ITO, Roorkee V. Smt. Shiksha Saini, Roorkee

ITA 580/DEL/2013

• Counselvise Citation: 58020114 RSA 2013
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 31-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHIKSHA SAI NI SELF
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G: NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NO. 580/DEL/2013 ASSESSMENT YEAR: 2009- 2010 ITO WARD 2, VS. SMT. S HIKSHA SAINI, ROORKEE BH ARAPUR BHORI, POST KHAS ROORKEE, DISTT. HARDWAR BPDPS5215J (APPELLANT) (RESPO NDENT) APPELLANT BY : SHRI VIVEK KUMA R, DR RESPONDENT BY : SMT. SHIKSHA SAI NI, SELF ORDER PER I.C. SUDHIR, JUDICIAL MEMBER IN THE GROUNDS RAISED THE GRIEVANCES OF T HE REVENUE AGAINST THE FIRST APPELLATE ORDER ARE THAT FIRSTLY THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 32,51,735/- MADE ON ACCOUNT OF UNEX PLAINED DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE AND SECONDLY TH E LD. CIT(A) HAS RELIED UPON THE SUBMISSION OF THE ASSESSEE ONLY WITHOUT GI VING OPPORTUNITY OF BEING HEARD TO THE AO. ITA NO. 580/DEL/2013 2 2. IN SUPPORT OF THE GROUNDS THE LD. DR HAS B ASICALLY PLACED RELIANCE ON THE ASSESSMENT ORDER. THE ASSESSEE WHO APPEARED IN PERSON ON THE OTHER HAND HAS TRIED TO JUSTIFY THE RELIEF GIVEN BY THE L D. CIT(A). 3. ON PERUSAL OF ORDERS OF THE AUTHORITIES B ELOW, WE FIND THAT THE AO HAD TREATED THE AMOUNT OF RS. 3251735/- DEPOSITED I N THE ASSESSEES SAVING BANK ACCOUNT IN CASH DURING THE PREVIOUS YEAR AS UN EXPLAINED AND DEEMING IT TOBE HER INCOME. THE ASSESSEE CLAIMED TO BE AN A GENT, MOBILIZING DEPOSITS FOR PACL INDIA LTD. WAS COLLECTING DEPOSIT S FROM VILLAGERS WHO DID NOT HAVE THEIR OWN BANK ACCOUNTS. THE CASH RECEIVED FROM THEM WAS DEPOSITED IN HER OWN BANK ACCOUNT FOR THE SAKE OF C ONVENIENCE. CHEQUES / DDS WERE ISSUED AGAINST THESE DEPOSITS IN FAVOUR OF THE COMPANY PACL INDIA LTD. WHICH ISSUED DEPOSIT RECEIPTS IN THE NAM ES OF THE DEPOSITORS CONCERNED. THUS, SHE WAS ONLY USING HER BANK ACCOUN T FOR CHANNELIZING CASH DEPOSITS MADE BY THE DEPOSITORS. THE MONEY BEL ONGED TO THEM. THEY WERE ALSO THE BENEFICIARIES OF THE INTEREST AS WELL AS THE REDEMPTION VALUES OF THESE DEPOSITS. THE ASSESSEE PRODUCED A DIARY WH ICH SHE CLAIMS TO HAVE MAINTAINED IN REGULAR COURSE OF BUSINESS. IT CONTAI NED DETAILS OF CASH RECEIVED FROM VARIOUS PERSONS ON VARIOUS DATES. ACC ORDING TO THE ASSESSEE THE CASH RECEIPTS ENTRIES IN THE DIARY MATCH WITH T HE CASH DEPOSITS IN HER BANK ACCOUNT. ON THE OTHER HAND THE COMPANY PACL IS SUED DEPOSIT RECEIPTS IN THE NAME OF THE DEPOSITORS CONCERNED (WHOSE NAME S ARE MENTIONED IN ITA NO. 580/DEL/2013 3 THE DIARY) WHO RECEIVED INTEREST AS WELL AS MATURIT Y PROCEEDS FROM THE COMPANY. ON THE BASIS OF THESE SUBMISSIONS THE ASSE SSEE CLAIMED THAT SHE WAS IN A POSITION TO ESTABLISH THAT (1) CASH DEPOSI TED IN HER BANK ACCOUNTS DID NOT BELONG TO HER AND THAT IT BELONGED TO THE R ESPECTIVE DEPOSITORS ; 2) SHE HAD ONLY ALLOWED HER BANK ACCOUNT TOBE USED FOR THE SAKE OF CONVENIENCE ; AND 3) SHE WAS ONLY ENTITLED TO HER COMMISSION FOR THE WORK OF DEPOSITS MOBILIZATION DONE BY HER. THE AO WHILE INITIATING ASSESSMENT PROCEEDINGS ON 24.8.2011 ON 16.12.2011 RAISED QUERY TO THE ASSESSEE THAT SHE HAD UNDER STATED HER INCOME AS SHE HAS CREDITED RS. 42,120/- AS RECEIPTS FROM M/S. PACL LTD. WHEREAS ON PERUSAL TO CREDIT ENTRIES IN IT APPEARS WHAT SHE HAS BEEN CREDITED AN AMOUNT OF RS. 42,320/- CREDITED IN HER ACCOUNT. THE ASSESSEE WAS ACCORDINGLY ASKED TO EXPLAIN WHY THE DIFFERENCE MAY NOT BE TREATED AS HER CONCEALED INCO ME ELIGIBLE FOR PENALTY PROVISION U/S 274 READ WITH SECTION 271(1) OF THE I.T. ACT. THE AO NOTED THAT THERE WAS NO COMPLIANCE TO THE NOTICE TILL THE DUE DATE I.E. 23.12.2011, 10.45 AM. THE ASSESSMENT WAS FRAMED ON 26.12.2011. LD. CIT(A) IN PARA NO. 1.4 OF THE FIRST APPELLATE ORDER HAS NOTED THAT IN THE ABOVE STATED NOTICE DATED 26.12.2011, THE AO HAD ASKED THE ASSESSSEE TO EXPLAIN THE DIFFERENCE OF RS. 200/- BETWEEN THE AMOUNTS OF COMMISSION SHOW N BY HER IN HER RETURN OF INCOME AND THAT CREDITED IN HER ACCOUNT. IF THE ASSESEE FAILED TO COMPLY, THE AO COULD HAVE HELD THAT DIFFERENTIAL AM OUNT AS UNEXPLAINED. BUT THE AMOUNT OF RS. 32,51,735/- (ABOUT WHICH NO Q UERY HAD EVEN BEEN ITA NO. 580/DEL/2013 4 RAISED BY HIM) COULD , BY NO STRETCH OF IMAGINATION , BE PRESUMED TO BE UNEXPLAINED. LD. CIT(A) HAS ACCORDINGLY HELD THAT T HERE WAS NO JUSTIFICATION FOR DEEMING THE SAME AS THE ASSESSEES UNDISCLOSED INCOME AND ADDING THE SAME TO THE RETURN OF INCOME. HE HAS NOTED FURTHER THAT IF THE AO HAD RAISED QUERY ABOUT THE NATURE AND SOURCE OF THIS SU M AND THE ASSESEE FAILED TO EXPLAIN THE SAME, THERE COULD BE A REASON TO LOO K INTO THE MERITS OF HER SUBMISSION AND IF NECESSARY INQUIRE INTO THE CORREC TNESS OF THE SAME. BUT SINCE NO QUERY WAS EVEN RAISED BY HIM THERE IS NO O CCASION TO DO SO. LD. CIT(A) HAS NOTED FURTHER THAT THE ASSESEE HAS SHOWN DOCUMENTS SUGGESTING PRIMA FACIE THAT SHE HAD A VALID EXPLATION IN RESPE CT OF THE NATURE AND SOURCE OF THE SUM. TAKING ACCOUNT ALL THESE FACTS L D. CIT(A) HAS COME TO THE CONCLUSION THAT AO WAS WRONG IN TREATING THE AM OUNT OF RS. 32,51.735/- AS UNEXPLAINED WITHOUT RAISING THE ISSUE IN COURSE OF THE ASSESSMENT PROCEEDINGS AND EVEN WITHOUT ASKING THE ASSESEE TO EXPLAIN THE SAME. IN ABSENCE OF REBUTTAL OF THE ABOVE MATERIAL OBSERVATI ONS OF THE LD. CIT(A) ABOUT THE QUERY RAISED REGARDING THE DIFFERENCE OF RS. 200/- ONLY BETWEEN THE AMOUNTS OF COMMISSION SHOWN BY THE ASSESSEE IN HER RETURN OF INCOME AND THAT CREDITED IN HER ACCOUNT AND IN ABSENCE OF REBUTTAL AGAINST THE ABOVE STATED OTHER OBSERVATIONS ON THE SUBMISSIONS OF THE ASSESEE BY THE REVENUE BEFORE THE TRIBUNAL, WE ARE NOT INCLINED TO INTERFERE WITH THE APPELLATE ORDER, WHICH IS AS DISCUSSED ABOVE, IS R EASONED ONE. THE SAME IS THUS UPHELD. THE GROUNDS ARE ACCORDINGLY REJECTED. ITA NO. 580/DEL/2013 5 4. CONSEQUENTLY APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 ND AUGUST, 2013 SD/- SD/- (G.D. AGRAWAL) ( I.C. SUDHIR ) VICE PRESIDENT JUDICIAL MEMBER DATED 2 ND AUGUST, 2013 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT