Shri Balwant Singh, Haryana V. ACIT, Haryana

ITA 4105/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6938 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 22-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: R R SINGH
• Keywords: Reason to believe
• Section: 133A; 133(6); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.4105/DEL/2016 ASSESSMENT YEAR : 2011-12 BALWANT SINGH, H.NO.2178, URBAN ESTATE, JIND, HARYANA. VS. ACIT, BHIWANI, HARYANA. PAN : ATUPS0483Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.R. SINGH CA DEPARTMENT BY : SHRI S. L. ANURAGI, SR. DR DATE OF HEARING : 18-07-2018 DATE OF PRONOUNCEMENT : 26-07-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 23.03.2016 OF CIT(A), FARIDABAD RELATING TO ASSESSM ENT YEAR 2011-12. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR NON-APPEARANCE. SUBSEQUENTLY, THE TRIBUNAL VIDE M.A. NO.594/DEL/201 7 ORDER DATED 02.01.2018 RECALLED ITS EARLIER ORDER. HENCE THIS IS RECALLED MATTER. 3. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THEY ALL RELATE TO THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.12,95,250/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED CASH TRANSACTION, THE SOURCE OF WHICH HAS NOT BEEN EXPLAINED. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE HAD FILED THE ORIGINAL RETURN OF INCOME ON 24.11.2011 DECLARING TOTAL INCO ME OF RS.1,89,990/- AND 2 ITA NO.4105/DEL/2016 AGRICULTURAL INCOME OF RS.9,12,240/-. ON THE BASIS OF SURVEY CONDUCTED U/S 133A AT THE BUSINESS PREMISES OF THE ASSESSEE ON 28 .03.2012 DURING WHICH CERTAIN MATERIALS/PAPERS WERE IMPOUNDED, THE CASE O F THE ASSESSEE WAS REOPENED U/S 148 OF THE I.T. ACT, 1961 AFTER RECORDING THE F OLLOWING REASONS :- REASONS FOR RE-OPENING THE CASE U/S 148 READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961. AS PER INFORMATION OBTAINED FROM THE J&K BANK, DWAR KA, NEW DELHI UNDER SECTION 133(6) OF THE INCOME TAX ACT. THE ASSESSEE HAS CONSTRUCTED M/S DALAMWALA HOTEL & BANQUET HALL, JIND AND SPENT RS.11373600/- UPTO 08.11.2010 ON CONSTRUCTION OF THE HOTEL. THE ASSESSEE FILED RETURN OF INCOME OF RS.189990/- + AGRI. INCOME OF RS.912240/- BUT NO SUCH INVESTMENT HAS BEEN DECLARE D IN THE RETURN OF INCOME. LOOSE PAPER NO.94 IMPOUNDED DURING THE COURSE OF SU RVEY REVEALED THAT THE ASSESSEE RAISED LOAN OF RS.15,00,000/- IN CASH ON 3 0.04.2010 IN VIOLATION OF SECTION 269SS OF THE INCOME TAX ACT IN WHICH HE FAILED TO D ISCLOSE IN THE RETURN OF INCOME. LOOSE PAPER NO.98 IMPOUNDED DURING THE COURSE OF SU RVEY REVEALED THAT THE ASSESSEE RAISED LOAN OF RS.7,50,000/- IN CASH FROM HIS NEPHEW SHRI PAWAN IN VIOLATION OF SECTION 269SS ON THE INCOME TAX, ACT AND RE PAID RS.2,00,000/- IN CASH IN VIOLATION OF SECTION 269T OF THE INCOME TAX ACT AND PAID INTE REST OF RS.274000/- AND FAILED TO DISCLOSE THE SAME IN THE RETURN OF INCOME. I HAVE THEREFORE REASON TO BELIEVE THAT OWING TO FA ILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS IN THE RETURN OF INCOME HAS INCOME TO THE EXTENT OF RS.1,13,73,600/- + RS.15,00 ,000/- AND RS.7,50,000/- = RS.1,36,23,600/- + RS.7,50,000/- HAS ESCAPED ASSESS MENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE STATEMENT OF SHRI BALWANT SINGH WAS RECORD ED DURING SURVEY ON 28.03.2012 DURING WHICH HE HAD ADMITTED THAT THERE WAS TOTAL INVESTMENT OF RS.3,20,00,000/-. HOWEVER, THE DISTRICT VALUATION OFFICER IN HIS REPORT HAS ESTIMATED THE TOTAL INVESTMENT OF RS.3,97,48,433/- WHICH HAS BEEN SPREAD OVER A PERIOD OF 5 YEARS FROM FINANCIAL YEAR 2007-08 TO 20 11-12. HE, THEREFORE, DID NOT MAKE ANY ADDITION ON ACCOUNT OF THIS POINT. THE AS SESSING OFFICER, HOWEVER, ON 3 ITA NO.4105/DEL/2016 THE BASIS OF CERTAIN DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY MADE ADDITION OF RS.12,95,250/- ON ACCOUNT OF UNEXPLAINE D CASH TRANSACTIONS, THE SOURCE OF WHICH ACCORDING TO HIM WAS NOT EXPLAINED. 6. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER BY OBSERVING AS UNDER :- 6.3 I HAVE CONSIDERED THE FACTS OF THE CASE TOGETH ER WITH THE SUBMISSIONS OF THE APPELLANT. IN THE WRITTEN SUBMISSIONS RECEIVED VIA E-MAIL, THE APPELLANT HAS NOT BROUGHT OUT ANY FRESH FACTS, WHICH HAVE NOT BEEN CO NSIDERED EARLIER BY THE AO IN THE ASSESSMENT ORDER. IN FACT WHATEVER CONTENTIONS HAV E BEEN MADE BY THE APPELLANT HAVE NOT BEEN SUPPORTED BY ANY DOCUMENTARY EVIDENCE. FO R EXAMPLE, IN THE WRITTEN SUBMISSION, THE APPELLANT HAS STATED THAT THE COPY OF SALE DEED, BANK PASS BOOK ETC. HAVE BEEN ANNEXED WITH THE SUBMISSIONS, HOWEVER, NO SUCH DOCUMENTS HAVE BEEN ANNEXED. ALL THE OTHER SUBMISSIONS MADE BY THE APP ELLANT HAVE BEEN CONSIDERED BY THE AO IN PARAS 4 TO 7 OF THE ASSESSMENT ORDER. IT IS ALSO EVIDENT THAT ALL THE CONTENTIONS OF THE APPELLANT HAVE BEEN CONSIDERED A ND REBUTTED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, IN VIEW OF THESE FACTS, I FIND NO MERITS IN THE SUBMISSIONS OF THE APPELLANT AND I FIND NO REASON T O INTERFERE WITH THE ORDER OF THE AO. THUS, THE APPEAL OF THE APPELLANT IS DISMISSED AND THE ADDITION MADE BY THE AO IS UPHELD. 6.1 AGGRIEVED WITH SUCH ORDER OF LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE THE TRIBUNAL CHALLENGING THE ABOVE ADDITION. 7. AFTER HEARING BOTH THE SIDES, I FIND THE ORDER O F THE LD. CIT(A) IS VERY CRYPTIC ONE AND HE HAS NOT PASSED A SPEAKING ORDER ON THIS ISSUE IN THE LIGHT OF THE SUBMISSION MADE BEFORE HIM. CONSIDERING THE TO TALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROP ER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE O NE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE WITH DOCUMENTARY EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER. THE ASSESSEE IS ALSO HER EBY DIRECTED TO SUBSTANTIATE HIS 4 ITA NO.4105/DEL/2016 CASE WITH EVIDENCES WITHOUT SEEKING ANY ADJOURNMENT . THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICA L PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH JULY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 26-07-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI