ACIT, New Delhi V. Sh. Ashok Kumar Khushu, New Delhi

ITA 4714/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69666 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 04-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: M K BHATT
• Section: 12

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI S. V MEHROTRA, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 4714/DEL/2012 ASSESSMENT YEAR: 2008 - 09 & C. O. NO. 438/DEL/2012 (IN ITA NO. 4714/DEL/2012 ACIT CIRCLE - 36(1) VS. ASHOK KUMAR KHUSHU C/O. M/S. BRAJESH AGARWAL & ASSOCIATES, 201, SHRI GANESH COMPLEX, E - 35, JAWAHAR PARK, LAXMI NAGAR, NEW DELHI - 92 PAN AHMPK8743P (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y. KAKKAR , DR RESPONDENT BY: SHRI M. K. BHATT, CA O R D E R PER S. V MEHROTRA, AM THIS APPEAL OF THE REVENUE AND CO OF THE ASSESSEE EMANATES FROM THE ORDER PASSED BY LD. CIT(A), XXX , NEW DELHI DATED 13.06.2012 RELEVANT TO ASSESSMENT YEAR 2008 - 09 . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN DECLARING TOTAL INCOME OF RS. 9,13,697/ - . IN THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE WAS IMPARTING CONSULTANCY TO M/S. VARDHMAN INDUSTRIES LTD, LUDH IYA NA , PUNJAB. THE ASSESSMENT WAS COMPLETED AT TOTAL INCOME OF RS. 48,23,830/ - AS UNDER: - 5. IN THE LIGHT OF THE ABOVE MENTIONED FACTS AND DISCUSSION THE INCOME OF THE ASSESSEE IS BEING RECOMPUTED AS FOLLOWS: - 2 PROCESSED INCOME RS. 14 ,79,470/ - ADD: AS DISCUSSED IN PARA 3 (DEPOSITS IN BANK FOR WHICH NO EVIDENCE RECEIVED RS. 15,70,270/ - ADD: AS DISCUSSED IN PARA 4 (CASH DEPOSIT U/S 68 RS. 14,47,500/ - ADD: AS DISCUSSED IN PARA 5 (CASH CREDIT U/S 68) RS.1,84,000/ - ADD; AS DISCUSSED IN PARA 6 (LO NG TERM CAPITAL GAIN ON JEWELLERY RS.1,42,590/ - TOTAL TAXABLE INCOME RS. 48,23,830/ - ASSESSED INCOME RS. 48,23,830 3. LD CIT(A) PARTLY ALLOWED THE ASSESSEE S APPEAL DETERMINING THE TOTAL INCOME AT RS. 19,03,876/ - AS UNDER: - I DETERMINE THE TOTAL INCOME OF THE APPELLANT AS UNDER: - RETURNED INCOME RS. 9,13,697=00 ADDITION SUSTAINED I. (A) UNDER (PAGE NO. 18 - 21 COLOUMN) RS. 7,65,975=00 II. (B) UNDER (PAGE NO. 22) COLOUMN F RS. 1,84,000=00 III. (C) UNDER (PAGE NO. 2 2 - 23) COLUMN G RS. 40,204=00 TOTAL INCOME ASSESS ED = RS. 19,03,876=00 4. THE DEPARTMENT IS BEFORE US AND ASSESSEE HAS FILED CROSS OBJECTIONS. 5. FIRST WE TAKE UP THE DEPARTMENT APPEAL. THE DEPARTMENT HAS TAKEN FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN DELETING ADDITION OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF RS. 15,70,270/ - (RS. 6,93,794 DATED 12.09,2007; RS. 4,47,916/ - DATED 13.05.2007; RS. 3,58,600/ - DATED 24,04,2007) AS NO DOCUMENTS/ EVIDENCE WAS FURNISHED AT THE ASSESSMENT STAGE AND THE LD CIT(A) ADMITTED DOCUMENTS FURNISHED AT THE APPELLATE STAGE WITHOUT GIVING OPPORTUNITY TO THE A.O. IN CONTRAVENTION OF RULE 46A OF IT RULE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONTRAVENTION OF RULE 46A OF THE IT RULE IN NOT GIVING OPPORTUNITY TO THE A. O. TO REBUT AND CROSS - EXAMINE NEW EVIDENCE. THE LD CIT(A) THUS ERRED IN NOT FOLLOWING THE RATIO OF JU DGMENT OF THE HONBLE DELHI HIGH COURT (JURISDICTIONAL HIGH COURT) IN THE CASE OF MANISH BUILDWELL PVT. LTD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 7,54,525 OUT OF RS. 14,47,500/ - BY ALLOWING 50% CREDIT OF OPENING BALANCE OF CASH OF RS. 13,85,950/ - CLAIMED BY THE ASSESSEE OF OPENING BALANCE OF CASH WAS FURNISHED BEFORE A.O. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN RECALCULATING LONG TERM CAPITAL GAIN AT RS. 40,204/ - INSTEAD OF RS. 1,42,590/ - ON SALE OF JEWELLERY. THE QUANTITY OF GOLD AS PER A.O. IS 3 369.42 GMS WHEREAS ASSESSEE PRODUCED BILLS OF 493.30 GMS BEFORE THE LD CIT(A). 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ ALL THE GROUND S OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 6 . APROPOS GROUND NOS 1 AND 2, LD DR REFERRED TO PAGE 1 AND 2 OF THE ASSESSMENT ORDER TO DEMONSTRATE THAT THE ADDITION OF RS. 15,70,270/ - WAS MADE BECAUSE THE ASSESSEE DID NOT FILE PROPER EVIDENCE. LD DR FURTHER REFERRED TO PAE 8 OF THE PAPER BOOK, WHEREIN THE LETTER DATED 29.12.2008 OF HDFC BANK LTD. IS CONTAINED WHICH THE ASSESSEE HA D FILED TO CONFIRM THAT THE LOAN WAS TAKEN FROM BANK WHICH WAS CREDITED TO HIS ACCOUNT. SHE POINTED OUT TH AT THE ASSESSING OFFICER PASSED THE ORDER ON 30.12.2010 AND THEREFORE THERE WAS NO TIME FOR VERIFYING THE DETAILS. 7 . LD DR FURTHER POINTED OUT THAT IN THE SAID LETTER IT WAS, INTER - ALIA , STATED AS UNDER: - YOURS INSTALLMENT AMOUNT IS RS. 27,462.00 AND THE REPAYMENT WILL START FROM 05.10.2007. 8 . LD DR SUBMITTED THAT THIS CLEARLY SHOWS THAT THE LOAN WAS TAKEN IN 2007 AND , THEREFORE , HOW SUM OF RS. 6,93,754/ - WAS CREDITED IN ASSESSEES ACCOUNT IS NOT CLEAR . LD DR FURTHER REFERRED TO PAGE 7 OF THE PAPER B OOK WHEREIN LETTER DATED 08.02.2008 FROM CENTURION BANK OF PUNJAB IS CONTAINED AND POINTED THAT THE SAME IS ONLY A REMINDER FOR THE OUTSTANDING DUE TO DISHONO U R OF CHEQUE. SHE POINTED OUT THAT IN THIS LETTER THERE IS FOLLOWING NOTING: - LOAN TAKEN RS. 11,0 0,000/ - . DEPOSITED IN BANK OF INDIA ON 12.09.2007, RS. 6,93,754/ - PRINCIPAL 2,02,014/ - AND PAID SB LOAN 3,86,000/ - 9 . SHE SUBMITTED THAT THIS LETTER ALSO DOES NOT CLEARLY EXPLAIN THE ASSESSEE S PLEA . SIMILARLY, SHE POINTED OUT THAT THERE IS NO PROPER EXPLANATIO N FOR CASH DEPOSITS IN THE BANK. SHE POINTED OUT THAT IN SUPPORT OF ITS EXPLANATION THAT NSC FROM STATE BANK OF INDIA WAS WITHDRAWN AND AN AMOUNT DEPOSITED THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE. SHE SUBMITTED THAT BEFORE THE LD CIT(A) , THE ASSESSEE FILED DETAILED SUBMISSION INCLUDING SANCTION LETTER ETC FROM THE BANK, AFTER CONSIDERING WHICH LD CIT(A) DELETED THE ADDITION. SHE FURTHER POINTED OUT THAT AS REGARDS CASH DEPOSITS IN BANK OUT OF SALE OF JEWELLERY , THE ASSESSEE FILED SALE BILL OF THE JEWELLERY BEFORE 4 THE LD CIT(A . SHE , THEREFORE, SUBMITTED THAT LD CIT(A) HAD TAKEN INTO CONSIDERATION FRESH EVIDENCE IN RESPECT OF VARIOUS ADDITIONS MADE BY ASSESSING OFFICER , SHE SUBMITTED THAT. THEREFORE, IN ALL FAIRNESS THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION. 10 . LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT ONLY THE COPY OF SALE BILL REGARDING SALE OF JEWELLERY WAS FILED BEFORE THE LD CIT(A) AND NOT OTHER DOCUMENTS. HOWEVER, IN VIEW OF VARIOUS SUBMIS SION S MADE BY LD DR , LD COUNSEL AGREED WITH CONTENTION OF LD DR THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO CONSIDERATION. ACCORDINGLY, AS AGREED BY BOTH THE PARTIES , WE RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR PASSING THE ASSESSMENT ORDER DE NOVO . 11 . IN THE RESULT THE DEPARTMENT AL APPEAL AS WELL AS ASSESSEES CROSS OBJECTION IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 . 12 .2013 . - S D / - - S D / - ( A. T. VARKEY ) (S. V MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 2 0 /1 2 /2013 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI