Sh. Inderjit Singh Gill, Mohali V. ITO, Chandigarh

ITA 281/CHANDI/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0014 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHDR
• Keywords: Income from undisclosed sources; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 281/CHD/2014 ASSESSMENT YEAR: 2009-10 SHRI INDERJIT SINGH GILL, VS THE ITO, HOUSE NO. 2549, WARD 4(2), PHASE VII, CHANDIGARH. MOHALI. PAN: AITPG4173F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGA RWAL RESPONDENT BY : SHRI MANJIT SINGH,DR DATE OF HEARING : 18.04.2016 DATE OF PRONOUNCEMENT : 19.04.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) CHANDIGARH DATED 23.12.2013 FOR ASSESSMENT YEAR 2009-10. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 5,72,510/-. THE ASSESSING OFFICER MADE ADDITION OF RS. 42,99,500/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCE BEING THE UNEXPLAINED CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICE R 2 ALSO MADE ADDITION OF RS.1,00,535/- ON ACCOUNT OF UNEXPLAINED PAYMENT THROUGH CREDIT CARD. BOTH THE ADDITIONS WERE MADE BECAUSE ASSESSEE FAILED TO FILE THE REQUISITE EVIDENCE BEFORE THE ASSESSING OFFICER. T HE ASSESSEE REMAINED EX-PARTE BEFORE LD. CIT(APPEALS), THEREFORE, BOTH THE ADDITIONS WERE CONFIRMED AND AP PEAL OF THE ASSESSEE WAS DISMISSED. 4. GROUND NO. 1 IS GENERAL AND NEED NO ADJUDICATION . 5. ON GROUND NO. 2, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 42,99,500/-. BRIEF FACTS OF THIS ISSUE ARE THAT ASSESSEE HAD MADE TOTAL CASH DEPOSITS OF RS. 42,99,500/- IN HIS THREE BANK ACCOUNTS. THE ASSESS ING OFFICER ASKED THE SOURCE OF THESE DEPOSITS AND THE ASSESSEE HAD SUBMITTED THAT HE HAD MADE AN AGREEMEN T FOR SALE OF HIS LAND SITUATED IN VILLAGE MANAKWAL, DISTT. LUDHIANA TO SHRI BAINT SINGH, RESIDENT OF CANADA ON 28.03.2008 FOR RS. 78 LACS AND HE HAD RECEIVED ADVA NCE OF RS. 31 LACS ON VARIOUS DATES AGAINST SALE AGREEM ENT. IT WAS CONTENDED THAT THIS ADVANCE WAS DEPOSITED ON VARIOUS DATES IN THE BANK ACCOUNTS AND REST OF THE CASH DEPOSIT WAS OUT OF EARLIER WITHDRAWALS MADE FROM TH E BANK ACCOUNTS WHICH REMAINED UN-UTILIZED. WHEN THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE SHR I BAINT SINGH, THE PURCHASER, IT WAS INFORMED THAT SH RI BAINT SINGH WAS NO MORE AND NONE OF HIS FAMILY MEMBERS WERE AROUND. SUBSEQUENTLY, ASSESSING OFFIC ER ASKED THE ASSESSEE TO FILE CONFIRMATION FROM THE 3 WITNESSES TO THE SALE AGREEMENT BUT HE WAS INFORMED THAT ASSESSEE WAS TO GO OUT OF STATION. LATER ON, ASSESSEE CONTENDED AND SUBMITTED THAT HE COULD NOT PROCURE THE DEATH CERTIFICATE OF SHRI BAINT SINGH A ND AFFIDAVITS OF THE WITNESSES. THEREFORE, CASE WAS ADJOURNED FOR FILING THE REQUIRED DOCUMENTS. ON TH E DATE OF HEARING, NOBODY APPEARED BEFORE ASSESSING OFFICER. SUBSEQUENTLY THE CHARTERED ACCOUNTANT OF T HE ASSESSEE FILED COPY OF THE DEATH CERTIFICATE OF SHR I BAINT SINGH ISSUED BY NAMBERDAR OF VILLAGE SOHOLI, DISTRI CT LUDHIANA AND AFFIDAVITS OF THE WITNESSES. THE ASSE SSING OFFICER ASKED AS TO WHEN AND HOW ADVANCE PAYMENTS WERE MADE TO WHICH THE COUNSEL HAD SUBMITTED THAT T HE AGREEMENT WAS BETWEEN ASSESSEE AND SHRI BAINT SINGH AND HE DID NOT KNOW ABOUT THE PAYMENTS RECEIVED BY THE ASSESSEE OR PAYMENTS MADE BY THE PURCHASER. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLAN ATION OF THE ASSESSEE AND MADE ADDITION OF THE ENTIRE AMO UNT OF CASH DEPOSIT IN A SUM OF RS. 42,99,500/-. 6. NONE APPEARED BEFORE LD. CIT(APPEALS), THEREFORE , IN THE ABSENCE OF ANY EVIDENCE ON RECORD, THIS GROU ND OF APPEAL OF THE ASSESSEE WAS DISMISSED. THE FINDINGS OF LD. CIT(APPEALS) IN PARA 3.2 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 3.2 NO SUBMISSION HAS BEEN FILED IN THE APPELLATE PROCEEDINGS. REGARDING CASH DEPOSITS IN THE BANK AC COUNTS, THE APPELLANT HAD SUBMITTED THAT PART OF THE DEPOSIT I. E. 31,00,000/- 4 WAS OUT OF THE ADVANCE RECEIVED FROM SH. BIANT SING H, A RESIDENT OF CANADA AND REST OF THE AMOUNT WAS OUT OF EARLIER WITHDRAWALS. SH. BIANT SINGH HAD DIED AND SO THE APPELLANT COULD NOT PRODUCE CONFIRMATION FROM HIM. THE AFFIDAVITS FROM THE WITN ESSES HAD BEEN FILED, BUT INFORMATION REGARDING RECEIPT OF TH E ADVANCE WAS NOT GIVEN IN THESE AFFIDAVITS AND THE LD. COUNSEL F OR THE APPELLANT COULD NOT GIVE THE DETAILS OF THE SAME AND THE REAS ON GIVEN WAS THAT HE WAS NOT A PARTY TO THE AGREEMENT AND DID NO T KNOW ABOUT THE PAYMENT RECEIVED. AS NO PARTICULARS REGARDING A LLEGED ADVANCE OF RS. 31,00,000/- AGAINST SALE OF LAND WAS FILED, IT IS HELD THAT THE ASSESSING OFFICER HAS RIGHTLY ASSESSE D INCOME RS. 31,00,000/- AS INCOME FROM UNDISCLOSED SOURCES. REG ARDING REST OF THE AMOUNT OF RS. 11,99,500/-(42,99,500 - 31,00, 000), THE EXPLANATION OF THE APPELLANT WAS THAT THESE DEPOSIT S WERE OUT OF EARLIER WITHDRAWALS WHICH REMAINED UNUTILIZED, BUT NO EVIDENCE/ DETAILS REGARDING THE SAME WAS FILED AND SO IT IS H ELD THAT THIS AMOUNT WAS ALSO RIGHTLY TAXED BY THE ASSESSING OFFI CER AS INCOME FROM UNDISCLOSED SOURCES. THEREFORE, THE ENTIRE ADD ITION MADE OF RS. 42,99,500/- IS UPHELD. GROUND OF APPEAL NO.(A) IS DISMISSED. 7. AFTER HEARING RIVAL CONTENTIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. TH E LD. COUNSEL FOR THE ASSESSEE FILED APPLICATION FOR THE ADDITIONAL EVIDENCE I.E. RECEIPT OF CANCELLATION OF AGREEMENT AND COPY OF THE BANK ACCOUNT OF THE ASSES SEE WITH PUNJAB & SIND BANK. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT BROTHER OF THE ASSESSEE MET WITH SERIOUS ACCIDENT IN CANADA THEREFORE, ASSESSEE HAD TO URGENTLY MOVE TO CANADA AND ASSESSMENT WAS GETTI NG TIME BARRED AND FURTHER WHEN ASSESSEE WAS ABOUT TO FILE THESE DOCUMENTS BEFORE LD. CIT(APPEALS), LD. CIT(APPEALS) PASSED THE EX-PARTE ORDER AND DISMISSE D THE APPEAL OF THE ASSESSEE. HE HAS, THEREFORE, PRA YED 5 THAT THESE EVIDENCES MAY BE ADMITTED FOR HEARING. THE LD. DR OBJECTED TO THE ADMISSION OF THE SAME AT THI S STAGE AND SUBMITTED GENUINENESS OF SAME IS DOUBTFUL . 7(I) CONSIDERING THE RIVAL SUBMISSIONS, WE DO NOT F IND ANY JUSTIFICATION TO ADMIT THE ADDITIONAL EVIDENCE. THE ASSESSEE FILED PHOTO COPY OF THE RECEIPT THROUGH WH ICH RS. 31 LACS ALLEGED TO HAVE BEEN RETURNED BY THE ASSESSEE TO THE PURCHASER ON 25.05.2009, 14.07.2009 AND 11.08.2009. THE ASSESSEE HAS, HOWEVER, FAILED TO EXPLAIN THAT WHEN SUBSTANTIAL AMOUNT WAS RETURNED T O THE PURCHASER, WHY NO RECEIPTS HAVE BEEN TAKEN BY T HE ASSESSEE FROM THE PURCHASER ON DIFFERENT DATES AND WHY A COMMON RECEIPT HAS BEEN ALLEGED TO HAVE BEEN EXECUTED LATER ON IN ONE DAY. THE CONTENTS OF THE RECEIPT ITSELF ARE, THEREFORE, DOUBTFUL AND AGAINST THE HUMAN PROBABILITY. IT IS UNBELIEVABLE THAT THE ASS ESSEE ON RETURNING THE SUBSTANTIAL AMOUNT ON DIFFERENT DA TES, DID NOT TAKE ANY RECEIPT FROM THE PURCHASER. THERE IS ALSO NO CANCELLATION AGREEMENT TO THE EFFECT AND EV EN NO ENDORSEMENTS HAVE BEEN MADE ON THE AGREEMENT ITSELF REGARDING CANCELLATION OF THE AGREEMENT. THE COPY OF THE BANK ACCOUNT REVEALED THAT ON DIFFERENT DATES F ROM MAY, 2009 TO AUGUST, 2009, ASSESSEE MADE DIFFERENT WITHDRAWALS FROM THE BANK ACCOUNTS. IT IS NOT EXPL AINED WHEN THE AGREEMENT TO SELL WAS CANCELLED, WHY THE AMOUNT WAS NOT RETURNED ON ONE DAY AND WHY ASSESSEE WAS WITHDRAWING THE AMOUNT FROM THE BANK ACCOUNT FO R 6 SEVERAL MONTHS. THIS EXPLANATION OF THE ASSESSEE W AS NEVER FILED BEFORE THE AUTHORITIES BELOW AND NO REA SONS HAVE BEEN EXPLAINED WHY NO STEPS HAVE BEEN TAKEN BEFORE THE AUTHORITIES BELOW FOR FILING THESE DOCUM ENTS. THE CONDUCT OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW CLEARLY SHOW THAT ASSESSEE WAS MOST NEGLIGENT AND D ID NOT COOPERATE WITH THE AUTHORITIES BELOW AND REMAIN ED EX-PARTE AND AS SUCH, WE DO NOT FIND ANY CAUSE FOR ADMISSION OF THESE ADDITIONAL EVIDENCES, WHICH ITSE LF ARE HIGHLY DOUBTFUL AND NOT RELEVANT. THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE IS ACCORDINGLY, REJECTED. 7(II) THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED TH AT AFFIDAVITS OF THE WITNESSES WERE FILED IN SUPPORT O F THE EXECUTION OF THE AGREEMENT TO SELL. HOWEVER, THE AFFIDAVITS OF THE WITNESSES FILED BEFORE THE AUTHOR ITIES BELOW SHOW THAT THE WITNESSES HAVE NOT MADE ANY STATEMENT IN THE AFFIDAVIT IF ANY AMOUNT HAS BEEN G IVEN AS ADVANCE BY THE PURCHASER SHRI BAINT SINGH. THEREFORE, IN THE ABSENCE OF ANY SOURCE EXPLAINED THROUGH THE AGREEMENT TO SELL, THE AFFIDAVITS OF TH E WITNESSES WOULD NOT SERVE ANY PURPOSE. WHEN ASSESSEE'S COUNSEL WAS ASKED TO EXPLAIN THE SOURCE OF RECEIPT I.E. WHEN AND HOW ADVANCE MONEY WAS RECEIVE D, LD. COUNSEL FOR THE ASSESSEE REFUSED TO EXPLAIN THE SAME BEFORE ASSESSING OFFICER AND ASSESSEE DID NOT APPEA R TO EXPLAIN THE SOURCE OF THE BANK DEPOSITS. THE ASSES SEE 7 HAS NOT MADE ANY EFFORT BEFORE LD. CIT(APPEALS) TO PRODUCE HIMSELF FOR EXAMINATION ON OATH BY THE ASSESSING OFFICER THEREFORE, THE CRUX OF THE FINDIN GS OF THE AUTHORITIES BELOW WOULD SHOW THAT ASSESSEE DID NOT COOPERATE BEFORE THE AUTHORITIES BELOW IN FINALIZAT ION OF THE MATTER AND DID NOT EXPLAIN THE SOURCE OF THE CA SH DEPOSITS IN THE BANK ACCOUNTS. THE STORY PROPOUNDE D BY THE ASSESSEE WAS NOT SUBSTANTIATED BY ANY EVIDEN CE OR MATERIAL ON RECORD. IN THE ABSENCE OF ANY SATISFACTORY EXPLANATION, WE ARE NOT INCLINED TO IN TERFERE WITH THE ORDERS OF AUTHORITIES BELOW. 7(III) THE LD. COUNSEL FOR THE ASSESSEE LASTLY CONT ENDED THAT THE WITHDRAWALS OF THE ASSESSEE FROM THE BANK ACCOUNT SHOULD ALSO BE CONSIDERED WHICH REMAINED UNUTILIZED. HOWEVER, FOR THE SAME PROPOSITION ALSO , NO EVIDENCE OR MATERIAL HAVE BEEN FIELD BEFORE THE AUTHORITIES BELOW TO SUBSTANTIATE THE SAME. IN THE ABSENCE OF ANY COGENT AND RELIABLE EVIDENCE ON RECO RD, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING O F FACT RECORDED BY THE AUTHORITIES BELOW. WE, THEREFORE, DO NOT FIND ANY MERIT IN GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE. SAME IS ACCORDINGLY, DISMISSED. 8. ON GROUND NO. 3, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 1,00,535/- ON ACCOUNT OF UNEXPLAINED PAYMENT THROUGH CREDIT CARD. THE ASSESSEE MADE PAYMENT OF RS. 2,34,535/- THROUGH CREDIT CARD. THE ASSESSING OFFI CER ASKED THE ASSESSEE TO EXPLAIN SOURCE OF THE PAYMENT . 8 THE DETAILS FILED ON RECORD SHOW THAT PAYMENT OF RS. 1,34,000/- HAVE BEEN MADE BUT ASSESSEE COULD NO T PROVE THE SOURCE OF THE BALANCE AMOUNT OF RS. 1,00,535/-. THEREFORE, SAME WAS TREATED AS UNEXPLA INED INCOME OF THE ASSESSEE. NO SUBMISSIONS HAVE BEEN MADE BEFORE LD. CIT(APPEALS), THEREFORE, THIS GROUN D WAS DISMISSED. SAME IS THE POSITION BEFORE US BECAUSE LD. COUNSEL FOR THE ASSESSEE DID NOT MAKE ANY EXPLANATI ON AND DID NOT FILE ANY EVIDENCE TO EXPLAIN THIS ADDIT ION. THEREFORE, GROUND NO. 3 OF APPEAL OF THE ASSESSEE I S DISMISSED. 9. ON GROUND NO.4, ASSESSEE CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN PASSING THE IMPUGNED ORDER WITH OUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD. 9(I) THE IMPUGNED ORDER REVEALED THAT APPEAL WAS ADJOURNED FIVE TIMES ON THE REQUEST OF THE ASSESSEE AND ON THE LAST DATE OF HEARING, WHEN THE MATTER WAS ADJOURNED ON THE REQUEST OF ASSESSEE/COUNSEL FOR ASSESSEE, NOBODY ATTENDED THE PROCEEDINGS BEFORE LD . CIT(APPEALS) AND NO ADJOURNMENT WAS SOUGHT FOR AND EVEN NO WRITTEN SUBMISSIONS HAVE BEEN FILED. THERE FORE, THERE IS NO DENIAL OF REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THE ASSESSEE HAS NOT EXPLAI NED THROUGH ANY RELIABLE OR COGENT EVIDENCE THAT WHY ON THE LAST DATE OF HEARING, ASSESSEE COULD NOT APPEAR BEF ORE THE LD. CIT(APPEALS) FOR ARGUING THE APPEAL. IN TH E ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD, WE A RE 9 NOT INCLINED TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW. THE LD. CIT(APPEALS) PASSED THE ORDER AFTER GIVING REASONABLE AND SUFFICIENT OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, THERE I S NO MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. SA ME IS ACCORDINGLY DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN ) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD