DCIT, New Delhi V. Sh. Satish Kumar Raina, Delhi

ITA 5808/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2900 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: U K KAMATH
• Keywords: Unexplained investment
• Section: 133(6)

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P.SAHU, ACCOUNTANT MEMBER ITA NO. 5808/DEL/2014 (ASSESSMENT YEA R: 2009-10) DCIT, CIRCLE-40(1), NEW DELHI. VS SATISH KUMAR RAINA, 38C, SECTOR-13, AYODHAYA ENCLAVE, ROHINI, DELHI-110085. PAN-ACVPR5658L (APPELLANT) (RESPONDENT) APPELLANT BY SH. KAUSHLENDRA TIWARI, SR.DR RESPONDENT BY SH. U.K.KAMATH, ADV. DATE OF HEARING 20.03.2018 DATE OF PRONOUNCEMENT 21.03.2018 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE HAS BEEN DIRECTED AGAINS T THE ORDER OF LD.CIT(A)-XXX, NEW DELHI DATED 13.08.2014 FOR AY 20 09-10 ON THE FOLLOWING GROUNDS:- 1. DELETING THE ADDITION OF RS.37,00,000/- MADE ON AC COUNT OF UNEXPLAINED INVESTMENT IN REC BONDS. 2. DELETING THE ADDITION OF RS.2,01,690/- MADE ON ACCO UNT OF UNEXPLAINED SOURCE OF DEPOSITS OF ADVANCE TAX & SELF ASSESSMENT TAX. 3. DIRECTING THE AO TO GIVE PROPER OPPORTUNITY TO THE APPELLANT IN BOTH THE ABOVE AND ISSUE & VERIFY THE BANK STATEMENT. 4. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE ALL AND ANY OF THE GROUNDS OF APPEAL DURING THE COURSE OF A PPEAL. 5. THE CIT(A) ERRED IN DELETING THE ADDITION MADE ON A CCOUNT OF UNEXPLAINED INVESTMENT AS WELL AS DIRECTING THE AO TO VERIFY THE BANK STATEMENT AND PROVIDE OPPORTUNITY TO THE ASSESSEE, IF ANY ADVERSE VIEW IS FORMED BY THE AO WHICH IS CONTRADICTORY IN NATUR E. ITA NO. 5808/DEL/2014 PAGE | 2 2. LD.CIT(A) AS REGARDS THE ABOVE GROUNDS OF APPEAL NOTED THAT EARLIER ORDER WAS PASSED BY HIS PREDECESSOR LD.CIT(A) ON 28.05.20 13. HOWEVER, ITAT, DELHI BENCH SET ASIDE THE ISSUES TO THE LD. CIT(A) VIDE ORDER DATED 04.04.2014 AND DIRECTED TO RE-DECIDE THESE GROUNDS. THE ASSESSEE CONTENTED BEFORE LD.CIT(A) THAT ABOVE INVESTMENT AND PAYMENT OF TAXES HAVE BEE N MADE THROUGH BANKING CHANNELS. THE WRITTEN SUBMISSIONS WERE ALSO REPROD UCED IN THE APPELLATE ORDER. LD.CIT(A) CONSIDERING THE MATERIAL ON RECOR D DIRECTED THE AO TO VERIFY THE FACTS AND ALLOWED THE APPEAL OF THE ASSESSEE. H IS FINDINGS IN PARA 5 TO 8 ARE REPRODUCED AS UNDER:- 5. I HAVE CONSIDERED THE ISSUE AND ALSO CONSIDERED THE ASSESSMENT ORDER, ORIGINAL APPELLATE ORDER PASSED BY THE CIT(A )-XXX, AND ALSO PERUSED THE ORDER PASSED BY THE HON'BLE ITAT. THE QUESTION BEFORE THE UNDERSIGNED IS THAT THE LD. ASSESSING OFFICER HAS NOT INVESTIGA TED THE DETAILS OF INVESTMENT OF RS.37,00,000/- IN REC BONDS AND RS.2, 01,690/- AS UNEXPLAINED SOURCE OF DEPOSIT OF ADVANCE TAX AND SE LF ASSESSMENT TAX. SINCE AT THE TIME OF REMAND REPORT THE NOTICES WERE NOT SERVED ON THE APPELLANT. IT WAS ALSO PLEADED BY THE DEPARTMENT BE FORE THE HON'BLE ITAT THAT NO ENQUIRY WERE CONDUCTED BY THE LD. CIT HIMSE LF. FORM THE FACTS MENTION IN THE ORDER IT IS CLEAR THAT NOTICES WERE SENT BY THE LD. ASSESSING OFFICER AT THE TIME OF REMAND REPORT TO THE APPELLA NT'S ADDRESS WHICH WAS DISCLOSED IN THE RETURN OF INCOME FILED FOR ASSESSM ENT YEAR 2009-10. HOWEVER, APPELLANT HAS PROVIDED THE TWO ADDRESSES F OR COMMUNICATION IN THE FORM NO.35 WHICH ARE AS UNDER:- (I) UDAYA KUMAR KAMATH FLAT, NO. M-1, 6 COMMUNITY CENTRE, NARAINA INDUSTRIAL AREA, PHASE-1, NEW DELHI - 110085 (II) SATISH KUMAR RAINA 38C, SECTOR-13, AYODHYA ENCLAVE, ROHINI, DELHI - 110085 ITA NO. 5808/DEL/2014 PAGE | 3 IT APPEARS THAT THE LD. ASSESSING OFFICER HAS NOT T AKEN PAIN TO SERVE THE NOTICES ON CORRECT ADDRESS. EVEN THE LD. ASSESS ING OFFICER HAS ENQUIRED THE ADDRESS OF THE APPELLANT U/S 133(6) FR OM THE PRINCIPAL OFFICER OF THE RURAL ELECTRIFICATION CORPORATION LIMITED. T HE LD. ASSESSING HAS NOT ENQUIRED ABOUT THE MOTO OF PAYMENT FOR INVESTMENT O F RS.37,00,000/- FROM THE PRINCIPAL OFFICER OF RURAL ELECTRIFICATION CORP ORATION LIMITED. THE APPELLANT HAS TAKEN THE GROUND NO. 2 FOR NON SE RVE OF THE NOTICE U/S 143(2) DATED 25.08.2010, BECAUSE AT THAT TIME T HE SET PROPERTY 8-31, PAMPASH ENCLAVE, GREATER KAILASH-I, NEW DELHI WAS S OLD. HOWEVER, WHILE FILING THE WRITTEN SUBMISSION AND ALSO FILING THE A PPLICATION UNDER RULE 46A, APPELLANT HAS NOT TAKEN THIS GROUND. DURING TH E RE-APPELLATE PROCEEDING BEFORE THE UNDERSIGNED, APPELLANT HAS NO T MADE ANY COMMENTS ON THIS ISSUE. HENCE, THIS GROUND IS TREATED AS NOT PRESS BY THE APPELLANT. 6. I HAVE CONSIDERED THE DETAILS FILED BY THE LD. AR O F THE APPELLANT WHICH WAS ALSO FORWARDED TO THE LD. ASSESSING OFFIC ER; THE APPLICATION FORM FOR PURCHASING THE REC BONDS CLEARLY INDICATES THE PAN NO. OF THE APPELLANT ACVPR5658L. IT ALSO GIVES THE DETAILS OF THE SBI BANK AND CHEQUE NO, AND DATE OF THE CHEQUE THAT IS 24.03.200 9. THE DATE OF THE CHEQUE IS 24.03.2009, HOWEVER IT IS CLEAR ON 26.03. 2009 AND APPEARING DEBITED ON THE SAME DATE. THE TYPE OF TRANSACTION A ND THE CLEARING THE CHEQUE NO. ALSO APPEARED IN THE BANK STATEMENT FURN ISHED BY THE APPELLANT. FROM THESE FACTS IT IS CLEAR THAT APPELL ANT HAS PAID RS.37,00,000/- TO RURAL ELECTRIFICATION CORPORATION LIMITED THROUGH CHEQUE. THE AMOUNT IS VERIFIABLE AND NO ADDITION CA N BE MADE. HOWEVER, I ALSO FEEL THAT AT THE TIME OF REMAND PROCEEDING THE LD ASSESSING OFFICER HAS NOT ENQUIRED THESE FACTS. HE HAS ENQUIRED ONLY THE PRESENT ADDRESS FROM THE RURAL ELECTRIFICATION CORPORATION LIMITED. THE LD. ASSESSING OFFICER IS DIRECTED TO VERIFY THE BANK STATEMENTS A ND ALSO APPLICATION FORM TO SATISFY THE CLAIM OF THE APPELLANT AT THE TIME O F GIVING APPEAL EFFECT TO THIS ORDER. IF HE IS TAKING ANY ADVERSE VIEW, PROPE R OPPORTUNITY TO THE APPELLANT SHOULD BE PROVIDED. HOWEVER, AFTER VERIFY ING THE DETAILS, I HOLD THAT ADDITION OF RS.37,00,000/- IS NOT PROPERLY MAD E AND IT IS DELETED, SUBJECT TO THE DIRECTION GIVEN TO THE LD. ASSESSING OFFICER. ITA NO. 5808/DEL/2014 PAGE | 4 7. REGARDING THE PAYMENT OF ADVANCE TAX AND SELF ASSES SMENT TAX, THE AMOUNT OF RS.1,40,000/- WHICH WAS PAID THROUGH CHEQ UE REFLECTING ON 15.03.2009 IN THE STATE BANK OF INDIA ACCOUNT IS AL SO VERIFIABLE. THE LD. ASSESSING OFFICER IS DIRECTED TO VERIFY THIS AMOUNT ALSO FROM THE BANK STATEMENT. IF HE IS NOT CONVINCED ABOUT THE CLAIM OF THE APPELLANT HE SHOULD GIVEN PROPER OPPORTUNITY TO THE APPELLANT AN D DECIDE THE ISSUE. SINCE THE AMOUNT IS REFLECTING IN THE BANK ACCOUNT, NO ADDITION CAN BE MADE. THIS AMOUNT OF RS.1,40,000/- WAS TRANSFERRED THROUGH INTERNET BANKING. THE RELATED DOCUMENT WAS FORWARDED TO THE LD. ASSESSING OFFICER AT THE TIME OR REMAND REPORT AND APPEARS A T PAGE 65 OF THE DOCUMENTS. LIKEWISE RS.61,690/- WAS ALSO PAID THRO UGH INTERNET BANKING FROM THE SAME SBI ACCOUNT ON 29.07.2009. THIS AMOU NT IS NOT REFLECTED IN THE BANK STATEMENT FURNISHED FOR THE ASSESSMENT YEA R 2009-10 (F.Y.2008- 09), BECAUSE THE AMOUNT WAS PAID IN THE NEXT FINANC IAL YEAR HOWEVER, THIS AMOUNT IS ALSO VERIFIABLE FROM THE BANK STATEMENT. CONSIDERING ALL THESE FACTS, I FIND THAT THE LD. ASSESSING OFFICER HAS WR ONGLY ADDED RS.1,40,000/- ADVANCE TAX AND RS.61,690/-SELF ASSES SMENT TAX TREATING IT PAYMENT FROM THE UNDISCLOSED SOURCES. AFTER CONSID ERING ALL THE MATERIAL FACTS, I FIND THAT BOTH THE ADDITION THAT IS RS.37, 00,000/- AND RS.2,01,690/- (RS.1,40,000/- + RS.61,690/-) ORDER T O BE DELETED, SUBJECT TO THE DIRECTION GIVEN TO THE LD. ASSESSING OFFICER. 8. IN THE RESULT, THIS APPEAL IS ALLOWED. 3. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET, SUBM ITTED THAT THE AO, ACIT, CIRCLE-64(1), NEW DELHI HAS FORWARDED A LETTER DAT ED 14.03.2018 TO LD. CIT(A); LD. DR, ITAT AND TO THE ASSESSEE IN WHICH IT IS CON FIRMED THAT ALL THE ABOVE INVESTMENTS AND PAYMENTS OF TAX HAVE BEEN VERIFIED BY HIM, STOOD EXPLAINED. THE CONTENTS OF THE LETTER OF THE AO ARE REPRODUCED AS UNDER:- THE DEPARTMENT HAS GONE INTO THE SECOND APPEAL WIT H THE INCOME TAX APPELLATE TRIBUNAL AND GROUNDS OF APPEAL IS THAT DI RECTIONS GIVEN TO THE LEARNED ASSESSING OFFICER WAS NOT COMPLIED WITH. N OW THE ASSESSEE HAS FILED THE BANK STATEMENT COPY OF REC BOND, COPY OF CIT ORDER ALONGWITH ITA NO. 5808/DEL/2014 PAGE | 5 THIS APPLICATION. ON SCRUTINY OF THE BANK STATEMENT I FOUND THAT THE REC BONDS FOR RS. 37,00,000/- WAS PURCHASED OUT OF THE SALE PROCEEDS OF PROPERTY AND BANK STATEMENT SHOWS IT WAS DEBITED TO THE ASSESSEE ACCOUNT ON 26-MAR-2009, FURTHER ADVANCE TAX OF RS. 1,40,000/- AND SELF ASSESSMENT TAX OF RS. 6 L,690/- WAS PAID OUT OF SAV ING ACCOUNT NUMBER 00000030294737884 OF THE ASSESSEE WITH STATE BANK O F INDIA AND WAS DEBITED TO HIS ACCOUNT ON 15-MAR-2009 AND 29-JUL-20 09 RESPECTIVELY. THE ABOVE TRANSACTION WAS VERIFIED BY THE INSPECTOR FOR M THE STATE BANK OF INDIA G.K BRANCH NEW DELHI AND HIS REPORT IS PLACED ON FILE . WITH THESE REMARKS I FOUND THAT THE ABOVE INVESTMEN T OF RS. 37,00,000/- AND PAYMENT OF ADVANCE TAX AND SELF ASS ESSMENT OF RS. 1,40,000/- AND RS. 61,690/- RESPECTIVELY STAND EXPL AINED. 4. THIS FACT IS NOT DISPUTED BY THE LD.DR. CONSIDE RING THE FACTS OF THE CASE IN THE LIGHT OF THE LETTER OF THE AO DATED 14.03.20 18(SUPRA), WE ARE OF THE VIEW THAT NO INTERFERENCE HAS BEEN CALLED FOR IN THE MAT TER. LD.CIT(A) IN THE IMPUGNED ORDER DIRECTED THE AO TO VERIFY THE ABOVE ADDITIONS/ INVESTMENTS AND PAYMENTS OF TAXES. THE AO IN PURSUANCE OF THE ORDE R OF LD.CIT(A) VERIFIED THE SAME FACTS AND FOUND EXPLANATION OF THE ASSESSEE TO BE CORRECT. THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE MATTER. THE DEPA RTMENTAL APPEAL STANDS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 21.03.2018. SD/- SD/- (L.P.SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:-21 ST MARCH, 2018 *AMIT KUMAR* ITA NO. 5808/DEL/2014 PAGE | 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI