PREETI ELHENCE, MEERUT V. ACIT, CENTRAL CIRCLE, MEERUT

ITA 7402/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6702 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NOS.7402 & 7403/DEL/2017 ASSESSMENT YEARS : 2001-02 & 2002-03 PREETI ELHENCE, F-67, SECTOR-44, BEHIND MAHAMAYA GIRLS COLLEGE, NOIDA, UTTAR PRADESH. VS. ACIT, CENTRAL CIRCLE, MEERUT, MEERUT, UTTAR PRADESH. PAN : AAAPE5084A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH GARG, ADV. SHRI RAHUL MITTAL, ADV. DEPARTMENT BY : SHRI S. L. ANURAGI, SR. DR DATE OF HEARING : 19-07-2018 DATE OF PRONOUNCEMENT : 30-07-2018 O R D E R PER R. K. PANDA, AM : THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE COMMON ORDER DATED 31.10.2017 OF THE CIT(A)- IV, KA NPUR RELATING TO ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN BOTH THE APPEALS , THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2 ITA NOS.7402 & 7403/DEL/2017 2. THE GROUNDS RAISED BY THE ASSESSEE IN BOTH THE A PPEALS ARE AS UNDER :- ITA NO.7402/DEL/2017 : 1. THAT THE CIT(A) HAS FAILED TO ACKNOWLEDGE THAT NO MATERIAL WAS FOUND/SEIZED AGAINST THE ASSESSEE AT THE TIME OF SEARCH PROCEEDI NGS AND THAT THE ASSESSMENT U/S 153A IS BAD IN LAW AND FACTS AND HENCE, SHALL BE QU ASHED. 2. THAT THE ORDER OF CIT(A) IS BAD IN LAW AND IN UP HOLDING THE ADDITION OF RS.1,39,901/- BEING INVESTMENT IN HOUSE PROPERTY. HOWEVER, SAME WAS THROUGH BANKING CHANNEL. ITA NO.7403/DEL/2017 : 1. THAT THE CIT(A) HAS FAILED TO ACKNOWLEDGE THAT NO MATERIAL WAS FOUND/SEIZED AGAINST THE ASSESSEE AT THE TIME OF SEARCH PROCEEDI NGS AND THAT THE ASSESSMENT U/S 153A IS BAD IN LAW AND FACTS AND HENCE, SHALL BE QU ASHED. 2. THAT THE ORDER OF CIT(A) IS BAD IN LAW AND IN UP HOLDING THE ADDITION OF RS.2,05,000/-BEING INVESTMENT IN HOUSE PROPERTY. H OWEVER, SAME WAS THROUGH BANKING CHANNEL. 3. FIRST WE TAKE UP THE FACTS OF THE CASE FOR ASSES SMENT YEAR 2001-02 AS THE LEAD CASE. THE ASSESSEE IS AN INDIVIDUAL. AN ACTI ON U/S 132 WAS TAKEN ON THE RESIDENTIAL PREMISES OF THE ASSESSEE AT A-130, SHAS TRI NAGAR, MEERUT ON 27.10.2005 AND THE BANK LOCKERS IN THE NAME OF THE ASSESSEE AND IN THE NAME OF THE FAMILY MEMBERS OF THE ASSESSEE WERE ALSO SEARCH ED ON VARIOUS DATES. DURING THE COURSE OF SEARCH ACTION AN AMOUNT OF RS. 3,39,700/- IN CASH WAS FOUND OUT OF WHICH RS.2,00,000/- WAS SEIZED. SIMIL ARLY, OUT OF JEWELLERY FOUND OF RS.26,06,077/-, JEWELLERY VALUED AT RS.12,51,599 /- WAS SEIZED. IN RESPONSE TO NOTICE U/S 153A, THE ASSESSEE FILED HER RETURN OF I NCOME FOR THE IMPUGNED ASSESSMENT YEAR DECLARING INCOME OF RS.3,18,106/-. THE ASSESSING OFFICER IN 3 ITA NOS.7402 & 7403/DEL/2017 THE ASSESSMENT ORDER FRAMED U/S 153A/143(3) DETERMI NED THE TOTAL INCOME OF RS.5,73,794/- WHEREIN APART FROM THE OTHER ADDITION S HE MADE ADDITION OF RS.1,39,901/- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN HOUSE PROPERTY WHICH IS THE SUBJECT-MATTER OF LITIGATION IN THE IMPUGNED A PPEAL. THE BASIS OF ADDITION OF THE ABOVE AMOUNT IS ON ACCOUNT OF THE COMPARISON OF THE BALANCE SHEET FOR THE YEAR ENDING ON 31.03.2000 TO 31.03.2001 ACCORDING T O WHICH THE ASSESSEE HAS MADE INVESTMENT OF RS.1,39,901/- IN THE PROPERTY DU RING THE YEAR AND NO AMOUNT WAS SHOWN TOWARDS WITHDRAWAL FOR CONSTRUCTION PURPO SES. (SIMILAR ADDITION OF RS.2,05,000/- HAS BEEN MADE IN ASSESSMENT YEAR 2002 -03). 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER BY OBSERVING AS UNDER :- 7. GROUND NO.4, RELATES TO ADDITION OF RS.1,39,901 /- AND RS.2,05,000/- FOR A.Y. 2001-02 AND 2002-03 RESPECTIVELY ON ACCOUNT OF INVE STMENT IN HOUSE PROPERTY. THE AO HAS OBSERVED FROM THE PERUSAL OF THE DETAILS OF ACCOUNT THAT NO AMOUNT HAS BEEN CREDITED FROM THE BANK FOR THE CONSTRUCTION PURPOSE , HENCE THE SAME STANDS UNEXPLAINED. ON THE OTHER HAND APPELLANT HAS SUBMI TTED THAT THE CASH WAS WITHDRAWN FROM TIME TO TIME FROM THE BANK ACCOUNT AND THE SAM E IS UTILIZED FOR THE PURPOSE OF CONSTRUCTION. HOWEVER, APPELLANT HAS FAILED TO SUB MIT THE COGENT EVIDENCE REGARDING THE UTILIZATION OF CASH FOR INVESTMENT IN HOUSE PRO PERTY FROM THE CASH WITHDRAWAL FROM THE BANK. ALSO, THE CASH WITHDRAWN FROM THE BANK I S BARELY SUFFICIENT TO MEET THE EXPENSES ON ACCOUNT OF INVESTMENT IN PROPERTY. IT IS ALSO NOT UNDISPUTED THAT THE APPELLANT MUST HAVE SPENDS FOR THE HOUSE HOLD EXPEN SES AND MEDICAL EXPENSES ETC. FROM THE CASH WITHDRAWN FROM THE BANK. AS APPELLAN T HAS FAILED TO ESTABLISH THE UNBREAKABLE NEXUS BETWEEN THE CASH WITHDRAWN FROM T HE BANK AND INVESTMENT MADE IN THE HOUSE PROPERTY, ADDITION MADE BY THE AO IS C ONFIRMED AND APPEAL OF THE APPELLANT IS DISMISSED. 4 ITA NOS.7402 & 7403/DEL/2017 4.1 AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I FIND THE ASSES SING OFFICER MADE THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS MADE INVESTMENT OF RS.1,39,901/- IN THE HOUSE PROPERTY DURING THE YEAR WHICH IS AS PER THE DIFFERENCE IN THE BALANCE SHEET FOR THE YEAR ENDING ON 31.03.2000 TO 31.03.20 01 AND THE ASSESSEE HAS SHOWN THE ENTIRE WITHDRAWAL FOR CONSTRUCTION PURPOS ES. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT CASH WAS WITH DRAWN FROM TIME TO TIME FROM THE BANK ACCOUNT AND THE SAME IS UTILIZED FOR THE P URPOSES OF CONSTRUCTION. 6. IT IS THE SUBMISSION OF THE LD. DR THAT THE ASSE SSEE FAILED TO SUBMIT COGENT EVIDENCE REGARDING THE UTILIZATION OF CASH FOR INVE STMENT IN HOUSE PROPERTY FROM THE CASH WITHDRAWAL FROM THE BANK. IT IS ALSO HIS SUBMISSION THAT THE CASH WITHDRAWAL FROM THE BANK IS BARELY SUFFICIENT TO ME ET THE CONSTRUCTION EXPENSES FOR THE HOUSE. I FIND THE ENTIRE INVESTMENT IN HOU SE PROPERTY FOR BOTH THE YEARS IS VERY NEGLIGIBLE I.E. RS.1,39,901/- FOR ASSESSMENT Y EAR 2001-02 AND RS.2,05,000/- FOR ASSESSMENT YEAR 2002-03. CONSIDERING THE SMALL NESS OF THE INVESTMENT IN THE HOUSE PROPERTY AND IN ABSENCE OF ANY INCRIMINAT ING MATERIAL FOUND DURING THE COURSE OF SEARCH REGARDING ANY OTHER LAVISH EXP ENDITURE SUCH AS MARRIAGE IN THE FAMILY, FOREIGN TOUR ETC. AND CONSIDERING THE T OTALITY OF THE FACTS OF THE CASE, I 5 ITA NOS.7402 & 7403/DEL/2017 AM OF THE CONSIDERED OPINION THAT NO ADDITION IS CA LLED FOR IN THE INSTANT CASE. ACCORDINGLY, THE ADDITION SUSTAINED BY THE LD. CIT( A) AMOUNTING TO RS.1,39,901/- FOR ASSESSMENT YEAR 2011-02 AND RS.2, 05,000/- FOR ASSESSMENT YEAR 2002-03 IS DIRECTED TO BE DELETED. SINCE THE ASSESSEE SUCCEEDS ON MERIT, THE LEGAL GROUND RAISED BY THE ASSESSEE BEING ACADEMIC IN NATURE IS NOT BEING ADJUDICATED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH JULY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 30-07-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI