Smt. Gurcharan Kaur, Jagadhari V. ITO, W-5, Yamunanagar

ITA 311/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8002 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN
• Keywords: Unexplained cash credit; Source of fund; Additional evidence; Set aside
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 311/CHD/2019 / ASSESSMENT YEAR : 2010-11 SMT. GURCHARAN KAUR W/O SHRI DALJEET SINGH, P.P. MEHLANWALI, TEHSIL JAGADHARI, YAMUNANAGAR VS. THE ITO, WARD-5, YAMUNANAGAR ./PAN NO. BOQPK0011N / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI TEJ MOHAN SINGH, (PROXY COUNSEL FOR SHRI SUDHIR SEHGAL) ' ! / REVENUE BY : SH. ARVIND SUDERSHAN, SR. DR # $ % /DATE OF HEARING : 01.01.2020 &'() % / DATE OF PRONOUNCEMENT : 01. 01.2020 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 23.01.2019 OF THE COMMISSIONER OF INCOM E TAX (APPEALS)-3, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-3, HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT AND THEREBY UPHOLDING ITA NO. 311/CHD/2019- SMT. GURCHARAN KAUR, YAMUNANAGAR 2 THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT AMOUNTING TO RS. 5 LACS AS PER PARA 3.3. OF HER ORDER. 2. THAT THE LD. CIT(A)-3, LUDHIANA HAS ERRED IN NOT CONSIDERING THAT THE APPELLANT HAD SUFFICIENTLY DISCHARGED HER ONUS OF PROVING THE GENUINENESS OF THE ADVANCE OF RS. 5,00,000/- RECEIVED BY HER HUSBAND FROM SH. SARDAR SINGH BY WAY OF FURNISHING HIS AFFIDAVIT AND HIS STATEMENT RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THAT THE LD. CIT(A)-3, LUDHIANA HAS ERRED IN HOLDING THAT THE ASSESSEE WAS REQUIRED TO PROVE THE CREDIT WORTHINESS OF SH. SARDAR SINGH AS THE PROVISIONS OF SECTION 68 WERE NOT APPLICABLE AS THE TRANSACTION OF THE ASSESSEE. 4. WITHOUT PREJUDICE TO GROUND NO. 3 ABOVE AND EVEN OTHERWISE, THE LD. CIT(A), LUDHIANA HAS ERRED IN REJECTING THE EVIDENCE PROVING THE SOURCE OF FUNDS OF SH. SARDAR SINGH ON TECHNICAL GROUNDS UNDER RULE 46A WITHOUT APPRECIATING THE CAUSE OF JUSTICE FOR THE ASSESSEE. 5. THAT THE APPEAL OF THE APPELLANT HAS BEEN REJECTED AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE SUBMISSION FILED DURING THE COURSE OF HEARING HAS NOT BEEN CONSIDERED PROPERLY. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. ITA NO. 311/CHD/2019- SMT. GURCHARAN KAUR, YAMUNANAGAR 3 3. THE SOLE ISSUE RAISED IN THIS APPEAL IS REGARDIN G THE ADDITION OF RS. 5 LACS MADE INTO THE INCOME OF THE ASSESSEE BY THE ASSESSING OFFICER AND FURTHER CONFIRMED BY THE CIT(A) ON ACCOUNT OF UNEXP LAINED CASH CREDITS. 4. THE CASE OF THE ASSESSEE HAS BEEN THAT THE SAID AMOUNT OF RS. 5 LACS WAS RECEIVED BY HER FROM HER HUSBAND SHRI DALJ EET SINGH. THE ASSESSING OFFICER MADE THE IMPUGNED ADDITION OBSERV ING THAT ASSESSEE COULD NOT PROVE THE CREDITWORTHINESS OF HER HUSBAND SHRI DALJEET SINGH. IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE SOURCE OF THE DEPOSIT OF RS. 5 LACS INTO T HE ACCOUNT OF THE ASSESSEE WAS FROM EARNEST MONEY RECEIVED BY THE HUS BAND OF THE ASSESSEE FOR SALE OF HIS AGRICULTURAL LAND. THE ASS ESSEE ALSO SOUGHT TO PRODUCE THE ADDITIONAL EVIDENCE IN THIS RESPECT TO EVEN PROVE THE SOURCE OF SOURCE. HOWEVER, THE LD. CIT(A) REJECTED THE SA ID EVIDENCES ON THE GROUND THAT THE ASSESSEE HAD NOT PRODUCED THE SAME DURING THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICE R. HE, FURTHER OBSERVED THAT THERE WAS NO SPECIFIC REQUEST BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 5. THE LD. PROXY COUNSEL OF THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSEE FROM THE VERY BEGINNING HAS SUBMITTED THAT THE AFORESAID AMOUNT OF RS. 5 LACS WAS DEPOSITED BY THE HUSBAND S HRI DALJEET SINGH INTO HER ACCOUNT WHICH WAS THE AMOUNT RECEIVED FROM SHRI SARDAR SINGH AS ADVANCE AGAINST SALE OF LAND. HOWEVER, THE SAID PLEA OF THE ASSESSEE ITA NO. 311/CHD/2019- SMT. GURCHARAN KAUR, YAMUNANAGAR 4 HAS BEEN REJECTED BY THE LOWER AUTHORITIES ON THE G ROUND THAT THE ASSESSEE COULD NOT PROVE THE CREDITWORTHINESS OF T HE SAID SHRI SARDAR SINGH FROM WHOM THE AMOUNT WAS RECEIVED BY HER HUS BAND. THAT SINCE SHRI SARDAR SINGH WAS A THIRD PERSON, HENCE, UNDER THE CIRCUMSTANCES, THE ASSESSEE WAS NOT EXPECTED TO PROVE THE CREDITWO RTHINESS OF SHRI SARDAR SINGH. HOWEVER, LATER ON, DURING THE APPELLA TE PROCEEDINGS, THE ASSESSEE SOUGHT TO PROVE THE CREDITWORTHINESS OF SH RI SARDAR SINGH. THAT THE EVIDENCE SOUGHT TO BE PRODUCED REGARDING THE SA LE OF AGRICULTURAL PRODUCE BY SHRI SARDAR SINGH WERE VERY MUCH NECESSA RY AND HAVE TO BE LOOKED INTO BY THE LD. CIT(A). 6. THE LD. DR, ON THE OTHER HAND, HAS RELIED ON TH E FINDINGS OF THE LOWER AUTHORITIES. 7. AFTER CONSIDERING THE ABOVE SUBMISSIONS OF THE P ROXY COUNSEL FOR THE ASSESSEE AND HEARING THE LD. DR, I AM OF THE V IEW, THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE EVIDENCE FURNISHED BY THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF SHRI SARD AR SINGH WHO WAS A THIRD PERSON. THE POWERS OF THE CIT(A) ARE CO-TERMI NUS WITH THAT OF THE ASSESSING OFFICER AND UNDER THE CIRCUMSTANCES, THE LD. CIT(A) WAS SUPPOSED TO CONSIDER THE ENTRE FACTS AND CIRCUMSTAN CES ESPECIALLY WHEN THE PLEA OF THE ASSESSEE HAS BEEN REJECTED ON THE G ROUND THAT THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF SOURCE. IN VIEW OF THE ABOVE, THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECISION ITA NO. 311/CHD/2019- SMT. GURCHARAN KAUR, YAMUNANAGAR 5 AFRESH ON THE SAID ISSUE AFTER GIVING PROPER OPPORT UNITY TO THE ASSESSEE TO PRODUCE THE RELEVANT EVIDENCES AND AFTER DULY CO NSIDERING THE SAME. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT IMM EDIATELY ON COMPLETION OF HEARING ON 01.01.2020. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 01.01.2020 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR