Sunil Rastogi, New Delhi V. ITO, New Delhi

ITA 5755/DEL/2014

• Counselvise Citation: 575520114 RSA 2014
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 27-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEVI SHARAN SINGH
• Assessee Lawyers: VINEET GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH SMC SMC SMC SMC : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT ITA NO ITA NO ITA NO ITA NO . .. . 5755/DEL/2014 5755/DEL/2014 5755/DEL/2014 5755/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2010 2010 2010 2010 - -- - 11 1111 11 SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, BW 102C, BW 102C, BW 102C, BW 102C, SHALIMAR APARTMENTS, SHALIMAR APARTMENTS, SHALIMAR APARTMENTS, SHALIMAR APARTMENTS, SHALIMAR BAGH, SHALIMAR BAGH, SHALIMAR BAGH, SHALIMAR BAGH, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 088. 110 088. 110 088. 110 088. PAN : AEA PAN : AEA PAN : AEA PAN : AEAPR2946C. PR2946C. PR2946C. PR2946C. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -29(2), 29(2), 29(2), 29(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEET GUPTA, CA. RESPONDENT BY : SHRI DEVI SHARAN SINGH, SR.DR. DATE OF HEARING : 14.07.2015 14.07.2015 14.07.2015 14.07.2015 DATE OF PRONOUNCEMENT : 03.08.2015 03.08.2015 03.08.2015 03.08.2015 ORDER ORDER ORDER ORDER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-1 1 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXV, NE W DELHI DATED 29 TH AUGUST, 2014. 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE LD.A.O. IN MAKING ADDI TION OF RS.2,82,678/- ON PROTECTIVE BASIS. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE LD.A.O. IN MAKING ADDI TION OF RS.2,82,678/- ON ACCOUNT OF CLUBBING THE BUSINESS TURNO VER OF THE APPELLANTS WIFE TO THE BUSINESS TURNOVER OF THE APPELLANT. ITA-5755/DEL/2014 2 3. THAT THE ACTION OF LD.CIT(A) IN CONFIRMING THE A CTION OF LD. ASSESSING OFFICER IN MAKING THE IMPUGNED ADDITIO N AND FRAMING THE IMPUGNED ASSESSMENT ORDER IS CONTRARY T O LAW AND FACTS AND WITHOUT CONSIDERING THE GROUNDS OF APPEAL AND BY RECORDING INCORRECT FINDING AND THE SA ME IS NOT SUSTAINABLE ON LEGAL AND FACTUAL GROUNDS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE WAS HAVING A JOINT SAVINGS BANK ACCOUNT ALONG WIT H HIS WIFE AND THE ASSESSEE HAS EXPLAINED THAT SOME ENTRIES IN THE B ANK ACCOUNT RELATE TO HIS WIFE. HOWEVER, THE ASSESSING OFFICER, INST EAD OF MAKING PROPER ENQUIRIES, HAS ADDED THE ENTRIES OF THE WIFE AL SO IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. HE SUBMITTED THAT THE W IFE OF THE ASSESSEE IS AN EXISTING INCOME TAX ASSESSEE AND HAS FILED HER RETURN OF INCOME YEAR AFTER YEAR. HE REFERRED TO THE COMPUTA TION OF THE TOTAL ASSESSABLE INCOME FOR THE VARIOUS ASSESSMENT YEARS ALONG WIT H THE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE DEPARTMENT IN THE CASE OF THE WIFE OF THE ASSESSEE SMT. SONIA RASTOGI. THE LEARNE D COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO ADDITION ON SUBSTANTIVE BASI S WAS EVER MADE IN THE ASSESSMENT OF THE WIFE OF THE ASSESSEE NOR ANY ENQUIRY WAS CONDUCTED IN HER CASE. THE LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERU SED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). I FIND THAT THE BASIC FACTS OF THE CASE ARE NOT IN DISPUTE. THE SAVINGS BANK ACCOUNT WAS JOINT IN THE NAME OF THE ASSESSEE AND HIS WIFE. THE ASSESSEE HAS EXPLAINED THAT SOME OF THE ENTRIES MADE IN THIS JOINT SAVINGS BANK ACCOUNT BELONGED TO THE WIFE OF THE ASSESSEE. THE WIFE OF THE ASSESSEE IS A SEPARATE EXISTING INCOME TAX ASSESSEE AND HAS FILED H ER RETURN OF INCOME YEAR AFTER YEAR AND THE ASSESSEE HAS FILED NECESSA RY EVIDENCE IN THE COMPILATION FILED BEFORE THE TRIBUNAL. THE ASSESSING OFFICER HIMSELF WAS NOT SURE ABOUT THE VALIDITY OF THE ADDITIO N PERTAINING TO THE ITA-5755/DEL/2014 3 ENTRIES OF THE WIFE OF THE ASSESSEE IN THE JOINT BANK AC COUNT AS HE HAS MADE THE ADDITION ON PROTECTIVE BASIS ONLY. THE LEA RNED COUNSEL FOR THE ASSESSEE HAS CLAIMED THAT NO ADDITION ON SUBSTANTIVE B ASIS WAS EVER MADE IN THE CASE OF THE WIFE OF THE ASSESSEE. THIS STATEMENT OF THE ASSESSEE COULD NOT BE CONTROVERTED ON BEHALF OF THE REVENUE. NO ENQUIRY REGARDING THE ENTRIES PERTAINING TO THE WIFE OF THE ASSESSEE WAS MADE BY THE ASSESSING OFFICER. IN THESE FACTS OF THE CASE, I AM OF THE CONSIDERED OPINION THAT THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE WAS WITHOUT ANY BASIS OR VALID REASON AND, ACCORDINGLY, THE ADDITION MADE IS DELETED. GROUND NOS.1 TO 3 OF T HE ASSESSEES APPEAL ARE ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2015. SD/- (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, SHRI SUNIL RASTOGI, BW 102C, SHALIMAR APARTMENTS, BW 102C, SHALIMAR APARTMENTS, BW 102C, SHALIMAR APARTMENTS, BW 102C, SHALIMAR APARTMENTS, SHALIMAR BAGH, NEW DELHI SHALIMAR BAGH, NEW DELHI SHALIMAR BAGH, NEW DELHI SHALIMAR BAGH, NEW DELHI 110 088. 110 088. 110 088. 110 088. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -29(2), NEW DELHI. 29(2), NEW DELHI. 29(2), NEW DELHI. 29(2), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR