Mrs. Anisha Gupta, New Delhi V. ACIT, New Delhi

ITA 6328/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2801 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: ASHISH CHADHA
• Section: 69C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 6328/DEL/2016 : ASSTT. YEAR : 2008 - 09 MRS. ANISHA GUPTA, 123, ABHINAV APAR TMENTS, B - 12, VASUNDHARA ENCLAVE, DELHI - 110096 VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 60(1), NEW DELHI - 110002 (APPELLANT) (RESPONDENT) PAN NO. A GWPG6447M ASSESSEE BY : SH. VED JAIN, CA & SH. ASHISH CHADHA, CA REVENUE BY : SH. T. VASANTHAN , SR. DR DATE OF HEARING : 2 7 .0 6 .201 7 DATE OF PRONOUNCEMENT : 28 .06 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 13.10.2016 OF LD. CIT(A) - 19 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN: - 1. REOPENING OF THE ASSESSMENT WHICH IS VOID AB INITIO, ILLEGAL, ARBITRARY, ERRONEOUS AND BAD IN LAW. 2. MAKING AN ADDITION OF RS. 10,50,000 / - U/S 69C OF THE INCOME TAX ACT, 1961, CAPRICIOUSLY REJECTING THE CASH FLOW STATEMENTS, EXPLANATIONS, EVIDENCES, SUBMISSIONS AND WITHOUT ANY COGENT GROUNDS OR MATERIALS ON RECORD. ITA NO . 6328 /DEL /201 6 ANISHA GUPTA 2 3. CHARGING INTEREST U/S 234B, 234C, AND 234D OF THE INCOME TAX ACT, 1961. 4. INITIATING THE PENALTY PROCEEDING U/S 271(1)(C ) OF THE INCOME TAX ACT, 1961. THE APPELLANT CRAVES RIGHT TO ADD, DELETE, ALTER OR AMEND ANY GROUND OF APPEAL. 3 . VIDE GROUND NO. 2, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF ADDITION OF RS.10,50,000/ - U/S 69C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 20.11.2013 DECLARING AN INCOME OF RS.1,92,514/ - . THEREAFTER, THE AO ISSUED THE NOTI CED U/S 148 OF THE ACT ON THE BASIS OF TAX EVASION PETITION (TEP) INFORMING THAT THE ASSESSEE HAD PAID RS.67,75,000/ - IN CASH FOR PURCHASING OF PROPERTY BEARING NO. G - 53/6, NOIDA. IN RESPONSE, THE ASSESSEE FILED COPY OF RETURN EARLIER FILED ON 20.11.2013. THE MAIN ALLEGATION OF THE ASSESSEE IN THE REASONS RECORDED WAS THAT THE ASSESSEE HAD MADE THE PAYMENT OF RS.67,80,406 / - AGAINST THE PURCHASE OF PROPERTY TO SMT. HARSHI SYAL WIFE OF LATE SH. VIJAY SYAL, R/O PALAM VIHAR, GURGAON, HARYANA. THE SUBMISSIONS O F THE ASSESSEE WAS THAT DURING THE YEAR UNDER CONSIDERATION SHE HAD MADE THE PAYMENT OF RS.10,50,000/ - ONLY AS AGAINST THE AMOUNT OF RS.67,80,406/ - AND THAT THE PAYMENT OF RS.20,02,528/ - WAS PAID BY M/S HYDRO TECHNOLOGIES. THE AO WAS OF THE VIEW THAT OUT O F RS.67,80,406/ - A SUM OF RS.20,02,528/ - WAS PAID BY M/S HYDRO TECHNOLOGIES AND BALANCE PAYMENT WAS MADE BY ITA NO . 6328 /DEL /201 6 ANISHA GUPTA 3 ASSESSEE I.E. RS.47,77,878/ - NOT THE AMOUNT OF RS.10,50,000/ - . ACCORDINGLY, HE MADE THE ADDITION OF RS.47,77,878/ - . 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DELETED THE ADDITION OF RS.37, 27, 878/ - BY OBSERVING THAT THE SAID AMOUNT DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION AND CONFIRMED THE ADDITION OF RS.10,50,000/ - WHICH WAS CLAIMED BY THE ASSESSEE TO BE MADE OUT OF THE ACCUMULATED CASH. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE WAS FILING THE RETURN S OF INCOME REGULARLY AND HAVING THE CAS H IN HAND IN HER BALANCE SHEET AS ON 31.03.2006 ( COPY OF WHICH IS PLACED AT PAGE NO. 78 OF THE ASSESSEE S PAPER BOOK ) AND THAT THE CASH IN HAND AS ON 31.03.2007 WAS RS.22,65,613.86 AS PER THE BALANCE SHEET AS ON 31.03.2007 (COPY OF WHICH IS PLACED AT PAGE NO. 7). IT WAS STATED THAT THE ASSESSEE WAS HAVING SUFFICIENT CASH IN HAND TO MAKE THE INVESTMENT OF RS.10,50,000/ - DURING THE YEAR UNDER CONSIDERATION. IT WAS FURTHER STATED THAT DURING THE COURSE OF ORIGINAL ASSESSMEN T PROCEEDINGS, THE AO MADE THE ENQUIR IES IN DETAILS AND THE ASSESSEE REPLIED TO EACH AND EVERY QUERY RAISED BY THE AO . A REFERENCE WAS MADE TO PAGE NOS. 8, 11, 15, 16, 21, 24, 25, 29 AND 30 OF THE ASSESSEE S PAPER BOOK WHICH ARE THE COPIES OF THE REPLY FURNISHED BY THE ASSESSEE BEFORE THE AO. IT WAS STATED THAT WHEN THE ASSESSEE WAS HAVING ITA NO . 6328 /DEL /201 6 ANISHA GUPTA 4 THE SUFFICIENT CASH AS EVIDENT FROM THE DOCUMENTS ALREADY AVAILABLE ON THE RECORD , FILED BY THE ASSESSEE IN THE FORM OF STATEMENT OF AFFAIRS AS ON 31.03.2006 AND 31.03.2007 WHICH REVEALED THAT THE CASH BALAN CE WITH THE ASSESSEE WAS MORE THAN RS. 20,00,000/ - . IT WAS FURTHER STATED THAT THE ASSESSEE HAD ACCUMULATED INCOME FROM THE PRECEDING YEARS WHICH WAS VERIFIABLE FROM THE RETURN S OF INCOME FILED BY THE ASSESSEE ALONGWITH THE COPIES OF STATEMENT OF AFFAIRS W HICH WERE ACCEPTED BY THE DEPARTMENT. THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 7 . THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: SMT. SURAPU INDIRA DEVI VS ACIT, CIRCLE - 8(1), HYDERABAD (2014) 3 TMI 679 DCIT VS SH. GROSU MURALI KRISHNA, NELLORE, (2014) 4 TMI 630 (ITAT HYD.) 8. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT MAINTAIN THE PROPER BOOKS OF ACCOUNT, SO IT WAS DIFFICULT TO BELIEVE THAT THE ASSESSEE WAS HAVING CASH IN HAND. THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS JUSTIFIED. 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, FROM THE STATEMENT OF AFFAIRS ALREADY FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 (COPIES OF WHICH ARE PLACED AT ITA NO . 6328 /DEL /201 6 ANISHA GUPTA 5 PAGE NOS. 78 & 7 OF THE ASSESSEE S PAPER BOOK ) REVEALED THAT THE ASSESSEE WAS HAVING CASH IN HAND OF RS.22,65,613.86 AND RS.22,64,465.25 AS ON 31.03.2007 AND 31.03.2006 RESPECTFULLY. THE ASSESSEE HAD FILED HER RETURN S OF INCOME AND STATEMENT OF AFFAIRS FOR ALL THE PRECEDING YEARS AND ACCUMULATED THE CASH, IT IS NOT BROUGHT ON R ECORD THAT THE CASH IN HAND ACCUMULATED BY THE ASSESSEE FROM THE EARNING OF THE EARLIER YEARS WAS UTILIZED ELSEWHERE AND NOT IN MAKING THE INVESTMENT IN THE PLOT. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE, I AM OF THE VIEW T HAT THE ADDITION OF RS.10,50,000/ - SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. ACCORDINGLY, THE SAME IS DELETED. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . (O RDE R PRONOUNCED IN THE COURT ON 28 /06 /2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 28 /06 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSI STANT REGISTRAR