ITO, Gurgaon V. Smt. Hema Bajaj, Gurgaon

ITA 5883/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3026 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Principle of natural justice; Additional evidence; Reasonable cause
• Section: 131

Judgement Text

PAGE 1 OF 19 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 5883/DEL/20 14 ASSESSMENT YEAR : 2009-10 ITO WARD-1 (1) GURGAON VS. HEMA BAJAJ 608A, HAMILTON COURT, DLF CITY, PHASE-IV, GURGAON PAN AJQPB3935Q (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A) FARIDABAD DATED 20 TH AUGUST, 2014 FOR ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS :- I. WHETHER LD. CIT(A) IS JUSTIFIED IN ADMITTING THE A DDITIONAL EVIDENCES FILED BY THE ASSESSEE COMPLETELY IGNORING THE FACT THAT THE CIRCUMSTANCES OF THE CASE ARE NOT COV ERED IN RULE 46A OF THE LT. RULES, 1962 WHERE THE CONDITION S TO ACCEPT ADDITIONAL EVIDENCE HAVE BEEN PROVIDED? II. WHETHER LD. CIT(A) IS JUSTIFIED IN DELETING THE ADD ITION OF RS. 25,00,000/- MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES WITHOUT APPRECIATING THE FACT T HAT THE SALE DEED SUBMITTED BY THE ASSESSEE SHOWED THAT THE FLAT SOLD BY THE ASSESSEE WAS NEGOTIATED UPON AT RS.75,00,000/- AND IT DID NOT MENTION ANY SALE OF F URNITURE ASSESSEE BY : MS. BEDOBANI, SR. DR DEPARTMENT BY: SHRI AVINASH MATTA, CA DATE OF HEARING 03/05/2017 DATE OF PRONOUNCEMENT /05/2017 ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 2 & FIXTURE AS INTEGRAL PART OF THE FLAT FOR RS.25,00 ,000/- AS CONTENDED TO BY THE ASSESSEE? III. WHETHER LD. CIT(A) IS JUSTIFIED IN DELETING THE ADD ITION OF RS.25,00,000/- MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES COMPLETELY IGNORING THE FACT TH AT THE PURCHASE VALUE OF FIXTURES, FITTINGS AND AMENITIES WERE 7 LACS ONLY AND THE ASSETS BEING DEPRECIABLE ASSETS, THE SALE PRICE OF THE SAME WAS BOUND TO DECLINE WITH DUE PAS SAGE OF TIME WHEREAS, THE ASSESSEE HAS CLAIMED TO SELL T HEM FOR RS.25 LACS, APPROXIMATELY 4 TIMES THEIR ORIGINAL VA LUE? IV. WHETHER LD. CIT(A) IS JUSTIFIED IN PROVIDING A RELI EF OF RS.4,16,300/- OUT OF RS.4,50,000/- ON ACCOUNT OF CA SH DEPOSIT IN SAVING ACCOUNT COMPLETELY IGNORING THE F ACT THAT NO DETAILS OF ANY ADVERTISEMENT PLACED FOR SALE OF HOUSEHOLD GOODS COULD BE FURNISHED BY THE ASSESSEE? V. WHETHER LD. CIT(A) IS JUSTIFIED IN DELETING THE ADD ITION OF RS.18,20,544/- MADE ON ACCOUNT OF LOAN GIVEN TO HUS BAND FROM UNDISCLOSED SOURCES WITHOUT APPRECIATING THE F ACT THAT NO CASH FLOW STATEMENT ALONGWITH NARRATION AND OTHE R CORROBORATIVE EVIDENCE COULD BE FURNISHED BY THE ASSESSEE? 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. 3. ON GROUND NO. 1 REVENUE CHALLENGED THE ORDER OF LD. CIT(A) IN ADMITTING ADDITIONAL EVIDENCES UNDER RULE 46A OF TH E I.T. RULES. 4. LD. CIT(A) NOTED THAT ASSESSEE FURNISHED ADDITIO NAL EVIDENCES BEFORE HIM WHICH WERE SENT TO THE AO FOR EXAMINATIO N BOTH WITH REGARD TO ADMISSIBILITY OF THE ADDITIONAL EVIDENCE AND TH E MERITS OF ADDITIONS MADE IN THE LIGHT OF ADDITIONAL EVIDENCES . THE ASSESSEE ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 3 SUBMITTED AFFIDAVIT CONTENDING THAT ON SUBMISSIONS OF VARIOUS DOCUMENTS AND INFORMATION, THE AO DID NOT GIVE ADEQUATE OPPOR TUNITY TO PRESENT ASSESSEES CASE, SINCE ON THE DATE FIXED FOR HEARIN G, ASSESSING OFFICER WAS TELEPHONICALLY REQUESTED TO GRANT SOME MORE TIM E AS THE DETAILS SOUGHT FOR WERE QUITE SUBSTANTIVE. DESPITE AGREEING ON THE DAY OF VISIT TO HIM ALONGWITH REQUISITE DETAILS, THE AO AFTER THORO UGHLY PURSUING THE SUBMISSIONS DECLINED TO TAKE ON RECORD THE SUBMISSI ONS CITING CLOSURE OF PROCEEDINGS. THE REQUEST OF THE COUNSEL OF ASSESSEE TO MARK HIS PRESENCE AND TAKE ON RECORD THE SUBMISSIONS EVEN WI TH THE REMARK ON CASE FILE THAT THE ASSESSMENT PROCEEDINGS HAVE BEEN CLOSED WAS ALSO NOT ACCEPTED BY THE AO. HE, THEREFORE, CONTENDED THAT A SSESSRE WAS PREVENTED FROM FURNISHING APPROPRIATE INFORMATION D UE TO SUFFICIENT CAUSE AND HENCE REQUESTED TO ADMIT ADDITIONAL EVIDE NCE UNDER RULE 46A IN THE MATTER. THE AO SUBMITTED HIS REMAND REPORT T O LD. CIT(A). LD. CIT(A) NOTED FROM THE REMAND REPORT OF THE AO THAT AO DENIED TO HAVE REFUSE TO ACCEPT ANY DOCUMENT. THE ASSESSEE FURTHER SUBMITTED AS PER THE AFFIDAVIT DATED 3 RD MARCH, 2012, HIS COUNSEL ATTENDED THE OFFICE OF THE AO ON 21 ST DECEMBER, 2011 AND FILED WRITTEN SUBMISSIONS WHIC H WERE REFUSED TO ACCEPT BY AO. THE ASSESSEES COUNSE L ON NEXT DAY I.E. 22 ND DECEMBER 2011 AGAIN REQUESTED TO AO TO TAKE THE WR ITTEN SUBMISSIONS ON RECORD WHICH WERE NOT TAKEN BY ASSES SING OFFICER. THEREFORE WRITTEN SUBMISSIONS DATED 21 ST DECEMBER 2011 WERE SENT THROUGH SPEED POST ON 23 RD DECEMBER, 2011 WHICH HAVE RECEIVED IN GURGAON OFFICE ON 26 TH DECEMBER 2011. THE NECESSARY EVIDENCE IN THIS ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 4 REGARD HAS ALSO BEEN FURNISHED BEFORE LD. CIT(A) AL ONG WITH TELEPHONIC RECORDS OF COUNSEL FOR ASSESSEE AS AN EVIDENCE TO B RING OUT THE TELEPHONE CALL LOGS OF THE TELEPHONE CALLS BETWEEN THE COUNSEL FOR ASSESSEE AND AO ON 16 TH DECEMBER, 2011. LD. CIT(A) ACCORDINGLY ALLOWED THE ADDITIONAL EVIDENCE TO BE FURNISHED BY THE ASSESSEE. HE HAS RELIED UPON DECISION OF BOMBAY HIGH COURT IN THE CA SE OF PRABHAVATI S. SHAH VS. CIT 231 ITR 1 (BOMBAY) IN WHICH IT WAS HEL D THAT WHERE ADDITIONAL EVIDENCE WAS NECESSARY TO DECIDE THE CON TROVERSY IN REGARD TO GENUINENESS OF TRANSACTION, THE APPELLATE COMMISS IONER SHOULD HAVE CONSIDERED THIS EVIDENCE IN EXERCISE OF HIS POWERS U/S 250 (4) AND (5) OF THE I.T. ACT. IN THE CASE OF ARJAN OASS VS. CIT 1 12 ITR 480 (P & H) , THE HONBLE PUNJAB & HARYANA HIGH COURT HELD THAT IN ALL THESE CASES WHERE REQUEST FOR PERMISSION TO PRODUCE ADDITIONAL EVIDENCE IS BASED ON BONAFIDE GROUND AND SAME IS NOT WITH A VIEW TO CAU SING UNDUE DELAY, THE APPELLATE AUTHORITY IS BOUND TO ACCEPT THE S AME. IN THE CASE OF CIT VS. JIND COOPERATIVE SUGAR MILLS 335 ITR 43 (P & H) , THE HONBLE PUNJAB & HARYANA HIGH COURT HELD THAT THE SPIRIT OF RULE 46A IS FOUNDED ON THE PRINCIPLE OF NATURAL JUSTICE WHICH STAND FULFILLED BY THE FACT THAT CIT(A) OBTAINED AND CONSIDERED THE REMAND REPORT OF THE AO BEFORE ADJUDICATING THE ISSUE BEFORE HIM. LD. CIT(A) ACCOR DINGLY ADMITTED THE ADDITIONAL EVIDENCE WHICH WERE RELEVANT TO THE OTHE R ADDITIONS ON WHICH REVENUE HAS RAISED GROUNDS OF APPEAL. ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 5 5. LD. DR CONTENDED THAT LD. CIT(A) VIOLATED RULE 46A OF I.T. ACT COPY OF THE ORDER SHEET OF THE AO FILED TO SHOW NON COOPERATIVE ATTITUDE OF THE ASSESSEE. LD. DR RELIED UPON ORDER OF ITAT C HANDIGARH BENCH IN THE CASE OF RISHI SAGAR VS ITO 36 TAXMANN. COM 508 IN WHICH IT WAS HELD THAT ASSESSEE HAS FAILED TO ESTABLISH ITS CASE OF REASONABLE CAUSE IN NOT BEING IN POSSESSION OF THE SAID DOCUMENTS DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO THE CONDUCT OF THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS OF HAVING NOT COMPLIED WITH VARIOUS NOTICES AND PUT IN APPEARANCE BEFORE AO DOES NOT MERIT ADMISSIO N OF THESE ADDITIONAL EVIDENCE AT APPELLATE STAGE. ON THE OTHE R HAND LD. COUNSEL FOR ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT THE ADDRESS OF THE ASSESSEE DISC LOSED IN RETURN IS 608-A, HEMILTON COURT, DLF CITY, PHASE-IV, GURGAON. THE ASSESSEE MADE PROPER REQUEST FOR ADDITIONAL EVIDENCE. SINCE THE A O REFUSED TO ACCEPT WRITTEN SUBMISSIONS AND DOCUMENTS ON LAST DATE OF H EARING ON 21 ST DECEMBER 2011 THEREFORE SAME WAS SENT THROUGH SPEED POST TO THE AO ON 23 RD DECEMBER, 2011. COPY OF THE SAME IS FILED ON PAGE 158 OF THE PAPER BOOK .HE HAS REFERRED TO PB 201 TO 203 WHICH ARE NOTICES DATED 21/26 TH DECEMBER, 2011 ISSUED TO THE ASSESSEE, HE THEREFO RE SUBMITTED THAT THE SAME NOTICE HAS BEEN COMPLIED ON THE SAME DAY. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS , I AM NOT INCLINED TO ALLOW THE GROUND OF THE APPEAL OF REVENUE. THE ASSE SSEE HAS GIVEN SUFFICIENT REASONS TO SHOW THAT AO DID NOT ACCEPT T HE WRITTEN ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 6 SUBMISSIONS AND DOCUMENTS ON 21 ST DECEMBER, 2011 AND ON THE SAME DAY THE AO PASSED THE ASSESSMENT ORDER ON 21 ST DECEMBER, 2011. EVEN THE LAST NOTICE IS ISSUED ON 21/26 TH DECEMBER, 2011, THEREFORE THE AO SHOULD NOT HAVE PASS THE ASSESSMENT ORDER ON THE SA ME DAY ON 21 ST DECEMBER 2011 OR HE SHOULD HAVE WAITED TILL 26 TH DECEMBER, 2011. THE ASSESSEE FILED AFFIDAVIT EXPLAINING THEREIN THAT WR ITTEN SUBMISSIONS ALONGWITH DOCUMENTS WERE PRESENTED TO AO ON 21 ST DECEMBER, 2011 WHICH HAVE BEEN REFUSED TO ACCEPT BY THE AO. THE SA ME WAS SENT THROUGH SPEED POST TO THE AO ON 23 RD DECEMBER 2011. THEREFORE, ASSESSEE HAS MADE OUT A CASE THAT AO HAS REFUSED TO ADMIT ADDITIONAL EVIDENCE AND THAT ASSESSEE WAS PREVENTED BY SUFFICI ENT CAUSE FOR NOT PRODUCING THE DOCUMENTS BEFORE AO. THE DECISION CIT ED BY THE LD. CIT(A) SUPPORTS THE FINDINGS OF THE LD. CIT(A) THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT PRODUCING DOCU MENTS BEFORE AO. EVEN THE TELEPHONE CALLS RECORDS BETWEEN ASSESSEES COUNSEL AND AO ALSO SUPPORT THE FACT THAT ASSESSEE WAS REGULARLY I N TOUCH WITH THE AO. IT IS ALSO ADMITTED FACT THAT AO FILED THE REMAND REPO RT BEFORE LD. CIT(A) AND DID NOT RAISE OBJECTION TO THE ADDITIONAL EVIDE NCES. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KULDEEP INDUSTRI AL CORPORATION VS CIT 209 CTR 400 HELD THAT WHEN AO WAS PRESENT BEFORE LD . CIT(A) AND DID NOT RAISE OBJECTION, RULE 46A IS NOT VIOLATED. FURT HER THE EXPLANATION OF ASSESSEE CLEARLY PROVE THAT ASSESSEE WANTED TO PROD UCE THE RELEVANT MATERIAL BEFORE AO ON THE LAST DATE OF HEARING BUT AO DID NOT ACCEPT THE SAME. IT IS ALSO NOT DENIED THAT ADDITIONAL EVIDENC ES WERE RELEVANT AND ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 7 GOES TO THE ROOTS OF THE MATTER. THEREFORE, LD. CIT (A) CORRECTLY EXERCISED HIS JURISDICTION IN ADMITTING ADDITIONAL EVIDENCE. NO INTERFERENCE IS CALLED FOR IN THE MATTER. THIS GROUND OF APPEAL OF REVENUE IS DISMISSED. 7. ON GROUND NO. 2 AND 3, REVENUE CHALLENGED THE DELETION OF ADDITION OF RS. 25 LACS. DURING THE ASSESSMENT YEAR , THE ASSESSEE SOLD HER RESIDENTIAL PLOT NO. 608A, HAMILTON COURT, DLF CITY, PHASE IV AT GURGAON FOR A CONSIDERATION OF RS. ONE CRORE USED FOR RESIDENCE. THE SAID CONSIDERATION OF RS. ONE CRORE WAS ADOPTED WH ILE COMPUTING THE LONG TERM CAPITAL GAINS U/S 48. THE RESIDENTIAL FLA T OWNED BY ASSESSEE WAS SOLD TO BP IT INFRASOFT PVT. LTD. FOR A TOTAL C ONSIDERATION OF RS.ONE CRORE AND FOR WHICH AGREEMENT TO SELL DATED 8 TH SEPTEMBER , 2008 WAS EXECUTED BETWEEN ASSESSEE AND THE PURCHASER. THE SA LE DEED WAS REGISTERED WITH SUB REGISTRAR, GURGAON ON 9 TH SEPTEMBER, 2008 VIDE NO. 14118 FOR RS. 75 LACS. TO ACKNOWLEDGE THE PAYME NT OF CONSIDERATION, THE ASSESSEE ALSO SAID TO HAVE ISSUE D TWO MONEY RECEIPTS, ONE PAYMENT RECEIPT OF DD NO. 008139 DATED 8 TH SEPTEMBER, 2008 OF AXIS BANK FOR RS. 25 LACS TOWARDS THE CONSIDERATION OF FITTINGS AND FIXTURES AND ANOTHER FINAL PAYMENT OF RECEIPT OF RS . 75 LACS FOR WHICH THE SALE DEED HAS BEEN REGISTERED. THE ASSESSEE SAID TO HAVE MADE IMPROVEMENTS IN THE FLAT BY SPENDING RS. 7 .00 LACS DURING FINANCIAL YEAR 2005-06 AND 2006-07. THE AO DISREGARDED THE RECEIPT OF RS. 25 LACS TOWARDS FIXTURES AND FITTINGS AND DID NOT CONSIDER THE SAME FOR WORKING OUT OF LONG TERM CAPITAL GAINS, INSTEAD IN THE ASSE SSMENT ORDER HE HAS ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 8 HELD PART OF CONSIDERATION OF RS. 25 LACS AS INCOME FROM UNDISCLOSED SOURCES. 8. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(A). THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED IN THE I MPUGNED ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT ASSESSEE FILED COMPLETE DETAILS BEFORE AO WHICH ARE AGREEMENT TO SELL, DETAILS OF P URCHASER, THEIR ADDRESS AND COPIES OF FILING OF STATEMENT WITH THE REGISTRAR OF COMPANIES INCLUDING PURCHASERS BALANCE SHEET FOR YE AR UNDER CONSIDERATION. THE AO WAS REQUIRED TO PRODUCE THE P URCHASER PERSONALLY BUT THE REQUEST OF ASSESSE WAS DECLINED. THE AO DI D NOT SUMMON THE PURCHASER FOR CLARIFICATION. IT WAS SUBMITTED THAT OUT OF TOTAL CONSIDERATION OF RS. 1 CRORE 25 LAC WAS PAID ON ACC OUNT OF FIXTURES AND FITTINGS IN THE FLAT. THEREFORE, EVEN IF AGREEMENT TO SELL IS UNREGISTERED, IT CANNOT BE DISREGARDED. THE ASSESSEE FILED CONFIRMAT ION OF TRANSACTION FROM THE PURCHASER WHICH WAS ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A. THE ASSESSEE THEREFORE EXPLAINED SOURCE O F RECEIPTS OF RS. 25 LACS. NO ADDITION IS JUSTIFIED. 9. LD. CIT(A) NOTED THAT AO MADE THE ADDITION DISREGARDING THE AGREEMENT TO SELL WHICH WAS NOT REGISTERED AND THAT PAYMENT RECEIPT IS NOT SIGNED BY PURCHASER. LD. CIT(A) HOWEVER NOTED T HAT ASSESSEE RECEIVED RS. 25 LACS THROUGH AGREEMENT TO SELL AND RECEIPT TO THE SAME IS ALSO EXECUTED. PURCHASER HAS CONFIRMED MAKING PA YMENT OF RS. 25 ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 9 LACS TOWARDS PURCHASE OF FIXTURES AND FITTINGS. THE AGREEMENT IS WITNESSED BY THE EXTERNAL PARTIES. THEREFORE, IT C ANNOT BE DISREGARDED BY AO MERELY BECAUSE IT WAS UNREGISTERED. THE AO AL SO DID NOT ACCEPT THE REQUEST OF THE ASSESSEE TO SUMMON THE PURCHASER FOR EXAMINATION. THE PURCHASER IS COMPANY AND FILED COMPLETE DETAILS WHICH WERE FILED WITH THE REGISTRAR OF THE COMPANY IN WHICH IN ITS SCHEDULE OF ITS ASSET, THE VALUE OF THE FLAT HAS BEEN SHOWN AT RS. 1,08,30 ,500/- INCLUDING RS. 5.25 LACS AS STAMP DUTY. LD. CIT(A) THEREFORE NOTED THAT THESE DETAILS ARE IN PUBLIC DOMAIN AND COULD HAVE BEEN LOOKED INT O EVEN BY AO. LD. CIT(A) ALSO NOTED THAT PURCHASERS HAVE FILED CONFIR MATION WHICH WERE ADMITTED AS ADDITIONAL EVIDENCE TO CONFIRM PAYMENT OF RS. 25 LACS THROUGH BANKING CHANNEL. THE AO HAS NOT CONTRADICTE D THE CONTENTS OF THE CONFIRMATION IN THE REMAND REPORT. LD. CIT(A), THEREFORE ,AGREED WITH SUBMISSION OF ASSESSEE THAT ASSESSEE RECEIVED GENUINE AMOUNT OF RS. 25 LACS FROM THE PURCHASER WHICH IS ON ACCOUNT OF SUPERIOR FIXTURES, FITTINGS IN THE RESIDENTIAL FLAT SOLD BY THE ASSESS EE TO THE COMPANY. THE ADDITION OF RS. 25 LACS WAS ACCORDINGLY DELETED. 10. LD. DR RELIED UPON THE ORDER OF THE AO A ND SUBMITTED THAT IN THE SALE DEED LESSOR AMOUNT IS SHOWN AS CONSIDERATI ON. THEREFORE SOURCE OF RECEIPT OF RS. 25 LACS HAS NOT BEEN EXPLAINED. L D. COUNSEL FOR ASSESSEE HOWEVER, REITERATED THE SUBMISSIONS MADE B EFORE AUTHORITIES BELOW AND REFERRED TO PB 59 WHICH IS CONFIRMATION F ILED BY PURCHASER AND PB 112 AGREEMENT TO SELL IN WHICH IT IS CLEARLY MEN TIONED THAT RS. 25 LACS ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 10 WOULD BE PAID THROUGH BANKING CHANNEL FOR SALE OF F IXTURES AND FITTINGS IN THE PLOT. 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS I AM NOT INCLINED TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELE TING THE ADDITION. ASSESSEE FILED ADDITIONAL EVIDENCES BEFORE LD. CIT( A) WHICH HAVE BEEN ADMITTED INCLUDING THE CONFIRMATION FILED BY THE PU RCHASER. IN THE CONFIRMATION (PB 59) , THE PURCHASER COMPANY HAS C LEARLY MENTIONED FOR MAKING PAYMENT OF RS. 25 LACS AGAINST SALE DEED AND PAYMENT OF RS. 25 LACS MADE THROUGH BANKING CHANNEL AGAINST FIXTURE A ND FITTINGS. THE AO DID NOT CONTRADICT THE CONTENTS OF THE CONFIRMATION . IN THE AGREEMENT TO SELL ALSO SPECIFIC DETAILS ARE GIVEN FOR SELLING TH E PLOT IN QUESTION FOR RS. 1 CRORE INCLUDING THE SALE OF FIXTURE AND FITTINGS. T HE ASSESSEE IS THEREFORE ABLE TO EXPLAIN SOURCE OF RS. 25 LACS AND AS SUCH ADDITION WAS WHOLLY UNJUSTIFIED. EVEN ASSESSEE REQUESTED THE AO TO SUMM ON THE PURCHASER TO CLARIFY THE ABOVE FACTS AND GET CONFIRMATION OF THE TRANSACTION. HOWEVER, THE AO DID NOT ISSUE SUMMONS TO THE PURCHA SERS BY INVOKING HIS POWERS U/S 131 OF THE I.T. ACT. THEREFORE, WHEN AO REFUSED TO SUMMON THE PURCHASER, NO FAULT COULD BE FOUND WITH THE ASSESSEE. FURTHER, THE PURCHASER COMPANY IN THEIR FIXED ASSET S HAS SHOWN THE ENTIRE AMOUNT IN THEIR RECORDS SUBMITTED TO THE REG ISTRAR OF THE COMPANIES. THEREFORE, NOTHING LEFT FOR THE AO TO MA KE ADDITION OF RS. 25 LACS CONSIDERING THE SAME TO BE ASSESSEES OWN INCO ME FOR UNDISCLOSED SOURCES. THE LD. CIT(A) ON PROPER APPRECIATION OF F ACTS AND MATERIAL OF ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 11 RECORD CORRECTLY DELETED THE ADDITIONS. BOTH THESE GROUNDS OF THE REVENUE ARE DISMISSED. 12. ON GROUND NO. 4 REVENUE CHALLENGED THE DE LETION OF ADDITION OF RS. 4,16,300/- ON ACCOUNT OF SALE OF HOUSEHOLD ITEM S. AFTER THE SALE OF RESIDENTIAL FLAT IN GURGAON , THE ASSESSEE SOLD HER HOUSEHOLD ITEMS FOR RS. 4,16,300/- WHICH THE FAMILY ACCUMULATED OVER TH E YEARS. THE CASH RECEIVED ON SUCH SALE ALONGWITH THE BALANCE FROM HO USEHOLD DOMESTIC SAVINGS, ASSESSE DEPOSITED RS. 4,50,000/- IN HER SA VING BANK ACCOUNT ON 19 TH JULY, 2008. IN ABSENCE OF EXPLANATION OR EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE, THE AO TREATED THE SAID DEPOSIT OF CASH AS HER INCOME FROM UNDISCLOSED SOURCES. IT MAY BE NOTED THAT AO A SKED ASSESSEE TO FURNISH PURCHASE BILLS/ VOUCHERS FOR THE ITEMS SOLD BUT NO BILLS AND VOUCHERS HAVE BEEN PRODUCED. THE ASSESSEE IN HER SU BMISSIONS BEFORE LD. CIT(A) REITERATED THAT SHE ALONG WITH HER HUSB AND STAYED IN SINGAPORE AND US BETWEEN 1991 TO DECEMBER, 2002 DUR ING WHICH TIME A LARGE NUMBER OF HOUSEHOLD ITEMS WERE ACQUIRED AND B ROUGHT TO INDIA WHEN THEY RETURNED IN 2002. THE HOUSEHOLD ITEMS WER E BROUGHT IN VIA THE PROFESSIONAL LOGISTIC COMPANY, AIR-SEA LOGISTIC S, OAKLAND, CA (USA). THE DETAILS OF GOODS BROUGHT TO INDIA FROM OAKLAND, USA AS EVIDENCED BY THE PACKING LIST AND ENDORSEMENT OF MADRAS CUSTO MS ABOUT THE TRANSFER OF RESIDENCE IN THE PASSPORT OF THE HUSBAN D OF THE ASSESSEE WERE ALSO SUBMITTED AS ADDITIONAL EVIDENCE. IN THE REMAND REPORT, THE AO DID NOT CHALLENGE THE VERACITY OF THESE DOCUMENT S. THE ASSESSEE FILED ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 12 HER AFFIDAVIT CONFIRMING SALE OF HOUSEHOLD GOODS. T HE AO IGNORED THE AFFIDAVIT OF THE ASSESSEE. THE ASSESSEES HUSBAND L OST HIS JOB AND THEY SHIFTED TO COMBATORE WHERE HE FOUND A JOB AT CHINMA YIA INTERNATIONAL SCHOOL AND WAS PROVIDED WITH A SMALL ACCOMMODATION IN A QUARTER WITH BASIC FURNITURE. THERE WERE NO NEED TO BUY HOUSEHOL D STUFF TO REPLACE THE ITEM SOLD. HOWEVER, THE HOUSEHOLD GOODS WERE PU RCHASED BY THE FAMILY IN NOVEMBER OR DECEMBER 2009 UPON THEIR RETU RN TO GURGAON, SINCE ALL THE PREVIOUS ONES WERE DISPOSED OFF. THE DETAILS OF SUCH HOUSEHOLD PURCHASES WERE PREPARED AND PRESENT TO TH E AO. THE ASSESSEE AS AN ADDITIONAL EVIDENCE PRODUCED THE BIL LS OF PURCHASE OF NEW HOUSEHOLD GOODS. THEREFORE ISSUE IS EXPLAINED TO TH E SATISFACTION OF THE AO. 13. THE LD. CIT(A) NOTED THAT THE AO CONTENDS THAT AS EVIDENCE OF SALE OF HOUSEHOLD ITEMS PURCHASE BILL / VOUCHERS FO R THE ITEMS HAVE NOT BEEN FURNISHED BY ASSESSEE, THEREFORE EXPLANATION O F ASSESSEE WAS NOT ACCEPTED. THE ASSESSEE ALSO PLEADED THAT HOUSEHOLD GOODS WERE BROUGHT FROM USA TO INDIA AND THERE IS AN ENTRY IN PASS PORT OF HUSBAND OF THE ASSESSEE SUPPORTED BY PACKING LIST. LD. CIT(A) NOTE D THAT THE ADDITIONAL EVIDENCES WERE FORWARDED TO THE AO FOR HIS COMMENTS BUT NOTHING ADVERSE HAVE BEEN COMMENTED BY THE AO. 14. LD. CIT(A) CONSIDERING THESE FACTS FOUND EX PLANATION OF THE ASSESSEE AS ACCEPTABLE BECAUSE ASSESSEE SHIFTED FRO M US TO INDIA AND ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 13 BROUGHT HOUSEHOLD ITEMS THROUGH AIR-SEA LOGISTICFS, OAKLAND, USA AS IS EVIDENCED BY ENTRY IN PASSPORT . THE EXISTENCE OF I TEMS SOLD PROVED. LD. CIT(A) ACCEPTED THE AFFIDAVIT OF ASSESSEE THAT SHE HAS SOLD HOUSEHOLD GOODS FOR RS. 4,16,300/- AND ACCORDINGLY THE ADDITI ON TO THE EXTENT OF RS. 4,16,300/- WAS DELETED. THIS GROUND OF APPEAL O F ASSESSEE WAS PARTLY ALLOWED. 15. LD. DR RELIED UPON ORDER OF THE AO AND SU BMITTED THAT NO BILLS ETC. OF SALE OF HOUSE HOLD ITEMS WERE PRODUCED BEFO RE AO. THEREFORE AFFIDAVIT OF ASSESSEE SHOULD NOT HAVE BEEN BELIEVED . ON THE OTHER HAND LD. COUNSEL FOR ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFERRED TO AFFIDAVIT OF AS SESSEE FILED AT PAGE 144 OF THE PAPER BOOK, PAPER BOOK 24 THE COPY OF THE PA SSPORT OF HUSBAND OF THE ASSESSEE AND PAPER BOOK 25 TO 28 IS THE LIST OF ITEMS BROUGHT FROM US TO INDIA. 16. WE HAVE CONSIDERED RIVAL SUBMISSIONS. ASS ESSEE MADE DEPOSIT OF RS. 4,50,000/- IN THE SAVING BANK ACCOUNT ON 19 TH JULY, 2008. THE ASSESSEE HOWEVER CLAIMED THAT CERTAIN HOUSEHOLD ART ICLES WERE TRANSFERRED AND BROUGHT TO INDIA IN THE YEAR 2002. LIST OF ALL THE ARTICLES BROUGHT IN INDIA ARE FILED AT PAGES 25 TO 28 OF THE PAPER BOOK AND ENCLOSED A COPY OF THE PASSPORT OF HUSBAND OF THE A SSESSEE AND THE AFFIDAVIT OF ASSESSEE HAS BEEN FILED AT PAGE 144 OF THE PAPER BOOK IN WHICH ASSESSEE EXPLAINED THAT HE HAS SOLD HOUSEHOL D ARTICLES FOR RS. ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 14 4,16,300/-. THE DETAILS OF HOUSEHOLD ITEMS MENTIONE D IN THE AFFIDAVIT DO NOT EXACTLY MATCH WITH THE LIST OF ITEMS BROUGHT FR OM US. ADMITTEDLY THE ASSESSEE DID NOT PRODUCE ANY BILL, VOUCHERS TO SUPP ORT THE SALE OF HOUSEHOLD ITEMS FOR A SUM OF RS. 4,16,300/-. IN THE ABSENCE OF ANY EVIDENCE OF SALE OF HOUSEHOLD ITEMS EVEN IF THEY AR E ACCUMULATED BY ASSESSEE, THE LD. CIT(A) SHOULD NOT HAVE ACCEPTED T HE AFFIDAVIT OF ASSESSEE REGARDING SALE OF HOUSEHOLD ITEMS FOR A SU M OF RS. 4,16,300/-. NO DETAILS OF THE PERSONS WHO HAVE PURCHASED HOUSEH OLD ITEMS OF ASSESSEE HAVE BEEN FURNISHED TO THE AUTHORITIES BEL OW AS WELL AS NO DETAILS OF THE SAME ARE ALSO EXPLAINED IN AFFIDAVIT OF THE ASSESSEE. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE OF SALE O F HOUSEHOLD ARTICLES BY ASSESSEE AND IN THE ABSENCE OF ANY DETAILS THERE OF, THE LD. CIT(A) SHOULD NOT HAVE ACCEPTED AFFIDAVIT OF ASSESSEE FOR THE PURPOSE OF DELETING THE ADDITION OF RS. 4,16,300/-. THE OBJECT IONS OF THE AO HAVE NOT BEEN APPRECIATED BY THE LD. CIT(A) THAT NO EVID ENCE OF SALE OF HOUSEHOLD ITEMS HAVE BEEN FURNISHED BEFORE AO AND S AME IS THE POSITION THAT NO EVIDENCE OF SALE OF HOUSEHOLD ITEMS HAVE BE EN FILED BEFORE LD. CIT(A). LD. CIT(A) MERELY RELYING UPON AFFIDAVIT OF THE ASSESSEE WHICH WAS ONLY SELF SERVING SHOULD NOT HAVE DELETED THE I MPUGNED ADDITION. I ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE ORDER OF THE AO RESULTANTLY THE ADDITION OF RS. 4,16,300/- I S RESTORED. THIS GROUND OF APPEAL OF REVENUE IS ALLOWED. ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 15 17. ON GROUND NO. 5 REVENUE CHALLENGED THE DE LETION OF ADDITION OF RS. 18,20,544/- ON ACCOUNT OF LOAN GIVEN TO HUSBAND FROM UNDISCLOSED SOURCES. 18. THE FACTS ON THIS ISSUE ARE THAT THERE WE RE CERTAIN TRANSACTIONS BETWEEN ASSESSEE AND HER HUSBAND. AT THE END OF THE PREVIOUS YEAR THESE TRANSACTIONS WERE SUMMARISED AND BALANCE OUTS TANDING AS ON 31 ST MARCH, 2009 FOR RS. 21,89,360.71 TOWARDS HUSBAND WA S TREATED AS LOAN PAYABLE BY THE ASSESSEE. COPY OF THE LOAN ACCOUNT W AS SUBMITTED BY THE ASSESSEE. COPY OF THE BANK STATEMENT OF HOME SAVER ACCOUNT WITH STANADARD CHARTERED BANK WHICH WAS A JOINT ACCOUNT OF HUSBAND AND THE ASSESEE WAS NOT PRODUCED BEFORE AO WHILE OTHERS INCLUDING ONE WITH NORTH KANARA GSB COOPERATIVE BANK WERE FILED BY THE ASSESSEE. THE DEBIT IN THE HUSBANDS LOAN ACCOUNT AGGREGATED RS. 23,20,544/- THAT HAS BEEN CONSIDERED AS LOAN GIVEN TO HUSBAND BY THE AO. AN AMOUNT OF RS. 5 LACS HAS BEEN PAID BY THE ASSESSEE TO HER HUSBAND BY CHEQUE DRAWN ON NORTH KANARA GSB COOP BANK ON 15 TH NOVEMBER, 2008. IN ABSENCE OF FURTHER DETAILS, THE AO CONSIDERED RS. 18,20,54 4/- AFTER REDUCING RS. 5 LAC AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SO URCES AND ADDITIONS OF THE SAME WERE MADE TO THE TOTAL INCOME OF THE AS SESSEE. THE ASSESSEE MADE DETAILED SUBMISSION BEFORE LD. CIT(A) WHICH IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE ASSES SEE BRIEFLY EXPLAINED THAT AO IGNORED ALL THE ENTRIES OF THE AM OUNT RECEIVED BY THE ASSESSEE ON HER HUSBANDS ACCOUNT INCLUDING THE OPE NING BALANCE. THE ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 16 INTER-SE ENTRIES OF TRANSACTIONS ON ACCOUNT OF HUSB AND AND THE ASSESSEE DURING THE YEAR ARE SUMMARISED AT THE YEAR END AND NET BALANCE AT THE YEAR END IS CONSIDERED AS LOAN TO /FROM HUSBAND/WIF E. THE ASSESSEE FILED COMPLETE DETAILS AND CONFIRMATION FROM THE HUSBAND CONFIRMING THE LOAN ACCOUNT AS WELL AS COPY OF INCOME TAX ACKNOWLEDGEM ENT WAS FILED BEFORE AO. THE HUSBAND OF THE ASSESSEE IS REGULAR A SSESSEE AND HAS SUFFICIENT INCOME SHOWN TO THE REVENUE DEPARTMENT. THE ENTRIES ON ACCOUNT OF INTERMITTENT TRANSACTIONS ON BEHALF OF EACH OTHER BETWEEN HUSBAND AND THE ASSESEE HAVE BEEN DONE THROUGH HOME SAVER BANK JOINT ACCOUNT BY WAY OF CHEQUES OR ON ONLINE BANK T RANSFERS ONLY. THE SAME STATEMENTS ARE ALSO FILED AS ADDITIONAL EVIDEN CE UNDER RULE 46A.THE AO IN HIS REMAND REPORT STATED THAT NO DOUB T THERE ARE DEPOSIT ENTRIES OF RS. 20,08,755/- DESPITE OF THE FACT THAT HE ACCEPTS DEPOSITS ENTRIES IN THE LOAN ACCOUNT OF HUSBAND. BUT HE DID NOT ACCEPT LOAN FROM/TO THE SPOUSES INTER-SE. THE AO FAILED TO APPR ECIATE THE ENTRIES IN THE BANK ACCOUNT. THE AO DID NOT DOUBT THE CORRECTN ESS OF THE TRANSACTIONS CONTAINED IN THE BANK STATEMENT AND AF FIDAVIT BY THE ASSESSEE WAS ALSO FILED TO EXPLAIN THE ISSUE. THE L D. CIT(A) CONSIDERED THE MATERIAL ON RECORD AND REMAND REPORT FILED BY T HE AO. LD. CIT(A) FOUND THAT HOME SAVER BANK ACCOUNT IS ASSESSEES A CCOUNT OPERATED JOINTLY BY HUSBAND ALSO. MOST OF THE ENTRIES IN THE SAID LOAN ACCOUNT OF THE HUSBAND AS APPEARING IN THE ASSESSES RECORDS A RE ROUTED THROUGH HOME SAVER ACCOUNT. THE DETAILS ARE NOTED IN THE IM PUGNED ORDER AND COPY OF LOAN STATEMENT WAS SUBMITTED AS ADDITIONAL EVIDENCE IS ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 17 REPRODUCED AT PAGES 40 TO 43 OF ORDER OF LD. CIT(A ). LD. CIT(A) ALSO NOTED THAT PAYMENTS ON ACCOUNT OF HUSBAND MADE FROM THIS JOINT ACCOUNT HAVE BEEN CONSIDERED AS LOAN REPAID TO THE ASSESSEES HUSBAND ON DIFFERENT SERIAL NOS. . AT THE SAME TIME THE PAY MENT RECEIVED BY THE ASSESSEES HUSBAND IN THE SAME JOINT ACCOUNT HAVE B EEN TREATED AS LOAN RECEIVED FROM THE HUSBAND AT DIFFERENT SERIAL NUMBE R. SIMILARLY AMOUNT RECEIVED BY THE HUSBAND ON BEHALF OF THE ASSESSEE B UT DEPOSITED BY HIM IN HIS THAT ACCOUNT IS CONSIDERED AS LOAN PAID TO H IM. LD. CIT(A) ALSO PERUSED HOME SAVER ACCOUNT OF BANK STATEMENT AND F OUND THAT THE AO IN THE REMAND REPORT CONFIRMED THE DEPOSIT OF RS. 2 0,08,755/- IN THE SAID BANK ACCOUNT AND THESE CREDIT ENTRIES HAVE BEE N EXPLAINED. LD. CIT(A) ALSO REPRODUCED THE REMAND REPORT OF THE AO IN WHICH THE AO HAS EXPLAINED THAT THERE ARE NO DOUBT ABOUT THE DEP OSIT ENTRIES OF RS. 20,08,755/- IN THE HOME SAVER ACCOUNT WHICH ARE PR IMARILY IN THE NAME OF HUSBAND OF THE ASSESSEE. HOWEVER, CASH FLOW STAT EMENT IS NOT FILED. LD. CIT(A) AFTER EXAMINING THE DETAILS FOUND THAT J OINT ACCOUNT IS OPERATED BY HER HUSBAND AND THE ASSESSEE AND THE M ONEY IS DEPOSITED AND UTILISED BY BOTH ASSESSEE AND HER HUSBAND WHIC H ARE FULLY EXPLAINED. THE SOURCE OF RS. 20,08,755/- DEPOSITED BY HUSBAND OF ASSESSEE IS ALSO EXPLAINED AND HUSBAND OF THE ASSE SSEE FILED CONFIRMATION AND COPY OF HIS INCOME TAX RETURN TO E XPLAIN ALL THE ENTRIES IN THE BANK ACCOUNT. LD. CIT(A) THEREFORE, NOTED TH AT ONCE THE IDENTITY OF THE PAYER, CAPACITY OF THE PAYER AND GENUINENESS OF THE TRANSACTION ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 18 HAS BEEN PROVED THE ONUS UPON US IS DISCHARGED. LD. CIT(A) ACCORDINGLY DELETED THE ENTIRE ADDITION. 19. LD. DR RELIED UPON THE ORDER OF THE AO A ND SUBMITTED THAT THEIR JOINT BANK ACCOUNT WAS NOT DISCLOSED BY ASSESSEE. N O EXPLANATION WAS FILED BEFORE AO. ADDITIONAL EVIDENCE WAS FILED BEFO RE LD. CIT(A) . THEREFORE, ADDITIONS SHOULD HAVE BEEN DELETED BY LD . CIT(A). ON THE OTHER HAND, LD. COUNSEL FOR ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT ALL ENT RIES IN THE ACCOUNTS ARE EXPLAINED AND CONFIRMATION OF HUSBAND OF THE AS SESSEE IS FILED AT PAGE 96 OF THE PAPER BOOK IN WHICH THE HUSBAND OF T HE ASSESSEE CONFIRMED GIVING THE LOAN TO THE ASSESSEE AND THE CLOSING BALANCE OF THE LOAN IS ON 31 ST MARCH 2009 IS RS. 21,89,360/-. 20. AFTER CONSIDERING RIVAL SUBMISSIONS WE DO N OT FIND MERIT IN THE GROUND OF APPEAL OF THE REVENUE. ASSESSEE EXPLAINED THE ENTRIES IN THE JOINT BANK ACCOUNT AS WELL AS OTHERS. THE EXPLANATI ON OF ASSESSEE WAS FORWARDED TO THE AO FOR COMMENTS AND THE AO IN HIS COMMENTS DID NOT DOUBT THE DEPOSIT ENTRIES OF RS. 20,08,755/- IN THE HOME SAVER ACCOUNT WHICH IS PRIMARILY IN THE NAME OF HUSBAND OF THE AS SESSEE. THE HUSBAND OF THE ASSESSEE FILED CONFIRMATION IN WHICH HE HAS CONFIRMED OUTSTANDING BALANCE ON THE YEAR END. THE EXPLANATION OF ASSESS EE IS SUPPORTED BY BANK ENTRIES, INCOME TAX RETURN AND MATERIAL PRODUC ED AS ADDITIONAL EVIDENCE. THEREFORE, IN THE ABSENCE OF ANY CHALLENG E TO THE EVIDENCES FILED BY THE ASSESSEE, I DO NOT FIND ANY JUSTIFICAT ION TO INTERFERE WITH THE ITA NO. 5883/DEL/2014 ITO VS. HEMA BAJAJ 19 ORDERS OF THE LD. CIT(A) IN DELETING THE ADDITION. LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND BY NOTING THE LOAN STATEM ENT AND SOURCE THERETO IN THE IMPUGNED ORDER CORRECTLY DELETED THE ADDITION. NO INTERFERENCE IS CALLED FOR ON THIS GROUND. THIS GRO UND OF THE REVENUE IS DISMISSED. 21. IN THE RESULT APPEAL OF THE DEPARTMENT IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT. SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 22/5/2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR