ITO Ward I, v. Usha Bhatia,

ITA 3610/DEL/2007 | 2003-2004
Pronouncement Date: 12-02-2010 | Result: Allowed

Appeal Details

RSA Number 361020114 RSA 2007
Bench Delhi
Appeal Number ITA 3610/DEL/2007
Duration Of Justice 2 year(s) 6 month(s) 3 day(s)
Appellant ITO Ward I,
Respondent Usha Bhatia,
Appeal Type Income Tax Appeal
Pronouncement Date 12-02-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted H
Tribunal Order Date 12-02-2010
Date Of Final Hearing 03-02-2010
Next Hearing Date 03-02-2010
Assessment Year 2003-2004
Appeal Filed On 09-08-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI R.P.TOLANI AND SHRI A.K.GARODIA ITA NOS.3610 & 3624/DEL/2007 ASSESSMENT YEAR : 2003-04 INCOME TAX OFFICER WARD-1 GURGAON. VS. SMT. USHA BHATIA & SRI BHARAT BHUSHAN BHATIA 5009 DLF PHASE IV GURGAON. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B. KISHORE SR. D.R. RESPONDENT BY : SHRI SUNIL ARORA C.A. ORDER PER A.K.GARODIA AM: BOTH THESE APPEALS ARE FILED BY THE REVENUE IN TWO DIFFERENT CASES OF SMT. USHA BHATIA AND SRI BHARAT BHUSHAN BHATIA FOR ASSESSMENT YEAR 2003- 04 AND THESE APPEALS ARE DIRECTED AGAINST TWO SEPAR ATE ORDERS OF THE LD. CIT(A) PUNCHKULA DATED 21/5/2007. SINCE THE ISSUES ARE INTER-CONNECTED AND COMMON ADDITIONS HAVE BEEN MADE BY THE ASSESSIN G OFFICER TO THE EXTENT OF 50% IN EACH CASE BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. SINCE GROUNDS OF APPEAL ARE IDENTICAL WE ARE RE PRODUCING THE GROUNDS OF APPEAL FROM ITA NO.3610/DEL/2007: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD.COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DE LETING THE ADDITION OF RS.6 13 000/- MADE BY THE A.O. ON ACCOU NT OF CASH DEPOSIT (50%) OF RS.12 26 000/-) IN SB ACCOUNT 2 NO.GJSB000028977 BY CONSIDERING THE ADDITIONAL EVID ENCE DURING THE APPELLATE PROCEEDINGS AND ALSO BY IGNORI NG THE FACT THAT THE ASSESSEE SHOWED HER IGNORANCE ABOUT THE SO URCE OF DEPOSITS DURING THE COURSE OF ASSESSMENT PROCEEDING S. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF RS.6 50 000/- MADE BY THE A.O. ON ACCOU NT OF CREDIT ENTRIES IN SB ACCOUNT NO. GJSB000028977 CONSIDERING THE ADDITIONAL EVIDENCE DURING THE APPELLATE PROCEEDING S AND ALSO BY IGNORING THE FACT THAT THE ASSESSEE FAILED TO PR ODUCE ANY DOCUMENTARY EVIDENCE REGARDING SALE OF PROPERTY AND FURNITURE AND FITTINGS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF RS.85 196/- (50% OF 1 70 392/-) MADE BY THE A.O. ON ACCOUNT OF CREDIT ENTRIES IN SB ACCOUNT NO. GJSB000028977 CONSIDERING THE FACT THAT THE SAID AM OUNT REPRESENTS ASSESSEES BUSINESS RECEIPTS WHEREAS THE ASSESSEE HAS SHOWN BUSINESS INCOME OF RS.78 000/- ONLY AND FAILE D TO PUT ON RECORD ANY DOCUMENTS AND EVIDENCE NAME THE PERSON F ROM WHOM SO CALLED BUSINESS RECEIPTS WERE RECEIVED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF RS.3 00 000/- MADE BY THE A.O. BEING DI FFERENCE IN THE CONTRACTED AMOUNT FOR CONSTRUCTION OF THE HOUSE AND THE ACTUAL PAYMENT MADE TO THE CONTRACTOR. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF RS.2 00 000/- MADE BY THE A.O. AS THE A SSESSEE FAILED TO MATCH THE PAYMENTS TO THE WITHDRAWALS FRO M THE BANK PAID TO THE CONTRACTOR. 3. REGARDING GROUND NO.1 THE BRIEF FACTS ARE THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE 13 AND 14 OF THE ASSESSME NT ORDER IN THE CASE OF 3 SMT. USHA BHATIA THERE WAS CASH DEPOSIT OF RS. 12 .26 LACS IN SB ACCOUNT NO.GJSB000028977. THE ASSESSING OFFICER HAS GIVEN D ATE-WISE DETAILS OF SUCH CASH DEPOSITS DURING THE PERIOD FROM 8/7/2002 TO 31/10/2002. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT ASSESSE ES COUNSEL WAS ASKED REGARDING THE SOURCE OF THESE CASH DEPOSITS BUT SHE SHOWED HER IGNORANCE AND COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSITS. AFTER MAKING THESE OBSERVATIONS IT WAS HELD BY THE ASSESSING OFFICER THAT IN THE ABSENCE OF ANY EXPLANATION REGARDING SOURCE OF CASH DEPOSITS IT H AS TO BE HELD THAT IT WAS OUT OF INCOME FROM UNDISCLOSED SOURCES WHICH IS LIA BLE TO BE TAXED. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT SINCE S MT. USHA BHATIA HAS HELD THIS AMOUNT IN THE JOINT NAME WITH HER HUSBAND SHRI BHARAT BHUSHAN BHATIA 50% ADDITION HAS TO BE MADE IN EACH CASE AND ACCORD INGLY ADDITION OF RS. 6.13 LACS WAS MADE ON THIS ACCOUNT IN THE HANDS OF SMT. USHA BHATIA AND SIMILAR ADDITION WAS MADE IN THE HANDS OF HER HUSBA ND SHRI BHARAT BHUSHAN BHATIA. BEING AGGRIEVED BOTH THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELETED THIS ADDITION IN BOTH THE CASES ON THE BASIS THAT SUCH CASH DEPOSIT IS EXPLAINED PARTLY OU T OF JEWELLERY SALES AND PARTLY OUT OF CASH WITHDRAWAL FROM BANK IN EARLIER YEARS. NOW THE REVENUE IS IN APPEAL BEFORE US. 4. IT WAS SUBMITTED BY LD. D.R. OF THE REVENUE THAT NO EXPLANATION WAS OFFERED BY THE ASSESSEE BEFORE THE ASSESSING OFFICE R. BEFORE THE LD. CIT(A) EXPLANATION WAS OFFERED REGARDING THE SOURCE OF CAS H DEPOSIT BEING OUT OF JEWELLERY SALE OF RS. 6 04 140/- AND OUT OF CASH WI THDRAWAL IN EARLIER YEARS FROM NRI BANK ACCOUNT NO. 20250 TO THE EXTENT OF RS .19 95 981/- DURING THE FINANCIAL YEAR 1999-2000 TO FINANCIAL YEAR 2002 -03 BUT THERE IS NO FINDING GIVEN BY THE LD. CIT(A) AS TO WHETHER THE C ASH WITHDRAWAL BY THE ASSESSEE IN EARLIER YEARS WERE LYING WITH THE ASSES SEE AS CASH IN HAND AND THE 4 SAME WAS SHOWN BY THE ASSESSEE IN RESPECTIVE BALANC E SHEET AS CASH IN HAND. REGARDING JEWELLERY SALES ALSO IT WAS SUBMITTED TH AT NO FINDING IS GIVEN BY LD.CIT(A) AS TO WHETHER SOURCE OF JEWELLERY IS PROP ERLY EXPLAINED AND CAPITAL GAIN ON SALE OF JEWELLERY IS OFFERED BY THE ASSESSE E OR NOT. IT WAS HIS SUBMISSION THAT ON THESE FACTS THIS MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION AFTER EXAMIN ING THESE ASPECTS. 5. AS AGAINST THIS IT WAS SUBMITTED BY LD. A.R. OF THE ASSESSEE THAT THIS ALLEGATION OF THE ASSESSING OFFICER IS NOT CORRECT THAT THE ASSESSEE SHOWED HER IGNORANCE REGARDING SOURCE OF CASH DEPOSIT. IT WAS ALSO SUBMITTED THAT SOURCE WAS DULY EXPLAINED WITH NO SPECIFIC FINDING OF ASSESSING OFFICER FOR NOT RELYING AND ACCEPTING THE SAID EXPLANATION. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT A GENERAL EXPLANATION WAS OFFERED BY THE ASSESSEE BEF ORE THE LD. CIT(A) THAT THESE CASH DEPOSITS ARE OUT OF PREVIOUS CASH WITHDR AWALS FROM NRI ACCOUNT NO.20250 AND FROM THE SALE OF JEWELLERY WHICH WAS H ELD BY THE ASSESSEE JOINTLY WITH HER HUSBAND. THERE IS NO FINDING GIVEN BY THE LD. CIT(A) REGARDING THIS ASPECT AS TO WHETHER THE SOURCE OF J EWELLERY IN THE HANDS OF THE ASSESSEE SMT. USHA BHATIA OR MR. B.B.BHATIA WAS PROPERLY EXPLAINED AND AS TO WHETHER THE ASSESSEE HAS DECLARED ANY CAPITAL GAIN/LOSS ON ACCOUNT OF THE SALE OF JEWELLERY. REGARDING THE CASH WITHDRAWA L FROM NRI BANK ACCOUNT NO.20250 IN EARLIER YEARS NO FINDING IS GI VEN BY THE LD. CIT(A) AS TO WHETHER THE ASSESSEE WAS SHOWING THE CASH IN HAN D IN THE BALANCE SHEET OF RESPECTIVE YEARS AND AS TO WHETHER THESE BALANCE SH EETS WERE FILED ALONG-WITH THE RETURN OF INCOME OF THOSE EARLIER YEARS. UNDER THESE FACTS WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE ASSES SING OFFICER FOR A FRESH 5 DECISION AFTER EXAMINING THIS ASPECT AND HENCE WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND RESTORE THE MATTER BAC K TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION AS PER ABOVE DISCUSSION AND THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PE R LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 7. GROUND NO.1 OF THE REVENUE IS ALLOWED FOR STATIS TICAL PURPOSES. 8. REGARDING GROUND NOS. 2 AND 3 THE FACTS ARE THA T IT IS NOTED BY THE ASSESSING OFFICER IN PARAGRAPH 8.1 OF THE ASSESSMEN T ORDER IN THE CASE OF SMT. USHA BHATIA THAT THE ASSESSEE HAS A BANK ACCOU NT NO.GJHB000028977 WITH CANARA BANK HAUZ KHAS NEW DELHI JOINTLY HELD WITH HER HUSBAND SHRI BHARAT BHUSHAN BHATIA IN 50 : 50 RATIO. THE AS SESSING OFFICER NOTED THAT AS PER BANK ACCOUNT IT IS REVEALED THAT THERE WERE CREDIT ENTRIES THROUGH ZONAL CLEARING OF RS.21 05 903/-. THE DETAILS OF TH ESE CREDIT ENTRIES ARE NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AN D OUT OF EIGHT SUCH ENTRIES ONE ENTRY OF RS.13 LACS IS ON 08/10/2002. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT DURING THE COURSE OF ASSESSM ENT PROCEEDINGS THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION ABOUT TH E NATURE AND SOURCE OF THESE CREDIT ENTRIES REFLECTED IN THE BANK ACCOUNT. SINCE THE ASSESSEE FAILED TO SUBMIT ANY EXPLANATION REGARDING CREDIT ENTRIES THE ASSESSING OFFICER HELD THAT THE SAME HAS TO BE TREATED AS INCOME OF T HE ASSESSEE AND ACCORDINGLY HE MADE ADDITION OF RS.10 52 952/- IN T HE HANDS OF THE ASSESSEE SMT. USHA BHATIA AND ADDITION OF RS.10 52 951/- WAS MADE IN THE HANDS OF SHRI BHARAT BHUSHAN BHATIA HUSBAND OF SMT. USHA BH ATIA. BEING AGGRIEVED BOTH THE ASSESSEES CARRIED THE MATTER IN APPEAL BEF ORE THE LD. CIT(A). THE LD. CIT(A) HAS DELETED THE ENTIRE ADDITION IN BOTH THE CASES EXCEPT FOR SMALL AMOUNT OF RS.35511/- OUT OF WHICH ADDITION OF RS.17 775/- WAS SUSTAINED IN 6 THE HANDS OF SMT. USHA BHATIA AND ADDITION OF RS.17 776/- WAS SUSTAINED IN THE HANDS OF SHRI BHARAT BHUSHAN BHATIA. THE REVENU E IS IN APPEAL BEFORE US REGARDING DELETION OF RS.13 LACS I.E. RS.6.50 LA CS IN EACH CASE AS PER GROUND NO.2. THE REVENUE IS ALSO IN APPEAL REGARDIN G DELETION OF RS.170392/- I.E. RS.85 196/- IN EACH CASE AS PER GR OUND NO.3. THIS AMOUNT OF RS.13 LACS WAS DELETED BY THE LD. CIT(A) ON THE BASIS THAT THIS CREDIT ENTRY HAS BEEN EXPLAINED BY THE ASSESSEE BEING OUT OF SAL E PROCEEDS OF HOUSE TO THE EXTENT OF RS.10.50 LACS AND SALE PROCEEDS OF FURNI TURE TO THE EXTENT OF RS.2.50 LACS. NOW THE REVENUE IS IN APPEAL BEFORE US. 9. IT IS SUBMITTED BY THE LD. D.R. OF THE REVENUE T HAT THIS MATTER SHOULD ALSO GO BACK TO THE FILE OF THE ASSESSING OFFICER F OR A FRESH DECISION BECAUSE IN THE REMAND REPORT ALSO IT HAS BEEN REPORTED BY THE ASSESSING OFFICER THAT AGAINST ONE CREDIT ENTRY OF RS.13 LACS THE ASSESSE E HAS SUBMITTED PHOTOCOPIES OF TWO CHEQUES OF RS.6.50 LACS AND RS.2 .50 LACS TOTALING TO RS.9 LACS. REGARDING SUBMISSIONS OF THE ASSESSEE THAT TH IS IS AMOUNT OF SALE PROCEEDS OF HOUSE AND FURNITURE IT WAS SUBMITTED T HAT FOR THIS CLAIM ALSO IT HAS TO BE EXAMINED AS TO WHETHER THE HOUSE AND FURN ITURE WERE PROPERLY DISCLOSED AND WHETHER THE ASSESSEE HAS DECLARED CAP ITAL GAIN ON SUCH SALE. 10. AS AGAINST THIS IT WAS SUBMITTED BY THE LD. A. R. OF THE ASSESSEE THAT IN FACT PHOTOCOPY OF THREE CHEQUES WERE SUBMITTED TO THE ASSESSING OFFICER AND TOTAL OF THESE THREE CHEQUES IS RS.13 LACS. IT IS SUBMITTED THAT PHOTOCOPIES OF THESE CHEQUES ARE AVAILABLE ON PAGE NO. 98 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT PHOTOCOPY OF SALE DEED OF HOUSE FOR RS.10.50 LACS IS AVAILABLE ON PAGE 88 TO 96 OF THE PAPER BOO K AND COPY OF RECEIPT AGAINST SALE OF HOUSEHOLD GOODS FOR RS.2.50 LACS IS AVAILABLE ON PAGE 97 OF THE PAPER BOOK. ADDITIONAL EVIDENCE WAS ALSO SUBMIT TED IN THE FORM OF 7 CERTIFICATE FROM THE BANK TO THE EFFECT THAT THIS C REDIT ENTRY OF RS. 13 LACS IS AGAINST THREE CHEQUES. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT THIS ISSUE SHOULD ALSO GO BACK TO THE FILE OF ASSES SING OFFICER FOR A FRESH DECISION BECAUSE EVEN IF THIS CREDIT ENTRY OF RS.13 LACS IS ON ACCOUNT OF SALE PROCEEDS OF HOUSE AND FURNITURE IT HAS TO BE SEEN AND EXAMINED AS TO WHETHER THERE WAS ANY CAPITAL GAIN ON SUCH SALE AND THE SAID CAPITAL GAIN WAS OFFERED TO TAX BY THE ASSESSEE OR NOT. IT ALSO NEED S EXAMINATION AS TO WHETHER SUCH HOUSE AND FURNITURE WERE DULY DISCLOSED BY THE ASSESSEE BEFORE THE DEPARTMENT IN ANY EARLIER YEAR. HENCE WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE ALSO AND RESTORE THIS MATTER B ACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION IN THE LIGHT OF ABOVE DISCUSSION AND THE A.O. SHOULD PASS NECESSARY ORDER AS PER LAW AFT ER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. GROUND NO. 2 OF THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 13. FACTS REGARDING GROUND NO.3 ARE THAT THIS ADDIT ION WAS DELETED BY THE LD. CIT(A) ON THE BASIS THAT THE ASSESSING OFFICER HAS TO ENSURE THAT THE ADDITION DOES NOT RESULT IN TAXING THE SAME INCOME TWICE WHICH HAS HAPPENED IN THIS CASE. REGARDING GROUND NO.3 OF TH E REVENUE WE FIND THAT REGARDING DEPOSITING IN BANK ACCOUNTS TOTALING TO R S. 1 70 392/- IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE THE LD. CIT(A) TH AT THE SAME IS OUT OF INCOME WHICH HAS ALREADY BEEN DECLARED IN THE INCOM E TAX RETURNS FILED BY THESE TWO ASSESSEES. THE LD. CIT(A) HAS ACCEPTED TH IS CLAIM OF THE ASSESSEE WITHOUT EXAMINING THE ASPECT AS TO HOW MUCH BUSINES S INCOME WAS OFFERED 8 BY THESE TWO ASSESSEES IN THIS YEAR AND WHETHER THE SE CREDIT ENTRIES IN QUESTION ARE COVERED BY SUCH BUSINESS INCOME IF AN Y DECLARED BY THESE TWO ASSESSEES. AS PER THE BREAK UP OF THIS AMOUNT OF RS . 1 70 392/- WE FIND THAT THE RELEVANT CREDIT ENTRIES ARE AS UNDER: DATE AMOUNT (RS.) 05/3/2002 26 092/- 19/8/2002 4 300/- 19/9/2002 60 000/- 07/10/2002 60 000/- 08/10/2002 20 000/- 1 70 392/- WE FIND THAT BUSINESS INCOME DECLARED BY THESE TWO ASSESSEE IS RS.78 000/- IN THE CASE OF SMT. USHA BHATIA AND RS.48 000/- IN THE CASE OF HER HUSBAND SHRI BHARAT BHUSHAN BHATIA TOTAL OF WHICH COMES TO RS.1 26 000/- ONLY. UNDER THESE FACTS THIS CLAIM IS REQUIRED TO BE EXA MINED BY THE ASSESSING OFFICER AND HENCE ON THIS ISSUE ALSO THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND MATTER IS RESTORED TO THE FILE OF ASSESSING OFF ICER FOR A FRESH DECISION AFTER EXAMINING THE CLAIM OF THE ASSESSEE THAT THES E CREDIT ENTRIES OF RS.1 70 392/- IS IN CONNECTION WITH BUSINESS INCOME ALREADY DECLARED BY THESE TWO ASSESSEES IN THE RETURN OF INCOME FILED B Y THEM. THE ASSESSING OFFICER SHOULD EXAMINE THE RELEVANT FACTS AND THEN DECIDE THE ISSUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO.3 OF THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 14. REGARDING GROUND NO.4 THE FACTS ARE THAT IT IS NOTED BY THE ASSESSING OFFICER IN PARAGRAPH 10.1 OF THE ASSESSMENT ORDER T HAT THE ASSESSEE SMT. USHA BHATIA JOINTLY PURCHASED WITH HER HUSBAND A PL OT AT GURGAON AS PER PURCHASE DEED DATED 26/4/2001 FOR RS.15 LACS. IT IS ALSO NOTED THAT THE 9 CONSTRUCTION OF RESIDENTIAL HOUSE WAS CARRIED OUT T HROUGH CONTRACTOR M/S CHIC BUILDERS. IT IS FURTHER NOTED THAT AS PER AGRE EMENT DATED 01/7/2001 THE COST OF CONSTRUCTION WAS SETTLED FOR RS.30 LACS AND THE CONSTRUCTION COMMENCED IMMEDIATELY WHICH WENT ON TILL OCTOBER 20 02. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DETAILS O F THE PAYMENT MADE TO THE CONTRACTOR AND AS PER DETAILS FURNISHED IT WAS REG ARDING PAYMENT OF RS. 27 LACS AND THE DETAILS REGARDING PAYMENT OF THE BALAN CE AMOUNT OF RS. 3LACS COULD NOT BE EXPLAINED BY THE ASSESSEE. ACCORDINGLY THE ASSESSING OFFICER MADE ADDITION OF RS. 3 LACS ON THIS ACCOUNT ON THE BASIS THAT THIS AMOUNT WAS PAID BY THE ASSESSEE OUT OF HER INCOME FROM UNDISCL OSED SOURCES. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEA L BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) IT WAS SUBMITTED BY THE ASSE SSEE THAT ALTHOUGH AS PER THE AGREEMENT THE COST OF CONSTRUCTION WAS AGREED WITH THE BUILDER AT RS. 30 LACS BUT ACTUAL PAYMENT WAS MADE ONLY OF RS. 27 LAC S FOR WHICH THE ASSESSEE HAD SHOWN THE SOURCE AND THE BALANCE SUM OF RS. 3 L ACS WAS NOT PAID AND HENCE THE ADDITION MADE BY THE ASSESSING OFFICER I S NOT JUSTIFIED. LD. CIT(A) HAS DELETED THIS ADDITION. NOW THE REVENUE IS IN APPEAL BEFORE US AGAINST THIS DELETION. 15. IT WAS SUBMITTED BY THE LD. D.R. OF THE REVENUE THAT INDEPENDENT EVIDENCE FROM THE CONTRACTOR WAS NOT PRODUCED REGAR DING THIS CLAIM THAT FULL PAYMENT OF RS. 30 LACS WAS NOT MADE AND HENCE THIS MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DE CISION AND THE ASSESSEE SHOULD BE DIRECTED TO PRODUCE THE CONTRACTOR TO VER IFY THIS CLAIM OF THE ASSESSEE AS TO WHETHER PAYMENT WAS MADE OF ONLY RS. 27LACS. AS AGAINST THIS IT WAS SUBMITTED BY THE LD. A.R. OF THE ASSES SEE THAT ADDITION WAS MADE ONLY ON THE BASIS OF SURMISES AND CONJECTURES AS TH ERE IS NO SPECIFIC FINDING THAT THE SAID AMOUNT OF RS. 3 LACS HAS BEEN PAID. H E ALSO SUBMITTED AN 10 AFFIDAVIT OF SMT. USHA BHATIA AS ADDITIONAL EVIDENC E. AS PER THIS AFFIDAVIT IT IS STATED THAT THE SUM OF RS. 3 LACS WAS NEVER PAID SINCE THE CONTRACTOR HAS NOT CARRIED OUT THE WORK AS PER THE STIPULATED TIME FRAME AND THE QUALITY OF WORK WAS NOT AS PER SATISFACTION. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND THAT ADMITTEDLY THERE WAS NO EVIDENCE WITH THE ASS ESSING OFFICER THAT THE ASSESSEE HAS MADE THE PAYMENT OF RS. 3 LACS ALSO BU T AT THE SAME TIME THE AGREEMENT WITH THE BUILDER IS FOR RS. 30 LACS AND H ENCE IT IS THE CLAIM OF THE ASSESSEE THAT ONLY A SUM OF RS. 27 LACS WAS PAID AN D THE BALANCE AMOUNT OF RS. 3 LACS WERE NOT PAID AND HENCE THE BURDEN IS O N THE ASSESSEE TO ESTABLISH THAT AGAINST AN AGREEMENT VALUE OF RS. 30 LACS PAYM ENT WAS MADE ONLY TO THE EXTENT OF RS. 27 LACS. THE ASSESSEE SHOULD HAVE PRO DUCED THE CONTRACTOR BEFORE THE ASSESSING OFFICER OR ASSESSEE SHOULD HAV E PRODUCE COMPLETE ADDRESS OF THE CONTRACTOR ENABLING THE ASSESSING OF FICER TO SUMMON HIM FOR HIS EXAMINATION. BEFORE ACCEPTING THE CLAIM OF THE ASSESSEE ON THIS POINT THE LD. CIT(A) SHOULD HAVE CARRIED OUT THIS EXERCISE BU T THAT WAS NOT DONE AND HENCE WE ARE IN AGREEMENT WITH THE LD. D.R. OF THE REVENUE THAT THIS MATTER SHOULD GO BACK TO THE FILE TO THE ASSESSING OFFICER FOR FRESH DECISION. WE THEREFORE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND RESTORE THIS MATTER ALSO TO THE FILE OF THE ASSESSING OFFICER FO R A FRESH DECISION. WE WANT TO CLARIFY THAT THE BURDEN IS ON THE ASSESSEE TO ES TABLISH THAT AGAINST THE AGREEMENT VALUE OF RS. 30 LACS PAYMENT WAS MADE BY THE ASSESSEE OF RS.27 LACS ONLY. FOR THAT THE ASSESSEE MAY PRODUCE THE C ONTRACTOR BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION OR THE ASSESS EE MAY FURNISH THE PRESENT ADDRESS OF THE CONTRACTOR ENABLING THE ASSE SSING OFFICER TO SUMMON THE CONTRACTOR AND EXAMINE HIM. THE ASSESSEE MAY SA TISFY THE ASSESSING OFFICER ON THIS ASPECT THROUGH ANY OTHER MODE WHICH IS POSSIBLE AS PER THE 11 ASSESSEE. THE ASSESSING OFFICER SHOULD PASS NECESSA RY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. GROUND NO.4 OF THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURP OSES. 17. REGARDING GROUND NO.5 THE FACTS ARE THAT IT IS NOTED BY THE ASSESSING OFFICER IN PARAGRAPH 10.2 OF THE ASSESSMENT ORDER T HAT THE ASSESSEE HAS MADE PAYMENTS IN CASH TO THE CONTRACTOR M/S CHICK BUILDE R OF RS. 2 LACS ON VARIOUS DATES I.E. ON 31/5/2002 RS.50 000/- 02/7/2 002 RS.50 000/- AND 14/7/2002 RS. 1 LAC.. IT IS FURTHER NOTED BY THE AS SESSING OFFICER THAT AS PER THE BANK STATEMENT IT IS FOUND THAT THERE WAS NO AL LEGED WITHDRAWAL ON OR ABOUT THE DATES WHEN CASH WAS PAID TO THE CONTRACTO R. UNDER THESE FACTS THE ASSESSING OFFICER HELD THAT SUCH CASH PAYMENTS OF R S. 2 LACS IS OUT OF THE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE. BEI NG AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD . CIT(A). 18. BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT EV ERY PAYMENT MAY NOT HAVE MATCHING WITHDRAWAL FROM THE BANK AND THE SAME CAN BE MADE OUT OF CASH IN HAND. BY ACCEPTING THIS EXPLANATION OF THE ASSESSEE THE LD. CIT(A) DELETED THIS ADDITION AND NOW THE REVENUE IS IN APP EAL BEFORE US. 19. IT IS SUBMITTED BY THE LD. D.R. OF THE REVENUE THAT SUCH GENERAL EXPLANATION OF THE ASSESSEE CANNOT BE ACCEPTED WITH OUT EXAMINING THE CASH FLOW OF THE ASSESSEE AND AVAILABILITY OF CASH IN HA ND IN THE HANDS OF THE ASSESSEE. SINCE IT WAS NOT DONE IT IS SUBMITTED B Y THE LD. D.R. OF THE REVENUE THAT MATTER MAY GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. 12 20. AS AGAINST THIS IT WAS SUBMITTED BY THE A.R. O F THE ASSESSEE THAT CASH PAYMENT WAS DULY EXPLAINED IN THE RECEIPT AND PAYME NT ACCOUNT WHICH IS AVAILABLE ON PAGE NO.108 OF THE PAPER BOOK. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. WE FIND THAT AS PER THE CASH RECEIPT AND PA YMENT FOR THE PRESENT YEAR AVAILABLE IN THE PAPER BOOK ON PAGE NO.108 DATE-WI SE BALANCING HAS NOT BEEN DONE AND HENCE IT IS NOT CLEAR AS TO WHETHER CASH WAS AVAILABLE ON GIVEN DATES OF CASH PAYMENT AND WHETHER THE DATES A ND AMOUNT OF CASH WITHDRAWAL AND CASH DEPOSITS ARE TALLYING WITH RESP ECTIVE BANK STATEMENTS. REGARDING THE OPENING BALANCE ALSO WE DO NOT KNOW AS TO WHETHER THE SAME IS AS PER THE BALANCE SHEET OF THESE TWO ASSESSEES FOR THE PRECEDING YEAR HAVE NOT SUBMITTED THE SAME WITH THE ASSESSING OFFICER A LONG WITH RETURN OF INCOME. UNDER THESE FACTS WE FEEL THAT THIS MATTER SHOULD ALSO GO BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH DECISION. THE A SSESSEE SHOULD FURNISH BEFORE THE ASSESSING OFFICER THE EVIDENCE THAT THE OPENING CASH BALANCE IS AS PER BALANCE SHEET OF THESE TWO ASSESSEES FOR THE PR ECEDING YEAR HAVING BEEN SUBMITTED BEFORE THE ASSESSING OFFICER ALONG WITH T HE RETURN OF INCOME. THE ASSESSEE SHOULD ALSO CORRELATE CASH DEPOSITS AND CA SH WITHDRAWALS WITH THE RESPECTIVE BANK STATEMENTS AND SHOULD ALSO WORK OUT DATE-WISE CASH BALANCING TO SHOW THAT THERE IS NO CASH DEFICIT ON ANY GIVEN DATE AND IF THE ASSESSEE CAN SATISFY THE AVAILABILITY OF CASH ON TH ESE DATES WHEN THERE WAS CASH PAYMENT TO CONTRACTOR NO ADDITION CAN BE MADE . THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AND AS PER A BOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. GROUND NO.5 OF THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURP OSES. 13 22. IN THE RESULT BOTH THESE APPEALS OF THE REVENU E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12TH FEBRUAR Y 2010. SD/- SD/- (R.P.TOLANI ) ( A.K.GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12.02.2010. PSP COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR