Ashok Kumar, Delhi V. DCIT, New Delhi

ITA 2396/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6751 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: K R MANJANI

Judgement Text

1 ITA NO. 2 396/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.-2396/DEL/2014 (ASSESS MENT YEAR 2009-10) ASHOK KUMAR 1080, JAMA MASJID DELHI AAGPK2085H (APPELLANT) VS DCIT CIRCLE-30(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. K. R. MANJANI, ADV RESPONDENT BY SH. S. K. JAIN, DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 3/2/2014 PASSED BY CIT(A)-XXV, NEW DELHI. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. LEARNED A.O AS WELL AS LD. CIT(A) HAVE ERRED ON FACTS AS WELL IN LAW IN MAKING ADDITION OF RS.1,53,50,000/- IN RESPECT OF DEPOSITS IN BANK ACCOUNT IN THE NAME OF THE APPLICANT WHICH IS HELD BY HIM AS PARTNER ON BEHALF OF THE FIRM AND IS DULY REFLECTED IN THE BOOKS AND BALANCE SHEET DATE OF HEARING 27.07.2016 DATE OF PRONOUNCEMENT 29.07.2016 2 ITA NO. 2 396/DEL/2014 OF THE FIRM FROM LAST MANY YEARS, CONSEQUENTLY THE AMOUNT IS NOT UNEXPLAINED. 2. MAKING THIS ADDITION ON PROTECTIVE BASIS IS WRON G AND ARBITRARY BECAUSE NO ADDITION FOR THIS IS MADE IN T HE CASE OF THE FIRM WHICH IS ALSO DECIDED U/S 143(3). 3. THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 29/12/2009 DECLARING AN INCOME OF RS.23,06,864/-. THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES U/S 143(2) WAS ISSUED ON 27/9/2010. THE AS SESSEE IS AN INDIVIDUAL AND THE SOURCE OF TAXABLE INCOME WAS INC OME FROM HOUSE PROPERTY. HE IS ALSO PARTNER IN THE FIRM M/S FAQIR CHAND RAGHUNATH DASS FROM WHICH HIS SHARE OF LOSS FOR THI S ASSESSMENT YEAR WAS NOT ADJUSTED AGAINST INCOME FROM OTHER SOU RCE. IN RESPECT OF NOTICE U/S 143(2), THE ASSESSEE EXPLAINS THAT BANK ACCOUNT IN THE CANARA BANK BEING A/C NO. GLSB000061 138 IS MAINTAINED IN THE NAME OF THE ASSESSEE WHICH ACCOUN T ACTUALLY BELONGS TO THE FIRM, M/S FAQIR CHAND RAGHUNATH DASS , 1080, JAMA MASJID, DELHI. THE ASSESSEE FURTHER EXPLAINED THAT THIS ACCOUNT NO. 611138 PERTAINS TO THE FIRM WHICH CAN BE VERIFIED F ROM THE ANNEXURE 8 OF THE BALANCE SHEET OF THE FIRM. THE C OPY OF SAME WAS SUBMITTED AND FILED BEFORE THE ASSESSING OFFICER DU RING THE ASSESSMENT PROCEEDINGS. THE ASSESSEE FURTHER STATE D BEFORE THE ASSESSING OFFICER THAT THE CASH TRANSACTIONS WERE ENTERED IN THE BOOKS OF THE FIRMS AND THE SAME WAS UTILIZED BY THE FIRM AND DEPOSITS WERE MADE BY IT. THE ASSESSING OFFICER RE JECTED THE CONTENTION OF THE ASSESSEE AND MADE ADDITION OF RS. 1,53,50,000/- IN RESPECT OF DEPOSITS IN BANK ACCOUNT IN THE NAME OF THE ASSESSEE 3 ITA NO. 2 396/DEL/2014 WHICH HELD BY HIM AS PARTNER, BEING INCOME FROM UND ISCLOSED SOURCES. THIS ASSESSMENT WAS DONE BY THE ASSESSING OFFICER AS PROTECTIVE ASSESSMENT. 4. BEING AGGRIEVED BY THIS, THE ASSESSEE FILED APPE AL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE HOLDING THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF CASH CREDIT IN THE ACCOUNT TO THE SATISFACTION OF THE ASSESSING OFFICE R . THE ASSESSEE IS BEFORE THIS TRIBUNAL. 5. THE LD. AR SUBMITTED THAT THE LEDGER BOOK AND TH E BOOKS OF ACCOUNTS CLEARLY MENTIONED THAT IT BELONGS TO M/S F AQIR CHAND RAGHUNATH DASS, A PARTNERSHIP FIRM AND THOUGH THE A CCOUNT WAS IN THE NAME OF THE ASSESSEE, THE SAID AMOUNT WAS DEPOS ITED AND UTILIZED BY THE FIRM ONLY. THE ASSESSEE HAS ALSO P RODUCED ORIGINAL BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER AS W ELL AS THE CIT(A). THE LD. AR SUBMITTED THE BANK STATEMENT OF THE ASSE SSEE ALSO REVEALS THE SAME POSITION. THE LD. AR SUBMITTED TH E ASSESSMENT ORDER DATED 28/2/2014 OF M/S FAQIR CHAND RAGHUNATH DASS AS WELL. 6. THE LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFICER AND THE ORDER OF THE CIT(A). 7. WE HAVE PERUSED ALL THE RECORDS AND HEARD BOTH T HE COUNSELS. THE ASSESSING OFFICER IN THE PRESENT CASE HAS NOT L OOKED INTO THE BOOKS OF ACCOUNTS AND THE BALANCE-SHEETS OF THE FIR M WHICH WAS PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME O F ASSESSMENT 4 ITA NO. 2 396/DEL/2014 PROCEEDINGS. THE ASSESSING OFFICER OBSERVED IN THE ASSESSMENT ORDER THAT THE CONTENTION OF THE ASSESSMENT RELATED TO CANARA BANK ACCOUNT IN THE NAME OF THE ASSESSEE BELONGS TO THE FIRM APPEARS TO BE TRUE BECAUSE ACCOUNT NO. 611138 DOES APPEAR IN A NNEXURE 8 OF THE BALANCE-SHEET OF THE FIRM. THE SAID MATERIAL W AS EVIDENT ON RECORD AND WHILE ARRIVING AT THE CONCLUSION THE ASS ESSING OFFICER HAS NOT GIVEN ANY REASONS AS TO WHY THE SAME IS NOT ACCEPTABLE. THE ASSESSING OFFICER HAS NOT DOUBTED THE CORRECTNE SS OF THE BALANCE-SHEET OF THE FIRM M/S FAQIR CHAND RAGHUNATH DASS. THE SAID EVIDENCE WAS BEFORE THE CIT(A) AS WELL, BUT CI T(A) ALSO FAILED TO LOOK INTO AND ARRIVE AT THE CORRECT CONCLUSION. TH E ASSESSEE BEING THE PARTNER CAN HAVE THE BANK ACCOUNT FOR THE FIRM TO MEET ITS BUSINESS AND IN THE PRESENT CASE ALSO THE SAME HAS BEEN DONE. IN LIGHT OF THIS, THE ASSESSING OFFICER AS WELL THE CI T(A) IN WRONGLY MADE THE ADDITION IN THE HANDS OF THE ASSESSEE WHEN THE SAID INCOME BELONGS TO M/S FAQIR CHAND RAGHUNATH DASS. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH OF JULY 2016. SD/- SD/- (R.S. SYAL) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/07/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 5 ITA NO. 2 396/DEL/2014 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 27.07.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 28.07.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 07.2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 2 9 .07.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 2 9 .07.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.