Shri Deeraj Singh, New Delhi V. ITO, Faridabad

ITA 5510/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98149 (ITAT-DELHI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 17-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 16-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Keywords: Principle of natural justice; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL M EMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER ITA NO . 5510 /DEL/ 2015 ASSESSMENT YEAR: 2009 - 10 SH. DHEERAJ S INGH, VS. INCOME TAX OFFICER, C/O - M/S. O.P. SAPRA & ASSOCIATES , WARD - 11(1), FARIDABAD, C - 763, NEW FRIENDS COLONY, NEW DELHI. (PAN: BGZPS 5285B ) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. S ANJIV SAPRA, FCA RESPONDENT BY : SH. YATENDRA SINGH, SR.DR DATE OF HEARING: 17.11.2015 DATE OF PRONOUNCEMENT:16.12.2015 ORDER PER O.P. KANT , A. M. : THE PRESENT APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS), FARIDABAD, DATED 19.09.2014 FOR THE ASSESSMENT YEAR 2009 - 10 RAISING FOLLOWING GROUNDS OF APPEAL: 1. THAT THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW DESERVE TO BE CANCELLED AS THE AUTHORITIES BELOW HAD NOT GIVEN PROPER AND REASONABLE OPPORTUNITY TO THE APPELLANT OF BEING HEARD AND TO LEAD THE EVIDENCE IN SUPPORT OF CASH DEPOSITED IN THE SAVING BANK A/C. 2. THAT AT ANY RATE, THE ADDITIONS AGGREGATING AT RS. 6,24,000/ - AS MADE BY THE LEARNED ASSESSING OFFICER O T THE INCOME OF THE APPELLANT AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS ARBITRARY, UNJUST, ILLEGAL INASMUCH AS THE APPELLANT HAD FIELD PROPER EXPLANATION EXPLAINING THE SOURCE THEREOF SUPPORT BY DOCUMENTARY EVIDENCE. 2 ITA NO. 5510.DEL.2015 SH. DHEERAJ SINGH 3. THE DEPOSIT O F RS. 1,50,000/ - IN THE BANK A/C ON 24.05.2008 ALSO REPRESENTED ADVANCE AGAINST SALE OF AGRICULTURAL LAND AND IT WAS THROUGH OVERSIGHT WRONGLY MENTIONED THAT SUCH AMOUNT HAD BEEN RECEIVED FROM THE PARTIES ON 25.05.2008 WHICH WAS MERELY A CLERICAL ERROR IN THE AGREEMENT TO SELL. 4. VARIOUS OBSERVATIONS MADE BY THE AUTHORITIES BELOW IN THEIR RESPECTIVE ORDERS ARE EITHER INCORRECT OR LEGALLY UNTENABLE. 5. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS, THE ADDITIONS OF RS. 6,00,000/ - AND RS. 24,000/ - TOWARDS THE ASSESSABL E INCOME OF THE APPELLANT ARE VERY EXCESSIVE. 6. THAT THE APPELLANT RESERVES HIGH RIGHT TO ADD, AMEND/MODIFY THE GROUNDS OF APPEAL. 2. THE FACTS IN BRIEF , AS CULLED OUT FROM THE ORDER OF THE LOWER AUTHORITIES , ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE FIL ED RETURN OF INCOME ON 18.09.2009 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME OF RS. 2,10,000/ - IN ADDITION TO AGRICULTURAL INCOME OF RS. 88,600/ - . THE ASSESSEE WAS ENGAGED IN CARRYING OUT THE SERVICES RELATING TO REAL ESTATE IN THE N AME OF PROPRIETARY CONCERN, M/S SINGH ASSOCIATES. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER COMPUTERIZED ASSISTED SELECTION OF SCRUTINY (CASS) AND A NOTICE UNDER SECTION 143 (2) OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) WAS ISSUED. I N THE COURSE OF SCRUTINY PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF TOTAL DEPOSIT OF RS. 14,01,500/ - MADE ON VARIOUS DATES IN THE SAVING BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH THE ICICI BANK. THE ASSESSEE EXPLAINED THAT RS. 6,00,000/ - WAS RECEIVED AS ADVANCE AGAINST SALE OF AGRICULTURAL LAND , RS. 2,75,000/ - W AS DEPOSITED OUT OF CASH WITHDRAWN FROM THE PROPRIETARY CONCERN AND THE BALANCE CASH DEPOSIT ED W AS WITHDRAWN FROM BANK ON VARIOUS EARLIER DATES AND REDEPOSITED SUBSEQ UENTLY . T HE JUSTIFICATION O F ADVANCE 3 ITA NO. 5510.DEL.2015 SH. DHEERAJ SINGH RECEIVED AGAINST AGRICULTURAL LAND WAS NOT ACCEPTED BY ASSESSING OFFICER DUE TO FOLLOWING REASONS: I. THE ASSESSEE COULD NOT PRODUCE THE PERSON FOR EXAMINATION TO ASCERTAIN CREDITWORTHINESS AND GENUINENESS OF THE TRANSAC TION AND EXPLAIN THE SOURCE OF CASH DEPOSIT. II. THE LAND WAS JOINTLY OWNED BY THE TWO BROTHERS WHERE THERE WAS NO DEPOSIT IN THE ACCOUNTS OF BROTHERS. III. THERE WAS AN INCONSISTENCY IN THE DATE OF CASH DEPOSIT MENTIONED IN THE AGREEMENT AND THE CASH DEPOSITED IN THE BANK ACCOUNT. 2.1 UNDER THESE CIRCUMSTANCES THE DEPOSITS OF RS. 6,00,000/ - WERE HELD AS AS UNEXPLAINED UNDER SECTION 68 OF THE ACT BY THE ASSESSING OFFICER . AGGRIEVED WITH THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(A). BEFORE HIM, THE ASSESSEE PLEADED THAT THERE WAS A CLERICAL MISTAKE IN THE AGREEMENT TO SALE. THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS) HAS OBSERVED THAT THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM BY FILING ANY EVIDENCE. FURTHER, THE COMMISSIONER OF INCOME TAX(APPEALS) HAS OBSERVED THAT AFTER LAPSE OF SIX YEARS FROM THE AGREEMENT TO SALE, THE DEAL WAS EXECUTED AND NO R EGISTRATION FOR THE LAND IN QUESTION HAS TAKEN PLACE. FURTHER, HE OBSERVED THAT THOUGH THE LAND WAS JOINTLY OWNED BY TWO BROTHERS, HOWEVER, THERE WAS NO DEPOSIT OF THE EQUIVALENT AMOUNT IN THE BANK ACCOUNT OF THE BROTHERS. IN VIEW OF THE OBSERVATIONS, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) SUSTAINED THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED, THE ASSESSEE IS BEFORE US WITH THE PRESENT APPEAL . 4 ITA NO. 5510.DEL.2015 SH. DHEERAJ SINGH 3. AT THE TIME HEARING, THE ASSESSEE FILED AN APPLICATION UNDER RULE 29 OF THE ITAT RULES SEEKING PERM ISSION FOR FILING A CERTIFICATE DATED 14.11.2015 FROM SH. DEVENDRA SINGH, SON OF SH. KARAN SINGH , FOR ADMISSION AS ADDITIONAL EVIDENCE . THE FACTS IN THIS REGARD ARE THAT THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSITED IN BANK ACCOUNT AS ADVANCE RECEIVE D FROM SH DEVENDRA SINGH AGAINST AGREEMENT TO SALE OF LAND. IN SCRUTINY PROCEEDINGS, THE ASSESSEE SUBMITTED A COPY OF SAID AGREEMENT TO SALE CONTAINING VARIOUS DATES ON WHICH, HE RECEIVED ADVANCE MONEY IN CASH FROM SH. DEVENDRA SINGH . HOWEVER, THE ASSES SING OBSERVED THAT ON ONE OCCASION, CASH OF RS. 1,50,000/ - WAS DEPOSITED IN BANK ON 24.05. 2008 , WHEREAS AS PER AGREEMENT SAID CASH WAS RECEIVED ON 25.05.2008. THE ASSESSEE FAILED TO EXPLAIN THIS INCONSISTENCY AND ADDUCE ANY EVIDENCES IN THAT REGARD DURIN G SCRUTINY PROCEEDINGS AS WELL AS BEFORE THE FIRST APPELLATE AUTHORITY. NOW, BEFORE US THE ASSESSEE HAS SUBMITTED A CERTIF ICATE FROM SH DEVENDRA SINGH CLARIFYING SAID INCONSISTENCY . IN THE CERTIFICATE, SH DEVENDRA SINGH HAS AVERTED THAT THE SAID CASH OF RS . 1,50,000 WAS ACTUALLY GIVEN ON 24.05.2008 , HOWEVER, BY INADVERTENT MISTAKE , THE DATE WAS RECORDED AS 25.05.2008 IN THE AGREEMENT. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE REQUESTED TO ADMIT THE SAID CERTIFICATE AS ADDITIONAL EVIDENCE AS TH E CERTIFICATE COULD ONLY OBTAINED FR OM SH. DERANDRA SINGH AFTER LOT OF EFFORT S AND PERSUASION AND THEREFORE, HE COULD NOT PRODUCE THE CERTIFICATE BEFORE LOWER AUTHORITIES . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, OBJECTED FOR THE A DMISSION OF ADDITIONAL EVIDENCE, ON THE GROUND THAT SUFFICIENT 5 ITA NO. 5510.DEL.2015 SH. DHEERAJ SINGH OPPORTUNITY WAS ALREADY PROVIDED TO THE ASSESSEE, BOTH BY THE ASSESSING OFFICER AND CIT(A). 3.1 WE HAVE HEARD THE RIVAL SUBMISSIONS . WE ARE OF THE OPINION THAT SAID CERTIFICATE HAS BEEN OBTAI NED BY THE ASSESSEE SUBSEQUENT TO PROCEEDINGS BEFORE THE FIRST APPELLATE PROCEEDING AND THAT TOO AFTER LOT OF EFFORT S AND PERSUASION AND THEREFORE THE ASSESSEE COULD NOT PRODUCE SAID EVIDENCE BEFORE THE LOWER AUTHORITIES. IN SIMILAR SITUATIONS IN THE CASE OF CIT V/S TEXT HUNDRED INDIA (P) LTD. REPORTED IN 351 ITR 57, HON BLE HIGH COURT OF DELHI HELD THAT ONCE IT IS F OUND THAT PARTY INTENDING TO LEAD EVIDENCE BEFORE THE TRIBUNAL FOR THE FIRST TIME WAS PREV ENTED BY SUFFICIENT CAUSE TO LEAD SUCH AN EVIDENCE AN D THAT EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDS TO BE DECIDED BY THE TRIBUNAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SUCH AN EVIDENCE, THE TRIBUNAL CAN PASS AN ORDER TO THAT EFFECT. THEREFORE, I N THE INTEREST OF NATURAL JUSTICE , WE A DMIT SAID CERTIFICATE FILED BY THE ASSESSEE UNDER RULE 29 OF THE ITAT RULES. 4. IN RESPECT OF THE ADDITION MADE, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT IN VIEW OF THE CERTIFICATE GIVEN BY SH. DHEERAJ SINGH, THE CASH DEPOSIT OF RS. 6,00,000/ - SHOULD BE TREATED AS EXPLAINED OR IF SO NECESSARY, THE MATTER MAY BE REMANDED BACK TO THE ASSESSING OFFICER FOR FURTHER VERIFICATION. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED ON THE ORDER S OF THE LOWER AUTHORITIES AND REQUESTED TO SUSTAIN THE ADDITION MADE BY THE ASSESSING OFFICER. 6 ITA NO. 5510.DEL.2015 SH. DHEERAJ SINGH 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO NOTED THAT THE FINDINGS OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THAT THE DEAL HAS SO FAR NOT BEEN EXECUTED BETWEEN THE ASSESSEE AND THE BUYER , EVEN AFTER A LAPSE OF MANY YEARS, AS ALSO NON - DEPOSIT OF CASH IN THE BANK ACCOUNT OF OTHER CO - OWNERS OF THE LAND. WE HAVE NOTED THAT WHILE ARRIVING AT DECISION, THE CIT(A) HAS RELIED ON THE INCONSISTENCY IN DEPOSIT OF RS. 1.50 LAKHS . AS THE ADDITIONAL E VIDENCE IS HAVING BEARING ON THE ISSUE , WE RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER, DIRECTING TO DECIDE THE ISSUE AFRESH IN ACCORDANCE TO THE LAW, AFTER PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE . THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL CO - OPERATION TO THE ASSESSING OFFICER IN DISPOSAL OF THE MATTER . 6 . IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER , 2015. SD/ - SD/ - ( DIVA SINGH ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 TH DECEMBER , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI