Rajesh kumar verma, Bhiwani V. ITO WARD -2, Bhiwani

ITA 3286/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5839 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Competent authority
• Section: 271(1)(c); 80C; 234B; 139(5); 274; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC B ENCH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 3286/DEL/2019 [ASSESSMENT YEAR: 2010-11] SHRI RAJESH KUMAR VERMA VS. THE I.T. O PROP. R.K. JEWELLERS WARD 2 JAWAHAR CHOWK, BHIWANI BHIWANI PAN: AEJPV 9594 H [APPELLANT] [RESPONDENT] DATE OF HEARING : 16.09.2021 DATE OF PRONOUNCEMENT : 16.09.2021 ASSESSEE BY : SHRI NARENDRA KUMAR J AIN, ADV REVENUE BY : SHRI R.K. GUPTA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] 13, DELHI DA TED 26.02.2019 PERTAINING TO ASSESSMENT YEAR 2010-11. 2 2. GRIEVANCES OF THE ASSESSEE READ AS UNDER: 1. THAT THE INITIATION OF THE REASSESSMENT PROCEE DINGS U/S 147/148 BEYOND FOUR YEAR IS NOT VALID IN LAW:- (I) ON THE INFORMATION RECEIVED FROM AST SYSTEM ON BOR ROWED SATISFACTION WITHOUT RECORDING REASONS THAT INCOME ESCAPED ASSESSMENT ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSURE FULLY AND TRULY ALL MATERIAL FACTS NE CESSARY FOR ASSESSMENT. (II) THE COMPETENT AUTHORITY HAD NOT APPLIED HIS MIND B EFORE RECORDING SATISFACTION FOR APPROVAL NOT IN ACCORDAN CE WITH LAW IGNORING THE JUDGMENT OF HAR KISHAN SUNDER LAI VIRMANI V/S DCIT (GUJ) 330 CTR 214. 2. THAT THE LD. ASSESSING OFFICER HAS ERRED IN LAW IN TREATING THE DEPOSIT OF RS. 19,78,900/- IN THE SAVING BANK A CCOUNT WHICH IS NOT A BOOK OF ACCOUNT, AS INCOME, OF THE ASSESSEE. 3. THAT THE LD. LOWER AUTHORITIES HAS GONE WRON G IN REJECTING THE EXPLANATION AND EVIDENCE REGARDING DEPOSITS CON SIDERING IT TO BE AN, AFTER THOUGHT AND THERE WAS NO OCCASION FOR GIFT AGAINST LAW. 4. THAT THE LD. LOWER AUTHORITY IN THE FACTS OF THE CASE WITHOUT PROPERLY APPRECIATING THE EXPLANATION OF THE ASSESS EE REGARDING DEPOSIT OF RS. 19,78,900/- HAS ERRED IN CONFIRMING THE ADDITION OF RS. 18,24,100/- ON ACCOUNT OF DEPOSIT IN BANK ACCOU NT EVEN WHEN THE RETURN WAS FILED U/S 44AF ON THE TURNOVER OF RS . 23,62,098/- 3 AS EXPLAINED IN THE COURSE OF ASSESSMENT PROCEEDING S AND THE APPELLATE PROCEEDINGS. THE INCOME SHOULD HAVE BEEN COMPUTED U/S 44AF IN VIEW OF JUDGMENT OF CIT V/S PRADEEP SHANTI LAI PATEL (2014) 221 TAXMAN 436(GUJRAT HIGH COURT). 5. THAT THE LD. AO HAS ERRED IN NOT ALLOWING DEDUCT ION/S OF RS. 2935/- CLAIMED U/S 80C IN THE ASSESSMENT ORDER. 6. CHARGING OF INTEREST U/S 234A AND 234B IS ILLEGA L AND AGAINST LAW. 7. THE APPEAL IS WITHIN LIMITATION AND IS FILED AFT ER PAYMENT OF STATUTORY FEE ON 16/03/2019. 3. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 4. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEED INGS AND ON THE BASIS OF INFORMATION AVAILABLE IN ITS STATEMENT ON AST SYSTEM, THE ASSESSING OFFICER CAME TO KNOW THAT THE ASSESSEE HA S MADE CASH DEPOSITS AMOUNTING TO RS.19,78,900/ IN HIS STATE B ANK ACCOUNT MAINTAINED WITH HDFC BANK. THE ASSESSING OFFICER IS SUED SHOW CAUSE NOTICE ASKING THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN THE HDFC BANK. 4 5. THE ASSESSEE FILED DETAILED REPLY GIVING GROSS R ECEIPTS OF HIS BUSINESS. THE ASSESSING OFFICER COMPLETED THE ASSES SMENT PROCEEDINGS BY HOLDING AS UNDER: I N RESPONSE TO THE QUERY, THE ASSESSEE HAS FURNISH ED WRITTEN REPLY WHICH IS RE-PRODUCED AS UNDER:- KINDLY REFER TO THE PROCEEDINGS GOING ON IN THIS C ASE FOR THE A.Y. 2010- 11 WHERE THE CASH HAS BEEN DEPOSITED IN A/C N O. 04791000039892 WITH HDFC MEHAM. CHOWK, BHIWANI EXCE EDING RS. 10,00,000/ IN SAVING BANK ACCOUNT. IN THIS REGARD I T IS SUBMITTED THAT THE ASSESSEE HAS FILED HIS RETURN DECLARING IN COME OF RS. 154994/- ON 29.07.2010. THE ASSESSEE HAS DUE TO OMI SSION HAS TAKEN THESE FIGURES AS TOTAL TURNOVER OF THE CASE A S AGAINST TOTAL NET INCOME OF THE ASSESSEE. NOW ON ISSUANCE OF NOTI CE U/S 148 BY YOUR OFFICE THE ASSESSEE HAS SUBMITTED HIS RETURN S HOWING TOTAL TURNOVER OF RS. 2362098/- AND NET INCOME HAS BEEN D ECLARED AT RS. 154800/- U/S 44AF OF THE INCOME-TAX ACT, 1961. THE ASSESSEE HAS REVISED HIS RETURN OF INCOME U/S 139(5) OF THE INCO ME- TAX ACT, 1961 YET IT IS THE ORIGINAL RETURN FILED IN RESPONS E TO NOTICE ISSUED U/S 148 OF THE INCOME-TAX ACT, 1961 FOR A.Y. 2010-1 1. WHILE SUBMITTING THE RETURN ELECTRONICALLY AGAINST NOTICE ISSUED U/S 148, IT REFLECTS AS ORIGINAL RETURN RATHER A REVISED RET URN OF INCOME. THE SAME MAY KINDLY BE CONSIDERED AS A VALID RETURN OF INCOME. NO DOUBT THE ASSESSEE HAS DEPOSITED CASH EXCEEDING RS. 10,00,000/- IN HIS SAVING BANK ACCOUNT AS MENTIONED ABOVE. THE SAME IS EXPLAINED AS PER ANNEXURE A. ANY OTHER INFO RMATION IF REQUIRED MY KINDLY BE INTIMATED. 5 I HAVE GONE THROUGH ALL FACTS OF THE CASE AND CONSI DER THAT ALL THESE ARE AFTER THOUGHTS. A STORY REGARDING THE SOU RCE OF CASH DEPOSITS IS PREPARED AND FOUND NO WEIGHT AGE BEING THE ASSESSEE IS NOT CLEAR WHETHER THE RETURN FILED IN RESPONSE TO N OTICE ISSUED U/S 148 OR IN ACCORDANCE WITH THE PROVISIONS OF SECTION 139(5). THE EXCEEDED TURNOVER SHOWN IN THE RETURN IS JUST TO CO VER THE STORY OF CASH DEPOSITS. THEREFORE, AFTER GOING THROUGH TH E FACTS AND CIRCUMSTANCES OF THE CASE, ALL THE CASH DEPOSITS DU RING THE YEAR UNDER CONSIDERATION IS CONSIDERED AS UNEXPLAINED IN COME OF THE ASSESSEE. THEREFORE, I, HEREBY MAKE AN ADDITION OF RS. 19,78,900/- TOWARDS THE DECLARED INCOME OF THE ASSESSEE. 1 AM S ATISFIED THAT THE ASSESSEE CONCEALED THE PARTICULARS OF HIS INCOM E. THEREFORE, PENALTY PROCEEDINGS U/S 271(1)(C) READ WITH SECTION 274 OF THE INCOME-TAX ACT ARE INITIATED SEPARATELY. 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE HDFC BANK ACCOUNT. 7. AFTER CONSIDERING THE FACTS AND SUBMISSIONS, THE LD CIT(A) WAS CONVINCED WITH THE SOURCE TO THE EXTENT OF RS.1,54, 800/ BEING RETURNED INCOME OF THE ASSESSEE AND CONFIRMED THE B ALANCE AMOUNT OF RS.18,24,100/. 6 8. BEFORE ME, THE LD. AR SUBMITTED A PAPER BOOK CON TAINING 70 PAGES WHICH CONTAINS THE COMPLETE DETAILS OF DEPOSI T ENTRY IN THE BANK ACCOUNT WITH HDFC AND ALSO EXPLANATION OF DEPOSIT E NTRY IN HDFC BANK. SURPRISINGLY, THERE IS NO WHISPER ABOUT THESE EXPLA NATIONS/DOCUMENTS NEITHER IN THE ASSESSMENT ORDER NOR IN THE ORDER OF THE FIRST APPELLATE AUTHORITY. THEREFORE, IN THE INTEREST OF JUSTICE AN D FAIR PLAY, I DEEM IT FIT TO RESTORE THE ENTIRE QUARREL TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE DOCUME NTARY EVIDENCES/ EXPLANATION RELATING TO CASH DEPOSITED IN HDFC BANK ACCOUNT AFTER GIVING REASONABLE AND FAIR OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FURNISH ALL NECESSARY D ETAILS IN SUPPORT OF HIS CONTENTION .. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 3286/DEL/2019 IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.09. 2021. SD/- [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 16 TH SEPTEMBER, 2021. VL/ 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER