Ram Kumar Garg, Uttar Pradesh V. ITO, Bulandshahr

ITA 366/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8071 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 27-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N J SINGH
• Keywords: Opportunity of being heard

Judgement Text

N THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT MEMBER ITA NOS. 366 & 367/DEL/2014 : ASSTT. YEAR S : 200 4 - 05 & 2005 - 06 RAM KUMAR GARG, 2, SUNDER PURI, BU LANDSHAHR, UTTAR PRADESH - 203001 VS INCOME TAX OFFICER, WARD - 3 , BULANDSHAHR (APPELLANT) (RESPONDENT) PAN NO. AFXPG2090J ASSESSEE BY : SH. SAURABH GUPTA, CA REVENUE BY : SH. N. J. SINGH , SR. DR DATE OF H EARING : 27 .04 .201 6 DATE OF PRONOUNCEMENT : 27 .04 .201 6 ORDER THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 29.10.2013 OF LD. CIT(A) , MEERUT . 2. IN ITA NO. 366/DEL/2014 FOR THE ASSESSMENT YEAR 2004 - 05 , ONLY GROUND RAISED READS AS UNDER : LD. CIT WAS ERRED IN SUSTAINING THE ADDITION OF RS.1,35,000/ - WITHOUT CONSIDERING THE STATEMENT OF AFFAIRS PRODUCED BY THE ASSESSEE TO THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS. 3. FOR THE ASSESSMENT YEAR 2 005 - 06, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITA NO. 367/DEL/2014: ITA NO S. 366 & 367 /DEL /2014 RAM KUMAR GARG 2 1. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS ERRED IN CONFIRMING THE ADDITION OF RS.9,97,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT INTO SAVING BANK ACCOUNT. 2. BECAUSE THE LD. AO WAS ERRED IN TAKING SHORT TERM CAPITAL GAIN ON SALE OF SHOP AMOUNTED TO RS.1,20,500/ - . 3. BECAUSE THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST LAW AND FACTS OF THE CASE AND BASED ON SURMISES AND CONJECTURE . 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS A SALARIED PERSON AND HAD DEPOSITED CASH AMOUNTING TO RS.1,35,000/ - AND RS.14,22,000/ - IN THE BANK ACCOUNT WITH PNB FOR THE ASSESSMENT YEARS 2004 - 05 & 2005 - 06 RESPECTIVELY. THE ASSESSEE FURNISHED STATEME NT OF AFFAIRS IN THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2004 - 05 S HOWING OPENING CASH BALANCE OF RS.11,40,625/ - . THE CLAIM OF THE ASSESSEE WAS THAT THE SOURCE OF CASH WAS PAST SAVINGS AND PENSIONER Y BENEFITS. THE ASSESSEE ALSO STATED BEFORE THE AO THAT THE CASH WAS RECEIVED FROM SALE OF PLOT AND WITHDRAWALS FROM GPF ACCOUNT . HOWEVER, THE AO DID NOT ACCEPT THE EXPLANATION GIVEN BY THE ASSESSEE ON THE GROUND THAT THE WITHDRAWALS FROM THE GPF HAD BEEN MADE FOR SPECIFIED PURPOSES AND THAT THE SALE OF PROPERTY HAD NOT BEEN DISCLOSED BY THE ASSESSEE IN THE STATEMENT RECORDED EARLIER. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION OF RS.1,35,000/ - FOR THE ITA NO S. 366 & 367 /DEL /2014 RAM KUMAR GARG 3 ASSESSMENT YEAR 2004 - 05 BY OBSERVING THAT THE ADDI TION WAS MADE BY THE AO SOLELY ON THE BASIS OF STAT EMENT OF AFFAIRS WHICH C OULD NOT BE TREATED AS GENUINE. THE LD. CIT(A) ALSO SUSTAINED THE ADDITION OF RS.9,67,000/ - FOR THE ASSESSMENT YEAR 2005 - 06 BY OBSERVING THAT THE AO HAD ALREADY GIVEN CREDIT FOR CAS H WITHDRAWALS FROM THE BANK AND THE AGRICULTURAL INCOME. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED AND SUBMITTED THAT THE ASSESSEE FURNISHED THE STATEMENT S OF AFFAIRS BEFORE THE AO WHICH WERE NOT APPRECIATED IN R IGHT PROSPECTIVE BY HIM AND ARBITRARY ADDITION WAS MADE. IT WAS FURTHER SUBMITTED THAT THE SAID STATEMENTS OF AFFAIRS WERE ALSO NOT CONSIDERED BY THE LD. CIT(A) WHILE SUSTAINING THE ADDITIONS MADE BY THE AO. IT WAS ALSO SUBMITTED THAT THE ASSESSEE EXPLAINE D THE SOURCE OF OPENING CASH IN HAND BUT NEITHER THE AO NOR THE LD. CIT(A) CONSIDERED THE SAME IN RIGHT PROSPECTIVE. THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 7 . IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGL Y SUPPORTED THE IMPUGNED ORDER AND FURTHER SUBMITTED THAT THE LD. CIT(A) HAD ALREADY GRANTED RELIEF TO THE ASSESSEE AFTER CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE, THEREFORE, THERE COULD HAVE BEEN NO GRIEVANCE OF THE ASSESSEE. HE REQUESTED TO CONFIRM TH E IMPUGNED ORDER. ITA NO S. 366 & 367 /DEL /2014 RAM KUMAR GARG 4 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) IN PARA 3.4 OF THE IMPUGNED ORDER CATEGORICALLY STATED THAT IT APPEARED THAT THE STATEMENT OF AFFAIRS HAVE NOT BEEN FILED WITH THE D EPARTMENT AT ANY POINT OF TIME, TH EREFORE, THE AUTHENTICITY OF THE STATEMENT WAS IN GARBED. ON THE CONTRARY, THE AO MENTIONED AT PAGE NO. 2 OF THE ASSESSMENT ORDER DATED 07.03.2011 TH AT THE ASSESSEE ON 30.09.2010 HAD FURNISHED STATEMENT OF AFFAIRS, BANK ACCOUNT AND CASH FLOW AS ON 31.03.2004 ALONGWITH HIS REPLY. THEREFORE, IT IS CLEAR THAT THE LD. CIT(A) HAS TAKEN A CONTRADICTORY STAND. THU S, IT CAN BE HELD THAT THE FACTS OF THE CASE W ERE NOT APPRECIATED BY THE LD. CIT(A) IN RIGHT PROSPECTIVE. IT IS ALSO NOTICED THAT THE AO HAVE NOT ACCEPTED THE WITHDRAWALS FROM THE GPF ACCOUNT WITHOUT BRINGING ANY MATERIAL ON RECORD TO SUBSTANTIATE THAT THE SAID AMOUNT WAS UTILIZED ELSEWHERE AND WAS NO T AVAILABLE WITH THE ASSESSEE. I, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DEEM IT APPROPRIATE TO SET ASIDE ISSUES RAISED BY THE ASSESSEE FOR BOTH ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2004 - 05 & 2005 - 06 TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICA TED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO S. 366 & 367 /DEL /2014 RAM KUMAR GARG 5 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 27 /04/2016 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 27 /04/2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR