Mr Jagat Singh, Delhi V. ITO, New Delhi

ITA 2412/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7024 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI; SHIFALI SWAROOP
• Assessee Lawyers: R R SINGLA
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI N.K SAINI, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO:- 2412 /DEL/2015, ( ASSESSMENT YEAR: 2009-10) JAGAT SINGH, DELHI, PRESENT ADDRESS: 704/15, KRISHNA COLONY, JIND- HARYANA-126102. VS. INCOME TAX OFFICER, WARD 21(4), DELHI. PAN NO: AVRPS5013P APPELLANT RESPONDENT ASSESSEE BY : SH. R.R. SINGLA (CA) REVENUE BY : SMT. SHIFALI SWAROOP, CIT(DR) & SH. S.R. SENAPATI (SR. DR) DATE OF HEARING : 18.06.2018. DATE OF PRONOUNCEMENT : 10/07/2018. ORDER PER: KULDIP SINGH, JM THE APPELLANT, JAGAT SINGH, DELHI (HEREINAFTER REF ERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 17.03.2015 QUA ASSESSMENT YEAR 2009-10 PASSED BY LD. CIT(A)-13, NEW DELHI, ON THE GROUNDS THAT:- 2 ITA NO.-2412/DEL/2015. JAGAT SINGH. 1. THE LD. C.I.T. (A) HAS GROSSLY ERRED IN LAW AND FACTS BY NOT DELETING THE ADDITIONS MADE BY THE LD. ASSESSING OFFICER AMO UNTING RS. 66,53,000/- ON ACCOUNT OF CASH CREDIT U/S 68 OF THE INCOME TAX ACT. 2. THE ID. C.I.T.(A) HAS GROSSLY ERRED IN LAW AND FACTS BY UPHOLDING THE ADDITIONS MADE BY THE LD. ASSESSING OFFICER TRE ATING THE DEPOSIT IN THE SAVING BANK ACCOUNTS/ PASS BOOKS WITH THE BA NKS AS INCOME FROM UNDISCLOSED SOURCES U/S 68 OF THE INCOME TAX A CT CONTRARY TO THE LAW DECLARED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. MS. MAYAWATI (2011) 243 CTR (DEL) 9: (2011) 338 ITR 563 : (2011) 201 TA XMAN 1 : (2011) 59 DTR 177 READ WITH MS MAYAWATI VS. DCIT (2 008) I DTR 68 (DEL) 3. THE LD. C.I.T.(A) HAS GROSSLY ERRED IN LAW AN D FACTS BY UPHOLDING THE ADDITIONS MADE BY THE ID. ASSESSING OFFICER TREATIN G THE SUM OF TOTAL TRANSACTIONS OF DEPOSIT IN THE SAVING BANK ACCOUNTS / PASS BOOKS WITH THE BANKS AS INCOME OF THE ASSESSEE. 4. THE LD. C.I.T.(A) HAS GROSSLY ERRED IN LAW AND FACTS WHILE TAKING THE MONEY LENDING TO BE BUSINESS OF THE ASSESSEE AND T HAT THE AGRICULTURISTS TO WHOM ADVANCES WERE GIVEN WERE NOT TRACEABLE WITHOUT ASCERTAINING FROM THE LD. A.O. WHETHER OR N OT HE HAS RECEIVED RESPONSE AFTER ASSESSMENT ORDER FROM THE A GRICULTURISTS TO WHOM SUMMONS U/S 131 WERE ISSUED. 5. THE LD. C.I.T. (A) HAS GROSSLY ERRED IN LAW AN D ON FACTS WHILE NOT CONSIDERING THAT THE CREDIT CARD WAS BEING USED BY THE SON OF THE ASSESSEE, WHO WAS THE JOINT HOLDER OF THE BANK ACCO UNT. 6. THE LD. C.I.T. (A) HAS GROSSLY ERRED IN LAW AND FACTS WHILE HOLDING THAT A PERSON MAINTAINING THREE SAVING BANK ACCOUNTS IS SUPPOSED/REQUIRED TO MAINTAIN REGULAR BOOKS OF ACCOUNTS. 7. THE LD. C.I.T. (A) HAS GROSSLY ERRED IN LAW AND FACTS WHILE TAKING THE EXPLANATION GIVEN BY THE ASSESSEE THAT THE DEPOSITS IN BANK ACCOUNTS WERE MADE OUT OF THE REPAYMENTS RECEIVED FROM THE A GRICULTURISTS FROM WHOM INTEREST WAS ALSO RECEIVED AND DISCLOSED CONSISTENTLY IN HIS RETURN OF INCOME OVER THE YEARS TO BE VAGUE AND INA DEQUATE TO SUBSTANTIATE THE GENUINENESS OF CASH DEPOSITED IN T HE BANK ACCOUNTS. 8. THE ASSESSEE ALSO REQUESTS TO BE ALLOWED TO RAIS E ANY FURTHER GROUND OF APPEAL DURING THE PROCEEDINGS OR AT THE TIME OF HEARING. 3 ITA NO.-2412/DEL/2015. JAGAT SINGH. 2 . BRIEFLY STATED THE FACTS NECESSARY TO ADJUDICATE TH E ISSUES AT HAND ARE: THE ASSEESSEE IS AN AGRICULTURIST AND HAS ALSO DRAWING INTEREST INCOME AND INCOME FROM HIS PROPERTY DEALING BUSINES S, DECLARED HIS TAXABLE INCOME AT RS. 1,55,650/-. THE ASSESSING OF FICER (AO) ON RECEIVING INFORMATION FROM AIR, THAT THE ASSESSEE HAS DEPOSIT ED CASH AMOUNT OF RS. 66,53,000/- IN HIS BANK ACCOUNTS WITH ICICI BANK, W HICH WAS EXPLAINED BY THE ASSESSEE VIDE LETTER DATED 14.10.2011 THAT THIS ACCOUNT IS JOINT WITH HIS SON AMIT KUMAR SINGH A NON RESIDENT INDIAN (NRI ) AND AN AMOUNT OF RS. 6,04,557/- WAS TRANSFERRED BY HIS SON FROM HIS BANK ACCOUNT MAINTAINED IN A FOREIGN COUNTRY AND CASH OF RS. 9 L ACS WAS RECEIVED BY ASSESSEE AS ADVANCE FOR SALE OF LAND FROM M/S EXCELL ENT INFRATECH PVT. LTD. ON 10.04.2008 WHICH WAS REFUNDED TO THE COMPANY ON 12.04.2008, WHEN THE DEAL COULD NOT BE MATURED. DECLINING THE CONTE NTIONS RAISED BY THE ASSESSEE, AO PROCEEDED TO MAKE ADDITION OF RS. 66,5 3,000/-. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BY WAY OF FILING THE APPEAL, WHO HAS CONFIRMED THE ADDITION BY DISMI SSING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES O F THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDER PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE F ACTS AND CIRCUMSTANCES OF THE CASE. 4 ITA NO.-2412/DEL/2015. JAGAT SINGH. 5. BARE PERUSAL OF PARA 3 OF THE ASSESSMENT ORDER, GOE S TO PROVE THAT, THE ASSESSEE HAS COME UP WITH SPECIFIC DEFENC E/DETAILS AS TO THE RECEIPT /DEPOSIT OF THE AMOUNT IN QUESTION BY HIS S ON, WHO IS NRI AS WELL AS FROM M/S EXCELLENT INFRATECH PVT. AS REFUND OF EA RNEST MONEY FROM SALE OF LAND, BUT, AO ABRUPTLY PROCEEDED TO MAKE THE ADD ITION BY TREATING THE CASE AS EX PARTE BY RECORDING THAT NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY SUBMISSIONS MERE MADE ON 16.12.201 1 AND 26.12.2011. 6. SIMILARLY, THE LD. CIT(A) ALSO DECIDED THE APPEAL WITHOUT TAKING INTO CONSIDERATION THE CONTENTIONS RAISED BY ASSESSEE, T HAT HE WAS AN AGRICULTURISTS, AND USED TO LEND THE MONEY TO OTHER SMALL AGRICULTURISTS ON INTEREST BASIS AND THE INTEREST RECEIVED BY HIM HAS BEEN DULY SHOWN BY HIM IN HIS RETURN OF INCOME FOR A.Y. 2008-09 AND 20 09-10. ASSESSEE HAS ALSO PLEADED THAT BEING AN AGRICULTURIST HE HAS NOT REQUIRED TO MANAGE REGULAR BOOKS OF ACCOUNT AND HAS ALSO GIVEN NAME AN D ADDRESS OF THE AGRICULTURISTS TO WHOM HE HAS ADVANCED THE AMOUNT A ND FROM WHOM HE HAS EARNED INTEREST. 7. ASSESSEE HAD PRODUCED BEFORE ASSESSING OFFICER THE SUMMARY OF ALL BANK ACCOUNT FOR THE YEAR 2008-09 WITH CASH FLOW ST ATEMENT AND LIST OF PERSON WHOM THE ADVANCES WERE GIVEN WITH THEIR AFFI DAVITS, AADHAR CARDS AND BANK ACCOUNTS STATEMENT AVAILABLE AT PAGE 59 TO 95 OF THE PAPER BOOK, WHICH HAVE NOT BEEN CONSIDERED BY THE AO AS W ELL AS BY THE LD. CIT(A). IN VIEW OF THE MATTER, IT WOULD BE IN THE I NTEREST OF JUSTICE TO SET 5 ITA NO.-2412/DEL/2015. JAGAT SINGH. ASIDE THE MATTER TO THE AO TO DECIDE AFRESH AFTER G IVEN AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BY PASSING A SPEAKING O RDER AND BY TAKING INTO CONSIDERATION THAT THE ASSESSEE IS AN AGRICULT URIST AND HAS BROUGHT ON RECORD THE ENTIRE DETAILS CONCERNING ADDITIONS IN Q UESTION. CONSEQUENTLY, APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/7/2018 SD/- SD/- (N.K SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.07.2018 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NO.-2412/DEL/2015. JAGAT SINGH. DATE OF DICTATION 2/7/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 5/7/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 7/7/2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 7/7/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 10 /7/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 7 ITA NO.-2412/DEL/2015. JAGAT SINGH.