Anuj Miglani, New Delhi V. ITO, New Delhi

ITA 5640/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4729 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 03-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHADHASR
• Keywords: Unexplained cash credit; Salary income; Opportunity of being heard; Wrong claim; Corroborative evidences; Revised return; TDS
• Section: 194C; 194J; 13; 54; 6; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. R. K PANDA, ACCOUNTANT MEMBER AND SH. K. N. CHARY, JUDICIAL MEMBER ITA NO.5640/DEL/2016 ASSESSMENT YEAR: 2011-12 ANUJ MIGLANI H. NL. A -2/76, G/F JANAKPURI NEW DELHI-110058 PAN NO. ACYPM4699M VS. ITO WARD 71 (2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. V. P. GUPTA, ADVOCATE SH. ANUMAV KUMAR, ADVOCATE SH. HEM SINGH, ADVOCATE RESPONDENT BY SH. V. K CHADHA,SR. DR DATE OF HEARING: 17/12/2019 DATE OF PRONOUNCEMENT: 25/02/2020 ORDER PER R.K PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 23.08.2016 OF THE CIT(A)-21, NEW DELHI RELATING TO A.Y.2011-12. 2. ALTHOUGH A NUMBER GROUNDS HAVE BEEN RAISED BY TH E ASSESSEE THESE ALL RELATE TO THE ORDER OF THE CIT(A ) IN DISMISSING PAGE | 2 THE APPEAL FILED BY THE ASSESSEE UPHOLDING THE VARI OUS ADDITIONS MADE BY THE AO WHERE IN THE AO HAS DETERMINED THE T OTAL INCOME OF THE ASSESSEE AT RS.59,67,724/- AS AGAINST THE RE TURNED INCOME OF RS.18,51,101/-. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY FROM M/S. PLUG POWER ENERGY PRIVATE LIMITED. HE FILED HIS RETURN OF INCO ME ON 31.07.2011 DECLARING TOTAL INCOME OF RS.18,51,101/- . THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WER E ISSUED TO THE ASSESSEE FROM TIME TO TIME. HOWEVER, A PERUSAL OF PAGE 2 AND 3 OF THE ASSESSMENT ORDER SHOWS THAT THERE WAS NO PROPER COMPLIANCE TO THE SAID STATUTORY NOTICES AND THE ASSESSEE FILE D ONLY SCANTY DETAILS AND WAS SEEKING ADJOURNMENT FROM TIME TO TI ME ON ONE GROUND OR THE OTHER. AS PER 26 AS INFORMATION AVAI LABLE ON THE ITD SYSTEM, THE AO NOTED THAT ASSESSEE HAS RECEIVED FOLLOWING AMOUNTS : SR NO SECTION / DATE NAME OF DEDUCTOR / ( FILER NAME NATURE OF TRANSACTION INCOME TDS 1 192B PLUG POWER ENERGY INDIA PVT LTD SALARY 14,95,034 4,32,574 2 194J PLUG POWER ENERGY INDIA PVT LTD PROFESSIONAL SERVICES 11,66,665 1,16,666 3 1.94C RELIANCE COMMUNICATIONS INFRASTRUCTURE LTD CONTRACT RECEIPTS 31,857 637 4 194C RELIANCE INFRATEL LTD CONTRACT RECEIPTS 867 17 TOTAL 26,94,423 5,49,894 4. ON BEING QUESTIONED BY THE AO TO RECONCILE THE R ECEIPT SHOWN IN THE TDS CERTIFICATES/ FORM 26 AS WITH THE INCOME PAGE | 3 DECLARED IN THE RETURN OF INCOME UNDER DIFFERENT HE ADS, THE ASSESSEE FILED THE FOLLOWING RECONCILIATION:- SR NO NAME OF DEDUCTOR / FILER INCOME TDS 1 . PLUG POWER ENERGY INDIA PVT LTD (SALARY RECEIPTS) 19,61,700 4,32,574 2 PLUG POWER ENERGY INDIA PVT LTD (PROFESSIONAL RECEIPTS) 6,99,999 1,16,666 3 RELIANCE COMMUNICATIONS INFRASTRUCTURE LTD 31,857 637 4 RELIANCE INFRATEL LTD 867 17 TOTAL 26,94,423 5,49,894 5. FROM THE ABOVE THE AO NOTED THAT ASSESSEE HAS DE CLARED ONLY SALARY INCOME IN THE ITR. HOWEVER, NO INCOME HAS BEEN DECLARED ON ACCOUNT OF THE OTHER RECEIPTS SHOWN IN THE 26 AS. AFTER ANALYZING THE COPY OF FORM NO.16 CUM SALARY C ERTIFICATE ISSUED BY M/S. PLUG POWER ENERGY INDIA PRIVATE LIMI TED, THE AO NOTED THAT THE ASSESSEE HAS DECLARED LESSER INCOME AND HAS MADE WRONG CLAIM OF ALLOWANCE AS U/S.10 (14) OF THE IT A CT. HE, THEREFORE, MADE ADDITION OF RS.4,800/- TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY IN ABSENCE OF ANY VALID EXPLAN ATION GIVEN BY THE ASSESSEE, THE AO, AFTER ALLOWING CERTAIN EXPENS ES MADE ADDITION OF RS.9,38,497/- TO THE TOTAL INCOME OF TH E ASSESSEE ON ACCOUNT OF NON DISCLOSURE OF PROFESSIONAL RECEIPTS OF RS.11,99,389/-. THE AO SIMILARLY NOTED THAT THERE IS DISCREPANCY IN ACTUAL RECEIPTS ON ACCOUNT OF SALARY / PROFESSIO NAL RECEIPTS FROM M/S. PLUG POWER ENERGY INDIA PRIVATE LIMITED A ND THE AMOUNT RECEIVED FROM THE SAID COMPANY AS PER FORM N O. 16 AND 26 AS INFORMATION. THE AO ANALYSED THE BANK STATEM ENTS OF THE ASSESSEE MAINTAINED WITH ICICI BANK IN HIS NAME AND NOTED THAT ASSESSEE HAS RECEIVED AN AMOUNT OF RS.48,50,609/- F ROM THE SAID PAGE | 4 COMPANY THROUGH RTGS. THE EXPLANATION OF THE ASSES SEE THAT THESE ARE PART OF THE AMOUNT RECEIVED FROM THE SAID COMPANY ON ACCOUNT OF REIMBURSEMENT OF EXPENSES WAS NOT ACCEPT ED BY THE AO WHO MADE ADDITION OF RS.22,71,484/-. SIMILARLY THE AO REJECTED THE CLAIM OF EXEMPTION U/S.54 AMOUNTING TO RS.12,88,927/- CLAIMED BY THE ASSESSEE DURING THE C OURSE OF ASSESSMENT PROCEEDINGS BY WAY OF A LETTER. IN ABSE NCE OF ANY PLAUSIBLE EXPLANATION TO HIS SATISFACTION THE AO AL SO MADE ADDITION OF RS.8,43,000/- U/S. 68 OF THE IT ACT BEI NG CASH DEPOSITED IN THE BANK ACCOUNT MAINTAINED WITH HDFC AND ICICI BANK. THE AO SIMILARLY MADE ADDITION OF RS.35,137/ - BEING INTEREST ON IT REFUND AND RS.23,705/- BEING INTERES T ON SAVINGS BANK ACCOUNT. HE ACCORDINGLY DETERMINED THE TOTAL INCOME OF THE ASSESSEE RS.60,60,724/-. AFTER DEDUCTING AN AMOUNT OF RS.1 LAKH UNDER CHAPTER VI-A, THE AO DETERMINED THE TOTAL INC OME OF THE ASSESSEE AT RS. 59,67,724/-. 5.1 IN APPEAL THE LD. CIT(A) DISMISSED THE APPEAL F ILED BY THE ASSESSEE BY OBSERVING AS UNDER :- OBSERVATION : I HAVE CAREFULLY CONSIDERED THE WRITTEN SUBMISSION OF THE APPELLANT AND ALSO THE CONTENTS OF THE ASSESSMENT ORDER AND P ERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AFTER HAVIN G CAREFULLY CONSIDERED THE ENTIRE FACTS AND CIRCUMSTANCES OF TH E CASE, MY CONCLUSIONS ON THE ISSUES RAISED IN THE GROUNDS OF APPEAL ARE AS UNDER: - PAGE | 5 UNDER THE HEAD PROFESSIONAL AND OTHER RECEIPTS. WHI LE MAKING ABOVE ADDITION THE AQ HAS WORKED OUT THE ABOVE AMOUNT OF RS.9,38,4977- WHICH IS- GIVEN AS UNDER: PART A :PARTICULARS AMOUNT (RS.) INCOME, AS APPEARING IN INCOME AND EXPENDITURE ACCOUNT 7,51,193 LOSS - EXPENSES IN EARNING ABOVE INCOME 2,79,362 DIFFERENCE (PART. B) 4,71,831 B. BASED ON ABOVE THE AO HAS MADE AN ADDITION OF RS.9,38,497/-, I.E. (4,66,666 + 4,71,831). OUT OF T HE ABOVE, A SUM OF RS.4,66,666/- HAS ALREADY BEEN INCLUDED IN THE SALA RY INCOME BY THE ASSESSEE HIMSELF AND THE REMAINING AMOUNT OF RS .4,71,831/- HAS BEEN OFFEREND FOR TAXATION DURING THE ASSESSMEN T PROCEEDINGS ITSELF. IN VIEW OF THE ABOVE, ADDITION TO THE EXTEN T OF RS.4,71,831/- IS SUSTAINED. IT IS SEEN THAT THE ASSESSEE HAS FILED HIS RETURN O F INCOME IN ITR-1 (SAHAJ) AND DECLARED INCOME OF RS.19,51,101/- UNDER THE HEAD 'SALARY'. FROM 26AS IT IS SEEN THAT THE ASSESSEE HA S RECEIVED A SUM OF RS.11,66,666/- AS PROFESSIONAL RECEIPT FROM M/S PLUG POWER ENERGY INDIA LTD. AGAINST WHICH, TAX WAS DEDUCTED A T SOURCE @ 1Q% U/S 194J OF THE I.T. ACT, MOREOVER, THE ASSESSEE HA S ALSO RECEIVED CONTRACTUAL PAYMENT AGAINST WHICH TAX WAS DEDUCTED AT SOURCE @ PARTICULARS - AMOUNT (RS.) INCOME, FROM PROFESSION AS APPEARING IN 26AS . 11,66,665 LESS - INCOME FROM PROFESSION AS ACCEPTED 6,99,999 DIFFERENCE.(PART A). 4,66,666 PAGE | 6 2% U/S 194C OF THE I.T. ACT, IT IS ALSO LEARNT THAT THE ASSESSEE HAS EARNED SALARY INCOME OF RS.14,95,034/- AGAINST WHIC H TDS OF RS.4,32,574/- WAS ALREADY DEDUCTED AT SOURCE U/S 192. ASSESSEE HAS NEITHER SHOWN PROFESSIONAL INCOME NOR CLAIMED T DS AGAINST THEM. HOWEVER, INCOME & EXPENDITURE ACCOUNT FURNISH ED BY THE ASSESSEE SHOWS NET INCOME OF RS.4,71,831/- AGAINST GROSS RECEIPT OF RS.7,51,193/- UNDER THE HEAD 'BUSINESS & PROFESS ION'. BESIDES ABOVE, FORM 16 PROVIDED BY THE ASSESSEE REVEALS THA T THE ASSESSEE HAS RECEIVED SALARY INCOME OF RS.19,56,701/-. DURIN G THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS GIVEN SUFFI CIENT OPPORTUNITY TO FURNISH DETAILS OF INCOME ALONG WITH SUPPORTING EVIDENCE BUT THE ASSESSEE HAS FAILED TO DO SO. IN T HE LIGHT OF SEE TO PRODUCE EVIDENCE TO SUBSTANTIATE HIS CLAIM THAT RS. 4,66,666/- WAS DOUBLE ADDITION MADE BY THE AO. ACCORDINGLY, THE AD DITION OF SUM OF RS.4,66,666/- IS UPHELD. C. ADDITION OF RS.22.71.884/- ON A/O OF DISCREPANCY IN SALARY /PROFESSIONAL RECEIPTS: DURING THE ASSESSMENT PROCEEDINGS IT CAME TO AOS N OTICE THAT THERE WERE LARGE NUMBER OF CASH ENTRIES APPEARING IN ASSE SSEES BANK ACCOUNT WHICH THE ASSESSES WAS SPECIFICALLY ASKED T O EXPLAIN THE NATURE, SOURCE AND GENUINENESS OF THE CASH CREDITS. IN THIS REGARD, THE ASSESSEE HAS CONTENDED THAT THE .ASSESSEE IS WO RKING AS PROJECT ENGINEER IN M/S PLUG POWER ENERGY. INDIA LTD. ON RE MOTE SITE, NOT HAVING BANKING FACILITY WHERE THE ASSESSEE IS SUPPO SED TO INCUR VARIOUS EXPENSES ON BEHALF OF THE EMPLOYER COMPANY WHICH WERE LATERON REIMBURSED FOR WHICH THEY ARE SENDING BILLS TO THE COMPANY. WITH THE ABOVE CONTENTION IT HAS BEEN STRONGLY, PLE ADED BY THE APPELLANT THAT THESE PAYMENTS BEING REIMBURSEMENT O F EXPENDITURE SHOULD NOT BE TREATED AS INCOME IP THE HANDS OF THE ASSESSEE. IN THIS REGARD, THE APPELLANT WAS ASKED TO SUBSTANTIATE HIS ABOVE CLAIM WITH THE HELP OF RELEVANT EVIDENCE WHICH THE ASSESS EE HAS FAILED TO DISCHARGE AND TO THAT EXTENT I FIND THAT THE ASSESS EE HAS FAILED TO PAGE | 7 DISCHARGE HIS ONUS TO EXPLAIN THE NATURE AND SOURCE OF ABOVE CASH CREDITS IN THE BANK ACCOUNT DESPITE HAVING BEEN GIV EN SUFFICIENT' TIME AND ADEQUATE OPPORTUNITY TO THE ASSESSEE. THE AO HA S EVEN CONDUCTED THE NECESSARY ENQUIRY FOR WHICH THE SUMMO NS WERE ALSO ISSUED TO THE CONCERNED PARTIES BUT THE COMMUNICATI ON RETURNED BACK WITH THE COMMENT 'COMPANY LEFT'. EVEN DURING T HE APPELLATE PROCEEDINGS NO FURTHER/NEW EVIDENCE OR SUPPORTING P APERS WERE FURNISHED BY THE ASSESSEE. IN THE LIGHT OF THE ABOV E FACTS I UPHOLD THE ADDITION MADE BY THE AO AMOUNTING RS.22,71,884/ -. C.ADDITION ON A/C OF EXEMPTION U/S. 54 OF THE ACT : PROCEEDINGS IT CAME TO THE AOS NOTICE THAT THE APP ELLANT HAS SHOWN ONE IMMOVABLE PROPERTY BEING FIAT NO.143, BLOCK-1, 4 TH FLOOR, RAO CGHS, SECTOR 23, PLOT NO.2, DWARKA, NEW DELHI FOR A SUM OF RS.28 LAKHS WHICH WERE NEITHER DECLARED IN HIS RETURN NOR DID HE CLAIM EXEMPTION U/S 54 OF THE ACT. EVEN IN THE COMPUTATIO N OF INCOME FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSE E FAILED TO DECLARE THE SAME, IN THIS REGARD THE APPELLANT HAS ALSO CLAIMED THAT HE ENTERED INTO AGREEMENT TO SALE WITH A PROPERTY D EALER IN THE MONTH OF FEBRUARY'2011 FOR A CONSIDERATION OF RS.28 LAKHS WHICH WAS GOT REGISTERED IN MAY2011 WITH THE FINAL BUYER FOR RS.35 LAKHS. BASED ON THE ABOVE FACTS, THE APPELLANT WAS DENIED EXEMPTION NOW CLAIMED BY THE ASSESSEE BEFORE ME U/S 54 OF THE ACT . IN THIS REGARD THE APPELLANT HAS STRONGLY ARGUED THAT THE CAPITAL GAIN ARISING OUT OF ABOVE TRANSACTION HAS ACTUALLY; RECEIVED IN THE AY 2012-13 AND NOT IN THE A.Y. 2011-12 AND, THEREFORE, THE IMPUGNED CA PITAL GAIN CAN BE TAXED ONLY IN THE A.Y. 2012-13. IN THIS REGARD THE APPELLANT HAS FURTHER RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF GOETZ LTD. VS CIT (2006) 284 ITR IN WHICH I T HAS BEEN HELD THAT WHERE THE EXEMPTION HAS NOT BEEN CLAIMED, IN T HE RETURN AND- THE ASSESSEE WANTS TO : CLAIM THE SAME IN THE ASSESSMENT PROCEEDINGS, THEN BE COULD ONLY DO BY FILING REVISE D RETURN. IT IS AN PAGE | 8 ACCEPTED FACT THAT THE APPELLANT HAS NEITHER DECLAR ED CAPITAL GAIN NOR HAS HE CLAIMED EXEMPTION U/S 54 OF THE ACT. MOR EOVER, AS DISCUSSED ABOVE, THE ASSESSEE HAS FILED RETURN OF I NCOME IN ITR-1, WHICH IS NOT A PROPER FORM FOR DISCLOSING CAPITAL G AINS. IT IS AN ESTABLISHED LEGAL POSITION THAT IT IS ESSENTIALLY F OR. AN ASSESSEE TO CLAIM BENEFIT OF ANY EXEMPTIONS/DEDUCTIONS IN THE R ETURN OR IN THE REVISED RETURN WHICH IS NOT THE CASE IN APPEAL IN H AND. MOREOVER, IN THE CASE IN HAND; IT IS VISIBLE THAT THE APPELLANT HAS CLAIMED EXEMPTION ONLY AFTER THE ENQUIRIES WERE INITIATED B Y THE AO. TAKING ALL THE ABOVE INTO CONSIDERATION EXEMPTION U/S 54 C LAIMED BY THE APPELLANT BY WAY OF LETTER DURING THE ASSESSMENT PR OCEEDINGS IS DISALLOWED AND ACCORDINGLY ADDITION OF RS. 12,88,92 7/- MADE ON ACCOUNT OF DISALLOWANCE OF EXEMPTION U/S 54 OF THE ACT IS UPHELD. D. BANK INTEREST : DURING THE ASSESSMENT PROCEEDING S THE ASSESSEE FURNISHED ALL THE BANK ACCOUNTS HELD BY HI M DURING THE YEAR UNDER CONSIDERATION AND FILED COPY OF BANK STA TEMENT ON WHICH THE ASSESSEE HAS EARNED INTEREST INCOME AS BELOW: S R. NO. NAME OF THE BANK ACCOUNT NU M BER DATE INTEREST T . HDFC BANK 00031050202618 30.09.2010 981 2 HDFC BANK 000310502Q2618 31.03:2010 1,664 3 ICIGI BANK 005101000087 28,04.2010 1,013 4 ICICI BANK 005101000087 04.09.2010 10,190 5 ICICI BANK 005101000087 05.03.201.1 9,857 TOTAL 23,705 FOR WANT OF ANY EXPLANATION BY THE APPELLANT, THE A O WAS JUSTIFIED IN TREATING THE SAME AS UNDISCLOSED INCOME WHICH WA S ADDED TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD 'INCOME FROM OTHER SOURCES. EVEN DURING THE APPELLATE PROCEEDINGS, TH E ASSESSEE FAILED TO EXPLAIN THE REASON FOR NON-DISCLOSURE OF INTERES T INCOME. IN VIEW OF THE ABOVE, I FIND AO JUSTIFIED IN TAXING THE INTERE ST INCOME IN THE PAGE | 9 APPELLANTS HAND, HENCE, NO INTERFERENCE IS WARRANT ED. THIS GROUND OF APPEAL IS DISMISSED. E. INTEREST ON INCOME TAX REFUND: AS PER AIR INFORM ATION, THE ASSESSEE WAS ISSUED, INCOME TAX REFUND FOR A.Y. 200 9-10 & 2010- 11 WHICH ALSO INCLUDED INTEREST OF RS.35,137/-, WHI CH WAS NOT FOUND TO BE DECLARED IN THE APPELLANTS RETURN. MOR EOVER, THE ASSESSEE WAS GIVEN, OPPORTUNITY TO EXPLAIN THE REAS ONS FOR NON- DISCLOSURE OF INTEREST ON INCOME TAX REFUNDS BUT TH E APPELLANT HAS NO VALID ARGUMENT IN HIS DEFENCE. AS SUCH, THE ADDITIO N MADE BY THE AO, AS ABOVE, DESERVES TO BE CONFIRMED. F. ADDITION OF RS. 8,43.000/- ON ACCOUNT OF CASH DE POSITS : DURING THE ASSESSMENT PROCEEDINGS THE AO HAS FOUND THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.8,43,00 0A IN CASH IN HIS BANK ACCOUNT. IN THIS REGARD, ASSESSEE WAS SPEC IFICALLY ASKED TO EXPLAIN THE NATURE AND SOURCE OF ABOVE DEPOSITS. BE SIDES ABOVE, THE ASSESSEE WAS ALSO ASKED TO FURNISH THE NARRATION DE SCRIBING THE NATURE AND DEPOSITS APPEARING IN THE BANK ACCOUNT. ASSESSEE WAS GIVEN SPECIFIC SHOW CAUSE NOTICE TO EXPLAIN THE NAT URE AND SOURCE OF IMPUGNED CASH DEPOSITS FAILING WHICH THE SAME WOULD BE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T, ACT.'-HO WEVER, DESPITE HAVING BEEN GIVEN SEVERAL OPPORTUNITIES, THE ASSESS EE 1 HAS NOT BOTHERED TO EXPLAIN THE SOURCE OF ABOVE IMPUGNED CA SH DEPOSITS. REGARDING IMPUGNED ADDITION OF RS.8,43,000/- THE AP PELLANT HAS CLAIMED THAT HE WAS RUNNING' AN IMPREST ACCOUNT FOR HIS EMPLOYER AND WITHDRAWING MONEY FROM HIS ACCOUNT TO MEET THOS E PURPOSE AND RE-DEPOSITING THE SAME AS AND WHEN REQUIRED 'FOR BU SINESS PURPOSE. IN THIS REGARD, THE ASSESSEE HAS FILED DETAILS OF D EPOSITS AND WITHDRAWALS DURING THE REMAND PROCEEDINGS BUT HE FA ILED TO FURNISH THE DETAILS OF ALL THOSE' BANK ACCOUNT FROM WHICH H E WITHDRAW THE CASH AND ALSO THE BANK TO WHICH THE FUNDS WERE RE-D EPOSITED. IN THIS REGARD, THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPL AIN THE NUMEROUS, CASH DEPOSITS BUT DESPITE HAVING BEEN GIV EN SUFFICIENT PAGE | 10 OPPORTUNITY HE FAILED TO EXPLAIN THE SAME, IT IS A WELL ESTABLISHED LAW THAT IN THE CASE OF CASH DEPOSITS U/S 68 OF THE ACT, THE PRIMARY ONUS LIES ON THE ASSESSEE TO ESTABLISH THE NATURE, SOURCE & GENUINENESS OF THE CASH TRANSACTION. HOWEVER, FROM THE MATERIAL AVAILABLE ON RECORD, I FIND THAT THE APPELLANT HAS NOT BOTHER TO ESTABLISH THE NATURE, SOURCE AND GENUINENESS OF ABO VE TRANSACTION. AS SUCH IN THE ABSENCE OF ANY SATISFACTORY EXPLANAT ION FROM THE ASSESSEES SIDE, I FIND AO FULLY JUSTIFIED IN TREAT ING THE IMPUGNED CASH CREDIT OF RS.8,43,000/- AS UNDISCLOSED MONEY I N THE HANDS OF THE ASSESSEE U/S. 68 OF THE IT ACT. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSI DERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE AO I N THE ORDER PASSED U/S. 143 (3) MADE VARIOUS ADDITIONS ON THE G ROUND THAT THERE WAS DIFFERENCE IN THE INCOME SHOWN BY THE ASS ESSEE AND THE INCOME REFLECTED AS PER 26 AS AVAILABLE WITH THE IN COME TAX DEPARTMENT. HE ALSO MADE ADDITION ON ACCOUNT OF VAR IOUS AMOUNTS RECEIVED BY THE ASSESSEE FROM M/S. PLUG POW ER ENERGY INDIA PRIVATE LIMITED THROUGH RTGS AND NOT PROPERLY EXPLAINED BY THE ASSESSEE BEFORE HIM. APART FROM THE ABOVE T HE AO ALSO MADE ADDITION U/S. 68 BEING THE UNEXPLAINED CASH DE POSIT IN THE BANK ACCOUNT, MADE ADDITION ON ACCOUNT OF INTEREST ON SAVINGS BANK ACCOUNT AND ON IT REFUND AND DENIED THE CLAIM OF PAGE | 11 EXEMPTION U/S. 54 MADE BY THE ASSESSEE BY FILING A LETTER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE FIND IN A PPEAL THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE, THE REASONS OF WHICH HAVE ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS. A PERUSAL OF THE AOS ORDER SHOWS THAT THERE WAS VE RY LITTLE COMPLIANCE OR NO COMPLIANCE BEFORE THE AO TO EXPLAI N THE VARIOUS DISCREPANCIES. EVEN BEFORE THE CIT(A) THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO SUPPORT THE DISCREPANCIES O F RS.2,72,484/- BEING THE RECEIPTS ON ACCOUNT SALARY/ PROFESSIONAL RECEIPTS. WE FIND THE SUMMON ISSUED BY THE AO TO T HE COMPANY WAS RETURNED BACK UNSERVED WITH THE REMARK COMPANY LEFT. SIMILARLY THE ASSESSEE ALSO COULD NOT ESTABLISH THE NATURE, SOURCE AND GENUINENESS OF THE CASH DEPOSITS IN THE BANK AC COUNT AMOUNTING TO RS.8,43,000/-. THE MERE STATEMENT THA T HE WAS RUNNING AN IMPREST ACCOUNT FOR HIS EMPLOYER AND WIT HDRAWING MONEY FROM THIS ACCOUNT TO MEET THE REQUIRED EXPENS ES AND RE- DEPOSITING THE SAME AS AND WHEN REQUIRED FOR THE B USINESS PURPOSES WAS NOT SUBSTANTIATED WITH SUPPORTING DETA ILS. ASSESSEE ALSO COULD NOT SUBSTANTIATE THE NON DISCLO SURE OF SUCH INTEREST ON SAVINGS BANK ACCOUNT AND INTEREST ON IN COME TAX REFUND. 7.1 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT ASSESSEE HAD ALREADY FILED THE RETURN OF INCOM E BASED ON INCOME SHOWN IN FORM NO. 16 AS SALARY WHICH INCLUDE D PAYMENTS OF RS.4,66,676/-, THEREFORE, CONSIDERING THE SAME A S PAYMENT FOR PROFESSIONAL FEE HAD RESULTED IN DOUBLE ADDITION. I T IS ALSO HIS PAGE | 12 SUBMISSION THAT THE AMOUNT OF RS.22,71,884/- WAS ON ACCOUNT OF REIMBURSEMENT OF EXPENSES BY THE EMPLOYER COMPANY W HICH WERE TRANSFERRED TO HIS ACCOUNT MAINTAINED WITH ICICI BA NK IN ORDER TO MEET THE SITE EXPENSES. SIMILARLY IT IS ALSO HIS S UBMISSION THAT THE AMOUNT OF RS.8,43,000/- ADDED BY THE AO WAS BAS ED ON WRONG AND INCORRECT APPRECIATION OF FACTS. IT IS AL SO HIS SUBMISSION THAT THE ASSESSEE HAS FILED THE STATEMEN T GIVING CASH WITHDRAWN AND DEPOSITED IN THE PAPER BOOK TO SUBSTA NTIATE THE SOURCES OF THE SAME WHICH WERE COMPLETELY IGNORED B Y THE LOWER AUTHORITIES. 8. SO FAR AS THE ADDITION OF RS.12,88,927/- ON ACCO UNT OF LONG TERM CAPITAL GAIN IS CONCERNED, IT IS HIS SUBMISSI ON THAT DESPITE ENQUIRY CONDUCTED BY THE AO AND OBTAINING CONFIRMAT ION FROM THE SOCIETY THAT ASSESSEE HAS SOLD A FLAT THROUGH REGIS TERED SALE DEED DATED 04.05.2011 TO MRS. SUVIDA SINGH FOR CONSIDERA TION OF RS. 35 LACS, THE AO WRONGLY DETERMINED THE LONG TERM CA PITAL GAIN OF RS.12,68,927/-. CONSIDERING THE TOTALITY OF THE FA CTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO GRA NT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO FILE THE RELEVANT DE TAILS WITH SUPPORTING EVIDENCE TO THE SATISFACTION OF THE AO T O SUBSTANTIATE THE DISCREPANCIES IN THE RETURN FILED VIS A VIZ, TH E AMOUNT REFLECTED IN THE 26 AS STATEMENT AND THE NATURE AND SOURCE OF VARIOUS DEPOSITS BOTH CHEQUE/ CASH / RTGS IN THE BA NK ACCOUNT OF THE ASSESSEE. THE ASSESSEE IS ALSO HEREBY DIREC TED TO SUBSTANTIATE THE NON DISCLOSURE OF INTEREST INCOME ON IT REFUND PAGE | 13 AND SB ACCOUNT AND THE CLAIM OF DEDUCTION U/S. 54. THE AO SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GI VING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25.02.2020. SD/- SD/- (K. NARSIMHA CHARY) (R.K PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE:- 25 .02.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 25.02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 25.02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.02.2020 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER