Sh. Toni Gupta, Meerut V. ITO, Meerut

ITA 5605/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6693 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 16-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHEODAN SINGH BHDDORIA
• Assessee Lawyers: V K GOEL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH MEERUT CAMP, NEW DELHI BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER ITA NO. 5605/DE L./2014 ASSESSMENT Y EAR : 2009-10 TONI GUPTA VS. ITO 187, KISHAN PURA, BAGHPAT ROAD WARD-2(4) MEERUT MEERUT PAN : AJGPG9447G ASSESSEE BY : SHRI V.K.GOEL, ADV. REVENUE BY : SHRI SHEODAN SINGH BHDDORIA, SR. DR DATE OF HEARING : 15/12/2015 DATE OF PRONOUNCEMENT : 29 .02.2016 ORDER PER I.C.SUDHIR, J.M. THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST ORDER OF CIT(A)- MEERUT DATED 23.09.2014 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS QUESTION FIRST APPELLATE ORDE R ON THE FOLLOWING GROUNDS : 1. THAT THE HONBLE CIT(A), MEERUT HAS GROSSLY E RRED IN LAW AS WELL AS ON THE FACTS OF THE CASE BY NOT ADMITTING THE EV IDENCE IN THE FORM OF AFFIDAVIT OF BROTHER OF THE APPELLANT AS FILED DURI NG APPEAL PROCEEDINGS BEFORE HIM, WHICH WAS IN CONFORMITY TO THE STATEMEN T ON OATH OF THE ITA NO.5605/DEL/2014 TONI GUPTA 2 APPELLANT AS RECORDED BY THE LD. A.O. DURING ASSESS MENT PROCEEDINGS AND THE NON ADMITTANCE THEREOF IS AGAINST THE PRINC IPLE OF NATURAL JUSTICE. 2. THAT THE HONBLE CIT(A) IS FACTUALLY INCORRECT I N MAKING AN OBSERVATION THAT THE BANK ACCOUNT WAS PRODUCED FOR THE 1 ST TIME DURING APPEAL PROCEEDINGS AS ADDITIONAL EVIDENCE, A S AGAINST THE FACT THAT THE SAID BANK ACCOUNT HAS BEEN THE SUBJECT MAT TER DURING ASSESSMENT PROCEEDINGS FOR MAKING THE IMPUGNED ADDI TION BY THE LD. A.O. 3. THAT THE LD. CIT(A) OUGHT TO HAVE ACCEPTED THE A PPLICATION FILED BY THE APPELLANT UNDER RULE 46A SO THAT THE JUSTICE SH OULD HAVE BEEN DONE BY CONSIDERING THE FACTS AND MATERIAL IN THE R IGHT PERSPECTIVE. THE REJECTION OF APPLICATION IS AGAINST THE PRINCIP LES OF NATURAL JUSTICE AS BY DOING SO THE LD. CIT(A) HAS NOT ALLOWED PROPE R OPPORTUNITY TO THE APPELLANT TO PROVE/SUBSTANTIATE HIS CASE. 4. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS, THE LD . CIT(A) HAS ERRED IN LAW BY CONFIRMING ADDITION U/S 68 OF THE INCOME TAX ACT, 1961 AS THE DEPOSITS MADE IN THE BANK ACCOUNT OF THE APPELL ANT HAVE WRONGLY BEEN TREATED AS UNEXPLAINED CASH CREDITS APPEARING IN THE BOOKS OF ACCOUNT MAINTAINED BY THE APPELLANT FOR THE PURPOSE OF MAKING ADDITION U/S 68. 5. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APP EAL, THE LD. CIT(A) HAS GROSSLY ERRED IN DISMISSING THE APPEAL AND UPH OLDING THE TOTAL ADDITION OF RS. 28,58,500/-, BEING THE TOTAL AMOUNT OF BANK DEPOSITS DURING THE YEAR, IGNORING THE FACT THAT THE PEAK RE QUIREMENT FOR MAKING THE IMPUGNED DEPOSITS IN THE APPELLANTS BAN K ACCOUNT WAS RS. 20,79,500/- ONLY AND THE ADDITION IN ANY CASE COULD HAVE BEEN CONFIRMED TO THAT EXTENT ONLY. 3. IN GROUNDS 1, 2 AND 3 : THE ASSESSEE HAS QUESTIONED THE ACTION OF THE LD. CIT(A) IN NOT ALLOWING THE APPLICATION FOR ADMISSIO N OF ADDITIONAL EVIDENCES FILED UNDER RULE 46A. WE PREFERRED TO ADJUDICATE T HESE GROUNDS FIRST. 4. IN SUPPORT OF THE ABOVE GROUNDS, THE LD. AR SU BMITTED THAT THE DEPOSITS OF RS. 28,58,550/- IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE PERIOD BETWEEN 16.04.2008 TO 09.03.2009 ABOUT WHICH THE ASSESSEE W AS ASKED TO EXPLAIN BY THE AO WAS BEING OPERATED BY SHRI ARVIND GUPTA, BROTHER OF THE ASSESSEE. THE ITA NO.5605/DEL/2014 TONI GUPTA 3 ASSESSEE WAS ASKED TO PRODUCE SHRI ARVIND GUPTA FOR HIS STATEMENT BUT THE ASSESSEE COULD NOT PRODUCE HIM. THUS, THE AO ADDED THE SAID AMOUNT U/S 68 OF THE ACT. SHRI ARVIND GUPTA DEALS IN PROPERTY BUSINE SS AND MOST OF THE DEPOSITS AND WITHDRAWALS WERE MADE BY HIM. THE LD. AR SUBMIT TED THAT AN ADVOCATE WAS REPRESENTING THE CASE OF THE ASSESSEE BEFORE THE AO WHO HAD FILED WRITTEN REPLY TO THE INQUIRIES RAISED BY THE AO BUT NO COPY OF BA NK STATEMENT AND SOURCE OF CASH COULD BE FILED ON EARLIER DATE. ON 23.11.2011, THE STATEMENT OF ASSESSEE WERE RECORDED BY THE AO IN THE PRESENCE OF SAID COU NSEL BUT THE ASSESSEE COULD NOT FURNISH THE REQUIRED EVIDENCES IN SUPPORT NOR C OULD HE PRODUCED HIS BROTHER SHRI ARVIND GUPTA FOR HIS STATEMENT BEFORE AO, DESP ITE HIS EFFORT. HOWEVER, BEFORE THE LD. CIT(A) THE ASSESSEE WAS ABLE TO PROD UCE THE DETAILS OF DEPOSITS AND WITHDRAWALS IN THE BANK ACCOUNT WITH AFFIDAVIT OF SHRI ARVIND GUPTA WHO WAS DEALING WITH THE SAID BANK ACCOUNT WITH REQUEST TO THE LD. CIT(A) TO ADMIT THESE ADDITIONAL EVIDENCES UNDER RULE 46A, WHICH HA S BEEN REJECTED BY THE LD. CIT(A) ON THE BASIS THAT SEVERAL OPPORTUNITIES FOR THE PURPOSE GIVEN BY THE AO AND THAT THERE WAS NO REASON ASSIGNED FOR NOT AVAIL ING THOSE OPPORTUNITY BY THE ASSESSEE BEFORE THE AO. THE LD. AR CONTENDED FURTHE R THAT THE AO DID NOT CONSIDER THE WITHDRAWALS AND RE-DEPOSIT IN THE BANK ACCOUNT. THE AO HAS ERRED IN CONSIDERING ONLY THE BANK DEPOSITS WITHOUT CONSI DERING THE WITHDRAWALS AND THE RE-DEPOSITS. THE LD. AR PRAYED THAT FOR JUST AN D PROPER ASSESSMENT, ADDITIONAL EVIDENCE WHICH WERE FILED BEFORE THE LD. CIT(A) WITH REQUEST TO ADMIT THE SAME WE ADMITTED AND THE MERIT OF THE ADDITION SHOULD BE DECIDED ACCORDINGLY. 5. HE ALSO REFERRED PAGE NOS. 8 TO 42 OF THE PAPE R BOOK I.E. COPIES OF DIFFERENT DOCUMENTS, BANK STATEMENT, AFFIDAVIT, RECEIPT, SALE DEED ETC. FILED BEFORE THE AUTHORITIES BELOW IN SUPPORT OF THE EXPLANATION OF THE ASSESSEE. HE ALSO PLACED RELIANCE ON THE DECISION OF DELHI BENCH OF THE TRIB UNAL IN THE CASE OF ITO VS. ITA NO.5605/DEL/2014 TONI GUPTA 4 SHRI BIPIN SIROHI. LD. SR. DR ON THE OTHER HAND OPP OSED THE ABOVE GROUNDS WITH THIS SUBMISSION THAT MORE THAN SUFFICIENT OPPORTUNI TIES WERE GIVEN BY THE AO TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS, WHICH THE ASSESSEE DID NOT AVAIL AND THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE ARE NOTHING BUT AND AFTER THOUGHT WHICH HAS BEEN RIGHTLY REJECTED B Y THE LD. CIT(A). 6. CONSIDERING THE ABOVE SUBMISSION, WE FIND THAT I N THE AFFIDAVIT OF SHRI ARVIND GUPTA, WHO AS PER THE ASSESSEE WAS IN THE BUSINESS OF PROPERTY DEALS AND WAS DEALING WITH THE ACCOUNT OF THE ASSESSEE, HAS TRIED TO EXPLAIN THE DEPOSIT. REGARDING PRODUCTION OF HIS BROTHER SHRI ARVIND GUP TA BEFORE THE AO, THE ASSESSEE SUBMITTED THAT DESPITE HIS EFFORT HE COUL D NOT BE PRODUCED. WE, THUS, IN THE INTEREST OF JUSTICE ALLOW THE APPLICATION FOR T HE ADMISSION OF ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A) AND SET ASIDE THE MATTER TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AFTER AFFORDING PROPE R OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS NO. 1, 2 AND 3 ARE THU S ALLOWED AND THE VALIDITY OF THE ADDITION IN QUESTION ON ITS MERIT QUESTIONED IN GROUNDS 4 AND 5 ARE SET ASIDE FOR THE STATISTICAL PURPOSES AS DIRECTED ABOVE. 7. IN RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLO WED. (ORDER PRONOUNCED IN THE COURT ON 29/02/2016 ). SD/- SD/- (PRASHANT MAHARISHI) (I.C.SUDHIR) ACCOUNTANT MEMEBR JUDICIAL MEM BER DATED: 29 / 02/2016 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.5605/DEL/2014 TONI GUPTA 5 DATE INITIAL 1. DRAFT DICTATED ON 24.02.2016 2. DRAFT PLACED BEFORE AUTHOR 24.02.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON 29.02.2016 PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.