ASHOK KUMAR GUPTA,NEW DELHI vs. ITO, WARD-32(3), NEW DELHI

This is an appeal by the assessee against order dated

03.04.2018 of learned Commissioner of Income Tax (Appeals)-11,

New Delhi, for the assessment year 2009-10.

contested the addition of Rs.42,89,500/- made under section 69 of

the Act. Briefly the facts are, the assessee is a resident individual.

For the assessment year under dispute, the assessee filed his

return of income on 29.03.2010 declaring total income of

Rs.3,96,672/-. In course of assessment proceeding, the Assessing

ITA No. 3142/Del/2018 AY: 2009-10

Officer noticed that the assessee has deposited cash amounting to

Rs.42,89,500/- in his saving bank account maintained with Axis

Bank. Therefore, he called upon the assessee to explain the source

of such cash deposit. Though, the assessee offered his explanation

regarding the source of cash deposit, however, the Assessing

Officer was not convinced. Ultimately, he completed the

assessment under section 143(3) of the Act by adding back the cash

deposits of Rs.42,89,500/- under section 69 of the Act. Contesting

the aforesaid addition, the assessee preferred an appeal before

learned Commissioner (Appeals).

the assessee again explained the source of the cash deposits.

Moreover, in respect of cash deposits of Rs.5,62,430/-, the

assessee furnished certain additional evidences. Being convinced

with the submissions made by the assessee and the evidences

furnished, learned Commissioner (Appeals) deleted the addition

made by the Assessing Officer. Being aggrieved, the Revenue went

in appeal before the Tribunal, inter alia, on the ground that learned

Commissioner (Appeals) has deleted the addition by considering

additional evidences furnished by the assessee, in violation of

Rules 46A of the Income Tax Rules. Accepting the plea of the 2 | P a g e

ITA No. 3142/Del/2018 AY: 2009-10

Revenue, the Tribunal restored the issue back to the Assessing

Officer for fresh adjudication, after considering the evidences

furnished by the assessee.

Officer considered the issue afresh. However, alleging that in spite

of several opportunities being granted, the assessee failed to appear

and substantiate the source of cash deposit, the Assessing Officer

again added back the amount of Rs.42,89,500/- under section 69

of the act. Though, the assessee contested the aforesaid addition

before learned Commissioner (Appeals), however, he was

unsuccessful.

Representative of the assessee and Sh. Om Prakash, learned

Departmental Representative. Undisputedly, this is the second visit

of the assessee to the Tribunal in respect of the very same addition

made by the Assessing Officer. It is a fact on record that during the

year under consideration, the assessee had deposited cash

amounting to Rs.42,89,500/- in an account maintained with Axis

Bank. Though, in the original assessment proceeding, the

Assessing Officer has added back the entire cash deposit under

section 69 of the Act, however, while considering the issue in 3 | P a g e

ITA No. 3142/Del/2018 AY: 2009-10

appeal, learned Commissioner (Appeals) deleted the additions. On

a perusal of material on record, it is observed, while deciding the

issue in the first round, learned Commissioner (Appeals) was

satisfied with the submissions made and the evidences produced

by the assessee, hence, accepted the source of cash deposits. No

doubt, while considering Revenue’s appeal against the order of

learned Commissioner (Appeals), the Tribunal restored the issue

back to the Assessing Officer for fresh adjudication. However, it will

be relevant to take note of the observations of the Tribunal while

restoring the issue to the Assessing Officer in order dated

10.04.2015 in ITA No.3569/Del/2013. The observations are as

under:

“9. We have heard both the parties and perused the relevant records available with us. We find that the Ld. CIT(A) has adjudicated the issue in dispute as under:- “7. I have considered the facts of the case and the submissions of the appellant. I have also perused the relevant bank statements filed by the appellant during the course of appellate proceedings. The Assessing Officer had made the impugned addition on the ground that the appellant did not file any supporting documentary evidence pertaining to the source of these deposits amounting to RS.30,94,500/- and RS.11 ,95,000/-. On perusal of the details furnished by the appellant, I find that the major portion of the cash deposited was out of the cash withdrawals made from the bank account. The AR of the appellant submitted that the cash withdrawals were being made for some purpose and because of their non-utilization, the same were re-deposited in the bank account. The Assessing Officer had not disputed the cash withdrawal made by the appellant. On the other hand, perusing the bank statement, the appellant was able to prove that the source of deposits were 4 | P a g e

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out of withdrawal. With regard to the source of gift of Rs.5,62,430/-. It has been explained by the AR of the appellant that this amount was from the sale consideration received by him on sale of various items, which was earlier inadvertently and wrongly explained as receipt of gift. The AR of the appellant filed before me the copies of invoices in respect of the sale of certain items on account of which he had received a cash of RS.5,62,430/-, which was deposited in this bank account. Therefore, considering the facts of the case, I hold that the Assessing Officer had not made out any case for making the impugned addition. Accordingly, since the source of cash deposits in the bank account stands explained, the addition of Rs.42,89,500/- made by the Assessing Officer is hereby deleted.”

patent and obvious that the factor which weighed in with the

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Tribunal for restoring the issue back to the Assessing Officer is the

additional evidences furnished by the assessee to explain the

source of cash deposit of Rs.5,62,430/-, since, learned

Commissioner (Appeals) had accepted the source of the aforesaid

amount based on additional evidences furnished by the assessee,

without providing any opportunity to the Assessing Officer to

examine them. Thus, there is no adverse observation of the

Tribunal with regard to the rest of the amount, except, the amount

of Rs.5,62,430/-. Even, in respect of the amount of Rs.5,62,430/-

the only observation of the Tribunal is regarding violation of Rule

46A. Thus, considering the fact that in the first round of litigation,

learned Commissioner (Appeals) has accepted the source of cash

deposit of Rs.37,27,070/- (42,89,000 - 5,62,430), based on

evidences, which were available not only before the Assessing

Officer but before the first appellate authority, therefore, no further

addition of this amount can be made in the second round of

litigation.

on record that in the fresh assessment proceeding, in pursuance

to the direction of the Tribunal, the assessee neither appeared, nor 6 | P a g e

ITA No. 3142/Del/2018 AY: 2009-10

furnished any supporting evidence to explain the source. Even,

before the first appellate authority, the assessee could not furnish

any conclusive evidence to substantiate its claim that the amount

in question was received on sale of certain items. Thus, in my view,

cash deposit to the extent of Rs.5,62,430/- remained unexplained.

Thus, I direct the Assessing Officer to sustain the addition to the

extent of Rs.5,62,430/- and delete the balance amount. Grounds

are partly allowed.

forward loss under the head income from house property.

record. Undisputedly, this issue was never raised by the assessee

in the first round of litigation till the stage of Tribunal. In the fresh

proceedings, in pursuance to the direction of Tribunal, the assessee

raised this ground before the first appellate authority. Thus, when

the assessee had not raised this issue at any point of time in the

earlier round of proceedings and the direction of the Tribunal to

the Assessing Officer was on a specific issue, the assessee cannot

be permitted to raise a fresh issue, at this stage. Therefore, I uphold

the decision of learned Commissioner (Appeals) in dismissing

assessee’s ground raised on the issue. This ground is dismissed. 7 | P a g e

ITA No. 3142/Del/2018 AY: 2009-10

Order pronounced in the open court on 11th August, 2022

Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER

Dated: 11th August, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi

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