Smt. Ruchika Aggarwal, Hisar V. ITO, Hisar

ITA 680/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3850 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 31-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: NIKHIL MEHTA
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F BENCH, NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO: 680/DEL/2010 ASSESSMENT YEAR : 2006-07 SMT. RUCHIKA AGGARWAL VS. ITO, WARD 3, HISSAR R/O RAMESH BHAVAN OLD MANDI ROAD HISSAR ( PAN: AFKPA 1208 B ) (APPELLANT) (RESPOND ENT) APPELLANT BY : SH. NIKHIL MEHTA, C.A. RESPONDENT BY : MS.Y. KAKKAR, SR. D.R. O R D E R PER K.D. RANJAN , ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE FOR A.Y. 2006-07 ARISE S OUT OF ORDER DATED 11.1.2010 OF LD.CIT(A), ROHTAK. 2. THE GROUNDS OF APPEAL READ AS UNDER. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING T HE ADDITION OF RS. 1,00,000/- RECEIVED AS LOAN FROM SHRI NEERAJ KUMAR AND AN ADDITION OF RS. 6447/- ON ACCOUNT OF INTERES T THEREON. ITA 680/DEL/2010 PA GE 2 OF 6 A.Y. 2006-07 SMT. RUCHIKA AGGARWAL THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR MODIFY ANY OF THE GROUNDS OF THE APPEAL. 3. THE ONLY ISSUE FOR CONSIDERATION RELATES TO CONF IRMING THE ADDITION OF RS. 1,00,000/- RECEIVED AS LOAN FROM SHRI NIRAJ KUMAR AND RS. 6,447/- ON ACCOUNT OF INTEREST THEREON. 4. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSEE RAISED A FRESH LOAN OF RS. 1 LAKH FROM SHRI NEERAJ KUMAR ON 16.9.2005. THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF TH E LOAN WITH DOCUMENTARY EVIDENCE. IN RESPONSE TO THE QUERY RAI SED BY THE ASSESSING OFFICER THE ASSESSEE FILED A COPY OF AFFIDAVIT WH EREIN IT HAS BEEN DEPOSED THAT THE LOAN WAS GIVEN TO ASSESSEE BY DEPOSITING T HE SUM BY WAY OF CHEQUE INTO THE BANK ACCOUNT I.E. RS. 50,000/- WERE RECEIVED FROM SHRI SUNDER LAL BANSAL TO WHOM LOAN WAS GIVEN EARLIER AND RS. 49,900/- WAS OUT OF PAST SAVINGS. THE ASSESSEE, HOWEVER C OULD NOT SUBMIT ANY EVIDENCE IN SUPPORT OF HIS CONTENTION THAT RS. 50,0 00/- WAS RECEIVED FROM MR.SUNDER LAL BANSAL AND HE WAS HAVING CASH IN HAND AT RS. 49,900/-. SINCE THE ASSESSEE WAS NOT ABLE TO DISCH ARGE INITIAL ONUS THE AO ADDED THE AMOUNT OF RS. 1 LAKH U/S 68 OF THE INC OME TAX ACT, 1961. 5. ON APPEAL BEFORE THE LD.CIT(A) THE ASSESSEE REIT ERATED THE SAME ARGUMENTS. THE LD.CIT(A) EXAMINED THE BANK ACCOUNT OF SHRI NEERAJ KUMAR WHEREIN RS. 50,000/- WAS DEPOSITED BY WAY OF CHEQUE ON 16.9.2005 AND RS. 49,900/- IN CASH. THE LD.CIT(A) FURTHER NOTED THAT ITA 680/DEL/2010 PA GE 3 OF 6 A.Y. 2006-07 SMT. RUCHIKA AGGARWAL BEFORE THE CASH WAS DEPOSITED THERE WAS ONLY CREDIT BALANCE OF RS. 1106/- IN THE BANK ACCOUNT. SINCE SHRI NEERAJ KUMA R WAS NOT HAVING SUFFICIENT CREDIT BALANCE IN THE BANK ACCOUNT BEFOR E GIVING THE LOAN HIS CREDIT WORTHINESS WAS NOT PROVED. THE LD.CIT(A) AC CORDINGLY UPHELD THE DISALLOWANCE. 6. BEFORE US THE LD.AR OF THE ASSESSEE SUBMITTED TH AT SHRI NEERAJ KUMAR WAS AN EXISTING INCOME TAX ASSESSEE. HE HA S FILED CONFIRMATION. SHRI NEERAJ KUMAR ALSO FILED AFFIDAVIT AND COPY OF INCOME TAX RETURN WAS ALSO FILED. THE ASSESSEE ALSO SUBMITTED THAT COPY OF BANK ACCOUNT OF SHRI NEERAJ KUMAR IN SUPPORT OF HER CONTENTION THAT CHE QUE NO. 443534 DT. 16.9.05 WAS DEBITED TO HER ACCOUNT. THE A.O. WAS WRONG IN DISCARDING THE CONFIRMATION FILED BY THE ASSESSEE FROM THE CRE DITOR. IT HAS BEEN FURTHER SUBMITTED THAT THE A.O. HAD NOT CONDUCTED ANY FURTHER ENQUIRY, THEREFORE, NO ADDITION COULD BE MADE. ON THE OTHER HAND LD.SR.D.R. SUBMITTED THAT THE CREDIT WORTHINESS OF THE ASSESSE E HAS NOT BEEN PROVED AND, THEREFORE, THE AMOUNT OF RS. 1 LAKH CANNOT BE TAKEN AS GENUINE. SHE PLACED RELIANCE ON THE DECISION OF HONBLE SUPR EME COURT IN THE CASE OF SUMATHI DAYAL VS CIT, 214 ITR 801 AND CIT VS. D URGA PRASAD MORE, 82 ITR 540. SHE ALSO SUBMITTED THAT PAYMENT THROUG H CHEQUE WOULD NOT MAKE THE TRANSACTION GENUINE. SHE PLACED RELIANCE ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. PRECISION FINANCE PVT.LTD. 208 ITR 465. ITA 680/DEL/2010 PA GE 4 OF 6 A.Y. 2006-07 SMT. RUCHIKA AGGARWAL 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ASSESSMENT ORDER IT IS EVIDENT THAT NO DOCUMENTARY EVIDENCE WAS FILED BY THE ASSESSEE TO C ORROBORATE THE CONTENTION THAT AN AMOUNT OF RS. 50,000/- WAS RECEI VED FROM SHRI SUNDER LAL BANSAL AND RS. 49,900/- WAS DEPOSITED IN CASH OUT OF HIS SAVINGS. THE SCRUTINY OF HIS BANK ACCOUNT SHOWS TH AT AS ON 3 RD MAY, 2005 THERE WAS CASH BALANCE OF RS. 1,102/-. AN AMO UNT OF RS. 1,62,285/- WAS CREDITED ON 3 RD MAY, 2005 AND ON 4 TH MAY, 2005 THE AMOUNT OF RS. 1,62,300/- WAS WITHDRAWN LEAVING THE BALANCE OF RS. 1,087/-. AGAIN ON 20 TH MAY, 2005 CASH OF RS. 1,65,000/- WAS DEPOSITED AND ON 21 ST MAY, 2006 CHEQUE OF RS. 1,65,000/- WAS ISSUED TO P .S. & CO. BEFORE THE LOAN OF RS. 1 LAKH WAS ADVANCED TO RUCHI KA THE ASSESSEE ON 16.9.2005 THE OPENING BALANCE IN THE BANK ACCOUNT O F SHRI NEERAJ KUMAR WAS RS. 1,106/-. CASH OF RS. 49,900/- WAS DE POSITED AND ANOTHER AMOUNT OF RS. 50,000/- WAS DEPOSITED THROUG H BANK AND AS ON THE SAME DATE CHEQUE OF RS. 1 LAKH WAS ISSUED TO RU CHIKA LEAVING THE BALANCE OF RS. 1,006/-. FROM THE SCRUTINY OF BANK ACCOUNT IT IS CLEAR THAT THE ASSESSEE WAS NOT HAVING SUFFICIENT AMOUN T IN HIS BANK TO ISSUE CHEQUE OF RS. 1,00,000/-. THE CONTENTION OF ASSESSEE THAT PAYMENT OF RS. 1 LAKH WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE IS OF NO HELP. HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. PRECISION FINANCE P.LTD. HAS HELD THAT MERE FURNISHING OF THE PARTICULARS IS NOT ENOUGH. PAYMENT BY ACCOUNT PAYEE CHEQUE IS ALSO NO T SACROSANCT, NOR IT ITA 680/DEL/2010 PA GE 5 OF 6 A.Y. 2006-07 SMT. RUCHIKA AGGARWAL CAN MAKE A NON GENUINE TRANSACTION AS GENUINE. TO ATTRACT THE PROVISIONS OF S.68 THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTION IS TO BE PROVED. THE ASSESSEE HAS FIL ED COPY OF RETURN OF INCOME, COPY OF STATEMENT OF AFFAIRS/BALANCE SHEET OF CREDITOR SRI NEERAJ KUMAR BEFORE THE AO/CIT(A). NONE OF THE AUTHORITY HAD GIVEN ANY COMMENTS ABOUT THESE DOCUMENTS. IT IS ALSO NOT KNO WN AS TO WHETHER SHRI NEERAJ KUMAR WAS ENGAGED IN ENTRY PROVIDING AC TIVITIES. WE THEREFORE, FEEL IT PROPER TO SET ASIDE THE MATTER T O THE FILE OF ASSESSING OFFICER WITH THE DIRECTIONS TO EXAMINE THE AUTHENTI CITY OF THE DOCUMENTS FILED BY SHRI NEERAJ KUMAR. THE ASSESSING OFFICER WILL DECIDE THE ISSUE AFRESH AFTER AFFORDING THE ASSESSEE A REASONABLE OP PORTUNITY OF BEING HEARD. WE ORDER ACCORDINGLY. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2011. SD/- SD/- (RAJPAL YADAV ) (K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31ST MAY, 2011 *MANGA ITA 680/DEL/2010 PA GE 6 OF 6 A.Y. 2006-07 SMT. RUCHIKA AGGARWAL COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; RESPONDENT; CIT; CIT(A); DR; GUARD F ILE BY ORDER DY. REG ISTRAR // C O P Y //