ITO, New Delhi V. Sh. Anil Mittale, New Delhi

ITA 184/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9905 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-08-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 16-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANOOP KR SINGH
• Assessee Lawyers: V K AGGARWAL
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

ITA NO. 184/DEL/2009 A.Y. 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 184/DEL/2009 A.Y. 2005-06 ITO WARD 8(4), VS. SHRI ANIL MITTAL, C.R. BLDG., NEW DELHI R-53, 2 ND FLOOR, VIKAS MARG, SHAKARPUR, DELHI 110 092 PAN NO. AAIPM0833H [APPELLANT] (RESPONDENT) APPELLANT BY : SHRI ANOOP KR. SINGH, SR. DR RESPONDENT BY : SHRI VK AGGARWAL, CA ORDER PER SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDERS OF THE CIT(A) DATED 29.10.2008 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ISSUE RAISED IN THE APPEAL IS THAT THE CIT( A) ERRED IN DELETING THE ADDITION OF RS. 97,98,729/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE IT ACT. 3. IN THIS CASE THE ASSESSING OFFICER NOTED THAT AS SESSEE HAS DECLARED INCOME ONLY FROM SALARY. THE ASSESSING OFFICER FOUND THAT ASS ESSEE WAS HAVING SAVINGS BANK ACCOUNT NOS. 24411 AND 24413 THROUGH WHICH SOME TRA NSACTIONS ON ACCOUNT OF SALE OF RESIDENTIAL PROPERTY HAD TAKEN PLACE. THE ASSESSE E WAS SAID TO HAVE RECEIVED CASH AS TOKEN MONEY AND THE SAME WAS DEPOSITED INTO BANK ACC OUNT. LATER ON, THE SAID DEAL ITA NO. 184/DEL/2009 A.Y. 2005-06 2 WAS SAID TO BE CANCELLED AND MONEY WAS SAID TO BE R EFUNDED. AS PER THE ASSESSEE RS. 48 LACS WAS RECEIVED FROM FOUR PERSONS @ RS. 12 LACS EACH. THE CONFIRMATIONS SAID TO HAVE BEEN FURNISHED IN THIS REGARD FROM THE SAID FOUR PERSONS WERE NOT FOUND APPEARING GENUINE BY THE ASSESSING OFFICER. NO I TR/PAN OR WARD OF THESE PERSONS WERE FURNISHED. FURTHER, NO CONFIRMATION OF RESID ENTIAL PROPERTY DEAL; COPY OF AGREEMENT ETC. WAS PRODUCED. ACCORDINGLY, THE ASSE SSING OFFICER ADDED A SUM OF RS. 98,60,000/- WHICH ACCORDING TO HIM WAS DEPOSITED IN BANK ACCOUNT UNDER SECTION 68 OF THE IT ACT IN THE HANDS OF THE ASSESSEE. 4. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT ASS ESSING OFFICER HAS ERRED IN COMPUTING THE FIGURE OF RS. 98,60,000/-. ACTUALLY THE AMOUNT RECEIVED AND DEPOSITED WAS ONLY SAID TO BE RS. 48,00,000/-. CASH WAS SAID TO HAVE BEEN WITHDRAWN FROM THESE ACCOUNTS AND AGAIN DEPOSITED. FINALLY, THE AMOUNT WAS WITHDRAWN AND PAID BACK TO THOSE FOUR PERSONS, AS THE DEAL WAS CANCELLED. 5. THE LD. CIT(A) HELD THAT ONE OF THE FOUR PERSON S HAD CONFIRMED THE TRANSACTIONS IN HIS STATEMENT OF OATH BEFORE THE ASSESSING OFF ICER. THE LD. CIT(A) WENT ON TO ACCEPT THE ASSESSES CONTENTION THAT THE ASSESSING OFFICER WAS ERRED IN THIS COMPUTATION. THE LD. CIT(A) ALSO DID NOT FIND ANY LACUNA THAT ALL T HE CONFIRMATIONS WERE OF THE SAME DATE, WRITING AND INK. THE LD. CIT(A) CONCLUDED THAT THE ADDITION MADE BY THE ASSESSING OFFICER WAS UNJUSTIFIED. 6. AGAINST THIS ORDER REVENUE IS AN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. IT IS THE FACT OF THE CASE THAT THERE ARE DEPOSITS IN THE ACCOUNTS OF THE ASSESSEE. AS PER THE ASSESSING OFFICER, THE TOTAL OF THE SUM IS RS. 98,60,000/-. WHILE THE ASSESSEES CONTENTION IS THAT ACTUALLY THE ASSESSEE HAS RECEIVED ONLY RS. 48,00,0 00/- AS TOKEN MONEY FOR A LAND DEAL AND SUBSEQUENTLY THIS AMOUNT WAS SAID TO HAVE BEEN REFUNDED ON CANCELLATION OF THE ITA NO. 184/DEL/2009 A.Y. 2005-06 3 SAID LAND DEAL. IN THIS REGARD, CONFIRMATIONS FR OM THE FOUR PERSONS SAID TO HAVE BEEN PARTIES TO THE TRANSACTIONS HAVE BEEN PRODUCED. T HE ASSESSING OFFICER HAS DOUBTED ON THE GENUINENESS OF THESE CONFIRMATIONS WHILE, CIT(A ) HAS ACCEPTED THE ASSESSEES SUBMISSION. WE FIND THAT SECTION 68 OF THE IT AC T PROVIDES AS UNDER:- 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, I N THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. 8. WE FIND THAT THE HONBLE APEX COURT IN ITS DECI SION DELIVERED IN THE CASE OF CIT VS. P. MOHANKALA 291 ITR 278, HAD THE OCCASION TO E LABORATE ON ANALOGICAL ISSUE. THE HONBLE APEX COURT REPOUNDED THAT IN SUCH CASES FAL LING UNDER SECTION 68, THE ONUS WAS ON THE ASSESSEE TO OFFER PROPER REASONABLE/ ACCEPTA BLE EXPLANATION FOR THE CREDITS. THE HONBLE APEX COURT HAS CONCLUDED THAT:- HELD, REVERSING THE DECISION OF THE HIGH COURT, TH AT THE FINDINGS OF THE ASSESSING OFFICER, THE COMMISSIONER (APPEALS) AND THE TRIBUN AL WERE BASED ON THE MATERIAL ON RECORD AND NOT ON ANY CONJECTURES AND SURMISES. THAT THE MONEY CAME BY WAY OF BANK CHEQUES AND WAS PAID THROUGH THE PROCESS OF BANKING TRANSACTION WAS NOT BY ITSELF OF ANY CONSEQUENCE. THE HIGH COURT M ISDIRECTED ITSELF AND ERRED IN DISTURBING THE CONCURRENT FINDINGS OF FACT. 9. FROM THE ABOVE, IT IS EVIDENT THAT IN SUCH CIRC UMSTANCES WHERE HUGE CASH DEPOSITS ARE FOUND IN THE BANK ACCOUNT OF THE ASSESS EE, THE ONUS IS ON THE ASSESSEE TO PROPERLY EXPLAIN AND DISCHARGE THE ONUS. WITHOUT SA TISFACTORY GIVING THE EXPLANATION ITA NO. 184/DEL/2009 A.Y. 2005-06 4 ASSESSEE CANNOT SHIFT HIS ONUS ON THE ASSESSING OFF ICER. IN OUR OPINION THE SUBMISSIONS BEFORE THE CIT(A) WERE NOT COGENT ENOUGH TO WARRAN T DELETION OF THE ADDITION. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOW READY TO FULLY PROVIDE THE NECESSARY EXPLANATION BEFORE THE ASSESS ING OFFICER. HE CLAIMED THAT PROPER OPPORTUNITY WAS NOT GIVEN AT THE ASSESSING OFFICER LEVEL IN THIS REGARD. 10. UNDER THE CIRCUMSTANCES, UPON CAREFUL CONSIDERA TION AND IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO THE FILE OF THE ASS ESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE DE-NOVO AFTER GIVING THE ASS ESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2009. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28 TH AUGUST, 2009 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES