Nishikant Dubey, New Delhi V. ITO, New Delhi

ITA 3748/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3010 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 04-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 09-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V K TIWARI
• Assessee Lawyers: K SAMPAT SH V RAJA KUMAR ADVS
• Keywords: Gift
• Section: 147; 69

Judgement Text

1 ITA NO. 3748/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI R. S. SYAL, VICE PRES IDENT AND MS SUCHITRA KAMBLE, JUD ICIAL MEMBER ITA NO. 3748/DEL/201 5 ( A.Y 2005-06) NISHIKANT DUBEY S/O. SH. RADHEY SHYAM DUBEY C/O. RASTOGI NARAIN & CO., 303, DDA HIG FLATS, BLOCK-1, RANI JHANSI COMPLEX, PAHARGANJ, NEW DELHI ADXPD7796C (APPELLANT) VS ITO WARD-52(4) NEW DELHI (RESPONDENT) APPELLANT BY SH. K. SAMPAT, SH. V. RAJA KUMAR, ADVS RESPONDENT BY SH. V. K. TIWARI, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 31/03/2015 PASSED BY CIT(A) XVIII, NEW DELHI FOR ASSESSMENT Y EAR 2005-06. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FA CTS OF THE CASE PROPERLY. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 16,48,400/- AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT AS PER THE PROVISIONS OF SECTION 69 OF THE ACT, CONCLUDING THAT THERE IS NO JUSTIFIC ATION FOR NOT SUBMITTING THE SOURCE OF DEPOSIT IN THE BANK. THE LEARNED CIT(A) HAS NOT GIVEN DUE CREDENCE TO TH E SUBMISSIONS FILED BY THE DATE OF HEARING 20.03.2018 DATE OF PRONOUNCEMENT 23.03.2018 2 ITA NO. 3748/DEL/2015 ASSESSEE THAT CASH OF RS. 18,00,000/- HAS BEEN RECE IVED AS GIFT FROM HIS FATHER MR. RADHEY SHYAM DUBEY WHO IS AN AGRICULTURI ST. THE ASSESSEE EXPLAINED THAT FATHER OF THE ASSESSEE IS FORCED TO KEEP ALL HIS EARNINGS OUT OF AGRICULTURE ACTIVITIES IN CASH DUE TO ABSENCE OF AN Y BANK IN HIS VILLAGE. THE LEARNED CIT(A) HAS ERRED IN NOT TAKING COGNIZA NCE OF PHOTOCOPY OF AFFIDAVIT ENCLOSED AS ANNEXURE TO THE SUBMISSION DA TED 10 TH SEPTEMBER 2014 BEFORE CIT(A) AND COPY OF DOCUMENTARY EVIDENCE IN R ESPECT OF OWNERSHIP OF AGRICULTURAL LAND BY THE FATHER OF THE ASSESSEE AND COPIES OF LAND REVENUE RECEIPTS FOR THE AGRICULTURAL LAND OWNED BY THE FAT HER OF ASSESSEE SUBMITTED AS ANNEXURE TO THE SUBMISSION DATED 23 RD JANUARY, 2015. THE LEARNED CIT(A) IS NOT JUSTIFIED IN CONFIRMING P ENALTY U/S 271 (1 )(C) OF THE INCOME TAX ACT, 1961. 3. THE ASSESSEE IS AN INDIVIDUAL AND CARRYING ON THE P ROFESSION OF PROVIDING CONSULTANCY SERVICES. THE RETURN OF INCOME WAS FILE D ON 30/03/2006 DECLARING TOTAL INCOME OF RS. 3,03,363/-. THE ASSESSMENT WAS COMPLETED U/S 147 ON 30.03.2013 AND TOTAL INCOME WAS ASSESSED AT RS. 19, 51,763/- AFTER MAKING ADDITION OF CASH DEPOSITED IN THE BANK ACCOUNT OF T HE ASSESSEE AMOUNTING TO RS. 16,48,400/- AS AGAINST THE RETURNED INCOME OF RS. 3,03,363/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) ERRED IN CO NFIRMING ADDITION OF RS. 16,48,400/- AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT AS PER THE PROVISIONS OF SECTION 69 OF THE ACT, CONCLUDING THA T THERE IS NO JUSTIFICATION FOR NOT SUBMITTING THE SOURCE OF DEPOSIT IN THE BANK. T HE CIT(A) HAS NOT GIVEN DUE CREDENCE TO THE SUBMISSIONS FILED BY THE ASSESSEE T HAT CASH OF RS. 18,00,000/- WAS RECEIVED AS GIFT FROM HIS FATHER MR. RADHEY SHY AM DUBEY WHO IS AN AGRICULTURIST. THE ASSESSEE EXPLAINED THAT FATHER O F THE ASSESSEE IS FORCED TO KEEP ALL HIS EARNINGS OUT OF AGRICULTURE ACTIVITIES IN CASH DUE TO ABSENCE OF ANY 3 ITA NO. 3748/DEL/2015 BANK IN HIS VILLAGE. THE CIT(A) ERRED IN NOT TAKIN G COGNIZANCE OF PHOTOCOPY OF AFFIDAVIT ENCLOSED AS ANNEXURE TO THE SUBMISSION DA TED 10 TH SEPTEMBER 2014 BEFORE CIT(A) AND COPY OF DOCUMENTARY EVIDENCE IN R ESPECT OF OWNERSHIP OF AGRICULTURAL LAND BY THE FATHER OF THE ASSESSEE AND COPIES OF LAND REVENUE RECEIPTS FOR THE AGRICULTURAL LAND OWNED BY THE FAT HER OF ASSESSEE SUBMITTED AS ANNEXURE TO THE SUBMISSION DATED 23 RD JANUARY, 2015. THE CIT(A) IS NOT JUSTIFIED IN CONFIRMING PENALTY U/S 271 (1 )(C) OF THE INCOME TAX ACT, 1961. 6. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AND CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE ASSESSEE FAILED TO GIVE EXPLANATION FOR THE CASH DEPOSITED IN THE BANK SINCE THE DOCUMENTS ARE PRODUCED BEFORE THE CIT(A). THE ASSESEE SUBMITTED PHOTOCOPY OF AFFIDAVI T ALONG WITH THE SUBMISSION DATED 10 TH SEPTEMBER 2014 BEFORE CIT(A) AS WELL AS COPY OF DO CUMENTARY EVIDENCE IN RESPECT OF OWNERSHIP OF AGRICULTURAL LA ND BY THE FATHER OF THE ASSESSEE AND COPIES OF LAND REVENUE RECEIPTS FOR TH E AGRICULTURAL LAND OWNED BY THE FATHER OF ASSESSEE ALONGWITH THE SUBMISSION DATED 23 RD JANUARY, 2015. THE DOCUMENTS PRODUCED BY THE ASSESSEE WAS NOT CONS IDERED BY THE ASSESSING OFFICER AS WELL AS THE CIT(A). THE SAME NEEDS TO B E CONSIDERED. THE MATTER IS REMANDED BACK TO THE CIT(A) FOR TAKING THE COGNIZAN CE OF THESE DOCUMENTS AND ARRIVED AT A PROPER AND VALID FINDINGS. NEEDLESS T O SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPALS OF N ATURAL JUSTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD MARCH, 2018 . SD/- SD/- (R. S. SYAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDI CIAL MEMBER DATED: 23/03/2018 4 ITA NO. 3748/DEL/2015 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 20/03/2018 PS 2. DRAFT PLACED BEFORE AUTHOR 21/03/2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2018 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 23.03.2018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 2 3 .03.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.