ITO, New Delhi V. Smt. Renuka Gupta, New Delhi

ITA 4101/DEL/2011

• Counselvise Citation: 410120114 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y N CHAUBEY
• Assessee Lawyers: VIKRAM SAHAY
• Keywords: Unexplained cash credit; Salary income
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A. NO. 4101/DEL/2011 ASSESSMENT YEAR : 2008 - 09 ITO VS . RENUKA GUPTA WARD - 43(4), ROOM NO. 408, 119, AGCR ENCLAVE, 4 TH FLOOR, MAYUR BHAWAN NEAR KARKARDUMA COURT, NEW DELHI. NEW DELHI (PAN AAHPG1501D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y.N. CHAUBEY, CA RESPONDENT BY : SHRI VIK RAM SAHAY, SR. DR O R D E R PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 21.6.2011 OF CIT(A) XXX, NEW DELHI PERTAIN ING TO 2008 - 09 ASSESSMENT YEAR O N THE FOLLOWING GROUNDS : - 1. THE CIT(A) HAS ERRED ON FACTS AN D IN LAW IN DELETING THE ADDITION OF RS. 15,57,500/ - MADE BY THE AO AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T. ACT 1961. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSES S EE BY WAY OF FILING OF HER RETURN DECLARED AN INCOME OF RS. 1,69,503/ - . THE SAID RETURN WAS SELECTED FOR SCRUTINY THROUGH CASS. ACCORDINGLY AFTER ISSUANCE OF NOTICES U/S 143(2) ETC. THE AO TOOK INTO CONSIDERATION THE FACT THAT THE ASSESSEE WHO WAS WORKING WITH HSBC BANK AND DECLARED HER INCOME UNDER THE HEAD SALARY (PEN SION INCOME) ITA 4101/DEL/2011 2 AND ALSO INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCE S HAD MADE AS PER AIR INFORMATION CASH DEPOSITS OF RS. 16,07,500/ - IN KHATTRI CO - OP (U) BANK LTD. KARKARDOOMA. ACCORDINGLY, HE REQUIRED THE ASSES S EE TO EXPLAIN THE SAME . T HE ASSES S EE AS PER THE ASSESSMENT ORDER IS FOUND TO HAVE EXPLAINED VIDE LETTER DATED 21.10.2010 THAT THE SAID BANK ACCOUNT IS IN THE JOINT NAME OF HERSELF ALONGWITH HER H USB AND AND FATHER IN LAW I.E. SHRI PRAVEEN KUMAR GUPTA AND SHRI FAQIR CHAND GUPTA RESPEC TIVELY. THE SAID BANK ACCOUNT WAS STATED TO BE EXCLUSIVELY OPERATED BY THE FATHER IN LAW. THE SAID STATEMENT WAS SUPPORTED BY THE AF FIDAVIT OF SHRI FAQIR CHAND GUP TA (FATHER - IN - LAW) AND COPY OF BANK ACCOUNT STATEMENT ACCEPTING THAT THE ACCOUNT WAS FULLY OP ERATED BY HIM AND THE CASH DEPOSITED IN THE BANK ACCOUNT ALSO BELONGED TO HIM. THE AO VERIFIED TH IS POSITION FROM THE AO OF SHRI FAQIR CHAND GUPTA (ITO WARD 35(4) WHO INFORMED THAT SHRI FAQIR CHAND GUPTA WAS INCOME TAX PAYEE HOWEVER FOR THE YEAR UNDER C ONSIDERATION RETURN OF INCOME HAD NOT BEEN FILED . I N THESE CIRCUMSTANCES ADDITION WAS MADE IN THE HANDS OF THE AS S ES S EE. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY , IT WAS SUBMITTED THAT THE FATHER - IN - LAW HAD FILED HIS RETURN DECLARING PROFI T U/S 44AF AMOUNTING TO RS. 65,817/ - AND SALARY INCOME OF RS. 96,000/ - AND INCOME FROM OTHER SOURCES AMOUNTING TO RS. 35,683/ - AS PER THE COMPUTATI ON OF INCOME FILED THE DEPOSIT S MADE IN CASH IN THE SAID ACCOUNT WERE EXPLAINED AS S ALE PROCEEDS OF RETAIL BUSINESS AND PARTLY PERSONAL SAVINGS ; THE ASSESSEE IN PROOF OF FACT THAT THE FATHER IN LAW HAD FILED THE RETURN OF INCOME WITH ITO WARD 35(4) ON 27.8.2008 ITA 4101/DEL/2011 3 VIDE ACKNOWLEDGEMENT NO. 3325 ALOGNWITH COPY OF INTIMATION U/S 143(1) ALSO FILED THE SAME AND MADE T HE FOLLOWING SUBMISSIONS EXPLAINING THE SAME : - MR. FAQUIR CHAND GUPTA, FATHER IN LAW OF ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING PROFIT U/S 44AF AMOUNTING TO RS. 65,817/ - , @5% OF TO. FROM RETAIL TRADE SALARY INCOME RS. 96,000/ - AND INCOME FROM OTHER SOURCES RS. 35,683/ - AS APPEARS FROM HIS COMPUTATION ENCLOSED. THEREFORE CASH DEPOSITED ON ACCOUNT OF RETAIL BUSINESS U/S 44AF IS RS. 13,16,000/ - ON ACCOUNT OF SALARY INCOME IS RS. 96,000/ - AND REMAINING RS. 195,500/ - IS OUT OF HIS PAST SAVINGS. CALC ULATION FOR THE SAME IS GIVEN HERE UNDER : - TOTAL CASH DEPOSITED INTO BANK RS. 16,07,500.00 CASH DEPOSITED FROM RETAIL BUSINESS U/S 44AF RS. 13,16,000.00 CASH DEPOSITED FROM SAL ARY INCOME 96,000.00 CASH DEPOSITETD FROM PAST SAVINGS MR. FAQUIR CHAND GUPTA RS. 1,95,500.00 TOTAL RS.16,07,500.00 THE ASSESSEE HAS PREPARED THIS STATEMENT IN CONSULTATION WITH MR. FAQIR CHAND GUPTA AND ON THE BASIS OF HIS RETURN OF INCOME FILED WITH ITO 35(4), MR. FAQIR CHAND IS AGED AROUNG 75 YEAR S AND RUN HIS SMALL RETAIL BUSINESS. 4. CONSIDERING THE SAME THE CIT(A) PARTLY ACCEPTED THE CLAIM OF THE ASSESSEE HOLDING AS UNDER : - 5. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE ORDER OF THE AO. THE BANK ACCOUNT WAS JOINT ACCOUN T WITH FATHER IN LAW. HE WAS HAVING SMALL TRADING RETAIL BUSINESS IN CLOTH FOR SO MANY YEARS. HE IS NOW 75 YEARS OLD. I HAVE SEEN THE BANK STATEM EN T AND NOTICED THAT MAJOR TRANSACTIONS APPEARING IN THE BANK ACCOUNT BELONGS TO APPELLANT S FATHER IN LAW. DU RING THE FINANCIAL YEAR 2007 - 08, SUM OF RS. 16,07,500/ - WAS DEPOSITED BY FATHER IN LAW AT NUMBER OF OCCASIONS IN CASH, PARTLY BEING THE SALE PROCEED OF RETAIL BUSINESS AND PARTLY BEING PERSONAL SAVINGS, CASH DEPOSIT INTO KHATRI URBAN CO - OPERATIVE BANK, KAR KARDUMA, DELHI. THE APPELLANT S FATHER IN LAW IS ALSO AN INCOME TAX ASSE S SEE AND FILED HIS RETURN OF INCOME WITH ITO WARD 35(4). ON THESE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT THE APPELLANT HAD DECLARED HIS INCOME OF RS. 1,59,503/ - WHI CH IS VERY SMALL. MOREOVER THE CASH DEPOSITED IN THE BANK AMOUNT IS NOT TO BE CONSIDERED THAT ALL THE TRANSACTIONS WERE MADE BY HER FATHER IN LAW. I AM OF THE VIEW THAT RS. 50,000/ - BE ADDED O N ESTIMATE BA S I S TO THE INCOME OF THE APPELLANT. THE AO IS DIRE CTED TO GIVE THE RELIEF OF RS. 15,57,500/ - AND THE BALANCE AMOUNT OF RS. 50,000/ - IS UPHELD. ITA 4101/DEL/2011 4 5. AGGRIEVED BY THIS , THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. DR MR. SAHAY I NVITING ATTE NTION TO THE ASSESSMENT ORDER AND THE IMPUGNED ORD ER CONTENDED THAT THE CIT(A) H AS GRANTED RELIEF WITHOUT COMING TO ANY CONCLUSIVE FINDING ; IT WAS HIS SUBMISSION THAT IF AT ALL HE WAS CONVINCED THAT THE AMOUNT BELONGED TO THE FATHER IN LAW OF THE ASSESSEE THEN THE OCCASION TO MAKE THE DISALLOWANCE IN TH E HANDS OF THE ASSES S EE DID NOT ARISE. THE FACT THAT ADDITION OF RS. 50,000/ - HAS BEEN SUSTAINED CLEARLY DEMONSTRATES THE FACT THAT ASSESSSEE S SUBMISSIONS HAVE BEEN ACCEPTED WITHOUT ANY REASONING OR BASIS. IN THESE CIRCUMSTANCES IT WAS CLEAR THAT THE IMPU GNED ORDER SHOULD BE SET ASIDE AND ASSESSEE BE DIRECTED TO EXPLAIN EACH AND EVERY ENTRY IN THIS SAID BANK ACCO UNT COPY OF WHICH IS PLACED IN THE PAPER BOOK. THE LD. AR ON THE OTHER HAND RELIED UPON THE IMPUGNED ORDER. 6. W E HAVE HEARD THE RIVAL SU BMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE PAPER BOOK PAGE NO. 49 TO 51 WHICH CONTAINS THE COPY OF THE BANK ACCOUNT . IT IS SEEN THAT THE OPENING BALANCE IN THE SAID BANK ACCOUNT FOR THE YEAR UNDER CONSIDERATION WAS R S . 61,271.88 AND THE CLOSING BALANCE WAS RS. 31,017.46 . A PERUSAL OF THE SAME FURTHER SHOWS THAT THE AO HAS IGNORED THE DEBIT ENTRIES AND HAS MAINLY CHOSEN TO TAKE INTO CONSIDERATION THE CREDIT ENTRIES AND IN FACT THE DEBITS ARE MORE THA N THE CREDITS. IN THESE CIRCUMSTANCES THE REASON FOR CONSIDERING THE CREDIT ENTRIES WAS REQUIRED TO BE ADDRESSED BY THE SR. DR WHO MERELY PLACED RELIANCE ON THE ASSESSMENT ORDER . IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE ON ITA 4101/DEL/2011 5 CONSIDERING ITS SUBMISSIO N OF THE PARTIES, WE FIND NO MERIT IN THE DEPARTMENTAL APPEAL. THE GROUND RAISED IS ACCORDINGLY DISMISSED. 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY, 2 015 . SD/ - SD/ - ( R. S. SYAL ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH F EBRUARY, 2015 VEENA COPY OF THE ORDER FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR, ITAT.