Parveen Yadav, Delhi V. ITO ward-35(5), New Delhi

ITA 6514/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2968 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Gift; Income from undisclosed sources; Opportunity of being heard; Source of fund; Reassessment proceedings
• Section: 13; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-1 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.6514/DEL/2019 ASSESSMENT YEAR : 2011-12 SMT. PARVEEN YADAV, 228, YADAV MOHALLA RAJOKARI, SOUTH WEST DELHI DELHI-110038 PAN-AFAPY5633C VS ITO, WARD-33(5), ROOM NO.1309, 13 TH FLOOR,E-2 BLOCK, PRATYAKSH KAR BHAWAN. CIVIC CENTRE, J. L. NEHRU MARG, NEW DELHI-110002 APPELLANT RESPONDENT APPELLANT BY SH. P.C. YADAV, ADVOCATE RESPONDENT BY SH. R.K. GUPTA, SR. DR DATE OF HEARING 08 .04.2021 DATE OF PRONOUNCEMENT 14 .06 .2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2011-12 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-11, NEW DE LHI DATED 18.06.2019. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE CIT(APPEALS) ERRED ON THE FACTS AND IN LAW PASSING THE IMPUGNED ORDER DATED 18.06.2019 THEREBY CONFIRMING THE ADDIT ION OF RS.11,33,000 MADE BY THE ASSESSING OFFICER (AO) IN RESPECT OF THE ALLEGED CASH DEPOSIT IN THE BANK ACCOUNT OF THE APPELLANT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE CIT(APPEALS) ERRED IN NOT APPRECIATING THAT THE ORDER PASSED BY THE AO IS ILLEGAL AND BAD IN LAW INASMUCH AS THE SAME HAS BEEN PASSED MERELY ON CONJ ECTURES AND SURMISES, WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND WAS VIOLATIVE OF PRINCIPLES OF NATURA L JUSTICE. 3. THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LAW IN UPHOLDING INITIATION OF REASSESSMENT PROCEEDINGS UNDER SECTION 147/148 OF T HE ACT WITHOUT APPRECIATING THAT (I) THE REASONS RECORDED WERE BAS ED ON STALE INFORMATION AND HAVING NO NEXUS WITH THE PURPORTED INFORMATION; (II) THERE WAS NO INCOME ESCAPING ASSESSMENT INASMUCH AS THE ALLEGED CASH RECEIVED WAS EXEMPT FROM TAX BEING GIFTS RECEIVED FROM THE REL ATIVE. ITA NO.-6514/DEL/2019 2 4. THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LAW IN UPHOLDING ADDITION OF RS.11,33,000 WITHOUT (I) POINTING OUT THE RELEVANT PROVISIONS OF THE ACT UNDER WHICH SUCH ADDITION WAS MADE; (II) APPRECIATI NG THE DOCUMENTARY EVIDENCES FILED BY THE APPELLANT WITHOUT DOUBTING T HE VERACITY OF THE SAME; (III) BRINGING ON RECORD ANY DOCUMENTARY EVIDENCES TO REBUT THE EXPLANATION/DOCUMENTS FILED BY THE APPELLANT. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT T HE CASE OF THE ASSESSEE WAS RE-OPENED BY ISSUING NOTICE U/S 148 OF TH E INCOME TAX ACT, 1961 (THE ACT). THE ASSESSEE WAS ALSO SUPPLIED REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THEREAFTER, THE REASSESSME NT WAS FRAMED. THE ASSESSING OFFICER FRAMED THE ASSESSMENT AND MADE ADD ITION OF RS.11,33,000/-. 3. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED APPEAL B EFORE LD.CIT(A) WHO ALSO DISMISSED THE APPEAL. 4. AGGRIEVED AGAINST THE ORDER OF LD.CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 5. GROUND NO 2 AND 3 ARE AGAINST THE NON-PROVIDE OF OP PORTUNITY AND ALSO ILLEGALITY OF THE REOPENING OF ASSESSMENT. 6. LD. COUNSEL FOR THE ASSESSEE, SHRI P.C. YADAV, VEHEMENTLY ARGUED THAT THE REOPENING OF ASSESSMENT IS EX-FACIE ILLEGAL AND UNJUSTIFIED UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. HE DREW MY ATT ENTION TO THE REASONS RECORDED WHICH IS ENCLOSED IN THE PAPER BOOK AT PAGES 1 AND 2. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE REOPENING WAS MADE ON THE BASIS OF THE BANK INFORMATION OF CASH DEPOSIT S IN THE ASSESSEES ACCOUNT HELD WITH SYNDICATE BANK OF RS.25,49,500/- . HOWEVER, THE ASSESSING OFFICER HIMSELF RECORDS THE FACT THAT ONLY RS.11,33,000/- WAS ITA NO.-6514/DEL/2019 3 FOUND TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT OF TH E ASSESSEE. THEREFORE, THE INFORMATION SO RECEIVED WAS NOT CORRECT AN D FORMATION OF BELIEF WAS ON THE BASIS OF INCORRECT INFORMATION. HE CONTEN DED THAT THE REOPENING IS VITIATED ON THE COUNT THAT FIRSTLY, THERE IS NO PROPER APPLICATION OF MIND BY THE AUTHORITIES IN APPROVING PROPOSAL FOR REASSESSMENT OF THE ASSESSMENT. THE REASONS HAVE BEE N RECORDED IN MECHANICAL MANNER. UNDISPUTEDLY, THE INFORMATION SUPPLIED TO THE ASSESSING OFFICER WAS INCORRECT. IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO VERIFY THE CORRECTNESS OF INFORMATION BEFORE PRO CEEDING FOR REOPENING OF THE ASSESSMENT. HE SUBMITTED THAT THE ASS ESSING OFFICER OUGHT TO HAVE APPRECIATED THE FACTS IN RIGHT PERSPECTIVE . IN SUPPORT OF HIS CONTENTION HE RELIED ON THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RAJKUMAR MAHESHWARI VS ITO IN ITA NO.536/JP/2019 AND JUDGMENT OF HONBLE GUJARAT HIGH COU RT IN THE CASE OF MUMTAX HAZI MOHAMMAD MENON VS ITO SPECIAL CIVIL A PPEAL NO.21030 OF 2017. 7. ON THE CONTRARY, LD. SR. DR, SH. R.K. GUPTA, VEHEMENTL Y OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHO RITIES BELOW. HE CONTENDED THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE. IT IS NOT THE CASE WHERE THE AUTHORITY GRANTING APPROVAL HA S NOT APPLIED THE MIND. HE SUBMITTED THAT THERE IS PROCEDURE THAT THE AS SESSING OFFICER MAKES A PROPOSAL AND SENT ALL THE RECORDS BEFORE THE JC IT/PCIT AS THE CASE MAY BE. THE LEARNED COUNSEL FOR THE ASSESSEE IN R EJOINDER SUBMITTED THAT NOWHERE AUTHORITY GIVING APPROVAL HAS STA TED THAT IT HAS ITA NO.-6514/DEL/2019 4 EXAMINED THE RECORDS AND APPLIED HIS MIND. THEREFORE, WHE RE THERE IS NON-APPLICATION OF MIND, REOPENING OF SUCH ASSESSMENT CANNO T BE SUSTAINED. 8. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED FACT THAT THE FIGURE MENTIONED IN THE REASONS OF RECORDING REMAINS FOR ESCAPEMENT IS MATER IALLY DIFFERENT AND CONTRARY TO THE BANK STATEMENT PRODUCED BY THE ASSESSEE. THE REVENUE COULD NOT REBUT THE ERROR. HENCE, IN MY VIEW THE INFORMATION BASED UPON WHICH THE REOPENING WAS MADE IS FOUND TO BE INCORRECT. IT IS SETTLED POSITION OF LAW THAT THE FORMATION OF BELIEF FOR ESCAPE MENT OF INCOME SHOULD BE BASED ON CORRECT AND TRUE INFORMATION. HOWEVER, ADMITTEDLY INCORRECT FIGURE TRANSFER OF CASH DEPOSIT IN THE ASSESSEES ACCOUNT WAS MENTIONED IN THE INFORMATION ON THE BASIS OF W HICH THE ASSESSING OFFICER FORMED HIS BELIEF OF ESCAPEMENT OF INCOME. FURTHER, NOTHING IS PLACED ON RECORD TO SUGGEST THAT THE LD. CIT BY GRANTING APPROVAL HAD EXAMINED THE RECORD AND APPLIED HIS MIND A S THERE IS NO JUSTIFICATION REGARDING DIFFERENCE IN THE AMOUNT DEPOSITED IN BANK ACCOUNT AND MENTIONED IN THE REASON FOR REOPENING. IN MY VIEW WHEN APPARENTLY THERE WAS A HIGHER FIGURE MENTIONED IN THE INFO RMATION SUPPLIED TO THE ASSESSING OFFICER. NO MATERIAL IS AVAILABLE SUGG ESTING THAT BANK HAD SUPPLIED WRONG INFORMATION TO THE ASSESSING OFFICER AS THE AIR INFORMATION IS NOT PLACED ON RECORD. LOOKING TO THE FACTS OF THE PRESENT CASE I AM OF THE CONSIDERED VIEW THAT THE REOPENING OF A SSESSMENT AND APPROVAL THEREOF IS NOT ACCORDANCE WITH SETTLED PRINCIPLE O F LAW. HENCE, ITA NO.-6514/DEL/2019 5 THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. THE REOPE NING OF THE ASSESSMENT IS HELD TO BE BAD IN LAW ON ACCOUNT OF NON-A PPLICATION OF MIND BY THE AUTHORITIES BELOW. 9. THE GROUND NO.4 IS AGAINST SUSTAINING THE ADDITION OF RS.11,33,000/- ON FACTS. 10. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE ADDITION WAS MADE ON THE BASIS OF CONJECTURE AND SURMISES SUCH ADDITION CANNOT BE SUSTAINED. HE SUBMITTED THAT DURING THE ASSESSMENT P ROCEEDINGS THE ASSESSEE HAD DULY EXPLAINED THE SOURCE OF CASH DEPOSITE D IN THE BANK ACCOUNT. HE SUBMITTED THAT IT WAS CATEGORICALLY STATED BEFORE THE AUTHORITIES THAT THE AMOUNT WAS RECEIVED AS GIFT FROM HER FATHER-IN-LAW. HE SUBMITTED THAT THE ASSESSEE HAD DULY DISCHARGED HI S ONUS REGARDING CASH DEPOSITS. HE FURTHER CONTENDED THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL RECORD SUGGESTING THAT THE ASSESS EE HAD EARNED INCOME FROM ANY OTHER UNDISCLOSED SOURCES OF INCOME. 11. PER CONTRA, LEARNED DR RELIED ON THE ORDER OF AUTHOR ITIES BELOW. HE TOOK ME THROUGH THE ASSESSMENT ORDER. 12. I HAVE HEARD THE PARTIES. I FIND THAT ASSESSING OFFICER MADE ADDITION BY OBSERVING AS UNDER:- 4. ALL THE REPLIES TILED BY THE ASSESSEE TIME TO TI ME HAVE BEEN PERUSED BUT NOT FOUND TENABLE FOR THE FOLLOWING REA SONS: (I) ON PERUSAL OF BANK ACCOUNT STATEMENT OF SYNDICA TE BANK OF THE ASSESSEE FOR THE PERIOD 01.04.2010 TO 31.03.2011. I T IS TRUE THAT THE ASSESSEE DEPOSITED CASH TO THE TUNE OF RS. DURING F . Y.2010-1 I IN HER BANK ACCOUNT. THE TABULATED BELOW: ITA NO.-6514/DEL/2019 6 S. NO. DATE AMOUNT IN RS. DEPOSITED IN CASH 1 08.04.2010 500 2 22.07.2010 49000 3 23.07.2010 49500 4 24.07.2010 49000 5 31.07.2010 49000 6 03.08.2010 45000 7 05.08.2010 12000 8 19.08.2010 49000 9 04.09.2010 30000 10 19.11.2011 5 00000 11 20.11.2011 200000 12 25.11.2011 100000 TOTAL 11,33,000 THE ASSESSEE IN SUPPORT OF HER CLAIM OF DEPOSITING CASH IN HER BANK ACCOUNT HAS STATED IN HER REPLY AS REFERRED AB OVE THAT SHE RECEIVED GILT OF RS. 1 1,00,000/- FROM HER FATHER- IN-LAW ON 21.07.2010. HOWEVER, ON PERUSAL OF THE BANK ACCOUNT STATEMENT OF THE ASSESSEE TOR THE PERIOD UNDER CONSIDERATION AS TABULATED ABOVE, IT IS MORE THAN CLEAR THAT THE ASSESSEE DEPO SITED CASH ON VARIOUS DATES IN A PIECE MEAL MANNER AND NOT ON A S INGLE DAY. (II) FURTHER, THE ASSESSEE ALSO ENCLOSED A COPY OF DONATION TELLER WRITTEN ON A PLAIN PAPER IN HINDI WHICH IS STATED T O BE ISSUED BY HER FATHER-IN-LAW WHEREIN IT IS STATED THAT HE IS G IVING RS.11,00,000/- TO HER DAUGHTER-IN-LAW I.E. THE ASSE SSEE, OUT OF HIS RETIREMENT FUND AND FROM HIS AGRICULTURAL INCOME ON 21.07.2010. HOWEVER, THE SAME WAS NOT A REGISTERED GIFT DEED. T HE ASSESSEE ALSO ENCLOSED DEATH CERTIFICATE OF SHRI AJIT SINGH AS PER WHICH HE EXPIRED ON 27.09.2012. HOWEVER, NO OTHER DOCUMENTAR Y EVIDENCE I.E. BANK ACCOUNT STATEMENT OF SHRI AJIT SINGH, COP Y OF ITR ETC WERE FURNISHED TO PROVE THE IDENTITY, GENUINENESS AND CR EDITWORTHINESS OF HER FATHER-IN-LAW. (III) THE ASSESSEE IN HER REPLY DATED 14.12.2018 AS REFERRED ABOVE HAS MENTIONED THAT HER FATHER-IN-LAW HAD SOLD HIS AGRICULTURE LAND ON 19.07.2010 AND RECEIVED RS.40.0 0,000/- IN CASH. THE ASSESSEE ALSO ENCLOSED A COPY OF AGREEMEN T EXECUTED ON 19.07.2010 ON A STAMP PAPER OF RS. 10. ON PERUSAL O F THE IMPUGNED AGREEMENT, IT IS NOTICED THAT THIS AGREEME NT WAS EXECUTED BETWEEN SH. VIJAY KUMAR, AJIT SINGH (FIRST PARTY) AND PREMPARKASH, CHANDRAPARKASH KRISHANKUMAR, LAISINGH ( SECOND PARTY). AS PER THIS AGREEMENT, THE FIRST PARTY-RECE IVED A SUM OF RS.40.00,000/- IN ADVANCE FROM THE SECOND PARTY FOR SALE OF 67 KANAL AND 03 MARLA LAND SITUATED AT MAUJA RAJUPUR. TEH. & DIST. PALWAL, HARYANA. IF IT IS TIME BEING ASSUMED THAT SH. AJIT SINGH ITA NO.-6514/DEL/2019 7 WOULD HAVE RECEIVED CASH IN THE FORM OF ADVANCE THE N IT WOULD HE ONLY RS.20,00,000/- SINCE 50% SHARE WAS OF SH. VIJA Y KUMAR WHICH IS APPARENT FROM THE IMPUGNED AGREEMENT. (IV) AS SUCH, THE STATEMENTS OF THE ASSESSEE ARE CO NTRADICTORY IN ITSELF. AS PER THE DONATION LETTER STATED TO HAVE R ECEIVED FROM HER FATHER-IN-LAW, IT IS MENTIONED THAT AN AMOUNT OF RS .11,00,000/- IS GIVEN OUT OF RETIREMENT BENEFITS AND FROM AGRICULTU RE INCOME. ON THE OTHER HAND, THE ASSESSEE VIDE HER REPLY DATED 1 4.12.2018 HAS STATED THAT HER FATHER- IN-LAW HAD SOLD HIS AGRICUL TURE LAND AND GIFTED HER AN AMOUNT OF RS. 11,00,000/- OUT OF SALE CONSIDERATION OF AGRICULTURE LAND. HENCE, THE ASSESSEE IS CHANGIN G HER STAND TO JUSTIFY THE DEPOSIT OF CASH IN HER BANK ACCOUNT WHI CH IS ONLY TO AVOID TAX ON HER UNACCOUNTED CASH. (V) IT IS ALSO PERTINENT TO MENTION HERE THAT AS PE R DATA RETRIEVED FROM ITD SYSTEM, LATE. SHRI AJIT SINGH HAD NOT FRIE D HIS RETURN OF INCOME FOR A.Y. 2011-12. FURTHER, NOTICE U/S 133(6 ) WAS ISSUED TO THE BRANCH MANAGER. SYNDICATE BANK. AIR FORCE STATI ON, VPO RAJOKARI, NEW DELHI WHEREBY BANK ACCOUNT STATEMENT OF SHRI AJIT SINGH (PAN- AFAPY2264H) WAS CALLED FOR. THE BANK PR OVIDED THE BANK ACCOUNT STATEMENT OF SHRI AJIT SINGH VIDE ITS LETTER DATED 30.08.2018 WHICH IS IN JOINT NAME OF MRS. LAL KAUR AND MR. AJIT SINGH. ON PERUSAL, OF THE BANK ACCOUNT STATEMENT OF SH. AJIT SINGH, IT IS NOTICED THAT THE HE DEPOSITED CASH IN HIS BAN K ACCOUNT AS PER DETAIL GIVEN BELOW; BANK NAME: SYNDICATE BANK, AFS RAJOKARI, DELHI ACCOUNT NO.90992030000186 CUSTOMER NAME: MRS. LAL KAUR AND MR. AJIT SINGH STATEMENT OF ACCOUNT FROM 01.04.2010 TO 31.03.2011 DATE AMOUNT DEPOSITED IN CASH DURING F.Y. 2010-11 DATE AMOUNT WITHDRAWN FROM 01.04.2010 TO 30.08.2020 22.07.2010 9,00,000 03.04.2010 8,000 23.07.2010 5,50,000 04.05.2010 1,000 07.08.2010 5,00,000 07.06.2010 7,000 09.08.2010 5,00,000 18.06.2010 13,000 TOTAL 24,50,000 02.06.2010 3,000 16.07.2010 2,500 TOTAL 34,500 ON PERUSAL OF THE ENTRIES OF CASH FLOW IN THE ACCOU NT OF SH. AJIT SINGH DURING F.FY. 2010-11, IT IS MORE THAN CLEAR THAT TH ERE WAS NO CASH IN THE HAND OF SH. AJIT SINGH TO GIFT RS.11,00,00/- TO HIS DAUGHTER-IN- ITA NO.-6514/DEL/2019 8 LAW. AS PER THE REPLIES OF THE ASSESSEE AS WELL AS COPY OF DONATION LETTER, HER FATHER-IN-LAW DONATED HER RS.11,00,000/ - ON 21.07.2010. HOWEVER, IF IT IS TIME BEING ASSUMED THAT SH. AJIT SINGH WOULD HAVE RECEIVED CASH IN THE FORM OF ADVANCE THEN IT WOULD BE ONLY RS.20,00,000/- WHICH HAD BEEN DEPOSITED BY HIM IN H IS BANK ACCOUNT WHICH IS APPARENT FROM HIS SAVING BANK ACCO UNT STATEMENT AS REFERRED ABOVE. 13. FROM THE ABOVE, IT IS ARDENT THAT THE ASSESSING OFFICE R DREW HIS CONCLUSION ON THE BASIS OF THE BANK STATEMENT OF THE ASS ESSEE AND HER FATHER-IN-LAW. IT IS CORRECT THAT THE ASSESSEE HAD DEPO SITED MONEY AT THE DIFFERENT DATES. THIS HAS CAUSED SUSPICION, HOWEVER, IF THE AS SESSEE HAD DEPOSITED IN ONE GO, THE ASSESSING OFFICER WOULD HAVE NOT DOUBTED. IT IS NOT THE CASE WHERE THE DONOR WAS NOT A MAN OF ANY ME ANS. THEREFORE, LOOKING TO TOTALITY OF FACTS THE ACTION OF THE ASSESSING OFFICE R CANNOT BE UPHELD. THEREFORE, IMPUGNED ADDITION IS HEREBY DELETED. 14. GROUND NO.4 IS ALLOWED. 15. GROUND NO.1 IS GENERAL IN NATURE NEEDS NO SEPARATE ADJUDICAT ION. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRTUAL HE ARING IN THE PRESENCE OF BOTH THE PARTIES ON 14 TH JUNE, 2021. SD/- (G.S. PANNU) (KUL BHARAT) VICE PRESIDENT JUDICIAL MEMBER F{X~{T F{X~{T F{X~{T F{X~{T COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) ITA NO.-6514/DEL/2019 9 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI