Daya Kishen Koul, Ghaziabad V. ITO, Ward- 1(2), Ghaziabad

ITA 442/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2417 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 4 42 /DEL/201 8 [ASSESSMENT YEAR: 2 0 09 - 10] S HRI DAYA KISHAN KOUL VS. THE I.T. O E - 422, SECTOR 17 WARD 1( 2 ) VASUNDHRA, G.T. ROAD GHAZIABAD GHAZIABAD PAN: A FWPK 2033 A [APPELLANT] [RESPONDENT] DATE OF HEARING : 0 5 . 11 .201 8 DATE OF PRONOUNCEMENT : 1 3 . 1 1 .2018 ASSESSEE BY : SHRI RAJEEV SAXENA, ADV REVENUE BY : MS. AASHNA PAUL , SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: T HIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] , GHAZIABAD DATED 03 . 1 1 .201 7 PERTAINING TO ASSESSMENT YEAR 20 09 - 10 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 20,65,900/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT ON THE BASIS OF AIR INFORMATION, THE ASSESSING OFFICER CAME TO KNOW THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 20,65,900/ - IN HIS SAVINGS BANK ACCOUNT. ON THE STRENGTH OF THIS AIR INFORMATION, NOTICE U/S 148 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] WAS ISSUED AND SERVED UPON THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S 143(2) WAS ALSO ISSUED AND SERVED UPON THE ASSESSEE. 4. DURING THE COURSE OF SCRU TINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE SAVINGS BANK ACCOUNT. IN HIS REPLY, THE ASSESSEE EXPLAINED THAT HE HAS RECEIVED ADVANCE AGAINST SALE OF A PROPERTY AS PER AGREEMENT TO SELL DATED 02.02.2009 , WHICH WAS SUBSEQUENTLY REGISTERED ON 18.04.2009. IT WAS EXPLAINED THAT THE SAID PROPERTY WAS SOLD 3 FOR A TOTAL CONSIDERATION OF RS. 44 LAKHS OUT OF WHICH RS. 30 LAKHS WAS RECEIVED IN CASH AND RS. 14 LAKHS BY WAY OF DEMAND DRAFT. 5. ON PERUSAL OF THE BANK STATEMENT, THE ASSESSING OFFICER NOTICED THAT ONLY ONE BANK ACCOUNT WITH PUNJAB NATIONAL BANK HAS CASH DEPOSIT OF RS. 20,65,900/ - . THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS NO EXPLANATION IN RESPECT OF THE REMAINING CASH OUT OF RS. 30 LAKHS ALLEGED TO HAVE BEEN RECEIVED AS PART OF SALE CONSIDERATION OF THE IMPUGNED PROPERTY. THE ASSESSING OFFICER FINALLY CAME TO THE CONCLUSION THAT THE CASH DEPOSIT OF RS. 20,65,900/ - REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE AND ACCORDINGLY, ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), BUT WITHOUT ANY SUCCESS. 7. BEFORE ME, THE LD. AR DREW MY ATTENTION TO THE AGREEMENT TO SELL DATED 02.02.2009 WHICH WAS SUBSEQUENTLY REGISTERED ON 1 8.04.2009. THE LD. AR POINTED OUT THAT PURSUANT TO THIS AGREEMENT, THE ASSESSEE SOLD THE PROPERTY 4 SITUATED AT SRINAGAR. IT IS THE SAY OF THE LD. AR THAT THAT DUE TO TURMOIL IN THE VALLEY, THE ASSESSEE MIGRATED AND IS NOT IN A POSITION TO LOOK AFTER, MANA GE AND CONTROL THE SAID PROPERTY AND, THEREFORE, AGREED TO SELL THE SAME FOR TOTAL CONSIDERATION OF RS. 44 LAKHS. THE LD. AR FURTHER POINTED OUT THAT IN THE AGREEMENT TO SELL ITSELF, IT HAS BEEN AGREED THAT RS. 30 LAKHS SHALL BE PAID IN CASH AND THE BALA NCE 14 LAKHS SHALL BY PAID BY DEMAND DRAFT. THE LD. AR STATED THAT CASH DEPOSIT IN THE SAVINGS BANK ACCOUNT IS OUT OF SALE CONSIDERATION RECEIVED FROM SALE OF THE IMPUGNED PROPERTY. THE LD. AR CONCLUDED BY SAYING THAT SINCE THE SOURCE OF CASH DEPOSIT IS SELF - EXPLANATORY, ADDITION IS UNCALLED FOR. 8. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES. 9. I HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. AGREEMENT TO SELL IS EXHIBITED AT PAGES 13 AND 14 OF THE PAPER BOOK , WHICH WAS SUBSEQUENTLY REGISTERED AND REGISTERED AGREEMENT IS EXHIBITED AT PAGES 19 TO 21 OF THE PAPER BOOK. PAGE 23 IS THE RECEIPT OF CASH OF RS. 30 LAKHS 5 AND PAGE 24 IS THE RECEIPT OF RS. 14 LAKHS BY WAY OF DEMAND DRAFT. TWO DRAFTS OF RS. 5 LAKHS WERE DEPOSITED IN PUNJAB N ATIONAL BANK AND ENTRIES CAN BE SEEN FROM EXHIBIT 40 OF THE PAPER BOOK. THIRD DRAFT OF RS. 4 LAKHS WAS DEPOSITED IN SBI AND ENTRY CAN BE SEEN FROM THE BANK STATEMENT AT PAGE 49 OF THE PAPER BOOK. CASH DEPOSITS WERE MADE IN SB A/C WIT H SYNDICATE BANK, SAHIBABAD WHICH IS AT PAGE 33 OF THE PAPER BOOK. IN MY CONSIDERED VIEW, ONCE THE TRANSACTION OF SALE OF PROPERTY HAS BEEN ACCEPTED, THEN THERE IS NO REASON WHATSOEVER WHY THE SOURCE OF DEPOSIT OF RS. 20,65,900/ - SHOULD NOT BE ACCEPTED. THERE IS NO QUARREL THAT THE ASSESSEE HAS RECEIVED RS. 30 LAKHS IN CASH WHICH IS SUFFICIENT TO EXPLAIN THE SOURCE OF CASH DEPOSIT. IN MY CONSIDERED VIEW, THE ASSESSEE HAS SUCCESSFULLY EXPLAINED THE SOURCE OF CASH DEPOSIT A ND, THEREFORE, NO ADDITION IS CAL LED FOR. I, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 20,65,900/ - . 10. THE LD. AR DID NOT PRESS GROUNDS OF APPEAL BY WHICH THE ASSESSEE HAS CHALLENGED THE REOPENING OF ASSESSMENT AND THE SAME ARE DISMISSED AS NOT PRESSED. 6 11 . I N THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 4 42 /DEL/201 8 IS PARTLY ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 3 . 1 1 .2018. S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 1 3 T H NOVEMBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 7 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER