M/s. Vinay Kumar, Delhi V. ITO, New Delhi

ITA 5268/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97020 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 01-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P CHANDREKAR
• Keywords: Unexplained cash credit; Opportunity of being heard; Revised return
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H : NEW DELHI BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO . 5268 /DEL/20 11 ASSESSMENT YEAR: 2006 - 07 VINAY KUMAR, VS. INCOME TAX OFFICER, P/O - M/S SUNSHINE ENTERPRISES WARD 38(4), FIRST FLOOR, B - 16, MADHUBAN, VIKAS MARG, ROOM NO. 176, CR BUILDING, DELHI NEW DELHI (PAN: AHCPK5009N ) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. J.P. CHANDREKAR, SR. DR DATE OF HEARING: 01.07.2015 DATE OF PRONOUNCEMENT: 19.08.2015 ORDER PER INTURI RAMA RAO, A.M. : THIS IS AN APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2006 - 07 AGAINST THE ORDER OF CIT(A), DT. 23.09.2011 , RAISING THE FOLLOWING GROUNDS OF APPEAL: I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT (A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING AN EX - PARTE A SSESSMENT FRAMED U/S 144 OF THE I.T. ACT WHICH IS BAD IN LAW, ILLEGAL, UNJUSTIFIED, UNCALLED FOR AND ARBITRARY AND AS SUCH LIABLE TO BE SET - ASIDE. II. THAT THE APPELLANT HAS NOT BEEN PROVIDED WITH PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD BEFORE PASSIN G AN EX - PARTE ASSESSMENT FRAMED U/S 144 OF THE IT ACT AND AS SUCH ACTION OF THE LD. CIT (A) ON CONFIRMING THE ACTION OF A.O. IS AGAINST THE PRINCIPLE OF NATURAL LAW OF JUSTICE, EQUITY AND FAIR PLAY AND ALSO VERY PROVISIONS OF THE LAW. III. THAT THE LD CIT (A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS 12,50,000.00 MADE BY THE A.O. AS 2 UNEXPLAINED CASH CREDIT U/S 68 OF THE I. T. ACT IN AN ARBITRARY & UNCALLED FOR MANNER. IV. THAT THE LD CIT (A) HAS NOT ADJUDICATED GROUNDS OF APPEAL AT S. NO. 1,2,4,8 & 9 ON THE GROUND THAT THE SAME ARE GENERAL IN NATURE WHEREIN THE APPELLANT HAS CHALLENGED THE EX - PARTE ASSESSMENT ORDER FRAMED U/S 144 OF THE ACT TOGETHER WITH ACTION OF THE A.O. IN NOT ISSUING SHOW - CAUSE NOTICE IN CONSONANCE TO T HE PRINCIPLE OF NATURAL LAW OF JUSTICE, EQUITY AND FAIR PLAY. V. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAWAL OF ANY THE GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 2. THE BRIEFLY STATED FACTS OF THE CASE ARE THA T THE APPELLANT IS AN INDIVIDUAL. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006 - 07 WAS FILED ON 31 ST JANUARY, 2007 DECLARING INCOME OF RS. 32,370/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS ON THE BASIS OF AIR INFORMATION. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER RECEIVED INFORMATION FROM AIR THAT THE APPELLANT MADE CASH DEPOSIT OF RS. 12,50,000/ - IN THE BANK ACCOUNT NO. 532 - 1 - 020464 - 2 WITH THE STANDARD CHARTERED BANK, PREET VIHAR, DELHI. THE ASSESSING OFFICER SOUGHT EXPLA NATION FROM THE APPELLANT ABOUT THE SOURCE FOR DEPOSIT OF THE SAID SUM IN THE BANK ACCOUNT. IN REPLY, THE APPELLANT SUBMITTED THAT THE CASH DEPOSITS WERE MADE OUT OF THE SALE PROCEEDS OF THE GOODS IN WHICH HE WAS TRADING I.E. MILK PRODUCTS. BASED ON THIS R EPLY, THE ASSESSING OFFICER DIRECTED THE APPELLANT TO PRODUCE DETAILS OF PURCHASE AND SALE ALONG WITH BILLS/INVOICES ETC. AND DETAILS OF OTHER EXPENDITURE INCURRED IN THE TRADING OF DAIRY PRODUCTS. HOWEVER , THE ASSESSEE DID NOT FURNISH ANY INFORMATION TO THE ASSESSING OFFICER. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION UNDER SECTION 68 OF THE INCOME - TAX ACT, 1961 AS UNEXPLAINED CASH DEPOSITS. BEING AGGRIEVED BY THE ASSESSMENT ORDER, AN APPEAL WAS PREFERRED BEFORE THE CIT(A) WHO VIDE ORDER 3 DATED 23. 09.2011, D ISMISSED THE APPEAL AND CONCLUDED IN PARA 11, WHICH READS AS UNDER: 11. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE ALSO THE REMAND REPORT AND REJOINDER AND I AM INCLINED TO AGREE WITH THE ASSESSING OFFICER THAT 'THE ABOVE FACTS WILL CLEA RLY SHOW THAT THE SO CALLED DAIRY BUSINESS IS NOTHING BUT A STORY MADE OUT TO EXPLAIN THE CASH DEPOSIT MADE IN THE BANK. HAD IT NOT BEEN SO NOTHING PREVENTED THE ASSESSEE IN FURNISHING THE VARIOUS DETAILS CALLED FOR TO SUBSTANTIATE THE CLAIM OF THE ASSESSE E OF THE SO CALLED DAIRY BUSINESS. THE VERY FACT THAT THE ASSESSEE HAS COME OUT WITH A REVISED COMPUTATION, WHICH IS NOT ADMISSIBLE UNDER THE ACT, AS THE ASSESSEE SHOULD HAVE FILED A REVISED RETURN OF INCOME, SHOWED THAT IT WAS TO COVER UP THE SAID DEPOSIT IN THE BANK. IN THIS BACKGROUND THE AO HAD NO OTHER ALTERNATIVE BUT TO TREAT THE SAID CASH DEPOSIT IN THE BANK AS UNEXPLAINED AND MAKE THE ADDITION OF THE SAME IN THE ASSESSMENT ORDER'. IN VIEW OF THESE FINDINGS THE ADDITION MADE BY THE ASSESSING OFFICE R TO THE TUNE OF RS. 12,50,000/ - U/S 68 IS UPHELD. IN THE RESULT, THE APPEAL IS DISMISSED. BEING AGGRIEVED WITH THE AFORESAID ORDER, THE APPELLANT IS BEFORE US WITH THE PRESENT APPEAL. 4. NO BODY WAS PRESENT ON BEHALF OF THE APP ELLANT . THE LD. SR. DR PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTICED FROM THE RECORD THAT THE NOTICES IN THIS CASE WERE DULY SERVED AND THE CASE WAS LAST POS TED FOR 2 6 TH MARCH, 2015. IT WAS DULY INTIMATED TO THE PARTIES THAT THE NEXT DATE OF HEARING WAS 1 ST JULY, 2015. DESPITE THIS INTIMATION, NOBODY REPRESENTED ON BEHALF OF THE APPELLANT. THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL CONSIDERING THE MERITS OF THE CAS E. THE APPELLANT HAD FAILED TO FURNISH THE EVIDENCE, SOURCE FOR CASH DEPOSIT IN THE BANK ACCOUNT OF STANDARD CHARTERED BA NK. EVEN BEFORE THE CIT(A), NO ATTEMPT WAS MADE IN THIS DIRECTION AND 4 THEREFORE, WE HAVE NO OPTION BUT TO CONFIRM THE FINDINGS OF THE C IT(A) IN THIS REGARD. THUS, THE APPEAL FILED BY THE APPELLANT IS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 1 9 T H A U G U S T , 2015. S D / - S D / - ( I.C. SUDHIR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 9 T H A U G U S T , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI