Mr. Amit Bali, Delhi V. ITO, New Delhi

ITA 4393/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6786 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-10-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 11-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL KUMAR KHANNA
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SM C - II , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 4393 /DEL/2016 : ASSTT. YEAR : 2011 - 12 AMIT BALI, 95 - A, POCKET - F, MAYUR VIHAR, PHASE - 2, DE LHI - 110091 VS INCOME TAX OFFICER, WARD - 42 ( 1 ) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AGDPB7048N ASSESSEE BY : SH. ANIL KUMAR KHANNA, CA REVENUE BY : SH. RAJESH KUMAR , SR. DR DATE OF HEARING : 20 .10 .201 6 DATE OF PRONOUNCEMENT : 28 . 10 .201 6 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30 .0 5 .2016 OF LD. CIT(A) - 21 , NEW DELHI . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS.4,95,000/ - MAD E BY THE AO BY CONSIDERING THE SAME AS UNEXPLAINED CASH DEPOSITS. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 26.08.2011 DECLARING AN INCOME OF RS.14,78,250/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAD ITA NO. 4393 /DEL /201 6 AMIT BALI 2 DEPOSITED RS.2,70,000/ - IN PUNJAB NATIONAL BANK AND RS.2,25,000/ - IN ICICI BANK IN CASH. HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SAID DEPOSITS. THE ASSESSEE SUBMITTED THAT THE AMOUNT WAS RECEIVED FROM HIS MOTHER - IN - LAW, SMT. SARLA DEVI. HE ALSO FILED A LETTER WRITTEN BY SMT. SARLA DEVI STATING THAT SHE HAD TRANSFERRED THIS AMOUNT OF RS.4,95, 000/ - TO THE ACCOUNTS HELD BY HER SON - IN - LAW AND DAUGHTER. HE ALSO FILED A COPY OF THE BANK STATEMENT OF SMT. SARLA DEVI. THE AO ASKED THE ASSESSEE TO PRODUCE SMT. SARLA DEVI AND LATER ON RECORDED HER STATEMENT ON OATH U/S 131 OF THE ACT WHEREIN S HE STATED THAT SHE HAD GIVEN CASH TO THE ASSESSEE OUT OF SALE PROCEED S OF SOME GOLD SOLD BY HER AND OUT OF THE CASH WITHDRAWALS. THE AO OBSERVED THAT NO DOCUMENTARY EVIDENCE FOR SALE OF GOLD WAS FURNISHED AND TOTAL CASH WITHDRAWALS WERE ONLY OF RS.86,000/ - WHICH COULD BE ATTRIBUTED TO THEIR HOUSEHOLD EXPENSES. THE AO ACCORDIN GLY MADE THE ADDITION OF RS.4,95 ,000/ - BY CONSIDERING THE SAME AS UNEXPLAINED CASH DEPOSITS. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDE R: 'WE HAVE ALREADY FILED STATEMENT OF FACTS AND GROUNDS OF APPEAL ALONG WITH FORM NO. 35 OF APPEAL. WE ENCLOSE THE FOLLOWING DOCUMENTS: ITA NO. 4393 /DEL /201 6 AMIT BALI 3 1) STATEMENT O F SMT . SARLA DEVI RECORDED ON OATH U/S 131 OF INCOME TAX ACT 1961 ON 20/02/2014 IN CONNECTION WITH ASSESSME NT PROCEEDINGS OF SH. AMIT BAL I . 2) COPY OF BANK STATEMENT OF PUNJAB NATIONAL BANK AND ICI CI BANK. SMT. SALRA DEVI (MOTHER IN LAW OF THE ASSESSEE) BEING THE SENIOR CITIZEN HAS REITERATED AND CONFIRMED ON OATH THAT THE MONEY WAS GIVEN BY HER TO DAUGHT ER AND SON IN LAW FROM TIME TO TIME AND ALSO CONFIRMED THE SOURCE OF MONEY BUT SHE FAILED TO GIVE DOCUMENTARY EVIDENCE IN RESPECT OF SALE OF JEWELLERY. SHE HAD NOT MAINTAINED THIS RECORD AND IT CAN'T BE INFERRED THAT SHE HAS NOT GIVEN THE MONEY. ALL THE AN SWERS GIVEN IN THE STATEMENT SHE EMPHATICALLY AND REPEATEDLY SAID WE ARE OLD AND RETIRED PERSON WE USED TO KEEP CASH WITH US AND THE MONEY HAS BEEN GIVEN BY M E TO MY DAUGHTER AND SON - IN - LAW. ON THE BASIS OF DOCUMENTS STATEMENT OF SMT. SARLA DEVI THE ASSES SEE CAN'T BE HELD TO BE THE OWNER OF AFORESAID MONEY U/S 69A OF INCOME TAX ACT 1961 WHEN THERE IS A DIRECT CONFIRMATION BY SMT SAR L A DEVI THAT SHE HAD GIVEN THE MONEY. THUS THERE IS NO JUSTIFICATION FOR TREATING THIS AMOUNT AS UNEXPLAINED MONEY IN THE HAND S OF ASSESSEE. WITHOUT PREJUDICE ABOVE SUBMISSION IN CASE THE AO WAS NOT SATISFIED WITH THE SOURCE OF MONEY OF SMT. SARLA DEVI (MOTHER IN LAW OF THE ASSESSEE). HE WOULD HAVE REFERRED THIS MATTER TO THE AO WHO IS HOLDING JURISDICTION OF SMT. SARLA DEVI IN DE HRADUN TO MAKE ADDITION OF THIS AMOUNT IN HER HAND. UNDER NO CIRCUMSTANCES WHEN THERE IS NO DENIAL BY THE PERSON ITA NO. 4393 /DEL /201 6 AMIT BALI 4 WHO HAS GIVEN THE MONEY THUS IT CAN'T BE ADDED IN THE HANDS OF SH. AMIT BALL. FURTHER YOU WILL APPRECIATE UNDER THE INDIAN TRADITION AND CULTURE THE IN LAWS, THE PARENTS AFTER MARRIAGE OF THEIR DAUGHTER GIVE LOT OF MON EY TO THEIR DAUGHTER AND SON - IN - LAW FROM TIME TO TIME . IN VIEW OF THE ABOVE FACTS AND DOCUMENTS ADDITION MAY PLEASE BE DELETED.' 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: ON PERUSAL OF MATERIAL AVAILABLE ON RECORD IT IS OBSERVED THAT THE APPELLANT WAS GIVEN ADEQUATE TIME AND SUFFICIENT OPPORTUNITY TO ESTABLISH TH E NATURE AND SOURCE OF CASH DEPOSITS AMOUNTING RS.4,95,000/ - IN HIS BANK ACCOUNT BUT THE APPELLANT HAS FAILED TO DISCHARGE HIS ONUS AS HE COULD NOT PROPERLY EXPLAIN THE CAPACITY OF SMT. SARLA DEVI, WHO IS CLAIMED TO HAVE GIVEN ABOVE CASH TO THE APPELLANT. IN THIS REGARD, SMT. SARLA DEVI STATED THAT SHE SOLD HER GOLD JEWELLERY TO RAISE THIS FUND SO AS TO GIVE THE SAME TO THE ASSESSEE. IN HER STATEMENT RECORDED ON OATH, SHE CATEGORICALLY STATED THAT SHE DID NOT HAVE THE DETAIL OF SUCH GOLD SALE AND THAT SHE A LSO FAILED TO EXPLAIN THE SOURCE OF ACQUISITION OF ABOVE GOLD JEWELLERY. IT IS ALSO FOUND THAT SHE IS NOT AN INCOME TAX ASSESSES. MOREOVER, SMT. SARLA DEVI DID NOT HAVE ANY OTHER SOURCE OF INCOME AND THAT IT WAS SIMPLY CLAIMED THAT THE CASH GIVEN TO HER SO N - IN - LAW WAS FROM HER PAST SAVING AND SALE OF GOLD JEWELLERY. ON BEING GIVEN OPPORTUNITY TO EXPLAIN THE DETAILS OF ITA NO. 4393 /DEL /201 6 AMIT BALI 5 GOLD SALE, SHE COULD NOT FURNISH NAME & ADDRESS OF THE JEWELER TO WHOM SHE CLAIMED TO HAVE SOLD HER GOLD JEWELLERY. ON BEING ASKED TO EXPLAIN WHY SHE DID NOT USE BANKING CHANNEL TO SEND THE CASH TO HER SON - IN - LAW, THE SAME WAS NOT PROPERLY EXPLAINED. TAKING ALL THE ABOVE INTO CONSIDERATION, I AGREE WITH THE AO'S FINDING THAT THE APPELLANT HAS FAILED TO ESTABLISH THE CREDITWORTHINESS OF HER MOTH ER - IN - LAW SO AS TO EXPLAIN THE NATURE AND SOURCE OF CASH DEPOSITS. THEREFORE, THE ADDITION MADE BY THE AO ON A/C OF UNEXPLAINED CASH DEPOSITS AMOUNTING RS.4,95,000/ - IS CONFIRMED. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE REITERA TED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PR ESENT CASE, THE ASSESSEE PRODUCED THE MOTHER - IN - LAW BEFORE THE AO WHO RECORDED HER STATEMENT WHEREIN SHE CATEGORICALLY STATED THAT THE IMPUGNED AMOUNT WAS GIVEN BY HER TO DAUGHTER AND SON - IN - LAW DURING THE PERIOD 01.04.2010 TO 31.03.2011. SHE ALSO STATED T HAT SHE AND HER HUSBAND WERE RETIRED INDIVIDUALS AND RECEIVED A MONTHLY PENSION AS PART OF THEIR SERVICES IN UNITED KINGDOM AND THE IMPUGNED AMOUNT HAD BEEN A PART OF THEIR SAVING BOTH IN CASH AND GOLD OVER THE YEARS WHICH SHE HAD SOLD TO SUPPORT CASH REQU IREMENT. SHE ALSO ITA NO. 4393 /DEL /201 6 AMIT BALI 6 STATED THAT THE GOLD WAS PART OF HER STREE DHAN AND SOME PART WAS RECEIVED BY HER ON VARIOUS OCCASIONS FROM HER RELATIVES AND FAMILY MEMBERS. SHE ALSO STATED THAT BEING OLD AND RETIRED PERSONS THEY USED TO KEEP CASH WITH THEM FOR CONTINGE NT REQUIREMENTS. THE AFORESAID CONTENT S OF THE STATEMENTS GIVEN BY SMT. SARLA DEVI WERE NOT PROVED TO BE FALSE. I, THEREFORE, BY CONSIDERING THE SMALLNESS OF AMOUNT AND THE FACT THAT MOTHER - IN - LAW AND FATHER - IN - LAW OF THE ASSESSEE WERE RECEIVING PENSION , T HE AMOUNT IN QUESTION WAS GIVEN OUT OF PAST SAVING AND BY SELLING THE GOLD JEWELLERY, SET ASIDE THE IMPUGNED ORDER AND THE ADDITION SUSTAINED BY THE LD. CIT(A) IS DELETED. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRON OUNCED IN THE CO URT ON 28 /10 /2016) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 28 /10 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR