ITO, New Delhi V. Sh. Bhupender Kumar, Delhi

ITA 3025/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7466 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Unexplained cash credit
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A, NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.3025 /DEL/2013 ASSESSMENT YEAR : 2009-10 ITO, WARD 37(4), VS. SHRI BHUPENDER KUMAR, NEW DELHI F-182, DILSHAD COLONY, DELHI-110 093 GIR / PAN:AATPK4674K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y KAKKAR, DR RESPONDENT BY : SHRI MANOJ GUPTA, CA ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORD ER OF LD. CIT(A) DATED 22.02.2013. THE REVENUE IS AGGRIEVED WITH TH E ACTION OF LD. CIT(A) BY WHICH HE HAD DELETED THE ADDITION OF RS.18 LACS WHICH WAS MADE BY A.O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT ON THE BASIS THAT IDENTITY AND GENUINENESS OF TRANSACTION WITH M/S. SKYTECH BUILDC ON PVT. LTD. FROM WHOM THE SAID AMOUNT WAS CLAIMED TO HAVE BEEN RECEIVED I N CASH, WAS NOT ESTABLISHED. 2. AT THE OUTSET, LD. D.R. SUBMITTED THAT FINDINGS OF LD. CIT(A) THAT IT WAS NOT A CASH CREDIT, IS NOT CORRECT AS THE AMOUNT WAS RECEIVED BY THE ASSESSEE WHICH STOOD UNEXPLAINED AND, THEREFORE, TH E PROVISIONS OF SECTION 68 WERE RIGHTLY ATTRACTED. SHE FURTHER ELABORATED THAT IT DOES NOT MATTER AS TO THE FACT THAT AMOUNT WAS RECEIVED AGAINST EARLIER A DVANCES GIVEN BY ASSESSEE ITA NO.3025/DEL/2013 2 AND THE FACT REMAIN THAT ASSESSEE HAD RECEIVED CASH OF RS.18 LACS FROM A COMPANY THE GENUINENESS AND IDENTITY OF WHICH WAS N OT PROVED. SHE CITED CASE LAW OF SUMATI DAYAL REPORTED AT 214 ITR 801 FO R THE PROPOSITION THAT HUMAN PROBABILITY HAS TO BE KEPT IN MIND WHILE DECI DING AN ISSUE. SHE ARGUED THAT ASSESSEE WAS NOT ABLE TO SUBSTANTIATE T HE RECEIPT OF CASH AS THE NOTICE ISSUED U/S 133(6) HAD RETURNED BACK UNSERVED AND INSPECTOR DEPUTED BY A.O. HAD ALSO CONFIRMED THAT NO SUCH COMPANY EXI STED ON THE ADDRESS GIVEN IN THE CONFIRMATION LETTER FILED BY ASSESSEE. 3. LD. A.R. ON THE OTHER HAND SUBMITTED THAT ASSESS EE WAS A DOCTOR BY PROFESSION AND HE HAD GIVEN ADVANCE TO M/S. SKYTECH BUILDCON PVT. LTD. IN 2006 WHICH WAS RECEIVED BACK IN THE YEAR UNDER CONS IDERATION. IN THIS RESPECT, OUR ATTENTION WAS INVITED TO PAPER BOOK PA GE 25 WHERE A COPY OF CONFIRMATION WAS PLACED. LD. A.R. ALSO INVITED OU R ATTENTION TO PAPER BOOK PAGE 19 WHERE A COPY OF BALANCE SHEET OF ASSESSEE W AS PLACED IN WHICH THE SAID ADVANCE WAS MENTIONED ON THE ASSETS SIDE OF TH E BALANCE SHEET. SIMILARLY WE WERE TAKEN TO PAPER BOOK PAGE 21 WHERE THE SAME ADVANCE WAS OUTSTANDING AS ON 31.03.2008 IN THE BALANCE SHEET O F THE ASSESSEE. THEREFORE, IT WAS SUBMITTED THAT RECEIPT OF ONES O WN MONEY GIVEN TO ANOTHER PERSON CANNOT BE REGARDED AS CASH CREDIT AS ENVISAGED U/S 68 OF THE ACT. LD. D.R. IN REJOINDER SUBMITTED THAT EVEN DUR ING REMAND PROCEEDINGS, THE ASSESSEE COULD NOT PRESENT THE PRINCIPAL OFFICE R OF THE COMPANY. LD. A.R. SUBMITTED THAT THE COUNSEL OF M/S. SKYTECH BUILDCON PVT. LTD. HAD GONE TO A.O. ON 30.01.2013 WITH COMPLETE CONFIRMATION WHICH HE HAD FILED ON THE SAME DAY BUT THE A.O. HAD NOT CONSIDERED THE SAME A ND HAD ISSUED REMAND REPORT DATED 31.01.2013 WITHOUT CONSIDERING THE SUB MISSIONS OF THE COUNSEL ITA NO.3025/DEL/2013 3 OF M/S. SKYTECH BUILDCON PVT. LTD. IN THIS RESPEC T OUR ATTENTION WAS INVITED TO PAPER BOOK PAGE 36. 4. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT PAPER BOOK PAGE 36 IS A CO PY OF LETTER FILED BY COUNSEL OF M/S. SKYTECH BUILDCON PVT. LTD. WHEREIN HE HAD SUBMITTED COMPLETE COPY OF LEDGER ACCOUNT OF THE ASSESSEE WHE REIN DATE WISE RECEIPTS AS ADVANCE FOR JAIPUR PROJECT WAS MENTIONED. IT IS ALSO MENTIONED IN THE ABOVE SAID LETTER THAT ADVANCE WAS REFUNDED IN FINA NCIAL YEAR 2008-09. HOWEVER, THE A.O. WITHOUT CONSIDERING THIS LETTER S UBMITTED HIS REMAND REPORT DATED 31.01.2013 WHICH IS PLACED AT PAPER BO OK PAGES 30-32 WITHOUT TAKING NOTE OF THE SAID LETTER. LD. CIT(A) AFTER A PPRECIATING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, HAS ALLOWED RELIEF T O THE ASSESSEE BY HOLDING AS UNDER 4. I HAVE CONSIDERED THE GROUNDS RAISED IN APPEAL AND THE SUBMISSIONS OF THE AR OF THE APPELLANT. I HAVE PERU SED THE ASSESSMENT ORDER DATED 16.12.2011 AND VARIOUS DETAILS SUBMITTE D BY THE APPELLANT IN THE COURSE OF APPELLATE PROCEEDINGS. I HAVE CONS IDERED THE WRITTEN SUBMISSIONS OF THE APPELLANT, REMAND REPORT OF THE ASSESSING OFFICER, REPLY TO REMAND REPORT OF THE APPELLANT AND OTHER D OCUMENTS FILED BEFORE ME DURING THE COURSE OF APPELLATE PROCEEDING S. ON PERUSAL OF THE MATERIAL ON RECORD IT IS UNDISPUTED FACT THAT A PPELLANT HAS ADVANCED A SUM OF RS. 18 LAC TO M/ S SKY TECH BUILD CON PVT. LTD. IN THE FINANCIAL YEAR 2006-2007 BY ACCOUNT PAYEE CHEQU ES. AS PER CONFIRMATION FILED BEFORE ME OF M/ S SKY TECH BUILD CON PVT. LTD. WHEREIN IT HAS CATEGORICALLY BEEN SHOWN THAT THE CO MPANY HAS PAID RS. 13 LAC IN CASH TO THE APPELLANT ON 27.04.2008 A ND RS. 5 LAC ON 05.10.2008 AND THE BALANCE OUTSTANDING AS ON 31.03. 2009 IS RS.NIL. FURTHER SERVICE OF THE NOTICE OF THE INCOME TAX OFF ICER ON THE COMPANY, NAMELY, M/S. SKY TECH BUILDCON PVT. LTD. T HROUGH INSPECTOR AND THE CONFIRMATION OF THE COMPANY AS DISPATCHED T O THE INCOME TAX OFFICER THROUGH SPEED POST ON 30.01.2013 IN VIEW OF THE CIRCUMSTANCES MENTIONED IN THE AFFIDAVIT OF SH. AJAY KUMAR AGARWA L, LEAVES NO ROOM TO DOUBT THE GENUINENESS OF THE TRANSACTIONS CARRIE D OUT BETWEEN THE ITA NO.3025/DEL/2013 4 APPELLANT AND THE COMPANY. FURTHER ASSESSING OFFICE R HAS MADE THE ADDITION OF RS. 18 LAC UNDER SECTION 68 OF THE ACT WHEREAS SECTION 68 DEALS WITH UNEXPLAINED CASH CREDIT WHICH IS NOT THE CASE HERE BECAUSE THE APPELLANT HAS NOT RECEIVED ANY FRESH MONEY WHIC H HAS NOT BEEN EXPLAINED BY HIM, RATHER IT IS A CASE WHERE THE AMO UNT WAS ADVANCED BY THE APPELLANT AND THE SAME HAS BEEN RECEIVED BAC K BY THE APPELLANT DURING THE YEAR UNDER APPEAL AND THEREFORE ALSO ADD ITION MADE BY THE ASSESSING OFFICER OF RS. 18 LAC UNDER SECTION 68 OF THE ACT CANNOT BE SUSTAINED. 5. IN VIEW OF THE DOCUMENTS FILED AND THE FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT IT IS NOT CORRECT TO MAKE ADD ITION OF RS. 18 LAC IN THE RETURNED INCOME OF THE APPELLANT AND THEREFORE, ADDITION MADE OF RS. 18 LAC IS HEREBY DELETED. APPEAL IS ALLOWED. IN THE RESULT, THE APPEAL IS ALLOWED. 5. WE FIND THAT LD. CIT(A) HAS PASSED A WELL REASON ED AND SPEAKING ORDER AND WE DO NOT FIND ANY INFIRMITY IN THE SAME. 6. IN VIEW OF ABOVE, APPEAL FILED BY THE REVENUE IS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DEC., 2014. SD./- SD./- ( I. C. SUDHIR) (T.S. KAPOOR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 19 TH DEC., 2014 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.3025/DEL/2013 5 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FI LE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER