Mr. Sumit Gupta, Delhi V. ADIT (Int. Taxation), New Delhi

ITA 927/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7023 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SH. N.K. SAINI , ACCOUNTANT M EMBER AND SH. LALIET KUMAR , JUDICIAL MEMBER ITA NO .927 /DE L/ 2016 ASSESSMENT YEAR: 2011 - 12 MR. SUMIT GUPTA, 14/11, SHAKTI NAGAR, DELHI VS. ADIT (INT. TAXATION), CIRCLE - 1 (2), NEW DELHI PAN : ACIPG7161J ( APPELLANT ) (RESPONDENT) ORDER PER LALIET KUMAR , J . M. : THE PRESENT APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 42, DT. 10.12.2015, ON THE FOLLOWING TWO EFFECTIVE GROUNDS: 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.7,00,000/ - , BEING REFUND OF ADVANCE PAID FOR ROOF RIGHT, BY TREATING THE CASH DEPOSIT IN BANK OF BARODA, AS BEING OUT OF THE UNDISCLOSED SOURCES. 2. THAT THE LEARNED C IT(A)HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.8,05,000/ - BY TREATING THE CASH APPELLANT BY SH. RAJESH JAIN, CA RESPONDENT BY MS. ASHMA NEB, SR.DR DATE OF HEARING 09.07.2018 DATE OF PRONOUNCEMENT 10.07.2018 2 ITA NO.927/DEL/2016 DEPOSIT IN BANK OF BARODA, AS BEING OUT OF UNDISCLOSED SOURCES . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS NRI AND HAD FILED THE RETURN OF INCOME ON 30.03.2012, DECLARING NET TAXABLE INCOME OF RS. 5,20,250/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND DURING THE COURSE OF SCRUTINY IT WAS THE CASE OF THE ASSESSEE THAT THE ASSESSEE HAS SURRENDERED VARIOUS TRANSACTIONS . HOWEVER, WITH RESPECT TO GROUND NO. 1 , WHEREBY THE ASSESSING OFFICER HAD MADE THE ADDITION OF RS.7,00,000/ - BEING UNEXPLAINED CASH DEPOSITED IN ASSESSEE S ACCOUNT , NAMELY, BANK OF BARODA. IT WAS THE CASE OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS GIVE N AN AMOUNT OF RS.7,00,000/ - TO HIS BROTHER SH. AMIT GUPTA AFTER WITHDRAWING FROM ITS BANK ACCOUNT, HOWEVER, NO DOCUMENTARY EVIDENCE WAS FILED BY THE ASSESSEE, SUPPORTING DEFENCE PUT FORWARD BY THE ASSESSEE THAT , AMOUNT OF RS.7,00,000/ - WERE GIVEN BY HIM T O HIS BROTHER WITH A VIEW TO PURCHASE ROOF RIGH T S IN THE NAME OF SH. AMIT GUPTA. IN THIS REGARD, NO FORMAL AGREEMENT WAS EXECUTED AND HENCE, NO C ANCELLATION AGREEMENT WAS FILED BY THE ASSESSEE BEFORE THE LOWER AUTHORITY. T HE ASSESSEE HAS FILED HIS AFFIDAV IT , BUT DID NOT FILE ANY AFFIDAVIT OF HIS BROTHER CONFIRMING THE SOURCE OF THE AMOUNT RECEIVED BY THE ASSESSEE. 2.1 AT THE OUTSET, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED HIS AFFIDAVIT AND ALSO EXPRESS H IS INTENTION TO FILE THE AFFIDAVIT OF HIS BROTHER AND PRODUCE CASH FLOWS STATEMENT FOR VERIFICATION OF THE TRANSACTION/CASH RECEIVED BY HIM WHICH WAS SUBSEQUENTLY 3 ITA NO.927/DEL/2016 DEPOSITED IN THE ACCOUNT MAINTAINED BY THE FATHER OF ASSESSEE ON BEHALF OF ASSESSEE JOINTLY WITH HIS MOTHER. 2.2 ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT INITIALLY THE ASSESSEE HAS NOT DISCLOSED THAT HE WAS MAINTAINING THE ACCOUNT IN BANK OF BARODA, AND WHEN IT WAS CONFRONTED TO HIM, THE ASSESSEE HAS FILED HIS CASH FLOW STATEMENT AND RELY ON THE AO/CIT(A) ORDER. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. AS THE ASSESSEE WAS NRI AT THE RELEVANT POINT OF TIME AND THE ACCOUNT OF THE ASSESSEE WAS HANDLED BY HIS DECEASED FATHER, THEREFORE , THE ASSESSEE REQUIRES A DIFFERENT SYMPATHETIC TREATMENT FOR EXPLAINING THE CASH DEPOSIT . THE ASSESSEE IS ALLEGED TO HAVE BEEN GIVEN AMOUNT FOR PURCHASE OF ROOF RIGHT S IN THE NAME OF SH. AMIT KUMAR AND SUBSEQUENTLY , IT WAS RETURNED BY HIS BROTHER . THESE A RE THE FACTS NOW THE ASSESSEE INTEND TO PROOF WITH THE HELP OF HIS OWN AFFIDAVIT AND ALSO BY FILLING THE AFFIDAVIT OF HIS BROTHER FROM WHOM HE HAS RECEIVED THE CASH AMOUNT. 2.4 IN VIEW OF ABOVE AND IN PECULIAR FACTS OF PRESENT CASE, WE DEEM IT APPROPRIATE TO REMAND THIS MATTER BACK TO THE FILE OF THE LEARNED CIT(A) TO DECIDE THE MATTER IN ACCORDANCE WITH LAW, AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE TO PRODUCE ANY WITNESS, INCLUDING HIS OWN BROTHER FOR THE PURPOSE OF PROVING THE IDENTITY , CREDITWORTHINES S AND GENUINENESS OF THE PERSON FROM WHOM THE CASH HAS BEEN RECEIVED. IN THE LIGHT OF THE ABOVE, THE GROUND NO. 1 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. GROUND NO. 2 IS WITH RESPECT OF TO THE ADDITION MADE BY THE ASSESSING OFFICE ON ACCOU NT OF CASH IN HAND. 4 ITA NO.927/DEL/2016 3.1 IN THIS REGARD, THE ASSESSEE HAS SUBMITTED THAT THE BREAKUP OF ALL THE CREDITS OF HIS BANK ACCOUNT WAS AVAILABLE TO HIS FATHER AND DUE TO HIS FATHER S DEATH HE WAS NOT ABLE TO SUBSTANTIATE THESE TRANSACTIONS AT THE TIME OF PROCEEDING BEFORE THE LOWER AUTHORITIES, AND CASH FLOW STATEMENT. SINCE THE ASSESSEE HAS NOT PRODUCED THE DOCUMENTARY EVIDENCES, INCLUDING VARIOUS BANK ACCOUNTS OF THE ASSESSEE, NAMELY, AXIS BANK, BANK OF BARODA ETC., THEREFORE, THE ASSESSEE SOUGHT OPPORTU NITY FROM THIS TRIBUNAL AND REQUESTED FOR REMANDING THE MATTER BACK TO THE FILE OF THE LOWER AUTHORITIES FOR EXAMINING AFRESH. 3.2 ON THE OTHER HAND, THE SAME ARGUMENTS HAS BEEN ADDRESSED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE , WHEREBY S HE HAS SUBMITTE D THAT THE ASSESSEE SHOULD NOT BE PROVIDED AN OPPORTUNITY TO PRODUCE DOCUMENTARY EVIDENCE , HIS AFFIDAVIT AS WELL AS THE AFFIDAVIT OF HIS BROTHER. 3.3 WE HA VE HEARD THE RIVAL CONTENTION OF THE PARTIES TOWARDS THEIR REQUEST FOR REMANDING THE MATTER BACK WIT H RESPECT TO GROUND NO. 1. THEREFORE, BORROWING THE SAME LOGIC , WE DEEM IT APPROPRIATE TO REMAND THE G ROUND NO. 2 ALSO BACK TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING THE ISSUE AFRESH, AFTER GRANT ING REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRODUCE AL L EVIDENCES AND SATISFY , HOW THE ADDITION OF RS.8,05,000/ - WAS UNSUSTAINABLE ON ACCOUNT OF CASH IN HAND. NEEDLESS TO SAY, WHILE DECIDING THE ISSUE INVOLVED IN GROUND NO. 1 AND 2, LEARNED CIT(A), IF SO REQUIRES, MAY SEEK THE REMAND REPORT FROM THE ASSESSING OFFICER AND ALSO GIVE OPPORTUNITY TO THE ASSESSEE TO REBUT THE SAID REPORT. IN THE LIGHT OF ABOVE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO.927/DEL/2016 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 0 T H JULY , 201 8 . S D / - S D / - ( N.K. SAINI ) ( LALIET KUMAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 0 T H JULY , 201 8 . RK / - COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI