ACIT, New Delhi V. Sh Gavendra Kumar Sharma, New Delhi

ITA 4203/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74392 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH SENIOR
• Keywords: Peak credit; Additional evidence
• Section: 133A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.4203/DEL./2012 (ASSESSMENT YEAR : 2009-10) ACIT, CIRCLE 43 (1), VS. SHRI GAVENDRA KUMAR SHAR MA, NEW DELHI. A 1/30, IST FLOOR, PANCHSHEEL ENCLAVE, NEW DELHI 110 016. (PAN : AAUPS2694C) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SATPAL SINGH, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT (APPEALS)-XXX, NEW DELHI DATED 08.05.2012 FOR THE A SSESSMENT YEAR 2009- 10. 2. THE ASSESSEE IS A SALARIED EMPLOYEE. THE RETURN OF INCOME WAS FILED ON 21.07.2009 DECLARING INCOME AT RS.29,65,714/-. THE ASSESSING OFFICER MADE AN ADDITION OF RS.19,02,100/- AS INCOME FROM UNEXPL AINED INVESTMENTS/ DEPOSITS U/S 69 OF THE INCOME-TAX ACT, 1961. THE C IT (A) HAS PARTLY DELETED THE ADDITION BY EVALUATING THE EVIDENCES SUBMITTED BY THE ASSESSEE AS UNDER :- ITA NO.4203/DEL./2012 2 I HAVE GONE THROUGH THE ENTIRE FACTS OF THE CASE & ALSO THE JUDICIAL PRONOUNCEMENTS REFERRED BY THE ASSESSEE AN D CAME TO THE CONCLUSION THAT THE A.O., BEFORE PASSING SUCH AN OR DER, COULD HAVE MADE AN EFFORT TO COLLECT SOME MORE CORROBORATIVE E VIDENCES OR HAVE TELESCOPED THE TRANSACTIONS OF THE ASSESSEE TO ESTA BLISH THE CORRECT FACTS THAT THE TRANSACTIONS ARE OF GENUINE OR NOT. WITHOUT DOING SO HE HAS PASSED THE ORDER IN HASTE. THE ASSESSEE HAD PUR CHASED ANOTHER HOUSE/PLOT FROM UNITECH/PIONEER GROUP AT A COST OF RS.25,11,533/- (INCLUDING STAMP DUTY) IN 2004 THROUGH AGREEMENT TO SELL BUT REGISTERED ON 17/3/2009. THE APPELLANT HAD ALSO PAI D 11 LAKHS STAMP DUTY ON THE PURCHASE OF HOUSE AT RS.2.20 CRORES FRO M MR. NARESH N PANDEY AND OTHERS. THE APPELLANT DERIVES SALARY INC OME OF FOLLOWING FOR 3 AYS AS SHOWN BELOW:- ASSESSMENT YEAR RETURNED TOTAL INCOME 2007-08 13,17,175/- 2008-09 21,31,426/- 2009-10 29,65,714/- TOTAL 64,14,315/- THE APPELLANT HAD AVAILED HDFC HOME LOAN OF RS.1,30,00,000/- ON 29/01/2009. THE HOME LOAN FROM STANDARD CHARTERED BANK ON GURGA ON (NIRVAN COUNTY) HAD BEEN CLOSED ON 20/02/2009 BY TH E BANK. DETAILS OF LOAN AMOUNT IS 19,00,000/- TAKEN ON 10/0 2/2004 @ 10% P.A. REGARDING BALANCE OF RS.2,18,500/- AND RS.40, 000/- IT IS SUBMITTED BEFORE AO, BY THE ASSESSEE THAT THESE WER E FROM CASH WITHDRAWALS AND LOAN FROM WIFE RESPECTIVELY HAD NOT BEEN ACCEPTED BY THE AO AND HAS MADE THE ADDITIONS. THE ASSESSEE DURING THE APPEAL HEARING HAS SUBMITTED THAT THE AO HAD NOT TE LESCOPED THE BANK ENTRIES FOR SUCH WITHDRAWALS AND DEPOSITS, WITHOUT DOING SO HE HAS ADDED BACK TO INCOME. FURTHER ASSESSEE HAS CONTENDE D THAT THE AO COULD ALSO HAVE APPLIED PEAK CREDIT AND TELESCOPING THEORIES BEFORE ARRIVING TO SUCH A NAIVE CONCLUSION TO MAKE AN ADDI TION AND LIABLE THE ASSESSEE TO PAY TAX. THE ASSESSEE WITH REGARD TO LOAN FROM WIFE OF RS. 4 0, 000/-, HAS SUBMITTED THAT IN A HINDU SOCIETY CULTURE, THER E IS A HABIT OF SAVING MONEY BY THE HOUSE WIFE. SO WHENEVER, THE MO NEY REQUIRED BY THE HUSBAND, ALWAYS WIFE WILL COME TO THE RESCUE OF HER HUSBAND BY GIVING HER SAVINGS MONEY TO THE HUSBAND. IN THE GIVEN ITA NO.4203/DEL./2012 3 CIRCUMSTANCES TAKING LOAN FROM WIFE TO THE EXTENT O F SMALL AMOUNT OF RS.40,000/- IS NOT UN REASONABLE AND NOT TO BE DOUB TED. ASSESSEE FURTHER HAS REQUESTED TO RENDER THE JUSTICE IN A FA IR AND EQUITABLE, TO UPHOLD THE FACTS OF THE CASES AND GENUINITY OF THE TRANSACTIONS. THE MISTAKES ON THE PART OF THE APPELLANT ARE :- (A) THE APPELLANT DOES NOT MAINTAIN ANY BOOKS OF A /CS LIKE CASH BOOK, LEDGER, JOURNAL ETC EXCEPT BANK PASS BOO K. THE IT ACT PROVIDES OF MAINTENANCE OF BOOKS OF A/CS WHEN TURN OVER OF APPELLANT EXCEEDS 10 LAKHS RUPEES . THE APPELLANT HAD RETURNED INCOME OF RS.30 LAKHS FO R THIS YEAR AND BESIDES THIS INCOME, HE IS HAVING INC OME FROM SALE/PURCHASE OF PROPERTY BUSINESS, WHICH MAY YIELD CAPITAL GAINS INCOME. THE APPELLANT SHOULD MAINTAIN BALANCE SHEET AND CAPITAL A/C IN FUTURE. H IS ACCOUNTS SHOULD ALSO BE AUDITED BY CA. (B) THE EXPLANATION OF SALE OF JEWELLERY AND CASH D EPOSIT BRINGS NO OTHER EVIDENCES INTO ACCOUNT. THE APPELLA NT SHOULD HAVE DECLARED THE GOLD & JEWELLERY IN W.T. RETURNS. THE ACTION OF THE DEPARTMENT SLOWS DOWN WHEN THE AP PELLANT GIVES AFFIDAVITS THAT HE HAD SOLD JEWELLERY AND OUT OF SA LE PROCEEDS, HE DEPOSITED THE CASH IN HIS BANK A/CS. THE AO COULD H AVE TAKEN STATEMENT ON OATH FROM FATHER AND FATHER-IN-LAW OF APPELLANT OR MAKE INSPECTOR ENQUIRY IN SUCH CASE TO STRENGTHEN THE CA SE. THE AO COULD HAVE ALSO MADE LOCAL ENQUIRY OR SURVEY U/S 133A TO FIND OUT THE TRUTH IN THE CASE. HOWEVER, CONSIDERING THE OVERALL CIRCU MSTANCES, AND FACTS OF THE CASE, IT JUSTIFIED TO SUSTAIN ADDITION OF RS . 5 LAKHS TO THE TOTAL INCOME OF THE APPELLANT FROM UNDISCLOSED SERVICES A ND BALANCE ADDITION IS DELETED. 3. NOW, THE REVENUE IS IN APPEAL BY TAKING THE FOLL OWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN : ITA NO.4203/DEL./2012 4 1. DELEING AN ADDITION OF RS.14,02,100/- OUT OF TO TAL ADDITION OF RS.19,02,100/- BY ACCEPTING ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE I.T. RULES. 2. WHETHER THE CIT (A) HAS IGNORED THE MATERIAL FAC T THAT NEITHER THE GENUINENESS OF THE TRANSACTION OF THE SALE OF J EWELLERY IN CASH NOR THE IDENTITY OF THE ALLEGED PURCHASER COULD BE ESTA BLISHED. 3. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 4. AFTER HEARING THE REVENUE, WE FIND THAT THE CIT (A) HAS DELETED THE ADDITION BY PROPER EVALUATION OF THE EVIDENCES SUBM ITTED BY THE ASSESSEE. THE ASSESSEE WAS ABLE TO PRODUCE CORROBORATIVE EVIDENCE OF THE TRANSACTIONS IN ITS BANK ACCOUNT. THEREFORE, ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION ON ACCOUNT OF CASH DEPOSIT IN THE ICICI SA VING BANK ACCOUNT NO.017701540729 U/S 69 OF THE ACT. IN VIEW OF THES E FACTS, WE FIND NO FAULT IN THE ORDER OF THE CIT (A) AND WE SUSTAIN THE SAME . 4. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 28 TH DAY OF MARCH, 2014. SD/- SD/- (A.T. VARKEY) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 28 TH DAY OF MARCH, 2014/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.