ITO, Rewari V. Smt. Sushila Yadav, Rewari

ITA 5295/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1687 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 29-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUJIT KUMAR SENIOR
• Keywords: Additional evidence
• Section: 68

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.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI OM PRAKASH KANT OM PRAKASH KANT OM PRAKASH KANT OM PRAKASH KANT, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 5295/DEL/2014 5295/DEL/2014 5295/DEL/2014 5295/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009 - -- - 10 1010 10 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2, 2,2, 2, REWARI. REWARI. REWARI. REWARI. VS. VS. VS. VS. SMT. SUSHILA Y SMT. SUSHILA Y SMT. SUSHILA Y SMT. SUSHILA Y ADAV, ADAV, ADAV, ADAV, W/O SHRI D.S. YADAV, W/O SHRI D.S. YADAV, W/O SHRI D.S. YADAV, W/O SHRI D.S. YADAV, KANONGO MOHALLA, KANONGO MOHALLA, KANONGO MOHALLA, KANONGO MOHALLA, BAWAL, BAWAL, BAWAL, BAWAL, DISTRICT REWARI. DISTRICT REWARI. DISTRICT REWARI. DISTRICT REWARI. PAN : AABPY7821N. PAN : AABPY7821N. PAN : AABPY7821N. PAN : AABPY7821N. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUJIT KUMAR, SENIOR DR. RESPONDENT BY : SHRI ASHOK KUMAR. DATE OF HEARING : 01.10.201 01.10.201 01.10.201 01.10.2015 55 5 DATE OF PRONOUNCEMENT : 06.10.2015 06.10.2015 06.10.2015 06.10.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA, VP , VP , VP , VP : :: : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 200 9-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), ROHTAK DATED 18 TH JULY, 2014. 2. GROUND NO.1 TO 3 OF THE REVENUES APPEAL ARE AS UN DER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT( A) HAS ERRED IN LAW IN DELETING THE ADDITION AMOUNTING TO RS.13,00,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAI NED CREDIT ENTRIES IN THE BANK ACCOUNT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A ) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCE U/R 4 6A WITHOUT AFFORDING OPPORTUNITY TO THE AO. LD.CIT(A) HAS PASSED ONE LINE DICTATE SAYING IN VIEW OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE ADDITIONAL EVIDENCE HAS ITA-5295/DEL/2014 2 BEEN ADMITTED IN TERMS OF RULE 46A OF THE I.T. RULES . THIS IS IN VIOLATION OF RULE 46A(2). 3. THE LD.CIT(A) HAS ERRED IN IGNORING THE FACT THAT BY SURRENDERING THE AMOUNT VIDE LETTER DATED 28.11.2011 , ASSESSEE PREVENTED THE DEPARTMENT FROM MAKING ENQUIRIES AND THEREFORE HAS AVAILED A BENEFIT BY TAKING THAT POSITION. THE ASSESSEE CAN NOT BE ALLOWED TO CHANGE THIS POSITION AFTERWARDS. 3. LEARNED DR SUBMITTED THAT THE ASSESSEE HAS CREDITED AN AMOUNT OF `13 LAKHS IN HER BANK ACCOUNT AND COULD NOT SATISFA CTORILY EXPLAIN THE SOURCE THEREOF BEFORE THE ASSESSING OFFICER WITH DO CUMENTARY EVIDENCE AND HAS AGREED TO OFFER THE AMOUNT OF `13 L AKHS TO TAX DURING ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT THE ASSESSEE COULD NOT PROVE THAT THE ASSESSEE HAS RECEIVED A LOAN OF `13 LAKH S AND, THEREFORE, THE LOAN OF `13 LAKHS REMAINS UNEXPLAINED AND WAS RIGHTLY TREATED AS UNEXPLAINED INCOME AND ADDED U/S 68 OF THE INCOME-TAX ACT, 1961. HE REFERRED TO THE RELEVANT PORTION OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. 4. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. HE SUBMITTED THAT THE OF FER OF SURRENDER OF `13 LAKHS DURING ASSESSMENT PROCEEDINGS WAS C OUPLED WITH A CONDITION THAT IT SHALL BE SUBJECT TO NO PENA L ACTION. HE SUBMITTED THAT THE OFFER ITSELF WAS NOT ACCEPTED BY TH E ASSESSING OFFICER AS HE HAS INITIATED PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT ON THIS AMOUNT AND, THEREFORE, THE ASSESSEE HAS TO FILE A N APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, I.E., THE CIT( A). HE SUBMITTED THAT LEARNED CIT(A) HAS CALLED FOR THE REMAND REPORT AND, IN THE REMAND REPORT, IT WAS ADMITTED THAT THE IDENTITY PROOF AND BANK STATEMENT OF THE LENDER WAS PRODUCED BY THE ASSESSEE. HE SUBMITTED T HAT THE MONEY HAS COME FROM THE JOINT BANK ACCOUNT OF SMT. M ANSA DEVI AND SUJATA. SMT. MANSA DEVI WAS AGED 80 YEARS OF AGE AND COULD NOT BE ITA-5295/DEL/2014 3 PRODUCED AND THEREFORE, HER DAUGHTER SUJATA APPEARE D BEFORE THE ASSESSING OFFICER AND ACCEPTED THAT SHE HAS ADVANCED A LOAN OF `13 LAKHS TO THE ASSESSEE. HE SUBMITTED THAT THE COPY OF THE BANK ACCOUNT OF THE LENDER SMT. MANSA DEVI AND SUJATA WAS ALSO FIL ED BEFORE THE ASSESSING OFFICER AND THEREFORE, THERE WAS ENOUGH PROOF OF THE IDENTITY AND CREDITWORTHINESS OF THE LENDER. HE SUBMITTED THA T THE ASSESSEE IS A WIDOW AND WAS A BANK EMPLOYEE AND THE LENDER SMT. MANSA DEVI AND SUJATA WERE ASSESSEES FAMILY FRIENDS AND IT IS FOR THE FIRST TIME IN THE LIFE OF THE ASSESSEE THAT SHE HAS TO TAKE MONEY ON LO AN DUE TO ADVERSE CIRCUMSTANCES. HE RELIED ON THE ORDER OF THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PER USED THE ORDER OF THE ASSESSING OFFICER AND LEARNED CIT(A). WE FIND THAT LEARNED CIT(A) HAS CALLED FOR A REMAND REPORT IN THIS CASE. T HE ASSESSEE HAS PLEADED THROUGHOUT THAT MONEY CAME FROM THE JOINT B ANK ACCOUNT OF SMT. MANSA DEVI AND SUJATA. SMT. MANSA DEVI BEING AN AGED LADY OF 80 YEARS COULD NOT BE PRODUCED AND HER DAUGHTER SUJA TA DID APPEAR BEFORE THE ASSESSING OFFICER AND SHE HAS ADMITTED THE FAC T OF LOAN GIVEN TO THE ASSESSEE. IT HAS BEEN CLAIMED BY THE ASSESSEE THAT IT HAS FILED THE COPY OF THE BANK ACCOUNT OF SMT. MANSA DEV I AND SUJATA, WHICH COULD NOT BE CONTROVERTED ON BEHALF OF THE RE VENUE. THE IDENTITY AND CREDITWORTHINESS OF THE LENDER ARE PROVE D BY FILING THE COPY OF THE JOINT BANK ACCOUNT OF SMT. MANSA DEVI AN D SUJATA AND THEIR IDENTITY HAS NOT BEEN DOUBTED BY THE REVENUE. THE C IT(A) HAS RECORDED IN HIS APPELLATE ORDER THAT IN THE REMAND R EPORT SUBMITTED BY THE ASSESSING OFFICER DATED 29.03.2014, IT WAS ADMITTED THAT THE IDENTITY PROOF AND BANK STATEMENT OF THE LENDER WAS P RODUCED. IN THESE FACTS OF THE CASE, SINCE THE LOAN AMOUNT OF `13 L AKHS RECEIVED BY THE ASSESSEE HAS BEEN CONFIRMED BY THE LENDER AND WHO HA S FILED THE DOCUMENTARY EVIDENCE OF THE SOURCE THEREOF BY FILING THE COPY OF JOINT BANK ACCOUNT OF SMT. MANSA DEVI AND SUJATA AND HAS F ILED THEIR ITA-5295/DEL/2014 4 IDENTITY PROOF, WE FIND THAT THERE IS NO MATERIAL BR OUGHT ON RECORD ON BEHALF OF THE REVENUE TO SUGGEST THAT THE TRANSACTION OF LOAN TO THE ASSESSEE WAS NOT GENUINE. THERE BEING NO MISTAKE IN THE ORDER OF LEARNED CIT(A) ON THIS ISSUE, THE SAME IS CONFIRMED AND GROUND NOS.1 TO 3 OF THE REVENUES APPEAL ARE DISMISSED. 6. GROUND NO.4 OF THE REVENUES APPEAL READS AS UNDER: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) HAS ERRED IN DELETING THE ADDITION AMOUNTING TO RS.70,00 0/- MADE BY AO ON ACCOUNT OF THE UNEXPLAINED CASH DEPOSIT S WITHOUT APPRECIATING THAT ASSESSEE HAS BEEN CHANGING HER STAND AND HER EXPLANATION IS WITHOUT ANY SUPPORT. 7. WE HAVE HEARD THE PARTIES. THE CASE OF THE ASSESSEE B EFORE THE LEARNED CIT(A) WAS THAT THE ASSESSING OFFICER HAS NOT EN QUIRED THE FACTS PROPERLY AND HAS MISJUDGED HIMSELF AND THAT THE BANK ACCOUNT IN QUESTION WAS A JOINT ACCOUNT OF THE ASSESSEE WITH HER MO THER-IN-LAW SMT. MISRI DEVI AND THAT THE NEXUS BETWEEN THE WITHDR AWALS AND DEPOSITS WAS EVIDENT WITH THE BANK STATEMENT WHICH WA S FURNISHED BEFORE THE ASSESSING OFFICER. THERE BEING NO MATERIAL TO CONTROVERT THE EXPLANATION OF THE ASSESSEE, WE HOLD THAT THE LEARNED C IT(A) WAS JUSTIFIED IN DELETING THE ADDITION AND HIS ORDER ON T HIS ISSUE IS CONFIRMED. GROUND NO.4 IS ACCORDINGLY DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . DECISION PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2015. SD/- SD/- ( (( ( OM PRAKASH KANT OM PRAKASH KANT OM PRAKASH KANT OM PRAKASH KANT ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-5295/DEL/2014 5 COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -2, REWARI. 2, REWARI. 2, REWARI. 2, REWARI. 2. RESPONDENT : SMT. SUSHILA YADAV, W/O SHRI D.S. YAD AV, SMT. SUSHILA YADAV, W/O SHRI D.S. YADAV, SMT. SUSHILA YADAV, W/O SHRI D.S. YADAV, SMT. SUSHILA YADAV, W/O SHRI D.S. YADAV, KANONGO MOHALLA, BAWAL, DISTRICT REWAR KANONGO MOHALLA, BAWAL, DISTRICT REWAR KANONGO MOHALLA, BAWAL, DISTRICT REWAR KANONGO MOHALLA, BAWAL, DISTRICT REWARI. I.I. I. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR