ITO, Gurgaon v. Smt. Seema Jyani, Gurgaon

ITA NO. 493/DEL/2010 A.Y. 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 493/DEL/2010 A.Y. 2006-07 INCOME TAX OFFICER WARD-5 VS. SMT. SEEMA J YANI GURGAON 1403 TOWER-I UNIWORLD GARDENS SOHNA ROAD GURGAON (PAN: AZUPS0984N) [APPELLANT] (RESPONDENT) ASSESSEE BY : SH. SANJAY KUMAR SHARMA AR DEPARTMENT BY : SH. B.K. RAO SR. DR ORDER PER SHAMIM YAHYA AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) DATED 27.11.2009 AND PERTAINS TO ASSESSMENT YEAR 2 006-07. 2. THE ISSUE RAISED IS THAT LD. CIT(A) ERRED IN D ELETING THE ADDITIONS MADE BY THE AO. 3. IN THIS CASE THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS S OF SUPPLY OF LABOUR CONTRACTOR. HE FILED A RETURN OF INCOME OF RS. 119230/- ON 29.3.2007. THE CASE WAS SELECTED FOR COMPULSORY SCRUTINY AND NOTICES WERE ISSUED. THERE WAS NO COMPLIANCE OF THE NOTICES IS SUED. AO PROCEEDED TO COMPLETE THE ASSESSMENT U/S 144 OF THE IT ACT. AO MENTIONED THAT BANK ACCOUNT OF THE ASSESSEE HAS BEEN OBTAINED FROM STANDARD CH ARTERED BANK. THE ASSESSEE ITA NO. 493/DEL/2010 A.Y. 2006-07 2 HAS DEPOSITED CHEQUES OF RS. 6500234/- IN THE BANK ACCOUNT. IN THIS REGARD AO ALSO REFERRED TO THE TDS CERTIFICATE ISSUED BY THE RDC CONCRETE (INDIA) LIMITED TO THE ASSESSEE FOR THE GROSS RECEIPT OF RS. 2161602/- AND NET RECEIPT AFTER DEDUCTION OF TDS OF RS. 1986076/-. THE DIFFERENCE BETWEEN THE NET RECEIPT AS PER THE TDS AND THE CHEQUE DEPOSITED AMOUNTING TO RS. 4 5 14 158/- WAS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. 4. THE ASSESSEE IN HIS CAPITAL ACCOUNT HAS SHO WED RS. 4 LACS AS GIFT RECEIVED FROM HIS FATHER. IN THE ABSENCE OF GIFT DEED ETC. AND OTHER DOCUMENTARY EVIDENCE AO PROCEEDED TO TREAT THE SAME AS UNDISCL OSED INCOME OF THE ASSESSEE. AO ALSO NOTED THAT ASSESSEE WAS HAVING CASH DEPOSIT S OF RS. 5 LACS IN THE BANK ACCOUNT ON 27.3.2006. IN THE ABSENCE OF DETAILS AO TREATED THE SAME ALSO AS UNDISCLOSED INCOME OF THE ASSESSEE. 5. AGAINST THESE ADDITIONS THE ASSESSEE APPEALED BE FORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THE VA RIOUS DETAILS. LD. CIT(A) ALSO MENTIONED TO THE REMAND REPORT HAVING BEEN TAKEN FR OM THE AO. LD. CIT(A) FURTHER ADMITTED THE ADDITIONAL EVIDENCE BY HOLDIN G THAT AO WAS IN HURRY TO FINALISE THE ASSESSMENT AND IN REMAND REPORT A.O. H AD NOT OBJECTED THE FURNISHING OF ADDITIONAL EVIDENCE. ASSESSEE EXPLAINED BEFOR E THE LD. CIT(A) THAT THE SOURCE OF DEPOSITS IN THE BANK AMOUNTING TO RS. 6500234/- WERE ON ACCOUNT OF FOLLOWING RECEIPTS:- A) SALES RS. 29 84 876/- B) REIMBURSABLE FREIGHT RS. 21 15 358/- C) GIFT FROM FATHER RS. 4 LACS D) CHEQUES RECEIVED FROM SHRI VISHAL JAIN RS. 10 LACS ITA NO. 493/DEL/2010 A.Y. 2006-07 3 6. AS REGARDS THE REIMBURSEMENT OF FREIGHT MENTIONE D ABOVE THE LD. CIT(A) NOTED THAT AO IN HIS REMAND REPORT HAD MENTIONED T HAT THE FREIGHT PAYMENT WERE NEITHER RECORDED IN CASH BOOK NOR FROM THE BA NK ACCOUNT. DESPITE THE SAME LD. CIT(A) PROCEEDED TO ACCEPT THE VERACITY O F REIMBURSEMENT OF FREIGHT AND ALL OTHER DEPOSITS SHOWED BY THE ASSESSEE. 6.1 ON THE SECOND ISSUE OF THE ADDITION OF RS. 4 LA CS OF GIFT RECEIVED FROM FATHER. LD. CIT(A) REFERRED TO THE AFFIDAVIT SUBMITTED FROM THE FATHER IN THIS REGARD AND DELETED THE ADDITION. 6.2 AS REGARDS THE CASH DEPOSITS OF RS. 5 LACS LD. CIT(A) ACCEPTED THAT FOR THE CASH DEPOSITS THE ASSESSEE HAD THE CASH AVAILABIL ITY WITH HIM AND DELETED THE ADDITION. 6.3 AGAINST THE ABOVE CIT(A)S ORDER THE REVENUE IS IN APPEAL BEFORE US. 6.4 WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAD NOT PRODUCED AN Y BOOKS RECORDS OR DETAILS BEFORE THE AO. IN FACT HE HAD NOT RESPONDED TO THE NOTICES ISSUED. SEVERAL ADDITIONAL EVIDENCES WERE SUBMITTED BEFORE THE LD. CIT(A). LD. CIT(A) PROCEEDED TO ACCEPT THE VERACITY OF THOSE SUBMISSIONS DESPITE AO POINTING TO INFIRMITY THEREIN. AS REGARDS THE REIMBURSEMENT OF FREIGHT CLEARLY MENTIONED THAT THE FREIGHT AO HAD PAYMENTS WERE NEITHER MADE FROM CASH BOOK NOR FROM BANK. STILL THE LD. CIT(A) ACCEPTED THE ASSESSEES SUBMISSION. FURTHER AS REGARDS THE GIFT FROM FATHER THERE IS NO DISCUSSION REGARDING THE CR EDITWORTHINESS OF THE DONOR IN THIS REGARD. FURTHER RS. 5 LACS CASH DEPOSITS IN THE BANK HAS BEEN ACCEPTED ON THE BASIS THAT CASH BOOKS SHOWED AVAILABILITY OF TH E CASH DESPITE THE AOS OBJECTION THAT THERE WERE LACUNAE IN THE CASH BOOK. UNDER THE CIRCUMSTANCES IN ITA NO. 493/DEL/2010 A.Y. 2006-07 4 OUR CONSIDERED OPINION ALL THE ISSUES IN THE APPEAL REQUIRE EXAMINATION AFRESH BY THE AO IN THE LIGHT OF THE ADDITIONAL EVIDENCES BO OKS AND RECORDS OF THE ASSESSEE. BOTH THE COUNSELS FAIRLY AGREED TO THI S PROPOSITION. ACCORDINGLY WE REMIT THE ISSUES RAISED IN THE APPEAL TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO FULL Y COOPERATE WITH THE AO. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/201 0 UPON CONCLUSION OF THE HEARING. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 01/04/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES