ITO VI(I), Lucknow V. Shri Deepak Gupta, Lucknow

ITA 627/LKW/2011

• Counselvise Citation: 62723714 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-04-2014
• Assessment Year: misc
• Appeal Filed On: 14-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 627/LKW/2011 ASSESSMENT YEAR: 2008 - 09 INCOME TAX OFFICER VI(I) RANGE VI LUCKNOW V. SH RI. DEEPAK GUPTA 514 - B, SEC - M, AASHIYANA COLONY, KANPUR ROAD, LUCKNOW PAN: AKZPG2717P (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ALOK MITRA, D.R. RESPONDENT BY: SHRI. P. K. KAPOOR, C.A. DATE OF HEARING: 11.04.2014 DATE OF PRONOUNCEMENT: 24 .04.2 014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.30,94,900/ - MADE BY THE ASSESSING OF FICER WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE DURING HIS EXAMINATION ON OATH HAD HIMSELF STATED THAT THE AMOUNT WAS DEPOSITED IN THE BANK BY HIM AFTER RECEIVING IN CASH FROM HIS FRIEND. 2 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON PERUSAL OF AIR INFORMATION IT WAS FOUND THAT THERE WAS A CASH CREDIT OF RS.30,94,900/ - BUT THE SAME WAS NOT SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME. THE ASSESSEE WAS CONFRONTED WITH THIS I NFORMATION BUT NO SATISFACTORY EXPLANATION WAS FURNISHED. THE ASSESSING OF FICER ACCORDINGLY MADE AN ADDITION OF RS.30,94,900/ - AS UNDISCLOSED INCOME OF THE ASSESSEE. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 3 . BEFORE THE LD. CIT(A), THE ASSESSEE PREFERRED AN APPEAL WITH THE SUBMISSION THAT THE AIR INFORMATION WITH REGARD TO THE DEPOSIT OF RS.30,94,900/ - IN ACCOUNT NO.1480 00101367867 WITH PUNJAB NATIONAL BANK, KIRTI NAGAR BRANCH, NEW DELHI AND 3366000100046460 (CORRECT NO. IS 336600010004646 7 ) WITH PUNJAB NATIONAL BANK, MAND KOLA, FARIDABAD, NEW DELHI WAS RECEIVED AND BOTH THESE ACCOUNTS BELONG TO SHRI RAM ROOP SHARMA R/O F - 2/92, SUDARSHAN PARK, NEW DELHI AND SHRI. DHARMENDRA KUMAR S/O SHRI VIJENDER R/O MAND KOLA, SIKANDER PATTI, TEHSIL - HATTIM PALWAL RESPECTIVELY. IN THIS REGARD HE HAS ALSO FILED A COPY OF LETTER FROM THE BANK MANAGER. SINCE THIS NEW EVIDENCE WAS FILED BEF ORE THE LD. CIT(A), HE FORWARDED T HE SAME TO THE ASSESSING OFFICER AND CALLED A REMAND REPORT. DURING THE COURSE OF REMAND PROCEEDINGS, THE ASSESSING OFFICER EXAMINED THE ASSESSEE AND HIS FATHER AND DURING THE COURSE OF THEIR EXAMINATION, THE ASSESSEE AND HIS FATHER HAVE ADMITTED THAT THEY HAVE DEPOSITED CASH OF RS.30,94,900/ - IN PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI. THE VERACITY OF THE STATEMENT, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE CREDITOR WAS NOT EXAMINED BY THE ASSESSING OFFICER AND HE SUBMITTED HIS REMAND REPORT TO THE LD. CIT(A). ON RECEIPT OF THE REMAND REPORT, THE LD. CIT(A) OBSERVED THAT THE ACCOUNT NUMBERS RECEIVED ON AIR INFORMATION D ID NOT BELONG TO THE ASSESSEE AS THEY BELONG TO SOME OTHER PERSONS. THE REFORE , THE ADDITION ON ACCOUNT OF ALLEGED DEPOSITS IN THESE ACCOUNTS CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. THE LD. CIT(A) ACCORDINGLY DELETED THE ADDITION. 4 . AGGRIEVED THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT DURING THE COURSE OF REMAND PROCEEDINGS THE ASSESSING OFFICER HAS RECORDED THE STATEMENT OF THE ASSESSEE AND HIS FATHER , IN WHICH THEY HAVE ADMITTED THE CASH DEPOSIT OF RS.30,94,900/ - IN THEIR ACCOUNT WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI, BUT TH E ASSESSING OFFICER COULD NOT VERIFY THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE CREDITOR ON ACCOUNT OF CONSTRAIN T OF TIME PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : AND THE LIMITED SCOPE OF ENQUIRY AS IT WAS DONE IN THE REMAND PROCEEDINGS. HAD IT BEEN A CASE OF REGU LAR ASSESSMENT, A DETAILED ENQUIRY COULD HAVE BEEN MADE BY THE ASSESSING OFFICER. BUT WHEN THESE FACTS WERE BROUGHT TO THE NOTICE OF THE LD. CIT(A), THE LD. CIT(A) , WHO IS ARMED WITH CO - TERMINUS POWER OF THAT OF THE ASSESSING OFFICER , COULD HAVE EXAMINED THE VERACITY AND GENUINENESS OF CASH DEPOSIT OF RS.30,94,900/ - IN HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI, BUT THE LD. CIT(A) NEITHER MADE ANY ENQUIRY NOR RAISED ANY QUERY IN THIS REGARD FROM THE ASSESSEE AND HE HAS OUT RIGHTLY DEL ETED THE ADDITION HAVING OBSERVED THAT THE ACCOUNT NUMBERS RECEIVED ON AIR INFORMATION DID NOT BELONG TO THE ASSESSEE. THE LD. D.R. FURTHER CONTENDED THAT SINCE THE ASSESSEE COULD NOT PLACE ANY EVIDENCE TO PROVE THE GENUINENESS OF THE TRANSACTION AND CRED ITWORTHINESS & IDENTITY OF THE CREDITOR EVEN BEFORE THE TRIBUNAL, THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT BE MADE UNDER SECTION 68 OF THE INCOME - TAX ACT, 1961. 5 . THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE AIR INFOR MATION WAS RECEIVED WITH REGARD TO TWO ACCOUNT NUMBERS WHICH DID NOT BELONG TO THE ASSESSEE. THEREFORE, THE SCOPE OF ENQUIRY IS LIMITED AND THE ASSESSING OFFICER HAS NO JURISDICTION TO MAKE ANY ENQUIRY IN RESPECT TO OTHER DEPOSITS IN THE ACCOUNT OF THE AS SESSEE WHICH WAS MADE IN REGULAR COURSE OF BUSINESS. THE ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI WAS DECLARED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS NOT RAISED ANY DOUBT WITH REGA R D TO ANY DEPOSIT REFLECTED IN THIS ACCOUNT. THEREFORE, HE CANNOT RECOMMEND ANY ADDITION ON ACCOUNT OF CASH DEPOSIT IN THE SAID ACCOUNT DURING THE COURSE OF REMAND PROCEEDINGS. 6 . HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFU L PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT UNDISPUTEDLY THE AIR INFORMATION WAS RECEIVED WITH REGARD TO TWO ACCOUNT NUMBERS. THE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : ASSESSEE WAS ASKED TO EXPLAIN WITH REGARD TO DEPOSIT IN THESE ACCOUNT NUMBERS, BUT IN THE ABSENCE OF SATIS FACTORY EXPLANATION THE ASSESSING OFFICER HAS MADE ADDITION OF THE SAME UNDER SECTION 68 OF THE ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ASSESSEE HAS PLACED EVIDENCE IN SUPPORT OF HIS CONTENTION THAT THESE TWO ACCOUNT NUM BERS DID NOT BELONG TO HIM. ON RECEIPT OF THIS ADDITIONAL EVIDENCE , THE LD. CIT(A) CALLED FOR REMAND REPORT AND DURING THE COURSE OF REMAND PROCEEDINGS THE ASSESSING OFFICER HAS RECORDED THE STATEMENT OF THE ASSESSEE AND HIS FATHER , IN WHICH BOTH OF THEM ADMITTED DEPOSIT OF RS.30,94,900/ - IN THE ACCOUNT OF THE ASSESSEE WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI, BUT THE ASSESSING OFFICER DID NOT EXAMINE THE VERACITY OF THE STATEMENT VIS - - VIS THE CASH TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE CREDITOR AND SUBMITTED THE REPORT TO THE LD. CIT(A). THOUGH ENQUIRY OUGHT TO HAVE BEEN CONDUCTED BY THE ASSESSING OFFICER WHEN FACT OF SUBSTANTIAL CASH DEPOSIT OF RS. 30,94,900 WAS SURFACED DURING THE COURSE OF EXAMINATION OF THE ASSESSEE AND HIS FATHER, BUT HE DID NOT DO SO AND SUBMITTED HIS REPORT TO THE LD. CIT(A). 7 . UNDISPUTEDL Y , THE LD. CIT(A) IS ARMED WITH CO - TERMINUS POWER OF THAT OF THE ASSESSING OFFICER AND IF ANY ADDITIONAL EVIDENCE IS BROUGHT TO HIS NOTICE, HE IS REQUIRED TO MAKE THOROUGH ENQUIRY IN ORDER TO APPRECIATE THE VERACITY OF THE FACTS. IN THE INSTANT CASE, WHEN IT HAS BEEN BROUGHT TO THE NOTICE OF THE LD. CIT(A) THROUGH REMAND PROCEEDINGS THAT THE ASSESSEE HAS DEPOSITED A CASH OF RS.30,94,900 (THE SAME AMOUNT, ABOUT WHICH INFORMATION WA S RECEIVED THROUGH AIR) IN HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI, T HE LD. CIT(A) WAS SUPPOSED TO MAKE A DETAILED ENQUIRY WITH REGARD TO THE CASH DEPOSIT IN THE BANK ACCOUNT, BUT HE DID NOT DISCHARGE HIS DUTIES AND ACCEPTED THE CO NTENTIONS OF THE ASSESSEE THAT NO ADDITION ON ACCOUNT OF DEPOSITS IN THE ACCOUNT WHICH DO NOT BELONG TO THE ASSESSEE CAN BE MADE. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI PRADEEP KUMAR KAPOOR, PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : C.A. WAS ASKED TO PR ODUCE THE COPY OF THE BANK ACCOUNT OF THE ASSESSEE WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI IN ORDER TO VERIFY THE FACTUM OF CASH DEPOSIT IN THAT ACCOUNT ; SHRI PRADEEP KUMAR KAPOOR HAS EXPRESSED HIS INABILITY TO PRODUCE THE SAME. IN THE LIGHT OF TH ESE FACTS, WE ARE OF THE VIEW THAT THE ISSUE OF CASH DEPOSIT OF RS.30,94,900/ - REQUIRES TO BE PROPER EXAMIN ATION BY THE LD. CIT(A). IF NEED BE , THE LD. CIT(A) SHOULD CALL THE CASH CREDITOR OR THE PERSON FROM WHOM THIS CASH WAS RECEIVED BY THE ASSESSEE FOR ITS DEPOSIT IN HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE OF CASH DEPOSIT OF RS.30,94,900/ - IN THE BANK ACCOUNT OF THE ASSESSEE WITH PUNJAB NATIONAL BANK, VIKASPURI, NEW DELHI BY PASSING A SPEAKING ORDER WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. 8 . IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.4.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH APRIL, 2014 JJ: 1104 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )