The Income-tax Officer, Amritsar. V. Sh Tarsem Singh S/o. Sh. Mohinder Singh, Amritsar.

ITA 370/ASR/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68270 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 20-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Keywords: Onus to prove
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.370(ASR)/2011 ASSESSMENT YEAR:2006-07 PAN :ASTPS0420M INCOME TAX OFFICER, VS. SH.TARSEM SINGH WARD 3(4), AMRITSAR. S/O SH. MOHINDER SINGH, AMRITSR. 141, GALI NO.6, SANT AVENUE, G.T.ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.AMRIK CHAND, DR RESPONDENT BY:SH.VINAMAR GUPTA, CA DATE OF HEARING: 12/12/2013 DATE OF PRONOUNCEMENT:19/12/2013 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), AMRITSAR, DATED 29/04/2011 FOR THE ASSESSMENT YEAR 2006-07. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS.6,50,000/- MADE BY THE A.O. REPRESENTING UNEXPLA INED CASH DEPOSITS IN SAVING BANK ACCOUNT IGNORING THE FACTS OF THE CASE THAT SH. MOHINDER SINGH FATHER OF THE ASSESSEE HAD NO SUFFIC IENT FUND WITH HIM TO MAKE SUCH CASH ADVANCE TO HIS SON. ITA NO.370(ASR)/2011 2 2. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.10,00,000/- MADE BY THE AO REPRESENTING DEPOSITS IN HIS SAVING BANK ACCOUNT IGNORING THE FACTS THAT THE ASS ESSEE HAS NOT DISCHARGE HIS BURDEN TO PROVE THE GENUINENESS OF T HESE CREDITS AS PROVIDED U/S 69A OF THE I.T.ACT, 1961. 3. THE APPELLANT CRAVES LEAVE TO ADD OR TO AMEND ANY G ROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 2. THE BRIEF FACTS IN GROUND NO.1 OF THE REVENUE AR E THAT THE AO MADE AN ADDITION OF RS.6.50 LAKHS U/S 69A REPRESENTING U NEXPLAINED CASH DEPOSITS OF RS.1,50,000/- DT. 9.5.2005 AND RS. 5 LAKHS DATED 30.05.2005 ( OUT OF TOTAL CASH DEPOSITS OF RS. 11 LACS FOUND ENTERED ON VARIO US DATES IN THE ASSESSEES S.B.A/C NO.1151000196620 WITH HDFC BANK LTD., THE MALL, AMRITSAR) RECEIVED BY THE ASSESSEE FROM HIS FATHER, SH. MOHIN DER SINGH REPRESENTING HIS FATHERS AGRICULTURAL INCOME. THE AO HAS NOT A CCEPTED THE ASSESSEES CONTENTION THAT THESE CASH DEPOSITS IN THE ABOVE S.B. A/C REPRESENT AGRICULTURAL INCOME OF HIS FATHER. FOR THE PURPOSE, THE AO AFTER RECORDING SH. MOHINDER SINGHS STATEMENT DATED 27.11.2008 IT WAS HELD THAT CONSIDERING THE ESTIMATED ANNUAL AGRICULTURAL INCOM E OF RS.3LACS (RS.20000 PER ACRE) AND EXPENDITURE LIKE HOUSEHOLD EXPENSES A ND LIABILITY OF REPAYMENT OF REMAINING BANK LOAN WORTH RS. 4 LACS TAKEN FROM A LAND MORTGAGE BANK FOR DAUGHTERS MARRIAGE AND THUS NULLIFYING THE POS SIBILITY OF AVAILABILITY OF CASH WITH THE MONEY LENDER, SH.MOHINDER SINGH, FOU ND THAT THE LENDERS ITA NO.370(ASR)/2011 3 CAPACITY IS DOUBTFUL AND HENCE THE ALLEGED CASH LOA N BEING NOT GENUINE HAS NOT BEEN EXPLAINED SATISFACTORILY AND ADDED TO THE INCOME OF THE ASSESSEE. 3. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE AS SESSEE AND DELETED THE ADDITION AS PER HIS FINDINGS ON PAGE 13 OF THE ORDER. 4. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER. 5. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, RELIED UPON THE ORDER OF THE LD. CIT(A) AND INVITED OUR ATTENTION TO THE STA TEMENT RECORDED ON 27.11.2008 OF SH. MOHINDER SINGH, WHO IS LENDER OF THE MONEY TO THE ASSESEE AND IS THE FATHER OF THE ASSESSEE, WHICH IS AVAILABLE IN THE PAPER BOOK, WHERE SH. MOHINER SINGH ADMITTED TO HAVE ADVA NCED CASH OF RS.6.50 LAKHS TO HIS SON, THE ASSESSEE, OUT OF AGRICULTURA L PROCEEDS, WHICH ARE LYING WITH HIM FOR HIS DAUGHTERS MARRIAGE. THE VARIOUS Q UESTIONS AND ANSWERS IN THE STATEMENT WERE READ BY THE LD. COUNSEL FOR THE ASSESSEE, MR. VINAMAR GUPTA, CA. IT WAS ALSO CONFIRMED THAT THE SAID AMO UNT HAS BEEN RECEIVED BACK BY THE ASSESSEES FATHER ON DIFFERENT DATES WH ICH IS OUT OF WITHDRAWALS FROM SAVING BANK A/C OF HDFC BANK, THE MALL, AMRITS AR. MR. VINAMAR GUPTA, CA, THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THERE IS NO ADVERSE MATERIAL AVAILABLE ON RECORD AGAINST THE ASSESSEE A ND THE ADDITIONS HAVE BEEN ITA NO.370(ASR)/2011 4 MADE MAINLY ON SURMISES AND CONJECTURES, WHICH ARE NOT PERMITTED AND THEREFORE, THE LD. CIT(A) HAS RIGHTLY DELETED THE A DDITION SO MADE BY THE AO. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FATHER OF THE ASSESSEE, MR. MOHINDER SINGH HAS CATEGORICALLY STATED AND ADMITTED TO HAVE LENT CASH OF RS. 6.50 LAKHS I.E. RS. 5 LAKHS ON 30.05.2005 AND RS.1.50 LAKH ON 9.5.2005 WHICH HAS BEEN RECEIVE D BACK ON DIFFERENT DATES, CANNOT BE DISPUTED. THE SOURCE OF SH. MOHIND ER SINGH HAS ALSO BEEN EXPLAINED IN THE STATEMENT. THE AO HAS NOT BROUGHT ANY MATERIAL ADVERSE TO THE ASSESSEE. THEREFORE, BY READING THE STATEMENT RECORDED ON OATH BY THE AO OF SH. MOHINDER SINGH, LENDER WHO IS FATHER OF T HE ASSESSEE AND THE FACTS AVAILABLE ON RECORD, WE FIND NO INFIRMITY IN THE OR DER OF THE LD. CIT(A), WHO IN FACT, HAS MADE THE ADDITION ON SURMISES AND CON JECTURES, WHICH CANNOT BE PERMITTED UNDER THE INCOME TAX LAWS. ACCORDINGLY, W E FIND NO INFIRMITY IN THE ORDER OF THE D. CIT(A) ON THE ISSUE AND THE SAM E IS UPHELD. THUS, GROUND NO.1 OF THE REVENUE IS DISMISSED. 7. AS REGARDS GROUND NO.2 OF THE REVENUE, THE BRIEF FACTS ARE THAT THE AO HAS MADE AN ADDITION OF RS. 10 LAKHS U/S 69A OF THE ACT, REPRESENTING UNEXPLAINED TWO DEPOSITS OF RS. 5 LAKHS EACH DATED 25.7.2005 AND ITA NO.370(ASR)/2011 5 27.10.2005 TO HAVE BEEN RECEIVED FROM THE MODERN C OOPERATIVE SOCIETY LTD AND THE AZAD COOP L/C SOCIETY LTD. AMRITSAR ON THE GROUND THE CONFIRMATIONS FURNISHED ON PLAIN PAPERS AND NON-PRO DUCTION BY THE ASSESSEE OF EITHER THE PRESIDENTS OF THE SOCIETIES OR THEIR BOOKS OF ACCOUNT AND BANK PASS BOOKS FOR VERIFICATION AND BY HOLDING THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE CREDITWORTHINESS AND GENUINENESS OF T HESE TWO CASH CREDITS APPEARING IN ASSESSEES ABOVE MENTIONED SB ACCOUNT IN HDFC BANK, THE MALL, AMRITSAR. 8. THE LD. CIT(A) DELETED THE SAME BY ACCEPTING TH E CONTENTION OF THE ASSESSEE AT PAGE 14 & 15 OF HIS ORDER. 9. THE LD. DR RELIED UPON THE ORDER OF THE A.O. 10. THE LD. COUNSEL FOR THE ASSESSEE, MR. VINAMAR G UPTA, ON THE OTHER HAND, ARGUED THAT THE ASSESSEE HAD SUBMITTED CONFIR MATION FROM BOTH THE CREDITORS WHO HAD CONFIRMED TO HAVE ADVANCED LOANS THROUGH CHEQUES TO THE ASSESSEE AND HAVING ALSO CONFIRMED TO HAVE SAID FI LED THE CONFIRMATIONS TO THE AO WHICH ARE AVAILABLE ON RECORD. THE ASSESSEE HAS ALSO ADDUCED COPY OF BANK ACCOUNT OF BOTH THE CREDITORS AVAILABLE ON RECORD, PLACED DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). IN THE FACTS AND CIRCUMSTANCES OF THE CASE, SH. VINAMAR GUPTA, CA ARGUED THAT THE ONUS WHICH WAS LAID ON ITA NO.370(ASR)/2011 6 THE ASSESSEE TO PROVE THE IDENTITY, CREDITWORTHINES S AND GENUINENESS OF THE TRANSACTION HAS BEEN DISCHARGED AND IN THE ABSENCE OF ANY ADVERSE MATERIAL ON RECORD, THE LD. CIT(A) HAS RIGHTLY DELETED THE A DDITION SO MADE. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE ASSESSEE HAS SUBMITTED THE CONFIRMATIONS FROM BOTH THE CREDITORS, WHICH AD MITTED TO HAVE BEEN FILED BEFORE THE A.O. THERE IS NO DISPUTE TO THE FACT THA T THE PAYMENTS HAVE BEEN MADE THROUGH A/C PAYEE CHEQUES AND THE ASSESSEE HAS FURNISHED COPY OF THE BANK STATEMENT TO PROVE THE GENUINENESS OF THE TRAN SACTION OF BOTH CREDITORS. THE AO HAS NOT PROCEEDED TO SUMMON U/S 131 OF THE A CT, WHICH POWER IS VESTED WITH THE A.O. AND NOT WITH THE ASSESSEE. THE REFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAVING PROVED THE T HREE ELEMENTS OF THE CASH CREDIT I.E. IDENTITY, CREDITWORTHINESS AND GENUINEN ESS OF TRANSACTION BY THE ASSESSEE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY DELETED THE ADDITION SO MADE BY THE LD. CIT(A). THU S, GROUND NO.2 OF THE REVENUE IS DISMISSED. 11. GROUND NO.3 IS GENERAL IN NATURE AND THEREFORE, DO NOT REQUIRE ANY ADJUDICATION. ITA NO.370(ASR)/2011 7 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA NO.370(ASR)/2011 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH DECEMBER., 2013. SD/- SD/ (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 TH DECEMBER, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.TARSEM SINGH S/O SH. MOHINDER SINGH , SANT AVENUE, AMRITSAR. 2. THE ITO W-3(4),ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.