Sh. Rajiv Bansal through L/H Priti Bansal, Haryana V. ITO, Gurgaon

ITA 6904/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3167 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 22-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Corroborative evidences

Judgement Text

1 ITA NO. 6904/DEL/2014 IN THE INCOME TAX APPELLA TE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI G. D. AGRAWAL, PRESIDE NT AND SHRI CHANDRA MOHAN GARG, JU DICIAL MEMBER I.T.A .NO. 6904/DEL/2 014 (A.Y 2009-10) RAJIV BANSAL THROUGH L/H PRITI BANSAL NEW ANAJ MANDI, TAURU MEWAT HARYANA AIIPB3912E (APPELLANT) VS ITO WARD-1(1) GURGAON (RESPONDENT) APPELLANT BY SH. GAUTAM JAIN, ADV RESPONDENT BY SH. ATIQ AHMAD, SR. DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN FILED BY THE LEGAL HEIR OF THE DECEASED ASSESSE AGAINST THE ORDER OF THE CIT(A)-2 FARIDABAD DATED 16 /10/2014 FOR ASSESSMENT YEAR 2009-10. 2. HOWEVER, THE ASSESSEE HAS RAISED AS MANY AS FIVE GROUNDS IN THIS APPEAL BUT EXCEPT GROUND NO. 2, OTHER GROUNDS ARE A RGUMENTATIVE AND SUPPORTED TO THE MAIN GROUND NO.2 WHICH READS AS F OLLOWS:- DATE OF HEARING 12.12.2017 DATE OF PRONOUNCEMENT 12.12.2017 2 ITA NO. 6904/DEL/2014 2. ON FACTS AND IN LAW, THE CIT(A) HAS GROSSLY ERR ED IN HOLDING THE ADDITION OF RS.84,90,000/- BY THE LD. A.O ON ACCOUN T OF CASH DEPOSITED IN THE BANK ACCOUNT IN AN ENVISAGED MANNER WITHOUT CONSIDERING FACTS OF THE CASE AND DOCUMENTS SUBMITTE D BY THE APPELLANT AND WITHOUT ANY COGENT EVIDENCE. 3. WE HAVE HEARD OF BOTH THE ARGUMENTS FROM BOTH SI DES AND CAREFULLY PERUSED THE MATERIAL PLACED ON RECORD OF THE TRIBUN AL, INTER ALIA, IMPUGNED ASSESSMENT AND FIRST APPELLATE ORDER ALONG WITH PAPER BOOK FILED BY THE ASSESSEE SPREAD OVER 56 PAGES. 4. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT T HE A.O PROCEEDED TO MAKE ADDITION ON ACCOUNT OF CASH DEPOSITED IN TH E BANK ACCOUNT WITHOUT CONSIDERING THE FACTS OF THE CASE AND DOCUM ENTS SUBMITTED BY THE APPELLANT BEFORE HIM WITHOUT ANY COGENT ADVERSE EVIDENCE AGAINST THE ASSESSEE. THE LD. COUNSEL VEHEMENTLY POINTED OUT T HAT THE LD. CIT(A) HAS ALSO ERRED IN DISMISSING THE SUBMISSIONS MADE A ND THE DOCUMENTS SUBMITTED BY THE APPELLANT AND PASSING THE ORDER WI THOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE LD. COUNSEL ALSO SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HA S MADE A MISTAKE IN 3 ITA NO. 6904/DEL/2014 CONFIRMING THE ORDER OF THE A.O WITHOUT ANY JUSTIFI CATION BY IGNORING THE REMAND REPORT DATED 23/7/2014 OF THE A.O. 5. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE STRONGLY SUPPORTED THE ACTION OF THE A.O AS WELL AS FIRST APPELLATE ORDER AND SUBMITTED THAT THE SUBMISSIONS OF THE ASSESSEE ARE NOT SUPPORTED BY BOOKS OF ACCOUNTS ANY RELEVANT BILLS/VOUCHERS. THE REFORE, THE A.O HAD NO ALTERNATE BUT TO MAKE ADDITION WHICH WAS CORRECT LY CONFIRMED BY THE LD.CIT(A). 6. PLACING REJOINDER OF THE ABOVE SUBMISSIONS THE L D. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ASSESSEE SHRI RAJ IV BANSAL HAS EXPIRED AND THE WIFE DECEASED ASSESSEE WAS NOT ABLE TO SUBM IT BOOKS OF ACCOUNTS OF THE ASSESSEE BUT FROM THE CASH FLOW CHART SUBMIT TED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW PLACED AT PAGES 30 TO 33 OF THE ASSESSEES PAPER BOOK CLEARLY SHOW THAT THE SOURCE OF IMPUGNED AMOUNT WAS PROPERLY EXPLAINED BY THE ASSESSEE AS THERE WAS COR RESPONDING DEPOSIT/WITHDRAWAL ENTRY IN THE BANK ACCOUNT WITH R ESPECT TO THE WITHDRAWAL/DEPOSIT ENTRY TO THE SAVING ACCOUNT OF T HE ASSESSEE AND CASH FLOW STATEMENT ALSO CONFIRM THE SAME FACTS. 4 ITA NO. 6904/DEL/2014 7. THE LD. AR SUBMITTED THAT MERELY BECAUSE DUE TO THE DEATH OF THE ASSESSEE HIS WIFE COULD NOT SUBMIT BOOKS OF ACCOUNT S AND OTHER RELEVANT DOCUMENTS THE ADDITION ON THE BASIS OF CASH DEPOSIT S CANNOT BE MADE AND CONFIRM. THE LD. COUNSEL OF THE ASSESSEE ALSO DREW OUR ATTENTION TOWARDS PARA 2 OF THE REMAND REPORT DATED 23/7/2014 (PAPER BOOK PAGE 40-41)AND SUBMITTED THAT MERELY BECAUSE WIFE OF THE DECEASED ASSESSEE COULD NOT EXPLAIN THE LOGIC OF MAKING CASH WITHDRAW ALS FROM ONE BANK AND MAKING CASH DEPOSITS TO THE ANOTHER CANNOT BE T AKEN AS ON BASIS FOR MAKING ADDITION, SPECIALLY WHEN THE WITHDRAWALS AND DEPOSITS ARE BEING CONFIRMED AND EXPLAINED WITH THE WITHDRAWALS MADE B Y THE ASSESSEE FROM ONE ACCOUNT AND THE SAME AMOUNT WAS DEPOSITED TO THE ANOTHER BANK ACCOUNT OF THE ASSESSEE. 8. ON CAREFUL CONSIDERATION OF OUR RIVAL SUBMISSION S FROM PARA 2 OF THE REMAND REPORT DATED 23/7/2014 WE OBSERVE THAT T HE A.O SUBMITTED THE FOLLOWING REMAND REPORT TO THE LD.CIT(A) READ A S UNDER:- PERUSAL OF CASH FLOW STATEMENT DATED 4/7/2014 SUBMI TTED BEFORE THE UNDERSIGNED FURTHER REVEALED THAT THERE WAS CORR ESPONDING DEPOSIT/WITHDRAWAL ENTRY INTO HIS CURRENT BANK ACCOUN T WITH RESPECT TO WITHDRAWAL/DEPOSIT ENTRY INTO HIS SAVING BANK ACCO UNT. THE CASH FLOW STATEMENT SUBMITTED NOW WITH BANK ACCOUNT STAT EMENT. 5 ITA NO. 6904/DEL/2014 HOWEVER, THE SUBMISSION OF THE ASSESSEE IS NOT SUPP ORTED BY BOOKS OF ACCOUNTS, ANY BILLS/VOUCHERS. IT IS NOT EXPLAIN ED THE LOGIC OF MAKING CASH WITHDRAWALS FROM ONE BANK AND MAKING CAS H DEPOSITS INTO ANOTHER. THEREFORE, THE SUBMISSIONS OF THE AS SESSEE REMAINING WITHOUT ANY SUPPORTING EVIDENCE. 9. IN VIEW OF OUR REMAND REPORT, WE OBSERVE THAT TH E A.O HAS NOT CONTROVERTING AND DISPUTED THE FACTUM OF WITHDRAWA L FROM ONE ACCOUNT AND DEPOSIT OF THE SAME AMOUNT TO ANOTHER BANK ACCO UNT OF THE ASSESSEE WHICH CLEARLY EXPLAINS THE SOURCE OF CASH DEPOSIT MADE BY THE ASSESSEE, WHICH WAS PICKED UP BY THE A.O FOR MAKING ADDITION. IT IS A PECULIAR FACT OF PRESENT CASE THAT THE ASSESSEE HAS EXPIRED AND H IS WIFE IS PRESSING DYING THE LITIGATION BEFORE THE TAXATION AUTHORITIE S ON BEHALF OF HER DECEASED HUSBAND. DESPITE THE FACT THAT THE AUTHOR ITIES BELOW COULD NOT DISPUTE THE EXPLANATION SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE WITHDREW AMOUNT FROM ONE BANK ACCOUNT AND THE SAME AMOUNT WAS DEPOSITED OF THE ANOTHER ACCOUNT. THE A.O ALLE GED THAT THE ASSESSEE COULD NOT SUBMIT BOOKS OF ACCOUNTS AND RELEVANT BIL LS/VOUCHERS. IT IS VERY STRANGE THAT IN A CASE OF DECEASED ASSESSEE TH E A.O HAS EXPECTING HER WIFE TO SUBMIT BOOKS OF ACCOUNT WHICH IS NOT PR ACTICALLY POSSIBLE. HOWEVER, BE THAT AS IT MAY WHEN BY SUBMITTING STATE MENT OF CASH FLOW 6 ITA NO. 6904/DEL/2014 AND COPIES OF BANK ACCOUNTS OF THE ASSESSEE. THE W IFE OF DECEASED ASSESSEE IS SUCCESSFULLY ESTABLISHING THE FACT THAT THE AMOUNT WAS WITHDRAWN BY FROM ONE ACCOUNT AND THE SAME ACCOUNT AS DEPOSITED TO ANOTHER ACCOUNT WITHIN A FEW DAYS THEN THE EXPECTAT ION OF SUBMIT BILLS AND VOUCHERS IS NOT ONLY IRRELEVANT BUT ALSO CONCE IVED. IN THIS SITUATION, THE EXPLANATION SUBMITTED BY THE WIFE OF THE DECEAS ED ASSESSEE COULD HAVE BEEN ACCEPTED BY THE AUTHORITIES BELOW BUT THE Y HAVE FAILED FAILED TO DO SO. 10. IN VIEW OF THE AFOREGOING DISCUSSION WE ARRIVE TO A LOGICAL CONCLUSION THAT THE ADDITION MADE BY THE A.O WAS NO T CORRECT AND JUSTIFIED AND THE LD.CIT(A) WAS NOT CORRECT IN UPHO LDING THE SAME. HENCE, ORDERS OF THE AUTHORITIES BELOW ARE DISMISSE D AND THE A.O IS DIRECTED TO DELETE THE ADDITION. ACCORDINGLY, SOLE MAIN EFFECTIVE GROUND NO.2 OF THE ASSESSEE IS ALLOWED. 11. IN THE RESULT, THE APPEAL IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 12.12.2 017 SD/- SD/- (G. D. AGRAWAL) (C. M GARG) PRESIDENT JUDICIAL MEMBER 7 ITA NO. 6904/DEL/2014 DATED: 12/12/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 12.10.2017 PS 2. DRAFT PLACED BEFORE AUTHOR 13.10.2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18.12.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 18.12.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 8 ITA NO. 6904/DEL/2014