ITO, New Delhi V. Shri Ajay Kumar, Delhi

ITA 3825/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2198 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 31-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Assessee Lawyers: UMESH VARMA
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA : VICE PRESIDENT AN D SHRI D.R. SINGH : JUDICIAL MEMBER ITA NO. 3825/DEL/08 ASSTT. YR: 2005-06 INCOME-TAX OFFICER, VS. AJAY KUMAR WARD 34(2), NEW DELHI. PROP. M/S NITIN CLOTH MER CHANT, 3630, RAM NAGAR, LONI ROAD, SHAHDARA, DELHI-110032. PAN/ GIR NO. AJCPK 8617 J ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : MS. PRATIMA KAUSHIK, SR. DR RESPONDENT BY : SHRI UMESH VARMA CA O R D E R PER G.E. VEERABHADRAPPA, V.P: THIS APPEAL, FILED BY THE REVENUE, ARISES OUT OF TH E ORDER DATED 15-9- 2008 OF THE CIT(APPEALS)-XXVII, NEW DELHI, FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE IS AN INDIVIDUAL. AN INFORMATION W AS RECEIVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD DEPOSITED R S. 97,34,030/- IN CASH IN DIFFERENT BRANCHES OF THE STANDARD CHARTERED BANK, AS UNDER: ITA 3825/DEL/08 AJAY KUMAR 2 S. NO. BRANCH OF STANDARD CHARTERED BANK AMOUNT D EPOSITED 1. EXHIBITION ROAD, PATNA RS. 11,95,200/- 2. 10, SANSAD MARG, NEW DELHI RS. 69,85,320/- (17,00,000+52,55,320) 3. PREET VIHAR, DELHI RS. 15,53,510/- 3. THE ASSESSING OFFICER SENT LETTER TO ALL THE THR EE BRANCHES OF THE STANDARD CHARTERED BANK, ASKING FOR TO SUBMIT COPY OF THE ACCOUNT IN THE CASE OF THE ASSESSEE ALONG WITH THE ACCOUNT OPENING FORM. VIDE LETTER DATED 4-10-2007, THE BANK AUTHORITIES AT HEAD OFFICE SENT THE COPY OF THE ACCOUNT AND ALSO THE ACCOUNT OPENING FORM. WHEN ASKED TO EX PLAIN THESE DEPOSITS, THE ASSESSEE DENIED THE EXISTENCE OF ACCOUNT AND DE POSITS THEREOF. THE ASSESSING OFFICER MADE ADDITION OF RS. 97,34,030/- TO THE DECLARED INCOME BY APPLYING THE PROVISIONS OF SECTION 68 OF THE ACT. 4. BEFORE THE CIT(A), THE ASSESSEE PRODUCED VARIOUS DETAILS INCLUDING THE DETAILS OF THE BANK ACCOUNT AS ALSO THE BANK CERTIF ICATE, CONFIRMING THE DETAILS. THE CIT(APPEALS) CONSIDERED THE ISSUE ON T HE BASIS OF THIS INFORMATION AFTER CALLING FOR THE REMAND REPORT FRO M THE ASSESSING OFFICER AND OPINED THAT OUT OF THE THREE BANK ACCOUNTS OF STAND ARD CHARTERED BANK, MENTIONED IN THE ASSESSMENT ORDER, ONLY ONE SAVING BANK A/C OF PREET VIHAR, DELHI PERTAINED TO THE ASSESSEE, WHICH HAS BEEN DUL Y DISCLOSED IN THE BOOKS OF ACCOUNT. BESIDES, THE ASSESSEE WAS ALSO HAVING A CURRENT ACCOUNT WITH THE ORIENTAL BANK OF COMMERCE FOR DAY-TO-DAY BUSINESS T RANSACTIONS OF THE ITA 3825/DEL/08 AJAY KUMAR 3 FIRM, WHICH WERE DULY RECORDED IN THE BOOKS OF ACCO UNT. THE OTHER TWO BANK ACCOUNTS OF STANDARD CHARTERED BANK, IN THE LIGHT O F THAT INFORMATION WAS HELD TO BE NOT BELONGING TO THE ASSESSEE. THE ASSES SEE FILED AN AFFIDAVIT IN SUPPORT OF THE SUBMISSIONS. BASED ON THESE EVIDENCE S, THE ADDITION WAS DELETED BY THE CIT(A). THE REVENUE HAS QUESTIONED THE DELETION OF ADDITION AND HAS ALSO DISPUTED THE ADMISSION OF ADDITIONAL E VIDENCE. 5. THE LEARNED DR REITERATED THE GROUNDS AS ALSO TH E DISCUSSIONS IN THE ASSESSMENT ORDER. THE LEARNED COUNSEL FOR THE ASSES SEE, ON THE OTHER HAND, RELIED UPON THE DISCUSSIONS IN THE ORDER OF THE CI T(APPEALS). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE RECORD. AS THE FACTS REVEAL, THE ONLY BASIS ON WHIC H THE ADDITION IS MADE BY THE ASSESSING OFFICER, IS ON THE BASIS OF THE AIR I NFORMATION. BEFORE THE CIT(A), THE ASSESSEE FILED ALL THE DETAILS PERTAIN ING TO THE BANK ACCOUNTS AND HAS SPECIFICALLY DENIED THE EXISTENCE OF THE 2 BAN K ACCOUNTS IN THE NAME OF THE ASSESSEE. HE HAS FILED AN AFFIDAVIT IN SUPPORT THEREOF. THE LEARNED CIT(A), AFTER ADMITTING FRESH EVIDENCE, HAD GIVEN OPPORTUNITY TO THE ASSESSING OFFICER TO SEND A REMAND REPORT. THAT MEA NS, PROVISIONS OF RULE 46A HAVE NOT BEEN VIOLATED BY THE CIT(A). IT IS WEL L WITHIN THE POWERS OF THE CIT(A) TO ENTERTAIN THE EVIDENCE. THE ONLY THIN G THAT IS REQUIRED OF HIM IS THAT HE SHOULD GIVE AN OPPORTUNITY TO THE ASSESS ING OFFICER AND HE HAS ITA 3825/DEL/08 AJAY KUMAR 4 GIVEN SUCH OPPORTUNITY TO THE ASSESSING OFFICER. TH E ASSESSING OFFICER BEFORE HE JUSTIFIES THE ADDITION TO THE EXTENT OF RS. 97,3 4,030/-, SHOULD DISCUSS AS TO HOW THE SAID TWO BANK ACCOUNT BELONGED TO THE ASSES SEE . THIS INFORMATION IS NOT FORTHCOMING IN THE ASSESSMENT ORDER. THEREFORE, THE CIT(A) WAS CORRECT IN LAW IN DELETING THE ADDITION, WHICH HAS NO LEGS TO STAND IN THE EYES OF LAW. WE DO NOT FIND ANY INFIRMITY OR FLAW IN THE ORDER OF THE CIT(A) IN DELETING THE SAID ADDITION. THE APPEAL, BEING DEVOID OF MERI TS, IS DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON _____-12-2009. ( D.R. SINGH ) (G.E.VEERA BHADRAPPA) JUDICIAL MEMBER VICE PRESIDENT DATED: ____-12-2009 MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 3825/DEL/08 AJAY KUMAR 5