Picheswar Gadde, New Delhi V. ITO, Ward- 10(1), New Delhi

ITA 4638/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8469 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 22-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUSHMA SINGH
• Assessee Lawyers: PRAYANSHU GOEL
• Keywords: Unexplained investment; Peak credit; Source of fund; Additional evidence; Fair market value; Capital Gains
• Section: 143(3); 133A; 192; 13; 131; 68; 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI F BEN CH, NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4638/DEL/2019 [ASSESSMENT YEAR: 2013-14] PICHESWAR GADDE, HOUSE NO.16A, DLF CHHATARPUR, NEW DELHI-110074 INCOME TAX OFFICER, WARD-10(1), NEW DELHI PAN - AAJPG7365H APPELLANT RESPONDENT APPELLANT BY SHRI PRAYANSHU GOEL, CA . RESPONDENT BY SMT. SUSHMA SINGH, CIT - DR DATE OF HEARING 17.12.2020 DATE OF PRONOU NCEMENT 13 .01.202 1 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-16, NEW DELHI, DATED 29.03.2019, PERTAINING TO ASSESSMENT Y EAR 2013-14. 2. THE ASSESSEE IS AGGRIEVED BY THE FOLLOWING ADDIT IONS:- I. ADDITION OF RS.8,71,55,000/- ON ACCOUNT OF UNSECURE D LOAN UNDER SECTION 68 OF THE ACT. II. ADDITION OF RS.11,17,50,000/- AS SHORT TERM CAPITAL GAIN ON ACCOUNT OF UNDERSTATEMENT OF CONSIDERATION RECEIVED ON SALE OF LAND. III. ADDITION OF RS.1,57,00,000/- UNDER SECTION 69 OF TH E ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN THE PROPERTY. 2 ITA NO.4638/DEL/2019 IV. ADDITION OF RS.7,75,000/- PERTAINING TO CASH DEPOSI TED IN THE BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION. 3. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH, THE CASE RECORDS CAREFULLY PERUSED AND WITH THE ASSISTANCE OF THE COUNSEL, WE HAVE DULY CONSIDERED THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD IN THE LIGH T OF RULE 18(6) OF THE ITAT RULES. I. ADDITION OF RS.8,71,55,000/- ON ACCOUNT OF UNSECURED LOAN UNDER SECTION 68 OF THE ACT. 4. THE RETURN WAS SELECTED FOR LIMITED SCRUTINY FOR VERIFICATION OF CASH DEPOSITS IN THE BANK ACCOUNT AND SALE OF PROPERTY AT DLF CHATTARPUR , NEW DELHI. HOWEVER, ON 04.03.2016, THE AO MOVED APPLICATION TO PCIT FOR CO NDUCTING COMPLETE SCRUTINY AND THE ASSESSMENT ORDER WAS FRAMED UNDER SECTION 143(3) OF THE ACT ON 31.03.2016. 5. WHILE SCRUTINIZING THE BANK STATEMENTS, THE AO N OTICED THAT THERE ARE DEPOSITS THROUGH BANKING CHANNELS OF RS.8,71,55,000/-, THIS WAS ONE OF THE MAIN REASON FOR SEEKING PERMISSION FOR COMPLETE SCRUTINY. 6. THE ASSESSEE EXPLAINED THAT THE SAID DEPOSIT IS OUT OF UNSECURED LOANS TAKEN FROM 11 PARTIES. THE AO ASKED THE ASSESSEE TO EXPLAIN TH E TRANSACTION IN THE LIGHT OF THE PROVISIONS OF SECTION 68 OF THE ACT. OBVIOUSLY, THE SPECIFIC QUERY WAS RAISED AFTER SEEKING PERMISSION FROM THE PCIT FOR CONDUCTING COMPLETE SC RUTINY. SINCE, THE TIME AVAILABLE WAS NOT SUFFICIENT, THE ASSESSEE COULD NOT FURNISH THE NECESSARY DETAILS, THE AO PROCEEDED BY MAKING ADDITION OF RS.8,71,55,000/- UNDER SECTION 6 8 OF THE ACT. 7. THE MATTER WAS AGITATED BEFORE THE CIT(A) AND TH E APPELLANT FURNISHED DOCUMENTARY EVIDENCES TO PROVE THE GENUINENESS OF T HE UNSECURED LOANS FROM 11 PARTIES. THE ASSESSEE FURNISHED CONFIRMATIONS AND BANK STATE MENT TO DEMONSTRATE THAT THE LOANS 3 ITA NO.4638/DEL/2019 ARE GENUINE AND THE ONUS CAST UPON THE ASSESSEE UND ER SECTION 68 OF THE ACT HAS BEEN DULY DISCHARGED. 8. HOWEVER, THE EVIDENCES FURNISHED BY THE ASSESSEE WERE OUT-RIGHTLY REJECTED BY THE CIT(A) STATING THAT THE AO HAD GIVEN SUFFICIENT OPP ORTUNITY TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF. 9. WE DO NOT FIND ANY MERIT IN THIS OBSERVATIONS OF THE CIT(A). AS MENTIONED ELSEWHERE, THE RETURN WAS SELECTED FOR LIMITED SCRU TINY AND ONLY IN THE MONTH OF MARCH, PERMISSION FOR COMPLETE SCRUTINY WAS TAKEN AND THE ASSESSMENT ORDER WAS FRAMED ON 31 ST MARCH AS IT WAS GETTING BARRED BY LIMITATION. IN OU R CONSIDERED VIEW, ANY OPPORTUNITY/HEARING GIVEN PRIOR TO THE PERMISSION O F COMPLETE SCRUTINY WOULD NOT AMOUNT TO GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO EXPL AIN HIS CASE. 10. WE HAVE CAREFULLY PERUSED THE DOCUMENTARY EV IDENCES, WE FIND THAT OUT OF 11 PARTIES, THE LOAN HAS BEEN REPAID EITHER IN THE SAM E YEAR OR IN THE SUBSEQUENT YEAR IN THE CASE OF 8 PARTIES AND IN RESPECT OF OTHER 3 PARTIES , THE LOAN HAS BEEN PARTLY REPAID AND THE SAME CAN BE SEEN FROM THE FOLLOWING CHART. S L NO N AME OF THE P ARTY A MOUNT RECEIVED A MOUNT REPAID P APER B OOK 1 ANUBHAV INFRASTRUCTURE 1,00,00,000/- 1,00,00,000/- P AGE 111-115 2 BHUMIKA VINCOM 25,00,000/- 25,00,000/- P AGE 116 -119 3 PUNCTURAL FINANCIAL ADVISORY (P) LTD. 20,00,000/- 20,00,000/- P AGE 120-123 4 PAVAN GUPTA AND EMPEROR INTERNATIONAL 4,70,00,000/- 4,70,00,000/- P AGE 124-134 5 JAYARAM KOMATI 85,05,000/- 50,00,000/- P AGE 135-141 6 KALPANA KOMATI 53,00,000/- 29,50,000/- P AGE 142-146 4 ITA NO.4638/DEL/2019 7 HARSH YADAV 25,05,000/- 25,05,000/- P AGE 147-150 8 RAJESH SEJWAL 15,40,000/- 15,40,000/- P AGE 151-153 9 RAKESH SEJWAL 9,55,000/- 9,55,000/- P AGE 154-156 10 OMAVTAR 45,00,000/- 34,00,000/- P AGE 157-166 11 KASTURI 25,00,000/- 25,00,000/- P AGE 167-170 11. IF THE CIT(A) HAD GONE THROUGH THE EVIDENCES TH EN HE WOULD HAVE FOUND THAT ALMOST ENTIRE LOAN HAS BEEN REPAID. NOT ONLY, THESE TRANSACTIONS ARE REFLECTED IN THE BANK STATEMENT BUT HAVE ALSO BEEN DULY CONFIRMED BY THE PARTIES AND THE DOCUMENTS ARE EXHIBITED FROM PAGES 111 TO 117 OF THE PAPER BOOK. 12. WE FURTHER FIND THAT DURING THE COURSE OF RE MAND PROCEEDINGS, THE AO HAD ISSUED SUMMONS UNDER SECTION 131 OF THE ACT TO THE AFOREMENTIONED PARTIES AND ALL THE SUMMONS WERE DULY SERVED, WHICH MEANS THAT THE NAME S AND ADDRESSES OF THE PARTIES ARE GENUINE. MERELY BECAUSE THE PARTIES DID NOT APP EAR BEFORE THE AO WOULD NOT LEAD TO THE INFERENCE THAT THE LOANS ARE NOT GENUINE. MOREO VER, THE YEAR IN WHICH THE SUMMONS WAS SERVED UPON THE PARTIES, THEIR LOANS HAVE BEEN REPAID BY THE APPELLANT. WE FIND THAT THE AO HAS NOT TAKEN ANY FURTHER STEP AFTER SERVING THE SUMMONS UNDER SECTION 131 OF THE ACT. 13. THE LOWER AUTHORITIES HAVE ALSO HEAVILY RELIED UPON THE STATEMENT OF PAVAN GUPTA, WHO IN HIS STATEMENT STATED THAT HE HAS GIVEN ONLY RS.1.13 CRORES AND DENIED GIVEN A LOAN RS.4.70 CRORES. THE FACTS ON RECORD SHOWS THAT RS.4 .70 CORES WAS RECEIVED FROM PAVAN GUPTA/ EMPEROR INTERNATIONAL AND THE SAME HAS BEEN REPAID AS PER EXHIBITS PAGE 124 TO 134 OF THE PAPER BOOK. IT MAY BE POSSIBLE THAT PAVA N GUPTA GAVE RS.1.13 CRORES AND THE 5 ITA NO.4638/DEL/2019 BALANCE WAS GIVEN BY THE EMPEROR INTERNATIONAL AS T HE REPAYMENT OF RS.4.47 CRORES HAVE NOT BEEN DOUBTED, NO ADVERSE INFERENCE SHOULD BE DR AWN. 14. CONSIDERING THE CLINCHING EVIDENCES, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS SUCCESSFULLY DISCHARGED THE ONUS CAST UPON HIM BY THE PROVISIONS OF SECTION 68 OF THE ACT. WE ACCORDINGLY DIRECT THE AO TO DELE TE THE ADDITION OF RS.8,71,55,000/-. 15. GROUND NO.3 WITH ALL ITS SUB-GROUNDS IS ALLOWE D. 16. BEFORE CLOSING BOTH THE REPRESENTATIVES HAVE RE LIED UPON VARIOUS JUDICIAL DECISIONS. HOWEVER, ALL THESE DECISIONS ARE FACTS SPECIFIC AND NEED NO CONSIDERATION ON THE PECULIAR FACTS OF THE CASE IN HANDS AS DISCUSSED HEREINABOVE . II. ADDITION OF RS.11,17,50,000/- AS SHORT TERM CAPIT AL GAIN ON ACCOUNT OF UNDERSTATEMENT OF CONSIDERATION RECEIVED ON SALE OF L AND. 17. THE FACTS RELATING TO THIS ADDITION ARE THAT TH E ASSESSEE HAS SOLD PROPERTY AT 15 - DLF, CHATTARPUR, NEW DELHI FOR A TOTAL CONSIDERATIO N OF RS.2.26 CRORES. SINCE, THE ASSESSEE WAS 50% OWNER OF THE PROPERTY; HE COMPUTED THE CAPITAL GAINS BY TAKING ACTUAL SALE CONSIDERATION OF RS.1.13 CRORES. A SURVEY OPER ATION WAS CONDUCTED UNDER SECTION 133A OF THE ACT AT THE PREMISES OF THE ASSESSEE ON 30.06.2014 AND 01.07.2014. DURING THE SURVEY PROCEEDINGS, SOME ROUGH REGISTER AND PAP ERS WERE FOUND FROM THE POSSESSION OF THE EMPLOYEE NEHA KUKREJA AND RAJESH SEJWAL. ST ATEMENT OF MS. NEHA KUKREJA WAS ALSO RECORDED. 6 ITA NO.4638/DEL/2019 18. ON THE BASIS OF THE ROUGH NOTING AND THE STATEM ENT OF NEHA KUKREJA, THE AO CAME TO THE CONCLUSION THAT THE ACTUAL SALE CONSIDERATIO N IS RS.24.61 CRORES AND SINCE THE ASSESSEE IS 50% OF THE OWNER OF THE PROPERTY, 50% O F THE TOTAL SALE CONSIDERATION WAS CONSIDERED FOR THE COMPUTATION OF THE CAPITAL GAINS AND ACCORDINGLY THE ADDITION OF RS.11,17,50,000/- 19. THE DOCUMENTS HAVING ROUGH NOTING IMPOUNDED DUR ING THE SURVEY WHICH PROMPTED THE AO TO MAKE THE ADDITION ARE ANNEXURE-A7 PAGE 6 AND 8, WHICH ARE AS UNDER:- 7 ITA NO.4638/DEL/2019 20. A CAREFUL PERUSAL OF THESE NOTING ON IMPOUNDED DOCUMENT WOULD SHOW THAT THE ALLEGED CASH TRANSACTIONS ARE DATED 09.11.2012, 15. 11.2012 AND 22.01.2013. THE REGISTERED SALE DEED OF THE LAND SOLD TO PAVAN GUPT A WAS EXECUTED ON 18.10.2012 AND THE POSSESSION OF THE LAND WAS ALSO PROVIDED AT THE TIME OF EXECUTION OF THE SALE DEED. THESE FACTS ARE VERIFIABLE FROM THE EXHIBITS AT PAG E 94 TO 111 OF THE PAPER BOOK. 21. IF THE LOGIC AND FINDINGS OF THE LOWER AUTHORIT IES ARE TO BE ACCEPTED THEN IT WOULD BE INCONCEIVABLE AS TO WHY THE BUYER WOULD GIVE PAYMEN T POST THE REGISTRATION OF THE SALE DEED AND RECEIPT OF POSSESSION OF THE PROPERTY. FU RTHER, PAVAN GUPTA APPEARED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON 28.03.2014 AND WHOSE STATEMENT WAS RECORDED. 8 ITA NO.4638/DEL/2019 22. A PERUSAL OF THE STATEMENT OF PAVAN GUPTA SHOWS THAT NOWHERE HE HAS ADMITTED THAT HE HAS PAID A CONSIDERATION OF RS.24.61 CRORES OVER AND ABOVE THE TRANSACTION VALUE OF THE LANDS. 23. FURTHER, THERE IS NO ADVERSE INFERENCE BY THE S TAMP VALUATION AUTHORITIES IN RESPECT OF SALE CONSIDERATION ON WHICH STAMP DUTY H AS BEEN PAID AND ACCEPTED BY THE LAND REVENUE AUTHORITY. THE AO HAS BROUGHT NO EVIDE NCE ON RECORD TO SHOW THAT THE FAIR MARKET VALUE OF THE LAND SOLD IS MUCH MORE THAN THE SALE VALUE ON WHICH THE SALE DEED HAS BEEN EXECUTED. 24. THE ENTIRE ADDITION HAVE BEEN MADE ON THE BASIS OF THE ROUGH NOTING EXHIBITED ELSEWHERE AND ON THE STATEMENT OF THE EMPLOYEE NEHA KUKREJA. AS MENTIONED ELSEWHERE, THE DATES MENTIONED IN THE ROUGH NOTING ARE POST SA LE DEED AND IS AGAINST THE HUMAN PROBABILITY BECAUSE IF THERE IS SOME UNDER HAND DEA LING BY WHICH CASH IS TAKEN OVER AND ABOVE BY CHEQUE VALUE THEN CASH TRANSACTIONS PRECEE DS THE CHEQUE TRANSACTIONS. HOWEVER, IN THE PRESENT CASE, SINCE THE SALE DEED W AS EXECUTED ON 18.10.2012 AND ON THE SAME DATE A QUITE POSSESSION WAS GIVEN TO THE B UYERS, NO SANE PERSON WOULD ACCEPT CASH AND NO SANE PERSON WOULD PAY CASH AFTER GETTIN G POSSESSION OF THE PROPERTY. IN OUR CONSIDERED VIEW, THE ENTIRE ADDITION HAS BEEN MADE ON SUSPICION WHICH CANNOT BE A BASIS FOR MAKING THE IMPUGNED ADDITIONS. AS NO DEMONSTRAT IVE EVIDENCE HAVE BEEN BROUGHT ON RECORD TO SHOW THAT THE ASSESSEE HAS ACTUALLY RECEI VED RS.24.61 CRORES. WE DO NOT FIND ANY MERIT IN THE ADDITION AND THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.11,17,50,000/-. 25. GROUND NO.5 IS ACCORDINGLY ALLOWED. III. ADDITION OF RS.1,57,00,000/- UNDER SECTION 69 O F THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN THE PROPERTY. 9 ITA NO.4638/DEL/2019 26. FACTS RELATING TO THIS ADDITION SHOW THAT DURIN G THE COURSE OF SURVEY AT THE BUSINESS PREMISES OF THE ASSESSEE ON 30.06.2014 AND 01.07.20 14, SOME NOTING WERE FOUND ON A PIECE OF PAPER WHICH WAS IMPOUNDED AS ANNEXURE-A4 P AGE 13 FROM WHICH THE AO FORM A BELIEF THAT ADVANCES HAD BEEN MADE TO JAIN FAMILY F OR PURCHASE OF A FARM HOUSE IN DLF CHHATARPUR. THE SAID NOTINGS ARE AS UNDER:- 27. ON THE BASIS OF THIS DOCUMENT, THE AO MADE THE ADDITION OFRS.1.57 CORES BEING 50% OF RS.3.14 CRORES U/S 69 OF THE ACT. A CLOSE PE RUSAL OF THE IMPOUNDED DOCUMENTS MENTIONED HEREINABOVE WOULD SHOW THAT THE TRANSACTI ON PERTAINS TO FY 2011-12 RELEVANT TO AY 2012-13. 28. INCIDENTALLY, THE SAME LOOSE SHEET WAS CONSIDER ED IN AY 2012-13 AND THE ADDITION OF RS.5.45 CRORES WAS MADE VIDE ORDER DATED 17.12.2 019 FRAMED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT AND THE SAID ASSESSMENT ORDER IS PLACED AT PAGES 177 TO 192 OF THE PAPER BOOK. FOR THE SAKE OF COMPLETENESS, THE RELEV ANT PARAGRAPHS OF THE ASSESSMENT ORDER ARE EXTRACTED HERE IN BELOW:- 13.1. DURING THE COURSE OF SURVEY ON LENGAYAS SOC IETY PREMISES AT C-72, SHIVALIK, MALVIYA NAGAR, NEW DELHI, COPY OF AGREEMENT SIGNED BETWEEN SMT. NISHA JAIN AND GADDE FAMILY WERE IMPOUNDED. ON PERUSAL OF THESE DOCUMENTS, IT I S FOUND THAT THE AGREEMENTS WERE SIGNED 10 ITA NO.4638/DEL/2019 FOR THE PURCHASE OF ABOVE LAND BY PICHESWAR GADDE A ND HIS WIFE FROM THE JAIN FA MILY AND THEIR ENTITY ARORA FARMS INDIA PVT. LTD. FOR A CONSI DERATION OF RS.28,76,00,000/- D ATE NAME AMOUNT CASH CHEQUE (BANK OF INDIA) ACC OUNT HOLDER 14.12.2011 BOTH 1,01,00,000 14.12.2011 NISHA JAIN 5.00,000 000104 S. GADDE 14.12.2011 NISHA JAIN 5,00,000 034503 P.GADDE 16.12.2011 NISHA JAIN 1,25,000 000106 S. GADDE 16.12.2011 NISHA JAIN 1,25,000 034611 P.GADDE 16.12.2011 N EERA JAIN 6,25,000 034612 P.GADDE 13.2. FROM THE ABOVE DOCUMENT, IT IS CLEAR THAT SOME OF T HE AMOUNT WHICH HAS BEEN ADVANCED TO JAIN FAMILY HAS BEEN GIVEN IN CASH. ON ANALYSIS OF IMPOUNDED DOCUMENTS BY THE INVESTIGATION WING REVEALED THAT THE CASH PAID WAS FOUND TO BE FROM TH E SALE PROCEEDS OF OTHER FARM HOUSE BY SHRI PICHESW AR GADDE. DETAILS OF PAYMENT MADE IN CASH AND SOURCE T HEREOF ARE GIVEN BELOW :- DATE AMOUNT PAID IN CASH TO JAIN FAMILY FOR PURCHASE OF DLF FARM HOUSE IN RS. DATE SOURCE OF FUNDS WHICH WERE PAID TO JAIN FAMILY AMOUNT PAID IN CASH IN RS. 14.12.2011 1,01,00,000 02.01.2012 1,00,00,000 ... 15.02.2012 16,00,000 ... 07.03.2012 15,00,000 ... 12.03.2012 10,00,000 11.03.2012 SALE OF DLF FARM TO SHRI PAWAN GUPTA 11,00,000 15.03.2012 3,00,000 ... 19.03.2012 50,00,000 19.03.2012 SALE OF DLF FARM TO SHRI PAWAN GUPTA 50,00, 000 23.03.2012 1,00,00,000 23.03:2012 SALE OF DLF FARM TO SHRI PAWAN GUPTA 1,00,00,000 26.03.2012 1,00,00,000 26.03.2012 SALE OF DLF FARM TO SHRI PAWAN GUPTA 1,00.00,000 28.03.2012 50,00, 000 28.03.2012 SALE OF DLF FARM TO SHRI PAWAN GUPTA 1,00,00,000 TOTAL 5,45,00, 000 3,61,00,000 16.12.2011 NEERA JAIN 6,25,000 000107 S. GADDE 02.01.2012 BOTH 1,00,00,000 ------ ----- 15.02.2012 SANJAY JAIN 16,00,000 ------ -------- 15.02.2012 NISHA JAIN 24.00,000 ------ ------- ------- ---- --------- 07.03.2012 RAKESH JAIN 15,00,000 ------- -------- 12.03.2012 RAKESH JAIN 1,00,000 ----- ------- 15.03.2012 6,00,000 3,00,000 -------- -------- 19.03.2012 50,00,000 -------- ------- 23.03.2012 JAIN ... 1,00,00,000 ------ --------- 26.03.2012 JAIN 1,00,00,000 ----- -------- 28.03.2012 JAIN ... 50,00,000 ----- ----- 11 ITA NO.4638/DEL/2019 13.3. THUS FROM THE ABOVE TABLE IT CAN BE NOTICED TH AT SOME OF THE CASH RECEIVED AS SALE PROCEEDS FROM SHRI PAV.AN GUPTA AGAINST SALE OF DLF FARM HOUSE HAS BEEN PAID TO JAIN FAMILY MEMBERS FOR PURCHASING ANOTHER FARM HOUSE AT CHATTARPUR, DELHI. THIS ALSO ESTABLISHES THAT SHRI PICHESWAR GADDE HAS RECEIVED HUGE AMOUNT OF CASH ON ACCOUNT OF SALE OF VARIOUS FARM HOUSES TO M/S MAPLE DESTINATIO N & DREAMBUILD PVT. LTD. SHRI J. S. KAPOOR AND SHRI PAWAN GUPTA. THUS, THE TOTAL OF UNAC COUNTED CASH ADVANCED TO JAIN FAMILY AMOUNTED TO RS. 5,45,00,000/- WHICH WAS RECEI VED BY THE ASSESSEE AND HIS WIFE AND THE ASSESSEES SHARE BEING 50% COMES TO RS.2,72 ,50,000/-. HENCE, AN ADDITION OF RS.2,72,50,000/- IS BEING MADE TO TOTAL INCOME OF T HE ASSESSEE BEING CASH ADVANCED FOR PURCHASE OF LAND. 29. SINCE, THE ADDITION HAS ALREADY BEEN MADE IN AY 2012-13, ON THE BASIS OF THE SAME DOCUMENTS ADDITION MADE DURING THE YEAR UNDER CONSIDERATION AMOUNTS TO DOUBLE ADDITION AND HAVE TO BE DELETED. WE ACCORDINGLY DIR ECTED THE AO TO DELETE THE ADDITION OF RS.1.57 CRORES. IV ADDITION OF RS.7,75,000/- PERTAINING TO CASH DEPO SITED IN THE BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION. 30. FACTS RELATING TO THIS ADDITION SHOW THAT DURI NG THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF THE CASH DEPOSITS IN THE BANK ACCOUNT. IN HIS REPLY, THE ASSESSEE STATED THA T THE CASH AMOUNTING TO RS.45.75 LAKHS HAS BEEN DEPOSITED AND EXPLAINED THAT THE DEP OSIT WAS OUT OF OPENING CASH IN HAND AS ON 01.04.2012 AMOUNTING TO RS.8,03,479/- AND ANO THER AMOUNT OF RS.38 LAKHS WAS CASH WITHDRAWN DURING THE YEAR. THIS EXPLANATION OF THE ASSESSEE WAS REJECTED BY THE AO, WHO TREATED THE OPENING BALANCE AS NIL OBSERVING TH AT THE ASSESSEE HAD NOT FURNISHED ANY DETAILS TO SUBSTANTIATE HIS CLAIM OF THE OPENIN G CASH IN HAND. THEREAFTER, ON THE BASIS PEAK BALANCE THEORY, THE AO MADE THE ADDITION OF RS .7.75 LAKHS U/S 69 OF THE ACT. 31. THE ASSESSEE FURNISHED ADDITIONAL EVIDENCE BEFO RE THE CIT(A) BUT THE ADMISSION OF THE SAME WAS HEAVILY OBJECTED BY THE AO AND THE CIT (A) DID NOT ADMIT THOSE EVIDENCES AND CONFIRMED THE ADDITION. 12 ITA NO.4638/DEL/2019 32. BEFORE US, THE COUNSEL ONCE AGAIN HEAVILY RELIE D UPON THOSE EVIDENCES WHICH HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES. WE HA VE GIVEN A THOUGHTFUL CONSIDERATION TO THE DOCUMENTARY EVIDENCES BROUGHT TO OUR NOTICE. IN OUR CONSIDERED OPINION, IT WOULD BE UNFAIR TO OUT-RIGHTLY REJECT THE EVIDENCES WITHOUT EXAMINING THE SAME. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILES OF THE AO. THE ASSESSEE IS DIRECTED TO FURNISH THE DEMONSTRATIVE EVIDENCES TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT AND THE AO IS DIRECTED TO EXAMINE/ VERIFY THE DETAILS AND DECIDE THIS ISSUE AFRESH. 33. THIS GROUND IS ACCORDINGLY TREATED AS ALLOWED F OR STATISTICAL PURPOSES. 34. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /01/2021 SD/- SD/- [KULDIP SINGH] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 13/01/2021. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI