Gurpreet Singh, Patiala V. ITO, Patiala

ITA 221/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86132 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 221/CHD/2014 ASSESSMENT YEAR : 2008-09 GURPREET SINGH, VS. THE INCOME TAX OFFICER, VILLAGE SAINI MAJRA, WAZIDAR, WARD 4, PATIALA. PATIALA. PAN: ALSPM7320C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 27.01.2015 DATE OF PRONOUNCEMENT : 30.01.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), PATIALA DATED 23.12.2013 ON THE FOLLOWIN G GROUNDS OF APPEAL : 1. THAT THE LEARNED CIT(A) HAS ERRED IN DISMISSING T HE APPEAL AND CONFIRMING THE ADDITION OF RS.7,51,499/- MADE BY THE ASSESSING OFFICER AS UNEXPLAINED INCOME FROM UNDISCLOSED SOUR CES. 2. THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE CONTENTION OF THE ASSESSING OFFICER IN TREATING THE CASH DEPOSITS IN TH E BANK ACCOUNT AS INCOME OF THE ASSESSEE, THEREBY NOT GIVING THE BENEFIT OF CASH WITHDRAWALS, WHICH AMOUNTS WERE ALSO USED FOR RE-DE POSITS IN THE BANK ACCOUNT ESPECIALLY WHEN THE ASSESSING OFFICER FAILED TO POINT OUT OF ANY INVESTMENT OUT OF CASH WITHDRAWALS FROM THE B ANK ACCOUNT. 2 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAS MADE DEPOSITS OF RS.13,48,838/- IN THE BANK ACCOUNT . HE HAS MADE VARIOUS WITHDRAWALS FROM THE BANK ACCOUNT AND CLOSING BALANCE AT THE END OF THE YEAR WAS RS.77,33 9/- ONLY. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS G IVEN A LIST OF CASH DEPOSITS IN THE BANK ACCOUNT AMOUNTING TO RS.12,11,499/- IN TOTAL AND ASKED THE ASSESSEE TO E XPLAIN THE SOURCE OF THE CASH DEPOSITS. THE ASSESSING OFFICE R DISCUSSING THE EVIDENCE ON RECORD FOUND CERTAIN DEPOSITS AS EX PLAINED, HOWEVER, HE HAS MADE ADDITION OF THE BALANCE AMOUNT OF RS.7,51,499/- AS UNEXPLAINED. 3. THE ASSESSEE SUBMITTED BEFORE THE LEARNED CIT (A PPEALS) THAT THE ASSESSING OFFICER HAS LOOKED TOWARDS THE C REDIT SIDE OF THE BANK ACCOUNT AND HAS TOTALLY IGNORED THE DEB IT SIDE FROMWHERE THE WITHDRAWAL IS THERE CONTINUOUSLY AND THESE ARE BY WAY FOR SELF CHEQUES AND THE ASSESSING OFFICER H AS TOTALLY IGNORED THE DEBIT SIDE WHICH SHOULD BE TAKEN INTO CONSIDERATION. NO OTHER ASSETS WERE FOUND AGAINST THE ASSESSEE. THE ASSESSEE HAS BEEN WITHDRAWING THE AMOUNT AND RE-DEPOSITING AND AGAINST WITHDRAWING AND SO ON AND SO FORTH AND THE ASSESSING OFFICER HAS FAILED TO CONSI DER THE DEBIT SIDE. THE COPY OF THE BANK ACCOUNT WAS FILE D IN SUPPORT OF THE CONTENTION. THE ASSESSEE HAS FURTHER AVAIL ABILITY OF FUND ON ACCOUNT OF RECEIPT RECEIVED FROM HIS FATHER OF RS.1,50,000/- AND THE AMOUNT OUT OF BANK WITHDRAWAL S OF RS.45,800/- (TOTALING RS.1,95,800/-). IT WAS FURTH ER 3 SUBMITTED THAT THE AMOUNT HAD BEEN ROTATED DURING T HE WHOLE YEAR AND AGRICULTURAL INCOME WAS ALSO AVAILABLE. THE LEARNED CIT (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE. HIS FINDINGS IN PARA 4.2 OF THE APPELLATE ORDER ARE REP RODUCED AS UNDER : 4.2 IN THE COUNTER COMMENT, SENT VIDE LETTER NO. 26 1 DATED 19.09.2012, THE A.O. SIMPLY RELIED ON THE ASSESSMENT ORDER. I HAVE CONSIDERED THE SUBMISSIONS MADE. THE CONTENTION OF TH E APPELLANT IS THAT THE WITHDRAWALS MADE IN SMALL AMOUNTS OVER A PERIOD OF TIME HAS BEEN ROTATED IN THE BANK ACCOUNT O N REGULAR BASIS. I AM UNABLE TO ACCEPT THE ARGUEMENT AS IT DEFIES COMMO N SENSE AS APPELLANT FAILED TO GIVE ANY REASON FOR KEEPING THE C ASH WITHDRAWN ON VARIOUS DATES IN SAFE CUSTODY FOR DEPOSITING AGAIN IN THE BANK A/C ON A LATER DATE E.G. THE APPELLANT HAS WITHDRAWN RS.5000/-ON 03.04.2007, RS. 1000/- ON 04.04.2007, R S.7000/- ON 05.04.2007, RS.1000/- ON 09.04.2007, RS.1000/- O N 09.04.2007 AND ALL THESE WITHDRAWALS ARE SHOWN AS SOURCE OF CASH DEPOSIT OF RS.22,653/- ON 09.04.2007. I A M UNABLE TO ACCEPT THIS ARGUMENT OF THE APPELLANT AS THERE APPEARS TO B E NO REASON AS TO WHY THE FREQUENT WITHDRAWALS MADE BY THE APPELLANT WE RE KEPT WITH HIM SO LONG FOR RE-DEPOSITING THE MONEY LATER ON. THE REFORE, THE ADDITION MADE BY THE A.O. IS CONFIRMED. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. 5. THE LEARNED COUNSEL FOR ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND R EFERRED TO PB-13, WHICH IS CASH FLOW STATEMENT FOR THE YEAR UN DER CONSIDERATION TO SHOW THAT ALL THE WITHDRAWALS WERE FROM THE BANK AND SUFFICIENT CASH WAS AVAILABLE WITH THE ASS ESSEE. THEREFORE, THE WHOLE ADDITION WAS UNJUSTIFIED. 4 6. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVEN UE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF THE CASH IN THE BANK, THEREFORE, THE ADDITION IS JUSTIFIED. 7. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE ASSESSING OFFICER. THE ASSESSEE SPECIFICALLY SUBMITTED THAT HE HAS WITHDRAWALS FROM THE BANK ACCOUNT, WHIC H WERE REDEPOSITED. COPY OF THE CASH FLOW STATEMENT WAS FILED, WHICH SUPPORTS THE CONTENTION OF THE ASSESSEE. TH E HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE SHIV CHARAN DASS VS. CIT, 126 ITR 263 (P&H) HELD AS UNDER : HELD, THAT SINCE BOTH THE DAUGHTERS HAD ATTAINED MAJORITY AT THE TIME WHEN THE MONEY WAS DEPOSITED I N THEIR NAMES, THE AMOUNT OF RS.20,000/- WAS NOT FOUN D MENTIONED IN THE BOOKS OF THE ASSESSEE NOR THE SAME WAS FOUND TO HAVE BEEN DEPOSITED IN THE ACCOUNTS OF THE ASSESSEE OR THAT OF THE HUF AND THERE WAS NOTHING O N THE RECORD TO SHOW THAT THE AMOUNT WAS UTILIZED BY THE ASSESSEE OR THE HUF IN ANY OTHER MANNER THAN THE ON E WHICH WAS REPRESENTED BY THE ASSESSEE, THE ONUS LAY ON THE DEPARTMENT TO SHOW THAT THE EXPLANATION OFFERED BY THE ASSESSEE SHOULD NOT BE ACCEPTED. FURTHER, IF THE ASSESSEES EXPLANATION THAT THE AMOUNT REPRESENTED THE SAME AMOUNT AS DISCLOSED UNDER THE VOLUNTARY DISCLO SURE SCHEME WAS NOT ACCEPTED, THE PRESUMPTION THAT THE AMOUNT WAS FROM UNDISCLOSED SOURCES COULD BE RAISED ONLY AGAINST THE MAJOR DAUGHTER OF THE ASSESSEE AND NOT AGAINST THE ASSESSEE HIMSELF. THEREFORE, IT COULD NOT BE SAID THAT THE AMOUNT WAS INCOME OF THE ASSESSEE FRO M UNDISCLOSED SOURCES. 5 8. THE ASSESSEE HAS STATED SPECIFICALLY THAT THE AM OUNT WAS RE-DEPOSITED ON WITHDRAWAL FROM THE BANK AND SUFFIC IENT CASH WAS AVAILABLE. THEREFORE, IT WAS THE DUTY OF THE A SSESSING OFFICER TO EXAMINE THIS FACT. FURTHER NOTHING IS BROUGHT ON RECORD THAT THE AMOUNT WAS UTILIZED BY THE ASSESSEE ON WITHDRAWAL FROM THE BANK ACCOUNT. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE DECISION OF THE HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE SHIV CHARAN DASS (SU PRA), WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH DIR ECTIONS TO REDECIDE THIS ISSUE BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSING OF FICER SHALL PASS A REASONED ORDER ON THE SUBMISSIONS OF THE ASS ESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH JANUARY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH