ITO, Rohtak V. Sh. Amit Lamba, Rohtak

ITA 4570/DEL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74319 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H G SEMA
• Keywords: Gift; Peak credit; Additional evidence; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NO. 4570/DEL/2011 ASSTT. YR: 2008-09 INCOME-TAX OFFICER, VS. AMIT LAMBA, WARD-1, ROHTAK. 36-R, MODEL TOWN, ROHTAK. PAN: AAZPL 4874 G ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI H.G. SEMA SR. DR RESPONDENT BY : SHRI RAJIV JAIN CA O R D E R PER R.P. TOLANI, J.M: : THIS IS REVENUES APPEAL AGAINST THE ORDER OF CIT( A), ROHTAK DATED 01-08-2011 RELATING TO A.Y. 2008-09. FOLLOWING GROU ND IS RAISED: 1. THE LD. CIT(A) ERRED IN LAW & ON THE FACTS IN D ELETING THE CASH CREDITS OF RS. 22,22,000/- WHILE THE ASSESSEE FAILED TO PROVE THE GENUINENESS, CREDITWORTHINESS & IDENTITY OF THESE CASH CREDITS DURING THE COURSE OF ASSTT. PROCEEDING S AS WELL AS DURING THE COURSE OF APPELLATE PROCEEDINGS. 2. THE LD. CIT(A) DELETED THE ADDITION OF RS. 22,22 ,000/- WITHOUT GIVING ANYACOGENT REASONS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE A DDITION OF RS. 22,22,000/- BY NOT CONSIDERING THE FOLLOWING JUDGME NTS, WHICH WERE RELIED UPON BY THE A.O: (I) ROSHAN DI HATTI VS. CIT (1977) 107 ITR 938 (SC) ; (II) CIT VS. M. GANAPATHI MUDAIAR (1964) 53 ITR 62 3 (SC). (III) CIT VS. R.S. RATHORE (1995) 212 ITR 390 (RAJ. ). 2 2. BRIEF FACTS ARE: THE A.O. OBSERVED THAT ASSESSEE WAS MAINTAINING 7 BANK ACCOUNTS WHERE THE TOTAL OF CREDIT SIDE I.E. D EPOSITS MADE DURING THE YEAR AMOUNTED TO RS. 2,36,46,405/-. THE A.O. ASKED QUERIES IN THIS BEHALF. VIDE LETTER DATED 10-12-2010 THE ASSESSEE FILED SOM E DETAILS, THE GIST WHEREOF IS TO THE EFFECT THAT ASSESSEE IS ENGAGED I N THE BUSINESS OF PROPERTY DEALINGS. IN THIS YEAR NO INVESTMENTS WERE MADE. TH E ASSESSEE HAD 1/2 SHARE IN THE HOUSE PROPERTY. IN THIS YEAR A GIFT OF RS. 10 LACS WAS RECEIVED FROM HIS FATHER-IN-LAW, FOR WHICH COPY OF GIFT DEEDS WERE PR ODUCED. AN AMOUNT OF RS. 20 LACS WAS RECEIVED FROM ONE SHRI SUJAN SINGH AS ADVANCE FOR THE SALE OF HOUSE WHICH WAS SUPPORTED BY COPY OF AGREEMENT ETC. THE ASSESSEE PRODUCED COPIES OF LEDGER ACCOUNT OF SOME CREDITORS WHICH WERE CONTENDED TO BE DEPOSITED IN THE BANK. A.O. HELD THAT COPIES OF ACCOUNTS WERE NOT GENUINE AS BOOKS OF A/CS WERE NOT MAINTAINED BY THE ASSESSEE. A.O. ADDED THE ENTIRE AMOUNT OF RS. 2,35,61,039/- AS UNEXPLAIN ED DEPOSITS REFUSING EVEN THE PLEA OF THE ASSESSEE TO ADD THE PEAK BALANCE O F THE CASH CREDITS. THE ASSESSEE HAS MADE THE PLEA ON THE BASIS THAT CREDIT S IN BANK ACCOUNTS WERE MADE OUT OF FREQUENT WITHDRAWALS OF FUNDS AND RE-DE POSITS THEREOF. 2.1. AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL, WH ERE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS FILED. THE SAM E WAS ADMITTED BY THE CIT(A), REVENUE IS NOT IN APPEAL AGAINST THE ADMISS ION OF ADDITIONAL 3 EVIDENCE. THE CIT(A) FORWARDED THE ADDITIONAL EVIDE NCE TO ASSESSING OFFICER WHO FURNISHED REMAND REPORTS DATED 27-4-2011, 4-5-2 011 AND 7-7-2011. THE ASSESSEE FILED REJOINDERS THERETO. THE ADDITIONAL E VIDENCE WAS IN THE FORM OF CONSOLIDATED CHART OF THE BANK ACCOUNTS EXCEPT CORP ORATION BANK AND VARIOUS OTHER DOCUMENTS, WHICH ARE DETAILED ON PAGE 7 OF THE CIT(A)S ORDER. LD. CIT(A) GAVE PART RELIEF ON THE ISSUE BY OBSERVING AS UNDER: 7.1. IN RESPECT OF THE FOUR LOANS STATED BY THE A. O. IN THE REMAND REPORT TO BE TREATED AS NOT GENUINE, IT IS S EEN THAT THE APPELLANT AHS DISCHARGED THE ONUS CAST ON HIM BY FU RNISHING THE CONFIRMATIONS, PAN, ADDRESS, STATEMENT OF BANK A/CS IN RESPECT OF REPAYMENTS IN THE SUBSEQUENT PERIOD ETC. HE AHS FURTHER REQUESTED TO THE A.O. TO ISSUE SUMMONS ON HIS BEHAL F, IF SO DESIRED BY THE A.O. THE A.O. DOUBTED THE GENUINENES S OF THE ABOVE LOAN TRANSACTIONS ONLY ON THE GROUND THAT THE BANK PASS BOOK AND ITR COPY OF THE CREDITORS WAS NOT PRODUCED OR SOME CREDITORS HAVE NOT FILED THEIR IT RETURNS. THE A.O. CAME TO WRONG CONCLUSION WITHOUT INVESTIGATING THE MATER FU RTHER WHEN THE APPELLANT DISCHARGED THE ONUS CAST ON HIM. IF T HE A.O. HAD ANY DOUBT REGARDING THE CREDITWORTHINESS, HE SHOULD HAVE EXPLAINED THE CREDITORS BY ISSUING SUMMONS, AS REQU ESTED BY THE APPELLANT. IT IS WELL SETTLED LAW THAT ONE THE ASSE SSEE DISCHARGED HIS ONUS, THE BURDEN OF PROOF SHIFTS TO THE DEPARTM ENT. THE A.O. CANT COME TO ADVERSE CONCLUSION WITHOUT DISCHARGIN G THE BURDEN OF PROOF ON HIM. IN VIEW OF THE ABOVE, NO AD VERSE INFERENCE CAN BE TAKEN WITH REGARD TO THE CASH CRED ITORS. 2.3. APROPOS THE ASSESSEES CLAIM OF ADOPTING PEAK CREDITS, CIT(A) BY DETAILED OBSERVATIONS HELD THAT TRANSACTIONS IN VAR IOUS BANKS OF DEPOSITS AND WITHDRAWALS WERE MORE THAN FIVE HUNDREDS. THE REASO N OF SUCH TRANSACTIONS WAS EXPLAINED BY THE ASSESSEE TO BE FOR THE PURCHAS E OF PROPERTY AND IN CASE 4 OF DEAL NOT GOING THROUGH THE REDEPOSIT OF AMOUNT. THE ASSESSING OFFICER IN THE REMAND REPORT HAD REJECTED THE PROPOSITION OF A SSESSEE ON THE BASIS THAT ASSESSEE FAILED TO IDENTIFY ANY PROPERTY FOR WHICH THE AMOUNTS WERE WITHDRAWN AND RE-DEPOSITED. THE ASSESSEE RELIED ON THE JUDGMENT OF BHAIYA LAL SHAM BIHARI VS. CIT 276 ITR 38 (ALL.) FOR THE P ROPOSITION THAT WHILE MAKING ADDITION U/S 68 ADOPTION OF PEAK OF CASH DEP OSITS IN THE BANK ACCOUNTS WAS ONE OF THE RECOGNIZED WAY FOR MAKING T HE ADDITION. THE CIT(A) GAVE PART RELIEF BY FOLLOWING OBSERVATIONS: 8.5. IN VIEW OF THE ABOVE, THE CONTENTION OF THE A PPELLANT TO ADOPT THE PEAK OF CASH BOOK AMOUNTING TO RS. 27,54, 080/- FOR TAX ALONG WITH CREDIT ENTRIES IN THE BANK A/CS AMOU NTING TO RS. 4,31,988/- FOR WHICH NO EXPLANATION IS AVAILABLE WI TH THE APPELLANT, IS NOT ACCEPTABLE. THE ACTION OF THE A.O . IN BRINGING TO TAX THE CASH DEPOSITS IN THE BANK A/CS IS UPHELD . THE A.O. SHALL HOWEVER GIVE BENEFIT OF INTER BANK TRANSFERS OF RS. 14,65,557/-, ENTRIES ON ACCOUNT OF LOAN TRANSACTION S AS DISCUSSED IN PARA 7.1 ABOVE AND THE CLAIM OF EXPENS ES OF RS. 3,59,378/-. 2.4. THE NET EFFECT OF THE CIT(A)S ORDER IS A RELI EF OF RS. 22,22,000/- TO THE ASSESSEE. 3. LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE M AJOR ADDITION RETAINED BY THE CIT(A) HAS BEEN ACCEPTED BY THE ASSESSEE. QU A THE REMAINDER, LD. CIT(A) HAS GIVEN DETAILED REASONING. THUS, THE CIT( A) GAVE THE RELIEF ONLY IN RESPECT OF 4 LOANS. LD. COUNSEL REFERRED TO THE CONFIRMATIONS FILED BY THE ABOVE CREDITORS WHICH INCLUDE THEIR CONFIRMATIONS, BANK A/C STATEMENT WHICH 5 SHOWS THEIR SOURCE OF INCOME. A.O. HAS NOT PROFFERE D ANY COGENT REASON ABOUT THE IDENTITY OF CREDITORS, GENUINENESS OF TRA NSACTIONS AND THEIR CREDITWORTHINESS. SINCE THE ASSESSEE HAS FULFILLED ALL THE INGREDIENTS OF SECTION 68, THE ORDER OF CIT(A) IS JUSTIFIED. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN OUR CONSIDERED VIEW THE A SSESSEE HAVING CONFIRMATIONS AND OTHER DETAILS OF CREDITORS HAS DI SCHARGED THE PRIMARY ONUS CAST IN TERMS OF SECTION 68 QUA THE FOUR CASH CREDI TORS. IN VIEW THEREOF WE UPHOLD THE ORDER OF CIT(A). BESIDES, THE CLAIM OF E XPENSES HAVING BEEN SUBSTANTIATED BY THE ASSESSEE, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 14-03-2014. SD/- SD/- ( SHAMIM YAHYA) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14-03-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR