Shri Rajeev Rastogi, Meerut V. ACIT, Meerut

ITA 3088/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6459 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 17-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3088/DEL./2017 (ASSESSMENT YEAR : 2012-13) SHRI RAJEEV RASTOGI, VS. ACIT, CIRCLE 2, D 18, SAMRAT PALACE, MEERUT. GARH ROAD, MEERUT. (PAN : AAMPR8281L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAVINDRA AGGARWAL, FCA SHRI ROHIT AGGARWAL, FCA REVENUE BY : SHRI S.S. RANA, CIT DR SHRI YOGESH SHARMA, SENIOR DR DATE OF HEARING : 08.01.2019 DATE OF ORDER : 16.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI RAJEEV RASTOGI (HEREINAFTER REF ERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGH T TO SET ASIDE THE IMPUGNED ORDER DATED 22.03.2017 PASSED BY LD. CIT (APPEALS), MEERUT QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUN DS INTER ALIA THAT :- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) (HEREINAFTER REFERRED TO AS LD. CIT 9AA) HAS ERRE D IN LAW AS WELL AS ON THE FACTS BY CONFIRMING THE ADDITION OF RS.23 ,70,000/- AS ITA NO.3088/DEL./2017 2 MADE BY THE ACIT, CIRCLE 2, MEERUT (HEREINAFTER REF ERRED TO AS LD. AO) AND THE OBSERVATIONS MADE AND CONCLUSIONS DRAWN BY THE LD. CIT (A) ARE BASED ON INCORRECT APPRECIATION OF FACTS ON RECORDS AND THE SUBMISSIONS OF THE APPELLANT HAVE N OT BEEN CONSIDERED IN THE RIGHT PERSPECTIVE THEREOF. 2. THAT THE LD. CIT (A) HAS ERRED IN LAW AND IN FAC TS OF THE CASE BY UPHOLDING THE ACTION OF THE LD. AO BY OBSER VING THAT THE APPELLANT DID NOT HAVE AVAILABLE CASH WITH HIM TO E XPLAIN THE INTRODUCTION OF CASH TO THE EXTENT OF RS.23,70,000/ - AS HIS CAPITAL. THE OBSERVATIONS SO MADE BY THE CIT(A) ARE DEVOID O F MERITS, FACTUALLY INCORRECT AND ARE BASED ON ASSUMPTIONS AN D ESTIMATIONS. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : THE ASSESSEE IS INTO THE BUSINESS OF WHOLESALE TRADING OF PHARMACEUTICALS UNDER THE NAME AND STYLE OF M/S. R.K. ASSOCIATES. THE ASSESSEE HAS SURRENDERED AN AMOUNT OF RS.40,00,000/- ON ACCOUNT OF CASH DEPOSIT IN THE BA NK NOT DISCLOSED IN THE INCOME-TAX RETURN. THE ASSESSEE HAS MADE AD DITION IN HIS CAPITAL ACCOUNT OF RS.40,00,000/- ON ACCOUNT OF SUR RENDER U/S 143 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) F OR AY 2009-10. AO MADE AN ADDITION OF RS.23,70,000/- ON ACCOUNT OF UNEXPLAINED CASH IN THE BOOKS OF ASSESSEE U/S 68 OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITION BY DISMI SSING THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. ITA NO.3088/DEL./2017 3 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, THE ASSESSEE HAS SURRENDERED AN AM OUNT OF RS.40,00,000/- ON 08.12.2011 AS IS EVIDENT FROM THE ASSESSMENT ORDER DATED 16.12.2011 FOR AY 2009-10. IT IS ALSO NOT IN DISPUTE THAT NETTING OF RS.40,00,000/- HAS ALREADY BEEN GIV EN TO THE ASSESSEE IN THE LOAN ACCOUNT AND SET OFF HAS ALREAD Y BEEN GIVEN WHICH CANNOT CLAIMED TWICE. 6. WHEN THE AO HAS ALREADY GIVEN BENEFIT OF RS.16,3 0,000/- TO THE ASSESSEE AND SURRENDER PERTAINS TO EARLIER YEAR S, AS IS EVIDENT FROM THE STATEMENT OF BANK ACCOUNT MAINTAINED BY TH E ASSESSEE WITH ICICI BANK AND THE AMOUNT ADDED BY THE AO WAS NOT CASH-IN- HAND, THE QUESTION OF HAVING AVAILABILITY OF CASH I N ASSESSEES HAND DOES NOT ARISE. IT IS APPARENT FROM THE BANK STATE MENT THAT THE AO HAS RIGHTLY HELD THAT TOTAL CASH WITHDRAWN FROM THE ACCOUNT BY THE ASSESSEE WAS RS.16,30,000/- AND THE ASSESSEE HAS MA DE THE DEPOSIT IN THE BANK ACCOUNT AS AND WHEN REQUIRED. 7. SO, WHEN FROM THE ASSESSMENT ORDER FOR AY 2009-1 0 IT IS PROVED THAT SURRENDER OF RS.40,00,000/- WAS MADE BY THE ASSESSEE PERTAINING TO BANK DEPOSITS OF RS.72,98,627/-, IN W HICH ACCOUNT THE ITA NO.3088/DEL./2017 4 AMOUNTS WERE FREQUENTLY DEPOSITED, WITHDRAWN AND RE -DEPOSITED, THE AMOUNT OF RS.40,00,000/- SO SURRENDERED WAS CON SIDERED SUFFICIENT TO COVER THESE UNEXPLAINED DEPOSITS IN T HE BANK ACCOUNTS. WHEN ASSESSMENT ORDER PERTAINING TO AY 2009-10 HAS ATTAINED FINALITY, THE AO/CIT (A) HAVE RIGHTLY MADE ADDITION OF RS.23,70,000/- ON ACCOUNT OF CASH REMAINED UNEXPLAI NED IN THE BOOKS OF ASSESSEE U/S 68 OF THE ACT. SO, FINDING N O ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER, PRESENT APPEAL FI LED BY THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 16 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.