DCIT, New Delhi V. Sh. Ishpal Bhardwaj, New Delhi

ITA 3852/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3709 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 17-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'C, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3852/DEL/2013 A.Y. 2006-07 DCIT, CIRCLE 9(1), VS. SH. ISHPAL BHARDWAJ, ROOM NO. 163, 6B, DDA FLATS, NEW FRIENDS COLONY, C.R. BUILDING, NEW DELHI NEW DELHI (PAN: AAAPI8462Q) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. ARUN KUMAR YADAV, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NE W DELHI DATED 25.3.2013 PERTAINING TO ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS:- 1. THAT LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE ADDITION AS MADE U/S. 68 OF THE I.T. ACT, 1961 ON ACCOUNT OF CASH DEPOSITS IN BANKS TO THE EXTENT OF RS. 407,91,837/-. 2 2. THE APPELLANT CRAVES TO AMEND MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED HERE, HENCE, THE SAME ARE NOT REPEATED FOR THE SAKE OF BR EVITY. 3. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE W OULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THERE FORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD S, ESPECIALLY THE ORDER OF THE LD. CIT(A). ON GOING THROUGH THE FINDI NGS OF THE LD.CIT(A) MADE IN THE IMPUGNED ORDER AS WELL AS THE FINDING O F THE ASSESSING OFFICER MADE IN THE ASSESSMENT ORDER, WE FIND THAT AO HAS P ASSED THE ASSESSMENT ORDER DATED 30.12.2008 U/S 143(3) OF THE ACT BY OBSERVING THAT THE ASSESSEE WAS NOT ABLE TO IDENTIFY THE SO CALLED PURCHASER AND ALSO PLACE EVIDENCES OF THEIR CREDITWORTHINESS BY T HEIR BANK STATEMENTS. 3 AO FURTHER OBSERVED THAT FALSE BANK STATEMENTS WERE FILED BY THE PARTIES WHO ARE NOT MAINTAINING BANK ACCOUNT WITH THE RESPE CTIVE BANKS I.E. MAHAMEDHA URBANK CO-OP. BANK LTD. AND DEVELOPMENT C REDIT BANK LTD. AS PER LETTER OF THE BANKS. AGAINST THE ASSESSMEN T ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGN ED ORDER DATED 25.3.2013 HAS PARTLY ALLOWED THE APPEAL OF THE ASS ESSEE BY OBSERVING THAT ASSESSEE HAD SUBMITTED THAT CASH WAS DEPOSITED OUT OF THE WITHDRAWALS MADE EARLIER FOR WHICH THE ASSESSEE HAD SUBMITTED COMPLETE WORKING WITH HIS SUBMISSIONS. LD. CIT(A) FURTHER OB SERVED THAT ASSESSEE HAD SUBMITTED CERTIFICATE DATED 22.1.2010 OF VIJAYA BANK, DF, PHASE-I, GURGAON WITH REGARD TO A/C NO. 831306111000002 AND A/C NO. 831301011000396 EVIDENCING THE FACT THAT THE CHEQUE S FAVOURING ASSESSEE WERE CREDITED TO THE ABOVE SAID ACCOUNTS A ND AS A MATTER OF FACT, THE CASH WITHDRAWALS WERE MADE FROM THE SAID ACCOUNTS. HENCE, THE SOURCE OF DEPOSIT OF CASH IN THE BANK ACCOUNTS STO OD EXPLAINED OUT OF THE CASH WITHDRAWALS MADE BY WAY OF CHEQUES AS AFORESAI D. LD. CIT(A) FURTHER OBSERVED THAT ASSESSEE HAD SUBMITTED COMPL ETE DATE-WISE FUND FLOW STATEMENT OF EACH CASH AND BANK ACCOUNT VIDE L ETTER DATED 3.12.2009 AND ALSO WORKED OUT A PEAK DURING THE YEAR (AS SUBM ITTED VIDE LETTER DATED 28.12.2011), WHICH WAS FORWARDED TO THE AO FO R EXAMINATION AND VERIFICATION BEING A FRESH DOCUMENT SUBMITTED BEFOR E THE LD. CIT(A). LD. CIT(A) ALSO NOTED THAT AO HAS SUBMITTED 03 REMAND REPORTS AND THE SAME WERE VAGUE. AS PER LD. CIT(A) THE WORKING OF THE PEAK AND THE FUND FLOW STATEMENTS AS FORWARDED TO THE AO ALSO RE MAINED UNVERIFIED/ 4 UNEXAMINED WHICH CLEARLY SPEAKS THAT AO HAS NOTHING TO SAY ABOUT THE SAME AND THERE IS NO DISPUTE ABOUT THE PEAK AMOUNT OF RS. 34,22,234/- DURING THE YEAR. FURTHER, THE LD. CIT(A) OBSERVED T HAT ASSESSEE HAS NOT SUBMITTED ANY DETAILS OF THE NET INCOME EARNED/ ACC UMULATED TILL 5.11.2005 AND THEREFORE, THIS BENEFIT CANNOT BE PRO VIDED TO THE ASSESSEE IN THE ABSENCE OF THE SAME, HENCE, ASSESSEE WAS GR ANTED PART RELIEF BY REDUCING THE ADDITION FROM RS. 4,44,11,492/- TO RS. 34,22,234/-. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION, THA T AO HAS COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ACT IN THE ABSENC E OF THE PROPER EVIDENCE, WHICH THE ASSESSEE HAS NOT PRODUCED BEFOR E HIM AND LD. CIT(A) ALSO OBSERVED THAT AO HAD SUBMITTED THREE REMAND RE PORTS AND THE SAME WERE VAGUE, WITHOUT POINTING OUT ANY DEFECT THEREIN . WE ALSO OBSERVED THAT AS PER THE LD. CIT(AS) VERSION THE WORKING OF THE PEAK AND THE FUND FLOW STATEMENTS AS FORWARDED TO THE AO ALSO REMAIN ED UNVERIFIED/ EXAMINED, WHICH NEEDS TO BE EXAMINED. THEREFORE, I N THE INTEREST OF JUSTICE, WE THINK IT PROPER TO SET ASIDE THE ISSU ES IN DISPUTE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, AFTER MAKING PROPER EXAMINATION AND VERIFICATION, AS DEEM FIT. HOWEVER, THE ASSESS EE IS ALSO DIRECTED TO SUBMIT ALL THE NECESSARY DOCUMENTS, AS ASKED BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND FULLY COOPERATE WITH THE AO AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. ACCORDINGLY, THE ISSUE S IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO WITH THE AFORESAID DIRE CTIONS. 5 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23/10/2017. SD/- SD/- (L.P. SAHU) (H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:23/10/2017 'SRBHATNAGAR' COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES