ITO, New Delhi V. Dr. Rajendra Kumar Chakarvarty, New Delhi

ITA 2137/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61796 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VEENA JOSHI
• Assessee Lawyers: J P GULATI
• Keywords: Income from undisclosed sources; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.2137/DEL/2012 ASSESSMENT YEAR : 2007-08 ITO, DR. RAJENDRA KUMAR CHAKRAVARTY, WARD-37 (2), 59/21, NEW ROHTAK ROAD, NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AADPCS AADPCS AADPCS AADPCS- -- -5187 5187 5187 5187- -- -D DD D APPELLANT BY : SMT. VEENA JOSHI,. SR. DR. RESPONDENT BY : SHRI J.P. GULATI, ADVOCATE. ORDER PER TS KAPOOR, AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE OR DER OF LD CIT(A) DATED 17.10.2012. THE GROUNDS RAISED BY THE REVENUE A RE AS UNDER:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON ACCOUNT O F INCOME FROM UNDISCLOSED SOURCES AS THE ASSESSEE COULD NOT SUBSTANTIA TE THE GENUINENESS OF TRANSACTION. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN IGNORING THE FACT THAT THE ASSESSEE HAS MADE A SELF CONTRADICTORY STATEMENT AS THE ASSESSMENT ORDER STATES TH AT ON 18.12.2009 THE ASSESSEE FILED HIS RETURN OWN AFFIDAVIT S TATING THAT FOR THE ON NON RESIDENTS, IT WOULD TAKE TIME TO AFFIRM THE ITA NO2137/DEL/2012 2 TRANSACTIONS ON OATH WHEREAS THE FACT IS THAT DURING TH E APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), THE ASSESSEE HAD ALLE GEDLY PRODUCED A NOTARIZED AFFIDAVIT FROM THE LENDER WHIC H IS DATED 27.2.2009. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT LOAN AMOUNT DEBITED FROM T HE ACCOUNT OF LENDER ON 4.4.2009 AND CREDITED IN THE ASSESSEES ACC OUNT ON 4.4.2006 SHOULD NECESSARILY HAVE ITS ORIGIN IN THE FY 2 005-06 INSTEAD OF FY 2006-07. 4. THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A DO CTOR AND HAS SHOWN INCOME UNDER THE HEAD OF IN COME FROM PROFESSION AND INCOME FROM OTHER SOURCES FOR THE ASSESSMENT YEAR 2007-08. THE R ETURN OF INCOME DECLARING TOTAL INCOME AT ` .8,55,618/- WAS FILED ON 4.2.2008. THE CASE WAS SELECTED FOR SCRUTINY. DURING ASSESSMENT PROC EEDINGS, THE ASSESSING OFFICER OBSERVED THAT ASSESSEE HAD SHOWN RECEIP T OF UNSECURED LOAN OF ` .86,40,000/- FROM ONE MRS. KALPANA DALAL WHO IS STATED TO BE PERMANENTLY SETTLED IN USA. THE ASSESSEE WAS ASKED TO FILE CONFIRMATION ALONG WITH COPY OF RETURN, BALANC E SHEET AND P&L A/C BELONGING TO THE DEPOSITOR AND WAS ALSO ASKED TO EXPLA IN RELATIONSHIP WITH ASSESSEE, REASONS FOR LOAN ALONG WITH AFFIDAVIT DUL Y NOTARIZED BY INDIA HIGH COMMISSION/EMBASSY IN USA. THE ASSESSEE DID NOT FILE NECESSARY DOCUMENTS DESPITE REPEATED REQUEST BY ASSESSING OF FICER ON DATED 9.11.2009, 16.11.2009, 24.11.2009 & 10.12.200 9. ON 18.12.2009, THE ASSESSEE FILED HIS OWN AFFIDAVIT STATING THAT IT WOULD TAKE TIME TO GET NOTARIZED AFFIRMATION FROM NON RESI DENT. THE ASSESSING OFFICER GAVE LAST OPPORTUNITY FOR FILING THE DOCUMEN TS AND FIXED THE DATE FOR 21.12.2009 ON WHICH DATE AGAIN THE ASSESSEE DI D NOT FILE ANY DOCUMENT. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER A DDED BACK THE ITA NO2137/DEL/2012 3 AMOUNT OF ` .86,40,000/- BEING HIS OWN INCOME FROM UNDISCLOSED SOURCES. 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE LD CIT( A) AND SUBMITTED AS UNDER:- I) THAT ASSESSING OFFICER HAS NOT GIVEN DETAIL OF THE IM PUGNED ADDITION OF ` .86,40,000/- BUT SB A/C NO.60773 AND A/C NO.90242050000140 OF MRS. KALPANA DALAL WITH SYNDICA TE BANK, NEW DELHI WOULD SHOW THAT FOLLOWING AMOUNTS WERE DEBI TED TO HER BANK ACCOUNT QUA THE AMOUNT DEPOSITED IN ASSESSEES B ANK ACCOUNT. 5.4.2006 ` .26,05,000/- 15.7.2006 ` .15,50,000/- 3.8.2006 ` .9,00,000/- 9.8.2006 ` .1,00,000/- 10.8.2006 ` .6,00,000/- 9.9.2006 ` .6,20,000/- 9.9.2006 ` .4,15,000/- 9.2.2007 ` .5,90,000/- 12.2.2007 ` .2,00,000/- 26.2.2007 `.10,60,000/- ------------------- ` .86,40,000/- ------------------- II) THAT THE AMOUNT OF ` .26,05,000/- RECEIVED FROM MRS. KALPANA DALAL ON 5.4.2006 WAS ON ACCOUNT OF FOLLOWING RECEIP TS BY MRS. KALPANA DALAL FROM VARIOUS SOURCES:- ITA NO2137/DEL/2012 4 I) ` .15,30,000/- FROM ASSESSEES OWN OD A/C WITH PUNJAB NATIONAL BANK A/C NO. 061909301001637. II) ` .10,36,000/- FROM BANK A/C NO.607712 IN SYNDICATE BANK BELONGING TO MR. RS CHAKRAVARTY WHO HIMSELF HAD RECEIVED THE SAME FROM ASSESSEE AS UNDER:- ` .3,50,000/- DEBITED TO ASSESSEES A/C NO.0619009301001646 ON 31.3.2006. ` .6,80,000/- DEBITED TO ASSESSEES ACCOUNT ON 31.3.2006. ` .29,000/- FROM BANK A/C 61434 OF MRS. KALPANA DALAL ORIGINATED FROM EARLIER CREDIT BALANCE OF EARLIER Y EAR. ` .6800/- FROM BANK A/C NO.61425 BELONGING TO DR. RS CHAKRAVARTY. ` .800/- FROM BANK A/C NO.61439 BELONGING TO RUCHI CHAKRAVARTY. 4. THE LD AR ALSO SUBMITTED COPIES OF BANK ACCOUNTS AS A DDITIONAL EVIDENCE AND REQUESTED FOR ADMISSION OF DOCUMENTS AS ADD ITIONAL EVIDENCE:- III) THAT AS REGARDS ADDITION OF ` .15,50,000/- THE SAME WAS ALSO RECEIVED FROM MRS. KALPANA DALAL WHO HAD RECEIVE D IT FROM JEET RANI WHO IS SISTER OF ASSESSEES WIFE. JEET RAN I HAD RECEIVED AN AMOUNT OF ` .15,03,657/- FROM LIC AS MATURITY PROCEEDS OF POLICY NO.113290044 WHICH WAS EN - ITA NO2137/DEL/2012 5 CASHED ON 28.6.2006 WHO HAD ISSUED CHEQUE ON 7.,7.2006 FOR ` .15,50,00/- IN FAVOUR OF MRS. KALPANA DALAL. THE LD AR FURNISHED BANK ACCOUNT OF JEET RANI AND CERTIFICATE ISSUED BY LIC AS ADDITIONAL EVIDENCE AND REQUESTED FOR ADMISSI ON OF THE SAME AS ADDITIONAL EVIDENCE. 5. IN VIEW OF THE ABOVE, THE LD AR REQUESTED THAT AD DITION OF ` .41,55,000/- ( ` .26,05,000/- + ` .15,50,000/-) BE DELETED AS FULLY EXPLAINED AND IN RESPECT OF OTHER ADDITIONS OF ` .44,85,000/- HE ARGUED THAT ALL AMOUNTS WERE RECEIVED BY CHEQUES BUT IN VIEW OF NON COOPERATION BY MRS. KALPANA DALAL THE SAME MAY BE CO NSIDERED ON MERIT. 6. THE LD CIT(A) AFTER CALLING THE REMAND REPORT AD MITTED ADDITIONAL EVIDENCE AND ON THE BASIS THAT AMOUNT OF ` .41,55,000/- WAS FULLY EXPLAINED DELETED THE ADDITION TO THAT EXTENT AND U PHELD THE ADDITION IN RESPECT OF THE REMAINING AMOUNT OF ` .44,85,000/-. 7. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE THI S TRIBUNAL. 8. THE LD DR AT THE OUTSET ARGUED THAT ASSESSEE HAD ACCE PTED THE AMOUNT OF ` .41,55,000/- FROM MRS. KALPANA DALAL BY ROTATING ALM OST HIS OWN FUNDS. IN THIS RESPECT HE ARGUED THAT IF THESE CHEQ UES WERE GENUINE TRANSACTIONS WHY HE ROTATED HIS OWN FUNDS BY FI RST LENDING IT FROM HIS OD A/C AND THEN TAKING BACK THE SAME AS UNSECU RED LOAN. HE FURTHER ARGUED THAT ASSESSEE WAS DIRECTED BY ASSESSING OFFIC ER TO FILE AFFIDAVIT OF MRS. KALPANA DALAL WHICH HE DID NOT FIL E BUT LATER ON FILED THE SAME WITH LD CIT(A), THE DATE OF NOTARIZED AFFID AVIT IS 27.2.2009 WHEREAS ON 18.12.2009 THE ASSESSEE HAD STATED THAT IT WIL L TAKE TIME TO FILE NOTARIZED AFFIDAVIT FROM A NON RESIDENT. THE REFORE, IN VIEW OF THE ITA NO2137/DEL/2012 6 ABOVE, THE LD DR ARGUED THAT DELETION HAS BEEN MADE BY LD CIT(A) WITHOUT CONSIDERING THE CONTRADICTORY STATEMENT OF AS SESSEE AND THEREFORE SHOULD BE REVERSED. 9. ON THE OTHER HAND, THE LD AR ARGUED THAT TRAIL O F ENTRIES IS WELL EXPLAINED AND NO AMOUNT CAN BE SAID TO BE UNEXPLAINE D. IN THIS RESPECT HE INVITED OUR ATTENTION TO PAPER BOOK PAGES 5-30 WHERE ALL DOCUMENTS EXPLAINING THE ENTRIES WERE PLACED. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PA RTIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT ASSESSEE HAD RECEIVED ` .26,05,000/- AND ` .15,50,000/- INTO HIS BANK ACCOUNT NO.0619000101211534 WITH PUNJAB NATION AL BANK ON 5.4.2006 AND 15.7.2006 (PAPER BOOK PAGE 42). THE AM OUNTS WERE TRANSFERRED FROM A/C NO. 60773 WITH SYNDICATE BANK B ELONGING TO MRS, KALPANA DALAL ON 4.7.2006 & 15.7.2006 (PAPER BOOK P AGE 30). MRS. KALPANA DALAL HAD RECEIVED THESE AMOUNTS FOR GIVING TO THE ASSESSEE AS FOLLOWS:- I) ` .15,30,000/- FROM ASSESSEES OWN OD A/C NO.0619009301001637 WITH PNB (PAPER BOOK PAGE 5. II) ` .10,36,000/- FROM SHRI RS CHAKRABORTY A/C NO.6-0771 WITH SYNDICATE BANK (PAPER BOOK PAGE 7 BACK SIDE). III) ` .6800/- FROM SHRI RS CHAKRABORTY A/C NO.61425 WITH SYNDICATE BANK (PAPER BOOK PAGE 9 BACK SIDE). IV) ` . 29,000/- FROM MRS. KALPANA DALAL A/C NO. 61434 WIT H SYNDICATE BANK (PAPER BOOK PAGE 10 BACK SIDE). V) ` .800/- FROM RUCHI CHAKRABORTY A/C NO.61439 WITH SYNDICATE BANK (PAPER BOOK PAGE 11 BACK SIDE). ITA NO2137/DEL/2012 7 THEREFORE, THE AMOUNT OF ` .26,55,000/- IS FULLY EXPLAINED. SIMILARLY ` .15,50,000/- RECEIVED BY ASSESSEE ON 15.7.2006 WAS TRAN SFERRED TO THE ACCOUNT OF MRS. KALPANA DALAL BY JEET RANI (SISTER IN LAW OF ASSESSEE) WHO HAD RECEIVED AMOUNT OF ` .15,03,657/- FROM LIC AS MATURITY PROCEEDS OF POLICY NO.113290044. THE FACT H AS BEEN PROVED FROM THE BANK A/C OF JEET RANI (PAPER BOOK PAGE 12 BACK SIDE) AND CERTIFICATE OF LIC (PAPER BOOK PAGE 13). THEREFORE, AMOUNT OF ` .41,55,000/- ( ` .26,05,000/- + ` .15,50,000/-) IS FULLY EXPLAINED WITH THE FACTS AND DOCUMENTARY EVIDENCE. THEREFORE, WE DO NO T SEE ANY REASON TO INTERFERE IN THE ORDER OF LD CIT(A). 11. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE R EVENUE IS DISMISSED. 12. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27TH DAY OF JULY, 2012. SD/- SD/- (I.C. SUDHIR) (T.S. KAPOO R) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 27.7.2012. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 10.7.2012 ITA NO2137/DEL/2012 8 DATE OF DICTATION 25.7.2012 DATE OF TYPING 25.7.2012 DATE OF ORDER SIGNED BY 27.7.2012 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET 27.7.2012 & SENT TO THE BENCH CONCERNED.