Satpal, Bhiwani V. ITO WARD -03, Bhiwani

ITA 3531/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2984 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHIR K SEHGAL
• Assessee Lawyers: SANKAR NASKAR
• Keywords: Reason to believe; Reassessment proceedings
• Section: 44AD; 68; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.3531/DEL/2019 ASSESSMENT YEAR: 2010-11 SATPAL VPO PINJKHORA TOSHAM, BHIWANI, HARYANA -127021 PAN NO.DMDPS1891H VS ITO WARD- 03 BHIWANI (APPELLANT) (RESPONDENT) RESPONDENT BY SH. SUDHIR K. SEHGAL, ADVOCATE APPELLANT BY SH. SANKAR NASKAR, SR. DR. DATE OF HEARING: 12/03/2020 DATE OF PRONOUNCEMENT: 13/03/2020 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A), HISAR DATED 21.02.2019 PERTAINING TO A. Y. 2010-11. 2. THE SUBSTANTIVE GRIEVANCE OF THE ASSESSEE READ A S UNDER :- 1. THAT THE LD. ASSESSING OFFICER HAS WRONGLY ASSUMED THE JURISDICTION WITH REGARD TO REOPENING OF THE CASE U /S. 148 AS THERE WAS NO REASON TO BELIEVE THAT THE INCOME O F THE ASSESSEE IS ESCAPED INCOME ASSESSMENT AND FURTHER, 2 THERE WAS NO INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER CONCERNED WITH REGARD TO REOPENIN G OF THE CASE AND, AS SUCH, THE ASSESSMENT AS REOPENED U /S. 148 IS BAD IN LAW. 2. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, TH E LD. CIT(A) AS ERRED IN CONFIRMING THE ADDITION OF RS.18,70,000/- ON ACCOUNT OF AMOUNT RECEIVED FROM CERTAIN PARTIES AS ADVANCE AGAINST THE PURCHASE OF THE AGRICULTURAL LAND. 3. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FA CT THAT ALL THE PERSONS CONCERNED HAD CONFIRMED SUCH PAYMEN T HAVING BEEN MADE TO THE APPELLANT AND, THUS, THE AD DITION AS CONFIRMED IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE LD. CIT(A) HAS ALSO FAILED TO APPRECIATE T HE FACT THAT NO ADDITION COULD BE MADE U/S. 68 SINCE THE AM OUNT RECEIVED HAVE BEEN DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND HAD NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT ON THE BASIS OF THE INFORMATION AVAILABLE ON AST SYSTEM THE AO ISSU ED A NOTICE U/S. 148 OF THE ACT AND INITIATED THE REASSESSMENT PROCEEDINGS. THE ASSESSEE DID NOT FILE ANY RETURN IN RESPONSE TO THE NOTICE BUT 3 ATTENDED THE ASSESSMENT PROCEEDINGS WHEREIN HE WAS ASKED TO FURNISH THE STATEMENTS OF ALL BANK ACCOUNTS ALONGWI TH SOURCE OF CASH DEPOSITS IN BANK ACCOUNTS WITH DOCUMENTARY EVI DENCES. 4. THE AO FOUND THAT AS PER INFORMATION THE ASSESSE E HAS DEPOSITED CASH OF RS.25.09 LACS BUT ON PERUSAL OF B ANK STATEMENT FOUND THE TOTAL DEPOSITS IN CASH AT RS.28 .90 LACS. THE ASSESSEE EXPLAINED THAT DURING THE YEAR HE HAD BEEN DOING BUSINESS OF SALE OF RETI, RODI AND CRUSHERS WHERE T OTAL TURNOVER WAS APPROXIMATELY RS.10 LACS. THE ASSESSEE EXPLAIN ED THAT HE HAS FILED RETURN U/S. 44AD OF THE ACT. IN SUPPORT OF HIS CLAIM THE ASSESSEE FURNISHED COPIES OF VARIOUS PURCHASE B ILLS FROM VARIOUS STONE CRUSHERS. THE AO MADE ENQUIRIES AND W AS CONVINCED WITH THIS REPLY OF THE ASSESSEE. 5. NOW, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURC E OF CASH DEPOSIT TO THE EXTENT OF RS.18.70 LACS. THE ASSESS EE EXPLAINED FOUR PERSONS APPROACHED HIM AND WERE INTERESTED IN PURCHASE OF AGRICULTURAL LAND OF HIS FAMILY WHO HAVE ADVANCED H IM THE AMOUNT WHICH WAS DEPOSITED IN THE BANK ACCOUNT AND WHICH 4 RETURN BACK AS THE DEAL COULD NOT BE MATURED. IN S UPPORT OF HIS CLAIM THE ASSESSEE PRODUCED ALL FOUR PERSONS FOR VE RIFICATION AND THE AO RECORDED THE STATEMENTS OF ALL THE FOUR PERS ONS WHO IN THEIR RESPECTIVE STATEMENTS AFFIRMED OF HAVING GIVE N MONEY TO THE ASSESSEE. 6. THE AO DID NOT ACCEPT THE CONTENTIONS OF THE ASS ESSEE NOR THOSE OF THE PERSONS AND MADE ADDITION OF RS.18.70 LACS U/S. 68 OF THE ACT. 7. ASSESSEE STRONGLY AGITATED THE MATTER BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. 8. BEFORE ME THE COUNSEL FOR THE ASSESSEE FAIRLY CO NCEDED THAT HE IS NOT PRESSING THE GROUNDS CHALLENGING THE REOP ENING OF THE ASSESSMENT. ON SUCH CONCESSION GROUND NO.1 IS DISM ISSED. ON MERITS OF THE CASE THE COUNSEL VEHEMENTLY STATED TH AT THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON HIM BY T HE PROVISIONS OF SECTION 68 OF THE ACT AND, THEREFORE, NO ADDITION IS TO BE MADE U/S. 68 OF THE ACT. 5 9. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDING S OF THE AO. 10. I HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. FACTS ON RECORD SHOW THAT THE A SSESSEE HAS CLAIMED HAVING RECEIVED ADVANCE FROM FOLLOWING PERS ONS :- 1. SURESH 2. SUSHILA 3. SOMBIR 4. RAFIQ KHAN 11. I FIND THAT ALL THE AFOREMENTIONED FOUR PERSONS WERE PRODUCED BEFORE THE AO AND THE AO EXAMINED THEM BY RECORDING THEIR STATEMENTS. I FURTHER FIND THAT IN THEIR RESP ECTIVE STATEMENTS ALL THE AFOREMENTIONED PERSONS HAVE AFFI RMED OF HAVING GIVEN ADVANCE TO THE ASSESSEE. ON THIS UNDI SPUTED FACT THERE REMAINS NO DOUBT THAT THE ASSESSEE HAS FULLY DISCHARGED THE INITIAL ONUS CAST UPON HIM BY THE PROVISIONS OF SECTION 68 OF THE ACT. THEREFORE, I DO NOT FIND ANY MERIT IN THE ADDITIONS SO 6 MADE U/S. 68 OF THE IT ACT. I ACCORDINGLY DIRECT T HE AO TO DELETE THE ADDITIONS. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2 020. SD/- (N. K. BILLAIYA) ACCOUNTANT MEMBER *NEHA* DATE:- 13.03.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI 7 DATE OF DICTATION 12.03. 2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 13.03.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 13.03.2020 DATE ON WHICH THE FAIR ORDER IS PLA CED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13.03.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 13.03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 13.03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER