Ms. Archna Gupta, Ghaziabad V. ITO, Ghaziabad

ITA 926/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0585 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR MAHAR
• Keywords: Unexplained investment; Salary income; Opportunity of being heard; Revised return; TDS
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A NO.926/DEL/2016 ASSESSMENT YEAR: 2012-13 ARCHANA GUPTA, B-128, RAMPURI, SURYA NAGAR, GHAZIABAD. VS. ITO, WARD-1(1), GHAZIABAD. TAN/PAN: AXUPG 5614M (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI P.C. YADAV, ADV. RESPONDENT BY: SHRI MANOJ KUMAR MAHAR, SR.D.R. DATE OF HEARING: 06 08 2019 DATE OF PRONOUNCEMENT: 17 09 2019 O R D E R PER AMIT SHUKLA, JM:- THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 23.12.2015 PASSED BY COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEAR 2012-13. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LD. CIT (APPEAL) IS BAD BOTH IN THE E YES OF LAW AND ON FACTS. I.T.A. NO.296/DEL/2016 2 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITIONS MADE BY THE AO WITHOUT APP RECIATING THE DOCUMENTARY EVIDENCES ON RECORD. 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 32,00,000/-,AS INVES TMENT OUT OF UNDISCLOSED SOURCES, DESPITE THE FACT THAT THE AMOU NT REPRESENTS WITHDRAWAL / ADVANCES FROM THE PROPRIETARY CONCERN OF THE HUSBAND OF THE ASSESSEE AND WHICH WERE DULY RECORDE D IN THE AUDITED BOOKS OF ACCOUNTS OF PROPRIETARY CONCERN OF THE HUSBAND OF THE ASSESSEE. 4. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 24,21,235/-(I.E. TOT AL OF THE CREDIT SIDE OF BANK A/C WITH ICICI BANK), 'DESPITE THE FACT THA T THE AMOUNT REPRESENTS UNSECURED LOANS / REIMBURSEMENTS ETC. WH ICH WERE DULY EXPLAINED WITH CONFIRMATIONS. 5. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 12,50,00/- DESPITE T HE FACT THAT THE AMOUNT REPRESENTS UNSECURED LOANS WHICH WERE DULY E XPLAINED WITH CONFIRMATIONS AND REPLY FILED BY THE PARTY IN RESPONSE TO NOTICE U/S 133(6). 6. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILLEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES O F CONTEMPORARY JURISPRUDENCE. 2. THE FACTS IN BRIEF QUA THE ISSUE INVOLVED ARE TH AT ASSESSEE IS AN INDIVIDUAL WHO HAS FILED HER RETURN OF INCOME ON 09.08.2004 SHOWING TOTAL INCOME OF RS.7,66,400/- FROM SALARY INCOME RECEIVED FROM M/S. NORTH EAST LOGISTI CS, WHICH IS PROPRIETARY CONCERN OF HER HUSBAND, SHRI NAVEEN GUPTA. LATER ON, A REVISED RETURN WAS FILED ON 07.01.2014 AT A TOTAL I.T.A. NO.296/DEL/2016 3 INCOME OF RS.7,83,720/- SHOWING INTEREST INCOME OF RS.17,319/-. AN AIR INFORMATION WAS RECEIVED WHEREI N IT WAS INFORMED THAT ASSESSEE HAS MADE INVESTMENT IN PURCH ASE OF IMMOVABLE PROPERTIES AMOUNTING TO RS.56,81,000/- ON 20.05.2011 AND RS.52,60,000/- ON 25.01.2012. SINCE, THESE TRANSACTIONS WERE NOT SHOWN BY THE ASSESSEE IN HER STATEMENT OF AFFAIRS, THEREFORE, ASSESSING OFFICER REQUIRED T HE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT. IN RESPONSE THE A SSESSEE HAD SUBMITTED THAT DURING THE YEAR UNDER CONSIDERAT ION, ASSESSEE GOT REGISTERED TWO PROPERTIES IN HER NAME, DETAILS OF WHICH WERE AS UNDER: (I) B-29, CHANDER NAGAR, GHAZIABAD - THIS PROPERTY WAS PURCHASED ON 25.01.2012 FOR RS.44,07,642/- (STAMP VALUE RS. 5 2,60,000/-) INVESTMENT CLAIMED TO HAVE BEEN MADE OUT OF THE FUN DS RECEIVED FROM HUSBAND. (II) A-241/24 SURYA NAGAR, GHAZIABAD - THIS PROPERT Y WAS PURCHASED ON 20.05.2011 IN THE NAME OF THREE INDIVI DUALS JOINTLY FOR RS. 46,00,000/- (STAMP VALUE RS. 56,81,000/-). INVE STMENT CLAIMED TO HAVE BEEN MADE 1/3 RD BY SH. ATUL KUMAR GUPTA, 1/3 RD BY SH. NAVEEN GUPTA (HUSBAND OF THE ASSESSEE) AND 1/3 RD BY THE ASSESSEE HERSELF. ASSESSEE VIDE REPLY DATED 04.03.2014, FILED PROPERT Y-WISE DETAILS OF INVESTMENT AS WELL AS SOURCE THEREOF AND IT WAS EXPLAINED THAT FOR THE PURCHASE OF PROPERTY AT B-29 , CHANDER NAGAR, GHAZIABAD, TOTAL INVESTMENT MADE WAS RS.47,6 6,142/- OUT OF WHICH SUM OF RS.32 LACS WAS FROM M/S. NORTH EAST LOGISTICS, A PROPRIETARY CONCERN OF HER HUSBAND; AN D FROM ICICI BANK ACCOUNT SUM OF RS.12,07,642/-; AND CASH I.T.A. NO.296/DEL/2016 4 RS.3,58,500/-. IN SUPPORT, COPY OF UNSECURED LOAN A CCOUNT AS APPEARING IN THE NAME OF ASSESSEE IN THE BOOKS OF M /S. NORTH EAST LOGISTICS WAS FURNISHED. FURTHER, ASSESSEE HAD SHOWN SHARE OF INVESTMENT OF RS.17,50,000/- IN PURCHASE O F PROPERTY AT A-241/24 SURYA NAGAR, GHAZIABAD FOR WHICH IT WAS EXPLAINED THAT SUM OF RS.12.50 LAC WAS FROM M/S. OM KAR TRANSPORT CORPORATION AND FROM ICICI BANK ACCOUNT F OR RS.5,00,000/-. HOWEVER, THE ASSESSING OFFICER OBSER VED THAT ASSESSEE COULD NOT FILE ANY CONFIRMATION REGARDING LOAN FROM THE SAID PARTY. LATER ON, ASSESSEE HAD FURNISHED TH E CONFIRMATION OF LOAN OF RS.12.50 LAC FROM M/S. OMKA R TRANSPORT CORP. FOR THE AMOUNT EXPLAINED FROM ICICI BANK, IT WAS STATED THAT LOAN WAS TAKEN FROM THREE PARTIES, SUM OF RS.8,25,413/- FROM M/S. GEE BEE ENTERPRISES; LOAN O F RS.4,08,952/- FROM M/S. OM ENTERPRISES; AND LOAN OF RS.4,00,000/- FROM M/S. SUNSHINE ENTERPRISES. BESID ES, COPY OF AUDITORS REPORT AND AUDITED BALANCE-SHEET OF M/ S. NORTH EAST LOGISTICS WAS FURNISHED. HOWEVER, ASSESSING OF FICER NOTED THAT THE CONFIRMATIONS OF LOANS WHICH HAVE BE EN FURNISHED BY THE ASSESSEE WERE WITHOUT MENTIONING T HEIR ADDRESSES, ASSESSMENT PARTICULARS, PAN ETC. AND THE SE LOANS HAVE NOT BEEN DISCLOSED BY THE ASSESSEE IN HER EARL IER REPLIES. THEREAFTER, ASSESSING OFFICER PROCEEDED TO EXAMINE THE ADVANCES FROM M/S. NORTH EAST LOGISTICS AS ON 31.03 .2012 AND FOUND THAT M/S. NORTH EAST LOGISTICS HAS SHOWN TOTAL LOAN AND ADVANCE OF RS.35,93,533/-. OUT OF WHICH MA JOR ITEM OF RS.22,19,755/- RELATES TO ADVANCES IN ADVANCE TA X/TDS I.T.A. NO.296/DEL/2016 5 AND PETTY ADVANCE TO DIFFERENT PARTIES. THUS, SUCH LOAN ADVANCES SHOWN BY THE ASSESSEE FROM THE SAID CONCER N WAS FOUND NOT CORRECT. FURTHER, COPY OF CAPITAL ACCOUNT OF HER HUSBAND, SHRI NAVEEN GUPTA SHOWED TOTAL DRAWING OF RS.30,17,258/- OUT OF WHICH PAYMENT OF RS.17,50,000 /- WAS MADE TO THE ASSESSEE DURING THE YEAR UNDER CONSIDER ATION, BESIDES VARIOUS DRAWINGS ON ACCOUNT OF HOUSE HOLD E XPENSES. THUS, HE CONCLUDED THAT SOURCE OF LOAN/ADVANCES OF RS.33,20,000/- FROM M/S. NORTH EAST LOGISTICS IS NO T VERIFIABLE. AO HAS ALSO HIGHLIGHTED VARIOUS INFIRMI TIES AND CONTRADICTION IN THE SAID STAND OF THE ASSESSEE WHI CH HAS BEEN DISCUSSED IN DETAIL AND HAS BEEN REPRODUCED AT PAGES 3 AND 4 OF THE ASSESSMENT ORDER. ACCORDINGLY, HE PROC EEDED TO MAKE ADDITION OF RS.32 LACS ON ACCOUNT OF UNEXPLAIN ED LOAN FROM M/S. NORTH EAST LOGISTICS AND ADDED THE SAME T O THE INCOME OF THE ASSESSEE U/S.69. 3. IN SO FAR AS CREDIT IN THE BANK ACCOUNT WITH ICI CI BANK OF RS.24,21,235/- FOR WHICH THE ASSESSEE HAD STATED THAT THESE ARE OUT OF LOAN FROM FOUR PARTIES AGAIN, AO F OUND THEY WERE CONTRARY CONFIRMATION OF LOAN ACCOUNT AND IN T HE FIRST CONFIRMATION THERE WAS NO ADDRESS MENTIONED AND IN THE SECOND CONFIRMATION CERTAIN ADDRESSES AND PAN WERE FURNISHED, BUT THERE WERE CONTRADICTIONS IN THE CON FIRMATION AND IN THE ENTRIES OF THE AMOUNT CREDITED. EVEN THE PAN MENTIONED BELONGS TO SOME OTHER PERSON AND ITR ALSO DID NOT REVEALED ANY LOAN AND ADVANCE. ACCORDINGLY, HE MADE THE ADDITION OF RS.24,21,235/- TAKEN BY WAY OF LOAN FRO M FOUR I.T.A. NO.296/DEL/2016 6 PARTIES. LASTLY, HE HAS ALSO ADDED THE AMOUNT OF AD VANCES FROM M/S. OMKAR TRANSPORT CORPORATION OF RS.12,50,0 00/- AFTER GIVING DETAILED REASONING. 4. LD. CIT (A) HAS CONFIRMED ALL THE ADDITIONS IN T HE FOLLOWING MANNER: ADDITION OF RS.32 LACS. 5 HAVING PERUSED THE PURCHASE DEED OF THE PROPERT Y AND COPIES OF BANK ACCOUNTS OF THE APPELLANT AND HER HUSBAND AS W ELL AS THE CONFIRMATIONS OF CREDITORS AS WELL AS CONTENTIONS M ADE BEFORE THE A.O., I FIND THE APPELLANT HAS BEEN CHARGING HER STORY AT EVERY MOMENT. INITIALLY SHE DID NOT DISCLOSE HER PROPERTY TRANSAC TIONS, THE BANK ACCOUNTS AND THE RECEIPT OF SO CALLED LOANS ON SPEC IFIC QUERIES IN THIS REGARD BY THE AO. IN THE REVISED RETURN OF INCOME A LSO, THERE WAS NO SUCH DISCLOSURE. THE A.O. HAD SPECIFICALLY RAISED Q UERIES RELEVANT TO THESE ISSUES, BUT THE ASSESSEE ALL ALONG KEPT ON DE NYING HAVING PURCHASED ANY PROPERTY OR RECEIVING/ADVANCING ANY L OANS. WHEN THE A.O. CONFRONTED THE ASSESSEE WITH AIR INFORMATION I N HIS POSSESSION, REGARDING INVESTMENTS IN PROPERTY, THE ASSESSEE TRI ED TO EXPLAIN THE SOURCE OF INVESTMENT OUT OF LOANS FROM HER HUSBAND S CONCERN WHERE SHE IS AN EMPLOYEE AND ALSO FROM HER OWN SOURCES AN D LOANS. THE ASSESSEE NEVER CAME OUT CLEAN WITH HER AFFAIRS BEFO RE THE AO IN HER EVER CHANGING STORY. THE BANK ACCOUNTS OF THE ASSES SEE SHOWED DEPOSITS AT FAR OFF PLACES WHICH CANNOT BE EXPLAINE D OUT OF PAST SAVINGS. THE LOANS ADVANCED BY VARIOUS PERSONS WERE NOT SATISFACTORILY CONFIRMED IN THE SENSE THAT ONUS CAS T U/S 68 WAS NOT DISCHARGED TO PROVE THE IDENTITY OF CREDITORS, THEI R CREDITWORTHINESS AND THE GENUINENESS OF TRANSACTIONS. THE PAYMENTS SHOWN IN THE SALE DEED ARE THROUGH RTG S OF ICICI BANK OF HUSBAND OF THE ASSESSEE TO PNB LOAN A/C OF SELLER. THE APPELLANT HAS NOT GIVEN ANY DETAILS AS TO WHOSE BAN K ACCOUNT HAS I.T.A. NO.296/DEL/2016 7 BEEN CREDITED BY THESE RTGS. SECONDLY IN THE BANK A /C OF THE ASSESSEE THE RTGS NUMBERS ARE NOT MENTIONED BUT ONL Y CHEQUE NUMBERS ARE MENTIONED. THE APPELLANT HAS FAILED TO PROVE HOW THE OUTGOING FROM ACCOUNT OF ASSESSEES HUSBAND ARE REL ATED TO HER PURCHASE OF PROPERTY. THE CLAIM OF EMPLOYEE ADVANCE RECEIVED FROM HUSBANDS CONCERN WAS NEVER MADE BEFORE THE A.O. DE SPITE SO MANY OPPORTUNITIES BY HIM. SECONDLY FROM THE SCHEDULE 4 OF BALANCE SHEET IT IS NOT ASCERTAINABLE THAT THIS ADVANCE IS TO THE AS SESSEE. IT COULD BE ADVANCE TO ANY OF EMPLOYEES. THE APPELLANT IS THUS TRYING TO TAKE ADVANTAGE OF THIS ENTRY IN SCHEDULE 4 OF BALANCE SH EET AND THAT SHE IS AN EMPLOYEE. SUCH CONTENTION NOT HAVING BEEN MADE B EFORE THE A.O. IS THUS NOTHING BUT AN UNSUBSTANTIATED AFTERTHOUGHT RA ISED FOR THE FIRST TIME DURING APPELLATE PROCEEDINGS. THE SAME IS NOT TENABLE. THUS THE ASSESSEE HAS FAILED TO PROVE SATISFACTORILY THAT SH E RECEIVED IMPUGNED LOAN AND SALARY ADVANCE FROM HER HUSBAND. ACTION OF AO IN TREATING THIS UNEXPLAINED INVESTMENT IS THEREFORE CONFIRMED. THE GROUND OF APPEAL 2 IS REJECTED. ADDITION OF RS.24,21,235/- 5. HAVING CONSIDERED FACTS AND CIRCUMSTANCES OF THE CASE AND RIVAL CONTENTIONS, I FIND THAT THE LESSEE HAS BEEN CHANGI NG HER STORY AT EVERY MOMENT. INITIALLY SHE DENIED HAVING MADE ANY INVESTMENTS IN PROPERTY OR HAVING RECEIVED OR ADVANCED LOANS. WHEN CONFRONTED WITH THE FACT THAT SHE HAD MADE INVESTMENTS IN PROPERTY SHE CAME OUT WITH EXPLANATION THAT SHE HAD RECEIVED LOANS FROM THE SA ID CONCERNS, THE DEPOSITS OF RS. 24,21,235/- IN ICICI BANK INITIALLY WAS EXPLAINED OUT OF LOANS. NOW CASH DEPOSITS OF RS.6,60,000/- IS BEI NG CLAIMED AS OUT OF SAVINGS. AS DISCUSSED IN DETAILS ABOVE THE AO HA S ELABORATELY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO PROVE T HE GENUINENESS OF THE CREDITS AS WELL AS THE GENUINENESS OF SOURCES I N HER HANDS FOR CASH DEPOSITS. THE A.O. HAS ALSO NOTED THAT THE DEP OSITS HAVE BEEN MADE AT FAR OFF PLACES. THEREFORE, THESE CASH DEPOS ITS AS WELL AS I.T.A. NO.296/DEL/2016 8 CHEQUE DEPOSITS HAVE NOT BEEN PROVED TO BE OUT OF E XPLAINED SOURCES. THE RELIANCE OF AO ON CASES CITED SUPRA IS WELL PLA CED IN FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF ABOVE DISCUSS ION AND DISCREPANCIES BROUGHT OUT BY THE A.O. IN ASSESSMENT ORDER AS WELL AS APPELLATE PROCEEDINGS IN EVER CHARGING VERSION OF T HE A.O., I AM OF THE CONSIDERED OPINION THAT THE APPELLANT HAS FAILED TO PROVE SATISFACTORILY THAT:- 1. THE CREDITS FROM M/S NORTH EAST LOGISTIC, M/S GE E BEE ENTERPRISES, M/S OM ENTERPRISES & M/S SUNSHINE ENTERPRISES ARE G ENUINE. 3. THE SOURCE OF CASH AND OTHER DEPOSITS IN HER ACC OUNT IS OUT OF EXPLAINED SOURCE. THEREFORE, THE ADDITIONS MADE BY THE A.O. AS CONTES TED IN GROUND OF APPEAL NO. 3 ARE CONFIRMED. THE GROUND OF APPEAL IS REJECTED. ADDITION OF RS.12,50,000/- 4.4.44 HAVING CONSIDERED THE FACTS AND CIRCUMSTANCE S OF THE CASE AND RIVAL CONTENTIONS, I FIND THAT THE ASSESSEE HAS BEEN CHANGING HER STORY AT EVERY MOMENT. INITIALLY SHE DENIED HAVING MADE ANY INVESTMENTS IN PROPERTY OR HAVING RECEIVED OR ADVAN CED LOANS. WHEN CONFRONTED WITH THE FACT THAT SHE HAD MADE INVESTME NTS IN PROPERTY SHE CAME OUT WITH EXPLANATION THAT SHE HAD RECEIVED LOANS FROM THE SAID CONCERN AND THAT PART INVESTMENT IS OUT OF HER KNOW SOURCES. AS DISCUSSED IN DETAILS ABOVE THE ASSESSING OFFICER HA S ELABORATELY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO PROVE T HE GENUINENESS OF THE CREDITS. THE RELIANCE OF ASSESSING OFFICER ON C ASES CITED SUPRA IN GROUND OF APPEAL NO.3 IS WELL PLACED IN FACTS AND C IRCUMSTANCES OF THE CASE AND IS RELEVANT FOR THIS GROUND AS WELL. IN VI EW OF ABOVE DISCUSSION AND DISCREPANCIES BROUGHT OUT BY THE ASS ESSING OFFICER IN ASSESSMENT ORDER AS WELL AS APPELLATE PROCEEDINGS I N EVER CHARGING VERSION OF THE ASSESSING OFFICER I AM OF THE CONSID ERED OPINION THAT THE I.T.A. NO.296/DEL/2016 9 APPELLANT HAS FAILED TO PROVE SATISFACTORILY THAT T HE CREDIT OF RS.12.50 LACS FROM M/S. OMKAR TRANSPORT IS GENUINE. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER AS CONTESTED IN GROUND OF APPEAL NO.4 IS CONFIRMED. THE GROUND OF A PPEAL IS REJECTED. 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. PRA KASH YADAV SUBMITTED THAT ASSESSEE HAS EXPLAINED THE SOU RCE IN THE FOLLOWING MANNER: FIRSTLY; ASSESSEE HAS PURCHASED AN IMMOVABLE PROPERT Y FOR RS.44,07,642/- LOCATED AT B-29, CHANDER NAGAR, GHAZI ABAD. OUT OF THE ABOVE MENTIONED AMOUNT, RS. 12,07,642 WAS P AID PARTLY BY THE ASSESSEE FROM HER BANK A/C AND A SUM OF RS. 32.00 LACS WAS PAID THROUGH M/S NORTH EAST LOGISTICS I .E. THE PROPRIETARY CONCERN OF HER HUSBAND. OUT OF THE ABOVE SAID AMOUNT OF RS. 32.00 LACS, RS. 25,00,000/- (17.50 + 7.50) HAS BEEN REFLECTED AS DR AWINGS IN THE BOOKS OF NORTH EAST LOGISTICS I.E. THE PROPRIETARY CONCERN OF HER HUSBAND. THE COPY OF DRAWINGS ACCOUNT WAS ENCLOS ED IN THE PAPER BOOK. THE ASSESSE IS ALSO AN EMPLOYEE OF THE NORTH EAST LOGI STICS AND HAS RECEIVED EMPLOYEE ADVANCE AMOUNTING TO RS. 7,00 ,000 /- FROM THE CONCERN. THE AMOUNT IS DULY REFLECTED IN SCH EDULE 4 UNDER HEAD LOANS AND ADVANCES OF THE FINANCIAL STAT EMENTS OF THE PROPRIETARY CONCERN. THUS THE SOURCE OF PAYMENT OF 32.00 LACS WAS FULLY EX PLAINED WITH DOCUMENTARY EVIDENCES. 6. IN SUPPORT, HE HAS ALSO DREW OUR ATTENTION TO TH E COPY OF BALANCE SHEET OF NORTH EAST LOGISTICS PLACED IN THE PAPER BOOK I.T.A. NO.296/DEL/2016 10 AT PAGES 35-40 AND ALSO EMPLOYEE ADVANCE SCHEDULE O F RS.7,08,162/- WHICH INCLUDED ADVANCE TO THE ASSESSE E AMOUNTING TO RS.7 LAC WHICH IS APPEARING AT SCHEDUL E-4 OF THE BALANCE SHEET. HE FURTHER POINTED OUT THAT BOTH THE AUTHORITIES HAVE OVERLOOKED THE BALANCE ADVANCE OF RS.25 LACS REFLECTED IN THE DRAWING ACCOUNT IN THE BOOKS OF M/ S. NORTH EAST LOGISTICS. FURTHER, THE TRANSACTIONS OF RS.17, 50,000/- AND RS.7,50,000/- WERE DULY REFLECTED IN THE DRAWIN GS ACCOUNT WHICH TOO HAS BEEN IGNORED BY THE ASSESSING OFFICER. 7. REGARDING ADDITION OF RS.24,21,235/-, HE SUBMITT ED THAT CREDITS MAINLY CONSISTS OF UNSECURED LOAN FROM THRE E PARTIES, REIMBURSEMENTS FROM M/S. NORTH EAST LOGISTICS AND C ASH DEPOSITS OUT OF WITHDRAWALS. THE SUMMARY OF CREDITS WAS SUMMARIZED AS UNDER: S NO. AMOUNT (RS.) DESCRIPTION 1 1,20,000/ - REIMBURSEMENTS FROM M/S NORTH EAST LOGISTIC 2 6,870/ - INTEREST PROVIDED BY THE BANK 3 4,08,952/ - LOAN FROM M/S OM ENTERPRISES 4 4,00,000/ - LOAN FROM M/S SUNSHINE ENTERPRISES 5 8,25,4.13./ - LOAN FROM M/S GEE BEE ENTERPRISES 6 6,60,000/ - CASH DEPOSITS OUT OF WITHDRAWALS AND SMALL SAVINGS OF THE ASSESSEE 24,21,235/- I.T.A. NO.296/DEL/2016 11 8. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NARRATED COMPLETE DETAILS OF INFORM ATION AS WELL AS CONFIRMATION ALONG WITH ADDRESS AND NAME OF THE PARTIES ALONG WITH PAN AND BEFORE THE LD. CIT (A) T HE DISCREPANCY POINTED OUT BY THE ASSESSING OFFICER WA S ALREADY EXPLAINED WITH COGENT EVIDENCES AND REASONS. 9. REGARDING ADDITION OF RS.12,50,000/- AS UNEXPLAI NED INVESTMENT IN THE PROPERTY, HIS SUBMISSIONS IN SUM AND SUBSTANCES WERE AS UNDER: THE ASSESSE HAS PURCHASED 1/3 SHARE IN IMMOVABLE PR OPERTY, ON 20.05.2011, LOCATED AT A-241/24 HIG, DUPLEX, SURY A NAGAR, GHAZIABAD. FOR RS.17,50,000/-. OUT OF THE ABOVEMENTIONED AMOUNT, RS. 5,00,000/- WAS PA ID BY THE ASSESSEE FROM HER BANK ACCOUNT AND THE BALANC E WAS PAID THROUGH UNSECURED LOAN FROM M/S OMKAR TRANSPORT CORPORATION AMOUNTING TO RS. 12,50,000/-. THE COPY OF CONFIRMATION OF THE SAID CONCERN AND ITS C URRENT ACCOUNT BANK STATEMENT WAS ENCLOSED. THE ASSESSE ESTABLISHED IDENTITY AND CREDITWORTHINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS BY PROVID ING RELEVANT BANK STATEMENTS, CONFIRMATIONS AND PAN. ALL THE AMOUNTS HAVE BEEN RECEIVED/PAID THROUGH THE BA NKING CHANNELS AND ARE BEING REFLECTED IN THE BANK STATEMEN T OF THE ASSESSEE. 10. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND LD. CIT (A) SUBMITTED THAT THE I.T.A. NO.296/DEL/2016 12 ASSESSEE AT ALL STAGE HAS CHANGED HER STAND EVEN TH EREAFTER NO PROPER EXPLANATION OR REASONS COULD BE GIVEN ON THE INFIRMITIES AND DISCREPANCIES POINTED OUT BY THE AS SESSING OFFICER. THE ASSESSING OFFICER HAS NOT ONLY GIVEN D ETAILED REASONING IN THE ASSESSMENT ORDER BUT HAS ALSO GIVE N PROPER REBUTTAL IN HIS REMAND REPORT TO THE SUBMISSION MAD E BY THE ASSESSEE WHICH HAS BEEN DULY INCORPORATED IN THE AS SESSMENT ORDER. HE THUS, STRONGLY RELIED UPON THE ORDER OF T HE ASSESSING OFFICER AND LD. CIT (A). 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL REFERRED TO BEFORE US. IN SO FAR A S FIRST ADDITION OF RS.32 LACS WHICH HAS BEEN ADDED AS UNEX PLAINED INVESTMENT IN THE PROPERTY, IT IS SEEN FROM THE ASS ESSMENT ORDER THAT, ASSESSEE FIRSTLY TRIED TO CONTEND THAT THE AMOUNT OF RS.32 LAC WAS RECEIVED AS A LOAN FROM M/S. NORTH EA ST LOGISTICS. THEREAFTER, IT WAS SUBMITTED THAT AMOUNT OF RS.25 LAC WAS GIVEN OUT OF DRAWINGS IN THE BOOKS OF M/S. NORTH EAST LOGISTICS WHICH IS A PROPRIETARY CONCERN OF HER HUS BAND AND THE COPY OF DRAWINGS ACCOUNT HAS BEEN FURNISHED BEF ORE US. BESIDES THIS, THE ASSESSEE HAS ALSO SUBMITTED THAT SHE WAS AN EMPLOYEE OF M/S. NORTH EAST LOGISTICS AND HAD RECEI VED AMOUNT OF RS.7 LAC AS ADVANCE. THESE FACTS WERE DUL Y EXPLAINED BEFORE THE LD. CIT (A) ALSO. HOWEVER, LD. CIT (A) HAS MAINLY GONE THROUGH THE FACT THAT ASSESSEE HAS CHAN GED HER STAND AND INITIALLY SHE HAS NOT DISCLOSED HER PROPE RTY TRANSACTIONS, BANK ACCOUNTS DESPITE SPECIFIC QUERIE S. THOUGH, I.T.A. NO.296/DEL/2016 13 ASSESSEE MAY NOT HAVE EXPLAINED THE THINGS PROPERLY , BUT IF DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF AND AGAIN BEFORE THE APPELLATE PROCEEDINGS, ASSESSEE WITH DOC UMENTARY EVIDENCES HAS FILED HER EXPLANATION WITH REGARD TO THE INVESTMENT OF RS.32 LAC THAT IT WAS OUT OF DRAWINGS IN THE BOOKS OF PROPRIETARY CONCERN OF HER HUSBAND, THEN A SSESSING OFFICER SHOULD HAVE INQUIRED FROM HER HUSBAND AS TO HOW THE DRAWINGS IN THE BOOKS HAVE BEEN UTILIZED. COPY OF L EDGER ACCOUNT OF DRAWING IN THE BOOKS OF M/S. NORTH EAST LOGISTICS CLEARLY SHOWS THAT HUGE WITHDRAWALS WERE MADE AND W HETHER THESE WITHDRAWALS WERE PURELY FOR HOUSE-HOLD EXPENS ES OR FOR THE PURCHASE OF THE PROPERTY SHOULD HAVE BEEN EXAMI NED ATLEAST. THERE IS A PRESUMPTION BY THE ASSESSING OF FICER THAT DRAWINGS ACCOUNT OF ASSESSEES HUSBAND TO THE EXTEN T OF RS.17,50,000/- IF IT IS CONSIDERED TO BE ADVANCE GI VEN TO THE ASSESSEE THEN INVESTMENTS MADE BY HER HUSBAND AT RS.17,50,000/- REMAIN UNEXPLAINED. IF THAT WAS HIS PRESUMPTION, THEN ASSESSING OFFICER SHOULD HAVE INQ UIRED OR ASKED FOR THE EXPLANATION FROM ASSESSEES HUSBAND A S TO HOW HE HAS MADE THE INVESTMENT AND HOW THE WITHDRAWALS FROM HIS CAPITAL ACCOUNT HAS BEEN UTILIZED. EVEN IN THE REMAND REPORT, HE HAS REITERATED THE SAME REASONING AND EX PLANATION WITHOUT VERIFYING WHAT HAPPENED IN THE CASE OF HER HUSBAND, SHRI NAVEEN GUPTA. MORE SO, WHEN THE SOURCES OF INC OME OF THE ASSESSEE IS MERELY A SALARY INCOME AND INVESTME NT HAVE BEEN MADE TO THE EXTENT OF RS.44 LACS IN THE PROPER TY AND THE SOURCE IS BEING EXPLAINED FROM WITHDRAWAL FROM HUSB ANDS I.T.A. NO.296/DEL/2016 14 PROPRIETARY CONCERN. IN SUCH A SITUATION IT WAS ALL THE MORE INCUMBENT THAT ASSESSING OFFICER SHOULD HAVE EXAMIN ED HER HUSBAND, MR. NAVEEN GUPTA TO EXPLAIN THE SOURCE AND HOW THE MONEY WAS UTILIZED WHICH WAS WITHDRAWN. EVEN TH E EMPLOYEE ADVANCE OF RS.7 LAC SHOULD HAVE BEEN CONFI RMED FROM MR. NAVEEN GUPTA WHO HAS SHOWN IT IN THE BALAN CE- SHEET THAT ASSESSEE WAS GIVEN EMPLOYEE ADVANCE OF R S.7 LAC. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR OPINION ARE THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHOULD EXAMINE THE SOU RCE AFTER CALLING MR. NAVEEN GUPTA AND SEEKING HIS EXPLANATIO NS WITH REGARD TO THE WITHDRAWALS AND ITS UTILIZATION AND W HETHER SUCH WITHDRAWALS IN ANY MANNER HAVE BEEN UTILIZED F OR THE PURCHASE OF THE PROPERTY. THUS, THIS ISSUE IS REMAN DED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AS FRESH. 12. IN SO FAR AS ADDITION OF RS.24,21,235/- IS CONC ERNED, THE ASSESSEE HAD SHOWN THAT THESE WERE CREDITS IN THE B ANK ACCOUNT WITH ICICI BANK AND THE SOURCE OF THESE CRE DITS WERE OUT OF LOAN TAKEN FROM THREE PARTIES OR REIMBURSEME NT FROM M/S. NORTH EAST LOGISTICS AND CASH DEPOSITS OUT OF WITHDRAWALS. THE ASSESSING OFFICER HAS POINTED OUT CERTAIN DISCREPANCIES AND DEFECTS IN THE CONFIRMATION OF TH E PARTIES WHO HAVE GIVEN THE LOAN, THAT IS, M/S. OM ENTERPRIS ES, M/S. SUNSHINE ENTERPRISES AND M/S. GEE BEE ENTERPRISES. FROM THE DOCUMENTS PLACED IN THE PAPER BOOK, IT IS SEEN THAT ASSESSEE HAS FILED CONFIRMED COPY OF LEDGER ACCOUNT ALONGWITH THE BANK ACCOUNT AND IN THE CASE OF M/S. OMKAR TRAN SPORT I.T.A. NO.296/DEL/2016 15 CORPORATION, WHICH REFLECTS AMOUNTS GIVEN TO THE AS SESSEE. IN THE CASE OF OTHER PARTIES, ONLY CONFIRMATIONS HAVE BEEN GIVEN. ASSESSING OFFICER HAS POINTED OUT DEFECTS IN THESE CONFIRMATIONS, AND ALSO NO BANK STATEMENTS HAVE STA TED TO HAVE BEEN FURNISHED. THESE INFIRMITIES HAVE BEEN ST ATED TO BE REMOVED, BUT NO FINDING HAS BEEN GIVEN ON THIS ISSU E THEREAFTER. WE ARE OF THE OPINION THAT ON THIS ISSU E ALSO MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE A SSESSING OFFICER AND ASSESSEE IS DIRECTED NOT ONLY TO FILE T HE BANK STATEMENT OF THESE PARTIES BUT ALSO THEIR RELEVANT INCOME TAX RETURN AND BALANCE-SHEETS FROM WHERE IT CAN BE EXAM INED, WHETHER THESE PARTIES HAVE SHOWN THE LOAN GIVEN TO THE ASSESSEE AND HAD THE CREDITWORTHINESS TO ADVANCE LO AN TO THE ASSESSEE. THE ONUS WOULD BE HEAVILY ON THE ASSESSEE TO PROVE THAT LOAN TAKEN FROM THESE PARTIES ARE GENUINE AND THEY HAD THE CREDITWORTHINESS OF ADVANCING SUCH LOAN. 13. AS REGARDS REIMBURSEMENT FROM M/S. NORTH EAS T LOGISTICS FOR AMOUNT OF RS.1,20,000/- IS CLEARLY RE FLECTED FROM THE BALANCE-SHEET AND THE ASSESSING OFFICER SHOULD HAVE EXAMINED WHETHER THESE ARE REIMBURSEMENTS AND THE C REDIT APPEARING IN THE BANK ACCOUNT IS OUT OF REIMBURSEME NT FROM THE SAID CONCERN. ACCORDINGLY THIS ISSUE SHOULD ALS O BE EXAMINED BY THE ASSESSING OFFICER; AND WITH REGARD TO CASH DEPOSITS ALSO THE ASSESSEE SHOULD FURNISHED THE FUN D FLOW STATEMENT TO JUSTIFY THE SAME. I.T.A. NO.296/DEL/2016 16 14. LASTLY, WITH REGARD TO RS.12,50,000/- ALSO THE UNSECURED LOAN TAKEN FROM M/S. OMKAR TRANSPORT CORPORATION SH OULD HAVE BEEN EXAMINED FROM THE BANK STATEMENT AS THE A SSESSEE HAS FILED THE COPY OF BANK STATEMENT OF THE SAID PA RTY WHEREIN THIS AMOUNT HAS BEEN REFLECTED. THE ASSESSING OFFIC ER SHOULD EXAMINE THE BANK ACCOUNT AND ALSO CALL FOR ANY INFO RMATION FROM THE ASSESSEE ABOUT THE CREDITWORTHINESS OF THE SAID PARTY. ACCORDINGLY, ALL THESE ADDITIONS ARE REMANDE D BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED A F RESH AFTER GIVING EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2019. SD/- SD/- [O.P. KANT] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 17 TH SEPTEMBER, 2019 PKK: