Mr. Kuldeep Singh Ghotra, New Delhi V. ITO, New Delhi

ITA 4426/DEL/2012

• Counselvise Citation: 442620114 RSA 2012
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 16-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRISCILLA SINGSIT
• Assessee Lawyers: PANKAJ DADU
• Keywords: Unexplained cash credit
• Section: 133(6); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI D BENC H BEFORE SHRI RAJPAL YADAV , JM & SHRI A.N. PAHUJA, AM ITA NO.4426 /DEL/2012 ASSESSMENT YEAR: 2007-08 KULDEEP SINGH GHOTRA A-3/14-15, SECTOR-11, ROHINI, NEW DELHI V/S . INCOME-TAX OFFICER, WARD 21(4), NEW DELHI [PAN : AYZPS 1699 E ] (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI PANKAJ DADU, AR REVENUE BY MS. PRISCILLA SINGSIT, DR DATE OF HEARING 17-10-2012 DATE OF PRONOUNCEMENT 17-10-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 16.08.2012 BY THE ASSESSEE AG AINST AN ORDER DATED 29.02.2012 OF THE LD. CIT(A)-XI, NEW DELHI, R AISES THE FOLLOWING GROUNDS:- THE LEARNED ASSESSING OFFICER, WARD 21(4), NEW DELH I HAS ERRED IN MAKING ADDITIONS OF ` ` 49,433/- ON ACCOUNT OF DEDUCTION UNDER CHAPTER VI-A FOR WANT OF EVIDENCE AND ` ` 11 LACS ON ACCOUNT OF UNEXPLAINED CASH CREDITS. THE LEARNED ASSESSING OFFICER RECEIVED INFORMATION THROUGH AIR THAT THE ASSESSEE HAS DEPOSITED CASH OF ` `11 LACS IN HIS BANK ACCOUNT DURING FINANCIAL YEAR 2006-07. AFTER WHICH A NOTICE U/S 143(2) WAS ISSUED ON ASSESSEE BUT THE ASSESSEE DID NOT RECEIVE ANY NOTICE IN RESPECT OF THAT AND ASSESSING OFFICER WITHOUT GOING INTO THE DEPTHS AND THE FACTS OF THE CASE AND WITHO UT PROVIDING THE OPPORTUNITY ADDED THE SAID SUM TO THE INCOME OF THE ASSESSEE. AN APPEAL WAS FILED BEFORE CIT(A)-XI, NEW DELHI. BUT THE SAME WAS ALSO DISMISSED BY CIT(A)-XI, NEW DELHI WHICH IS TOT ALLY UNFAIR AND UNJUSTIFIED. THE ABOVE SAID ADDITIONS MAY PLEASE BE ORDERED TO B E DELETED. ITA NO.4426/DEL./2012 2 THE ASSESSEE RESERVES THE RIGHT TO MODIFY, ALTER, A MEND OR/AND ADD GROUNDS OF APPEAL ON PROCEEDINGS OF THE CASE. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THA T RETURN DECLARING INCOME OF ` ` 1,12,277/- BESIDE AGRICULTURAL INCOME OF ` ` 1,05,000/-,FILED ON 9 TH JULY, 2007 BY THE ASSESSEE, WAS SELECTED FOR SCRUTINY WIT H THE SERVICE OF A NOTICE U/S 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) ISSUED ON 23.07.2008. IN THIS CASE, AIR INFORMATION WAS RECE IVED THAT THE ASSESSEE DEPOSITED A SUM OF ` ` 11 LACS IN HIS SAVING BANK ACCOUNT WITH BANK OF BAR ODA, SHALIMAR BAGH, WEST BRANCH, DELHI. IN RESPONSE TO THE AFORESAID NOTICE U/S 143(2) OF THE ACT ISSUED ON 23.07.2008 AT THE KAPUR THALA ADDRESS GIVEN ON PAN CARD, NONE RESPONDED. IN RESPONSE TO A SUBSEQUENT NOTICE ISSUED ON 25 TH AUGUST, 2008 AT ROHINI ADDRESS, THE ASSESSEE APPEAR ED BEFORE THE ASSESSING OFFICER[AO IN SHORT] ON 5 TH SEPTEMBER, 2008,WHEN HE WAS REQUESTED TO FILE COPY OF BANK STATEMENT OF ALL ACCOUNTS HELD BY HIM DURIN G THE PREVIOUS YEAR, STATEMENT OF AFFAIRS AS ON 31.3.2006 AND 31.3.2007 AND HISTOR Y OF THE ASSESSEE ALONG WITH DETAILS OF HIS FAMILY AND BUSINESS & THE CASE WAS ADJOURNED TO 22.09.2008. ON THE ADJOURNED DATE, NO COMPLIANCE WAS MADE BY THE A SSESSEE. EVEN THE SUBSEQUENT NOTICE DATED 5 TH JUNE, 2009 ISSUED U/S 143(2) OF THE ACT WAS RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARKS PREMISES LOCKED. ANOTHER NOTICE SENT ON 9 TH OCTOBER, 2009 WAS ALSO RETURNED BY THE POSTAL AUT HORITIES WITH THE REMARKS LEFT. IN THESE CIRCUMSTANCES, THE A O OBTAINED A COPY OF BANK STATEMENT OF THE ASSESSEE U/S 133(6) OF THE ACT FRO M THE BANK OF BARODA, SHALIMAR BAGH BRANCH, DELHI. THEREAFTER, THOUGH TH E AO ISSUED THREE NOTICES TO THE ASSESSEE U/S 143(2) OF THE ACT ON 06.11.2009 A T ASSESSEES ADDRESSES VIZ.. 353, BASTI GUJRA, JULLUNDER CITY, PUNJAB; WZ-8A, KI RTI NAGAR, NEW DELHI AND VILLAGE PONDOORI RAJPUTHAN, PS BHOLATH, DISTRICT KA PURTHALA, PUNJAB, REQUIRING HIS PRESENCE ON 16.11.2009. HOWEVER, NOTICE SENT TO J ULLUNDER & KIRTI NAGAR,DELHI, WERE RETURNED UNSERVED BY THE POSTAL AUTHORITIES. IN THESE CIRCUMSTANCES, WHEN THE ASSESSEE DID NOT EXPLAIN THE SOURCE OF CASH DEP OSITED IN HIS BANK ACCOUNT WITH THE BANK OF BARODA, THE AO PROCEEDED TO COMPLE TE THE ASSESSMENT EX PARTE ITA NO.4426/DEL./2012 3 U/S 144 OF THE ACT BY TREATING THE AFORESAID CASH A MOUNTING TO ` ` 11 LACS AS UNEXPLAINED DEPOSIT AND ADDED U/S 68 OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) ISSUED A NOTICE DATED 24 TH JULY, 2011 FOR HEARING ON 18 TH AUGUST, 2011, WHEN ADJOURNMENT WAS SOUGHT BY THE A SSESSEE FOR 9 TH SEPTEMBER, 2011. NONE APPEARED ON THIS DATE NOR R ESPONDED TO SUBSEQUENT NOTICE DATED 19 TH DECEMBER, 2011 REQUIRING THE ASSESSEE TO ATTEND ON 18.01.2012. THE NOTICE DATED 24.01.2012 ISSUED FO R HEARING ON 15.02.2012 ALSO WENT UNRESPONDED. ANOTHER NOTICE DATED 31.1.2012 F OR HEARING ON 24.2.2012 WAS HANDED OVER TO THE AO FOR SERVICE THROUGH THE INSPECTOR . THE AO HAD THE SAID NOTICE SERVED THROUGH AFFIXTURE ON THE PREMISE S OF THE ASSESSEE AT A-3/14- 15, SECTOR-11, ROHINI, DELHI. NONE RESPONDED TO TH IS NOTICE ALSO. IN THESE CIRCUMSTANCES, WHEN THE ASSESSEE DID NOT APPEAR BEF ORE THE LD. CIT(A) NOR FILED ANY WRITTEN SUBMISSIONS, THE LD.CIT(A) DISPOSED OF THE APPEAL EX PARTE, HOLDING AS UNDER:- I HAVE PERUSED THE DOCUMENTS ON RECORD. I SHALL N OW TAKE UP THE VARIOUS GROUNDS OF APPEAL. THE ONLY GROUND OF APPE AL IS IN R/O AN ADDITION OF `11 LACS AS UNEXPLAINED DEPOSIT. THE A SSESSING OFFICER HAD MADE THE ADDITION SINCE NO SUBMISSIONS WERE FIL ED BY THE APPELLANT IN SPITE OF VARIOUS OPPORTUNITIES. IN SPITE OF SEVERAL OPPORTUNITIES BEING GIVEN TO TH E APPELLANT. SINCE NO FURTHER SUBMISSIONS/EVIDENCE WAS GIVEN BEFORE ME BY THE APPELLANT THE ADDITION OF `11 LACS MADE BY THE ASSE SSING OFFICER IS CONFIRMED. THE GROUNDS OF APPEAL ARE REJECTED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE PRAYED THAT THE ASSESSEE SHOULD BE ALLOWED ANOTHER OPPORTUNITY TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS SAVINGS BANK ACCOUN T WITH THE BANK OF BARODA. SIMILAR REQUEST HAS BEEN MADE IN WRITTEN SUBMISSION S FILED BEFORE US. TO A QUERY BY BENCH AS TO WHY THE ASSESSEE DID NOT RESPOND TO VARIOUS NOTICES ISSUED BY THE AO EVEN AFTER HE PERSONALLY APPEARED BEFORE HIM ON 5 TH SEPTEMBER, 2008 AND NOR EVEN RESPONDED TO THE SUBSEQUENT NOTICES I SSUED U/S 143(2) OF THE ACT ITA NO.4426/DEL./2012 4 AS ALSO WHY AFTER SEEKING ADJOURNMENT ON 18.8.2011 IN PURSUANCE TO NOTICE ISSUED BY THE LD. CIT(A) , THE ASSESSEE DID NOT RES POND TO ANY OF THE SUBSEQUENT NOTICE NOR FILED ANY SUBMISSIONS, THE LD. AR ON BEH ALF OF THE ASSESSEE DID NOT REPLY AND INSTEAD REITERATED THAT THE MATTER MAY B E RESTORED TO THE FILE OF THE AO FOR A FRESH OPPORTUNITY. TO A FURTHER QUERY BY THE BENCH AS TO WHEN THE DEFAULT COMMITTED BY THE ASSESSEE BEFORE THE AO AND LEARNED CIT(A) HAVE NOT BEEN EXPLAINED, WHY COST OF ` ` 10,000/- BE NOT IMPOSED, THE LD. AR FEEBLY REPLIED THAT COST SHOULD BE REASONABLE. ON THE OTHER HAND, THE L D. DR DID NOT OPPOSE THE SUBMISSIONS OF THE LD. AR FOR RESTORING THE MATTER BACK TO THE FILE OF THE AO FOR A FRESH OPPORTUNITY. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. INDISPUTABLY THE ASSESSEE HAVING APPEARED PE RSONALLY BEFORE THE AO ON 5 TH SEPTEMBER, 2008, DID NOT EXPLAIN THE SOURCE OF CAS H OF ` ` 11 LACS DEPOSITED IN HIS SAVINGS BANK ACCOUNT DESPITE SUFFICIENT OPPORTU NITY ALLOWED BY THE AO NOR SUBMITTED ANY EXPLANATION BEFORE THE LD. CIT(A) EVE N AFTER SEEKING ADJOURNMENT ON 18 TH AUGUST, 2011. THE LD. AR DID NOT ADDUCE ANY REASON S BEFORE US FOR NON- COMPLIANCE OF VARIOUS NOTICES ISSUED BY THE AO AND THE LD. CIT(A) NOR EVEN PLACED BEFORE US ANY MATERIAL, EXPLAINING THE SOURC E OF AFORESAID CASH OF ` 11 LACS. IN THESE CIRCUMSTANCES, ESPECIALLY WHEN THE ASSESSEE IS NOW PREPARED TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS BANK AC COUNT, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE VACATE THE FINDINGS OF THE LD. CI T(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTIONS TO ALLOW AN OTHER OPPORTUNITY TO THE ASSSESSEE TO EXPLAIN THE SOURCE OF AFORESAID CASH , SUBJECT TO PAYMENT OF COST OF ` `10,000/- TO THE REVENUE AND THEREAFTER, DISPOSE O F THE MATTER IN ACCORDANCE WITH LAW. IT MAY BE CLARIFIED THAT THE AO IS FREE TO UNDERTAKE ANY INDEPENDENT ENQUIRES, IF FOUND NECESSARY AND THEREAFTER, MAY P ASS SUCH ORDERS AS HE DEEMS PROPER, IN ACCORDANCE WITH LAW. THE ASSESSEE SHALL PAY COST OF ` ` 10,000/- TO THE REVENUE WITHIN A WEEK OF RECEIPT OF THIS ORDER AND FURNISH A COPY OF CHALLAN. THEREAFTER, THE ASSESSEE SHALL SUO MOTU APPEAR BEFO RE THE AO ON 18.12.2012 ALONG WITH EVIDENCE, EXPLAINING THE SOURCE OF CAS H OF ` 11 LACS, FOR EXPEDITIOUS ITA NO.4426/DEL./2012 5 DISPOSAL OF THE MATTER. WITH THESE DIRECTIONS, GROU NDS. RAISED IN THE APPEAL ARE DISPOSED OF , AS INDICATED HEREINBEFORE. 6. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE U S IN TERMS OF RESIDUARY GROUND IN THE APPEAL, ACCORDINGLY, THIS GROUND IS D ISMISSED. 7. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. 8. IN THE RESULT, APPEAL IS ALLOWED BUT FOR ST ATISTICAL PURPOSES. SD/- SD/- (RAJPAL YADAV ) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. INCOME-TAX OFFICER, WARD 21(4), NEW DELHI. 3. CIT CONCERNED. 4. CIT(A)-XI,NEW DELHI 5. DR, ITAT, D BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT