VIRDHI JOSHI, NEW DELHI V. ITO, WARD- 33(3), NEW DELHI

ITA 6926/DEL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4936 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Reason to believe
• Section: 147; 148; 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F+SMC, NEW DELHI BEFORE : SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.6926/DEL/2018 ASSESSMENT YEAR: 2010-11 VIRDHI JOSHI, 138, POCKET 24, ROHINI, SECTOR-24, NEW DELHI. PAN- ADMPJ0090L (APPELLANT) VS. ITO, WARD 33(3), NEW DELHI (RESPONDENT) APPELLANT BY SH. ANIL KUMAR GUPTA, ADVOCATE RESPONDENT BY SH. S.L. ANURAGI, SR. DR. ORDER PER AMIT SHUKLA, J.M.; THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST IMPUGNED ORDER DATED 05.09.2018, PASSED BY LEARNED CIT(APPEALS)- 11, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U /S. 147/144 FOR THE ASSESSMENT YEAR 2010-11. 2. IN VARIOUS GROUNDS OF APPEAL, THE ASSESSEE HAS C HALLENGED FIRSTLY, VALIDITY OF REOPENING U/S. 148/147 ON VARIOUS COUNT S AND SECONDLY, THE ADDITION OF RS.17,49,120/- MADE ON ACCOUNT OF U NEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. DATE OF HEARING 23.07.2019 DATE OF PRONOUNCEMENT 18 . 10.2019 ITA NO. 6926/DEL/2018 2 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ON THE BASIS OF INDIVIDUAL TRANSACTION STATEMENTS RECE IVED FROM ITD, IT WAS GATHERED THAT THE ASSESSEE HAD DEPOSITED CASH A MOUNTING TO RS.17,49,120/- IN HER BANK ACCOUNT AND ACCORDINGLY, PROCEEDINGS U/S. 147 WERE INITIATED AND NOTICE U/S. 148 WAS ISSU ED ON 28.03.2017. AS PER ASSESSMENT ORDER, IN RESPONSE TO NOTICE U/S. 148 AND OTHER NOTICES ISSUED TO THE ASSESSEE, THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE NOR FROM HER REPRESENTATIV E. BESIDES THIS, NO DETAILS WERE FURNISHED. ACCORDINGLY, THE ASSESSING OFFICER PASSED ORDER U/S. 144 ADDING THE ENTIRE AMOUNT OF RS.17,49 ,120/-. 4. THE LD. CIT (A) HELD THAT EVEN DURING THE APPELL ATE PROCEEDINGS, THE ASSESSEE HAD STATED THAT ASSESSEE HAS NOT ABLE TO OBTAIN THE ACCOUNT STATEMENT FROM THE BANK AND TO FURNISH ANY EXPLANATION WITH REGARD TO THE SOURCE OF CASH DEPOSITS IN THE BANK A CCOUNT. HOWEVER, IT WAS STATED BY THE ASSESSEE THAT SHE HAD FAMILY SAVIN GS OF RS.5 LAKHS AND RS. 5 LAKHS WERE RECEIVED FROM HER YOUNGER BROTH ER, WHO WAS NRI AND REST OF THE AMOUNT WAS RECEIVED FROM HER MOTHER. IN ABSENCE OF ANY SATISFACTORY EVIDENCE TO EXPLAIN THE SOURCE OF DEPOSITS, THE ADDITION MADE BY ASSESSING OFFICER WAS CONFIRMED BY THE LD. CIT (A). 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSEE HAS SOUGHT FOR BANK TRANSACTION DETAILS FR OM INCOME-TAX DEPARTMENT TO VERIFY THE DEPOSITS IN THE BANK ACCOU NT AND IN RESPONSE TO WHICH THE SAME HAS BEEN SUPPLIED TO THE ASSESSEE, COPIES OF WHICH HAVE BEEN PLACED IN THE PAPER BOOK PAGES 22 TO 23. FROM THE SAID STATEMENT, HE POINTED OUT THAT THE AMOUNT OF R S.7,00,000/- ITA NO. 6926/DEL/2018 3 DEPOSITED IN THE CITY BANK ACCOUNT WAS PERTAINING TO FINANCIAL YEAR 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10 WHICH C OULD NOT BE ADDED IN ASSESSMENT YEAR 2010-11. REGARDING BALANCE AMOUNT OF RS.10 LAKHS, HE SUBMITTED THAT SAME HAS COME BY WAY OF FAMILY SAVINGS AND TRANSFER BY ASSESSEES YOUNGER BROTHER FROM USA, WHO WAS STAYING IN USA SINCE 2000, AND THE AMOUNT WAS REM ITTED TO HER BY HIM TO TAKE CARE OF HERSELF AND THEIR MOTHER. AP ART FROM THAT, HER DECEASED MOTHER HAD RECEIVED BENEFITS FROM NDMC ON HER RETIREMENT, PART OF WHICH WAS RECEIVED BY CHEQUE AND REST WAS RE CEIVED FROM NDMC EMPLOYEES SOCIETY IN CASH. ALL THESE AMOUNTS WERE DEPOSITED IN THE BANK ACCOUNT AND THUS, THE SOURCE OF DEPOSIT STOOD EXPLAINED. IT WAS FURTHER SUBMITTED THAT THE REOPENING OF THE C ASE IS BAD IN LAW ON VARIOUS COUNTS, FIRSTLY, NO NOTICE U/S. 148 WAS S ERVED UPON THE ASSESSEE NOR ANY OTHER NOTICE ISSUED FROM TIME TO T IME; SECONDLY, EVEN THE REASON TO BELIEVE IS NOT AVAILABLE IN THE CASE FILE OF THE ASSESSING OFFICER; AND LASTLY, THE MATERIAL ON THE BASIS OF WHICH NOTICE U/S 148 HAS BEEN ISSUED ITSELF REVEALS THAT THE ITO HAD EVEN RECORDED THE CASH DEPOSITS OF RS.7 LAKHS IN THE BANK ACCOUNT OF THE ASSESSEE, WHICH PERTAINED TO F.Y. 2008-09 AND RS.10 LAKHS DUR ING F.Y. 2009- 10. THE ASSESSING OFFICER HAD ISSUED NOTICE FOR A.Y . 2010-11 FOR THE ENTIRE DEPOSITS, WHICH IS ERRONEOUS IN LAW. HE ALSO P OINTED OUT THAT EVEN THE IMPUGNED ORDER WAS NOT SERVED AND IT WAS ONL Y IN THE MONTH OF FEBRUARY, 2018 THAT TO WHEN THROUGH SOME TELEPHON IC MESSAGE RECEIVED FROM THE DEPARTMENT FOR RECOVERY OF DEMAND , THE ASSESSEE OBTAINED THE ASSESSMENT ORDER DATED 30.11.2017. HE HAS ALSO FURNISHED DOCUMENTS RELATING TO CASH DEPOSIT IN TWO ACCOUNTS WHICH ITA NO. 6926/DEL/2018 4 COMPRISE OF AROUND 1000 US DOLLARS EVERY MONTH FROM F.Y. 2001-02 TO 2011-12 FROM HER NRI BROTHER WHO HAS SENT THE SAM E THROUGH MONEY TRANSFER FROM WESTERN UNION. THIS WAS RECEIVED FOR TAKING CARE OF THE ASSESSEE AND WHEN HER MOTHER WAS ALIVE. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT APA RT FROM THE FACTUAL ERROR THAT THE TRANSACTION FOR THE SUM OF R S.7 LAKHS DID NOT PERTAIN TO THE ASSESSMENT YEAR UNDER CONSIDERATION, HOWEVER, FOR THE BALANCE DEPOSITS, THE ASSESSEE COULD NOT EXPLAIN AN Y SOURCE NOR DISCHARGED HER ONUS. THEREFORE, THE ADDITION WAS RIG HTLY MADE. 7. AFTER CONSIDERING THE AFORESAID SUBMISSIONS AND ON PERUSAL OF THE MATERIAL PLACED ON RECORD, WE FIND THAT THE REO PENING PROCEEDINGS HAVE BEEN INITIATED U/S. 147/148 ON THE BASIS OF IN DIVIDUAL TRANSACTION STATEMENT OF THE IT DEPARTMENT WHICH HAS REPORTED THAT THE ASSESSEE HAS DEPOSITED CASH AGGREGATING TO RS. 17,49,120/-. ON PERUSAL OF THE SAME DOCUMENTS OBTAINED FROM THE DEP ARTMENT, IT IS SEEN THAT THE AMOUNT AGGREGATING TO RS. 7 LAKHS PER TAINS TO F.Y. 2008-09, I.E., TRANSACTION DATE IS 20.08.2008. THUS , SAID CASH DEPOSIT COULD NOT HAVE BEEN ADDED IN THE ASSESSMENT YEAR 20 10-11. THIS ITSELF GOES TO SHOW THAT THERE IS CLEAR NON-APPLICAT ION OF MIND BY THE AO WHILE ASSUMING JURISDICTION U/S. 147. APART FROM THAT, FROM THE BARE PERUSAL OF THE ASSESSMENT ORDER, IT IS SEEN TH AT THERE IS NEITHER ANY WHISPER ABOUT THE CONTENTS OF THE REASONS RECORD ED NOR IT HAS BEEN MENTIONED THAT ON WHICH ADDRESS THE NOTICE HAS BEEN SERVED UPON THE ASSESSEE, BECAUSE NEITHER THE NOTICE U/S. 148 NOR OTHER STATUTORY NOTICES HAVE BEEN SERVED UPON THE ASSESSE E NOR HAVE BEEN ITA NO. 6926/DEL/2018 5 COMPLIED WITH. UNDER THESE CIRCUMSTANCES, IT IS VERY DIFFICULT TO HOLD THAT THE JURISDICTION U/S. 147 HAS BEEN VALIDLY ASS UMED. FURTHER, THE ASSESSEE BEFORE THE LD. CIT(A) HAD FILED DOCUMENTAR Y EVIDENCE AT LEAST TO THE EXTENT THAT THE ASSESSEE HAS RECEIVED MONEY FROM HER NRI BROTHER, WHO WAS STAYING IN USA AND HAD BEEN SENDING PER MONTH AN AMOUNT OF 980 US DOLLARS WHICH COMES TO AROUND RS.45 ,000/- PER MONTH. THE AMOUNTS RECEIVED BY WAY OF WESTERN UNION FROM THE SENDER TO THE ASSESSEE GOES TO SHOW THAT THE ASSESSE E HAS BEEN REGULARLY RECEIVING MONEY FOR HERSELF AND FOR HER M OTHER AND THIS DEFINITELY CONSTITUTES SOURCE OF DEPOSIT IN HER BAN K ACCOUNT. THUS, IT CANNOT BE HELD THAT EITHER THE SOURCE COULD NOT BE EXPLAINED OR THE PROCEEDINGS INITIATED U/S. 148/147 IS VALID. ACCORD INGLY, THE IMPUGNED ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER IS QUASHED ON THE GROUND THAT THERE IS NO APPLICATION OF MIND ON THE FACTS AND MATERIAL ON THE BASIS OF WHICH THE ASSESSM ENT HAS BEEN SOUGHT TO BE REOPENED, BECAUSE EVEN FROM THOSE MATE RIAL FACTS, THE REASON TO BELIEVE ENTERTAINED BY THE ASSESSING OFFI CER IS MISCONCEIVED. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/10/2019. SD/- SD/- (PRASHANT MAHARISHI) (AM IT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH OCTOBER, 2019 *AKS*