ITO, New Delhi V. Kumari Manvi Kumar, Gurgaon

ITA 3197/DEL/2012

• Counselvise Citation: 319720114 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 19-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH D DD D : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .3197/DEL/2012 3197/DEL/2012 3197/DEL/2012 3197/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009- -- -10 1010 10 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(1), 46(1), 46(1), 46(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. KUMARI MAN KUMARI MAN KUMARI MAN KUMARI MANVI KUMAR, VI KUMAR, VI KUMAR, VI KUMAR, C CC C- -- -157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR- -- -51, 51, 51, 51, GURGAON GURGAON GURGAON GURGAON 122 001. 122 001. 122 001. 122 001. PAN : PAN : PAN : PAN : AOJPK7895L. AOJPK7895L. AOJPK7895L. AOJPK7895L. (APPELLANT) (RESPONDENT) CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION NO NO NO NO.316/DEL/2012 .316/DEL/2012 .316/DEL/2012 .316/DEL/2012 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2009 2009 2009 2009- -- -10 1010 10 KUMARI MANVI KUMAR, KUMARI MANVI KUMAR, KUMARI MANVI KUMAR, KUMARI MANVI KUMAR, C CC C- -- -157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, MAYFIELD GARD MAYFIELD GARD MAYFIELD GARD MAYFIELD GARDEN, SECTOR EN, SECTOR EN, SECTOR EN, SECTOR- -- -51, 51, 51, 51, GURGAON GURGAON GURGAON GURGAON 122 001. 122 001. 122 001. 122 001. PAN : AOJPK7895L. PAN : AOJPK7895L. PAN : AOJPK7895L. PAN : AOJPK7895L. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(1), 46(1), 46(1), 46(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI S.N. BHATIA, DR. ASSESSEE BY : SHRI JOGINDER MITTAL, CA. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF LEARNED CIT(A)-XXX, NEW DELHI DATED 11 TH APRIL, 2012 FOR THE AY 2009- 10. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- ITA-3197/D/2012 & C.O.316/D/2012 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN : 1. DELETING THE ADDITION OF RS.10,40,150/- AS RIGHTLY MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPO SITS WHICH REMAINED UNEXPLAINED. 2. DELETING THE ADDITION OF RS.10,40,150/- ON THE BA SIS OF ADDITION EVIDENCES/JUSTIFICATIONS FILED BY THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE SAME WERE NEV ER PRODUCED DURING THE ASSESSMENT PROCEEDINGS. 3. DELETING THE ADDITION OF RS.10,40,150/- BY ADMITT ING THE ADDITIONAL EVIDENCES IN VIOLATION & CONTRARY TO THE PROVISIONS OF RULE 46A. 4. DELETING THE ADDITION WITHOUT APPRECIATING THE F ACT THAT THE SOURCE OF THE CASH DEPOSITS OF RS.10,40,150/- C OULD NOT BE EXPLAINED BY THE ASSESSEE AT ASSESSMENT PROCEEDINGS. 3. IN THE CROSS-OBJECTION, THE ASSESSEE HAS ONLY SUPPORTED THE ORDER OF LEARNED CIT(A). 4. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY T HE LEARNED DR THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSI NG OFFICER GATHERED THE INFORMATION THAT THE ASSESSEE HAS D EPOSITED THE SUM OF ` 12,90,150/- IN CASH IN HER BANK ACCOUNT MAINTAINED W ITH AXIS BANK. THAT ON THE QUERY RAISED BY THE ASSESSING OFFICER , THE ASSESSEE DID NOT FURNISH ANY EXPLANATION WITH REGARD TO SOURC E OF SUCH CASH DEPOSIT. THEREFORE, THE ASSESSING OFFICER MADE THE ADDI TION OF ` 12,90,150/- AS UNEXPLAINED INCOME OF THE ASSESSEE. BEFO RE THE LEARNED CIT(A), THE ASSESSEE FURNISHED THE AFFIDAVIT OF SHRI MAHAVIR SINGH SOLANKI, FATHER-IN-LAW OF THE ASSESSEE IN WHICH HE CLAIMED TO HAVE MAINTAINED JOINT ACCOUNT WITH THE ASSESSEE AND HAS ALSO EXPLAINED THAT THE AMOUNT WAS DEPOSITED OUT OF THE GP F AND PENSION COMMUTATION RECEIVED BY HIM ON RETIREMENT. HE ALSO FURNISHED A COPY ITA-3197/D/2012 & C.O.316/D/2012 3 OF ANOTHER BANK ACCOUNT FROM WHICH THESE MONEYS WERE WITHDRAWN AND DEPOSITED IN THE AXIS BANK. THAT THE LEARNED CIT (A) DID NOT ALLOW ANY OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE FRE SH EVIDENCE AS REQUIRED IN RULE 46A(3). HE, THEREFORE, SUBMITTED T HAT EITHER THE ORDER OF LEARNED CIT(A) SHOULD BE REVERSED AND THE ADDITION MAY BE RESTORED OR, IN THE ALTERNATIVE, THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER AND ASSESSEE MAY BE DIRECTED TO FURNISH ALL THE EVIDENCES BEFORE THE ASSESSING OFFICER. THEREAFTER, THE ASSESSING OF FICER MAY PASS FRESH ORDER IN ACCORDANCE WITH LAW. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, SUPPORTED THE ORDER OF THE LEARNED CIT(A) AND HE STAT ED THAT THE AFFIDAVIT WAS FURNISHED BEFORE THE ASSESSING OFFICER IN WHICH ALL THE FACTS WERE ALREADY MENTIONED. BEFORE THE LEARNED CI T(A), THE ASSESSEE ONLY SUBMITTED A BANK ACCOUNT OF SHRI MAHAVIR SINGH SOLANKI FROM WHICH THE MONEY WAS WITHDRAWN BEFORE DEPOSITING IN TH E JOINT BANK ACCOUNT WITH AXIS BANK. HE ALSO SUBMITTED THAT AFTER THE FURNISHING OF ABOVE AFFIDAVIT, THE ASSESSING OFFICER DID NOT ASK FOR F URTHER INFORMATION OR EVIDENCE. HE, THEREFORE, SUBMITTED T HAT THE ORDER OF THE CIT(A) SHOULD BE SUSTAINED. 6. IN THE REJOINDER, IT IS SUBMITTED BY THE LEARNED D R THAT IN THE ASSESSMENT ORDER, THERE IS NO MENTION OF FURNISHING OF TH E AFFIDAVIT BY THE ASSESSEE. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE RELEV ANT OBSERVATION OF THE ASSESSING OFFICER IN THIS REGARD READS AS UNDER:- FINAL SHOW CAUSE NOTICE U/S 142(1) OF THE INCOME TAX ACT, WAS ISSUED ON 02.12.2011 ASKING ASSESSEE TO EXPLAIN ITA-3197/D/2012 & C.O.316/D/2012 4 SOURCE OF CASH DEPOSIT AMOUNTING TO RS.12,90,150/- AS REFLECTED IN THE ANNUAL INFORMATION RETURN OF THE A SSESSEE IN THE BANK ACCOUNT MAINTAINED IN AXIS BANK LIMITED, IN RESPONSE TO THIS QUERY AR OF THE ASSESSEE HAS FURNISHED REPLY VIDE LETTER DATED 23.12.2011, IN WHICH ASSESSEE H AS NOT FURNISHED ANY EXPLANATION REGARDING SOURCE OF CASH DEPOSIT, HENCE RS.12,90,150/- ADDED TO THE INCOME OF THE ASSESSEE. 8. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE DID F URNISH SOME REPLY BEFORE THE ASSESSING OFFICER VIDE LETTER DATED 23 .12.2011 BUT, THERE IS NO MENTION OF THE AFFIDAVIT HAVING BEEN FUR NISHED ALONG WITH SUCH REPLY. AT THE TIME OF HEARING BEFORE US, WE ASKE D THE ASSESSEE TO GIVE THE COPY OF THE SAID REPLY. HOWEVER, THE SAME W AS NOT AVAILABLE WITH THE ASSESSEE. IN VIEW OF THE ABOVE, WE ARE UNABLE TO GIVE ANY FINAL FACTUAL FINDING WHETHER THE AFFIDAVIT WAS FURN ISHED BEFORE THE ASSESSING OFFICER OR NOT. MOREOVER, SOME FURTHER EVIDEN CE THAT IS IN THE FORM OF XEROX COPY OF THE BANK ACCOUNT FROM OTH ER BANK FROM WHICH SHRI MAHAVIR SINGH SOLANKI CLAIMED TO HAVE WI THDRAWN THE MONEY WAS FURNISHED BEFORE THE CIT(A) FOR THE FIRST TI ME. THE LEARNED CIT(A) RELIED UPON SUCH BANK ACCOUNT WHILE GIVING RE LIEF TO THE ASSESSEE. ADMITTEDLY, THE CIT(A) HAS NOT ALLOWED ANY O PPORTUNITY TO THE ASSESSING OFFICER AFTER ADMITTING THE ADDITIONAL EV IDENCE OF REBUTTING SUCH ADDITIONAL EVIDENCE AS IS REQUIRED UNDE R RULE 46A(3). AFTER CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTAN CES AND THE ARGUMENTS OF BOTH THE SIDES, IN OUR OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDERS OF AUTHORITIES BELOW ARE SET ASID E AND THE MATTER RESTORED TO THE FILE OF THE ASSESSING OFFICER. WE ORDE R ACCORDINGLY AND DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES WITH RE GARD TO THE SOURCE OF CASH DEPOSIT OF ` 12,90,150/- IN THE BANK ACCOUNT, BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO ALL OW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE EVIDENCE IN THIS REGARD AND THEREAFTER, HE WILL READJUDICATE THE ISSUE IN ACCORDA NCE WITH LAW. ITA-3197/D/2012 & C.O.316/D/2012 5 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES WHILE THE ASSESSEES CROSS-OBJECTION WHICH IS ONLY IN SUPPORT OF THE ORDER OF THE CIT(A) IS DEEMED TO BE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2013. SD/- SD/- ( (( (ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 20.12.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(1), NEW DELHI. 46(1), NEW DELHI. 46(1), NEW DELHI. 46(1), NEW DELHI. 2. RESPONDENT : KUMARI MANVI KU KUMARI MANVI KU KUMARI MANVI KU KUMARI MANVI KUMAR, MAR, MAR, MAR, C CC C- -- -157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, 157, GROUND FLOOR, MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR MAYFIELD GARDEN, SECTOR- -- -51, 51, 51, 51, GURGAON GURGAON GURGAON GURGAON 122 001. 122 001. 122 001. 122 001. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR