Neeti Mittal, New Delhi v. ITO, New Delhi

ITA 689/DEL/2017 | 2011-2012
Pronouncement Date: 14-11-2019 | Result: Partly Allowed

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Appeal Details

RSA Number 68920114 RSA 2017
Assessee PAN AIHPM7878B
Bench Delhi
Appeal Number ITA 689/DEL/2017
Duration Of Justice 2 year(s) 9 month(s) 7 day(s)
Appellant Neeti Mittal, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2019
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 14-11-2019
Assessment Year 2011-2012
Appeal Filed On 07-02-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI O.P. KANT ACCOUNTANT MEMBER ITA NO.689/DEL/2017 ASSESSMENT YEAR: 2011-12 MS. NEETI MITTAL 70 MITTAL BHAWAN DARYA GANJ NEW DELHI VS. INCOME TAX OFFICER WARD-30(2) NEW DELHI PAN :AIHPM7878B (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST O RDER DATED 01/11/2016 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-16 NEW DELHI [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2011-12 RAISING FOLLOWING GROUNDS: 1. THAT THE LD. A.O. AS WELL AS LD. CIT (APPEAL) H AVE FAILED TO APPRECIATE THE EVIDENCE PRODUCED BEFORE THE AUTHORI TIES BELOW AND HAS WRONGLY ADDED RS. 15 00 000/- BORROWED FROM M/S ABHINANDAN TRAFFIN PVT. LTD. 2. THAT THE LD. A.O. AS WELL AS LD. CIT (APPEAL) HA VE FAILED TO APPRECIATE THE EVIDENCE PRODUCED BEFORE THE AUTHORI TIES BELOW AND HAS WRONGLY ADDED RS. 15 00 000/- BORROWED FROM M/S HOLLYSEA FINVEST PVT. LTD. APPELLANT BY SHRI P.P. MITTAL CA RESPONDENT BY SHRI ATIQ AHMAD SR.DR DATE OF HEARING 17.09.2019 DATE OF PRONOUNCEMENT 14.11.2019 2 ITA NO.689/DEL/2017 3. THAT THE LD. A.O. AS WELL AS LD. CIT (APPEAL) HA VE FAILED TO APPRECIATE THE EVIDENCE PRODUCED BEFORE THE AUTHORI TIES BELOW AND HAS WRONGLY ADDED RS. 18 00 000/- RECEIVED FROM MRS . SONAL KHANDELWAL WIFE OF SH. NAVEEN KHANDELWAL. 4. THAT THE LD. A.O. AS WELL AS LD. CIT (APPEAL) HA VE FAILED TO APPRECIATE THE EVIDENCE PRODUCED BEFORE THE AUTHORI TIES BELOW AND HAS WRONGLY ADDED RS.1 11 49 200/- BORROWED FROM PR AHLAD DASS & SONS. 5. THAT THE ENTIRE ASSESSEMENT ORDER AS WELL AS APP EAL ORDER IS WRONG ARBITRARY ILLEGAL UNJUST AGAINST THE FACT AS WELL AS AGAINST THE LAW. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SSEE AN INDIVIDUAL FILED HER RETURN OF INCOME ON 26/03/201 2 DECLARING TOTAL INCOME OF 2 21 868/-. THE CASE WAS SELECTED FOR SCRUTINY AND IN THE SCRUTINY ASSESSMENT COMPLETED UNDER SECT ION 143(3) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) THE TOTAL INCOME WAS ASSESSED AT 2 23 31 070/- AFTER MAKING CERTAIN ADDITIONS/DISALLOWANCES. ON FURTHER APPEAL THE LD. CIT(A) ALLOWED PART RELIEF AND SUSTAINED FEW ADDITIONS. AG GRIEVED WITH THE ADDITION SUSTAINED BY THE LEARNED CIT(A) THE A SSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE GROUNDS AS R EPRODUCED ABOVE. 3. BEFORE US THE LD. COUNSEL OF THE ASSESSEE HAS FIL ED A PAPER- BOOK CONTAINING PAGE 1 TO 124 . 3.1 IN SUPPORT OF GROUND NO. 1 AND 2 THE LD. COUNSEL OF THE ASSESSEE REFERRED TO PAGE 10 TO 96 OF THE PAPER-BOO K AND SUBMITTED THAT ALL THE DOCUMENTS SUBSTANTIATING ID ENTITY AND CREDITWORTHINESS OF THE LOAN CREDITOR AND GENUINENE SS OF THE TRANSACTION WERE ALREADY FILED BEFORE THE LOWER AUT HORITIES AND THE ASSESSEE DISCHARGED HER ONUS UNDER SECTION 68 OF TH E ACT. 3 ITA NO.689/DEL/2017 3.2 THE LD. DR ON THE OTHER HAND RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 3.3 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT LEARN ED ASSESSING OFFICER MADE ADDITION IN RESPECT OF LOAN CREDITOR O F 15 LAKH EACH FROM M/S ABHINANDAN TRAFFIN PRIVATE LIMITED AND M/S HOLLYSEA FINVEST P LTD. MAINLY ON THE GROUND THAT THOSE PART IES COULD NOT BE LOCATED AT THEIR ADDRESS BY THE INSPECTOR OF THE OFFICE OF THE ASSESSING OFFICER AND THE ASSESSEE ALSO FAILED TO P RODUCE THEM BEFORE THE ASSESSING OFFICER. BEFORE THE LEARNED CI T(A) ALSO THE ASSESSEE COULD NOT PRODUCE PRINCIPAL OFFICER OF THO SE LOAN CREDITOR COMPANIES. IN VIEW OF THE FACTS OF THE CASE THE LE ARNED CIT(A) UPHELD THE ADDITION OBSERVING AS UNDER: I HAVE CONSIDERED ALL FACTS AND CIRCUMSTANCES OF T HE CASE. THE APPELLANT HAS CLAIMED TO HAVE RECEIVED A VERY SUBST ANTIAL AMOUNT I.E. RS.30 LAKHS FROM THE ABOVE MENTIONED TWO COMPA NIES. THE ASSESSEE HAS FILED THE DOCUMENTS IN THE FORM OF CON FIRMATION BANK STATEMENT ITR ETC. FROM THE PERUSAL OF THE BANK ST ATEMENT OF M/S ABHINANDAN TRAFFIN PVT. LTD IT IS SEEN THAT THE LO AN WAS ADVANCED TO THE APPELLANT MS. NEETI MITTAL ON 30/06/2010 AND ON 28/06/2010 THERE WAS A DEPOSIT OF RS.15 LAKHS. THE REAFTER THERE WAS HARDLY ANY TRANSACTION AND CLOSING BALANCE AS O N 21/07/2010 IS RS.9 791.29. ALMOST IDENTICAL IS THE SITUATION I N THE BANK STATEMENT OF M/S HOLLYSEA FINVEST PVT. LTD. RS.15. LAKHS WERE DEPOSITED ON 30/06/2010 AND ON THE SAME DAY THEY WE RE TRANSFERRED TO MS NEETI MITTAL LEAVING IN THE BALAN CE OF RS.11 029.28 ONLY AS ON 30/06/2010. THE AMOUNT OF LOAN RECEIVED FROM M/S. ABHINANDAN TRAFFIN PVT LTD AND M/S HOLLYSEA FINVEST PVT. LTD. ARE NOT ABOVE BOARD. THE APPELLANT HAS NOT BEEN ABLE TO GIVE ONE REASON FOR NOT BEEN ABLE TO PRODUCE THE DIRECTORS BEFORE T HE ASSESSING OFFICER. JUST BECAUSE THE LOAN HAVE BEEN RECEIVED THROUGH BANKING CHANNEL THE SAME DOES NOT BECOME GENUINE. SIMILARL Y THE FILING OF ITR PER SAY DOES NOT REVEAL THE CREDITWORTHINESS OF THE LENDER. THE ASSESSING OFFICER HAS RIGHTLY REJECTED THE CONTENTI ON OF THE APPELLANT. I DO NOT FIND ANY REASON TO INTERFERE WITH THE FIND ING OF THE AO. THE ADDITION OF RS.15 LAKHS EACH AS UNEXPLAINED CASH C REDIT FROM M/S ABHINANDAN TRAFFIN PVT LTD AND M/S HOLLYSEA FINVEST PVT. LTD. IS CONFIRMED. 4 ITA NO.689/DEL/2017 3.4 IN OUR OPINION MERELY FILING OF CONFIRMATION LETT ER AND BANK STATEMENT AND OTHER FINANCIAL STATEMENTS REQUIREME NT OF SECTION 68 OF ESTABLISHING IDENTITY AND CREDITWORTHINESS OF THE PARTIES AND GENUINENESS OF THE TRANSACTION CANNOT BE FULFILLED PARTICULARLY WHEN CASH DEPOSITS ARE APPEARING IN THE BANK STATEM ENTS OF THE LOAN CREDITORS IMMEDIATELY PRIOR TO THE DATE OF GIV ING LOAN TO THE ASSESSEE. IN SUCH CIRCUMSTANCES THE ONUS IS ON THE ASSESSEE TO PRODUCE THOSE PERSONS BEFORE THE ASSESSING OFFICER AND JUSTIFY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . THE ASSESSEE HAS FAILED TO PRODUCE THE LOAN CREDITOR PA RTIES IN ASSESSMENT PROCEEDING AS WELL AS DURING FIRST APPEL LATE PROCEEDINGS BEFORE INCOME-TAX AUTHORITIES AND THUS SHE FAILED TO DISCHARGE HER ONUS UNDER SECTION 68 OF THE ACT. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE WE DO NOT FIND ANY ERROR IN THE FINDING OF THE LEARNED CIT(A) ON THE ISSUE IN D ISPUTE AND ACCORDINGLY WE UPHOLD THE SAME. THE GROUNDS NO. 1 & 2 OF THE APPEAL OF THE ASSESSEE ARE ACCORDINGLY DISMISSED. 4. IN GROUND NO. 3 THE ASSESSEE AGGRIEVED WITH THE CONFIRMATION OF THE ADDITION OF 18 LAKH RECEIVED FROM MRS. SONAL KHANDELWAL WIFE OF SH. NAVEEN KHANDELWAL UNDER SE CTION 68 OF THE ACT. 4.1 REGARDING THE ADDITION THE ASSESSING OFFICER HAS N OTED THAT HE DID NOT FIND THE ENTRY OF THE LOAN AMOUNT OF 18 LAKH IN THE NAME OF SMT. SONAL KHANDELWAL IN THE BALANCE SHEET FILED BY THE ASSESSEE. IT WAS EXPLAINED BY THE ASSESSEE THAT IN THE BALANCE SHEET SAID LOAN WAS BY MISTAKE ENTERED IN THE NAME OF HER HUSBAND SH. NAVEEN KHANDELWAL. IT WAS FURTHER EXP LAINED BY 5 ITA NO.689/DEL/2017 THE ASSESSEE THAT ADVANCE WAS RECEIVED FROM HER FOR THE PURPOSE OF REGISTRATION OF THE PROPERTY. THE CONTENTIONS OF THE ASSESSEE WERE NOT ACCEPTED BY THE ASSESSING OFFICER IN ABSEN CE OF EVIDENCE IN SUPPORT OF IDENTITY CREDITWORTHINESS AND GENUIN ENESS OF THE TRANSACTION. THE LEARNED CIT(A) ALSO UPHELD THE ADD ITION. 4.2 BEFORE US THE LD. COUNSEL OF THE ASSESSEE REFERRE D TO PAGES 97 & 98 TO 115 OF THE PAPER BOOK WHICH IS COPY OF CONFIRMATION OF MRS. SONAL KHANDELWAL AND COPY OF THE PLAINT OF THE SUIT FILED BY MRS. SONAL KHANDELWAL. THE LD. COUNSEL SUBMITTED THAT IN VIEW OF THE DOCUMENTS FILED THE ASSESSEE HAS DISCH ARGED HER ONUS UNDER SECTION 68 OF THE ACT AND THIS ADDITION MIGHT BE DELETED. 4.3 THE LD. DR ON THE OTHER HAND RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 4.4 WE HAVE HEARD RIVAL SUBMISSION AND PERUSED THE REL EVANT MATERIAL ON RECORD. THE LEARNED CIT(A) SUSTAINED AD DITION OBSERVING AS UNDER: I HAVE CONSIDERED ALL FACTS AND CIRCUMSTANCES OF T HE CASE. THE LD AR DURING THE APPELLATE PROCEEDINGS HAS JUST REITER ATED SUBMISSIONS BEFORE ASSESSING OFFICER. APART FROM THE SUBMISSION THE AR ALSO PLACED ON RECORD AN UNSIGNED COPY OF A SUIT ALLEGED TO HAVE BEEN FILED IN THE HON. HIGH COURT OF DELHI BY MRS SONAL KHANDELWAL. FIRSTLY WHETHER THE SUIT HAS BEEN ACTUALLY FILED O R NOT CANNOT BE MADE OUT FROM THE PLAINT. SECONDLY EVEN IF THE SUI T HAVE BEEN FILED THE SAME DOES NOT CHANGE THE COLOUR OF TRANSACTION WHICH HAD ALREADY TAKEN PLACE. THE APPELLANT HAS NOT BEEN ABL E TO ESTABLISH THE GENUINENESS OF TRANSACTION AS WELL AS THE CREDI TWORTHINESS OF THE LENDER BEFORE ASSESSING OFFICER. DURING THE APPELLA TE PROCEEDINGS THE SITUATION REMAINED THE SAME. 1 DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER. THE GROUND IS THEREFORE DISMISSED. 4.5 WE FIND THAT BEFORE THE LEARNED CIT(A) THE ASSESS EE FILED UNSIGNED COPY OF A SUIT ALLEGED TO HAVE BEEN FILED IN THE HONBLE 6 ITA NO.689/DEL/2017 HIGH COURT DELHI. BEFORE US ALSO THE ASSESSEE HAS FILED A PHOTOCOPY OF THE DRAFT OF THE PLAINT WITHOUT ANY SI GNATURE OF THE PARTIES TO THE SUIT. THE ASSESSEE WAS VERY WELL AWA RE THAT THE LEARNED CIT(A) UPHELD THE DISALLOWANCE IN VIEW OF T HE UNSIGNED COPY OF THE PLAINT. FOR DISCHARGING THE ONUS UNDER SECTION 68 OF THE ACT THE ASSESSEE WAS REQUIRED TO SUBMIT DOCUME NTARY EVIDENCE IN SUPPORT OF IDENTITY AND CREDITWORTHINES S OF THE LOAN CREDITOR AND GENUINENESS OF THE TRANSACTION. IN OUR OPINION THE ASSESSEE HAS FAILED TO DISCHARGE HER ONUS UNDER SEC TION 68 OF THE ACT. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE L D. CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDINGLY WE UPHOLD THE SAM E. 5. IN GROUND NO.4 THE ASSESSEE HAD RAISED ISSUE OF A DDITION OF 1 11 49 200/- UNDER SECTION 68 OF THE ACT IN RESPE CT OF THE MONEY SHOWN TO HAVE BEEN BORROWED FROM M/S. PRAHLAD DASS AND SONS. 5.1 BEFORE THE ASSESSING OFFICER THE ASSESSEE FAILED TO SUBMIT COPY OF BANK STATEMENT AND EVIDENCE IN SUPPORT OF CREDITWORTHINESS OF M/S PRAHALD DASS AND SONS. BEFO RE THE LEARNED CIT(A) THE ASSESSEE FILED A COPY OF BANK P ASSBOOK OF THE SAID CREDITOR BUT LEARNED CIT(A) FOUND THAT WHENEV ER A MAJOR AMOUNT WAS ADVANCED TO THE ASSESSEE IT WAS INVARIA BLY PRECEDED BY A NUMBER OF BUILDUP DEPOSITS AND ACCORDINGLY HE UPHELD THE ADDITION IN VIEW OF THE FAILURE OF THE ASSESSEE IN ESTABLISHING THE GENUINENESS OF THE TRANSACTION AS WELL AS CREDITWOR THINESS OF THE CREDITOR. 5.2 BEFORE US THE LD. COUNSEL OF THE ASSESSEE REFERRE D TO PAGES 116 TO 124 OF THE PAPER BOOK AND SUBMITTED THAT THE ASSESSEE HAS DISCHARGED HER ONUS UNDER SECTION 68 OF THE ACT . 7 ITA NO.689/DEL/2017 5.3 THE LD. DR ON THE OTHER HAND RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 5.4 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED CIT(A ) UPHELD THE ADDITION OBSERVING AS UNDER : I HAVE CONSIDERED ALL FACTS AND CIRCUMSTANCES OF T HE CASE. THE LD AR DURING THE APPELLATE PROCEEDINGS HAS REITERATED THE SUBMISSION FILED BEFORE ASSESSING OFFICER. FROM THE PERUSAL OF BANK STATEMENT FILED BY THE LD AR IT IS SEEN THAT WHENEVER A MAJO R AMOUNT HAS BEEN ADVANCED IT IS INVARIABLY PRECEDED BY NUMBER O F BUILD UP DEPOSITS. AFTER THE ADVANCING OF THE AMOUNT ONLY P ETTY BALANCE IS LEFT IN THE BANK. THE ASSESSING OFFICER HAS RIGHTLY VIEWED THE TRANSACTION WITH SUSPICION. IN THIS CASE ALSO THE L D AR HAS NOT BEEN ABLE TO ESTABLISH THE GENUINENESS AS WELL AS THE CR EDITWORTHINESS OF THE CREDITOR. THEREFORE I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER. THE GROUND IS THERE FORE DISMISSED. 5.5 WE FIND THAT THE LEARNED CIT(A) HAS UPHELD THE ADDI TION MAINLY ON THE GROUND THAT MONEY ADVANCED TO THE ASS ESSEE WAS PRECEDED BY BUILDUP OF DEPOSITS AND CONCLUDED THAT THE ASSESSING OFFICER HAS RIGHTLY VIEWED THE TRANSACTION WITH SUS PICION. IN OUR OPINION NO ADDITION CAN BE SUSTAINED MERELY ON THE BASIS OF THE SUSPICION. ON PERUSAL OF THE BANK STATEMENT OF THE CREDITOR AVAILABLE ON PAGE 117 TO 119 OF PAPER BOOK WE FIND THAT DEPOSITS IN THE ACCOUNTS OF THE CREDITOR ARE MAINLY BY WAY O F CLEARING OR FUND TRANSFER. THE ASSESSEE ALSO FILED COPY OF ACKN OWLEDGEMENT OF THE INCOME TAX RETURN AND STATEMENT OF AFFAIRS BEFO RE THE LEARNED CIT(A) AS ADDITIONAL EVIDENCE WHICH HAVE NOT BEEN CONSIDERED BY THE LD. CIT(A). IN THE FACTS AND CIRCUMSTANCES OF T HE CASE WE FEEL IT APPROPRIATE TO RESTORE THIS ISSUE-IN-DISPUTE BAC K TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR DECIDING AFRESH A FTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE ASSESSEE IS DIRECTED TO FURNISH ALL NECESSARY DOCUM ENTS IN 8 ITA NO.689/DEL/2017 SUPPORT OF ITS CLAIM FOR DISCHARGE OF ONUS UNDER SE CTION 68 OF THE ACT. THE GROUND OF THE APPEAL IS ACCORDINGLY ALLOWE D FOR THE STATISTICAL PURPOSES. 6. THE ROUND NO. 5 IS GENERAL IN NATURE WE ARE NOT R EQUIRED TO ADJUDICATE UPON SPECIFICALLY AND ACCORDINGLY IT I S DISMISSED AS INFRUCTUOUS. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED PARTY FOR STATISTICAL PURPOSES ORDER IS PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER 2019. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 TH NOVEMBER 2019. RK/-(D.T.D.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI