DCIT, New Delhi V. Smt. Surjeet Kanwar, New Delhi

ITA 4920/DEL/2011

• Counselvise Citation: 492020114 RSA 2011
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 08-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y S KAKKAR
• Assessee Lawyers: B L MITTAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.4920/DEL/2011 4920/DEL/2011 4920/DEL/2011 4920/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -15(1), 15(1), 15(1), 15(1), C.R.BUILDI C.R.BUILDI C.R.BUILDI C.R.BUILDING, I.P.ESTATE, NG, I.P.ESTATE, NG, I.P.ESTATE, NG, I.P.ESTATE, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., B BB B- -- -82, HIMALAYA HOUSE, 82, HIMALAYA HOUSE, 82, HIMALAYA HOUSE, 82, HIMALAYA HOUSE, K.G.MARG, K.G.MARG, K.G.MARG, K.G.MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. PAN : PAN : PAN : PAN : AAAPK4143J. AAAPK4143J. AAAPK4143J. AAAPK4143J. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y.S.KAKKAR, SR.DR. RESPONDENT BY : SHRI B.L. MITTAL, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XVIII, NEW DELHI DATED 21 ST JULY, 2011 FOR THE AY 2008- 09. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENU E :- 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.11,00,000/- U/S 69 MADE BY THE AO AS THE SOUR CE OF CASH DEPOSIT OF RS.11,00,000/- EXPLAINED TO BE OUT OF THE RECEIPT ON ACCOUNT OF AGREEMENT TO SELL ENTERED INT O MORE THAN ONE YEAR PRIOR IS CLEARLY AN AFTER THOUGHT OF THE ASSESSEE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE WA S UNLIKELY TO WITHDRAW RS.6 LACS DURING THE PERIOD OF ONE YEAR IF RS.11 LACS CASH IN HAND WAS AVAILABLE WITH HIM. ITA-4920/DEL/2011 2 3. THAT THE APPELLANT CRAVES TO BE ALLOWED TO ADD A NY FRESH GROUNDS OF APPEAL AND/OR DELETED OR AMEND ANY OF THE GROUND OF APPEAL. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED DR THAT AS PER AGREEMENT TO SELL, THE ASSESSEE HAD REC EIVED THE CASH OF ` 11 LAKHS ON 26 TH SEPTEMBER, 2006 WHILE THE CASH IN THE BANK ACCOUNT OF THE ASSESSEE WAS DEPOSITED ON 6 TH NOVEMBER, 2007 - ` 6 LAKHS AND, ON 8 TH NOVEMBER, 2007 - ` 5 LAKHS. THUS, THE DEPOSIT OF CASH IN THE BANK WAS AFTER MORE THAN A YEAR FROM AGREEMENT TO S ELL. THAT FROM THE BANK ACCOUNT OF THE ASSESSEE, THE ASSESSING OFF ICER HAS NOTICED THAT DURING THE PERIOD APRIL, 2007 TO MARCH, 2008, THE ASSESSEE HAD WITHDRAWN ON VARIOUS DATES THE SMALL AMOUNTS RANGIN G BETWEEN ` 10,000/- TO ` 50,000/-. THAT NO PRUDENT PERSON WOULD KEEP THE CA SH OF ` 11 LAKHS AT HOME AND WITHDRAW THE SMALL AMOUNTS FRO M THE BANK. IT IS AGAINST HUMAN PROBABILITY. IN VIEW OF THE ABOVE , THE ASSESSING OFFICER RIGHTLY CAME TO THE CONCLUSION THAT THE CAS H OF ` 11 LAKHS RECEIVED FROM AGREEMENT TO SELL WAS NOT AVAILABLE W ITH THE ASSESSEE FOR DEPOSITING IN THE BANK IN THE MONTH OF NOVEMBER , 2007 AND LEARNED CIT(A) DELETED THE ADDITION WITHOUT PROPERLY CONSID ERING THE FACTS OF THE CASE. IN SUPPORT OF HER CONTENTION, SHE RELIED UPON THE FOLLOWING DECISIONS:- (I) SUMATI DAYAL VS. CIT [1995] 214 ITR 801 (SC). (II) CIT, WEST BENGAL-II VS. DURGA PRASAD MORE [1971] 82 ITR 540 (SC). 4. IN REPLY, IT IS STATED BY THE ASSESSEES COUNSEL THAT AFTER THE AGREEMENT TO SELL, SOME DIFFERENCE AROSE BETWEEN TH E ASSESSEE AND THE BUYER AND THERE WAS UNCERTAINTY WITH REGARD TO ACTUAL TRANSACTION OF THE PROPERTY. THEREFORE, THE ASSESSEE DID NOT U TILIZE THE AMOUNT RECEIVED BY WAY OF AGREEMENT TO SELL. THAT ULTIMAT ELY, THE BUYER FILED A DECREE OF SPECIFIC PERFORMANCE BEFORE HON'BLE DEL HI HIGH COURT AND THE ASSESSEE HAD TO DEPOSIT THE SUM OF ` 26 LAKHS RECEIVED AS AN ITA-4920/DEL/2011 3 ADVANCE WITH THE HON'BLE DELHI HIGH COURT TOWARD RE FUND OF ADVANCE MONEY. THAT NON-UTILIZATION OF THE ADVANCE RECEIVE D FROM AGREEMENT TO SELL DURING THE PENDENCY OF ACTUAL TRANSFER OF T HE PROPERTY WAS A PRUDENT ACT AND EVERY PRUDENT PERSON SHOULD DO THE SAME. THEREFORE, THE CONTENTION OF THE LEARNED DR THAT WITHDRAWAL OF THE MONEY FOR HOUSEHOLD EXPENDITURE FROM THE BANK IS BEYOND HUMAN PROBABILITY IS ABSOLUTELY INCORRECT. TILL THE PROPERTY IS ACTUALL Y TRANSFERRED, THE AMOUNT RECEIVED BY THE ASSESSEE WAS ONLY AN ADVANCE AND BY NOT SPENDING THE ABOVE AMOUNT AND KEEPING IT SAFE WITH HER WAS ONLY A PRUDENT HUMAN BEHAVIOUR. THEREFORE, BOTH THE DECIS IONS RELIED UPON BY THE LEARNED DR WOULD NOT BE APPLICABLE. HE ALSO RELIED UPON THE ORDER OF LEARNED CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE REC EIPT OF ` 11 LAKHS BY THE ASSESSEE BY WAY OF AGREEMENT TO SELL DATED 26 TH SEPTEMBER, 2006 IS NOT IN DISPUTE. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE DEPOSITED THE SUM OF ` 11 LAKHS IN CASH IN THE BANK ACCOUNT IN THE MONTH O F NOVEMBER, 2007. IT IS ALSO NOT IN DISPUTE THAT THE RE WAS SOME DISPUTE BETWEEN THE ASSESSEE AND THE BUYER AND, THEREFORE, ULTIMATELY, THE SALE DID NOT TAKE PLACE AS PER AGREEMENT TO SELL AN D ASSESSEE HAD TO DEPOSIT ` 26 LAKHS WITH HON'BLE DELHI HIGH COURT ON 25 TH FEBRUARY, 2009. THEREFORE, THE ONLY QUESTION IS WHETHER THE SUM OF ` 11 LAKHS RECEIVED BY THE ASSESSEE IN SEPTEMBER, 2006 WAS AVAILABLE WI TH THE ASSESSEE FOR RE-DEPOSITING IN THE BANK IN NOVEMBER, 2007. A DMITTEDLY, NO EVIDENCE HAS BEEN POINTED OUT BY THE REVENUE THAT T HE ASSESSEE INVESTED THE ABOVE SUM OF ` 11 LAKHS AT ANY OTHER PLACE OR SPENT ANYWHERE ELSE. THE PRESUMPTION OF THE REVENUE THAT THE ABOVE AMOUNT MUST HAVE BEEN UTILIZED IS BASED ON THE CASH WITHDRAWAL DURING APRIL, 2007 TO MARCH, 2008 BY THE ASSESSEE. HOWEVER, MERELY BECAUSE THE ASSESSEE, DESPITE KEEPING THE SUM OF ` 11 LAKHS AT HOME WITHDREW THE CASH FOR HOUSEHOLD EXPENDITURE, IT CAN NOT BE PRESUMED ITA-4920/DEL/2011 4 THAT THE CASH OF ` 11 LAKHS WAS NOT LYING WITH HER, ESPECIALLY WHEN TH E AGREEMENT TO SELL HAS RUN INTO DISPUTE. THE FACTS OF THE CASES RELIED UPON BY THE LEARNED DR ARE ALTOGETHER DIFFERENT AND , THEREFORE, WILL NOT BE APPLICABLE TO THE CASE UNDER APPEAL BEFORE US. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF TH E CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). THE SAME IS SUSTAINED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER, 2013. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL M MM MEMBER EMBER EMBER EMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 11.10.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -15(1), C.R.BUILDING, I.P.ESTATE, 15(1), C.R.BUILDING, I.P.ESTATE, 15(1), C.R.BUILDING, I.P.ESTATE, 15(1), C.R.BUILDING, I.P.ESTATE, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, SMT. SURJEET KANWAR, C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., C/O RANAQ & COMPANY PVT.LTD., B BB B- -- -82, HIMALAYA HOUS 82, HIMALAYA HOUS 82, HIMALAYA HOUS 82, HIMALAYA HOUSE, K.G.MARG,NEW DELHI E, K.G.MARG,NEW DELHI E, K.G.MARG,NEW DELHI E, K.G.MARG,NEW DELHI 110 001. 110 001. 110 001. 110 001. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR