Shri Bikram Singh, New Delhi V. DCIT, New Delhi

ITA 2862/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8614 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: C S AGARWAL
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (E-COURT MODULE) ITA NO. 2862/DEL/2017 : ASSTT. YEAR : 2012-13 BIKRAM SINGH, PROP.M/S LOVELIN ENTERPRISE, 8/34, MEHRAM NAGAR, NEW DELHI-110037 VS DCIT, CIRCLE-21(2), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A BKPS5232P ASSESSEE BY : SH. C. S. AGARWAL, SR. ADV. REVENUE BY : MS. RAKHI VIMAL, SR. DR DATE OF HEARING: 16.07.2020 DATE OF PRONOUNCEMENT: 17.07.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-7, NEW DELHI DATED 29.0 3.2017. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. THAT THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 1,50,00,000/-, A SUM RECEIVED AS LOAN FROM SHRI JOGINDER, MERELY BECAUSE IT HAD BEEN INADVERTENTLY CREDITED IN THE BOOKS OF ACCOUNTS IN THE NAME OF SH RI BIRENDER. 2. THAT THE LEARNED CIT(A) HAS OVERLOOKED THAT SHRI BIRENDER WAS AN EMPLOYEE OF THE ASSESSEE AND THE ACCOUNTANT MISTAKENLY INSTEAD OF CREDITING THE CRED IT, NAME OF THE CREDITOR I.E. SHRI JOGINDER, (DESPITE T HE FACT UNDISPUTEDLY THE AMOUNT WAS RECEIVED BY AN ITA NO. 2862/DEL/2017 BIKRAM SINGH 2 ACCOUNT PAYEE CHEQUES FROM SHRI JOGINDER WHO HAPPENED TO BE THE REAL BROTHER OF SHRI BIRENDER) H AS HELD THAT THE APPELLANT HAS UNSUCCESSFULLY TRIED TO WEAVE A NEW STORY TO EXPLAIN THE IMPUGNED TRANSACTION. SUCH A FINDING IS WHOLLY ERRONEOUS AND IS ARBITRARY. 3. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE AFORESAID SUM OF RS. 1,50,00,000/- WAS RECEIVED FROM THE JOINT ACCOUNT OF SHRI JOGINDER AND SMT. KRISHNA DEVI, (MOTHER OF SHRI JOGINDER) THROUGH ACCOUNT PAYEE CHEQUES AND AS SUCH IN VIEW OF AN UNIMPEACHABLE EVIDENCE, THE FINDING RECORDED IS APPARENTLY MISCONCEIVED AND IS ARBITRARY. 4. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT NO ADVERSE INFERENCE COULD B DRAWN TO HOLD THE CREDIT REMAINED AS UNEXPLAINED WHICH COULD BE DRAWN FROM THE STATEMENT OF SHRI BIRENDER (WITHOUT EVEN PROVIDING A COPY THEREOF) AND PRODUCING HIM FOR CRO SS EXAMINATION AND FURTHER THE LEARNED CIT (A) HAS FAILED TO APPRECIATE THAT THE STATEMENT HAS BEEN SELECTIVELY READ WHICH COULD ENABLE HIM TO DRAW AN ADVERSE INFERENCE. 5. THAT THE LEARNED CIT(A) HAS FURTHER OVERLOOKED THAT THE CREDITOR FROM WHOSE BANK ACCOUNT THE AMOUNT WAS RECEIVED AS A LOAN NAMELY SHRI JOGINDER WAS PRODUCED WHO WAS ALSO EXAMINED BY THE CIT(A) AND THAT HE HAD DULY CONFIRMED OF HAVING PROVIDED THE LOAN WHICH SUM WAS RECEIVED BY HIM FROM LAND ACQUISITION COLLECTOR, GURGAON ON ACQUISITION OF HI S LAND AND ALSO ON REALIZATION FROM SAVING BOND SHOWI NG MATURITY AMOUNT OF RS. 3 CRORES ON 29.03.2009. 6. THE FINDINGS OF THE LEARNED CIT(A) BECAUSE THE CREDITOR WAS NOT ASSESSED TO TAX AND BY MERELY FURNISHING OF COPY OF AADHAR NUMBER AND PAN CARD, THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION HAS NOT BEEN ESTABLISHED, IS BY OVERLOOKING THE EVIDENCE FURNISHED I.E. THE SOURCE OF THE CREDIT IN THE ACCOUNT OF CREDITOR AS ALSO THE CONFIRMATION OF THE CREDITOR, WHO HAD PERSONALLY APPEARED AND DEPOSED TO THE EFFECT OF HAVING ITA NO. 2862/DEL/2017 BIKRAM SINGH 3 PROVIDED A LOAN TO THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE. 7. THAT THE FINDING RECORDED BY THE LEARNED CIT(A) IN PARA 4.6 THAT THE AFFIDAVITS FILED OF SHRI. JOGINDE R SINGH AND SMT. KRISHNA DEVI ARE SELF SERVING DOCUMENTS IS MISCONCEIVED BOTH IN LAW AND ON FACTS AND FURTHER IS IN DISREGARD OF THE FACT THAT, THE AFFIDAVIT FILED WAS OF THE CREDITOR (WAS IN THE NAT URE OF CONFIRMATION) AND HAD BEEN ADMITTED AS AN ADDITIONAL EVIDENCE UNDER RULE 46A OF THE IT RULES, WHICH HAD BEEN SUPPORTED BY DOCUMENTARY EVIDENCES [PAGE OF PB FILED BEFORE THE LEARNED CIT(A)] IN SUPPORT THAT THE AMOUNTS ADVANCED WERE OUT OF THE BANK BALANCES AND REPRESENTED COMPENSATION RECEIVED AS WELL AS MATURITY OF BOND AS WAS DULY REFLECTED IN THE BANK ACCOUNT OF THE CREDITOR. 8. THAT THE LEARNED CIT(A) HAS FURTHER ERRED IN SUSTAINING THE ADDITION ON THE BASIS OF THE JUDGMEN T IN THE CASE OF CIT VS. FOCUS EXPORTS PVT. LTD., CIT -II VS. MAF ACADEMY PVT. LTD. AND IN THE CASE OF SUMATI DAYAL VS. CIT, WHICH HAVE ABSOLUTELY NO APPLICATION TO THE FACTS OF THE INSTANT CASE. 9. THE FINDINGS OF THE CIT(A) THAT THE ASSESSEE HAS NOT PROVIDED SATISFACTORY EXPLANATION IS MISCONCEIV ED BOTH ON FACTS AND IN LAW AND OVERLOOKS THE FACTUAL SUBSTRATUM OF THE CASE AND MATERIAL ON RECORD. 3. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. 4. THE ASSESSEE RECEIVED LOAN FROM SMT. KRISHNA DEV I MOTHER OF SH. JOGINDER WHO IS A BROTHER OF SH. BIRENDER. S H. BIRENDER IS WORKING AS AN ACCOUNTANT WITH THE ASSESSEE. THE ASS ESSEE, WITH REGARD TO THE LOAN RECEIVED FROM SMT. KRISHNA DEVI, HAS WRONGLY ENTERED THE NAME OF SH. BIRENDER IN THE BALANCE SHE ET INSTEAD OF SMT. KRISHNA DEVI. THIS MISTAKE OF ENTERING THE NAME OF SH. BIRENDER INSTEAD OF SMT. KRISHNA DEVI HAS BEEN MADE BECAUSE ITA NO. 2862/DEL/2017 BIKRAM SINGH 4 THE CHEQUE OF SMT. KRISHNA DEVI HAS BEEN HANDED OVE R BY SH. BIRENDER TO THE ASSESSEE. DURING THE ASSESSMENT PRO CEEDINGS, THE AO ENQUIRED WITH SH. BIRENDER WHO FEIGNED IGNOR ANCE OF LENDING ANY LOAN TO THE ASSESSEE. BEFORE THE REVENU E AUTHORITIES, IT WAS SUBMITTED TIME AND AGAIN THAT T HE AMOUNT HAS BEEN GIVEN BY SMT. KRISHNA DEVI MOTHER OF SH. V IRENDER. HOWEVER, THE REVENUE AUTHORITIES DID NOT HEED TO TH E SUBMISSION OF THE ASSESSEE AND HELD IT IS CONCOCTED STORY AND MADE ADDITION U/S 68 OF THE INCOME TAX ACT, 1961. 5. THE TRIBUNAL IN THE INTEREST OF JUSTICE HAS GONE THROUGH THE BANK STATEMENTS OF THE ASSESSEE AS WELL AS THE PURP ORTED LENDER NAMELY, SMT. KRISHNA DEVI. WE FIND THAT SMT. KRISHN A DEVI RECEIVED MONEY ON ACCOUNT OF LAND ACQUISITION WHICH HAVE BEEN KEPT AS FDRS AND ON MATURITY, THE AMOUNTS HAVE BEEN GIVEN AS LOAN TO THE ASSESSEE. THE RECEIPT OF MONEY BY THE A SSESSEE IS REFLECTED IN THE BANK STATEMENT OF THE PROP. CONCER N OF THE ASSESSEE NAMELY, M/S LOVELIN ENTERPRISES, OBC A/C N O. 00295010000220 ON 16.03.2012, CHEQUE NO. 20276, THE CORRESPONDING ENTRY IS REFLECTED IN THE BANK STATEM ENT OF SMT. KRISHNA DEVI A/C NO. 2100502307 MAINTAINED IN GURGA ON GRAMIN BANK. HENCE, THE AMOUNTS RECEIVED BY THE AS SESSEE AND THE SOURCES OF THE LENDER HAVE BEEN UNDISPUTEDL Y PROVED. THE REVENUE HAS DECLINED TO ALLOW THE ASSESSEE TO C ORRECT THE ERROR IN THE ENTERING THE NAME OF THE PARTY AND TRE ATED THE SAME AS A FICTIONAL FAIRY-TALE. 6. SINCE, THE BANK STATEMENTS OF THE ASSESSEE HAS B EEN FILED BY THE ORDER OF THE BENCH, IN THE INTEREST OF JUSTI CE, THE REVENUE IS GIVEN THE LIBERTY TO OBTAIN THE OFFICIAL BANK ST ATEMENT FOR ITA NO. 2862/DEL/2017 BIKRAM SINGH 5 VERIFICATION OF THE ENTRIES FOR ITS AUTHENTICITY FR OM THEIR END AND APPROACH THE TRIBUNAL IN CASE OF ANY DISCREPANCY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/07/2020. SD/- SD/- (SUSHMA CHOWLA) (DR. B. R. R. KUMAR) VICE PRESIDENT ACCOU NTANT MEMBER DATED: 17/07/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR