ITO, Mohali V. Shri Vipin Thaman, Dera Bassi

ITA 26/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68488 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 26/CHD/2013 ASSESSMENT YEAR:2009-10 THE INCOME TAX OFFICER VS SHRI VIPIN THAMAN, WARD - 6 (4), # 446, MOHALLA DADUPURA, MOHALI. NEAR MOHAN DHABA, DERA BASSI. PAN NO. ACIPT-2756J (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AKHILESH GUPTA RESPONDENT BY : SHRI TEJ MOHAN SINGH DATE OF HEARING : 02.09.2013 DATE OF PRONOUNCEMENT : 20.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDER OF THE CIT(APPEALS) CHANDIGARH DATED 17.10.2012 RELATING T O ASSESSMENT YEAR 2009-10 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND, IN LAW THE LD. CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE IN THIS CASE WHEN THE ASSESSEE DID NOT HAVE A SATISFACTORY EXPLANATION FOR NOT SUBMITTING THEM DURING THE ASSESSMENT PROCEEDIN GS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND, IN LAW THE LD. CIT(A) HAS ERRED IN RELYING ON THE CASH F LOW PREPARED BY THE ASSESSEE WHEN THE ASSESSEE DID NOT MAINTAIN ANY REG ULAR CASH BOOK. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND, IN LAW THE LD. CIT(A) HAS ERRED IN NOT TREATING RS.29 ,70,000/- RECEIVED 2 THROUGH CHEQUES AS INCOME OF THE ASSESSEE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND, IN LAW THE LD. CIT(A) HAS ERRED IN ACCEPTING WITHOUT ANY V ERIFICATION THAT THE SOURCE OF ALL THE CASH DEPOSITS WAS THE RS.29,7 0,000/- DEPOSITED THROUGH CHEQUES. 6. IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE S ET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THE ASSESSEE TO HAVE MAINTAINED TWO SAVING BANK ACCOUNTS ONE IN A XIS BANK LTD., DERA BASSI AND THE OTHER IN STATE BANK OF PATIALA, DERA BASSI. THE ASSESSEE WAS ASKED TO EXPLAIN THE CREDIT ENTRIES IN THE BANK ACCOUNT. IN REPLY, THE ASSESSEE SUBMITTED THAT SUM OF RS. 51 ,10,000/- WAS RECEIVED FROM EIGHT PERSONS AS CONTRIBUTION FOR PUR CHASE OF LAND. THE ASSESSING OFFICER ISSUED LETTERS TO ALL THE SAI D EIGHT PERSONS, OUT OF WHICH ONLY ONE PERSON ATTENDED AND HE DENIED HAV ING PAID ANY AMOUNT TO THE ASSESSEE. THE ASSESSING OFFICER FURT HER MADE ENQUIRIES FROM THE BANKS AND IT WAS FOUND THAT THE DETAILS OF WITHDRAWALS PROVIDED BY THE BANK WERE DIFFERENT FRO M THE DETAILS PROVIDED BY THE ASSESSEE. THE ASSESSING OFFICER, I N VIEW THEREOF MADE AN ADDITION OF RS. 51,10,000/-. 4. BEFORE THE CIT(APPEALS), THE ASSESSEE FURNISHED WRITTEN SUBMISSIONS WHICH ARE INCORPORATED IN PARA 3.2 AT P AGES 2 TO 6 OF THE PAPER BOOK. THE ASSESSEE BY WAY OF CASH FLOW STATE MENT, EXPLAINED THE NATURE OF VARIOUS DEPOSITS IN THE BANK ACCOUNT I.E. MONEY RECEIVED FROM DIFFERENT PERSONS AND EXPLANATION ALO NGWITH SUPPORTING EVIDENCE IN RESPECT THEREOF WERE FURNISHED BEFORE T HE CIT(APPEALS). THEREAFTER, THE ASSESSEE EXPLAINED THAT THERE WERE CIRCULATION OF ENTRIES BY WAY OF CASH WITHDRAWALS AND CASH DEPOSIT S IN THE SAID BANK ACCOUNTS WHICH WAS EXPLAINED BY CASH FLOW STATEMENT . THE SAID CASH DEPOSITS WERE CLAIMED TO HAVE BEEN MADE OUT OF AVAI LABLE CASH IN THE 3 HANDS OF THE ASSESSEE. THE AMOUNT RECEIVED FROM VA RIOUS PERSONS WERE THROUGH CHEQUES. ANOTHER SUBMISSION MADE BY T HE ASSESSEE BEFORE THE CIT(APPEALS) WAS THAT THE EARLIER COUNSE L HAD NOT PROVIDED THE DATA CORRECTLY TO THE ASSESSING OFFICE R, CONSEQUENT TO WHICH ADDITIONS WERE MADE BY THE ASSESSING OFFICER. 5. BEFORE THE CIT(APPEALS), THE ASSESSEE PLACED ON RECORD FRESH INFORMATION IN THE SHAPE OF BANK ACCOUNT OF VARIOUS PARTIES FROM WHOM THE LOANS HAD BEEN TAKEN AND OTHER DOCUMENTARY EVIDENCE WHERE THE MONEY WAS INVESTED. THE REPLY OF THE ASS ESSEE WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS WHO IN-TURN SUBMITTED HIS REPORT. THE REMAND REPORT FURNISHED BY THE ASSESSING OFFICER READS AS UNDER : 'IT IS SUBMITTED THAT DURING THE ASSESSMENT PROCEED INGS THE ASSESSEE HIMSELF OR THROUGH COUNSEL HAD SUBMITTED A LIST OF PERSONS ALONGWITH AMOUNT RECEIVED FROM THEM. NOW BEFORE COMMISSIONER OF INCOME TAX, CHANDIGARH(A) THE ASSES SEE HAS SUBMITTED THAT INADVERTENTLY WRONG INFORMATION HAD BEEN SUBMITTED DURING THE ASSESSMENT PROCEEDING THE COUNSEL. 1. NOW THE ASSESSEE HAS NOT GIVEN ANY STRONG EVIDENCE OR REASON AND WHY HE HAD SUBMITTED OTHER REASONS DURIN G THE ASSESSMENT PROCEEDING. THOUGH THE ENTRY OF RS. 8,00 ,000/- REFLECTING IN THE BANK OF M/S GREEN SWEETS, DERA BA SSI. THE ASSESSEE HAS SUBMITTED THAT THE WITHDRAWAL OF RS. 8 LACS HAS BEEN UTILIZED PROPERLY AND DULY REFLECTED. THEREFORE, IT HAS NO ADVERSE EFFECT ON THE SOURCE OF CASH DEPOSITED INTO BANK ACCOUNT. 2. AGAIN THE ASSESSEE HAS SUBMITTED THAT INADVERTENTLY HE HAD GIVEN OTHER NAMES DURING THE ASSESSMENT PROCEEDING. THOUGH THE ENTRY OF RS. 10,30,000/- DULY REFLECTED IN THE BANK ACCOUNT OF THE COMPANY AND THE COMPANY HAS ALSO SUBMITTED AFFIDAVI T. AGAIN THE ASSESSEE HAS SUBMITTED THE DETAILS OF UTILIZATIONS OF WITHDRAWAL AND WHICH HAS NO EFFECT ON THE SOURCE OF INVESTMENT AS CASH DEPOSITED INTO SAVING BANK ACCOUNT. 3. SIMILARLY THE ASSESSEE HAS SUBMITTED THAT OUT OF E NTRY OF RS. 9,40,000/- A SUM OF RS. 4,00,OOO/- WAS RELAT ED TO SHRI RAJNISH KANSAL INSTEAD OF SHRI VIVEK JAIN, THE SUBMISSION OF THE ASSESSEE THAT THE PAYMENTS MADE TO ANOTHER PER SON DOES NOT EFFECT THE SOURCE OF INVESTMENT, THEREFORE, THE SUB MISSION OF THE ASSESSEE CAN BE ACCEPTED. 4. THE ASSESSEE HAS RECEIVED RS. 2,00, OOO/- FROM HIS WIFE SMT. ANITA THAMAN AND NOW PRODUCED COPY OF BANK ACCOUNT . WHEREAS NOTHING HAS STOPPED HIM TO PROVIDED DOCUMENTS IN SU PPORT OF HIS INVESTMENT. 4 A. FURTHER THE ASSESSEE AGAIN IS TAKING SAME PLEA THAT INCORRECT INFORMATION WAS SUBMITTED BEFORE T HE AO DURING THE ASSESSMENT PROCEEDING AND ALL THE INFORMATION SUBMI TTED BY THE ASSESSEE IS RELATED TO WITHDRAWALS OF THE ASSESSEE AND NOT RELATED TO THE CASH DEPOSITED IN SAVING BANK ACCOUNT THEREFORE IT DOES NOT MATTER. B. IT IS SUBMITTED THAT THE CASH IN HAND ACCORDING TO THE SUBMISSION OF THE ASSESSEE IS FOUND GENUINE AS RELA TED TO VARIOUS WITHDRAWALS OF THE ASSESSEE. 6. THE CIT(APPEALS) VIDE PARA 3.3 TO 3.3.2 OBSERVED AS UNDER : 3.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. CO UNSEL. IN THE -ASSESSMENT PROCEEDINGS, THE APPELLANT HAD GIVEN NA MES OF EIGHT PERSONS FROM WHOM THE MONEY WAS RECEIVED. THE ASSES SING OFFICER ALSO ASKED THE APPELLANT TO FURNISH THE DETAILS OF UTILI ZATION OF THE AMOUNT DEPOSITED IN THE BANKS, WHICH WAS FILED BY THE APPE LLANT. THE ASSESSING OFFICER MADE ENQUIRIES FROM THE BANKS ABO UT THE WITHDRAWALS AND FOUND THAT THE DETAILS FURNISHED BY THE APPELLANT WERE NOT TALLYING WITH THE INFORMATION FURNISHED BY THE BANKS. THE ASSESSING OFFICER CONCLUDED THAT AS THE WITHDRAWAL DETAILS GIVEN BY THE APPELLANT WERE NOT CORRECT, THE DEPOSITS MADE W ERE NOT ACCEPTABLE. 3.3.1 IN THE APPELLATE PROCEEDINGS, THE LD. COUNSEL HAS E XPLAINED THAT IN ALL, RS. 29,70,000/- HAD BEEN RECEIVED FROM VARIOUS PERSONS BY CHEQUES AND THIS AMOUNT WAS UTILIZED AS PER REQU IREMENT OF THE BUSINESS. IT HAS BEEN CONTENDED BY THE LD. COUNSE L THAT THE AMOUNT WAS WITHDRAWN IN CASH FROM TIME TO TIME AND DEPOSITED SUBSEQUENTLY IN THE BANK ACCOUNTS AS PER THE BUSINE SS NEEDS. 3.3.2 THE APPELLANT HAS SUBMITTED A CASH FLOW STATEMENT W HICH EXPLAINS THE ROTATION OF MONEY. THE DEPOSITS ARE FR OM EXPLAINED SOURCES AS ALREADY MENTIONED EARLIER. THE ASSESSI NG OFFICER HAS ALSO GONE THROUGH THE CASH FLOW STATEMENT AND THE SUBMI SSION OF THE LD. COUNSEL AND HAS NOT OBJECTED TO THE SAME. T HE ADDITION WAS MADE BECAUSE THE DETAILS OF WITHDRAWALS OBTAINE D FROM THE BANKS WERE NOT MATCHING WITH THE DETAILS OF WITHDRA WALS PROVIDED BY THE APPELLANT, BUT INFERENCE REGARDING DEPOSITS CAN NOT BE DRAWN FROM THE DETAILS OF WITHDRAWALS. THE DEPOSITS IN THE CAS E OF THE APPELLANT ARE DULY EXPLAINED AND THE CASH ENTRIES ARE ON ACCO UNT OF ROTATION OF AVAILABLE FUNDS AND SO THE ADDITION WAS NOT CALLED FOR. HENCE, THE ENTIRE ADDITION MADE OF RS. 51,10,000/- IS DELETED. GROUND OF APPEAL NO. 2 IS ALLOWED. 7. THE LD. DR FOR THE REVENUE HAS FAILED TO CONTROVERT THE FINDINGS OF CIT(APPEALS). THE ASSESSING OFFICER IN THE REMAN D REPORT HAS CONSIDERED THE PLEA OF THE ASSESSEE THAT THE EARLIE R SUBMISSIONS MADE DURING THE ASSESSMENT PROCEEDINGS WAS INCORRECT INF ORMATION AND HAS GIVEN A FINDING IN RESPECT OF EACH OF THE CREDIT EN TRY, RECEIVED BY CHEQUE AND ALSO IN RESPECT OF CASH IN HAND. IT HAS BEEN ADMITTED THAT 5 THE EXPLANATION OF THE ASSESSEE WAS GENUINE AS RELA TED TO VARIOUS WITHDRAWALS MADE BY THE ASSESSEE. IN VIEW OF THE A BOVESAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. UPHOLDING THE ORDER OF CIT(APPEALS ) IN DELETING THE ADDITION OF RS. 51,10,000/-, WE DISMISS THE GROUND OF APPEAL RAISED BY THE REVENUE. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 20 TH SEPTEMBER,2013 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH