ITO, Hapur V. Dr. Sunil Kumar Sharma, Hapur

ITA 4620/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81844 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 14-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER KAUR SENIOR
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Unexplained cash credit; Capital asset; Source of fund; Valuation report
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4286/DEL./2012 (ASSESSMENT YEAR : 2008-09) DR. SUNIL KUMAR SHARMA, VS. ITO, WARD 2, 59, LIFE LINE HOSPITAL, HAPUR. KOTHI GATE, HAPUR. (PAN : AGBPS5989F) ITA NO.4620/DEL./2012 (ASSESSMENT YEAR : 2008-09) ITO, WARD 2, VS. DR. SUNIL KUMAR SHARMA, HAPUR. 59, LIFE LINE HOSPITAL, KOTHI GATE, HAPUR. (PAN : AGBPS5989F) (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, ADVOCATE REVENUE BY : SMT. PARMINDER KAUR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : BOTH THESE CROSS APPEALS EMANATE FROM THE ORDER OF CIT (APPEALS), GHAZIABAD DATED 08.06.2012 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE FILED RETURN OF INCOME ON 29.09.200 8 DECLARING INCOME AT RS.3,29,865/-. THE ASSESSEE IS A DOCTOR DOING MEDICAL PROFESSION IN THE NAME AND STYLE AS M/S. LIFELINE H OSPITAL. THE ASSESSING ITA NO.4286 & 4620/DEL/2012 2 OFFICER MADE AN ADDITION OF RS.43,27,657/- FOR NOT ALLOWING THE BENEFIT U/S 54F OF THE INCOME-TAX ACT, 1961 AND ALSO MADE A N ADDITION OF RS.15 LACS TOWARDS THE UNSECURED LOANS. THE ASSESSING OF FICER ALSO MADE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS AN D UNEXPLAINED CASH CREDITS. HOWEVER, THE REVENUE IS IN APPEAL AGAINST THE DELETION OF ADDITION OF RS.15 LACS AGAINST UNEXPLAINED ADVANCE AND ASSES SEE IS IN APPEAL AGAINST NOT ALLOWING THE BENEFIT U/S 54F OF RS.43,2 7,657/-. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE READ AS UNDER :- 1. THAT THE ADDITION OF RS.43,27,657/- ON ACCOUNT OF DISALLOWANCE OF EXEMPTION CLAIMED U/S 54F IS ILLEGA L AND UNJUSTIFIED AND, THEREFORE, OUGHT TO BE DELETED. 2. THAT DISALLOWANCE OR EXEMPTION UNDER SECTION 54F ON THE GROUND THAT THE ASSESSEE ALREADY OWNED TWO HOUS ES AS ON THE DATE OF PURCHASE OF NEW HOUSE WHEREAS THE SAID TWO HOUSES WERE FIRSTLY OWNED BY THE HINDU UNDIVIDED FAMILY, N OT BY THE ASSESSEE IN HIS INDIVIDUAL CAPACITY AND SECONDLY, O NE OF THE SAID HOUSE WAS ADMITTEDLY NON-RESIDENTIAL HOUSE, IS ILLEGAL AND UNJUSTIFIED AND, THEREFORE, EXEMPTION UNDER SECTION 54F OUGHT TO BE ALLOWED TO THE ASSESSEE. 3. THAT DISALLOWANCE OF EXEMPTION UNDER SECTION 54F ON THE GROUND THAT NEW HOUSE SITUATE AT SIMRAULI, HAPU R IS NOT RESIDENTIAL HOUSE, IS ILLEGAL AND UNJUSTIFIED AND, THEREFORE, EXEMPTION UNDER SECTION 54F OUGHT TO BE ALLOWED TO THE ASSESSEE. 4. THAT ALTERNATIVELY, EVEN OTHERWISE DISALLOWANCE OF EXEMPTION UNDER SECTION 54F IS ILLEGAL AND UNJUSTIF IED BECAUSE ASSESSEE HAD PURCHASED NEW RESIDENTIAL HOUSE (AS AD MITTED BY THE ASSESSING OFFICER HIMSELF) AT INDIRAPURAM, GHAZ IABAD AND, THEREFORE, EVEN OTHERWISE EXEMPTION UNDER SECTION 5 4F OUGHT TO BE ALLOWED TO THE ASSESSEE. ITA NO.4286 & 4620/DEL/2012 3 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER, DELETE, OR MODIFY ANY GROUND OF APPEAL AT THE TIME OF HEARING. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE READ AS UNDER :- 1. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10 LACS AND RS.5 LACS R ESPECTIVELY ON ACCOUNT OF UNEXPLAINED ADVANCES AND IN NOT PROPE RLY APPRECIATING THE FACTS AS WELL AS THE REASONS GIVEN BY THE A.O. IN HIS ORDER/REMAND REPORT. 2. THEREFORE, THE ORDER OF THE LD. CIT (A) BE CANCE LLED OR SET ASIDE AND THE ORDER OF THE A.O. MAY BE RESTORED . 3. WHILE PLEADING ON BEHALF OF THE ASSESSEE ON THE ISSUE OF NOT ALLOWING EXEMPTION U/S 54F OF THE INCOME-TAX ACT, 1 961, LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM ON THE BASIS THAT ASSESSEE HAS NOT CONSTRUCTED RESIDENTIAL HOUSE AT VILLAGE SIMRAULI AND ALSO ON THE GROUND THAT ASSESSEE IS HAVING THREE HO USES WHICH ARE CONTRARY TO THE LAW FOR CLAIMING THE EXEMPTION U/S 54F OF TH E ACT. 4. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. BEFO RE DISCUSSING THE ISSUE IN DETAIL, WE WOULD LIKE TO REPRODUCE THE PRO VISIONS OF SECTION 54F WHICH PROVIDES FOR NOT CHARGING CAPITAL GAIN ON TRA NSFER OF CERTAIN CAPITAL ASSETS TO THE INCOME-TAX IN CASE OF INVESTMENT IN R ESIDENTIAL HOUSE. THE SECTION READ AS UNDER :- 54F. (1) [SUBJECT TO THE PROVISIONS OF SUB-SECTION (4), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIV IDED FAMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG-T ERM CAPITAL ASSET, NOT BEING A RESIDENTIAL HOUSE (HEREAFTER IN THIS SECTIO N REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS, WITHIN A PER IOD OF ONE YEAR BEFORE OR [TWO YEARS] AFTER THE DATE ON WHICH THE TRANSFER TO OK PLACE PURCHASED, OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED, A RESIDENTIAL ITA NO.4286 & 4620/DEL/2012 4 HOUSE (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET), THE CAPITAL GAIN SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOL LOWING PROVISIONS OF THIS SECTION, THAT IS TO SAY, ( A ) IF THE COST OF THE NEW ASSET IS NOT LESS THAN THE NET CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, THE WHOLE OF SUCH CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45 ; ( B ) IF THE COST OF THE NEW ASSET IS LESS THAN THE NET CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, SO MUCH OF THE CAPIT AL GAIN AS BEARS TO THE WHOLE OF THE CAPITAL GAIN THE SAME PROPORTIO N AS THE COST OF THE NEW ASSET BEARS TO THE NET CONSIDERATION, SH ALL NOT BE CHARGED UNDER SECTION 45: [ PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL A PPLY WHERE ( A ) THE ASSESSEE, ( I ) OWNS MORE THAN ONE RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, ON THE DATE OF TRANSFER OF THE ORIGINAL ASSE T; OR ( II ) PURCHASES ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF ONE YEAR AFTER THE DATE OF TRANS FER OF THE ORIGINAL ASSET; OR ( III ) CONSTRUCTS ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TR ANSFER OF THE ORIGINAL ASSET; AND ( B ) THE INCOME FROM SUCH RESIDENTIAL HOUSE, OTHER THA N THE ONE RESIDENTIAL HOUSE OWNED ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET, IS CHARGEABLE UNDER THE HEAD INCOME FROM HO USE PROPERTY. THE PROVISO TO SECTION CLEARLY PROVIDES THAT THIS B ENEFIT OF THE SUB-SECTION SHALL NOT APPLY WHERE THE ASSESSEE OWNS MORE THAN O NE RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, ON THE DATE OF TRANSFER O F THE ORIGINAL ASSET; OR PURCHASES ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF ONE YEAR AFTER THE DATE OF TRANSFER OF ORIGINAL ASSET; OR CONSTRUCTS ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER OF THE ORIGINAL ASSET; A ND THE INCOME FROM SUCH RESIDENTIAL HOUSE, OTHER THAN THE ONE RESIDENTIAL H OUSE OWNED ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET, IS CHARGEABLE UN DER THE HEAD INCOME ITA NO.4286 & 4620/DEL/2012 5 FROM HOUSE PROPERTY. AFTER HEARING BOTH THE SIDES , WE FIND THAT THE ASSESSING OFFICER AS WELL AS THE CIT (A) HAS NOTED THAT THE ASSESSEE WAS OWNING THREE OTHER RESIDENTIAL PROPERTIES LOCATED A T 553, RADHAPURI, HAPUR, 59, GOPIPURA, KOTHIGATE AND FLAT NO.201, B 1, LOTUS POND, 2A VAIBHAV KHAND, INDIRAPURAM, GHAZIABAD. THE ASSESSE E HAS CLAIMED THAT FIRST TWO HOUSES, .E. 553, RADHAPURI, HAPUR AND GOP IPURA, KOTHIGATE WERE BELONGING TO HUF. THE FLAT NO.201, B-1, LOTUS POND , 2A VAIBHAV KHAND, INDIRAPURAM, GHAZIABAD WAS ACCEPTED TO BE BE LONGING TO THE ASSESSEE. THERE IS NO CLEAR FINDING REGARDING OWNE RSHIP OF THESE TWO PROPERTIES CLAIMED TO BE BELONGING TO THE HUF. IT IS A FACTUAL ASPECT AND IT NEEDS TO BE THRASHED OUT AT ASSESSING OFFICER LE VEL. THE ORIGINAL ASSET, I.E., PLOT OF LAND AT VAISHAI, GHAZIABAD WAS SOLD F OR RS.50 LACS ON 29.05.2007. FROM THE RECORDS, WE FIND THAT THE FLA T NO.201, B-1, LOTUS POND, 2A VABHAV KHAND, INDIRAPURAM, GHAZIABAD WAS P URCHASED BY THE ASSESSEE BY FLAT BUYER AGREEMENT BETWEEN SHOURYA TO WERS PVT. LTD. AND DR. NEETA SHARMA AND DR. SUNIL SHARMA AND AS PER AN NEXURE B TO THIS AGREEMENT, THE ASSESSEE HAS PAID RS.25,45,226.25 UP TO 17.10.2005 AS A BASE SALE PRICE AND HAS ALSO PAID OTHER CHARGES LIK E PLC, IFMS AND OTHER CHARGES. THUS, THE TOTAL PAYMENT UP TO 17.10.2005 PAID WAS RS.29,53,001.25. IN ADDITION TO THAT, THE ASSESSEE WAS TO PAY FURTHER RS.1,49,748.75 ONLY. FURTHER, THE VALUATION REPORT SUBMITTED BY THE ASSESSEE MENTIONS THAT IT WAS A VACANT PLOT WITH A ROOM, PUMP ROOM AND ITA NO.4286 & 4620/DEL/2012 6 TOILET THEREON AND AS PER VALUATION REPORT, THE COV ERED AREA WAS 53 SQ.MTR. AND THE VALUATION OF THE CONSTRUCTION WAS ADOPTED B Y THE VALUER AS RS.1,33,000/-. FURTHER WE ALSO FIND THAT THE ASSES SING OFFICER HIMSELF HAS VISITED THE SITE TO VERIFY THE EXISTENCE OF RES IDENTIAL BUILDING. THE ASSESSEE CLAIMED THAT TWO PROPERTIES WERE BELONGING TO HUF AND THESE WERE ACQUIRED BY THE FATHER OF THE ASSESSEE WHICH W AS BEQUEATHED IN FAVOUR OF THE HUF BY WAY OF WILL. BEFORE US, IT WA S ALSO CANVASSED THAT THIS ASSESSMENT HAS BEEN COMPLETED IN A VERY SHORT PERIOD BETWEEN 13.12.2010 TO 29.12.2010. THEREFORE, ASSESSEE COUL D NOT GET THE BENEFIT OF EFFECTIVE AND PROPER HEARING. HE PLEADED THAT T HIS ASSESSMENT WAS MADE IN HASTE. WE ALSO FIND THAT THE ORDER OF THE ASSESSING OFFICER HAS BEEN MADE U/S 143(3)/144 OF THE INCOME-TAX ACT, 196 1. IT IS ALSO CANVASSED BEFORE US THAT THE INCOME-TAX INSPECTOR A S WELL AS ASSESSING OFFICER HAS CARRIED OUT INSPECTION AT THE SITE, BUT THE FINDINGS OF SUCH VISIT HAVE NOT BEEN CONFRONTED WITH THE ASSESSEE WHICH CL EARLY SHOWS THAT THERE WAS INADEQUATE OPPORTUNITY PROVIDED TO THE ASSESSEE . THE LD. AR HAS TRIED TO DRAW OUR ATTENTION TO VARIOUS POSITIVE EVI DENCES FOR ESTABLISHING THAT THERE WAS A CONSTRUCTION OF RESIDENTIAL HOUSE AT THE VILLAGE SIMRAULI, HAPUR. HOWEVER, WE FIND THAT THE FINDINGS OF THE A SSESSING OFFICER AS WELL AS THE INCOME-TAX INSPECTOR WERE NOT CONFRONTE D WITH THE ASSESSEE. SINCE THIS IS A FACTUAL ASPECT AND WITHOUT BRINGING ALL RELEVANT FACTS ON RECORD, IT IS DIFFICULT TO ARRIVE AT A JUSTIFIED RE ASONING WITH REGARD TO THE ITA NO.4286 & 4620/DEL/2012 7 CLAIM OF EXEMPTION U/S 54F OF THE INCOME-TAX ACT, 1 961. THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPR OPRIATE TO REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING D E NOVO AFTER ASCERTAINING ALL THE RELEVANT FACTS. THE ASSESSEE SHALL COOPERA TE IN PROVIDING ALL THE NECESSARY DETAILS. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. IN THE REVENUES APPEAL, THE ISSUE INVOLVED IS D ELETING THE ADDITION OF RS.15 LACS MADE ON ACCOUNT OF UNEXPLAINED ADVANC ES. 7. THE ASSESSING OFFICER MADE THE FOLLOWING ADDITIO NS BY HOLDING AS UNDER :- ANNEXURE 'B' BALANCE SHEET FOR A. Y. 2008-09 OF ASSESSEE REFLECTED TWO NEW LOANS OF RS.10,00,000/- AND RS. 5,00,000/- FROM SH. JAIPAL SHARMA AND SH. DUSHYANT TYAGI BUT VIDE REPLY DATED 26-11-2010 IT WAS FURNISHED THAT T HE SAME ARE ADVANCE FOR SALE OF AGRICULTURAL LAND. IN THE ANNEX URE B OF AUDIT REPORT IT HAS BEEN WRITTEN BY HAND 'ADVANCE F OR LAND SALE' AGAINST LOAN BY SH. JAIPAL SHARMA BUT NO SIGN ATURE REGARDING CORRECTIONS HAS BEEN MADE BY AUDITOR NEIT HER IT APPEARS IN HIS WRITING. IN THE CASE OF SH. JAIPAL SHARMA COPY OF AGREEMENT TO SALE DATED 21-05-2007 REVEALS THAT THE SAID AGREEME NT WAS MADE FOR SALE OF LAND OWNED BY ASSESSEE IN KHASRA N O. 782, DHEERKHEDA, HAPUR MEASURING 0.1733 HECTARE FOR RS.20,00,000/ - AND ADVANCE OF RS.10,00,000/- WAS R ECEIVED WHEREAS 0.3230 HECTARE OR PART OF THE LAND IN KHASR A NO. 782 ITSELF WAS SOLD ON 24-12-2007 TO SMT. UMA CHAUDHARY FOR RS. 8,08,000/ -. IN VIEW OF THESE FACTS, SUBMISSIONS OF THE ASSESSEE ARE NOT TRUE. AS MENTIONED IN BALANCE SHEET AND ANN EXURE 'B' OF THE AUDIT REPORT THIS IS TREATED AS UNSECURED LOAN BUT ASSESSEE HAS NOT EVEN FURNISHED WHETHER THIS IS TAKEN/ ACCEP TED BY ITA NO.4286 & 4620/DEL/2012 8 CHEQUE OR BY CASH NEITHER CREDITWORTHINESS OF THE L ENDER SH. JAIPAL SHARMA WAS PROVED. ACCORDINGLY RS.10,00,000/ - ARE ADDED IN THE INCOME OF THE ASSESSEE TOWARDS UNEXPLA INED CASH CREDITS AS WELL AS UNEXPLAINED LIABILITY. FURTHER P ENALTY PROCEEDINGS FOR VIOLATION OF PROVISIONS U/ S 269SS OF THE I.T. ACT, 1961 BY ACCEPTING LOAN OF MORE THAN RS.20,000/ - IN CASH ARE ALSO BEING INITIATED SEPARATELY. PENALTY PROCEE DINGS FOR CONCEALMENT OF INCOME AND ITS PARTICULARS U/S 271(1 ) (C) OF THE INCOME TAX ACT, 1961 ARE BEING INITIATED SEPARATELY . [ADDITION: RS. 10,00,000/-] IN THE CASE SH. DUSHYANT TYAGI RS. 5,00,000/- ARE MENTIONED IN BALANCE SHEET AND ANNEXURE 'B' OF THE AUDIT REPORT AS UNSECURED LOANS BUT NEITHER SH. DUSHYANT TYAGI WAS PRODUCED FOR EXAMINATION NOR CREDITWORTHINESS P ROVED. ASSESSEE HAS NOT EVEN FURNISHED WHETHER THIS LOAN/ ADVANCE HAS BEEN TAKEN/ ACCEPTED BY CHEQUE OR BY CASH. AFFI DAVIT FILED ON 27-12-2010 IS WRITTEN IN ENGLISH AND SIGNA TURE OF LENDER SH. DUSHYANT TYAGI IN HINDI REVEALS HE DOES NOT KNOW FOR WHAT PURPOSE THIS AFFIDAVIT IS BEING MADE. THER E ARE CERTAIN CHANCES OF MISGUIDING HIM. ACCORDINGLY RS.5 ,00,000/ - ARE ADDED IN THE INCOME OF THE ASSESSEE TOWARDS UNEXPLAINED CASH CREDITS AS WELL AS UNEXPLAINED LIA BILITY FURTHER PENALTY PROCEEDINGS FOR VIOLATION OF PROVIS IONS U/S 26955 OF THE I.T. ACT, 1961 BY ACCEPTING LOAN OF MO RE THAN RS.20,000/ - IN CASH ARE ALSO BEING INITIATED SEPAR ATELY. PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME AND I TS PARTICULARS U/S. 271(1) (C) OF THE INCOME TAX ACT, 1961 ARE BEING INITIATED SEPARATELY. [ADDITION: RS. 5,0 0,000/-] 8. THE CIT (APPEALS) DELETED THE ADDITIONS BY HOLDI NG AS UNDER :- 8.3.1 THIS GROUND OF APPEAL IS REGARDING ADDITION OF RS. 15,00,000/- WHICH THE APPELLANT CLAIMED TO BE RECEI VED ON ACCOUNT OF ADVANCE FOR LAND SALE . 8.3.2 RS.10,00,000/- WAS CLAIMED TO BE RECEIVED FRO M SH. JAIPAL SHARMA. CONFIRMATIONS ALONG WITH COPIES OF S ALE AGREEMENT WERE FURNISHED. THE AO REJECTED THIS ON T HE GROUND THAT NEITHER MODE OF THIS ADVANCE WAS STATED CLEARL Y NOR CREDITWORTHINESS OF SH. JAIPAL SHARMA WAS PROVED. ITA NO.4286 & 4620/DEL/2012 9 THE APPELLANT SAYS THAT COPY OF DEATH CERTIFICATE O F SH. JAIPAL SHARMA WAS SUBMITTED BEFORE THE AO AND WAS E XPLAINED THAT SH. JAIPAL SHARMA EXPIRED BEFORE EXECUTION OF ADVANCE DEED AND THAT THREE SONS OF SH. JAIPAL SHARMA HAD F URNISHED CONFIRMATION THAT THEY HAD THEIR INTEREST IN ADVANC E GIVEN. FURTHER ACCORDING TO APPELLANT, TO PROVE CREDITWORT HINESS, KHASARA KHATONI GIVING DESCRIPTION OF LAND OWNED BY SH. JAIPAL SHARMA ADMEASURING MORE THAN SEVEN HECTARE HAD ALSO BEEN FURNISHED. I FIND THAT VIDE ABOVE MENTIONED DOCUMENTS, THE APPELLANT HAD SUFFICIENTLY DISCHARGE HIS ONUS OF PR OVING THE IDENTITY AND CREDITWORTHINESS OF LATE SH. JAIPAL SH ARMA. SH. JAIPAL SHARMA WAS HAVING SUFFICIENT LAND HOLDING AN D THEREFORE, CREDITWORTHINESS WAS ALSO EXPLAINED. IF THE AO HAD STILL SOME DOUBT ABOUT THE SOURCE OF CASH; HE COULD TAKE (AND HE CAN STILL TAKE) REMEDIAL ACTION IN THE HANDS OF THE LEGAL HEIR(S) OF SH. JAIPAL SHARMA, WHO HAVE CONFIRMED TO HAVE INTEREST IN THE SAID ADVANCE. PREPONDERANCE OF EVID ENCE GOES IN FAVOUR OF APPELLANT AND HENCE RS.10,00,000/- IS TRE ATED AS EXPLAINED CREDIT. 8.3.3 REGARDING RS. 5,00,000/- CLAIMED TO BE RECEIV ED FROM SH. DUSHYANT TYAGI, EVEN AFFIDAVIT OF SH. DUSHYANT TYAGI WAS FURNISHED TO THE AO BUT THE AO HAD DOUBTED THE SAME ON THE GROUND THAT AFFIDAVIT IS WRITTEN IN ENGLISH WHILE S H. DUSHYANT TYAGI HAS SIGNED IN HINDI. I FIND THAT IN RESPECT OF THIS ADVANCE ALSO, REQUIS ITE DOCUMENTARY EVIDENCE WERE FURNISHED LIKE SALE AGREE MENT, MODE OF THIS ADVANCE, BANK CERTIFICATE CERTIFYING T HE MODE OF PAYMENT TO BE BY CHEQUE AND ALSO DECLARATION OF SH. DUSHYANT TYAGI WAS FURNISHED TESTIFYING ADVANCE OF RS.5,00,0 00/-. THUS, IDENTITY AND GENUINENESS OF TRANSACTION HAD BEEN ES TABLISHED. FURTHER, THE AO COULD HAVE ENFORCED SUMMON TO SH. D USHYANT TYAGI FOR ANY FURTHER VERIFICATION. THEREFORE, THIS CREDIT OF RS.5,00,000/- IS ALSO TREATED AS SUFFICIENTLY EXPLA INED. HERE ALSO THE AO COULD TAKE (OR CAN STILL TAKE) REMEDIAL ACTION IN CASE HE IS NOT SATISFIED ABOUT THE SOURCE OF FUND I N THE HANDS OF SH. DUSHYANT TYAGI. 8.3.4 THUS, ADDITION OF RS.15,00,000/- IS DELETED. THE APPELLANT SUCCEEDS ON GROUND OF APPEAL NO.4. ITA NO.4286 & 4620/DEL/2012 10 9. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. THE CIT (A) HAS GRANTED THE RELIEF TO THE ASSESSEE THAT ASSESSEE HA S SUFFICIENTLY DISCHARGED THE ONUS PROVING THE IDENTITY AND CREDITWORTHINESS OF SHRI JAIPAL SHARMA. THE GENUINENESS OF TRANSACTION WAS ESTABLISHED. IN SUCH A SITUATION, CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION. ASSESS EE HAS ALSO EXPLAINED SUFFICIENTLY THE SOURCE OF CREDIT OF RS.5 LACS TAKE N FROM SHRI DUSHYANT TYAGI. AFTER HEARING BOTH THE SIDES ON THESE ISSUE S, WE FIND THAT THE REVENUE IS UNABLE TO PRODUCE ANYTHING CONTRARY TO T HE FINDINGS OF THE CIT (A), THEREFORE, WE SUSTAIN THE ORDER OF THE CIT (A) ON THIS ISSUE. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. 11. TO SUM UP : THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES AND THE APPEAL FILED BY THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 21 ST DAY OF OCTOBER, 2014. SD/- SD/- (I.C. SUDHIR) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 21 ST DAY OF OCTOBER, 2014 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR/ITAT