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Income Tax Appellate Tribunal, DELHI ‘SMC’ BENCH,
Before: SHRI N.K. BILLAIYA
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
This appeal by the assessee is preferred against the order of the Commissioner of Income Tax [Appeals] – XI, New Delhi dated 10.09.2012 pertaining to assessment year 2007-08.
2. The solitary grievance of the assessee is that the ld. CIT(A) erred in confirming the addition of Rs. 15,03,400/- made u/s 69A of the Income-tax Act, 1961 [hereinafter referred to as 'the Act'] by the Assessing Officer.
Briefly stated, the facts of the case are that the assessee is engaged in real estate business. As per AIR information, the Assessing Officer came to know that the assessee has deposited Rs. 15.87 lakhs in the bank account with Canara Bank, Greater Kailash – II, New Delhi. The assessee was asked to explain the source of cash deposit alongwith evidence. The assessee filed a detailed reply which reads as under:
“As asked by your goodself regarding cash deposited in Canara Bank, Greater Kailash, Part-II (Branch) amounting to Rs.15,87,000/- Please note that we are enclosing herewith cash account of assessee. Cash account clearly shows that assessee took advance (Bayana) Rs. 15,00,OOO/- (Rupees Fifteen Lakhs only) in cash against sale of his property No. W-66, Greater Kailash, Part-II, New Delhi-20.
Assessee deposited the money in bank as and when required funds for repayment of loans. Assessee took advance against property to dear his bank loans as he was not keeping his health in good position. The Buyer of the property was Sh. Sandeep Singh Mann S/o Sh. Gyanendra Singh Mann was resident of Gulhardhing farms, Kicha (Rudrapur). He paid the whole amount of advance in cash."
Copy of statement of cash as furnished by the assessee along with letter dated is reproduced below:-
"ASHOK GUPTA STATEMENT OF CASH AS ON 31.03.2007
Particulars Amount Particulars Amount Opening Balance 6,210 Cash deposit in Bank 1587400 Cash withdrawal from Drawings 1,96,000 Canara Bank 5,24,000 Cash in hand 2,46,810 Advance against sale of property. 15,00,000 20,30,210 20,30,210
4. Further, on 27.11.2009, the assessee furnished an affidavit of Shri Sandeep Singh Mann wherein he has confirmed the payment of Rs. 15 lakhs. The affidavit reads as under:
A F F I D A V I T I, Sandeep Singh Mann s/o Sh. Gynandra Singh Mann R/o 57, Gulhardhing Nawabganj, Bareli do hereby solemnly declare and affirm as under:- That I gave advance of Rs.15,00,000/- (Rupees fifteen lakhs only) to Sh.
Ashok Gupta towards purchase of some portion of W-66, Greater Kailash, Part- II, New Delhi-110048. That I am a agriculturist and having good amount of land.
That the said deal is still pending due to some technical reasons.
3. That I am not income tax payee.
Sd/- D E P O N E N T Verification ■'
I, the above name deponent, do hereby solemnly affirm and declare that the above statement in para 1.2.3 and 4 are true and correct to the best of my knowledge and nothing has been concealed therefrom.
Attested 27 NO V2009 NOTARY PUBLIC Sd/- D E P O N E N T ”
The assessee was asked to produce Shri Sandeep Singh Mann. Shri Sandeep Singh Mann could not be produced because he had a kidney transplant and was confined to bed. The Assessing Officer issued summons u/s 131 of the Act.
But, on receiving no plausible reply from Shri Sandeep Singh Mann, the Assessing Officer added Rs. 15 lakhs u/s 69 A of the Act.
The assessee agitated the matter before the CIT(A) but without any success.
Before me, the ld. AR vehemently stated that the Assessing Officer has made addition u/s 69A of the Act whereas the amount found to be deposited in the bank account is duly recorded in the books of account of the assessee and, therefore, section 69A of the Act is not at all applicable on the facts of the case. It is the say of the ld. AR that u/s 69A of the Act, burden is on the Revenue to prove that cash actually belonged to the assessee. The ld. AR pleaded for deletion of the impugned addition.
Per contra, the ld. DR strongly supported the orders of the authorities below.
I have carefully considered the orders of the authorities below. There is no dispute that the assessee has furnished complete details in respect of cash found to be deposited in Canara Bank account. The affidavit of Shri Sandeep Singh Mann has not been dismissed by the Assessing Officer. There is also no dispute that summons issued u/s 131 of the Act was duly served upon Shri Sandeep Singh Mann. Transaction has been confirmed by Shri Sandeep Singh Mann through an affidavit.
I fail to understand why would a unrelated person come with false evidence to oblige the assessee, knowing fully well the consequences of furnishing false evidence before a quasi- judicial authority. The affidavit of Shri Sandeep Singh Mann cannot be brushed aside lightly, added with the fact that summons was served upon him, then nothing prevented the Assessing Officer to force his attendance for examination. As mentioned elsewhere, transaction has been duly recorded in the books of account of the assessee, and therefore, in my considered opinion, provisions of section 69A of the Act do not apply on the facts of the case in hand. Burden is clearly on the Revenue to prove that cash actually belonged to the assessee, particularly in cases where information has been coming from AIR. For this proposition, I draw support from the judgment in the case of Sonar Investment order dated 10.04.2015. Considering the facts in totality, in my opinion, the assessee has duly proved the source of cash deposit being advance received from Shri Sandeep Singh Mann and, therefore, addition deserves to be deleted. I direct accordingly.
In the result, the appeal filed by the assessee in is allowed.
The order is pronounced in the open court on 13 .11.2018.