ITO, New Delhi V. Mr. Rajesh Bansal, New Delhi

ITA 3373/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3756 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 12-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AGAINST PASSED
• Section: 131

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.:- 3373/DEL /2014 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER WARD 47(1), NEW DELHI. VS. MR. RAJESH BANSAL, LUV-303 , AGARSEN APPARTMENT-66, I.P. EXTN. PATPARGANJ, DELHI 110 092. PAN AAHPB7993C (APPELLANT) (RESPONDENT) O R D E R PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT AG AINST ORDER PASSED BY THE LD. CIT(A) XXX NEW DELHI FOR ASSTT. Y EAR 2010-11 WHEREIN VIDE ORDER DATED 5 TH MARCH, 2014 THE LD.CIT(A) HAS ALLOWED THE ASSESSEES APPEAL. DEPARTMENT BY: SHRI ATIQ AHMOD, SR. DR ASSESSEE BY : NONE DATE OF HEARING 03/08 /2017 DATE OF PRONOUNCEMENT 31/10/ 2 017 ITA NO. 3373/DEL/2014 ITO VS. MR. R AJESH BANSAL 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED DECLARING AN INCOME OF RS. 12,81,880/-. THE CASE WA S LATER SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, THE AO OBSERVED THAT THE ASSESSEE HAD DEPOSITED CASH ON V ARIOUS DATES IN HIS FOLLOWING ACCOUNTS :- 1. ICICI BANK RS. 25,20,000/- 2. HDFC BANK RS. 10,70,000/- 3. HDFC BANK RS. 2,88,200/- 3. ON THE ASSESSEE BEING ASKED TO EXPLAIN, IT WAS T HE ASSESSEES CONTENTION THAT HE WAS WORKING WITH M/S. MINING ASS OCIATES PVT. LTD. IN A SENIOR POSITION AND THE COMPANY HAD GIVEN THE AMO UNT IN CASH FOR EXPENDITURE TO BE INCURRED ON BEHALF OF THE COMPANY IN CASH. SINCE THIS EXPENDITURE WAS TO BE INCURRED IN SMALL AMOUNTS, IT WAS DEPOSITED IN CASH BY THE ASSESSEE IN HIS OWN BANK ACCOUNTS AND W AS LATER WITHDRAWN THROUGH ATMS AND ALSO SPENT THROUGH CREDIT CARDS. T HE AO ISSUED SUMMONS U/S 131 OF THE ACT TO THE COMPANY M/S. MINI NG ASSOCIATES PVT. LTD. AND REQUIRED THEM TO PRODUCE CASH BOOK, LEDGE R ACCOUNT AND OTHER DOCUMENTS. SINCE NO COMPLIANCE WAS MADE BY THE COM PANY, THE ITA NO. 3373/DEL/2014 ITO VS. MR. R AJESH BANSAL 3 ASSESSEES EXPLANATION WAS NOT ACCEPTED AND ALL THE CASH DEPOSITED WAS ADDED TO THE INCOME OF THE ASSESSEE. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND SUBMITTED BEFORE THE LD. CIT(A) THAT THE TRANSACTIO N UNDERTAKEN BY THE COMPANY WAS VERY HUGE AND THAT IT WAS NOT POSSIBLE TO OBTAIN THOSE DOCUMENTS FROM ASANSOL I.E. WHERE THE COMPANY WAS L OCATED. IT WAS ALSO SUBMITTED THAT THE AO HAD ACCEPTED THE ASSESSE ES CONTENTION FOR ASSESSMENT YEAR 2009-10 ON SIMILAR SET OF FACTS AND NO ADDITION WAS MADE. LD. CIT(A) NOTED THAT THERE WAS CONFIRMATORY LETTER FROM THE CONCERNED COMPANY AND THEREFORE PROCEEDED TO DELETE THE ADDITION. NOW THE DEPARTMENT HAS APPROACHED TO ITAT AND HAS C HALLENGED THE DELETION MADE BY THE LD. CIT(A). 5. AT THE OUTSET AN APPLICATION FOR ADJOURNMENT WAS PUT UP BEFORE US ON BEHALF OF THE LD. COUNSEL FOR THE ASSESSEE WHICH WE REFUSED AND PROCEEDED WITH THE HEARING OF THE CASE. 6. LD. DR SUBMITTED THAT SUMMONS U/S 131 OF THE INC OME TAX ACT 1961 WERE ISSUED TO M/S. MINING ASSOCIATES PVT. LTD ., ASANSOL REQUIRING ITA NO. 3373/DEL/2014 ITO VS. MR. R AJESH BANSAL 4 THEM TO FURNISH COPY OF CASH BOOK WITH COMPLETE NAR RATION FOR THE PERIOD 1.4.2009 TO 31.3.2010 ALONG WITH COPY OF LEDGER ACC OUNT OF THE ASSESSEE AND LIST OF SHAREHOLDERS WITH COMPLETE ADDRESSES WH ICH WERE NOT PRODUCED. LD. SR. DR FURTHER SUBMITTED THAT THE CON TENTION OF THE ASSESSEE THAT HE HAD RECEIVED CASH ON BEHALF OF THE COMPANY WAS NOT ACCEPTABLE AS THE ASSESSEE HAD DEPOSITED CASH OF RS . 25,20,000/- WITH ICICI BANK, BANDRA KURLA COMPLEX, MUMBAI AND RS. 1 0,70,000/- WITH HDFC BANK I.P. EXTENSION, PATPARGANJ, NEW DELHI WHE REAS THE ASSESSEE WAS LOCATED IN DELHI. IT WAS ALSO SUBMITTED THAT DE LETION HAD BEEN MADE WITHOUT REFERRING THE MATTER TO THE A.O. IT WAS ALS O SUBMITTED THAT THE AO HAS GIVEN A FINDING THAT THE ACCOUNTS AS REQUIRE D BY THE AO WERE NOT FURNISHED EITHER BY THE ASSESSEE OR BY THE COMPANY M/S. MINING ASSOCIATES PVT. LTD.. IT WAS PRAYED THAT THE ADDITI ON DELETED HAS BEEN WRONGLY DELETED AND ,THEREFORE, THE ORDER OF THE LD . CIT(A) SHOULD BE SET ASIDE. 7. WE HAVE HEARD LD. SR. DR AND HAVE ALSO PERUSED T HE MATERIAL ON RECORD. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE LD. CIT(A) HAS TAKEN INTO ACCOUNT THE WRITTEN SUBMISSIONS OF THE A SSESSEE AND COPIES OF THE BANK ACCOUNTS. HE HAS ALSO NOTED THAT M/S. MINI NG ASSOCIATES ITA NO. 3373/DEL/2014 ITO VS. MR. R AJESH BANSAL 5 PVT. LTD. WAS HAVING BANK ACCOUNT IN THE SAME PREMI SES WHERE THE ASSESSEE WAS MAINTAINING THE SAVING BANK ACCOUNT JOI NTLY WITH HIS WIFE. HE HAS FURTHER NOTED THAT WITHDRAWALS WERE MADE FRO M THE ATM WHICH WERE RANGING FROM RS. 5000/- TO RS. 15,000/-. HE HA S ALSO NOTED THAT ASSESSEE HAD FILED CONFIRMATORY LETTER AND COPY OF IMPREST ACCOUNT. THE LD. CIT(A) HAS DELETED THE ADDITION BY RELYING IN THESE TWO DOCUMENTS. HOWEVER THESE DOCUMENTS ON WHICH THE LD. CIT(A) HAS RELIED UPON WHILE DELETING THE ADDITION WERE NOT BEFORE THE AO. IT IS ALSO SEEN THAT THE LD. CIT(A) HAD NOT CALLED FOR A REMAND REPORT F ROM THE AO WHILE TAKING THESE DOCUMENTS LIKE CONFIRMATORY LETTER AND BANK STATEMENTS, ETC. ON RECORD FOR THE PURPOSE OF DELETION OF THE ADDITION. THEREFORE, LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CAS E WE ARE OF THE CONSIDERED OPINION THAT NOTWITHSTANDING THE FACT TH AT AN IDENTICAL SITUATION HAS ARISEN IN ASSESSMENT YEAR 2009-10 WHE REIN THE AO HAD MADE NO ADDITIONS, EACH ASSESSMENT YEAR IS A SEPARA TE YEAR WHICH HAS TO BE CONSIDERED SEPARATELY. THE ISSUE NEEDS TO BE EXAMINED BY THE AO IN PROPER PERSPECTIVE. THEREFORE, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR DENOVO EXAMINATION OF THE IS SUE PERTAINING TO CASH DEPOSITS IN THE THREE BANK ACCOUNTS AS CONTAINED IN THE ORIGINAL ASSESSMENT ORDER DATED 5 TH MARCH, 2014. NEEDLESS TO SAY THAT THE AO ITA NO. 3373/DEL/2014 ITO VS. MR. R AJESH BANSAL 6 WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE OF PRE SENTING THE RELEVANT DOCUMENTS AND EVIDENCES ON WHICH HE SEEKS TO RELY U PON. 8. IN THE RESULT THE APPEAL OF THE DEPARTMENT STAND S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2017. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSHU S RIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/10/2017 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI