Alok Sharma, New Delhi V. ITO, Ward-70(3), New Delhi

ITA 4806/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4732 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Unexplained cash credit; Gift; Salary income; Principle of natural justice; Additional evidence
• Section: 44AD; 142(1); 234B; 133(6); 68; 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4806/DEL/2018 (ASSESSMENT YEAR-2010-11) ALOK SHARMA, C/O VIVEK BANSAL, ADVOCATE, IPB LEGAL, THIRD FLOOR 1A, JAIN MANDIR MARG, CONNAUGHT PLACE, NEW DELHI 110 001 (PAN: BAFPS1094C) ( AP PELLANT) VS INCOME TAX OFFICER, WARD 70(3), ROOM NO. 308, 3 RD FLOOR, CIVIC CENTRE, D-BLOCK, NEW DELHI ( RES PONDENT) APPELLANT BY SH. VIVEK BANSAL, ADV. RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 13.06.2018 OF THE LD. CIT(APPEALS)-28, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWIN G GROUNDS OF APPEAL: - 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN NOT ADJUDICATING GROUND NO. 1 FILED BEFORE HIM CONTENDING THAT THE EXPARTE ASSESSMENT ORDER PASSED U/S. 144 IS WHOLLY UNJUSTIFIED AND ILLEGAL. WHILE IGNORING TO DO SO HE HAS FAILED TO APPRECIATE: 2 A) THAT THERE WAS NO VALID SERVICE OF NOTICE U/S. 143(2) ON THE ASSESSEE AS IT WAS IN THE KNOWLEDGE OF THE AO THAT HE WAS RESIDING OUTSIDE OF INDIA IN THE COURSE OF HIS EMPLOYMENT. B) THAT DESPITE COMMUNICATION MADE THROUGH E-MAIL TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO HAS FRAMED EX- PARTE ASSESSMENT WITHOUT COMMUNICATING TO THE ASSESSEE OF HER INTENTION TO DO SO AND IN ITS MANNER THE ORDER PASSED BY AO IS AGAINST PRINCIPLE OF NATURAL JUSTICE AND IS ILLEGAL. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE ID. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN UPHOLDING THE ADDITION OF RS. 22,50,000/- MADE U/S 68/69 OF THE ACT. WHILE UPHOLDING SUCH ADDITION ID. CIT(A) HAS FAILED TO APPRECIATE :- A) THAT ACCORDING TO THE FACTS AND EVIDENCE FURNISHED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCEEDINGS THE ASSESSEE HAD DISCHARGED THE PRIMARY ONUS LAID UPON HIM TO PROVE THE GENUINENESS OF THE ALLEGED UNEXPLAINED CREDITS PARTICULARLY WHEN THE 3 ADDITIONAL EVIDENCE HAS BEEN ORDERED TO BE ADMITTED BY LD. CIT(A) ON 13-01-2016. B) THAT THE ASSESSEE HIMSELF IS A MAN OF MEANS. C) THAT, AS PER WELL ESTABLISHED LAW, THE OBLIGATION OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE CREDIT IS LIMITED TO PROVE THE SOURCE AND IT IS NOT EXTENDED TO PROVE THE SOURCE OF SOURCE. D) THAT ACCORDING TO THE FACTS THE ASSESSEE HAD FURNISHED THE EVIDENCE EVEN TO PROVE THE SOURCE OF SOURCE OF THE CREDIT. 3. THAT ID. CIT(A) HAS FAILED TO ADJUDICATE THE GROUND RELATING TO CHARGING OF INTEREST U/S 234B & 234D AND ALSO AGAINST WITHDRAWAL OF INTEREST U/S 244A. 4. THAT EACH OF THE ABOVE GROUND IS INDEPENDENT AND WITHOUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL PREFERRED BY THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, SO AS TO ENABLE 4 THE HON'BLE TRIBUNAL TO DECIDE THIS APPEAL ACCORDING TO LAW. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME ON 08.7.2010 DECLARING AN INCOME OF RS. 1 ,69,618/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND DURING THE ASSESSMENT PROCEEDINGS. THEREAFTER, THE STATUTORY NOTICES WERE ISSUED AND THE SAME WERE REMAINED UNCOMPLIED. CONS EQUENTLY, AO COMPLETED THE ASSESSMENT EXPARTE U/S. 144 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) BY OBSERVING THAT THERE WERE CASH DEPOSITS OF RS. 22,50,000/- IN ICICI BANK OF ASSES SEE, THE SOURCE OF WHICH COULD NOT BE EXPLAINED BY ASSESSEE. ACCOR DINGLY, THE AO TREATED THE SAID CASH DEPOSITS AS UNEXPLAINED INCOM E U/S. 68/69 OF THE ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE BY ASSESSING THE INCOME OF THE ASSESSEE AT RS. 24,19,6 20/- U/S. 144 OF THE ACT VIDE ORDER DATED 21.03.2013. AGAINST TH E ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 13.06.2018 HAS DISMISSED THE A PPEAL OF THE ASSESSEE. AGGRIEVED WITH THE IMPUGNED ORDER DATED 1 3.6.2018, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. AT THE TIME HEARING, LD. COUNSEL FOR THE ASSESSE E HAS ONLY ARGUED GROUND NO. 2 AND STATED THAT LD. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN UPHOLDING THE ADDITION OF RS. 22,50,000/- MADE U/S 68/69 OF THE ACT AND FAILED TO APPRECIATE THAT THAT 5 ACCORDING TO THE FACTS AND EVIDENCE FURNISHED BY TH E ASSESSEE DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCE EDINGS THE ASSESSEE HAD DISCHARGED THE PRIMARY ONUS LAID UPON HIM TO PROVE THE GENUINENESS OF THE ALLEGED UNEXPLAINED CREDITS PARTICULARLY WHEN THE ADDITIONAL EVIDENCE HAS BEEN ORDERED TO BE ADMITTED BY LD. CIT(A) ON 13-01-2016. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) ALSO FAILED TO APPRECIATE THAT THE ASSESSEE HIMSELF IS A MAN OF MEANS AND AS PER WELL ESTABLISHED LAW, THE OBLIG ATION OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE CREDIT IS LIMITED TO PROVE THE SOURCE AND IT IS NOT EXTENDED TO PROVE THE SOUR CE OF SOURCE. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) ALSO FAILED T O UNDERSTAND THAT ACCORDING TO THE FACTS THE ASSESSEE HAD FURNIS HED THE EVIDENCE EVEN TO PROVE THE SOURCE OF SOURCE OF THE CREDIT. IN SUPPORT OF HIS CONTENTION, LD. COUNSEL FOR THE ASSE SSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1-117 IN WHICH HE HAS A TTACHED THE COPY OF WRITTEN SUBMISSIONS; FORM NO. 16 FOR FY 200 9-10; ITR FOR AY 2010-11; APPLICATION UNDER RULE 46A FILED BEFORE LD. CIT(A)- XI; MEMORANDUM OF GIFT, BANK STATEMENT WITH PNB, IT R, STATEMENT OF TOTAL INCOME; PAN, AADHAR CARD AND CAS H ACCOUNT OF SHRI ANOOP KUMAR SHARMA; MEMORANDUM OF GIFT, BA NK STATEMENT WITH PNB, ITR, STATEMENT OF TOTAL INCOME, PAN, AADHAR CARD AND CASH ACCOUNT, COMPUTATION OF INCOME OF SH RI GOPAL KRISHNA SHARMA; MEMORANDUM OF GIFT, BANK STATEMENT WITH ICICI BANK AND CASH ACCOUNT OF SH. ASHOK SHARMA; WRITTEN SUBMISSION 6 FILED BEFORE LD. CIT(A)-XI DATED 18.11.2014; COPY O F PASSPORT OF SHRI ALOK SHARMA ALONGWITH VISA AND IMMIGRATION STA MPS; REPLY FILED BY ICICI BANK ON 15.1.2012 TO THE ITO, WARD 4 3(1) IN RESPONSE NOTICE U/S. 133(6) ALONGWITH STATEMENT OF SHRI ALOK SHARMA FOR THE PERIOD OF 1.4.2009 TO 31.3.2010; INS PECTORS REPORT WITH REGARD TO SERVICE OF NOTICE U/S. 142(1) AND LIST OF DOCUMENTS AS FOUND ON INSPECTION OF FILE BY THE COU NSEL AND ORDER SHEET NOTINGS; LETTER DATED 17.9.2013 FILED BEFORE THE ITO, WARD 43(1) REQUESTING FOR PHOTOCOPIES OF DOCUMENTS ALONG WITH FEES PAID; LETTER FROM THE OFFICER OF CIT(A)-28, FORWARD ING THE REMAND REPORT TO THE CIT(A) ALONGWITH NOTICE OF DATE FIXE D FOR HEARING; REMAND REPORT DATE 3.5.2017; REJOINDER DATED 23.5.2 017 TO THE REMAND REPORT; ORDER SHEET ENTRIES IN CIT(A) REGIST ER; WRITTEN SUBMISSIONS DATED 6.6.2017; NOTICE DATED 5.7.2017 I SSUED BY ITO, WARD 70(3) REQUESTING FOR CERTAIN DOCUMENTS; REPLY DATED 11.7.2017 TO NOTICE DATED 5.7.2017 SUBMITTING THE D OCUMENTS REQUESTED FOR; NOTICE DATED 17.7.2017 ISSUED BY ITO , WARD 70(3) REQUESTING FOR CERTAIN DOCUMENTS; REPLY DATED 28.7. 2017 TO NOTICE DATED 17.7.2017 SUBMITTING THE DOCUMENTS REQUESTED FOR; PAN, AADHAR CARD, VOTER IDENTITY CARD AND ITR ACKNOWLEDG EMENT; REMAND REPORT DATED 28.7.2017; REJOINDER DATED 23.8 .2017 TO REMAND REPORT DATED 28.7.2017 AND ORDER SHEET ENTRY DATED 13.01.2016 BEFORE CIT(A). 7 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. HE STATED THAT THERE WERE CASH D EPOSITS OF RS. 22,50,000/- IN ICICI BANK OF ASSESSEE, THE SOURCE OF WHICH COULD NOT BE EXPLAINED BY ASSESSEE. ACCORDINGLY, THE AO RIGHTLY TREATED THE SAID CASH DEPOSITS AS UNEXPLAINED INCOME U/S. 6 8/69 OF THE ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSE E, WHICH THE LD. CIT(A) HAS CORRECTLY UPHELD. HENCE, HE STATED THAT THE WELL REASONED IMPUGNED ORDER DOES NOT REQUIRE ANY INTE RFERENCE AND NEED TO BE UPHELD. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE IMPUGNED ORDER AS WELL THE PAPER BOO K FILED BY THE LD. COUNSEL FOR THE ASSESSEE. I FIND THAT ASSESSE E IS AN INDIVIDUAL AND DURING THE YEAR UNDER CONSIDERATION HE WAS EMPLOYED WITH M/S BIRLA SOFT INDIA LTD., NEW DELH I ON THE POST OF SENIOR SOFTWARE ENGINEER AND HAS FILED THE INCO ME FOR A.Y. 2010-11 ON 08.7.2010 DECLARING THE INCOME OF RS. 1, 69,618/-. THE ASSESSMENT PROCEEDINGS WERE INITIATED BY THE AO VIDE SCRUTINY NOTICE ISSUED ON 25.8.2011 AND ASSESSMENT ORDER WAS PASSED ON 21-03-2013 U/S. 144/143(3) OF THE INCOME TAX ACT, 1961 (ACT) BY MAKING THE ADDITION OF RS. 22,50,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE IN ICICI BANK AND THUS, THE INCOME WAS ASSESSED AT A SUM OF RS. 24,19,618/-. IT IS ALSO NOTED THAT THE ADDITION OF RS. 22,50,000/- WAS CHALLENGED IN THE APPEAL BEFORE LD. CIT(A) ON THE GROUND 8 THAT THE SAID AMOUNT WAS RECEIVED FROM HIS FATHER A ND BROTHER TO WHOM HE HAD GIVEN EARLIER THE SIMILAR AMOUNTS. IT IS FURTHER NOTED THAT DURING THE ASSESSMENT PROCEEDINGS THE A SSESSEE WAS OUT OF THE COUNTRY IN THE COURSE OF HIS EMPLOYMENT AND WAS IN THE U.S.A. THEREFORE, COULD NOT REPRESENT BEFORE AO . THEREFORE, DURING THE COURSE OF HEARING BEFORE LD.CIT(A) THE A SSESSEE SUBMITTED APPLICATION FOR ADMISSION OF ADDITIONAL E VIDENCES ON 18-11-2014. ON 18-11-2014, THE ASSESSEE HAS ALSO F ILED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) IN WHICH, AFTER I NSPECTION OF FILE, THE REPLY REGARDING SERVICE OF EACH OF THE NO TICES ISSUED BY THE AO EITHER U/S 143(2) OR U/S 142(1) OF THE ACT H AS BEEN FILED. IT WAS SUBMITTED THAT NONE OF THESE NOTICES WERE EV ER SERVED UPON THE ASSESSEE. SIMULTANEOUSLY, THE ASSESSEE ALS O SUBMITTED EXPLANATION REGARDING DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE FOR WHICH THE EVIDENCES WERE FILED IN THE SHAPE OF BANK ACCOUNT OF THE ASSESSEE, BANK ACCOUNT OF HIS BROTHE R (MR. ANOOP KUMAR SHARMA) AND ALSO THE BANK ACCOUNT OF HIS FATH ER (MR. GOPAL KRISHAN SHARMA). NOT ONLY COPIES OF BANK ACCO UNTS WERE FILED BUT THEIR COPY OF ITR. COMPUTATION OF INCOME AND DECLARATION SHOWING THAT THEY HAD GIVEN THE SAID AM OUNTS TO THE ASSESSEE AFTER WITHDRAWING THE SAME FROM THEIR BANK ACCOUNT IN CASH. FROM THE DETAILS OF THE PASSPORT FILED WITH THE APB THE PERIOD DESCRIBING THE DEPARTURE OF THE ASSESSEE AND THE ARRIVAL OF THE ASSESSEE IN INDIA. THE DATES ARE AS UNDER: - 9 5.1 IT IS ALSO NOTED THAT CONSTANTLY FROM 13-12-20 08 TO 25-09-2009, THE ASSESSEE WAS IN AUSTRALIA, THEREFOR E, THE SALARY INCOME DERIVED BY HIM FROM START OF THE F.Y RELEVAN T TO A.Y. 2010-11 I.E 01-04-2009 TO 25-09-2009 THE SALARY WAS DRAWN OVERSEAS IN AUSTRALIAN DOLLARS AND THE AMOUNT HAS C OME FROM OVERSEAS IN THE BANK ACCOUNT OF THE ASSESSEE BANK A CCOUNT NO. 00701533354. THE SALARY HAS ALSO COME TO THE BANK A CCOUNT OF THE ASSESSEE FROM INDIA ALSO. THE BIFURCATION OF SA LARY RECEIVED BY THE ASSESSEE AND CREDITED TO ABOVE BANK ACCOUNT IN ICICI BANK IS AS UNDER: - S. NO DATE SALARY FROM OVERSEAS SALARY FROM INDI A OPENING BALANCE 1 . 01 - 04 - 2009 1,75,333/ - 2. 08 - 04 - 2009 1,74,975/ - 3. 15 - 04 - 2009 1,76,675/ - 4. 05 - 05 - 2009 1,80,875/ - 5. 24 - 08 - 2009 28,024/ - 6. 04 - 09 - 2009 4,06,075/ - 7. 05 - 10 - 2009 6,15,275/ - 8. 03-11-2009 38,064/- 9. 26 - 11 - 2009 62,899.5 5/ - 10 . 09 - 12 - 2009 2,25,587/ - S. NO. DEPARTURE FROM INDIA ARRIVAL IN INDIA 1. 16 - 08 - 2008 (AUSTRALIA) 5 - 12 - 2008 2. 13 - 12 - 2008 (AUSTRALIA) 25 - 09 - 2009 3. 03 - 10 - 2010 (USA) 03 - 03 - 2011 4. 21 - 03 - 2011 (USA) STILL IN USA 10 11. 30 - 12 - 2009 35,489/ - 12. 05 - 01 - 2010 8,000/ - 13. 29 - 01 - 2010 35,243/ - 14. 26-02-2010 34,107/- 15. 13 - 03 - 2010 45,066/ - 16. 30 - 03 - 2010 33,815/ - TOTAL 20,45,718/ - 1,89,284/ - GRAND TOTAL 22,35,002/ - 5.2 IT IS ALSO NOTED THAT OUT OF THE ABOVE BANK ACC OUNT, THE ASSESSEE HAS GIVEN THE AMOUNTS TO HIS FATHER AND BR OTHER AS UNDER: - GOPAL KRISHAN SHARMA) ANOOP KUMAR SHARMA) 1. 16 - 04 - 2009 335126 1,75,000/ - 2. 23 - 04 - 2009 335127 1,75,000/ - 3. 20 - 05 - 2009 3 35129 1,75,000/ - 4. 23 - 05 - 2009 335130 1,75,000/ - 5. 10 - 09 - 2009 335132 2,00,000/ - 6. 10-09-2009 335131 2,00,000/- 7. 14 - 10 - 2009 335134 3,00,000/ - 8. 14 - 10 - 2009 335133 3,00,000/ - 9. 04 - 12 - 2009 335139 50,000/ - 10. 4 - 12 - 2009 335138 50,000/ - 11. 14-12-2009 335140 WITHDRAWN CASH AND GIVEN TO BROTHER 2,00,000/- TOTAL 8,50,000/ - 11,50,000/ - 11 5.3 HOWEVER, THE DETAILS OF THE CASH DEPOSITED IN T HE BANK ACCOUNT OF THE ASSESSEE WERE AS UNDER: - DATE OF DEPOSIT AMOUNT (RS.) 21 - 10 - 2009 2,50,000 27 - 10 - 2009 2,50,000 29-10-2009 10,00,000 04 - 11 - 2009 5,00,000 06 - 11 - 2009 2,50,000 TOTAL 22,50,000 5.4 FROM THE ABOVE FACTS, IT IS CLEAR THAT FIRSTLY THE ASSESSEE HAS GIVEN THE ABOVE AMOUNTS TO HIS FATHER AND BROTH ER AND FROM THE VERY SAME AMOUNT THE AMOUNT WAS RECEIVED BACK B Y THE ASSESSEE. THIS FACTUAL POSITION HAS BEEN ADMITTED B Y THE AO IN THE FIRST REMAND REPORT DATED 03-05-2017 SUBMITTED TO THE LD. CIT(A). COPY OF THIS REMAND REPORT HAS BEEN FILED A T PAGES, THE RELEVANT PARA READ AS UNDER: - AGAINST THE ADDITION OF RS. 22,50,000/- MADE ON ACCOUNT OF CASH DEPOSITS IN ICICI BANK U/S 68/69 OF I T ACT 1961. AS PER ADDITIONAL EVIDENCE SUBMITTED BY THE AR OF THE ASSESSEE, SHRI ALOK SHTARMA HAD GIFTE D TOTAL AMOUNT OF RS. 11,50,000/- AND RS. 8,50,000 TO HIS BROTHER SH. ANOOP KUMAR SHARMA AND HIS FATHER SH. GOPAL KRISHAN SHARMA RESPECTIVELY DURING THE F. Y. 2009- 10. DURING THE SAME F.Y. SH. ANOOP KUMAR SHARMA AND SH. GOPAL KRISHAN SHARMA HAD GIFTED TOTAL AMOUNT OF RS. 11,20,000/- AND RS. 9,30,000/- RESPECTIVELY TO SH. ALOK SHARMA. SH. ALOK SHARMA 12 HAD ALSO DEPOSITED RS.2,50,000/- ON 27/10/2009 IN HIS BANK ACCOUNT AS OUT OF CASH IN HAND. FROM THE DOCUMENTS PRODUCED AS ADDITIONAL EVIDENCE IT IS CRYSTAL CLEAR THAT FIRSTLY THE ASSES SEE HAD TRANSFERRED HIS MONEY FROM HIS ACCOUNT TO HIS BROTHER'S AND FATHER'S ACCOUNT AND AFTER THAT THE SAME AMOUNT WAS RECEIVED BACK BY HIM IN CASH FORM AND NO SOURCE OF THAT AMOUNT IS EXPLAINED. FURTHER MEMORANDUM OF GIFT IS NOT AN INSTRUMENT OF SIFTS OF IMMOVABLE PROPERTY. AN IMMOVABLE PROPERTY CAN BE TRANSFERRED BY WAY OF A SIFT ONLY BY A WRITTEN DOCUMENT KNOWN AS A SIFT DEED. 5.5 IT IS ALSO NOTED THAT SIMILAR POSITION HAS BEEN ALSO ADMITTED BY THE AO IN THE SECOND REMAND REPORT, WHO IS THE A O DIFFERENT TO THE AO WHO SUBMITTED THE FIRST REPORT AND IT IS REPORT DATED 28-07-2017 AND THE RELEVANT OBSERVATIONS ARE AS UND ER: - 'SRI ANOOP KUMAR SHARMA THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED GIFT OF RS. 11,0,000/- FROM SRI ANOOP KUMAR SHARMA, THE BROTHER OF THE ASSESSEE. IN SUPPORT OF HIS CONTENTI ON, COPY OF GIFT DEED DATED 31-03-2010 HAS BEEN FILED [COPY OF GIFT DEEDS IS ENCLOSED HEREWITH FOR YOUR K IND PERUSAL. A PERUSAL OF THE BANK ACCOUNT REVEAL THAT THE ASSESSEE HAD GIVEN GIFTS TO HIS BROTHER SRI ANOOP KUMAR SHARMA, WHO IN TURN WITHDRAWN THE AMOUNT AND THE SAID AMOUNT HAS BEEN SHOWN AS RECEIPT OF SIFT. SRI ANOOP KUMAR SHARMA HAD FILED RETURN OF INCOME FOR THE A. Y. 2010-11 DECLARING AN INCOME OF RS. 1,30,912/-. THE INCOME HAS BEEN DECLARED U/S 44AD OF THE INCOME TAX ACT. SRI GOPAL KISH AN 13 SHARMA ON THIS CASE ALSO. THE SON SIFTED THE AMOUNT TO THIS FATHER BY CHEQUE WHO IN TURN WITHDRAWN THE AMOUNT IN CASH AND SIFTED THE AMOUNT IN CASH TO THE ASSESSEE. THE COPY OF ITR FOR THE A.Y. 2010-11 HAS BEEN FILED. THE INCOME DECLARED IS RS. 1,58,460/-. THE BASIS OF INCOME DECLARED IS UNDER THE PROVISION S OF SECTION 44AF OF THE INCOME TAX ACT. IN VIEW OF ABOVE FACTS, THE GIFTS DO NOT APPEAR TO BE GENUINE AND THE APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED. 5.5 SO FAR AS IT RELATES TO REMAINING AMOUNT OF RS . 2,50,000/- IT WAS THE CONTENTION OF THE ASSESSEE BEFORE THE LD . CIT(A) AND AO THAT THE SAME WAS OUT OF CASH AVAILABLE WITH THE ASSESSEE WHICH WAS WITHDRAWN FROM BANK ACCOUNT FROM TIME TO TIME AS PER WRITTEN SUBMISSIONS FILED BEFORE LD. CIT(A) DATED 0 6-06-2017. THE DETAILS OF CASH WITHDRAWALS MADE BY THE ASSESSE E WAS SUBMITTED AND IT WAS POINTED OUT AS PER TABLE DESCR IBED IN THE SAID WRITTEN SUBMISSION THAT FROM 26-08-2009 TO 29- 03-2010 THE ASSESSEE HAD WITHDRAWN A TOTAL SUM OF RS. 4,09,400/ - IN CASH AND THAT SUBMISSION OF THE ASSESSEE HAS TOTALLY BEE N IGNORED BY THE AO IN THE SECOND REMAND REPORT DATED 28-07-2017 WITH THE FOLLOWING OBSERVATIONS: - 'AS REGARD THE CASH DEPOSIT OF RS. 2,50,000/- OUT OF CASH AVAILABLE WITH THE ASSESSEE IS CONCERNED, IT IS AN AFTERTHOUGHT AS THE ASSESSEE HAS NOT SHOWN SUFFICIENT WITHDRAWLS WHICH MAY ENABLE THE ASSESSEE TO MAKE CASH DEPOSIT IN BANK. FURTHER THE ASSESSEE HAS NOT FILED CASH 14 FLOW STATEMENT FROM WHICH THE AVAILABILITY OF CASH COULD BE EXAMINED. WHEN THE ASSESSEE WAS HAVING CASH AT HAND, WHY HE DID NOT DEPOSIT THE AMOUNT IN BANK. ' 5.6 FROM THE ABOVE DOCUMENTS IT IS CLEAR THAT THE C ASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE BELONGING TO H IM AND WERE FROM LEGITIMATE SOURCE OF SALARY DERIVED BY HIM FRO M M/S BIRLA SOFT INDIA PVT LTD. THE AO HAS NOT DOUBTED REGARDIN G ANY OTHER DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE OTHER T HAN CASH DEPOSITS. CASH DEPOSITS ARE FULLY EXPLAINED AS ABOV E. 5.7 FOR PROVING THE IDENTITY OF BROTHER AND FATHER OF THE ASSESSEE, NOT ONLY THE ASSESSEE HAS SUBMITTED DOCUM ENTARY EVIDENCE IN THE SHAPE OF COPY OF ITR, THEIR BANK AC COUNTS, THEIR PAN AND AADHAR CARD ETC., HOWEVER, LD. CIT(A) HAS D OUBTED REGARDING THE CREDITWORTHINESS OF BROTHER AND FATHE R OF THE ASSESSEE. IT IS NOTED THAT THE CREDIT WORTHINESS OF THE FATHER AND BROTHER OF THE ASSESSEE CANNOT BE SOLELY DETERMINED ON THE BASIS OF QUANTUM OF RETURN OF INCOME FILED BY THEM BUT TH AT HAS ALSO TO BE SEEN IN THE LIGHT OF THE FACT THAT THE MONEY THE Y PROVIDED TO THE ASSESSEE WAS EARLIER PROVIDED BY THE ASSESSEE T O THEM AND THIS FACT HAS BEEN ADMITTED IN BOTH OF THE REMAND R EPORTS SUBMITTED BY THE AO BEFORE LD. CIT(A). THEREFORE, O N MERITS THE AMOUNT CREDITED IN CASH IN BANK ACCOUNT OF ASSESSEE CANNOT BE CONSIDERED AS ASSESSABLE EITHER U/S 68 OR U/S 69 OF THE ACT. ASSESSEE HAS PLACED ON RECORD ALL THE DOCUMENTARY E VIDENCE TO 15 SHOW AND PROVE THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE HAD COME FROM THE BANK ACCOUNTS OF THE FATHER AND BROTHER OF THE ASSESSEE AND ALSO EARLIER WITHDRAWAL MADE BY THE ASSESSEE AND THE BURDEN OF THE ASSESSEE WAS NOT MOR E THAN TO PRODUCE THE EVIDENCE WHICH HAS BEEN PRODUCED BY THE ASSESSEE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE CASE AS DISCUSSED ABOVE, THE ADDITION OF RS. 22,50,000/- M ADE U/S. 68/69 OF THE ACT MADE BY THE AO AND UPHELD BY THE L D. CIT(A) IS HEREBY DELETED AND ACCORDINGLY THE GROUND NO. 2 IS ALLOWED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED ON 15/05/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 15/05/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR 16