ADDITION OF RS. 50,50,000/- THEREFORE, THERE IS NO NEED TO DECIDE THIS ISSUE AT THIS STAGE. 6. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY,2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH JULY,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH