Sh. Jagjit Singh Nain, Faridabad V. ACIT, Faridabad

ITA 942/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1002 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 16-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: SAMRAT JONEJACA; VIRAT JONEJA
• Keywords: Unexplained investment; Set aside
• Section: 133(6); 69; 68

Judgement Text

ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: D: NEW DELHI) BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 942/DEL/2015 ( ASSESSMENT YEAR: 2009-10) SH. JAGJI SINGH NAIN, PROP OF M/S NAIN MANPOWER SERVICES, D-2/83, SECTOR 10, FARIDABAD. VS. ACIT, CIRCLE-II, FARIDABAD. PAN NO: ABUPN7941E APPELLANT RESPONDENT ASSESSEE BY : SHRI. VIRAT JONEJA, ADV. AND SHRI SAMRAT JONEJA,CA REVENUE BY : SMT. NAINA SOIN KAPIL, SR. DR ORDER PER ANADEE NATH MISSHRA, AM THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), FARIDABAD, [LD. CIT(A), FOR SHORT] DATED 02.12.2014 FOR ASSESSMENT YEAR 2009-10. THE GROUNDS OF APPEAL ARE AS UNDER: 1 . HAVING COME TO THE CONCLUSION THAT THE AFFIDAVIT FI LED BY THE 5 IMPUGNED CASH CREDITORS DO NOT MATCH WITH THE CONTENTS FOUND MENTIONED IN THE RETURNS OF INCOME OF THESE 5 IMPUGNED CASH CREDITORS THE LD. A O ERRED IN LAW AND ON FACTS ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 2 OF 6 IN NOT ENFORCING THE ATTENDANCE OF THE IMPUGNED CAS H CREDITORS TO FIND OUT THE VERACITY OF THE AFFIDAVIT VIS A VIS THE RETURNS OF INCOME. 2. HAVING RECEIVED THE COPIES OF THE SAVING BANK AC COUNTS OF ALL THE FIVE IMPUGNED CASH CREDITORS FROM PUNJAB NATIONAL BANK, BASS (HISAR), FROM WHERE THE PAYMENTS INTO THE ASSESSEE SAVINGS ACCOUNTS WER E MADE, THE LD. AO FAILED IN LAW AND ON FACTS IN NOT INVESTIGATING THE SOURCE S AND THE NATURE OF THE CREDIT RECEIPTS IN THE SAVING ACCOUNT OF THE IMPUGNED CASH CREDITORS AS ALL THE FILING THEIR INCOME TAX RETURNS. 3. HAVING COME TO KNOW THE LARGE AMOUNT OF CREDITS IN THE SAVINGS ACCOUNTS OF THE IMPUGNED CASH CREDITORS THE LD. AO IN LAW AN D ON FACTS ERRED IN NOT INVESTIGATING THOSE CREDITS APPEARING JUST BEFORE T HE PAYMENTS MADE TO THE ASSESSEE, SO THAT THE CREDITS IN THE BANK ACCOUNTS COULD BE ASSESSED TAXED ;UNDER SECTION 69 OF THE ACT IN THE HANDS OF THE AC COUNT HOLDERS, IF REMAINED UNEXPLAINED. 4. HAVING COME TO KNOW THAT THE 5 IMPUGNED CASH CRE DITORS PAID IN THE ACCOUNT OF THE ASSESSEE FOR THE BENEFIT OF SMT. MUR TI DEVI MOTHER OF THE ASSESSEE WHO PURCHASED RESIDENTIAL HOUSE WITH HELP OF THESE AMOUNTS, TOTALING TO 35 LAKHS, THE LD. AO ERRED IN LAW AND ON FACTS I N NOT ENFORCING THE ATTENDANCE OF SMT. MURTI DEVI FOR THE VERACITY OF F ACTS AS SUBMITTED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS. 5. THE LD. AO ERRED IN LAW AND ON FACTS IN MAKING A DDITIONS OF RS. 35 LACS IN THE RETURNED INCOME OF THE ASSESSEE IN A CASUAL AND EASY MANNER RATHER THAN INVESTIGATING AN ENFORCING THE ATTENDANCE OF IMPUGN ED CASH CREDITORS FOR TAXING CREDITS IN THEIR BANK ACCOUNTS UNDER SECTION 69 OF THE ACT. 6. THE SAVING BANK ACCOUNT OF THE 5 IMPUGNED CASH C REDITORS SHOW A NUMBER OF TRANSACTIONS WITH LARGE AMOUNTS THEREFORE THE LD . AO ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE IMPUGNED CASH CREDITS AS GENUINE ON THE BASIS OF THE CAPACITY IDENTITY & GENUINENESS BROUGHT ON RECORD. 7. HAVING TAKEN THE POSSESSION OF THE MATERIAL SHOW ING THAT THE SUM OF RS. 10 LAKHS DEPOSITED WITH M/S EVEREST HEIGHTS CAME FROM THE BANK ACCOUNT OF M/S SEVEN SEAS MEDIA, GURGAON THE LD. AO ERRED IN LAW & FACTS IN NOT FRAMING THE ASSESSMENT AFTER CONSIDERING THIS FACT. 8. THE LD. CIT(A) IN PASSING THE ORDER WHERE HE OPE NED ABOUT THE HUMAN PROBABILITY IN ACCEPTING THE ADVANCES MADE BY THE 5 DEPOSITORS IN THE ACCOUNT OF THE APPELLANT. ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 3 OF 6 (1.1) DURING THE APPELLATE PROCEEDINGS IN INCOME TAX APPE LLATE TRIBUNAL (ITAT, FOR SHORT) THE ASSESSEE FILED PAPER BOOK, CONTAINING THE FOLLOWING PARTICULARS. 1. COPY OF INCOME TAX RETURN OF APPELLANT FOR AY 2009- 10 2. COPY OF BANK STATEMENT OF THE APPELLANT FOR AY 2009 -10 SHOWING RECEIPT OF RS. 35 LACS THROUGH BANKING CHANNEL. 3. COPY OF SALE DEED FOR PURCHASE OF HOUSE PROPERTY IN THE NAME OF MOTHER OF THE APPELLANT SMT. MURTI DEVI 4. STATEMENT FROM MOTHER OF THE APPELLANT SMT. MURTI DEVI AND INCOME TAX RETURN OF THE MOTHER OF APPELLANT - SMT. MURTI DEV I FOR THE AY 2010-11 5. COPY OF CONFIRMATION OF ACCOUNT, COPY OF RATION CAR D, COPY OF BANK STATEMENT, COPY OF AFFIDAVIT, COPY OF INCOME TAX RE TURN OF SH. DHARAMRAJ. 6. COPY OF CONFIRMATION OF ACCOUNT, COPY OF RATION CAR D, COPY OF BANK STATEMENT, COPY OF AFFIDAVIT, COPY OF INCOME TAX RE TURN OF SH. NARENDER 7. COPY OF CONFIRMATION OF ACCOUNT, COPY OF RATION CAR D, COPY OF BANK OF STATEMENT, COPY IF AFFIDAVIT, COPY OF INCOME TAX RE TURN OF SH. BIJENDER 8. COPY OF CONFIRMATION OF ACCOUNT, COPY OF RATION CAR D, COPY OF BANK OF STATEMENT, COPY IF AFFIDAVIT, COPY OF INCOME TAX RE TURN OF SH. TEERATH 9. COPY OF CONFIRMATION OF ACCOUNT, COPY OF RATION CAR D, COPY OF BANK OF STATEMENT, COPY IF AFFIDAVIT, COPY OF INCOME TAX RE TURN OF SH. RANBIR 10. COPY OF LETTER DATED 05.12.2011 FROM THE BANK MANAG ER PNB CONFIRMING ISSUE OF DRAFT IN FAVOUR OF SH. JAGJIT SINGH NAIN- APPELLANT AND CONFIRMATION OF ICICI BANK FOR RECEIPT THROUGH BANKING CHANNELS 11. COPY OF INCOME TAX RETURN OF BROTHER OF APPELLANT SH. KARAN SINGH ALONG WITH COPY OF BALANCE SHEET 12. COPY OF DEMAND DRAFT SUBMITTED WITH M/S EVEREST HEI GHTS 13. COPY OF AGREEMENT FOR SALE BETWEEN M/S EVEREST HEIG HTS AND THE APPELLANT 14. COPY OF AFFIDAVIT FROM BROTHER OF APPELLANT SH. K ARAN SINGH 15. INFORMATION UNDER SECTION 133(6) FROM EVEREST HEIGH TS 16. COPY OF DD FOR BOOKING CANCELLED BY EVEREST HEIGHTS IN FAVOUR OF APPELLANT ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 4 OF 6 (2) THE APPEAL FILED BY ASSESSEE IS IN RESPECT OF THE ADDITIONS MADE BY THE ASSESSING OFFICER (AO , IN SHORT) AMOUNTING TO RS. 35,00,00 0/- U/S 68 OF INCOME TAX ACT, (I.T. ACT, FOR SHORT) AND AMOUNT OF RS. 10,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. THE LD. CIT(A) CONFIRMED THESE ADDITIONS IN AFORESA ID IMPUGNED ORDER DATED 02.12.2014. AT THE TIME OF HEARING BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE (AR, FOR SHORT) OF THE ASSESSEE SUBMITTED THAT MANY RELE VANT FACTS PERTAINING TO THESE ADDITIONS HAVE ESCAPED THE CONSIDERATION OF THE LOW ER AUTHORITIES NAMELY AO AND LD. CIT(A) IN THEIR RESPECTIVE ORDERS. IT WAS FURTHER SUBMITTED BY HIM THAT THE ASSESSEE WAS NOT PROVIDED THE OPPORTUNITY TO PRODUCE THE PER SONS FROM WHOM AMOUNT TOTALING RS. 35,00,000/- WERE RECEIVED BY THE ASSESSEE, THER EBY, DENYING THE ASSESSEES OPPORTUNITY TO PROOF CREDITWORTHINESS OF THE PERSON S AND GENUINENESS OF THE TRANSACTIONS. DRAWING OUR ATTENTION TO THE EVIDENC ES AND DETAILS AS PER PAPER BOOK, LD. AR ALSO SUBMITTED THAT THE LOWER AUTHORITIES HAVE N OT FULLY CONSIDERED ALL THE RELEVANT FACTS IN RESPECT OF THE AFORESAID ADDITIONS ON ACCO UNT OF UNEXPLAINED INVESTMENT AND ADDITION U/S 68 OF I.T. ACT. ACCORDINGLY, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE DISPUTED ISSUE MAY BE SET ASIDE TO THE FILE OF THE AO FOR VERIFICATION AND FRESH ORDER; SO, THAT THE ASSESSEE HAS AN OPPORTUNITY TO EXPLAIN ALL RELEVANT DETAILS AND EVIDENCES TO THE AO; AND SO THAT THE ASSESSEE CAN PRODUCE THE CONCER NED PERSONS BEFORE THE AO. THE LD. DR APPEARING FOR REVENUE ALSO AGREED THAT IN TH E FITNESS OF THINGS, THE DISPUTED ISSUES MAY BE REMANDED BACK TO THE FILE OF THE AO F OR VERIFICATION AND FRESH ORDER. AS BOTH SIDES AGREE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE DISPUTED ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 5 OF 6 ISSUE TO THE FILE OF THE AO FOR VERIFICATION AND FR ESH ORDER IN ACCORDANCE WITH LAW. THE AO IS DIRECTED TO PROVIDE AN OPPORTUNITY TO THE ASS ESSEE TO SUBMIT THE RELEVANT DETAILS AND EVIDENCES; AND TO PRODUCE THE PERSONS BEFORE TH E AO IN SUPPORT OF THE ASSESSEES CASE, BEFORE THE AO PASSES FRESH ORDER IN PURSUANCE OF THIS DIRECTION. (3) IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH DAY OF MARCH, 2019. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25 .03.2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 942/DEL/2015. SH. JAGJIT SINGH NAIN. PAGE 6 OF 6 DATE OF DICTATION 19 /03/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/3/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 25/3/19 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER