S. Yadwinder Singh S/O S.Kashmira Singh, V. The Income Tax Officer,

ITA 558/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95790 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Unexplained investment; Salary income
• Section: 234B; 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMC CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT ITA NO. 558/CHD/2015 ASSESSMENT YEAR: 2009-10 S. YADWINDER SINGH VS. THE ITO, WARD IV, S/O S. KASHMIRA SINGH KHANNA DORAHA PAN NO. AVAPS7633L (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUBHASH AGGARWAL RESPONDENT BY : MS. RAJINDER KAUR DATE OF HEARING : 06.11.2015 DATE OF PRONOUNCEMENT : 31.12.2015 ORDER PER H.L.KARWA, VP THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF CIT(A)- II, LUDHIANA DATED 18.3.2015 RELATING TO ASSESSMENT YEAR 2009-10. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S:- 1). THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED THE ADDITION OF RS. 385000/-- MADE ON ACCOUNT OF ON ACCOUNT OF ALLE GED UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT , 1961. 2). THAT WHILE CONFIRMING THE ABOVEMENTIONED ADDIT ION OF RS. 385000/-, THE LD. CIT(A) WRONGLY FAILED TO APPRECIA TE THAT:- A) THE APPELLANT WAS NEITHER THE ACTUAL OWNER NOR THE BENEFICIARY OF THE IMPUGNED AMOUNTS AND B) THE APPELLANT WAS ONLY ACTING AS A CON DUIT ON BEHALF OF SH. BALDEV SINGH WHO CATEGORICAL LY STATED ON OATH THAT HE PROVIDED THESE AMOUNTS T O THE APPELLANT FOR TRANSFER TO HIS DAUGHTER IN LAW SMT. RAMNIK KAUR, WHO WAS STUDYING IN AUSTRALI A. 2 3). THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED INTER EST CHARGED U/S. 234A, 234B OF THE INCOME TAX ACT, 1961. 4). THAT THE LD. CIT(A) HAS WRONGLY FAILED TO PROPE RLY CONSIDER AND APPRECIATE THE SUBMISSIONS MADE BY THE APPELLANT DU RING THE COURSE OF ASSESSMENT AS WELL AS THE APPELLATE PROCEEDINGS. 5). THAT THE ORDER PASSED BY THE LD. CIT (A) IS BAD IN LAW AS WELL AS ON FACTS. 2. THE ASSESSEE IS AN INDIVIDUAL AND ASSESSMENT YEA R INVOLVED IS ASSESSMENT YEAR 2009-10. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER RECEIVED AN INFORMATION THAT THE ASSESSEE H AD DEPOSITED CASH AMOUNTING TO RS. 21,96,000/- WITH ICICI BANK AT DORAHA. WHEN CONFRONTED, THE ASSESSEE SUBMITTED THAT OUT OF CASH DEPOSITED, RS. 4,08,000/ - PERTAINED TO SHRI BALDEV SINGH WHO HAD GIVEN THE MONEY TO HIM FOR REMITTANCE TO AUSTRALIA TO HIS DAUGHTER IN LAW. THE ASSESSING OFFICER ACCEPTED THE ASSESSEES SUBMISSIONS WITH REGARD TO CASH OF RS. 16 LAKHS RECEIVED FROM SH. M ANMOHAN SINGH. HOWEVER, AS REGARDS TO THE CLAIM OF RS. 4,08,000/- RECEIVED FOR M SHRI BALDEV SINGH, THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 AND RECORD ED THE STATEMENT OF SHRI BALDEV SIGH. THE ASSESSING OFFICER CONCLUDED THAT S HRI BALDEV SINGH COULD NOT GIVE PROPER EXPLANATION WITH REGARD TO THE PAYMENT OF RS. 4,08,000/- GIVEN TO THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER GAVE B ENEFIT OF RS. 23,000/- WITHDRAWN BY SHRI BALDEV SINGH FROM HIS BANK ACCOUN T AND ADDED THE BALANCE AMOUNT OF RS. 3,85,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 3. ON APPEAL, THE CIT(A) UPHELD THE ORDER OF THE AS SESSING OFFICER IN MAKING THE ADDITION OF RS. 3,85,000/- U/S 69 OF THE INCOME -TAX ACT, 1961, AND HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS APPARENT FROM THE RECORD S THAT THE ASSESSEE WAS HAVING A SAVING BANK ACCOUNT NO. 078701500134 WITH ICICI B ANK, RAILWAY ROAD, DORAHA. HE IS ALSO HAVING ABOVE BANK ACCOUNT NO. 63 1901517445 IN ICICI BANK, NEHRU SIDHANT KENDRA TRUST BUILDING, FEROZE G ANDHI MARKET, LUDHIANA. IT IS STATED THAT ONE SHRI BALDEV SINGH RESIDENT OF V ILLAGE RAMPUR TEHSIL PAYAL, DISTT LUDHIANA WHO IS A FAMILY FRIEND, APPROACHED T HE ASSESSEE TO HELP HIM TO REMIT SOME MONEY TO AUSTRALIA TOWARDS TUITION FEE E TC. OF HIS DAUGHTER IN LAW SMT. RAMNIK KAUR WHO WAS STUDYING IN AUSTRALIA AT T HAT RELEVANT TIME. IT IS STATED THAT THE BANK AT DORAHA AT THAT TIME DID NOT HAVE THE FACILITY TO REMIT MONEY OVERSEAS. AS THE ASSESSEE WAS HAVING A BANK A CCOUNT IN ICICI BANK AT LUDHIANA, FROM WHERE MONEY COULD BE REMITTED TO AUS TRALIA, HE AGREED TO HELP SHRI BALDEV SIGH FOR THIS PURPOSE. SHRI BALDEV SIN GH HANDED OVER THE SAID AMOUNT TO THE ASSESSEE WHICH IS DEPOSITED IN HIS AC COUNT NO.0787015000134 WITH ICICI BANK, DORAHA ON 17.7.2008. A COPY OF THE BANK ACCOUNT HAS BEEN FURNISHED BEFORE THE BENCH (PAGE 4 OF THE ASSESSEE S COMPILATION). ON THAT VERY DAY, THE AMOUNT IN QUESTION HAS BEEN TRANSFERRED BY THE ASSESSEE IN HIS ACCOUNT NO. 6341901517445 IN ICICI BANK, NEHRU SIDHANT KEND RA TRUST BUILDING, FEROZE GANDHI MARKET, LUDHIANA. ON THE SAME DAY, A REMITTANCE OF 9546 AUSTRALIAN DOLLARS FROM THE ASSESSEES SAVING ACCO UNT NO. 6341901517445 IN ICICI BANK, LUDHIANA AND AN AMOUNT OF RS. 4,05,955/ - WAS DEBITED TO THE ASSESSEES BANK ACCOUNT. (BANK STATEMENT IS AVAILA BLE AT PAGE 6 OF THE ASSESSEES COMPILATION). IT IS ALSO OBSERVED THAT T HE CONFIRMATION LETTER OF SHRI BALDEV SINGH WAS FILED BEFORE THE AUTHORITIES BELOW WHEREIN HE HAS CONFIRMED HAVING GIVEN THE AMOUNT OF RS. 4,08,000/- TO THE AS SESSEE FOR REMITTANCE TO AUSTRALIA FOR FEE OF HIS DAUGHTER IN LAW SMT. RAMNI K KAUR. HE ALSO EXPLAINED THE SOURCES OF MONEY WHICH WAS STATED TO BE OUT OF HIS SAVINGS FROM SALARY INCOME SINCE HE WAS A TEACHER IN GOVERNMENT SCHOOL, VILLAGE KUBE. IT IS ALSO SEEN THAT IN HIS STATEMENT SHRI BALDEV SINGH RECORD ED ON OATH BY ASSESSING 4 OFFICER ON 23.11.2011 STATED THAT HE HAD GIVEN THE MONEY IN QUESTION TO SHRI YADVINDER SINGH FOR ONWARD TRANSACTION TO HIS DAUGH TER IN LAW MS. RAMNIK KAUR W/O SH. KULWINDER SINGH WHO WAS RESIDING IN AUSTRAL IA AS SHE WAS NOT HAVING ANY IDEA TO SENT MONEY TO AUSTRALIA FOR HER DAUGHTE R IN LAW. THEREFORE, HE GAVE MONEY IN QUESTION TO THE ASSESSEE WHO SENT THIS MON EY TO DAUGHTER IN LAW OF SHRI BALDEV SINGH. FURTHER, IN RESPONSE TO Q.NO.5, SHRI BALDEV SINGH CONFIRMED THAT HE GAVE RS. 4 LAKHS IN CASH TO THE ASSESSEE. 5. IN MY CONSIDERED OPINION, THE AUTHORITIES BELOW WERE NOT CORRECT IN REJECTING THE EXPLANATION OF THE ASSESSEE PARTICULA RLY IN VIEW OF THE UNCONTROVERTED FACTS THAT SHRI BALDEV SINGH HAS CAT EGORICALLY STATED IN OATH THAT MONEY IN QUESTION WAS GIVEN TO THE ASSESSEE FOR ONW ARD TRANSMISSION TO HIS DAUGHTER IN LAW SMT. RAMNIK KAUR W/O SHRI KULVINDER SINGH WHO WAS STUDYING IN AUSTRALIA. THIS FACT IS ALSO REMAINED UNCONTROVE RTED THAT THE MONEY WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE ON 17 .7.2008 AND IT WAS REMITTED TO AUSTRALIA ON THAT VERY DAY. THIS FACT ALONE SHOW S THAT ASSESSEE ONLY ACTED AS A CONDUIT FOR FACILITATING THE MONEY REMITTANCE TO AU STRALIA AS SHRI BALDEV SINGH DID NOT HAVE ANY ACCOUNT IN ANY BANK PROVIDING FACI LITY FOR OVERSEAS REMITTANCE. 6. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES O F THE PRESENT CASE, I MAY OBSERVE HERE THAT ADDITION U/S 69 OF THE ACT HAS BE EN MADE IN THIS CASE MECHANICALLY WITHOUT APPRECIATING THE FACTS, EXPLAN ATION AND EVIDENCE PLACED ON RECORD BY THE ASSESSEE. THERE IS NO MATERIAL ON REC ORD TO CONTROVERT THE EXPLANATION OF THE ASSESSEE AND ALSO THE STATEMENT OF SHRI BALDEV SINGH RECORDED ON OATH BY THE ASSESSING OFFICER. THERE IS ALSO NO FINDING THAT SHRI BALDEV SINGH CAME FORWARD TO GIVE FALSE EVIDENCE TO OBLIGE THE A SSESSEE. IT APPEARS THAT THE ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASI S OF SUSPICION AND, THEREFORE, SUCH ADDITION IS NOT SUSTAINABLE IN LAW. I MAY ADD HERE THAT SHRI BALDEV SINGH 5 HAS ADMITTED HAVING GIVEN THE MONEY TO THE ASSESSEE . IN THE CASE OF ANY DOUBT, THE ASSESSING OFFICER COULD HAVE TAKEN THE ACTION A GAINST SHRI BALDEV SINGH AND NOT AGAINST THE ASSESSEE. THUS, CONSIDERING THE ENT IRE FACTS OF THE PRESENT CASE AND ALSO THE SETTLED LEGAL POSITION, NO ADDITION U/ S 69 OF THE ACT IS CALLED FOR IN THIS CASE. ACCORDINGLY, I DELETE THE IMPUGNED ADDIT ION. 7. GROUND NO.3 RELATES TO CHARGING OF INTEREST U/S 234A AND 234B OF THE ACT. THIS GROUND OF APPEAL IS CONSEQUENTIAL IN NATURE AN D I HOLD ACCORDINGLY. 8. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2015 SD/- (H.L.KARWA) VICE PRESIDENT DATED : 31 ST DECEMBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR