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Income Tax Appellate Tribunal, DELHI BENCH “SMC-I”, NEW DELHI
Before: SHRI H.S. SIDHU
This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals-15), New Delhi dated 21.1.2016 pertaining to assessment year 2011-12.
2. The grounds of appeal read as under:-
The Ld. CIT(A)-15, New Delhi erred in not considering and deciding the ground of appeal that the assessment is bad in law, null and void inter alia because :
(1) The Ld. ITO, Wards 26(3), New Delhi who initiated the assessment proceedings, and passed the assessment order was not empowered to exercise the powers and perform the functions of the AO.
(2) The selection of the case for scrutiny under CASS is in gross violation of provisions of section 143(2) of the Income Tax Act, 1961 and therefore the notice u/s. 143(2) of the Act is bad in law.
2. The Ld. CIT(A) erred in upholding the addition of Rs. 21,18,700/- u/s. 68 of the Act on the ground that cash deposit in bank accounts are unexplained.
2.1 The Ld. CIT(A) failed to appreciate the fact that the cash was deposited out of cash withdrawn from the bank accounts.
2.2 The Ld. CIT(A) failed to appreciate the fact that the Assessee has income only from the head ‘other sources’ – bank interest under and ‘Agriculture’ which is not taxable; and the Assesee has no business; and therefore, the Assessee is neither required by law nor is maintaining books of account and therefore, addition u/s. 68 of the Act is bad in law, and without prejudice the deposit in Bank account cannot be u/s. 68 of the Act.
The Ld. CIT(A) failed to decide the ground of appeal that, “the Ld. ITO erred in charging interest u/s. 234B of the Act and without prejudice the same is excessive.
4. The observations made by the Ld. CIT(A) are against the facts and circumstances of the case as well as law.
5. The order passed by the Ld. CIT(A) is against the facts and circumstances of the case as well as law.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.
3. During the course of hearing, Ld. Counsel of the assessee stated that assessee has filed all the necessary documentary evidences before the AO as well as before the Ld. CIT(A) which has not been considered by the AO as well as Ld. CIT(A). He requested that the issue in dispute may be set aside to the AO to decide the same afresh, as per law after considering the evidences filed by the assessee. At the time of hearing, Ld. Counsel of the assessee filed the Paper Book containing pages 1 to 108 having the copy of statement of facts, written submissions to ITAT, Income Tax Return, computation of income alognwith challan of tax payment and bank statement. He has also given a Certificate that some papers/documents were filed before the AO/Ld. CIT(A). He draw my attention towards page no. 36 of the Paper Book which shows the withdrawal of cash and re-depositing the sum and also submitted that the assessee did not use the withdrawals from banks for any other purposes. He requested that the all the documents in the shape of paper book were not considered, hence, he requested that the issues in dispute may be remitted back to the AO for fresh consideration, under the law, after considering all the documents and assessee may be granted adequate opportunity of being heard.
On the other hand, Ld. DR relied upon the orders of the lower authorities and opposed the request of the Ld. Counsel of the assessee.
I have heard both the parties and perused the relevant records available with me especially the impugned order as well as the Paper Book filed by the assessee. I had perused the Paper Book containing pages 1 to 108 having the copy of statement of facts, written submissions to ITAT, Income Tax Return, computation of income alognwith challan of tax payment and bank statement.
He has also given a Certificate that some papers/documents were filed before the AO/Ld. CIT(A). I find that during the course of assessment proceedings, the AO observed that assessee has deposited cash amounting to Rs. 24,05,100 in his saving bank account with Punjab National Bank, Goyala Khurd Branch and cash deposits of Rs. 30,20,000/- was made in saving bank account with HDFC Bank, Najafgarh, New Delhi, but AO found explanation of Rs. 33,06,400/- in order, and thus, Rs. 21,18,700/- was considered as unexplained cash credit and added u/s. 68 of the I.T. Act, 1961. I have also perused the page no. 36 of the Paper Book which is copy of bank statement of HDFC Bank which reveals that the assessee withdraw cash of Rs. 9,00,000/- on 4.5.2010 and Rs. 12,00,000/- on 10.5.2010 out of which Rs. 20,00,000/- was re-deposited on 29.6.2010 and Rs. 20,000/- on 4.11.2010 into HDFC bank and further withdrew cash of Rs. 15,00,000/- on 3.1.2011 from HDFC bank, out of which Rs. 1,00,000/- was re-deposited on 7.1.2011 into PNB. After perusing the aforesaid page no. 36 of the Paper Book, I am of the considered view that the matter needs to be re-examine/ verified at the level of the AO alongwith the Paper Book filed by the Assessee. Therefore, I set aside the issue in dispute to the file of the AO for fresh consideration, after giving adequate opportunity of being heard to the assessee.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced in the Open Court on 02/02/2017.