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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ : NEW DELHI
Before: SHRI CHANDRA MOHAN GARGSHRI L.P. SAHU
PER CHANDRA MOHAN GARG, JUDICIAL MEMBER
This appeal by the Revenue has been directed against the order of the CIT(A)-III, dated 21.03.2012 in Appeal No. 653/2010-11 for AY 2009-10.
Ground Nos. 3 and 4 are general in nature, which need no adjudication. The remaining grounds of the Revenue read as under:
“1. On the facts and in the circumstances of the case the CIT(A) erred in law and on facts in deleting the addition of Rs. 17,50,000/- made by the AO on account of undisclosed deposits made in bank.
2. On the facts and in the circumstances of the case the CIT(A) erred in law and on facts in deleting the addition of Rs. 62,00,000/- made by the AO on account of undisclosed investment in village Jakhoda, Bahadurgarh.”
Briefly stated, the facts giving rise to this appeal are that a search was conducted u/s 132 of the Income-tax Act, 1961 [hereinafter referred to as ‘the Act’ for short] in Nimitaya Group of cases on 06-11- 2008 and a search warrant was also issued and executed in the name of the assessee. Subsequently, the case of the assessee was centralized with this ACIT, Central Circle –22, New Delhi vide F. No. CIT-I/Cent/09- 10/1327 dated 23.10.2009. The AO finalised the assessment by making two additions viz first addition of Rs. 17,50,000/- on account of undisclosed deposits in the bank and second addition of Rs. 62 lakhs on account of undisclosed investment in property. Aggrieved, the assessee filed appeal before the CIT(A) which was allowed on both the counts deleting both the impugned additions. Now, the aggrieved Revenue is before the Tribunal in this second appeal with the grounds as reproduced hereinabove.
Ground No. 1
Apropos Ground No. 1, the ld. DR supporting the action of the AO submitted that the assessee could not furnish any documentary evidence in support of the cash deposits of Rs.17,50,000/- i.e. Rs. 8 lakhs deposited on 7.7.2008 and Rs. 9.50 lakhs deposited on 9.7.2008 and the same was rightly treated as undisclosed cash deposits in the bank account of the assessee and the addition in this regard was correctly made by the AO. The ld. DR strongly disputing the order of the CIT(A) further submitted that since the CIT(A) deleted the impugned addition without giving any justified reasons or basis, therefore, the impugned order may be set aside by restoring that of the AO.
Replying to the above, the ld AR supported the order of the first appellate authority and pointed out that the assessee properly explained the source of cash deposits to his bank accounts before the authorities below, but the AO rejected the same at the threshold without any reasoning and the ld. CIT(A) correctly appreciating the explanation of the assessee in a justified and reasonable manner, granted relief to the assessee. The ld AR further drew our attention to page Nos. 1 to 3 of the assessee’s paper book and submitted that M/s Guru Lal Enterprises is a sole proprietary firm of the assessee and the assessee deposited Rs. 9,50,000/- on 7.7.2008 and Rs. 8 lakhs on 9.7.2008 from the cash balance lying with him as cash in hand in his sole proprietary firm and the source of cash was properly explained before the authorities below and considering these facts, the ld. CIT(A) granted relief to the assessee, which is self explanatory and sustainable. The ld AR lastly pointed out that from the same bank account with PNB, the assessee also withdrew cash amounting to RS. 2.50 lakhs on 3.7.2008 which was included and accounted in the cash book of M/s Guru Lal Enterprises and if subsequently any amount from the cash in hand is deposited to the PNB CC [Hyp] A/c by the assessee, then the source of such cash should be considered as properly explained and hence the conclusion of the ld. CIT(A) is sustainable and in accordance with the provisions of law.
On a careful consideration of the submissions and from the operative part of the impugned order, we note that the ld. CIT(A) granted relief to the assessee with the following observations and conclusion: “It is seen from the assessment order that the above addition has been made on account of treating the cash deposit of Rs. 8 lakhs [deposited on 7.7.2008] and another cash deposit of RS. 9.50 lakhs [deposited on 9.7.2008] as undisclosed cash deposit in bank and therefore unaccounted income for the year under consideration. It is seen from the appellant’s submission filed during the assessment proceedings itself that the above mentioned cash deposits in bank account has been explained as having been made from the cash balance available in the books of accounts of M/s Guru Lal Enterprises, the proprietary ship concern of the appellant. In this regard, it is on record in the assessment order that Copy of cash book from 01.07.2008 to 09.07.2008 in case of Guru Lal Enterprises has been tied which justify the cash deposits in the bank account and other credits. Rather similar explanation was also given by Sh. Ashwani Mahajan in his statement on oath recorded u/s 132(4) of the Act during the course of search. Even in the assessment order there is an observation in para 8 thereof that cash in hand of M/s Guru Lal Enterprises as on 06.11.08 (date of search) is for Rs. 37,200/-, which has been accepted by the A.O. as such and thus there can be no doubt that the cash book of Guru Lal
Enterprises was recorded till the date of search. Under these circumstances it cannot be said that the assessee has not furnished any documentary evidence in support of the source of cash deposit or that in the search proceedings assessee was not able to explain the said cash deposits in the bank.
In any case the appellant as directed by the undersigned, during the appellate proceedings, has in order to substantiate his above contention filed a copy of the cash book of the said proprietary concern from 0l.04.08 upto 06.11.2008 (that is the date of search) from which it is seen that the opening cash balance as on 0l.04.08 is Rs. 5,53,391,62/- while the closing balance as on 06.11.08 is Rs. 37,199,621-. The appellant has submitted that even in the assessment order it is observed that cash in hand of M/s Guru Lal Enterprises as on 06.11.08 is for Rs. 37,200/-. It is seen from the copy of the cash book filed before me that there was an opening balance on cash as on 01.07.08 for Rs. 15,27,241/- from which the cash of Rs. 9.50 lacs was deposited in PNB CC (HYP) Account on 07.07.08 and another Rs. 8,00,000/- was deposited in cash in this very account on 09.07.08. Thus the source of these cash deposits being from the regular books of accounts of the appellant's proprietary concern and therefore evidently being explained in nature therefore the consequent addition made for Rs. 17,50,000/- on account of undisclosed deposit in cash is directed to be deleted.
In view of the above, at the very outset, from the copy of cash in hand account in M/s Guru Lal Enterprises, we observe that the amount of cash of Rs. 9.50 lakhs and RS. 8 lakhs was taken away and deposited to PNB CC [Hyp] A/c on 7.7.2008 and9.7.2008 respectively and from the copy of said bank account available at page 3 of assessee’s paper book, it is amply clear that similar amount has been deposited to this bank account on 7.7.2008 and 9.7.2008 on two occasions which were picked up by the AO for making the impugned additions.
When we logically analysed the conclusion of the ld. CIT(A), then we found that the ld. CIT(A) noted that the impugned cash deposits in the bank account has been explained as having been made from the cash balance available in the books of account of M/s Guru Lal Enterprises, the proprietorship concern of the assessee and similar explanation was also given by the assessee in his statement recorded on oath u/s 132(4) of the Act recorded during the course of search.
Subsequently, in the impugned order, the ld. CIT(A) noted that from the copy of cash book of the said proprietary concern from 1.4.2008 to 6.11.2008, it is seen that there was opening cash balance as on 1.4.2008 of Rs. 5,53,391/- while closing balance as on 6.11.2008 was Rs. 37,199.62 and the AO has noted in the assessment order that the cash in hand of M/s Guru Lal Enterprises as on 6.11.2008 was Rs. 37,200/-. With these observations, the ld. CIT(A) deleted the additions by holding that the source of these cash deposits being from regular books of accounts of the assessee’s proprietary concern M/s Guru Lal Enterprises and therefore, evidently being explained in nature and consequent addition made on account of undisclosed deposits in cash was directed to be deleted.
On the basis of the foregoing discussions and logical evaluation of facts and circumstances, we are in agreement with the conclusion of the ld. CIT(A) that the assessee satisfactorily explained the source of impugned cash deposits to his bank account and the same cannot be treated as undisclosed deposits in cash and thus no addition in this regard can be made. We are unable to see any perversity or any other valid reason to interfere with the impugned order and hence we uphold the same. Accordingly Ground No. 1 of the Revenue being devoid of any merits is dismissed.
Ground No. 2
Apropos Ground No. 2, the ld. DR submitted that the ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 62 lakhs made by the AO on account of undisclosed investment towards purchase of property /land in village Jakhoda, Bahadurgarh. Supporting the action of the AO, the ld. DR pointed out that in view of the clear documentary evidence, the cash amount of Rs. 62 lakhs was paid out of undisclosed sources over and above the disclosed consideration and thus the same was rightly held as undisclosed investment from unaccounted income. The ld. DR justifying the action of the AO further submitted that this amount was rightly added in the hands of the assessee on protective basis because the property transaction had been made by the assessee, being the Director of M/s Ashwani Kumar and Co. Pvt. Ltd., has admitted these unaccounted transactions. The ld. DR candidly accepted that, correspondingly, similar addition on substantive basis has been made in the case of M/s Ashwani Kumar and Co. Pvt. Ltd. and the property purchase transaction has been done by this company and the property was still owned by the said company. The ld. DR further submitted that the ld. CIT(A) granted relief to the assessee without any basis. Therefore, the impugned order may be set aside by restoring that of the AO.
Replying to the above, the ld. DR supported the impugned order and submitted that when substantive addition in the case of M/s Ashwani Kumar and Co. Pvt. Ltd. for A.Y 2009-10 was upheld by the ld. CIT(A) and there is no further litigation, then protective addition in the case of the assessee being director of the said company would amount to double addition and the same was rightly deleted by the ld. CIT(A). The ld A.R, placing reliance on the orders of the ITAT Delhi in the case of Yashpal Narender Kumar Vs. DIT in to 5342/Del/2012 dated 7.2.2013 and in another case of Nestle India P. Ltd Vs. ITO in ITA No. 3981/Del/2013 dated 13.5.2014 submitted that since the substantive addition made in the case of M/s Ashwani Kumar and Co. Pvt. Ltd. has been sustained, then protective addition in the hands of the assessee cannot survive and the same was rightly deleted by the ld. CIT(A).
On careful consideration of the oral submissions, at the very outset, from the relevant part of the impugned order of the ld. CIT(A), we note that the relief was granted to the assessee with the following observations and conclusions:
“From the assessment order it is noted that the addition of Rs. 62,00,0001- has been made as unaccounted investment in a property transaction at village Jakhoda, Bahadurgarh which has been made by M/s Ashwani Kumar & Co. P. Ltd, who is the legal owner of this property. This addition has been made on basis of certain notings on seized document. Accordingly, the AO has added the above undisclosed consideration on protective basis in case of Sh. Ashwani Kumar the assessee who is director of the said company. Addition on substantive basis for this very amount has also been made in case of M/s Ashwani Kumar & Co. P. Ltd in the assessment order passed on 30.12.2011 for A.Y. 2009-10. Also from the hand written notings made on page No. 6 of Annexure A-1 the scanned copy of which is reproduced in the appellate order above, there is no indication whatsoever that the above unaccounted portion of the investment for Rs. 62,00,000/- has been made by the assessee in his individual capacity. As the assessee is not the legal owner of this property, therefore, for the above reasons, the protective addition made in the case of the appellant for Rs. 62,00,000/- is directed to be deleted.”
From the copy of the assessment order and the order of the ld. CIT(A) in the case of M/s Ashwani Kumar and Co. Pvt. Ltd. for AY 2009- 10 available at pages 4 to 38 of the assessee’s paper book, we clearly observe that the addition on account of unaccounted investment in the purchase of property measuring 6 kanal 16 marlas at village Jakhoda, Haryana was made by the AO and the same was upheld by the ld. CIT(A) with the following observations and conclusions :
“5.12 The page 6 of Annexure A-1 is seized from the appellant’s premises and the notings therein clearly spells in no uncertain terms that the land is purchased and part component is paid by cheque and part in cash, and simply stating that the same is not in appellant’s handwriting, I am afraid, does not come to appellant’s rescue to rebut the onus cast upon by the provisions of section 132(4A) and section 292C. No explanation has been given by the appellant as to how the under what circumstances the said paper is found from his premises and how the entries on the said seized document does not relate to him.
5.13 Thus taking in totality of all the facts and circumstances and evidences on record and entries/notings on the seized documents, I hold that Rs. 62,00,000/- have been paid by the appellant from its undisclosed sources in cash for the purchase of property. Accordingly, addition made by the AO is upheld.”
In view of the above, when we evaluate the operative part of the assessment order paras 21 and 22 at pages 8 and 9 of the assessment order, we clearly see that the AO made the impugned addition on protective basis as property transaction was made by the assessee being director of M/s Ashwani Kumar and Co. Pvt. Ltd. and did not accept and admit these unaccounted transactions/investment in 12 property. The AO, in para 22, explicitly noted that similar addition on substantive basis has been made in the case of M/s Ashwani Kumar and Co. Pvt. Ltd. because the property transaction was done by this company, which also still owned this property situated at village Jakhoda, Haryana. As we have already noted that substantive addition in the hands of the company i.e. M/s Ashwani Kumar and Co. Pvt. Ltd. has been upheld by the ld. CIT(A) with the aforesaid conclusion and on specific query of the bench, the ld. DR could not assist us with any other subsequent order showing that the substantive addition in the hands of the company either has been demolished or deleted or has been amended by any other order of the Tribunal or in any Hon’ble higher forum. In this situation, we are inclined to hold that the conclusion and observations of the ld. CIT(A) which relief to the assessee are in accordance with letter and spirit of taxing provisions of the Act and we are unable to see any valid reason to interfere with the same and thus the same is upheld on this issue. Accordingly Ground No. 2 of the Revenue being devoid of merits is also dismissed.
In the result, the appeal of the Revenue is dismissed. The decision is pronounced in the open court on 23.09.2015.