ITO, New Delhi V. Sh. Narender Kumar Anand, Delhi

ITA 5670/DEL/2012

• Counselvise Citation: 567020114 RSA 2012
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA
• Assessee Lawyers: R S AHUJA
• Keywords: Gift; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E , NEW DELHI) BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 5670/DEL/2012 ASSESSMENT YEAR : 2007-08 ITO, WARD 21(3), VS. SH. NARENDER KUMAR ANAND, NEW DELHI H.NO.4, VILALGE SANOTH, NARELA, DELHI-110 040 GIR / PAN:AGAPA0077B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P. DAM KANUNJHA, SR. DR RESPONDENT BY : SHRI R. S. AHUJA, CA DATE OF HEARING : 11.03.2015 DATE OF PRONOUNCEMENT : 25.03.2015 ORDER PER T.S. KAPOOR, AM: THIS IS REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A) DATED 24.08.2012. THE ONLY EFFECTIVE GROUND RAISED BY RE VENUE IS AGAINST ACTION OF LD. CIT(A) BY WHICH HE HAS DELETED ADDITION OF R S.12.48 LACS WHICH WAS MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH FOU ND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING ASSE SSMENT PROCEEDINGS, THE A.O. OBSERVED THAT THE ASSESSEE HAD DEPOSITED AN AM OUNT OF RS.15.28 LACS IN HIS BANK ACCOUNT WITH CORPORATION BANK, NARELA, DEL HI AND ON BEING ASKED, THE ASSESSEE SUBMITTED THAT PART OF CASH WAS LYING AS OPENING BALANCE AMOUNTING TO RS.8,79,180/- AND FURTHER HE HAD CLAIM ED TO HAVE SOLD CERTAIN ITA NO.5670/DEL/2012 2 LAND FORM WHICH AN AMOUNT OF RS.2.80 LACS WAS RECEI VED. THE A.O. DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE THAT OPENING BALANCE WAS KEPT AS CASH IN HAND. HOWEVER HE ACCEPTED THE CONTENTION REGARD ING THE SALE OF LAND AND AFTER CONSIDERING THE SALE OF LAND, MADE A NET ADDI TION OF RS.12.48 LACS. 3. AGGRIEVED BY THE ORDER, ASSESSEE FILED APPEAL BE FORE LD. CIT(A) AND SUBMITTED VARIOUS CONTENTIONS INCLUDING ADMISSION O F ADDITIONAL EVIDENCE AS PER RULE 46A OF THE ACT AND THE ADDITIONAL EVIDENCE WAS IN THE FORM OF BANK STATEMENT OF BANK OF INDIA. BEFORE LD. CIT(A), THE ASSESSEE CLAIMED THAT ABOVE EVIDENCE COULD NOT BE FILED WITH THE A.O. AS THE THEN COUNSEL HAD OMITTED TO FILE THE SAME BEFORE THE A.O. AND THEREF ORE, THE THEN COUNSEL HAD ALSO FILED AFFIDAVIT IN THIS RESPECT. LD. CIT(A) A FTER OBTAINING REMAND REPORT FORM A.O., ACCEPTED THE ADDITIONAL EVIDENCE AND A.O . HOWEVER OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE AND DID NOT CO MMENT UPON MERITS. HOWEVER, LD. CIT(A) ACCEPTED THE ADDITIONAL EVIDENC E AS IN HIS OPINION THESE WERE CONSEQUENTIAL DOCUMENTS FOR ARRIVING AT APPROPRIATE DECISION IN THE CASE. THE ASSESSEE ALSO FILED A DETAILED CASH FLOW STATEMENT STARTING FORM 01.04.2004 WHEREIN DEPOSITS AND WITHDRAWALS FROM SU CH BANK ACCOUNT WAS TAKEN INTO CONSIDERATION. LD. CIT(A) ACCEPTED THE CONTENTION OF ASSESSEE AND DELETED THE ADDITION. AGGRIEVED, THE REVENUE I S IN APPEAL BEFORE US. 4. AT THE OUTSET, LD. D.R. SUBMITTED THAT CASH FLOW STATEMENT PREPARED AND SUBMITTED BEFORE LD. CIT(A) CANNOT BE RELIED UP ON IN VIEW OF THE FACT THAT MAJOR CASH IN HAND CLAIMED WAS ON ACCOUNT OF A GIFT RECEIVED FROM FATHER OF ASSESSEE WHICH WAS RECEIVED IN DECEMBER 2 004 AND, THEREFORE, SHOULD NOT HAVE BEEN CONSIDERED FOR THE PURPOSE OF CONSIDERING AS OPENING CASH BALANCE WITH THE ASSESSEE. MOREOVER, IT WAS S UBMITTED THAT KEEPING SUCH LARGE CASH BALANCE IN HAND IS ALSO AGAINST HUM AN PROBABILITIES. ITA NO.5670/DEL/2012 3 5. LD. A.R. ON THE OTHER HAND INVITED OUR ATTENTION TO VARIOUS COPIES OF BANK ACCOUNT STATEMENTS PLACED AT PAPER BOOK PAGES 41-46. LD. A.R. ALSO INVITED OUR ATTENTION TO PAPER BOOK PAGES 47-61 WHE RE A COPY OF CASH FLOW STATEMENT AND AFFIDAVIT FROM FATHER OF ASSESSEE REG ARDING CONFIRMATION OF GIFT OF RS.20 LACS AND ALSO DOCUMENTS REGARDING GIF T FROM FATHER-IN-LAW WAS PLACED. LD. A.R. SUBMITTED THAT LD. CIT(A) AFTER V ERIFYING THE FACTS AND CIRCUMSTANCES AND FIGURES HAD ARRIVED AT THE CONCLU SION THAT SUFFICIENT BALANCE WAS THERE BEFORE DEPOSITING CASH IN THE BAN K AND THEREFORE, HAS RIGHTLY DELETED THE ADDITION. WITHOUT PREJUDICE TO THE ABOVE, LD. A.R. FURTHER SUBMITTED THAT SINCE ASSESSEE WAS NOT MAINT AINING BOOKS OF ACCOUNTS THEREFORE, ADDITION U/S 68 WAS NOT WARRANTED AS PAS SBOOK CANNOT BE CONSTRUED TO THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 6. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE BEFORE LD. CIT(A) HAD FIELD DETAILS OF CASH DEPOSITS AND DETAILS FROM 01.04.2004 ONWARDS DURING WHICH PERIOD THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.20 LACS AS GI FT FROM HIS FATHER. THE FATHER OF ASSESSEE HAD MADE GIFT OUT OF MONEY RECEI VED FROM GOVERNMENT ON ACQUISITION OF LAND. THE AFFIDAVIT OF FATHER ALONG WITH DOCUMENTS EVIDENCING ACQUISITION OF LAND ARE PLACED IN PAPER BOOK PAGES 58-61 AND THE SAID AMOUNT OF RS.20 LACS WAS DEPOSITED IN BANK OF INDIA ACCOUNT WHICH IS APPARENT FROM PAPER BOOK PAGE 41. THE ASSESSEE HAD BEEN WITHDRAWING FROM THIS AMOUNT AND WAS DEPOSITING AGAIN IN THIS A CCOUNT AND AGAIN HAS WITHDRAWN FROM THIS ACCOUNT AND THE LAST WITHDRAWAL FROM THIS ACCOUNT WAS ON THE FOLLOWING DATES: 25.11.2005 1.25 LACS 29.11.2005 2.40 LACS 19.12.2005 3.20 LACS ITA NO.5670/DEL/2012 4 6.1 THESE FACTS ARE VERIFIABLE FORM PAPER BOOK PAGE 41 AND EVEN LD. CIT(A) AT PAGE 10 HAS ALSO NOTED ALL THESE FACTS. BESIDES ABOVE, LD. CIT(A) HAS NOTED IN HIS ORDER AT PAGE 10 THE FOLLOWING WIT HDRAWALS FROM CORPORATION BANK: 20.12.2005 1.50 LACS 02.01.2006 1.00 LACS 17.03.2006 1.03 LACS 15.06.2006 2.00 LACS 11.08.2006 2.00 LACS 6.2 THE TOTAL OF THESE WITHDRAWALS COMES OUT AT RS. 14.28 LACS. THEREFORE, DEPOSITS DURING THE PERIOD OF MAY 2006 TO FEB 2007 CAN BE RIGHTLY RELATED TO THESE WITHDRAWALS AS A.O. HAS NOT FOUND UTILIZATION OF THIS AMOUNT FOR ANY OTHER PURPOSE THEREFORE, IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, ADDITION MADE BY A.O. AMOUNTING TO RS.12.48 LACS ON ACCOUNT OF CASH DEPOSITS HAS BEEN RIGHTLY DELETED BY LD. CIT(A) AND WE DO NOT FI ND ANY INFIRMITY IN THE SAME. 7. IN VIEW OF ABOVE, APPEAL FILED BY REVENUE IS DIS MISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2015. SD./- SD./- ( G. C. GUPTA) (T.S. KAPOO R) VICE PRESIDENT ACCOUNTANT MEMBER DATE: 25 TH MARCH, 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.5670/DEL/2012 5 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 16/3 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 17,23 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 25/3 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 25/3 SR. PS/PS 7 FILE SENT TO BENCH CLERK 25/3 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER