Shri Balbir Singh, Una V. ITO, Una

ITA 442/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86119 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 22-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 442/CHD/2013 ASSESSMENT YEAR: 2005-06 SHRI BALBIR SINGH, VS THE ITO, PROP.. DEEWAN HIGHWAY, UNA UNA PAN NO.ACOPS8690L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI S.K MITTAL DATE OF HEARING : 22.12.2014 DATE OF PRONOUNCEMENT : 12.01.2015 ORDER PER T.R.SOOD, A.M. THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 31/01/2013 OF CIT(A) SHIMLA. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS:- 1. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT AND CONFIRMING THE ORDER OF ASSESSING OFFICER ASSESSING THE INCOME AT RS. 12,70,740/-. 2. THAT THE WORTHY CIT(A) HAS FAILED TO CONSIDER THAT THE APPELLANT WAS NOT GIVEN SUFFICIENT TIME TO EXPLAIN THE SOURCE OF ADDITION OF RS. 10,66,500/- MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF PEAK OF DEPOSITS AND WITHDRAWALS MADE FROM THE BANK ACCOUNT OF THE APPELLANT. 3. THAT THE WORTHY CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE APPELLANT OWNS AGRICULTURAL LAND IN VILLAGE KHADD, DISTT. 2 UNA AND AMOUNT OF RS. 4,75,000/- WAS RECEIVED BY HI M AS EARNEST MONEY FROM THE SALE OF KHAIR TREES ON 05.07 .2004. 4. THAT THE WORTHY CIT(A) HAS ALSO ERRED IN NOT CONSID ERING THAT THE APPELLANTS WIFE ALSO RECEIVED RS. 5,75,700/- F ROM THE SALE OF GOLD ORNAMENTS ON 17.07.2004. 5. THAT THE WORTHY CIT(A) HAS ALSO FAILED TO CONSIDER THAT THE APPELLANT HAD JOINT ACCOUNT WITH HIS WIFE SMT. MANJ IT KAUR AND AMOUNT OF RS. 2,95,000/-, RS. 2,70,000/- AND RS . 5,00,000/- WAS DEPOSITED ON 06.07.2004, 20.07.2004 AND 27.07.2004 RESPECTIVELY OUT OF AMOUNT OF RS. 4,75,0 00/- RECEIVED ON 05.07.2004 AND RS. 5,75,750/- RECEIVED ON 17.07.2004 AS EXPLAINED IN PARA-3 AND 4 ABOVE. 6. THAT THE WORTHY CIT(A) HAS ERRED IN NOT ADMITTING T HE ADDITIONAL EVIDENCE AS FURNISHED DURING THE COURSE OF HEARING. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURI NG ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT ASSESSEE AGREE T O SELL CERTAIN PIECES OF LAND AGAINST WHICH ADVANCE WAS RECEIVED AND THE TRANSACT ION DID NOT MATURE. IN RESPONSE TO FURTHER ENQUIRIES, SOME OF THE PERSONS WERE PRODUCED AND ASSESSING OFFICER ACCEPTED THE RECEIPT OF ADVANCES IN THE CAS E OF SHRI DHANI RAM HEER, SHRI AMAR NATH AND SHRI KRISHAN DEV. IT WAS ALSO C LAIMED THAT ASSESSEE HAS RECEIVED A GIFT OF RS. 90,000/- THAT WAS ALSO FOUND TO BE CORRECT. THE ASSESSEE HAD FURTHER WITHDRAWN A SUM OF RS. 1,20,000/- FROM THE BOOKS OF DIWAN HIGHWAY AND OUT OF THIS A SUM OF RS. 94,500/- WAS SHOWN TO HAVE BEEN UTILIZED AGAINST THESE DEPOSITS. THE ASSESSING OFFICER WAS O F THE OPINION THAT IF THIS CREDIT WAS GIVEN THEN NET HOUSE HOLD WITHDRAWALS WO ULD REMAIN AT RS. 22,500/- WHICH WAS NOT SUFFICIENT AND, THEREFORE, HOUSEHOLD WITHDRAWALS WERE TAKEN AT RS. 70,000/- AND CREDIT FOR RS. 50,000/- WAS GIVEN . IN THIS BACKGROUND, THE ADDITION OF RS. 10,66,500/- WAS MADE AS UNDER:- 3 PEAK WORKED OUT AFTER GIVING CREDITS TO THE DEPOSIT S RS. 22,26,500/- LESS:- WITHDRAWALS FROM CAPITA A/C RS. 50,000/- AS DISCUSSED ABOVE AMOUNT RECEIVED AS PER AGREEMENTS TO SALE LAND AS MENTIONED ABOVE RS. 10,20,000/- GIFT FROM MOTHER RS. 90,000/- RS. 11,60,000 UNEXPLAINED INCOME RS. 10,66,500 4. ON APPEAL, IT WAS MAINLY SUBMITTED THAT ASSESSEE IS OWNER OF AGRICULTURAL LAND AND HAD RECEIVED A SUM OF RS. 4,75,000/- AS EA RNEST MONEY AGAINST THE SALE OF KHAIR TREES ON 5.7.2004. FURTHER, THE ASSESSEE S WIFE HAD RECEIVED A SUM OF RS. 5,75,000/- FROM SALE OF GOLD ORNAMENTS AND OUT OF THIS SOURCE, A SUM OF RS. 2,95,000/- AND RS. 2,70,000/- WERE RECEIVED AND RS. 5 LAKHS WAS DEPOSITED IN THE BANK ACCOUNT ON 6.7.2004, 20.7.2004 AND 27.7.2004. IT WAS PLEADED THAT SINCE SUFFICIENT OPPORTUNITY WAS NOT GIVEN AND, THEREFORE , THIS SORUCE HAVE NOT BEEN TAKEN INTO CREDIT BY THE ASSESSING OFFICER. 5. THE LD. CIT(A) AFTER EXAMINING THE SUBMISSIONS W AS OF THE OPINION THAT ASSESSING OFFICER HAD GIVEN SUFFICIENT OPPORTUNITY AND NO EVIDENCE WAS FILED IN RESPECT OF EARNEST MONEY AGAINST SALE OF TREES AS W ELL AS SALE OF JEWELLERY BY THE WIFE, THEREFORE, THIS CONTENTION WERE REJECTED AND ADDITION WAS CONFIRMED. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER. HE ALSO REFERRED TO VARIOUS DOCUMENTS IN THE PAPER BOOK TO SHOW THAT PROPER ADDITIONAL EVIDENCE WAS FILED BEFORE THE LD. CIT(A) AND HE SHOULD HAVE EXAMINED THE SAME OR ATLE AST ASKED FOR THE REMAND REPORT. IN THE ALTERNATIVE HE SUBMITTED THAT TRIBU NAL COULD ALSO ADMIT THESE DOCUMENTS AS ADDITIONAL EVIDENCE WHICH CLEARLY SHOW S THE SOURCE OF CASH. 4 7. ON THE OTHER HAND THE LD. DR STRONGLY SUPPORTED THE ORDER OF CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND SOME FORCE IN THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE THA T CIT(A) SHOULD HAVE ATLEAST ASKED FOR REMAND REPORT IN RESPECT OF THESE ASSESSE E. AT THE SAME TIME, WE FIND THAT NO CONVINCING REASON HAD BEEN GIVEN WHY THESE DOCUMENTS WERE NOT FILED BEFORE THE ASSESSING OFFICER. HOWEVER, CONSIDERING THE FACT THAT CASE PERTAINS TO ASSESSMENT YEAR 2005-06 AND IT MAY NOT BE FEASIB LE TO VERIFY THE EVIDENCE AFTER TEN YEARS, WE ARE OF THE OPINION THAT IF A RE ASONABLE ADDITION IS MADE THAT WOULD MEET THE ENDS OF JUSTICE. THEREFORE, CONSIDER ING THE OVER ALL FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE OPINION THA T IF ADDITION OF RS. 5,25,000/- IS MADE OUT OF THE ADDITION MADE BY ASSESSING OFFIC ER ON ACCOUNT OF UNPROVED DEPOSITS THAT WOULD MEET THE ENDS OF JUSTICE. THERE FORE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO MAKE THE ADDITION OF RS. 5,25,000/- ON ACCOUNT OF DEPOSITS INSTEAD OF RS. 10 ,66,000/-. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.01.2015 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12 TH JANUARY, 2015 RKK COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR