ITO, New Delhi V. Sh. Vipin Aggarwal, Delhi

ITA 3147/DEL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73999 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 22-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 24-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Salary income; Opportunity of being heard; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 3147/DEL/2010 ASSESSMENT YEARS: 2006-07 ITO VS. SHRI VIPIN AGGARWAL WARD -35 (4), 6/104, GALI NO. 4,, NEW DELHI. 60FT. ROAD VISWAS NAGAR, DELHI 110032. PAN: ADIPA4540N (APPELLANT) (RESPONDENT) REVENUE BY : MS. NIDHI SRIVASTAVA, SR.DR. ASSESSEE BY : NONE ORDER PER SHAMIM YAHYA, AM : THIS APPEAL BY THE REVENUE DIRECTED AGAINST THE ORD ER OF LD. CIT (APPEALS), DATED 29.01.2009 AND PERTAINS TO AY 2006 -07. 2. THE ISSUE RAISED IS THAT LD. CIT (A) ERRED IN HO LDING THAT THE AMOUNT OF CASH DEPOSITED BY THE ASSESSEE, REPRESENTS TURNOVER OF THE ASSESSEE ON ACCOUNT OF PURCHASE / SALE OF CLOTH. I.T.A. NO. 3147/DEL/2010 2 3. IN THIS CASE INFORMATION WAS RECEIVED AS PER AIR INFORMATION THAT ASSESSEE HAS DEPOSITED CASH OF RS.51,48,600/- IN ID BI BANK. IN THIS REGARD AO NOTED THAT ASSESSEE HAS SHOWN INCOME FROM BUSINE SS AND PROFESSION AMOUNTING TO RS.75,450/- ON SALE OF RS.8,65,480/-. HE HAS ALSO SHOWN SALARY INCOME OF RS.62,129/-. ENQUIRY WAS MADE BY THE AO R EGARDING CASH DEPOSIT. IN THIS REGARD ASSESSEE MADE THE FOLLOWING REPLY TO THE AO: REGARDING CASH DEPOSIT IN THE BANK ACCOUNT WITH TH E IDBI BANK, IT MAY BE NOTICED FROM THE BANK STATEMEN T THAT THERE IS DEPOSIT IN CASH AND SIMULTANEOUSLY CA SH WITHDRAWALS. IT IS THE SAME CASH WHICH IS BEING CIRCULATED TIME AND AGAIN. THIS ACTIVITY OF DEPOSITING CASH AND SIMULTANEOUSLY WITHDRAWAL IS ATTRIBUTED TO THE MENTAL DEPRESSION A ND UNSTABLE MIND OF THE ASSESSEE, WHO FOUND THE MODE O F DEPOSITING CASH AND ITS WITHDRAWALS AS SELF SOOTING AND GIVING A FEELING THAT HE IS ACTIVELY ASSOCIATES WIT H THE BANK AND BUSINESS. A PERUSAL OF THE BANK STATEMENT WILL SHOW THAT THE PEAK CREDIT AT A GIVEN TIME AFTER TAKING CREDIT FOR THE OPENING BALANCE AS ON 01.04.2005 WAS NEVER MORE THAN RS.1,50,000/- THE SAID SUM OF RS.1,50,000/- ALSO REPRESENTS MONET ARY HELP RECEIVED FROM RELATIVES AS AN ACT OF KIND GEST URE TO A TERMINAL PATIENCE. I.T.A. NO. 3147/DEL/2010 3 HOWEVER WITHOUT PREJUDICE AND NOT ADMITTING THE SAM E AS INCOME FOR THE YEAR, THE ASSESSEE IN ORDER TO BU Y PEACE OF MIND WITH THE DEPTT OFFER THE SAID SUM OF RS.1,5 0,000/- FOR TAXATION AND AS SUCH SURRENDER THE SAME. IN VIE W OF THIS IT IS FURTHER REQUESTED THAT THE RETURN FILED ORIGINALLY MAY BE TREATED AS REVISED ACCORDINGLY. 4. AO WAS NOT SATISFIED WITH THE ABOVE. HE NOTED TH AT CASH DEPOSIT WAS MADE IN THIS ACCOUNT FROM 15 TOWNS ALL OVER INDIA F ROM DIFFERENT DATES HENCE HE DID NOT BELIEVE THE ASSESSEES SUBMISSION. AO CO NCLUDED AS UNDER: AFTER CONSIDERATION OF SURRENDER OF RS.1,50,000/- BY THE ASSESSEE AND RETAIL SALE AMOUNT AS DECLARED IN ITR OF THE ASSESSEE A SUM OF RS.41,33,120/- [RS.51,48,600/- (RS.1,50,000/- + RS.8,65,480/-)] IS ADDED TO THE IN COME OF THE ASSESSEE AS UNEXPLAINED CASH U/S 69A OF THE I.T. ACT IN ADDITION TO SURRENDER AMOUNT OF RS.1,50,000/ - WHICH IS CONSIDERED AND ADDED TO THE INCOME TO THE ASSESSEE SEPARATELY. 5. AGAINST THE ABOVE ORDER ASSESSEE APPEALED TO THE LD. CIT (A). THERE THE ASSESSEE SUBMITTED THAT THE SAID DEPOSITS WERE SALE PROCEEDS OF GOODS (ALL CLOTHS SENT OUTSIDE) AND THE PARTIES TO WHOM GOODS WERE SOLD DEPOSITED THE AMOUNT IN CASH AT THEIR STATIONS IN IDBI BANK AND S AME WAS AGAIN WITHDRAWN BY THE ASSESSEE FOR FRESH PURCHASES. IT WAS SUBMITT ED THAT THIS SUBMISSION WAS MADE TO THE AO. IT WAS ALSO SUBMITTED THAT SIMI LAR DEPOSITS WERE THERE IN THE SUBSEQUENT ASSESSMENT YEAR AND THE AO HAS AC CEPTED THE ASSESSEES I.T.A. NO. 3147/DEL/2010 4 VERSION THAT THOSE ARE TURNOVER AND ASSESSED THE P ROFIT AT 5%. LD. CIT (A) ACCEPTED THE ABOVE CONTENTION. HE DIRECTED THE AO T O DELETE THE ADDITION AND DIRECTED TO ASSESS AT RS.2,14,156/- BEING 5% ON TUR NOVER OF RS.42,83,120/- IN THE RETURNED INCOME OF RS.1,06,800/-. 6. AGAINST THE ABOVE ORDER REVENUE IS IN APPEAL BEF ORE US. 7. WE HAVE HEARD THE LD. DR NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SUFFICIENT NOTICES. IN OUR CONSIDERED OPIN ION THE MATTER CAN BE DISPOSED OFF BY HEARING THE LD. DR AND PERUSING THE RECORDS. 8. LD. DR SUBMITTED THAT ASSESSEE HAD SUBMITTED BEF ORE THE AO THAT ASSESSEE WAS UNDER MENTAL CONSTRAINT AND HE USED TO DEPOSIT CASH AND MAKE WITHDRAWAL FROM THE BANK. HOWEVER, BEFORE THE LD. C IT (A) ASSESSEE HAS MADE TOTALLY DIFFERENT SUBMISSION THAT THE DEPOSITS WERE HIS TURNOVER FROM THE BUSINESS. IN THIS BACKGROUND THE LD. DR SUBMITT ED THAT THE MATTER MAY BE REMITTED TO THE FILE OF THE AO SO THAT HE CAN EXAMI NE THIS VERSION OF THE ASSESSEE. 9. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION. WE FIND THAT ASSESSEE HAS MADE TOTALLY DIFFERENT SUBMISSIONS BEFORE THE A O AND LD. CIT (A). LD. CIT (A) HAS ACCEPTED THE ASSESSEES VERSION WITHOUT GIVING THE AO AN OPPORTUNITY TO GO THROUGH THIS NEW SUBMISSION. WE F IND THAT INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE AO. THE AO I.T.A. NO. 3147/DEL/2010 5 IS DIRECTED TO CONSIDER THE ISSUE AFRESH IN LIGHT O F THE SUBMISSIONS MADE BEFORE THE LD. CIT (A). NEEDLESS TO ADD ASSESSEE SH OULD BE GRATED ADEQUATE OPPORTUNITY OF BEING HEARD. 10. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2014 SD/- SD/- ( A.T. VARKEY ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 22/01/2014 *AK VERMA* COPY FORWARDED TO: 1. ASSESSEE 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR