ITO, New Delhi V. Sh. Vijay Kumar, New Delhi

ITA 5468/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91337 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 26-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARUN SEEM
• Assessee Lawyers: R S ADLAKHA
• 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 . 5468 /DEL/201 2 ASSESSMENT YEAR: 2007 - 08 INCOME TAX OFFICER, VS. SH. VIJAY KUMAR, WARD - 46(1), NEW DELHI B - 4/71, LAWRENCE ROAD, NEW DELHI. (PAN: AIQPK0928B ) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TARUN SE EM, SR. DR RESPONDENT BY : SH. R.S. ADLAKHA, ADV. DATE OF HEARING: 26.06.2015 DATE OF PRONOUNCEMENT:17 .07.2015 ORDER PER INTURI RAMA RAO, A.M. : THIS APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2007 - 08 AGAINST THE ORDER OF CIT(A), DATED 09.08.2012 RAISING THE FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN I. DELETING THE ADDITION OF RS. 19,00,000/ - AS RIGHTLY MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS U/S 68 OF THE I.T. ACT WHICH REMAINED UNEXPLAINED. II. DELETING THE ADDITION IGNORING THE PURPOSES FOR WHICH WITHDRAWAL WAS MADE BY THE ASSESSEE. III. DELETING THE ADDI TION OF RS. 19,00,000/ - IGNORING THE FACT THAT ALL THE TRANSACTIONS HAVE BEEN ENTERED INTO BETWEEN THE ASSESSEE AND HIS VARIOUS ORGANIZATIONS WHICH WERE HAVING THE SAME ADDRESSES OF THE ASSESSEE I.E. B - 5/71A, KESHAV PURAM, LAWRENCE ROAD, NEW DELHI AND WHIC H ACTED AS A CONDUIT TO GIVE THE BENEFIT OF THE ASSESSEE. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT IS AN INDIVIDUAL AND HE FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 ON 26 TH JULY, 2007 DECLARING AN INCOME OF RS. 1,04,130/ - . SUBSEQUENTLY, THE CASE WAS TAKEN FOR THE SCRUTINY ASSESSMENT AND THE ASSESSMENT CAME TO BE COMPLETED UNDER SECTION 144 OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE AC T ) VIDE ORDER DT. 30 TH DECEMBER, 2009 AT A TOTAL INCOME OF RS. 47,05,130/ - . WHILE DOING SO, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 46,00,000/ - AS UNEXPLAINED CASH DEPOSITS. BEING AGGRIEVED, AN APPEAL WAS FILED BEFORE THE CIT(A) - XXX, NEW DELHI, WHO VIDE ORDER DATED 09.08.2012 ALLOWED THE APPEAL IN PART. BEING AGGRIEVED, THE REVENUE IS BEFORE US WITH THE PRESENT APPEAL. 3. IT WAS CONTENDED BEFORE THE CIT(A) THAT THE CASH WAS DEPOSITED ONLY RS. 23 LAKHS NOT RS. 46 LAKHS AS ADOPTED BY THE ASSESSING OF FICER. IT WAS SUBMITTED T HAT THE ASSESSE WAS ONE OF THE D IRECTORS OF THE COMPANY CALLED CHYRIS INFORMATION MANAGEMENT SERVICES PV T. LTD. AND AT THE TIME OF OPENING OF THE BANK ACCOUNT IN THE NAME OF THE COMPANY PAN OF THE RESPONDENT ASSESSEE WAS QUOTED AND THEREFORE THE CASH DEPOSITS IN THE BANK ACCOUNT MAINTAINED IN THE NAME OF THE COMPANY DID NOT BELONG TO THE ASSESSEE. THIS EXPLANATION WAS ACCEPTED BY THE CIT(A) AND COMING TO TH E ISSUE OF CASH DEPOSIT IN BANK OF INDIA, MAYA PURI INDUSTRIAL BRANCH, NEW DE LHI, THE CIT(A) HAS GIVEN ITS FINDINGS WHICH ARE AS UNDER : THE APPELLANT STATED THAT SH. VIJAY KUMAR IS ONE OF THE DIRECTOR OF THE COMPANY. THE COMPANY AND SH.VIJAY KUMAR ARE SEPARATE & DISTINCT ENTITY AND HAS NO RELATION WITH EACH OTHER. THAT THE PAN OF THE COMPANY IS AABCN6119M. THAT THE BANK OBTAINED THE PAN OF SH. VIJAY KUMAR, SINCE IT IS THE REQUIREMENT OF RBI FOR KYC NORMS. THAT 3 IN M/ S VK ENTERPRISES, THE PROP. IS SH GHANSHYAM DASS HAVING PAN AAJPD8487D AND NOT SH VIJAY KUMAR AS ALLEGED IN THE REMAND REPORT. IN CHYRISH INFORMATION & MANAGEMENT SERVICES PVT. LTD. SH. VIJAY KUMAR IS ONE O F THE DIRECTOR OF THE COMPANY. T HE REPORT GIVEN IS WITHOUT LOOKING INTO THE FACTS AND PASSED THE ORDERS IN HASTE AND WITHOUT APPLICATION OF MIND IN SPITE OF THE COMPLETE FACTS SUBMITTED BEFORE THE AO. THE AO HAS NOT FOUND ANYTHING ADVERSE AGAINST THE ASSESSEE AND UPHOLD THE ADDITIONS MAD E TO THE INCOME HIMSELF. THEREFORE THE ADDITIONS MADE TO THE INCOME ARE LIABLE TO BE DELETED, AS ARGUED BY AR. THE TABLE OF SOURCE OF CASH DEPOSIT OUT OF WITHDRAWALS IS SHOWN BELOW. STATEMENT OF WITHDRAWALS FROM BANK OF INDIA, MAYA PURI INDUSTRIAL BRANC H, NEW DELHI OF SHRI VIJAY KUMAR DURING THE YEAR 2006 - 07 DATE PARTICULARS AMOUNT WITHDRAWAL AMOUNT DEPOSITED 4.4.2006 CASH WITHDRAWN 500000.00 - 25.6.2006 COLLECTIONS 250000.00 - 26.6.2006 - DO - 150000.00 - 30. 6.2006 CASH DEPOSITED 250000.00 250000.00 30.6.2006 DO 300000.00 30.6.2006 DO 350000.00 29.8.2006 CASH WITH DRAWLS 500000.00 29.8.2006 DO 500000.00 30.8.206 DO 500000.00 30.8.2006 DO 500000.00 3.10.2006 DO 1000000.0 0 3.10.2006 DO 1000000.00 6.10.2006 DO 630000.00 17.11.2006 DEPOSITS IN BANK 900000.00 23.3.2007 DO 500000.00 FROM THE ABOVE TABLE, IT IS FOUND THAT THERE IS CASH DEPOSIT OF RS. 2,50,000/ - ON 25/06/12 AND RS. 1,50,000/ - ON 2 6/06/2012 OUT OF SALE PROCEEDS OF SHARES. THE AR COULD NOT PRODUCE ANY CERTIFICATE OF SHARES SOLD HENCE I ADD RS. 4,00,000/ - TO THE INCOME RETURNED BY APPELLANT FOR WANT OF EVIDENCE. THE OTHER WITHDRAWALS FROM BANK A/C ARE DEPOSITED AS CASH DEPOSIT IN LATE R DATE, AND IT STANDS EXPLAINED. THE AO IS DIRECTED TO ADD RS. 4 LAKHS TO THE RETURNED INCOME ON THIS GROUND INSTEAD OF 46 LAKHS. IN VIEW OF THE ABOVE, THE ADDITIONS OF RS. 42,00,000/ - IS DELETED. 4. FROM THE ABOVE, IT IS CLEAR THAT THE CIT(A) AFTER AP PRECIATING THE FACTS THAT THE DEPOSITS WERE MADE OUT OF THE CASH WITHDRAWALS MADE EARLIER FROM THE BANK ACCOUN T, DELETED ADDITION TO THE EXTENT OF RS. 42 LAKHS THEREBY CONFIRMING THE ADDITION OF RS. 4 LAKHS. THE FINDINGS OF THE CIT(A) ARE BASED PURELY ON THE FACTS, 4 NO MATERIAL WAS PRODUCED BEFORE US CONTRADICTING THE ABOVE FINDINGS. HENCE, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL IS DISMISSED. THE DECISION IS PR ONOUNCED IN THE OPEN COURT ON 1 7 T H JULY , 2015. S D / - S D / - ( I.C. SUDHIR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 7 T H JULY , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI