ITO, New Delhi V. Dr. Sanjay Aggarwal, Delhi

ITA 6379/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7525 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 01-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 02-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S R SANAPATHI
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SH. H.S. SIDHU , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 6379/ DEL/ 2013 ASSESSMENT YEAR: 2010 - 11 INCOME TAX OFFICER, WARD - 41(4), NEW DELHI VS. SH. SANJAY AGGARWAL, POCKET G - 29, H. NO. 220 - 21, SECOND FLOOR, SECTOR - 3, ROHINI, DELHI GIR/PAN : AFCPA0756L (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.R. SANAPATHI, SR. D . R . RESPONDENT BY NONE DATE OF HEARING 01.06.2016 DATE OF PRONOUNCEMENT 13.06.2016 ORDER PER O.P. KANT , A. M. : THIS APPEAL OF THE R EVENUE IS DIRECTED AGAINST ORDER DATED 20/09/2013 OF LEAR NED COMMISSIONER OF INCOME - TAX ( APPEALS) - XXX, NEW DELHI , FOR ASSESSMENT YEAR 2010 - 11 , RAISING FOLLOWING GROUNDS: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN: - 1. DECIDING TO SET ASIDE THE ISSUE OF ADDITION OF RS. 3, 20,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK U/S 251 OF THE INCOME - TAX ACT, 1961. THE CIT (A), CANNOT SET ASIDE THE ISSUE OTHER THAN FOLLOWING RULE - 46 - A DURING THE APPEAL PROCEEDINGS. 2. DELETING THE ADDITION OF RS.88,77,900/ - MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS TO BEAT THE TIME BAR ON ACCOUNT OF CASH DEPOSITED IN JOINT SB A/C WITH H IS MOTHER , WHO IS DOING BUSINESS WITHOUT CONSIDERING THE FACT THAT THE ADDITION WAS MADE ON ACCOUNT OF UNDISCLOSED PROFIT OF A SEPARATE AMOUNT IN THE HAND OF ASSESSEE'S MOTHER BY ANOTHER ASSESSING OFFICER WITHOUT CONDUCTING PROPER VERIFICATION AND ENQUIRY . THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL.' 2 ITA NO. 6379/DEL/2013 AY: 2010 - 11 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 26/03/ 2011 DECLARING INCOME OF RS. 2,38, 953/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER C OMP UTERIZED ASSISTED SELECTION OF S CRUTINY ( CASS). NOTICE UNDER SECTION 143 (2) OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) WAS ISSUED AND SERVED ON THE ASSESSEE WITHIN THE STIPULATED PERIOD. THE ASSESSING OFFICER O BSERVED CASH DEPOSITS OF RS. 3,20, 000/ - IN BANK ACCOUNTS WHICH WAS EXPLAINED BY THE ASSESSEE AS GIFTS RECEIVED FROM RELATIVES AND FRIENDS BY HIM AND HIS WIFE ON ENGAGEMENT CERE MONY DATED 19/04/2 009 AND MARRIAGE CEREMONY DATED 09/02/ 2010. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANAT ION OF THE ASSESS EE BECAUSE THE AMOUNT OF RS. 1, 73,000/ - STATED TO BE RECEIVED FROM RELATIVES WAS DEPOSITED IN THE BANK ACCOUNTS PRIOR TO THE DATE OF MARRIAGE AND THE CASH OF RS. 80,000 STATED TO BE RECEIVED AS GIFT , WAS DEPOSITED ON VARIOUS DATES , AFTER M ARRI AGE , FROM 5/3/2010 TO 27/03/2010 . THE ASSESSING OFFICER ALSO MENTIONED THAT THE ASSESSEE OFFERED THE SAID GIFTS FOR TAXATION AS HE COULD NOT OBTAIN CONFIRMATION FROM THE RELATIVE AND FRIENDS IN RESPECT OF THE GIFTS .THE ASSESSING OFFICER ALS O HELD CASH DEPOSITS OF RS. 88,77, 900/ - IN THE BANK ACCOUNT MAINTAINED JOINTLY WITH MOTHER OF THE ASSESSEE ON PROTECTIVE BASIS. IN THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT DATED 31/12/2012, THE AO ASSESSED THE INCOME AT RS. 94,37, 390/ - . IN APPEAL BEFORE T HE LEAR NED COMMISSIONER OF INCOME - TAX ( APPEALS), THE ASSESSEE CHALLENGED BOTH THE ADDITIONS MADE BY THE ASSESSING OFFICER. THE LEAR NED COMMISSIONER OF INCOME - TAX ( APPEALS) RESTORED THE FI RST ISSUE OF ADDITION OF RS. 3,20, 000/ - TO THE FILE OF ASSESSING OFFI CER TO PROVIDE OPPORTUNITY AND GIVE THE BENEFIT OF THE GIFTS RECEIVED AT THE TIME OF MARRIAGE. THE SECOND ISSUE WAS DELETED AS THE ADDITION WAS ALREADY CONSIDERED IN THE HAND OF MOTHER OF THE ASSESSEE. AGGRIEVED WITH THE FINDINGS OF THE LEAR NED COMMISSIONE R OF INCOME - TAX (APPEALS), THE R EVENUE IS IN APPEAL BEFORE THE TRIBUNAL RAISING GROUNDS AS REPRODUCED ABOVE. 3 ITA NO. 6379/DEL/2013 AY: 2010 - 11 3. IN GROUND NO. 1, THE R EVENUE HAS CHALLENGED DIRECTION OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER . 3.1 BEFORE US LEARNED SR. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE ORDER OF THE ASSESSING OFFICER SUBMITTED THAT IT WAS BEYOND THE POWER OF THE LEAR NED COMMISSIONER OF INCOME - TAX( APPEALS) TO RESTORE THE ISSUE TO THE FILE OF TH E ASSESSING OFFICER. 3.2 ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT SOURCE OF CASH DEPOSITS WAS DULY EXPLAINED BY THE ASSESSEE AND THEREFORE NO ADDITION WAS WARRANTED IN THE CASE OF THE ASSESSEE. 3.3 WE HAV E HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE LEAR NED COMMISSIONER OF INCOME - TAX ( APPEALS) HAS NOT ADJUDICATED ON THE SUBMISSION OF THE ASSESSEE AND SIMPLY RESTORE D THE MATTER FOR THE CONSIDERATION OF THE ASSESSING OFFIC ER, WHICH WAS NOT WITHIN HIS POWERS AS PROVID ED UNDER SECTION 251 OF THE ACT . ON BEING POINTED OUT BY THE BENCH AS TO WHY THE ISSUE MAY NOT BE RESTORED BACK TO THE FILE OF THE LEAR NED COMMISSIONER OF INCOME - TAX( APPEALS) TO DECIDE THE ISSUE IN VIEW OF THE S UBMISSION OF THE ASSESSEE, BOTH PARTIES DID NOT OBJECT. IN VIEW OF THE ABOVE, WE RESTORE THE ISSUE BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME - TAX( APPEALS) WITH THE DIRECTION TO PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO BOTH THE ASSESSEE AS WELL AS TO THE ASSESSING OFFICER. ACCORDINGLY , THIS GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 4. IN GROUND NO. 2, THE R EVENUE HAS CHALLENGED THE DELETION OF RS. 88, 77, 900/ - MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS. THE ADDITION WAS MADE BY THE AO IN VIEW OF THE CASH DEPOSITS IN A BANK ACCOUNT MAINTAINED JOINTLY BY THE ASSESSEE WITH HIS MOTHER. BEFORE THE ASSESSING OFFICER, THE MOTHER OF THE ASSESSEE OWNED THE DEPOSITS AS BELONGING TO HER BUSINESS ACTIVITY, HOWEVER, THE ASSESSING OFFICER ADDE D THE SUM IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BA SIS TO PROTECT THE INTEREST OF R EVENUE. BEFORE THE LEARNED 4 ITA NO. 6379/DEL/2013 AY: 2010 - 11 COMMISSIONER OF INCOME - TAX( APPEALS), THE ASSESSEE SUBMITTED THAT THIS AMOUNT WAS ALREADY CONSIDERED BY THE ASSESSING OFFICER OF HIS MOTHER AND THE SAME AMOUNT CANNOT BE ADDED AGAIN INTO HIS HANDS. THE LEAR NED COMMISSIONER OF INCOME - TAX( APPEALS) ACCEPTED THE CONTENTION OF THE ASSESSEE AND DELETED THE ADDITION. 4.1 BEFORE US, THE LD. SR . DR RELYING ON THE ORDER OF THE ASSESSING O FFICER SUBMITTED THAT ADDITION WAS DELETED WITHOUT EXAMINING THE SOURCE OF DEPOSITS IN THE HANDS OF MOTHER OF THE ASSESSEE. 4.2 THE LEARNED AUTHORIZED REPRESENTATIVE , ON THE OTHER HAND , RELIED ON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) AND SUBMITTED THAT THE DEPARTMENT CANNOT ASSESS THE SAME ADDITION AGAIN INTO HIS HANDS. 4.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT THE ASSESSEE WAS A JOINT ACCOUNT HOLDER ALONG WIT H HIS MOTHER IN THE BANK A CCOUNT MAINTAINED AT BRANCH OF AXIS B ANK AT KOLKATA. THE ASSESSEE AS WELL AS HIS MOTHER HAS ACCEPTED THE BANK ACCOUNT AS PERTAINING TO THE BUSINESS ACTIVITY OF THE MOTHER OF THE ASSESSEE. THIS FACT HAS NOT BEEN DISPUTED BY THE ASS ESSING OFFICER ALSO. HE HAS MADE ADDITION ON PROTECTIVE BASIS ONLY TO PROTECT THE INTEREST OF THE R EVENUE IN CASE THE ADDITION WAS NOT CONSIDERED IN THE HAND OF MOTHER OF THE ASSESSEE . BUT WE FIND FROM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS), THAT THE AMOUNT OF CASH DEPOSIT WAS DULY CONSIDERED IN THE ASSESSMENT OF MOTHER OF THE ASSESSEE. THE RELEVANT FINDING OF THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) ON THE ISSUE IS AS UNDER: 6.1 I HAVE CONSIDERED THE ISSUE AND PERUSED THE A SSESSMENT ORDER OF APPELLANT S MOTHER AND I FIND THAT THIS AMOUNT IS CONSIDERED IN THE CASE OF HER MOTHER, SAME CANNOT BE ADDED TWICE. IN VIEW OF THESE, THE ADDITION OF RS. 88,77,900/ - MADE IN THE CASE OF THE APPELLANT IS HEREBY DELETED. 5 ITA NO. 6379/DEL/2013 AY: 2010 - 11 4.3 WE FIND THAT ISSUE IN DISPUTE HAS ALREADY BEEN CONSIDERED IN THE HAND OF MOTHER OF THE ASSESSEE, THEREFORE, THE ADDITION IN THE HAND OF ASSESSEE IS NOT JUSTIFIED AND ACCORDINGLY WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) ON TH E ISSUE. THE GROUND OF APPEAL IS ACCORDINGLY DISMISSED. 5. IN THE RESULT APPEAL , OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 1 3 T H JUNE , 2016 . S D / - S D / - ( H.S. SIDHU ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 T H JUNE , 2016 . LAPTOP / - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI