Smt. Sulochna Sanewal, Rohtak V. ITO, Rohtak

ITA 873/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52589 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 01-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3); 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SMT, DIVA SINGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO. 873/DEL/2011 ASSESSMENT YEAR : 2007-08 SMT. SULOCHNA SANEWAL, ITO, H.NO.96-D, SUBASH NAGAR, WARD-1, ROHTAK. V. ROHTAK. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.ASTPS ASTPS ASTPS ASTPS- -- -8345 8345 8345 8345- -- -R RR R APPELLANT BY : SHRI GAUTAM JAIN, C.A. RESPONDENT BY : SHRI A.K.MONGA, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R OF LD CIT(A), ROHTAK , DATED 3.1.2011 FOR ASSESSMENT YEAR 200 7-08. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEALS:- 1. THAT THE LD CIT(A), ROHTAK HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ORDER OF ASSESSMENT MADE U/.S 143(3) OF TH E ACT DATED 3.12.2009 DETERMINING THE TOTAL INCOME OF THE APPELLANT AT `.4,24,290/- AS AGAINST RETURN INCOME OF `.1,81,200/- . 2. THAT THE LD CIT(A) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF `.2,43,089/- REPRESENTING DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT AND HER DAUGHTER SMT. SUMAN AHLAWAT U/S 68 OF THE ACT. ITA NO873./DEL/11 2 2.1 THAT WHILE SUSTAINING THE AFORESAID ADDITION, THE LD CIT(A) HAS FAILED TO APPRECIATE, THE EXPLANATION TENDERED BY T HE APPELLANT DULY SUPPORTED BY NECESSARY EVIDENCE. IN FACT, ADDITION HAS BEEN CONFIRMED IN AN ARBITRARY AND SUBJECTIVE MANNER WH ICH IS CONTRARY TO LAW. 2.2 THAT THE LD CIT(A) HAS FAILED TO APPRECIATE THAT AFFIDAVIT OF THE DAUGHTER OF THE APPELLANT WHO WAS A JOINT HOLDER OF THE BANK ACCOUNT ALSO, WAS A VALID EVIDENCE AND, IN ABSENCE OF ANY REBUTTAL BY THE LD OFFICER, THE ADDITION SUSTAINED IS NOT TENA BLE. 3. THAT THE IMPUGNED ORDER MADE BY THE LD IS WITHOUT GRANTING FAIR AND PROPER OPPORTUNITY TO THE APPELLANT WHICH IS CON TRARY TO THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT THE LD CIT(A) HAS FURTHER ERRED IN BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY INTEREST UNDER SECTION 234B OF THE ACT WHICH IS NOT LELVIABLE AT ALL. 2. THOUGH THE ASSESSEE HAS TAKEN VARIOUS GROUNDS OF APPEA L, SHE IS DISPUTING THE ADDITION OF `.2,43,089/- U/S 68 OF THE ACT. 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE BANK ACCOUNT NO.1016343577-1 MAINTAINED BY THE ASSESSEE WITH STATE BANK OF INDIA, ROHTAK THERE WERE CREDIT ENTRIES AGGREGATING TO `.4,41,587/-. WHEN ASKED TO EXPLAIN THE SAME, INSTE AD OF EXPLAINING SOURCE OF EACH CREDIT ENTRY, THE ASSESSEE FURNISHED AN A FFIDAVIT OF SMT. SUMAN AHLAWAT, GURGAON IN WHICH SHE DECLARED THAT SHE WAS THE JOINT HOLDER OF THE SAID ACCOUNT AND DURING THE RELEVANT P REVIOUS YEAR SHE HAD DEPOSITED `.1,30,000/- IN THE ACCOUNT ON DIFFERE NT DATES AND ALSO WITHDREW A SUM OF `.2 LAKHS. IT WAS ALSO STATED THEREIN THAT SHE WAS ITA NO873./DEL/11 3 NOT ASSESSED TO TAX. THE ASSESSING OFFICER DID NOT ACCEPT T HE VERACITY OF THE ABOVE AFFIDAVIT FOR THE REASONS MENTIONED IN P ARA 3.2. OF THE ASSESSMENT ORDER. AS THE ASSESSEE RECEIVED NET RENT OF `.1, 98,498/- WHICH WAS DEPOSITED IN THE SAID ACCOUNT, DEDUCTING THE SAME FROM THE GROSS AMOUNT OF CREDIT I.E. `.4,41,587/-, THE ASSESSING O FFICER MADE ADDITION OF `.2,,43,089/- ON THIS ACCOUNT. RELIANCE WAS PLACED BY THE ASSESSING OFFICER ON THE FOLLOWING CASE LAWS:- 1. ROSHAN DI- HATTI V. CIT 107 ITR 938 (SC) 2. CIT V. R.S. RATHORE 212 ITR 390 (RAJ.). 3. CIT V. M. GANPATI MUDILIAR 53 ITR 623 (SC). 4. CIT V. MUSADILAL RAM BHAROSEY 165 ITR 14 (SC). 5. CIT V., GURBACHAN LAL 252 ITR 157 (DEL.). 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LD C IT(A). 5. BEFORE THE LD CIT(A), IT WAS SUBMITTED THAT AS THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT EACH AND EVERY ENTRY APPEARING IN THE BANK STATEMENT COULD NOT BE EXPLAINED. IT WA S STATED THAT THE CREDIT ENTRY OF `.1,38,462/- ON 14.,10.2006 CONSISTED OF `.1,24,982/-, REFUND FROM HUDA DEPOSITED OUT OF BANK ACCOUNT OF SM T. MANJU SANEWAL, DAUGHTER-IN-LAW AND `.13,480/- BEING THE C HEQUE AGAINST RENT AND ADDITIONAL EVIDENCE IN SUPPORT OF THE ABOVE WAS F URNISHED. IT WAS ALSO CONTENDED THAT THE ASSESSING OFFICER DISBELIEVED THE AFFIDAVIT FILED BY SMT. SUMAN AHLAWAT WITHOUT BRINGING ANY PROPER M ATERIAL ON RECORD. 6. THE LD CIT(A) ADMITTED THE ADDITIONAL EVIDENCE A ND SOUGHT A REMAND REPORT FROM THE ASSESSING OFFICER. IN THE REMAN D REPORT DATED 23.8.2010, THE ASSESSING OFFICER STATED THAT THE ASSESSEE DID NOT FURNISH ANY SOURCE OF DEPOSIT CLAIMED TO HAVE BEEN MAD E BY SMT. ITA NO873./DEL/11 4 SUMAN AHLAWAT. AS REGARDS REFUND FROM HUDA RECEIVED B Y SMT. MANJU SANEWAL NEITHER DOCUMENTARY EVIDENCE REGARDING FILI NG OF APPLICATION TO HUDA NOR ANY PROOF OF RECEIVING REFUND WAS FURNIS HED. IT WAS ALSO POINTED OUT THAT IF THE REFUND WAS RECEIVED BY SMT. MANJU SANEWAL IT COULD BE DEPOSITED ONLY IN HER ACCOUNT AND NOT IN TH E ACCOUNT OF THE APPELLANT. IN REPLY TO THE ABOVE REMAND REPORT IT W AS SUBMITTED BY THE ASSESSEE THAT SMT. MANJU SANEWAL APPLIED FOR PLOT IN HU DA IN THE NAME OF HER MOTHER-IN-LAW I.E. THE APPELLANT AND TH E AMOUNT WAS PAID FROM HER BANK ACCOUNT. THAT IS WHY THE REFUND WAS REC EIVED IN THE NAME OF THE APPELLANT. IT WAS, THEREFORE, CONTENDED THAT THE CREDIT ENTRY OF `.1,38,462/- STANDS EXPLAINED. 7. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE LD CIT(A) OPINED THAT THE AFFIDAVIT OF SMT. SUMAN AHAL WAT COULD NOT BE SUPPORTED BY FURNISHING ANY EVIDENCE EITHER DURING TH E ASSESSMENT PROCEEDINGS OR DURING THE REMAND PROCEEDINGS. THUS, IT WAS HELD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN REJECTING THE SAID AFFIDAVIT. AS REGARDS THE EXPLANATION REGARDING CREDIT ENTRY OF `. 1,38,462/-, THE LD CIT(A) HELD THAT THE ASSESSEE COULD NOT SUBSTANTIATE HER CLAIM BEFORE THE ASSESSING OFFICER DURING THE REMAND PROCEEDINGS. THU S, HE UPHELD THE ADDITION OF `.2,43,089/-. AGGRIEVED, THE ASSESSEE H AS FILED APPEAL BEFORE THE TRIBUNAL. 8. BEFORE US, THE LD AR FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE REFERRED TO VA RIOUS PAGES OF PAPER BOOK CONTAINING COPY OF AFFIDAVIT OF SMT. SUM AN AHALWAT, COPY OF IMPUGNED BANK ACCOUNT AND COPY OF BANK ACCOUNT O F SMT. MANJU SANEWAL IN CORPORATION BANK, ROHTAK BEING SB A/C NO .01/900007. IT WAS POINTED OUT BY HIM THAT ON 22.3.2004, AN AMOUNT OF `.1,24,982/- WAS PAID TO ESTATE OFFICER HUDA, PANCHKULLA. IT WAS, THEREFORE, CONTENDED BY HIM THAT THE IMPUGNED ADDITION BE DELE TED. ITA NO873./DEL/11 5 9. THE LD DR ON THE OTHER HAND RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 10. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE FIND FROM ASSESSEES PAPER BOOK PAGE-13, WHICH IS PART OF THE BANK STATEMENT OF SMT. MANJU SANEWAL IN CORPORATION BANK, THAT `.1,24 ,982/- WAS RECEIVED FROM HER MOTHER-IN-LAW. THERE IS CORRESPONDI NG ENTRY IN THE STATE BANK ACCOUNT OF THE ASSESSEE WHICH IS AVAILABLE ON PAGE 7 OF THE ASSESSEES PAPER BOOK. THE AMOUNT OF `.1,38,462/- WAS CRE DITED TO THE ASSESSEES ACCOUNT ON 14.10.2006 BY CLEARING. THUS, THE E XPLANATION FURNISHED BY THE ASSESSEE WITH REFERENCE TO CREDIT ENTR Y OF `.1,38,462/- APPEARS TO BE PROBABLE. IT IS TRUE THAT THE ASSESSEE COUL D NOT PRODUCE ANY CONCRETE EVIDENCE TO SHOW THAT AN AMOUNT OF `.1 ,24,982/- WAS RECEIVED AS REFUND FROM HUDA. BUT THERE IS NO EVIDEN CE ON RECORD TO SHOW THAT THE CLAIM OF THE APPELLANT WAS UN-TRUE. IT IS ALSO NOTICED THAT SMT. MANJU SANEWAL HAS PAN NUMBER ALSO AS IS EVIDENCED FROM ASSESSEES PAPER BOOK PAGE 10. IN THE ABOVE CIRCUMSTANC ES, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS SUBSTANTIALLY EXPLAINED THE DEPOSIT OF `.1,38,462/- BY CLEARING ON 14.10.200 6. IN THIS VIEW OF THE MATTER, THE ASSESSEE GETS RELIEF OF `.1,38,462/-. AS REGARDS THE BALANCE ADDITION OF `.1,04,627/- THE ASSESSEE DID NOT P RODUCE ANY EVIDENCE BEFORE THE AUTHORITIES BELOW OR BEFORE US TO SUBSTANTIATE HER CLAIM. WE, THEREFORE, UPHOLD THE ADDITION OF `.1,04 ,627. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED IN PART. 12. ORDER PRONOUNCED IN THE OPEN COURT ON THE 30TH DAY OF AUGUST,2011. SD/- SD/- (DIVA SINGH) (B.K. HALD AR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 30.8.2011. HMS ITA NO873./DEL/11 6 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 4.08.2011 DATE OF DICTATION 25.08.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. .08.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH .08.2011 ITA NO873./DEL/11 7