Mahesh Kumar Suryan, Delhi V. ITO, Ward- 5(1), New Delhi

ITA 8254/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5405 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-12-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.8254/DEL/2018 ASSESSMENT YEAR: 2014-15 MAHESH KUMAR SURYAN RZ 12L, 2A, 907, STREET NO.5, MAIN SAGAR PUR, DELHI- 110046 VS INCOME TAX OFFICER WARD 5(1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH.VED JAIN, ADVOCATE RESPONDENT BY SHRI S. L. ANURAGI, SR. DR DATE OF HEARING: 14/08/2019 DATE OF PRONOUNCEMENT: 16/08/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 07.09.2018 OF THE CIT(A)-2, NEW DELHI R ELATING TO A. Y. 2014-15. 2. THERE IS A DELAY OF 43 DAYS IN FILING OF THIS A PPEAL BY THE ASSESSEE AS POINTED BY THE REGISTRY IN THE DEFECT N OTICE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO SUCH DELAY AND THE MISTAKE OCCURRED DUE TO MENTIONING OF THE D ATE OF SERVICE OR COMMUNICATION OF THE ORDER AS 15.09.2018 AS AGAINST 05.11.2018. HE ACCORDINGLY SUBMITTED THAT THERE IS NO DELAY IN PAGE | 2 FILING OF THE APPEAL BY THE ASSESSEE AND THE MISTAK E OCCURRED DUE TO A TYPOGRAPHICAL ERROR ON ACCOUNT WRONG MENTI ONING OF THE DATE OF RECEIPT OR COMMUNICATION OF THE ORDER. AFTER HEARING BOTH THE SIDES THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE AS POINTED OUT BY THE REGISTRY IS CONDONED. 3. THE ASSESSEE IN HIS GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF THE CIT(A) IN SUSTAINING THE ADDITION OF R S.38,84,000/- MADE BY THE ASSESSING OFFICER OF BEING UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DIRECTOR OF BLUE DIAMOND CARGO SERVI CES PRIVATE LIMITED. HE IS DERIVING SALARY INCOME FROM THE SAID COMPANY AND HE IS ALSO ENGAGED IN TRADING ACTIVITIES UNDER THE NAME AND STYLE OF M/S. WHITE CIRCLE INCORPORATION. HE FILED HIS RETURN OF INCOME ON 31.07.2014 DECLARING TOTAL INCOME OF RS.3 ,40,810/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER NOTED THAT THE ASSESSEE HAS MADE CASH DEPOS IT OF RS.23 LACS IN THE BANK ACCOUNT MAINTAINED WITH CORPORATIO N BANK AND RS.16 LACS WITH CENTRAL BANK OF INDIA. HE, THE REFORE, ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH CASH DEP OSIT IN THE TWO BANK ACCOUNTS ON VARIOUS DATES. CONSIDERING THE ARGUMENTS ADVANCED BY ASSESSEE FROM TIME TO TIME TH E ASSESSING OFFICER MADE ADDITION OF RS.31,68,000/- B EING THE UNEXPLAINED CASH DEPOSIT IN THE TWO BANK ACCOUNTS A ND RS.7,16,000/- BEING OTHER UNEXPLAINED CREDIT IN THE BANK PAGE | 3 ACCOUNT. 5. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT DUE TO SOME STRAINED RELATIONSHIP THE ASSESSEE WAS NOT IN A POSITION TO PRODUCE HIS FATHER AND OTHER RELATIVES BEING THE GIFT RECEIVED THROUGH CHEQUE. HE SUBMITTED THAT THE VARI OUS EVIDENCES PRODUCED BEFORE THE CIT(A) WERE NOT ADMIT TED BY HIM BEING ADDITIONAL EVIDENCES. HE SUBMITTED THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS NOW IN A POSITION TO SU BSTANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER REGARDING THE GIFT OFRS.7,16,000/- WHICH WAS ADDED BY HIM AS UNEXPLAINED CREDIT AND UPHELD BY THE CIT(A). 8. SO FAR AS THE CASH DEPOSIT IN THE BANK ACCOUNT I S CONCERNED THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT HE HAS PREPARED A CASH FLOW STATEMENT TO SUBSTANTIATE THE VARIOUS DEPOSITS IN THE TWO BANK ACCOUNTS. HE SUBMITTED TH AT IN THE INTEREST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN ON E FINAL OPPORTUNITY TO SUBSTANTIATE HIS CASE BEFORE THE ASS ESSING OFFICER. PAGE | 4 9. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE CIT(A) AND SUBMITTED THAT DESPITE OPPORTUNITIES GRANTED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A), THE ASSESSEE FAILED TO DISCHARGE HIS ONUS REGARDING THE CASH DEP OSITS IN THE TWO BANK ACCOUNTS AND THE GIFT OBTAINED FROM HIS FA THER AND OTHER RELATIVES. THEREFORE, NO FURTHER OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE AND THE ADDITION SUSTAINED BY THE CIT(A) SHOULD BE UPHELD. 10. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER IN THE INSTANT CASE MADE ADDITION OF RS.31,68,000/- BEING UNEXPLAINED CASH DEPOSIT IN TH E TWO BANK ACCOUNTS MAINTAINED BY THE ASSESSEE AND MADE ADDITI ON OF RS.7,16,000/- BEING OTHER UNEXPLAINED DEPOSITS IN T HE BANK ACCOUNT. I FIND THE LD. CIT(A) UPHELD THE ACTION O F THE ASSESSING OFFICER ON THE GROUND THAT ASSESSEE FAILED TO DISCH ARGE THE ONUS CAST ON HIM BY PRODUCING COGENT EVIDENCE TO SUBSTAN TIATE THE SOURCE OF SUCH DEPOSITS. THE LD. CIT(A) HAS ALSO R EJECTED THE VARIOUS EVIDENCES FILED BEFORE HIM BEING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46 A OF IT RULES. IT IS THE SUBM ISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY, HE IS IN A POSITION TO SUBSTANTIATE WITH EVIDENCE TO THE SATIS FACTION OF THE ASSESSING OFFICER REGARDING SOURCE OF SUCH CASH DEP OSIT IN THE BANK ACCOUNT AND THE GIFT RECEIVED FROM HIS FATHER AND OTHER PAGE | 5 RELATIVES. CONSIDERING THE TOTALITY OF THE FACTS O F THE CASE AND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO G IVE ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THE VAR IOUS CASH DEPOSITS IN THE TWO BANK ACCOUNTS AND THE SO CALLED GIFT RECEIVED BY ASSESSEE FROM HIS FATHER AND OTHER RELATIVES AND DECIDE THE ISSUE AS PER FACT AND LAW. THE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.08.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 16.08.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 6 DATE OF DICTATION 14.08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.08.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 16.08.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 16.08.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 16.08.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 16.08.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER