Shri Rajat Jindal, Delhi V. ACIT, New Delhi

ITA 3175/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3753 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Salary income
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 3175/DEL /2014 ASSESSMENT YEAR: 2009-10 RAJAT JINDAL, 312, ESSEL HOUSE, 10, ASAF ALI ROAD, DELHI-110002 (PAN: AFHPJ3896B) VS ACIT, CENTRAL CIRCLE-16, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJIV SAXENA, ADVOCATE RESPONDENT BY: SHRI ATIQ AHMAD, SR. DR DATE OF HEARING : 13.09.2017 DATE OF PRONOUNCEMENT: 31.10.2017 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST ORDER DATED 31/03/2014 PASSED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS) XXXII, NEW DELHI FOR ASSESSM ENT YEAR 2009 10 WHEREIN THE ASSESSEES APPEAL WAS PARTLY ALLOWED. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 WAS ITA NO. 3175/DEL/2014 ASSESSMENT YEAR 2009-10 2 CONDUCTED ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 26 TH OF MARCH 2010. THE CASE OF THE ASSESSEE WAS CENTRALISED UNDER SECTION 127 OF THE INCOME TAX ACT , 1961 AND, THEREAFTER, A NOTICE UNDER SECTION 153A OF THE INCO ME TAX ACT, 1961 WAS ISSUED. IN RESPONSE, THE ASSESSEE FILED HI S RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING A TOTAL INCOME OF RS. 1,75,845/-. THEREAFTER, THE ASS ESSMENT WAS COMPLETED UNDER SECTION 153A READ WITH SECTION 143 (3) OF THE INCOME TAX ACT, 1961 AT A TOTAL INCOME OF RS. 3,82, 720/- AFTER MAKING AN ADDITION OF RS. 2,06,876/- ON ACCOUNT OF ALLEGED UNEXPLAINED PAYMENTS MADE AGAINST CREDIT CARD BILLS . ON APPEAL BEFORE THE LD. CIT (APPEALS), THE LD. CIT (APPEALS) GAVE PARTIAL RELIEF TO THE ASSESSEE BY NOTING THAT PAYMENTS AMOU NTING TO RS. 87,300/- WERE MADE THROUGH CHEQUES WERE LIABLE TO B E DELETED AND THE BALANCE PAYMENT OF RUPEES 1,19,576/-, WHICH WAS STATED TO HAVE BEEN PAID THROUGH CASH OUT OF SALARY INCOME AND WITHDRAWALS FROM THE BANK ACCOUNT, WAS LIABLE TO BE CONFIRMED. THUS, THE ADDITION WAS CURTAILED TO RUPEES 1,19,576 /- AND NOW THE ASSESSEE HAS APPROACHED THE ITAT AND HAS CHALLE NGED THIS PARTIAL CONFIRMATION BY RAISING THE FOLLOWING GROUN DS OF APPEAL:- ITA NO. 3175/DEL/2014 ASSESSMENT YEAR 2009-10 3 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, NEW DELHI HAS GROSSLY ERRED BOTH I N LAW AND ON FACTS IN SUSTAINING AN ADDITION OF RS. 1,19, 576/- REPRESENTING ALLEGED UNEXPLAINED EXPENDITURE INCURR ED BY THE APPELLANT DESPITE THE FACT THAT THE LEARNED ASS ESSING OFFICER HAD NOT MADE ANY ADVERSE COMMENTS IN THE REMAND REPORT IN RESPECT OF EXPLANATION TENDERED BY THE APPELLANT. 2. THAT ADVERSE FINDING OF THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) THAT APPELLANT HAD NOT FURNISH ED ANY EVIDENCE IN SUPPORT OF CLAIM OF AVAILABILITY OF CASH IS FACTUALLY INCORRECT AND CONTRARY TO RECORD AND THER EFORE NOT TENABLE. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT, ADDIT ION MADE BY LEARNED ASSESSING OFFICER AND, SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY KINDLY BE DELETED AND APPEAL OF THE APPELLANT BE ALLOWED. 3. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE LD. CIT (APPEALS) HAD PARTIALLY CONFIRMED THE ADDITION WITHOUT APPRECIATING THE VARIOUS EVIDENCES WHICH HAD BEEN F ILED BY THE ASSESSEE TO SUBSTANTIATE THAT THE ASSESSEE HAD ADEQ UATE CASH AVAILABLE WITH HIM TO PAY THE CREDIT CARD BILLS. OU R ATTENTION WAS DRAWN TO CASH WITHDRAWAL AND DEPOSIT STATEMENT FOR THE PERIOD UNDER CONSIDERATION AND IT WAS SUBMITTED THAT THIS STATEMENT HAD BEEN SUBMITTED BOTH BEFORE THE ASSESSING OFFICE R AS WELL AS THE LD. CIT (APPEALS) BUT THE SAME HAD BEEN DISREGA RDED BY THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT THE LOWER AUTHORITIES DID NOT CONSIDER THE SUBMISSIONS OF THE ASSESSEE AT ALL . IT WAS ITA NO. 3175/DEL/2014 ASSESSMENT YEAR 2009-10 4 SUBMITTED THAT ASSESSEE HAD AMPLE CASH WITH HIM SO AS TO PAY THE CREDIT CARD BILLS. 4. IN RESPONSE, THE LD. DEPARTMENTAL REPRESENTATIVE READ OUT EXTENSIVELY FROM THE ASSESSMENT ORDER AS WELL AS TH E ORDER OF THE LD. CIT (APPEALS) AND VEHEMENTLY ARGUED THAT THE AD DITION HAD BEEN RIGHTLY MADE AND THAT THE LD. CIT (APPEALS) HA D BEEN FAIR ENOUGH IN GIVING DUE CREDIT FOR THE PAYMENTS MADE T HROUGH CHEQUES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PER USED THE MATERIAL ON RECORD. THE PERUSAL OF THE CASH WITHDRA WAL AND DEPOSIT STATEMENT AS REFERRED TO BY THE LD. AR SHOW S THAT THE ASSESSEE HAD A TOTAL CASH AVAILABLE OF RS. 2,20,000 /- WITH HIM DURING THE PERIOD UNDER CONSIDERATION WHICH WAS ADE QUATE TO COVER THE CASH PAYMENT OF RS. 1,19,576/-. IT IS UND ISPUTED THAT THIS STATEMENT WAS SUBMITTED BEFORE BOTH THE LOWER AUTHORITIES BUT THE SAME WAS NOT CONSIDERED BY EITHER OF THEM. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT POINT OU T ANY DEFECT IN THIS WITHDRAWAL AND DEPOSIT STATEMENT. THEREFORE , WE ARE OF THE CONSIDERED OPINION THAT, IN ABSENCE OF ANY EVIDENCE TO THE CONTRARY, THE ASSESSEE HAD SUFFICIENT CASH AVAILABL E WITH HIM TO MAKE CASH PAYMENTS OF RS.1,19,576/- AGAINST THE CRE DIT CARD ITA NO. 3175/DEL/2014 ASSESSMENT YEAR 2009-10 5 BILLS AND THE INFERENCE DRAWN BY THE LOWER AUTHORIT IES IN THIS REGARD WAS INCORRECT. ACCORDINGLY, WE DEEM IT FIT T O SET ASIDE THE ORDER OF THE LD. CIT (APPEALS) ON THIS ISSUE AND DI RECT THE AO TO DELETE THIS ADDITION OF RS. 1,19,576/- ALSO. 6. IN THE FINAL RESULT THE APPEAL OF THE ASSESSEE S TANDS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31ST O CTOBER, 2017. SD/- SD- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) PRESIDENT JUDICIAL MEMBER DATED: 31ST OCTOBER, 2017 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGI STRAR