Mamta Aggarwal, New Delhi V. ITO, New Delhi

ITA 129/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4060 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 26-04-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SAHOTA
• Assessee Lawyers: MRS MAMTA AGGAR WAL
• Section: 142(1); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI SHRI.E. VEERABHADRAPPA, HONBLE VICE-PRESIDENT AND SHRI C.L. SETHI, JUDICIAL MEMBER ITA NO. 129/DEL/2010 ASSESSMENT YEAR: 2000-01 MRS. MAMTA AGGARWAL, M/S. LAXMI KANT ARORA, E-36/306, JAWAHAR PARK, LAXMI NAGAR, VIKAS MARG, NEW DELHI. VS. INCOME TAX OFFICER, WARD 34(2), VIKAS BHAWAN, INDRAPRASTHA ESTATE, NEW DELHI. PAN: AAOPA 8076 C APPELLANT RESPONDENT APPELLANT BY : MRS. MAMTA AGGAR WAL, ASSESSEE RESPONDENT BY : SHRI G.S. SAHOTA, SR. DR O R D E R PER: C.L. SETHI, J.M. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 2 7.10.2009 PASSED EX-PARTEE BY THE LD. CIT(A) IN THE MATTER OF AN ASS ESSMENT MADE BY THE AO U/S. 144/148 OF THE INCOME TAX ACT, 1961 (THE ACT ) FOR THE A.Y. 2000-01. 2. THE ASSESSEE HAS TAKEN A GROUND THAT THE LD. CIT (A) HAS ERRED IN PASSING THE ORDER WITHOUT AFFORDING REASONABLE OPPO RTUNITIES OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE HAS ALSO TAKEN A GRO UND THAT THE LD. CIT(A) HAD ERRED IN CONFIRMING THE ADDITION OF RS. 1 LAC ON AC COUNT OF AMOUNT RECEIVED ITA NO. 129/DEL/2009 PAGE 2 OF 4 BY THE ASSESSEE FROM ONE SHRI AJAY KUMAR GUPTA, WHI CH WAS DEPOSITED IN THE ASSESSEES BANK ACCOUNT. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 4. IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD R ECEIVED RS. 1 LAC ON 10.03.2000 FROM ONE SHRI AJAY KUMAR GUPTA ON THE BA SIS OF INFORMATION RECEIVED FROM THE ADDL. DCIT, RANGE 34, NEW DELHI . THE AO INITIATED PENALTY PROCEEDINGS U/S. 148 OF THE ACT. IN RESPON SE TO THE NOTICE, THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE RETURN AL READY FILED ON 31.07.2001 DECLARING TOTAL INCOME AT RS. 53,800/- MAY BE TREAT ED TO BE FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. THE AO ISSUED N OTICE U/S. 142(1) OF THE ACT TO THE ASSESSEE TO EXPLAIN ABOUT THE AMOUNT OF RS. 1 LAC RECEIVED BY CHEQUE NO. 774424 DATED 10.03.2000 FROM SHRI AJAY K UMAR GUPTA, AND ON FAILURE TO GIVE ANY REPLY THE SAID AMOUNT SHALL BE TREATED AS ASSESSEES INCOME. IN THE ABSENCE OF ANY EXPLANATION AS TO TH E NATURE OF RECEIPT, THE AO TREATED THE SAID AMOUNT AS ASSESSEES INCOME U/S . 68 OF THE ACT, AND PASS THE ASSESSMENT ORDER U/S. 144/148 OF THE ACT. 5. ON AN APPEAL, THE CIT(A) CONFIRMED THE AOS ORDE R AS THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A). THE CIT(A) HAD TAKEN A VIEW THAT THE AO HAS RIGHTLY TREATED THE SUM OF RS. 1 LAC AS ASSE SSEES INCOME FOR THE DETAILED REASONS GIVEN BY HIM IN THE ASSESSMENT ORD ER. ITA NO. 129/DEL/2009 PAGE 3 OF 4 6. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFOR E US. 7. WE HAVE HEARD THE ASSESSEE AS WELL THE LD. DR. 8. IN THE ASSESSMENT ORDER, THE AO HIMSELF STATED T HAT HE RECEIVED INFORMATION FROM THE ADDL. DCIT THAT THE ASSESSEE H AD RECEIVED THE SUM OF RS. 1 LAC ON 10.03.2000 FROM SHRI AJAY KUMAR GUPTA. THE AO HAS ALSO STATED THE CHEQUE NO. BY WHICH THE AMOUNT WAS RECEI VED BY THE ASSESSEE AND DEPOSITED IN THE ASSESSEES ACCOUNT. IT IS, THUS, CLEAR THAT THE IDENTITY OF THE PAYER AND THE GENUINENESS OF THE TRANSACTION IS EST ABLISHED. THIS IS NOT THE CASE WHERE THE ASSESSEE HAS NOT GIVEN THE SOURCE OF THE AFORESAID AMOUNT OF RS. 1 LAC. THE INFORMATION AS TO THE SOURCE AND TH E MODE OF PAYMENT WERE ALREADY AVAILABLE WITH THE AO. THE AO HAS CLEARLY ACCEPTED THE FACT THAT THE ASSESSEE HAD RECEIVED RS. 1 LAC ON 10.03.2000 FROM SHRI AJAY KUMAR GUPTA BY CHEQUE NO. 774424. THEREFORE, IN THIS CASE, THE SOURCE OF DEPOSIT HAS BEEN DULY ESTABLISHED. NOW, THE QUESTION ARISES AS TO WHETHER THE AFORESAID AMOUNT OF RS. 1 LAC RECEIVED BY THE ASSESSEE FROM S HRI AJAY KUMAR GUPTA, WHICH HAS BEEN DEPOSITED IN THE ASSESSEES BANK ACC OUNT, HAS BEEN INCLUDED IN THE TOTAL RECEIPTS SHOWN BY THE ASSESSEE DURING THE YEAR. THE ASSESSEE HAS ALREADY DECLARED AN INCOME OF RS. 53,800/- AGAINST THE VARIOUS RECEIPTS SHOWN IN THE PROFIT AND LOSS ACCOUNT. IT IS WELL S ETTLED THAT WHOLE OF THE RECEIPTS OF BUSINESS CANNOT BE BROUGHT TO TAX, IT I S ONLY NET PROFIT WHICH IS LIABLE TO BE TAXED. WE, THEREFORE, WE RESTORE THIS MATTER BACK TO THE FILE OF ITA NO. 129/DEL/2009 PAGE 4 OF 4 THE AO TO EXAMINE WHETHER THE ASSESSEE HAS SHOWN TH E RECEIPTS OF RS. 1 LACS IN PROFIT AND LOSS ACCOUNT, WHILE DETERMINING THE N ET PROFIT OF RS. 53,800/-, AND IF IT IS SO, THE WHOLE OF THE AMOUNT OF RS. 1 L AC CANNOT BE TREATED AS INCOME. THE AO SHALL PROVIDE REASONABLE OPPORTUNIT IES OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED. 10. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON 26 TH APRIL, 2010 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- ( G.E. VEERABHADRAPPA) VICE-PRESIDENT SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 26 TH APRIL, 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR