Sh. Thomas Mathew, New Delhi V. ITO, Rohtak

ITA 5381/DEL/2010

• Counselvise Citation: 538120114 RSA 2010
• Duration Of Justice: 1 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 27-11-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SYAMAL DUTTA SENIOR
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Income from undisclosed sources; Principle of natural justice; Peak credit; Additional evidence
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) SHRI R.P. TOLANI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5381/DEL./2010 (ASSESSMENT YEAR : 2006-07) SHRI THOMAS MATHEW, VS. ITO, WARD 1, R/O B-2/108, PASCHIM VIHAR, ROHTAK. NEW DELHI. (PAN : ACYPM2936M) (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, ADVOCATE REVENUE BY : SHRI SYAMAL DUTTA, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM TH E ORDER OF CIT (APPEALS), ROHTAK DATED 05.10.2010 FOR THE ASSESSME NT YEAR 2006-07. 2. THE ASSESSEE WAS AN EMPLOYEE OF ALL INDIA RADIO AND DURING THE RELEVANT TIME, HE WAS POSTED AT ROHTAK. THE ASSESS ING OFFICER FOUND THAT THERE WERE CERTAIN DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE KEPT WITH UTI BANK AND ICICI BANK. THE ASSESSING OFFICER MADE AN ADDITION OF RS.10,99,069/-. THE CIT (A) CONFIRMED THE ADDITION . 3. NOW, THE ASSESSEE IS IN APPEAL BEFORE US BY TAKI NG THE FOLLOWING GROUNDS :- ITA NO.5381/DEL./2010 2 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN TREATING THE SUM OF RS.10,99,069/- DEPOSITED IN THE BANK ACCOUNT OF ASS ESSEE AS INCOME FROM UNDISCLOSED SOURCES U/S 69 A OF THE INCOME TAX ACT AND THAT TOO WITHOUT CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MA KING THE IMPUGNED ADDITION AND IN FRAMING THE IMPUGNED O RDER IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, BY RECO RDING THE INCORRECT FACTS AND FINDINGS AND THE SAME IS NOT SU STAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS AND NOT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJU DICE TO EACH OTHER. 4. AFTER HEARING BOTH THE SIDES, WE FIND THAT ASSES SEE HAS REQUESTED TO ADMIT THE ADDITIONAL EVIDENCES IN THE FORM OF SUMMA RY OF ACCOUNTS WITH UTI BANK, ICICI BANK AND HDFC BANK, DAILY SUMMARY OF CA SH TRANSACTIONS, MUTUAL FUND ACCOUNT, PERSONAL PROFIT & LOSS ACCOUNT SHOWING PROFIT ON SALE OF SHARES AND BALANCE SHEET, ETC.. THE ASSESSEE COULD NOT FILE THESE EVIDENCES AS IN MAY 2007, HE WAS TRANSFERRED FROM ROHTAK TO DELH I AND WAS ON LEAVE FROM 20.11.2008 TO 07.12.2008 AND HAD GONE TO HIS HOMETO WN, KERALA. THERE WAS ALSO A DISPUTE IN THE FAMILY AND HE WAS FREQUENTLY ATTENDING THE INVESTIGATION WITH THE POLICE. HE MADE AN APPLICATION UNDER RULE 46A OF THE INCOME-TAX RULES. THE CIT (A) REJECTED THE ASSESSEES CONTENT ION BY HOLDING THAT ITA NO.5381/DEL./2010 3 ASSESSEE HAS MADE GENERAL ARGUMENTS WITH REGARD TO THE DEPOSITS IN THE BANK AND STATING THAT NO WORTHWHILE EXPLANATION WAS OFFE RED. THE ASSESSEES PLEA FOR WORKING OUT THE PEAK CREDIT WAS ALSO NOT ACCEPT ED. THE CIT (A) ALSO RECORDED THAT MERE EXISTENCE OF WITHDRAWALS BEFORE DEPOSIT WOULD NOT AUTOMATICALLY ENTITLE THE ASSESSEE TO CLAIM PEAK IN VESTMENT WITHOUT PRODUCING EVIDENCE REGARDING NATURE AND SOURCE OF ENTRIES AND CIRCULATION OF CAPITAL FOR BUSINESS PURPOSES AND DISMISS THE ASSESSEES APPEAL . IN OUR CONSIDERED VIEW, THE ASSESSEE DESERVES FOR SUBMITTING THE FURTHER DE TAILS, IF REQUIRED BY THE REVENUE AUTHORITIES, PRIOR TO DISMISSING HIS PLEA I N RESPECT OF THE PEAK CREDIT AS THERE WAS EXISTENCE OF CASH WITHDRAWALS PRIOR TO THE DEPOSITS IN THE BANK. THEREFORE, WE FIND IT APPROPRIATE TO REMIT THE ISSU E TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING DE NOVO. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF NOVEMBER, 2012. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH DAY OF NOVEMBER, 2012/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), ROHTAK. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.