ITO, New Delhi V. Sh. Ashok Kumar Kesarwani, New Delhi

ITA 4733/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53368 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Unexplained cash credit; Cost of acquisition

Judgement Text

ITA NO. 4733/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4733/DEL/2009 A.Y. : 2005-06 ITO, WARD 29(2), ROOM NO. 112, DRUM SHAPED BUILDING, IP ESTATE, NEW DELHI VS. SH. ASHOK KUMAR KESARWANI, 409, KATRA MAIDGRAN, KHARI BAOLI, DELHI 110 006 (PAN/GIR NO. AATPK2759G) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : CA, PRATAP GUPTA DEPARTMENT BY : SH. B.R.R. KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 28.10. 2009 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED READ AS UNDER:- (I) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE , THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 11,40,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN VALU E OF SALE PROCEEDS OF PLOTS. (II) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE , THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DE LETING ITA NO. 4733/DEL/2009 2 THE ADDITION OF ` 4,30,000/- MADE BY THE ASSESSING O FFICER ON ACCOUNT OF UNEXPLAINED CASH CREDITS. (III) THE APPELLATE CRAVES LEAVE FOR RESERVING TH E RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY TIME BEFORE O R DURING THE HEARING OF THIS APPEAL. 3. IN THIS CASE ON PERUSAL OF THE COMPUTATION OF INCOME, ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN SHORT T ERM CAPITAL GAIN OF ` 20,000/- ON THE SALE OF TWO INDUSTRIAL PLOTS AS U NDER:- SALE CONSIDERATION OF PLOT NO. 158 AT BAWANA (SOLD ON 26.5.04) LESS : COST OF ACQUISITION (ALLOTTED ON 26.5.2004) 430000 420000 10000 SALE CONSIDERATION OF PLOT NO. 206 AT BAWANA (SOLD ON 6.8.04) LESS: COST OF ACQUISITION (ALLOTTED ON 27.7.2004) TOTAL SHORT TERM CAPITAL GAIN 430000 420000 10000 20000 3.1 ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DOCUMENTARY EVIDENCE IN RESPECT OF THE PURCHASE AND SALE OF ABO VE MENTIONED TWO PLOTS AND FURTHER DETAILS. ASSESSEE FAILED TO PRO VIDE THE NECESSARY DETAILS. ASSESSING OFFICER PROCEEDED TO ESTIMATE T HE SALE VALUE OF EACH PLOT AT ` 10 LACS AS AGAINST ` 4,30,000/- DECL ARED BY THE ASSESSEE AND ACCORDINGLY COMPUTED THE ADDITION OF ` 11,40,000 /-. FURTHERMORE, ASSESSING OFFICER NOTED THAT PERUSAL OF THE ASSESSE ES BANK STATEMENT SHOWED THAT ON 1.7.2004, THERE WAS A DEPOSIT BY CL EARING ` 4,30,000/-. ASSESSEE EXPLAINED THAT THE SAME PERTAINED TO SALE O F PLOT, BUT THE ASSESSING OFFICER REJECTED HIS CONTENTION ON THE GROUND THAT DATE OF ITA NO. 4733/DEL/2009 3 DEPOSIT PRECEEDS THE SALE OF PLOT. ACCORDINGLY, HE MADE THE ADDITION OF ` 4,30,000/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION OF ` 11.40 LACS BY HOLDING THAT KEEPING IN VIEW THE PHRASEOLOGY OF SECTION 69B OF THE ACT, IT APPEARS THAT SUCH AN ESTIMATION BY THE ASSESSING OFFICER CANNOT BE MA DE. AS REGARDS ADDITION OF ` 4,30,000/- LD. COMMISSIONER OF INCOME T AX (APPEALS) OBSERVED THAT ASSESSING OFFICER HAS NOT PROPERLY U NDERSTOOD THE FACTS OF THE CASE. NARRATING THE FACTS OF THE CASE THE L D. COMMISSIONER OF INCOME TAX (APPEALS) PROCEEDED TO DELETE THE ADDITI ON ALSO. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTION IN LIGHT OF T HE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT THE IMPUGNED ADDITION IN THIS REGARD WERE MADE BY THE ASSESSING OFFICER AS THE ASSESSEE HAS FAILED TO PROVIDE THE NECESSARY DOCUM ENTARY EVIDENCE WITH REGARD TO THE TRANSACTIONS. WE FIND THAT LD . COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED RELIEF TO THE AS SESSEE WITHOUT ELABORATELY DISCUSSING THE SUBJECT AND WITHOUT REF ERRING TO THE COGENT MATERIAL IN THIS REGARD. IN OUR CONSIDERED OPINIO N, INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER IS REMITTED TO THE FIL E OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH. ASSESSEE IS DIRECTED TO PROVIDE THE NECESSARY DETAILS TO THE ASSESSING OFFICER IN THIS REGARD. ITA NO. 4733/DEL/2009 4 ACCORDINGLY, THE ISSUE STANDS REMITTED TO THE FILE OF THE ASSESSING OFFICER . 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28/12/2011. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 28/12/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES