Rajiv Chandran, New Delhi V. ITO, Ward-32(5), New Delhi

ITA 4713/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0056 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Gift; Income from undisclosed sources; Source of fund; Onus to prove
• Section: 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBE R ITA NO. 4713/DEL/2018 ASSESSMENT YEAR: 2010-11 RAJIV CHANDRAN B-45, GULMOHAR PARK, NEW DELHI. PAN NO. AKDPC3523B VS ITO WARD 32(5) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI R.S. SINGHVI, CA SHRI SATYAJEET GOEL, CA REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(A)-11, NEW DELHI DATED 18.05.2018 FOR AY 2010-11, CHALLENGING THE ADDITION OF RS. 12,97,300/-. 2. LD. COUNSEL FOR ASSESSEE DID NOT CHALLENGE REOPE NING OF THE ASSESSMENT. GROUND NO. 1 IS NOT PRESSED. SAME IS ACCORDINGLY DISMISSED. 3. THE FACTS OF THE CASE ARE THAT IN THIS CASE, AS PER AIR DATA AVAILABLE WITH THE AO, ASSESSEE HAS MADE CASH DEPOS ITS OF RS. 17,11,100/- AND PAID CREDIT CARD BILLS OF RS. 11,61 ,797/- DURING THE ASSESSMENT YEAR UNDER APPEAL. THE CASE WAS REO PENED U/S 147 OF THE ACT. ASSESSEE WAS ASKED TO PRODUCE THE DETAILS OF CREDIT DATE OF HEARING 06.12.2018 DATE OF PRONOUNCEMENT 12.12.2018 2 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN CARD EXPENSES AND LINK OF THE SAME WITH BANK DETAIL S, DETAILS OF CASH DEPOSIT IN BANK ACCOUNT WITH SOURCE AND COPY O F ALL BANK ACCOUNT STATEMENTS WITH NARRATION. THE ASSESSEE EX PLAINED THAT AS PER TOTAL CASH DEPOSITS DURING THE YEAR COMES TO RS. 13,81,100/- AND NOT RS. 17,11,100/-. THE ASSESSEE FILED TWO WORK SHEETS BEING THE DATE WISE ENTRIES OF THE CASH DEPO SITS AND WITHDRAWAL DURING THE RELEVANT FINANCIAL YEAR. THE ASSESSEE SUBMITTED THAT HE HAS RECEIVED CASH GIFTS TOTALING TO RS. 5 LAKHS. IN SUPPORT OF THIS SUBMISSION, HE HAS SUBMITTED 3 A FFIDAVITS FROM THE FAMILY MEMBERS NAMELY SHRI SHASHIV CHANDRAN (BR OTHER), MS. GEETA CHANDRAN (WIFE) AND MS. KAMLA RAMACHANDRAN (M OTHER OF THE ASSESSEE) ALONG WITH COPY OF THEIR ITR OF THE D ONORS. BUT NO SOURCE OF FUNDS OUT OF WHICH SUCH GIFTS WAS SUBMITT ED BY ASSESSEE. THE AO AFTER EXAMINING THE DETAILS NOTED THAT ASSES SEE HAS NOT SUBMITTED ANY DOCUMENTARY EVIDENCES FOR CASH DEPOSI TS. THE ASSESSEE ALSO EXPLAINED THAT SOURCE OF THE CASH DEP OSIT IS WITHDRAWAL FROM THE SAME BANK ACCOUNT MADE DURING T HE FINANCIAL YEAR. DETAILS OF THE SAME ARE REPRODUCED IN THE AS SESSMENT ORDER. THE AO, HOWEVER, NOTED THAT THE WITHDRAWAL PATTERN OF THE ASSESSEES BANK ACCOUNT SHOWS ASSESSEE IS HAVING HO USEHOLD EXPENSES OF ALMOST RS. 80,000/- PER MONTH AND DEPOS ITED THE REST OF MONEY BACK TO HIS BANK ACCOUNT. AS REGARDS, THE RECEIPT OF CASH GIFTS AMOUNTING TO RS. 5 LAKHS FROM THE FAMILY MEMBERS, THE AO NOTED THAT ONLY COPY OF THE ITR AND AFFIDAVITS H AVE BEEN FILED, THEREFORE, ASSESSEE FAILED TO EXPLAIN THE UNEXPLAIN ED CASH DEPOSIT IN THE BANK ACCOUNT. THE AO, HOWEVER, CONSIDERED T HE SOURCE OF 3 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN CASH DEPOSITS TOTALING TO RS. 83,800/- AS MADE OUT OF WITHDRAWALS AND REMAINING AMOUNT OF RS. 12,97,300/- WAS CONSIDE RED UNEXPLAINED. ADDITION OF THE SAME WAS MADE. 4. ADDITION WAS CHALLENGED BEFORE LD. CIT(A). THE ASSESSEE EXPLAINED THE SAME FACTS AND SUBMITTED THAT COPY OF THE ITR, BANK CERTIFICATES AND AFFIDAVITS OF THE DONOR HAVE BEEN FILED AND AMOUNTS HAVE BEEN WITHDRAWAL FROM THE SAME BANK ACC OUNT DURING THE YEAR, WHICH HAVE BEEN RE-DEPOSITED. THE LD. CIT(A), HOWEVER, DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. CIT(A) NOTED THAT THERE IS A POSSIBILITY THAT CASH WITHDRA WALS MIGHT HAVE BEEN USED BY THE FAMILY FOR PERSONAL PURPOSE. 5. LD. COUNSEL FOR ASSESSEE REITERATED THE SAME SUB MISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T ASSESSEE LIVES IN JOINT FAMILY, RS. 5 LAKHS WAS RECEIVED AS GIFT FROM THE FAMILY MEMBERS, WHICH IS SUPPORTED BY AFFIDAVITS AN D ITR OF THE FAMILY MEMBERS. HE HAS FILED COMPLETE CHART OF THE BANK ENTRIES IN CASH IN THE BANK ACCOUNT TO SHOW THAT DURING THE ASSESSMENT YEAR UNDER APPEAL ASSESSEE HAS WITHDRAWAL RS. 5,79, 100/-, WHICH HAVE BEEN RE-DEPOSITED. HE HAS SUBMITTED THAT ASSE SSEE IS AN EMPLOYEE OF UNO, AND DO NOT HAVE UNEXPLAINED MONEY, THEREFORE, ADDITION IS ILLEGAL. 5.1 ON THE OTHER HAND, LD. DR RELYING UPON ORDERS O F THE AUTHORITIES BELOW. 4 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN 6. I HAVE CONSIDERED THE RIVAL SUBMISSION AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMED THAT DURING THE ASSESSMENT YEAR UNDER APPEAL ASSESSEE MADE CASH DEP OSITS IN THE BANK ACCOUNT AFTER WITHDRAWING THE AMOUNT OF RS. 5, 79,100/- OUT OF THE SAME BANK ACCOUNT. THE AO ACCEPTED PART CON TENTION OF THE ASSESSEE AND TREATED THE WITHDRAWALS OF RS. 83,800/ - OUT OF THE SAME BANK ACCOUNT, WHICH WERE RE-DEPOSITED IN THE S AME BANK ACCOUNT. HOWEVER, FOR THE REST OF THE AMOUNT AO DI D NOT ACCEPT THE CONTENTION OF THE ASSESSEE. THE LD. CIT(A) NOT ED IN HIS FINDINGS THAT THERE IS A POSSIBILITY THAT CASH WITH DRAWALS MIGHT HAVE BEEN USED BY THE FAMILY FOR PERSONAL CONSUMPTI ON OR PURCHASE OF GOODS/TRAVELLING, ETC. THE LD. CIT(A) ALSO NOTED THAT ASSESSEE FAILED TO DISCHARGE PRIMARY ONUS TO PROVE THAT MONEY WITHDRAWN FROM THE BANK ACCOUNT OF THE WHOLE FAMILY WAS NOT UTILIZED FOR ANY OTHER PURPOSES BUT WAS DEPOSITED I N THE ASSESSEES BANK ACCOUNT. THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF SHIV CHARAN DASS 126 ITR 263 CONSIDERED THE ISSUE OF DEPOSIT IN BANK ACCOUNT AFTER 4/5 YEARS. IT WAS HE LD THAT REVENUE SHOULD PROVE, IT WAS THE ASSESSEE WHO SPENT THE AMO UNT IN QUESTION. MEANING THEREBY BURDEN IS UPON BY REVENU E TO PROVE THAT WITHDRAWN AMOUNT BY THE ASSESSEE HAVE BEEN SPE NT BY ASSESSEE SOMEWHERE ELSE. THE LD.CIT(A), HOWEVER, P UT A NEGATIVE ONUS UPON THE ASSESSEE TO PROVE THAT MONEY WITHDRAW N FROM THE BANK ACCOUNT OF THE FAMILY WAS NOT UTILIZED. SINCE THE EXPLANATION OF ASSESSEE HAS BEEN PARTLY ACCEPTED BY THE AO THAT CASH WITHDRAWN FROM THE SAME BANK ACCOUNT IN ASSESSMENT YEAR UNDER 5 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN APPEAL IS AVAILABLE TO ASSESSEE TO MAKE RE-DEPOSIT IN THE SAME BANK ACCOUNT, THEREFORE, CONSIDERING THE FACTS OF T HE CASE, DETAILS OF RECORD AND IN THE LIGHT OF DECISION OF THE HONB LE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHIV CHARAN DASS (SUPRA), I AM OF THE VIEW THAT THE AMOUNT WITHDRAWN DURING THE YE AR FROM THE SAME BANK AMOUNT OF RS. 5,79,100/- IS AVAILABLE TO ASSESSEE TO MAKE RE-DEPOSIT IN THE SAME BANK ACCOUNT IN ASSESSM ENT YEAR UNDER APPEAL. THUS, THE ASSESSEE WOULD BE ENTITLED TO THE BENEFIT OF RS. 5,79,100/-. 7. THE OTHER POINT IS THAT ASSESSEE CLAIMED GIFTS O F RS. 5 LAKHS FROM FAMILY MEMBER. THE ASSESSEE FILED AFFIDAVITS AND ITR OF THE 3 FAMILY MEMBERS IN WHICH THEY HAVE STATED THAT AMOUN T OF RS. 2 LAKHS, RS.2 LAKHS AND RS. 1 LAKH HAVE BEEN GIFTED T O THE ASSESSEE, HOWEVER, NO EVIDENCE OF THEIR CREDITWORTHINESS HAVE BEEN PRODUCED BEFORE THE AUTHORITIES BELOW. MERE FILING OF AFFID AVITS AND ITR IS NOT SUFFICIENT TO PROVE CREDITWORTHINESS OF THE DONORS. NO REASONS OR OCCASION OF GIFTS HAVE BEEN EXPLAINED. NO EVIDENCE OF FINANCIAL CAPACITY OF THE DONORS AND THEIR SOURCE HAVE BEEN F ILED ON RECORD. THEREFORE, IT APPEARS THAT IT WAS THE UNEXPLAINED A MOUNT OF THE ASSESSEE WHICH ASSESSEE TRIED TO EXPLAIN THROUGH TH E ALLEGED GIFTS. I RELY UPON DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR 292 ITR 552, DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHAN KALA 291 ITR 278 AND DECIS ION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF YASHPAL GOEL VS. CIT 6 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN 310 ITR 75. ACCORDINGLY, NO INTERFERENCE IS CALLED FOR IN THE MATTER. I, CONFIRM THE ADDITION OF RS. 5 LAKHS. 8. NO OTHER SOURCE OF BALANCE AMOUNTS HAVE BEEN EXP LAINED AND IS NOT SUPPORTED BY ANY EVIDENCE. LD. COUNSEL FOR ASSESSEE ALSO CONTENDED THAT ASSESSEE IS WORKING IN UNO, THEREFOR E, NO ADDITION COULD BE MADE AGAINST THE ASSESSEE. SINCE, CASH AM OUNT HAVE BEEN DEPOSITED IN THE BANK ACCOUNT, THEREFORE, SECT ION 69 WOULD APPLY AGAINST THE ASSESSEE. IT IS A DEEMING PROVIS ION AND ADDITION IS MADE ON ACCOUNT OF UNACCOUNTED INCOME OF THE ASS ESSEE FOR WHICH SOURCE IS NOT EXPLAINED. THEREFORE, WHETHER ASSESSEE IS WORKING WITH UNO OR NOT WOULD NOT MAKE OUT ANY CASE IN FAVOUR OF THE ASSESSEE. 9. CONSIDERING THE ABOVE DISCUSSION, I SET ASIDE TH E ORDERS OF THE AUTHORITIES BELOW PARTLY AND MODIFY THE ADDITION BY GIVING BENEFIT TO THE ASSESSEE OF A SUM OF RS. 5,79,100/-. THE AO SHALL DELETE THE ADDITION OF RS. 5,79,100/-. THE REST OF THE AD DITION IS CONFIRMED. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 12.12.2018 *KAVITA ARORA 7 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 8 ITA NO. 4713/DEL /2018 AY 2010-11 RAJIV CHANDRAN DATE OF DICTATION 06.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12/12 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 12/12 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 12/12 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 12/12 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12/1 2 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER