Sh. Gurinder Singh Toor, Nawanshahr V. ITO, Chandigarh

ITA 1300/CHANDI/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1767 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH !, ' # , . %.. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R. KUMAR , A M ./ ITA NO. 1300/CHD/2016 / ASSESSMENT YEAR : 2010-11 SH. GURINDER SINGH TOOR #644, SECTOR-11, CHANDIGARH NEW ADDRESS: SH. GURINDER SINGH TOOR M/S A.N. DIESEL PVT. LTD. CHANDIGARH ROAD, NAWASHAHR THE ITO WARD-1(4), CHANDIGARH ./ PAN NO: AEQPT0072H / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI. SUDHIR SEHGAL # ! ' / REVENUE BY : SMT. CHANDRAKANTA $ % ! &/ DATE OF HEARING : 26/09/2018 '()* ! &/ DATE OF PRONOUNCEMENT : 16/11/2018 ')/ ORDER PER DR. B.R.R. KUMAR, A.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A)-1, CHANDIGARH DT. 23/09/2016. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED FOLLOW ING AMENDED GROUNDS: 1. THAT THE WORTHY OMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISMISSING THEN APPEAL FILED BY THE APPELLANT. 2. THAT THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 50,00,000/- (FIFTY LACS ONLY), THE AMOUNT WHICH WAS RECEIVED BY THE APPELLANT AS ADVANCE AGAINST SALE OF LAND AND DEPOSITED THE SAME IN HIS ACCOUNT WITH AXIX BANK. 3. THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT DURING ASSESSMENT PROCEEDINGS, COPY OF THE AGREEMENT AGAIN ST SALE OF LAND RECEIVING SUM OF RS. 50,00,000/- (FIFTY LACS ONLY) WAS FILED BEFORE THE ASSESSING OFFICER, BUT WHILE PASSING THE ASSESSMENT ORDER, THE ASSESSING O FFICER HAS NOT MENTIONED THE TRUE FACTS AND NEITHER MADE ANY INQUIRY ON HIS BEHA LF. 4. THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT THE ASSESSEE HAD APPEARED BEFORE THE REVENUE OFFICER AN D FILED AN AFFIDAVIT AND GOT REGISTERED THE AGREEMENT TO SELL IN REVENUE REC ORDS ON 29.07.2009. ALL THESE FACTS WERE DISCLOSED TO THE ASSESSING OFFICER, BUT THERE WAS NO MENTION OF THE SAME BY THE ASSESSING OFFICER, WHILE PASSING THE AS SESSMENT ORDER. 5. THAT THE WORTHY CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 50,00,000/- IN RESPECT OF ADVANCE RECEIVED AGAINST THE SALE OF LAND ON THE BASIS OF REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER , WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE OR HIS COUNSEL TO CROSS EXAMINE SH. GURNAM SINGH, WHICH IS AGAINST THE LEGAL POSITION. 2 6.A)THAT THE WORTHY CIT(A) HAS ERRED IN HOLDING ADD ITION OF RS. 3,50,000/- MADE BY THE ASSESSING OFFICER BY HOLDING THAT THE SAID AMOU NT CANNOT BE INCLUDED IN THE CASH FLOW STATEMENT OF THE APPELLANT. B). THAT THE WORTHY CIT (A) HAS ERRED IN CONSIDERIN G THAT THE ASSESSING OFFICER HAS MADE ADDITION OF SAID SUM OF RS. 3,50,000/- AS ACCO RDING TO HIM, THE SAID AMOUNT WAS WITHDRAWN FROM HDFC ACCOUNT IN TWO FIGURES VIZ. RS. 3,00,000/- AND RS. 50,000/- BY CHEQUE, BUT IN FACT, THE SAID AMOUNTS W ERE WITHDRAWN BY CASH AS PER CERTIFICATE FROM THE BANK, ENCLOSED IN OUR WRITTEN SUBMISSION FILED BEFORE HIM. 7. THAT THE WORTHY CIT (A) HAS ERRED IN HOLDING THE AD DITION OF RS. 4,00,000/- (FOUR LACS ONLY) ERRONEOUSLY BY HOLDING THAT THE SA ID AMOUNT CANNOT BE INCLUDED IN THE CASH FLOW STATEMENT OF THE APPELLANT AS AMOU NT WAS WITHDRAWN BY SH. JASBIR SINGH AND NOT BY THE APPELLANT, WHICH, INFAC T, IS SELF WITHDRAWAL AS PER CERTIFICATE ENCLOSED WITH THE WRITTEN SUBMISSION FI LED BEFORE HIM. 8. THAT THE ADDITION AS ABOVE HAS BEEN MADE AGAINST TH E FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSION FILED DURI NG THE COURSE OF HEARING HAS NOT BEEN CONSIDERED PROPERLY. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME FOR A.Y. 2010-11 ON 31.03.2011 AT AN INCOME OF RS. 3,01,910/- AND AGRICULTURE, INCOME OF RS. 2,29,000/-. THE CASE WAS SELECTED FOR SCRUTINY AND ADDITION OF RS. 58,00,000/- WAS MADE TO THE ASSESSEE'S INCOME. DURI NG THE YEAR UNDER ASSESSMENT THE ASSESSING OFFICER RECEIVED INFORMATI ON THAT THE ASSESSEE HAS MADE CASH DEPOSITS OF RS. 1,02,88,000/- IN HIS AXIS BANK ACCOUNT. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THESE CASH DEPOSITS. THE ASSESSEE FILED A CASH FLOW STATEMENT WHEREIN HE EXP LAINED THE CASH DEPOSITS ON THE BASIS OF CASH FLOW. OUT OF RS. 1,02,88,000/-, T HE ASSESSEE WAS NOT ABLE TO SATISFY THE ASSESSING OFFICER WITH RESPECT TO CASH DEPOSITS AMOUNTING TO RS. 58,00,000/. 4. GROUND NO 2 TO 5 : AN ADDITION OF RS. 50,00,000/ - WAS MADE TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF DEPOSITS IN ITS AXIS BANK ACCOUNT ON VARIOUS DATES. IN THE ORDER, THE ASSESSING OFFICER HAS MADE THE FO LLOWING OBSERVATIONS: 'THE ASSESSEE HAS TAKEN CREDIT OF RS. 25 LACS AS AD VANCE AGAINST LAND, RS. 15 LACS ON 05.08.2009 AS ADVANCE AGAINST LAND, RS. 10 LACS ON 13.11.2009 AS ADVANCE AGAINST LAND. THE TOTAL CREDIT TAKEN BY THE ASSESSE E AS ADVANCE AGAINST LAND IS RS. 50 LACS WHEREAS THE ASSESSEE HAS FILED PHOTOCOP IES OF TWO REGISTRATION DEEDS WHICH INDICATES THAT ASSESSEE HAS SOLD HIS AGRICULT URAL LAND ON 11.08.2010 FOR A SUM OF RS. 39,60,000/. THE ASSESSEE HAS NOT FURNISH ED ANY EVIDENCE REGARDING THE ADVANCE TAKEN BY HIM AGAINST SALE OF LAND.' 6. BEFORE THE ASSESSING OFFICER ,THE ASSESSEE HAS EXPL AINED THAT THE MONEY WAS RECEIVED AS ADVANCE IN PURSUANCE OF AN AGREEMEN T TO SELL HIS AGRICULTURE LAND BUT THE AGREEMENT COULD NOT MATURE , SO THE ENTIRE AMOUNT WAS FORFEITED AS THE PURCHASER COULD NOT MAD E THE BALANCE PAYMENT, SO IT SHOULD BE TREATED AS A CAPITAL RECEI PT. AND HE FURTHER EXPLAINED THAT SINCE THE LAND WAS AN AGRICULTURAL L AND THEREFORE ANY SUM RECEIVED ON ITS SALE/ TRANSACTION WOULD NOT INVITE ANY TAXATION. 3 7. THE WRITTEN SUBMISSION OF THE ASSESSEE FILED BEFOR E REVENUE IS AS UNDER: '1. DURING ASSESSMENT PROCEEDINGS, THE APPELLANT A CASH FLOW STATEMENT EXPLAINING THE SOURCES OF CASH DEPOSIT IN HIS BANK ACCOUNTS. 2. THE CASH FLOW STATEMENT FILED BY THE ASSESSEE ALSO INCLUDED AN INFLOW TRANSACTION OF RS. 50 LACS ON ACCOUNT OF AGREEMENT TO SELL ENTERED INTO IN RESPECT OF APPELLANT'S AGRICULTURAL LAND. IN THE ASSESSMENT ORDER, THE BENEFIT OF THIS TRANSACTION WAS NOT ALLOWED BY THE LD. AO AND HE MA DE THE IMPUGNED ADDITION OF RS. 50 LACS. 3. IN REGARD TO THE AGREEMENT TO SELL IN RESPECT OF AB OVE AGRICULTURAL LAND, WE ARE ENCLOSING HEREWITH FOLLOWING DOCUMENTS: A) AGREEMENT TO SELL ENTERED INTO BETWEEN THE APPELLAN T AND THE PROPOSED PURCHASER ALONGWITH TRUE TRANSLATION FROM PUNJABI T O ENGLISH. B) COPY OF AFFIDAVIT FILED BEFORE LD. REVENUE OFFICER ALONGWITH TRUE TRANSLATION FROM PUNJABI TO ENGLISH. THE AGREEMENT TO SELL WAS ENTERED INTO 29.07.2009. THE LAST DATE FIXED FOR DEAL WAS 28.08. 2010. 28.08.2010 AND 29.08.2010 WERE HOLIDAYS. THE PROPOSED PURCHASER DID NOT APPEA R FOR MAKING THE BALANCE PAYMENT AND THEREFORE THE APPELLANT APPEARED BEFORE THE REVENUE OFFICER ON 30.08.2010 TO DEMONSTRATE HIS BONAFIDES AND TO CONF IRM THAT HE IS READY TO COMPLETE THE DEAL. 4. ALL THE ABOVE FACTS WERE EXPLAINED TO THE LD. AO DU RING THE ASSESSMENT PROCEEDINGS. COPY OF THE RELEVANT WRITTEN SUBMISSIO N FILED BEFORE THE LD. AO DURING THE ASSESSMENT PROCEEDINGS IS ENCLOSED. THE LD. AO DID NOT APPRECIATE THE SUBMISSION AND EVEN DID NOT RECORD THE CORRECT FACTS IN THE ASSESSMENT ORDER. 5. THE ACCEPTANCE OF RS. 50 LACS IN CASH FROM THE PROP OSED PURCHASER OF AGRICULTURAL LAND AND ITS CASH DEPOSIT IN THE BANK ACCOUNT WAS A CORRECT AND GENUINE FACT. COMPLETE DETAILS OF PURCHASER WERE PR OVIDED TO THE LD. AO BUT HE DID NOT MAKE ANY ENQUIRY IN THIS REGARD AND WITHOUT ANY ENQUIRY WENT ON TO MAKE THE IMPUGNED ADDITION IN THE HAND OF THE APPELLANT. FURTHER, THE APPEARANCE OF THE APPELLANT BEFORE THE LD. REVENUE OFFICER COULD NOT HAVE BEEN AN AFTER- THOUGHT. FURTHERMORE, THE LAND FOR WHICH THE ADVANC E WAS RECEIVED IS NOT A CAPITAL ASSET U/S 2(14) OF THE INCOME TAX ACT, AS T HE SAME IS LOCATED BEYOND THE 8 KMS OF THE NEAREST MUNICIPAL LIMITS OF NAWASHAHAR . COPY OF THE RELEVANT CERTIFICATE EVIDENCING THE LOCATION OF LAND BEYOND 8 KMS OF LOCAL LIMIT ISSUED BY TEHSILDAR IS ENCLOSED. THEREFORE, EVEN THE RECEIPT OF ADVANCE TOWARDS THE SALE OF SUCH LAND COULD NOT HAVE BEEN HELD TO BE TAXABLE RE CEIPTS IN THE HAND OF THE APPELLANT. APPROPRIATE RELIEF IS PRAYED. IN THE LIGHT OF THE ABOVE FACTS, CIRCUMSTANCES, LEG AL POSITION AND SUBMISSION, IT IS PRAYED THAT THE GROUND OF THE APPELLANT MAY PLEASE BE ALLOWED.' 6. DURING THE COURSE OF APPELLATE PROCEEDINGS, A LETTE R WAS ISSUED TO ITO, WARD-1(4), WHEREIN THE ASSESSING OFFICER WAS DIRECT ED TO VERIFY THE CLAIM OF THE ASSESSEE THAT HE HAD RECEIVED RS. 50,00,000/- FROM SH. SARABJIT SINGH, SH. BAHADAR SINGH, SH. GURMAIL SINGH & SH. GURNAM SINGH AND ALSO DEMONSTRATE THE BONAFIDE OF THE ASSESSEE WITH RESPECT TO HIS APPEAR ANCE BEFORE THE REVENUE OFFICER AS CLAIMED BY HIM. THE ASSESSING OFFICER WA S ALSO ASKED TO SUMMON THE STATED PURCHASERS AND CONFRONT THEM WITH RESPECT TO THE CASH PAYMENTS MADE BY THEM. THE ASSESSING OFFICER SUBMITTED A REMAND R EPORT, THE RELEVANT PORTIONS ARE QUOTED BELOW: 4 'KINDLY REFER TO YOUR OFFICE LETTER F.NO. CIT(A)/CH D/2014-15/188 DATED 16.03.2015 ON THE SUBJECT CITED ABOVE. IN THIS CONNECTION, IT IS SUBMITTED THAT AS PER YO UR WORTHY DIRECTIONS, SUMMONS WERE ISSUED TO SH. SARABJIT SINGH, SH. BAHADAR SING H, SH. GURNAM SINGH AND SH. GURMAIL SINGH TO ATTEND THIS OFFICE AND SUBMIT THEI R REPLIES W.R.T. THE AMOUNT OF RS. 50 LAKH THAT THE APPELLANT, SH. GURINDER SINGH TOOR HAS CLAIMED WAS RECEIVED FROM THESE PERSONS. HOWEVER, OUT OF FOUR PERSONS, O NLY SH. GURNAM SINGH APPEARED BEFORE THE UNDERSIGNED AND GAVE HIS STATEM ENT. IN HIS STATEMENT, SH. GURNAM SINGH HAS DENIED GIVING ANY AMOUNT TO SH. GU RINDER SINGH TOOR OR HAVING ANY TRANSACTION OF SALE-PURCHASE OF ANY PROPERTY WI TH SH. GURINDER SINGH TOOR. SHR. GURNAM SINGH ALSO DENIED GIVING ANY KIND OF ADVANCE OR MONEY TO THE APPELLANT DURING THE YEAR UNDER CONSIDERATION. HOWEVER, SH. G URNAM SINGH ADMITTED TO KNOWING THE APPELLANT AS APPELLANT'S SON IS A FRIEN D OF HIS. IT IS ALSO SUBMITTED THAT DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSEE VIDE HIS LETTER DATED 18.02.2013 SUBMITTED THAT THE AFORESAID AMOUNT WAS RECEIVED AS ADVANCE AGAINST SALE OF AGRICULTURE LAND AND ALSO SUBMITTED SALE DEEDS AGAINST WHICH THE ADVANCE WAS RECEIVED. BUT THE SALE DEEDS ATTACHED WITH THE ASSESSEE'S REPLY AMOUNTED ONLY TO RS. 39,60,000/'-. THE ASSESSEE ALSO DID NOT FURNISH ANY DOCUMENTARY EVIDENCE IN SU PPORT OF HIS CLAM REGARDING ADVANCE OF RS. 50 LAKH DURING THE COURSE OF ASSESSM ENT PROCEEDINGS.' 7. LD. CIT(A) CONSIDERED THE ARGUMENTS OF THE ASSES SEE AND HELD THAT THE CASH DEPOSITS IN THE BANK OF THE ASSESSEE CANNOT BE CONSIDERED TO HAVE BEEN EXPLAINED. THE FACT OF PAYMENT IS NOT SUPPORTED BY THE PAYERS OF THE AMOUNT. THE ASSESSEE COULD NOT PRODUCE THE PURCHASERS OF LA ND (PAYER OF THE AMOUNT) BEFORE THE ASSESSING OFFICER. THE LD. CIT(A) HELD T HAT THE ASSESSING OFFICER ISSUED SUMMONS TO ALL THE FOUR PERSONS WHO ACTED AS (WERE) PURCHASERS AS CLAIMED BY THE ASSESSEE, BUT THREE OF THEM DID NOT APPEAR BEFO RE THE ASSESSING OFFICER. THE FOURTH ONE SH. GURNAM SINGH APPEARED BEFORE THE ASS ESSING OFFICER AND HIS STATEMENT WAS RECORDED UNDER OATH. HE HAS DENIED HA VING MADE ANY PAYMENT TO THE ASSESSEE. HOLDING THUS THE ADDITION OF RS. 5 0,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS WAS UPHELD. 8. BEFORE US, THE LD. AR ARGUED ON DIFFERENT POINTS . HE ARGUED THAT AS PER THE AGREEMENT TO SELL AN ADVANCE OF RS. 100 LACS WA S TO BE RECEIVED BY THE ASSESSEE OVER THREE INSTALLMENTS AND THE BALANCE OF RS. 149 LACS WAS TO BE PAID BEFORE THE DUE DATE OF THE REGISTRY. SINCE THE COMP LETE AMOUNTS WERE NOT PAID THE DEAL COULD NOT TAKE PALCE. HIS MAIN WRITTEN ARG UMENTS ARE AS UNDER: I. NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER REGAR DING THE OTHER THREE BUYERS, WHO HAD SIGNED THE IMPUGNED AGREEMENT AND W HOSE DETAILS WERE PROVIDED TO THE ASSESSING OFFICER BY THE ASSESSEE. II. THE AO RELIED UPON THE STATEMENT OF ONLY ONE BUYER WHO WAS NOT EVEN CONFRONTED FOR THE SAID AGREEMENT TO SELL, WHICH WA S DULY PLACED ON RECORD DURING THE ASSESSMENT PROCEEDINGS. III. MOREOVER, THE SAID BUYER WAS NOT EVEN CONFRONTED FO R HIS SIGNATURES ON THE AGREEMENT, WHICH ARE APPARENTLY THE SAME SIGNAT URES AS PUT BY HIM ON THE STATEMENT TAKEN BY THE ASSESSING OFFICER. 5 IV. ALSO, EVEN THOUGH GURNAM SINGH ADMITTED HAVING KNOW N THE ASSESSEE IN THE STATEMENT, AS HIS SON WAS A FRIEND OF THE ASSES SEE'S SON, EVEN THEN HE WAS NOT CONFRONTED BY THE ASSESSEE, WHICH CLEARLY SHOWS THE INCOMPETENCE OF THE AUTHORITIES. 9. HE ALSO REFERRED TO THE JUDGMENTS IN THE CASE OF ANDAMAN TIMBER INDUSTRIES VS COMMISSIONER OF CENTRAL EXCISE (2015) 127 DTR 0241 (SC), ACIT VS. M/S GREAT INDIA STEEL FABRICATORS IN ITA NO.746/CHD /2014 AND OF KRISHAN CHAND CHELA RAM 125 ITR 713 (SC)IN HIS SUPPORT. 10. HAVING GONE THROUGH THE RECORD AND HEARING BOTH THE PARTIES, WE ARE OF THE VIEW THAT INTEREST OF THE JUSTICE WOULD BE WELL SERVED IF THE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO AFFORD DUE OPPORTUNITY TO THE ASSESSEE IN PRODUCING THE PARTIES WHO HAVE PAID THE AMOUNTS AS ADVANCE. THE ASSESSING OFFICER WOULD ALSO INVOKE THE POWERS VESTED UNDER THE INCOME TAX ACT,1961 INSTEAD OF REMAINING PASSIVE, TO MAKE NEC ESSARY FULL-FLEDGED ENQUIRIES BEFORE BRINGING THE AMOUNT TO TAXATION. 11. GROUND NO. 6 RELATES TO ADDITION OF RS. 3,50,00 0/- ON ACCOUNT OF CASH DEPOSITS. THE RELEVANT PARA OF THE ASSESSMENT ORDER IS AS UNDER 'THE ASSESSEE HAS TAKEN CREDIT OF A SUM OF RS. 3,00 ,000/- ON 13.04.2009 FROM ITS HDFC BANK, IT HAS BEEN MENTIONED BY THE ASSESSEE TH AT THE CASH HAS BEEN WITHDRAWN WHEREAS ACTUALLY NO CASH WAS WITHDRAWN AN D THE AMOUNT OF RS. 3,00,000/- WAS WITHDRAWN BY CHEQUES. SIMILARLY, ASS ESSEE HAS TAKEN CREDIT OFRS. 50,000/- FROM-HDFC BANK ACCOUNT ON 29.07.2009. THE AMOUNT OF RS. 50,000/-WAS WITHDRAWN THROUGH CHEQUES AND IT WAS NOT WITHDRAWN IN CASH' 12. IN THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS SUBMITTED THE ARGUMENTS AS UNDER:- '1. THE SOLE REASON FOR ADDITION IN ASSESSMENT PROC EEDINGS IS VARIOUS CASH DEPOSIT IN THE BANK ACCOUNT OF THE APPELLANT. TO EXPLAIN TH E VARIOUS CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT, THE APPELLANT FILED A CASH FLOW STATEMENT BEFORE THE LD. AO. IN THIS CASH-FLOW STATEMENT, HE CONSIDE RED AN ITEM OF RS. 3,50,000/- AS CASH INFLOW ON ACCOUNT OF CASH WITHDRAWAL FROM APPE LLANT'S SAVING BANK ACCOUNT NO. 02661000101808 MAINTAINED WITH HDFC BANK. 2. ON CONCLUSION OF ASSESSMENT PROCEEDINGS, LD. AO HELD THAT THE ABOVE AMOUNT OF WITHDRAWAL OFRS. 3,50,000/-FROM THE RELEV ANT BANK ACCOUNT IS ACTUALLY NOT A CASH WITHDRAWAL. HE THEREFORE, FOUND SHORTAGE IN CASH-FLOW STATEMENT FILED BY THE APPELLANT AND THEREFORE MADE THE IMPUGNED AD DITION OF RS. 3,50,000/-. 3. THE ABOVE CONTENTION OF THE LD. AO IS ERRONEOUS. CERTIFICATE FROM THE BANKCERTIFYING THE FACT THAT THE WITHDRAWAL OF RS. 3,50,000/- (RS. 3,00,000/- ON 13.04.2009 & RS. 50,000/- ON 29.07.2009) WAS A CASH WITHDRAWAL IS ENCLOSED. 13. THE CIT(A) HELD THAT THE ASSESSEE HAS FILED COP IES OF BANK CERTIFICATES TO PROVE THE FACTS THAT CASH WAS AVAILABLE IN HIS CASH FLOW. HE HAS NOT SUBMITTED ANY-REASON AS TO WHY THESE COULD NOT BE PRODUCED BE FORE THE ASSESSING OFFICER. 6 THE EVIDENCE SUBMITTED BY THE ASSESSEE IS NOT ADMIS SIBLE U/S 46A OF THE INCOME TAX RULES, 1962 AND THEREFORE IS NOT BEING CONSIDER ED. 14. HAVING HEARD AND EXAMINED THE RECORDS, WE ARE O F THE OPINION THAT ASIDE TECHNICALITIES, THE REVENUE OUGHT TO HAVE CONSIDERE D THE BANK CERTIFICATE PROVING THE CASH WITHDRAWALS. HENCE, WE HEREBY DIRE CT THE ASSESSING OFFICER TO ALLOW THE BENEFIT OF CASH WITHDRAWALS ENTERED BY TH E ASSESSEE BY THE WAY OF PRESENTING A CHEQUE TO THE BANK AND GIVE CREDIT FOR SUCH CASH WITHDRAWALS IN DETERMINING THE CASH DEPOSITS IN THE ACCOUNT OF THE ASSESSEE. THE MATTER IS REFERRED BACK TO THE ASSESSING OFFICER FOR THE LIMI TED PURPOSE OF EXAMINING THE BANK CERTIFICATE AND GIVE DUE CREDIT TO THE WITHDRA WALS. AS A RESULT THE APPEAL OF THE ASSESSEE ON THIS GROUND IS ALLOWED FOR STATI STICAL PURPOSES. 15. GROUND NO. 7 RELATES TO ADDITION OF RS. 4 LACS 16. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER : 'THE ASSESSEE HAS ALSO TAKEN CREDIT OF RS. 4 LACS O N 22.09.2009 AS CASH RECEIVED. ON GOING THROUGH THE AXIS BANK ACCOUNT, IT IS NOTIC ED THAT THE AMOUNT WAS WITHDRAWN BY SH. JASBIR SINGH AND NOT BY THE ASSESS EE NOR BY HIS WIFE AND SON. THE ASSESSEE HAS ALSO TAKEN CREDIT OF RS. 50,000/- ON 17.11.2009 AS WITHDRAWALS MADE BY HIM FROM G.S. & SONS. NO COPY OF ACCOUNT OF G.S. & SONS HAS BEEN FURNISHED BY HIM, ALTHOUGH THE ASSESSEE WAS SPECIFI CALLY REQUESTED TO DO SO. IN THE ABSENCE OF ANY COPY OF ACCOUNT, THE CREDIT OFRS . 50,000/- CANNOT BE ALLOWED.' 17. BEFORE THE LD. CIT(A) THE ASSESSEE HAS SUBMITTE D AS UNDER: '1. THE FACTS AND SUBMISSION IN REGARD TO THIS GROU ND ARE IDENTICALLY SAME AS DISCLOSED IN GROUND NO. 3 ABOVE EXCEPT THAT THE AMO UNT INVOLVED IN THIS GROUND IS RS. 4 LACS AND DATE OF WITHDRAWAL IS 22.09.2009. CE RTIFICATE FROM THE BANK CERTIFYING THE FACT THAT THE WITHDRAWAL OF RS. 4,00 ,000/- ON 22.09.2009 WAS A CASH WITHDRAWAL IS ENCLOSED. 2. AS REGARDS THE ISSUE THAT THE AMOUNT WAS WITHDRA WN BY SH. JASBIR SINGH AND NOT BY THE APPELLANT, IT IS SUBMITTED THAT SH. JASBIR S INGH IS A CLOSE FRIEND OF THE APPELLANT AND ON INSTRUCTION OF THE APPELLANT, HE W ITHDREW THIS AMOUNT OF RS. 4 LACS FROM THE BANK AND HANDED OVER THE SAME TO THE APPELLANT. APPROPRIATE RELIEF IS PRAYED. IN THE LIGHT OF THE ABOVE FACT, CIRCUMSTANCES, LEGA L POSITION AND SUBMISSION, IT IS PRAYED THAT THE GROUND OF THE APPELLANT MAY PLEASE BE ALLOWED.' 18. THE LD. CIT(A) HAS CONFIRMED THE ADDITION RELYI NG ON THE ASSESSMENT ORDER. 19. WE HAVE HEARD THE ARGUMENT OF BOTH THE PARTIES AND WE FIND THAT AS PER THE OBSERVATION OF THE ASSESSING OFFICER, THE AMOUN T OF RS. 4,00,000/- HAS BEEN WITHDRAWN BY THE ONE SH. JASBIR SINGH. THIS FACT IS NOT DISPUTED BY THE ASSESSEE BUT HE HAS STATED THAT SH. JASBIR SINGH HANDED OVER THE MONEY AFTER WITHDRAWAL 7 TO THE ASSESSEE. THE ASSESSING OFFICER HELD THAT TH E MONIES WERE NOT WITHDRAWN BY THE ASSESSEE OR BY HIS WIFE OR SON. SUCH DERIVAT ION THAT MONIES WITHDRAWN BY FAMILY MEMBERS CAN ONLY BE GIVEN CREDIT FOR THE CAS H DEPOSITS BUT NOT THE MONIES WITHDRAWN BY THIRD PERSON WHO ACTED AT THE I NSTRUCTIONS OF THE ASSESSEE CANNOT BE ACCEPTED IN THE ABSENCE OF ANY ENQUIRY BY THE ASSESSING OFFICER THAT THE CHEQUE WAS ISSUED TO SHRI JASVIR SINGH FOR ANY OTHER PURPOSE AND THAT MONEY WITHDRAWN BY SHRI JASVIR SINGH HAS BEEN UTILI ZED OTHERWISE FOR ANY OTHER PURPOSE. THE ASSESSING OFFICER HAS NOT EVEN ENQUIRE D WHETHER THE CHEQUE ISSUED IS A BEARER CHEQUE OR ACCOUNT PAYEE IN ORDER TO CROSS EXAMINE THE CLAIM OF THE ASSESSEE. HENCE WE HEREBY DIRECT THAT THE AD DITION MADE BE DELETED. 20. THIS GROUND OF APPEAL IS HEREBY ALLOWED. 21. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ! . %.. . & , (DIVA SINGH) (DR. B.R.R. KUMAR) ' #/ JUDICIAL MEMBER '( #/ ACCOUNTANT MEMBER AG DATE: 16/11/2018 (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ()/ THE CIT(A) 5. -23 4, & 4, 67839/ DR, ITAT, CHANDIGARH 6. 38 :%/ GUARD FILE