Anju Taneja, New Delhi V. ITO, New Delhi

ITA 1843/DEL/2012

• Counselvise Citation: 184320114 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 24-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 20-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: MRS ANJU GOEL
• Keywords: Unexplained investment; Gift; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.1843/DEL/2012 1843/DEL/2012 1843/DEL/2012 1843/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 MS. ANJU TANEJA, MS. ANJU TANEJA, MS. ANJU TANEJA, MS. ANJU TANEJA, SHOP NO.5, NEAR GAURI SHOP NO.5, NEAR GAURI SHOP NO.5, NEAR GAURI SHOP NO.5, NEAR GAURI SHANKER TEMPLE, SHANKER TEMPLE, SHANKER TEMPLE, SHANKER TEMPLE, CHA CHA CHA CHANDNI CHOWK, NDNI CHOWK, NDNI CHOWK, NDNI CHOWK, DELHI DELHI DELHI DELHI 110 006. 110 006. 110 006. 110 006. PAN : PAN : PAN : PAN : ABUPT8840J. ABUPT8840J. ABUPT8840J. ABUPT8840J. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -30(4), 30(4), 30(4), 30(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : MRS. ANJU GOEL, AR. RESPONDENT BY : MS. Y.KAKKAR, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXV, NEW DELHI DATED 23 RD FEBRUARY, 2012 FOR THE AY 2008-09. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE :- 1. THAT THE CIT(A) HAS NOT GIVEN ENOUGH OPPORTUNIT Y TO PRESENT OUR CASE. 2. THAT THE ADDITION AMOUNT OF RS.10,85,000/- WAS CASH DEPOSITS IN BANK. THE SOURCE OF CASH WAS EXPLAINED TO BE OUT OF GENUINE SOURCE. SO THE ADDITIONS MADE SHOULD BE DELETED. 3. THE FACTS OF THE CASE ARE THAT AS PER INFORMATION C OLLECTED BY THE REVENUE, IT WAS NOTICED THAT THE ASSESSEE HAS AN ACCOUNT WITH CENTURION BANK OF PUNJAB LTD. (NOW HDFC BANK LTD.) WHICH HAS NOT ITA-1843/DEL/2012 2 BEEN DISCLOSED IN THE RETURN OF INCOME. THE ASSESSING OF FICER NOTICED THAT DURING THE FINANCIAL YEAR 1.4.2007 TO 31.3.200 8, THERE WAS TOTAL DEPOSIT OF ` 10,85,000/-. WHEN CONFRONTED, IT WAS EXPLAINED BY T HE ASSESSEE THAT THE ACCOUNT MAINTAINED WITH THE CENTURION BANK IS NOT RELATED TO HER BUSINESS ACTIVITY AND, THEREFORE, THE SAME WAS NOT DISCLOSED ALONG WITH THE RETURN OF INCOME. THE ASSESSEE ALSO FURNISHED VARIOUS DETAILS EXPLAINING THE SOURCE OF INVESTMENT. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE SAME AND MADE THE ADDITION OF ` 10,85,000/-. THE RELEVANT PORTION OF THE ASSESSMENT OR DER READS AS UNDER:- THE PERUSAL OF ABOVE STATEMENT SHOWS THAT THE ASSESSEE HAD DEPOSITED CASH OF RS.10,85,000/- ON DIFFERENT DATE S BUT THE SAME ACCOUNT HAS NOT BEEN SHOWN IN THE RETURN OF INCOME. THE SAME WAS CONFRONTED TO THE ASSESSEE ON 18 TH OCTOBER, 2010 AND WAS ASKED TO FURNISH AND EXPLAIN THE SOURCE OF THEIR CASH DEPOSITS. VIDE REPLY DATED 30/12/2010, FILED BY THE AR OF THE ASSESSEE IT HAS BEEN SUBMITTED THAT THE ACCOUNT MAINTAINED WITH THE CENTU RION BANK IS NOT AT ALL RELATED TO HER BUSINESS ACTIVITY AND ASSESSEE HAS SEPARATE HER PERSONAL AFFAIR FROM THE BUSINESS ACTIVITY. THE SAME IS NOT ACCEPTABLE AS STATEMENT OF AFFAIRS AS ON 31.3.2007 & 31.3.2008 WAS CALLED VIDE ORDER SHEET DATED 15/7/2010 AND IN RESPO NSE TO ABOVE THE AR SH. M.P. PUROHIT CA VIDE LETTER DATED 18/10/2010 HAS STATED THAT STATEMENT OF AFFAIRS AND BALANCE SHEET ARE THE SAME. FROM THE PERUSAL OF THE BALANCE SHEET FILED BY THE ASSESSEE IT IS ALSO OBSERVED THA T ABOVE BANK ACCOUNT HAS NOT BEEN SHOWN THEREIN. SINCE, THE SUM OF RS.10,85,000/- HAS BEEN FOUND CREDIT ED IN THE BOOKS OF THE ASSESSEE AND THE EXPLANATION OFFERE D BY THE ASSESSEE IS NOT SATISFACTORY. HENCE THE AMOUNT OF RS.10,85,000/- IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF I.T.ACT, 1961. PENALTY PROCEEDINGS U/ S 271(1)(C) ARE INITIATED SEPARATELY ON THIS POINT. THE RATIO LAID DOWN IN THE CASE MENTIONED BELOW FURTHER SUPPO RT THIS ADDITION. ITA-1843/DEL/2012 3 4. ON APPEAL, LEARNED CIT(A) SUSTAINED THE ORDER OF T HE ASSESSING OFFICER WITH THE FOLLOWING FINDING:- 4.3 I HAVE CONSIDERED THE ADDITION/ORDER OF THE AO AND THE SUBMISSIONS OF THE ASSESSEE AND I DO NOT FIND ANY MERIT IN THE SUBMISSION OF THE ASSESSEE REGARDING THE SOURCE OF CASH DEPOSITS AS IT IS SEEN THAT THE ASSESSEE DID NOT DECLARE HER PERSONAL BANK ACCOUNT IN WHICH THERE WAS A HUGE CASH DEPOSITS OF RS.10,85,000/- ON VARIOUS DATES. THE EXPLANATION OF THE ASSESSEE IS ALSO NOT SATISFACTORY REGARDING THE WITHDRAWAL OF THE CASH OF RS.6,30,000/- AS THE SAME HAS BEEN WITHDRAWN AND WOULD HAVE BEEN UTILIZED FOR SOME OTHER PURPOSES. IT IS ALSO SEEN THAT THERE IS NO SATISFACTORY EXPLANATION REGARDING THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE ALLEGED GIFTS OF RS.3,00,000/- AND ANOTHER AMOUNT OF RS.75,000/-. THE GIFT OF RS.3,00,000/- IS SAID TO BE FROM ONE DR. GOPAL DAS S TANEJA OF NAINITAL BUT THERE IS APPARENTLY NO CREDITWORTHINESS OF THE PARTY AS THE PARTY HAS THE NOM INAL RETURN INCOME OF RS.30,993/-, RS.52,240/- AND RS.67,35 0/- ONLY FOR THE AYS 2004-05, 2005-06 AND 2006-07 RESPECTIVELY. THERE IS ALSO NO CREDITWORTHINESS OR GENUINENESS REGARDING THE ALLEGED GIFT OF RS.75,000/- FROM ONE SH. RISHIKESH TANEJA. IT IS APPARENT THAT THE ASSE SSEE HAS TRIED TO COVER UP THE CASH DEPOSITS IN THE BANK ACC OUNT THROUGH VARIOUS GIFTS BUT THE ALLEGED GIFTS DO NOT SEEM TO BE GENUINE AS THE ALLEGED DONORS LACK CREDITWORTHINESS AND GENUINENESS. 4.4 AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES O F THE CASE, I AM OF THE VIEW THAT THERE IS NO MERIT IN THE SUBMISSION OF THE ASSESSEE REGARDING THE SOURCE OF CASH DEPOSITS AND AS SUCH THE AO IS JUSTIFIED TO MAKE THE ADDITION AND ACCORDINGLY, THE ADDITION MADE BY THE AO IS CONFIRMED. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL PLACED BEFORE US. THE ASSESSEE HAS ALSO FURNISHED A PAPER BOOK OF 25 PAGES BEFORE US IN WHICH THE ASSESSEE HAS EXPLAINED ALONGWITH E VIDENCES THE SOURCE OF DEPOSIT OF ` 10,85,000/-. THE ASSESSEE HAS ALSO POINTED OUT THAT FROM THE SAME BANK ACCOUNT, THERE WAS WITHDRAWAL OF ` 6,30,000/- ITA-1843/DEL/2012 4 IN CASH AND THE SAID MONEY WAS AVAILABLE FOR RE-DEPOSI T. HOWEVER, WE FIND THAT THE ASSESSING OFFICER HAS NOT AT ALL GIVEN AN Y COMMENT ON THE ASSESSEES EXPLANATION OF THE SOURCE OF DEPOSIT ON THE GRO UND THAT THE ASSESSEE HAS NOT DISCLOSED THE BANK ACCOUNT ALONG WITH THE RETURN OF INCOME. WE ALSO FIND THAT THE DECISION OF THE CIT(A) WAS ALSO INFLUENCED BY THE FACT THAT THE BANK ACCOUNT WAS NOT DISCLOSED BY THE ASSESSEE. IN OUR OPINION, IN RESPECT OF A BANK ACCOUNT WHICH IS NOT DISCLOSED BY THE ASSESSEE, THE ADDITION CAN BE MADE ONLY FOR UNEXPLAINED INVESTMENT IN THE SAID BANK ACCOUNT. THER EFORE, THE ASSESSEE HAS A RIGHT TO EXPLAIN THE SOURCE OF INVESTMENT I N THE BANK ACCOUNT AND IF THE SAME IS SATISFACTORY, NO ADDITION CA N BE MADE DESPITE THE BANK ACCOUNT HAVING NOT BEEN DISCLOSED BY THE ASSESSEE. THE CIT(A) HAS SUMMARILY DISCUSSED THE SOURCE OF INVESTME NT. HOWEVER, WE FIND THAT ONE OF THE MAJOR SOURCES OF INV ESTMENT WAS THE ASSESSEES CLAIM OF RE-DEPOSIT OF ` 6,30,000/- WHICH WAS WITHDRAWN IN CASH FROM THE SAME BANK ACCOUNT. WE FURTHER FIND THA T THE SAME HAS BEEN SUMMARILY REJECTED BY THE CIT(A) WITH THE PRESUM PTION THAT THE WITHDRAWAL WOULD HAVE BEEN UTILIZED FOR SOME OTHER P URPOSES. IN THE PAPER BOOK, THE ASSESSEE HAS GIVEN THE CASH FLOW STATEMEN T AT PAGE 7 FROM WHICH WE FIND THAT VARIOUS DEPOSITS ARE SOON AFTE R THE WITHDRAWAL. FOR EXAMPLE, ON 1.5.2007, THERE WAS A WITHDRAWAL OF ` 70,000/- AND THERE WAS A DEPOSIT OF ` 50,000/- ON 17.5.2007. ON 18.11.2007, THERE IS A WITHDRAWAL OF ` 75,000/- AND ON 20.11.2007, THERE IS A DEPOSIT OF ` 70,000/-. ON 9.1.2008 AND 22.1.2008, THERE WAS WITH DRAWAL OF ` 1,20,000/- AND ` 70,000/- RESPECTIVELY AND DEPOSIT OF ` 1,50,000/- ON 24.1.2008. THESE ARE ONLY FEW EXAMPLES WHICH ONLY SHO W THAT THERE WAS FREQUENT WITHDRAWAL AND DEPOSIT IN THE BANK ACCOU NT AND THE TIME GAP BETWEEN THE WITHDRAWAL AND DEPOSIT IS NOT MUCH. THEREFORE, UNLESS THERE IS SOME EVIDENCE OR BASIS TO HOLD THAT THE M ONEY WITHDRAWN BY THE ASSESSEE HAS BEEN SPENT OR INVESTED SOME W HERE ELSE, THE SAME WOULD BE AVAILABLE WITH THE ASSESSEE FOR R E-DEPOSIT. ITA-1843/DEL/2012 5 THEREFORE, IN OUR OPINION, THE ASSESSEES CLAIM THAT TH E MONEY WITHDRAWN IN CASH WAS RE-DEPOSITED IN THE BANK SHOULD HAVE BEEN PROPERLY EXAMINED. SIMILARLY, WE FIND THAT THE ASSESSE E HAS CLAIMED TO HAVE RECEIVED THE SUM OF ` 3,00,000/- AS PER WILL OF DR. GOPAL DASS TANEJA. AS PER WILL, THE AMOUNT IS GIVEN TO THE CHIL DREN OF THE ASSESSEE BUT, TILL THEY ATTAIN THE MAJORITY, THE AMOUNT WAS T O BE REMAINED WITH THE ASSESSEE. WE FIND THAT THE ASSESSING OFFICER HAS NOT G IVEN ANY COMMENT THEREON WHILE THE CIT(A) REJECTED THE SAME T REATING IT TO BE GIFT. THE ASSESSEE HAS ALSO CLAIMED TO HAVE RECEIVED THE GIFT OF ` 75,000/-. IN THIS REGARD ALSO, THE ASSESSEE HAS SUBMITTED THE GIFT DEED AND THE EVIDENCE OF THE AGRICULTURAL LAND OWNE D BY THE DONOR. THERE IS NO FINDING BY THE ASSESSING OFFICER ON THIS ASPEC T AND THE FINDING BY THE CIT(A) IS ONLY CRYPTIC. WE ARE OF TH E OPINION THAT THE MATTER NEEDS PROPER EXAMINATION AT THE END OF THE ASSE SSING OFFICER. WE, THEREFORE, DEEM IT PROPER TO SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSIN G OFFICER. WE DIRECT HIM TO RE-EXAMINE ALL THE EVIDENCES FURNISHED BY THE ASSESSEE BEFORE HIM AND THEREAFTER READJUDICATE THE ISSUE IN A CCORDANCE WITH LAW. NEEDLESS TO MENTION THAT HE WILL ALSO ALLOW ADEQ UATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE GIVING EFFECT TO T HIS ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2013. SD/- SD/- ( (( (RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VI VIVI VICE PRESIDENT CE PRESIDENT CE PRESIDENT CE PRESIDENT DATED : 30.09.2013 VK. ITA-1843/DEL/2012 6 COPY FORWARDED TO: - 1. APPELLANT : MS. ANJU TANEJA, MS. ANJU TANEJA, MS. ANJU TANEJA, MS. ANJU TANEJA, SHOP NO.5, NEAR GAURI SHANKER TEMPLE, SHOP NO.5, NEAR GAURI SHANKER TEMPLE, SHOP NO.5, NEAR GAURI SHANKER TEMPLE, SHOP NO.5, NEAR GAURI SHANKER TEMPLE, CHANDNI CHOWK, DELHI CHANDNI CHOWK, DELHI CHANDNI CHOWK, DELHI CHANDNI CHOWK, DELHI 110 006. 110 006. 110 006. 110 006. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -30(4), NEW DELHI. 30(4), NEW DELHI. 30(4), NEW DELHI. 30(4), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR