Pawan Kumar Jain, Ghaziabad V. DCIT, Circle-2, Muzaffarnagar

ITA 4141/DEL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0265 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJOG KAPOOR
• Assessee Lawyers: J P SHARMA
• Section: 143(3); 68

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH S.M.C, NEW DELHI , BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER . / ITA NOS.1441 & 4141/DEL/2018 / ASSESSMENT YEARS: 2009-10 & 2010-11 PAWAN KUMAR JAIN, S/O- SHRI KISHORI LAL JAIN, 93-K-C, KAVINAGAR, GHAZIABAD, UTTAR PRADESH PAN-AFVPJ9106Q .......... /APPELLANT VS THE ITO, WARD-1(2), NEW DELHI. . / RESPONDENT / APPELLANT BY : SH. J. P. SHARMA, CA / RESPONDENT BY : SH. SANJOG KAPOOR, SR.DR / DATE OF HEARING : 02.12.2019 / DATE OF PRONOUNCEMENT: 30.12.2019 / ORDER PER SUSHMA CHOWLA, JM: BOTH THESE APPEALS FILED BY ASSESSEE ARE AGAINST TH E ORDER OF CIT(A), MUZAFFARNAGAR, NEW DELHI, DATED 14/11/2017 AND 26/0 3/2018, RELATING TO ASSESSMENT YEARS 2009-10 & 2010-1, RESPECTIVELY AGA INST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHOR T THE ACT). 2. BOTH THESE APPEALS RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDE R FOR THE SAKE OF CONVENIENCE. 2 ITA NOS. 1441 & 4141/DEL/2018 ASSESSMENT YEARS: 2009-10 & 2010-11 3. THE ASSESSEE IN ASSESSMENT YEAR 2009-10 HAS RAIS ED THE FOLLOWING GROUNDS OF APPEAL:- 1) THAT THE AUTHORITIES BELOW HAVE ERRED IN LAW IN NOT ACCEPTING THE EXPLANATION FILED BY THE APPELLANT DURING THE COURSE OF HEARING BEFORE THE LEARNED ASSESSING AUTHORITY & LEARNED CIT (APPEALS) REGARDI NG THE UNSECURED LOAN AND ADVANCES RECEIVED FROM THE VARIOUS PERSON. 2) THAT THE PREJUDICIAL OBSERVATIONS CONTAINED IN THE BODY OF THE ASST. ORDER PASSED BY THE LEARNED ITO AND THE APPELLANT ORDER P ASSED BY THE LEARNED CIT (APPEALS) ARE EITHER UNFOUNDED AND THE SAME ARE NOT SUSCEPTIBLE GIVING RISE TO ANY ADVERSE CONCLUSION. 3) THAT THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED CON FIRMING THE ADDITION MADE BY THE LEARNED ITO REGARDING THE DEPOSIT MADE BY SHRI PANKAJ KUMAR RS. 2,50,000/- AND SMT. SHAIFALI JAIN RS. 10,00,000/- A ND ADVANCE RECEIVED FROM SHRI VIRENDRA KUMAR JAIN RS. 5,00,000/- AGAINST SAL E OF PLOT AS ALL THE PERSONS ARE ASSESSED TO INCOME TAX AND FILE ALL THE MATERIA L EVIDENCES REGARDING THE DEPOSITS AND ADVANCES. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST THE ADDITION MADE U/S 68 OF THE ACT AT RS.17,50,000/-. 5. BRIEFLY IN THE FACTS OF THE CASE, THE ASSESSEES CASE WAS REOPENED U/S 147/148 OF THE ACT. THE REASONS RECORDED FOR REOPEN ING THE ASSESSMENT WERE CASH DEPOSITS IN THE SAVINGS BANK ACCOUNT WITH BANK OF INDIA, RAJ NAGAR, GHAZIABAD. THE ASSESSEE WAS ASKED TO EXPLAIN THE SO URCE OF CASH DEPOSITS OF RS.48,49,000/-. THE EXPLANATION OF THE ASSESSEE WAS THAT SUCH CASH WAS DEPOSITED OUT OF SALE OF IMMOVABLE PROPERTY AND CAS H AVAILABLE IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER FURTHER NOTED DURING THE ASSESSMENT PROCEEDINGS, THAT THE ASSESSEE HAD SHOWN UNSECURED LOANS FROM VARIOUS PERSONS AND ALSO CASH ADVANCE FROM VARIOUS PERSONS AGAINST SALE OF PROPERTY. THE ASSESSEE WAS ASKED TO PROVE THE CREDITWORTHINES S OF THE AFORESAID PERSONS. A SUM OF RS.9 LAKHS WAS RECEIVED FROM SMT . SHAIFALI JAIN AND 3 ITA NOS. 1441 & 4141/DEL/2018 ASSESSMENT YEARS: 2009-10 & 2010-11 VARIOUS AMOUNTS FROM DIFFERENT PERSONS. THE ASSESSI NG OFFICER NOTED THERE WERE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSES SEE, HOWEVER, THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE PERSONS AS TABULATED IN THE TABLE AT PAGE 2 OF THE ASSESSMENT ORDER AND HENCE ADDITION OF RS.22,50,000/- WAS MADE IN THE HANDS OF THE ASSESSEE. 6. BEFORE THE CIT(A), THE ASSESSEE AGAIN FILED THE DETAILS TO PROVE THE CREDITWORTHINESS OF PERSONS AND GENUINENESS OF TRAN SACTIONS. HOWEVER, THE CIT(A) DID NOT ACCEPT THE EXPLANATION IN RESPECT OF LOAN RECEIVED FROM SHRI PANKAJ JAIN, ADVANCE FROM SMT. SHAIFALI JAIN AND S HRI VIRENDRA KUMAR JAIN TOTALING RS.17,50,000/-. THUS, UPHELD THE ADDITION OF RS.17,50,000/- AND DELETED THE ADDITION OF RS.5 LAKHS. 7. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ADDIT ION MADE BY THE CIT(A). 8. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE HAD RECEIVED RS.2,50,000/- FROM SHRI PANKAJ JAIN WHO WAS TAX PAY ER AND ALL THE DETAILS WERE FILED. HOWEVER, BECAUSE OF THE CASH DEPOSITS I N HIS BANK ACCOUNT, SUCH EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED. SIMIL AR WAS THE CASE IN RESPECT OF RS.10 LAKHS RECEIVED FROM SHAIFALI JAIN, WHERE S HE HAD PAID THE SAID AMOUNT AGAINST HER SHARE IN THE PROPERTY. IN RESPEC T OF RS.5 LAKHS RECEIVED FROM SHRI VIRENDRA KUMAR JAIN, THE SOURCE WAS EXPLA INED TO BE OUT OF SALE OF PLOT BY HIM AND IN SUPPORT COPY OF ITR AND BALANCE SHEET WERE FILED. THE LD. AR FOR THE ASSESSEE THUS POINTED OUT THAT THE SOURC E OF SOURCE CANNOT BE ASKED AND THERE WAS NO MERIT IN THE SAID ADDITION. 4 ITA NOS. 1441 & 4141/DEL/2018 ASSESSMENT YEARS: 2009-10 & 2010-11 9. THE LD. DR FOR THE REVENUE HOWEVER STRONGLY RELI ED ON THE ORDERS OF AUTHORITIES BELOW. 10. ON PERUSAL OF THE RECORD AND AFTER HEARING BOTH THE REPRESENTATIVES, THE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST THE ADDITION MADE ON ACCOUNT OF LOANS/ADVANCES RECEIVED FROM DIFFEREN T PARTIES. THE ASSESSEE HAD RECEIVED RS.2,50,000/- FROM SHRI PANKAJ JAIN ON 30/03/2009. THE SAID PERSON IS ASSESSED TO TAX AND ALL THE PARTICULARS I N RESPECT THEREOF WERE FILED. THE COPY OF BANK ACCOUNT AND INCOME TAX RETURN FILE D BY HIM WERE ALSO FILED. THE SAID PERSON EXPLAINED THAT THE DEPOSITS IN HIS BANK ACCOUNT WERE OUT OF HIS SAVINGS AND INCOME OF THE YEAR. IN SUCH FACTS A ND CIRCUMSTANCES, THERE IS NO MERIT IN MAKING ANY ADDITION ON ACCOUNT OF SAID LOAN RECEIVED FROM SHRI PANKAJ JAIN AS THE COURTS HAVE TIME AND AGAIN HELD THAT SOURCE OF SOURCE CANNOT BE GONE INTO. SIMILAR IS THE POSITION IN RE SPECT OF SHRI VIRENDRA KUMAR JAIN FROM WHOM, THE ASSESSEE HAD RECEIVED RS.5 LAKH S ON 03/12/2008. THE SAID PERSON EXPLAINED THAT IT HAD RECEIVED ADVANCES AGAINST SALE OF HIS PLOT SITUATED AT V. SHAHPUR, DIST. MUZAFFARNAGAR AND HAD FILED A COPY OF THE INCOME TAX RETURN AND OTHER RELEVANT DOCUMENTS. ONC E, THE SOURCE HAS BEEN EXPLAINED, THERE IS NO MERIT IN GOING INTO THE SOUR CE OF SOURCE OF THE CREDITORS. AS FAR AS SHAIFALI JAIN IS CONCERNED, SHE HAD ADVAN CED RS.10 LAKHS ON 24/08/2009 AND THE SOURCE WAS LOAN RECEIVED BY HER FROM SHRI VIRENDRA KUMAR JAIN. ALL THE ABOVE TRANSACTIONS WERE REFLECT ED IN HER BANK ACCOUNT AND SHE HAD ALSO FILED A COPY OF ASSESSMENT ORDER. IN SUCH CASE, WHERE THE PERSON IS ASSESSED TO TAX AND HAS EXPLAINED THE SOU RCE OF THE DEPOSITS IN THE 5 ITA NOS. 1441 & 4141/DEL/2018 ASSESSMENT YEARS: 2009-10 & 2010-11 BANK ACCOUNT, THE SOURCE OF SOURCE CANNOT BE ENQUIR ED INTO. HENCE, THERE IS NO MERIT IN MAKING THE AFORESAID ADDITION IN THE HA NDS OF THE ASSESSEE. ACCORDINGLY, THE ADDITION OF RS.11,50,000/- IS DELE TED. 11. THE ASSESSEE IN ASSESSMENT YEAR 2010-11 IS AGGR IEVED BY SIMILAR ADDITION OF RS.19 LAKHS, WHICH WAS OUT OF WITHDRAWA L FROM HIS BOOKS OF ACCOUNT. IN SUPPORT, THE ASSESSEE HAD PRODUCED THE BOOKS OF ACCOUNTS, COPY OF CASH BOOK, COPY OF BANK STATEMENT, ETC. BEFORE T HE ASSESSING OFFICER. HOWEVER, THE CASE OF THE DEPARTMENT IS THAT THE ASS ESSEE HAD FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE FOR THE SOURCE OF SAID CAS H DEPOSITS OF RS.19 LAKHS. ONCE, THE ASSESSEE WAS MAINTAINING BOOKS OF ACCOUNT S AND HAD DULY PRODUCED THE SAME BEFORE THE ASSESSING OFFICER, THEN THERE I S NO MERIT IN MAKING THE AFORESAID ADDITION IN THE HANDS OF THE ASSESSEE. AC CORDINGLY, THE ADDITION MADE OF RS.19 LAKHS IS DELETED IN THE HANDS OF THE ASSESSEE. BOTH THE GROUNDS OF APPEALS RAISED BY THE ASSESSEE ARE ALLOWED. 12. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF DECEMBER, 2019. SD/- (SUSHMA CHOWLA) /JUDICIAL MEMBER / DATED : 30 TH DECEMBER, 2019 . * S SHEKHAR * / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / THE PR. CIT 6 ITA NOS. 1441 & 4141/DEL/2018 ASSESSMENT YEARS: 2009-10 & 2010-11 5. 6. , , / DR, ITAT, DELHI / GUARD FILE. / BY ORDER , , , ASSISTANT REGISTRAR, ITAT, DELHI