Vikas Gupta, New Delhi V. ITO, New Delhi

ITA 2580/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73944 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRINIVAS KUMAR
• Assessee Lawyers: ATUL GUPTA
• Keywords: Business income; Opportunity of being heard
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I/ SMC NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2580/DEL/2013 (ASSESSMENT YEAR-2008-09) SH. VIKAS GUPTA, ITO H. NO. T-202, GALI NO.1, WARD 21(3), NARELA NEW DELHI. DELHI-110040. PAN: AGQPG2019P (APPELLANT) (RESPONDENT) ASSESSEE BY: SH. ATUL GUPTA, CA. REVENUE BY:-SH. SRINIV AS KUMAR, SR. DR. ORDER PER R. S. SYAL, AM. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE LD. CIT (APPEALS) ON 29.1.2013 IN RELATION TO T HE ASSESSMENT YEAR 2008-09. 2. FIRST GROUND OF THE APPEAL IS AGAINST THE CONFIR MATION OF ADDITION OF RS.98,000/- ON ACCOUNT OF CASH DEPOSITE D IN BANK. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT TH E ASSESSEE DECLARED TO HAVE MAINTAINED BANK ACCOUNT WITH SYNDICATE BANK ONLY. ON THE BASIS OF AIR INFORMATION, THE ASSESSEE WAS CONFRONT ED WITH THE FACT THAT HE MADE INVESTMENTS IN THE SHARES OF INDI A BULLS SECURITIES LTD., AMOUNTING TO RS.98,000/- FROM BANK ACCOUNT MAINTAINED WITH ICICI BANK. THE AO HAS RECORDED IN THE I.T.A .NO.-2580/DEL/2013 2 ASSESSMENT ORDER THAT NO SATISFACTORY EXPLANATION W AS GIVEN AND DESPITE THE OPPORTUNITIES GIVEN, THE ASSESSEE COULD NOT PROVE THE SOURCE OF INVESTMENT IN SUCH SHARES. HE, THEREFORE, MADE ADDITION U/S 69 FOR THE SAME. THE LD. CIT (A) UPHELD THE ASS ESSMENT ORDER ON THIS ISSUE. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT TH E ASSESSEE COULD NOT AVAIL OPPORTUNITY OF ADDUCING SUFFICIENT EVIDEN CE IN SUPPORT OF HIS EXPLANATION ABOUT THE SOURCE OF INVESTMENT IN S HARES. IT CAN BE SEEN FROM THE SUBMISSIONS MADE BY THE ASSESSEE BEFO RE THE LD. CIT (A) THAT HE DERIVED RENTAL INCOME OF RS.1,29,694/- WHICH WAS DEPOSITED IN THE SYNDICATE BANK ACCOUNT OUT OF WHI CH A SUM OF RS.81,000/- WAS WITHDRAWN IN CASH. FURTHER, THE ASS ESSEE CLAIMED TO HAVE EARNED BUSINESS INCOME OF RS.85,540/- DURIN G THE YEAR UNDER CONSIDERATION. THESE SUBMISSIONS HAVE NOT BEE N EXAMINED BY THE LD. CIT(A), WHO CHOSE TO GO WITH THE AO. IN OUR CONSIDERED OPINION, THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER ON THIS ISSUE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO. WE ORDER ACCORDINGLY AND DIRECT HIM TO D ECIDE THIS ISSUE AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS MADE CLEAR THAT THE OBSERVATIONS ABOUT THE CASH WITHDRAWAL AND EARNING OF BUSINESS I NCOME MADE ABOVE SHOULD NOT BE CONSIDERED AS A CONCLUSIVE FIND ING FOR THE I.T.A .NO.-2580/DEL/2013 3 EXPLANATION ABOUT THE SOURCE OF INVESTMENT IN SHARE S. THE SUM AND SUBSTANCE OF THE MATTER IS THAT THE AO WILL EXAMINE THIS ISSUE DE NOVO . NEEDLESS TO SAY, THE ASSESSEE WILL BE AT LIBERTY TO ADDUCE/ ANY FRESH EVIDENCE IN SUPPORT OF HIS CLAIM IN THIS REGA RD. 4. SECOND GROUND OF THE APPEAL IS AGAINST THE CONFI RMATION OF ADDITION OF RS.6,826/- ON ACCOUNT OF INCOME FROM HO USE PROPERTY. THE ASSESSEE HAD SHOWN RENTAL INCOME OF RS.1,29,694 /- IN HIS RETURN OF INCOME. ON BEING CALLED UPON TO FURNISH A COPY OF THE CERTIFICATE OF DEDUCTION OF TAX AT SOURCE AGAINST S UCH A RENTAL INCOME, THE ASSESSEE FILED BANK STATEMENT DEPICTING RECEIPT FROM RENTAL INCOME TO THE TUNE OF RS.1,19,407/- AND ALSO TDS AGAINST SUCH A RENTAL INCOME AT RS.20,039/- THEREBY MAKING TOTAL RENT RECEIPT AT GROSS LEVEL AMOUNTING TO RS.1,39,446/-. SINCE THE ASSESSEE HAD DECLARED RENTAL INCOME AT RS.1,29,694/ -, THE REMAINING AMOUNT OF RS.9752/- WAS ASSESSED TO TAX A FTER ALLOWING THE DEDUCTION @ 30%. THIS LED TO ADDITION OF RS.682 6/-. THE ASSESSEE ARGUED BEFORE THE LD. CIT (A) THAT, AT THE TIME THE AO DEMANDED TDS CERTIFICATE, THE SAME WAS NOT IN HIS P OSSESSION AS IT WAS LODGED WITH THE INCOME TAX DEPARTMENT FOR CLAIM ING INCOME TAX REFUND. THE ASSESSEE CLAIMED TO HAVE DOWNLOADED FORM NO.26 AS FOR THE PERIOD UNDER CONSIDERATION FROM THE DEPA RTMENTAL PORTAL, AND THE AMOUNT REFLECTED IN THE CERTIFICATE MATCHED WITH THE AMOUNT DISCLOSED BY THE ASSESSEE IN HIS RETURN. THE LD. CIT (A) DID I.T.A .NO.-2580/DEL/2013 4 NOT CONCUR WITH THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE, AS IN HIS OPINION, THE ASSESSEE FAILED TO EXPLAIN THE REASON FOR MIS-MATCH OF SUCH FIGURE WITH THE AMOUNT OF DEP OSIT IN HIS BANK ACCOUNT. 5. HAVING REGARD TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THERE IS A SOME CONFUSION ABOUT THE ACTUAL AMOUNT O F RENT RECEIVED BY THE ASSESSEE VIS--VIS THAT DEPOSITED IN THE BAN K ACCOUNT. WHEREAS THE ASSESSEE CLAIMED THAT THE AMOUNT OF INC OME DECLARED MATCHED WITH THE TDS CERTIFICATE, THE AO HAS SIMPLY GONE BY THE BANK STATEMENT. IN OUR CONSIDERED OPINION IT WOULD BE IN THE FITNESS OF THE THINGS, IF THE IMPUGNED ORDER ON THIS ISSUE IS ALSO SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO. W E ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AFR ESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/01/2014. SD/- SD/- (DIVA SINGH ) (R. S . SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07/01/2014 *AK VERMA* COPY FORWARDED TO: I.T.A .NO.-2580/DEL/2013 5 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 06-1-2014 PS 2. DRAFT PLACED BEFORE AUTHOR 6-1-2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 6-1-2014 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7/1/14 PS/ PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7/1/14 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. *