Ajit Singh, Gurgaon V. ITO, Gurgaon

ITA 1721/DEL/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7940 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 01-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K P GANGULI; ASHOK CHHABRA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.1721/DEL/2016 ASSESSMENT YEAR: 2011-12 AJIT SINGH, S/O SHRI CHANDER BHAN, H.NO.16, VILL. CHANDU, P.O. BUDHELA, GURGAON. PAN : BIAPS8064D VS. ITO, WARD-2(2), GURGAON. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.P. GANGULI, ADVOCATE & SHRI ASHOK CHHABRA, CA RESPONDENT BY: MS RINKU SINGH, SR. DR DATE OF HEARING : 31.12.2018 DATE OF PRONOUNCEMENT: 31.12.2018 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 4 TH FEBRUARY, 2016 OF THE CIT(A)-1, GURGAON, RELATING TO ASSESSME NT YEAR 2011-12. 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHA LLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.54,18,000/- MADE BY T HE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSIT IN TWO BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. ITA NO.1721/DEL/2016 2 3. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE IS AN INDIVIDUAL, AND FILED HIS RETURN OF INCOME ON 4 TH AUGUST, 2011 DECLARING TOTAL INCOME OF RS.4,50,061 /-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.24,18,000/- IN THE SAVINGS BANK ACCOUNT MAINTAINED WITH YES BANK, GARHI HARSARU, GURGAON AND RS.30,20,000/- WIT H GURGAON GRAMIN BANK. ON BEING CONFRONTED BY THE ASSESSING OFFICER THE ASSES SEE SUBMITTED THAT HE HAS RECEIVED THE ADVANCE OF RS.28 LAKHS FROM SHRI PREM CHAND, S/ O SHRI TEK CHAND, R/O VILLAGE BUDEDA FOR SALE OF AGRICULTURAL LAND MEASURING 11 C ANAL 12 MARLA. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT DATED 15 TH JUNE, 2010 OF SHRI PREM CHAND. THE ASSESSING OFFICER EXAMINED SHRI PREM CHAND DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHO, DURING HIS EXAMINATION STATED THAT HE HAS WITHDRAWN THE AMOUNT FROM HIS BANK ACCOUNT MAINTAINED WITH GURGAON GRAMIN BANK. IN HIS SUPPOR T, HE FURNISHED THE COPY OF THE BANK ACCOUNT. THE ASSESSING OFFICER, ON PERUSAL OF THE BANK ACCOUNT OF SHRI PREM CHAND, NOTICED THAT THERE WAS A CREDIT BALANCE OF R S.15,746/- AS ON 01.04.2010 AND THE CREDIT BALANCE UPTO 13 TH AUGUST, 2011 WAS ONLY RS.51,000/-. AS PER THE STA TEMENT OF SHRI PREM CHAND, HE HAS WITHDRAWN THE FOLLOWING AMO UNTS:- 1. RS.30,00,000/- ON 1.10.2007 2. RS.5,00,000/- ON 23.10.2007 RS 1,00,000/- ON19.02.2008 R : S. 1,00,000/- ON 18.03.2008 RS. 10,00,000/- ON 14.07.2008 6. RS.1,20,000/- ON 7.1.2009 7. RS. 2,00,000/- ON 23.07.2009 ITA NO.1721/DEL/2016 3 4. THE ASSESSING OFFICER, AFTER VERIFYING THE DETAILS, REJECTED THE PLEA OF THE ASSESSEE AND HIS WITNESS FOR THE FOLLOWING REASONS: - 1. THE CASH SO WITHDRAWN BY THE WITNESS OF THE ASSESSE E RELATES TO F.Y.2007-08. 2. THE WITNESS OF THE ASSESSEE IS OF THE AGE OF 55 YEARS AND THESE CASH WITH DRAWLS MIGHT BE UTILIZED FOR DISCHARGING HIS SOCIAL OBLIGATIONS. 3. AS PER AFFIDAVIT OF SH. PREM CHAND AGREEMENT TO SELL WAS MADE ON15.06.2010 AND FURTHER CANCELLATION ON 7.4.2011 W AS NOT PRODUCED BY THE ASSESSEE. 4. THE ASSESSEE HAVE NOT SUFFICIENT CREDIT BALANC E IN HIS ACCOUNT AS ON 1- 04-2011 TO REFUND A SUM OF RS 2800000/- 5. THE AFFIDAVIT FILED BY THE WITNESS OF ASSESSEE, HAS NOT STATED THE DATE OF EXECUTION OF THE AFFIDAVIT. THE AFFIDAVIT IS ALSO S ALIENT ABOUT THE AMOUNT OF ADVANCE RECEIVED AND THE DATE AND MODE OF AMOUNT RE TURNED BACK . 5. THE ASSESSING OFFICER ACCORDINGLY MADE ADDITION OF RS.54,18,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON THE GROUND THAT THE EXPLA NATION OF THE ASSESSEE IS NOT MAINTAINABLE AND THE CASH DEPOSITED IN THE BANK ACC OUNT IS THE UNDISCLOSED INCOME OF THE ASSESSEE WITHIN THE MEANING OF SECTION 69A OF T HE IT ACT. 6. BEFORE THE CIT(A), THE ASSESSEE FILED AN APPLICATIO N FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE IT ACT. THE LD.CIT( A) FORWARDED THE SAME TO THE ASSESSING OFFICER FOR HIS COMMENTS, WHO OBJECTED TO SUCH ADDITIONAL EVIDENCE ON THE GROUND THAT THE ASSESSEE WAS NEVER PREVENTED FOR AD MISSION OF EVIDENCE WHICH HE WAS CALLED UPON AS NO SUCH COMMUNICATION HAS BEEN RECEI VED BY HIM. SINCE THE ASSESSEE DID NOT PRODUCE THESE EVIDENCE, THEREFORE, THE ASSE SSEE IS NOT COMING UNDER ANY OF THE EXCEPTIONS PROVIDED UNDER RULE 46A OF THE IT RULES. THE PLEA OF THE ASSESSEE THAT HE ITA NO.1721/DEL/2016 4 IS COMING UNDER THE PROVISIONS OF SECTION 44AD AND, THEREFORE, NO ADDITION IS CALLED FOR IN ABSENCE OF MAINTENANCE OF BOOKS OF ACCOUNT W AS ALSO REJECTED BY THE ASSESSING OFFICER. AFTER CONSIDERING THE REMAND REPORT OF THE ASSESSING OFFICER AND CONSIDERING THE COMMENTS OF THE ASSESSEE TO SUCH REMAND REPORT, THE LD.CIT(A) REJECTED THE ADDITIONAL EVIDENCES FILED BEFORE HIM. SO FAR AS T HE MERIT OF THE CASE IS CONCERNED, HE ALSO UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF SUCH CASH DEPOSITS TO HI S SATISFACTION. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND CIT(A). WE HAV E ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSING O FFICER MADE ADDITION OF RS.54,18,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS. 24,18,000/- AND RS.30,20,000/- RESPECTIVELY IN THE TWO BANK ACCOUNTS MAINTAINED BY HIM. WE FIND THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. IT IS T HE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FILED CERTAIN AD DITIONAL EVIDENCES BEFORE THE CIT(A) WHICH WERE REJECTED BY HIM AND, THEREAFTER, HE SUST AINED THE ADDITION. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, THESE EVIDENCES S HOULD HAVE BEEN ADMITTED IN THE INTEREST OF JUSTICE. FURTHER, WHEN THE ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND IS COVERED UNDER THE PROVISIONS OF SECTION 44AD , THE LD.CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.26,18,000/- WHICH WAS DEPOSITED BY THE ASSESSEE IN THE ITA NO.1721/DEL/2016 5 BANK ACCOUNTS FROM HIS SALE PROCEEDS. IT IS THE SU BMISSION OF THE LD. DR THAT THE ASSESSEE IS CHANGING HIS STAND FROM TIME TO TIME AN D IS NOT CONSISTENT IN HIS APPROACH TOWARDS THE SOURCE OF THE DEPOSITS IN THE BANK ACCO UNTS. THE ASSESSEE IS TRYING TO SUBMIT CERTAIN NEW EVIDENCES WHICH WERE NEVER SUBMI TTED BEFORE THE ASSESSING OFFICER ALTHOUGH THE ASSESSEE WAS GIVEN DUE OPPORTU NITY OF BEING HEARD DURING THE COURSE OF ASSESSMENT PROCEEDINGS. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RE STORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT TO THE SATISFACTION OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DEC IDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE AR E ACCORDINGLY, ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 3 1.12.2018. SD/- SD/- (SUCHITRA KAMABLE) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMFBE R DATED: 31 ST DECEMBER, 2018 DK ITA NO.1721/DEL/2016 6 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI