ITO, New Delhi V. Sh. Ramesh Kumar Sehgal, New Delhi

ITA 4127/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52548 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 18-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: VINAY CHOWLA
• Keywords: Opportunity of being heard; Tax effect
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4127/DEL/2009 ASSESSMENT YEAR: 2005-06 ITO, VS. RAMESH KUMAR SEHGAL, WARD 20(3), 223, TAGORE PARK, NEW DELHI. NEW DELHI. AAAPS3760R (APPELLANT) (RESPONDENT) & ITA NO. 4198/DEL/2009 ASSESSMENT YEAR: 2005-06 RAMESH KUMAR SEHGAL, VS. ITO, 223, TAGORE PARK, WARD 20(3), NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. ANUSHA KHURANA, SR. DR RESPONDENT BY : VINAY CHOWLA, ADV. ORDER PER C.L. SETHI, J.M. BOTH DEPARTMENT AND ASSESSEE ARE IN APPEAL AGAINST THE ORDER DATED 3.8.2009 PASSED BY LD. CIT(A) IN TH E MATTER OF AN ASSESSMENT MADE BY THE ASSESSING OFFICER U/S 144 OF THE I.T. ACT, 1961 (THE ACT), FOR THE A.Y. 2005-06. ITA NOS. 4127 & 4198/D/2009 2 2. IN THIS CASE, AN ADDITION OF RS. 11,80,000/- WAS MADE BY THE AO ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACC OUNT OF THE ASSESSEE DURING THE RELEVANT PERIOD AS THE SOUR CE OF SAID DEPOSIT WAS NOT EXPLAINED BY THE ASSESSEE. ON AN A PPEAL, LD. CIT(A) DELETED THE ADDITION TO THE EXTENT OF RS. 8 LAKH BY HOLDING THAT THE ASSESSEE HAS BEEN ABLE TO PROVE AN D ESTABLISH THE SOURCE OF DEPOSIT OF RS. 8 LAKH IN TH E BANK ACCOUNT, AS THE SAME WAS MADE OUT OF THE WITHDRAWAL S MADE FROM THE SAME BANK ACCOUNT ITSELF. HOWEVER, THE AD DITION OF THE BALANCE AMOUNT OF RS. 3,80,000/- WAS UPHELD BY THE LD. CIT(A). THE REVENUE IS IN APPEAL AGAINST THE LD. C IT(A)S ORDER IN DELETING THE ADDITION OF RS. 8 LAKH, AND T HE ASSESSEE IS IN APPEAL AGAINST THE LD. CIT(A)S ORDER IN SUST AINING THE ADDITION OF RS. 3,80,000/-. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 4. THE REVENUE HAS DISPUTED THE CIT(A)S ORDER IN D ELETING THE ADDITION OF RS. 8 LAKH OUT OF THE TOTAL ADDITIO N OF RS. 11,80,000/- MADE BY THE AO. THE TAX EFFECT ON AN AMOUNT OF RS. 8 LAKH WOULD BE BELOW RS. 3 LAKH. THE DEPARTME NT AHS RECENTLY ISSUED AN INSTRUCTION BEARING NO. 3/2011 D ATED ITA NOS. 4127 & 4198/D/2009 3 9.2.2011 WHICH IS IDENTICAL TO ITS EARLIER INSTRUCT ION BEARING NO. 5/2008 DATED 15.5.2008 EXCEPT THAT IN SO FAR AS APP EAL TO TRIBUNAL IS CONCERNED, THE MONETARY LIMIT HAS BEEN RAISED FROM RS. 2 LAKH TO RS. 3 LAKH. THE HONBLE JURISDICTION AL HIGH COURT OF DELHI IN NUMBER OF CASES HAS TAKEN A VIEW THAT I NSTRUCTION BEARING NO. 3/2011 DATED 9.2.2011 WOULD APPLY EVEN TO THE OLD PENDING APPEALS. SINCE, IN THE PRESENT CASE, THE T AX EFFECT ON AMOUNT OF RS. 8 LAKH IS BELOW RS. 3 LAKH, THE PRESE NT APPEAL FILED BY THE REVENUE IS FOUND TO BE NOT MAINTAINABL E IN THE LIGHT OF THE INSTRUCTION NO. 3/2011 DATED 9.2.2011 ISSUED BY THE DEPARTMENT. WE, THEREFORE, DISMISS THE REVENUES A PPEAL AS NOT MAINTAINABLE. EVEN OTHERWISE ON MERIT, WE FIND THAT THE LD. CIT(A) HAS DELETED THIS ADDITION OF RS. 8 LAKH AS T HE SAME WAS DEPOSITED IN THE BANK ACCOUNT FROM THE WITHDRAWALS MADE FROM THE BANK ACCOUNT ITSELF. THUS, THE APPEAL FIL ED BY THE REVENUE IS DISMISSED. 5. NOW, WE COME TO THE APPEAL FILED BY THE ASSESSEE AGAINST THE ADDITION OF RS. 3,80,000/- SUSTAINED BY THE LD. CIT(A). THE ASSESSEE HAS CONTENDED THAT THE AMOUNT OF RS. 3,80,000/- WAS MADE OUT OF THE CASH AVAILABLE WITH THE ASSESSEE FROM THE AMOUNT RECEIVED FROM HIS MOTHER. AFTER HEARING BOTH THE PARTIES AND IN THE LIGHT OF THE FA CTS AND ITA NOS. 4127 & 4198/D/2009 4 CIRCUMSTANCES OF THE CASE, WE FIND THAT THIS STAND OF THE ASSESEE NEEDS VERIFICATION AND EXAMINATION AT THE E ND OF THE AO IN AS MUCH AS THE ASSESSMENT MADE BY THE AO WAS EX- PARTE. WE, THEREFORE, RESTORE THE ISSUE REGARDING THE ADDITION OF RS. 3,80,000/- TO THE FILE OF THE AO FOR HIS FRE SH ADJUDICATION AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. IT SHALL BE THE BURDEN OF THE ASSESSEE TO PROVE AND ES TABLISH THE SOURCE OF DEPOSIT OF RS. 3,80,000/- IN THE BANK ACC OUNT BY ADDUCING SUFFICIENT AND ADEQUATE EVIDENCES. WE ORDE R ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED AS NOT MAINTAINABLE, AND THAT OF THE ASSE SSEE IS ALLOWED FOR A STATISTICAL PURPOSE. 7. THIS DECISION WAS PRONOUNCED ON 18.8.2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (SHAMIM YAHYA) (C.L. SETH I) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.8.11 *KAVITA ITA NOS. 4127 & 4198/D/2009 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR