ITO, New Delhi V. Mrs. Sheetal Mehra, New Delhi

ITA 2447/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7304 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: S R WADHWA
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of being heard; Peak credit
• Section: 2

Judgement Text

1 THE INCOME TAX APPELLATE TRIBUNAL, DELHI B BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE , JUDICIAL MEMBER ITA NO S . 2 446, 2447 & 2448 /DEL/20 1 6 [A.Y S 20 07 - 08, 2008 - 09 & 2009 - 10 ] THE I.T .O VS. SMT. SHEETAL MEHRA WARD 40(1 ) QP 40, 2 ND FLOOR NEW DELHI PITAMPURA , NEW DELHI PAN : AJAPM 1364 J [APPELLANT] [RESPONDENT] DATE OF HEARING : 0 9 . 0 1 .201 9 DATE OF PRONOUNCEMENT : 11 . 0 1 .201 9 ASSESSEE BY : SHRI S.R. WADHWA, ADV REVENUE BY : MS. ASHIMA NEB , SR. DR ORDER PER N.K. BILLAIYA , ACCOUNTANT MEMBER, TH ESE THREE APPEAL S BY THE REVENUE ARE PREFERRED AGAINST THE ORDER OF THE CIT(A) - 14 , NEW DELHI DATED 01 .0 2 . 201 6 PERTAINING TO A.Y S 20 07 - 08, 2008 - 09 AND 2009 - 10 . SINCE THE UNDERLYING FACTS IN THE ISSUES RAISED BY THE REVENUE IN ALL THESE THREE APPEALS PERTAIN TO SAME 2 ASSESSEE AND WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FOR THE SAKE OF CONV ENIENCE, WE HAVE CONSIDERED THE FACTS IN ASSESSMENT YEAR 2007 - 08. 3. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE A.O OBSERVED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 1.41 CRORES IN HER BANK ACCOUNT AT ICICI BANK. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSIT. IN HER REPLY, THE ASSESSEE CLAIM THAT SALES MADE BY HER ARE MOSTLY IN CASH. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH BILLS AND VOUCHERS OF PURCHASES AND SALES, COPY OF VAT RETURN AND CERTIFIED COPY OF TR ADE LICENCE FOR TRADING IN BULLION AND JEWELLERY. 4. ON RECEIVING NOTHING, THE ASSESSING OFFICER TREATED THE ENTIRE CASH DEPOSIT AS UNEXPLAINED INVESTMENT. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT( A) AND IN ADDITION TO WHAT HAS BEEN CLAIMED BEFORE THE ASSESSING OFFICER, IT WAS PLEADED THAT ONLY PEAK CREDIT SHOULD BE ADDED. 3 6. THE LD. CIT(A) AGREED WITH THE ALTERNATIVE PLEA AND DIRECTED THE ASSESSING OFFICER TO RESTRICT THE ADDITION TO RS. 9,59,158/ - BY TAKING PEAK CREDIT AS INCOME FROM UNDISCLOSED SOURCES. 7. BEFORE US, THE LD. DR STRONGLY CONTENDED THAT THE PLEA TAKEN BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS NEVER TAKEN BEFORE THE ASSESSING OFFICER AND WITHOUT CALLING FOR ANY REMAND REPORT, THE LD . CIT(A) HAS SIMPLY ACCEPTED THE WORKING GIVEN BY THE ASSESSEE. 8. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IN SUCH A SCENARIO, THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER DUE VERIFICATION. 9. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. IN ALL THE THREE ASSESSMENT YEARS UNDER CONSIDERATION, THE ONLY DISPUTE IS IN RELATION TO CASH FOUND DEPOSITED IN THE ICICI BANK ACCOUNT. IT IS TRUE THAT THOUGH THE ASSESSE E HAS CLAIMED TO HAVE TRADED IN BULLION AND GOLD JEWELLERY BEFORE THE ASSESSING OFFICER, BUT COULD NOT ADDUCE ANY EVIDENCE IN RELATION TO THE SAME. IT IS EQUALLY TRUE THAT FOR THE FIRST TIME THE ASSESSEE TOOK THE PLEA BEFORE THE LD. CIT(A) THAT SINCE THER E ARE FREQUENT DEPOSITS AND WITHDRAWALS, 4 ONLY PEAK AMOUNT SHOULD BE ADDED. THIS PLEA OF THE ASSESSEE HAS BEEN ACCEPTED BY THE LD. CIT(A) WITHOUT GETTING IT VERIFIED FROM THE ASSESSING OFFICER. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTO RE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ENTIRE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, ALL THE THREE APPEAL S OF THE REVENUE IN ITA NO S . 2 446, 2447 & 2448 /DEL/201 6 ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRON OUNCED IN THE OPEN COURT ON 11 . 0 1 .201 9 . SD/ - SD/ - [ SUCHITRA KAMBLE ] [ N.K. BILLAIYA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH JANUARY , 201 9 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS 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