Dinesh Kumar, Ghaziabad V. ITO, Ward-1(2), Ghaziabad

ITA 1872/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2050 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 16-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: H R AGARWAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 147; 148; 144; 142(1); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.1872/DEL/2018 ASSESSMENT YEAR: 2009-10 DINESH KUMAR, S/O SHRI SUBEY DUBEY, G-208, SG HOMS, SECTOR-3, VANSUNDHARA, GHAZIABAD, UTTAR PRADESH. PAN: ADUPK9843N VS ITO, WARD-1(2), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH, ADVOCATE, SHRI V. RAJA KUMAR, ADVOCATE & SHRI H.R. AGARWAL, FCA REVENUE BY : MS ASHIMA NEB, SR. DR DATE OF HEARING : 27.08.2019 DATE OF PRONOUNCEMENT : 06.09.2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 15 TH FEBRUARY, 2018 OF THE CIT(A)-2, NOIDA, RELATING TO ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IN HIS ONLY EFFECTIVE GROUND OF APP EAL HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.43,07,1 55/- OUT OF ADDITION OF RS.44,48,155/- MADE BY THE ASSESSING OFFICER. ITA NO.1872/DEL/2018 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 28 TH JULY, 2009 DISCLOSING TOTAL INCOME OF RS.5,76,880/ -. ON THE BASIS OF AIR INFORMATION RECEIVED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.19,31,293/- IN HIS SAVINGS BANK ACCOUNT MAINTAIN ED WITH ICICI BANK, GHAZIABAD, THE ASSESSING OFFICER, AFTER RECORDING REASONS, REO PENED THE ASSESSMENT U/S 147 OF THE IT ACT AND NOTICE U/S 148 WAS ISSUED TO THE ASSESSE E ON 10 TH MARCH, 2016. THIS NOTICE WAS DULY SERVED ON THE ASSESSEE THROUGH SPEED POST. THEREAFTER, NOTICE U/S 142(1) OF THE ACT DATED 19 TH MAY, 2016 WAS ISSUED AND SERVED UPON THE ASSESSEE FOR COMPLIANCE ON 27 TH MAY, 2016. SINCE THERE WAS NO COMPLIANCE, ANOTHER NOTICE U/S 142(1) ALONG WITH NOTICE U/S 143(2) BOTH DATED 21 ST SEPTEMBER, 2016 WERE ISSUED TO THE ASSESSEE FIXING THE HEARING ON 27 TH SEPTEMBER, 2016. AGAIN, THERE WAS NO COMPLIANCE F OR WHICH THE ASSESSING OFFICER ISSUED ANOTHER NOTICE. HOWEVER, THE SAME NOTICE ALSO REMAINED UNCOMPLIED WITH. THE ASSESSING OFFICER, T HEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT U/S 144 OF THE IT ACT ON THE GROUND THAT THE ASSESSEE IS DELIBERATELY AVOIDING THE COMPLIANCE TO THE STATUTORY NOTICES IS SUED BY HIM FROM TIME TO TIME. FROM THE PERUSAL OF THE SAVINGS BANK ACCOUNT MAINTA INED WITH ICICI BANK, GHAZIABAD, THE ASSESSING OFFICER NOTED THAT THERE ARE TOTAL CR EDIT ENTRY OF RS.44,48,155/-. SINCE THE ASSESSEE HAS NOT EXPLAINED THE SAME, THE ASSESS ING OFFICER COMPLETED THE ASSESSMENT BY MAKING ADDITION OF THE SAID AMOUNT AN D DETERMINED THE TOTAL INCOME AT RS.50,25,035/-. 4. BEFORE THE CIT(A), THE ASSESSEE FILED CERTAIN AD DITIONAL EVIDENCES WITH A REQUEST TO ADMIT THE SAME ON THE GROUND THAT DUE TO THE HEA LTH PROBLEM OF HIS WIFE, THE ITA NO.1872/DEL/2018 3 ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFI CER. THE ADDITIONAL EVIDENCES SO PRODUCED BY THE ASSESSEE WERE FORWARDED BY THE CIT( A) TO THE ASSESSING OFFICER FOR HIS COMMENTS. THE ASSESSING OFFICER FORWARDED A RE MAND REPORT DATED 4 TH DECEMBER, 2017. THE LD.CIT(A) PROVIDED A COPY OF THE REMAND R EPORT TO THE ASSESSEE AND ASKED FOR HIS REJOINDER WHICH THE ASSESSEE COMPLIED WITH. AFTER CONSIDERING THE REMAND REPORT OF THE ASSESSING OFFICER AND REJOINDER OF TH E ASSESSEE TO SUCH REMAND REPORT, THE LD.CIT(A) REDUCED THE AMOUNT OF RS.1,41,000/- OUT O F THE TOTAL CREDIT ENTRY OF RS.44,48,155/- TO BE EXPLAINED AND SUSTAINED THE AD DITION OF RS.43,07,155/- MADE TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 6. WE HAVE CONSIDERED THE ARGUMENTS MADE BY BOTH THE S IDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAP ER BOOK FILED ON BEHALF OF THE ASSESSEE. A PERUSAL OF THE RECORD SHOWS THAT DUE T O PERSISTENT NON-COMPLIANCE OF THE ASSESSEE TO THE STATUTORY NOTICES ISSUED BY THE ASS ESSING OFFICER, HE COMPLETED THE ASSESSMENT U/S 144 OF THE ACT WHEREIN THE ASSESSING OFFICER MADE ADDITION OF RS.44,48,155/- BEING THE UNEXPLAINED CREDIT ENTRY I N THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH ICICI BANK, GHAZIABAD BRANCH. WE FIND, THE LD.CIT(A), AFTER CONSIDERING THE THREE CASH WITHDRAWALS OF RS.48,000 /-, 48,000/- AND 45,000/- ON 2 ND DECEMBER, 2008, 13 TH DECEMBER, 2008 AND 15 TH DECEMBER, 2008 RESPECTIVELY, HELD THAT AN AMOUNT OF RS.1,41,000/- IS AVAILABLE TO THE ASSE SSEE FOR DEPOSITING IN THE BANK ACCOUNT SUBSEQUENT TO 2 ND DECEMBER, 2008. HE ACCORDINGLY GAVE CREDIT OF THI S AMOUNT ITA NO.1872/DEL/2018 4 TO THE ASSESSEE AND SUSTAINED THE BALANCE AMOUNT OF RS.43,07,155/-. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THERE ARE VARIOUS CREDIT ENTRIES IN THE BANK ACCOUNT THROUGH CHEQUES AND DEMAND DRAFTS AND THE ASSESSEE HAS ALSO MADE PAYMENT TO VARIOUS PARTIES FROM WHOM GOODS WERE ALS O PURCHASED THROUGH CHEQUES AND, THEREFORE, GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE HIS CASE BEFORE THE ASSESSING OFFICER. 7. IT IS THE SUBMISSION OF THE LD. DR THAT DESPITE REP EATED OPPORTUNITIES GIVEN BY THE ASSESSING OFFICER, THE ASSESSEE NEVER APPEARED BEFORE HIM FOR WHICH THE ASSESSING OFFICER HAD MADE THE ADDITION U/S 144 OF THE IT ACT . DESPITE OPPORTUNITIES GRANTED BEFORE THE CIT(A), THE ASSESSEE FAILED TO SUBSTANTI ATE THE NATURE OF CREDIT ENTRIES IN THE BANK ACCOUNT, THEREFORE, THE MATTER SHOULD BE RESTO RED TO THE FILE OF THE ASSESSING OFFICER OR THE CIT(A) AND THE APPEAL FILED BY THE A SSESSEE SHOULD BE DISMISSED. 8. IN OUR OPINION, WHEN THE CREDIT ENTRIES IN THE BANK ACCOUNT ARE THROUGH CLEARING OF CHEQUES OR DDS AND CERTAIN PAYMENTS WERE MADE AG AIN THROUGH CHEQUES OR DDS, IT IS OBLIGATORY ON THE PART OF THE ASSESSEE TO EXPLAI N THE NATURE OF SUCH CREDIT ENTRIES BEFORE THE ASSESSING OFFICER. CONSIDERING THE TOT ALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTO RE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GRANT ONE FINAL OPPORTU NITY TO THE ASSESSEE TO EXPLAIN THE NATURE OF VARIOUS CREDIT ENTRIES IN THE BANK ACCOUN T AND DECIDE THE ISSUE AS PER FACT AND LAW. IF SO NECESSARY, THE ASSESSING OFFICER MAY SU MMON THE ASSESSEE AND RECORD HIS STATEMENTS AND ALSO MAY DIRECT HIM TO PRODUCE THE V ARIOUS PARTIES FROM WHOM THE ASSESSEE HAS RECEIVED THE VARIOUS AMOUNTS THROUGH C HEQUES OR DEMAND DRAFTS WHICH ITA NO.1872/DEL/2018 5 WERE CREDITED IN THE BANK ACCOUNT. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND SUBSTANTIATE HIS C ASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT, FAILING WHICH THE AS SESSING OFFICER IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT AC CORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 6.09.2019. SD/- SD/- (SUCHITRA KAMBLE) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:06 TH SEPTEMBER, 2019 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI