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Income Tax Appellate Tribunal, DELHI BENCH “E”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
Date of Hearing : Date of Hearing : 23 Date of Hearing : Date of Hearing : 23 23-11111111-201 23 201 2015 201 Date of Order : 03-12-201 Date of Order : 2015 Date of Order : Date of Order : 201 201
ORDER ORDER ORDER ORDER PER PER H.S. SIDHU PER PER H.S. SIDHU H.S. SIDHU : : : : JM H.S. SIDHU This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Income Tax (Appeals), Meerut dated 14.3.2013 pertaining to assessment year 2009-10.
The grounds of appeal raised by the Revenue read as under:-
“1. Whether in the facts and circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in deleting the addition of Rs.37,54,000I- made by the A.O. on alc of unexplained cash credit in the bank alc of the 1 assessee. Ld. CITCA) has failed to appreciate that the assessee's claim of depositing the such alleged amount in his saving account by getting advance for the sale of different properties was ,not corroborated because mentioning in sale deeds that sale consideration was received in cash before date of sale deeds in not an evidence that the amount was received an particular date of deposit in bank or prior to that and thus assessee failed to substantiate his claim that source of deposit was advance received against the sales. Moreover, Ld.CIT(A) has also erred in relying upon the assessee's claim that source of some deposits was earlier cash withdrawal, for which no evidence was produced by the assessee. Thus, the assessee did not discharge the onus cast on him uls 68 of IT Act, 1961. Reliance is placed on the following case laws;-
I. CIT Vs. Ashok Timber Industries (Cal) 125 ITR 336 II. Basantipur Tea Co. (P) Ltd. Vs. CIT (Cal) 180 ITR 261 III. CIT vis Korlay Trading Co. Ltd. (Cal.) 232 ITR 820. IV. Krishan Kumar Jhanb v/s ITO and Anr (Punjab & Haryana) 17 DTR 249" V. M/s Sejai International Ltd v/s CIT Meerut (All.) Appeal No.306 of2010. VI. CIT V s Durga Prasad More, 82 ITR 540(SC) VII. CIT Vs P. Mohnakala, 291 ITR 278 (SC) VIII.CIT Vs Sumati Dayal, 214, ITR 801 (SC) IX. ITO Vs Diza Holdings Pvt. Ltd. 255 ITR 573 (Kerla)
2. That the appellant craves leave to add, modify and / or delete any ground(s) of appeal.
3. In the facts and circumstances of the case, the order of the Commissioner of Income Tax (A) may be set aside and that of the AO restored.”
The brief facts of the case are that the Return of income in this case was filed on 19.3.2010 at income of Rs. 1,42,620/-. The case was processed u/s. 143(1) on the returned income. Later on the case was selected under scrutiny through AIR DATA to verify the cash deposits at Rs. 37.54 lacs in Saving Bank A/c and the notice u/s. 143(2) was issued on 24.9.2010, and other statutory notices were issued from time to time. In compliance to these notices, Authorised Representatives attended the proceedings and filed the written submission and other documents which were examined by the AO. The AO observed that the assessee has never been able to produce any evidence/ document which could prove that any deposit has been made into the Bank A/c. Moreover, the assessee has not produced any person as required vide order sheet entry dated 13.12.2011. The AO further observed that the details of sale deeds etc., no date or no amount tallies with the Bank A/c of the assessee which could prove the total position of deposits in the Bank A/c, therefore, he added back the amount to the tune of Rs. 37,54,000/- into the income of the assessee u/s. 68 of the Act and completed the assessment at an income of Rs. 38,96,620/- vide order dated 30.12.2011. passed u/s. 143(3) of the I.T. Act, 1961.
Aggrieved with the aforesaid order, the assessee appealed before the Ld. CIT(A), who vide impugned order dated 13.3.2013 has allowed the appeal of the assessee.
Against the above order the Revenue is in appeal before us.
Ld. DR relied upon the order of the AO and reiterated the contentions raised by the Revenue in its grounds of appeal.
7. On the contrary, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A).
We have heard both the parties and perused the relevant records, orders of the revenue authorities. We find that Ld. CIT(A) has adjudicated the issue in dispute vide para no. 2.2 to 2.4 as under:-
“2.2 The relevant facts are that during the assessment proceedings, the AO noted that the assessee was having a savings bank account with UBI, Meerut and had deposited cash aggregating to Rs. 37,54,000/- in five installments in the month of April, 2008 and one instalment in the month of May, 2008. In response to the query made in this regard, it was explained that the deposits were either made from earlier withdrawals from the same bank account or from the consideration received on sale of land. Though it has not been recorded in the assessment order, apparently the explanation was that the father of the assessee was owner of substantial parcels of land and had appointed his power of attorney holder. In pursuance of the same, the assessee had effected sales of land. The AO has stated that the assessee 4 was not able to produce any evidence to justify the deposits in the bank account. It is noted that in the assessment order itself, the AO states that details of sale deeds (presumably dates on which the sale deeds had been executed) do not tally with the bank account. Therefore, the AO held that the entire deposit in the bank account was unexplained and added the same to the total income of the assessee under section 68 of the Income tax Act. During the appeal proceedings, it was explained that the assessee's father had given him a power of attorney for selling his agricultural land. Initially, an unregistered power of attorney authenticated by a notary on 08.02.2008 had been executed. Subsequently, registered power of attorney was executed on 03.06.2008. Copies of these documents have' been provided. 17 sale deeds were executed by virtue of the power of attorney. These deeds were executed in the months of June, July, September, November and December 2008 and in March 2009. The sale consideration ranged from Rs. 1,01,000/-- to Rs. 2,73,000. In all these sale deeds except two deeds, it has been recorded that the sale consideration has already been paid to the vendor meaning thereby that the receipt of money in respect of such sale deeds was prior to the date on which such deeds have been executed. In the sale deeds executed on 06.03.2009 and 19.06.2008, it has been mentioned that the consideration was being paid at the time of execution of the sale deed. Copies of all the sale deeds have been furnished during the appeal proceedings. All these documents were referred to the AO and a remand report in this regard has been received vide letter dated 06.02.2013. From the remand report, it appears that the basic objection of the AO is that the money had been deposited in the bank account on dates which were prior to the dates on which the sale deeds have been executed. In the opinion of the AO, the onus lies on the assessee to prove the' identity of the creditor, the genuineness of the transaction and the creditworthiness of the creditor from whom advances have been shown. In the rejoinder to the remand report, it has been pointed out that all documents including the sale deeds had been furnished during the assessment proceedings. The sale deeds bear the photo of the person and his address. All the persons in whose favour the deeds have been executed had appeared before the sub registrar, Meerut with two witnesses. They had confirmed the contents of the sale deeds after which the sub registrar had registered the document. If he AO was not satisfied regarding the genuineness of the transaction, appropriate field enquiries ought to have been conducted.
2.3 The facts of the case have been considered. It is noted that the father of the assessee had executed a power of attorney in February 2008 authorizing the assessee to receive sale consideration for property and execute sale deed for the same. Subsequently, another power of attorney, which was re is registered, granting the same authority to the assessee was executed by the father in June, 2008. Out of 6 the aggregate cash deposits in the bank account, consideration received pursuant to the sale deeds aggregating Rs. 22,70,0001- is stated to have been deposited. It is clarified that the aggregate sale consideration received pursuant to the sale deeds in the year under consideration was Rs. 28,78,000/-. The balance amount of deposits in the bank account represents withdrawal made from the same bank account which is evidenced by the bank statement. Particular reference is made to the deposit of Rs. 19,50,000/- on 12.5.2008 which has been explained by Rs. 3,00,000/- being cash withdrawal from the bank account made on 30.04.2008, , Rs. 50,000/- being the partial cash withdrawal from the bank account of Rs. 2,00,000 made on 01.05.2008, Rs 11,50,000/- being cash withdrawal from the bank account made on 05.05.2008, besides Rs. 4,50,000/- received in respect of sale deeds executed on 03.11.2008, 05.12.2008 and 06.10.2008. On a specific direction, a certificate has also been obtained from the bank that the withdrawal of Rs. 11,50,000/-, referred to above, was in cash. As regards the sale deeds, all the three sale deeds record that the consideration for the same had been paid to the assessee prior to their execution. In view of the categorical statement in most of the sale deeds that the amount had been received prior to the execution of such deeds, the objection of the AO that the date of the sale deed and the date of the deposit of cash in the bank account does not tally, is not valid. It is noted that the AO has not doubted the genuineness of the sale deeds or the ownership of the land by the father of the assessee. Moreover, the entire transaction is evidenced by the Sub-registrar who is a Government Authority and therefore, the evidentiary value of the sale deeds cannot be lightly dismissed. If indeed the AO had any doubt regarding the genuineness, he was free to summon the counterparties to the sale deeds or even make enquiries from the office of the Sub registrar. Under the circumstances, it is held that the source of cash deposited has been adequately explained by the assessee and such deposits cannot be treated as unexplained income of the assessee. However, the issue of taxability of capital gains, if any, in the case of the father of the assessee may have to be examined and the AO may consider intimating the AO having jurisdiction over the case of the father, Shri Chandra Bhan, to take appropriate action in this regard.
2.4 Ground No.1 is allowed.”
9 Keeping in view of the facts and circumstances as explained above, we find considerable cogency in the finding of the Ld. CIT(A) that the source of cash deposited has been adequately explained by the assessee and such deposits cannot be treated as unexplained income of the assessee. As regards the issue of taxability of capital gains, is concerned, we note that Ld. CIT(A) has rightly held that the issue of taxability of capital gains, if any in the case of the father of the assessee, the AO may have to be examined and the AO may consider intimating the AO having jurisdiction over the case of the father, Shri Chandra Bhan, to take appropriate action in this regard. Therefore, we do not see any reason to interfere with the finding of the Ld. CIT(A) on the issue in dispute, hence, we uphold the same and dismiss the ground raised by the Revenue.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the Open Court on 03/12/2015.