Sh. Jagmohan Gupta, New Delhi V. ACIT, New Delhi

ITA 1584/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2759 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 31-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: P K JAIN
• Section: 68

Judgement Text

ITA NO. 1584/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1584/DEL/2012 A.Y. : 200 8 - 0 9 JAGMOHAN GUPTA, M/S PARVATI TEXTILE, 281, AZAD MARKET, DELHI 110 006 (PAN: AAGPG5656E) VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 39(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. P.K. JAIN, CA DEPARTMENT BY : SH. SATPAL SINGH D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NE W DELHI DATED 01.3.2012 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INC OME TAX (A) HAS ERRED IN MAKING THE FOLLOWING ADDITION U/S. 68 OF THE I.T. ACT. A) RS. 3,00,000/- ON ACCOUNT OF CASH DEPOSITED INTO BANK ON 9.6.2007. B) RS. 96,000/- ON ACCOUNT OF CASH DEPOSITED INTO B ANK ON 25.8.2007. C) RS. 6,00,000/- DEPOSITED INTO BANK AFTER RECEIPT OF CANCELLATION OF FLAT PURCHASE DEAL ON 13.11.2007. 3. IN THIS CASE ASSESSING OFFICER NOTED THAT AS PE R AIR INFORMATION, ASSESSEE DEPOSITED CASH AMOUNTING TO R S. 10,47,000/- ITA NO. 1584/DEL/2012 2 IN THE BANK. THERE WERE THREE TRANSACTION OF MORE THAN RS. 16,000/- CASH DEPOSITS. DATE DATE DATE DATE AMOUNT AMOUNT AMOUNT AMOUNT (RS.) (RS.) (RS.) (RS.) 9-6-2007 3,00,000/- 25-8-2007 96,000/- 13-11-2007 6,00,000/- ASSESSEE WAS ASKED TO EXPLAIN THE SAME. ASSESSEE R ESPONDED AS UNDER:- THE ABOVE CASH WAS DEPOSITED MAINLY OUT OF CASH WIT HDRAWN FROM BANK ON THE VARIOUS DATED GIVEN BELOW. IN ADDI TION TO WITHDRAWAL OF CASH ON DIFFERENT DATE, ASSESSEE HAD OPENING BALANCE OF CASH OF RS. 22,160/-. BRIEF DETAILS OF S OURCE OF CASH IS AS FOLLOWS:- AMOUNT (RS.) AMOUNT (RS.) AMOUNT (RS.) AMOUNT (RS.) OPENING BALANCE 22,160/- DATE OF CASH WITHDRAWN 05.5.2007 10,00,000/- 27.12.2007 4,05,000/- TOTAL TOTAL TOTAL TOTAL 14,27,160/ 14,27,160/ 14,27,160/ 14,27,160/- -- - FROM THE ABOVE, ASSESSING OFFICER NOTED THAT AS PER ASSESSEE, CASH WAS WITHDRAWN FROM THE BANK AND THE ASSESSEE K EPT THE MONEY WITH HIMSELF AND THEN AGAIN DEPOSITED MONEY INTO THE BANK ACCOUNT. ASSESSING OFFICER HELD THAT THIS EXPLANATI ON WAS NOT ACCEPTED. IT IS THE CONTENTION OF THE ASSESSEE WITH REGARD TO DEPOSIT OF RS. 96,000/- ON 25.8.2007; RS. 3 LACS ON 9.6.200 7 THAT THE SAME ITA NO. 1584/DEL/2012 3 WERE OUT OF THE EARLIER WITHDRAWAL. REGARDING R S. 6 LACS ASSESSEE SUBMITTED THAT ASSESSEE HAD GIVEN THE SAID SUM OF R S. 6 LACS TO SHRI SHAILENER GUPTA ON 8.5.2007 FOR THE PURCHASE OF FLA T, BUT THE SELLING PARTY COULD NOT GET REGISTRY OF FLAT IN HIS NAME FR OM NOIDA AUTHORITY IN THE PRESCRIBED TIME LIMIT OF SIX MONTHS. HENCE, THE MONEY WAS REFUNDED BY SH. SHAILENDER GUPTA ON 12.11.2007. T HIS MONEY WAS DEPOSITED BY THE ASSESSEE IN BANK ON 13.11.2010. BU T THE ABOVE SUBMISSIONS WERE NOT ACCEPTED BY THE ASSESSING OFFI CER. HE MADE THE ADDITION OF THE CASH DEPOSITS AS ABOVE UNDER SE CTION 68 OF THE I.T. ACT. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOM E TAX (A) CONFIRMED THE ADDITIONS. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT IT IS THE ASSESSEES CONTENTION THAT ASSE SSEE HAS WITHDRAWN THE FOLLOWING SUMS FROM THE BANK AND HAD OPENING CA SH BALANCE AS UNDER:- AMOUNT AMOUNT AMOUNT AMOUNT (RS.) (RS.) (RS.) (RS.) OPENING BALANCE 22,160/- DATE OF CASH WITHDRAWN 05.5.2007 10,00,000/- 27.12.2007 4,05,000/- TOTAL TOTAL TOTAL TOTAL 14,27,160/ 14,27,160/ 14,27,160/ 14,27,160/- -- - 7. ASSESSEE HAS CLAIMED THAT THE DEPOSITS OF RS. 3 LACS AND RS. 96000/- WERE OUT OF THESE CASH WITHDRAWALS. REGARD ING RS. 6 LACS ASSESSEE HAS SUBMITTED THAT THERE WAS AN AGREEMENT FOR PURCHASE ITA NO. 1584/DEL/2012 4 OF FLAT. IN THIS CONNECTION, ASSESSEE HAS PAID ADV ANCE OF RS. 6 LACS. WHEN THE DEAL DID NOT MATERIALIZE, ASSESSEE WAS REF UNDED THE SUM OF RS. 6 LACS, WHICH THE ASSESSEE AGAIN DEPOSITED I NTO THE BANK ACCOUNT. IN OUR CONSIDERED OPINION, THE SUBMISSION S OF THE ASSESSEE CANNOT BE BRUSHED ASIDE. THERE IS NO PRESUMPTION T HAT AMOUNT WITHDRAWN FROM BANK HAS TO BE SPENT AND IT CANNOT BE RE-DEPOSITED. WE FIND THAT IN THIS CASE WITHDRAWAL AND DEPOSIT O CCURRED DURING THE SAME FINANCIAL YEAR. HENCE, THE ASSESSEES SUBMISSI ON IN THIS REGARD DESERVES TO BE ACCEPTED. IN THIS REGARD, W E PLACE RELIANCE UPON THE DECISION OF THE HONBLE KARNATAKA HIGH COU RT IN VENKATA RATNAM (S.R.) VS. C.I.T. [1981] 127 ITR 0807, WHERE IN IT WAS HELD THAT REVENUE CANNOT SURMISE THAT IT WAS IMPROBABLE THAT AMOUNT WAS UNUTILIZED FOR TWO YEARS. UNDER THE CIRCUMSTA NCES, IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS, WE SET ASI DE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOU R OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/7/2013. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 31/7/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 1584/DEL/2012 5