Shri. Sanjay Srivastava, Ghaziabad V. ITO, New Delhi

ITA 5482/DEL/2010

• Counselvise Citation: 548220114 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 12-03-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 06-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Salary income; Principle of natural justice; Additional evidence
• Section: 142(1); 234B; 147; 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI G BENC H BEFORE SMT. DIVA SINGH, JM & SHRI A.N. PAHUJA, AM ITA NO.5482/DEL/2010 ASSESSMENT YEAR: 2000-01 SH. SANJAY SRIVASTAVA SI, SHASTRI NAGAR, GHAZIABAD (U.P.) V/S . INCOME TAX OFFICER, WARD 40(4), NEW DELHI [PAN : ARCPS 7780 C] (APPELLANT) (RESPONDENT) DATE OF HEARING 12-03-2012 DATE OF PRONOUNCEMENT 12-03-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 06.12.2010 BY THE ASSESSEE AGA INST AN ORDER DATED 20 TH JULY, 2010 OF THE LEARNED CIT(A)-XXVII, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE INITIATION OF PROCEEDINGS U/S 147 AND CONSEQUENTLY ISSUE OF NOTICE U/S 148 IS WRONG AND ILLEGAL AS AGAINST THE PROVISIONS OF LAW CONTAINED U/S 149(1) OF THE ACT. 2. THAT ASSESSING OFFICER AND CIT(A) HAS FAILED TO APPRECIATE THAT OUT OF THE ALLEGED CASH DEPOSITS OF ` `` 1,36,500/- IN HIS BANK ACCOUNT. IT INCLUDES THE DEPOSITS ALSO OUT OF HIS SALARY INCOME RECEIVED IN CASH WHICH WAS OF ABOUT ` `7,500/- P.M. DURING THE PERIOD, WHICH COMES TO ` ` 90,000/-. 3. THAT THE ASSESSING OFFICER AND CIT(A) FURTHER FAILED TO APPRECIATE THAT THE ENTIRE INVESTMENT ASSESSEE BY SHRI V.K. SABHARWAL,AR REVENUE BY MS/ MAMTA KOCHAR, DR I.T.A. NO.5482/DEL./2010 2 IN THE HOUSE WAS OUT OF HIS ACCUMULATED FUNDS AVAILABLE IN HIS SB A/C, FROM DECLARED AND EXPLAINED SOURCES OF HIMSELF AND FOR HIS WIFE. 4. THAT THE LEARNED CIT(A) WAS FURTHR NOT JUSTIFIED AND HAD ERRED IN LAW TO UPHELD THE MAJOR PORTION OF ADDITIONS MADE BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THAT THE ADDITIONAL EVIDENCE FAILED UNDER RULE 46A, HAS NOT BEEN ADJUDICATED. 5. THAT THE ASSESSING OFFICER AND CIT(A) HAS FURTHER NOT APPRECIATED THAT THE ASSESSING OFFICER HAS CHARGED THE TAX ON THE SAME RECEIPTS THRICE A TIME, WHILE FINALIZING THE ASSESSMENT PROCEEDINGS, WITHOUT ADJUDICATING THE INFORMATION AND DOCUMENTS FILED AND AVAILABLE WITH HIM. 6. THAT THE INTEREST CHARGED U/S 234B AND 234C IS FURTHER ILLEGAL AS AGAINST THE LAW AND TO THE FACTS OF THE CASE, AS SUCH, NOT TENABLE. 7. THE ASSESSEE ASSAILS HIS RIGHT TO AMEND, ALTER OR CHANGE ANY GROUNDS OF APPEAL AT ANY TIME, EVEN DURING THE COURSE OF HEARING OF THIS INSTANT APPEAL. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THA T ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFICE OF ADDL.DIT (I NVESTIGATION), GHAZIABAD THAT THE ASSESSEE DEPOSITED CASH IN HIS BANK ACCOUNT NO. 785 IN PUNJAB NATIONAL BANK, BB NAGAR, GHAZIABAD DURING THE PERIOD APRIL, 1998 TO MARCH, 2000 WHILE HE DID NOT FILE HIS RETURNS FOR THE RELEVANT ASSES SMENT YEARS, A NOTICE U/S 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WAS ISSUED TO THE ASSESSEE ON 24 TH AUGUST, 2005 FOR THE AYS 1999-2000 TO 2000-2001, A FTER RECORDING REASONS IN WRITING. THE ASSESSEE DID NOT FURNISH ANY RETURN EVEN IN RESPONSE TO THE SAID NOTICE NOR RESPONDED TO THE S AID NOTICE. ACCORDINGLY, A NOTICE DATED 27.03.2006 WAS ISSUED U/S 142(1) OF TH E ACT . NONE RESPONDED TO THIS NOTICE ALSO. LATER, THE LD. AR ON BEHALF OF T HE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER[AO IN SHORT] ON 19 TH APRIL, 2006 WHEN HE WAS AGAIN REQUESTED I.T.A. NO.5482/DEL./2010 3 TO FILE THE RETURN OF INCOME AND EXPLAIN THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION. HOWEV ER, ON THE ADJOURNED DATE OF HEARING, NONE APPEARED. SUBSEQUENTLY, IN RESPONSE TO SUMMONS ISSUED U/S 131 OF THE ACT ON 19.10.2006, THE ASSESSEE APPEARED AN D HIS STATEMENT WAS RECORDED ON OATH ON 30.10.2006,WHEREIN HE ADMITTED, INTER ALIA, HAVING PURCHASED HOUSE NO. SI-23,SHASTRI NAGAR,GHAZIABAD I N THE FY 1999-2000. THE ASSESSEE ALSO STATED THAT HIS ONLY SOURCE WAS SALAR Y INCOME FROM THE SERVICE IN RAILWAYS AND THAT HIS HOUSEHOLD EXPENDITURE WAS ` `5,000/- TO ` `6,000/- PM. IN THE FYS 1998-99 & 1999-2000. SINCE THE ASSESSEE DI D NOT EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS BANK ACCOUNT IN THE YEAR UNDE R CONSIDERATION WITH ANY COGENT EVIDENCE DESPITE SUFFICIENT OPPORTUNITY ALLO WED AS DETAILED IN THE ASSESSMENT ORDER NOR EXPLAINED SOURCES OF INVESTMEN T IN HOUSE PURCHASED FOR ` ` 3,00,700/- , THE AO ADDED AMOUNT OF ` 1,36,500/- ON ACCOUNT OF CASH CREDITED IN BANK AND ` 3,00,000 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HO USE. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE AFORESAI D ADDITIONS IN THE FOLLOWING TERMS:- 10. TWO MAIN ISSUES ARISE OUT OF THE ADDITIONS MAD E IN THE ASSESSMENT. ISSUE NO.1: ADDITION OF ` ` ` ` ` 1,36,500/- ON ACCOUNT OF CASH CREDITS INTO THE BANK ACCOUNT. I HAVE CONSIDERED THE FINDINGS OF THE ASSESSING OF FICER AS WELL AS SUBMISSIONS MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER AT THE TIME OF SURVEY HAD CONTACT ED THE DDO OF THE ASSESSEE. THE ASSESSING OFFICER OBSERVED AS UN DER: AS THE ASSESSEE INFORMED THAT HE HAS NO INFORMATI ON IN HIS POSSESSION ABOUT THE TOTAL SALARY RECEIVED IN FINAN CIAL YEAR 1998-99 AND 1999-2000 AND HE HAD NOT BEEN ISSUED SALARY DET AILS BY HIS EMPLOYER DESPITE HIS REQUEST, THEREFORE, A SUMMON U /S 131 WAS ISSUED TO HIS DDO ON 10.11.2006 AND HE WAS REQUESTE D TO FURNISH MONTHLY PAYMENT OF SALARY AND OTHER PAYMENT MADE TO THE ASSESSEE DURING THE FINANCIAL YEAR 1998-99 TO 1999- 2000. THE PAY OFFICE OF THE ASSESSEE FURNISHED SALARY STATEMENT O F SHRI SANJAY SRIVASTAVA ON 20.11.2006, FINANCIAL YEAR 1998-99 AN D 1999-2000. I.T.A. NO.5482/DEL./2010 4 AS PER THE STATEMENT, THE GROSS SALARY OF THE ASSES SEE FOR THE ASSESSMENT YEAR 1998-99 WAS ` `79,504/- AND AFTER DEDUCTION OF PF AND INSURANCE CONTRIBUTIONS, NET SALARY PAID TO THE ASSESSEE DURING THE FINANCIAL YEAR 1998-99 WAS ` `75,148/-. SIMILARLY, THE GROSS SALARY FOR THE FINANCIAL YEAR 1999-2000 WAS ` 92,996/- AND AFTER DEDUCTION OF ` `4,520/- ON ACCOUNT OF PF AND INSURANCE NET SALARY WAS ` `88,476/-. 10.1 THIS BEING THE CASE, IN HIS STATEMENT (VIDE QU ESTION-13) THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DE POSITS IN HIS BANK ACCOUNT NO. 785 AMOUNTING TO ` 1,36,500/- FOR THE PRESENT FINANCIAL YEAR. THE ASSESSEE REPLIED THAT 'HE HAS S EEN THE COPY OF BANK STATEMENT AND HE ACCEPTS THERE ARE CASH DEPOSI TS ON VARIOUS DATES DURING THE FINANCIAL YEAR 1998-99 AND 1999-20 00. HE HAD STATED THAT HE MIGHT HAVE SOME SMALL AMOUNTS SAVING DEPOSITED IN HIS SAID ACCOUNT. HOWEVER, HE FURTHER ADMITTED THAT HE WAS NOT ABOVE TO SUBSTANTIATE ANY DEPOSIT HAVING BEEN MADE OUT OF SAVINGS OF HIS SALARY INCOME AND HE ALSO ADMITTED THAT HE C OULD NOT EXPLAIN THE SOURCES OF DEPOSITS OF ` . 1,30,000/-. SIMILARLY, HE COULD NOT EXPLAIN THE SOURCES OF DEPOSITS OF ` . 1,36,500/- IN THE SAID BANK ACCOUNT AND COULD NOT SUBSTANTIATE THE SAME FOR THE FINANCIAL YEAR 1999-2000 AS WELL. 10.2 IN VIEW OF THE ABOVE FACTS, THE ASSESSING OF FICER ASSESSED THE SUM OF ` . 1,36,500/- AS INCOME FROM UNACCOUNTED SOURCES & OUT OF UNDISCLOSED INCOME. THE ONUS WAS ON THE APPELLAN T TO PROVE THAT SUCH CASH DEPOSITS MADE OVER & ABOVE HIS SALARY INC OME IS PROPERLY SOURCED. THE APPELLANT FAILED TO ESTABLISH THIS FACT EITHER DURING THE COURSE OF ASSESSMENT OR DURING THE COURS E OF APPELLATE PROCEEDINGS. I, THEREFORE, FIND MERIT IN THE ADDITI ON MADE BY THE ASSESSING OFFICER & ACCORDINGLY THE ADDITION OF A SUM OF ` . 1,36,500/- IS SUSTAINED. ISSUE -2 : ADDITION OF ` ` ` ` 3,00,000/- ON ACCOUNT OF UNACCOUNTED & UNDISCLOSED EXPENDITURE/INVESTMENT OF PURCHASE OF HOUSE. 11. THE ASSESSEE MADE AN INVESTMENT OF ` .3 LAKHS IN THE PURCHASE OF HOUSE WHICH WAS ATTRIBUTED TO BE OUT OF LOANS FROM FATHER & FATHER-IN- LAW. HOWEVER, THE APPELLANT WAS UNABLE T O SUBSTANTIATE THE SAME BY WAY OF EVIDENCE EXCEPT MER ELY FILING CERTAIN SELF-SERVING AFFIDAVIT TO SHOW THAT THE APP ELLANT HAD SOURCES FOR THE INVESTMENT MADE IN THE HOUSE. 11.1. THE VARIOUS SUBMISSIONS MADE BY THE APPELLANT CAN BE I.T.A. NO.5482/DEL./2010 5 SUMMARIZED AS BELOW: 'ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFI CE OF ADDITIONAL DIRECTOR OF INCOME TAX (INVESTIGATION), GHAZIABAD, THAT THE APPELLANT HAS MADE CASH DEPOSITS AMOUNTING TO ` .1 ,30,000/- ONLY ON DIFFERENT DATES IN HIS SAVING BANK ALC NO.7 85 MAINTAINED IN PUNJAB NATIONAL BANK, B.B. NAGAR, GHAZIABAD, DURING THE YEAR 1998-1999 (RELEVANT TO ASSESSMENT YEAR 1999-2000) A ND ` .1,36,500/- FOUND TO BE DEPOSITED IN THE SAME BANK ACCOUNT DURING THE FINANCIAL YEAR 1999-2000 (RELEVANT TO ASSESSMEN T YEAR 2000- 2001). DURING THE COURSE OF PRELIMINARY ENQUIRIES, THE ADI T AFTER HAVING FOUND NOT BEEN SATISFIED WITH THE INFORMATIO N AND EXPLANATION GIVEN, DOCUMENTS PRODUCED, REFERRED THE MATTER TO THE CONCERNED ASSESSING OFFICER HAVING TERRITORIAL JURI SDICTION OF THIS CASE, THEREFORE, ON THE BASIS OF SAID INFORMATION, THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 TO THE ASSESSEE FOR THE ASSESSMENT YEAR 1999-2000 AND 2000-2001 RESPECTIVELY. THEREAFT ER, THE NOTICES U/S. 142(1) FOLLOWED, COUPLED WITH THE SUMMON U/S 131 OF THE INCOME TAX ACT FOR 30.10.2006 AND FOR 24.11.2006 RE SPECTIVELY, WHICH WERE COMPLIED BY THE ASSESSEE. DURING THE COU RSE OF HIS INVESTIGATION, HE EXPLAINED THAT THE FUNDS DEPOSITE D TO THE TUNE OF ` .1,30,000/- DURING THE YEAR 1998-1999 AND ` 1,36,500/- DURING THE YEAR 1999-2000 (ASSESSMENT YEAR 2000-01) IN HIS SAV ING BANK A/C NO.785 MAINTAINED WITH PNB, B.B. NAGAR BRANCH, GHAZ IABAD WERE EITHER FROM HIS PAST PERSONAL ACCUMULATED SAVINGS, RE-DEPOSITS FROM THE CASH WITHDRAWN EARLIER FROM THE SAME BANK A/C OR FROM THE CONTRIBUTIONS FROM HIS WIFE, WHO WAS HAVING THE TUI TION INCOME AT THAT TIME AND FROM OTHER FAMILY MEMBERS (FATHER AND FATHER IN LAW). THE APPELLANT HAS FURTHER EXPLAINED AND ELUCIDATED WITH THE EVIDENCE THAT BEING A GOVT. SERVANT, HE WAS NOT HAV ING ANY OTHER INCOME EXCEPT THE SALARY INCOME, WHICH WAS NOT PRES UMED TO BE ESCAPED TO CHARGE ANY TAX THEREUPON. THE ASSESSING OFFICER WITHOUT SUGGESTING HIM TO FILE FURTHER EVIDENCE IN SUPPORT THERETO OF HIS STATEMENT GIVEN AND FACTS EXPLAINED, HE RATHER MIS-INTERPRETED AND TWISTED THE FACTS IN ORDER TO MAKE FURTHER ADDI TIONS IN THE HANDS OF THE APPELLANT. THE ASSESSING OFFICER HAS FURTHER NOT APPRECIATED, THAT OUT OF THE SAID DEPOSITS, THE APPELLANT HAS FU RTHER MADE INVESTMENT FOR THE PURCHASE OF PROPERTY AFTER WITHD RAWING THE FUNDS FROM HIS SAID ACCOUNT FOR ` .3,00,700/-, AS SUCH THE AMOUNT COULD NOT BE ADDED TWICE IN THE HANDS THE APPELLANT TO CH ARGE TAX THEREUPON, WHICH INTERALIA CONFIRM THAT THE ASSESSM ENT ORDER PASSED WERE LACONIC AND IRONIC IN NATURE, AS SUCH S UFFERS FROM INFIRMITY, THEREFORE, NOT SUSTAINABLE IN THE EYES O F LAW. THE ORDERS PASSED ARE FURTHER FRIVOLOUS AND VEXATIOUS HAVING N O SANCTITY UNDER I.T.A. NO.5482/DEL./2010 6 THE LAW, BECAUSE NO NOTICE, IF ANY, HAS EVER BEEN I SSUED BY THE ASSESSING OFFICER U/S. 143(2) OF THE ACT PRIOR TO C OMPLETE THE PROCEEDINGS U/S. 147/144 OF THE ACT. THE ASSESSING OFFICER WHILE PASSING THE ORDERS, NO DEDUCTIONS ALLOWABLE UNDER T HE LAW HAVE FURTHER BEEN ALLOWED TOWARDS THE PF AND GPS TO THE APPELLANT, WHICH PROVES THE INFIRMITY ABOUT THE ORDERS PASSED BY THE ASSESSING OFFICER. THIS APART, THE DEDUCTIONS HAVE FURTHER NOT BEEN ALLOWED TO THE APPELLANT FOR THE HRA DRAWN AND SPEN T FOR THE SAID YEARS. THEREFORE, THE ADDITIONS MADE IN THE DECLARE D INCOME ARE FRIVOLOUS AND VEXATIOUS. WITH REGARD TO THE DEPOSITS OF A SUM OF ` .1,36,500/- ON DIFFERENT DATES IN HIS SB ALC NO. 785 MAINTAINED WI TH PNB, B.B. NAGAR BRANCH, GHAZIABAD, DURING THE YEAR, THE ASSES SEE HAS PREPARED A CASH FLOW STATEMENT ON THE BASIS OF DEBI T/CREDIT ENTRIES REFLECTING IN HIS SAID BANK ACCOUNT ON DATE-WISE FR OM THE PERUSAL OF WHICH, IT IS CLEAR THAT THE MODE OF DEPOSITS PERTAI NS EITHER TO THE RECEIPT OF MONTHLY SALARY, AMOUNT RECEIVED FROM HIS WIFE MRS. SARITA SRIVASTAVA, WHO WAS NOT MAINTAINING ANY SEPARATE BA NK ETC AT THAT TIME, OR FROM THE REDEPOSIT OF CASH IN THE SAME BAN K ALC, WHICH WITHDRAWN EARLIE., SINCE THE CASH FLOW STATEMENT PR EPARED FOR THE PERIOD FROM 01.04.1999 TO 31.03.2000 WAS A FRESH EV IDENCE, THEREFORE, THE SAME WAS FILED ALONG WITH THE PETITI ON UNDER RULE. 46A OF THE INCOME TAX RULES, 1962, WITH THE REQUEST TO AFFORD AN OPPORTUNITY TO THE ASSESSING OFFICER FOR ITS EXAMIN ATION AND TO SUBMIT HIS REPORT IMMEDIATELY, BUT THOUGH A CONSIDE RABLE PERIOD HAS BEEN ELAPSED, AND HE HAS BEEN CONTACTED TELEPHO NICALLY NUMBER OF TIMES BUT THE SAME HAS NOT SO FAR BEEN SE NT, AS SUCH, AN ADVERSE INFERENCE MAY PLEASE BE DRAWN AGAINST HIM A ND ACCEPT THE DOCUMENTS FILED BY THE APPELLANT IN VIEW OF THE JUD GMENTS DECIDED ON THE IDENTICAL ISSUE IN THE CASE OF: CIT VS. MOTOR GENERAL FINANCE LTD. REPORTED IN 254ITR 449 BASICALLY THE ORDERS PASSED BY THE ASSESSING OFFICE R ARE WRONG ON FACTS AND ERRONEOUS ON THE POINT OF LAW, BECAUSE THE ASSESSING OFFICER WAS HAVING INFORMATION, ONLY TO T HE EXTENT, THAT A SUM OF ` 1,36,500/- HAS BEEN CREDITED BY THE ASSESSEE ON DI FFERENT DATES IN HIS SB ALC FOR WHICH HE IS HAVING NOT ANY PROPER EXPLANATION THEREOF. THOUGH THE ASSESSEE WAS HAVING PROPER EXPLANATION W ITH REGARD TO THE DEPOSIT OF CASH OF ` 1,36,500/- DURING THE YEAR IN HIS SB A/C, OUT OF HIS SALARY INCOME, AMOUNT RECEIVED F ROM HIS WIFE MRS. SARITA SRIVASTAVA, TO BE DEPOSITED IN THE BANK BECAUSE OF NOT MAINTAINING ANY SEPARATE BANK ACCOUNT OF HER OWN, O UT OF WHICH THE ASSESSEE HAS SPENT A SUM OF ` .3,00,000/- FOR THE PURCHASE OF I.T.A. NO.5482/DEL./2010 7 HOUSE DURING THE YEAR, BUT THE ASSESSING OFFICER HA S MADE DOUBLE ADDITIONS WHILE FINALIZING THE ASSESSMENT PROCEEDIN GS, ONE FOR THE RECEIVED OF AN AMOUNT OF ` .1,36,500/- AND SECONDLY THE AMOUNT WITHDRAWN FROM HIS SAID BANK ACCOUNT AND UTILIZED F OR THE PURCHASE OF PROPERTY DURING THE YEAR OF ` .3,00,000/-, THEREFORE, THE ORDER PASSED COULD NOT BE SUSTAINED AT ALL IN THE EYES OF LAW. BESIDES THE ABOVE, THE OFFICER FAILED TO ALLOW DEDU CTIONS OF HRA, CONTRIBUTION TO THE GP FUND ETC. WHILE FINALIZ ING THE ASSESSMENT PROCEEDINGS, WHICH IS ALSO AGAINST THE L AW AND TO THE FACTS OF THE CASE. THE PETITION FILED ULS RULE 46A WAS ALSO SUPPORTED WITH THE AFFIDAVITS OF THE WIFE OF THE AP PELLANT THAT SHE HAS HANDED OVER CERTAIN AMOUNTS OUT OF HER ANNUAL I NCOME TO THE APPELLANT FOR DEPOSITING THE SAME IN HIS SAID SB A/ C, AS SHE WAS NOT MAINTAINING ANY SEPARATE BANK A/C OF HER OWN AT THAT TIME. FROM THE SUBMISSIONS MADE HEREINABOVE, IT IS CLEAR THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS AGAINST TH E LAW AND TO THE NATURAL JUSTICE, AS SUCH THE ADDITIONS MADE ARE FRI VOLOUS AND VEXATIOUS AND LIABLE TO BE DELETED AND MAY PLEASE B E DELETED ACCORDINGLY. THE COPY OF PETITION FILED UNDER RULE 46A COU PLED WITH CASH FLOW STATEMENT PREPARED FOR THE PERIOD 01.04.1 999 TO 2000 WITH COPIES AFFIDAVITS FILED BY MRS. SARITA SRIVAST AVA WIFE OF THE APPELLANT ALONG WITH THE SAID PETITION ARE AGAIN EN CLOSED HEREWITH FOR YOUR HONOUR'S PERUSAL AND RECORDS. 12. DETERMINATION: I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AS WELL AS THE FINDINGS OF THE ASSESSING OFFICER. IN THE ABSENCE OF EVIDENCE TO THE EFFECT THAT THE INVE STMENT IN THE HOUSE PURCHASE, A SUM OF ` 3,00,000/- WAS BROUGHT TO TAX BY THE ASSESSING OFFICER. HOWEVER, THE ASSESSING O FFICER HAS NOT APPRECIATED THE FACT THAT A SUM OF ` `1,36,500/- HAS ALREADY BEEN TAXED BY HIM AS UNEXPLAINED DEPOSITS. IT IS THE CONTENTION OF THE APPELLANT THAT THE INVESTMENT IN THE HOUSE IS PARTLY OUT OF SUCH CASH DEPOSITED AND WITHDRAWN. IN THE LIGHT OF THE SUBMISSIONS MADE BY THE APPELLANT AND FACTS AND CIRCUMSTANCES OF THE CASE, I FIND MERIT IN THE ARGU MENT OF THE APPELLANT THAT A REASONABLE PART OF SUCH CASH DEPOS ITS HAS BEEN INVESTED IN THE PURCHASE OF HOUSE. ACCORDINGL Y, THE TELESCOPING OF SUCH INVESTMENT OF A SUM OF ` `1 LAC CAN BE REASONABLY BE ACCORDED TO THE ASSESSEE HAVING BEEN MADE I.T.A. NO.5482/DEL./2010 8 FOR INVESTMENT IN PURCHASE OF HOUSE. THEREFORE, TH E APPELLANT IS TO BE ASSESSED AT A SUM OF ` `2 LAKHS INSTEAD OF ` ` 3 LAKHS ADDED BY THE ASSESSING OFFICER. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINS T THE AFORESAID FINDINGS OF THE LD. CIT(A). AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE WHILE INVITING OUR ATTENTION TO AN ORDER DATED 18 TH JANUARY, 2010 IN ASSESSEES OWN CASE IN I.T.A. NO.933/D/2009 FOR ASSESSMENT YEA R 1999-2000 CONTENDED THAT SINCE SIMILAR ISSUES IN THE PRECEDING ASSESSME NT YEAR HAVE BEEN RESTORED TO THE FILE OF THE AO , ACCORDINGLY, THE MATTER IN TH E YEAR UNDER CONSIDERATION MAY ALSO BE RESTORED TO HIS FILE FOR ALLOWING SUFFICIEN T OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS CASE. THE LD. DR DID NOT OPPOSE THESE S UBMISSIONS OF THE LD. AR. 5 WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. WE FIND THAT A CO-ORDINATE BENCH WHILE ADJUD ICATING A SIMILAR ISSUE IN THE PRECEDING ASSESSMENT YEAR 1999-2000 CONCLUDED IN T HEIR ORDER DATED 18 TH JANUARY, 2010 AS UNDER:- 3.5 WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS A ND PERUSED THE RECORDS. RULES OF NATURAL JUSTICE AND FAIR PLA Y DEMAND THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO REBUT TH E ADVERSE INFERENCE DRAWN AGAINST HIM. IN OUR CONSIDERED OPI NION, IN THE INTEREST OF JUSTICE, IT WILL BE APPROPRIATE TO REMI T THE ISSUE TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRES H. ACCORDINGLY, WE REMIT THE ISSUE ON MERITS IN THIS CASE TO THE FI LES OF ASSESSING OFFICER TO EXAMINE THE SAME AFRESH. NEEDLESS TO AD D THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BE ING HEARD. 6 . SINCE FACTS AND CIRCUMSTANCES PREVAILING IN THE YEA R UNDER CONSIDERATION ARE ,INDISPUTABLY, SIMILAR TO THE FACTS AND CIRCUMS TANCES IN THE PRECEDING YEAR, FOLLOWING THE VIEW TAKEN BY A CO-ORDINATE BENCH IN THE PRECEDING YEAR , WE CONSIDER IT FAIR AND APPROPRIATE TO RESTORE THE IS SUES RAISED IN GROUND NOS. 1 TO 5 BEFORE US TO THE FILE OF THE AO FOR READJUDI CATION IN ACCORDANCE WITH LAW AFTER ALLOWING SUFFICIENT OPPORTUNITY TO THE ASSESS EE. WITH THESE OBSERVATIONS GROUND NOS. 1TO 5 IN THE APPEAL ARE DISPOSED OF. I.T.A. NO.5482/DEL./2010 9 7. .. GROUND NO.6 RELATES TO LEVY OF INTEREST U/S 234B AND 234C OF THE ACT. THE LD. AR ON BEHALF OF THE ASSESSEE DID NOT MAKE ANY SUBMISSIONS ON THIS GROUND. THE LEVY OF INTEREST U/S 234B & 234C OF THE ACT BEING MANDATORY [COMMISSIONER OF INCOME TAX.VS ANJUM M. H. GHASWALA AND OTHERS,252 ITR 1(SC), AFFIRMED BY HON'BLE APEX COURT IN THE CASE O F CIT V. HINDUSTAN BULK CARRIERS [2003] 259 ITR 449 (SC) AND IN THE CASE OF CIT V. SANT RAM MANGAT RAM JEWELLERS [2003] 264 ITR 564 (SC) ], THIS GROUND IS DISMISSED. HOWEVER, THE AO SHALL ALLOW CONSEQUENTIAL RELIEF ,IF ANY, WHILE GIVING EFFECT TO OUR AFORESAID DIRECTIONS. WITH THESE DIRECTIONS ,GROUND NO.6 IS D ISPOSED OF. 8.. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFOR E US IN TERM OF RESIDUARY GROUND NO. 7 IN THE APPEAL , ACCORDINGLY, THIS GRO UND IS DISMISSED. 9.. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE U S. 10. IN THE RESULT, APPEAL IS PARTLY ALLOWED BU T FOR STATISTICAL PURPOSES. SD/- SD/ - (DIVA SINGH) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. SH. SANJAY SRIVASTAVA,S1, SHASTRI NAGAR, GHA ZIABAD, U.P. 2. INCOME TAX OFFICER, WARD 40(4), NEW DELHI. 3. CIT CONCERNED 4. CIT(A)-XXVII, NEW DELHI 5. DR, ITAT,G BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT