Amit Kumar Saxena, Roorkee V. ITO, Roorkee

ITA 2197/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6703 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: TILAK RAJ
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NO.2197/DEL/2016 ASSESSMENT YEAR : 2010-11 AMIT KUMAR SAXENA, C/O BRIG. R.S. AGARWAL, AAKASH DEEP ENCLAVE, MILAP NAGAR, ROORKEE. VS. ITO, WARD- 1, ROORKEE. PAN : AZKPS 9405 J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TILAK RAJ, ADV. RESPONDENT BY : SHRI S. K. JAIN, SR.DR DATE OF HEARING : 01-02-2017 DATE OF PRONOUNCEMENT : 07-02-2017 O R D E R PER S.V. MEHROTRA, A.M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 20.01.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), DEHRADUN, U/S 143(3) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT) RELATING TO ASSESSMENT YEAR 2010-11. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2,08,350/-. TH E CASE WAS SELECTED UNDER COMPULSORY SCRUTINY THROUGH CASS ON THE BASIS OF AIR INFORMATION, WHICH SHOWED THAT THE ASSESSEE HAD DURING THE FINAN CIAL YEAR 2009-10, RELEVANT TO ASSESSMENT YEAR 2010-11, HAD DEPOSITED CASH EXCEEDING RS.10 2 ITA NO.2197/DEL/2016 LAKHS IN HIS SAVINGS BANK ACCOUNT. THE ASSESSING O FFICER EXAMINED THE SOURCE OF CASH DEPOSITS BY ASSESSEE IN ITS SAVINGS BANK ACCOUNT WITH AXIS AND TREATED A SUM OF RS.12,91,100/- AS UNEXPLAINED CASH DEPOSITS FOR THE REASONS GIVEN AT PAGE 4 AND 5 OF HIS ORDER. HE OBS ERVED IN PARA 9 AS UNDER :- 9. ON EXAMINATION OF STATEMENT OF SAVING BANK WITH STATE BANK OF INDIA, IT WAS FOUND THAT MAJOR WITHDRAWALS WERE BY VARIOUS PE RSONS AND NOT BY THE ASSESSEE HIMSELF. THIS INDICATES THE ASSESSEE HAD MADE PAYMENTS TO THEM. THEREFORE, THE SOURCES OF CASH DEPOSITED IN AXIS BA NK FROM THE WITHDRAWALS MADE FROM HIS STATE BANK ACCOUNT IS NOT ACCEPTABLE. 3. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL, INTER-ALIA, OBSERVING THAT SOURCE OF THE DEPOSITS IN THE AXIS BANK ACCOUNT WER E SOUGHT TO BE PROVED BY A CASH FLOW STATEMENT PREPARED ON THE PREMISE TH AT AMOUNTS WITHDRAWN BY BEARER CHEQUES WERE IN FACT SELF WITHDRAWALS. H OWEVER, NO EVIDENCE OF THE SAME HAD BEEN FURNISHED. THEREFORE, CASH FLOW STATEMENT LACKS ACCURACY AND EVIDENTIARY VALUE. 4. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT COPY OF BANK STATEMENT OF ACCOUNT MAINTAINED WITH STATE BANK OF INDIA, MAIN B RANCH, ROORKEE, WAS FILED BEFORE THE ASSESSING OFFICER AND IT WAS POINT ED OUT THAT THE DEPOSITS IN AXIS BANK WERE OUT OF THE MONEY WITHDRAWN FROM BANK ACCOUNT. HE POINTED OUT THAT THERE WERE TWO MAJOR DEPOSITS, WHI CH WERE OUT OF SALE PROCEEDS OF HOUSE, WHICH WAS INHERITED BY THE ASSES SEE AND SALE OF A TWO STOREY SHOP. LD. DR RELIED ON THE ORDER OF LOWER R EVENUE AUTHORITIES. 3 ITA NO.2197/DEL/2016 5. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE RECORD OF THE CASE. THE ASSESSING OFFICER IN PARA 5 OF HIS ORDER HAS OBSERVED AS UNDER :- 5. THE CONTENTION RAISED BY THE LD. COUNSEL ON BEH ALF OF THE ASSESSEE HAS BEEN CAREFULLY CONSIDERED. THE LD. COUNSEL IN HIS REPLY STATED THAT THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE H AVE BEEN EXPLAINED. WHEN THE COPY OF BANK ACCOUNT NO. 00000011007288603 MAINTAIN ED WITH STATE BANK OF INDIA, MAIN BRANCH. ROORKEE BY THE ASSESSEE TALLIED WITH THE AIR INFORMATION, IT WAS FOUND THAT THE AMOUNTS OF CASH DEPOSITS DID NOT TALLY WIT H AIR INFORMATION. AS SUCH THE ENQUIRY IN RESPECT OF CASH DEPOSITS AS PER AIR REMAINED INCOMPLETE. THE EVIDENCE OF SOURCES OF CASH DEPOSITS IN THIS BA NK ARE IRRELEVANT IN RESPECT OF AIR INFORMATION. FROM THE AIR INFORMATION IT WAS FO UND THAT THE ADDRESS OF AIR FILER IS 343, CIVIL LINES. ROORKEE. WHEN ENQUIRY GO T CONDUCTED IT WAS FOUND THAT ON THIS ADDRESS BRANCH OF AXIS BANK EXISTS AND NOT OF STATE BANK OF INDIA. SINCE THE ASSESSEE DID NOT FURNISH ANY INFORMATION IN RES PECT OF HIS ACCOUNT IN AXIS BANK WHERE CASH EXCEEDING RS.10 LACS WERE DEPOSITED IN THE FINANCIAL YEAR 2009- 10, THE SOURCES OF CASH DEPOSITS IN THIS ACCOUNT RE MAINED UNINVESTIGATED. IN VIEW OF THIS, IT IS CLEAR THAT THE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE IN AXIS BANK, FOR WHICH AIR INFORMATION WAS RECEIVED HAS NO T BEEN EXPLAINED BY THE ASSESSEE. AS SUCH CASH DEPOSITS IN THIS ACCOUNT HAS NOT BEEN INVESTIGATED. THE CONTENTION RAISED BY THE ID. COUNSEL ON BEHALF OF T HE ASSESSEE IS NOT TENABLE AND, THEREFORE, NOT ACCEPTABLE. 6. THUS, THE MAIN DISPUTE WAS IN REGARD TO CASH DEP OSITS IN THE AXIS BANK ACCOUNT. LD. COUNSEL POINTED OUT THAT THE CAS H WITHDRAWALS WAS MADE THROUGH HIS FRIENDS FROM STATE BANK OF INDIA, WHICH WAS DEPOSITED IN AXIS BANK AND, THEREFORE, THE ASSESSEE MAY BE PROVIDED O NE MORE OPPORTUNITY TO EXPLAIN ITS CASE BY PRODUCING PERSONS WHO HAD WITHD RAWN THE CASH FOR HIS PURPOSE AND NOT TOWARDS ANY PAYMENT BEING MADE TO T HEM. SINCE THE CLAIM OF ASSESSEE IS THAT THE AMOUNTS WERE WITHDRAWN THRO UGH HIS FRIENDS FOR HIS PURPOSE AND NOT TOWARDS ANY PAYMENT, THEREFORE, BEF ORE DRAWING ANY 4 ITA NO.2197/DEL/2016 ADVERSE INFERENCE AGAINST THE ASSESSEE, IT IS NECES SARY THAT DETAILED ENQUIRY IN THIS REGARD IS MADE BY ASSESSING OFFICER FROM TH E PERSONS, WHO ACTUALLY WITHDREW THE MONEY. I, THEREFORE, SET-ASIDE THE OR DERS OF THE LOWER REVENUE AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR PASSING THE ASSESSMENT ORDER DE-NOVO . 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH DAY OF FEBRUARY, 2017. SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED : 07-02-2017. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A)- 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI