Mukesh Kumar, New Delhi v. ITO, New Delhi

ITA 1015/DEL/2010 | 2006-2007
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 101520114 RSA 2010
Assessee PAN APWPK5221Q
Bench Delhi
Appeal Number ITA 1015/DEL/2010
Duration Of Justice 1 year(s) 4 month(s) 14 day(s)
Appellant Mukesh Kumar, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 22-07-2011
Date Of Final Hearing 25-11-2010
Next Hearing Date 25-11-2010
Assessment Year 2006-2007
Appeal Filed On 09-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NO.1015/DEL./2010 (ASSESSMENT YEAR : 2006-07) SHRI MUKESH KUMAR VS. ITO WARD 21 (3) C/O G.K. KEDIA & CO. NEW DELHI. 2044/6 CHUNA MANDI PAHARGANJ NEW DELHI 110 055. (PAN : APWPK5221Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GOPAL K. KEDIA ADVOCATE REVENUE BY : SHRI N.K. CHAND SENIOR DR ORDER PER B.C. MEENA ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE CIT (APPEALS)-XXII NEW DELHI DATED 09.12.2009 FOR THE ASSESSMENT YEAR 2006- 07. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE RE AD AS UNDER :- 1. THAT WITHIN THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. ASSESSING OFFICER HAS ERR ED IN FRAMING THE ASSESSMENT ORDER & CIT(A) ERRED IN CONFIRMING T HE ADDITION WITHOUT CONSIDERING THE MERIT OF THE CASE. 2. THAT WITHIN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND LAW ON THE POINT THE ASSESSMENT ORDER AS FRAMED BY THE LD. ASSESSING OFFICER & CONFIRMING OF ADDITION BY CIT ( A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. ITA NO.1015/DEL./2010 2 3. THAT WITHIN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND LAW ON THE POINT THE LD. ASSESSING OFFICER ERRED IN ADDING AND LD. CIT (APPEALS) HAS ERRED IN CONFIRMING THE ADDIT ION OF CASH DEPOSIT OF RS.22 05 000 IN THE APPELLANT'S SAVING B ANK ACCOUNT AS INCOME FROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE INCOME TAX ACT 1961 WHICH IS NOT ACCORDING TO LAW A ND THUS BEING DISPUTED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. CIT (APPEALS) ERRED IN CONFIRM ING THE ADDITION MADE BY THE LD. ASSESSING OFFICER ON THE W RONG PREMISES THAT THE APPELLANT HAS DEPOSITED THE MONEY IN THE BANK ACCOUNT OUT OF MONEY WITHDRAWN FROM ANOTHER BA NK ACCOUNT. THE FACT OF THE CASE IS THAT APPELLANT HAD ONLY ONE BANK ACCOUNT. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. ASSESSING OFFICER AND CIT (APP EALS) ERRED IN CONSIDERING ONLY DEPOSIT INTO THE. BANK BUT NOT CONSIDERED WITHDRAWALS FROM THE SAME BANK. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. ASSESSING OFFICER AND LD. CIT (APPEALS) ERRED IN AGGREGATIVE THE TOTAL DEPOSITS WHILE ONLY THE INITIAL CASH WAS DEPOSITED AND WITHDRAWN SO MANY TIMES. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. CIT (A) ERRED IN NOT CONSIDERI NG THE SUBMISSION OF THE APPELLANT THAT THE LD. ASSESSING OFFICER HAS VERIFIED THE TRANSACTIONS OF EARLIER YEARS WITHOUT ISSUING PROPER NOTICE TO THE APPELLANT. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT THE LD. ASSESSING OFFICER HAS ERRED IN MENTIONING IN HIS ORDER AND CIT (APPEALS) ERRED IN CONFIRMING THAT DURING THE A.Y. 2005-06 THE APPELLANT HAS RECEIVED UNSECUR ED LOAN OF RS.410 000 INSTEAD OF RS.910 000 WITHOUT VERIFYING THE TRUE FACTS OF THE CASE. 9. THE APPELLANT CRAVES TO ADD TO ALTER MODIFY SUBSTANTIATE DELETE AND/OR TO RESCIND ALL OR ANY O F THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING IF NECESS ITY SO ARISES. ITA NO.1015/DEL./2010 3 2. THE APPELLANT IS AN INDIVIDUAL. IT IS CLAIMED THAT THE ASSESSEE AND HIS FAMILY IS ENGAGED IN THE OCCUPATION OF AGRICULTURE. HOWEVER NO EVIDENCE IS FILED IN THIS REGARD. ASSESSEE HAD ALSO NOT SHOWN AGRICULTURE INCOME FOR RATE PURPOSE IN THE RETURN OF INCOME (PAGE 28 OF PAPER BOOK). IT IS ALSO CLAIMED THAT THE ASSESSEE HAS STARTED THE PROPERTY DEALING BUSINESS AT NARELA DELHI. THE RETURN OF INCOME WAS SUBMITTED ON 04.10.2006 DE CLARING INCOME AT RS.1 03 503/- UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION. IN THE ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT THERE A RE CASH DEPOSITS AMOUNTING TO RS.22 05 000/- IN ASSESSEES BANK ACCOUNT. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAD ONE BANK ACCOUNT AND CASH DEPOSITE D INTO THE BANK ON SEVERAL OCCASIONS WAS FROM THE WITHDRAWAL FROM THE SAME BAN K ACCOUNT. THE TOTAL OF SUCH DEPOSITS IN THE BANK WERE OF RS.22 05 000/- WH ILE WITHDRAWALS WERE OF RS.24 70 000/-. THE OPENING CASH BALANCE AVAILABLE WITH ASSESSEE AS ON 01.04.2005 WAS RS.13 21 250/-. IT IS ALSO SUBMITTE D THAT THE ASSESSEE WAS HAVING ONLY ONE BANK ACCOUNT. HE SUBMITTED THAT TH E ASSESSEE ALSO RECEIVED UNSECURED LOAN OF RS.9 10 000/- IN F.Y. 2004-05. C ONFORMATIONS FOR THE SAME WERE SUBMITTED (PAPER BOOK PAGES 45 TO 50). ASSESS ING OFFICER HAD NOT GIVEN OPPORTUNITY TO CROSS EXAMINE DHARMENDRA KUMAR WHERE ASSESSING OFFICER RECORDS THAT HE HAS CONFIRMED ADVANCE OF ONLY RS.4 10 000/-. IT IS ALSO SUBMITTED THAT ADDITION WITHOUT OPPORTUNITY OF CROS S EXAMINATION CANNOT BE ITA NO.1015/DEL./2010 4 SUSTAINED. THE STATEMENT RECORDED BY ASSESSING OFF ICER WAS A PRIVATE INFORMATION RECEIVED AT THE BACK OF ASSESSEE THERE FORE IT HAS NO EVIDENTIARY VALUE. LEARNED AR FURTHER SUBMITTED THAT ASSESSEE WANTED TO PURCHASE A HOUSE IN DELHI FOR WHICH ASSESSEE WAS IN THE WANT O F BANK LOAN AND TO OBTAIN THE SAME ASSESSEE WANTED TO IMPROVE PROFILE IN BAN K. THEREAFTER THE ASSESSEE WAS DEPOSITING THE CASH IN ACCOUNT AND WIT HDRAWING. IT WAS TO AVAIL MAXIMUM AMOUNT OF LOAN. HE PLEADED THAT THE ASSESS EE HAS WITHDRAWN AND DEPOSITED THE SAME CASH IN THE SAME BANK ACCOUNT ON REGULAR INTERVALS. THE CASH DEPOSIT WAS ONLY RS.22 05 000/- WHEREAS WITHDR AWALS WERE OF MORE THAN RS.24 70 000/-. FINALLY HE PLEADED TO SET ASIDE T HE ORDERS OF THE AUTHORITIES BELOW. 3. ON THE OTHER HAND LEARNED DR SUBMITTED THAT THE ASSESSEE CLAIMED THAT HE IS AN AGRICULTURIST BUT NO INCOME HAS BEEN DECL ARED FROM THE AGRICULTURE OPERATION IN THE INCOME-TAX RETURNS. CONFIRMATION FROM DEPOSITOR WAS ONLY FOR RS.4 10 000/-. HE SUBMITTED THAT THE ASSESSEE S CLAIM THAT HE WANTED LOAN FROM BANK AND FOR THAT PURPOSE HE WANTED TO MAKE A PROFILE IS COMPLETELY FALSE. NO EVIDENCE WAS FILED IN THIS REGARD. THE CLAIM OF OPENING BALANCE IS ALSO NOT SUPPORTED BY ANY CREDIBLE EVIDENCE. IT IS A CLAIM NOT SUPPORTED BY ANY DOCUMENT. THE BALANCE SHEET ETC. FILED ARE COM PLETELY UNVERIFIABLE. THE ASSESSEE HAS COMPLETELY FAILED TO EXPLAIN THE CASH DEPOSITED IN THE BANK. HE SUBMITTED THAT THE ASSESSEES CLAIM THAT FREQUENCY OF CASH DEPOSITS AND THE ITA NO.1015/DEL./2010 5 WITHDRAWALS WAS TO IMPRESS THE BANK WITH THE OPERAT ION OF THE ACCOUNT IS ALSO NOT BASED ON ANY EVIDENCE. IT IS A SELF SERVING SU BMISSION WITHOUT ANY BASIS. THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE THA T HE HAS ASKED FOR LOAN FROM THE BANK. IT IS ALSO NOT ESTABLISHED THAT THE MONEY DEPOSITED WAS OUT OF WITHDRAWALS FROM THE BANK ACCOUNTS. NO NEXUS OR SA Y LINK HAS BEEN ESTABLISHED BETWEEN DEPOSITS AND WITHDRAWALS. ASSE SSEE HAD NOT SUBMITTED ANY RELIABLE EVIDENCE WHICH COULD ESTABLISH THAT AS SESSEE WAS HAVING OPENING CASH BALANCE TO THE TUNE OF RS.13 21 150/- . THIS CLAIM IS COMPLETELY WITHOUT ANY EVIDENCE. HE SUBMITTED THAT THE ORDERS OF THE AUTHORITIES BELOW MAY BE SUSTAINED. 4. WE HAVE HEARD BOTH THE SIDES IN DETAIL. THE ASS ESSEE HAS CLAIMED THAT THERE WAS AN OPENING BALANCE OF RS.13 21 150/- BUT IT IS NOT SUPPORTED BY ANY CREDIBLE DOCUMENTARY EVIDENCE. HOW SUCH A HUGE CAS H BALANCE WAS AVAILABLE WHEN THE RETURN INCOME IS ONLY RS.1 03 503/-. WHAT IS THE SOURCE OF THIS CASH? NOTHING HAS BEEN ESTABLISHED IN THIS REGARD. IT IS COMPLETELY UNVERIFIABLE CLAIM. FURTHER THE ASSESSEE HAS ALSO FAILED TO SUBSTANTIATE HIS CLAIM THAT THE MONEY WITHDRAWN FROM THE BANK WAS RE -DEPOSITED. NO NEXUS BETWEEN DEPOSITS AND WITHDRAWALS IS PROVED. THE AS SESSEES CLAIM THAT HE WAS FREQUENTLY DEPOSITING AND WITHDRAWING THE MONEY FROM THE BANK ACCOUNT TO IMPROVE THE PROFILE WITH THE BANK FOR OBTAINING LOAN IS NOT PROVED BY ANY DOCUMENTARY EVIDENCE LIKE APPLICATION FOR LOAN FILE D WITH BANK TO BUY A HOUSE ITA NO.1015/DEL./2010 6 IN DELHI. THE ASSESSEE IS ALSO NOT DECLARING ANY A GRICULTURE INCOME IN ANY OF THE ASSESSMENT YEAR TO ESTABLISH THAT ASSESSEE WAS ALSO HAVING SURPLUS AGRICULTURE INCOME WHICH COULD EXPLAIN PART OF THE CASH DEPOSITS. DEPOSITS RECEIVED IN PRECEDING YEAR WERE ALSO EXAMINED BY TH E ASSESSING OFFICER. DEPOSITOR CONFIRMED ONLY RS.4 10 000/-. ASSESSING O FFICER RECORDED THE STATEMENT OF DEPOSITOR SHRI DHARMENDER KUMAR BUT AS SESSEE WAS NOT PROVIDED AN OPPORTUNITY TO CROSS EXAMINE THE SAME. IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ITO VS. M. PIRAI CHOOD I REPORTED IN 334 ITR 262 (SC) THE MATTER IS RESTORED TO THE FILE OF ASS ESSING OFFICER TO BE DECIDED DE NOVO WITH AN OPPORTUNITY TO CROSS EXAMINE DHARME NDRA KUMAR BY THE ASSESSEE IN RESPECT OF DEPOSITS RECEIVED. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE SET ASIDE THE ORDERS OF AUTHORITI ES BELOW TO DECIDE AFRESH. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF JULY 2011. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 22 ND DAY OF JULY 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXII NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.