Deepak Walia, New Delhi V. ITO, Ward-71(2), New Delhi

ITA 3154/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1495 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S RAWAT
• Keywords: Salary income; Additional evidence
• Section: 68; 69; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.3154/DEL/2018 ASSESSMENT YEAR: 2010-11 DEEPAK WALIA, Y-852-853, PHASE-1, SULTAN PURI ROAD, NANGLOI, NEW DELHI. PAN: AALPW3497N VS. ITO, WARD-71(2), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH JAIN, CA REVENUE BY : SHRI D.S. RAWAT, SR.DR DATE OF HEARING : 11.10.2018 DATE OF PRONOUNCEMENT : 27.11.2018 ORDER PER R.K. PANDA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 04.11.2016 OF THE CIT(A)-21, NEW DELHI, RELATING TO ASSESSMENT YEAR 2 010-11. 2. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY. HE FILED HIS RETURN OF INCOME ON 28 TH JULY, 2010 DECLARING TOTAL INCOME OF RS.4,05,620/-. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DETAILS A ND EVIDENCE IN SUPPORT OF THE CLAIM OF DEDUCTION U/S 10 AMOUNTING TO RS.1,15,350/-. HE AL SO ASKED THE ASSESSEE TO FILE THE ITA NO.3154/DEL/2018 2 COPY OF CERTIFICATE IN RESPECT OF PAYMENT OF RS.75, 000/- TO LIC IN RESPECT OF JENEY WALIA, AND SHOW UNDER WHICH SECTION THE SAME IS ELI GIBLE FOR DEDUCTION. THE ASSESSING OFFICER FURTHER ASKED THE ASSESSEE TO EXP LAIN THE VARIOUS CASH DEPOSITS IN THE BANK ACCOUNT. BESIDES THE ABOVE, THE ASSESSING OFF ICER ALSO ASKED THE ASSESSEE TO EXPLAIN THE DISCREPANCY OF RS.21,254 IN THE INCOME SHOWN UNDER THE HEAD SALARIES FROM THE GREAT LOGISTICS AND PARKING SERVICES PVT. LTD. AND EVIDENCE IN SUPPORT OF RS.63,735/- RECEIVED FROM ICICI PRUDENTIALS. THE AS SESSEE WAS ALSO ASKED TO EXPLAIN WHY THE INTEREST ON BANK DEPOSITS AMOUNTING TO RS.5 12 SHOULD NOT BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AFTER CONSIDERING THE VARI OUS SUBMISSIONS FILED BY THE ASSESSEE FROM TIME TO TIME AND OBSERVING CERTAIN DI SCREPANCIES IN THE SUBMISSIONS OF CERTAIN ACCOUNTS AND NON-SUBMISSION OF CERTAIN DETA ILS, THE ASSESSING OFFICER MADE ADDITION OF RS.96,500/- AND RS.25,000/- RESPECTIVEL Y U/S 68 OF THE IT ACT ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN SAVINGS BANK ACCOUNTS AND UNEXPLAINED DEPOSIT IN PPF ACCOUNT. HE ALSO MADE ADDITION OF RS.2,235/- ON AC COUNT OF INTEREST RECEIVED FROM ICICI PRUDENTIAL AND BANK INTEREST OF RS.512/-. FU RTHER, THE ASSESSING OFFICER DID NOT ALLOW THE HRA CLAIMED U/S 10(13A) AMOUNTING TO RS.1 ,38,504/-. 3. BEFORE THE CIT(A), THE ASSESSEE FILED CERTAIN DE TAILS AS ADDITIONAL EVIDENCE. THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSES SING OFFICER. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE REMAND REPORT OF THE ASSESSING OFFICER AND THE OBJECTION OF THE ASSESSEE ON THE SAID REMAND REPORT , THE LD.CIT(A) SUSTAINED THE ACTION OF THE ASSESSING OFFICER ON ACCOUNT OF DENIAL OF EX EMPTION U/S 10(13A). SO FAR AS THE ITA NO.3154/DEL/2018 3 ADDITION OF RS.96,500/- BEING THE UNEXPLAINED CASH DEPOSIT AND RS.25,000/- BEING THE UNEXPLAINED DEPOSIT IN THE PPF ACCOUNT IS CONCERNED , HE ALSO SUSTAINED THE ABOVE ADDITIONS MADE BY THE ASSESSING OFFICER. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 2,58,758/- IN THE RETURNED INCOME OF THE APPELLANT, WITHOUT ADJUDICAT ING THE SUBMISSION OF THE APPELLANT JUDICIALLY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED C1T(A) ERRED IN UPHOLDING THE DISALLOWANCE OF EXEMPTION OF HOUSE RE NT ALLOWANCE (HRA) U/S 10(13A) OF THE ACT AMOUNTING TO RS 1,29,643/- CLAIMED IN SP ITE OF THE FACT THE APPELLANT SUBMITTED CERTIFICATE FROM HER MOTHER REGARDING PAY MENT OF RENT OF RS 15,000/-PER MONTH. 2.1. THE APPELLANT SUBMITTED ADDITIONAL EVIDENCE UN DER RULE 46A WITH REASONS FOR NOT SUBMITTING THE CERTIFICATE OF THE PAYMENT OF RE NT FROM THE LANDLORD. 3. THAT THE LEARNED C1T(A) ERRED IN UPHOLDING THE ADDI TION OF CASH ON DIFFERENT DATES TOTALING TO RS.96,500/- DEPOSITED IN BANK ACC OUNT BY THE APPELLANT FROM THE WITHDRAWALS MADE EARLIER FROM THE ACCOUNT AND AMOUN T DEPOSITED BY HER WIFE FROM HER INCOME. THE IMPUGNED BANK ACCOUNT WAS IN THE JOINT NAME WITH THE WIFE OF THE APPELLANT. WITH PREJUDICE TO ABOVE:- 3.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE SAVING BANK A/C NO. 25507284 IN STATE BANK OF INDIA WHICH IS IN JOINT NAME OF APPELLANT AND HIS WIFE, BABITA WALIA AND THEREFORE, THE ENTIRE ADDITION OF RS. 96,500/- COULD NOT HAVE BEEN MADE IN THE INCOME OF THE APPELLANT U/S 69 OF THE ACT. 4. THAT THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE NATURE OF ADDITION OF RS. 25,000/- U/S 69 WITH RESPECT OF AMOUNT DEPOSITE D IN PPF ACCOUNT, WHICH WAS EXPLAINED OUT OF WITHDRAWAL FROM THE STATE BANK OF INDIA ON 30.03.2010 DEPOSITED IN POST OFFICE ON 31.03.2010. THE LEARNED CIT(A) ADJUD ICATED THE GROUND WITH RESPECT TO SECTION 80C. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR A LTER ANY OF THE GROUNDS OF THE APPEAL. ITA NO.3154/DEL/2018 4 5. THE LD. COUNSEL FOR THE ASSESSEE, REFERRING TO P AGE 10 OF THE PAPER BOOK, DREW THE ATTENTION OF THE BENCH TO THE CERTIFICATE ISSUED BY MRS. BIMLA DEVI TOWARDS THE MONTHLY RENT OF RS.15,500/- PER MONTH TOWARDS LETTING OUT O F THE PROPERTY AT Y-852-853, PHASE I, NANGLOI, NEW DELHI 110 041. SO FAR AS THE ADD ITION OF RS.96,500/- IS CONCERNED, HE SUBMITTED THAT THE BANK ACCOUNT STANDS JOINTLY I N THE NAME OF SELF AND HIS WIFE AND, THEREFORE, THE ENTIRE AMOUNT CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE AND AT BEST ONLY 50% OF THE UNEXPLAINED DEPOSITS CAN BE ADDED. SO FAR AS THE ADDITION OF RS.25,000/- IN THE PPF ACCOUNT IS CONCERNED, HE SUB MITTED THAT THE SAME IS ALSO NOT WARRANTED AS THE SAME WAS DEPOSITED OUT OF THE EARL IER WITHDRAWALS. REFERRING TO PAGE 23-28 OF THE PAPER BOOK, HE SUBMITTED THAT EACH AND EVERY DEPOSIT AND WITHDRAWAL WAS EXPLAINED BEFORE THE ASSESSING OFFICER AS WELL AS T HE CIT(A) AND, THEREFORE, NO ADDITION IS CALLED FOR. 6. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON TH E ORDER OF THE CIT(A) AND THE ASSESSING OFFICER. 7. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I FIND, DUE TO NO N-SUBMISSION OF RENT CERTIFICATE FROM THE LANDLADY SMT. BIMLA DEVI ALONG WITH THE PROOF O F HER OWNERSHIP, THE ASSESSING OFFICER REJECTED THE CLAIM OF HRA U/S 10(13A) WHICH WAS CLAIMED BY THE ASSESSEE AS EXEMPT. ALTHOUGH THE ASSESSEE FILED THE COPY OF TH E RENT CERTIFICATE FROM THE LANDLADY BEFORE THE CIT(A) AS ADDITIONAL EVIDENCE, I FIND TH E LD.CIT(A), AFTER CONSIDERING THE REMAND REPORT OF THE ASSESSING OFFICER, REJECTED TH E CLAIM OF THE ASSESSEE ON THE ITA NO.3154/DEL/2018 5 GROUND THAT THE ASSESSEE FAILED TO PRODUCE BEFORE T HE ASSESSING OFFICER COPY OF THE RENT CERTIFICATE FROM THE LANDLADY AND COPY OF OWNERSHIP DOCUMENT OF THE PROPERTY BY HER. HE FURTHER HELD THAT THE ASSESSEE FAILED TO FURNISH COPY OF PAN/COPY OF INCOME-TAX RETURN SHOWING ASSESSMENT OF RENTAL INCOME IN THE H ANDS OF THE LANDLADY WHO HAPPENED TO BE THE MOTHER OF THE ASSESSEE. FURTHER, THE ASS ESSEE FAILED TO FURNISH THE DETAILS OF AREA OCCUPIED BY THE ASSESSEE IN HIS CAPACITY AS TE NANT AND THE ASSESSEE FAILED TO BRING ON RECORD WHETHER HIS MOTHER ALSO RESIDES WITH HIM OR NOT. SINCE THE ASSESSEE WAS RELUCTANT TO FURNISH ALL NECESSARY DETAILS AND EVID ENCE SO AS TO DECIDE THE TAXABILITY AND ALLOWABILITY OF EXEMPTION CLAIMED BY THE ASSESSEE I N HIS RETURN OF INCOME, THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICE R. I FURTHER FIND FROM THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE BANK ACCOUNTS STANDS JOINTLY IN THE NAME OF THE ASSESSEE AS WELL AS HIS WIFE. IT I S PERTINENT TO MENTION THAT THE WIFE OF THE ASSESSEE IS NOT AN INCOME-TAX PAYEE. THEREFORE , THE PLEA OF THE ASSESSEE THAT ONLY 50% OF THE DEPOSITS CAN BE ADDED IN HIS HANDS AND T HE BALANCE 50% HAS TO BE ADDED IN THE HANDS OF HIS WIFE CAN BE ACCEPTED ONLY IF THE A SSESSEE CAN PROVE THAT CERTAIN DEPOSITS, IN FACT, BELONGED TO THE WIFE OF THE ASSE SSEE FOR WHICH HE HAS TO SUBSTANTIATE THE SAME WITH COGENT EVIDENCE TO THE SATISFACTION O F THE ASSESSING OFFICER. AS REGARDS THE ADDITION OF RS.25,000/- IN THE PPF ACCOUNT IS C ONCERNED, THERE ALSO THE ASSESSEE HAS TO DEMONSTRATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER THAT SUCH DEPOSIT IS OUT OF THE EARLIER WITHDRAWALS MADE BY T HE ASSESSEE OR THE CASH AVAILABLE WITH HIM FROM SOME OTHER SOURCE WHICH WAS OFFERED T O TAX. SINCE ALL THESE DETAILS REQUIRE THOROUGH INVESTIGATION BY THE ASSESSING OFF ICER ON THE BASIS OF THE MATERIAL ITA NO.3154/DEL/2018 6 PRODUCED ALREADY OR TO BE PRODUCED, THEREFORE, CONS IDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE, I DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO GIVE ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CAS E. THE ASSESSING OFFICER SHALL DECIDE THIS ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. THE GROUN DS RAISED BY THE ASSESSEE ARE ACCORDINGLY, ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 7.11.2018. SD/- (R.K. PANDA) ACCOUNTANT MEMFBER DATED: 27 TH NOVEMBER, 2018 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI