ITO, Rohtak V. Smt. Madhu Choudhary, Rohtak

ITA 3515/DEL/2012

• Counselvise Citation: 351520114 RSA 2012
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Source of fund

Judgement Text

ITA NO. 3515/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. N O. 3515 /DEL/201 2 A.Y R. : 2009 - 10 ITO, WARD-1, AAYAKAR BHAWAN, ROHTAK VS. SMT. MADHU CHOUDHARY, 160, SECTOR-14, ROHTAK (PAN: AAUPC9590R) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR ASSESSEE BY : SH. MANOJ KUMAR, CA DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 27 2727 27- -- -11 1111 11- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 0 00 04 44 4- -- -1 11 12 22 2- -- -201 201 201 2015 55 5 PER H.S. SIDHU, JM PER H.S. SIDHU, JM PER H.S. SIDHU, JM PER H.S. SIDHU, JM ORDER ORDER ORDER ORDER REVENUE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 20.4.2012 PASSED BY THE LD. CIT(A)-ROHTAK RELEVANT TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS. 77 .63 LACS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THREE BANK ACCOUNTS WITHOUT APPRECIATING THE FACTS DISCUSSED I N DETAILED BY AO IN ASSESSMENT ORDER. ITA NO. 3515/DEL/2012 2 2. THAT THE APPELLANT CRAVES FOR PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING OF APPEAL. COVERED BY:- I) ROSHAN DI HATTI VS. CIT (1977) 107 ITR 938 (SC) II) CIT VS. M. GANPATHI MUDALIAR (1964) 53 ITR 623 (SC) III) CIT VS. R.S. RATHORE (1995) 212 ITR 390 (RAJ.) 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN EMPLOYEE OF NEHRU YUVA KENDRA SANGATHAN, DELHI DRAWING SALARY AND DEC LARED TOTAL INCOME OF RS. 3,32,310/- AFTER CLAIMING DEDUCTION UNDER CHAPTER V I OF RS. 1.00 LAKH. 2.1 AS PER THE AIR INFORMATION RECEIVED, THE AO NOT ED THAT THE ASSESSEE MADE CASH DEPOSITS OF RS. 24,10,000/- IN BANK A/C NO. 07 952151001381 WITH ORIENTAL BANK OF COMMERCE (OBC). WHEN ASKED TO EXPL AIN THE SOURCE OF DEPOSITS AND THE PURPOSE OF WITHDRAWALS, THE ASSES SEE SUBMITTED THAT TWO MORE BANK A/CS ARE MAINTAINED WITH OBC HAVING A/C NOS. 0 7952151000237 AND 07952151000124 (OD A/C). 2.2 IT WAS SUBMITTED BY THE ASSESSEE THAT CASH WAS RECEIVED ON SALE OF ANCESTRAL AGRICULTURAL LAND BELONGING TO THE MOTHER OF THE ASSESSEE AND TRANSFERRED TO THE ASSESSEE AFTER THE DEATH OF HE R MOTHER AND WAS PARTIALLY SOLD DURING THE YEAR UNDER CONSIDERATION. FURTHER, A PRO PERTY OF THE SON WAS ALSO SOLD BY THE ASSESSEE ON POWER OF ATTORNEY DURING THE YEA R AND THE PAYMENT WAS RECEIVED IN HER BANK A/ C. THE ASSESSEE FILED COPIE S OF THE SALE DEEDS ALONG WITH THE CASH FLOW STATEMENT. ITA NO. 3515/DEL/2012 3 2.3 FROM THE CASH FLOW STATEMENT, THE AO NOTED THAT OUT OF THE CASH ADVANCE OF RS 26,66,500/- RECEIVED ON 10.04.2008, CASH OF VARI OUS AMOUNTS WERE DEPOSITED IN DIFFERENT BANK A/ CS ON 12.04.2008. TH E AO NOTED THAT THE ASSESSEE MADE CASH WITHDRAWALS OF VARIOUS AMOUNTS F ROM 9.5.2008 TO 2.6.2008 WHEN SHE WAS HAVING CASH IN HAND OF RS. 17,43,500/- ON 9.5.2008. IT WAS EXPLAINED IN TH IS REGARD TO THE AO THAT THERE ARE VERY FEW TRANSACTIONS OF CASH DEPOSIT AND WITHDRAWALS IN THE BANK A/ C AND THE ASSESSEE WAS PLANNING TO BUY SOME OTHER PRO PERTY AND THEREFORE WHENEVER THERE WAS A CHANCE OF MATURITY OF A DEAL, CASH WAS WITHDRAWN FROM THE BANK. THERE WAS CASH IN HAND OF ONLY RS 56,500/ - ON 8.11.2008 MEANING THEREBY THAT THE ENTIRE CASH WAS UTILIZED BY MAKING FDS OR PURCHASE OF PROPERTY. 2.4 THE AO HELD THAT THE EXPLANATION OF THE ASSE SSEE IS NOT ACCEPTABLE AS OUT OF THE ADVANCE RECEIVED OF RS 26,66,500/- ON 10.04. 2008, DEPOSITS OF ONLY RS.9,23,000/- WAS MADE IN THE BANK A/CS. FURTHER, I T IS NOT KNOWN AS TO WHY THE ASSESSEE DEPOSITED THE AMOUNT IN THREE ACCOUNTS INS TEAD OF ONE ACCOUNT. THE AO HELD THAT IT WAS OBLIGATORY ON THE PART OF THE A SSESSEE TO EXPLAIN THE SOURCES FOR CASH DEPOSITS AND THE PURPOSE OF WITHDRAWAL FRO M THE BANK A/CS. IN THE ABSENCE OF ANY SUCH EXPLANATION, THE PERIOD OF CIRC ULATION OF CASH CANNOT BE ASCERTAINED AND THEREFORE PEAK OF INVESTMENT CANNOT BE DETERMINED AND THE AO ADDED THE ENTIRE AMOUNT OF DEPOSITS OF RS. 77,63,00 0/- IN THE THREE BANK ACCOUNTS VIDE HIS ASSESSMENT ORDER PASSED U/S. 143( 3) OF THE I.T. ACT, 1961 DATED 16.12.2011 ASSESSING THE TOTAL INCOME OF RS. 81,21, 250/-. 3. AGAINST THE ABOVE ASSSESSMENT ORDER, THE ASSES SEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 20.4.2012 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING THE ADDITION IN DISPUTE . ITA NO. 3515/DEL/2012 4 4. AGGRIEVED WITH THE LD. CIT(A)S ORDER DATED 20.4 .2012, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD. DR RELIED UPON THE ORDER OF THE ASSESSING O FFICER AND REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL AND REQ UESTED THAT THE IMPUGNED ORDER MAY BE CANCELLED. 6. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND REQUESTED THAT THE SAME MAY BE U PHELD. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. W E FIND IN THIS CASE THE ASSESSEE HAS SOLD AGRICULTURE LAND BELONGING TO HER MOTHER AND TRANSFERRED TO HER AFTER THE DEATH OF HER MOTHER FOR A CONSIDERATION OF RS. 77,66,500/- VIDE SALE DEED EXECUTED ON 7.11.2008 IN WHICH SHE RECEIVED C ASH ADVANCE OF RS. 26,66,500/- ON 10.4.2008. ANOTHER PART OF THE SAID AGRICULTURE LAND WAS SOLD FOR A CONSIDERATION OF RS. 12,03,000/-, RECEIVED CA SH ADVANCE OF RS. 10.00 LACS ON 7.11.2008 AND THE SALE DEED WAS EXECUTED ON 18.5 .2009. A PLOT OF THE LAND BELONGING TO THE SON OF THE ASSESSEE WS SOLD FOR A CONSIDERATION OF RS. 19.50 LACS WHICH HAS BEEN RECEIVED BY CHEQUE AND DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE. 7.1 WE FURTHER FIND THAT FUNDS RECEIVED BY THE A SSESSEE HAVE BEEN INVESTED IN THE FOLLOWING MANNER:- 1) RESIDENTIAL PLOT OF 171 SQ METERS IN HUDA SECT OR-46, GURGAON FOR A CONSIDERATION OF RS 29,65,482/ - IN THE NAME OF HER BROTHER SH. MOHIT SHEORAN VIDE SALE DEED DATED 17.11.2008. PAYMENT IN THIS RE GARD WAS MADE IN CHEQUES FROM A/C NO. 07952151000124 (OD A/C). ITA NO. 3515/DEL/2012 5 (II) PURCHASE OF A PLOT VIDE SALE DEED DATED 5.8.2 008 IN THE NAME OF THE ASSESSEE FOR RS 4.00 LACS. (III) PURCHASE OF PLOT NO. 2126 MEASURING 50 SQ MET ERS IN DLF CITY PHASE-V, GURGAON IN THE NAME OF THE ASSESSEE FOR RS 9.60 LAC S BY CHEQUE VIDE SALE AGREEMENT DATED 1.10.2008. THE REMAINING AMOUNTS WERE EITHER KEPT IN THE FORM OF BANK/CASH BALANCE OR FDS. THE ASSESSEE HAS FURNISHED COPIES OF THE PU RCHASE & SALE DEEDS IN SUPPORT OF THE SOURCE OF FUNDS AND UTILIZATION OF T HE FUNDS. 7.2 WE FURTHER NOTE THAT ALL THE ENTRIES IN THE 3 BANK A/CS HAVE BEEN EXPLAINED WITH REQUISITE EVIDENCES. FURTHER, THE SOURCES OF C ASH DEPOSITS AND THE PURPOSE OF WITHDRAWALS HAVE ALSO BEEN EXPLAINED IN THE CASH FL OW STATEMENT FURNISHED BY THE ASSESSEE. THE REJECTION OF THE CASH FLOW STATEM ENT BY THE AO ON THE GROUND OF DEPOSITING OF ONLY RS 9,23,000/- ON 12.04.2008 W HEREAS SHE RECEIVED CASH ADVANCE OF RS 26,66,500/- ON 10.04.2008 AND FURTHER AS TO WHY THE DEPOSITS WERE MADE IN 3 BANK A/CS INSTEAD OF ONE A/ C IS WHI MSICAL AND FANCIFUL. THE AO HAS NOT CONTESTED THE EVIDENCES FURNISHED BY THE AS SESSEE REGARDING THE SALE AND PURCHASE OF PROPERTIES. NO MATERIAL WAS BROUGHT ON RECORD BY THE AO TO SHOW THAT THE WITHDRAWALS IN BANK A/CS WERE UTILIZE D BY THE ASSESSEE IN ANY OTHER MANNER EXCEPT WHAT HAS BEEN SUBMITTED BY THE ASSESSEE. NO COGENT REASONS ALONG WITH ANY MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO TO CONTEST/ DISBELIEVE THE CASH FLOW STATEMENT FURNISH ED BY THE ASSESSEE AND THE EXPLANATION OFFERED FOR THE SOURCES OF DEPOSITS AND PURPOSE OF WITHDRAWALS IN THE SAID 3 BANK A/ CS. HENCE, LD. CIT(A) HAS RIGHTL Y DELETED THE ADDITION IN DISPUTE. IN VIEW OF THE ABOVE, WE FIND THAT THE LD. CIT(A) HAS PASSED A WELL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, HENCE, WE ITA NO. 3515/DEL/2012 6 UPHOLD THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND DISMISS THE APPEAL FILED BY THE REVENUE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/12/2015. S SS SD DD D/ // /- -- - S SS SD DD D/ // /- -- - [ [[ [PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI] ]] ] [H.S. SIDHU] [H.S. SIDHU] [H.S. SIDHU] [H.S. SIDHU] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATE 04/12/2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES