ITO, New Delhi V. Shri Mahesh Kumar Pahuja, New Delhi

ITA 1667/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58949 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 20-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 06-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NO.1667/DEL/2011 ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, WARD 46(3), NEW DELHI. VS. SHRI MAHESH KUMAR PAHUJA, 40/161, GS APARTMENTS, CR PARK, NEW DELHI 110 019. PAN : ADTPP6060F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH MALHOTRA, CA REVENUE BY : SHRI R.S. NEGI, SR.DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIREC TED AGAINST THE ORDER DATED 4 TH JANUARY, 2001 PASSED BY THE CIT(A) FOR ASSESSMENT YEAR 2007-08. THE GROUNDS OF APPEAL READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN :- (I) DELETING THE ADDITION OF RS.10,09,000/- RIGHTLY MAD E BY THE A.O U/S 68 OF THE IT ACT, 1961 WHEN THE ASSESSEE FA ILED TO EXPLAIN SATISFACTORILY THE CASH DEPOSITS IN HIS BANK AC COUNT WITH INDIAN OVERSEAS BANK. (II) IGNORING THE FACTS THAT THE ASSESSEE FAILED TO SATISF ACTORILY EXPLAIN THE CASH DEPOSITS HE RECEIVED AS INTEREST FREE LOAN/CASH FROM VARIOUS PARTIES FOR THE PURPOSE OF PURCHASE OF P ROPERTY AND PRODUCED CONFIRMATIONS ALSO IN THIS REGARD FROM SH. R AKESH VIRMANI, SH. RAMESH SACHDEVA AND SH. MAHENDRA KUMAR AND DURING THE ASSESSMENT PROCEEDINGS CHANGED HIS MIND AND SUBMITTED THAT RS.3,60,000/- RECEIVED FROM SH. MAHENDRA KUMAR ITA NO.1667/DEL/2011 2 WAS ADVANCE FOR THE SALE OF PROPERTY WHICH WAS EARLIE R STATED AS INTEREST FREE LOAN FOR PURCHASE OF PROPERTY AND THE AG REEMENT TO SELL PREPARED TO SUPPORT THIS NEW EXPLANATION WAS NOT ONLY A CHRONOLOGICAL DISCREPANCY BUT ALSO WITHOUT THE SIGNATURE S OF WITNESSES. (III) ACCEPTING THE EXPLANATION OF THE ASSESSEE THAT THE C ASH DEPOSITS IN THE BANK ACCOUNT AMOUNTING TO RS.6,49,000/- WAS SIMPLY A REDEPOSIT OUT OF AMOUNT WITHDRAWN EARLIER FROM THE SAME BANK ACCOUNT WITHOUT CONSIDERING THE FACT THAT THIS EXPLANATION OF THE ASSESSEE DIFFERED ENTIRELY FROM THE EXPLANATIONS OFFERED AT THE TIME OF ASSESSMENT PROCEEDIN GS. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR S UBSTITUTE THE GROUNDS OF APPEAL. 2. THE ASSESSEE WAS REQUIRED TO EXPLAIN CASH DEPOSITS AGGRE GATING TO ` 10,09,000/- IN HIS BANK ACCOUNT NO.66, INDIAN O VERSEAS BANK, CR PARK, NEW DELHI. IT WAS EXPLAINED THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF ` 3,60,000/- AS AN ADVANCE AGAINST THE PROP ERTY FROM MAHENDRA KUMAR, S/O LATE SHRI RAM CHAND, ROHINI. T O SUPPORT, AN AGREEMENT TO SELL DATED 13 TH APRIL, 2006 WAS FILED WHICH WAS ATTESTED BY NOTARY ON 5 TH APRIL, 2006. IN ADDITION TO THIS DISCREPANCY, THE ASSESSING OFFICER OBSERVED THAT THE AGREEMENT WAS MADE BY THE ASSESSEE ON 13 TH APRIL, 2006 AS AGAINST THAT THE SAME WAS ATTESTED BY THE NOTARY ON 5 TH APRIL, 2006. HE REJECTED THE EXPLANATION OF THE ASSESSEE AND ADDED THE ENTIRE AMOUNT TO THE INCOME OF T HE ASSESSEE. 3. IN APPEAL, IN ADDITION TO THE SUBMISSION THAT ` 3,6 0,000/- WAS RECEIVED ON ACCOUNT OF SALE OF PROPERTY, IT WAS SUBMIT TED THAT THERE WAS AGGREGATE CASH WITHDRAWAL OF ` 16,44,000/- ON DIF FERENT DATES AND BALANCE AMOUNT OF ` 6,49,000/- WAS DEPOSITED OUT OF E ARLIER WITHDRAWALS. THE ASSESSEE ALSO FILED CONFIRMATIONS FROM T HE INTENDED PURCHASER SHRI MAHENDRA KUMAR WHICH WAS STATED TO BE F ILED EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND, IN THIS M ANNER, IT WAS SUBMITTED THAT THERE WAS NO UNEXPLAINED DEPOSIT IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE. ITA NO.1667/DEL/2011 3 4. CONSIDERING THESE SUBMISSIONS, LEARNED CIT (A) HAS OBSER VED THAT THE DISCREPANCY IN THE DATE NOTED BY NOTARY IS O NLY A CLERICAL MISTAKE. THE AMOUNT WAS RECEIVED BY THE ASSESSEE FROM SH RI MAHENDRA KUMAR. LEARNED CIT (A) ALSO HAS PERUSED CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE AND REFERRING TO ALL THESE THINGS LEARNED CIT (A) HAS OBSERVED THAT THE ASSESSEE WAS HAVING SUFFICIENT WITHDRAWALS FOR MAKING THE DEPOSITS AND, IN THIS MANNER , THE ADDITION OF ` 10,09,000/- HAS BEEN DELETED. 5. AFTER NARRATING THE FACTS, IT WAS SUBMITTED BY THE LEARNED DR THAT THERE WAS A CLEAR DISCREPANCY IN THE DATE NOTED IN TH E AGREEMENT TO SELL AND ATTESTED BY THE NOTARY. HE ALSO SUBMITTED THA T THE ASSESSEE REMAINED UNABLE TO EXPLAIN THE CREDIT IN HIS BANK AC COUNT, THEREFORE, THE ASSESSING OFFICER WAS RIGHT IN MAKING THE ADDITION A ND LEARNED CIT (A) HAS WRONGLY DELETED THE ADDITION. 6. ON THE OTHER HAND, THE LEARNED AR SUBMITTED THAT THE DATE OF ATTESTATION BY NOTARY WAS A CLERICAL MISTAKE, THEREFOR E, NO COGNIZANCE OF THE SAME COULD BE TAKEN. HE SUBMITTED THAT THE ASSESSE E HAD SUBMITTED ALL THE PARTICULARS REGARDING AGREEMENT TO SELL AND NO MATERIAL HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE SAID CONTENTION OF THE ASSESSEE WAS WRONG. FURTHER, REFERRING TO THE CA SH FLOW STATEMENT AND THE COPY OF BANK ACCOUNT IT WAS SUBMITTE D BY THE LEARNED AR THAT THE ASSESSEE HAD SUFFICIENT CASH WITHDRAW ALS OUT OF HIS BANK ACCOUNT AND, THUS, IT WAS SUBMITTED BY THE LEARNE D AR THAT THE ADDITION HAS RIGHTLY BEEN DELETED. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. SO FAR AS IT RELATES TO THE CONTENTION OF THE ASSESSEE THAT ` 3,60,000/- WAS RECEIVED BY HIM FROM SHRI MAHENDRA KUMAR, WE FIND THAT THE ASSESSEE HAD SUBMITTED EVIDENCE ITA NO.1667/DEL/2011 4 BEFORE THE ASSESSING OFFICER IN THE SHAPE OF AGREEMENT T O SELL WHICH IS DATED 13 TH APRIL, 2006. THE NAME AND ADDRESS OF THE PURCHASER W AS ALSO CLEARLY SUBMITTED AND IT IS RECORDED IN THE ASSESSMEN T ORDER. IF IT IS SO, THEN, THE CONTENTION OF THE ASSESSEE COULD NOT BE REJECTED MERELY ON THE GROUND THAT THERE IS A DISCREPANCY IN THE DATE OF ATTESTATION OF THE SAID AGREEMENT. THE ASSESSING OFFICER COULD HAVE VE RIFIED ALL THESE FACTS BY EXAMINING THE PAYER OF THE AMOUNT AND AS AGAINST THAT HE HAS SIMPLY DISBELIEVED THE TRANSACTION OF THE ASSESSEE O N THE GROUND THAT DATE OF ATTESTATION OF NOTARY IS EARLIER TO THE DATE OF EXECUTION OF THE DEED. 8. SO FAR AS IT RELATES TO THE BALANCE DEPOSITS OUT OF THE EARLIER WITHDRAWALS, WE FIND THAT ON 18 TH APRIL, 2006 THE ASSESSEE HAD WITHDRAWN A SUM OF ` 9,50,000/-. FURTHER, ON 22 ND APRIL, 2006, THERE ARE WITHDRAWALS OF ` 3,25,000/-. IF THESE TWO CASH WI THDRAWALS ARE CONSIDERED, THEN, THE FURTHER DEPOSITS IN THE BANK AC COUNTS CAN BE SAID TO HAVE BEEN MADE OUT OF THESE WITHDRAWALS, PARTICULA RLY WHEN NO MATERIAL HAS BEEN BROUGHT ON RECORD TO SUGGEST THAT TH ESE AMOUNTS OF WITHDRAWALS WERE USED BY THE ASSESSEE SOMEWHERE ELSE. IN T HIS VIEW OF THE SITUATION, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT (A) VIDE WHICH THE IMPUGNED ADDITION HAS BEEN DELETED. WE DE CLINE TO INTERFERE AND THE APPEAL FILED BY THE REVENUE IS DISM ISSED. 9. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 23.03.20 12. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 23.03.2012. DK ITA NO.1667/DEL/2011 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES