Ram Avtar Bansal, New Delhi V. ITO, New Delhi

ITA 2968/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97624 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 07-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAN KANT GARG
• Assessee Lawyers: RAM AVTAR SINGH
• Keywords: Assessment record; Onus to prove
• Section: 37(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 2968 /DEL/201 5 AY: 20 08 - 09 SH. RAM AVTAR BANSAL VS. ITO, WARD 61(1) C 2/23, WEST ENCLAVE NEW DELHI PITAMPURA NEW DELHI 110 034 PAN: AAIPB 0755 D (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAM AVTAR SINGH , ADV. RESPONDENT BY : SH.RAMAN KANT GARG, SR.D.R. ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 27.4.2015 OF LD.CIT(A) - 20, NEW DELHI FOR ASSESSMENT YEAR 20 08 - 09 . THIS IS A SECOND ROUND OF APPELLATE PROCEEDINGS. IN THE FIRST ROUND THE TRIBUNAL HAD SET ASIDE THE MATTER BY HO LDING AS UNDER. 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS PER THE ASSESSEE S STATEMENT, THERE WAS A SALE AGREEMENT OF RS.22 LACS AND THE AMOUNT OF CASH WAS RECEIVED AS ADVANCE AGAINST THE SALE AGREEMENT. HOWEVER, AS PER ASSESSEE S STATEMENT, THIS DEAL WAS CANCELLED AND SUBSEQUENTLY, THE REPAYMENT OF THIS ADVANCE WAS MADE. THERE IS NOTHING ON RECORD TO ESTABLISH THESE FACTS. THERE IS NO CASH WITHDRAWAL IN HARI SINGH S ACCOUNT. COPY OF HARI SINGH BANK ACCOUNT KEPT AT STATE BANK OF PATIALA, POOTH KALAN BRANCH, SHOWS A TRANSFER ENTRY OF RS.10,21,350/ - ON 06.07.2007 TO ACCOUNT NO.0098516503750. THERE IS ALSO NO EVIDENCE HOW THIS DEAL WAS CANCELLED AND HOW THIS AMOUNT WAS RETURNED BACK. THESE FACTS NEE D FURTHER VERIFICATION AS THE CLAIM OF REPAYMENT IS SPREADING OVER THREE YEARS STARTING FROM 20.03.2008 TO 25.01.2010. FURTHER 2 THE PERSON WITH WHOM THE AGREEMENT TO SELL WAS ENTERED INTO DOES NOT SHOW ANY CASH WITHDRAWAL DURING THE RELEVANT PERIOD. IN WHOS E ACCOUNT THE AMOUNT OF RS.10,21,350/ - WAS TRANSFERRED AND WHETHER THAT PERSON TO WHOM MONEY WAS TRANSFERRED HAS ANY CASH WITHDRAWAL. NO EVIDENCE / DOCUMENTS AVAILABLE ON RECORD TO SUBSTANTIATE THE CLAIM OF ASSESSEE. HOWEVER, IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPROPRIATE TO REMAND THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR VERIFYING THE CLAIM OF THE REPAYMENT OF THE AMOUNT AND ALSO THE CLAIM REGARDING THE CASH WITHDRAWAL IN THE ACCOUNTS OF THE PERSON OR FAMILY MEMBERS WITH WHOM THE AGREE MENT TO SELL WAS ENTERED INTO. THEREFORE, FOR THIS LIMITED PURPOSE, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ISSUE HAS BEEN RESTORED TO THE FILE OF THE AO, FOR LIMITED PURPOSES. THE ISSUES ON WHICH VERIFICATION WAS DIRECTED BY THE ITAT ARE: ( I ) EVIDENCE THAT THE DEAL IN QUESTION WAS SUBSEQUENTLY CANCELLED AND THE ADVANCE WAS REPAID HAD TO BE VERIFIED; ( II ) HOW THE DEAL WAS CANCELLED AND HOW THE AMOUNT IN QUESTION WAS RETURNED; ( III ) THE PERSONS TO W HOM AGREEMENT TO SELL WAS ENTERED INTO DOES NOT SHOW ANY CASH WITHDRAWAL DURING THE PERIOD; ( IV ) IN WHOSE ACCOUNT THE AMOUNT OF RS.10,21,350/ - WAS TRANSFERRED AND WHETHER THAT PERSON TO WHOM MONEY WAS TRANSFERRED HAS ANY CASH WITHDRAWAL; ( V ) THE ASSESSEE FURNISH ED THE FOLLOWING DOCUMENTS BEFORE THE AO : (A) COPY OF AGREEMENT TO SELL BETWEEN SMT. DARSHANA DEVI, THE MOTHER OF THE ASSESSEE AND HER SON. ( B ) PHOTO COPY OF TI TLE DEED OF THE PLOT AT ROHTAK ; ( C ) DEATH CERTIFICATE O F SH. HARI SINGH WHO EXPIRED ON 21.9.2010; ( D ) LAST SCRUTINY ASSESSMENT ORDER OF SH. HARI SINGH; ( E ) UCO BANK CERTIFICATE OF SMT.DARSHANA DEVI WHERE SHE IS THE FIRST JOINT HOLDER AND THE ASSESSEE IS THE SECOND JOINT HOLDER OF SB A/C NO.9914; 3 ( F ) COPY OF THE BANK ACCOUNTS IN WHICH WITHDRAWALS ARE MADE ; ( G ) AFFIDAVIT OF SHR I CHAND RAM S/O SHRI HARI SINGH R/O F 295, KRISHAN VIHAR, NEW DELHI 110 041 CONFIRMING RECEIPT OF PAYMENT OF ADVANCE. 3. MR.CHAND RAM S/O SHRI HARI SINGH WAS PRODUCED BEFORE THE A.O. HE WAS EXAMINED BY THE ITO, WARD 37(1) AND MR. CHAND RAM CONFIRMED THAT PRIOR TO DEATH OF HIS FATHER ON 21.10.2009 , HE HAD RECEIVED RS.5 LAKHS ON 23.9.2008 AND THAT MR.HARI SINGH ALSO RECEIVED RS.6 LAKHS IN TWO INSTALMENTS OF RS.4.2 LAKHS ON 18.11.2009 AND RS.1.5 LAKHS ON 25.1.2010. 4. THE LD.CIT(A) HAS CONFIRMED THE ADDITION ON THE GROUND THAT, THE SOURCES OF FUNDS IN THE HANDS OF SHRI HARI SINGH WERE UNEXPLAINED. IN MY VIEW THE ASSESSEE IN THIS CASE HAS PRODUCED ALL NECESSARY EVIDENCES IN SUPPORT OF HIS CLAIM THAT THE AMOUNT IN QUESTION WAS RECEI VED ON AN AGREEMENT TO SELL THE PROPERTY TO ONE MR.HARI SINGH. IN MY VIEW THE ASSESSEE HAS DISCHARGED THE INITIAL BURDEN OF PROOF THAT LAY ON HIM. MR.HARI SINGH IS AN ASSESSE AND A COPY OF HIS ASSESSMENT RECORD HAS BEEN FILED BEFORE THE A.O. EXCEPT FOR NOT BELIEVING THE VERSION OF THE ASSESSEE, THE REVENUE HAS NOT DONE ANY INVESTIGATION INTO THE AFFAIRS OF MR.HARI SINGH. AN AFFIDAVIT OF MR.C HAND RAM AND THE STATEMENT RECORDED BY THE A.O. IN CROSS EXAMINATION OF MR.C HANDRAM ARE SUFFICIENT EVIDENCES TO P ROVE RETURN OF THE ADVANCE IN QUESTION. IF TH E BANK WITHDRAWALS ARE DOUBTED , THEN ACTION SHOULD HAVE BEEN INITIATED AGAINST HARI SINGH OR THE LEGAL HEIRS , WHO ARE CONFIRMING THE TRANSACTIONS AND NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. IN ANY EVENT SALE OF THE PROPERTY WAS BY SMT.DARSHANA DEVI W/O SH KULWANT RAI BANSAL. THE BANK ACCOUNT STANDS IN HER NAME AND MR.RAMAVATAR BANSAL IS A JOINT ACCOUNT HOLDER. WHEN THE SALE IS NOT DISPUTED, AND THE SOURCE IS DISPUTED, AN ADDITION CAN BE MADE O NLY IN THE HANDS OF SMT.DARHSNA DEVI AND NOT IN THE HANDS OF THE ASSESSEE. FOR ALL THESE REASONS THE ADDITION IN QUESTION IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 4 5 . IN THE RESULT, THE APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONO UNCED IN THE OPEN COURT ON 1 4 T H OCTOBER ,2015. S D / - (J.SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED: THE 1 4 T H OCTOBER , 2015 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR