ACIT, New Delhi V. Sh. Anil Dhingra, New Delhi

ITA 3759/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90993 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: S K GUPTA
• Keywords: Unexplained cash credit; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A, NEW DELHI) BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 3759/DEL/2011 ASSESSMENT YEAR : 2005-06 ACIT, CC-18, VS. SHRI ANIL DHINGRA, NEW DELHI B-131, SHEIKH SARAI, PHASE I, NEW DELHI GIR / PAN:AAPPD9828G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. JAISWAL, SR. DR RESPONDENT BY : SHRI S K GUPTA, CA DATE OF HEARING : 16.04.2015 DATE OF PRONOUNCEMENT : 24.04.2015 ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORD ER OF LD. CIT(A) DATED 02.05.2011. THE GROUNDS OF APPEAL TAKEN BY R EVENUE ARE AS UNDER: 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND IN FACTS IN DELETING THE ADDITION OF RS. 6,63,300/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCL OSED INVESTMENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF RS. 10,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF INVESTMENT IN FDR. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF RS. 11,05,000/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF LOAN GIVEN TO SMT. RITA DHINGRA. ITA NO.3759/DEL/2011 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF RS. 7,52,522/- MADE BY THE ASSESSING OFFICER OUT OF THE DRAWING FO R PERSONAL EXPENSES. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADD ITION OF RS. 1,44,000/- MADE BY THE ASSESSING OFFICER ON COUNT O F UNEXPLAINED CASH CREDITS. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING ADDITION AL EVIDENCES UNDER RULE 46A? 7. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2. LD. D.R. AT THE OUTSET INVITED OUR ATTENTION TO THE RELEVANT PARAGRAPHS OF ASSESSMENT ORDER AND SUBMITTED THAT THE ADDITION S MADE BY A.O. WERE BASED UPON FACTS AND WERE MADE AS THE ASSESSEE WAS UNABLE TO EXPLAIN THE SAME. HE HEAVILY RELIED UPON THE ORDER OF THE A.O. LD. D.R. FURTHER SUBMITTED THAT LD. CIT(A) HAD ACCEPTED ADDITIONAL EVIDENCE IN VIOLATION OF THE PROVISIONS OF RULE 46A OF I. T. RULES. 3. LD. A.R. ON THE OTHER HAND SUBMITTED THAT THE PR OVISION OF RULE 46 A WERE NOT VIOLATED AND LD. CIT(A) HAD OBTAINED REMAN D REPORT FROM THE A.O. AND THE A.O. IN HIS REMAND REPORT HAS COMMUNICATED MERITS OF ADDITION AND LD. CIT(A) AFTER TAKING INTO ACCOUNT THE OBJECTION OF THE A.O. IN REMAND REPORT HAS ACCEPTED THE CONTENTION OF ASSESSEE AND HAS THEREBY GIVEN RELIEF AND THEREFORE, THERE WAS NO VIOLATION OF RULE 46A. LD. A.R. INVITED OUR ATTENTION TO VARIOUS FINDINGS OF LD. CIT(A) AND SUB MITTED THAT EACH AND EVERY ADDITION MADE BY A.O. WERE EXPLAINED AND THER EFORE, LD. CIT(A) HAS RIGHTLY DELETED THE ADDITIONS. IN RESPECT OF GRO UND NO.3 RAISED BY REVENUE, LD. A.R. SUBMITTED THAT THE AMOUNT OF RS.11.05 LACS WAS EXPLAINED TO HAVE BEEN RECEIVED AS LOAN FROM SMT. RITA DHINGRA, WIFE OF THE ASSESSEE AND SHE ITA NO.3759/DEL/2011 3 WAS ALSO BEING ASSESSED BY THE SAME A.O., THEREFORE , THE FACT OF HAVING GIVEN LOAN BY SMT. RITA DHINGRA TO THE ASSESSEE WAS VERIF IABLE FORM THE RECORDS AVAILABLE WITH THE REVENUE AUTHORITIES. LD. A.R. H EAVILY RELIED UPON THE ORDER OF LD. CIT(A). 4. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT LD. CIT(A) HAS ALLOWED REL IEF TO THE ASSESSEE ON VARIOUS ADDITIONS AFTER OBTAINING REMAND REPORT AND AFTER DISCUSSING THE OBJECTIONS OF A.O. ON MERITS. THEREFORE, THERE IS NO RELATION OF PROVISIONS OF RULE 46A, THEREFORE, GROUND NO.6 TAKEN BY REVENUE I S DISMISSED. AS REGARDS MERITS FOR DELETIONS MADE BY LD. CIT(A), HE HAS DELETED THE SAME BY HOLDING AS UNDER:: 5.3 FINDING ON GROUND NO. 3: I HAVE CONSIDERED THE OBSERVATION OF THE AO IN THE ORDER OF ASSESSMENT, SUBMISSION OF THE APPELLANT, REMAND REP ORT OF THE AO AND THE EXPLANATION OF THE APPELLANT IN THE REJOINDER T O THE REMAND REPORT. AFTER CAREFULLY CONSIDERING THE RELEVANT FACTS OF T HE CASE IT IS NOTICED THAT OUT OF THE TOTAL INVESTMENT OF RS. 6,63,300/-, THE AO HAS IN THE REMAND REPORT OBJECTED TO THE TWO INVESTMENT OF RS. 30,000/~DATED 10/1/05 AND RS. 1,96,300/-DATED 30/3/05 ONLY. OTHER INVESTMENTS HAVE NOT BEEN COMMENTED UPON BY THE AO IN THE REMAND REP ORT WHICH IMPLIES THAT HE IS AGREEABLE TO THE EXPLANATION REG ARDING THE SOURCE OF INVESTMENT FOR RS. 4,37,000/- AND THEREFORE EFFECTI VELY ONLY THE ADDITION OF RS. 30,000/- AND RS. 1,96,300/- HAS TO BE CONSIDERED IN THE PRESENT APPEAL. I HAVE GONE THROUGH THE CASH ACCOUN T FURNISHED BY THE APPELLANT IN THE PAPER BOOK AND I FIND THAT THE APP ELLANT HAD SUFFICIENT AMOUNT OF CASH AVAILABLE AS PER THE CASH BOOK SO AS TO ENABLE TO HIM TO MAKE THE INVESTMENT OF THE ABOVE AMOUNTS. REGARD ING THE OBJECTION OF THE AO, THAT THE CASH WITHDRAWN MIGHT HAVE BEEN SPENT BY THE APPELLANT SOMEWHERE ELSE AND THERE WAS NO CHANCE OF THE APPELLANT HAVING CASH IN HAND WITH HIM SUFFICIENT ENOUGH TO M AKE CASH DEPOSITS WITH THE BANK FROM WHICH THE INVESTMENT HAS BEEN MA DE BY THE APPELLANT, I FIND THAT THE ABOVE OBJECTION OF THE A O IS NOT SUPPORTED BY ANY HARD EVIDENCE AND IS BASED ON GENERAL OBSERVATI ON. SINCE THERE IS ITA NO.3759/DEL/2011 4 NO COGENT MATERIAL BEFORE THE AO TO SUPPORT HIS ABO VE SUSPICION OF THE APPELLANT HAVING SPENT THE CASH BALANCE ON SOME OTHER ACTIVITIES, I ALLOW A RELIEF OF RS. 6,63,300/-. ' 6.3 FINDING ON GROUND NO.4. I HAVE CONSIDERED THE ENTIRE MATERIAL AVAILABLE IN THE FORM OF OBSERVATION IN THE ASSESSMENT ORDER AND THE SUBMISS IONS OF THE APPELLANT AND THE REMAND REPORT AND REJOINDER OF TH E APPELLANT THEREON. FROM THE BRIEF DISCUSSION IN THE ASSESSMEN T ORDER, I FIND THAT THE ONLY REASON GIVEN BY THE AO IS THAT FDR IS NOT REFLECTED IN THE STATEMENT OF AFFAIRS OF THE APPELLANT AS ON 31/3/05 . I FIND THAT IN THE NEXT GROUND THERE IS CONTENTION RAISED ON BEHALF OF THE APPELLANT THAT THE SAID FDR WAS HANDED OVER TO THE WIFE FOR AVAILM ENT OF CREDIT FACILITIES FROM BANK AND THEREFORE, THE AMOUNT OF F DR WAS DEBITED TO THE ACCOUNT OF WIFE OF APPELLANT, MRS. RITA DHINGRA . THE CONFIRMATION OF MRS. RITA DHINGRA IS THERE IN THE PAPER BOOK ON PAGE 17 WHERE, THE AMOUNT OF FDR HAS BEEN CREDITED TO THE ACCOUNT OF T HE APPELLANT BY MRS. RITA DHINGRA ON 31/3/07 AND THEREFORE, THERE W AS A JUSTIFIABLE REASON OF THE ABOVE FDR NOT APPEARING IN THE STATEM ENT OF AFFAIRS OF THE APPELLANT ON 31/3/07. FURTHER, COMING TO THE SO URCE OF THE FDR, THE AO HAS ONLY OBJECTED TO THE SOURCE TO THE EXTEN T OF RS. 35,000/- ONLY, WHICH IS THE CASH DEPOSIT MADE BY THE APPELLA NT IN THE BANK ACCOUNT ON 5/1/05. I HAVE VERIFIED THE CASH ACCOUNT OF THE APPELLANT AND FROM THE PERUSAL OF THE CASH ACCOUNT, I FIND