Dharam Pap, Meerut V. ITO, Ward-1(2), Meerut

ITA 7479/DEL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3847 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 142(1); 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1 NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.7479/DEL/2018 ASSESSMENT YEAR 2008-09 DHARAM PAL, DABATHWA, MEERUT V. ITO, WARD-1(2), MEERUT TAN/PAN: AYKPD7356C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VINOD KUMAR GOEL, ADV. 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 03.10.2018 PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS), MEERUT FOR TH E QUANTUM OF ASSESSMENT PASSED U/S.144 FOR THE ASSESS MENT YEAR 2009-10. 2. THE FACTS IN BRIEF ARE THAT ON THE BASIS OF AIR INFORMATION THAT ASSESSEE HAD MADE CERTAIN CASH DEP OSITS IN HIS SAVING BANK ACCOUNT DURING THE FINANCIAL YEAR 2 008-09 WITHOUT QUOTING HIS PAN, NOTICE U/S.148 WAS ISSUED ON 29.03.2016 WHICH HAS STATED BY THE ASSESSING OFFICE R TO HAVE BEEN SERVED UPON THE ASSESSEE THROUGH SPEED POST; A ND THEREAFTER VARIOUS NOTICES U/S. 142(1) WERE ISSUED AND SERVED I.T.A. NO.7479 /DEL/2018 2 UPON ASSESSEE. HOWEVER, NO COMPLIANCE HAS BEEN MADE AND THEREAFTER ASSESSMENT HAS BEEN MADE U/S.144 MAKING AGGREGATE ADDITION OF RS.25,80,880 WHICH ALSO INCLU DED DEPOSIT OF RS.7,30,878/-. 3. BEFORE THE LD. CIT(A) IT WAS EXPLAINED THAT O UT OF TOTAL DEPOSIT ADDED BY THE ASSESSING OFFICER, TWO WERE CH EQUE PAYMENTS OF RS.3,50,000/- EACH DEPOSITED IN THE BAN K ACCOUNT OF THE ASSESSEE ON 19.06.2008. WITH REGARD TO SOURCE OF CASH DEPOSITS, IT WAS SUBMITTED THAT THE SAME WA S ON ACCOUNT OF AGREEMENT TO SALE MADE BY THE PURCHASER WITH THE ASSESSEE FOR THE SALE OF LAND AND THERE WAS IKRARNAMA, I.E., THE COPY OF AGREEMENT BETWEEN TWO PARTIES WHEREIN I T HAS BEEN SHOWN THAT THE SAID AMOUNT HAS RECEIVED IN CAS H WHICH WAS DEPOSITED IN THE BANK ACCOUNT. LD. CIT (A) HAS CALLED FOR THE REMAND REPORT TO THE ASSESSING OFFICER. IN REMA ND REPORT, THE ASSESSING OFFICER OBSERVED THAT THERE WERE TWO CASH DEPOSITS OF RS. 9,50,00,000/- ON 17.06.2008 AND FUR THER RS. 9 LACS ON 18.06.2008 WHICH ASSESSEE HAS TRIED TO EX PLAIN BY RELYING UPON IKRARNAMA , IS NOT NOTARIZED NOR THERE IS ANY DETAIL THAT WHEN THE PAPER WAS PURCHASED AND THERE IS SIGNATURE OF ONE WITNESS AND THAT TO BE WITHOUT ADD RESS. SO THE AUTHENTICITY OF IKRARNAMA CANNOT BE ACCEPTED AND THIS ALLEGED IKRARNAMA IS ALSO DATED 31.06.2008, THEREFORE, THE SOURCE OF CASH DEPOSITS OF SUMS REMAINED UNEXPLAINE D. 3. LD. CIT (A) HAS DELETED THE ADDITION OF RS.7 LAC S WHICH WAS ON ACCOUNT OF CHEQUE ENTRIES AND WAS ALSO CROSS VERIFIED I.T.A. NO.7479 /DEL/2018 3 BY THE ASSESSING OFFICER FROM THE SALE DEED WHEREIN THE CHEQUE ENTRIES WERE MENTIONED. HOWEVER WITH REGARD TO THE CASH DEPOSITS, LD. CIT (A) HAS CONFIRMED THE ADDITI ON AFTER OBSERVING AND HOLDING AS UNDER: IT IS WITH REGARD TO CASH DEPOSIT OF RS.9,50,000/- THAT THE ASSESSING OFFICER HAS MINUTELY EXAMINED THE DOCUMEN TS FILED WHICH IS PURPORTEDLY A COPY OF THE IKRARNAMA AND TH E ASSESSING OFFICER OBSERVES THAT THE SAME IS NOT NOT ARIZED THERE IS NO DETAILS AS TO WHEN THE TREASURY PAPER W AS PURCHASED OF VALUE OF RS. 100/-. THEN THE AO IS ALS O POINT OUT THAT THERE IS ONLY ONE WITNESS WHO IS SIGNING THE D OCUMENT AND NO DETAILS OF WITNESS HAVE BEEN GIVEN. THE AR ON HIS PART IS QUESTIONING THE RIGHT OF THE AO TO MAKE INQUIRY AND INVESTIGATION SINCE THE AO HAS PROVED T HAT THE AGREEMENT IS DOUBTFUL AND FICTITIOUS. THE ID. AR IS TOTALLY OF THE MARK AND IN CONTRAVENTION OF LEGAL PROCEDURE IN QUE STIONING THE RIGHT OF THE AO AN INQUIRY AND OBSERVATIONS WHI CH THE AO HAS MADE. THE VALUE OF EVIDENCE FILED HAS TO BE FIR ST DETERMINED AND IT IS TO BE DECIDED BY THE AUTHORITI ES CONCERNED WHETHER THE EVIDENCE FILED IS CREDIBLE EN OUGH TO BE PROCEEDED WITH FOR FURTHER INVESTIGATION. IN THIS C ASE THE AO HAS BEEN ABLE TO ESTABLISHED THE DUPLICITOUS NATURE OF EVIDENCE FILED IN THE FORM OF IKRARNAMA BY POINTING OUT SPECIFIC SHORT COMING. THE AR IN HIS COUNTER REMARKS THAT THE PURCHASER AN D SELLERS ARE BOUND BY THIS AGREEMENT AND THE ASSESSEE IS REC EIVED PAYMENT DOES NOT PROVE ANYTHING BECAUSE THE SELLER AND THE PURCHASER ARE INTERESTED PARTIES AND THE EVIDENCE G IVEN HAS TO I.T.A. NO.7479 /DEL/2018 4 BE EXAMINED FOR ITS CORRECTNESS IN THE FIRST PLACE BY THE TAXING AUTHORITY. THE FACT IS THAT THE PRIMA FACIE EXAMINATION OF THE EVIDENCE FILED IN THE FORM OF ALLEGED IKRARNAMA IS A USELESS PIECE OF EVIDENCE WHICH COMES ACROSS AS AN AFTERTHOUGHT AND IT DOES NOT MERIT FURTHER INQUIRY GIVEN HIGHLY DOUBTFUL IN NATURE. THE ID. AR HAS TRIED TO COMPARE THIS DUPLICITOUS IK RARNAMA WITH A DULY SWORN AFFIDAVIT IN THE CASE OF MUKESH S INGH AND PRIMA FACIE COMPARISON IS WRONG WHEN IN THIS CASE O NE IS NOT EVEN SHOWS WHEN THE PAPER WAS PURCHASED FOR IKRARNA MA AND WHO IS THE ONLY WITNESS IN THE AGREEMENT AS THE ONLY THE NAME HAS BEEN STATED AND NO ADDRESS HAS BEEN GIVEN. MOREOVER, UNDER THE LAW OF REGISTRATION OF DOCUMENT S AT LEAST TWO WITNESS ARE REQUIRED WHEREAS IN THIS CASE APPAR ENTLY THERE IS ONLY ONE WITNESS AND EVEN HIS WHEREABOUTS ARE NOT KNOWN. THUS, THE FACTS REMAINS CASH DEPOSIT OF RS. 9,50,00 0/- ON 17.06.2008 AND RS. 9,00,000/- ON 18.06.2008 DEPOSIT ED IN THE APPELLANT'S BANK ACCOUNT REMAINS TOTALLY UNSUBS TANTIATED AND ARE THUS CONFIRMED AS UNEXPLAINED DEPOSIT U/S 6 9 OF THE ACT. THE ALLEGED IKRARNAMA FILED DURING APPEAL IS B EING MADE ANNEXURE TO THIS APPEAL ORDER. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSEE HAD RECEIVED ADVANCE OF SUMS AGGREGATI NG TO RS.18,50,000/- AGAINST AGRICULTURAL LAND SITUATED A T VILLAGE- DABATHWA, POHLI, BABAKPUR, DISTRICT MEERUT. THIS IS CLEARLY BORNE OUT FROM THE AGREEMENT TO SELL, I.E., IKRARNAMA WHEREIN AMOUNT OF CASH AND CHEQUE HAS BEEN MENTIONED. THE L D. I.T.A. NO.7479 /DEL/2018 5 ASSESSING OFFICER HAS PASSED AN EX-PARTE ORDER WITH OUT SERVICE OF NOTICE ON THE ASSESSEE EVEN THE COPIES O F REASONS RECORDED WERE NOT SUPPLIED TO THE ASSESSEE. THE ASS ESSEE HAS SPECIFICALLY REQUESTED BEFORE THE LD. CIT (A) TO SU PPLY THE COPY OF REASONS RECORDED WHICH HAS NOT BEEN MADE AVAILAB LE TILL DATE. HE FURTHER SUBMITTED THAT THERE HAS BEEN GROS S VIOLATION OF NATURAL JUSTICE AT THE STAGE OF THE ASSESSING OFF ICER AND ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS BEC AUSE DURING THE REMAND PROCEEDINGS ASSESSING OFFICER DID NOT GIVE ANY OPPORTUNITY OR ASKED THE ASSESSEE TO SUBSTANTIA TE THE AUTHENTICITY OF IKRARNAMA OR HAS CALLED UPON THE SELLER OR ASKED THE ASSESSEE TO PRODUCE THE SELLER, AND THERE FORE, MERELY ON SURMISES THE AGREEMENT TO SELL/IKRARNAMA COULD NOT HAVE BEEN REJECTED WHICH PROVES THE SOURCE OF C ASH IN THE BANK ACCOUNT. THE ADDITION MADE CANNOT BE SUSTAINED ; AND ALTERNATIVELY THE MATTER CAN BE RESTORED BACK TO TH E FILE OF THE ASSESSING OFFICER SO THAT ASSESSEE CAN SUBSTANTIATE THE SOURCE BECAUSE NO PROPER OPPORTUNITY WAS GIVEN. 5. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON T HE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT THE ONUS WAS UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE CASH DEPOS ITS IN THE BANK ACCOUNT WHICH HAS NOT BEEN DISCHARGED AND THE AUTHENTICITY OF THE AGREEMENT TO SELL HAS BEEN REJE CTED BY THE ASSESSING OFFICER AND THE REMAND PROCEEDINGS ALSO B Y THE LD. CIT (A). 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON P ERUSAL I.T.A. NO.7479 /DEL/2018 6 OF THE MATERIAL REFERRED TO BEFORE US AT THE TIME O F HEARING, WE FIND THAT THE ENTIRE ISSUE OF CASH DEPOSITS IN THE BANK ACCOUNT HINGES UPON THE PRIMARY EVIDENCE WHICH IS IKRARNAMA /AGREEMENT TO SELL, WHEREIN THE PURCHASER HAS MADE PAYMENT OF CASH OF SUMS AGGREGATING TO RS.18,50,000/- AND R S.7 LACS IN CASH. THIS IKRARNAMA WAS NOT FILED BEFORE THE ASSESSING OFFICER, BECAUSE THE ORDER HAS BEEN PASSED EX-PARTE FOR WHICH THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NOT ICES ISSUED BY THE ASSESSING OFFICER WERE NOT RECEIVED BY THE A SSESSEE AT ALL. BEFORE THE LD. CIT (A) WHEN IKRARNAMA WAS FILED, THE LD. CIT(A) HAS CALLED FOR THE REMAND REPORT AND ASSESSI NG OFFICER ALSO DID NOT GIVE ANY OPPORTUNITY SO AS TO SUBSTANT IATE THE AUTHENTICITY OF THE IKRARNAMA AND THE SAME HAS BEEN REJECTED BY THE ASSESSING OFFICER ON SURMISES. THE ASSESSING OFFICER AND LD. CIT (A) HAS CONFIRMED THE ADDITION MERELY O N THE GROUND THAT THE PRIMARY EVIDENCE, I.E., IKRARNAMA IS AN AFTERTHOUGHT AND ITS AUTHENTICITY IS IN DOUBT. 7. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE O F THE OPINION THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AND THE ASSESSEE IS DIRECTED TO PROVE THE AUTHENTICITY OF THE IKRARNAMA AND / OR PRODUCED THE PURCHASER BEFORE THE ASSESSING OFFICER AS AND WHEN CALLED UPON; AND ASSESSING OFFICER CAN EXAMINED THE PURCHA SER ABOUT THE AUTHENTICITY OF THE IKRARNAMA AND ALSO THE SOURCE OF CASH DEPOSITS. THE ONUS WOULD BE ENTIRELY ON THE AS SESSEE TO SUBSTANTIATE HIS CASE. WITH THIS REMARK, THE ISSUE OF CASH DEPOSIT IS REMANDED BACK TO THE FILE OF THE ASSESSI NG OFFICER TO I.T.A. NO.7479 /DEL/2018 7 BE DECIDED AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSE E. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 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: