ACIT, Meerut V. Shri Mukesh Joshi, Noida

ITA 3317/DEL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6315 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 22-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: METALI MADHUSUDAN
• Assessee Lawyers: SHIV KUMAR ARORA
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence; Tax effect; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO.-3316 & 3317/DEL/2011 (ASSESSMENT YEAR-2004- 05 & 2005-06) ACIT, CENTRAL CIRCLE, MEERUT (APPELLANT) VS MUKESH JOSHI, P-2/18, KAILASH DHAM SOCIETY, SECTOR-50, NOIDA PAN-ACRPJ0305L (RESPONDENT) APPELLANT BY SMT. METALI MADHUSUDAN, CIT DR RESPONDENT BY SH. SHIV KUMAR ARORA, CA ORDER PER DIVA SINGH, JM THE PRESENT APPEALS HAVE BEEN FILED BY THE REVENUE ASSAILING THE CORRECTNESS OF THE SEPARATE ORDERS DATED 04.04.2011 OF CIT(A), MEERUT PERTAINING TO 2004-05 & 2005-06 ASSESSMENT YEARS ON THE FOLLOW ING GROUNDS:- ITA NO.-3316/DEL/2011 1. THAT THE ORDER OF CIT(A) IS ERRONEOUS IN LAW AND O N FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCE SUBMITTED BY T HE APPELLANT IN CONTRAVENTION TO RELY 106A OF THE IT ACT. 2. THAT THE CIT(A) ERRED IN LAW IN DELETING THE ADDITI ON OF RS.3,86,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT WITHOUT APPRECIATING THE FACT AND IN THAT ANY BASIS IGNORIN G THE FACTS BROUGHT ON RECORDS BY THE AO AND BY SUBSTITUTING HI S OWN SATISFACTION IN PLACE OF AOS SATISFACTION AS REQUIR ED UNDER SECTION 68 OF THE IT ACT. 3. THAT THE CIT(A) ERRED IN LAW AND IN DELETING THE AD DITION OF RS.2,34,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THE FACT THAT THE ONUS TO PROVE THE GE NUINENESS AND SOURCE OF THESE ALLEGED UNSECURED LOANS LAY ON THE ASSESSEE AND THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS TO TH E SATISFACTION OF THE AO IN SPITE OF BEING SPECIALLY REQUIRED BY THE AO TO DO SO. ITA NO.-3317/DEL/2011 1. THAT THE ORDER OF CIT(A) IS ERRONEOUS IN LAW AND O N FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCE SUBMITTED BY T HE APPELLANT IN CONTRAVENTION TO RELY 106A OF THE IT ACT. DATE OF HEARING 22.02.2016 DATE OF PRONOUNCEMENT 22.03.2016 I.T.A .NO.-3316 & 3317/DEL/2011 PAGE 2 OF 3 2. THAT THE CIT(A) ERRED IN LAW IN DELETING THE ADDITI ON OF RS.2,62,500/- ON ACCOUNT OF UNEXPLAINED INVESTMENT WITHOUT APPRECIATING THE FACT AND IN THAT ANY BASIS IGNORIN G THE FACTS BROUGHT ON RECORDS BY THE AO AND BY SUBSTITUTING HI S OWN SATISFACTION IN PLACE OF AOS SATISFACTION AS REQUIR ED UNDER SECTION 68 OF THE IT ACT. 3. THAT THE CIT(A) ERRED IN LAW AND IN DELETING THE AD DITION OF RS.6,21,339/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THE FACT THAT THE ONUS TO PROVE THE GE NUINENESS AND SOURCE OF THESE ALLEGED UNSECURED LOANS LAY ON THE ASSESSEE AND THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS TO TH E SATISFACTION OF THE AO IN SPITE OF BEING SPECIALLY REQUIRED BY THE AO TO DO SO. 2. THE LD.AR SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE ABOVE TWO APPEALS IS LESS THAN RS.10 LACS AS SUCH THEY MAY BE DISMISS ED. THE LD. CIT DR, SMT. METALI MADHUSUDAN WAS REQUIRED TO RESPOND WHY THE P RESENT APPEALS SHOULD NOT BE DISMISSED IN THE LIGHT OF THE LATEST CIRCULA R NO.21/2015 DATED 10 TH DECEMBER, 2015 OF CBDT AS THE TAX EFFECT IN THE AB OVE TWO DEPARTMENTAL APPEALS IS MUCH BELOW THE RS.10 LACS L IMIT FIXED BY THE BOARD. 3. CONSIDERING THE MATERIAL AVAILABLE ON RECORD QUA THE GROUNDS RAISED, THE CIT DR FAIRLY SUBMITTED THAT TAX EFFECT INVOLVED IS LESS THAN RS.10 LACS. 4. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES ON THIS ISSUE AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CBDT VIDE THE AFORESAID CIRCULAR DATED 10.12.2015 HAS REVISED THE MONETARY LIMIT TO RS.10 LAKH FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL . PARA 3 OF THE AFORESAID CIRCULAR HAS BEEN MADE APPLICABLE VIDE PARA 10 RETR OSPECTIVELY. CONSIDERING THE SETTLED LEGAL PRECEDENT THAT THE BOARDS INSTRUCTIO NS OR DIRECTIONS ISSUED TO THE INCOME TAX AUTHORITIES U/S 268A OF THE INCOME TAX A CT, 1961 ARE BINDING ON THE AUTHORITIES, WE DISMISS THE DEPARTMENTAL APPEAL S CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2016. SD/- SD/- (O.P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22/03/2016 *AMIT KUMAR* I.T.A .NO.-3316 & 3317/DEL/2011 PAGE 3 OF 3 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTAN T REGISTRAR ITAT NEW DELHI