KAVITA VERMA W/o ANUJ KUMAR, MEERUT V. ITO, WARD- 1(3), MEERUT

ITA 5178/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2748 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: V K GOEL
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 5178/DEL/2018 ASSESSMENT YEAR: 2009-10 SMT. KAVITA VERMA W/O ANUJ KUMAR, VILLAGE-KALYANPUR, NEAR PURA MAHADEV, MEERUT. PAN NO. DKIPD4039R VS ITO WARD-1(3), MEERUT. APPELLANT RESPONDENT ASSESSEE BY SHRI V.K. GOEL, ADV. REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 29.06.2018 OF THE LD. CIT(APPEALS)-MEERUT REL ATING TO AY 2009-10. 2. THIS IS THE SECOND ROUND OF LITIGATION BEFORE TH E TRIBUNAL. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 15.03.2013 DETERMINING THE TOTAL INCOME AT RS. 15,0 2,100/-, WHEREIN, ADDITION OF RS. 13,25,000/- WAS MADE AS UN EXPLAINED DATE OF HEARING 09.05.2019 DATE OF PRONOUNCEMENT 12.06.2019 2 ITA NO . 5178/DEL/2018 CASH DEPOSIT IN THE BANK ACCOUNT. THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE CIT(A) WHO CONSIDERED RS. 8,25,00 0/- OUT OF ADDITION OF RS. 13,25,000/- AS EXPLAINED. FOR THE BALANCE AMOUNT OF RS. 5,00,000/- THE ASSESSEE FILED AN APPEAL BEFO RE THE TRIBUNAL AND THE TRIBUNAL VIDE ITA NO. 1069/DEL/2015 ORDER D ATED 15.03.2016 RESTORED THE ISSUE TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS. THE RELEVANT PORTION OF THE ORDER OF T HE TRIBUNAL READS AS UNDER: 5. AFTER HAVING GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW, WE FIND THAT THE LD. CIT(APPEALS) HAS SUSTAI NED THE ADDITION OF RS. 5 LAKHS ON THE BASIS THAT THE ASSES SING OFFICER HAS MADE ELABORATE DISCUSSION REGARDING THE VERACITY OF SOURCES OF FUND AND THE AO HAS DEMONSTR ATED THAT NO WITHDRAWAL WAS MADE FROM THE BANK ACCOUNTS OF THE RELATIVES IN THE MONTH OF JANUARY, FEBRUARY AND UP TO 6 TH MARCH, 2009 EXCEPT SMALL WITHDRAWAL OF RS. 13,000/ -. ON PERUSAL OF ASSESSMENT ORDER, WE FIND THAT AT PAG E NO. 3 IN PARA NO. 4, THE AO HAS GIVEN THE SAVING BANK ACC OUNT NUMBERS OF THE CREDITORS SHRI SATBIR SINGH, SHRI GU LBIR SINGH, HUSSAN SINGH, SHRI YASHBIR, SHRI MOHIT AND O RS. IN THE ORIENTAL BANK OF COMMERCE WITH THIS FINDING THA T IN THE CASE OF SATBIR, SHRI YASHBIR AND SMT. BABIT MEN TIONED IN COLUMN NO. 2 AT SR. NO. 1 OF THE TABLE, EXCEPT R S. 13,000/- ON 24.02.2009, THERE WAS NO WITHDRAWAL IN THE MONTHS OF JANUARY, FEBRUARY AND UPTO 06.03.2009. AGAIN, AT SL. NO. 4 OF THE TABLE IN COLUMN NO. 2 UN DER SHRI YASHBIR, BABITA AND MOHIT WITH THIS REMARK THAT NO WITHDRAWAL IN THE MONTH OF JANUARY, FEBRUARY AND UP TO 06.03.2009 WAS THERE. THUS, IT IS NOT CLEAR THAT T HE HOLDERS MENTIONED AT SL. NOS. 1 & 4 OF THE TABLE WE RE JOINT BANK ACCOUNTS IN INDIVIDUAL CAPACITY. THE CASE OF THE ASSESSEE IS THAT THESE PERSONS ARE AGRICULTURIST AN D IN SUPPORT EVIDENCE REGARDING THEIR LANDHOLDINGS WERE FURNISHED AND THEY HAD APPEARED BEFORE THE ASSESSIN G OFFICER AND CONFIRMED THE CLAIMED CONTRIBUTION BY T HEM TO 3 ITA NO . 5178/DEL/2018 THE ASSESSEE. THUS, IN THE INTEREST OF JUSTICE AND TO CLARIFY AS TO WHETHER PERSONS SHOWN AT SR. NOS. 1 & 4 OF TH E TABLE ARE HOLDING THEIR BANK ACCOUNTS IN THEIR INDIVIDUAL CAPACITY AND IF ANY AMOUNT AS CLAIMED BY THEM WERE WITHDRAWN FROM THEIR ACCOUNTS OR NOT, WE FIND IT FIT TO SET A SIDE THE MATTER TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH AFTER VERIFYING THE ABOVE ASPECTS AND AFTER AFFORDI NG OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AS SESSEE IS ALSO DIRECTED TO COOPERATE WITH THE ASSESSING OF FICER IN EARLIER DISPOSAL OF THE MATTER. THE GROUND IS THUS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. 3. SUBSEQUENTLY, AFTER THE MATTER WAS RESTORED BY T HE TRIBUNAL TO THE FILE OF AO, THE AO ISSUED NOTICE U/S 142(1) TO THE ASSESSEE FOR FURNISHING DOCUMENTS, EVIDENCES AND EXPLANATION IN SUPPORT OF HER CLAIM BEFORE THE TRIBUNAL. REJECTING THE VARIO US EXPLANATIONS GIVEN BY THE ASSESSEE AND OBSERVING THAT NO SUFFICI ENT WITHDRAWAL HAD BEEN MADE BY THE CONCERNED PERSONS DURING THE M ONTHS OF JANUARY, FEBRUARY AND UPTO 6 TH MARCH, 2009 EXCEPT MEAGER WITHDRAWAL, THE AO MADE THE ADDITION OF RS. 5 LAKHS AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. FOR THE SAKE OF CLARITY, THE RELEVANT OBSERVATIONS OF THE AO AT PAG E 3 OF THE ORDER READ AS UNDER: ON PERUSAL OF THE ABOVE REPLY AND COPY OF BANK STATEMENTS AS PLACED ON RECORD IT WAS FOUND THAT NO WITHDRAWAL HAD BEEN MADE DURING THE MONTH OF JANUAR Y, FEBRUARY AND UPTO 6 TH MARCH 2009 EXCEPT WITHDRAWAL OF RS. 13,000/-. BESIDES, ALL THE ACCOUNTS WERE JOINT ACCOUNT EXCEPT MOHIT (5230) FROM WHICH NO WITHDRAWAL WAS MA DE AND HUSHAN SINGH (1390) ACCOUNT WAS OPENED ONLY ON 17.12.2009 I.E. MUCH LATER FROM THE DATE OF MARRIAG E OF THE ASSESSEE. THEREFORE, THE CREDITWORTHINESS OF THE P ERSONS 4 ITA NO . 5178/DEL/2018 WHO GAVE THE CASH CREDIT WAS NOT PROVED SO, INCOME OF THE ASSESSEE IS COMPUTED AS UNDER: INCOME AS PER RETURN RS. 1,77,100/- UNEXPLAINED CASH DEPOSITS IN THE BANK RS. 5,00,000 /- ACCOUNT AS DISCUSSED ABOVE ___________ RS. 6,77,100 /- 4. IN APPEAL, THE CIT(A) UPHELD THE ACTION OF THE A O BY OBSERVING AS UNDER: 3.4 I HAVE PERUSED THE ORDER OF THE LD. ITAT AND THE CONSEQUENTIAL ASSESSMENT ORDER PASSED BY THE AO. T HE DIRECTIONS ARE TO FIND OUT WHICH OF THE ACCOUNTS OF PARTIES AT SERIAL NO. 1 & 4 OF THE TABLE GIVEN IN THE ASSES SMENT ORDER DATED 15.03.2013 ARE BEING HELD IN INDIVIDUAL CAPACITY AND WHETHER THERE IS ANY WITHDRAWAL FROM S UCH ACCOUNTS. NOW FROM THE PERUSAL OF THE SUBMISSION GIVEN BY THE LD. AR, I FIND THAT THE LD. AR HAS REFERRED TO ACCOUNT NO. 04722010005450 WITH ORIENTAL BANK OF COMMERCE AND HAS TAKEN CREDIT OF WITHDRAWALS ON DIFFERENT DATES STRETCHING BACK TO MORE THAN 6 MONTHS FROM THE RELE VANT DATE 06.03.2009. HOWEVER, ON VERIFICATION OF THE R ECORD IT IS FOUND THAT THIS ACCOUNT NO. IS A JOINT ACCOUNT O F SATVEER, VASHVEER AND BABITA AND NOT INDIVIDUAL ACCOUNT OF A NY OF THESE PERSONS PLACED AT SL. NO. 1, THEREFORE, IT IS NOT RELEVANT TO THE DIRECTIONS GIVEN BY THE LD. ITAT AS IT IS A JOINT ACCOUNT AND NOT AN ACCOUNT IN INDIVIDUAL CAPA CITY FROM WHERE WITHDRAWALS HAVE BEEN MADE. FURTHER, ON VERIFICATION OF ACCOUNT AT SERIAL NO. 4 IT IS SEEN THAT ACCOUNT NO. 04725111001741 WITH ORIENTAL BANK OF COMMERCE IS HELD JOINTLY BY VASHVEER, BABITA & MOHI T THEREFORE, IT IS JOINT ACCOUNT FROM WHERE AS PER AR SUBMISSIONS ONLY RS. 30,000/- WAS WITHDRAWN. BUT T HIS WITHDRAWAL WHICH IS DATED 14.10.2008 IS ALMOST 6 MO NTHS BEFORE FROM THE RELEVANT DATE AND IS A JOINT ACCOUN T FOR WHICH NO CREDIT CAN BE GIVEN IN TERMS OF EXPLICIT D IRECTIONS OF THE LD. ITAT WHICH HAS STATED CLEARLY THAT PERSO NS NAMED AT SL. NO. 1 & 4 ARE TO BE CHECKED FOR THEIR INDIVIDUAL ACCOUNTS AND TO SEE WHETHER THERE IS ANY 5 ITA NO . 5178/DEL/2018 WITHDRAWAL FROM SUCH ACCOUNTS THAT COULD HAVE GONE ONTO EXPLAIN THE IMPUGNED SUM OF RS. 5 LACS. IN VIEW OF THE FORGOING DISCUSSION, I DO NOT FIND A NY EVIDENCE WHATSOEVER ADDUCED BY THE LD. AR IN TERMS OF DIRECTIONS OF THE LD. ITAT THAT COULD EXPLAIN THE S OURCE OF IMPUGNED ADDITION OF RS. 5 LACS. 5. AGGRIEVED WITH SUCH ORDER OF CIT(A), THE ASSESSE E IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S: 1. THAT THE AO IS IN ERROR IN FOLLOWED THE OBSERVATIO N OF CIT(A) INSTEAD OF DIRECTION GIVEN BY ITAT, HENCE AD DITION OF RS. 5,00,000/- IS ARBITRARY, UNJUST AND NOT ACCORDI NG TO LAW AND CIT(A) ALSO IN ERROR IN CONFIRMING THE SAME . 2. THAT THE AO IGNORED THE REPLY OF THE ASSESSEE AND A S PER ASSESSEE REPLY THE CASH WAS WITHDRAWN OF RS. 5,01,0 00/-. THEREFORE, ADDITION MADE BY THE AO OF RS. 5,00,000/ - IS AGAINST THEIR FACTS AND LAW AND CIT(A) ALSO IN ERRO R IN CONFIRMING THE SAME. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELET E ANY GROUNDS DURING THE APPEAL PROCEEDING. 6. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I HAVE ALSO GONE THROUGH THE OBSERVATION OF THE TRIBUNAL IN THE FIRS T ROUND OF LITIGATION, WHEREIN, THE MATTER WAS RESTORED TO THE FILE OF AO WITH CERTAIN DIRECTIONS THE CONTENTS OF WHICH HAS ALREAD Y BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS. I FIND THA T THE ASSESSEE HAS FAILED TO DEMONSTRATE WITH EVIDENCE TO THE SATI SFACTION OF THE AO OR THE CIT(A) AND EVEN BEFORE ME TO SUBSTANTIATE WITH COGENT EVIDENCE THAT THE PERSONS WHO HAD ADVANCED MONEY TO THE ASSESSEE HAD SUFFICIENT SOURCE TO EXPLAIN THE SAME. THE WITHDRAWAL FROM THE BANK ACCOUNT SHOWS THAT THERE I S HARDLY ANY WITHDRAWAL TO EXTEND THE CREDIT OF RS. 5 LAKHS TO T HE ASSESSEE BY 6 ITA NO . 5178/DEL/2018 THE LOAN CREDITORS. IN ONE ACCOUNT HELD JOINTLY BY YASHVEER, BABITA AND MOHIT WHICH IS A JOINT ACCOUNT THERE IS ONLY A WITHDRAWAL OF RS. 30,000/- ON 14.10.2008 WHICH IS ALMOST SIX MONT HS BEFORE THE RELEVANT DATE. THEREFORE, THE ASSESSEE IN MY OPINI ON HAS FAILED TO DISCHARGE THE ONUS CAST ON HER AS PER THE DIRECTION S OF THE TRIBUNAL. THE VARIOUS WITHDRAWALS AS SHOWN BY THE ASSESSEE WHICH IS REPRODUCED BY THE AO AT PAGE 2 OF THE ASSE SSMENT ORDER SHOWS THAT WITHDRAWALS WERE MADE STARTING FROM JULY 2008 TILL FEBRUARY, 2009 AND IT IS SEEN THAT THERE ARE SYSTEM ATIC PERIOD WISE WITHDRAWAL OF DIFFERENT AMOUNTS AND, THEREFORE , IT CANNOT BE SAID THAT THE ABOVE PERSONS HAD WITHDRAWN ON 12 DIF FERENT OCCASIONS HAVE KEPT THE MONEY WITH THEMSELVES FOR E XTENDING LOAN TO THE ASSESSEE. IT IS AGAINST ALL HUMAN PROBABILI TIES THAT A PERSON WILL WITHDRAW AMOUNT SUCH AS RS. 4,500/-, 5,500/-, 10,000/-, 15,000/-, 13,000/-, 44,000/-, 40,000/-, ETC. IN EVE RY MONTH AND KEEP THE SAME FOR EXTENDING LOAN OF RS. 5 LAKHS TO THE ASSESSEE. SINCE THE ASSESSEE, IN MY OPINION, IN THE INSTANT C ASE FAILED TO DEMONSTRATE WITH ANY COGENT EVIDENCE THAT YASHVEER, BABITA AND MOHIT HAVING THE JOINT ACCOUNT HAD IN FACT GIVEN TH E MONEY TO THE ASSESSEE BY WITHDRAWING FROM THEIR ACCOUNT ON A SIN GLE DATE JUST BEFORE THE DATE OF THE MARRIAGE, THEREFORE, I DO NO T FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) SUSTAINING THE ADDITION. ACCORDINGLY, THE SAME IS UPHELD AND THE GROUND RAIS ED BY THE ASSESSEE IS DISMISSED. 7 ITA NO . 5178/DEL/2018 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/06/2019 SD/- (R.K. PA NDA) ACCOUNTANT MEMBER DATED: 12/06/2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 10.06.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.06.2019/ 12.06.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 12.6.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 12.6.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 12.6.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 12.6.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12.6 .2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 8 ITA NO . 5178/DEL/2018