ITO, Ghaziabad V. Sh. Jai Bhagwan Agarwal, Ghaziabad

ITA 666/DEL/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5742 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO.:- 666/DEL/2013 ASSESSMENT YEAR: 2009-10 O R D E R PER AMIT SHUKLA, J.M. THE AFORESAID APPEAL HAS BEEN FILED AGAINST IMPUGNED ORDER DATED 22.11.2012, PASSED BY THE LD. CIT (APPEALS) FOR THE Q UANTUM OF ASSESSMENT PASSED U/S 143(3) FOR THE ASSTT. YEAR 2009-1 0. IN THE GROUNDS OF APPEAL REVENUE HAS RAISED FOLLOWING GROU NDS:- ITO, WARD-1(3) GHAZIABAD VS. JAI BHAGWAN AGARWAL SE-252, SHASTRI NAGAR, GHAZIABAD PAN AGBPA6122E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMIT JAIN, SR. DR RESPONDENT BY : SHRI SURESH KUMAR GUPTA, ADV. DATE OF HEARING 18/06/2018 DATE OF PRONOUNCEMENT 25/06/2018 2 1. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN LAW & ON FACTS BY DELETING THE ADDITION OF RS. 37,50,00 0/- WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE BEFORE THE AO. 2. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN ACCEPTING THE ADDITIONAL EVIDEN CES SUBMITTED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, W HICH IS IN CONTRAVENTION OF PROVISION OF THE RULE 46A OF THE I NCOME TAX ACT, 1962. THE CONDITION OF RULE 46A(1) OF THE LT. ACT, 1962 ARE NOT SATISFIED AS THE ASSESSEE HAS BEEN PROVIDED SUFFICI ENT OPPORTUNITY BY THE AO TO ADDUCE THE EVIDENCE AND THE ASSESSEE W AS NOT PREVENTED BY ANY SUFFICIENT CAUSE FOR PRODUCING THE EVIDENCE BEFORE THE AO. 2. THE ASSESSEE IS AN INDIVIDUAL WHO HAS FILE D HIS RETURN OF INCOME AT RS.4,00,256/- FROM BUSINESS. IN THE RETURN OF INCOM E ASSESSEE HAS DECLARED HE IS NOT LIABLE FOR MAINTENANCE OF BOOKS O F ACCOUNTS. THOUGH HE HAS NOT MENTION THE NATURE OF BUSINESS BUT THE INCOME FROM THE BUSINESS WERE SHOWN AT RS. 4,98,256/- AGAINST WHICH NO EXPENSES HAVE BEEN CLAIMED. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY THROUGH CASS ON THE BASIS OF INFORMATION THAT ASSESSEE HAS DEPOSITED CASH OF RS. 15,00,500/- IN THE SAVING BANK ACCOUNT A ND ACCORDINGLY ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE FOR CASH DEP OSIT IN THE BANK ACCOUNT ALONGWITH MONTH WISE CASH DEPOSIT DURING THE RE LEVANT FINANCIAL YEAR. HE WAS ALSO ASKED TO FURNISH COPY OF STATEMENT OF ALL BANK ACCOUNTS TO EXPLAIN ALL CREDIT ENTRIES. BEFORE TH E AO AS NOTED IN 3 THE ASSESSMENT ORDER THERE HAS BEEN HUGE NON COMPLIANC E OF THE ASSESSEE. HOWEVER, IT WAS ON THE RESPONSE TO ONE SHOW CAUSE NOTICE THE ASSESSEE HAD SUBMITTED AS UNDER:- 1. THE ASSESSEE WAS ENGAGED IN THE ELECTRIC REPAIR ING WORK. 2. ASSESSEE IS HAVING ITS ANCESTRAL PROPERTY AT VI LL. SHAHPUR, BHAMETA, GHAZIABAD. THERE WAS AN AGREEMENT OF SALE EXECUTED ON 17.7.2008 FOR RS. 60 LACS ON THAT DAY 10% OF THE AGGREMENTAL VALUE I.E. RS. 6,00,000/- WAS PAID IN CASH BY MR. M UKESH S/O SH. SURESH CHAND (PURCHASER). ON 10.9.2008 PURCHASER PA ID ADDITIONAL RS. 4,00,000/-. THE DATE FOR REGISTRY WA S FIXED AT A PERIOD OF 2 MONTH I.E. 17.9.2008. ON 16.9.2008 PURC HASER PAID RS. 10,00,000/-. REGISTRY COULD NOT BE COMPLETED DU E TO LEGAL ISSUES. ON 22.9.2008 RS, 20,00,000/- WAS RETURNED T O MR. MUKESH. THEREAFTER AO FURTHER ASKED CERTAIN QUERIES WHICH AGA IN WAS NOT COMPLIED WITH. AO AFTER DETAILED DISCUSSION AND ON THE BASIS OF WHATEVER MATERIAL ASSESSEE HAS FURNISHED HAD NOT ONLY ADDED THE CASH DEPOSIT OF RS. 15,00,500/- BUT ALSO HAD ADDED THE SUM OF RS. 37,50,000/- WHICH WAS DEPOSITED THROUGH CHEQUES IN HI S BANK ACCOUNT, BECAUSE ASSESSEE COULD NOT GIVE ANY PROPER EXPLANATION TO THE AO. 4 3. LD. CIT (A) HAS CONFIRMED THE CASH DEPOSIT O F RS, 15,00,500/- AFTER DETAILED DISCUSSION. HOWEVER WITH REGARD TO ADD ITION OF RS. 37,50,000/- THE DETAILS OF DEPOSITS IN THE ASSESSEES BANK ACCOUNT WITH STATE BANK OF PATIALA HAS BEEN NOTED AS UNDER :- (I)RS. 9,00,000/- DATED 16.9.200 8 (II)RS. 9,00,000/- DATED 16.10.20 08 (III)RS. 12,00,000/- DATED 8.11.2008 (IV) RS. 7,50,000/- DATED 10.1.2007 4. BEFORE LD. CIT(A) THE ASSESSEE SUBMITTED THAT HE HAS TAKEN LOAN OF RS. 9 LACS FROM HIS BROTHER SHRI TRILOK CHAND AGA RWAL WHILE OTHER ENTRY WERE LOAN DISBURSEMENT MADE BY THE BANK AND THER E WERE TRANSFER ENTRIES FROM ASSESSEES OWN BANK LOAN ACCOUN T TO HIS SAVING ACCOUNT. CONFIRMATION OF THE BROTHER SHRI TRILOK CHAND AGARWAL WAS FURNISHED ALONGWITH THE DETAILS OF LOAN ACCOUNT OF THE ASSESSEE. ALL THESE EVIDENCES FILED BY THE ASSESSEE BEFORE THE LD. C IT (A) WERE SENT TO THE AO TO SUBMIT HIS REMAND REPORT. IN RESPONSE AO H AS NOT FOUND ANY MATERIAL DISCREPANCY IN SUCH EVIDENCES AND HAS M ERELY SAID THAT THESE BANK STATEMENTS DO NOT OFFER ANY EXPLANATION. LD. CIT (A) HAS DELETED THE SAID ADDITION AFTER OBSERVING AND HOLDING AS UNDER:- 5.2.3 I HOLD THAT ALTHOUGH DETAILS WERE NOT FURNI SHED BEFORE AO BECAUSE OF LACK OF ADEQUATE OPPORTUNITY; BUT NOW TH E BANK STATEMENTS AND CONFIRMATIONS ETC. HAVE BEEN FILED W HICH ARE 5 RELEVANT AND ADMISSIBLE. THESE ARE BANK TRANSACTION S, SO CANNOT BE BACK DATED OR FABRICATED. THESE EXPLANATIONS AND EVIDENCES SATISFACTORILY EXPLAIN THE SOURCE OF ALL THE FOUR C ASH DEPOSITS AGGREGATING TO RS. 37,50,000/-. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND O N PERUSAL OF THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS, WE FIN D THAT SO FAR AS THE ADDITION OF RS. 15,00,500/- ON ACCOUNT OF CASH DEP OSITS, THE SAME HAS BEEN CONFIRMED BY THE LD. CIT(A). HOWEVER WITH RE GARD TO THE DEPOSIT OF RS. 37,50,000/-, IT WAS SUBMITTED THAT SUM OF RS. 28,50,000/- WAS ON ACCOUNT OF LOANS TAKEN FROM THE BA NK WHICH HAS BEEN TRANSFERRED FROM HIS LOAN ACCOUNT TO THE SAVING B ANK ACCOUNT OF THE ASSESSEE FOR WHICH RELEVANT ENTRIES IN THE BANK STATE MENT HAS BEEN VERIFIED AND APPRECIATED BY THE LD. CIT(A) AND NO DEFECT DISCREPANCY HAS BEEN FIND OUT BY THE AO WHEN SAME WAS CONFRONTED TO THE AO. ACCORDINGLY, SO FAR AS THE SOURCE OF DEPOSI TS OF SUMS AGGREGATING TO RS. 28,50,000/-, THE SAME HAS BEEN FUL LY EXPLAINED. IN SO FAR AS THE SUM OF RS. 9,00,000/- WHICH HAS BEEN S TATED BY THE ASSESSEE THAT THE SAME WAS A LOAN RECEIVED FROM ASSESS EES BROTHER AND THERE WERE TRANSFER ENTRIES FROM HIS BROTHERS BA NK ACCOUNT TO THE ASSESSEES ACCOUNT FOR WHICH CONFIRMATION AND BANK S TATEMENT OF HIS BROTHER WAS ALSO FILED BEFORE THE AUTHORITIES BELOW. A COPY OF THE BANK STATEMENT WHICH HAS BEEN PLACED IN THE PAPER BOOK REFLE CTS THAT AMOUNT HAS COME BY WAY OF TRANSACTION FROM THE ACCOUNT OF SHRI 6 TRILOK CHAND AGARWAL, WHO HAS ALSO GIVEN HIS CONFIR MATION THAT HE HAS GIVEN THE LOAN FROM HIS BANK ACCOUNT TO HIS YOUNG ER BROTHER. IN WAKE OF THESE EVIDENCES, WE DO NOT FIND ANY INFIRMIT Y IN THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS. 37,50,000/- . ACCORDINGLY GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE, 2018. SD/- SD/- (G.D. AGRAWAL) (AMIT SHUKLA) PRESIDENT JUDICIAL MEMBER DATED: 25/06/2018 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI