Tejinder Kaur, New Delhi V. ITO ward-45(1), New Delhi

ITA 7441/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3845 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 11-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Reason to believe; FORM 26AS
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2 NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER THROUGH VIDEO CONFERENCING I.T.A. NO.7441/DEL/2019 ASSESSMENT YEAR 2011-12 TEJINDER KAUR, F-12, 2 ND FLOOR, MUKHRAM GARDEN TILAK NAGAR, NEW DELHI. V. ITO, WARD-45(1), NEW DELHI. TAN/PAN: AQGPK1317A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI LALIT MOHAN, CA RESPONDENT BY: SHRI R. K. GUPTA, SR.D.R. DATE OF HEARING: 27 10 2020 DATE OF PRONOUNCEMENT: 29 10 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 14.06.2019, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XV, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.144/147 FOR THE ASSESSMENT YEAR 2011-12. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REOPENING U /S.147 AND ALSO ADDITION AGGREGATING TO RS. 10,56,670/- ON ACC OUNT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSING OFFICE R NOTED THAT IN THIS CASE, NO RETURN OF INCOME WAS FILED FO R THE YEAR I.T.A. NO.7441 /DEL/2019 2 UNDER CONSIDERATION AND AS PER THE CBDTS PILOT PROJ ECT (NON FILERS OF INCOME TAX RETURN), CERTAIN TRANSACTIONS HAVE BEEN CAPTURED BY INDIVIDUAL TRANSACTION STATEMENT (ITS) WHEREIN IT WAS NOTICED THAT ASSESSEE DURING THE FINANCIAL YEAR 2010-11 HAD DEPOSITED SUM OF RS. 26,13,240/- IN CASH. THE R EASONS HAVE BEEN INCORPORATED IN THE ASSESSMENT ORDER AT P AGES 1 TO 3, WHEREIN THE ENTIRE BASIS FOR RECORDING THE REASO NS AND ENTERTAINING REASON TO BELIEVE IS BASED ON THE INFO RMATION GENERATED THROUGH ITD SYSTEM THAT AMOUNT OF RS.26,1 3,240/- IS INCOME OF THE ASSESSEE. THE LD. ASSESSING OFFICE R HAS OBSERVED IN HIS ASSESSMENT ORDER THAT DESPITE ISSUA NCE OF VARIOUS NOTICES TO THE ASSESSEE, THE ASSESSEE HAS N OT RESPONDED. ACCORDINGLY, HE PASSED THE ASSESSMENT U/144/147 AND HAS MADE ADDITION FOR SUMS AGGREGATIN G TO RS. 10,56,670/- WHICH IS MAINLY ON ACCOUNT OF GROSS PROFIT @ 25% ON TOTAL CREDIT APPEARING IN THE BANK ACCOUNT O F RS.26,90,040/- AND CASH DEPOSITS OF RS. 3,84,164/-. 3. BEFORE THE LD. CIT (A), THE ASSESSEE HAS FILED VARIOUS ADDITIONAL EVIDENCES AND ALSO POINTED OUT THAT THE AIR INFORMATION ITSELF WAS BASED ON WRONG PRESUMPTION O F FACT AS IT DID NOT PERTAINED TO ASSESSEE. HOWEVER, THE LD. CIT (A) HAS REFUSED TO ADMIT THE ADDITIONAL EVIDENCE UNDER RULE 46A AND HAS CONFIRMED THE SAID ADDITION. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT FROM A BARE PERUSAL OF THE ITS WHICH IS BASIS FOR DRAWING ADVERSE INFERENCE AGAINST THE ASSESSEE AND TAKING A CTION U/S I.T.A. NO.7441 /DEL/2019 3 147, IT CAN BE SEEN THAT IT DOES NOT PERTAIN TO THE ASSESSEE, BECAUSE INFORMATION PERTAINS TO AMARPREET KAUR WITH DIFFERENT ADDRESS AND COMPLETELY UNRELATED TO THE A SSESSEE. THEREFORE, ENTIRE PREMISE ON WHICH REASONS WERE REC ORDED IS BASED ON INCORRECT ASSUMPTION OF FACTS, THEREFORE, SUCH REASON TO BELIEVE AND REASON RECORDED IS BAD IN LAW AND DOES GIVE HIM JURISDICTION. 5. ON THE OTHER HAND, LD. DR SUBMITTED THAT THO UGH DIFFERENT NAME HAS BEEN MENTIONED IN ITS, BUT FACT OF THE MATTER IS THAT CERTAIN CASH WAS DEPOSITED IN THE AC COUNT OF THE ASSESSEE AND ASSESSEE HAD NOT FILED HER RETURN OF INCOME, AND THEREFORE, ASSESSING OFFICER HAS RIGHTLY ASSUME D THE JURISDICTION. 6. AFTER CONSIDERING THE MATERIAL PLACED ON RECO RD SPECIFICALLY THE AIR INFORMATION BASED ON INDIVIDUA L TRANSACTION STATEMENT WHICH IS BASIS FOR RECORDING THE REASONS AND ASSUMING JURISDICTION U/S.147, IT IS SE EN THAT THIS INFORMATION PERTAINS TO AMARPREET KAUR, RESIDE NT OF WZ- 254GA, G-BLOCK HARI NAGAR, NEW DELHI WHO HAS MAINTA INED HER ACCOUNT IN SBI TILAK NAGAR. WHEREAS, THE NAME O F THE ASSESSEE IS, SMT. TAJINDER KAUR, F-12, 2 ND FLOOR, MUKHRAM GARDEN, NEW DELHI, WHICH IS ALSO MENTIONED IN THE ASSESSMENT ORDER AND NOTICES. IN SUPPORT, ASSESSEE HAS ALSO FILED FORM 26AS. FOR SAKE OF PROPER APPRECIATION, T HE TYPED VERSION OF ITS WHICH WAS THE BASIS FOR ASSUMING JURI SDICTION U/S 147 IS AS UNDER:- I.T.A. NO.7441 /DEL/2019 4 AIR TXN CODE 001 (DEPOSITED CASH OF RS. 10,00,000 OR MORE IN A S AVING BANK A/C) FILER TAN MUMS48590D FILER NAME; STATE BANK OF INDIA FILER ADDRESS: 3 STATE BANK BHAVAN MADAM CAMA ROAD, NARIMAN POINT, MUMBAI MAHARASHTRA SR. NO. NAME AND ADDRESS TRANSACTION AMOUNT TRANSACTION DATE JOINT COUN T ACTUAL AIR LINE NO. RRR NUMBER RRR DATE FILER BRANCH NAME AND ADDRESS 1 AMANPREET KAUR ACCT. NO. 30984785712 WZ-254A G BLOCK HARI NAGAR NEW DELHI 26,13,240 31-MAR-11 1 137105 50250500001413 18-SEP-11 STATE BANK OF INDIA, TILAK NAGAR (NEW DELHI) (01551) 5-B/4, MAIN NAJAFGARH ROAD, TILAK NAGAR NEW DELHI WEST DELHI 110018 7. FROM THE AFORESAID INFORMATION IT CAN BE CLE ARLY SEEN THAT IT IS IN RESPECT OF DEPOSIT OF RS.10 LAC IN SM T. AMARPREET KAUR AND SUCH FIR INFORMATION DOES NOT MENTION OR P ERTAIN TO THE ASSESSEE. THUS, THE REASONS RECORDED ARE BAS ED ON FACTUALLY INCORRECT INFORMATION WHICH ADMITTEDLY DO ES NOT BELONG TO THE ASSESSEE. THE ACTION OF THE ASSESSING OFFICER FOR REOPENING THE CASE U/S 147 IS MECHANICAL AND WITHOU T ANY APPLICATION OF MIND, AND THEREFORE, THE ENTIRE REAS ONS RECORDED ON SUCH ERRONEOUS PRESUMPTION OF INFORMATI ON OR MATERIAL CANNOT CLOTHE ASSESSING OFFICER WITH JURISD ICTION U/S.147 AND SAME IS THEREFORE BAD IN LAW AND IS QUA SHED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2020. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH OCTOBER, 2020 PKK: