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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
This appeal has been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), Bathinda dated 15.11.2018 in respect of Assessment Year 2010-11.
The assessee has raised the following grounds of appeal:
Mandeep Kaur Hansra v. ITO “1. That the ld. CIT(A), Bathinda has erred in holding that the proceedings u/s 148 were rightly initiated by A.O.
2. That the ld. CIT(A), Bathinda has erred in rejecting the ground of the assessee that the demand notice ITNS150 issued u/s 156 is without jurisdiction hence null and void and barred by limitation.
That the ld. CIT(A), Bathinda has erred in law and on facts in rejecting the ground of the appellant that assessment u/s 144 was made by the AO without giving proper opportunity to the appellant inspite of there being lot of time left to frame the assessment.
4. That the ld. CIT(A), Bathinda has erred in law and on facts in confirming the addition of Rs.1,67,00,00/- by rejecting the detailed evidence in support of advances received from different persons.
That the order is bad in law and on facts.
6. That the appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed off.”
3. In the present case, proceedings u/s 148 were initiated against the appellant for the deposit of cash of Rs.2615300 in the bank account. The appellant assesse submitted before us that the appellant or the family members were neither income tax assesse nor they had any knowledge about the income tax matters as living in a small village hence could not attend to the notices received initially. However, in response to such notice the appellant's husband appeared before the AO and submitted copies of Sale Deed of land of some relatives and friends who had advanced money to the appellant out of sale proceeds and J Forms to explain the cash
Mandeep Kaur Hansra v. ITO deposit to AO. The Id. AO rejected the appellant's submissions and framed the assessment ex-parte qua the assessee at Rs.26,15,300/- u/s 144 of the Act.
In appeal, the Id. CIT(A) rejected the assessee’s submissions filed in rebuttal to the remand report of the AO. The AO had treated three advances as non-genuine as per the remand report which were complained by the appellant before the Id. CIT(A). However, he treated 4 cases of advance received as non-genuine and accordingly, confirmed Rs.16,50,000/-.
5. The Ld Counsel for the assessee submitted that the ld. CIT(A), Bathinda has erred in law and on facts in rejecting the ground of the appellant that assessment u/s 144 was made by the AO without giving proper opportunity to the appellant, although there was lot of time left to frame the assessment and that the ld. CIT(A), Bathinda has erred in law and on facts in confirming the addition of Rs.16,70,000/- by rejecting the detailed evidence in support of disputed advances received from the four persons. The Ld. AR argued that all the advances received by the appellant are genuine and they have been rejected on grounds like lenders not producing J forms or lenders having kept the sale proceeds of land for two
Mandeep Kaur Hansra v. ITO months with him etc. So much so advances given by father, father in law and husband are also treated as ingenuine. He prayed that keeping in view totality of the facts of the case that all the advances received by the appellant are genuine and they have been rejected on grounds like lenders not producing J forms or lenders having kept the sale proceeds of land for two months with him etc. with appreciating the merits of the case. He argued that the CIT(A) finding are perverse to facts on record and prayed that same may be deleted.
The Ld. DR stands by the impugned order, however, he could controvert the contention raised by the appellants as regards to genuine of disputed advances.
Heard. Admittedly, the appellant made his submissions only in those cases which the AO had treated as non-genuine in his remand report. In the other cases which were accepted by AO as genuine, there was no need for appellant to make any submissions before CIT(A). Thus, the addition made by CIT(A) in respect of the creditors of the source of cash deposit in appellant’s bank account as unexplained and non-genuine, are in complete violation of section 251(2) and the addition tantamount to Mandeep Kaur Hansra v. ITO enhancement of assessment without giving any opportunity to the appellant is bad in law.
It is argued by the counsel that all the 7 lenders duly appeared before the AO and filed their affidavit confirming the above advance made to appellant and also explained the source of income. The AO recorded their statement on oath. After examining the evidences, the AO accepted advances totaling to Rs.9,65,000/- as non-genuine and balance Rs.1650000 as genuine.
It seen that the authorities below did not brought on record corroborative piece of evidence and further they have also ignored the fact that all the lenders of money have admitted before the AO on oath as well as in their affidavits that they had advanced money to the appellant just to help her out for very short period which is apparent form the bank statement where deposit of borrowed amounts were made on and the same were withdrawn from the same bank within a period of 6 days, i.e., on 11.07.2009.
It is noted that the appellant and her husband had small source of income; that the appellant assessee was trying to get the study visa for Australia for their bright future; that on advise of the agent they had to show
Mandeep Kaur Hansra v. ITO deposit for Rs.25 to 30 lakhs in the bank for getting the visa application through. However, since the application was rejected the amounts received as advances were repaid immediately after withdrawing the same from the bank within a week period.
It is not controverted by the department that the appellant had received the money for a very short period from the friends and relatives with the support of affidavit on oath, in support of source of deposits. The AO/CIT(A) had neither made any enquiry or investigation to ascertain as to whether the appellant or her husband had genuine depositors or any other source of income to substantiate the disputed addition. Ober and above, they have also ignored the fact that all the lenders of money have admitted before the AO on oath as well as in their affidavits that they had advanced money to the appellant just to help her out for very small period.
Thus, the appellant had duly discharged the onus cast on her by producing all lenders before the AO as well as necessary evidence in respect of source of money received as advance and as such there was no reason to doubt the same having been confirmed on oath. In our view, the assessee having discharged the initial burden, the onus was shifted on the AO and CIT(A) to disprove the same. We do not concur with the finding of Mandeep Kaur Hansra v. ITO the Ld. CIT(A) because he has not mentioned any material evidence to controvert the contention of the appellant to disprove its claim and that he confirmed the addition without appreciating the facts on record. Over and above that the source of deposit of cash being received from and repaid to the friends and relatives within a span of short period of one week duly supported with affidavit and statement on oath being meant for specific study visa, there is no reason to doubt the same. In our considered view, the Ld. CIT(A) order suffered infirmity and perversities to the peculiar facts on record.
In the above view, we hold that advances received by the appellant as cash deposits in bank account stands explained. Thus the addition confirmed by the Ld. CIT(A) to the extent of Rs.1,67,00,00/- is hereby deleted. Accordingly, the Grounds of appeal is allowed.
In the result, the appeal of the assesse is allowed.