ACIT, New Delhi V. Ms. Anju Chaudhary, New Delhi

ITA 1413/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65791 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-10-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIRTHI LAL
• Assessee Lawyers: V RAJA KUMAR S

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.1413/DEL/2012 ASSESSMENT YEAR : 2009-10 ACIT, CENTRAL CIRCLE-2, ROOM NO.323, 3 RD FLOOR, ARA CENTRE, E-2, JHANDEWALAN EXTN., NEW DELHI. VS. ANJU CHAUDHARY, 240, OKHLA INDUSTRIAL ESTATE, PHASE III, NEW DELHI. PAN : AACPC4087F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH & SHRI V. RAJA KUMAR, ADVOCATES REVENUE BY : SHRI PIRTHI LAL, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE DEPARTMENT FOR ASSESSMENT YEAR 2009-10 AGAINST THE ORDER DATED 11.1.2012 PASSED BY TH E CIT (A)-III, DELHI. THE EFFECTIVE GROUND OF APPEAL READS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 23,93,567/- MADE BY THE ASSESSING OFFICER ON THE BASI S OF ENTRIES IN THE SEIZED DOCUMENT ON ACCOUNT OF ON MONEY PAID BY THE ASSESSEE OUTSIDE BOOKS OF ACCOUNT. 2. THE FACTS AS PER THE RELEVANT ORDERS ARE THAT A SEAR CH WAS CONDUCTED ON THE ASSESSEE ON 15.01.2009, TOGETHER WITH SEARCHES IN THE GOPAL ZARDA GROUP OF CASES. THE ASSESSEE INDIVIDUAL IS A PARTNER IN CERTAIN FIRMS AND HAS, DURING THE YEAR, DERIVED INCOM E FROM HOUSE PROPERTY AND INTEREST INCOME. THE ASSESSING OFFICER MA DE THE ADDITION ITA NO.1413/DEL/2012 2 ON THE BASIS OF THE SEIZED PAGE 10 WHICH RELATED TO BO OKING OF A RESIDENTIAL FLAT, UNIT NO.601 IN PARAMOUNT SYMPHONY AT GROSSINGS REPUBLIC, NH-24 FOR A TOTAL CONSIDERATION OF ` 26,68,567/- WITH M/S PARAMOUNT RESIDENCY P. LTD. ON THIS PAGE ITSELF, RE CITAL OF THE DETAIL OF PAYMENT MADE BY CHEQUE DATED 18.11.2007, FOR ` 2,75,000/- BY THE ASSESSEE WAS GIVEN. NO OTHER PAYMENT WAS REFERRED TO O N THIS DOCUMENT. WHILE MAKING THE ADDITION, THE ASSESSING OFF ICER OBSERVED THAT THE ASSESSEE HAD COMPLETELY FAILED TO SUBSTANTIATE T HE CONTENTION THAT NO PAYMENT ON THE SEIZED DOCUMENT HAD BEEN MADE BY THE ASSESSEE; THAT THE ASSESSEE HAD NOT FILED ANY SALE DOCUMENT OR CONFIRMATION FROM THE SELLER OF THE PROPERTY MENTION ING THE SALE PARTICULARS; THAT THE ASSESSEE HAD FAILED TO PROVE THAT THE DIFFERENCE HAD NOT BEEN PAID; AND THAT THE DIFFERENCE WAS NOTHI NG, BUT ON MONEY PAID OUTSIDE THE BOOKS OF ACCOUNT. THE ADDITION OF ` 23,93,567/- WAS, THUS, MADE. 3. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION MADE B Y THE ASSESSING OFFICER. 4. CHALLENGING THE IMPUGNED ORDER, THE LD. DR HAS CO NTENDED THAT THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION C ORRECTLY MADE BY THE ASSESSING OFFICER ON THE BASIS OF ENTRIES IN THE SEIZED DOC UMENT, ON ACCOUNT OF ON MONEY PAID BY THE ASSESSEE OUTSIDE HER BOO KS OF ACCOUNT. IT HAS BEEN SUBMITTED THAT THE LD. CIT (A) HAS WRONGLY IGNORED THE FACT THAT BEFORE THE ASSESSING OFFICER, TH E ASSESSEE DID NOT SUBMIT ANY EVIDENCE IN SUPPORT OF HER STAND, NOR DID SHE FILE BEFORE THE ASSESSING OFFICER EITHER ANY SALE DOCUMENT OR CONFIRMATI ON FROM THE SELLER OF THE PROPERTY MENTIONING THE SALE PRICE, AR EA OR PAYMENT; THAT AS SUCH, IT COULD NOT BE PROVED THAT THE PAYMENT MENT IONED ON THE TOP OF THE SEIZED PAGE HAD BEEN MADE BY THE ASSESSEE; THAT T HE LD. CIT (A) ITA NO.1413/DEL/2012 3 HAS FURTHER FAILED TO TAKE INTO ACCOUNT THE OBSERVATI ON OF THE ASSESSING OFFICER THAT IN PROPERTY DEALS, ON MONEY IS ALWAYS INV OLVED AND, AS CORRECTLY OBSERVED BY THE ASSESSING OFFICER, IT IS UNACCE PTABLE THAT NO ON PAYMENT HAD BEEN MADE BY THE ASSESSEE; AND THAT THE REFORE, FOR THESE REASONS, THE ORDER OF THE LD. CIT (A) IS LIABLE T O BE CANCELLED AND THAT OF THE ASSESSING OFFICER IS ENTITLED TO BE REVIVED. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE H AS STRONGLY RELIED ON THE IMPUGNED ORDER. IT HAS BEEN CONTENDED THAT THE LD. CIT (A), WHILE CORRECTLY DELETING THE ADDITION WRONGLY MADE, HAS TAKEN INTO ACCOUNT THE FACTUM OF PAYMENT HAVING BEEN MADE BY T HE ASSESSEE THROUGH CHEQUE. IT HAS BEEN SUBMITTED THAT THE AMOUN T HAD BEEN DEBITED IN THE BANK ACCOUNT OF THE ASSESSEE; THAT THE A SSESSING OFFICER NEITHER TOOK THE SAME INTO CONSIDERATION, NOR MADE A NY ADVERSE COMMENT WITH REGARD THERETO; THAT THE INVESTMENT MAD E BY THE ASSESSEE WAS DULY AMPLY PROVED; THAT THEN, AN AMOUNT OF ` 2,75,000/- WAS RECEIVED BACK BY THE ASSESSEE THROUGH CHEQUE AND IT WAS CREDITED IN THE ASSESSEES BANK ACCOUNT, WHICH FACT WAS RECORDED O N THE SEIZED DOCUMENT; THAT THEREFORE, NO UNACCOUNTED CASH EXCHAN GED HANDS; THAT THE REFUND OF MONEY ALSO STOOD PROVED FROM THE CORRESP ONDENCE BETWEEN THE ASSESSEE AND M/S PARAMOUNT RESIDENCY PVT. LT D.; THAT THOUGH THIS CORRESPONDENCE WAS PRODUCED BY THE ASSESSEE BE FORE THE ASSESSING OFFICER, THE ASSESSING OFFICER, WITHOUT DRAWING A NY ADVERSE INFERENCE THEREFROM, WENT ON TO MAKE THE ADDITION I LLEGALLY; THAT THE LD. CIT (A) CORRECTLY TOOK THIS CORRESPONDENCE ALSO IN TO CONSIDERATION WHILE RIGHTLY DELETING THE ADDITION; AND THAT AS SUCH , THERE BEING NO MERIT WHATSOEVER IN THE APPEAL FILED BY THE DEPARTME NT, THE SAME BE DISMISSED OUTRIGHT. 6. WHILE DELETING THE ADDITION MADE BY THE ASSESSING OF FICER, IT IS SEEN, THE LD. CIT (A) HAS DULY TAKEN INTO CONSIDERATIO N THE FACT THAT THE AMOUNT PAID THROUGH CHEQUE BY THE ASSESSEE HAD BEEN DE BITED IN THE ITA NO.1413/DEL/2012 4 ACCOUNT OF THE ASSESSEE WITH STANDARD CHARTERED BANK A T NOIDA. THOUGH THE COPY THEREOF HAD BEEN FILED BEFORE THE A SSESSING OFFICER, THE ASSESSING OFFICER DID NOT CONSIDER THE SAME, NOR WAS A NY ADVERSE INFERENCE DRAWN FROM THE PAYMENTS MADE BY CHEQUE. T HE NARRATION ON THE SEIZED DOCUMENT COUPLED WITH THE FACT THAT TH E PAYMENT WAS MADE FROM THE BANK ACCOUNT OF THE ASSESSEE GOES TO SHOW THAT THE SOURCE OF THE INVESTMENT MADE BY THE ASSESSEE STOOD PROVED . MOREOVER, THE ASSESSEE RECEIVED BACK AN AMOUNT OF ` 2,75,000/- VIDE CHEQUE DATED 02.07.2008. THIS STOOD DULY CREDITED IN THE ASSESSEES BANK ACCOUNT. THIS BACK RECEIPT ALSO STANDS RECORDED O N THE SEIZED DOCUMENT ITSELF. AS SUCH, THERE WAS NO OCCASION TO MAKE ANY ADDITION ON ACCOUNT OF UNACCOUNTED PAYMENT IN CASH. FURTHER STILL, THE ASSESSEE ALSO FILED COPIES OF THE CORRESPONDENCE BETWEEN H ER AND M/S PARAMOUNT RESIDENCY P. LTD., WITH WHOM THE FLAT WAS B OOKED. THIS CORRESPONDENCE CONCERNED REFUND OF MONEY. NO ADVERS E FINDING WAS RECORDED BY THE ASSESSING OFFICER EVEN ON SUCH CORRESP ONDENCE. THE LD. CIT (A), ON THE OTHER HAND, HAS DULY TAKEN THE SA ME INTO CONSIDERATION AND HOLDING IT TO FORTIFY THE CASE OF T HE ASSESSEE. 7. IN VIEW OF THE ABOVE DISCUSSION, WE FIND NO ERROR I N THE ORDER OF THE LD. CIT (A) AND THE SAME IS HEREBY CONFIRMED REJE CTING THE GROUND RAISED BY THE DEPARTMENT. 8. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.10.20 12. SD/- SD/- [T.S. KAPOOR] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 26.10.2012. DK ITA NO.1413/DEL/2012 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES