ITO, New Delhi v. Shri Devender Kumar, New Delhi

ITA 2990/DEL/2012 | 2007-2008
Pronouncement Date: 05-07-2013 | Result: Allowed

Appeal Details

RSA Number 299020114 RSA 2012
Assessee PAN AHDPK6324M
Bench Delhi
Appeal Number ITA 2990/DEL/2012
Duration Of Justice 1 year(s) 20 day(s)
Appellant ITO, New Delhi
Respondent Shri Devender Kumar, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 05-07-2013
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 05-07-2013
Date Of Final Hearing 22-05-2013
Next Hearing Date 22-05-2013
Assessment Year 2007-2008
Appeal Filed On 15-06-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B: NEW DELHI) BEFORE SHRI U. B. S. BEDI JUDICIAL MEMBER AND SHRI T. S. KAPOOR ACCOUNTANT MEMBER ITA NO.2990/DEL/ 2012 (ASSESSMENT YEAR : 2007-08 ) ITO VS. DEVENDER KUMAR WARD-21(4) ROOM NO.D-6 A-22 SUNDER APARTMENT VIKAS BHAWAN SECTOR-14 NEW DELHI. NEW DELHI. PAN: AHDPK6324M (APPELLANT) (RESPONDENT) REVENUE BY : MRS. A. S. AWASTHI SR.DR. ASSESSEE BY:SHRI RAJEEV SAXENA & SHRI MANOJ AGRAWAL ADVS. ORDER PER T. S. KAPOOR AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII NEW DEL HI DATED 09.04.2012 FOR THE ASSESSMENT YEAR 2007-08. THE GRO UNDS TAKEN BY THE REVENUE ARE AS UNDER: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF R S.19 51 000/- ON ACCOUNT OF CASH DEPOSITS IN SAVING BANK ACCOUNTS INSPITE OF THE FACT THAT THE ASSESSING OFFICER WAS NOT SATISFI ED WITH THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE AS RE PORTED BY ITA NO.2990 /DEL/2012 2 HIM AND THE ADDITIONAL CIT RANGE-38 NEW DELHI IN THE REMAND REPORT. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ALL OR ANY OF THE AFORESAID GROUNDS OF APPEAL AND AMEND ALTER OR ADD ANY OTHER GROUND OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A SOLE PROPRIETOR IN A CONSTRUCTION COMPANY AND HE FILED RETURN OF INCOME ON 31.10.2007 DECLARING INCOME AT RS.4 10 204/-. THE CASE WAS SEL ECTED FOR SCRUTINY. THE NOTICE U/S 143(2) WAS ISSUED ON 16.09.2008 AND IN R ESPONSE NOBODY APPEARED. AGAIN NOTICES U/S 142(1) AND 143(2) WERE ISSUED ON 24.07.2009 FIXING THE CASE FOR 07.08.2009 AND IN RESPONSE TO T HIS NOTICE ALSO NOBODY ATTENDED AND THEREFORE SHOW CAUSE NOTICE U/S 144 WAS ISSUED ON 19.10.2009 FIXING THE CASE FOR 26.10.2009 AND IN RE SPONSE TO THIS NOTICE ALSO NOBODY ATTENDED. AGAIN NOTICE U/S 143(2) ON 10 .11.2009 FIXING THE DATE FOR 16.11.2009 WAS ISSUED AND NOBODY AGAIN ATT ENDED. THE ASSESSING OFFICER AGAIN ISSUED NOTICE ON 24.11.2009 FIXING TH E CASE FOR 30.11.2009 AND THIS NOTICE ALSO REMAINED UNCOMPLIED WITH. THER EFORE NOTICES WERE SERVED THROUGH A FIXTURE ON 14.12.2009 AND THE CASE WAS FIXED FOR 21.12.2009 AND ON THIS DATE ALSO NOBODY APPEARED. S INCE IT WAS A TIME BARRING CASE THEREFORE ASSESSING OFFICER ASSESSED THE INCOME U/S 144 OF THE ACT. ITA NO.2990 /DEL/2012 3 3. AS PER ITS DETAILS ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.19 51 000/- IN HIS BANK ACCOUNT MAINTAINED WITH CORPORATION BANK PITAM PURA DELHI. IN THE ABSENCE OF EXPLANATION FR OM THE ASSESSEE THE ASSESSING OFFICER MADE THE ADDITION OF CASH DEPOSIT ED AS UNEXPLAINED MONEY U/S 68 OF THE I. T. ACT. 4. DISSATISFIED WITH THE ORDER THE ASSESSEE FILED APPEAL BEFORE CIT(A) AND SUBMITTED THAT HE HAD SHIFTED FROM THE OLD ADDR ESS TO A NEW ADDRESS AT A-22 SUNDER APARTMENTS SECTOR-14 ROHINI AND NOT ICES WERE NEVER RECEIVED AND ACCORDINGLY THE NOTICES COULD NOT BE C OMPLIED WITH. IT WAS FURTHER SUBMITTED THAT HE CAME TO KNOWN ABOUT THE A DVERSE ASSESSMENT WHEN HIS BANK ACCOUNT WAS ATTACHED WITH THE DEPARTM ENT AND IT WAS PLEADED THAT HAD HE ACTUALLY RECEIVED THE NOTICES H E WOULD HAVE DEFINITELY COMPLIED WITH THE NOTICES. IT WAS ALSO SUBMITTED TH AT WHILE PASSING ORDER U/S 144 THE ASSESSING OFFICER SHOULD HAVE GATHERED INFORMATION FROM THE BANK TRANSACTIONS WHICH WERE IN HIS POSSESSION AND IT WOULD HAVE BEEN APPARENT TO HIM THAT ALL SUCH DEPOSITS WERE PROCEED ED BY SUFFICIENT WITHDRAWALS. 5. THE LD. AR FILED ADDITIONAL EVIDENCE ALSO WHICH WAS SENT TO ASSESSING OFFICER FOR HIS REMAND REPORT. THE ASSESS ING OFFICER IN HIS REMAND REPORT SUBMITTED THAT NO INTIMATION FOR CHAN GE OF ADDRESS WAS ITA NO.2990 /DEL/2012 4 PROVIDED BY ASSESSEE AND NOTICES WERE SERVED ON ADD RESSES MENTIONED ON HIS RETURN OF INCOME AND THEREFORE ADDITIONAL DOC UMENTS SHOULD NOT BE ACCEPTED AS ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNI TIES. 6. REGARDING MERITS OF THE CASE THE ASSESSING OFFI CER MENTIONED THAT THE ASSESSEE WAS CALLED BY LETTER DATED 05.01.2012 AND WAS ASKED TO APPEAR ON 13.01.2013 AND IN SUPPORT OF HIS CLAIM THE ASSES SEE HAD SUBMITTED COPY OF BANK ACCOUNT IN WHICH CASH WAS DEPOSITED AND COP Y OF CAPITAL ACCOUNT OF ASSESSEE IN THE BOOKS OF D. K. CONSTRUCTION COMP ANY AND NOT BOOKS OF ACCOUNTS WERE PRODUCED. THEREFORE HE HELD THAT FRO M THE COPY OF ACCOUNT OF CAPITAL ACCOUNT AND COPY OF BANK STATEMENTS WHIC H WERE WITHOUT ANY NARRATION HE WAS UNABLE TO VERIFY THE SOURCE OF DEP OSITS. HE FURTHER HELD THAT THE CONTENTION OF ASSESSEE THAT HE WITHDREW MO NEY FROM HIS BUSINESS AND DEPOSITED IN THE SAVING BANK ACCOUNT WAS ALSO N OT SUPPORTED BY HIS BANK ACCOUNT STATEMENTS OF PROPRIETOR SHIP CONCERN. THEREFORE IN THE ABSENCE OF COMPLETE BOOKS OF ACCOUNT ON MERITS ALSO THE ASSESSING OFFICER HELD THAT ASSESSEE HAD FAILED TO FURNISH PROPER EXP LANATION FOR THE SOURCES OF CASH DEPOSIT IN THE SAVING ACCOUNT AND SUBMITTED THAT ADDITION MADE BY ASSESSING OFFICER DESERVES TO BE UPHELD. ITA NO.2990 /DEL/2012 5 7. THE LD. CIT (A) AFTER GOING THROUGH THE SUBMISSI ONS OF ASSESSEE AND AFTER GOING THROUGH THE REMAND REPORT DELETED THE A DDITION MADE BY ASSESSING OFFICER HOLDING AS UNDER: A PERUSAL OF THE COPY OF THE CAPITAL ACCOUNT IN TH E FIRM M/S D. K. CONSTRUCTIONS READ TOGETHER WITH THE COPIES O F THE BANK STATEMENTS/ PASS BOOKS OF THE APPELLANT FOR THE REL EVANT ASSESSMENT YEAR CLEARLY SHOWS THAT THE APPELLANT WI THDREW CASH FROM HIS SAVINGS ACCOUNT FOR MEETING THE BUSINESS N EEDS OF HIS FIRM AND AS AND WHEN THE FIRM HAD COMFORTABLE POSIT ION HE BROUGHT BACK THE MONEY FROM HIS FIRM AND DEPOSITED IT BACK IN HIS SAVINGS ACCOUNT. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS APPARENT THAT DUE TO CHANGE OF ADDRESS THE APPELLAN T DID NOT RECEIVE ANY OF THE NOTICES ISSUED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. CONSEQUENTLY THE ASSESSING OFFICER PASSED AN ORDER U/S 144 OF THE IT ACT. THE DETAILS FILED DURING THE COURSE OF APPEAL PROCEEDINGS WERE VITAL DOCUMEN TS FOR TAKING A JUDICIOUS VIEW OF THE MATTER AND THEREFOR E THE SAME WERE SENT TO THE ASSESSING OFFICER FOR A REMAND REP ORT. IN THE REMAND REPORT THE ASSESSING OFFICER HAS STATED THAT THE ADDITIONAL EVIDENCE SHOULD NOT BE ADMITTED BECAUSE THE APPELLANT WAS NOT PREVENTED BY SUFFICIENT CAUSE FOR NOT FILING THE REQUIRED DETAILS DURING THE COURSE OF ASSESSMEN T PROCEEDINGS. HOWEVER I DO NOT AGREE WITH SAID PROP OSITION AS THE APPELLANT WAS UNAWARE OF THE ASSESSMENT PROCEED INGS DUE TO CHARGE OF ADDRESS. I THEREFORE ADMIT THE ADDITIONA L EVIDENCE AND PROCEED TO ADJUDICATE THE GROUNDS IN DISPUTE ON MER ITS. FROM THE PERUSAL OF DETAILS AND SUBMISSION OF THE A PPELLANT IT IS FOUND THAT THE APPELLANT HAD A PROPRIETORSHIP BUSIN ESS IN THE NAME AND STYLE OF M/S D. K. CONSTRUCTION COMPANY. T HESE AMOUNTS HAD BEEN WITHDRAWN FOR MEETING THE EXIGENCI ES OF THE BUSINESS OF THE M/S D. K. CONSTRUCTIONS FROM TIME T O TIME. THE APPELLANT NEEDED FUNDS IN ITS BUSINESS AT SHORT NOT ICE FOR MEETING VARIOUS WORKING CAPITA REQUIREMENTS AND PAY ING OFF SOME EXPENSES. AS AND WHEN THE FUNDS WERE AVAILABLE THE ITA NO.2990 /DEL/2012 6 APPELLANT WITHDREW MONEY FROM THE BUSINESS AND DEPO SITED THE MONEY BACK INTO HIS SAVINGS ACCOUNT. THE ENTIRE AMO UNT OF DEPOSITS IN THE SAVING ACCOUNT HAD BEEN PROCEDED BY WITHDRAWALS FROM THE ACCOUNT ITSELF. COPY OF CAPITA L ACCOUNT OF THE APPELLANT IN THE BOOKS OF M/S D. K. CONSTRUC TIONS AND THE BANK STATEMENT REFLECTS THE SAME. IN VIEW OF THESE FACTS THE ADDITION MADE BY THE ASSESSING OFFICER TO THE TUNE OF RS.19 51 000/- IS UNCALLED FOR AND THEREFORE DELE TED. APPEAL ON THESE GROUNDS IS ALLOWED. 8. AGGRIEVED WITH THE ORDER OF LD. CIT (A) THE REV ENUE IS IN APPEAL BEFORE US. AT THE OUTSET THE LD. DEPARTMENTAL REPR ESENTATIVE READ GROUNDS OF APPEAL AND ARGUED THAT ASSESSING OFFICER WAS NOT SATISFIED WITH THE ADDITIONAL EVIDENCE EVEN ON MERITS AND HAD OBJECTED FOR ADMISSION OF ADDITIONAL EVIDENCE AND LD. CIT (A) DESPITE OBJECTI ON OF ASSESSING OFFICER REGARDING ACCEPTANCE OF ADDITIONAL EVIDENCE AND ON MERITS OF THE CASE DELETED THE ADDITION WITHOUT GIVING ANY REASONS AND WITHOUT GOING THROUGH COMPLETE BOOKS OF ACCOUNTS. THEREFORE SHE ARGUED T HAT ORDER OF ASSESSING OFFICER BE UPHELD. 9. THE LD. AR ON THE OTHER HAND ARGUED THAT REGISTE RED NOTICES WERE SENT ON WRONG ADDRESS AND THEREFORE ASSESSEE COUL D NOT GET NOTICES AND ASSESSING OFFICER PASSED ORDER U/S 144 WITHOUT HEAR ING THE ASSESSEE. ON MERITS HE TOOK US TO PAGE 5 WHERE A CHART WAS PLACE D SHOWING DATE WISE DEPOSITS IN THE SAID BANK ACCOUNT WHEREIN SOURCES WERE EXPLAINED TO BE IN ONE OF THE COLUMNS. SIMILARLY HE TOOK US TO PAPER BOOK PAGE 13 WHICH IS A ITA NO.2990 /DEL/2012 7 COPY OF BANK PASS BOOK WHEREIN DEPOSITS WERE MADE. IN VIEW OF THESE DOCUMENTS HE ARGUED THAT THE SOURCES OF DEPOSITS W ERE EXPLAINED AND THEREFORE CIT (A) RIGHTLY DELETED THE ADDITIONS. 10. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT A NUMBER OF NOTICES WERE GIVEN TO ASSESSEE BEFORE MAKING ASSESSMENT U/S 144 AND THE NOTICES WE RE SERVED AT THE ADDRESSES GIVEN IN RETURN OF INCOME AND THERE WERE NO RECORD AVAILABLE REGARDING INTIMATION OF CHANGE OF ADDRESS BY THE AS SESSEE. BEFORE CIT (A) THE ASSESSEE FILED A COPY OF HIS CAPITAL ACCOUNT IN THE BAOOKS OF M/S D. K. CONSTRUCTION COMPANY IN WHICH HE WAS PROPRIETOR AND ALSO FILED A COPY OF BANK ACCOUNT IN WHICH CASH WAS DEPOSITED. BEFORE CI T (A) HE SUBMITTED THAT THE CASH WAS WITHDRAWN FROM HIS BUSINESS BOOKS AND WAS DEBITED TO HIS CAPITAL ACCOUNT WHEN IT WAS DEPOSITED IN THE SA VING ACCOUNT. THE LD. CIT (A) WITHOUT MAKING A FINDING REGARDING OBJECTIO N OF ASSESSING OFFICER ON MERITS DELETED THE ADDITION WHICH IN OUR OPINION IS NOT JUSTIFIED AS THE ASSESSING OFFICER WAS NOT SATISFIED ON THE MERITS O F THE CASE ALSO. AS THE ASSESSEE HAD NOT SUBMITTED COMPLETE BOOKS OF ACCOUN T AND ON THE BASIS OF JUST COPY OF CAPITAL ACCOUNT AND COPY OF BANK STATE MENT IT CANNOT BE SAID THAT SOURCE WAS FULLY EXPLAINED. THEREFORE WE ARE OF THE CONSIDERED OPINION THAT CASE OF THE ASSESSEE BE READJUDICATED BY ASSESSING OFFICER ITA NO.2990 /DEL/2012 8 AFRESH WHO WILL ASCERTAIN THE SOURCES OF CASH DEPOS IT FROM COMPLETE BOOKS OF ACCOUNT OF ASSESSEE. NEEDLESS TO SAY THAT NECESS ARY OPPORTUNITY WILL BE GIVEN TO ASSESSEE OF BEING HEARD. IN VIEW OF THE ABOVE THE APPEAL FILED BY REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 5 TH /07/ 2013 SD/- SD/- (U. B. S. BEDI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 5 TH DAY OF JULY 2013 S.SINHA COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT) NEW DELHI. AR ITAT NEW DELHI.