Abhinav Chand Ajmera, New Delhi V. DCIT, New Delhi

ITA 5250/DEL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4222 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: R K GUPTA CA SH SUMIT GOEL
• Keywords: Gift
• Section: 132

Judgement Text

ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.-5250/DEL/2013 ( ASSESSMENT YEAR: 2010-11) ABHINAV CHAND AJMERA C/O RAJ KUMAR & ASSOCIATES, CA, 4435/7, ANSARI ROAD, DARYA GANJ, NEW DELHI. AEVPA1924Q VS DCIT CENTRAL CIRCLE 8, NEW DELHI. ASSESSEE BY SH. R.K. GUPTA, CA SH. SUMIT GOEL, CA REVENUE BY SH. RAVI JAIN, CIT DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE IMPUGNED ORDER DATED 31/07/13 PASSED BY THE LD. CIT (APPEALS)-XXXII, NEW DELHI FOR AY 2010-11. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION WAS DATE OF HEARING 05.05.2016 DATE OF PRONOUNCEMENT 05.08.2016 ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 2 OF 6 CONDUCTED U/S 132 OF THE INCOME TAX ACT, 1961 (IN S HORT THE ACT) AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE O N 31/08/09. DURING THE COURSE OF SEARCH PROCEEDINGS AT THE RESIDENCE OF TH E ASSESSEE AT 58, BAHUBALI ENCLAVE, VIKAS MARG EXTN., DELHI, CASH OF RS. 501,2 00/- WAS FOUND. IN THE STATEMENT RECORDED U/S 132 OF THE ACT, THE ASSESSEE CONTENDED THAT THE CASH REPRESENTED THE CASH WITHDRAWN BY HIM, HIS WIFE AND MOTHER FROM THEIR RESPECTIVE BANK ACCOUNTS, GIFTS RECEIVED BY THE FAM ILY MEMBERS ON FESTIVALS AND OTHER OCCASIONS, MOTHERS INCOME FROM RENDERING MUSIC CLASSES AND ALSO OUT OF THE AMOUNT OF STRIDHAN RECEIVED BY THE ASSESSEES MOTHER AND WIFE. THE ASSESSEE ALSO FILED THE CASH FLOW STATEMENT BEF ORE THE AO TO SHOW THE AVAILABILITY OF CASH AS ON THE DATE OF SEARCH IN WH ICH CASH BALANCES IN THE NAMES OF SMT. EKTA AJMERA AT RS. 221,238/-, IN THE NAME OF SHRI ABHINAV CHANDRA AJMERA AT RS. 267,727/-, IN THE NAME OF SMT . ANILA JAIN RS. 130,155/-, IN THE NAME OF LATE SH. D.C. JAIN RS. 19 ,073/- AND IN THE NAME OF D.C. JAIN (HUF) RS. 39,000/- WERE SHOWN. THE AO OB SERVED THAT THE CASH IN HAND SHOWN IN THE HANDS OF THE SMT. EKTA AJMERA AND SMT. ANILA JAIN WERE CONSIDERED IN THEIR RESPECTIVE INDIVIDUAL ASSE SSMENTS AND HENCE AFTER ACCEPTING THE CASH OF RS. 267,727/- AS SHOWN BY THE ASSESSEE IN HIS CASH FLOW STATEMENT THE BALANCE REMAINING OUT OF RS. 501 ,200/- I.E. RS. 233,473/- (RS. 501,200- RS. 267,727/-) WAS ADDED BACK TO THE INCOME OF THE ASSESSEE ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 3 OF 6 U/S 69A OF THE ACT. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(APPEALS), WHEREIN THE LD. CIT(APPEALS) ALSO HEL D THAT AS THE CASH AVAILABLE WITH THE OTHER FAMILY MEMBERS WAS SEPARAT ELY CONSIDERED AS CASH IN HAND IN THE ASSESSMENT PROCEEDINGS IN THEIR RESP ECTIVE CASES, THE ADDITION MADE BY THE AO UNDER 69A WAS JUSTIFIED. NOW THE AS SESSEE HAS PREFERRED AN APPEAL BEFORE THIS TRIBUNAL AND HAS CHALLENGED T HE IMPUGNED UPHOLDING OF THE ADDITION AND HAS RAISED THE FOLLOWING GROUND OF APPEAL: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE ADDIT ION OF RS. 2,33,473/- U/S 69A AS UNEXPLAINED CASH FOUND DURING THE SEARCH IS ABSOLUTELY ILLEGAL AND UN-SUSTAINABLE IN LAW AS WEL L AS ON MERITS. 4. THE LD. AR SUBMITTED A CHART TO DEMONSTRATE THAT THE TOTAL CASH FOUND DURING THE SEARCH FROM THE FAMILY INCLUDING LOCKERS WAS RS. 717,200/- AS UNDER: NAME RELATION AMOUNT (RS.) FOUND FROM ABHINAV ASSESSEE 501200 RESIDENCE ANILA JAIN MOTHER 85000 LOCKER OF PNB N.K. JAIN RELATIVE 120000 -DO- EKTA AJMERA WIFE 11000 AXIS BANK LOCKER TOTAL 717200 ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 4 OF 6 5. THE LD. AR SUBMITTED THAT AS PER THE STATEMENT O F THE ASSESSEE RECORDED U/S 132(4) OF THE ACT, THE CASH FOUND BELO NGED TO THE VARIOUS FAMILY MEMBERS WHICH INCLUDED THE ASSESSEE, HIS WIF E, HIS MOTHER, ETC. AND ALSO SOME CASH BEING BROUGHT FORWARD FROM BALANCE S HEETS AND, THEREFORE, THE FINDINGS OF THE AO THAT OUT OF THE TOTAL CASH F OUND, RS. 501,200/- FOUND FROM THE RESIDENCE BELONGED TO THE ASSESSEE WAS FAC TUALLY INCORRECT AND UNSUSTAINABLE. THE LD. AR FURTHER SUBMITTED THAT T HE ASSESSMENTS OF THE ASSESSEE AND SIMULTANEOUSLY OF HIS WIFE (SMT. EKTA AJMERA) AND OF HIS MOTHER (SMT. ANILA JAIN) WERE COMPLETED BY THE AO U /S 153A/143(3) FROM AYS 04-05 TO AY 2010-11 IN WHICH THE BALANCE SHEETS IN ALL THE CASES FROM AYS 04-05 TO AY 2010-11 HAVE BEEN ACCEPTED BY THE A O AND THE ASSESSMENT OF THESE OTHER PERSONS HAVE BEEN FRAMED ON THE BASIS OF THE SAID BALANCE SHEETS AND THE CASH FLOW STATEMENTS FROM 01 /04/09 TO 31/08/09 IN WHICH THE TOTAL CASH FOUND DURING THE SEARCH AS PER THESE CASH FLOW STATEMENTS WERE EXPLAINED AS UNDER: 1. BELONGING TO SH. ABHINAV CHANDRA AJMERA RS. 267,7 27/- 2. BELONGING TO SMT. EKTA AJMERA RS. 221,238/- 3. BELONGING TO SMT. ANILA JAIN RS. 130,155/- 4. BELONGING TO LATE SH. D.C. JAIN RS. 19,073/- 5. BELONGING TO SH. D.C. JAIN (HUF) RS. 39,000/- TOTAL CASH BELONGING TO FAMILY RS. 677,193/- ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 5 OF 6 ADD: CASH OF SH. N.K. JAIN FOUND FROM THE LOCKER OF SMT. ANILA JAIN RS. 120,000/- TOTAL CASH AVAILABLE RS. 797,193/- 6. IT WAS SUBMITTED THAT THE ADDITION RELATING TO RS. 1,20,000/- CLAIMED TO BE OF SH. N.K. JAIN HAS ALREADY BEEN MADE IN THE CA SE OF SMT. ANILA JAIN FOR AY 2010-11 AND THUS, THE BALANCE CASH FOUND REMAINS RS. 597,200/- (I.E. RS. 717200/- MINUS RS. 120000/-). AS AGAINST THIS THE CASH IN HAND IS CALCULATED AT RS. 677,193/- AND THUS, THE COMPLETE CASH STOOD FULLY EXPLAINED. 7. THE LD. DR RELIED ON THE ORDER OF THE LD. CIT (A PPEALS) AND SUBMITTED THAT THE LD. CIT (APPEALS) HAS ALREADY CONSIDERED T HE CASH FOUND IN THE CASE OF THE LADIES AND FURTHER THE VERACITY OF THE CASH FLOW STATEMENT FILED AFTER THE DATE OF SEARCH IS QUESTIONABLE AND CANNOT BE RE LIED UPON. IT WAS FURTHER SUBMITTED THAT NONE OF THE PERSONS SEARCHED HAVE FI LED THEIR WEALTH TAX RETURNS AND HENCE THE AVAILABILITY OF CASH WITH THE M CANNOT BE PROVED WITHOUT DOUBT. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PER USED THE MATERIAL ON RECORD. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE LD. CIT (APPEALS) HAS ONLY CONSIDERED THE CASH AVAILABLE WITH SMT. EK TA AJMERA AND SMT. ITA NO. 5250/D/2013 ABHINAV CHAND AJMERA PAGE 6 OF 6 ANILA JAIN BUT HAS NOT CONSIDERED THE AMOUNT OF RS. 120,000/- FOUND FROM THE LOCKER OF SMT. ANILA JAIN AND BELONGING TO SH. N.K. JAIN. THUS, THE WORKING OF THE ASSESSEE IN TERMS OF THE AVAILABLE C ASH IS CORRECT THAT OUT OF A TOTAL CASH BALANCE OF RS. 717,200/- THE BALANCE CAS H FOUND COMES TO RS. 597,200/- AND WHEREAS THE CASH IN HAND AS PER THE C ASH FLOW AND THE BALANCE SHEET COMES TO RS. 677,193/-. THUS, THE CASH STAND S FULLY EXPLAINED. HENCE, WE FIND THAT THE AO WAS PATENTLY WRONG IN TREATING THE AMOUNT OF RS. 233,473/- AS UNEXPLAINED AND THEREFORE, WHILE SETTI NG ASIDE THE ORDER OF THE LD. CIT (APPEALS), WE DIRECT THE AO TO DELETE THIS ADDITION. 9. IN THE FINAL RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.08.2016 SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA ) VICE PRESIDENT JUDICIAL MEMBER DATED: 05.08.2016 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI