ITO, New Delhi V. Sh. Ravinder Yadav, New Delhi

ITA 3882/DEL/2010

• Counselvise Citation: 388220114 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 27-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: VIRENDRA PRATAP
• Keywords: Opportunity of being heard
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO: 3882/DEL/2010 A.Y. : 2006-2007 I T O, WARD 27 (3) VS. SH. RAVINDER YADAV ROOM 1, D BLOCK HOUSE 378, VILL. & PO KAPASHERA VIKAS BHAVAN NEW DELHI 37 NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. B.R.R.KUMAR, SR.D.R. RESPONDENT BY : SHRI VIRENDRA PRATAP, FCA O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 11.6.2010 OF CIT(A)-XXIV, NEW DELHI PERTAINING T O A.Y. 2006-07 ON THE FOLLOWING GROUNDS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD .CIT(A) ERRED IN : 1. DELETING THE ADDITION OF RS.13,85,092/- ON ACCOUNT OF UNEXPLAINED DEPOSITS IN BANK. 2. DELETING THE ADDITION OF RS.7,08,750/- FOR PURCHASE OF CAR. 3. DISREGARDING THE ORDER SHEET ENTRY DT. 29.12.2008 W HEREIN ASSESSEE HAD AGREED TO THE ABOVE TWO ADDITIONS. 4. BY ADMITTING THE AFFIDAVIT AND ITS CONTENTS AS EVID ENCE, AND WITHOUT GIVING AN OPPORTUNITY TO THE AO TO REBUT THE SAME. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE RETURNED INCOME OF RS.1,72,234/- WHICH WAS SELECTED FOR SCRU TINY UNDER CASS (AIR) FOR WHICH NOTICE U/S 143(2) WAS ISSUED. AS P ER THE AIR INFORMATION AVAILABLE WITH THE A.O. IT WAS SEEN THAT THE ASSESS EE HAS DEPOSITED AN AMOUNT OF RS.15 LAKHS IN CASH WITH BANK OF BAORDA A ND PURCHASED CAR FOR RS.7,08,750/- FROM GALAXY TOYOTA P.LTD. IN RES PONSE TO WHICH THE ITA 3882/DEL/2010 PAGE 2 OF 6 A.Y. 2006-2007 SHRI RAVINDER YADAV, NEW DELHI ASSESSEE FILED A COPY OF BANK ACCOUNT, COPY OF RETU RN FOR A.Y. 2006-07 COPY OF CAR REGISTRATION CERTIFICATE COPY OF KASRA KHATONI AND COPY OF SALE DEED OF PLOT IN KAPASHERA AMOUNTING TO RS.17 L AKHS DT. 9.2.2006. HOWEVER COPY OF THE BANK ACCOUNT STATEMENT OF THE S AID BANK WAS NOT FILED, AS A RESULT OF WHICH THE REQUISITE INFORMATI ON WAS SOUGHT BY THE A.O. FROM THE BANK U/S 133(6) WHICH WAS RECEIVED FO R THE PERIOD FROM 1.4.05 TO 31.3.06 FOR ACCOUNT NO.4874. ON A PERUSA L OF THE SAME IT WAS SEEN THAT THESE ARE NOT REFLECTED IN THE ASSESSEE S PARTICULARS OF INCOME. AS SUCH THE A.O. HELD THAT THE ASSESSEE HAS CONCEA LED INCOME ON THE BASIS OF CREDIT ENTRIES WHICH WAS WORKED OUT AS UN DER. CASH DEPOSITED IN BANK RS. 21,09,000/- CHEQUE DEPOSITED IN BANK RS. 9,76,092/- ------------------ RS.30,85,092/- LESS: CASH RECEIVED FROM SALE OF LAND TO OMWATI RS .17,00,000/- ----------------- FUNDS RECEIVED FROM UNDISCLOSED SOURCES RS.13,85,0 92/- ============= 3. THE SAME WAS CONFRONTED TO THE ASSESSEE IN REGAR D TO WHICH NO EXPLANATION WAS GIVEN. AS A RESULT ADDITION OF RS. 13,85,092/- WAS MADE BY THE A.O. FURTHER ADDITION OF RS.7,08,750/- WAS MADE BY THE A.O. ON THE GROUND THAT THE ASSESSEE HAD PURCHASED A CAR A ND NO EVIDENCE FOR AVAILABILITY OF FUNDS FOR THE SAID PURCHASE WERE SH OWN. MOREOVER IT WAS NOT EVEN REFLECTED IN HIS BALANCE SHEET ADDITION OF THE SAID AMOUNT WAS MADE BY THE A.O. ITA 3882/DEL/2010 PAGE 3 OF 6 A.Y. 2006-2007 SHRI RAVINDER YADAV, NEW DELHI 4. IN APPEAL THE ADDITION STOOD DELETED BY THE CIT( A). AGGRIEVED BY WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD.D.R. IN THE CONTEXT OF GROUND NO.4 OF THE DEP ARTMENTS APPEAL INVITED ATTENTION TO THE SPECIFIC OBSERVATIONS IN T HE ASSESSMENT ORDER. IT WAS HIS CONTENTION THAT WHEN THE FACTS WERE CONFRO NTED BY THE A.O. THE ASSESSEE REVISED HIS PROFIT AND LOSS ACCOUNT AND B ALANCE SHEET AND EVEN IN THE REVISED BALANCE SHEET IT HAS BEEN OBSERVED BY THE A.O. IN THE ASSESSMENT ORDER ITSELF THE ASSESSEE HAS NOT REFLEC TED THE SPECIFIC SB ACCOUNT WITH BANK OF BARODA, SMALKHA BRANCH, DELHI. ON ACCOUNT OF THIS FACT THE ASSESSEE AGREED AND OFFERED RS.13,8 5,092/- FOR TAXATION WHICH FACT IS FOUND RECORDED IN THE ASSESSMENT ORDE R. THEREFORE, RS.13,85,092/- WAS ADDED TO THE INCOME OF THE ASSE SSEE AS RECEIVED FROM UNDISCLOSED SOURCES. THUS IN THE FACE OF THIS ADMISSION ON ASSESSEES PART IT WAS ARGUED THE CIT(A) HAS RELIE D UPON SOME AFFIDAVIT WHICH WAS NEVER CONFRONTED TO THE A.O. INVITING AT TENTION TO PAGE 2 PARA 3 OF THE ASSESSMENT ORDER IT WAS SUBMITTED THAT NO EVIDENCE IN REGARD TO THE AVAILABILITY OF FUNDS FOR THE PURCHASE OF CAR W AS FILED BY THE ASSESSEE. IN FACT IT WAS NOT EVEN SHOWN IN ITS BALANCE SHEET AS A RESULT OF THIS ADDITION OF RS. 7,08,950/- WAS MADE. THE FACTUM OF ADMISSION ON THE PART OF THE ASSESSEE THAT THE ADDITION BE MADE IT WAS SUBMITTED HAS BEEN SET OUT IN LAST UNNUMBERED PARA 1 PAGE 1 OF TH E ASSESSMENT ORDER FOR WHICH GROUND NO.3 HAS BEEN RAISED BY THE DEPART MENT. ITA 3882/DEL/2010 PAGE 4 OF 6 A.Y. 2006-2007 SHRI RAVINDER YADAV, NEW DELHI 5.1. IN THE CONTEXT OF THESE FACTS IT WAS ARGUED TH AT THE CIT(A) AS PER PARA 3.1 OF HIS ORDER IN PAGE 5 HAS TAKEN INTO CONS IDERATION THE AFFIDAVIT FILED BY THE ASSESSEE SINCE IT WAS NOT CONFRONTED T O THE AO THIS ACTION HAS BEEN ASSAILED VIDE GROUND NO.4. ACCORDINGLY A PRA YER WAS MADE THAT THE ISSUE BE RESTORED TO RECTIFY THE DEFECT AT THE STAG E AT WHICH IT HAS OCCURRED. THESE ARGUMENTS IT WAS SUBMITTED WOULD A DDRESS GROUND NOS. 3 AND 4 OF THE DEPARTMENT. 5.2. ON MERIT IT WAS HIS ARGUMENT THAT THE CIT(A) H AS ACCEPTED THE FACT THAT THE SAME AMOUNTS HAVE BEEN REPEATEDLY WITHDRAW N AND DEPOSITED. NO EVIDENCE HAS BEEN BROUGHT ON RECORD AS TO WHY TH E ASSESSEE WAS REPEATEDLY WITHDRAWING AND DEPOSITING THE SAME AMOU NTS. THE FINDINGS IN THE ASSESSMENT ORDER IN REGARD TO HIS ADMISSION STAND UNREBUTTED AND THE PLAUSIBILITY OF THE EXPLANATION OF THE ASSESSEE THAT IT IS THE SAME AMOUNT REPEATEDLY WITHDRAWN AND DEPOSITED NEEDS TO BE DEMONSTRATED AS FOR WHAT PURPOSE THE ASSESSEE IS ENGAGED IN THE SUPPOSEDLY AIMLESS EXERCISE OF DEPOSITING AND WITHDRAWING. 6. THE LD.A.R. ON THE OTHER HAND CONTENDED THAT THE ASSESSEE BEFORE THE A.O. MADE AN ADMISSION AS HE WAS AN ILLITERATE MAN NOT ABLE TO COMPREHEND NEITHER THE QUESTION BEING PUT NOR THE A NSWER BEING GIVEN WHICH HAS RESULTED IN THE ADDITION. IT WAS POINTED OUT THAT THIS FACT IS NOT BORNE OUT FROM THE AFFIDAVIT, RELIED UPON BY THE ASSESSEE BEFORE THE CIT(A) COPY OF WHICH IS PLACED IN ASSESSEES PAPER BOOK. TO THIS THE LD.A.R. REPLIED THAT THE AFFIDAVIT ON BEHALF OF THE ASSESSEE WAS GOT ITA 3882/DEL/2010 PAGE 5 OF 6 A.Y. 2006-2007 SHRI RAVINDER YADAV, NEW DELHI PREPARED BY HIM AND HE HAD NOT SET OUT THIS FACT TH ERE. REGARDING THE DEPARTMENTAL OBJECTION THAT IT WAS NOT CONFRONTED TO THE A.O. BY THE CIT(A), LD.A.R. CHOSE TO RELY ON THE IMPUGNED ORDER STATING THAT THE FREQUENCY OF WITHDRAWALS AND DEPOSITS IN THE ACCOUN TS AS PER PAGES 7 AND 8 OF THE PAPER BOOK WAS NECESSITATED SO AS TO ENSURE THAT THE INSTALMENT PAYMENTS FOR THE CAR PURCHASED ARE HONOU RED AS THE CAR IS HYPOTHECATED AND DOES NOT BELONGING TO THE ASSESSEE . AS SUCH RELIANCE WAS PLACED UPON THE IMPUGNED ORDER. 7. THE LD.D.R. ON THE OTHER HAND VEHEMENTLY OPPOSED THE STAND OF THE ASSESSEE ON MERIT STATING THAT IF THE DEPOSIT S WERE MADE FOR INSTALLMENT PAYMENTS FOR CAR PURCHASED THEN THIS LI NE OF ARGUMENT GOES AGAINST THE ASSESSEE HIMSELF AS THEN IT MOST DEF INITELY IS NOT THE SAME AMOUNT WHICH IS BEING DEPOSITED AGAIN AND AGAIN. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES O F THE CASE IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F CIT(A) WITH THE DIRECTION TO CONFRONT THE AFFIDAVIT RELIED UPON BY THE ASSESSEE FILED BEFORE THE CIT(A) TO THE A.O. THE CIT(A) THEREAFTER TAKI NG INTO CONSIDERATION THE ARGUMENTS ON BEHALF OF THE ASSESSEE ON THE REMA ND REPORT ETC. WHICH MAY BE OBTAINED SHALL DECIDE THE ISSUE IN ACCORDANC E WITH LAW BY WAY OF A SPEAKING ORDER. NEEDLESS TO SAY THAT THE ASSESSE E SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD. IN VIEW OF THE FACT THAT THE ISSUE ITA 3882/DEL/2010 PAGE 6 OF 6 A.Y. 2006-2007 SHRI RAVINDER YADAV, NEW DELHI HAS BEEN RESTORED, THE FINDINGS CHALLENGED BY WAY O F GROUND NOS. 1, 2 AND 3 ARE ALSO SET ASIDE AND RESTORED BACK TO THE F ILE OF CIT(A). 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 3 RD FEBRUARY,2012 . SD/- SD/- (A.N.PAHUJA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 03 RD FEBRUARY,2012 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR