ITO, New Delhi V. Shri Manish Sharma, New Delhi

ITA 1508/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3504 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 21-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Business income; Opportunity of being heard; Corroborative evidences
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI BENCH B , NEW DELHI BEFORE S H RI N. K. BILLAIYA , ACCOUNTANT MEMBER , AND MS . SUCHITRA KAMBLE , JUDICIAL MEMBER ITA NO. 1508 /DEL/201 6 ASSESSMENT YEAR: 20 11 - 12 THE I . T .O VS. WARD 46 ( 4 ), NEW DELHI SHRI MANISH SHARMA 2114/11, CHAH INDIRA, SONA BAZAR, BHAGIRATH PLACE NEW DELHI PAN NO. BDOPS 2664 Q (APPELLANT) (RESPONDENT) APPELLANT BY : MS. ASHIMA NEB, SR. DR RESPONDENT BY : NONE DATE OF HEARING: 18 / 0 2 /2 0 1 9 DATE OF PRONOUNCEMENT: 20 / 0 2 /201 9 ORDER PER N. K. BILLAIYA, A CCOUNTANT M EMBER : TH IS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) 16, NEW DELHI DATED 04 .0 1 .20 1 6 PERTAINING TO A.Y 20 11 - 12 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN ALLOWING 80% OF RS. 83,83,299/ - AS EXPENSES OUT OF CASH DEPOSITS IN THE BANK ACCOUNT. 3. N ONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE BEING SERVED THROUGH THE DR. WE DECIDED TO PROCEED EX PARTE . 4. THE LD. DR WAS HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 5. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSMENT ORDER IS FRAMED U/S 144 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] VIDE ORDER DATED 31.12.2013. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O OBSERVED THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS. 31,01,830/ - IN HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK AND RS. 52 , 81 , 469/ - IN HIS BANK ACCOUNT WITH STATE BANK OF INDIA TOTALING TO RS. 83,83,299/ - . THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCES OF CASH DEPOSIT. ON RECEIVING NO REPLY, THE ASSESSING OFFICER MADE ADDI TION OF RS. 83,83,299/ - . 3 6 . AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND STRONGLY CONTENDED THAT THE ASSESSEE IS RUNNING A SMALL BUSINESS AND HIS RECEIPTS ARE IN CASH AND THE SAME ARE REFLECTED IN THE BANK ACCOUNT MAINTAI NED BY HIM. IT WAS ALSO CONTENDED BEFORE THE LD. CIT(A) THAT THE BUSINESS RECEIPTS WHICH WERE DEPOSITED IN THE BANK ACCOUNT CANNOT BE THE INCOME OF THE ASSESSEE BUT CERTAIN EXPENSES NEED TO BE ALLOWED . 7. AFTER CONSIDERING THE FACTS AND SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) OBSERVED THAT THE INCOME OF THE ASSESSEE HAS BEEN ASSESSED UNDER THE HEAD BUSINESS AND PROFESSION AND, THEREFORE, EXPENDITURE HAS TO BE ALLOWED IF THE RECEIPTS ARE ACCEPTED AS BUSINESS RECEIPTS. 8. THE LD. CIT(A), ACCORDINGLY, A LLOWED 80% OF THE RECEIPTS AS EXPLAINED AND DIRECTED THE ASSESSING OFFICER TO TAX 20% OF THE GROSS RECEIPTS FOUND TO BE DEPOSITED IN THE BANK ACCOUNT. 9. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. THE LD. DR STRONGLY STATED THAT THE LD. CIT(A) HAS ALLOW ED 80% AS EXPLAINED WITHOUT VERIFYING ANY DETAIL NOR HE HAS EXAMINED WHETHER THE RECEIPTS ARE FROM BUSINESS OR NOT. IT IS THE SAY OF THE LD. DR THAT THE ORDER OF THE LD. CIT(A) IS WITHOUT ANY BASIS/MATERIAL AND DESERVES TO BE SET ASIDE. 4 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE THAT THE CASH WAS FOUND DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE WITH PUNJAB AND NATIONAL BANK AND STATE BANK OF INDIA. IT IS A LSO NOT IN DISPUTE THAT THE ASSESSEE HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO SHOW THAT THE DEPOSITS MADE IN THE BANK ACCOUNT S WERE OUT OF HIS BUSINESS RECEIPT S, NOR THERE IS ANY EVIDENCE OF EXPENDITURE. 11. WE FAIL TO UNDERSTAND HOW THE FIRST APPELLATE AUTHORITY WAS CONVINCED WITH THE CONTENTION OF THE ASSESSEE WITHOUT EXAMINING ANY SUPPORTING EVIDENCE IN RESPECT OF THE CLAIM MADE BY THE ASSESSEE. IT WAS INCUMBENT UPON THE FIRST APPELLATE AUTHORITY TO EXERCISE THE POWERS CONFERRED UPON HIM FOR MAKING DE TAILED ENQUIRY. THEREFORE, IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO EXAMINE THE ISSUE AFRESH AFTER CALLING FOR ALL THE RELEVANT DOCUMENTARY EVIDENCES IN SUPPORT OF THE CONTENTION OF TH E ASSESSEE AND AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 12 . IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO. 1508 /DEL/2016 IS DISMISSED. ORDER PRONOU NCED IN THE OPEN COURT ON 20 .02.2019. SD/ - SD/ - ( SUCHITRA KAMBLE ) ( N. K. BILLAIYA ) JUDICIAL MEMBER A CCOUNTANT M EMBER DATE: 20 . 0 2 .201 9 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR, ITAT A SSISTANT REGISTRAR ITAT , NEW DELHI 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11.01.2019 DATE ON WHICH THE FI LE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER