ACIT, New Delhi V. Sh. Anil Katyal, New Delhi

ITA 4918/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53017 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 31-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: R S AHUJA
• Keywords: Income from undisclosed sources

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NO.4918/DEL/2009 ASSESSMENT YEAR : 2006-07 ACIT, CIRCLE 47(1), 426, MAYUR BHAWAN, NEW DELHI. VS. ANIL KATYAL, W-153, GREATER KAILASH-I, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.S. AHUJA, CA REVENUE BY : MRS. ANUSHA KHURANA, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 5 TH OCTOBER, 2009 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) HAS ERRED IN :- I) ACCEPTING THE CONTENTION OF THE APPELLANT THAT THE CASH DEPOSITS IN BANK ACCOUNT IN PART ORIGINATED FROM THE BAN K LOCKER OF THE DECEASED FATHER. II) ACCEPTING THE CONTENTION OF THE APPELLANT THAT THE CASH DEPOSITS IN BANK ACCOUNT IN PART ORIGINATED FROM SALE O F GOLD, SAID TO HAVE BEEN KEPT AT THE BANK LOCKER OF THE DECEASE D FATHER. III) ACCEPTING THE CONTENTION OF THE APPELLANT AT PARA (1) AND (2) WITHOUT ANY SUBSTANTIATING OR CORROBORATING PROOF, EVEN W HILE THE ASSESSING OFFICER HAS REFERRED TO LACK OF EVIDENC E INVOLVING SALE OF GOLD AND LACK OF EVIDENCE INVOLVING DISCOVE RY OF CASH IN THE LOCKER. ITA NO.4918/DEL/2009 2 IV) ACCEPTING THE AFFIDAVIT FILED BY THE ASSESSEE AS AN EVIDENCE MORE SO WHEN IT IS A SELF-SERVING DOCUMENT. V) NOT APPRECIATING THE REASONS FOR ADDITION, RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE APPELLANT CRAVE THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT THERE WAS SEVERAL CASH RECEIPTS IN T HE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH STANDARD CHARTERED BANK , GREATER KAILASH I, NEW DELHI. DATE-WISE CHART OF THE SAID DEP OSITS ARE AS UNDER:- S.NO. DATE AMOUNT DEPOSITED IN CASH (RS.) 1. 23.4.2005 10,000 2. 29.12.2005 50,000 3. 30.12.2005 45,000 4. 19.1.2006 45000 5. 20.1.2006 5,00,000 6. 21.1.2006 5,00,000 7. 23.1.2006 5,00,000 8. 27.2.2006 5,50,000 9. 28.2.2006 6,04,000 10. 3.3.2006 4,00,000 32,04,000 3. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF THE SE CASH DEPOSITS AND WAS ASKED TO EXPLAIN AS TO WHY SUCH CASH DEPO SITS SHOULD NOT BE CONSIDERED TO BE INCOME OF THE ASSESSEE FROM UNDI SCLOSED SOURCES. IN RESPONSE, LETTER DATED 16 TH DECEMBER, 2008 WAS FILED IN WHICH IT WAS STATED THAT THE FATHER OF THE ASSESSEE SHRI CHET RAM DIED ON 14 TH NOVEMBER, 2003 LEAVING BEHIND ASSETS, BOTH MOVEABLE A ND IMMOVABLE. HE HAD SOLD AGRICULTURAL LAND DURING THE YEAR 1997 AND ONE HOUSE AT NIRMAN VIHAR, DELHI IN THE YEAR 2000. REFERENCE WAS MADE TO THE WILL OF THE FATHER IN WHICH THE ASSESSEE HA S BEEN BEQUEATHED WITH ALL OF HIS ASSETS. HOWEVER, AFTER THE DEATH OF THE ITA NO.4918/DEL/2009 3 FATHER, THE SISTER OF THE ASSESSEE FILED A SUIT IN THE DEL HI HIGH COURT AND ALSO OBTAINED INJUNCTION ORDER DATED 26 TH MARCH, 2004 IN WHICH THE ASSESSEE WAS RESTRAINED FROM DEALING WITH THE ASSETS LEFT BE HIND BY THE FATHER OF THE ASSESSEE. THE SAID DISPUTE BETWEEN THE ASSESSEE AND HIS SISTER WAS SETTLED IN SEPTEMBER, 2005 AFTER WHICH TH E CASE WAS WITHDRAWN AND THE ASSETS INCLUDING THE CONTENTS OF LOCK ERS WERE SHARED BETWEEN THE BROTHER AND THE SISTER. IT WAS MENT IONED THAT AT THE TIME OF OPENING THE LOCKER AND PERSONAL BELONGIN GS, ETC., IT WAS NOTICED THAT THE FATHER OF THE ASSESSEE HAD SUBSTANTIAL C ASH BALANCE WHICH WERE DISTRIBUTED AT THE TIME OF SETTLEMENT AND THE ASSESSEE HAD RECEIVED A CASH OF ABOUT ` 35 LAC AS HIS SHARE. IT WAS SUBMITTED THAT AFTER THE RECEIPT OF THE SAID MONEY HE DEPOSITED ` 33 .63 LAC IN HIS BANK ACCOUNT BETWEEN DECEMBER 2005 AND MARCH, 2006. TO SUPPORT THE CONTENTION, COPY OF DEATH CERTIFICATE WAS SUBMITTED SH OWING THE DATE OF DEATH AS 14 TH NOVEMBER, 2003. THE WILL WAS SIGNED BY THE FATHER O F THE ASSESSEE ON 21 ST JUNE, 1992 AND THE SALE DEED OF AGRICULTURAL LAND WAS ALSO FILED WHICH WAS SOLD IN 1997. 4. LEARNED ASSESSING OFFICER DID NOT BELIEVE THE SAID SUB MISSIONS MADE BY THE ASSESSEE ON THE GROUND THAT IN THE WILL EXE CUTED BY THE FATHER, THERE WAS NO MENTION REGARDING THE POSSESSION OF ANY CASH THOUGH THE POSSESSION OF THE PROPERTIES LIKE AGRICULTUR AL LAND AND HOUSE AT NIRMAN VIHAR WERE MENTIONED. THE SALE DEED PRODUCED BY THE ASSESSEE FOR SALE OF LAND DURING THE YEAR 1997 CANNO T EXTEND ANY HELP TO THE ASSESSEE AS NO PRUDENT PERSON WILL KEEP THE M ONEY IN LOCKER OR IN HIS PERSONAL BELONGINGS, ETC. FOR SUCH A L ONG TIME STARTING FROM 1997 OR THE YEAR 2000 WHICH ARE THE DATES OF SAL E OF AGRICULTURAL LAND AND SALE OF HOUSE. THE ASSESSING OFFICER FURTHER OB SERVED THAT THE SALE CONSIDERATION OF AGRICULTURAL LAND AS WELL AS HOUSE WERE THE AMOUNTS RECEIVED AS PER THE TITLE DEEDS, HENCE, THERE WAS NO POINT FOR NOT DEPOSITING THEM IN THE BANK ACCOUNTS AND IF ACCO UNTED FUNDS ARE ITA NO.4918/DEL/2009 4 KEPT IN THE BANK ACCOUNT, ONE CAN EARN INTEREST ALSO. THE DEPOSITS IN THE BANK ACCOUNT WERE MADE ON 10 DIFFERENT DATES AND THEY ARE NOT IN ONE GO. THE ASSESSING OFFICER ALSO REFERRED TO THE AFFI DAVIT FILED BY THE ASSESSEE ON 26 TH DECEMBER, 2008 IN WHICH IT WAS STATED THAT HIS FATHER HAD DIED LEAVING BEHIND ASSETS; BOTH MOVEABLE AND IMMO VABLE INCLUDING THE CONTENTS IN THE LOCKER NO.326 WITH PUN JAB NATIONAL BANK, DARYA GANJ, DELHI. THE SISTER OF THE ASSESSEE FILED A SUI T BEFORE HONBLE HIGH COURT AND HAD OBTAINED INJUNCTION RELA TING TO THE ASSETS LEFT BEHIND BY HIS FATHER AND AFTER THE SETTLEMENT OF THE DISPUTE, THE LOCKER NO.326 WITH PUNJAB NATIONAL BANK WAS OPERATED ON 27.1.2005 AND THE CONTENTS OF THE LOCKER WERE REMOVED. IT WAS FURTHER STATED IN THE AFFIDAVIT THAT ON 27 TH JANUARY, 2005, THE ASSETS WHICH WERE RECEIVED BY HIM WERE CASH OF ` 15,30,000/- AND GOLD WORTH ABO UT ` 20 LAC. THE GOLD WAS SOLD BY THE ASSESSEE IN JANUARY, 2006 FOR ` 20 L AC AND OUT OF THESE FUNDS THE AFOREMENTIONED AMOUNTS WERE DEPOSITED I N CASH IN THE BANK ACCOUNT. THE ASSESSING OFFICER REJECTED SUCH AFFID AVIT OF THE ASSESSEE ON THE GROUND THAT THE SAME IS A SELF-SERVING DOCU MENT FILED BY THE ASSESSEE WHICH IS UNSUPPORTED BY SUBSTANTIATING EVID ENCE WITH REGARD TO AVAILABILITY OF CASH OR GOLD. THE STAND OF THE ASSESSEE WAS CONTRADICTORY AS IN THE LETTER DATED 16 TH DECEMBER, 2008 IT WAS STATED THAT AT THE TIME OF OPENING OF LOCKER, ETC. THE CASH WAS DISTRIBUTED AND HE RECEIVED THE CASH OF ABOUT ` 35 LAC AS HIS SHARE AND IN THE AFFIDAVIT, THE STAND HAS BEEN CHANGED WHICH STATED THAT THE CASH R ECEIVED BY HIM WAS ` 15,30,000/- ONLY AND THERE WAS GOLD OF THE VALUE OF AROUND ` 20 LAC. THE ASSESSEE WAS REQUIRED TO PRODUCE EVIDENCE/B ILL ETC., FOR THE ALLEGED SALE OF GOLD AND THE AVAILABILITY OF SUCH BILL/EVIDENCE WAS DENIED AND, THUS, KEEPING IN VIEW THE OVERALL CIRCUM STANCES OF THE CASE, THE ASSESSING OFFICER OBSERVED THAT THERE IS NO NEXU S BETWEEN THE CASH NOW DEPOSITED BY THE ASSESSEE ON VARIOUS DATES IN HIS BANK ACCOUNT AND THE ALLEGED AMOUNT RECEIVED ON SALE OF P ROPERTIES. THEREFORE, HE HELD THAT AVAILABILITY OF CASH HAS NOT BEEN SUBSTANTIATED. ITA NO.4918/DEL/2009 5 THE ASSESSING OFFICER FURTHER MENTIONED THAT THE ASSESSEE I S MAINTAINING BANK ACCOUNT IN TWO BANKS, NAMELY, HDFC BANK, GREATER KAILASH WHERE GENERALLY HE IS DEPOSITING HIS SALARY AMOU NTS AND SMALL CASH DEPOSITS AND WITHDRAWALS AND THE OTHER BANK ACCOUN T IS WITH STANDARD CHARTERED BANK, GREATER KAILASH, NEW DELHI WHERE DEPOSIT IS MAINLY OF THE AFOREMENTIONED CASH AMOUNTS WHICH HAVE BEEN UTILIZED BY THE ASSESSEE FOR INVESTMENT IN MUTUAL FUND, ETC. THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN SATISFACTORILY THE SOURCES OF DEPOSITS OF CASH ON VARIOUS DATES. THE ASSESSING OFFICER HELD THAT THE A FORESAID AMOUNT OF ` 32,04,000/- IS UNDISCLOSED INCOME OF THE A SSESSEE AND THE ADDITION OF THE SAID AMOUNT WAS MADE TO THE RETURNED INCOME. 5. THE ADDITION WAS CONTESTED BY THE ASSESSEE IN APPEAL F ILED BEFORE THE CIT (A). THE SUBMISSIONS MADE BEFORE THE ASSE SSING OFFICER WERE REITERATED AND PHOTO COPY OF THE WILL AND COP Y OF SUIT NO.2068/2004 IN DELHI HIGH COURT WAS FILED. LEARNED CIT (A) HAS DELETED THE ADDITION VIDE PARA 5 OF HER ORDER WHICH , FOR THE SAKE OF CONVENIENCE IS REPRODUCED BELOW:- 5. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE ASS ESSEE AS WELL AS THE EVIDENCE FILED IN SUPPORT OF HIS STATEME NT. THE A.O. HAS MADE AN ADDITION OF RS.32,04,000/- ON ACCOU NT OF CASH DEPOSITS IN ASSESSEES BANK ACCOUNT TREATING THESE AS UNEXPLAINED ON THE GROUND THAT THE ASSESSEE ON THE ONE H AND EXPLAINED THAT HIS FATHER SHRI CHET RAM DIED LEAVING BE HIND ASSETS BOTH MOVABLE AND IMMOVABLE INCLUDING CONTENTS IN LOCKER NO.326, IN PNB, DARYA GANJ, NEW DELHI. BUT BECAUSE O F HIS SISTER WHO HAS FILED A SUIT BEFORE HON'BLE HIGH COURT AND OB TAINED INJUNCTION THE ASSETS COULD NOT BE DISTRIBUTED AND ONLY A FTER SETTLEMENT OF THE DISPUTE THE LOCKER NO.326 IN PNB WAS OP ENED ON 27.1.05 AND CONTENTS OF LOCKER WERE REMOVED. THE A SSESSEE RECEIVED HIS SHARE OF THE CONTENTS CONSISTING OF CASH O F RS. 15,30,000/- AND GOLD WORTH RS.20,00,000/-. THE GOLD WAS SOLD BY HIM FOR RS.20,00,000/-AND THE SALE PROCEEDS OF GOLD AND ALSO CASH WERE DEPOSITED IN BANK. HOWEVER, THE ASSESSEE IN HIS LETTER DT. 16.12.08 HAD EXPLAINED THAT HE HAD RECEIVED ENTIRE SHARE IN CASH OF RS.35,00,000/-. THUS THERE WAS A DISCREPANCY BETWEEN WHAT THE ASSESSEE STATED IN HIS LETTER DT. 16.12.08 AND IN THE AFFIDAVIT FILED BY HIM SUBSEQUENTLY. THE AO THEREFORE, HELD THAT ITA NO.4918/DEL/2009 6 ASSESSEE HAD NOT BEEN ABLE TO EXPLAIN SATISFACTORILY THE SOURCE OF DEPOSITS OF CASH OF RS.32,04,000/- IN THE BANK ON VARIOUS DATES AND ADDED THIS AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. THE ASSESSEE HAS EXPLAINED BEFORE ME THAT HIS STATEMENT MADE IN THE AFFIDAVIT SHOULD BE ACCEPTED AND THAT WHILE FILING THE LETTER OF EXPLANATION EARLIER HE HAD INADVERTENTLY NO T MENTIONED ABOUT THE RECEIPT AND SALE OF GOLD BUT HAD EXP LAINED THAT HIS ENTIRE SHARE OF INHERITANCE WAS CASH OF RS.35, 00,000/- AND IT WAS DEPOSITED IN THE BANK ON VARIOUS DATES. IT IS ONLY A MANNER OF EXPLAINING WHICH WAS PERHAPS NOT SO ACCURA TE INITIALLY WHICH HAS LED TO THE MISUNDERSTANDING HOWEVER, IT WAS A MINOR BONAFIDE OMISSION FOR WHICH HE SHOULD NOT BE UNFAIRL Y PENALIZED. I FIND THAT THE APPELLANT'S EXPLANATION IS SOUND AND ALS O BACKED BY THE SUFFICIENT EVIDENCE. THE FACT THAT THERE WA S GOLD IN THE LOCKER IS BORNE OUT BY THE STATEMENT OF ASSESSEE'S SISTER IN SUIT FOR INJUNCTION FILED IN THE HIGH COURT OF DELHI BY THE ASSESSEE'S SISTER, AND I SEE NO REASON TO DISBELIEVE THE ASSESSEE'S STATEMENT THAT HE SOLD THE GOLD AND DEPOSITED THE CASH PROCEEDS IN THE BANK. I, THEREFORE, CONSIDER IT PROPER TO DELETE THE ADDITION OF RS.32,04,000/- TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 6. THE REVENUE IS AGGRIEVED BY THE AFOREMENTIONED FI NDINGS RECORDED BY THE CIT (A) AND, HENCE, HAS RAISED THE AF OREMENTIONED GROUNDS OF APPEAL. 7. AFTER NARRATING THE FACTS, IT WAS VEHEMENTLY PLEAD ED BY LD. DR THAT LD. CIT (A) HAS ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT ANY REASONABLE EVIDENCE BEING PLACED ON RECORD. SHE SUBM ITTED THAT NONE OF THE EVIDENCES FILED BY THE ASSESSEE IS STATING PRECISELY WHAT QUANTITY OF GOLD OR CASH WAS FOUND IN THE LOCKER. SH E SUBMITTED THAT THE IMMOVABLE PROPERTY WAS SOLD BY THE FATHER OF THE ASSESSEE LONG BACK AND BY NO PRUDENCE IT CAN BE SAID THAT THE SAID AMOUNT COULD BE KEPT IN A LOCKER FOR A LONG TIME IN WHICH THE ASSESSEE WILL NOT YIELD ANY GAIN. SHE ALSO SUBMITTED THAT THOUGH IN THE SUIT FILE D BY THE SISTER OF THE ASSESSEE IN THE HIGH COURT THERE IS MENTION OF GOLD, BUT NOWHERE QUANTITY OF GOLD OR DESCRIPTION THEREOF HAS BEEN MENT IONED. THEREFORE, ITA NO.4918/DEL/2009 7 IT CANNOT BE ACCEPTED THAT THERE WAS ANY GOLD IN THE LOCKER. SHE ALSO SUBMITTED THAT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENC E WHATSOEVER REGARDING QUANTITY OF THE GOLD, SALE THERE OF AND THE PARTY TO WHOM IT HAS BEEN SOLD. SHE SUBMITTED THAT LD. CIT (A) HAS ACCEPTED ALL THESE CLAIMS OF THE ASSESSEE WITHOUT ANY EVIDENCE BEI NG PLACED ON RECORD. THE AO WAS RIGHT IN MAKING THE ADDITION. T HEREFORE, SHE PLEADED THAT THE ADDITION DELETED BY THE CIT (A) SHO ULD BE RESTORED AND THE APPEAL FILED BY THE DEPARTMENT SHOULD BE ALLOWED . 8. ON THE OTHER HAND, RELYING UPON THE EVIDENCE PLA CED IN THE PAPER BOOK, WHICH IS IN THE SHAPE OF WILL OF THE FATHER, CE RTIFICATE OF PUNJAB NATIONAL BANK REGARDING OPERATION OF LOCKER NO.326 ON 27 TH JANUARY, 2005, COPY OF BANK STATEMENT OF DECEASED FATHER OF TH E ASSESSEE, AND COPY OF SUIT FILED BY THE SISTER OF THE ASSESSEE AND OTHER DOCUMENTS ENCLOSED IN THE PAPER BOOK, IT IS THE CASE OF LD. AR T HAT THE FATHER OF THE ASSESSEE WAS A MAN OF MEANS. HE WAS THE OWNER OF CONSI DERABLE IMMOVABLE PROPERTY, THE SALE PROCEEDS OF WHICH HAD FE TCHED A HANDSOME AMOUNT. HE FURTHER REFERRED TO THE AFFIDAV IT SUBMITTED BY THE ASSESSEE THE COPY OF WHICH IS FILED AT PAGE 31 OF TH E PAPER BOOK AND THE AGREEMENT OF SALE OF AGRICULTURAL LAND BY TH E FATHER OF THE ASSESSEE COPY OF WHICH IS FILED AT PAGE 28-30 OF THE PAP ER BOOK AND REFERRING TO ALL THOSE DOCUMENTS HE PLEADED THAT THE CIT (A) HAS RIGHTLY CONCLUDED THAT NO ADDITION IS CALLED FOR IN THE HAN DS OF THE ASSESSEE. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE COPY OF THE WILL OF THE FATHER OF THE ASSESSEE HAS BEEN FILED AT PAGE 1 TO 3 OF THE PAPER BOOK THROUGH WHICH THE FATHER OF THE ASSESSEE HAS BEQUEATHED HIS ENTIR E PROPERTY TO HIS SON SHRI ANIL KATYAL AND THE SAID WILL IS DATED 21 ST JUNE, 1992. THE FATHER OF THE ASSESSEE HAS EXCLUDED THE SISTER OF THE ASSESSEE ON THE GROUND THAT WHAT HE WANTED TO PROVIDE TO HIS DAUGHTE R HAS ALREADY ITA NO.4918/DEL/2009 8 BEEN PROVIDED, AS SUCH, SHE WILL NOT HAVE ANY RIGHT, T ITLE OR CLAIM IN HIS MOVEABLE OR IMMOVABLE PROPERTIES. IT WAS THE CASE OF THE ASSESSEE EVEN BEFORE THE ASSESSING OFFICER THAT THE FATHER OF TH E ASSESSEE HAD SOLD AGRICULTURAL LAND DURING THE YEAR 1997 AND ALSO A HOUSE AT NIRMAN VIHAR IN 2000 WHICH WAS THE MAIN SOURCE OF THE AMOUNT BEING OWNED BY THE FATHER OF THE ASSESSEE. TO SUBSTANTIATE, THE ASSESSEE PRODUCED ON RECORD THE AGREEMENT FOR SALE OF LAND SITUATED AT VILLAGE MANJHA, TEHSIL AND DISTRICT ROHTAK FOR AN AMOUNT OF RS.28,50,0 00/- AND THE SAID AGREEMENT IS DATED 24 TH MAY, 1997 PART PAYMENT OF WHICH WAS RECEIVED AS A SUM OF RS.4,50,000/- ON 24 TH MAY, 1997 IN CASH AND, THEREAFTER, A SUM OF RS.15 LAC IN THE MONTH OF JUNE, 1997. APART FROM THE SALE OF THE SAID LAND, THE FACT OF SELLING HOUSE IN NIRMAN VIHAR, DELHI WAS ALSO SUBMITTED WHICH WAS SOLD IN THE YEAR 2000 . IF IT IS SO, THEN, IT CANNOT BE SAID THAT THE FATHER OF THE ASSESSEE WAS NOT A MAN OF MEANS. 10. HOWEVER, IT HAS TO BE SEEN WHETHER THE SAID MONEY WAS AVAILABLE WITH THE FATHER OF THE ASSESSEE, SO THAT IT CO ULD BE RECEIVED BY THE ASSESSEE. WE HAVE CAREFULLY GONE THROUGH THE SUI T FILED BY THE SISTER OF THE ASSESSEE IN THE DELHI HIGH COURT FROM WHERE WE CAN GET SOME CLUE. COPY OF THIS SUIT IS FILED AT PAGES 8 TO 26 OF THE PAPER BOOK. IN THE SAID SUIT THE SISTER OF THE ASSESSEE HAS STATED AS UNDE R:- 5. THE PLAINTIFF STATES AND SUBMITS THAT THE PROPERTY BEAR ING NO.W-153, FIRST FLOOR, GREATER KAILASH-I, NEW DELHI 110 048, WAS PURCHASED BY THE LATE FATHER OF THE PLAINTIFF IN MAY -JUNE, 2000 WITH THE FUNDS RECEIVED FROM SALE OF PROPERTY BEA RING NO.C-218, NIRMAN VIHAR, DELHI WHICH WAS SOLD IN MAY -JUNE, 2000. THE FIXED DEPOSITS IN THE NAME OF THE LATE FATHER OF THE PLAINTIFF LYING WITH PUNJAB NATIONAL BANK, DARYA GANJ BRANCH, N EW DELHI 110 002 HAD ALSO BEEN CREATED WITH THE FUNDS RECEIVED FROM THE SALE OF AGRICULTURAL LANDS AT ROHTAK IN JUNE, 1997,BEL ONGING TO THE LATE FATHER OF THE PLAINTIFF. IN THE SAID FDRS THE M INOR SONS OF THE DEFENDANT WERE NAMED AS NOMINEES BY THE LATE FATH ER OF THE PLAINTIFF. ITA NO.4918/DEL/2009 9 10.1 THE VALUES OF THE PROPERTIES MENTIONED IN THE SUIT AS DESCRIBED BY THE SISTER OF THE ASSESSEE IN PARA 13 WERE AS UNDER:- 13. THE PLAINTIFF FOR THE PURPOSES OF COURT FEE AND J URISDICTION IS VALUING THE PRESENT SUIT AS FOLLOWS: A. PROPERTY BEARING NO.XI/4092-93, URDU BAZAR, JAMA MASZID, DELHI 110 006 (EARLIER NUMBERED AS XI/5443-45, UR DU BAZAR, JAMA MASZID, DELHI 110 006 IS VALUED AT RS.20 LAK HS. B. PROPERTY BEARING NO.W-153, FIRST FLOOR, GREATER KAI LASH-I, NEW DELHI 110 048 IS VALUED AT RS.10 LAKHS. C. FIXED DEPOSITS WITH PUNJAB NATIONAL BANK, DARYA GAN J BRANCH, NEW DELHI 110 002 ARE VALUED AT RS.9.85 LA KHS. D. SAVING BANK ACCOUNT WHEREIN THE PENSION OF LATE SHR I CHET RAM KATYAL WAS BEING CREDITED BEING ACCOUNT NO.112 62 WITH PUNJAB NATIONAL BANK, DARYA GANJ BRANCH, NEW DEL HI 110 002 IS VALUED AT RS.2.22 LAKHS. THE TOTAL VALUE OF THE ASSETS IS RS.42.00 LAKHS FOR THE RELIEF OF PARTITION IN ACCORDANCE WITH CLAUSE (VI) ARTI CLE 17 SCHEDULE II OF THE COURT FEES ACT READ WITH DELHI HIGH COURT RULES AND SECTION 9 OF THE SUIT VALUATION ACT. SINCE THE PLAINTIFF IS CLAIMING ONE HALF OF THE AFORESAID VALUE OF THE AS SETS, THEREFORE, THIS HONBLE COURT HAS THE PECUNIARY JURISDI CTION TO ENTERTAIN THE PRESENT SUIT. THE APPROPRIATE COURT FEES IN RESPECT OF THE SHARE OF THE PLAINTIFF I.E., ONE HALF OF THE AFO RESAID VALUE OF THE ASSETS HAS BEEN AFFIXED ON THE PLAINT. 11. IN PARA 5 REPRODUCED ABOVE, IT HAS BEEN STATED BY THE SISTER OF THE ASSESSEE THAT THE FATHER OF THE ASSESSEE HAD ACQUIRED P ROPERTY BEARING NO.W-153, FIRST FLOOR, GREATER KAILASH-I, NEW DELHI 110 048 WHICH WAS PURCHASED IN MAY-JUNE, 2000 WITH THE FUNDS R ECEIVED FROM THE SALE OF PROPERTY BEARING C-218, NIRMAN VIHAR WHI CH WAS SOLD IN MAY-JUNE, 2000. IT HAS NOT BEEN MENTIONED ANYWHERE THAT FOR WHICH VALUE THE FATHER OF THE ASSESSEE SOLD THE SAID HOUSE. FUR THER, THE VALUE ADOPTED BY THE SISTER OF THE ASSESSEE ON THE PROPER TY BEARING NO.W-153, FIRST FLOOR, GREATER KAILASH-I, NEW DELHI I S ` 10 LAC AND THE SAID AMOUNT HAS BEEN STATED TO BE PAID FROM THE SALE PR OCEEDS OF HOUSE AT NIRMAN VIHAR. THE OTHER INVESTMENT BY THE F ATHER OF THE ITA NO.4918/DEL/2009 10 ASSESSEE WAS MADE ON FDRS WHICH WAS A SUM OF ` 9.85 LAC. PRESUMING THAT THE ENTIRE FUNDS RECEIVED BY THE FATHE R OF THE ASSESSEE ON SALE OF HOUSE AT NIRMAN VIHAR WERE UTILIZED FOR TH E PURCHASE OF PROPERTY SITUATED AT GREATER KAILASH-I, THEN ALSO THE FATHER OF THE ASSESSEE WAS HAVING WITH HIM THE BENEFIT OF ` 28,50,000/ - HAVING BEEN RECEIVED IN RESPECT OF LAND. THERE IS NO MATERIAL O N RECORD TO SUGGEST THAT THE FATHER OF THE ASSESSEE HAD MADE ANY OTHER INVE STMENT OUT OF SUCH PROCEEDS OF LAND. THEREFORE, IT CANNOT BE SAID T HAT THE FATHER OF THE ASSESSEE DID NOT HAVE ANY CASH LEFT WITH HIM EVEN IF THE PART OF THE SALE PROCEEDS OF LAND IS CONSIDERED TO BE INVESTED IN FD R. IF THE AMOUNT OF ` 10 LAC INVESTED IN FDR IS EXCLUDED FROM T HE SALE PROCEEDS OF LAND, THEN ALSO HE MAY BE HAVING EXCESS CASH WITH HI M AMOUNTING TO ` 15 LAC. THEREFORE, WE ARE OF THE OPINION THAT TO THAT EXTENT THE CLAIM OF THE ASSESSEE CAN BE CONSIDERED TO BE REASONABLE THAT HE HAD RECEIVED A SUM OF ` 15 LAC AS CASH OUT OF THE LOCKER W HICH WAS OPERATED UPON SETTLEMENT ARRIVED AT BETWEEN THE ASSESSE E AND HIS SISTER. THE EVIDENCE OF OPENING OF LOCKER IN THE SHAP E OF CERTIFICATE (COPY IS PLACED AT PAGE 4 OF THE PAPER BOOK) IS SUBMIT TED AND THE SAID DATE IS 27 TH JANUARY, 2005. THOUGH NO SPECIFIC EVIDENCE HAS BEEN PLACED ON RECORD BY THE ASSESSEE REGARDING THE CONTENTS OF LOCKER, BUT A REASONABLE INFERENCE CAN BE DRAWN FROM THE FACTS MA DE AVAILABLE ON RECORD. THEREFORE, IT CANNOT BE SAID THAT THE CIT ( A) WAS ENTIRELY UNREASONABLE IN ACCEPTING THE CLAIM OF THE ASSESSEE REGA RDING AVAILABILITY OF CASH OF ` 15 LAC. 12. NOW, COMING TO THE SECOND ASPECT OF THE MATTER, W HICH IS REGARDING GOLD HAVING BEEN RECEIVED FROM THE LOCKER AND WAS DISPOSED OF AND THE SALE PROCEEDS THEREOF WERE DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT. THOUGH THE FACT OF GOLD IS MENTIONED IN PARA 3 OF THE SUIT, WHICH READ AS UNDER, BUT NOWHERE ANY QUANTITY I S MENTIONED FROM ITA NO.4918/DEL/2009 11 WHERE IT CAN BE SAID THAT THE FATHER OF THE ASSESSEE WAS HAVING ANY GOLD WHICH WAS LYING IN THE LOCKER:- 3. LATE SH. CHET RAM KATYAL, TO THE BEST OF THE KNOWLEDGE OF THE PLAINTIFF ON HIS DEMISE LEFT THE FOLLOWING PROPERTIE S/ASSETS. A. PROPERTY BEARING NO.XI/4092-93, URDU BAZAR, JAMA MASZID, DELHI 110 006 (EARLIER NUMBERED AS XI/5443-45, UR DU BAZAR, JAMA MASZID, DELHI 110 006) B. PROPERTY BEARING NO.W-153, FIRST FLOOR, GREATER KAI LASH-I, NEW DELHI 110 048. C. FIXED DEPOSITS IN THE SUM OF RS.9.85 LAKHS WITH PUN JAB NATIONAL BANK, DARYA GANJ BRANCH, NEW DELHI 110 00 2. D. GOLD LYING IN SAFE DEPOSIT VAULT BEING LOCKER NO.6 1 WITH PUNJAB NATIONAL BANK, DARYA GANJ BRANCH, NEW DELHI 110 002. E. SAVING BANK ACCOUNT WHEREIN THE PENSION OF LATE SH. CHET RAM KATYAL WAS BEING CREDITED BEING ACCOUNT NO.11262 W ITH PUNJAB NATIONAL BANK, DARYA GANJ BRANCH, NEW DELHI 110 002. 13. THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW TH AT THE GOLD WAS RECEIVED BY HIM WHICH WAS SOLD BY HIM IN THE MARKET AND THE SALE PROCEEDS THEREOF WERE DEPOSITED IN HIS BANK ACCOUN T. IN THE COMPLETE ABSENCE OF ANY SUCH EVIDENCE, MERELY ON THE BASIS OF THE CLAIM MADE BY THE SISTER OF THE ASSESSEE THAT THE GOLD WA S LYING IN LOCKER CANNOT BE ACCEPTED, THAT TOO TO THE EXTENT O F VALUE OF ` 20 LAC, WHICH THE ASSESSEE IS CLAIMING TO HAVE BEEN RECEIVED FRO M THE LOCKER MAINTAINED BY HIS FATHER. THIS CLAIM BEING ENTIRELY UNSUBSTANTIATED CANNOT BE ACCEPTED. THEREFORE, TO THAT EXTENT, LEA RNED CIT (A) CAN BE SAID TO HAVE WRONGLY GRANTED THE RELIEF TO THE ASSESSEE. 14. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE RELIEF WHICH IS DESERVED BY THE ASSESSEE WAS ONLY TO THE EXTENT OF ` 15 L AC OF CASH AND THE OTHER CLAIM THAT ` 20 LAC ON ACCOUNT OF CASH HAVING BEEN RECEIVED OUT OF SALE OF GOLD HAS NOT BEEN SUBSTANTIATED , THUS NOT ITA NO.4918/DEL/2009 12 ACCEPTABLE. THEREFORE, WE PARTLY ACCEPT THE CLAIM OF THE REVENUE AND UPHOLD THE REMAINING ADDITION BY GIVING RELIEF OF ` 15 LAC TO THE ASSESSEE. 15. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.10.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 21.10.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES ITA NO.4918/DEL/2009 13 HE RECEIVED A SUM OF RS.28,50,000/- FOR SALE OF LAND A ND, THEREAFTER, IN 2000 SALE CONSIDERATION OF HIS HOUSE. IF THE FINANC IAL POSITION OF THE FATHER OF THE ASSESSEE IS SEEN, IN THE LIGHT OF THE SU IT FILED BY THE SISTER OF THE ASSESSEE IN DELHI HIGH COURT, THE COPY OF W HICH IS PLACED AT PAGES 8 TO 26 OF THE PAPER BOOK, THEN, IT CANNOT BE SAID THAT THE FATHER OF THE ASSESSEE COULD NOT OWN PLENTY OF CASH AND SOME GOLD. IT IS TRUE THAT NEITHER THE QUANTITY OF G OLD HAS BEEN MENTIONED IN THE SUIT NOR QUANTITY OF CASH HAS BEEN ME NTIONED IN THE SUIT, BUT THE FACT OF CASH AND GOLD IN THE LOCKER IS FOUND MENTIONED IN THE SUIT. THE FACT THAT LOCKER WAS SURRE NDERED ON 27 TH JANUARY, 2005 IS ALSO SUPPORTED BY THE CERTIFICATE OF PUNJAB NATIONAL BANK, THE COPY OF WHICH IS LACED AT PAGE 4 OF THE PA PER BOOK. A SETTLEMENT WAS ARRIVED AT BY THE ASSESSEE WITH HIS SISTER AN D THIS FACT IS ALSO NOT DENIED. HOWEVER, THE EXACT QUANTITY OF GOLD AND CASH HAS NOT BEEN MENTIONED ANYWHERE. BUT NON-MENTIO NING OF EXACT QUANTITY OF GOLD AND CASH WILL NOT MEAN THAT T HE VERSION OF THE ASSESSEE THAT HE RECEIVED CASH AND GOLD FROM THE LOCKER MAINTAINED BY HIS FATHER CANNOT ALTOGETHER BE DENIED. KEEPING IN VIEW THE ITA NO.4918/DEL/2009 14 ENTIRETY OF FACTS, IT WILL SERVE THE INTEREST OF JUSTIC E IF CASH OF RS.15 LAC IS ACCEPTED TO BE RECEIVED BY THE ASSESSEE FROM HIS F ATHER AND GOLD UPTO THE VALUE OF RS.5 LAC. THEREFORE, INSTEAD OF ACCEPTING THE CLAIM OF THE ASSESSEE IN ITS ENTIRETY OF A SUM OF RS.35,30 ,000/-, THE CLAIM SHOULD HAVE BEEN ACCEPTED ONLY TO THE EXTENT O F RS.20 LAC I.E., RS.15 LAC ON ACCOUNT OF CASH AND RS.5 LAC ON ACCOUNT O F GOLD. THEREFORE, WE PARTLY ACCEPT THE APPEAL FILED BY THE REVENUE. THE ADDITION OF THE BALANCE AMOUNT OF RS.12,04,000/- IS U PHELD.