Smt. Pema Dolma, New Delhi V. ITO, New Delhi

ITA 4182/DEL/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6911 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 18-10-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 23-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence

Judgement Text

ITA NO. 4182/DEL/2009 A.Y. 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4182/DEL/2009 A.Y. : 2006-07 SMT. PEMA DOLMA, A-277, SF SHIVALIK COLONY, NEW DELHI 110 017 (PAN: AFOPD9355A) VS. INCOME TAX OFFICER, WARD - 24(2) ROOM NO. 192, CR BUILDING, NEW DELHI 110 002 (APPELLANT ) (RESPONDENT ) ASSEESSEE BY : SH. RAJIV JAIN, C.A. DEPARTMENT BY : S H. H.K. LAL, SR. D.R. ORDER PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 15.9.2 009 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE ISSUE RAISED READS AS UNDER:- THAT THE LD. C.I.T.(A)(XXIII WAS WRONG IN UPHOLDIN G THE ADDITION OF AN AMOUNT AGGREGATING TO ` 11,00,000/- WHICH RE PRESENTED LOANS RECEIVED FROM CLOSE RELATIVES, BEING AGRICUL TURIST, AS UNEXPLAINED CREDIT CONSISTING AS UNDER:- S.NO. NAME RELATION ` 1 SONAM, S/O DANDUP JIJA 1,50,000 2 LAMA TOBGIA RAM FATHER 2,00,000 3 TASHI CHHERING CHACHA 2,30,000 ITA NO. 4182/DEL/2009 A.Y. 2006-07 2 4 CHHEWANG RINGZIN COUSIN BROTHER 4,20,000 5 CHHOTTAR SINGH MAMA 1,00,000 TOTAL 11,00,000 3. THE ASSESSEE IN THIS CASE IS RUNNING A PROPRIETAR Y CONCERN ENGAGED IN THE EXPORT OF APRICOT KERENEL AND APRICO T OIL. IT WAS NOTICED THAT ASSESSEES ACCOUNT WITH SYNDICATE BANK IS FOUND CREDITED WITH ` 11,00,000/- ON DIFFERENT DATES. THE ASSES SEE WAS ASKED TO PROVIDE THE DETAILS THEREOF. IN THE DETAILS IT WA S SUBMITTED THAT THE AMOUNT INVOLVED WERE LOANS FROM RELATIVES. THE AMO UNT WERE PAID BY WAY OF BANK DRAFT. ASSESSEE ALSO FILED FIVE CON FIRMATIONS SUPPORTED BY CERTIFICATE OF INCOME FROM ADDITIONAL DISTRICT MAGISTRATE, DISTRICT KINNAUR HIMACHAL AS UNDER:- (A) SONAM S/O DHUNDUP ` 1,70,000/- (B) LAMA TOPGIA ` 1,80,000/- (C) TASHI CHHERING ` 2,30,000/- (D) CHHEWANG RINGZIN ` 4,22,000/- (E) CHATTAR SINGH ` 98,000/- 3.1 IN THE DETAILS ASSESSING OFFICER OBSERVED THAT THEY ARE AGRICULTURISTS AND NOT ASSESSED TO INCOME TAX. THE COPIES OF LAND HOLDINGS HAD ALSO BEEN PLACED ON RECORD. ASSESSING OFFICER ALSO NOTED THAT CERTIFICATE OF INCOME IS PROVIDED BY ADDL. DIST RICT MAGISTRATE, ON THE BASIS OF AFFIDAVITS FURNISHED BY THE CERTIFICAT E SEEKERS. HENCE, ASSESSING OFFICER OPINED THAT THERE IS NO WAY TO E STABLISH THE CREDITWORTHINESS OF THE ENTRY PROVIDERS. ASSESSING OFFICER PROCEEDED ITA NO. 4182/DEL/2009 A.Y. 2006-07 3 TO ADD THE ABOVE AMOUNT AS UNEXPLAINED INCOME OF THE ASSESSEE AMOUNTING TO ` 11,00,000/-. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IT WAS SUBMITTED THAT ASSESSMENT WAS COMPLETED WITHOUT IS SUE OF A SHOW CAUSE NOTICE TO THE PROPOSED ADDITIONS. DURING TH E COURSE OF ASSESSMENT THE ASSESSING OFFICER APPARENTLY APPEAR ED SATISFIED AND HE NEVER EXPRESSED HIS MIND. ASSESSEE FURTHER SUB MITTED THAT ADDITIONAL EVIDENCES TO LD. COMMISSIONER OF INCOME TAX (APPEALS), WHO FORWARD THE SAME UNDER RULE 46A TO THE ASSESSIN G OFFICER FOR SUBMISSION OF REPORT. LD. COMMISSIONER OF INCOME TAX (APPEALS) PROCEEDED TO ANALYSIS THE DETAILS SUBMITTED AND PROC EEDED TO CONCLUDE THAT ASSESSEE HAS NOT BEEN ABLE TO PROVE THE CREDI TWORTHINESS OF THE CREDITORS. 5. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BE FORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT ASSESSEES CLAIM IN THIS REGARD IS THAT S HE HAS RECEIVED LOANS FROM CLOSE RELATIVES WHO ARE AGRICULTURISTS AND NECE SSARY DETAILS REGARDING HOLDING AGRICULTURAL INCOME HAS ALSO BEEN GIVEN, WHICH HAVE BEEN DISBELIEVED BY THE AUTHORITIES BELOW. WE FUR THER NOTE THAT ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM THE CONCERNED PERSONS. IN OUR CONSIDERED OPINION, THIS IS VERY VITAL FOR THE ADJUDICATION OF THIS ISSUE. UNDER THE CIRCUMSTANC ES, WE REMIT THIS ISSUE TO THE FILES OF THE ASSESSING OFFICER TO CON SIDER THE SAME AFRESH. ASSESSING OFFICER SHALL CONSIDER THE ADDITIONAL EV IDENCES FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BY THE A SSESSEE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN A DEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 4182/DEL/2009 A.Y. 2006-07 4 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/10/2010 UP ON CONCLUSION OF HEARING. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 18/10/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES