Purshottam Chourasia, Delhi V. ITO, New Delhi

ITA 2414/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3924 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU MUKHERJEE
• Assessee Lawyers: RAHUL CHOURASIA
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.2414/DEL/2017 ASSESSMENT YEAR : 2009-10 PURSHOTTAM CHOURASIA, AG- 465, SHALIMAR BAGH, DELHI. VS. ITO, WARD- 19(1), NEW DELHI. PAN : AFHPC3527Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAHUL CHOURASIA, CA DEPARTMENT BY : MS. RANU MUKHERJEE, SR.DR DATE OF HEARING : 15-01-2018 DATE OF PRONOUNCEMENT : 19-01-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 28.02.2017 OF CIT(A)- 12, NEW DELHI RELATING TO ASS ESSMENT YEAR 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF RETAIL TRADING OF CLOTH. HE FILED HIS RETURN OF INCOME ON 30.07.2009 DECLARING TOTAL INCOME OF RS.1,52,910 /-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSER VED THAT THE ASSESSEE HAS PAID AN AMOUNT OF RS.13,90,073/- TOWARD CREDIT CARD PAYMENTS MADE TO AXIS BANK LTD., ICICI BANK LTD. AND ABN AMRO BANK N.V. A S PER AIR INFORMATION RECEIVED. HE, THEREFORE, CONFRONTED THE SAME TO TH E ASSESSEE. IT WAS STATED THAT 2 ITA NO.2414/DEL/2017 THE ASSESSEE HAS NOT INCURRED ANY SUCH EXPENDITURE TOWARDS CREDIT CARD PAYMENTS. THE ASSESSING OFFICER OBTAINED DETAILS O F SUCH CREDIT CARD PAYMENTS FROM VARIOUS BANKS U/S 133(6) AND AGAIN CONFRONTED THE SAME TO THE ASSESSEE. HOWEVER, IN ABSENCE OF ANY REPLY RECEIVED FROM THE SIDE OF THE ASSESSEE, THE ASSESSING OFFICER MADE ADDITION OF RS.13,90,073/- T O THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 3. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE WAS NEVER IN A POSITION OF ANY CREDIT CARD. IT WAS SUBMITTED THAT AS PER THE CREDIT CARD, THE ADDRESS OF THE ASSESSEE HAS BEEN GIVEN AS 24, G FLO OR, SECTOR- 03, ROHINI, DELHI AND NOT IN HIS ADDRESS THE AG-465, SHALIMAR BAGH, D ELHI. IT WAS SUBMITTED THAT SHRI SUSHIL KUMAR SHARMA, WHO WAS STAYING AT 24, G FLOOR, SECTOR- 03, ROHINI, DELHI HAS MISUSED HIS NAME IN OPENING A CREDIT CARD WITH ROYAL BANK OF SCOTLAND AND, THEREFORE, THE PAYMENTS MADE RELATING TO THIS CREDIT CARD SHOULD NOT HAVE BEEN ADDED TO HIS INCOME. 3.1 THE LD. CIT(A) ASKED THE ASSESSING OFFICER TO C ONDUCT AN ENQUIRY WITH REGARD TO THE CLAIM OF THE ASSESSEE AND SUBMIT HIS REPORT. THE ASSESSING OFFICER SUBMITTED A REMAND REPORT THROUGH JCIT, RANGE- 19 O N 24.01.2014, WHICH WAS CONFRONTED TO THE ASSESSEE. AFTER OBTAINING THE CO MMENTS OF THE ASSESSEE ON SUCH REMAND REPORT, LD. CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT SHRI SUSHIL KUMAR SHARMA WAS FILING THE RETURN OF 3 ITA NO.2414/DEL/2017 THE ASSESSEE AND HAS FILED THE ASSESSEES INCOME TA X RETURN UPTO 2010-11. THE ASSESSEE WAS KNOWING SHRI SUSHIL KUMAR SHARMA. HE HAS NOT TAKEN ANY ACTION AGAINST THE SAID PERSON FOR MISUSING HIS NAME FOR O BTAINING A CREDIT CARD. SINCE THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN THE V ARIOUS PAYMENTS MADE TO THE CREDIT CARD AND OBSERVING THAT SHRI SUSHIL KUMAR SH ARMA MADE PAYMENTS ON HIS OWN ACCOUNT OF RS.26,494/- AND THE ASSESSING OFFICE R HAS ESTABLISHED THAT THE ASSESSEE HAS MADE PAYMENT OF RS.2,47,521/-, THEREFO RE, LD. CIT(A) DELETED THE ADDITION TO THE EXTENT OF RS.2,74,015/- AND SUSTAIN ED THE BALANCE AMOUNT OF RS.11,16,058/-, 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LD. CIT(A) XII ERRED IN CONFIRMING THE PRES UMPTION/ ALLEGATION OF THE ASSESSING OFFICER TO THE EFFECT THAT THE APPELL ANT HAS USED THE CREDIT CARD INSPITE OF DOCUMENTARY EVIDENCES FILED CONTRAR Y TO THE ALLEGATION OF THE AO, THEREFORE, THE ASSESSMENT SO FRAMED IS UNJU ST, ARBITRARY AND BAD- IN- LAW. 2. THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE LD. CIT(A) COMMITTED ERROR BY NOT APPRECIATING THE SUBMISSIONS/EVIDENCES MADE/FILED BY THE APPELLANT F ROM TIME TO TIME AGAINST THE PRESUMPTION / ALLEGATION OF THE ASSESSI NG OFFICER WITH REGARD TO AMOUNT ALLEGED TO HAVE BEEN PAID BY THE APPELLAN T AGAINST USE OF CREDIT CARD OUT OF UNDISCLOSED SOURCES. 3. THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN REJECTING THE AFFIDAVI T FILED BY THE APPELLANT STATING ' THAT THE AFFIDAVIT WAS NOT SUPPORTED BY DOCUMENTARY EVIDENCES' IS CONTRARY TO THE FACTS ON RECORD AS THE APPELLANT HAS PLACED ALL THE EVIDENCES AGAINST THE ALLEGATION OF THE ASSESSING O FFICER. 4. THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE LD. CIT(A) ERRED IN LAW BY NOT TAKING COGNIZANCE OF THE FAKE EVIDENCES FRAUDULENTLY USED BY SHRI SUSHIL KUMAR FOR OBTAININ G DIFFERENT CREDIT CARDS FROM DIFFERENT BANKS BY USING NAME OF THE APP ELLANT. 4 ITA NO.2414/DEL/2017 5. THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE LD. CIT(A) ERRED BY NOT APPRECIATING THE INFORMATIO N/LETTERS GIVEN BY BANKERS CERTIFYING THE FRAUD MADE BY SHRI SUSHIL KU MAR BY MISREPRESENTATION/ IMPERSONATION AND BY USING FAKE IDENTITY, AFFIXING HIS OWN PHOTOGRAPH FOR OBTAINING CREDIT CARDS IN THE NA ME OF THE APPELLANT. 6. THAT THE APPELLANT CRAVE TO ADD, DELETE OR AMEND ANY GROUND OF APPEAL AT THE TIME OF HEARING. 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LD. COUN SEL FOR THE ASSESSEE, AT THE TIME OF HEARING, FILED SOME COMPLAINTS MADE BEFORE THE COURT OF CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE, NEW DELHI A GAINST SHRI SUSHIL KUMAR SHARMA. THE POLICE COMPLAIN AND THE ACTION TAKEN R EPORT WAS ALSO FILED. AFTER PERUSING THE VARIOUS DOCUMENTS FILED BY THE ASSESSE E IN SHAPE OF PAPER BOOK, I FIND THIS POLICE COMPLAIN AND DOCUMENTS RELATING TO THE PETITION BEFORE THE CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE, NEW D ELHI WERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A). F URTHER, THE MATTER IS PENDING BEFORE THE CHIEF METROPOLITAN MAGISTRATE, PATIALA H OUSE, NEW DELHI. THESE DOCUMENTS WERE NEVER PERUSED BY THE LOWER AUTHORITI ES WHICH GO TO THE ROOT OF THE MATTER. UNDER THESE CIRCUMSTANCES AND CONSIDER ING THE TOTALITY OF THE FACTS OF THE CASE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO ADJUDICATE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND 5 ITA NO.2414/DEL/2017 DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSE SSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH JANUARY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 19-01-2018. 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