ITO, New Delhi V. Sh. Kimti Lal Sharma, Delhi

ITA 2291/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74095 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N BHATIA
• Assessee Lawyers: KIMTI LAL

Judgement Text

ITA NO.2291/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : D : NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.2291/DEL/2013 ASSESSMENT YEAR : 2005-06 ITO, WARD 35 (4), NEW DELHI. VS. KIMTI LAL SHARMA, C-149, ANAND VIHAR, DELHI. PAN : ANNPS1636E ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI KIMTI LAL, ASSESSEE DEPARTMENT BY : S HRI S .N. BHATIA, DR ORDER PER A.D. JAIN, JUDICIAL MEMBER: THIS IS DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 2005-06 AG AINST THE ORDER DATED 17.01.2013, PASSED BY THE LD. CIT(A)-XXVI I, NEW DELHI, CONTENDING THAT THE LD. CIT (A) HAS ERRED IN DELETIN G THE ADDITION CORRECTLY MADE BY THE ASSESSING OFFICER, AMOUNTING TO ` 9,22,000/ -, REPRESENTING UNEXPLAINED CASH DEPOSITS. 2. THE ASSESSING OFFICER MADE ADDITION OF ` 21,37,500/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE ASSESSEES BANK ACCOUNT. ON APPEAL, THE CIT (A) DELETED THE SAID ADDITION, BUT ENHANCED THE INCO ME OF THE ASSESSEE BY AN AMOUNT OF ` 5,30,643/- ON ACCOUNT OF CAPITAL GAINS E ARNED BY THE ASSESSEE ON SALE OF MUTUAL FUNDS, SHARES, ETC. THE ITAT RESTORED THE MATTER TO THE FILE ITA NO.2291/DEL/2013 2 OF THE ASSESSING OFFICER, OBSERVING THAT BEFORE THE ASSESSIN G OFFICER APROPOS THE ADDITION OF ` 21,37,500/-, THE ASSESSEE HAS STATED T HAT THE DEPOSIT IN ITS SBI ACCOUNT WAS OUT OF VARIOUS WITHDRAWALS FROM ABN AM RO BANK WHICH HAS NOT BEEN DISCLOSED IN THE ORIGINAL RETURN; THAT THE A SSESSING OFFICER HAD MADE THE ADDITION, OBSERVING THAT THE ASSESSEE HAD NOT BEEN A BLE TO EXPLAIN THE CASH DEPOSIT; THAT BEFORE THE CIT (A), THE ASSESSEE FILED DETAILED INFORMATION WITH REGARD TO VARIOUS BANK ACCOUNTS MAINTAINED BY I T AND ALSO DETAILS OF CAPITAL GAIN OUT OF INVESTMENT IN SHARES AND MUTUAL F UNDS AND OTHER SOURCES; THAT THE CIT (A) HAD CALLED FOR A REMAND REPORT FRO M THE ASSESSING OFFICER BY FORWARDING ALL THESE DOCUMENTS TO HIM; THAT HOWEVER, IN THE REMAND REPORT ALSO, THE ASSESSING OFFICER DID NOT LEAVE ANY POSITIVE FI NDING WITH REGARD TO AVAILABILITY OF CASH ALLEGED TO HAVE BEEN DEPOSITED OUT OF WITHDRAWALS FROM VARIOUS BANK ACCOUNTS BY THE ASSESSEE; THAT HOWEVER, THE CIT (A) DELETED THE ADDITION WITHOUT GIVING HIS INDEPENDENT FINDINGS WITH REGARD TO SATISFACTORY EXPLANATION OF THE DEPOSIT OUT OF WITHDRA WALS FROM VARIOUS BANK ACCOUNTS, AND HAD ADDED ADDITIONAL INCOME DECLARED B Y THE ASSESSEE, AMOUNTING TO ` 5,30,643/- FROM SHORT-TERM CAPITAL GA IN; THAT THE DETAILED INFORMATION GIVEN BY THE ASSESSEE BEFORE THE CIT (A) HA D NOT BEEN PLACED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDI NGS; THAT THE DETAILS OF BANK ACCOUNTS WENT TO THE ROOT OF THE ISSUE FOR EXPLAINING THE SOURCE OF CASH DEPOSIT IN THE ACCOUNT; THAT THE CIT (A ) HAD DELETED THE ADDITION BY JUST STATING THAT VIDE LETTERS DATED 07.1 2.2007 AND 12.12.2007, THE ASSESSEE HAD EXPLAINED VARIOUS DEPOSITS IN THE BANK A CCOUNT OUT OF CASH WITHDRAWALS FROM CHEQUES/ATM FROM THE ASSESSEES SAVINGS BAN K ACCOUNT WITH ABN AMRO BANK AND PUJAB & SIND BANK; THAT THE CIT (A) ALSO STATED THAT NECESSARY PARTICULARS OF CHEQUES AND ATM WITHDRAWALS HAD BEEN FURNISHED WITH THE DATES AND THAT COPY OF BANK ACCOUNT ALONG W ITH DETAILS OF WITHDRAWALS AND SOURCE OF DEPOSIT WAS ALSO STATED BY THE ASSESSEE; THAT HOWEVER, NO FINDING WAS RECORDED BY THE CIT (A) TO THE EFFECT THAT HE HAD VERIFIED THE VARIOUS WITHDRAWALS FROM ABN AMRO BANK A ND PUNJAB & SIND BANK SO AS TO JUSTIFY THE AVAILABILITY OF CASH ALLEGED TO HAVE BEEN DEPOSITED ITA NO.2291/DEL/2013 3 IN THE SBI ACCOUNT, AMOUNTING TO ` 21,37,500/-; AND THAT THE CIT (A) HAD JUST ACCEPTED THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE WITHOUT GIVING ANY COGENT REASON FOR DELETING THE CASH DEPOSITED IN SBI A CCOUNT. THE MATTER AS REMITTED TO THE FILE OF THE ASSESSING OFFICER WITH A DI RECTION TO FILE ALL THE PARTICULARS OF INCOME, STATEMENT OF ACCOUNT MAINTAINE D WITH VARIOUS BANKS AND SOURCE OF DEPOSITS IN THESE BANKS, ETC. THE ASSESSING OF FICER WAS TO FRAME THE ASSESSMENT ORDER AFRESH, AFTER CONSIDERING ALL THOSE DOCUMENTS. 3. IN THE FRESH ASSESSMENT ORDER PASSED, THE ASSESSING OFFICER ASSESSED THE INCOME AT ` 16,69,347/-. THE SHORT-TERM CAPITAL GAIN, AS ENHANCED BY THE CIT (A) WAS ADDED. SO FAR AS REGARDS THE UNEXPLAINED CASH DEPOSITS, THE ADDITION WAS RESTRICTED FROM ` 21,37,500/- TO ` 10,36 ,500/-. IT WAS OBSERVED THAT AGAINST THE TOTAL DEPOSITS OF ` 21,37,500/- IN S BI, THE ASSESSEE HAD MADE ATM WITHDRAWALS FROM ITS ABN AMRO BANK ACCOUNT, AMOUN TING TO `5,10,000/-; THAT THE ASSESSEE HAD ALSO SOLD HIS CAR FOR ` 1,90,000/-; AND THAT FURTHER, THERE WERE WITHDRAWALS OF ` 2,01,000/- FROM PUNJAB & SIND BANK. THE LD. CIT (A) RESTRICTED THE ADDITION FROM ` 10,63,500/- TO ` 1,41,500/-. 4. THE LD. DR HAS CONTENDED THAT WHILE WRONGLY RESTRI CTING THE ADDITION FROM ` 10,36,500/- TO ` 1,41,500/-, THE LD. CIT (A) HAS NOT TAKEN INTO CONSIDERATION THE OBSERVATION OF THE ASSESSING OFFICER TO THE EFFECT THAT THE CASH DEPOSITS AMOUNTING TO ` 10,36,500/- REMAINED UNEX PLAINED. 5. THE ASSESSEE, WHO HAS APPEARED IN PERSON, HAS, ON THE OTHER HAND, PLACED RELIANCE ON THE IMPUGNED ORDER. 6. HAVING HEARD THE PARTIES ON THIS ISSUE, WE FIND THAT THE ADDITION HAS BEEN RIGHTLY RESTRICTED BY THE LD. CIT (A) BY PASSING A SELF-SPEAKING ORDER. IT REMAINS UNDISPUTED THAT AFTER TAKING INTO ACCOUNT AL L THE CASH WITHDRAWN AND DEPOSIT ENTRIES IN BOTH THE ABN AMRO BANK AND SBI ACC OUNT OF THE ASSESSEE, AS ON 11.10.2004, THERE WAS A NEGATIVE CASH BALANCE OF ` 5,32,500/-. THE ASSESSEE HAD SOLD HIS CAR FOR ` 1,90,000/-. TOTAL CASH WI THDRAWAL FROM PUNJAB & SIND BANK ACCOUNT BY THE ASSESSEE WAS OF ` 2,01,000/-. AFTER ALLOWING ITA NO.2291/DEL/2013 4 CREDIT OF THE ABOVE TOTAL AMOUNT OF ` 2,91,000/-, W HICH WAS THE CASH AVAILABLE TO THE ASSESSEE, THERE REMAINED A NEGATIVE B ALANCE OF ` 1,41,500/-. THIS WAS THE FIGURE ARRIVED AT AND, IN OUR OPINION, C ORRECTLY SO BY THE LD. CIT (A). PERTINENTLY, BEFORE THE CIT (A), THE ASSESSEE HAD ALSO CONTENDED THAT HE HAD SOLD PART OF THE JEWELLERY OF ` 3,23,328/- ON 02 .08.2004, RECEIVED BY HIM FROM HIS MOTHER IN JUNE, 2004. THIS CONTENTION OF THE ASSESSEE DID NOT FIND FAVOUR WITH THE LD. CIT (A) AND THE SAME WAS REJECTE D, HOLDING THAT THE ASSESSEE HAD NOT FILED ANY DOCUMENTARY EVIDENCE IN SUPPO RT OF THE ALLEGED SALE OF JEWELLERY. WHILE DOING SO, THE LD. CIT (A) RE JECTED THE SUPPORTING AFFIDAVITS FROM THE ASSESSEES MOTHER AND FROM HIS BROTHER S AND SISTER. BEFORE US, THE DEPARTMENT HAS NOT BEEN ABLE TO SUCCE SSFULLY CHALLENGE THE FACTUAL FINDINGS RECORDED BY THE LD. CIT (A). 7. ON THE BASIS OF THE ABOVE, FINDING NO ERROR WHATSOE VER THEREIN, THE OBSERVATIONS MADE BY THE LD. CIT (A) ARE CONFIRMED. A CCORDINGLY, THE GROUND RAISED BY THE DEPARTMENT IS REJECTED AS SHORN OF MERITS. 8 IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.02.201 4. SD/- SD/- [ G.D. AGRAWAL ] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 07 TH FEBRUARY, 2014. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.