ITO, New Delhi V. Mr. Ravi Ajwani, New Delhi

ITA 885/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7284 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEVI SHARAN SINGH
• Assessee Lawyers: RAVI AJWANI
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. B.C.MEENA, ACCOUNTANT MEMBER I.T.A .NO. - 885 /DEL/201 3 (ASSESSMENT YEAR - 2008 - 09 ) ITO , WARD - 46(1), ROOM NO - 306, 3 RD FLOOR, D - BLOCK, DR. S.P.M.CIVIC CENTRE, NEW DELHI - 110002. (APPELLANT) VS RAVI AJWANI, CB - 11B, DDA FLATS, MUNIRKA, NEW DELHI - 110067 P AN - AFMPA4276R (RESPONDENT) APPELLANT BY SH. DEVI SHARAN SINGH, SR. DR RESPONDENT BY SH. RAVI AJWANI ORDER PER DIVA SINGH, JM TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 1 8 . 12 .201 0 OF THE CIT(A) - XXX, NEW DELHI PERTAINING TO 2008 - 09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - ON THE FACTS AND IN T H E CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN (I) DELETING THE ADDITION OF RS.11,14,250/ - AS RIGHTLY MADE BY THE A.O ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IS MADE BY THE ASSESSEE. (II) DELETING THE ADDITION OF RS.11,14,250/ - AS MUCH AS THE A SSESSEE HAD FAILED TO SUBMIT PLAUSIBLE EXPLANATION IN SUPPORT OF NATURE AND SOURCE OF CASH DEPOSITS. (III) DELETING THE ADDITION OF RS.11,14,250/ - IGNORING THE FACTS OF UTILIZATION OF THE AMOUNT OF CASH DEPOSITS. (IV) DELETING THE ADDITION OF RS.11,14,250/ - WITHOUT A PPRECIATING THE FACTS THAT THE ASSESSEE FAILED TO ESTABLISH THE CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSACTIONS. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2 I.T.A .NO. - 885 /DEL/201 3 2. AT THE TIME OF HEARING AN ADJOURNMENT PETITION WAS MOVED ON BEHALF OF THE ASSESSEE SEEKING TIME . I N SUPPORT OF THE PETITION MOVED THE ASSESSEE WAS PRESENT IN PERSON . H OWEVER ON GOING THROUGH THE MATERIAL AVAILABLE ON RECORD IT WAS CONSIDERED APPROPRIATE TO PASS OVER THE SAME AND H EAR THE GRIEVANCE OF THE APPELLANT ON MERIT S AFTER THE ADJOURNMENTS. IN THE SECOND ROUND WHEN THE APPEAL WAS CALLED OUT , THE LD. SR. DR WAS REQUIRED TO ADDRESS THE DEPARTMENTAL GRIEVANCE . BEFORE WE ADDRESS THE SAME IT IS RELEVANT FIRST TO REFER TO THE FACTS ON RECORD. THE RECORD SHOWS THAT THE ASSESSEE DECLARED AN INCOME OF RS.3,18,312/ - . THE SAID RETURN WAS SELECTED FOR SCRUTINY AND IN RESPONSE TO NOTICE U/S 143(2) & 142(1) ALONGWITH THE QUESTIONNAIRES ETC. THE ASSESSEE REPRESENT ED HIS CASE IN PERSON BEFORE THE AO . IN THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS CONFRONTED WITH AIR & CIB INFORMATION AVAILABLE WITH THE AO ACCORDING TO WHICH THE ASSESSEE HA D DEPOSITED RS.14,14,250/ - IN HIS SAVING BANK A/C NO.007010100141574 WITH AXIS BANK LIMITED AND HE WAS FURTHER FOUND TO HAVE DEPOSITED RS.4,00,000/ - IN THE SAME ACCOUNT AS PER CI B INFORMATION. IN RESPONSE THERETO THE ASSESSEE SUBMITTED THAT HE HAD WITHDRAWN CASH OF RS.3,00,000/ - O N 04.04.2007 WHICH WAS AGAIN RE - DEPOSITED ON 27.04.2007 AND 28.04.2007. REGARDING THE BALANCE AMOUNT IT WAS SUBMITTED THAT HE HAD RECEIVED THE AMOUNT FROM HIS MOTHER, MRS. INDIRA R.AJWANI WHO IN TURN RECEIVED THE SAID AMOUNT FROM HER DAUGHTER MRS. SANGEET A RAMANI FOR THE MEDICAL TREATMENT OF HER HUSBAND I.E FATHER OF THE ASSESSEE. AFFIDAVIT OF MRS. INDIRA R. AJWANI AND LETTER OF MRS. SANGITA RAMANI WERE RELIED UPON IN SUPPORT OF THE SAID CLAIM. HOWEVER THE AO DID NOT ACCEPT THE SAID EXPLANATION AS THE DE TAILS O F MODE OF PAYMENT BY THE SISTER TO THE MOTHER OF THE ASSESSEE WERE NOT PROVIDED. HE WAS FURTHER OF THE VIEW THAT THE MONEY AS PER THE LETTER DATED 13.12.2010 WAS GIVEN FOR THE TREATMENT OF THE FATHER WHO WAS SUFFERING FROM VERTEBRAL CANCER AND WHY THE SAME WAS DIVERTED TO M/S NETWORTH STOCK BROKING, BONANZA PORTFOLIO LTD. W AS QUESTIONED BY HIM. HE FURTHER NOTED THAT AS PER THE DEATH CERTIFICATE THE FATHER HAD EXPIRED I N NOV. 2006. THE CASH WAS FOUND TO HAVE BEEN DEPOSITED IN 2007 - 08 F.Y. AFTER A GA P OF ONE YEAR. IN VIEW OF THAT ACCEPTING THE 3 I.T.A .NO. - 885 /DEL/201 3 WITHDRAWAL OF RS.3,00,000/ - AS EXPLAINED ADDITION OF RS.11,14,250/ - (RS.14,14,250/ - - RS.3,00,000/ - ) WAS MADE BY HIM. 3. AGGRIEVED BY THIS THE ASSESSEE CAME IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4 . BEFORE THE CIT(A) THE ASSESSEE AS PER PAGES 2 TO 5 OF THE IMPUGNED ORDER CONTENDED THAT HIS FAMILY CONSISTED OF HIMSELF, HIS WIFE AND 11 YEAR OLD CHILD. AT THE RELEVANT POINT OF TIME HIS MOTHER WAS A RETIRED CENTRAL GOVT. EMPLOYEE WHO HAD RETIRED FROM CENTRAL PROVIDENT COMMISSION AS ASSISTANT PROVIDENT FUND COMMISSIONER (COPY OF PAN CARD, BANK ACCOUNT ETC WERE FILED). IT WAS ALSO CLAIMED THAT HIS LATE FATHER WAS A CENTRAL GOVT. EMPLOYEE AND RETIRED AS A DIRECTOR OF CENTRAL ELECTRIC AUTHORITY, SEWA BHA WAN, R.K.PURAM, NEW DELHI (COPY OF HIS ELECTION CARD WITH RELEVANT DETAILS WERE FILED). AS PER PARA 7 OF HIS WRITTEN SUBMISSIONS REPRODUCED IN THE IMPUGNED ORDER IT WAS SUBMITTED THAT THE FATHER HAD BEEN SUFFERING FROM HEALTH PROBLEMS AS A RESULT OF WHICH HE HAD BEEN ADMITTED IN VARIOUS HOSPITALS LIKE ROCKLAND HOSPITAL, SI TARAM BHART I A HOSPITAL & GANGA RAM HOSPITAL. IT WAS SUBMITTED THAT UNFORTUNATELY DESPITE TH AT THE FATHER DID NOT SURVIVE AND EXPIRED ON 24.10.20 106. AS PER PARA 8 OF THE LETTER WRITTEN SUBMISSION EXTRACTED IN THE IMPUGNED ORDER IT W AS CLAIMED THAT HIS ONLY SISTER RESIDING IN USA FOR THE LAST 16 YEARS HAD VISITED INDIA DURING JULY 2010 TO SEE H ER FATHER SUFFERING FROM VERTEBRAL CANCER AND SHE ALSO PROVIDED FINANCIAL ASSISTANCE TO THE MOTHER FOR THE MEDICAL TREATMENT OF THE FATHER (SUPPORTED BY WAY OF COPY OF STATEMENT OF SALARY OF MR. VIPIN RAMANI (HUSBAND OF THE ASSESSEE S SISTER), BROTHER - IN - LAW OF THE AS S ESSEE). AS PER PARA 9 OF THE WRITTEN SUBMISSION IT IS SEEN IT WAS CLAIME D THAT HIS MOTHER AFTER THE DEMISE OF HIS FATHER TOTALLY BROKE DOWN AND GAVE THE MONEY IN CASH AND IN INSTALLMENTS TO T HE ASSESSEE FROM THE MONEY SHE HAD SAVED AND KEPT FOR THE MEDICAL TREATMENT OF HER HUSBAND(THE ASSESSE E S FATHER). A S TO WHEN MONEY WAS RECEIVED 4 I.T.A .NO. - 885 /DEL/201 3 FROM THE MOTHER IT WAS STATED THAT IT WAS DEPOSITED IN HIS BANK ACCOUNT (IN SUPPORT OF THE SAID CLAIM, COPY OF THE AFFIDAVIT OF THE MOTH E R ON STAMP PAPER DULY NOTARIZED ALONGWITH THE ASSESSEE S AFFIDAVITS ON STAMP PAPER ALSO DULY NOTARIZED WERE FILED) . A PERUSAL OF PARAS 5 & 6 OF THE WRITTEN SUBMISSION SHOWS THAT THE ASSESSEE SUBMITTED THAT ALL THESE FACTS WERE AVAILABLE BEFORE THE AO AND WERE ALSO FILED THAT HE WAS SU RPRISED TO FIND THAT THEY WERE NOT DISCUSSED IN THE ASSESSMENT ORDER. FOR READY - REFERENCE, WE REPRODUCE PARA 5 & 6 FROM PAGE 2 & 3 OF THE WRITTEN SUBMISSIONS DATED 10.12.2012 OF THE ASSESSEE BEFORE THE CIT(A): - 5. INITIALLY I RECEIVED A NOTICE DATED 05.08.2010 UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 FOR ATTENDING THE OFFICE OF INCOME TAX OFFICER, S H RI HARI OM, WARD NO.46(1), MAYUR BHAWAN , NEW DELHI ON 12.08.2010 AT 3.00 PM. I HAD PERSONALLY VISITED THE OFFICE, BUT THE AFORESAID OFFICER WAS ON LEAVE ON THAT DAY. I AGAIN GOT SECOND NOTICE ON SAME SUBJECT AND I AGAIN VISITED THE OFFICE AND I CAME TO KNOW THAT THE SAME INCOME TAX OFFICER HA D GONE FOR SOME TRAINING. THIRD TIME AGAIN I RECEIVED THE NOTICE AND THEN I MET SHRI HARI OM FOR FIRST TIME IN DECEMBER, 2010. HE SAID THAT DEPARTMENT HAD RECEIVED SOME INFORMATION THROUGH A.I.R FOR MY SAVING BANK ACCOUNT AT AXIS BANK, STATESMAN HOUSE, NE W DELHI. HE DIRECTED ME TO WRITE THE REPLY FOR THE NOTICE BY GIVING THE EXACT DETAILS OF ACTUAL TRANSACTIONS THAT TOOK PLACE. IN THIS RESPONSE, I REPLIED TO THE NOTICE VIDE MY LETTER(S) DATED 7.12.2010, 14.12.2010, 19.12.2010 AND 27.12.2010 RESPECTIVELY GIVING ALL THE FACT(S) & INFORMATION(S) AS REQUIRED BY THE INCOME TAX OFFICER TO THE SATISFACTION OF THE INCOME TAX OFFICER. (COPIES OF THE AFORESAID LETTERS AND DEPARTMENT S NOTIFICATION W.R.T A.I.R DATED 08.09.2010 ARE ENCLOSED AT ANNEXURE NO.4 FOR YOUR REFERENCE PLEASE). 6. ALL OF A SUDDEN ON 30.12.2010, I WAS CALLED BY THE SAID INCOME TAX OFFICER TO HIS OFFICE AND HE GAVE ME THE ASSESSMENT ORDER IN THIS REGARD. I WAS SHOCKED TO SEE THAT CONTENTS OF THE ASSESSMENT ORDER. (COPY OF THE ASSESSMENT ORDER IS ENCLOSED AT ANNEXURE NO - 5 FOR YOUR REFERENCE PLEASE). ON HEARING THE CONTENTS OF THE ASSESSMENT ORDER, MY MOTHER SUFFERED A HEART PROBLEM - PSVT FOR WHICH SHE WAS TREATED IN HOSPITAL IN JANUARY 2011 . (COPY OFF THE DISCHARGED SUMMARY & REPORTS OF HOSPITAL ARE ENCLOSED AS ANNEXURE NO.6 FOR YOUR REFERENCE PLEASE). ( E MPHASIS BY THE BENCH) 4.1. CONSIDERING THE SAME, THE CIT(A) CAME TO THE FOLLOWING CONCLUSION: - 4. I HAVE PERUSED THE ASSESSMENT ORDER, GROUNDS OF APPEALS, WRITTEN SUBMISSION A N D DISCUSSED THE MATTER WITH THE AR AND THE APPELLANT VERY CAREFULLY. THE APPELLANT IS WORKING AS MANAGER (FINANCE) IN ANSAL PROPERTIES LTD. IN CONNAUGHT PLACE. HE HAD REPRESENTED THE CASE BEFORE AO ALSO. THE APPELLANT S 5 I.T.A .NO. - 885 /DEL/201 3 FATHER WAS SUFFERING FROM VERTEB RAL CANCER AND HE DIES ON 24.10.2006. THE APPELLANT S SISTER AND BROTHER - IN - LAW ARE IN USA FOR LAST 15 YEARS OR MORE AND THEY HAVE GIVEN FINANCIAL SUPPORT TO THE MOTHER OF THE APPELLANT AND THE APPELLANT FOR TREATMENT OF VERTEBRAL CANCER OF FATHER. THE S AME CONFIRMATION WAS ALSO GIVEN TO AO BUT AO DID NOT CONSIDER THE PLEA OF THE APPELLANT . AFTER THE DEATH OF THE FATHER, THE MOTHER WENT TO USA FOR 2 MONTHS TO CALM DOWN HER SORROWS AND GOT SOME DOLLAR FROM SISTER AND APPELLANT. SO THE APPELLANT EXCHANGED THOSE MONEY IN THE MONEY CHANGER BUT COULD NOT KEEP THE RECEIPT OF THE SAME AND THE MONEY, HE UTILIZED IN STOCK MARKET BUT LOST AGAIN. THOUGH THERE ARE CIRCUMSTANTIAL EVIDENCES, THERE IS NO CONCRETE EVIDENCE OF EN - CASHING DOLLAR TO RUPEES AND DEPOSITING THE AMOUNT IN THE ACCOUNTS. THE AO S OTHER ALLEGATION IS THAT IT SPREAD OVER IN TIME I.E. IN NEXT FINANCIAL YEAR. HOWEVER, FROM THE PRACTICAL POINT OF VIEW ONE COULD CONSIDER THAT WHEN DOLLAR VALUE IS APPRECIATING IN THE INTERNATIONAL MARKET, ONE CAN KE EP DOLLAR AT HOME AND EN - CASH WHENEVER IS NECESSARY TO AUGMENT HIS LIVELIHOOD. CONSIDERING EVERY ASPECT OF TRANSFER OF MONEY AND GENUINENESS, CREDITWORTHINESS AND AVAILABILITY OF FUND WITH SISTER AND BROTHER - IN - LAW, THE AMOUNT INVESTED OF RS.11,14,250/ - S TANDS EXPLAINED. THEREFORE, THE ADDITION MADE BY THE AO OF RS.11,14,250/ - IS DELETED. THE AO HAD GIVEN RS.3,00,000/ - CONCESSION IN HIS ORDER TO THE APPELLANT. THE ASSESSEE WITHDRAWN CASH OF RS.3,00,000/ - ON 04.04.2007 WHICH HAS BEEN RE - DEPOSITED ON 27.0 4.2007 AND 28.04.2007. SO CONSIDERING THE CIRCUMSTANTIAL EVIDENCES AND FACTS OF THE CASE, I DEEM IT PROPER TO DELETE THE ADDITION OF RS.11,14,250/ - MADE BY THE AO. 5. IN THE RESULT, THE APPEAL IS ALLOWED. ( E MPHASIS BY THE BENCH) 4.2. T HE LD. SR. DR PLACES RELIANCE UPON THE ASSESSMENT ORDER. IT IS SEEN THAT THE FINDINGS AVAILABLE ON RECORD HAVE NOT BEEN REBUTTED NOR DISPUTED. THE ASSESSEE PRESENT IN PERSON ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE THE CIT(A) AND REITERATED THAT ALL TH ESE FACTS WERE PLEASED BEFORE THE AO ALSO . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION THEREOF, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE CIT(A) DESERVES TO BE UPHELD AS EMINENTLY THE EVIDENCE TAKEN INTO CONSIDERATION BY THE CIT(A) HAS BEEN RELIED UPON BY THE ASSESSEE EVEN BEFORE THE AO. THIS FACT IS EVIDENT FROM THE FACT THAT NO GROUND ASSAILING THE IMPUGNED ORDER ON THE GROUND THAT FRESH EVIDENCE HAVE BEEN SUBMITTED HAS BEEN RAISED BY THE REVENUE. ACCORDINGLY BEING SATISFIED BY THE REASONING AND 6 I.T.A .NO. - 885 /DEL/201 3 FIN DING, THE DEPARTMENTAL APPEAL I S DISMISSED. THE SAID ORDER WAS PRO NOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 0 T H OF OCTOBER 2014 . S D / - S D / - ( B.C.MEENA ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 0 /10 /2014 *AMIT KUMAR/SUBODH KUMAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI