DCIT, New Delhi V. Shri Vineet Kumar Gupta, Dehradun

ITA 2435/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3525 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BEDOBANI CHAUDHRI
• Keywords: Business income; Salary income
• Section: 44AD; 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER I.T.A .NO.-2435/DEL/2016 (ASSESSMENT YEAR-2011-12) DCIT, CIRCLE-10(1), NEW DELHI. ( APPELLANT) VS VINEET KUMAR GUPTA, 190, RAJENDRA NAGAR, DEHRADUN-248001. PAN-ACZPG6372J (RESPONDENT) ASSESSEE BY SMT. BEDOBANI CHAUDHRI, SR. DR REVENUE BY SH.SOMIL AGGARWAL & SH. DEEPESH GARG, CA DATE OF HEARING 03.04.2017 DATE OF PRONOUNCEMENT 18 .04.2017 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST TH E ORDER OF CIT(A)-4, NEW DELHI DATED 26.02.2016 FOR A.Y. 2011-12, CHALLE NGING THE DELETION OF ADDITION OF RS.49,04,582/- ON ACCOUNT OF UNEXPLAINE D CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE U/S 68 OF THE I.T.ACT, 1961 (IN SHORT ACT). 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE FINDINGS OF THE AUTHORITY BELOW. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A DIRECTOR OF M/S G.B. SPRINGS PVT.LTD. AND DERIVING INCOME FROM SALARY, I NTEREST, DIVIDEND AND MISCELLANEOUS INCOME. IT WAS NOTED THAT THERE IS A CASH DEPOSIT IN SAVING BANK ACCOUNT IN PUNJAB NATIONAL BANK A/C NO.408600010008 1367 IN A SUM OF RS.15,60,086/-. SIMILARLY THE DETAILS OF STANDARD CHARTERED BANK IN THE NAME OF MISS SHIVYA GUPTA, DAUGHTER OF THE ASSESSEE REVE ALED THAT THERE IS CASH DEPOSIT OF RS.4,10,000/- IN THIS BANK ACCOUNT. FUR THER, THE DETAILS OF STANDARD PAGE 2 OF 5 CHARTERED BANK IN THE NAME OF MASTER PRANAV GUPTA, SON OF THE ASSESSEE REVEALED THAT THERE IS A CASH DEPOSIT OF RS.3,00,00 0/- IN THIS BANK ACCOUNT. FURTHER, AGAIN WITH STANDARD CHARTERED BANK IN THE NAME OF MRS. RACHNA GUPTA AND MR. VINEET GUPTA (ASSESSEE) JOINT BANK AC COUNT WITH THE WIFE REVEALED THAT THERE IS A CASH DEPOSIT OF R.34,50,00 0/- IN THIS BANK ACCOUNT. THE AO ASKED THE EXPLANATION OF THE ASSESSEE REGARDING SOURCE OF THE CASH DEPOSITS IN THESE BANK ACCOUNTS. THE ASSESSEE SUBMITTED THA T THE ASSESSEE HAS A JOINT ACCOUNT WITH HIS WIFE IN STANDARD CHARTED BANK WHO HAS MADE CASH DEPOSITS IN HER ACCOUNT. THE ASSESSEE HAS NOTHING TO DO WITH T HE SAME. AS REGARDS DEPOSIT IN HIS NAME AND DAUGHTER AND SONS OF THE ASSESSEE, IT WAS EXPLAINED THAT IT IS OUT OF THE SOURCE OF THE ASSESSEE. THE AO HOWEVER DO NOT ACCEPT CONTENTION OF THE ASSESSEE AND NOTED THAT THE PAN NO. OF THE ASSE SSEE HAS BEEN USED FOR THE PURPOSE OF MAINTAINING JOINT ACCOUNT WITH HIS WIFE. AS REGARDS INCOME OF THE ASSESSEE, IT WAS NOTED THAT THE INCOME HAS BEEN COM PUTED @ 8 % U/S 44AD OF THE ACT, THEREFORE, THE SOURCE OF THE DEPOSITS ARE NOT EXPLAINED. THE AO ACCORDINGLY MADE ADDITION U/S 68 OF THE ACT OF THE AFORESAID AMOUNT. 4. THE ASSESSEE SUBMITTED BEFORE THE CIT(A) THAT JO INT ACCOUNT WITH WIFE OF THE ASSESSEE BELONG TO HIS WIFE WHO IS HAVING FIRST NAME IN THE BANK ACCOUNT AND NAME OF THE ASSESSEE IS MENTIONED AT SECOND PLA CE WHICH IS A JOINT ACCOUNT. MRS. RACHNA GUPTA HAS BEEN ASSESSED TO TAX FOR A.Y. UNDER APPEAL I.E. 2011-12 U/S 143(3). OF THE ACT. SHE HAS DECLARED THIS BANK ACCOUNT IN HER NAME TO THE REVENUE. FURTHER, DEPOSIT IN THE CASE OF MISS SHIV YA GUPTA IN A SUM OF RS.4,10,000/-, THE ACTUAL ACCOUNT IS RS.3,10,000/-. THE AMOUNT DEPOSITED WITH THE PUNJAB NATIONAL BANK IN THE NAME OF THE ASSESSE E COMES TO RS.16,05,086/-. THE ASSESSEE HAD SOME MISCELLANEOUS INCOME WHICH HA VE BEEN DULY SHOWN IN PAGE 3 OF 5 THE COMPUTATION OF INCOME. THE ASSESSEE HAS SUFFIC IENT CASH BALANCE OF RS.27,11,697/- WHICH IS SUPPORTED BY CASH FLOW STAT EMENT. THESE WERE WITHDRAWN AND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND TWO MINOR CHILDREN. THEREFORE, ALL THE ADDITIONS ARE WHOLLY UNJUSTIFIED . IT WAS SUBMITTED THAT THE ASSESSEE NEVER SUBMITTED OR PLEA DED THAT HE CARRIES ON ANY BUSINESS OF ANY NATURE. THE ASSESSEE HAS MI SCELLANEOUS INCOME WHICH HAS ALREADY BEEN SHOWN, THEREFORE, THE SOURCE OF THE DEPOSITS IN THE BANK ACCOUNTS ARE EXPLAINED. 5. THE SUBMISSIONS OF THE ASSESSEE WERE FORWARDED T O THE AO FOR HIS COMMENTS BUT THE AO DID NOT MAKE ANY COMMENT TO THE SUBMISSIONS OF THE ASSESSEE AND EVIDENCES PRODUCED BEFORE THE LD.C IT(A). 6. THE LD.CIT(A) NOTED THAT THE JOINT ACCOUNT OF TH E ASSESSEE WITH HIS WIFE, MRS. RACHNA GUPTA HAS BEEN SHOWN IN HER P&L A /C AND SHE HAS BEEN ASSESSED TO TAX. SHE HAS FIRST NAME IN THE BA NK ACCOUNT, THEREFORE, THERE IS NO QUESTION TO CONSIDER BANK ACCOUNT OF T HE WIFE OF ASSESSEE AS UNEXPLAINED BANK ACCOUNT OF THE ASSESSEE. THE LD.C IT(A) FURTHER NOTED THAT THE ASSESSEE HAS SUFFICIENT PAST SAVINGS WHICH ARE SUPPORTED BY CASH FLOW STATEMENT TO MAKE DEPOSIT IN HIS BANK ACCOUNT AS WELL AS IN THE BANK ACCOUNTS OF HIS MINOR CHILDREN. THE CIT(A) ALSO HE LD THAT THE ASSESSEE WAS NOT DOING ANY BUSINESS OF SCRAP SALES AND MISCE LLANEOUS INCOME SHOWN IS NOT FROM ANY BUSINESS ACTIVITY CARRIED OUT BY THE ASSESSEE. THE ENTIRE ADDITION WAS ACCORDINGLY DELETED. PAGE 4 OF 5 7. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM NOT IN CLINED TO INTERFERE WITH THE ORDER OF THE LD.CIT(A). LD.DR RELIED UPON THE ORDER OF THE AO AND CONTENDED THAT THE ASSESSEE HAS SHOWN BUSINESS INC OME @ 8% OF THE RECEIPT U/S 44AD OF THE ACT, THEREFORE, 92% OF THE RECEIPTS ARE EXPENDITURE AS NOTED BY THE AO. HOWEVER, THE ASSESSEE CLARIFI ED BEFORE THE LD. CIT(A) THAT HE WAS NOT DOING ANY BUSINESS ACTIVITY OF SELL ING SCRAPS BUT THE ASSESSEE HAS MISCELLANEOUS INCOME WHICH HAS ALREADY BEEN SHOWN IN THE RETURN OF INCOME AND SUPPORTED BY CASH FLOW STATEME NT. THE LD.CIT(A) DID NOT APPROVE FINDINGS OF THE AO WITH REGARD TO CARRY ING ANY BUSINESS ACTIVITY BY THE ASSESSEE IN THE NATURE OF BUSINESS OF SCRAP SALES. THOSE FINDINGS OF THE CIT(A) HAVE NOT BEEN CHALLENGED BY THE REVENUE IN THE GROUNDS OF APPEAL. THUS, THE ASSESSEE HAS SUFFICIE NT INCOME FROM MISCELLANEOUS INCOME. THE SOURCE OF DEPOSITS IN BA NK ARE SUPPORTED BY CASH FLOW STATEMENT. THE SUFFICIENT CASH IS AVAILA BLE TO THE ASSESSEE TO MAKE DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AN D HIS MINOR CHILDREN. AS REGARDS, CASH DEPOSIT IN THE JOINT ACCOUNT OPERA TED BY MRS. RACHNA GUPTA AND THE ASSESSEE, IT IS A FACT THAT SHE IS AS SESSED TO TAX SEPARATELY AND SHOW HIS BUSINESS INCOME TO THE REVENUE AND ASS ESSED U/S 143(3) OF THE ACT. HER NAME IS APPEARING AS FIRST PERSON IN THE JOINT BANK ACCOUNT. SINCE THE JOINT BANK ACCOUNT HAS ALREADY CONSIDERE D IN HER SEPARATE INCOME TAX ASSESSMENT, THEREFORE, SAME COULD NOT BE CONSIDERED AS UNDISCLOSED DEPOSIT IN SUCH BANK ACCOUNT IN THE HAN DS OF THE ASSESSEE. PAGE 5 OF 5 THE LD.CIT(A ON PROPER APPRECIATION OF FACTS AND MA TERIAL ON THE RECORD CORRECTLY DELETED THE ADDITION. 8. I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) IN DELETING THE ADDITION. NO INFERENCE IS CALLED FOR. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THE ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATE:- 18 TH APRIL, 2017 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI