Inder Singh, Delhi V. ITO, New Delhi

ITA 1993/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6752 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 26-12-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: SANJAY KUMAR GUPTA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 234B; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-I, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 1993/DEL/2016 A.Y. : 2011-12 INDER SINGH S/O SH. RAM SINGH 94, GOYALA KHURD, DELHI 110 071 (PAN: BCRPS3678G) VS. ITO, WARD 43(3), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SANJAY KUMAR GUPTA, CA DEPARTMENT BY : SH. F.R. MEENA, SR. DR ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS-15), NEW DE LHI DATED 21.1.2016 PERTAINING TO ASSESSMENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE LD. CIT(A)-15, NEW DELHI ERRED IN NOT CONSIDERING AND DECIDING THE GROUND OF APPEAL THAT THE ASSESSMENT IS BAD IN LAW, NULL AND VOID INTER ALIA BECAUSE : (1) THE LD. ITO, WARDS 26(3), NEW DELHI WHO INITIATED THE ASSESSMENT PROCEEDINGS, AND PASSED THE ASSESSMENT ORDER WAS NOT EMPOWERED TO 2 EXERCISE THE POWERS AND PERFORM THE FUNCTIONS OF THE AO. (2) THE SELECTION OF THE CASE FOR SCRUTINY UNDER CASS IS IN GROSS VIOLATION OF PROVISIONS OF SECTION 143(2) OF THE INCOME TAX ACT, 1961 AND THEREFORE THE NOTICE U/S. 143(2) OF THE ACT IS BAD IN LAW. 2. THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 21,18,700/- U/S. 68 OF THE ACT ON THE GROUND TH AT CASH DEPOSIT IN BANK ACCOUNTS ARE UNEXPLAINED. 2.1 THE LD. CIT(A) FAILED TO APPRECIATE THE FACT TH AT THE CASH WAS DEPOSITED OUT OF CASH WITHDRAWN FROM THE BANK ACCOUNTS. 2.2 THE LD. CIT(A) FAILED TO APPRECIATE THE FACT T HAT THE ASSESSEE HAS INCOME ONLY FROM THE HEAD OTHER SOURCES BANK INTEREST UNDER AND AGRICULTURE WH ICH IS NOT TAXABLE; AND THE ASSESEE HAS NO BUSINESS; AN D THEREFORE, THE ASSESSEE IS NEITHER REQUIRED BY LAW NOR IS MAINTAINING BOOKS OF ACCOUNT AND THEREFORE, ADDITION U/S. 68 OF THE ACT IS BAD IN LAW, AND WITH OUT PREJUDICE THE DEPOSIT IN BANK ACCOUNT CANNOT BE U/S . 68 OF THE ACT. 3. THE LD. CIT(A) FAILED TO DECIDE THE GROUND OF AP PEAL THAT, THE LD. ITO ERRED IN CHARGING INTEREST U/S. 234B OF THE ACT AND WITHOUT PREJUDICE THE SAME IS EXCESSIVE. 3 4. THE OBSERVATIONS MADE BY THE LD. CIT(A) ARE AGAI NST THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW. 5. THE ORDER PASSED BY THE LD. CIT(A) IS AGAINST TH E FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE AS SESSEE STATED THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTA RY EVIDENCES BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) WHICH HAS N OT BEEN CONSIDERED BY THE AO AS WELL AS LD. CIT(A). HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRES H, AS PER LAW AFTER CONSIDERING THE EVIDENCES FILED BY THE ASSESSEE. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE FILED THE PAPER BOOK C ONTAINING PAGES 1 TO 108 HAVING THE COPY OF STATEMENT OF FACTS, WRITTEN SUBM ISSIONS TO ITAT, INCOME TAX RETURN, COMPUTATION OF INCOME ALOGNWITH CHALLAN OF TAX PAYMENT AND BANK STATEMENT. HE HAS ALSO GIVEN A CERTIFICATE THAT SOME PAPERS/D OCUMENTS WERE FILED BEFORE THE AO/LD. CIT(A). HE DRAW MY AT TENTION TOWARDS PAGE NO. 36 OF THE PAPER BOOK WHICH SHOWS THE WITHD RAWAL OF CASH AND RE-DEPOSITING THE SUM AND ALSO SUBMITTED THAT THE ASSESSEE DID NOT USE THE WITHDRAWALS FROM BANKS FOR ANY OTHER PU RPOSES. HE REQUESTED THAT THE ALL THE DOCUMENTS IN THE SHAPE OF PAPER BOOK WERE NOT CONSIDERED, HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE 4 REMITTED BACK TO THE AO FOR FRESH CONSIDERATION, UN DER THE LAW, AFTER CONSIDERING ALL THE DOCUMENTS AND ASSESSEE MAY BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER S OF THE LOWER AUTHORITIES AND OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE A SSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT RECORDS AVAILABLE WITH ME ESPECIALLY THE IMPUGNED ORDER AS WELL AS TH E PAPER BOOK FILED BY THE ASSESSEE. I HAD PERUSED THE PAPER BOOK CONTAININ G PAGES 1 TO 108 HAVING THE COPY OF STATEMENT OF FACTS, WRITTEN SUBMISSIONS TO ITAT, INCOME TAX RETURN, COMPUTATION OF INCOME ALOGNWITH CHALLAN OF TAX PAYM ENT AND BANK STATEMENT. HE HAS ALSO GIVEN A CERTIFICATE THAT SOME PAPERS/DO CUMENTS WERE FILED BEFORE THE AO/LD. CIT(A). I FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT ASSESS EE HAS DEPOSITED CASH AMOUNTING TO RS. 24,05,100 IN HIS SAVING BANK ACCOUNT WITH PUNJAB NATIONAL BANK, GOYALA KHURD BRANCH AND CASH DEPOSITS OF RS. 30,20,000/- WAS MADE IN SAVING BANK ACCOUNT WITH HD FC BANK, NAJAFGARH, NEW DELHI, BUT AO FOUND EXPLANATION OF R S. 33,06,400/- IN ORDER, AND THUS, RS. 21,18,700/- WAS CONSIDERED AS UNEXPLAINED CASH CREDIT AND ADDED U/S. 68 OF THE I.T. ACT, 1961. I H AVE ALSO PERUSED THE PAGE NO. 36 OF THE PAPER BOOK WHICH IS COPY OF BANK STATEMENT OF HDFC BANK WHICH REVEALS THAT THE ASSESSEE WITHDRAW CASH OF RS. 9,00,000/- ON 4.5.2010 AND RS. 12,00,000/- ON 10.5. 2010 OUT OF 5 WHICH RS. 20,00,000/- WAS RE-DEPOSITED ON 29.6.201 0 AND RS. 20,000/- ON 4.11.2010 INTO HDFC BANK AND FURTHER WI THDREW CASH OF RS. 15,00,000/- ON 3.1.2011 FROM HDFC BANK, OUT OF WHICH RS. 1,00,000/- WAS RE-DEPOSITED ON 7.1.2011 INTO PNB. A FTER PERUSING THE AFORESAID PAGE NO. 36 OF THE PAPER BOOK, I AM OF TH E CONSIDERED VIEW THAT THE MATTER NEEDS TO BE RE-EXAMINE/ VERIFIED AT THE LEVEL OF THE AO ALONGWITH THE PAPER BOOK FILED BY THE ASSESSEE. THE REFORE, I SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO FOR F RESH CONSIDERATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/201 7. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 02/02/2017 SRBHATNAGAR COPY FORWARDED TO: - 1.APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR , ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES