ITO, New Delhi V. Smt. Sushma Jain, Delhi

ITA 476/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86543 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 25-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 31-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARE AS UNDER I ON FACTS; CIRCUMST
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

DELHI BENCH G : NEW DELHI BEFORE SHRI N.K.SAINI , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 476/DEL/2012 (ASSESSMENT YEAR: 2006 - 07) ITO WARD - 25(1), ROOM NO.304A, NEW DELHI VS. SUSHMA JAIN, 253, RAJDHANI ENCLAVE, PITAMPURA, DELHI PAN:AFDPJ4964J (APPELLANT) (RESPONDENT) O R D E R PER A. T. VARKEY, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE REVENUE AND ARISES FROM THE ORDER OF THE LD CIT(A), XXIV, NEW DELHI DATED 30.11.2011AND RELATES TO ASSESSMENT YEAR 2006 - 07 . 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER: - (I) . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.13,20,000/ - BEING UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T. ACT, 1961. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED OR EXAMINED DURING ASSESSMENT PROCEEDINGS. ( III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE AO TO RE EXAMINE FRESH EVIDENCES IN A HOLISTIC MANNER. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN DECLARING AN INCOME OF RS.3,15,670 / - ON 31.10.20063. THE APPELLANT IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF SS PATTA AND UTENSILS. AIR INFORMATION WAS RECEIVED THAT THE APPELLANT HAD DEPOSITED CASH AMOUNTING TO RS.13.20 LACS ON VARIOUS DATES IN HDFC BANK. DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE AO REQUIRED THE APPELLANT TO PROVE THE SOURCE APPELLANT BY : SH. B.R.R. KUMAR, SR. DR RESPONDENT BY : NONE OF CASH DEPOSITS IN HER BANK ACCOUNT. THE APPELLANT SUBMITTED A COPY OF THE BANK ACCOUNT AND INFORMED THE AO THAT SHE HAD TAKEN ADVANCE AGAINST SALE OF TWO PLOTS OF LANDS, BUT U NFORTUNATELY, THE DEAL WAS NOT FINALIZED AND THE TOTAL AMOUNT WAS RETURNED BACK BY HER TO THE PROSPECTIVE PURCHASERS BY CHEQUES. SHE SUBMITTED THE AGREEMENTS TO SELL, ENTERED INTO BY HER WITH SHRI MEHAR SINGH, FROM WHOM SHE RECEIVED RS.9.50 LACS AS BAYANA (ADVANCE) IN CASH AND WITH SH. SUBHASH SINGH FROM WHOM SHE RECEIVED RS.3.70 LACS AND RS. 3 LACS BY CHEQUES. SHE ALSO SUBMITTED TO THE AO THE AFFIDAVITS OF THE ABOVE MENTIONED TWO PERSONS IN THIS REGARD. THE AO ASKED FOR A LARGE NUMBER OF DETAILS AND DOCUME NTS FROM THE APPELLANT AND IN THE ABSENCE OF THE SAME, CAME TO A CONCLUSION THAT THESE TRANSACTIONS WERE BOGUS AND HE MADE AN ADDITION OF RS.13,20,000/ - TO THE INCOME OF THE APPELLANT AS UNEXPLAINED CASH DEPOSITS IN THE BANK. 4. ON APPEAL BY THE ASSESSEE T HE LD CIT(A) DELETED THE ADDITION BY CONCLUDING AS UNDER : 3.5 I HAVE GIVEN CAREFUL CONSIDERATION TO THE LOGIC GIVEN BY THE AO AS WELL AS THE EVIDENCES PLACED ON RECORD BY THE APPELLANT. I HAVE ALSO TAKEN NOTE OF THE FACT THAT THE TWO AGRICULTURISTS WHO HA D GIVEN THE CASH ADVANCE TO THE APPELLANT FOR CHASE OF PLOTS OF LAND HAVE APPEARED BEFORE MY PREDECESSOR AND HAVE GIVEN PERSONAL DEPOSITION, WHEREIN THEY HAVE ACCEPTED THAT THEY HAD GIVEN THE CASH AMOUNT TO THE APPELLANT AS STATED BY HER. THE DETAILS OF TH EIR LAND HOLDINGS AS PER KHASRA/ KHATAUNI HAVE ALSO BEEN PLACED ON RECORD TO PROVE THEIR CREDITWORTHINESS. THE DOCUMENTS PERTAINING TO THE OWNERSHIP OF PLOTS OF LAND BY APPELLANT HAVE ALSO BEEN PLACED ON RECORD. IT IS A SETTLED LAW THAT THE ASSESSEE IS NOT SUPPOSED TO PROVE 'THE SOURCE OF SOURCE', ONCE THE IDENTITY CREDITWORTHINESS AND THE GENUINENESS OF TRANSACTION HAS BEEN PROVED. ONCE THE INITIAL ONUS IS DISCHARGED BY THE APPELLANT, THE BURDEN SHIFTS ON THE REVENUE, IN CASE THEY DOUBT THE GENUINENESS OF THE TRANSACTION. 5. HAVING PERUSED THE ORDER OF THE AUTHORITIES BELOW AND CAREFULLY CONSIDERED THE RIVAL SUBMISSION WE FIND THAT THE ASSESSEE HAS PLACED ON RECORD DOCUMENTS PROVING THE OWNERSHIP OF THE APPELLANT ON THE TWO PLOTS IN ROHINI AND NARELA, WHIC H WERE THE SUBJECT MATTER OF THE PROPERTY TRANSACTIONS. SHE HAS ALSO PLACED ON RECORD AND SUBMITTED AFFIDAVITS OF SHRI MEHAR SINGH AND SHRI SUBHASH SINGH, CONFIRMING THAT THEY HAD ENTERED INTO AGREEMENT TO SELL WITH THE ASSESSEE FOR THE ABOVE MENTIONED TW O PLOTS AND HAD GIVEN CASH ADVANCE AMOUNTING TO RS.9.50 LACS AND RS.3.70 LACS TO THE APPELLANT RESPECTIVELY. BEFORE THE LD CIT(A), THE AR OF THE ASSESSEE WAS DIRECTED TO PROVE THE CREDITWORTHINESS OF THE PROSPECTIVE BUYERS, COPY OF SALE AGREEMENT, OWNERSHI P DETAILS OF THE TWO PLOTS AND WHETHER WEALTH TAX WAS PAID WITH REGARDS TO THE PLOTS. ACCORDINGLY ASSESSEE SUBMITTED COPY OF KHASRA KHATAUNI OF SHRI MEHAR SINGH AND SHRI SUBHASH SINGH, THE PROSPECTIVE BUYERS, IN ORDER TO PROVE THEIR CREDITWORTHINESS. 6. FURTHERMORE, BOTH THE PERSON APPEARED BEFORE THE LD CIT(A) ON 05.01.2011 AND DEPOSED THAT THEY HAD GIVEN THE MONEY IN CASH TO THE APPELLANT AS ADVANCE FOR PURCHASE OF PLOTS OF LAND. HOWEVER, THEY RECEIVED BACK THE MONEY SINCE THE DEAL DID NOT MATERIALIZE. 7. IN VIEW OF THE ABOVE CLINCHING EVIDENCE, WE ARE INCLINED TO UPHOLD THE IMPUGNED ORDER AND THEREFORE THE APPEAL FILED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 . 01.2015 . - SD/ - - SD/ - ( N.K.SAINI ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 / 01 / 2015 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELH I