DCIT (International Taxation), New Delhi V. Shri Naresh Kumar, New Delhi

ITA 5551/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6791 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 28-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKHI BIM AL
• Keywords: Tax effect; Onus to prove
• Section: 254(2)

Judgement Text

ITA NO.-5551/DEL/2016. SHRI NARESH KUMAR. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBE R AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 5551/DEL/2016 ( ASSESSMENT YEAR: 2010-11) DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(1)(2), (INTL. TAX), NEW DELHI. VS. SHRI NARESH KUMAR, C/O DEWAN P.N. CHOPRA & CO. D-295, DEFENCE COLONY, NEW DELHI-110024. PAN NO: ASKPK5828P APPELLANT RESPONDENT REVENUE BY : SMT. RAKHI BIMAL, SR. DR ASSESSEE BY : PARVEEN KUMAR, CA PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-43, NEW DELHI, [LD. CIT(A), FOR SHORT], DATED 29.08.2016 FOR ASSESSMENT YEAR 2010-11. GROUNDS TAKEN IN THIS APP EAL OF REVENUE ARE AS UNDER: 1. WHETHER, IN THE FACTS AND CIRCUMSTANCES, THE LD . CIT(A) WAS CORRECT IN LAW TO ACCEPT THE PRINCIPLE OF PREPONDERANCE OF PROBABILITIES IN HOLDING THAT THE CLAIM OF THE ASSESSEE THAT THE ENT IRE CASH DEPOSITS OF RS.81,20,000 WAS OUT OF HIS CASH-IN-HAND, WHICH WAS DRAWN OUT FROM HIS BANK ACCOUNT ON EARLIER DATES DURING THE Y EAR 2009-10 AND IN THE PREVIOUS YEAR 2008-09? 2. WHETHER, IN THE LIGHT OF THE LAW ESTABLISHED AND BASED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) IS LEGALLY ITA NO.-5551/DEL/2016. SHRI NARESH KUMAR. PAGE 2 OF 4 JUSTIFIED IN CONCLUDING THAT BURDEN OF PROOF CAST O N THE ASSESSEE HAS BEEN DISCHARGED AND HE HAS OFFERED A SATISFACTO RY EXPLANATION ON THE SOURCE OF THE CASH DEPOSITS OF RS.81,20,000? 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD.CIT(A) FAILED TO ENQUIRE INTO THE CLAIM OF THE ASSESSEE AN D BRING ON RECORD ADEQUATE JUSTIFICATION TO ACCEPT SUCH CLAIM IN THE LIGHT OF THE FACT THAT ASSESSEE DID NOT ADDUCE ANY EVIDENCE OF THE PU RPORTED INVESTMENT OPPORTUNITIES, HE WAS EXPLORING AND ALSO THAT THE ASSESSEE DID NOT ADDUCE EVIDENCE TO THE EFFECT THAT SUCH CALL-IN- HAND WAS DULY DISCLOSED IN HIS WEALTH TAX RETURNS. 4. THE APPELLANT CRAVES TO ADD, AMEND, MODIFY OR AL TER ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF THE APP EAL. (B) AT THE OUTSET, LEARNED AUTHORIZED REPRESENTATIVE ( LD. AR, FOR SHORT) FOR THE ASSESSEE BROUGHT TO OUR NOTICE, AT THE TIME OF HEAR ING, THAT TAX EFFECT IN THIS APPEAL IS RS. 50,00,000/-. BOTH SIDES, [REPRESENTATIVES OF R EVENUE AND THE ASSESSEE] WERE IN AGREEMENT, AT THE TIME OF HEARING BEFORE US, THAT T HE TAX EFFECT IN THE PRESENT APPEAL IS RS. 50,00,000/-. VIDE RECENT CBDT CIRCULAR NO. 17/2 019 DATED 08.08.2019 READ WITH EARLIER CBDT CIRCULAR NO. 3 OF 2018, DATED 11.07.20 18, MINIMUM THRESHOLD LIMIT OF TAX EFFECT OF FILING OF APPEALS BY REVENUE IN INCOME TA X APPELLATE TRIBUNAL (ITAT, FOR SHORT) HAS BEEN ENHANCED TO RS. 50,00,000/-. IN A SUBSEQUENT CLARIFICATION ISSUED BY CBDT VIDE F.NO. 279/MISC/M-93/2018-ITJ, DATED 20/08 /2019, IT HAS BEEN CLARIFIED BY CBDT THAT THE AFORESAID REVISED MONETARY LIMIT IS A LSO APPLICABLE TO ALL PENDING APPEALS IN ITAT. AS THE TAX EFFECT IN THIS APPEAL DOES NOT EXCEED THE AFORESAID LIMIT OF RS. 50,00,000/-; THE LD. SR. DR FOR REVENUE DID NOT PRE SS THE APPEAL. THE LEARNED AUTHORIZED REPRESENTATIVES FOR THE ASSESSEE ALSO SU BMITTED THAT THE APPEAL WAS NOT MAINTAINABLE IN VIEW OF THE AFORESAID CBDT CIRCULAR DATED 08.08.2019 AND 11.07.2018; AND AFORESAID CLARIFICATION DATED 20.08.2019 ISSUED BY CBDT. IN VIEW OF THE FOREGOING, ITA NO.-5551/DEL/2016. SHRI NARESH KUMAR. PAGE 3 OF 4 THIS APPEAL IS DISMISSED BEING NOT PRESSED AND ALSO BEING NOT MAINTAINABLE HAVING REGARD TO AFORESAID CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019 READ WITH AFORESAID CBDT CIRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESA ID CLARIFICATION DATED 20/08/2019. (C) BEFORE LEAVING, WE CLARIFY THAT REVENUE WILL BE AT LIBERTY TO APPROACH INCOME TAX APPELLATE TRIBUNAL U/S 254(2) OF INCOME TAX ACT, 1961 SEEKING RECALL OF THIS ORDER AND, FOR RESTORATION OF THIS A PPEAL IF IT IS FOUND THAT APPEAL OF REVENUE IS NOT COVERED BY AFORESAID CBDT CIRCULA RS DATED 08.08.2019 AND 11.07.2018. (D) IN THE RESULT, THIS APPEAL BY REVENUE IS DISMISSED. OUR DECISION WAS ORALLY PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON TH E DATE OF HEARING. NOW, THIS WRITTEN ORDER IS PRONOUNCED IN OPEN COURT ON 18/10/2019. SD/- SD/- (SUSHMA CHOWLA) (ANADEE NATH MISSH RA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 18/10/2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-5551/DEL/2016. SHRI NARESH KUMAR. PAGE 4 OF 4 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER