Ashok Kumar Narula, Delhi V. ACIT, New Delhi

ITA 3917/DEL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2794 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: RIDHI KARAN AGGARWAL
• Keywords: Principle of natural justice; Source of fund; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI A.T.VARKEY , JUDICIAL MEMBER ITA NO. 3917 /DEL/201 3 AY: 200 8 - 09 SH. ASHOK KUMAR NARULA VS. ACIT, CIRCLE 20(1) 2950, HAMILTON ROAD NEW DELHI KASHMIRI GATE DELHI 110 006 PAN: AADPN 6958 P (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RIDHI KARAN AGGARWAL, C.A. RESPONDENT BY : SH. K.K.JAISWAL, SR.D.R. ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX (APPEALS) - XXII, NEW DELHI DATED 31.01. 2013 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 200 8 - 09 . 2. FACTS IN BRIEF: - THE ASSESSEE IS AN INDIVIDUAL AND IS HAVING INCOME FROM HOUSE PROPERTY, INTEREST AND REMUNERATION FROM PARTNERSHIP FIRMS AS WELL AS , INCOME FROM OTHER SOURCES. HE FILED HIS RETURN OF INCOME ON 30.09.2008 DECLARING TOTAL INCOME OF RS.5,98,720/ - . THE A SSESSING O FFICER (A O) COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) OF THE INCOME TAX ACT 1961 (THE ACT) ADDING AN AMOUNT OF RS.5 LAKHS UNDER SECTION 68 OF THE A CT. THE AO HELD THAT THE ASSESSEE HAS SHOWN DEPOSIT OF RS.5,00,000/ - IN THE NAME OF SHR I BALVINDER SINGH AND HAD FAILED TO PROVE THE GENUINENESS OF THE CASH CREDIT WITH DOCUMENTARY EVIDENCE S . HE SUBMITTED THAT THE IDENTITY , GENUINENESS AND CREDITWORTHINESS OF THE DEPOSIT W ERE NOT PROVED . ITA NO. 3917/DEL/2013 A.Y. 2008 - 09 SH. ASHOK KUMAR NARULA, DELHI 2 2.1 . AGGRIEVED THE ASSESSEE CARRIED THE MATTER BEFORE THE FIRST APPELLATE AUTHORITY. THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 2.2. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS. 1. THAT THE LD.A.O. HAS ERRED ON FA CTS AND IN LAW IN COMPLETING THE ASSESSMENT AT AN INCOME OF RS.10.98,720/ - AS AGAINST RETURNED INCOME OF RS.5,98,720/ - BY THE APPELLANT. 2. THE AO HAS WITHOUT APPLYING HIS MIND AND WITHOUT UNDERSTANDING THE FACTS OF THE CASE ADDED THE AMOUNT OF RS.5,00,00 0/ - AS UNEXPLAINED DEPOSITS. 3. THE A O HAS ACTED CASUALLY WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT RECEIVED RS.1,00,000/ - UNLIKE MENTIONED IN THE ASSESSMENT ORDERS. HENCE, THE ORDER SUFFERS FROM FACTUAL INFIRMITY AND HENCE BAD AND VOID. 4. THE A O HAS FAILED TO MENTION THE FACTUAL POSITION CORRECTLY ON RECORD IN THE ORDER ABOUT THE STATEMENT GIVEN BEFORE HIM. THE ORDER IS BASED ON CONJECTURE AND SURMISE, HENCE VOID AB INITIO. 5. THE A O HAS ERRED IN FACTS BY NOT MENTIONING IN THE ORDERS THE COMPLETE FACTS AND DOCUMENTS PLACED AND SUBMITTED BEFORE HIM DURING ASSESSMENT. HENCE ASSESSMENT BASED ON PARTIAL RECORDS IS MERELY AN ASSESSMENT OF CONVENIENCE AND BIASED. ACCORDINGLY SUCH ASSESSMEN T IS LIABLE TO BE QUASHED. 6. THE A O IS NOT JUSTIFIED IN MAKING ADDITION UNDER SECTION 68 AS UNEXPLAINED DEPOSIT WHEREAS ALL THE DOCUMENTS AND PAPERS LIKE BANK STATEMENT, COPY OF ELECTION CARD, COPY OF DOCUMENTS RELATED TO HIS INCOME FROM FARMING , ETC WERE SUBMITTED BEFORE A O TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE LENDER. 7. THE AO HAS NOT GIVEN PROPER OPPORTUNITY OR SHOW CAUSE FOR HIS INTENTION OF MAKING THE ABOVE ADDITION WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 8. THAT THE APPELLANT CRAVES, LEAVES TO ADD, AMEND, AND DELETE ANY OTHER GROUND OF APPEAL. 3. WE HAVE HEARD SHRI K.K.JAISWAL, THE LD.SR.D.R. ON BEHALF OF THE REVENUE AND SHRI RIDHI KARAN AGGARWAL, THE LD.COUNSEL FOR THE ASSESSEE. ITA NO. 3917/DEL/2013 A.Y. 2008 - 09 SH. ASHOK KUMAR NARULA, DELHI 3 4 . ON A CARE FUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF PAPERS ON RECORD AND ORDERS OF THE AUTHORITIES BELOW, AS WELL AS CASE LAWS CITED, WE HOLD AS FOLLOWS. 5. THE A.O. ALLEGED THAT THERE ARE TWO CREDITS ON 28.1.2008.THE FIRST OF RS .4,00,000/ - AND THE SECOND O F RS.1,00,000/ - . THE ASSESSEE HAS DEMONSTRATED WITH EVIDENCE THAT THE AMOUNT OF RUPEES ONE LAKH ALLEGED TO BE A CREDIT ON 28.01.2008 IS NON - EXISTING. THERE IS NO SUCH ENTRY OF RS.1,00,000/ - IN THE BANK STATEMENT OF THE ASSES SEE. HENCE THE ADDITION OF RS.1,00,000/ - HAS TO BE NECESSARILY DELETED AS THIS IS A FACTUAL MISTAKE MADE BY THE REVENUE AUTHORITIES. 5.1. COMING TO THE LOAN OF R UPEES FO U R LAKHS, WE FIND THAT MR BALVINDER SINGH HAS CONFIRMED THAT HE HAS LENT THE SAID AMOUNT AS LOAN TO THE ASSESSEE . THE ASSESSEE HAS FILED THE FOLLOWING DOCUMENTS IN SUPPORT OF HIS CONTENTION THAT THE TRANSACTION OF LOAN IS GENUINE. THESE EVIDENCES ARE: A . CONFIRMATIONS FROM LENDER FOR LOAN AGGREGATING RS.5 LAKHS B . COPY OF ELECTION CARD OF T HE LENDER TO PROVE HIS IDENTITY C . COPY OF BANK STATEMENT DULY REFLECTING THE LOAN TRANSACTION INDICATING HIS CREDIT WORTHINESS D . TO SUBSTANTIATE THE SOURCE OF FUNDS FOR LENDING TO THE APPELLANT, COPIES OF BILLS OF SALE PROCEDS OF AGRICULTURAL COMMODITIES (FROM J) DERIVED OUT OF THE FAMILY LAND HOLDING (IN THE NAME OF HIS FATHER) WERE SUBMITTED BEFORE CIT(A) AS ADDITIONAL EVIDENCE AS THE APPELLANT COULD NOT OBTAIN THEM FROM LENDER DURING ASSESSMENT PROCEEDINGS. 5.2. IN OUR VIEW THE ASSESSEE HAS PRODUCED ALL NECESSARY AND POSSIBLE EVIDENCE TO PROVE THE IDENTITY, C REDITWORTHINESS, AND GENUINENESS OF THE TRANSACTION . THE A.O. HAS SIMPLY REJECTED THESE EVIDENCES. THERE IS NO INDEPENDENT INVESTIGATION BY THE A.O. THERE IS NO MATERIAL WITH TH E A.O. TO DISPROVE THE CLAIM OF THE ASSESSEE. THE LD.CIT(A) HAS FAILED IN HIS DUTY TO PROPERLY APPRECIATE THE EVIDENCES. ITA NO. 3917/DEL/2013 A.Y. 2008 - 09 SH. ASHOK KUMAR NARULA, DELHI 4 THE ASSESSEE HA S ALSO PRODUCED EVIDENCE IN THE FORM OF REPAYMENT OF THE ABOVE LOAN TO MR BALVINDER SINGH TO FURTHER SUBSTANTIATE HIS CLAIM . THE PAYMENT S HA VE BEEN DONE TH ROUGH BANKING CHANNELS. IN VIEW OF THE ABOVE EVIDENCE S, THE ADDITION IN QUESTION HAS TO BE DELETED . WE THEREFORE DELETE THE ADDITION AND ALLOW THE APPEAL FILED BY THE ASSESSEE. 6 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JANUARY, 2016 . SD/ - SD/ - ( A.T. VARKEY ) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 07 TH JANUARY, 2016 MANGA COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR