ITO, Sonepat V. Sh. Alok Dalal, Bahadurgarh

ITA 6554/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7251 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68; 144

Judgement Text

ITA NO. 6554/DEL/2013 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI H S SIDHU JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.:- 6554/DEL /2013 ASSESSMENT YEAR: 2010-11 ITO WARD-4 SONEPAT. VS. ALOK DALAL , H. NO. 281, WARD NO. 21, SAVITRI NIWAS, TEACHERS COLONY, NEAR CENTRAL BANK OF INDIA BAHADURGARH. PAN ALBPD8578Q (APPELLANT) (RESPONDENT) O R D E R PER O.P. KANT, A. M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER DATED 09/10/2013 LD. COMMISSIONER OF INCOME-TAX (APPEALS) , ROHTAK FOR ASSESSMENT YEAR 2010-11 RAISING FOLLOWING GROUNDS: DEPARTMENT BY : SHRI T. VASANTHAN, SR. DR ASSESSEE BY: SHRI NAVEEN GUPTA, ADV. DATE OF HEARING 2 6/05 /2016 DATE OF PRONOUNCEMENT 27 /06 /2016 ITA NO. 6554/DEL/2013 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW & IN FACTS IN DELETING THE ADDITION OF RS. 68,75,400/-, MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AND WITHOUT TAKING INTO CONSIDERATION THE FACT THAT NO SUBSTANTIAL EVIDENCE WAS FURNISHED BY THE ASSESS EE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS DURING REMAND PROCEEDINGS. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, A MEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR AN Y OF THE GROUNDS OF APPEAL ON OR BEFORE OR AT THE HEARING, I F NECESSARY SO ARISES. 2. THE FACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE, A SUPPLIER OF BUILDING MATERIAL, FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 12/09/2011 DECLARING INCOME OF RS. 1,18,960/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SEC TION 143(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSU ED AND SERVED WITHIN THE STIPULATED PERIOD. A NOTICE UNDER SECTION 142(1 ) OF THE ACT WAS ISSUED ASKING THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN BANK ACCOUNT WITH DOCUMENTARY EVIDENCE, HOWEVER NO COMPLIANCE WAS MADE BY THE ASSESSEE. THE ASSESSEE WAS GIVEN FURTHE R OPPORTUNITIES, HOWEVER NO COMPLIANCE WAS MADE EXCEPT SEEKING ADJOU RNMENT ON ONE OCCASION BY THE COUNSEL OF THE ASSESSEE. THEREFORE THE ASSESSING OFFICER AFTER ISSUING A FINAL SHOW CAUSE NOTICE, COMPLETED ASSESSMENT UNDER SECTION 144 OF THE ACT MAKING ADDITION FOR CASH DEP OSITS OF ITA NO. 6554/DEL/2013 3 RS. 68,75,400/- IN THE BANK ACCOUNT OF THE ASSESSEE WITH AXIS BANK AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD. COMMISSIONER O F INCOME-TAX (APPEALS). BEFORE THE LD. COMMISSIONER OF INCOME-TA X (APPEALS), THE ASSESSEE PRODUCED BOOKS OF ACCOUNTS DULY AUDITED BY THE CHARTERED ACCOUNTANT AND SUBMITTED THAT CASH DEPOSITS WERE TH E SALE PROCEEDS OF THE ASSESSEE. THE LD. COMMISSIONER OF INCOME TAX (A PPEALS), REMANDED THE MATTER TO THE ASSESSING OFFICER FOR HIS COMMENT S AND AFTER CONSIDERING THE REMAND REPORT, SHE ALLOWED THE APPE AL OF THE ASSESSEE. AGGRIEVED, THE ASSESSING OFFICER IS IN APPEAL BEFOR E THE TRIBUNAL RAISING THE GROUNDS REPRODUCED ABOVE. 3. IN GROUND NO. 1, THE ASSESSING OFFICER HAS C HALLENGED, DELETING OF THE ADDITION OF RS. 68,75,400/- BY THE LD. COMMISSI ONER OF INCOME-TAX (APPEALS). 4. BEFORE US, THE LD. SENIOR DEPARTMENTAL REPR ESENTATIVE ADDRESSING THE GROUND SUBMITTED THAT NO SUBSTANTIAL EVIDENCE W ERE FURNISHED BY THE ASSESSEE EITHER DURING THE ASSESSMENT PROCEEDIN GS OR THE REMAND PROCEEDINGS TO JUSTIFY THAT CASH DEPOSITS OF RS. 68, 75,400/-AND THUS THE ADDITION NEED TO BE SUSTAINED. ITA NO. 6554/DEL/2013 4 5. ON THE OTHER HAND, LD. AUTHORISED REPRESEN TATIVE OF THE ASSESSEE SUBMITTED THAT ALL THE BOOKS OF ACCOUNTS OF THE ASS ESSEE ALONG WITH THE BILLS AND VOUCHERS WERE PRODUCED BEFORE THE LD. ASS ESSING OFFICER IN REMAND PROCEEDINGS AND THE CASH DEPOSITS IN THE BAN K ACCOUNTS WERE VERIFIED WITH THE CASH BOOK OF THE ASSESSEE. THE CA SH DEPOSITS IN BANK ACCOUNT WERE STATED TO BE THE SALE PROCEEDS OF THE ASSESSEE. HE ALSO REFERRED TO THE COPY OF THE REMAND REPORT AVAILABLE AT PAGE 26 TO 27 OF THE ASSESSEES PAPER. HE ALSO SUBMITTED THAT ONCE T HE ASSESSING OFFICER HAS ADMITTED FACT THAT TRANSACTION MADE IN THE BANK ACCOUNTS WERE TALLIED WITH THE DEBIT/CREDIT ENTRIES IN THE CASH B OOK, IT WAS NOT JUSTIFIED TO AGITATE THE ISSUE AGAIN BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUS ED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSING OFFICER IN REMAN D REPORT, COPY OF WHICH IS AVAILABLE AT PAGE NO. 26 AND 27 OF THE ASS ESSEES PAPER BOOK HAS CLEARLY ADMITTED THE FACT THAT TRANSACTIONS MA DE IN THE BANK WERE CHECKED WITH THE CASH BOOK AND SAME WERE FOUND TALL IED WITH THE DEBIT/CREDIT ENTRIES IN THE CASH BOOK. THE RELEVANT PART OF THE REMAND REPORT IS REPRODUCED AS UNDER: 2. IN THIS REGARD, IT IS SUBMITTED THAT THE ASSESS EE WAS GIVEN OPPORTUNITY VIDE THIS OFFICE LETTER 1509 DATED 02.0 7.2013 TO PRODUCE THE COMPLETE BOOKS OF ACCOUNTS INCLUDING CA SH BOOK, ITA NO. 6554/DEL/2013 5 LEDGER. PURCHASE BILLS AND SALES BILLS ETC. AND TO EXPLAIN THE SOURCE OF CASH DEPOSITS AMOUNTING TO RS.68,75,400/- IN BAN K FROM 01.04.2009 TO 31.03.2010. ON 23.07.2013, SH. NAVEEN GUPTA, ADVOCATE AND SH. MANISH ACCOUNTANT APPEARED ON BEHA LF OF THE ASSESSEE. THE ASSESSEE IS A SUPPLIER OF BUILDING MA TERIALS FROM WHICH HE HAS SHOWN HIS INCOME. THE BOOKS OF ACCOUNT S IN THE SHAPE OF CASH BOOK. LEDGER ACCOUNT PURCHASE BILLS A ND SALES BILLS ETC. HAVE BEEN PRODUCED WHICH WERE TEST CHECKED WIT H REFERENCE TO THE BOOKS OF ACCOUNTS PRODUCED. THE PURCHASE & S ALES VOUCHERS HAVE BEEN FOUND ENTERED IN THE BOOKS OF ASSESSEE'S ACCOUNTS. THE TRANSACTIONS MADE IN THE BANK HAVE BEEN CHECKED WIT H CASH BOOK AND IT REVEALED THAT DEBIT/CREDIT ENTRIES ARE TALLI ED WITH CASH BOOK. 7. THE COMMENT OF THE ASSESSING OFFICER IN RE MAND REPORT THAT DESPITE THE AVAILABILITY OF THE CASH IN HAND, THE A SSESSEE HAD WITHDRAWN MONEY FROM THE BANK, THE LD. COMMISSIONER OF INCOME -TAX (APPEALS) HAS HELD THAT THE ASSESSEE WAS WELL WITHIN HIS RIGH TS TO WITHDRAW CASH FROM THE BANK , WHENEVER HE DESIRED AND THERE IS NO LEGAL PROHIBITION IN THIS REGARD. IN THE REMAND REPORT , THE ASSESSING OFFICER HAS ALSO COMMENTED THAT THAT IN THE RETURN OF INCOME FILED, THE ASSESSEE STATED THAT IT WAS NOT LIABLE FOR AUDIT AND THE RELEVANT C OLUMNS ABOUT THE DETAIL OF THE AUDITOR WERE LEFT BLANK, WHEREAS THE ASSESSE E HAD SUBMITTED A COPY OF AUDIT REPORT ALONGWITH ADDITIONAL EVIDENCES . A COPY OF THE AUDIT REPORT IS AVAILABLE ON PAGE 3 TO 9 OF THE ASSESSEE S PAPER BOOK. WE FIND THAT THIS REPORT IS SIGNED BY THE CHARTERED ACCOUNT ANT ON 28/09/2010. WE FIND THAT THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY MATERIAL OR EVIDENCES IN SUPPORT OF THE DOUBT REGAR DING AUTHENTICITY OF ITA NO. 6554/DEL/2013 6 THE AUDIT REPORT, THUS, IN SUCH CIRCUMSTANCES, THE AUDIT REPORT OF THE CHARTERED ACCOUNTANT CANNOT BE IGNORED. THE LD. ASS ESSING OFFICER HAS VERIFIED THE SOURCE OF THE CASH DEPOSIT IN BANK ACC OUNT WITH THE ENTRIES IN CASH BOOK AND HE HAS ALSO VERIFIED BILLS AND VOU CHERS PRODUCED BY THE ASSESSEE . 8. IN VIEW OF THE ABOVE FACTS, WE DO NOT FIND AN Y INFIRMITY IN THE FINDING OF THE LD. COMMISSIONER OF INCOME-TAX (APPE ALS), ACCORDINGLY WE UPHOLD THE FINDING OF THE LD. COMMISSIONER OF INCOM E-TAX (APPEALS) ON THE ISSUE IN DISPUTE AND THE GROUND OF THE APPEAL I S DISMISSED. 9. THE GROUND NO. 2 BEING GENERAL IN NATURE, IS NOT REQUIRED TO BE ADJUDICATED UPON BY US. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/06/2016. SD/- SD/- (H.S. SIDHU) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27/06/2016 VEENA VEENA VEENA VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT ITA NO. 6554/DEL/2013 7 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI