The ITO, 2(1), Indore V. Shri Deepak Kumar Dhawan, Indore

ITA 150/IND/2013

• Counselvise Citation: 15022714 RSA 2013
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Principle of natural justice; Additional evidence; Valuation report
• Section: 54F; 69; 54

Judgement Text

PAGE 1 OF 19 IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AGPPD5807R I.T.A.NO. 150 /IND/201 3 A.Y. : 2008-09 ACIT, 2(1), INDORE. VS. MR.DEEPAK KUMAR DHAWAN, PARIWARIK ANAND SHREE JUICE, 5,6, VEER SAWARKAR MARKET, INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI R.A.VERMA, SR. DR RESPONDENT BY : SHRI SANTOSH DESHMUKH, CA DATE OF HEARING : 18 . 1 2 .201 3 DATE OF PRONOUNCEMENT : 31 . 1 2 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), DATED 10.12.2012 FOR THE ASSESSMENT YEAR 2008-09. 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE :- SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 2 PAGE 2 OF 19 ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN :_ 1. DELETING THE ADDITION U/S 69 OF THE ACT OF RS. 69,000/- BEING NON SUFFICIENT CASH FOR MAKING THE F IXED DEPOSIT. 2. DELETING THE ADDITION OF RS. 8,49,000/- ON ACCO UNT OF LONG TERM CAPITAL GAIN. 1 2(I) WHILE DELETING THE ADDITION, THE LD. CIT(A) HAS ERRED IN RELYING UPON ARGUMENTS, NOT TAKEN BEFORE A. O. AND WITHOUT CALLING REMAND REPORT FROM A. O. 3. DELETING THE ADDITION V/S 69 OF RS. 2,58,000/- ON ACCOUNT OF DEPOSITS IN JOINT LOAN ACCOUNT WITH STAT E BANK OF INDIA. 4. DELETING THE ADDITION U/S 69 OF RS. 11,19,980/- ON ACCOUNT OF TRANSACTION WITH THE INDIAN BANK LOAN ACCOUNT. 4 (I) WHILE DELETING THE ADDITION OF RS. 11,19,980/ - THE LD.CLT(A} ERRED IN BANKING UPON ADDITIONAL EVIDENCE IN FORM OF ADDITIONAL LOAN ACCOUNT NO. 727971104 AND SAVING BANK ACCOUNT NO. 724715643 AND ADMITTING THE SAME IN VIOLATION OF SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 3 PAGE 3 OF 19 RULE 46A OF I. T. RULES. 5. VIOLATION THE RULE 46A OF I. T. RULES THAT ASSE SSEE HAS ADMITTED THE ADDITIONAL EVIDENCE REGARDING THE ADDITIONAL LOAN ACCOUNT NO. 727971104 AND SAVING BANK ACCOUNT NO. 724715643 OF INDIAN BANK BEFORE TH E LD. CIT(A}~ BUT THE REMAND REPORT WAS NOT CALLED FO R BY THE LD. CIT(A). 3. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. DURING THE COURSE OF SCRUTINY OF ASSESSMEN T, THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 69,000/- U/S 69 ON THE PLEA THAT THE ASSESSEE WAS NOT HAVING SUFFICIEN T CASH FOR MAKING THE FIXED DEPOSIT. BY THE IMPUGNED ORDER, TH E LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOW ING OBSERVATIONS :- 4.3 I HAVE CONSIDERED THE A.O'S ORDER AS WELL AS THE APPELLANT'S SUBMISSION EXTRACTED AS ABOVE. HAVING CONSIDERED BOTH, I FIND THAT THE APPELLANT HAS OPENING CASH BALANCE OF RS. 25,224/- DURING THE YEAR UNDER CONSIDERATION. FURTHER IT IS SEEN TH AT SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 4 PAGE 4 OF 19 THE APPELLANT IS INDULGE IN THE BUSINESS OF FRUIT A ND COLD DRINKS BUSINESS, WHEREIN THE MONTH OF APRIL TO JUNE ARE PEAK PERIOD, WHEREIN THE BUSINESS IS AT HIGHER STAGE AND THE APPELLANT RECEIVED THE SUFFICIENT CASH TO THE TUNE OF RS. 1,16,000/- AS CLAIMED BY THE APPELLANT. HOWEVER I ALSO FIND THAT SUCH TRANSACTION IS NOT PROVED BY THE APPELLANT AS THE TRANSACTION WAS MAINLY DONE ON DAY TO DAY BASIS. THUS, IN THE INTEREST OF NATURAL JUSTICE AND LOOKING TO THE NATURE OF BUSINESS, I CONSIDER IT PROPER AND APPROPRIATE TO ESTIMATE A SUM OF RS. 30,OOO/-- AS INCOME OF THE APPELLANT. ACCORDINGLY THE APPELLANT GETS RELIEF OF' RS. 69,OOO/--. THUS, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THERE WAS OPENING CASH BALANCE OF RS. 25,224/- AND CIT(A) HAS REASONABLY ESTIMATED INCOME AT RS.30,000/-. THUS, THE TOTAL FUNDS AVAILABLE WORKS OUT TO BE RS. 55,224/-. ACCORDINGLY, WE CONFIRM THE ACTION OF THE CIT(A) SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 5 PAGE 5 OF 19 TO THE EXTENT OF RS. 55,224/- AND THE BALANCE ADDIT ION OF RS. 13,776/- IS CONFIRMED. 5. THE ASSESSING OFFICER HAS ALSO MADE ADDITION OF RS. 8,49,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN, BY DECLINING CLAIM OF DEDUCTION U/S 54F. THE ASSESSING OFFICER O BSERVED THAT LONG TERM CAPITAL GAINS EARNED BY THE ASSESSEE WAS NOT INVESTED BY THE ASSESSEE IN HIS OWN NAME, BUT IN TH E NAME OF HIS WIFE. ACCORDINGLY, BENEFIT OF SECTION 54F CANNO T BE GIVEN IN THE HANDS OF ASSESSEE FOR SUCH INVESTMENT. 6. AFTER CONSIDERING VARIOUS JUDICIAL PRONOUNCEMENTS, THE LD. CIT(A) DELETED THE DISALLOWANCE AFTER HAVING TH E FOLLOWING OBSERVATIONS :- I HAVE CONSIDERED THE ASSESSING OFFICERS ORDER AS WELL AS THE APPELLANTS SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT ASSESSING OFFICER HAS NOT POINTED OUT ANY DEFECT ON THE SUBMISSION OF THE APPELLANT. FURTHER IT IS ALSO SEEN THAT THE ASSESSI NG OFFICER HAS MERELY ON ESTIMATION BASIS HAS ADOPTED THE VALUE OF THE SAID PLOT. IT IS ALSO SEEN THAT TH E SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 6 PAGE 6 OF 19 APPELLANT HAS FILED A COPY OF VALUATION REPORT FROM REGISTERED VALUER, WHO HAVE VALUED THE MARKET VALUE OF THE LAND AT RS. 1,60,000/- (EXCLUDING BUILDING C OST AT RS. 1,10,880/- AND BUILDING FURNITURE AND MISCELLANEOUS ITEMS AT RS.18,000/-) INSTEAD OF RS.1 ,00,000/- AS NOTED BY THE A.O. HOWEVER CONSIDERING THE A.O.'S ORDER AS WELL AS THE APPELLA NT'S SUBMISSION, I DO NOT FIND ANY JUSTIFICATION NEITHER IN ARGUMENT OF THE APPELLANT BY VALUING THE COST OF LA ND FROM REGISTERED VALUER. THUS, IN MY CONSIDERED VIEW THE APPELLANT'S REQUEST CANNOT BE ACCEDED TOO. IT I S ALSO SEEN THAT THE APPELLANT HAS CLAIMED THE EXEMPTION U/S 54 AS THE APPELLANT HAS SOLD A HOUSE AND A CONSIDERATION WAS SPLIT INTO THE LAND PRICE A ND THE SALE OF SUPER STRUCTURE (MALBA) AND ACCORDINGLY HAS SOLD A HOUSE, WHEREAS THE A.O. HAS ONLY CONSIDERED THE CONSIDERATION OF LAND AND IGNOR ED THE SALE OF SUPER STRUCTURE. THE A.O. SINCE CONSIDE RED THE SALE OF LAND HAS CONSIDERED THE CLAIM OF THE SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 7 PAGE 7 OF 19 APPELLANT OF EXEMPTION U/S 54F, WHEREAS LOOKING TO THE FACTS OF THE CASE, THE CLAIM OF EXEMPTION MADE BY THE APPELLANT U/S 54 APPEARS TO BE CORRECT, I FIND THAT THE APPELLANT HAS INVESTED A SUM OF RS. 11,10,337/- OUT OF THE SALE PROCEEDS TOWARDS THE PURCHASE OF HOUSE AT RANI BAUG, INDORE FOR A CONSIDERATION OF RS.60.20 LACS IN THE NAME OF HIS WIFE. THE APPELLAN T HAS CLAIMED THE UTILIZATION OF SALE PROCEEDS U/S 54 OF THE I.T. ACT. THE APPELLANT HAS RELIED UPON VARIOUS JUDICIAL PRONOUNCEMENTS IN SUPPORT OF ITS CONTENTIO N. THE APPELLANT'S A/R ARGUED THAT THE MADRAS HIGH COURT IN THE CASE OF CIT VS. V. NATARAJAN REPORTED 154 TAXMAN 399 HAS CLEARLY HELD THAT THE EXEMPTION U/S 54 OF THE ACT FOR THE PURCHASE OF HOUSE IN THE NAME OF WIFE WHEREAS HE HAS SOLD HIS OWN HOUSE PROPERTY. SINCE THE PRESENT CASE IS COVERED WITH THE AFORESAI D JUDGEMENT OF HON'BLE MADRAS HIGH COURT AND ALSO IN VARIOUS JUDICIAL PRONOUNCEMENTS CITED BY THE APPELLANT, I AM OF THE CONSIDERED VIEW THAT THE A.O . SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 8 PAGE 8 OF 19 WAS NOT JUSTIFIED IN COMPLETELY DENYING THE CLAIM O F EXEMPTION OF RS. 8,49,000/- U/S 54 OF THE ACT. ACCORDINGLY THESE GROUNDS OF APPEAL ARE PARTLY ALLOWED. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THERE IS NO DISPUTE TO THE FACT THAT CAPITAL GAIN AROSE ON SALE OF PROPERTY WAS UTILIZED IN THE RESIDENTIAL HOUSE PURCHASED IN THE NAME OF WIFE. THE ISSUE IS SQUARELY COVERED BY THE LATEST D ECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KA MAL WAHAL, 30 TAXMAN.COM 34 ORDER DATED 11 TH JANUARY, 2013, WHEREIN IT WAS HELD THAT FOR CLAIMING DEDUCTION OF CAPITAL U/S 54F, NEW RESIDENTIAL HOUSE NEED NOT BE PURCHASED BY THE ASSE SSEE EXCLUSIVELY IN HIS OWN NAME. IT WAS FURTHER HELD TH AT THE ASSESSEE HAVING PURCHASED THE NEW HOUSE IN THE NAME OF WIFE, EXEMPTION COULD NOT BE DENIED. RESPECTFULLY FOLLOWI NG THE DECISION OF HON'BLE DELHI HIGH COURT AND CONSIDERIN G THE PROPOSITION LAID DOWN BY HON'BLE SUPREME COURT IN T HE CASE OF VEGETABLE PRODUCTS LIMITED, 88 ITR 192, WHICH SAYS THAT IF A SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 9 PAGE 9 OF 19 STATUTORY PROVISIONS IS CAPABLE OF MORE THAN ONE VI EW, THEN THE VIEW WHICH FAVOURS THE TAX PAYERS SHOULD BE PREFERR ED. FOLLOWING THE DECISION OF HON'BLE SUPREME COURT, WE ARE INCLINED TO FOLLOW THE VIEW IN FAVOUR OF ASSESSEE O N THIS VERY POINT IN PREFERENCE OF JUDICIAL PRONOUNCEMENT CITED BY THE LD. SENIOR DR IN FAVOUR OF REVENUE. 8. THE ASSESSING OFFICER HAS ALSO MADE AN ADDITION OF RS. 2,58,000/- U/S 68 ON ACCOUNT OF DEPOSITS IN JOINT L OAN ACCOUNT WITH STATE BANK OF INDIA. BY THE IMPUGNED ORDER, TH E LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBS ERVATIONS :- 6.3 I HAVE CONSIDERED THE A.O.'S ORDER AS WELL AS THE APPELLANT'S SUBMISSION. HAVING CONSIDERED BOTH, I FIND MERITS IN THE ARGUMENTS OF THE APPELLANT. IT I S SEEN THAT THE LOAN WAS OBTAINED FOR PURCHASE OF SHOP, WHEREIN THE WIFE OF THE APPELLANT IS REGULARL Y CARRYING ON BUSINESS IN THE NAME OF ANAND SHREE FRUITS JUICE. IN THIS REGARD, THE APPELLANT HAS ALS O FILED THE COPY OF FOOD LICENSE OF THE INDORE, MUNIC IPAL CORPORATION. IT IS ALSO EVIDENT THAT THE PAYMENTS I N SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 10 PAGE 10 OF 19 THE LOAN ACCOUNT HAVE BEEN MADE BY THE WIFE OF THE APPELLANT AND THERE IS NO CONNECTION WITH THE APPELLANT IN THIS RESPECT. FURTHER IT IS EVIDENT TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. DID NOT ASKED ANY EXPLANATION FROM THE APPELLANT IN THIS REGARD AFTER OBTAINING THE COPY O F ACCOUNT FROM THE BANK. I ALSO FIND THAT THE WIFE OF THE APPELLANT IS REGULARLY FILING RETURN OF INCOME REFLECTING THE INCOME FROM THE SHOP AS WELL AS AGRICULTURAL INCOME AND OUT OF WHICH THE PAYMENT IN THE LOAN ACCOUNT HAS BEEN MADE. IN VIEW OF THE SAME, I CONSIDER IT PROPER AND APPROPRIATE TO HOLD THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE AFORESAID ADDITION TO THE INCOME OF THE APPELLANT. ACCORDINGLY, THE ADDITION SO MADE BY THE ASSESSING OFFICER IS DELETED. THUS, THIS GROUND OF APPEAL IS ALLOWED. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT THE LOAN WAS OBTAINED FOR PURCHASE OF SHOP, WH EREIN WIFE SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 11 PAGE 11 OF 19 OF ASSESSEE WAS REGULARLY CARRYING ON THE BUSINESS IN THE NAME OF ANAND SHREE FRUIT JUICE. BY CONSIDERING INC OME OF WIFE, THE LD. CIT(A) HAS DELETED THE ADDITION. WE F IND THAT AS PER THE COMPUTATION OF INCOME FILED BY HIS WIFE, TH E INCOME WHICH CAN REASONABLY BE TAKEN AS FREE FOR DEPOSIT I N THE LOAN ACCOUNT WORKS OUT TO BE RS. 1,75,000/-. ACCORDINGLY , WE RESTRICT THE ADDITION TO THE EXTENT OF RS. 83,000/- . 10. THE ASSESSING OFFICER HAS ALSO MADE ADDITION OF RS. 11,19,980/- WHICH WAS DELETED BY THE LD.CIT(A) AFTE R HAVING THE FOLLOWING OBSERVATIONS :- 7.2 AMID APPELLATE PROCEEDINGS, THE APPELLANT'S A/R HAS FILED A DETAILED , WRITTEN SUBMISSION IN SUPPORT OF ITS CONTENTION, THE RELEVANT PORTION OF THE SAME IS EXTRACTED AS UNDER:- A) THE LEARNED ASSESSING OFFICER WHILE VERIFYING THE ACCOUNT OF ARIHANT URBAN CO-OPERATIVE BANK ACCOUNT NO. 2311 HAS OBSERVED THAT A CHEQUE OF RS.14000/- HAS BEEN PAID AS CLEARING TO THE INDIAN BANK ACCOUNT. HE HAS SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 12 PAGE 12 OF 19 OBTAINED THE COPY OF THE ACCOUNT OF INDIAN BANK DIRECTLY FROM THE BANK IN WHICH THE AMOUNT HAS BEEN PAID FROM ARIHANT URBAN CO-OPERATION BANK. THIS INDIAN BANK ACCOUNT IS A MORTGAGE LOAN ACCOUNT OF THE APPELLANT AND LOAN WAS ACQUIRED WITH A OBJECT TO PURCHASE ANY PROPERTY. THE LEARNED ASSESSING OFFICER HAS ONLY CALLED THIS LOAN ACCOUNT BUT HE DID NOT CALL THE SAVING BANK ACCOUNT IN WHICH THE DISBURSEMENT OF THE LOAN ACCOUNT WAS MADE. IN FACT THE APPELLANT HAD MORTGAGE LOAN ACCOUNT NO. 724720652 HAVING LOAN AMOUNT OF RS.10 LACS AND ACCOUNT NO. 727971104 AN AMOUNT OF RS. 3, 00, 000/- WHICH IS AN ADDITIONAL LOAN ACCOUNT GIVEN TO THE APPELLANT BY THE BANK AND SAVING BANK ACCOUNT NO. IS 724715643. (ANNEXURE 'D') WHEREAS THE ASSESSING OFFICER HAS ONLY CALLED THE MORTGAGE LOAN ACCOUNT OF RS,10 LACS AND THEREFORE COULD NOT SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 13 PAGE 13 OF 19 PROPERLY UNDERSTOOD THE ENTIRE TRANSACTION. B. THE LEARNED ASSESSING OFFICER DID NOT ASK FOR ANY EXPLANATION FROM THE APPELLANT AFTER OBTAINING THE LOAN STATEMENT FROM THE BANK. HE ALSO DID NOT ASK NATURE OF TRANSACTION IN LOAN ACCOUNT, TRANSACTION FROM LOAN ACCOUNT FOR DISBURSEMENT, OR EXISTENCE OF ANY SAVING BANK OR LOAN ACCOUNT. IT IS EVIDENT FROM SECTION 69 OF THE ACT THAT BEFORE THE AMOUNT OF AN UNDISCLOSED INVESTMENT IS INCLUDED IN TOTAL INCOME OF THE ASSESSEE HE IS ENTITLED TO AN OPPORTUNITY AND WHERE THE PROVISION OF THIS SECTION ARE ATTRACTED THE LEARNED ASSESSING OFFICER IS BOUND TO GIVE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF ITS INVESTMENT WHICH IN THIS CASE HAS NOT BEEN PROVIDED BY THE ASSESSING OFFICER AND IN THE CASE, THE TRANSACTION IN THIS ACCOUNT IS VERY SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 14 PAGE 14 OF 19 CLEAR AND OUT OF BANK BALANCES OF THREE ACCOUNTS AND SINCE THESE ALL ACCOUNTS WERE FOR THE PURPOSE OF ACQUIRING PROPERTY FOR A SHORT PERIOD OF 7-8 MONTHS WERE NOT REFLECTED IN BALANCE SHEET OF APPELLANT. C) THE POSITION IN THIS ACCOUNT IS VERY CLEAR THAT THIS IS A MORTGAGE LOAN ACCOUNT WHICH THE APPELLANT HAD TAKEN FOR THE PURPOSE OF ACQUIRING THE HOUSE OR THE PROPERTY AND THE OPERATION IN THE LOAN ACCOUNT SHOWS THAT THE MORTGAGE LOAN RS.10 LACS AND ADDITIONAL LOANS RS.3 LACS. SANCTIONED BY THE BANK HAVE BEEN TRANSFERRED TO THE SAVING BANK ACCOUNT AND THERE FROM THE CASH WAS WITHDRAWN BY THE APPELLANT AND WAS HELD AS CASH IN HAND FOR THE PURPOSE OF PURCHASE OF ANY PROPERTY. SINCE THE SUITABLE PROPERTY COULD NOT BE FIND OUT THE APPELLANT RE-- DEPOSITED THE SAID CASH IN HAND IN THE ACCOUNT WITHIN PERIOD OF SIX MONTHS. ON PERUSAL OF ALL SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 15 PAGE 15 OF 19 THESE THREE ACCOUNTS IT CLEARLY SHOWS THAT THE DEPOSIT IN THIS ACCOUNT IS OUT OF THE SAME LOAN TAKEN BY THE APPELLANT. FURTHER, THE APPELLANT HAS NOT UTILISED THIS AMOUNT FOR ANY OTHER PURPOSE. D) THE LEARNED ASSESSING OFFICER HAS MADE FOLLOWING ADDITIONS: S.NO DATE DESCRIPTION RECEIVED 1 14.03.2007 REPAYMENT BY A/C TRF FROM SB A/C. 724715643 RS. 2,810/- 2 11.05.2007 REPAYMENT RECEIVED TRF FROM SB A/C. 724715643 RS.36,294/- 3 18.07.2007 REPAYMENT RECEIVED TFR FROM SB A/C. 724715643 RS.74,327/- 4 03.09.2007 CASH DEPOSIT RS.5,20,000/- 5 03.09.2007 DISCHARGE VIA TFR SB- A/C. RS.4,86,549/- TOTAL RS.11,19,980/- OUT OF ABOVE AMOUNTS EXCEPT S.NO. 4, THE AMOUNT ARE TRANSFERRED FROM SAVING BANK ACCOUNT AND NOT A CASH DEPOSIT BY THE APPELLANT. IN THIS SAVING BANK ACCOU NT THE FUNDS HAVE BEEN TRANSFERRED FROM ABOVE LOAN ACCOUNT SANCTIONED BY INDIAN BANK. SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 16 PAGE 16 OF 19 THE LEARNED ASSESSING OFFICER FAILED TO CONSIDER TH E TRANSACTIONS IN THE LOAN ACCOUNTS DEPOSITS IN LOAN ACCOUNT THE RIGHT PERSPECTIVE AND TOTALITY OF TRANSACTIONS AND HAS ONLY CONSIDERED THE DEPOSITS/TRANSFERS IN THE ACCOUNT MADE BY THE APPELLANT WHEREAS THE IN FACT THE DEPOSIT BY THE APPELLANT IS OUT OF LOAN SANCTIONED AND DISBURSED B Y THE BANK. IN VIEW OF THE ABOVE THE ADDITIONS OF RS. 11,19,980 /- MADE BY THE LD.AO SHOULD BE DELETED IN FULL. 7.3 I HAVE CONSIDERED THE A.O.'S ORDER AS WELL AS THE APPELLANT'S SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT A.G. OBTAINED LOAN STATEMENT FROM INDIAN BANK, WHEREIN THE DEPOSITS HAVE BEEN OBSERVED BY HIM AND ON THE BASIS OF DEPOSITS, THE ADDITION WAS MADE. HOWEVER I FIND THAT THE A.O. HAS NOT APPRECIATED THE ENTIRE FACTS AS THE LOAN ACCOUNT ITSELF SHOWS THE AMOUNT TRANSFER OF RS. 10,00,000/- TO THE SAVING BANK ACCOUNT NO. 724715463 AND THEREFROM THE APPELLANT HAS DRAWN THE CASH FOR THE PURPOSE OF SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 17 PAGE 17 OF 19 PURCHASE OF PROPERTY. AS PER APPELLANT'S SUBMISSION, THE APPELLANT WAS GRANTED ANOTHER LOAN OF RS. 3 LACS (1.50 LACS + 1.50 LACS), WHICH WERE ALSO TRANSFERRED TO THE AFORESAID SAVING BANK ACCOUNT. ON PERUSAL OF AFORESAID SAVING BANK ACCOUNT IT IS OBSERVED THAT THE OUT OF THE AMOUNT TRANSFERRED FROM LOAN ACCOUNT, THE APPELLANT HAS WITHDRAWN THE CASH IN MOST OF THE CASES FOR THE PURPOSE OF INVESTMENT IN THE PROPERTY. SINCE NO PROPERTY WAS PURCHASED BY THE APPELLANT, THE CASH SO WITHDRAWN WAS RE- DEPOSITED INTO THE LOAN AND SAVING BANK ACCOUNT. I ALSO FIND THAT THE A.G. HAS NOT APPRECIATED THAT THE CREDIT WHICH HE HAS CONSIDERED FOR THE ADDITION WAS TRANSFERRED FROM THE SAVING BANK ACCOUNT IN THE ACCOUNT REFERRED AS ABOVE. I FIND THAT THE A.G. HAS NOT APPRECIATED FULL FACTS AND HAS NOT CALLED ALL THE THREE ACCOUNTS, WHICH HE WAS REQUIRED. FURTHER HE HAS NOT CALLED FOR ANY EXPLANATION FROM THE APPELLANT AFTER HE COLLECTED THE BANK ACCOUNT. CONSIDERING THE ABOVE FACTUAL POSITION OF THE CASE, I CONSIDER IT PROPER AND APPROPRIATE THAT THE DEPOSIT IN THE ACCOUNT WAS OUT OF CASH WITHDRAWN FROM THE SAME LOAN ACCOUNT. ACCORDINGLY THE ADDITION SO MADE BY THE A.G. IS DELETED. THUS, THIS GROUND OF APPEAL IS SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 18 PAGE 18 OF 19 ALLOWED. 11. AGAINST THE ABOVE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE US AND GROUND REGARDING RULE 46A W AS ALSO TAKEN. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT INDIAN BANK ACCOUNT IS A MORTGAGE LOAN ACCOUNT OF THE ASSESSEE AND LOAN WAS ACQUIRED WITH THE OBJECT TO PURCHASE PROPERTY. HOWEVER, THE ASSESSING OFFIC ER HAS ONLY CALLED THE LOAN ACCOUNT BUT DID NOT CALL SAVING BAN K ACCOUNT IN WHICH THE DISBURSEMENT OF LOAN ACCOUNT WAS MADE. IN THIS LOAN ACCOUNT, RS. 10 LAKHS WAS SANCTIONED AND ADDIT IONAL RS. 3 LAKHS WAS ALSO GIVEN TO THE ASSESSEE. THUS, RS. 1 3 LAKHS WAS TRANSFERRED BY THE ASSESSEE IN A SAVING BANK ACCOUN T. FROM THIS SAVING BANK ACCOUNT, THE ASSESSEE HAS WITHDRAW N CASH FOR PURCHASE OF PROPERTY. SINCE THE ASSESSEE COULD NOT PURCHASE ANY PROPERTY, THE CASH SO WITHDRAWN WAS AG AIN DEPOSITED IN THE BANK ACCOUNT. THE LD. CIT(A) HAS C ALLED FOR AND EXAMINED ALL THE THREE ACCOUNTS AND FOUND THAT DEPOSIT IN THE LOAN ACCOUNT WAS OUT OF CASH WITHDRAWN FROM THE VERY SAME LOAN ACCOUNT. SINCE THE AVAILABILITY OF CASH W AS THERE, WE SHRI DEEPAK KUMAR DHAWAN, INDORE. I.T.A.NO. 150/IND/2013 A.Y. 2008-09 19 PAGE 19 OF 19 DO NOT FIND ANY REASON TO INTERFERE IN THE FINDING OF CIT(A) FOR DELETING THE SAID ADDITION. 13. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED IN PART. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST DECEMBER, 2013. CPU* 1920