Ajit Singh, Gurgaon V. ITO, Faridabad

ITA 1202/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3149 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 04-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAKSHI RANI CA MS BEDOBANI
• Keywords: Gift; Additional evidence

Judgement Text

PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO.1202/DEL/201 6 ASSESSMENT YEAR : 2011-12 AJIT SINGH, BEHIND POWER HOUSE, VPO MANESAR GURGAON 122050 PAN AHKPS5666H VS. ITO WARD- 2(2) FARIDABAD (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTE D AGAINST THE ORDER OF LD. CIT(A) (1) GURGAON DATED 3 RD JANUARY, 2016 FOR ASSTT. YEAR 2011-12, CHALLENGING THE ADDITION OF RS. 22,16,500/- ON ACCO UNT OF CASH DEPOSIT IN THE BANK ACCOUNT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT AO HAS NO TED IN THE ASSESSMENT ORDER THAT THE ASSESSEE FOR YEAR UNDER C ONSIDERATION HAD CASH DEPOSITS OF RS. 25,66,500/- IN HIS BANK ACCOUN T MAINTAINED WITH CORPORATION BANK, MANESER. THE ASSESSEE WAS ASKED T O PRODUCE THE ASSESSEE BY : MS. SAKSHI RANI, CA DEPARTMENT BY: MS. BEDOBANI, SR.DR DATE OF HEARING 03//05/2017 DATE OF PRONOUNCEMENT 16 /05/2017 ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 2 OF 9 SOURCE OF THIS CASH DEPOSIT ALONG WITH THE EVIDENC E TO SUPPORT HIS CLAIM. THE ASSESSEE STATED THAT THE AMOUNT WAS TAKEN FROM HIS MOTHER BUT COULD NOT PRODUCE ANY EVIDENCE IN THIS REGARD AND S TATED THAT SAME WILL BE SUBMITTED SHORTLY. FURTHER THE ASSESSEE FILED A IKRARNAMA AND CERTIFICATE FROM VILLAGE SARPANCH THAT HIS MOTHER I S LEGAL HEIR OF HIS MATERNAL GRANDMOTHER (MOTHERS MOTHER), HOWEVER, TH E ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO PROVE THE SOURCE OF CAS H DEPOSITS. HENCE THE SAME WAS TREATED AS UNDISCLOSED INCOME BY THE AO WI THIN THE MEANING OF SECTION 69A OF THE I.T. ACT AND MADE ADDITION OF RS. 25,66,500/- TO THE INCOME OF THE ASSESSEE. THE ASSESSEE AT THE APP ELLANT PROCEEDINGS MOVED APPLICATION FOR ADDITIONAL EVIDENCE IN THE FO RM OF ABOVE MENTIONED IKRARNAMA AND A COPY OF THE BANK STATEMEN T OF HIS GRANDMOTHER. THE ASSESSEE REQUESTED FOR ADMISSION O F THE SAME AS ADDITIONAL EVIDENCE. THE AO HAS FILED HIS COMMENTS ON THE SAME WHICH IS REPRODUCED ON THE IMPUGNED ORDER IN WHICH THE AO REITERATED THE FACTS STATED IN THE ASSESSMENT ORDER AND ALSO SUBMI TTED THAT ASSESSEE REPLIED THAT THE CASH WAS ARRANGED FROM HIS MOTHER THROUGH GIFT AND HER MOTHER GOT THIS CASH FROM HER OWN MOTHER. IT WAS AL SO STATED THAT CASH WAS WITHDRAWN FROM THE BANK ACCOUNT OF MATERNAL GRA NDMOTHER OF THE ASSESSEE (LATE SMT. SARASWATI DEVI). THE ASSESSEE F URNISHED COPY OF IKRARNAMA ONLY AND NOT SOURCE OF THE CASH DEPOSIT W AS FURNISHED. THE AO OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVID ENCE. THE AO ALSO REPRODUCED THE BANK ACCOUNT OF LATE SMT. SARASWATI DEVI AND STATED THAT FROM HER ACCOUNT THERE IS A WITHDRAWAL OF RS. 25 LAC ON 18 TH AUGUST, ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 3 OF 9 2009 AND RS. 42 LACS ON 9 TH OCTOBER, 2009. IT IS STATED THAT SHE HAS RECEIVED COMPENSATION BUT NO EVIDENCE HAS BEEN FURN ISHED. THEREFORE RECEIPT OF COMPENSATION REMAINED UNVERIFIED. NO GIF T DEED IF ANY IS EXECUTED BY SMT. SARASWATI DEVI MATERNAL GRANDMOTHE R IN FAVOUR OF SMT. VIDYA DEVI MOTHER OF THE ASSESSEE. ONLY COPY O F THE IKRARNAMA IS FILED WHICH ALSO SPEAKS COMPENSATION EQUIVALENT TO ONE ACRE IS TO BE GIVEN TO SMT. VIDYA DEVI MOTHER OF THE ASSESSEE. NO OTHER DETAILS HAVE BEEN MENTIONED. THE ASSESSEE AT THE REMAND PROCEEDI NGS EXPLAINED CASH IN HAND OF RS. 30, 70,000/- ON 1.4.2010 AND OU T OF IT CASH HAS BEEN DEPOSITED IN HIS BANK ACCOUNT AFTER A GAP RANGING 3 -10 MONTHS OF WITHDRAWAL FROM THE BANK ACCOUNT OF HIS GRANDMOTHER SMT. SARASWATI DEVI. NO EXPLANATION OF WHEN THE AMOUNT WAS RECEIVE D AND PURPOSE OF KEEPING CASH HAVE EXPLAINED. THE AO THEREFORE REPOR TED THAT CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION REMAINED UNAPPROVED AND REQUESTED THE LD. CIT(A) TO DISMISS THE APPEAL OF ASSESSEE. 3. THE ASSESEE IN THE REJOINDER REITERATED TH E SAME FACTS THAT LATE SMT. SARASWATI DEVI MATERNAL GRANDMOTHER WAS RESIDI NG WITH THE FAMILY AND HAS GIVEN AMOUNT TO HIS MOTHER SMT. VIDYA DEVI WHO IN TURN HAVE GIVEN THE AMOUNT TO THE ASSESSEE. 4. LD. CIT(A) ADMITTED THE ADDITIONAL EVIDEN CE I.E. COPY OF THE BANK ACCOUNT OF SMT. SARASWATI DEVI UNDER RULE 46A OF TH E I.T. RULES. LD. ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 4 OF 9 CIT(A) GAVE BENEFIT OF WITHDRAWAL AND RE DEPOSIT IN HIS FINDINGS, HOWEVER CONFIRMED THE ADDITION TO THE EXTENT OF RS. 22,16,500/-. HIS FINDINGS IN PARAS 3.6 TO 3.9 ARE REPRODUCED AS UNDE R :- 3.6 ON MERITS OF THE CONTENTION, I HAVE GIVEN CAREFUL CONSIDERATION TO THE ARGUMENTS OF THE APPELLANT. THE ASSESSING OFFICER HAS NOTICED THAT THE APPELLANT HA S DEPOSITED CASH AMOUNTING TO RS. 25,66,500/- IN HIS BANK ACCOU NT WITH CORPORATION BANK, MANESAR. THE FOLLOWING IS THE REL EVANT CASH DEPOSI TS IN THE ACCOUNT :- DATE OF DEPOSIT AMOUNT DEPOSITED 16.04.2010 61,500 16.04.2010 5,000 03.06.2010 50,000 07.10.2010 8,00,000 08.10.2010 5,00,000 10.11.2010 8,00,000 16.11.2010 50,000 21.02.2011 2,50,000 10.03.2011 50,000 TOTAL 25,66,500 THE ABOVE MENTIONED DEPOSITS OF CASH AMOUNTS HAVE STARTED FROM APRIL 2010 TILL MARCH 2010 BUT THE MAI N DEPOSIT IS IN OCTOBER 2010 (RS. 13 LAKHS) AND NOVEMBER 2010 (RS. 8.5 LAKHS). THE EXPLANATION OF THE APPELLANT IS THAT HIS GRANDM OTHER (MOTEHRS MOTHER )ORIGINALY BELONG TO RAJASTHAN BUT WAS STAYING WITH THE APPELLANT AS SHE HAD NO LEGAL HEIR. AFTER THE DEATH OF GRANDFATHER, SHE INHERITED SOME LANDED PROPERTY WHI CH WAS DUE TO RECEIVE CERTAIN COMPENSATION FROM RAJASTHAN GOVE RNMENT. THE GRANDMOTHER HAD EXECUTED AN IKARARNAMA 09.11.2009 I N THE FAVOUR OF THE MOTHER OF APPELLANT (VIDYA DEVI) CONS ENTING TO EITHER GIVE AMOUNT OF COMPENSATION EQUIVALENT TO ON E ACRE OR TRANSFER ONE ACRE LAND TO HER. THE GRANDMOTHER SUBS EQUENTLY IN HER LIFETIME GOT COMPENSATION FROM RAJASTHAN GOVERN MENT IN LIEU OF ACQUISITION OF HER LAND. THIS COMPENSATION WAS D EPOSITED IN THE AFORESAID BANK WITH THE RAJASTHAN BANK LTD. IT IS C ONTENDED THAT IN THE MONTH OF AUGUST AND NOVEMBER, 2009, THE MATE RNAL GRANDMOTHER WITHDREW LARGE CASH FROM HER ACCOUNT FR OM THE BANK OF RAJASTHAN LTD. AND THE CASH REACHED THE APPELLAN T AS BOTH THE MOTHER OF APPELLANT AND GRANDMOTHER WERE LIVING WIT H HIM. THE ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 5 OF 9 APPELLANT FURTHER CONTENDED THAT OUT OF THE AFORESA ID CASH AMOUNTS PERIODICALLY SOME CASH WAS GIVEN TO HIM BY HER MATERNAL GRANDMOTHER AS HE WAS TAKING CARE OF HER. IT WAS TH IS CASH WHICH HAS BEEN DEPOSITED IN THE BANK ACCOUNT. 3.7. IT IS A MATTER OF RECORD THAT CASH WITHDRAWAL S HAVE BEEN MADE FROM THE ACCOUNT OF GRANDMOTHER BUT THE ASSESS ING OFFICER HAS CHALLENGED THE CONTENTION STATING THAT RECEIPT OF COMPENSATION OF MATERNAL GRANDMOTHER HAS REMAINED U NVERIFIED. THERE IS NO GIFT DEED EXECUTED BY MATERNAL GRANDMOT HER AND LASTLY THERE IS A GAP OF 3 TO 10 MONTHS BETWEEN THE WITHDRAWAL MADE FROM THE BANK OF RAJASTHAN AND THE DEPOSITS MA DE IN THE CORPORATION BANK ACCOUNT OF THE APPELLANT. IN THE C ONSIDERATION OF THE FACTUAL SITUATION MENTIONED ABOVE THE APPELLANT HAS MERELY MADE A STATEMENT THAT THE CASH BELONGS TO HIS MATE RNAL GRANDMOTHER BUT NO EVIDENCE HAS BEEN PRODUCED AND N O INDEPENDENT WITNESS HAS BEEN EXAMINED TO SUBSTANTIA TE THE VERSION THAT THE CASH WAS ACTUALLY GIVEN BY THE MAT ERNAL GRANDMOTHER TO THE APPELLANT.. THE GAP OF DEPOSIT O F CASH AND PARTICULARLY SUCH LARGE CASH HAS ALSO NOT BEEN EXPL AINED BY THE APPELLANT EVEN DURING THE APPEAL PROCEEDINGS. IT IS SEEN THAT THE MATERNAL GRANDMOTHER WITHDREW CASH ON 18.08.2009 (R S. 25,00,000/- AND 09.10.2009 (RS. 42,00,000/-) WHICH MAKES A TOTAL OF RS. 67,00,000/-. THE FIRST LARGE OUTFLOW T O APPELLANT IF BELIEVED HAS HAPPENED ONLY IN OCTOBER 2010 WHICH IS ALMOST AFTER ONE YEAR AND AS ADMITTED THE GRANDMOTHER WAS AN OLD LADY AND IT IS UNEXPECTED THAT SHE CAN KEEP SUCH LARGE CASH WIT H HER AND IF THAT HAS HAPPENED NO INDEPENDENT STATEMENT OF ANY P ERSON HAS NOT BEEN RECORDED WHO COULD TESTIFY THAT SUCH LARGE CASH WAS KEPT IN PERSONAL CUSTODY FOR A LARGE PERIOD OF TIME . FURTHER, IF MATERNAL GRANDMOTHER WAS LIVING WITH THE APPELLANT, IT IS MUCH MORE CONVENIENT TO KEEP SUCH LARGE CASH IN THE BANK ACCOUNT. THE CONTENTION OF THE APPELLANT IS UNRELIABLE HENCE REJECTED. 3.8 HOWEVER, THE OTHER PART OF THE CONTENTION THAT THERE HAS BEEN CASH WITHDRAWAL AND REDEPOSIT IN THE CORPORATI ON BANK OF THE APPELLANT AND THE BENEFIT OF THE SAME NEED TO B E GIVEN TO THE APPELLANT NEEDS CONSIDERATION. FOR THIS PURPOSE, TH E ACTIVITY OF CASH DEPOSIT AND WITHDRAWAL IN THE CORPORATION BANK ACCOUNT OF THE APPELLANT IS POSTED IN A TABLE AS UNDER :- DATE AMOUNT DEPOSITED DATE SELF WITHDRAWAL 16.04.2010 61,500 16.04.2010 5,000 07.06.2010 26,500 03.06.2010 50,000 16.11.2010 5,00,000 07.10.2010 8,00,000 20.11.2010 1,00,0 00 08.10.2010 5,00,000 25.11.2010 20,000 ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 6 OF 9 10.11.2010 8,00,000 18.01.2011 20,000 16.11.2010 50,000 21.02.2011 2,50,000 10.03.2011 50,000 TOTAL 25,66,500 IT CAN BE SEEN ABOVE, THAT THERE HAS BEEN WI THDRAWAL OF RS. 5,00,000/- ON 16.11.2010 AND WHICH IS SUFFICIENT TO COVER DEPOSIT OF THE FOLLOWING CASH ON THE FOLLOWING DATES : 16.11.2010 50,000 21.02.2011 2,50,000 10.03.2011 50,000 THE APPELLANT IS ENTITLED TO BENEFIT OF RS. 3, 50,000/- WHICH HAS BEEN RE-DEPOSITED FROM THE AMOUNT WITHDRAWN. 3.9 IN CONSIDERATION OF THE MATTER ABOVE, AFTER GI VING THE BENEFIT OF RS. 3,50,000/- OUT OF THE TOTAL CASH DEPOSIT OF RS. 25,66,500/-, THE BALANCE AMOUNT OF RS. 22,16,500/- REMAINS AS UNEXPL AINED CASH DEPOSIT IN THE BANK ACCOUNT. THE GROUND OF APPEAL TO THAT E XTENT IS DISMISSED AND ADDITION TO THE EXTENT OF RS. 22,16,500/- IS SU STAINED. 5. IT MAY BE NOTED EARLIER THE APPEAL OF ASS ESSEE WAS DISMISSED FOR DEFAULT. HOWEVER THE MISCELLANEOUS APPLICATION OF A SSESSEE WAS ALLOWED AND APPEAL WAS REFIXED FOR HEARING. 6. LD. COUNSEL FOR ASSESSEE REITERATED THE S UBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT SMT. SARASWATI DEVI RECEIVED COMPENSATION AND AMOUNT WAS DEPOSITED IN BANK ACCOU NT WHICH IN TURN WAS GIVEN TO SMT. VIDYA DEVI MOTHER OF THE ASSESSEE AND THAT SAME WAS GIVEN TO THE ASSESSEE WHICH WAS DEPOSITED IN BANK A CCOUNT OF THE ASSESSEE. ON THE OTHER HAND LD. DR RELIED UPON ORDE RS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE HAS FAILED TO PRO VE SOURCE OF THE ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 7 OF 9 CASH DEPOSIT IN HIS BANK ACCOUNT. THEREFORE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 7. I HAVE CONSIDERED RIVAL SUBMISSIONS AND DO N OT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE A UTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THERE ARE CASH DEPOSITS AMOUNTING T O RS. 25,66,000/- IN THE BANK ACCOUNT OF THE ASSESSEE ON VARIOUS DATES I .E THROUGHOUT THE YEAR. THE ASSESSEE EXPLAINED THAT HE HAS TAKEN THIS AMOUNT FROM HIS MOTHER FOR DEPOSIT BUT NO EVIDENCE OF SOURCE OF CAS H WITH HIS MOTHER SMT. VIDYA DEVI WAS FILED. THE ASSESSEE FURTHER EXP LAINED THAT SMT. SARASWATI DEVI MATERNAL GRANDMOTHER OF THE ASSESEE GAVE THE CASH TO HIS MOTHER SMT. VIDYA DEVI WHO HAS RECEIVED COMPEN SATION FROM RAJASTHAN GOVT. THE GRANDMOTHER HAS EXECUTED IKRARN AMA IN FAVOUR OF SMT. VIDYA DEVI. THE ASSESSEE ALSO EXPLAINED THAT S MT. SARASWATI DEVI HAS WITHDRAWN THE AMOUNT FROM HER BANK ACCOUNT WHIC H WAS AVAILABLE TO HIS MOTHER FOR GIVING CASH TO THE ASSESSEE. HOWE VER THE AO HAS CHALLENGED THIS CONTENTION BECAUSE THE RECEIPT OF C OMPENSATION BY SMT. SARASWATI DEVI REMAINED UNVERIFIED. FURTHER THERE I S NO GIFT DEED EXECUTED BY SMT. SARASWATI DEVI IN FAVOUR OF SMT. VIDYA DEVI. THERE IS A HUGE GAP BETWEEN THE WITHDRAWALS FROM THE BANK A CCOUNT OF SMT. SARASWATI DEVI AND DEPOSIT IN THE BANK ACCOUNT OF T HE ASSESSEE. WHATEVER CONTENTION WAS RAISED BY ASSESSEE THAT CAS H BELONG TO SMT. SARASWATI DEVI WHO IN TURN GAVE SMT. VIDYA DEVI AND THEN GIVEN TO THE ASSESSEE HAVE NOT BEEN PROVED THROUGH ANY EVIDENCE OR MATERIAL ON ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 8 OF 9 RECORD. NO INDEPENDENT WITNESS HAS BEEN PRODUCED TO SUBSTANTIATE THE FACT THAT CASH WAS ACTUALLY GIVEN BY SMT. SARASWATI DEVI. HOW A HUGE CASH IS KEPT BY SMT. SARASWATI DEVI IS NOT EXPLAINE D. LD. CIT(A) AND THE AO HAVE NOTED THAT SMT. SARASWATI DEVI WITHDREW CAS H ON 18 TH AUGUST, 2009 IN A SUM OF RS. 25 LACS AND ON 9.10.2009 THERE IS A WITHDRAWAL OF RS. 42 LACS IN CASH. HOWEVER THE ASSESSEE HAS BEEN MAKING CASH DEPOSITS IN HIS BANK ACCOUNT AFTER GAP OF LONG PERI OD ON DIFFERENT DATES. IF ANY CASH AMOUNT IS AVAILABLE TO MOTHER OF THE AS SESSEE WHICH IS ALLEGED TO HAVE BEEN GIVEN TO THE ASSESSEE, IT IS N OT EXPLAINED WHY ASSESSEE WAS MAKING DEPOSITS IN HIS BANK ACCOUNT ON DIFFERENT DATES OF DIFFERENT AMOUNT AND WHY FULL AMOUNT WAS NOT DEPOS ITED IN HIS BANK ACCOUNT AT THE EARLIEST. THIS ITSELF CREATE A SERIO US DOUBT IN THE EXPLANATION OF THE ASSESSEE OF AVAILABILITY OF THE CASH THROUGH HIS GRANDMOTHER. FILING A COPY OF IKRARNAMA AND CERTIFI CATE FROM VILLAGE SARPANCH WILL NOT PROVE THE SOURCE OF CASH DEPOSITE D IN THE BANK ACCOUNT OF THE ASSESSEE. IT THEREFORE STANDS PROVED ON RECORD THAT ASSESSEE DID NOT PRODUCE ANY EVIDENCE OF SOURCE OF CASH DEPOSITS IN HIS BANK ACCOUNT. IN THE ABSENCE OF ANY COGENT AND RELI ABLE EVIDENCE ON RECORD, I AM OF THE VIEW NO INTERFERENCE IS CALLED FOR IN THE MATTER. IT MAY BE NOTED THAT LD. CIT(A) HAS ALREADY EXTENDED R EASONABLE BENEFIT OF CASH WITHDRAWAL AND REDEPOSIT IN THE BANK ACCOUN T OF THE ASSESSEE. THEREFORE, LD. CIT(A) WAS JUSTIFIED IN CONF IRMING THE ADDITION OF ITA NO. 1202/DEL/2016 AJIT SINGH VS. ITO PAGE 9 OF 9 RS. 22,16,500/-. THE APPEAL OF THE ASSESSEE HAS NO MERIT. THE SAME IS ACCORDINGLY DISMISSED. 8. IN THE RESULT APPEAL OF THE ASSESEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT. SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 16 . 5.2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR