ITO, Gurgaon V. Sh. Hemant Kumar, Haryana

ITA 3458/DEL/2017

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8334 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-03-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 30-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Section: 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’, NEW DELHI Before Sh. Kul Bharat, Judicial Member Dr. B. R. R. Kumar, Accountant Member ITA No. 3458/Del/2017 : Asstt. Year : 2012-13 Income Tax Officer, Ward-2(1), Gurgaon Vs. Sh. Hemant Kumar, P8/17, DLF City, Phase-III, Distt. – Gurgaon-122001 (APPELLANT) (RESPONDENT) PAN No. AAKPK9873D CO No. 159/Del/2022 : Asstt. Year : 2012-13 Sh. Hemant Kumar, P8/17, DLF City, Phase-III, Distt. – Gurgaon-122001 Vs. Income Tax Officer, Ward-2(1), Gurgaon (APPELLANT) (RESPONDENT) PAN No. AAKPK9873D Assessee by : Dr. Rakesh Gupta, Adv. & Sh. Somil Agarwal, Adv. Revenue by : Sh. Vivek Kumar Upadhyay, Sr. DR Date of Hearing: 04.03.2024 Date of Pronouncement: 08.03.2024 ORDER Per Bench: The present appeal and Cross Objection has been filed by the Revenue and the assessee against the order of ld. CIT(A)-1, Gurgaon dated 30.03.2017. 2. The Revenue has raised only one ground which are as under: “1. Th e ld . CI T( A) has err ed on fa ct a n d in l a w in t reat in g th e ca sh rec eipt s a s ex p lai n ed rec ei p t s an d n ot t a xab l e rec ei p ts in abs en c e of an y d ocu men ta ry evi d en c e.” ITA No. 3458/Del/2017 CO No. 159/Del/2022 Hemant Kumar 2 3. The assessee has raised ground of Cross Objection which are as under: “1. Th at h a vi n g regard t o t h e fa ct s a nd ci rcu ms t an c es o f th e ca s e, Ld . CI T(A ) h a s erred in la w an d on f act s in con fi rmi ng th e act i on of Ld . A O i n maki n g agg reg at e ad di t i on of R s. 1,35, 50 ,000 /- ( Rs. 85, 00 ,00 0/ - Rs .50, 50, 000/ - ) u/ s 68 on t h e f oll ow in g g r oun d s a nd t hat t oo w i th ou t any ba si s/ mat eri al and evid en ce av ai la b l e on rec ord an d wi th ou t fol lo wi ng th e p rin c ip l es of n at u ral j u sti c e.  Rs.85 ,00, 000/ - on ac c ou nt o f ad van c e r ecei v ed ag ai n st pr op ert y .  Rs.50 ,50, 000/ - on a c cou n t of c api t al in t rod u ct i on . 2. Th at h a vin g reg ard t o t h e fa ct s a nd ci rcu m st an c es of t h e ca s e, Ld . CI T( A) h a s err ed i n l aw an d on f act s in ex erc isi n g hi s j uri sd i ct ion i n m ak i n g an esti mat ed a d di ti on of Rs .6 ,00 ,0 0 0/ - on ac c oun t of h ou se h ol d exp en s es and t hat t oo w i th ou t a ss u mi ng j uri sd i ct ion a s p er l aw an d wi t h ou t g i vi n g sh o w c au se n ot i c e t o th e a pp ell an t an d in vi ol ati on of p ri n ci p l es of nat u r al ju st i c e. 3. Th at h a vin g reg ard t o t h e fa ct s a nd ci rcu m st an c es of t h e ca s e, Ld . CI T(A ) h a s erred in la w an d on f act s in con fi rmi ng th e act i on of Ld . A O in makin g ag g reg a t e a d dit i on of R s.27, 50 , 000/- on a cc ou nt of un s ecu red l oan b y treat in g it as al l eg ed in c ome of as s ess ee u/ s 6 8 of t h e In c om e Ta x A ct , 1961 . ” Cash Deposits: 4. As per the AIR, the assessee has deposited cash in the savings bank accounts maintained in different banks which are as under: Sl. No. Name of the Bank Cash Deposited (Rs.) 1. IOB 4,05,09,500/- 2. Axis Bank 33,16,000/- 3. Axis Bank 1,25,06,000/- Total 5,63,31,500/- ITA No. 3458/Del/2017 CO No. 159/Del/2022 Hemant Kumar 3 5. The assessee submitted the cash flow statement before the Assessing Officer which is as under: Opening cash balance 36,107 Add: Cash withdrawn from bank 5,46,98,798 Less: Cash deposited in bank 5,92,11,500 Less: Cash expensed off 23,83,109 Add: Advance received from properties 85,00,000 Add: Capital through Vandana 50,50,000 Closing balance 63,46,963 6. The AO after received of the reply concluded the assessment making addition of Rs.5,63,31,500/- on this issue. 7. Aggrieved, the assessee filed appeal before the ld. CIT(A) who deleted the addition except to the tune of Rs.85,00,000/- which is on account of advance for purchase of property and Rs.50,50,000/- received as capital from Smt. Vandana and Rs.6,00,000/- on account of household withdrawals. 8. Aggrieved, the assessee as well as Revenue filed appeal before the Tribunal. 9. Before us, the ld. DR submitted that in absence of any correlation between the withdrawals and the deposits, the decision of the ld. CIT(A) giving set off to the amounts deposited from the withdrawals cannot be accepted. It was argued that the assessee had to prove that it is the same cash which has been withdrawn has been re-deposited into the account and the record do not show any such relation. ITA No. 3458/Del/2017 CO No. 159/Del/2022 Hemant Kumar 4 10. On the other hand, the ld. AR contended that he had withdrawn cash amounting to Rs. 5,46,98,798/- which were used for the purpose of making cash deposits in the bank account. It was argued that the AO has rejected the assessee's contention on the ground that no supporting evidence was furnished to establish that the said cash receipts were actually explained receipts and not taxable receipts and the ld. CIT(A) has duly accepted. 11. Heard the arguments of both the parties and perused the material available on record. 12. It is undisputed fact on record that the assessee had withdrawn cash amounting to Rs. 5,46,98,798/-. This fact has been recorded in the assessment order too. The assessee had filed cash book showing that the amount withdrawn from bank had been deposited again within a week in his bank before the lower authorities which we have duly examined. The AO has not pointed out any other expenditure or investment made from the cash withdrawn. 13. In these circumstances, we hold that the ld. CIT(A) has rightly held that the cash withdrawn cannot be held to be unaccounted. Reliance is being placed in this regard on the decision of the Co-ordinate Bench of ITAT, Chandigarh in ITA No. 123/Chd/2007 in the case of Sh. Bhupinder Singh Gill, and order dated 31.1.2014, in the case of Anil Gupta Vs. ITO in ITA No. 5643/Del/2013. 14. In the result, the appeal of the Revenue is dismissed. ITA No. 3458/Del/2017 CO No. 159/Del/2022 Hemant Kumar 5 15. With regard to CO No. 159/Del/2022 pertaining to the capital received from Smt. Vandana and the advance received in connection with proposed sale of property, both the parties fairly submitted that the matter needs verification and examination of the alleged transaction and documents thereof. Hence, in the interest of justice, the matter is remanded to the file of the Assessing Officer for appropriate enquiries as deemed fit. The AO shall afford an opportunity to the assessee to file the replies and evidences relied upon. 16. In the result, the appeal of the Revenue is dismissed and the Cross Objection of the assessee is allowed for statistical purpose. Order Pronounced in the Open Court on 08/03/2024. Sd/- Sd/- (Kul Bharat) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 08/03/2024 *Subodh Kumar, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR