Dr. Shakuntala Bhatnagar, New Delhi V. ACIT, New Delhi

ITA 5649/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6458 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA CHAUDHURI
• Section: 143(3); 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5649/DEL/2014 A.Y. : 2009-10 DR.SHAKUNTALA BHATNAGAR C/O RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI 49 (PAN: AAAPB1779P) VS. ACIT, CIRCLE-39(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SOMIL AGGARWAL, ADV. DEPARTMENT BY : MS. BEDOBINA CHAUDHURI, SR. DR ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NE W DELHI DATED 15.9.2014 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT DELETING THE ADDITION OF RS.16,05,000/-- FULLY AS M ADE BY LD. AO AND HAS FURTHER ERRED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS.14,00,000/-- ON ACCOUNT OF CASH DEPOSI TED IN 2 UNION BANK AND THAT TOO WITHOUT CONSIDERING THE SUB MISSIONS AND VARIOUS EVIDENCES FILED BY THE ASSESSEE AND MOR E SO WHEN SOURCE OF THE SAME HAVE BEEN DULY EXPLAINED BY THE ASSESSEE ALONG WITH DOCUMENTARY EVIDENCES. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT THE SOURCE OF RS.14,00,000/- IS CLEARLY NOT E XPLAINED. 3. THAT IN ANY CASE AND ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN SUSTAINING THE ADDITION OF RS. 14,00,000/ - MADE BY LD. AO WHICH IS CONTRARY TO LAW AND FACTS, VOID AB INITIO, BEYOND JURISDICTION, AND WITHOUT GIVING ADEQUATE OP PORTUNITY OF HEARING, BY RECORDING INCORRECT FACTS AND FINDIN GS AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUA L GROUNDS. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234B, 234C AND 234D OF THE INCOME TAX ACT, 1961. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING 3 AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME IN THIS CASE WAS FILED ON 29-3-2010 DECLARING INCOME OF RS. 23,63,9 80/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. ACCORDINGLY, NOTICE U/S. 1 43(2) OF THE I.T. ACT WAS ISSUED ALONGWITH THE NOTICE U/S.142(1) OF THE I.T. ACT ON 8.7.2011. IN COMPLIANCE THERETO, THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED NECESSARY DETAILS /INFORMATION/DO CUMENTS ETC. AS REQUIRED. BOOKS OF ACCOUNTS PRODUCED AND EXAMINED ON TEST CHE CK BASIS. THE ASSESSEE IS A DOCTOR AND SHOWN INCOME FROM PROFESSION AS DOCTOR, INCOME FROM PENSION AND SALARY, INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES DURING THE FINANCIAL YEAR 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS SHOWN GROSS RECEIPTS FROM PROFESSION RS. 4,80,000/- AND NET PROFIT OF RS. 1,91,520/-. ACCORDING TO THE AIR INFORMATION, T HE ASSESSEE HAS DEPOSITED CASH OF RS. 16,05,000/- IN HER SAVING BANK ACCOUNT. THE ASSESSEE WAS ASKED TO PROVIDE THE EXPLANATION REGARDING SOURCE OF CASH DE POSIT. ACCORDINGLY, ASSESSEE SUBMITTED HER REPLY. AFTER PERUSING THE R EPLY, THE AO OBSERVED THAT SINCE THE ASSESSEE HAS GIVEN TWO DIFFERENT REPLIES FOR DEPOSIT OF CASH THEREFORE CANNOT BE ACCEPTED, HENCE, RS. 16,05,000/- IS ADDED TO THE RETURNED INCOME OF THE ASSESSEE AND COMPLETED THE ASSESSMENT AT RS. 3 9,68,980/- VIDE HIS ORDER DATED 31.12.2011 PASSED U/S. 143(3) OF THE I.T. ACT , 1961. 4 4. AGGRIEVED WITH THE ASSESSMENT ORDER, ASSESSEE AP PEALED BEFORE THE LD. CIT(A) WHO VIDE HIS IMPUGNED ORDER DATED 15.9.2014 HAS PARTLY GIVEN RELIEF OF RS. 2,05,000/- AND CONFIRMED THE ADDITION OF RS. 14 ,00,000/-. 5. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSE SSEE HAS SUBMITTED THAT THE ONLY EFFECTIVE ISSUE IN THE PRESENT APPEAL IS REGAR DING THE ADDITION OF RS.14,00,000/- BEING THE AMOUNT OF CASH DEPOSITED I N THE BANK BY HOLDING ITS UNEXPLAINED INCOME OF THE ASSESSEE. ASSESSEE DEPOSI TED THE SAID AMOUNT IN HER BANK ACCOUNT, WHICH WAS RECEIVED BY HER AGAINST THE SALE OF PROPERTY FROM THE BUYER M/S HARYANA WOVEN SACK P. LTD. SHE HAS RETUR NED THIS AMOUNT THROUGH BANKING CHANNEL ON CANCELLATION OF THE DEAL. IN SUP PORT OF THIS ARGUMENTS, LD. COUNSEL HAS FILED THE PAPER BOOK CONTAINING PAGES 1 TO 98 IN WHICH HE HAS ATTACHED COPY OF NOTICE/QUESTIONNAIRE U/S. 142(1) D ATED 8.7.2011; COPY OF QUESTIONNAIRE DATED 13.9.2011; COPY OF NOTICE U/S.1 43(2) DATED 13.9.2011; COPY OF ASSESSEES REPLY DATED 14.11.2011, FILED ON ACIT ; COPY OF ITS DETAILS DATED 21.9.2011; COPY OF REASONS FOR TAKING THE CASE IN S CRUTINY; COPY OF ITS DETAILED DATED 26.7.2011; COPY OF AGREEMENT TO SELL DATED 18 .3.2009; COPY OF BANK STATEMENTS OF UNION BANK OF INDIA; COPY OF ITR OF A SSESSEE FOR AY 2009-10 ALONGWITH COMPUTATION OF INCOME OF THE SAME; COPY O F FORM 16 FOR AY 2009- 10; COPY OF ASSESSEES RPELY TO ACIT; COPY OF INCOM E AND EXPENDITURE ACCOUNT FOR THE YEAR ENDING 31.3.2009; COPY OF SHOW CAUSE L ETTER DATED 30.11.2011; COPY OF CONFIRMATION CERTIFICATE DATED 14.12.2011 FROM M /S HARYANA WOVEN STOCK COPY OF CASH WITHDRAWAL DETAILS DURING FY 2008-09 C OPY OF DETAILS OF CASH ACCOUNT FOR FY 2008-09; COPY OF LETTER TO ACIT INFO RMING THAT MR. DAVID, ASSESSEES ACCOUNTANT HAS FILED DETAILS WITHOUT SHO WING OR CONSULTING THE ASSESSEE; COPY OF AFFIDAVIT ALONGWITH COVERING LETT ER DATED 30.12.2011 CONFIRMING THE PAYMENT MADE TO THE ASSESSEE BY SH. MADAN SAMAL; COPY OF AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT O F M/S HARYANA WOVEN SACK 5 PVT. LTD. AS ON 31.3.21009; COPY OF ITR OF M/S HARY ANA WOVEN SACK PVT. LTD OR AY 2009-10; COPY OF PAN CARD OF M/S HARYANA WOVE N SACK PVT. LTD; COPY OF THE SALE AGREEMENT DATED 18.3.2009 SIGNED BY DR. MADAN MOHAN (HUSBAND OF SMT. SHAKUNTALA BHATNAGAR); COPY OF WRITTEN SUBMISS IONS SUBMITTED BEFORE LD. CIT(A) ON 24.12.2012; COPY OF ASSESSEES LETTER FIL ED BEFORE LD. CIT(A) SUBMITTING CASH BOOK OF ASSESSEE FOR FINANCIAL YEAR OF 2007-08; COPY OF ASSESSEE LETTER DATED 10.9.2013 SUBMITTED BEFORE LD. CIT(A) ALONGWITH COPY OF CANCELLATION AGREEMENT BEWEEN ASSESSEE AND M/S HARY ANA WOVEN SACK PVT. LTD; PHOTOCOPY OF CHEQUE OF RS. 13,00,000/- SHOWIN G PAYMENT MADE BY ASSESSEE M/S HARYANA WOVEN SACK PVT. LTD; PHOTOCOPY OF PASS BOOK OF ASSESSEE SHOWING PAYMENT OF RS. 13,00,000/-; COPY O F ASSESSEES REJOINDER SUBMITTED BEFORE LD. CIT(A) ON 2.3.2014 IN RESPONSE TO THE FIRST REMAND REPORT; COPY OF ASSESSEES LETTER DATED 19.5.2014 SUBMITTED TO AO DURING REMAND PROCEEDINGS ALONG WITH COPY OF CONFIRMATION DATED 3 1.8.2013; COPY OF BANK STATEMENT OF M/S HARYANA WOVEN SACK PVT. WITH AXIS BANK AND ITS CONFIRMATION TOGETHER WITH; COPY OF ASSESSEES REJO INDER SUBMITTED BEFORE LD. CIT(A) ON 12.9.2014 IN RESPONSE TO THE SECOND REMAN D REPORT. HENCE, HE REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELET ED. 6. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER S OF THE LOWER AUTHORITIES AND OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE A SSESSEE. 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH THE RELEVANT RECORDS AVAILABLE WITH ME ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE PAPER BOOK FILED BY THE ASSESSEE. I FIND THAT THE ONLY EFFECTIVE ISSUE IN THE PRESENT APPEAL IS R EGARDING THE ADDITION OF RS.14,00,000/- BEING THE AMOUNT OF CASH DEPOSITED I N THE BANK BY HOLDING ITS UNEXPLAINED INCOME OF THE ASSESSEE. I FURTHER FIND THAT THE ASSESSEE DEPOSITED THE SAID AMOUNT IN HER BANK ACCOUNT, WHICH WAS RECE IVED BY HER AGAINST THE SALE OF PROPERTY FROM THE BUYER M/S HARYANA WOVEN SACK P . LTD. VIDE AGREEMENT TO 6 SELL DATED 18.3.2009, COPY THEREOF IS PLACED AT PAG E NO. 12 OF THE PB AND WHICH SHE HAS RETURNED BACK THROUGH BANKING CHANNEL VIDE CHEQUE NO. 008720 OF UNION BANK OF INDIA DATED 31.8.2013 PHOTOCOPY THERE OF IS PLACED AT PAGE NO. 95 OF THE PB, ON CANCELLATION OF THE DEAL, A PHOTO COPY OF CERTIFICATE DATED 31.8.2013 IN THIS BEHALF IS AT PAGE NO. 94 OF THE PB. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I DELETE THE ADDITION OF RS. 14 LACS CONFIRMED BY THE LD. CIT(A) AND ALLOW THE GROUND RAISED BY THE ASSES SEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/03/201 7. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 24/03/2017 SRBHATNAGAR COPY FORWARDED TO: - 1.APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR , ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES