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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: Sh. N. K. Saini
ORDER This is an appeal by the assessee against the order dated 03.03.2014 of ld. CIT(A)-10, New Delhi. 2. Following grounds have been raised in this appeal: “1. That the impugned assessment order has been passed by the AO without providing reasonable and adequate opportunity of being heard to the appellant to prove her case.
2. That the authorities below have erred on facts and under the law in making/confirming addition of Rs.14,20,500/- on account of unexplained cash deposits u/s 68 of Income-tax Act, 1961. At any case, provisions of section 68 are not applicable to the facts of Appellants’ case. Without prejudice, the addition as made is very excessive. Various observations made by the authorities below in their respective orders are either incorrect or are untenable.
Nandita Verma 3. That the appellant reserves her right to add, amend/modify the grounds of appeal
.”
3. Facts of the case in brief are that the assessee filed the return of income on 31.07.2009 declaring an income of Rs.1,75,262/-. Later on, the case was selected for scrutiny. The AO made the addition of Rs.14,20,500/- on account of cash deposits in the bank account by observing that no source was furnished.
Being aggrieved the assessee carried the matter to the ld. CIT(A) who sustained the addition made by the AO.
Now the assessee is in appeal. The ld. Counsel for the assessee filed an application under Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963 stating therein as under: “1. That my mother Mrs. Anita Ahuja sold her ancestral gold jewellery weighing 1220.730 gms on 01/04/2008 in cash for Rs.14,86,570/- out of which she gifted me cash of Rs.14,50,000/- on 02/04/2008. 2. That out of cash withdrawal from my SB Account No.004601026666 with ICICI Bank, New Friends Colony, New Delhi in March 2008, I had cash in hand of about Rs.1,50,000/- as on 31/03/2008 which alongwith the aforesaid cash gift of Rs.14,50,000/-on 02/04/2008 from my mother, I had cash in hand of about Rs,16 Lacs. Out of such cash in hand of Rs.16 Lacs, cash was deposited as per instructions from my husband in my SB A/c Account No.004601026666 with ICICI Bank, New Friends Colony, New Delhi as under: Date Amount of cash deposited (Rs.) 02/04/2008 11,000 03/04/2008 6,00,000 03/05/2008 7,20,000 Nandita Verma 01/09/2008 5,000 01/09/2008 12,000 04/10/2008 2,000 04/10/2008 5,000 01/12/2008 31,000 02/12/2008 73,000 22/12/2008 1,00,500 04/03/2009 5,300 Total 15,64,800 3. I was under a genuine and bona fide belief that no addition on account of cash deposits made in my SB Account No.004601026666 with ICICI Bank, New Friends Colony, New Delhi would be made by the AO or sustained by the Ld. CIT(A) as according to my Chartered Accountant sufficient documents had been filed before them to prove the source of cash deposit i.e. from opening cash in hand and cash gift received from my mother. It may not be out of place to mention here that if I had known that some clarification was required, I alongwith my mother could have gone and clarified the matter either before the AO or the Ld. CIT(A). 4. To substantiate cash gift of Rs. 14,50,000/- received from my mother on 02/04/2008, my Affidavit alongwith my mother’s Affidavit are placed at pages 4-5 and 13 - 14 of the paper book which are self explanatory. The said Affidavits alongwith annexures mentioned therein deserve to be entertained because they are merely reiteration of the submissions made before the AO and CIT(A). Moreover, sale bills with regard to aforementioned sale of jewellery by my mother could not be filed either before the AO or the CIT(A) as the same are not traceable. 5. The Affidavits go to the root of the matter and therefore, to meet the ends of justice, they may kindly be entertained and taken into consideration while deciding the appeal.”
Nandita Verma 6. The reliance was placed on the following case laws: � CIT Vs Text Hundred India P. Ltd. 351 ITR 57 (Del.) � Deva Singh Guru Bux Singh Vs CIT 217 ITR 510 (All.) 7. In support of the above, the assessee also furnished an affidavit of the assessee stating therein as under: “I Nandita Verma, D/o Late Shri Ravi Kant aged about 49 years, R/o W-24, Regency Park-2, Phase IV, DLF Gurgaon, Haryana do hereby solemnly affirm and state on oath as under:-
1. 1. That I got married to Mr. Dhruv Varma on 15/05/1991 and was blessed with a son and daughter.
2. That I was completely dependent on my husband as I did not have any income of my own.
3. That after a few years of marriage, my husband Mr. Dhruv Varma suffered huge losses in his business and to overcome the financial/hardship, he started taking loans from various parties on interest by mortgaging the properties owned by his family. However, the financial crises became even more acute and to pay interest on loans already taken, he started taking further loans fraudulently by mortgaging properties which had already been mortgaged.
4. That thereafter, my husband Mr. Dhruv Varma alongwith his mother started harassing me for money etc. and on many occasions, I requested my parents for financial help who did whatever they could do financially to support me. Despite the harassment, i carried on living with my husband because I had nowhere to go alongwith my two minor children.
5. That out of cash withdrawals from my SB Account No,004601026666 with ICICI Bank, New Friends Colony, New Delhi in FY 2007-08, I had cash in hand of about Rs.1,50,000/- as on 31/03/2008.
That under pressure from my husband, I requested my parents for financial help and to help me out, my mother Mrs. Anita Ahuja sold gold/diamond jewellery weighing 1st 1220.730 gms on April, 2008 in cash for Rs.14,86,570/- out of which she gifted me cash of Rs.14,50,000/- on 02/04/2008.
That out of cash in hand of Rs.1,50,000/- as on 31/03/2008 and the aforesaid cash gift of Rs.14,50,000/-, cash was deposited as per instructions from my husband in my SB A/c Account No.004601026666 with ICICI Bank, New Friends Colony, New Delhi as under: Date Amount of cash deposited (Rs.) 02/04/2008 11,000 03/04/2008 6,00,000 03/04/2008 7,20,000 01/09/2008 5,000 01/09/2008 12,000 04/10/2008 2,000 04/10/2008 5,000 01/12/2008 31,000 02/12/2008 73,000 22/12/2008 1,00,500 04/03/2009 5,300 Total 15,64,800 8. That the above funds were then utilized by my husband for his own use for which he issued five demand Drafts aggregating to Rs.14,57,400/- to various parties namely Randip Dhingra, Neelam Dhingra, M/s Frick India Ltd., BRPL and Registrar of Companies, it is further deposed that about 77 criminal cases for bouncing of cheques etc, under Negotiable Instrument Act were pending against my husband and his companies as on 28/08/2010 as per copy of list enclosed as Annexure I to this Affidavit from which it is evident that M/s Frick India Ltd. (Sr. No. 52)
Nandita Verma had also filed a criminal case against my husband. Similarly, Randip Dhingra & Neelam Dhingra had also filed criminal cases against my husband. Demand draft was issued to BRPL because they were threatening to disconnect the electricity connection.
That my husband filed a divorce petition on 01/04/2010 and Mr. Deepak Jagotra Principal Judge, Family Court, Saket, New Delhi has passed the first motion of divorce vide order dated 03/11/2016.
10. That I filed a maintenance petition under section 24 of Hindu Marriage Act on 04/06/2010 and Hon'ble Judge Ms. Madhu Jain, Family Court, Saket, New Delhi vide order dated 06/03/2013 directed my husband to pay maintenance expenses @ Rs.2,00,000/- per month from the date of filing of application viz. 04/06/2010. It is further deposed that despite such order, no maintenance expenses have been paid by my husband to me till date. 11.That on account of financial frauds, my husband and his mother have gone to jail several times as is evident from the copies of news reports published in the Times of India, New Delhi on 16/05/2011 and Hindustan on 21/04/011, copies enclosed herewith as Annexure II & III to this Affidavit.
That on account of threat and harassment by my husband and his mother, I lodged a complaint against them on 20/06/2011 with SHO, Police Station, New Friends Colony, New Delhi, copy enclosed herewith as Annexure IV to this Affidavit which is serf explanatory. Sd/- DEPONENT Verification I, the above mentioned Deponent do hereby verify that the contents of the above mentioned Affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.
Nandita Verma Verified and signed at Gurgaon on this 14th day of March, 2017. Sd/- DEPONENT In support of the contents of the aforesaid affidavit, the assessee enclosed the documents in Annexure I to IV.
During the course of hearing, the ld. Counsel for the assessee requested to admit the new evidences and submitted that these documents could not be furnished before the AO or the ld. CIT(A) since those were not available at the relevant time but these go to the root of the matter and are relevant to decide the present controversy.
9. In his rival submissions, the ld. Sr. DR objected the admission of the additional evidences and submitted that the proper opportunity was provided by the AO as well the ld. CIT(A). Therefore, these new evidences may not be admitted at this stage.
I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it appears that the main explanation of the assessee for depositing the cash in bank account was that her mother gave an amount of Rs.14,86,570/- after selling her gold/diamond jewellery for financial help. However, the relevant evidences could not be furnished before the authorities below but those have been furnished now under Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963. In my opinion, the new evidences furnished Nandita Verma by the assessee at this stage, go to the root of the matter. Therefore, I deem it appropriate to remand this issue back to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee and by considering the new evidences furnished first time before this bench of the ITAT.
In the result, appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Open Court on 07/06/2018)