ITO, New Delhi V. Mrs. Shyama Devi Agarwal, New Delhi

ITA 933/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4253 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 18-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Additional evidence

Judgement Text

ITA NO. 933/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 933/DEL/2011 A.Y. : 2006-07 INCOME TAX OFFICER, WARD 25(1), NEW DELHI D-304A, VIKAS BHAVAN, NEW DELHI VS. MRS. SHYAMA DEVI AGARWAL, UP-13, PITAMPURA, DELHI 110 034 (PAN : AAJPA6026B) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ASHWANI TANEJA, ADVOCATE DEPARTMENT BY : MS. BANITA DEVI (D.R.) ORDER ORDER ORDER ORDER PER SHAMIM PER SHAMIM PER SHAMIM PER SHAMIM YAHYA: AM YAHYA: AM YAHYA: AM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.12. 2010 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE ISSUES RAISED READ AS UNDER:- (I) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 23,70,710/- BY ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION TO RULE 46A OF THE I.T. ACT, 1961. ITA NO. 933/DEL/2011 2 (II) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN NOT CONSIDERING THE REMAND REPORT OF THE ASSESSING OFFICER WHERE IT HAS BEEN CATEGORICALLY POINTED OUT THAT TH E SOURCES OF CASH DEPOSITS REMAIN UNEXPLAINED. 3. IN THIS CASE THE ASSESSEE, AS PER ITR, DERIVES I NCOME UNDER THREE HEADS, NAMELY, HOUSE PROPERTY, CAPITAL GAINS AND OT HER SOURCES. ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED CASH IN AGGREGATE OF ` 23,70,710/- IN HER BANK ACCOUNT, THE CASE WAS PICKED UP FOR SCRUTINY UNDER CASS. DURING THE COURSE OF T HE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT SHE HAS GIV EN A SUM OF ` 23,30,000/- TO MRS. NONDONY G. MOMIN IN PRECEDING YEAR FOR ACQUIRING THE LEASE HOLD RIGHTS OF A COALMINE AS PER AGREEMEN T AS ADVANCE OUT OF TOTAL SUM AGREED FOR ` 46,60,000/-. HOWEVER, SINCE FINALLY, THE DEAL DID NOT MATERIALIZE, THEREFORE, THE SAID AMOUNT WAS GOT BACK REFUNDED IN CASH FROM MRS. NONDONY G. MOMIN DURING THE RELEVA NT YEAR. FURTHER, THE ASSESSEE ALSO FURNISHED THE AFFIDAVIT O F MRS. NONDONY G. MOMIN BEFORE THE ASSESSING OFFICER ON 30.12.2008. THE ASSESSING OFFICER THEREFORE, OPINED THAT THE ABOVE MENTIONED DETAILS SUBMITTED BY THE ASSESSEE AT THE FAG END OF THE ASSESSMENT TO AVOID INVESTIGATION. FURTHER, THE ASSESSING OFFICER OBSER VED THAT AS THE ASSESSEE HAS FAILED TO SUBMIT THE COPY OF THE AGREEME NT AND SOURCE OF ITA NO. 933/DEL/2011 3 ADVANCE (ADVANCE IS MADE IN THE PRECEDING YEAR, I.E . F.Y. 2004-05). THEREFORE, HE CONCLUDED THAT THE CLAIMED REFUND OF ADVANCE WAS NOT GENUINE AND THUS ASSESSED THE AMOUNT OF ` 23,70,710/ - IN THE HANDS OF THE ASSESSEE AS INCOME FOR THE YEAR UNDER CONSIDERA TION. 4. AGAINST THE ABOVE ORDER ASSESSEE APPEALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ASSESSEE SUBMI TTED ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS). THESE INCLUDED COPY OF AGREEMENT FOR C OALMINE, COPY OF CONFIRMATION OF AMOUNT PAID BY ASSESSEE, STATEMENT OF AFFAIRS AS ON 31.3.2005, SHOWING SUNDRY DEBTORS OF ` 23,70,710/-, COPY OF RELEVANT BANK ACCOUNTS AND CASH BOOKS ENTRIES. THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) DULY NOTED THAT THE ADDITIONAL EVIDENCES WERE SENT TO THE ASSESSING OFFICER TO SUBMIT HIS REPORT AND AFTER CONSIDERING THE REPORT OF THE ASSESSING OFFICER, LD. COMMISSIONE R OF INCOME TAX (APPEALS) FINALIZED THE ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE, REMAND REPORT OF THE ASSESSING OFFICER AND SUBMISSIONS AN D REJOINDER OF THE COUNSELS. THE FIRST AND FOREMOST ISSUE WHAT I AM REQUIRED TO DECIDE HERE IS THAT WHETHER THE AD DITIONAL EVIDENCES ARE ADMISSIBLE OR NOT. IT IS SEEN FROM THE DETAILS ITA NO. 933/DEL/2011 4 THAT ADDITIONAL EVIDENCES FILED BEFORE THE UNDERSIG NED HAS BEEN PRODUCED FOR PURPOSE OF DECIDING THIS APPEAL. THESE EVIDENCES ONLY ENABLE THE UNDERSIGNED TO PASS AN OR DER ON THIS ISSUE ONE WAY OR OTHER. AS, FOR AN APPELLATE AUTHORITY, IT IS IMPLICIT IN COMING TO A PROPER CONCLUSION; IT IS FOR THIS REASON THAT THOUGH THE RULES REQUIRE NEW EVIDENCE T O BE ADMITTED ONLY WHERE THERE IS REASON FOR THE ASSESSEE FOR NOT BEING ABLE TO PRESENT SUCH EVIDENCE BEFORE THE ASSE SSING OFFICER , IT IS CONSIDERED NOT ONLY FAIR BUT JUSTIF IED, WHERE THE APPELLATE AUTHORITY ITSELF CONSIDERS SUCH EVIDENCE NECESSARY. THE HONBLE COURTS HAVE HELD THAT WHER E THERE IS OMISSION TO SUBMIT PART OF DOCUMENTS AS REQUIRED BY THE ASSESSING OFFICER, THE APPELLATE AUTHORITY MAY NOT B E JUSTIFIED MERELY BY DRAWING AN ADVERSE INFERENCE AGAINST THE ASSESSEE FAILING TO FURNISH CERTAIN DOCUMENTARY EVIDENCES AS IT WOULD AMOUNT TO A PUNITIVE MEASURE. THE APPELLATE AUTHORITY MAY WELL UNDERTAKE TO MAKE GOOD S UCH OMISSION. THEREFORE, ON THE BASIS OF ABOVE FACTS, CASE LAWS RELIED UPON BY THE APPELLANT AND THE CIRCUMST ANCES OF THE CASE, THE COUNSELS CONTENTION FOR ADMISSION OF ADDITIONAL EVIDENCES IS HELD CONVINCING OVER THE AS SESSING ITA NO. 933/DEL/2011 5 OFFICER S OBJECTIONS. HENCE, ALL THE DOCUMENTS SUBMIT TED BY THE APPELLANT ARE ADMITTED FOR DECIDING THE APPEAL O N MERIT AND IN THE INTEREST OF JUSTICE. THE ASSESSING OFFICER , ON HIS OWN, CONDUCTED ENQU IRY BEFORE COMMENTING ON MERITS OF THE ADDITIONAL DOCUMEN TS THOUGH NO SUCH DIRECTION WAS GIVEN U/S 250(4) OF TH E ACT. HENCE, CONDUCTING ENQUIRIES AND RAISING OBJECTIONS FOR ADMITTANCE OF ADDITIONAL EVIDENCE CANNOT GO TOGETHER . THE INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER THROUGH THE DDIT (INV.) SUPPORTS THE APPELLANTS CONTENTION T HAT THE BANK DEPOSITS WERE SOURCED FROM THE REALIZATION OF DEBTS/ ADVANCE DURING THE RELEVANT PERIOD FROM MRS. NONDONY G. MOMIN. THIS ADVANCE WAS CONSIDERED NON-GENUINE IN THE HANDS OF THE APPELLANT, THEN THE ACTION REQUIRED TO BE TAKEN IN HER CASE FOR A.Y. 2005-06 AND NOT IN THE CASE OF THE APPELLANT FOR RELEVANT A.Y. THE APPELLANT HAS EXP LAINED AND DEMONSTRATED THE SOURCE OF ALL THE DEPOSITS, WHICH H AVE BEEN TREATED UNEXPLAINED BY THE ASSESSING OFFICER. THE ARGUMENTS OF THE COUNSELS THEREFORE, ARE CONVINCING . FURTHER, IN ABSENCE OF ANY OTHER CONTRARY FACTS BROU GHT BY THE ASSESSING OFFICER, THE CASH DEPOSITS IN THE BAN K A/C ARE ITA NO. 933/DEL/2011 6 TREATED DULY EXPLAINED. THE ASSESSING OFFICERS APPREHENSION ON PAGE 2 OF THE REMAND REPORT IN VIEW OF THE DDITS INVESTIGATION IS OF ACADEMIC INTEREST ONLY; HEN CE IT IS NOT DEALT IN HERE. KEEPING IN VIEW OF THE FACT S AND CIRCUMSTANCES IN TOTALITY, I HEREBY HOLD THAT THE AS SESSING OFFICER JUSTIFIED IN ASSESSING BANK DEPOSITS OF ` 23,70,710/- AS INCOME. HENCE, THIS ADDITION OF ` 23,70,710/- IS DELETED. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. THE GRIEVANCE OF THE REVENUE IS THAT THERE IS VIOLATION OF RULE 46A AND ASSESSING OFFICER S REMAND REPORT HAS NOT BEEN CONS IDERED. 6. LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE ASSESSING OFFICER 7. LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORD ER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION AND PERUSED THE RECORDS. WE FIND THAT LD. COMMISSIONER OF INCOME TA X (APPEALS) HAS PASSED A REASONABLE AND SPEAKING ORDER ON THE SAID ISSUE. THE ADDITIONAL EVIDENCES HAVE BEEN DULY SENT TO THE AS SESSING OFFICER AND REMAND REPORT OBTAINED. IN SUCH CIRCUMSTANCES, REV ENUES GRIEVANCE THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERR ED IN ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION TO RULE 46A IS NOT SUSTAINABLE. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DULY CO NSIDERED THE ITA NO. 933/DEL/2011 7 REMAND REPORT IN THIS REGARD. IN THE REMAND REPORT ASSESSING OFFICER HAS ONLY OBJECTED THE FILING OF THE ADDITIONAL EVID ENCES, WHICH THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DULY DEAL T WITH AND HAS ADMITTED THE ADDITIONAL EVIDENCES PROPERLY. HE HAS GIVEN A FINDING THAT THE INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER THROUGH THE DDIT(INV.) SUPPORTS THE ASSESSEES CONTENTION THAT T HE BANK DEPOSITS WERE SOURCED FROM THE REALIZATION OF DEBTS/ ADVANCE DURING THE RELEVANT PERIOD FROM MRS. NONDONY G. MOMIN. THIS ADVAN CE WAS GIVEN IN THE PRECEDING YEAR. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS RIGHTLY OBSERVED THAT IN CASE SOME ADVANCED IN A .Y. 2005-06 IS CONSIDERED NON-GENUINE IN THE HANDS OF THE ASSESSEE , THEN THE ACTION REQUIRED TO BE TAKEN IN HER CASE FOR A.Y. 2005-06 A ND NOT IN THE CASE OF THE ASSESSEE FOR THE RELEVANT A.Y. 9. IN THE BACKGROUND OF THE AFORESAID DISCUSSION, WE DO NOT FIND ANY INFIRMITY OR ILLEGALITY IN THE ORDER OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) AND ACCORDINGLY, WE UPHOLD THE SAME. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/04/2011 UP ON CONCLUSION OF HEARING. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [A.D. JAIN] [A.D. JAIN] [A.D. JAIN] [A.D. JAIN] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 28/4/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES