Smt. Hemlata Mittal, Agra V. DCIT, New Delhi

ITA 1285/DEL/2015

• Counselvise Citation: 128520114 RSA 2015
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 22-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Salary income; Reassessment proceedings
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER ITA NO. 1285/DEL/2015 ASSTT. YRS: 2009-10 SMT. HEMLATA MITTAL, VS. DCIT, CENTRAL CIRCLE-07 , 67, NEHRU NAGAR, AGRA (UP) NEW DELHI. PAN: AUEPM 3904 B ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI RAJIV SAXENA ADV. MS. SUMANGLA SAXENA & SH. SHASHWAT BAJPAI ADV. ESPONDENT BY : SHRI S.K. JAIN ADDL. COMMISSIONER (DR) DATE OF HEARING : 22/07/2015. DATE OF ORDER : 08/10/2015. O R D E R PER S.V. MEHROTRA, A.M.. : THIS APPEAL, PREFERRED BY THE ASSESSEE, IS DIRECT ED AGAINST THE ORDER DATED 19-01-2015, PASSED BY THE LD. CIT(A)-24, NEW DELHI IN APPEAL NO. 566/14-15( OLD APPEAL NO. 180/10-11), RELATING TO A .Y. 2009-10. 2. BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEI ZURE OPERATION U/S 132 OF THE I.T. ACT WAS CARRIED OUT IN RAJDARBAR GROUP OF CASES ON 31-7-2008 AND IN 2 THE CASE OF ASSESSEE ON 26-8-2008 AT LOCKER NO. 488 , KEY NO. 38, FEDERAL BANK LTD., 6, RAGHUNATH NAGAR, MG ROAD, AGRA. 3. THE ASSESSEE HAD FILED HER RETURN OF INCOME DECL ARING AN INCOME OF RS. 1,50,590/-. THE AO OBSERVED THAT ASSESSEE WAS D ERIVING SALARY INCOME FROM M/S GEETA PIPAL, AGRA AND INTEREST INCOME ON L OAN GIVEN TO M/S RATAN DIESELS, AGRA, SH. ANKIT AGARWAL AND SH. NISHANT BA NSAL AND INTEREST INCOME ON SAVINGS BANK ACCOUNT. FROM THE BANK PASS BOOK OF SAVINGS BANK ACCOUNT IN THE FEDRAL BANK LTD., AGRA, THE AO NOTIC ED THAT THREE HIGH VOLUME CHEQUES WERE DEPOSITED. HE REQUIRED THE ASSE SSEE TO EXPLAIN THE SOURCE AND NATURE OF SUCH CREDITS WITH SUPPORTING D OCUMENTS. NO DETAILS WERE FURNISHED BEFORE THE AO. THE AO COMPLETED THE ASSESSMENT AFTER MAKING ADDITION OF RS. 5,50,000/- IN RESPECT OF FOL LOWING UNEXPLAINED CREDITS IN THE BANK ACCOUNT: DATE AMOUNTS (IN RS.) 10-07-2008 1,50,000/- 23-08-2008 2,00,000/- 11-02-2009 2,00,000/- TOTAL 5,50,000/- 4. BEFORE LD. CIT(A) THE ASSESSEE EXPLAINED THAT IT HAD A RUNNING BALANCE IN HER DEPOSIT ACCOUNT WITH M/S RATTAN DIESELS, AGR A. THE COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF SAID FIRM OF VARIOU S YEARS, STARTING FROM THE YEAR 1-4-2002 AND ENDING ON 31-3-2009 WERE FILED BE FORE LD. CIT(A0. THE 3 ASSESSEE FURTHER POINTED OUT THAT THE CREDIT BALANC E OF THE ASSESSEE IN THE BOOKS OF A/C OF THE SAID FIRM WAS RS. 1,25,219/- AS ON 1-4-2002, WHICH WAS INCREASED EVERY YEAR ON ACCOUNT OF CREDIT OF INTERE ST EARNED ON SUCH DEPOSIT. THE CREDIT BALANCE IN THE SAID A/C OF THE ASSESSEE IN THE BOOKS OF ACCOUNT OF THE SAID FIRM GREW UP TO RS. 3,58,581/- AS ON 1-4-2 008. THEN THE ASSESSEE HAD BEEN ISSUED CHEQUE OF RS. 1,50,000/- ON 9-07-20 08 BY THE SAID FIRM, WHICH WAS CREDITED IN THE BANK A/C OF THE ASSESSEE ON 10-7-2008. SIMILARLY, ANOTHER CHEQUE OF RS. 2,00,000/- WAS ISSUED BY THE SAID FIRM IN THE NAME OF THE ASSESSEE ON 22-8-2008, WHICH WAS CREDITED IN TH E BANK A/C OF THE ASSESSEE ON 23-8-2008. IT WAS POINTED OUT THAT THES E TRANSACTIONS WERE APPEARING IN THE BANK A/C OF THE ASSESSEE ON THE RE SPECTIVE DATES. THE ASSESSEE FURTHER POINTED OUT THAT IT HAD PAID THE A MOUNT OF RS. 1,50,000/- TO MR. NISHANT BANSAL VIDE CHEQUE NO. 626932 CLEARED I N BANK ON 14-7-2008. THE OTHER AMOUNT OF RS. 2,00,000/- WAS ALSO PAID TO MR. NISHANT BANSAL VIDE CHEQUE NO. 626933 CLEARED ON 27-8-2008. THE SAID MR . NISHANT MITTAL, HOWEVER, RETURNED BACK TO THE ASSESSEE AN AMOUNT OF RS. 2,00,000/- ON 11-2- 2009. HOWEVER, THE SAID AMOUNT OF RS. 2,00,000/- WAS THEN PAID TO MR. ANKIT AGARWAL BY THE ASSESSEE VIDE CHEQUE 626934, C LEARED ON 13-2-2009. COPIES OF ACCOUNT OF NISHANT BANSAL AND ANKIT AGARW AL WERE ALSO FILED BEFORE LD. CIT(A). 4 5. LD. CIT(A), HOWEVER, DID NOT ACCEPT THE ASSESSEE S CONTENTION, INTER ALIA, OBSERVING AS UNDER: IT IS OBSERVED THAT RATTAN DIESELS IS SUPPOSED TO BE (AS PER AR) PROPRIETARY CONCERN OF ONE MR. RAJENDRA MITTAL. HOWEVER. THE LETTER HEAD DOES NOT MENTION ANYTHING. ABOUT ST ATUS OF THE ENTITY. FURTHER, THE AR WAS UNABLE TO INFORM WHO T HIS RAIENDRA MITTAL WAS AND WHAT WE S HIS RELATION TO THE ASSESS EE. THE DOCUMENTS DO NOT SHOW ANY PAN 'NO. OF [HIS PERSON N AMED RAJENDRA MITTAL WHO IS SUPPOSED (0 BE THE PROPRIET ARY OF M/S RATTAN DIESELS. I ALSO NOTE HERE THAT IN ONE OF THE PHOTOCOPIES ONE MR. RAJENDRA MITTAL HAS SIGNED AS PROPRIETOR OF RATTAN DIESELS. BUT JUST BELOW THE SAME ASSESSEE HAS ALSO PUT HER SIGNATURE. IN THE RARER BOOK SUBMITTED DURING APPEA L PROCEEDINGS (HELD SIMULTANEOUSLY) AGAINST LEVY OF PENALTY ON THE SAME ADDITION, IT IS SEEN THAT THE ASSESSEE HAS ENCLOSED A BANK ACCOUNT OF M/S RATTAN DIESELS MAINTAINED WITH HDFC BANK. IN THE SAID PAGE. THERE IS NO MENTION OF PRO PRIETOR'S NAME. IT COULD BE A PARTNERSHIP ALSO AS THE NAME ST ARTS WITH M/S. 4.2.9. THE ABOVE FACTS SHOW THAT THE ASSESSEE DID N OT WANT TO GET THE SO CALLED CREDITOR EXAMINED OR HIS AFFAIRS SCRUTINIZED WHEN THE ASSESSMENT PROCEEDINGS WERE ALL. IT IS NOT ED THAT INCOME TAX PROCEEDINGS ARE. TIME BARRING IN THE NAT URE. BEYOND 6 YEARS THE ASSESSING OFFICER HAS NO POWER UNDER TH E ACT TO ASSESS/ REASSESS ANY INCOME. THE ASSESSEE, THEREFOR E, HAS ENSURED THAT THE TIME PERIOD FOR SCRUTINIZING THE A FFAIRS OF CREDITOR AND TO TAKE UP REASSESSMENT PROCEEDINGS (I N CASE WARRANTED) HAS GOT TIME BARRED. THEREFORE, I DO NO T CONSIDER THAT II WOULD BE APPROPRIATE TO ADMIT ADDITIONAL EV IDENCES WITH REGARD TO SUCH CASH CREDITS AT THIS STAGE. IN ANY C ASE THERE IS NO REQUEST MADE UNDER RULE 46A FOR ADMITTING ADDITIONA L EVIDENCES. 5 4.2.10. FURTHER, IT IS ALSO NOTICED THAT THE DOCUME NTS SUBMITTED ALSO DO NOT ESTABLISH THE IDENTITY AND GE NUINENESS OF THE TRANSACTION AS A GENUINE LOAN TRANSACTION. 6. LD. COUNSEL FOR THE ASSESSEE REFERRED TO PARA 3 OF THE ASSESSMENT ORDER AND POINTED OUT THAT INTEREST INCOME ON LOAN GIVEN TO M/S RATTAN DIESELS, ANKIT AGGARWAL AND SHRI NISHANT BANSAL HAD BEEN ASS ESSED TO TAX. HE REFERRED TO PAGE 41 OF PB, WHEREIN THE BANK A/C WIT H THE FEDERAL BANK LTD. OF ASSESSEE IS CONTAINED BEARING ACCOUNT NO. 12120 100102799, WHEREIN THERE ARE THREE IMPUGNED DEPOSITS OF RS. 1,50,000/- (INSTRUMENT NO. 926499) ON 10-7-2008; RS. 2,00,000/- (INSTRUMENT NO. 45669) ON 23-8-2008; AND RS. 2,00,000/- (INSTRUMENT NO. 59) ON 11-2-2009. 7. HE FURTHER REFERRED TO PAGE 34 OF THE PB, WHEREI N THE STATEMENT OF A/C OF ASSESSEE AS ON 31-3-2009 IN THE BOOKS OF RATTAN DIESEL IS CONTAINED TO DEMONSTRATE THAT RATTAN DIESELS HAD ISSUED THE CHEQ UE OF RS. 1,50,000/- ON 9-7-2008 AND THE CHEQUE OF RS. 2,00,000/- ON 22-8-2 008 IN FAVOUR OF ASSESSEE. 8. LD. COUNSEL FURTHER REFERRED TO PAGES 22 & 23 OF THE PB, WHEREIN THE BANK A/C IN THE HDFC BANK OF M/S RATTAN DIESELS IS CONTAINED BEING A/C NO. 01218020000254 TO DEMONSTRATE THAT CHEQUE NO. 92649 9 WAS ISSUED ON 9-7- 2008 IN FAVOUR OF HEMLATA MITTAL, THE ASSESSEE AND ON 22-8-2008 VIDE 6 INSTRUMENT NO. 45669 FOR RS. 2,00,000/- IN FAVOUR O F SMT. HEMLATA MITTAL, THE ASSESSEE. 9. WITH REFERENCE TO THESE DETAILS, LD. COUNSEL SUB MITTED THAT CHEQUE DETAILS IN BOTH ACCOUNTS VIZ. RATTAN DIESELS IN HD FC BANK AND ASSESSEE HEMLATA MITTAL IN THE FEDERAL BANK LTD. TALLIED. 10. LD. COUNSEL FURTHER REFERRED TO PAGES 28 TO 33 OF THE PB, WHEREIN COPY OF A/C OF ASSESSEE IN THE BOOKS OF RATTAN DIESELS F ROM FY 2003-04 TO 2007- 08 ARE CONTAINED TO DEMONSTRATE THAT IN EACH YEAR T HE INTEREST HAD BEEN CREDITED TO THE LOAN ACCOUNT OF ASSESSEE GIVEN TO R ATTAN DIESELS. THEREFORE, THE DEPOSITS OF RS. 3,50,000/- IN THE BANK A/C OF A SSESSEE STANDS FULLY EXPLAINED. 11. AS REGARDS THE DEPOSIT OF RS. 2,00,000/- ON 11- 2-2009, LD. COUNSEL REFERRED TO PAGE 24 OF THE PBH, WHEREIN COPY OF BAN K ACCOUNT OF NISHANT BANSAL BEING A/C NO. 0143001000050 IS CONTAINED TO DEMONSTRATE THAT CHEQUE OF RS. 2,00,000/- WAS ISSUED IN FAVOUR OF AS SESSEE VIDE INSTRUMENT NO. 59 DATED 10-2-2009. 12. LD. COUNSEL FURTHER REFERRED TO PAGE 35 OF THE PB, WHEREIN THE ASSESSEES ACCOUNT IN THE BOOKS OF NISHANT BANSAL I S CONTAINED TO DEMONSTRATE THAT TWO CHEQUES OF RS. 1,50,000/- AND RS. 2,00,000/- WERE RECEIVED BY NISHANT BANSAL FROM ASSESSEE, OUT OF WH ICH RS. 2,00,000/- WAS 7 RETURNED ON 10-2-2009, WHICH AMOUNT WAS CREDITED TO THE ACCOUNT OF ASSESSEE. 13. IN THE BACKDROP OF THESE EVIDENCES, LD. COUNSEL SUBMITTED THAT THE OBSERVATION OF LD. CIT(A) IN PARA 4.2.8, AS REPRODU CED E4ARLIER, ARE NOT CORRECT. LD. COUNSEL SUBMITTED THAT RAJENDRA MITTAL WAS THE PROPRIETOR OF M/S RATTAN DIESELS AND HE HAD SIGNED THE STATEMENTS . 14. LD. DR RELIED ON THE CIT(A)S ORDER. 15. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. AS FAR AS THE BANK STATEMENT OF M/S RATTAN DIESELS IN HDFC BANK CONTAINED AT PAGES 22 & 23 OF THE PB IS CONCERNED, I FIND THAT THE SAID BANK ACCOUNT IS IN THE NAME OF M /S RATTAN DIESELS. IT IS TRUE THAT THE SAID BANK ACCOUNT DOES NOT CONTAIN THE NAM E OF PROPRIETOR BUT THAT DOES NOT IMPLY THAT MERELY BECAUSE THE NAME STARTS WITH M/S, THEREFORE, IT COULD BE A PARTNERSHIP CONCERNS ACCOUNT. THIS OBSE RVATION OF LD. CIT(A) IS PURELY ON CONJECTURE. HE FAILED TO NOTICE THAT THE INSTRUMENT NUMBER IN THE BANK A/C OF M/S RATTAN DIESELS TALLIED WITH THE INS TRUMENT NUMBER IN THE BANK ACCOUNT OF ASSESSEE WITH FEDERAL BANK. THE DAT ES, AMOUNTS, CHEQUE 8 NUMBERS, NAME OF PARTIES, ALL TALLY AND, THEREFORE, THERE WAS NO REASON TO DOUBT THE GENUINENESS OF THESE TRANSACTIONS. THE AS SESSEE HAS FILED THE LEDGER ACCOUNT OF ASSESSEE IN THE BOOKS OF RATTAN DIESELS WHICH CLEARLY SHOW THAT IT IS AN OLD LOAN GIVEN BY ASSESSEE TO RATTAN DIES ELS ON WHICH INTEREST WAS REGULARLY EARNED BY ASSESSEE. FURTHER, THE AO HAS A SSESSED THE INTEREST INCOME RECEIVED FROM RATTAN DIESELS IN THE HANDS OF ASSESSEE AND, THEREFORE, THE GENUINENESS OF THE DEPOSITS IN THE ACCOUNTS OF ASSESSEE AS REFUND OF LOAN COULD NOT BE DOUBTED. 16. SIMILARLY, IN RESPECT OF NISHANT BANSAL, I FIND THAT ALL THE DETAILS ARE TALLYING IN RESPECT OF BANK A/C OF NISHANT BANSAL W ITH THE BANK A/C OF ASSESSEE INCLUDING INSTRUMENT NUMBER. HOWEVER, FROM PAGE 24 OF THE PB, WHEREIN BANK A/C OF NISHANT BANSAL IS CONTAINED, IT IS NOT COMING OUT VERY CLEARLY FROM THE SAID STATEMENT AS TO WHICH BANK I T RELATES TO THOUGH AT THE BOTTOM IT IS REFERRED TO AS KOTAK. THEREFORE, FO R THIS LIMITED PURPOSE, VERIFICATION BY AO IS REQUIRED. 17. IN VIEW OF ABOVE DISCUSSION THE ADDITION OF RS . 3,50,000/- IN RESPECT OF LOAN RECEIVED FROM RATTAN DIESELS IS SET ASIDE A ND AS REGARDS THE ADDITION OF RS. 2,00,000/- IN RESPECT OF REFUND OF LOAN FROM NISHANT BANSAL, THE 9 MATTER IS RESTORED BACK TO THE FILE OF AO FOR VERIF ICATION OF PAGE NO. 24 OF PB AND IF THE SAME IS FOUND TO BE CORRECT, THEN NO ADD ITION IS CALLED FOR. 18. ASSESSEES APPEAL STANDS ALLOWED ACCORDINGLY. ORDER PRONOUNCED IN OPEN COURT ON 08/10/2015. SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 08/10/2015. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. 10 -+ DATE INITIAL 1. DRAFT DICTATED ON -09.2015 PS 2. DRAFT PLACED BEFORE AUTHOR .09.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.