Sh. Shiv Kumar Singh, New Delhi V. ITO, New Delhi

ITA 4594/DEL/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1658 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 02-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 13-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GARIMA JAIN
• Assessee Lawyers: MANISH GUPTA
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Corroborative evidences
• Section: 68; 27

Judgement Text

ITA NOS.4593-4594/DEL/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NOS. 4593 & 4594 /DEL/201 5 A.YR. : 2008-09 SH. SHIV KUMAR SINGH, C-28, SECTOR-7, DWARKA NEW DELHI 110 075 (PAN: BDTPS1538N) VS. INCOME TAX OFFICER, WARD 49(3) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANISH GUPTA, CA DEPARTMENT BY : MS. GARIMA JAIN, SR. DR DATE OF HEARING : 03-11-2015 DATE OF ORDER : 03-11-2015 ORDER THESE ARE THE APPEALS FILED BY THE ASSESSEE EMANAT E OUT OF ORDER 27.4.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, NEW DELHI PERTAINING TO THE ASSTT. YEAR 2008-09. THE IT A NO. 4593/DEL/2015 AGAINST THE ADDITION AND ITA NO. 4594/DEL/2015 AGAINST THE PENALTY U/S. 271(1)(C) OF THE I.T. ACT, 1961. SINCE THE ISSUES INVOLVED IN T HESE APPEALS ARE CO-RELATED, HENCE, THESE APPEALS ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN ITA NO. 4593/DEL/2013 (AY 2008-09) READ AS UNDER:- 1. THE LD. ASSESSING OFFICER, HAS ERRED IN LAW AND ON FACTS IT! MAKING ADDITION OF RS.7,99,OOO/- BEING UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT ON ACCOUNT O F CASH ITA NOS.4593-4594/DEL/2015 2 DEPOSITED IN SAVING BANK ACCOUNL, WITHOUT CONSIDERA TION OF FACTS AND EXPLANATION. THE CIT(A) HAS FURTHER FAILED TO C ONSIDER THE EVIDENCE AND THE REMAND REPORT OF THE AO. 2. THE LD. CIT (A) HAS FURTHER FAILED TO APPRECIATE THAT THE LD. AO WAS IN A HURRY TO SUBMIT REMAND REPORT WITHOUT ALLOWING OR GIVING FURTHER OPPORTUNITY TO ASSESSEE TO SUBMIT BALANCE CONFIRMAT IONS. EVEN THE CONFIRMATION HAVE BEEN WRONGLY MENTIONED IN THE REMAND REPORT. 3. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE SOURCE OF CASH DEPOSIT IN THE BANK ALC WHICH IS NOT HING BUT REDEPOSIT OF THE MONIES ALREADY WITHDRAWN OR AVAILA BLE WITH THE APPELLANTS. THEREFORE THE EXPLANATION WAS NEITHER C ONSIDERED BY ITO IN HIS REMAND REPORT NOR BY THE CIT(A) THEREFOR E THE ORDER OF THE CIT(A) IS WRONG AND DESERVES TO BE SET ASIDE. 4. THAT THE LD.CIT (A) HAS FAILED TO APPRECIATE THA T ASSESSEE HAD FILED ADDITIONAL EVIDENCE AND EXPLANATION TO SUPPOR T THE CLAIM AND THE APPELLANTS PROCEEDINGS BEING CONTINUATION OF OR IGINAL PROCEEDINGS, CIT(A) SHOULD HAVE EXERCISED HIS POWER IS TO GRANT RELIEF ON CONSIDERATION OF MATERIAL. APPELLANTS PRAYS FOR AMENDMENT OF THE ANY OF THE G ROUNDS OF APPEAL AT THE TIME OF HEARING. 3. THE GROUNDS RAISED IN ITA NO. 4594/DEL/2013 (AY 2008-09) READ AS UNDER:- ITA NOS.4593-4594/DEL/2015 3 1. LD. CIT(A) AND ITO (A.O.) HAVE ERRED IN LAW AND ON FACTS IMPOSING AND MAINTAINING PENALTY UNDER SEE 271(1)(C ) OF INCOME TAX ON UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT ON ACCOUNT OF CASH DEPOSIT IN SAVING BANK ACCOU NT. KEEPING IN VIEW THE RELIEF GI VEN BY CLT(A) IN QUANTUM PART OF PENALTY SUSTAINED AFTER RELIEF BY THE CRR (A) IS WRONG. 2.) LD CIT(A) HAS FAILED TO APPRECIATE THAT THE C ASH DEPOSITED IN SAVING BANK ACCOUNT BY THE ASSESSEE, TREATING THE D EPOSITS AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT IS WRONG AND AGAINST THE LAW. THE APPELLANT HAD ALL THE EXPLANAT ION TO THE SOURCE OF CASH DEPOSIT THERE WAS NO DELIBERATE DEFA ULT AND EVEN THE APPELLANT HAS NOT FURNISHED IN ACCURATE PARTICU LARS OF THE INCOME. 3 .) THERE BEING NO RELATION TO THE LEVY OF PENALT Y SIMPLY BECAUSE SOME ADDITION HAS BEEN MADE BECOMES THE BAS IS OF IMPOSING PENALTY. THE ADDITION ITSELF BEING IN DISP UTE. THAT THE ORDER OF SUSTAINING PENALTY ORDER UNDER SECTION 27 1(1)(C) OF THE I.T. ACT IS BAD IN LAW. ITA NO. 4593/DEL/2015 4. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THEY ARE NOT BEING REPEATED HER E FOR THE SAKE OF BREVITY. 5. LD. COUNSEL FOR THE ASSESSEE ALONGWITH THE ASSES SEE PERSONALLY APPEARED AND STATED THAT ASSESSEE IS RETIRED FROM SERVICE IN THE MONTH OF JUNE, 2006 AND GOT ABOUT RS. 8 LACS ON HIS SUPERANNUATION AND THE SAME HAS BEEN DEPOSITED IN THE BANK. AFTER WITHDRAWING THE AMOUNTS FROM HIS SAVINGS ACCOUNT, ASSESSEE ITA NOS.4593-4594/DEL/2015 4 HAS GIVEN THE MONEY TO VARIOUS PERSONS INCLUDING RS . 45,000/- TO SHRI RAM NIWAS; RS. 1.15 LACS TO SHRI RAM BIR; RS. 1.50 LACS TO SH. BABU LAL AND RS. 2 LACS TO RS. GHANSHYAM DASS TOTALING TO RS. 5.10 LACS. A SSESEE HAS ALSO FILED CONFIRMATIONS FROM THESE PERSONS BEFORE THE AO AS W ELL AS BEFORE THE LD. CIT(A) WHICH HAS NOT BEEN PROPERLY CONSIDERED BY TH E AUTHORITIES BELOW. LD. COUNSEL FOR THE ASSESSEE FURTHER STATED THAT LD. CI T(A) HAS GIVEN THE RELIEF OF RS. 2.90 LACS IGNORING THE OTHER CONFIRMATIONS LETT ERS FILED FROM OTHER CREDITORS WHICH HAS ALREADY BEEN FILED BEFORE THE AO AND BEFO RE THE LD. CIT(A). ASSESSEE IN PERSON ALONGWITH THE COUNSEL REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE AO TO CONSIDER THE CONFIRMATIONS AND O THER SUPPORTING EVIDENCE FOR SUBSTANTIATING HIS CLAIM OF AMOUNTING TO RS. 5, 09,000/- WHICH IS IN DISPUTE IN THE PRESENT APPEAL AND DECIDE THE ISSUE IN DISPU TE UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HE ARD. 6. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. I FIND CONSIDERA BLE FORCE IN THE CONTENTION OF THE ASSESEES COUNSEL THAT ASSESSEE IS RETIRED FRO M SERVICE IN THE MONTH OF JUNE, 2006 AND GOT ABOUT RS. 8 LACS ON HIS SUPERANN UATION AND THE SAME HAS BEEN DEPOSITED IN THE BANK. I ALSO NOTE THAT AFT ER WITHDRAWING THE AMOUNTS FROM HIS SAVINGS ACCOUNT, ASSESSEE HAS GIVEN THE MO NEY TO VARIOUS PERSONS INCLUDING RS. 45,000/- TO SHRI RAM NIWAS; RS. 1.15 LACS TO SHRI RAM BIR; RS. 1.50 LACS TO SH. BABU LAL AND RS. 2 LACS TO RS. GHANSHYA M DASS TOTALING TO RS. 5.10 LACS. IT WAS ALSO SUBMITTED BEFORE ME THAT ASSESEE HAS ALSO FILED CONFIRMATIONS ITA NOS.4593-4594/DEL/2015 5 FROM THESE PERSONS BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) WHICH HAS NOT BEEN PROPERLY CONSIDERED BY THE AUTHORITIES BEL OW. I FURTHER FIND THAT LD. CIT(A) HAS GIVEN THE RELIEF OF RS. 2.90 LACS IGNOR ING THE OTHER CONFIRMATIONS LETTERS FILED FROM OTHER CREDITORS WHICH HAS ALREA DY BEEN FILED BEFORE THE AO AND BEFORE THE LD. CIT(A, WHICH IS CONTRARY TO THE LAW AND NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF J USTICE, I REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF THE ASSESSING OFFICER WITH THE DIRECTIONS TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED I N THE APPEAL AND DECIDE THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHO ULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. IN THE RESULT, THE IT A NO. 4593/DEL/2015 (AY 2008-09) FILED BY THE ASSESSEE IS ALLOWED FOR STATI STICAL PURPOSES. ITA NO. 4594/DEL/2015 (AY 2008-09) 8. I HAVE ALREADY REMITTED THE ISSUES IN THE QUANT UM APPEAL, AS AFORESAID, WITH THE DIRECTIONS TO THE AO TO DECIDE THE ISSUES IN DISPUTE AFRESH, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, I AM OF THE VIEW THAT THE PENALTY HAS BEEN LEVIED ON THE ADDITIONS IN DIS PUTE BY THE AO AND CONFIRMED BY THE LD. CIT(A). AS I HAVE ALREADY SET ASIDE THE QUANTUM ADDITION TO THE AO TO PASS A FRESH AND SPEAKING ORDER THERE ON, THEREFORE, THE PENALTY IN QUESTION IS NOT SUSTAINABLE AND THE SAME IS DE LETED. HOWEVER, THE AO ITA NOS.4593-4594/DEL/2015 6 WOULD BE AT LIBERTY TO INITIATE PENALTY PROCEEDING S, IF ANY, AFTER THE OUTCOME OF THE QUANTUM ASSESSMENT. 9. IN THE RESULT, THE ITA NO. 4593/DEL/2015 IS AL LOWED FOR STATISTICAL PURPOSES AND ITA NO. 4594/DEL/2015 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03-11-201 5. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 03/11/2015 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT ( A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES