Shri Rajiv Jain, Delhi V. ITO, New Delhi

ITA 6649/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0478 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: GAUTAM JAIN SH LALIT MOHAN
• Keywords: Question of law

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC B ENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.6649/DEL/2016 [A.Y 2010-11] SH. RAJIV JAIN VS. ITO LSC NO.105-107, VARDHMAN CITY WARD 20 (1) CENTRE, NEAR SHAKTI NAGAR NEW DELHI SUBWAY, DELHI-110007 [APPELLANT] [RESPONDENT] DATE OF HEARING : 12.09.2019 DATE OF PRONOUNCEMENT : 13. 09.2019 APPELLANT BY : SH. GAUTAM JAIN, ADVOC ATE SH. LALIT MOHAN, CA RESPONDENT BY : SH. S. L. ANURAGI, SR . DR ORDER PER N. K. BILLAIYA , AM : THIS APPEAL BY THE ASSESSEE HAS COME UP FOR HEARIN G PURSUANT TO THE ORDER OF THE HONBLE HIGH COURT IN TAX APPEAL NO.1115/2017 DATED 13.11.2018 THE RELEVANT FINDINGS OF THE HONBLE HIGH COURT READ AS UNDER :- 2 14. THE PRIMARY REASON TO REJECT EXPLANATION OF TH E APPELLANT- ASSESSEE THAT THE CASH DEPOSIT OF RS.4,92,900/- WAS FROM THE WITHDRAWALS OF RS.5,10,550/- IN CASH MADE BETWEEN 1 2 TH JUNE, 2009 AND 16 TH OCTOBER 2009 - IN THE FIRST APPELLATE ORDER WAS FA ILURE OF THE APPELLANT-ASSESSEE TO ELUCIDATE AND EXPLAIN THE REASON WHY THE SAID CASH WITHDRAWALS WERE MADE. REFERRING TO T HE SAID REASONING, COUNSEL FOR THE APPELLANT-ASSESSEE HAS S UBMITTED THAT THE ASSESSING OFFICER HAD NOT RAISED ANY SUCH SPECI FIC QUERY. THIS WAS NOT THE GROUND AND REASON GIVEN IN THE ASSESSME NT ORDER. ON THE OTHER HAND, THE APPELLANT- ASSESSEE HAD FURNISH ED EVIDENCE REGARDING CASH WITHDRAWALS OF RS.5,10,550/-, WHICH WAS UN- DISPUTED. THE COMMISSIONER OF INCOME TAX (APPEALS) HAD PROCEEDED TO GIVE A DIFFERENT AND NEW REASONING, WHICH WAS NO T CONFRONTED FOR EXPLANATION BEFORE THE FIRST APPELLATE ORDER WAS PA SSED. THE APPELLANT- ASSESSEE WAS TAKEN BY SURPRISE. REASONIN G IN THE FORM OF ADDITIONAL GROUND, IT IS SUBMITTED, SHOULD NOT HAVE BEEN MADE THE BASIS WITHOUT ASKING AND RAISING A SPECIFIC QUERY. IT IS ALSO HIGHLIGHTED, WITH SOME MERIT, ADDITIONS MADE INCLUD E TWO SMALL DEPOSITS OF RS.3,250/- AND RS. 14,400/- MADE ON 17 TH AUGUST, 2009 AND 27 TH OCTOBER, 2009. IN THE ALTERNATIVE, IT WAS SUBMITTE D THAT ADDITION SHOULD BE PARTIAL. 15. KEEPING IN VIEW THE AFORESAID POSITION, WE FIND TH AT THE TRIBUNAL IN THE IMPUGNED ORDER HAS FAILED AND NOT TAKEN NOTE OF THE AFORESAID CONTENTIONS RAISED IN RESPECT OF THE DEPOSIT OF RS. 4,92,900/- THE SAID ISSUE HAS NOT. BEEN EXAMINED IN THE LIGHT OF T HE PLEAS AND ASPECTS THAT ARISE FOR CONSIDERATION. ACCORDINGLY, WE FEEL THAT THE MATTER SHOULD BE RE-EXAMINED BY THE TRIBUNAL LIBERT Y IS ALSO GIVEN TO THE APPELLANT-ASSESSEE TO FILE AN APPLICATION FOR A DDITIONAL EVIDENCE TO JUSTIFY AND EXPLAIN THE REASON FOR SUBSTANTIAL C ASH WITHDRAWALS MADE BETWEEN 12 TH JUNE, 2009 TO 16 TH OCTOBER, 2009. WE CLARIFY THAT WE HAVE ONLY REMANDED, THE MATTER FOR FRESH CONSIDE RATION AND HAVE NOT FINALLY DETERMINED OR DECIDED THE ASPECT AND IS SUE ON MERITS. 16. THE QUESTION OF LAW IS ACCORDINGLY ANSWERED, PA RTLY IN FAVOUR OF THE APPELLANT-ASSESSEE AND AGAINST THE REVENUE W ITH AN ORDER OF 3 REMAND TO THE TRIBUNAL. WE CLARIFY THAT THE REMAND IS ONLY RESTRICTED TO THE EXTENT OF THE DEPOSIT OF RS.4,92,900/-. WE H AVE NOT REMANDED THE ISSUE REGARDING SALE OF WEARING APPAREL AND SIL VER UTENSILS. 2. PURSUANT TO THE AFORESAID DIRECTIONS OF THE HON BLE HIGH COURT, I HAVE CONSIDERED THE RELEVANT DOCUMENTARY E VIDENCES BROUGHT BEFORE ME. A PERUSAL OF THE BANK STATEMENTS SHOW THAT THE ASSESSEE HAS MADE THE FOLLOWING WITHDRAWALS FRO M HIS BANK ACCOUNT :- 1. 12.06.2009 - 84,450/- 2. 26.08.2009 - 1,30,000/- 3. 26.08.2009 - 24,500/- 4. 15.09.2009 - 12,000/- 5. 19.09.2009 - 86,000/- 6. 22.09.2009 - 1,70,000/- 7. 16.10.2009 - 3,600/- 5,10,550/- I FIND ON 10.11.2009 THE ASSESSEE HAS DEPOSITED RS .10 LACS. 3. SINCE THE WITHDRAWALS OF RS.5,10,550/- ARE CLEAR LY VERIFIED FROM THE BANK STATEMENTS IT CAN BE SAFELY CONCLUDED THAT THE DEPOSIT OF RS.492900/- WHICH IS UNDER DISPUTE HAS C OME OUT FROM THE WITHDRAWALS AS MENTIONED HERE IN ABOVE. 4. SINCE I HAVE VERIFIED THE WITHDRAWALS FROM THE B ANK STATEMENTS I DO NOT FIND ANY MERIT IN SUSTAINING TH E ADDITION OF RS.492900/-. THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN AXIS BANK IS DIRECTED TO BE REDUCED BY T HIS AMOUNT. 4 5. RESPECTFULLY FOLLOWING THE DIRECTIONS OF THE HON BLE HIGH COURT AND MAKING VERIFICATION THERETO THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.09. 2019. SD/- [N.K. BILLAIYA] ACCOUNTANT M EMBER DATED: 13 SEPTEMBER, 2019 *NEHA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CITI 4. CIT(A) 5. DR ASST. REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 12.09.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.09.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 13.09.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 13.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 13.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 13.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 13.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.0 9.2019 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRA R FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER