Dr. Ramesh Bhayana, Rewari V. CIT, Rohtak

ITA 1471/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86725 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 12-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: NAMAN SHARMA
• Section: 143(3); 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI R.S. SYAL, AM AND SHRI C.M. GARG, JM ITA NO.1471/DEL/2013 ASSESSMENT YEAR : 2008-09 RAMESH BHAYANA, C/O NAMAN SHARMA, ADVOCATE, S/O SH. V.K. SHARMA, ADVOCATE, H.NO.6863, BAS SITAB RAI, REWARI. PAN: AAXPB5071F VS. CIT, AAYAKAR BHAWAN, OPP. MANSAROVAR PARK, ROHTAK. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NAMAN SHARMA, ADVOCATE DEPARTMENT BY : SHRI VIKRAM SAHAY, SR. DR ORDER PER R.S. SYAL, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT ON 28.12.2012 UNDER SECTION 263 OF THE INCO ME-TAX ACT, 1961 ITA NO.1471/DEL/2013 2 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2008-09. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) ON 14.07.2010 ACCEPTI NG THE INCOME RETURNED AS THE TOTAL INCOME. ON A PERUSAL OF THE CASE RECORDS, THE LD.CIT INVOKED HIS JURISDICTION U/S 263 BY TREATING THE AS SESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE ON THE GROUND THAT THE ASSESSING OFFICER (AO) DID NOT PROPERLY VE RIFY: (I) THE RECEIPT OF LOAN OF RS.26 LAC FROM SHRI VIVEK BHAYANA; AND (II) THE RECEIPT OF LOAN FROM SHRI RAMESH BHAYANA & SONS, HUF WHICH HAD TWO CASH DEPOSITS AMOUNTING TO RS.3 LAC AND 1 LAC IN ITS BANK ACCOUNT BEFORE GIVING THE SAID LOAN BY CHEQUE TO THE ASSESSEE. THE ASSESSMEN T ORDER WAS SET ASIDE AND THE AO WAS DIRECTED TO MAKE A FRESH ASSESSMENT. THE ASSESSEE IS AGGRIEVED AGAINST THIS ORDER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS MANIFEST THAT THE ASSESS MENT ORDER HAS BEEN HELD TO BE AMENABLE TO REVISION ON TWO ISSUES. THE FACTS APROPOS THE FIRST ITA NO.1471/DEL/2013 3 ISSUE ARE THAT THE ASSESSEE ACCEPTED A FRESH LOAN O F RS.26 LAC FROM SHRI VIVEK BHAYANA WHICH WAS STATED TO HAVE BEEN GIVEN O UT OF A SUM OF RS.37,53,600/- REALIZED BY THE LENDER FROM THE SAL E OF A PLOT. THE LD. CIT, ON PERUSAL OF THE STATEMENT OF INCOME OF SHRI VIVEK BHAYANA, OBSERVED THAT HE HAD DEPOSITED A SUM OF RS.37,53,60 0/- IN A CAPITAL GAINS SCHEME ACCOUNT FOR CLAIMING DEDUCTION U/S 54 AND AS SUCH HE HAD NO MONEY LEFT FOR LENDING TO THE ASSESSEE. 4. IT CAN BE OBSERVED THAT SHRI VIVEK BHAYANA REC EIVED A SUM OF RS.37.53 LAC BY SALE OF HIS PROPERTY ON 27.12.2007. OUT OF SUCH RECEIPTS, A SUM OF RS.26 LAC WAS GIVEN AS LOAN TO THE ASSESSE E BY MEANS OF TWO CHEQUES DATED 01.02.2008 AND 05.02.2008 FOR RS.16 L AC AND RS.10 LAC RESPECTIVELY. ON 24 TH JULY, 2008, THE ASSESSEE REPAID LOAN OF RS.14 LAC TO SHRI RAMESH BHAYANA BY MEANS OF CHEQUE. ON 26 TH JULY, SHRI RAMESH BHAYANA INVESTED THE FULL SALE CONSIDERATION IN CAP ITAL GAIN SCHEME. THESE SUBMISSIONS WERE MADE BEFORE THE LD. CIT, WH O REFUSED TO ACCEPT THE SAME. ON GOING THROUGH THE COPY OF BANK ACCOUN T OF SHRI RAMESH BHAYANA, WHICH IS AVAILABLE ON PAGES 46 ONWARDS OF THE PAPER BOOK, IT ITA NO.1471/DEL/2013 4 CAN BE SEEN THAT HE ADVANCED A LOAN OF RS.26 LAC TO THE ASSESSEE ON THE GIVEN DATES AND IMMEDIATELY BEFORE THE DEPOSIT OF R S.37.53 LAC IN CAPITAL GAIN SCHEME ACCOUNT ON 26 TH JULY, HE RECEIVED REPAYMENT OF LOAN FROM THE ASSESSEE TO THE TUNE OF RS.14 LAC ON 24 TH JULY, 2008. APART FROM THAT, THERE ARE OTHER TRANSACTIONS IN THE BANK ACCOUNT MAKING UP THE BANK BALANCE AT RS.37.63 LAC, OUT OF WHICH A SUM OF RS.37.53 LAC WAS DEPOSITED IN CAPITAL GAIN SCHEME ACCOUNT. THESE FAC TS CLEARLY BRING OUT THAT THE LOAN AMOUNT OF RS.26 LAC WAS ACTUALLY RECE IVED BY THE ASSESSEE FROM SHRI VIVEK BHAYANA OUT OF REALIZATION FROM TRA NSFER OF PROPERTY. UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO DISTURB THE VIEW TAKEN BY THE AO ON THIS SCORE. THE IMPUGNED ORDER IS OVERTURNED ON THIS SCORE. 5. THE SECOND ISSUE WHICH HAS BEEN CONSIDERED BY TH E LD. CIT IN HIS ORDER LEADING TO THE REVISION, IS THE CASH DEPOSIT OF RS.4 LAC BY RAMESH BHAYANA & SONS, HUF IN ITS BANK ACCOUNT BEFORE GIVI NG A LOAN OF RS.13 LAC TO THE ASSESSEE. IT CAN BE SEEN THAT RAMESH BH AYANA, HUF IS CARRYING ON BUSINESS AND IS A REGULAR INCOME-TAX AS SESSEE. NOT ONLY THAT, ITA NO.1471/DEL/2013 5 IT MAINTAINS REGULAR BOOKS OF ACCOUNT. A COPY OF C ASH BOOK OF THIS ENTITY FOR THE RELEVANT PERIOD IS AVAILABLE ON RECORD. IT CAN BE SEEN THAT THE SAID AMOUNT OF RS.4 LAC WAS DEPOSITED IN ITS BANK ACCOUN T FROM THE TRANSACTIONS RECORDED IN THE REGULAR CASH BOOK. WHE N THE FACTS ARE SO CLEAR THAT THE DEPOSIT IN THE BANK ACCOUNT EMANATED FROM THE BUSINESS OPERATIONS AND RAMESH BHAYANA, HUF HAS PROPERLY DIS CLOSED THESE TRANSACTIONS INTO ITS CASH BOOK, THERE IS NO REASON TO DOUBT THE DEPOSIT OF RS.4.00 LAC BY IT IN ITS BANK ACCOUNT BEFORE ADVANC ING LOAN OF RS.13.00 LAC TO THE ASSESSEE. WE, THEREFORE, VACATE THE VIEW TAKEN BY THE LD.CIT IN THIS REGARD. 6. IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.02.201 5. SD/- SD/- [C.M. GARG] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 11 TH FEBRUARY, 2015. DK ITA NO.1471/DEL/2013 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.