Om Prakash, New Delhi V. ITO, New Delhi

ITA 5973/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74393 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KEYUR PATEL SENIOR
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5973/DEL./2012 (ASSESSMENT YEAR : 2009-10) SHRI OM PRAKASH, VS. ITO, WARD 33 (1), 4585, ARYA SAMAJ ROAD NEW DELHI. KAROL BAGH, NEW DELHI. (PAN : AAHPP3842Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH MAHNA, ADVOCATE REVENUE BY : SHRI KEYUR PATEL, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT(APPEALS)-XXVI, DELHI DATED 23.10.2012 FOR THE ASSESSMENT YEAR 2009 -10. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE READ AS UNDER :- 1. BECAUSE THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE AIR INFORMATION OF DEPOSIT WHICH H AD BEEN' EXPLAINED AS WITHDRAWAL OF THE APPELLANT FROM HIS PARTNERSHIP FI RM. CAPITAL ACCOUNT HAD BEEN PRODUCED BEFORE CIT (A) AS ALSO BEFORE ASSESSING OFFICER. THE ENTIRE DEPOSIT OF RS.23,09,0 00/- OF CASH HAD BEEN WITHDRAWN FROM THE FIRM AND DEPOSITED IN ANDHRA BAN K OF DIFFERENT DATES. THUS THE ADDITION IS WRONG AND UNJUSTIFIED. 2. BECAUSE THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN TREATING THE ENTRY OF AIR INFORMATION IN THE CASE OF THE APPELLA NT AS ONE ENTRY OF DEPOSIT ON 31.03.2009 INSTEAD OF TOTAL CASH DEPOSIT ED THROUGH OUT THE YEAR ITA NO.5973/DEL./2012 2 ON DIFFERENT DATES DURING THE FINANCIAL YEAR 2008-0 9. THEREFORE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT, 1961 ARE NOT A PPLICABLE. 3. IN ANY CASE AND WITHOUT PREJUDICE TO ABOVE, THE AO HAS HAD SHIFTING STAND FORM THE ASSESSMENT ORDER AND REMAND REPORT. IF THE CASH DEPOSIT OF RS.23,09,000/- IS CONSIDERED TO HAVE BEEN DEPOSITED THE BANK STATEMENT FOR THE PERIOD FROM 27.03.2009 TO 06.04.2010 WAS AVAILA BLE ON THE RECORD. THERE BEING NO ENTRY AS CASH DEPOSITED ON 31.03.200 9, THE ADDITION CAN NOT BE MADE AS ON 31.03.2009, THUS THE ADDITION IS UN-W ARRANTED UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 AS THERE IS NO FINDI NG RECORDED IN THE BOOKS OF ACCOUNTS OR BANK ACCOUNT. 4. BECAUSE THE CIT (A) HAS DISPOSED OFF THE APPEAL IN UTTER HASTE WITHOUT TAKING THE DETAILS ON THE RECORD FILE E.G. BANK STATEMENT, TO SHOW THAT THE AMOUNT DEPOSITED IN BANK IS FLOWING FROM T HE FIRM IN WHICH HE IS A PARTNER. THE APPELLANT HAD NO OTHER SOURCE OF INCOM E. THUS THE ADDITION IS UN-WARRANTED AND DESERVES TO BE QUASHED. 5. BECAUSE THE CIT (A) HAS FAILED TO APPRECIATE THA T THE EXPARTE ASSESSMENT OF THE APPELLANT WAS TAKEN AT THE FAG EN D OF THE YEAR AND APPELLANT KEPT EXPLAINING THAT THE CASH ENTRIES WER E OUT OF WITHDRAWALS FROM THE FIRM M/S O.P. JEWELLERS AND APPELLANT HAD NO OTHER SOURCE OF INCOME, THEREFORE THERE WAS NO REASON OF ADDITION I NCOME FROM UNDISCLOSED SOURCES. 6. ORDER OF THE CIT (A) IS BAD IN LAW AND AGAINST T HE FACTS OF THE CASE AS THE ORDER OF THE AO, REMAND REPORT AND OBSERVATI ON OF CIT (A) ARE CONTRADICTORY TO EACH OTHER. 2. THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FR OM INTEREST AND REMUNERATION RECEIVED FROM PARTNERSHIP FIRM, M/S. O.P. JEWELLERS . THE LEDGER ACCOUNT OF ASSESSEE IN THE BOOKS OF M/S. O.P. JEWELLERS WAS FILED BEFORE THE A SSESSING OFFICER AND WHICH WAS STATED TO BE PLACED IN THE RECORDS. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE IS MAINTAINING ACCOUNT WITH ANDHRA BANK BEARING NO.030710011008860 ON THE INFORMATION RECEIVED FROM AIR THAT THE ASSESSEE HAS DEPOSITED RS.23,09,0 00/- IN THIS ACCOUNT. THE ASSESSEE SUBMITTED A COPY OF BANK ACCOUNT FOR A PART OF THE PERIOD BUT FULL PARTICULARS WERE NOT FIELD BEFORE THE ASSESSING OFFICER AS WELL AS CIT (A). T HE CERTIFICATION OF THE PAPER BOOK OF ASSESSEE ITSELF SHOWS THAT BANK STATEMENT OF ANDHRA BANK PLACE AT PAGES 23 TO 39 WAS NOT FILED AT THE TIME OF HEARING BEFORE THE CIT (A). ITA NO.5973/DEL./2012 3 3. WE HAVE HEARD BOTH THE SIDES. AFTER HEARING, WE FIND THAT THE BANK ACCOUNT PLACED IN THE PAPER BOOK WAS NEVER FILED BEFORE THE AUTHOR ITIES BELOW. WE ALSO OBSERVE THAT THERE ARE CERTAIN ENTRIES IN THIS BANK ACCOUNT WHICH ARE DEPOSITS THROUGH RTGS AND THERE ARE CASH DEPOSITS ALSO. IN THE INTEREST OF JUSTICE AND EQUITY, IT WILL BE APPROPRIATE THAT THE MATTER NEEDS RECONSIDERATION AT THE LEVEL OF THE AS SESSING OFFICER. WE WOULD ALSO LIKE TO MENTION THAT ASSESSING OFFICER RECORDED THAT COPY O F LEDGER ACCOUNT FROM THE PARTNERSHIP FIRM, M/S. O.P. JEWELLERS WHERE THE ASSESSEE WAS A PARTNER FILED BY THE ASSESSEE AND THE SAME WAS PLACED ON RECORD DURING THE ASSESSMENT PRO CEEDINGS. NOW, THE ASSESSEE HAS ALSO FILED A LEDGER ACCOUNT IN THE PAPER BOOK WHICH IS P LACED AT PAGES 7 TO 19 OF THE PAPER BOOK. ALL THESE THINGS REQUIRE VERIFICATION AT THE LEVEL OF THE ASSESSING OFFICER. THEREFORE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 28 TH DAY OF MARCH, 2014. SD/- SD/- (I.C. SUDHIR) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 28 TH DAY OF MARCH, 2014/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4. CIT(APPEALS)-XXVI, DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.