ITO, New Delhi V. S.S. Mathur & Sons (HUF), Delhi

ITA 474/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65932 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 05-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRABHA KANT
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A .NO.-474/DEL/2012 ASSESSMENT YEAR - 2007-08 ITO, VS. S.S.MATHUR & SONS (HUF), WARD-25(1), ROOM NO-304A, AD-50A, NEW DELHI. PITAMPURA, DELHI-34 PAN-AABHS0533H (APPELLANT) (RESPONDENT) CO NO.-101/DEL./2012 (IN I.T.A .NO.-474/DEL/2012) ASSESSMENT YEAR - 2007-08 S.S.MATHUR & SONS (HUF), VS. ITO, AD-50A, WARD-25(1), ROOM NO-304A, PITAMPURA, DELHI-34 NEW DELHI. (RESPONDENT) (APPELLANT) APPELLANT BY: SH. PRABHA KANT, SR. DR RESPONDENT BY: SH. SACHIN ANEJA, ADV. APPEAL HEARD ON-05.09.2012 ORDER PRONOUNC ED ON-29.11.2012 ORDER PER I.C.SUDHIR, JM THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER ON THE FOLLOWING GROUNDS :- (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) ERRED IN DELETING THE ADDITION OF RS. 21,00,000/- BEING UNEXPLAINED C ASH CREDIT U/S 68 OF THE I.T.ACT, 1961. I.T.A .NO.-474/DEL/2012 2 (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED O R EXAMINED DURING ASSESSMENT PROCEEDINGS. (III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE M ATTER BACK TO THE AO TO RE-EXAMINE FRESH EVIDENCES IN A HOLISTIC MANNER. IT IS A CASE OF ADDITION U/S 68 OF THE ACT AT RS. 2 9.01 LACS MADE BY THE AO ON ACCOUNT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT T REATING THE SAME AS UNEXPLAINED CASH CREDIT, WHICH HAS BEEN RESTRICTED TO RS. 8 LAC S BY THE LD. CIT(A), AGAINST WHICH REVENUE IS IN APPEAL. 2. THE GRIEVANCE OF THE REVENUE AS ARGUED BY THE LD . DR IS THAT LD. CIT(A) HAS TREATED THE AMOUNT AS EXPLAINED BY THE ASSESSEE ACC EPTING SELF-SERVING DOCUMENTS NOT CORROBORATED OR EXAMINED DURING ASSESSMENT PROC EEDINGS. THE LD. DR SUBMITTED FURTHER THAT THE LD. CIT(A) HAS ALSO VIOL ATED THE RULE 46A OF THE IT RULES WHILE ACCEPTING THE EXPLANATION OF THE ASSESSEE. 3. LD. AR, ON THE OTHER HAND, TRIED TO JUSTIFY THE FIRST APPELLATE ORDER. HE REITERATED SUBMISSIONS MADE BEFORE THE LD. CIT(A) A ND CONTENDED THAT THE LD. CIT(A) CALLED FOR REMAND REPORT FROM THE AO ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE HIM AND BEING CONVINCED WITH THE EX PLANATION FURNISHED, HE HAS ACCEPTED THAT OUT OF RS.29.01 LAC ADDED BY THE AO R S. 21 LACS WAS EXPLAINED. 4. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, WE FIND THAT ON THE BASIS OF AIR RECEIVED FROM BANK THAT ASSESSEE HAD D EPOSITED CASH AMOUNTING TO RS. 29.01 LACS IN HIS SAVING BANK ACCOUNT MAINTAINE D WITH CANARA BANK, KAMLA I.T.A .NO.-474/DEL/2012 3 NAGAR, NEW DELHI, THE AO ADDED THE AMOUNT OF RS. 29 .01 LACS U/S 68 OF THE ACT IN THE INCOME OF THE ASSESSEE SINCE AS PER HIM THE ASS ESSEE FAILED TO EXPLAIN THE AMOUNT. THE EXPLANATION OF THE ASSESSEE REMAINED THAT ASSES SEE WAS WILLING TO PURCHASE AS ON GOING CONCERN CALLED KAUSHALYA INDUSTRIES WHICH WAS UNDER DISPUTE WITH THE CANARA BANK AND IT WAS ENJOYING OVERDRAFT FACILITIES WITH THE BANK. SINCE M/S KAUSHALYA INDUSTRIES COULD NOT MAKE THE PAYMENT OF DEBT OF TH E BANK AND INTEREST THEREON IN TIME, THE BANK FILED A CASE WITH THE DEBTS RECOVERY TRIBUNAL AT DELHI. THE MATTER WAS ADJUDICATED UPON AND A ONE-TIME SETTLEMENT WAS ARRIVED ON FOR THE DUE PAYMENT OF THE BANK. THE NAME OF THE EARLIER OWNER SH. VI NAY KUMAR GUPTA WAS WITHDRAWN AND THE NAME OF SH. SUKHBIR SINGH MATHUR WAS IMPLEA DED IN THE CASE. SH. SUKHBIR SINGH MATHUR MADE THE PAYMENT OF RS. 29 LACS TO THE BANK. RS. 10 LACS WAS WITHDRAWN BY SH. SUKHBIR SINGH MATHUR FROM HIS BAN K ACCOUNT IN INDIAN OVERSEAS BANK (IOB) AND DEPOSITED IN CANARA BANK. IN SUPPOR T, THE RELEVANT DOCUMENTS AND COPY OF BANK ACCOUNT NO-7949 IN IOB WERE SUBMITTED. REGARDING BALANCE RS.19 LACS, IT WAS EXPLAINED THAT THE SAME WAS RECEIVED B Y SMT. KAMLA MATHUR (WIFE OF SH. SUKHBIR SINGH MATHUR) FROM SMT. RAJ KUMARI ON THE S ALE OF AGRICULTURAL LAND AND IN SUPPORT, COPY OF SALE DEED SHOWING THAT AN AMOUNT O F RS. 11 LACS WAS RECEIVED AND PAID BY HER WAS FURNISHED. THE LD. CIT(A) CALLED F OR REMAND REPORT ON THE EVIDENCE FILED BEFORE HIM BY THE ASSESSEE AND FOUND THAT THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE AMOUNT OF RS.29 LACS UPTO RS. 21 LACS ONLY (RS. 10 LACS + RS. 11 LACS). WE ALSO FIND THAT THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE AMOUNT UPTO RS.21 LACS OUT OF I.T.A .NO.-474/DEL/2012 4 RS. 29.01 LACS ADDED BY THE AO. THUS, THE LD. CIT( A) AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE AO HAS RIGHTLY TREATED THE AMOUN T UPTO RS. 21 LACS AS EXPLAINED BEFORE THE ASSESSEE. THE LD. CIT(A) WAS THUS JUST IFIED IN DIVERTING THE AO TO DELETE THE ADDITION TO THE EXTENT OF RS. 21 LACS OUT OF RS . 29.01 LACS MADE BY THE AO U/S 68 OF THE ACT. THE FIRST APPELLATE ORDER IS THUS UPHE LD. THE GROUNDS ARE THUS REJECTED. CONSEQUENTLY, THE APPEAL IS DISMISSED. CO NO.-101/DEL./2012 5. THE CO HAS BEEN PREFERRED BY THE ASSESSEE OPPOSI NG THE FINDING OF THE LD. CIT(A) THAT THE DOCUMENTARY EVIDENCE PRODUCED BY TH E ASSESSEE IN SUPPORT OF THE FACT THAT THE BANK ACCOUNT ON THE BASIS OF WHICH TH E ADDITION IS MADE, DOES NOT BELONG TO THE ASSESSEE. 6. THE LD. AR REITERATED THE SUBMISSIONS MADE BEFOR E THE LD. CIT(A) IN THIS REGARD. LD. DR OBJECTED THE SAME AND TRIED TO JUST IFY THE FIRST APPELLATE ORDER ON THE ISSUE. 7. HAVING GONE THROUGH THE FIRST APPELLATE ORDER ON THE ISSUE, WE FIND THAT BEFORE LD. CIT(A), THE ASSESSEE TRIED TO EXPLAIN THAT CANA RA BNAK ACCOUNT NO-20388 DID NOT BELONG TO M/S S.S.MATHUR & SONS (HUF), AND IT P ERTAINS TO SH. SUKHBIR SINGH MATHUR AND HIS WIFE SMT. KAMLA MATHUR JOINTLY. IT WAS STATED THAT RS. 10 LACS WAS DEPOSITED IN THIS ACCOUNT BY SH. SUKHBIR SINGH MATH UR BY WITHDRAWING THE SAME FROM HIS ACCOUNT IN IOB, WHEREIN HIS RETIREMENT BEN EFITS WERE DEPOSITED. ON VERIFICATION, THE LD. CIT(A) FOUND THAT ACCOUNT NO- 20388 IN CANARA BANK DID NOT I.T.A .NO.-474/DEL/2012 5 BELONG TO THE ASSESSEE BUT SH. SUKHBIR SINGH MATHUR AND HIS WIFE SMT. KAMLA MATHUR SINCE PAN QUOTED IN THE ACCOUNT OPENING FORM BELONGS TO THE ASSESSEE AND NOT TO SH. SUKHBIR SINGH MATHUR IN HIS INDIVIDUAL C APACITY. IT WAS FURTHER OBSERVED THAT THE BANK COULD NOT HAVE QUOTED THE PAN OF THE HUF UNLESS AND UNTIL THE ASSESSEE HAD HIMSELF SUPPLIED IT TO THE BANK. IN A BSENCE OF REBUTTAL OF THIS MATERIAL FINDING OF THE LD. CIT(A) BY THE ASSESSEE BEFORE US , WE DO NOT FIND REASON TO INTERFERE WITH THE FIRST APPELLATE ORDER IN THIS RE GARD. WE THUS UPHOLD THE FINDINGS OF THE LD. CIT(A) THAT THERE IS NO INFIRMITY IN THE AS SESSMENT ORDER BY FRAMING THE ASSESSMENT IN THE HANDS OF THE HUF INSTEAD OF SH. S UKHBIR SINGH MATHUR IN HIS INDIVIDUAL CAPACITY. THE OBJECTION IS THUS REJECTE D. ACCORDINGLY, THE CROSS OBJECTION IS DISMISSED. 8. IN THE RESULT, THE APPEAL AS WELL AS CROSS-OBJEC TION, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2012. SD/- SD/- (SHAMIM YAHYA) (I.C.SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/11/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI