ACIT, New Delhi V. Sh. Ashok Hemrajani, New Delhi

ITA 4238/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0706 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-01-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: SATYAM SETHI
• Keywords: Unexplained cash credit
• Section: 68; 144

Judgement Text

ITA NO. 4238/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4238/DEL/2009 A.Y. : 2005-06 ACIT, CIRCLE - 42(1), ROOM NO. 621, MAYUR BHAVAN, NEW DELHI (PAN/GIR NO. : AAVPH9488C) VS. SHRI ASHOK HEMRAJANI, 43/4, GROUND FLOOR, EAST PATEL NAGAR, NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. SATYAM SETHI, ADVOCATE DEPARTMENT BY : MRS. ANUSHA KHURANA, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 13/7/2 009 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOM E TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION MADE O N ACCOUNT OF UNSECURED LOANS AND CASH DEPOSITS IN BANK. 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 144 OF THE IT ACT. THE ASSESSING OFFICER IN THIS CASE MADE DISALLOWANCE OF ` 9,70,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS FROM FOLLOWI NG PERSONS:- I) KANHAIYA HEMRAJANI ` 500000/- II) RAJA PAPER MILL ` 320000/- III) SHIV HEM GARMENTS ` 100000/- IV) POOJA HEMRAJANI ` 50000/- ` 970000/- ITA NO. 4238/DEL/2009 2 3.1 ASSESSING OFFICER NOTED THAT ASSESSEE HAD NOT FURNISHED CONFIRMATION FROM LOAN CREDITORS WITH THE COPY OF BAN K STATEMENTS AND INCOME TAX RETURN PARTICULARS. IN THESE CIRCUMST ANCES, HE TREATED IT AS UNEXPLAINED INCOME OF THE ASSESSEE U/S 68 OF THE IT ACT. 3.2 ASSESSING OFFICER FURTHER NOTED THAT IN THE SA VINGS BANK ACCOUNT OF THE ASSESSEE THERE IS DEPOSIT OF ` 70,000/- IN C ASH ON 7.8.2004. IN THE ABSENCE OF ANY INFORMATION AND EXPLANATION. IN T HIS REGARD, ASSESSING OFFICER TREATED THE SAME AS ASSESSEES I NCOME FROM UNDISCLOSED SOURCES AND ADDED THE SAME U/S 68 OF TH E IT ACT. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE MADE ELABORATE SUBMISSIONS INCLUDING ADDITIONAL EVID ENCES WHICH INCLUDED CONFIRMATION AND ACCOUNTS OF THE LOAN CRED ITORS. 4.1 AS REGARDS, ` 70,000/- DEPOSITS IN CASH IN BANK ACCOUNT, IT WAS SUBMITTED THAT THE SAME WAS RECEIVED FOR THE SALE OF MARUTI ZEN CAR. AS THE SUBMISSIONS AND DOCUMENTARY EVIDENCES, WERE NOT SUBMITTED BEFORE THE ASSESSING OFFICER, LD. COMMISSIONER OF INC OME TAX (APPEALS) SENT THE SAME TO THE ASSESSING OFFICER F OR SCRUTINY AND REPORT. CONSIDERING THE REMAND REPORT LD. COMMISSIO NER OF INCOME TAX (APPEALS) HELD AS UNDER:- IN THIS REMAND REPORT THE ASSESSING OFFICER HAS ME NTIONED THAT THE ASSESSEE HAS PRODUCED THE CONFIRMATION AS W ELL AS COPY OF CHEQUE AND BANK STATEMENT IN CASE OF ALL TH E CREDITORS. HIS ONLY RESERVATION IS THAT THE CREDI TWORTHINESS OF THE CREDITORS WAS NOT PROVED, AND ONE OF THE CRE DITORS NAMELY MISS. POOJA HEMARANJANI HAD NOT FILED HER IT R ETURN. AS REGARDS THE CASH RECEIPTS AGAINST THE SALE OF MA RUTI CAR THE ONLY OBJECTION RAISED BY THE ASSESSING OFFICER IS THAT THE ITA NO. 4238/DEL/2009 3 CASH WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSES SEE AFTER MORE THAN TWO MONTHS. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AS WELL AS THE REMAND REPORT SUBMITTED BY T HE ASSESSING OFFICER AND I AM OF THE VIEW THAT THE CA SH CREDITS TREATED AS UNEXPLAINED BY THE ASSESSING OFFICER HA VE NOW BEEN PROPERLY EXPLAINED ALONGWITH NECESSARY AND SUF FICIENT EVIDENCE WHICH HAVE ALSO BEEN EXAMINED BY THE ASSESS ING OFFICER WHO HAS NOT MADE ANY ADVERSE COMMENTS. A F EW MINOR OBJECTIONS RAISED BY THE ASSESSING OFFICER IN HIS REMAND REPORT ARE NOT OF MUCH SIGNIFICANCE AND THEREF ORE, I AM INCLINED TO ACCEPT THE ASSESSEES EXPLANATION. IN VIEW OF THE FACTS AND CIRCUMSTANCES AS STATED AB OVE BOTH THE ADDITIONS OF ` 9,70,000/- MADE BY THE ASSES SING OFFICER ON ACCOUNT OF UNSECURED LOANS AND ` 70,000 /- ON ACCOUNT OF UNEXPLAINED CASH CREDITS IN SAVINGS ACCO UNT ARE DELETED. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT ADDITIONS IN THIS REGARD WERE MADE BY THE ASSESSING OFFICER ONLY ON THE GROUND THAT NECESSARY DOCUMENTS WERE NO T FURNISHED. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ASSESSEE SUBMITTED THE CONFIRMATIONS AS WELL AS RELEVANT DETA ILS, ASSESSING OFFICER IN THE REMAND REPORT ACCEPTED THAT ASSESSEE HAD PRODUCED CONFIRMATIONS AS WELL AS COPY OF CHEQUE AND BANK STA TEMENTS IN THE CASE OF ALL CREDITORS. AS REGARDS THE SALE OF MAR UTI CAR, ASSESSING OFFICERS OBJECTION WAS ONLY THAT CASH WAS DEPOSI TED IN THE BANK AFTER MORE THAN 2 MONTHS. IN OUR CONSIDERED OPINION, ASSE SSEE HAS ITA NO. 4238/DEL/2009 4 DISCHARGED ITS BURDEN AND PROVED THE VERACITY OF TH E TRANSACTIONS OF THE LOAN TAKEN AND THE CASH DEPOSITS. 7. IN THE BACKGROUND OF THE AFORESAID DISCUSSION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) AND HENCE, WE UPHOLD THE SAME. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7/01/2011. SD/- SD/- [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 7/01/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES