ITO, Mohali V. Sh. Vijay Kumar, Dera Bassi

ITA 150/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80871 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: AMITOZ SINGH
• Keywords: Peak credit; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 150/CHD/2013 ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, VS SHRI VIJAY K UMAR, WARD 6(4), # 110, MOHALI. VILLAGE HABITPUR, DERA BASSI. PAN : APGPK8393L & ITA NO. 151/CHD/2013 ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, VS SMT. USHA RA NI WARD 6(4), # 110, MOHALI. VILLAGE HABITPUR, DERA BASSI. PAN : ALOPR8526R. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH RESPONDENT BY : SHRI AMITOZ SINGH DATE OF HEARING : 12.08.2014 DATE OF PRONOUNCEMENT : 10.09.2014 O R D E R PER SUSHMA CHOWLA, JM BOTH THE APPEALS FILED BY THE REVENUE AGAINST DIFFE RENT ASSESSEES ARE AGAINST SEPARATE ORDERS OF THE COMMIS SIONER OF INCOME TAX (APPEALS) CHANDIGARH, DATED 29.11.2012 A GAINST SEPARATE ORDERS PASSED UNDER SECTION 144 OF THE INC OME-TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2 2. BOTH THESE APPEALS RELATING TO HUSBAND AND WIFE IN RESPECT OF THE SAME ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE. 3. THE FACTS IN BOTH THE APPEALS ARE IDENTICAL. HO WEVER, REFERENCE IS BEING MADE TO THE FACTS IN ITA NO. 150 /CHD/2013 TO ADJUDICATE THE ISSUE. 4. IN ITA 150/CHD/2013, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE A SSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.23,27,784/ - BY ADMITTING THE ADDITIONAL EVIDENCE OF SALE OF LAND BY THE WIFE OF THE ASSESSEE FOR RS. 63,20,000/- AS SOURCES WHILE TOTAL CASH DEPOSIT IN THE ACCOUNTS OF THE ASSESSEE AND HIS WIFE WERE RS. 1,00,88,900/-. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCE WITH OUT THERE BEING PROVEN SUFFICIENT CAUSE PREVENTING ASSESSEE TO FILE THESE EVIDENCES BEFORE THE ASSESSING OFFICER AS PER THE REQUIREMENT OF RULE-46 A OF THE INCOME-TAX RULES, 1962. 4. IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE S ET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROU NDS OF APPEAL BEFORE THE APPEAL IS HEARD OR IS DISPOSED OF F. 5. THE ISSUE IN BOTH THE APPEALS IS IN RELATION TO THE SOURCE OF CASH DEPOSITS IN THE JOINT BANK ACCOUNT OF BOTH THE HUSBAND AND WIFE I.E. BOTH ASSESSEES BEFORE US. THE REVENUE IS AGGRIEVED BY THE ADMISSION OF ADDITIONAL EVIDENCE BY THE COMMISS IONER OF INCOME TAX (APPEALS) AND ALSO DELETION OF THE ADDIT ION MADE IN THE RESPECTIVE HANDS. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DESPITE SEVERAL NOTICES 3 ISSUED. THE ASSESSING OFFICER HAD RECEIVED AIR INF ORMATION THAT CASH AGGREGATING MORE THAN RS. 10 LACS WAS DEPOSITE D IN AXIS BANK, DERA BASSI WHERE THERE WAS CASH DEPOSIT OF RS . 35,42,000/- AND RS. 44,37,000/- IN THE SECOND ACCOUNT. THE ASS ESSING OFFICER PREPARED THE CASH FLOW WITH REGARD TO THE CASH DEPO SIT AND WITHDRAWAL WHICH IS REPRODUCED UNDER PARA 5.1 AT PA GES 4 TO 9 OF THE ASSESSMENT ORDER. AS THE ASSESSEE HAD FAILED T O FURNISH ANY EXPLANATION IN RESPECT OF THE SAID CASH DEPOSIT, PE AK OF CASH DEPOSIT OF RS. 23,27,784/- WAS ADDED AS INCOME OF T HE ASSESSEE. 7. BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE POINTED OUT THAT AS HE WAS NOT FEELING WEL L, HE COULD NOT MAKE REPRESENTATION BEFORE THE ASSESSING OFFICER. MEDICAL REPORTS WERE SUBMITTED TO PROVE HIS CLAIM. FURTHER , THE ASSESSEE FURNISHED ADDITIONAL EVIDENCE UNDER RULE 46A OF THE ACT TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK ACC OUNT. THE SAID ADDITIONAL EVIDENCE WAS CONFRONTED TO THE ASSESSING OFFICER WHO IN-TURN SUBMITTED THE REMAND REPORT AND ACCEPTED TH AT THE BENEFIT OF ADDITIONAL EVIDENCE MAY BE ALLOWED TO THE ASSESS EE. THE COMMISSIONER OF INCOME TAX (APPEALS), IN VIEW THERE OF ACCEPTED THE EXPLANATION OF THE ASSESSEE THAT THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT WAS OUT OF THE SALE OF ANCESTRAL A GRICULTURAL LAND BY THE WIFE OF THE ASSESSEE FOR RS. 63,20,000/- AND THE AMOUNT WAS DEPOSITED IN JOINT ACCOUNT WHICH WAS BEING MAIN TAINED IN THE NAME OF BOTH THE HUSBAND AND THE WIFE I.E. BOTH THE ASSESSEES BEFORE US. THE REVENUE IS IN APPEAL AGAINST THE SAI D RELIEF GIVEN BY THE COMMISSIONER OF INCOME TAX (APPEALS). 4 8. SHRI MANJIT SINGH APPEARED FOR THE REVENUE AND S HRI AMITOZ SINGH APPEARED FOR THE ASSESSEE AND PUT FORWARD THE IR RIVAL CONTENTIONS. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE AND/OR HIS WIFE HAD MADE CERTAIN CASH DEPOSITS IN THE JOINT ACCOUNT WITH AXIS BANK, DERA BASSI. AS THE A SSESSEE HAD FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DESPI TE VARIOUS NOTICES ISSUED TO THE ASSESSEE, ASSESSMENT WAS COMP LETED IN THE HANDS OF THE ASSESSEE ON THE PEAK CREDIT THEORY. HO WEVER, BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE PLEA OF THE ASSESSEE WAS THAT HIS WIFE HAD SOLD THE RURAL AGRIC ULTURAL LAND FOR TOTAL CONSIDERATION OF RS. 63,20,000/- AND THE AMOU NTS WERE DEPOSITED IN CASH IN THE BANK ACCOUNT OUT OF THE SA ID SALE PROCEEDS. THE EXPLANATION OF THE ASSESSEE BEFORE T HE COMMISSIONER OF INCOME TAX (APPEALS) WAS AS UNDER : 'TO SUBSTANTIATE OUT CLAIM, WE REQUEST YOU KINDLY C ONSIDER THE ENCLOSED TABULAR SHEET, WHEREIN WE HAVE EXPLAINED T HE SOURCES OF VARIOUS CASH DEPOSITS ON THE BASIS ON WHICH THE ID. AO HAS CALCULATED THE PEAK PROFIT. HEREIN YOUR GOOD SELF W ILL APPRECIATE THAT THE MAJOR CASH DEPOSITS MADE IN THE JOINT ACCO UNT AMOUNTING TO RS. 9,20,000/-, RS. 19,50,000/- AND RS. 7,00,000 /- MADE ON 23.10.2008, 22.12.2008 AND 10.02.2009 RESPECTIVELY WERE ALL MADE OUT OF THE SALE PROCEEDS OF THE RURAL AGRICULT URAL LAND. AS IT IS EVIDENT FROM THE ATTACHED SHEET, THE ID. AO WHIL E CALCULATING THE PEAK CREDIT OF RS. 23,27,784/- ON 13.02.2009 HAS CO NSIDERED THE ABOVE MENTIONED CASH DEPOSITS, WHEREAS THE SAME ARE BEING HEREIN DULY EXPLAINED. EVEN OTHERWISE, THROUGH THE SAID TA BULAR SHEET, IT IS EVIDENT THAT THE VARIOUS DEPOSITS OTHER THAN ABO VE MENTIONED CASH DEPOSITS ARE ALSO OUT OF THE EARLIER CASH WITH DRAWALS AND ARE BEING HEREIN DULY EXPLAINED. THE ASSESSEE WAS FREQU ENTLY WITHDRAWING THE CASH ON DIFFERENT DATES WHICH WERE ACCORDINGLY FORMING PART OF HIS CASH IN HAND AND WERE NOT UTILI ZED ELSEWHERE AND WERE DEPOSITED IN HIS BANK ACCOUNT ONLY. THERE WAS NOTHING ON RECORD WITH THE ID. AO TO INFER THAT THE SAME HA S BEEN UTILIZED ELSEWHERE. AS THE ASSESSEE HAD SUFFICIENT SOURCES A S WELL AS CASH IN HAND, THUS IT IS REQUESTED TO YOUR KIND SELF TO KINDLY DELETE THE ADDITIONS.' 5 10. IN ADDITION, ASSESSEE FURNISHED ADDITIONAL EVID ENCE AS UNDER: (I) COPY OF BANK CERTIFICATE REGARDING JOINT H OLDING OF BANK ACCOUNT NO. 30301010012095 WITH HIS WIFE MS. USHA R ANI IN AXIS BANK, DERA BASSI. (II) COPY OF SALE DEED OF RURAL AGRICULTURAL LAND. (III) COPY OF INTKAAL OF AGRICULTURAL LAND. (IV) COPY OF GIRDAVARI OF AGRICULTURAL LAND. (V) COPY OF CERTIFICATE ISSUED BY TEHSILDAR. 11. THE COMMISSIONER OF INCOME TAX (APPEALS) FORWAR DED BOTH THE SUBMISSIONS OF THE ASSESSEE ALONGWITH THE ADDIT IONAL EVIDENCE TO THE ASSESSING OFFICER WHO IN-TURN SUBMITTED THE REMAND REPORT VIDE LETTER NO. 7520 DATED 05.11.2012, WHICH READS AS UNDER : 'IT IS SUBMITTED THAT THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS INTO SAVING BANK ACCOUNT AMOUNTING TO RS. 23,27,784/- AND BENEFIT OF PEAK CREDIT HAS ALSO BEE N GIVEN TO THE ASSESSEE DURING SUBMITTED ADDITIONAL EVIDENCE I.E. CASH FLOW STATEMENT AND PHOTOCOPIES OF SALE DEEDS ETC. THE AD DITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE HAS BEEN CHECKED AND PLACED ON RECORD. THE DOCUMENTS SUBMITTED NOW BY THE ASSESSEE HAS BEEN CHECKED AND FOUND NO ADVERSE INFERENCE AND THE BENE FIT MAY KINDLY BE ALLOWED. IT IS SUBMITTED THAT THE ASSESSEE HAS EXPLAINED NOW THAT BANK ACCOUNT OF AXIS BANK WAS JOINT BANK ACCOUNT OPERATI VE EITHER BY MS. USHA RANI OR HER HUSBAND SH VIJAY KUMAR, VILL. HABI TPUR, DERA BASSI AND THE MAJOR CASH DEPOSITS WERE RELATED TO M S. USHA RANI NOT TO SH. VIJAY KUMAR. THE SOURCE OF CASH DEPOSITS INTO SAVING BANK ACCOUNT WERE SALE OF AGRICULTURE LAND SITUATED AT VILL. RAWALAN, DISTT. AMBALA. THE LAND WAS ANCESTRAL. KEE PING IN VIEW THE ABOVE FACTS THE BENEFIT OF ADDITIONAL EVIDENCE MAY .KINDLY BE ALLOWED TO THE ASSESSEE.' 12. IN VIEW THEREOF, THE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITIONS AS THE ASSESSEE HAD EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT. IN THE FACTS O F THE PRESENT CASE THERE IS NO MERIT IN ANY ADDITION, WHERE THE A SSESSING OFFICER HIMSELF HAS ACCEPTED THE ADDITIONAL EVIDENC E FURNISHED BY THE ASSESSEE AND HAS ALSO STATED IN THE REMAND REPO RT THAT THE SOURCE OF CASH DEPOSITS INTO SAVING ACCOUNTS WERE O UT OF SALE 6 PROCEEDS OF AGRICULTURAL LAND WHICH WAS ANCESTRAL A ND HAD FURTHER REPORTED ,KEEPING IN VIEW THE ABOVE FACTS, THE BENEFIT OF ADDITIONAL EVIDENCE MAY KINDLY BE ALLOWED TO THE AS SESSEE. IN THE TOTALITY OF THE ABOVESAID FACTS AND CIRCUMSTANC ES, WE FIND NO MERIT IN THE ADDITION MADE IN THE HANDS OF THE ASSE SSEE BY THE ASSESSING OFFICER AND WE UPHOLD THE ORDER OF COMMIS SIONER OF INCOME TAX (APPEALS) IN DELETING THE SAME. 13. SIMILAR ADDITION WAS MADE IN THE HANDS OF THE W IFE OF THE ASSESSEE IN RESPECT OF NON-EXPLANATION OF SOURCE OF CASH DEPOSIT IN THE SAVING BANK ACCOUNT MAINTAINED BY AXIS BANK, DERA BASSI. AS THE FACTS AND CIRCUMSTANCES OF THE CASE I.E. ITA NO. 151/CHD/2013 ARE IDENTICAL TO THE FACTS AND CIRCUMS TANCES RAISED IN ITA NO. 150/CHD/2013, OUR DECISION IN ITA 150/CH D/2013 SHALL APPLY MUTATIS-MUTANDIS TO ITA NO. 151/CHD/201 3. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, D ISMISSED. 14. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH SEPTEMBER, 2014. SD/- SD/- ( T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH SEPTEMBER, 2014 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR. ASSISTANT REGISTRAR ITAT,CHD.