Sh. Jaswant Rai, Baddi V. ITO, Baddi

ITA 615/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1594 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTASR
• Assessee Lawyers: CHARITRA KUMAR
• Keywords: Unexplained cash credit; Principle of natural justice
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 615/CHD/2018 ASSESSMENT YEAR : 2008-09 SH. JASWANT RAI, VS. THE ITO, KESHAV PROPERTIES, BADDI, H.P. NEAR BUS STAND,BADDI HIMACHAL PRADESH PAN NO. AJZPR4175P (APPELLANT) (RESPONDENT) APPELLANT BY : SH. CHARITRA KUMAR, CA RESPONDENT BY : SMT.CHANDERKANTA,SR.DR DATE OF HEARING : 30.07.2018 DATE OF PRONOUNCEMENT : 04.09. 2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 26.02.2018 OF THE COMMISSIONER OF I NCOME TAX(A), PALAMPUR [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOW ING GROUNDS:- 1. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITIONS OF RS. 4,50,000/- U/S 69 OF TH E ACT MADE BY LD. ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AS INCO ME FROM UNDISCLOSED SOURCES AND THAT TOO BY ASSUMING T HE SAME TO BE A CASH CREDIT. 2. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF ITA NO. 615/CHD/2018- SHRI JASWANT RAI, BADDI, H.P. 2 THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT ALLOWING THE BENEFIT OF TELESCOPING AGAINST RS. 4,50,000/- CASH DEPOSIT IN BANK AS CLAIMED BY THE ASSESSEE MORE-SO IN IGNORANCE OF FACTS OF THE CASE AND SUBMISSIONS MADE. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITIONS OF RS. 3,43,280/- U/S 69A OF T HE ACT MADE BY LD. ASSESSING OFFICER ON ACCOUNT OF MON EY RECEIVED IN THE BANK ACCOUNT IN THE NAME OF SHRI PARAMJIT SINGH AND THAT TOO BY RECORDING INCORRECT FACTS. 4. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE THE ACTION OF THE LD. CIT (A) IN CONFIRMING THE ADDITIO N MADE IS BAD IN LAW AND AGAINST THE FACTS AN D CIRCUMSTANCES OF THE CASE. 5. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF LD. ASSESSING OFFICER FLOUT ING THE PRINCIPLES OF NATURAL JUSTICE BY PASSING AN ORD ER WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE. MATERIAL ON RECORD, RECORDING INCORRECT F ACTS AND WITHOUT APPRECIATING THE COMPLETE FACTS AND CIRCUMSTANCES OF THE CASE. 3. GROUND NOS.1 & 2 :- THE ASSESSEE HAS AGITATED THE ADDITION MADE BY THE ASSESSING OFFICER AND FURTHER CONFIRMED BY THE CIT(A) U/S 69 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE A CT') OF AN AMOUNT OF RS. 4,50,000/- ON ACCOUNT OF UNEXPLAINED CASH DE POSITS FOUND IN THE BANK ACCOUNT OF THE ASSESSEE AND FURTHER NOT A LLOWING THE BENEFIT OF TELESCOPING AGAINST THE SAID CASH DEPOSITED. ITA NO. 615/CHD/2018- SHRI JASWANT RAI, BADDI, H.P. 3 ON BEING ASKED TO EXPLAIN, THE ASSESSEE COULD NOT G IVE SATISFACTORY REPLY IN THIS RESPECT. EARLIER, HE STA TED THAT IT WAS OUT OF THE CASH IN HAND. HOWEVER, HE COULD NOT SUBMIT ANY CASH FLOW STATEMENT OR DOCUMENTARY EVIDENCE ABOUT THE SAID SO URCE OF CASH. LATER ON, IN THE APPELLATE PROCEEDINGS BEFORE THE C IT(A), A GENERAL AND VAGUE SUBMISSION WAS MADE THAT CASH WITHDRAWALS HAD ALSO BEEN MADE BY THE ASSESSEE FROM THE BANK ACCOUNT PRIOR TO THE DEPOSITS. HOWEVER, NO RELEVANT EVIDENCE IN SUPPORT OF THE ABO VE CLAIM WAS MADE. 4. EVEN BEFORE US, THE ASSESSEE COULD NOT ADDRESS A NY SATISFACTORY ARGUMENT / REPLY ON THIS ISSUE. SO FAR AS THE PLEA OF THE BENEFIT OF THE ABOVE ADDITION IS CONCERNED, THE LD. CIT(A) OBSER VED THAT ASSESSEE HAD ALREADY BEEN GRANTED THE BENEFIT OF CASH AVAILA BILITY / TELESCOPING OF ASSESSED INCOME OF RS. 2,73,950/- WHILE DECIDING THE GROUND NOS. 1 & 2 OF THE APPEAL OF THE ASSESSEE AND THAT SINCE NO FURTHER AVAILABILITY OF CASH REMAINS TO SET OFF THIS ADDIT ION MADE BY THE ASSESSING OFFICER ON UNEXPLAINED CASH CREDIT OF RS. 4,50,000/-, HENCE, THERE WAS NO QUESTION OF ANY TELESCOPING BEN EFIT IN THIS RESPECT. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN THIS RESPECT ALSO. THESE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE HEREBY DISMISSED. 5. G ROUND NO. 3: VIDE THIS GROUND THE ASSESSEE HAS AGITATED THE CONFIRMATION OF ADDITION OF RS. 3,43,280/- MADE BY THE ASSESSING OFFICER U/S 69A OF THE ACT. ITA NO. 615/CHD/2018- SHRI JASWANT RAI, BADDI, H.P. 4 6. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT A SUM OF RS. 50,000/- WAS CREDITED / TRANSFERRED TO THE ACCOUNT OF THE ASSESSEE BY AN EMPLOYEE OF THE ASSESSEE NAMELY SHRI PARAMJIT SI NGH. THE ASSESSING OFFICER MADE INQUIRIES AND FOUND THAT ASS ESSEE WAS THE INTRODUCER OF THE BANK ACCOUNT OF HIS EMPLOYEE. HE TREATING THE ENTIRE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE NAMELY SHRI PARAMJIT SINGH AS UNDISCLOSED DEPOSITS / INCOME OF THE ASSES SEE DEPOSITED IN THE NAME OF HIS EMPLOYEE SH. PARAMJIT SINGH. HOWEV ER, NO ENQUIRIES WERE MADE FROM SHRI PARAMJIT SINGH IN THIS RESPECT . THE LD. COUNSEL FOR THE ASSESSEE HAS EXPLAINED THAT THE ASSESSEE WA S INTRODUCER / WITNESS TO THE ACCOUNT AS SHRI PARAMJIT SINGH WHO W AS AN EMPLOYEE, HOWEVER, THERE WAS NO EVIDENCE ON THE FILE THAT DEP OSITS FOUND IN THE BANK ACCOUNT OF SH. PARAMJIT SINGH BELONGED TO THE ASSESSEE. 7. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNS EL FOR THE ASSESSEE ESPECIALLY IN THE ABSENCE OF ANY CORROBORA TIVE EVIDENCE FOR THE LOWER AUTHORITIES TO LINK THE DEPOSITS FOUND IN THE BANK ACCOUNT OF SHRI PARAMJIT SINGH TO THE ASSESSEE WITHOUT ANY ENQUIRY BEING MADE FROM SHRI PARAMJIT SINGH IN THIS RESPECT. HOW EVER, WE FIND FORCE IN THE CONTENTION OF THE LD. DR THAT THE ASS ESSEE COULD NOT EXPLAIN THE TRANSACTION OF DEPOSIT OF RS. 50,000/- BY SHRI PARAMJIT SINGH IN THE BANK ACCOUNT OF THE ASSESSEE. 8. IN VIEW OF THIS, THE ADDITION OF THIS ACCO UNT IS RESTRICTED TO RS. 50,000/- WHICH WAS FOUND TRANSFERRED INTO THE A CCOUNT OF THE ASSESSEE FROM THE ACCOUNT OF SHRI PARAMJIT SINGH. T HIS GROUND IS THEREFORE, TREATED AS PARTLY ALLOWED. ITA NO. 615/CHD/2018- SHRI JASWANT RAI, BADDI, H.P. 5 NO OTHER GROUND OR ISSUE WAS PRESSED BEFORE US. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREAT ED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.09.2018 SD/- SD/- (B.R.R KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04.09.2018 RKK COPY TO: THE APPELLANT THE RESPONDENT THE CIT THE CIT(A) THE DR