Sh. Nitya Nand, Gurgaon V. ITO, Gurgaon

ITA 6508/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7366 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 20-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Presumptive income; Gift; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Additional evidence; Competent authority; Assessment record; Onus to prove; TDS
• Section: 271(1)(c); 201; 143(2); 13; 22; 27; 148; 6; 56; 28; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.6508/DEL/2016 ASSESSMENT YEAR: 2013-14 SHRI NITYA NAND, HOUSE NO.483, YADAV NIWAS, KASAN ROAD, MANESAR, GURGAON VS. ITO, WARD-3, GURGAON PAN: ALWPN9240M (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST O RDER DATED 28/10/2016 PASSED BY THE LEARNED CIT(APPEALS)-I, GU RGAON IN [SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2013-1 4 RAISING FOLLOWING GROUNDS: 1. THE CIT(A) AS WELL AS ASSESSING OFFICER HAS ERR ED IN LAW AND ON FACTS WHILE NOT ACCEPTING THE DECISION OF THE HON'B LE SUPREME COURT IN CIT V/S GHANSHYOM HUF (315 ITR 1) THAT THE INTER EST APPELLANT BY SHRI ARUN BANSAL, CA SHRI DEEPAK KATARIA, CA RESPONDENT BY MS. RAKHI BIMAL, SR.DR DATE OF HEARING 06.11.2019 DATE OF PRONOUNCEMENT 30.01.2020 2 ITA NO. 6508/DEL/2016 RS.83,68,370/- AWARDED SHOULD NOT BE TAXABLE AT ALL BEING INTEGRAL PART OF COMPENSATION TO THE COMPULSORY ACQUISITION OF AGRICULTURAL LAND. 2. THE CIT(A) AS WELL AS ASSESSING OFFICER HAS ERRE D IN LAW AND ON FACTS WHILE NOT CONSIDERING INTEREST INCOME BEING I NTEGRAL PART OF ENHANCED COMPENSATION AND ELIGIBLE TO EXEMPTION SIN CE COMPENSATION ITSELF IS EXEMPT U/S 10 (37) OF THE AC T. 3. THE CIT (APPEAL)-I HAS FURTHER ERRED IN LAW & FA CTS IN CONFIRMING THE TAXATION OF INTEREST OF PREVIOUS YEARS BY THE A SSESSING OFFICER IN THE CURRENT YEAR INCOME WITHOUT PROVIDING RELIEF UN DER SECTION 89 OF THE ACT. 4. THE CIT (APPEAL)-I HAS FURTHER ERRED IN LAW & FA CTS IN CONFIRMING THE ADDITION OF ? 31,93,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT WITHOUT VER IFYING THE GENUINENESS OF THE CASE THAT THE APPELLANT HAS DEPO SITED THE CASH OUT OF ADVANCE RECEIVED FOR SALE OF AGRICULTURAL LA ND/GIFT FROM RELATIVES. 5. THE CIT (APPEAL)-I HAS FURTHER ERRED IN LAW & FA CTS IN CONFIRMING THE ADDITION OF 31,93,000/- MADE BY THE ASSESSING O FFICER WITHOUT APPRECIATING THAT THE ASSESSING OFFICER HAS NOT PRO VIDED REASONABLE OPPORTUNITY OF BEING HEARD AND ACCORDINGLY THE ADDI TIONS ARE MADE AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 6. THE CIT(A) HAS ERRED IN NOT ACCEPTING THE ADDITI ONAL EVIDENCES MERELY ON THE BASIS OF ASSESSING OFFICER REPORT WHE REIN THE AO HAS GROSSLY ERRED WHILE NOT GRANTED ANY OPPORTUNITY TO BE HEARD TO THE APPELLANT AND PASSED THE REMAND REPORT AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 7. THE CIT (APPEAL)-I HAS FURTHER ERRED IN LAW & FA CTS IN CONFIRMING THE LEVYING OF INTEREST, INITIATING THE PENALTY PRO CEEDING UNDER SECTION 271(1) (C) OF THE ACT AND NOT GRANTING CRED IT OF TDS. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 31/03/2014, DECLARING INCOME OF 3,84,480/- INCLUDING PRESUMPTIVE INCOME OF 2,45,000/- UNDER SECTION 44AE OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). IN THE RETURN OF INCOME, INTEREST RECEIVED OF 83,68,370/- ON ENHANCED COMPENSATION FOR AGRICULTURAL LAND WAS TRE ATED BY THE 3 ITA NO. 6508/DEL/2016 ASSESSEE AS EXEMPT INCOME. THE CASE OF THE ASSESSEE WAS SELECTED FOR THE SCRUTINY ASSESSMENT AND NOTICE UNDER SECTIO N 143(2) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. TH OUGH NO COMPLIANCE OF NOTICE UNDER SECTION 143(2) OF THE AC T WAS MADE, HOWEVER, SUBSEQUENT NOTICE ISSUED UNDER SECTION 142 (1) OF THE ACT WAS COMPLIED PARTLY BY THE AUTHORIZED REPRESENT ATIVE OF THE ASSESSEE. THE SCRUTINY ASSESSMENT UNDER SECTION 143 (3) OF THE ACT WAS COMPLETED ON 30/11/2015 WHEREIN THE ASSESSI NG OFFICER MADE ADDITION FOR 50% OF THE AMOUNT OF INTEREST REC EIVED, UNDER SECTION 56(2)(VIII) OF THE ACT, WHICH WAS WORKED OU T TO 41,84,185/-. THE ASSESSING OFFICER ALSO MADE ADDITI ON FOR CASH DEPOSITS OF 31,93,000/- APPEARING IN THE BANK STATEMENT OF THE ASSESSEE DUE TO FAILURE ON THE PART OF THE ASSESSEE TO EXPLAIN THE SOURCE OF SAID DEPOSIT. AGGRIEVED WITH THE ADDITION S MADE, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A), WHO U PHELD THE ADDITIONS MADE BY THE ASSESSING OFFICER. AGGRIEVED, THE ASSESSEE IS ON APPEAL BEFORE THE TRIBUNAL, RAISING THE GROUN DS AS REPRODUCED ABOVE. 4. THE GROUND NOS. 1 TO 3 OF THE APPEAL ARE RELATED T O THE ISSUE OF ADDITION FOR INTEREST RECEIVED ON COMPENSATION F OR COMPULSORY ACQUISITION OF THE AGRICULTURAL LAND OF THE ASSESSE E. 4.1 THE FACTS QUA THE ISSUE IN DISPUTE ARE THAT THE AS SESSEE RECEIVED INTEREST AMOUNTING TO 83,68,370/- ON ENHANCED COMPENSATION FROM STATE GOVERNMENT (DRO-CUM-LAC). T HE ASSESSING OFFICER NOTED THAT TAX OF 8,36,837/- WAS DEDUCTED AT SOURCE BY THE STATE GOVERNMENT. THE ASSESSEE TREATE D THE AMOUNT OF INTEREST RECEIVED AS EXEMPT FROM INCOME R ELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS 4 ITA NO. 6508/DEL/2016 GHANSHYAM (HUF). ACCORDING TO THE ASSESSEE, THE INT EREST HAS BEEN RECEIVED UNDER THE SECTION 28 OF THE LAND ACQU ISITION ACT 1894 WHICH IS PART OF THE AMOUNT OF THE LAND THEREF ORE NOT TAXABLE BEING EXEMPT UNDER SECTION 10(37) OF THE AC T. HOWEVER, ACCORDING TO THE ASSESSING OFFICER, IN VIEW OF THE AMENDED PROVISIONS OF THE SECTION 56(2)(VIII) OF THE ACT IN TRODUCED BY FINANCE ACT, 2009 EFFECTIVE FROM ASSESSMENT YEAR 20 10-11, THE INTEREST RECEIVED ON DELAYED COMPENSATION OR ENHANC ED COMPENSATION IS TAXABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. ACCORDING TO THE SECTION 145(A)(B) OF TH E ACT THE INTEREST RECEIVED WOULD BE LIABLE TO TAX IN THE YEAR OF THE RECEIPT AND DEDUCTION TO THE EXTENT OF THE 50% WOULD BE AVAILAB LE TO THE ASSESSEE UNDER SECTION 57(IV) OF THE ACT. ACCORDING LY, THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE AS SESSEE AND AFTER ALLOWING 50% DEDUCTION, HE MADE ADDITION FOR THE BA LANCE AMOUNT OF 41,84,185/-. THE LD. CIT(A) AFTER CONSIDERING JUDI CIAL PRECEDENTS AVAILABLE ON THE ISSUE IN DISPUTE DISMIS SED THE GROUND OF THE APPEAL OF THE ASSESSEE OBSERVING AS UNDER: 4.3 I HAVE CAREFULLY CONSIDERED THE APPELLANTS SU BMISSIONS. THE ONLY ISSUE TO BE CONSIDERED HERE IS WHETHER THE INT EREST RECEIVED U/S 28 OF THE LAND ACQUISITION ACT IS IN THE NATURE OL INTEREST OR IS IT A PART OF THE ENHANCED COMPENSATION AND WHETHER THE S AME IS TAXABLE UNDER THE HEAD OTHER SOURCES. THE ISSUE WHETHER THE INTEREST PAID UNDER THE PROVISIONS OF SECTION 28 OF LA ACT IS PAR T OF THE ENHANCED COMPENSATION OR IS IT TAXABLE AS INTEREST INCOME HA S BEEN A DEBATABLE ISSUE AND HAS BEEN CONSIDERED BY NUMBER O F JUDICIAL AUTHORITIES. 4.4 THE HON'BLE SUPREME COURT IN THE CASE OFCIT V/S GHANSHAM (IIUF) (SUPRA) HELD THAT INTEREST PAID ON THE EXCES S AMOUNT, U/S 28 OF 1894 ACT., DEPENDS UPON A CLAIM BY THE PERSON WHOSE LAND IS ACQUIRED WHEREAS INTEREST U/S 34 IS FOR DELAY IN MA KING PAYMENT. 5 ITA NO. 6508/DEL/2016 INTEREST U/S 28 IS A PART OF ENHANCED VALUE OF LAND WHICH IS NOT THE CASE IN THE MATTER OF PAYMENT OF INTEREST U/S 34. 4.5 THE LLON'BLE PUNJAB & HARYANA HIGH COURT CONSID ERED (HIS ISSUE IN THE EASE OF MANJEET SINGH (HUF) KARTA MANJEET SI NGH V/S UNION OF INDIA AND ORS. CWP NO. 15506 OF 2013 DATED 14/01 /2014 (2016) 237 TAXMANN 116. THE HON'BLE JURISDICTIONAL HIGH CO URT CONSIDERED THE ISSUE WHETHER THE INTEREST U/S 28 OL THE 1894 A CT. IS TAXABLE U/S 56 OF THE IT ACT. AS INCOME FROM OTHER SOURCES. IN THIS CASE THE HON'BLE HIGH COURT REFERRED TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OFCIT V/S OHANSHYAM (SUPRA). THE HON'BLE HIGH COURT ALSO REFERRED TO A NUMBER OF OTHER DECISIONS OL THE HON'BLE SUPREME COURT AND HELD AS UNDER: '7. THE PRIMARY QUESTION FOR CONSIDERATION THAT ARI SES IN THESE PETITIONS RELATES TO THE NATURE OF INTEREST RECEIVE D BY THE LANDOWNER-ASSESSEE UNDER SECTION 28 OF THE 1894 ACT . IN OTHER WORDS, WHETHER THE INTEREST WHICH IS RECEIVED BY THE ASSESSEE LANDOWNER PARTAKES THE CHARACTER OF INCOME OR NOT AND, IN SUCH A SITUATION IS IT TAXABLE UNDER THE PR OVISIONS OF THE ACT. 8. IT WOULD BE APPOSITE TO QUOTE HEREIN BELOW SECTI ONS 28 AND 34 OF 1894 ACT WHICH READ THUS:- '28. COLLECTOR MAY BE DIRECTED TO PAY INTEREST ON E XCESS COMPENSATION. - IF THE SUM WHICH, IN THE OPINION OF THE COURT, THE COLLECTOR OUGHT TO HAVE AWARDED AS COMPENSATION IS IN EXCESS OF THE SUM WHICH THE COLLECTOR DID AWARD AS COMPENSATION, THE AWARD OF THE COURT MAY DIRECT THA T THE COLLECTOR SHALL PAY INTEREST ON SUCH EXCESS AT THE RATE OF [NINE PER CENTUM] PER ANNUM FROM THE DATE ON WHICH HE TOO K POSSESSION OF THE LAND TO THE DATE OF PAYMENT OF SU CH EXCESS INTO COURT. 34. PAYMENT OF INTEREST.- WHEN THE AMOUNT OF SUCH COMPENSATION IS NOT PAID AIDE POSITED ON OR BEFORE TAKING POSSESSION OF THE LAND, THE COLLECTOR SHALL PAY THE AMOUNT AWARDED WITH INTEREST THEREON AT THE RATE OF NINE P ER CENTUM PER ANNUM FROM THE TIME OF SO TAKING POSSESSION UNT IL IT SHALL HAVE BEEN SO PAID OR DEPOSITED. PROVIDED THAT IF SU CH COMPENSATION OR ANY PART THEREOF IS NOT PAID OR DEP OSITED WITHIN A PERIOD OF ONE YEAR FROM THE DATE ON WHICH POSSESSION IS TAKEN, INTEREST AT THE RATE OF FIFTEEN PER CENTU M PER ANNUM SHALL BE PAYABLE FROM THE DATE OF EXPIRY OF THE SAI D PERIOD OF ONE VEIN- ON THE AMOUNT OF COMPENSATION OR PART THE REOF WHICH HAS NOT BEEN PAID OR DEPOSITED BEFORE THE DATE OF S UCH EXPIRY. 9. THE AWARD OF INTEREST UNDER SECTION 28 OF THE 18 94 ACT APPLIES WHEN THE AMOUNT ORIGINALLY AWARDED HAS BEEN PAID OR DEPOSITED AND WHEN THE COURT AWARDS EXCESS AMOUNT. IN SUCH CASES INTEREST ON THAT EXCESS ALONE IS PAYABLE . SECTION 6 ITA NO. 6508/DEL/2016 28 EMPOWERS THE COURT TO AWARD INTEREST ON THE EXCE SS AMOUNT OF COMPENSATION AWARDED BY IT OVER THE AMOUN T AWARDED BY THE COLLECTOR. THE COMPENSATION AWARDED BY THE COURT INCLUDES THE ADDITIONAL COMPENSATION AWARDED UNDER SECTION 23(1 A) AND THE SOLATIUM UNDER SECTION 23(2 ) OF THE SAID ACT. SECTION 28 IS APPLICABLE ONLY IN RESPECT OF THE EXCESS AMOUNT, WHICH IS DETERMINED BY THE COURT AFTER A RE FERENCE UNDER SECTION 18 OF THE 1894 ACT. 10. UNDER SECTION 34 OF THE 1894 AD, THE COLLECTOR AWARDS INTEREST ON THE COMPENSATION OFFERED AT THE RATE OF 9% PER ANNUM FOR A PERIOD OF ONE YEAR FROM THE DATE OF TC/ KUIQ POSSESSION AND THEREA FTER AT THE RATE OF 15% PER A NNUM FROM THE DATE OF EXPIRY OF ONE YEAR ON THE AMOUNT O F CO MPENSATION OR PART THEREOF WHICH REMAINS UNPAID OR DEPOSITED B EFORE THE DATE OF SUCH EXPIRY. 11. A PLAIN READING OF SECTIONS 23(1A), 23(2) AS AL SO SECTION 28 OF THE 1894 ACT CLEARLY SPELLS OUT THAT ADDITION AL BENEFITS ARE AVAILABLE ON THE MARKET VALUE OF THE ACQUIRED L ANDS UNDER SECTION 23(1A) AND 23(2) WHEREAS SECTION 28 IS AVAI LABLE IN RESPECT OF THE ENTIRE COMPENSATION. THE CONSTITUTIO N BENCH OF THE SUPREME COURT IN SUNDERS CASE (SUPRA) HAD APPR OVED THE FOLLOWING OBSERVATIONS OF THE DIVISION BENCH OF THI S COURT IN SLATE OF HARYANA R.V. SINT. KAILASHWALI AND OTHERS, AIR 1980 P&H 117:- '10. ONCE IT IS HELD AS IT INEVITABLY MUST BE THAT THE SOLATIUM PROVIDED FOR UNDER SECTION 23(2) OF THE ACT FORMS A N INTEGRAL AND STATUTORY PART OF THE COMPENSATION AWARDED TO A LANDOWNER, THEN FROM THE PLAIN TERMS OF SECTION 28 OF THE ACT, IT WOULD BE EVIDENT THAT THE INTEREST IS PAYABLE ON THE COMPENSATION AWARDED AND NOT MERELY ON THE MARKET V ALUE OF THE LAND INDEED THE LANGUAGE OF SECTION 28 DOES NOT EVEN REMOTELY REFER TO MARKED VALUE ALONE AND IN TERMS T ALKS OF COMPENSATION OR THE SUM EQUIVALENT THERETO. THE INT EREST AWARDABLE UNDER SECTION 28 THEREFORE WOULD INCLUDE WITHIN ITS AMBIT BOTH THE MARKET VALUE AND THE STATUTORY SOLAT IUM. IT WOULD BE THUS EVIDENT THAT THE PROVISIONS OF SECTIO N 28 IN TERMS WARRANT AND AUTHORIZE THE GRANT OF INTEREST O N SOLATIUM AS WELL. 12. ADVERTING TO THE CASE LAW ON THE SUBJECT, INEVI TABLY, REFERENCE IS MADE TO THE JUDGMENT BY THE THREE JUDG ES BENCH OF THE SUPREME COURT IN THE CASE OF DR. SLTAM/AL NA RULA V. CIT, FL964J 53 ITR 151, WHICH HAD CONSIDERED THE IS SUE REGARDING AWARD OF INTEREST UNDER THE 1894-ACT. INT EREST UNDER SECTION 28 OF THE 1894 ACT WAS CONSIDERED AKI N TO INTEREST UNDER SECTION 34 THEREOF AS BOTH WERE HELD TO BE ON ACCOUNT OF KEEPING BACK THE AMOUNT PAYABLE TO THE O WNER AND DID NOT FORM PART OF COMPENSATION OR DAMAGES FOR TH E LOSS OF THE RIGHT TO RETAIN POSSESSION. IT WAS NOTICED AS R MDER:- 'AS 7 ITA NO. 6508/DEL/2016 WE HAVE POINTED OUT EARLIER, AS SOON AS THE COLLECT OR HAS TAKEN POSSESSION OF THE LAND EITHER BEFORE OR AFTER THE AWARD THE TITLE ABSOLUTELY VESTS IN THE GOVERNMENT AND TH EREAFTER OWNER OF THE LAND SO ACQUIRED CEASES TO HAVE ANY TI TLE OR RIGHT OF POSSESSION TO THE LAND ACQUIRED. UNDER THE AWARD HE GELS COMPENSATION FOR BOTH THE RIGHTS. THEREFORE, THE IN TEREST AWARDED UNDER S. 28 OF THE ACT, JUST LIKE UNDER S. 34 THEREOF, CANNOT HE A COMPENSATION OR DAMAGES FOR THE LOSS OF THE RIGHT TO RETAIN POSSESSION BUT ONLY COMPENSATION PAYABLE BY THE SLATE FOR KEEPING BACK THE AMOUNT PAYABLE TO THE OW NER. ' THE PRINCIPLE OF DR. SHAMLAL NARULA'S CASE (SUPRA) HAD SUBSEQUENTLY BEEN APPLIED BY THREE JUDGES BENCH OF THE APEX COURT IN A LATER DECISION IN T.N.K.GOVINDARAJU C/IE FTY V. CIT, (1967) 66 ITR 465. 13. FURTHER SECTION 2(28A) OF THE ACT DEFINES INT EREST ' AND WAS INSERTED BY FINANCE ACT. 1976 TO BE EFFECTIVE F ROM 1.6.1976. IT READS THUS:- ''INTEREST' MEANS INTERES T PAYABLE IN ANY MANNER IN RESPECT OF ANY MONEYS BORROWED OR DEB T INCURRED (INCLUDING A DEPOSIT, CLAIM OR OTHER SIMIL AR RIGHT OR OBLIGATION) AND INCLUDES ANY SERVICE FEE OR OTHER C HARGE IN RESPECT OF THE MONEYS BORROWED OR DEBT INCURRED OR IN RESPECT OF ANY CREDIT FACILITY WHICH HAS NOT BEEN UTILISED. THE EXPRESSION 'INTEREST' OCCURRING IN SUBSECTION (28A) OF SECTION 2 OF THE ACT WIDENS THE SCOPE OF THE TERM 'INTEREST' FOR THE PURPOSES OF THE ACT. 14. ANOTHER THREE JUDGES BENCH OF THE APEX COURT IN BIKRNM SINGH VS. LAND ACQUISITION COLLECTOR, (1997) 224 IT R 551 FOLLOWING DR. SHAMLAL NARULA'S CASE (SUPRA) AND TAK ING INTO CONSIDERATION DEFINITION OF INTEREST IN SECTION 2 (2SA) OF THE ACT HAD RECORDED THAT INTEREST UNDER SECTION 28 OF THE 1894 ACT WAS A REVENUE RECEIPT AND IS TAXABLE. I/ WAS HE LD AS UNDER:- 'THE CONTROVERSY IS NO LONGER RES INTEGRA. THIS QUE STION WAS CONSIDERED ELABORATELY BY THIS COURT IN DR. SHAMLAL NANT LA VS. CWP COMMISSIONER OF INCOME-TAX, JAMMU [51 ITR 1 51]. THEREIN, K. SUBBA RAO, J., AS HE THEN WAS, CONSIDER ED THE EARLIER CASE LAW ON THE CONCEPT OF 'INTEREST' LAID DOWN BY THE PRIVY COUNCIL AND ALL OTHER CASES AND HAD HELD AT P AGE 158 AS UNDER: 'IN A CASE WHERE TITLE PASSES TO THE STATE, THE STATUTORY INTEREST PROVIDED THEREAFTER CAN ONLY BE REGARDED E ITHER AS REPRESENTING THE PROFIT WHICH THE OWNER OF THE LAND MIGHT HAVE MADE IF HE HAD THE USE OF THE MONEY OR THE LOSS HE SUFFERED BECAUSE HE HAD NOT THAT USE. IN NO SENSE OF THE TER M CAN IT BE DESCRIBED AS DAMAGES OR COMPENSATION FOR THE OWNER' S RIGHT TO RETAIN POSSESSION, FOR HE HAS NO RIGHT TO RETAIN POSSESSION AFTER POSSESSION WAS TAKEN UNDER SECTION 16 OR SECT ION 17 OF THE ACT. WE, THEREFORE, HOLD THAT THE STATUTORY INT EREST PAID UNDER SECTION 34 OF THE AD IS INTEREST PAID FOR THE DELAYED 8 ITA NO. 6508/DEL/2016 PAYMENT OF THE COMPENSATION AMOUNT AND. THEREFORE, IS A REVENUE RECEIPT LIABLE TO TAX UNDER THE INCOME TAX ACT. 'THIS POSITION OF LAW HAS BEEN CONSISTENTLY REITERATED BY THIS COURT IN THE CASE OF TMK GOVINDARAJU CHETTY VS. COMMISSIO NER OF INCOME-TAX. MADRAS [66 ITR 465], RAMA RAI & ORS. VS . CJT, ANDHRA PRADESH [181 ITR 400] AND K.S. KRISHNA RAO V S. CJT, A. P. [181 ITR 408], THUS BY A CATENA OF JUDICIAL PRONOUNCEMENTS, IT IS SELL LED LAW ABOUT THE INTERN RECEIVED ON DELAYED PAYMENT OF THE COMPENSATION IS A REVENUE RE CEIPT ELIGIBLE TO INCOME LAX. IT IS TRUE THAT IN AMENDING THE DEFINITION OF 'INTEREST' IN SECTION 2(28A) INTEREST WAS DEFINE D LO MEAN INTEREST PAYABLE IN ANY MANNER IN RESPECT OF ANY MO NEY BORROWED OR DEBT INCURRED INCLUDING A DEPOSIT, CLAI M OR OTHER SIMILAR RIGHT OR OBLIGATION AND INCLUDES ANY SERVIC E, FEE OR OTHER CHARGES IN RESPECT OF THE MONEYS BORROWED OR DEBT INCURRED OR IN RESPECT OF ANY CREDIT FACILITY WHICH HAS NOT BEEN UTILIZED. IT IS SEEN THAT THE WORD 'INTEREST' FOR T HE PURPOSE OF THE ACT WAS INTERPRETED BY THE INCLUSIVE DEFINITION . A LITERAL CONSTRUCTION MAY LEAD TO THE CONCLUSION THAT THE IN TEREST RECEIVED OR PAYABLE IN ANY MANNER IN RESPECT OF ANY MONEYS BORROWED OR A DEBT INCURRED OR ENUMERATED ANALOGOUS TRANSACTION WOULD BE DEEMED INTEREST. THAT WAS EXPL AINED BY THE BOARD IN THE CIRCULAR REFERRED TO HEREINBEFORE BUT THE QUESTION IS: WHETHER THE INTEREST ON DELAYED PAYMEN T ON THE ACQUISITION OF THE IMMOVABLE PROPERTY UNDER THE ACQ UISITION AD WOULD NOT BE ELIGIBLE TO INCOME-TAX? IT IS SEEN THAT THIS COURT HAS CONSISTENTLY TAKEN THE VIEW THAT IT IS A REVENUE RECEIPT. THE AMENDED DEFINITION OF 'INTEREST' WAS N OT INTENDED TO EXCLUDE THE REVENUE RECEIPT OF INTEREST ON DELAY ED PAYMENT OF COMPENSATION FROM TAXABILITY. ONCE IT IS CONSTRU ED TO BE A REVENUE RECEIPT, NECESSARILY, UNLESS THERE IS AN EX EMPTION UNDER THE APPROPRIATE PROVISIONS OF THE ACT, THE RE VENUE RECEIPT IS EXIGIBLE TO TAX. THE AMENDMENT IS ONLY T O BRING WITHIN ITS TAX NET, INCOME RECEIVED FROM THE TRANSA CTION COVERED UNDER THE DEFINITION OF INTEREST. IT WOULD MEAN THAT THE INTEREST RECEIVED AS INCOME ON THE DELAYED PAYMENT OF THE COMPENSATION DETERMINED UNDER SECTION 28 OR 31 OF T HE ACQUISITION ACT IS A TAXABLE EVENT. 15. NOW, WE ADVERT TO THE JUDGMENT OF THE APEX COUR T IN GHANSHYAM (HUF)'S CASE (SUPRA) ON THE BASIS OF WHIC H LEARNED COUNSEL FOR THE ASSESSEE HAD SOUGHT RECONSI DERATION OF JUDGMENT OF THIS COURT IN CIT VS. BIR SINGH, ITA NO. 209 OF 200-1 DECIDED ON 27.10.2010 WHERE DIVISION BENCH OF THIS COURT HAS HELD THAT ELEMENT OF INTEREST AWARDED BY THE COURT ON ENHANCED AMOUNT OF COMPENSATION UNDER SECTION 28 OF THE 1894 ACT FALLS FOR TAXATION UNDER SECTION 56 AS IN COME FROM OTHER SOURCES' IN THE YEAR OF RECEIPT. 9 ITA NO. 6508/DEL/2016 16. THE RELIANCE WAS PLACED UPON FOLLOWING OBSERVAT IONS IN GHANSHYAM (HUF)'S CASE (SUPRA) 'TO SUM UP, INTEREST IS DIFFERENT FROM COMPENSATION . HOWEVER, INTEREST PAID ON THE EXCESS AMOUNT UNDER SECTION 28 OF THE 1894 ACT DEPENDS UPON A CLAIM BY THE PERSON WHOSE L AND IS ACQUIRED WHEREAS INTEREST UNDER SECTION 34 IS FOR D ELAY IN MAKING PAYMENT. THIS VITAL DIFFERENCE NEEDS TO BE K EPT IN MIND IN DECIDING THIS MATTER. INTEREST UNDER SECTIO N 28 IS PART OF THE AMOUNT OF COMPENSATION WHEREAS INTEREST UNDE R SECTION 34 IS ONLY FOR DELAY IN MAKING PAYMENT AFTER THE COMPENSATION AMOUNT IS DETERMINED. INTEREST UNDER S ECTION 28 IS A PART OF THE ENHANCED VALUE OF THE LAND WHICH I S NOT THE CASE IN THE MATTER OF PAYMENT OF INTEREST UNDER SEC TION 34. 17. IN VIEW OF THE AUTHORITATIVE PRONOUNCEMENTS OF/ THE APEX COURT IN DR. SHAM LAI NARULA, T.N.K.GOVINDARAJA CHE TTY, AMARJIT SINGH, SUNDER, BIKRAM SINGH'S CASES (SUPRA) , RAMA BAI VS. CIT (1990) 181 JTR 400 AND K.S. KRISHNA RAO V. CIT, (1990) 181 ITR 408, THE ASSESSEE CANNOT DERIVE ANY BENEFIT FROM THE AFORESAID OBSERVATIONS QUOTED ABOVE.' 4.6 THE HONBLE SUPREME COURT DISMISSED THE SLP TIL ED IN THE CASE OF MANJEET SINGH (HUF) KARTA MANJEET SINGH VS . UNION OF INDIA & ORS. CYVP NO. 15506 OF 2013(AS DISCUSSED ABOVE) B Y WAY OF SPECIAL LEAVE TO APPEAL (C NO. 34642 OF 2014) VIDE ORDER DATED 1 8.12. 2014 WITH THE FOLLOWING ORDER: 'HEARD LD. COUNSEL FOR THE PETITIONER AND PERUSED T HE RELEVANT MATERIAL. WE DO NOT FIND ANY LEGAL AND VALID GROUND S FOR INTERFERENCE. THE SPECIAL LEAVE PETITIONS ARE DISMI SSED. 4.7 THE HONBLE PUNJAB & HARYANA HIGH COURT CONSIDE RED ALL THE AFORESAID CASES, IN THE CASE OF SUNDER LAI & ANR. V S. UNION OF INDIA IN CWP NO. 2014 OF 2015. IN THIS ORDER DATED 21.09. 2015 THE HONBLE JURISDICTIONAL HIGH COURT HELD AS UNDER:- '9. IN VIEW OF THE ABOVE AND ALSO /HE AMENDMENTS MA DE BY I HE FINANCE (NO. 2) ACT. 2009 W.E.F. 1.4.2010 NOTICE D HEREINBEFORE, NO ADVANTAGE CAN BE DERIVED BY THE PE TITIONERS FROM THE JUDGMENT IN GHANSHYAM'S CASE (SUPRA). 10. EXAMINING THE ISSUE OF TAXABILITY OF INTEREST U NDER SECTION 28 OF THE ACT, IN COMMISSIONER OF INCOME TAX V. BIR SINGH (HUF), ITA NO. 209 OF 2004 DECIDED ON 27.10.2010, I T WAS HELD BY THE DIVISION BENCH OF THIS COURT THAT THE I NTEREST AWARDED BY COURT ON ENHANCED COMPENSATION UNDER SEC TION 28 OF THE ACT WAS CHARGEABLE TO TAX AS INCOME FROM OTHER SOURCES IN THE YEAR OF RECEIPT. DIVISION BENCH OF T HIS COURT AGAIN IN COMMISSIONER OF INCOME TAX, PANCHKULA V. P REM 10 ITA NO. 6508/DEL/2016 SINGH DECIDED ON 16.12.201 (I WHILE CONSIDERING, ID ENTICAL ISSUE RECORDED AS UNDER:- '11. IN THIS VIEW OF THE MUTTER, THE INTEREST COMPO NENT ON ENHANCED COMPENSATION UNDER SECTION 28 IS LIABLE TO BE TAXED UNDER SECTION 56 OF THE ACT EVEN WHEN COMPENS ATION IS TREATED' AS AGRICULTURAL INCOME. AND IS NOT COVE RED BY SECTION 45(C) OF THE ACT. WE THUS ANSWER THE QUESTI ONS IN FAVOUR OF THE REVENUE AND MODIFY OUR ORDER DATED 5. 7.2010 ACCORDINGLY. THE AMOUNT OF INTEREST ON ENHAN CED COMPENSATION IS HELD TO HE TAXABLE IN THE YEAR OF R ECEIPT IRRESPECTIVE OF PENDENCY OF PROCEEDINGS AGAINST AWA RD OF ENHANCED COMPENSATION. 11. THE JUDGMENT OF LEARNED SINGLE JUDGE IN MAN DIR NAR SINGH PURIS CASE (SUPRA) (ANNEXARE P-10) ON WHICH RELIANCE HAS BEEN PLACED BY THE PETITIONERS BEING CONTRARY T O THE AFORESAID PRONOUNCEMENTS CANNOT BE TAKEN TO BE INTE RPRETING THE LEGAL PROVISIONS CORRECTLY AND IS. THUS, OVERRU LED. 12. STILL FURTHER, THIS COURT IN SARD R. HARYANA ST ATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. AND OTHERS, CWP NO. 9739 OF 2011 DECIDED ON 30.5.2011 DEALING W ITH THE ISSUE OF TAX DEDUCTED AT SOURCE UNDER SIMILAR CIRCU MSTANCES HAD RECORDED AS UNDER:- '8. THIS COURT, IN INCOME TAX APPEAL NO. 209 OF 200 4. DECIDED ON 27.10.2010 (COMMISSIONER OF INCOME TAX, FARIDABAD V. BIR SINGH (HUF), BALLABGARH) HAD HELD THAT INTEREST PAID TO THE ASSESSEE UNDER SECTION 28 OF T HE LAND ACQUISITION ACT, 1894 (FOR BREVITY, '1894 ACT) ON ENHANCED AMOUNT OF COMPENSATION IN RESPECT OF THE ACQUIRED L AND FALLS FOR TAXATION UNDER SECTION 56 OF THE ACT AS ' INCOME FROM OTHER SOURCES AND IS EXIGIBLE TO TAX IN THE YEAR OF RECEIPT UNDER CASH SYSTEM OF ACCOUNTANCY. IT HAD AL SO BEEN OBSERVED THAT WHERE THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS BY ADOPTING ANY SPECIFIC METHOD, IT SHA LL BE 'TREATED TO BE CASH SYSTEM OF ACCOUNTANCY. IN THE P RESENT CASE, THE INTEREST RECEIVED BY THE PETITIONER WAS O N ACCOUNT OF DELAY IN MAKING THE PAYMENT OF ENHANCED COMPENSA TION AND, THEREFORE, WOULD FALL UNDER SECTION 28 OF THE 1894 ACT. SUCH PAYMENT COULD NOT PAR-TAKE THE CHARACTER OF COMPENSATION FOR ACQUISITION OF AGRICULTURAL LAND A ND, THUS, WAS NOT EXEMPT UNDER THE ACT. ONCE THAT WAS SO, THE TAX AT SOURCE HAD BEEN RIGHTLY DEDUCTED BY THE PAYER. 13. IN VIEW OF THE ABOVE, THE LAX AT SOURCE HAS BEE N RIGHTLY DEDUCTED AND THE PETITIONERS CAN CLAIM THE REFUND, IF ANY, ADMISSIBLE TO THEM BY FILING THE INCOME TAX RETURNS IN ACCORDANCE WITH LAW. 11 ITA NO. 6508/DEL/2016 4.8 FURTHER, ON THIS ISSUE, THE HONBLE PUNJAB & HA RYANA HIGH COURT HAS RECALLED THE EARLIER DECISION IN THE CASE OF JAGMAL SINGH AND ORS. VS. SLATE OF HARYANA & ANR. VIDE ITS ORDER DATED 02.02.2016 IN RA-CR NO. 46 CII OF 2014 IN CR NO. 77 40 OF 2012. 4.9 THE HONBLE HIGH COURT WHILE RECALLING THIS ORD ER HELD AS UNDER:- 1. THE APPLICATIONS FOR REVIEW-IS SOUGHT BY-THE UN ION OF INDIA ON THE PLEA THAT THE ORDERS PASSED BY THIS CO URT IN THE ABSENCE OF ANY REPRESENTATION OF UNION, FAILED TO T AKE NOTE OF AN AMENDMENT IN THE INCOME TAX ACT. THE SAID PROVIS ION MADE INTEREST COMPONENT ASSESSED ON ADDITIONAL AMOU NT ON LAND ACQUISITION AWARDS UNDER SECTION 28 OF THE LAN D ACQUISITION ACT AS TAXABLE. THE AMENDMENT THROUGH S ECTION 145-A (B) TOOK EFFECT FROM APRIL 2010. I HAVE RELIE D ON A JUDGMENT OF THE SUPREME COURT M COMMISSIONER OF INC OME- TAX, FARIDABAD VERSUS GHANSHYAM-(H UF) CIVIL APPEAL NO. 4401 OF 2009 DECIDED ON 16.7.2009 REPORTED IN 2009 (9) JT 445 TO HOLD THAT THE INTEREST AWARDED ON ENHANCED COMPENSATION IS NOT TAXABLE. THE EFFECT OF THE JUDG MENT HAS BEEN STATUTORILY ABROGATED BY VIRTUE OF THE AMENDME NT. THE AWARD OF THE COLLECTOR ITSELF HAS BEEN PASSED SUBSE QUENT TO THE AMENDMENT ON NOVEMBER 10. 2010. A DIVISION BENC H OF THIS COURT IN HARI KISHAN VERSUS UNION OF INDIA 201 4 (2) PLR 662 AND ANOTHER JUDGMENT IN ATTAR SINGH AND OTHERS VERSUS STATE OF HARYANA AND OTHERS. CWP NO. 10125 OF 2015 DATED 3.9.2015 HAVE REITERATED THE POSITION OF TAXABILITY ON ENHANCED COMPENSATION UNDER THE LAND ACQUISITION AC T ON THE BASIS OF THE AMENDMENT AND THE FACT OF INAPPLICABIL ITY OF GHANSHYAM 'S CASE (SUPRA), AFTER THE AMENDMENT TO T HE STATUTE. THE DECISIONS ALREADY RENDERED BY THE COUR T WERE PARENTALLY WRONG, FAILING TO NOTE OF THE STATUTORY AMENDMENT AND ITS EFFECT ON THE AWARDS IN THE TWO DECISIONS, REFERRED TO ABOVE. 2. THE ORDERS ALREADY PASSED ARE RECALLED AND THE R EVIEW APPLICATIONS ARE ALLOWED HOLDING THAT INTEREST ON T HE ADDITIONAL AWARD IS TAXABLE UNDER INCOME TAX AND LI ABLE TO BE DEDUCTED AT THE TIME OF DEPOSIT 4.10 FROM THE AFORESAID DECISIONS, IT IS EVIDENT TH AT'AFTER THE AMENDMENT OF THE INCOME TAX ACT BY WAY OF INSERTION OF SECTION 56(2)(VIII) AND SECTION 57(I)(V) BY FINANCE ACT 200 9 W.E.F 01.04.2010, THE ISSUE WHETHER THE INTEREST RECEIVED ON ENHANCED COMPENSATION WAS TAXABLE AS INCOME FROM OTHER SOURCES HAS BEEN F INALLY SETTLED. IN THESE CIRCUMSTANCES THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) (SUPRA) IS NOT APPLICABLE IN THE APPELLANT'S CASE. 12 ITA NO. 6508/DEL/2016 4.11 THE DECISION OF THE HON'BLE PUNJAB & HARYANA H IGH COURT IN THE CASE OF SUNDERLAL AND ANR. DATED 21.09.2015 (SU PRA) AND THE THE CASE OF JAGMAL SINGH AND ORS. (SUPRA) BEING THE LATEST DECISION ON THIS ISSUE AND THIS DECISION HAVING CONSIDERED T HE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSH YAM (SUPRA) AND ALSO CONSIDERING THE FACT THAT THE HON'BLE SUPR EME COURT HAS DISMISSED THE SLP FILED IN THE CASE OF MANJIT SINGH (HUF) (SUPRA), IT IS HELD THAT THE INTEREST RECEIVED U/S 28 OF THE LA ND ACQUISITION ACT IS NOT EXEMPT UNDER THE ACT AS IT COULD NOT PARTAKE THE CHARACTER OF COMPENSATION FOR ACQUISITION OF AGRICULTURAL LAND. IT IS HELD THAT THE INTEREST RECEIVED ON ENHANCED COMPENSATION IN THE A PPELLANTS CASE IS LIABLE TO TAX UNDER THE HEAD INCOME FROM OTHER S OURCES. THIS GROUND OF APPEAL IS DISMISSED. 4.2 BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE REL IED ON DECISION OF THE TRIBUNAL IN THE CASE OF JAGMAL SING H VS ITO, WARD-2(2), GURGAON IN ITA NO. 2340/DEL/2018 DATED 20/09/2018 AND SUSHMA GUPTA VS ITO WARD-1(3) IN ITA NO. 1823/DEL/2016 AND SUBMITTED THAT THE ASSESSEE WAS A WARDED INTEREST UNDER SECTION 28 OF THE LAND ACQUISITION A CT, 1894 ON ENHANCED COMPENSATION PAID FOR COMPULSORY ACQUISITI ON OF THE LAND AND THE SAID INTEREST RECEIVED IS TO BE TREATE D AS BEING IN THE NATURE OF THE COMPENSATION NOT LIABLE TO TAX. 4.3 ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATI VE RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 4.4 WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ISSUE IN DISPUTE B EFORE US IS WHETHER THE INTEREST RECEIVED ON ENHANCED COMPENSAT ION IS EXEMPTED UNDER SECTION 10(37) OF THE ACT AS PART OF THE LAND COMPENSATION OR IT IS TAXABLE UNDER SECTION 56(2)(V III) OF THE ACT. WE FIND THAT THE LD. CIT(A) HAS TAKEN INTO CONSIDER ATION DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF PUNJAB AND HARYANA IN THE CASE OF SUNDERLAL AND ANR. (SUPRA) AND JAGMA L SINGH AND 13 ITA NO. 6508/DEL/2016 ORS. (SUPRA), WHERE THE DECISION OF THE HONBLE SUP REME COURT IN THE CASE OF CIT VS GHANSHYAM (HUF) HAS ALSO BEEN CON SIDERED. SUBSEQUENT TO THE DECISIONS OF THE JURISDICTIONAL H IGH COURT REFERRED ABOVE, THE HONBLE SUPREME COURT IN THE CA SE OF CIT VS. CHET RAM (HUF), DATED 12.09.2017 IN CIVIL APPEAL NO . 13053 OF 2017, WHEREIN ALSO THE HONBLE SUPREME COURT HAS AG AIN REITERATED THE PROPOSITION LAID DOWN IN THE CASE OF GHANSHYAM (HUF) (SUPRA), WHICH HAS FURTHER BEEN REITERATED IN THE CASE OF UNION OF INDIA VS. HARI SINGH & OTHERS IN CIVIL APP EAL NO. 1504 OF 2017, DATED 15.09.2017, AS UNDER: '(2) WHILE DETERMINING AS TO WHETHER THE COMPENSATI ON PAID WAS FOR AGRICULTURAL LAND OR NOT, THE ASSESSING OFFICER(S) WILL KEEP IN MIND THE PROVISIONS OF SECTION 28 OF THE LAND ACQUISITIO N ACT AND THE LAW LAID DOWN BY THIS COURT IN 'COMMISSIONER OF INCOME TAX, FARIDABAD V. GHANSHYAM (HUF)' [2009 (8) SCC 412 IN ORDER TO A SCERTAIN WHETHER THE INTEREST GIVEN UNDER THE SAID PROVISION AMOUNTS TO COMPENSATION OR NOT. 4.5 IN VIEW OF ABOVE DECISIONS OF THE HONBLE SUPREME COURT, THE INTEREST RECEIVED ON COMPULSORY ACQUISITION OF LAND UNDER SECTION 28 OF LAND ACQUISITION ACT (LAA) WOULD BE IN THE NA TURE OF COMPENSATION AND NOT INTEREST, WHICH IS TAXABLE UND ER THE INCOME FROM OTHER SOURCES. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) TO DECIDE THE TAXABI LITY IN ACCORDANCE WITH LAW AFTER VERIFYING WHETHER THE INTEREST RECEI VED IS IN RESPECT OF LAND ACQUIRED U/S 28 OF THE LAA OR INTEREST UNDE R SECTION 34 OF THE LAA. IT IS NEEDLESS TO MENTION THAT ADEQUATE OP PORTUNITY OF BEING HEARD SHALL BE AFFORDED TO BOTH THE PARTIES, I.E., THE ASSESSEE AND THE ASSESSING OFFICER. THE GROUND NOS. 1 TO 3 OF THE 14 ITA NO. 6508/DEL/2016 APPEAL OF THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. THE GROUND NOS. 4 TO 6 OF THE APPEAL ARE RELATED T O ADDITION FOR CASH DEPOSITS OF 31, 93,000/- APPEARING IN THE BANK ACCOUNT. 5.1 THE FACTS QUA THE ISSUE IN DISPUTE THAT THE ASSESS ING OFFICER OBSERVED CASH DEPOSITS OF 20,00,000/- ON 26/05/2012 (SIC) AND 11,93,000/- ON 12/10/2012 IN THE BANK ACCOUNT MAIN TAINED WITH UNION BANK OF INDIA, MANESAR (HARYANA). THE AS SESSEE WAS PROVIDED OPPORTUNITY TO EXPLAIN THE SOURCE OF THE D EPOSIT OF THE SAID CASH DEPOSITS, HOWEVER, HE FAILED TO EXPLAIN T HE SOURCE OF THE SAME DESPITE REPEATED OPPORTUNITIES PROVIDED. BEFOR E THE LD. CIT(A), THE ASSESSEE CLAIMED THAT DEPOSITS ARE MADE OUT OF THE CASH RECEIVED ON AGREEMENT TO SELL OF THE LAND AND MONEY RECEIVED FROM RELATIVES AND FRIENDS. THE ASSESSEE FILED ADDI TIONAL EVIDENCE BEFORE THE LD. CIT(A) TO SUPPORT ITS CLAIM OF MONEY RECEIVED FROM AGREEMENT TO SELL OF THE LAND AND MONEY RECEIVED FR OM FRIENDS AND RELATIVES. THE LD. CIT(A) DID NOT ADMIT THE ADDITIO NAL EVIDENCE SUBMITTED BY THE ASSESSEE ON THE GROUND THAT THE AS SESSEE DID NOT SATISFY THE CONDITIONS PROVIDED UNDER RULE 46A OF INCOME TAX RULES, 1962 (FOR SHORT THE RULES) FOR ADMITTING O F THE ADDITIONAL EVIDENCES. ACCORDING TO HIM, THE EXPLANATION OF THE ASSESSEE OF RECEIPT OF MONEY FROM THE RELATIVES WAS ONLY AN AFT ERTHOUGHT AND MADE BY SELF-SERVING STATEMENT. IN VIEW OF THE LD. CIT(A), THE ASSESSEE FAILED TO DISCHARGE HIS ONUS TO PROVE THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT. ACCORDINGLY, HE DISMISSED THE GROUND OF THE APPEAL OF THE ASSESSEE. 15 ITA NO. 6508/DEL/2016 5.2 BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE SUB MITTED THAT THE LOWER AUTHORITIES HAS IGNORED THE FACTS AN D REJECTED THE ADDITIONAL EVIDENCES. ACCORDING TO HIM, THE CASH WI THDRAWAL WAS DULY REFLECTED IN THE BANK STATEMENT OF THE MOTHER OF THE ASSESSEE AS WELL AS HIS UNCLE AND SAME HAS BEEN DULY SUBMITT ED IN APPEAL PROCEEDINGS. ACCORDING TO HIM THE ASSESSEE WAS NOT ABLE TO FIND THE BANK STATEMENT DURING THE COURSE OF THE ASSESSM ENT PROCEEDING. HE SUBMITTED THAT ENTIRE TRANSACTION OF THE WITHDRAWALS AND DEPOSITS ARE DULY REFLECTED IN THE BANK ACCOUNT AND VERIFIABLE FROM THE RELEVANT RECORDS. ACCORDING TO HIM, THE ASSESSEE HAS DISCHARGE THE INITIAL BURDEN CASTED UP ON HIM AND, THEREFORE, SOURCE OF THE CASH DEPOSIT SHOULD BE ACC EPTED. 5.3 ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE DID NOT SATISFY THE CONDITIONS FOR ADMITTI NG ADDITIONAL EVIDENCE AS PROVIDED UNDER RULE 46A OF THE RULES AN D, THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN NOT ADMITTING ADDIT IONAL EVIDENCE AND DECIDING THE ISSUE ON THE BASIS OF THE DOCUMEN TS AVAILABLE ON RECORD. 5.4 WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ASSES SEE WAS PROVIDED AMPLE OPPORTUNITIES TO EXPLAIN THE SOURCE OF CASH DEPOSITS. THE LD. CIT(A) IN PARA 5.5 OF THE IMPUGNE D ORDER HAS MENTIONED THE DETAILS OF THE OPPORTUNITIES PROVIDED TO THE ASSESSEE. THE RELEVANT PARA IS EXTRACTED AS UNDER: 5.5 I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. I HAVE ALSO PERUSED THE ASSESSMENT RECORDS. AS PER THE NOTE SHE ET RECORDED IN THE ASSESSMENT RECORD, THE APPELLANT WAS ASKED VIDE ORDER SHEET 16 ITA NO. 6508/DEL/2016 ENTRY DATED 26.10.2015 TO EXPLAIN SOURCES OF CASH D EPOSITS OF RS.20 LACS ON 26.05.2012 AND RS.11,93,000/- ON 12.10.2012 AND TO JUSTIFY THE CLAIM. THE CASE WAS ADJOURNED TO 09.11. 2015. ON 09.11.2015 NONE ATTENDED. ANOTHER OPPORTUNITY WAS G IVEN TO THE APPELLANT AND THE CASE WAS FIXED FOR HEARING ON 17. 11.2015. ON 17.11.2015 NO REPLY WAS FURNISHED. THE A.O. ONCE AG AIN ASKED THE APPELLANT TO FURNISH THE REQUISITE DETAILS AND THE CASE WAS ADJOURNED TO 24.11.2015. ON 24.11.2015 ONCE AGAIN N O REPLY WAS FURNISHED. THE A.O. GIVEN ONE LAST OPPORTUNITY TO T HE APPELLANT TO FURNISH THE REQUISITE DETAILS. IT WAS SPECIFICALLY MENTIONED THAT IN CASE NO REPLY WAS FURNISHED IT SHALL BE PRESUMED TH AT THE APPELLANT HAS NOTHING TO SAY AND THE CASH DEPOSITED IN THE BA NK ACCOUNT SHALL BE TREATED AS UNDISCLOSED INCOME OF THE APPELLANT. THE CASE WAS ADJOURNED TO 30.11.2015. ON 30.11.2015 ONCE AGAIN N O EXPLANATION OR EVIDENCE REGARDING THE SOURCES OF CASH DEPOSIT I N THE BANK ACCOUNT WERE FURNISHED. 5.5 THE LD. CIT(A) ALSO EXAMINED ADMISSIBILITY OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IN TERMS OF RULE 46A OF THE RULES. THE RELEVANT PART OF THE DECISION OF THE LD. CIT(A) IS REPRODUCED AS UNDER: 5.6 IT IS EVIDENT FROM THE FACT'S RECORDED/DISCUSS ED ABOVE THAT IN SPITE OF REPEALED OPPORTUNITIES GRANTED BY THE A.O AND IN SPITE OF A SPECIFIC SHOW CAUSE RECORDED IN THE NOTE SHEET ON 2 4.11.2015, THE APPELLANT FAILED TO FURNISH ANY EXPLANATION OR EVID ENCE. IN THESE CIRCUMSTANCES THE REQUEST OF THE APPELLANT FOR ADMI SSION OF ADDITIONAL EVIDENCE CANNOT BE ACCEPTED. THE POWER O F CIT(APPEAL) TO ADMIT ADDITIONAL EVIDENCE IS GOVERNED BY THE PROVIS IONS OF RULE 46A OF INCOME TAX RULES, 1961 . AS PER RULE 46A, THE CI T(A) CAN ADMIT ADDITIONAL EVIDENCE ONLY IN THE FOLLOWING CIRCUMSTA NCES:- I) WHERE THE AO HAS REFUSED TO ADMIT EVIDENCE WHICH OU T TO HAVE BEEN ADMITTED. II) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE AO. III) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE AO ANY EVIDENCE WHICH IS RELEV ANT TO ANY GROUND OF APPEAL, IV) WHERE THE AO HAS MADE THE ORDER APPEALED AGAINST WI THOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO A DDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. 17 ITA NO. 6508/DEL/2016 5.7 IN THE APPELLANTS CASE NONE OF THE CONDITIONS REFERRED TO IN RULE 46A IS SATISFIED. THE AO DID NOT REFUSE TO ADMIT AN Y EVIDENCE. THE NEXT ISSUE TO BE EXAMINED IS WHETHER THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE. IN THIS REGARD THE APPELLANT HAS NOT BEEN ABLE TO JUSTIFY AS TO HOW AN D WHY ANY EXPLANATION OR EVIDENCE COULD NOT BE PRODUCED BY HI M, TO EXPLAIN HIS CONTENTIONS, DURING THE COURSE OF ASSESSMENT PROCEE DINGS. THE DOCUMENTARY EVIDENCE REQUESTED FOR BY THE AO PERTAI NED TO THE PERIOD ENDING ON 31.03.2013 AND THE SAME WAS CALLED FOR BY THE AO DURING THE PERIOD ENDING ON 31.12.2015. THE APPELLA NT HAS NOT BEEN ABLE TO JUSTIFY AS TO WHAT PREVENTED HIM FROM PRODU CING THESE EVIDENCES FOR SUCH A LONG TIME. 5.9 THE ONLY OTHER ISSUES IS WHETHER THE AO HAS MAD E THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUN ITY TO THE APPELLANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. FROM THE FACTS ON RECORD IT IS CLEAR THAT APPELLANT WAS AFFORDED SUFFICIENT OPPORTUNITIES TO PRODUCE THE EVIDENCE. THE FACT REM AINS THAT IN SPITE OF REPEATED OPPORTUNITIES PROVIDED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT FAILED TO FURN ISH THE REQUISITE DETAILS. 5.10 HON'BLE DELHI HIGH COURT HAS STRONGLY DEPRECAT EDTHE ATTITUDE OF THE NON- COOPERATIVE ASSESSEES IN THE C ASE OF COMMISSIONER OF WEALTH TAX VS. GURDIAL SINGH, 123 I TR 483 (DEL) AND OBSERVED AS UNDER : 'WE HAVE HEARD THE PARTIES AND GIVEN OUR UTMOST CONSIDERATION TO ALL THE CIRCUMSTANCES. IN OUR OPIN ION, THE NARRATION OF THE FACTS ABOVE ABUNDANTLY BRINGS OUT THE RECALCITRANT AND TOTALLY NON-CO-OPERATIVE ATTITUDE OF THE ASSESSEE. HE DID NOT CARE TO FILE WEALTH-LAX RETURN S OF HIS OWN. PERHAPS THERE COULD BE SOME JUSTIFICATION FOR THAT IN CASE HE FELT THAT HIS WEALTHS WERE NOT ASSESSABLE. HOWEVER, WHEN THE WTO HAD ISSUED NOTICES UNDER SS. 14(2) AND 17 OF TH E W.T. ACT, REQUIRING HIM TO FIDE THE RETURNS, HE WAS THER EAFTER OBLIGED UNDER THE LAW TO FILE THE RETURNS. HE COULD NOT HAVE THEREAFTER IGNORED THE NOTICES AND STILL REMAINED I NDIFFERENT TO THE SUBMISSION OF THE RETURNS. THE WTO, THEREFORE, WAS JUSTIFIED TO PROCEED UNDER S. 16(5) OF THE ACT AND FRAME BEST JUDGMENT ASSESSMENTS. THE TRIBUNAL TOO IN THIS REGA RD HAS OBSERVED THAT IT WAS NO DOUBT CORRECT THAT THE WTO WAS COMPELLED TO ACT UNDER S. 16(5) OF THE ACT. WITH THIS BACKGROUND OF THE FACTS, WE DO NOT SEE WHAT WAS THE OTHER MATERIAL WHICH THE AUTHORITIES BELOW HAD COLLECTED OR RELIED UPON, ABOUT WHICH THE APPELLATE TRIBUNAL OBSERVED THAT THE ASSESSEE SHOULD HAVE BEE N PROVIDED A SECOND OPPORTUNITY OF BEING HEARD . THE 18 ITA NO. 6508/DEL/2016 GENERALIZED STATEMENT IN THE ORDER OF THE TRIBUNAL ABOUT THE MATERIAL COLLECTED HAD LITTLE BEARING WHEN IN FACT THERE WAS NO SUCH MATERIAL COLLECTED. PRIMARILY IT WERE THE STAT EMENTS FURNISHED BY THE ASSESSEE HIMSELF WHICH WERE MADE T HE BASIS FOR BEST JUDGMENT ASSESSMENTS IN SO FAR AS THE ASSE TS SHOWN IN THEM WERE CONCERNED. ALL THAT WAS DONE WAS TO IG NORE LIABILITIES AS THE ASSESSEE HAD FAILED TO SUBSTANTI ATE THEM IN SPITE OF A LARGE NUMBER OF OPPORTUNITIES GRANTED. I N OUR OPINION, THEREFORE, THE RATIO OF THE KERALA HIGH CO URT DECISION RELIED UPON BY THE TRIBUNAL WAS NOT, IN ANY MANNER, ATTRACTED. THE ATTITUDE OF THE ASSESSEE- WAS THROUGHOUT TO SIT ON THE FENCE AND CONTEMPTUOUSLY IGNORE THE ASSESSMENT PROCEEDINGS AND THE NOTICES ISSUED BY THE WTO REQUIRING HIM TO FURNISH RETURNS AND OTHER MATERIAL IN SUPPORT OF HIS WEALTH-LAX STATEMENTS. AFTER ALL THE ASSESSMENT PROCEEDINGS COULD NOT BE CONVERTED INTO A FARCE OF MOCKERY BY HIM. HE OUGHT TO HAVE SHOWN DUE REGARD T O THEM. IN THE CIRCUMSTANCES, THERE WAS NO JUSTIFICATION, TO ALLOW HIM A SECOND INNINGS BY SETTING ASIDE THE ASSESSMEN TS AND RET/AIRING THE WTO TO FRAME THEM AFRESH . FOR THE FRAMING OF THOSE BEST JUDGMENT ASSESSMENTS, AND THE SITUATION IN WHICH THE ASSESSEE FOUND HIMSELF RENDE RED, HE WAS HIMSELF TO BLAME. HE COULD NOT, THEREFORE, BE H EARD TO MAKE A GRIEVANCE OF HIS OWN DEFAULTS . WHAT THE PRINCIPLES OF NATURAL JUSTICE POSTULATES IS THAT A REASONABLE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE OF BE ING HEARD. IT IS FOR HIM TO AVAIL THAT. IN CASE, HE DOES NOT CHOOSE TO DO SO, THE ORDERS THAT FOLLOW CANNOT BE HELD VIO LATIVE OF THOSE PRINCIPLES OR THE REQUIREMENTS OF LAW. (EMPHASIS SUPPLIED) 5.11 HON'BLE SUPREME COURT IN THE CASE OF SEGU BUCH IAH SETTY, 77 ITR 539(SC) HAS HELD AS UNDER: IT IS INCONCEIVABLE THAT THE LEGISLATURE COULD HAV E EVER INTENDED THAT IN CASE OF MULTIPLE DEFAULTS FOR EACH ONE OF WHICH AN EX-PARTE BEST JUDGMENT ASSESSMENT HAS TO B E MADE THE ASSESSED CAN ASK FOR CANCELLATION OF THE ASSESS MENT BY MERELY SHOWING CAUSE FOR ONE OF SUCH DEFAULTS. IN O UR OPINION, THE BOMBAY HIGH COURT IN CHIRANJILAL TIBREWALA V. COMMISSIONER OF INCOME-TAX WAS RIGHT IN HOLDING THA T IN CIRCUMSTANCES SIMILAR TO THE PRESENT CASE THE ASSES SEE CANNOT ASK FOR CANCELLATION UNDER SECTION 27 OF AN ASSESSMENT MADE UNDER SECTION 23(4). IN THIS VIEW OF THE MATTE R THE JUDGMENT OF THE HIGH COURT -HAS TO BE SET-ASIDE, AN D THE QUESTION HAS TO BE ANSWERED AGAINST THE ASSESSED AN D IN FAVOUR OF THE APPELLANT '. 19 ITA NO. 6508/DEL/2016 5.12 HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CAS E OF MIRI MAL MAHAJAN, 95 ITR 186 (P&H) HELD THAT THE MATERIAL GA THERED BY INCOME TAX OFFICER WAS NOT REQUIRED TO BE PUT TO TH E ASSESSEE TO AFFORD HIM AN OPPORTUNITY TO SAY WHAT HE MAY HAVE T O SAY IN RESPECT OF THE SAME WHERE THE ASSESSEE DOES NOT COOPERATE W ITH THE DEPARTMENT. THE RELEVANT PART OF THE ORDER IS REPRO DUCED AS UNDER : THE SECOND CONTENTION ON BEHALF OF THE APPELLANT T HAT THE EVIDENCE GOT COLLECTED BY THE INCOME-TAX OFFICER WA S NOT PUT TO THE ASSESSEE AS PROVIDED IN SUB-SECTION (3) OF SECT ION 142 HAS, ON THE FACE OF IT, NO FORCE. THE ASSESSEE WAS GIVEN A NUMBER OF OPPORTUNITIES TO PRODUCE HIS BOOKS OF ACCOUNT ON A DATE FIXED BY THE INCOME-TAX OFFICER, BUT HE FAILED TO AVAIL O F ANY OF THESE OPPORTUNITIES. ONE CANNOT, THEREFORE, UNDERSTAND HO W THE MATERIAL GATHERED BY THE INCOME-TAX OFFICER UNDER S UB-SECTION (2) OF SECTION 142 COULD BE PUT TO THE ASSESSEE AND AFFORD HIM AN OPPORTUNITY TO SAY WHAT, HE MAY HAVE TO SAY IN R ESPECT OF THE SAME. IN FACT, THE VERY OPENING WORDS OF SUB-SE CTION (3) OF SECTION 142, VIZ., 'THE ASSESSEE SHALL, EXCEPT WHER E THE ASSESSMENT IS MADE UNDER SECTION 144, BE GIVEN AN OPPORTUNITY', MAKE IT CLEAR THAT IT DOES NOT APPLY TO AN ASSESSMENT UNDER SECTION 144, I.E., WHERE THE ASSES SEE DOES NOT CO-OPERATE WITH THE DEPARTMENT (EMPHASIS SUPP LIED). 5.13 SIMILARLY. HON'BLE MADRAS HIGH COURT IN THE CA SE OF RAYALA CORPORATION PVT. LTD., 215 ITR 883 (MAD) HAS NOT CO UNTENANCED THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE. IN THAT C ASE THE APPEAL OF THE DEPARTMENT WAS ALLOWED BY THE HON'BLE HIGH COUR T AND THE HON'BLE COURT MADE THE FOLLOWING OBSERVATIONS AFTER REFERRING TO THE DECISION OF HON'BLE SUPREME COURT IN 176 ITRJ535 (S C) : WHAT HAS SURPRISED US, HOWEVER, IN THE INSTANT CAS E, IS THE WAY THE APPELLATE COMMISSIONER HAS IGNORED THE DEFI ANCE OF THE ASSESSEE THAT IN SPITE OF THE REPEATED NOTICES AND LETTERS IT NEVER APPEARED BEFORE THE INCOME-TAX OFFICER WITH A NY INFORMATION OR MATERIAL IN RESPONSE TO THE NOTICE U NDER SECTION 148 OF THE INCOME-TAX ACT AND THE LETTERS SENT TO I T IN THIS BEHALF. THE APPELLATE TRIBUNAL IS NOT A COURT. ITS POWERS, HOWEVER, ARE EXPRESSED IN THE WIDEST POSSIBLE, TERMS UNDER SECTI ON 254 OF THE ACT, 'MAY AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, AND PASS SUCH ORDERS TH EREON AS IT THINKS FIT'. ITS POWERS, THUS, ARE ALMOST SIMILAR T O THE POWERS OF AN APPELLATE COURT UNDER THE CODE OF CIVIL PROCE DURE. A WIDE POWER, HOWEVER, IS NOT SUCH THAT IT CAN BE EXE RCISED IN ANY MANNER. THE TRIBUNAL CAN INTERFERE WITH THE ORD ERS OF THE LOWER AUTHORITIES, BUT CAN DO SO ONLY ON JUDICIAL C ONSIDERATIONS 20 ITA NO. 6508/DEL/2016 AND ON THE BASIS OF REASONS THAT SUGGEST CLEARLY TH AT THE LOWER AUTHORITIES HAD COMMITTED AN ERROR OF LAW OR SUCH F ACT THAT HAD VITIATED ITS CONSIDERATIONS AND GONE PERVERSE F OR SUCH REASONS. THE APPELLATE COURTS WHICH EXERCISE WIDE P OWERS TO HEAR APPEALS BOTH ON ISSUES OF LAW AS WELL AS ISSUE S OF FACT, EXERCISE THE WELL KNOWN REFRAIN THAT IF TWO OPINION S EWE POSSIBLE AND ONE OPINION IS FORMED BY THE LOWER AUT HORITY OR COURT, ALTHOUGH IT IS TO ARRIVE AT A DIFFERENT OPIN ION IT SHALL NOT INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY OR REVERSE THE ORDER OF THE TOWER .AUTHORITY. THE TEST WHICH THE C OURTS APPLY FOR INTERFERENCE WHEN AN ERROR OF LAW IS NOT EVIDEN CED IS WHETHER A REASONABLE PERSON CAN TAKE THE OPINION WH ICH THE AUTHORITY HAS, THROUGH THE ORDER UNDER APPEAL, TAKE N. ONCE IT IS FOUND THAT A REASONABLE PERSON COULD FORM THE OP INION, WHICH THE LOWER COURT, OR THE AUTHORITY HAD FORMED, THE APPELLATE COURT OR AUTHORITY SHALL DESIST FROM INTE RFERING WITH ITS ORDER. WE HAVE CHOSEN TO MAKE SOME OBSERVATIONS AS TO THE ROLE OF THE APPELLATE TRIBUNAL, BECAUSE THE STAGE AT WHICH IT COMES TO EXAMINE THE CONTENTIONS OF THE ASSESSEE OR THE REVE NUE IS ONE AFTER ALL THE PROCEEDINGS UNDER THE LAW. AN ENQUIRY BEFORE ASSESSMENT, AN ENQUIRY AFTER ASSESSMENT, IF ANY, UN DER SECTION 143 OF THE AD AND HEARING, IF ANY, OF THE A SSESSEE BY THE INCOME-TAX OFFICER ARE COMPLETED AND THE REMEDY OF A STATUTORY APPEAL BEFORE THE APPELLATE ASSISTANT COM MISSIONER IS AVAILED OF BY THE ASSESSEE OR THE REVENUE ? ITS PRIMARY TASK IS NOT TO GO INTO THE RETURN OF THE ASSESSEE A ND DECIDE WHAT AMOUNT OF LAX SHOULD BE LEVIED UPON HIS INCOME , BUT TO SEE WHETHER THE TAXING AUTHORITIES, INCLUDING THE A PPELLATE ASSISTANT COMMISSIONER HAVE COMMITTED ANY ERROR OF LAW OR OF FACT AND ON ACCOUNT OF SUCH ERROR, THE ASSESSEE HAS SUFFERED. A GREATER PROTECTION IS EXTENDED BY THE LAW TO THE REVENUE IN THE SENSE THAT, IN CASES WHERE TAX IS FOUND TO HAVE BEEN SHORT-LEVIED, DISCRETION IS GIVEN TO THE COMPETENT AUTHORITY (COMMISSIONER) TO REOPEN THE WHOLE MAILER, IF IT IS IN PUBLIC INTEREST TO DO SO. THE TRIBUNAL HAS GOT TO PROTECT, ON THE ONE HAND, THE INTEREST OF THE ASSESSEE IN THE SENSE THA T HE IS NOT SUBJECTED TO ANY AMOUNT OF TAX IN EXCESS OF WHAT HE IS BOUND TO PAY, AND ON THE OTHER HAND, IT HAS A DUTY TO PRO TECT THE INTERESTS OF THE REVENUE AND TO SEE THAT, NO ONE DO DGED THE REVENUE AND ESCAPED WITHOUT, PAYING THE TAX THE SUPREME COURT ALSO HAS POINTED OUT THAT THE ASS ESSEE CANNOT BE PERMITTED TO TAKE ADVANTAGE OF HIS OWN IL LEGAL ADS AND THAT IT WAS HIS DUTY TO PLACE ALL THE FADS TRUT HFULLY BEFORE THE ASSESSING AUTHORITY. IF HE FAILS TO DO HIS DUTY , HE CANNOT BE ALLOWED TO CALL UPON THE ASSESSING AUTHORITY TO PRO VE CONCLUSIVELY WHAT TURNOVER HE HAD SUPPRESSED. THAT FACT MUST 21 ITA NO. 6508/DEL/2016 BE WITHIN HIS PERSONAL KNOWLEDGE. HENCE, THE BURDEN OF PROVING THAT FACT IS ON HIM.. 5.14 IF THE FACTS OF THE PRESENT CASE ARE ANALYZED, IT IS ABSOLUTELY THAT THE ASSESSING OFFICER GAVE THE ASSESSEE MANY O PPORTUNITIES TO FURNISH EXPLANATION WITH EVIDENCE REGARDING THE CAS H DEPOSITS IN THE BANK ACCOUNT BUT THE APPELLANT FAILED TO GIVE ANY E VIDENCE WITH REGARD TO THE CASH DEPOSITS UNDER REFERENCE. THE RA TIO OF THE ABOVE SAID JUDICIAL OPINIONS IS ON ALL FOURS AND APPLICAB LE TO THE PRESENT CASE. THE ASSESSING OFFICER HAS FRAMED THE ASSESSME NT IN A VERY JUDICIOUS MANNER AND NOT IN ARBITRARY MANNER. 5.15 KEEPING IN VIEW THE AFORESAID FACTS AND CIRCUM STANCES OF THE CASE, ADDITIONAL EVIDENCES TILED BY THE APPELLANT I S NOT ADMITTED. REFERENCE IN THIS REGARD MAY BE MADE TO THE DECISIO N OF THE HON'BLE ITAT CHD.IN THE CASE OF DIMPLE EXPORTS VS. DOT IN 1 1 A NO. 159/CHD/2014 DATED 11.02.2016. REFERENCE IN THIS RE GARD MAY ALSO BE MADE TO THE DECISION OF THE HON'BLE ITAT CH D. IN THE CASE OF RISHI SAGAR VS DCIT IN ITA NO. 10 /CHD./2013 DATED 23.05.2013. 5.6 WE FIND THAT THE ASSESSEE FAILED TO EXPLAIN ANY SU FFICIENT CAUSE WHICH PREVENTED HIM FROM PRODUCING THE EVIDEN CES BEFORE THE ASSESSING OFFICER. IN VIEW OF THE DETAILED REAS ONING PROVIDED BY THE LD. CIT(A), WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE. 5.7 FINALLY, THE LD. CIT(A) UPHELD THE ADDITION IN VIEW OF FAILURE OF THE ASSESSEE TO EXPLAIN THE SOURCE OF THE CASH D EPOSITS. THE RELEVANT PART OF THE ORDER OF THE LD. CIT(A) REPROD UCED AS UNDER: 5.17 AS SEEN FROM THE FACTS RECORDED IN THE ASSESS MENT ORDER THE APPELLANT HAD FAILED TO FURNISH ANY EXPLANATION WIT H REGARD TO THE SOURCES OF CASK DEPOSIT IN THE BANK ACCOUNT. THE CO NTENTION OF THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDING S THAT THE SAME WAS RECEIVED BY THE APPELLANT FROM HIS RELATIVES I. E FROM HIS MOTHER AS WELL AS HIS UNCLE IS WITHOUT ANY SUPPORTING EVID ENCE AND IS AN AFTERTHOUGHT AND A MERE SELF-SERVING STATEMENT. NO SUCH CONTENTION WAS MADE DURING THE COURSE OF ASSESSMENT PROCEEDING S. THE ONUS TO PROVE THE SOURCES OL CASH DEPOSITS IN THE BANK A CCOUNT LIES WITH THE APPELLANT. THE APPELLANT HAS FAILED TO DISCHARG E THE ONUS. THE ADDITION MADE BY THE A.O IS CONFIRMED. THESE GROUND S OF APPEAL ARE DISMISSED. 22 ITA NO. 6508/DEL/2016 5.8 DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS MA NY OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE BUT THE ASSESSEE DID NOT PROVIDE ANY EXPLANATION OR STATEMENT IN RESPECT OF THE CASH DEPOSITS. ONE CAN UNDERSTAND OF NOT HAVING READY AV AILABILITY OF THE DOCUMENTARY EVIDENCE BUT THE ASSESSEE WAS NOT P REVENTED FROM EXPLAINING THE SOURCE OF DEPOSITS WHICH ACCORD ING TO HIM WAS MONEY RECEIVED FROM HIS MOTHER AND UNCLE. NO SU CH EXPLANATION WAS EVEN OFFERED BY THE ASSESSEE BEFORE THE AO. THUS, THE EXPLANATION AND DOCUMENTARY EVIDENCE FILED BEFO RE THE LD. CIT(A) ARE RESULT OF AFTERTHOUGHT ONLY. THE LD. CI T(A) HAS REJECTED THE ADDITIONAL EVIDENCES AS SAME WERE NOT IN ACCORD ANCE WITH RULE 46A OF THE RULES. 5.9 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE FAILED TO DISC HARGE ITS ONUS TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS AND THER EFORE, LD. CIT(A) IS JUSTIFIED IN SUSTAINING THE ADDITION. WE, ACCORDINGLY, UPHOLD THE SAME. THE GROUNDS OF THE APPEAL OF THE A SSESSEE ARE ACCORDINGLY DISMISSED. 6. IN GROUND NO. 7, THE ASSESSEE HAS CHALLENGED INITI ATION OF THE PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF T HE ACT AND NON- GRANTING OF CREDIT OF TDS. IN OUR OPINION, AS FAR A S THE ISSUE OF INITIATION OF THE PENALTY PROCEEDING IS CONCERNED, THE GROUND RAISED IS PREMATURE AT THIS STAGE AND, THEREFORE, S AME IS DISMISSED AS INFRUCTUOUS. HOWEVER, AS FAR AS GRANTI NG OF THE CREDIT OF THE TDS IS CONCERNED, WE DIRECT THE ASSES SING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND IF SAME IS FO UND IN ACCORDANCE WITH LAW, THE ASSESSEE SHOULD BE ALLOWED THE CREDIT OF 23 ITA NO. 6508/DEL/2016 TAX DEDUCTED AT SOURCE. THE GROUND OF THE APPEAL OF THE ASSESSEE IS ACCORDINGLY PARTLY ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2020. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH JANUARY, 2020. RK/-(D.T.D.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI