TMI Blog2014 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... al, but could not be construed as conclusive for use against the assessee to fasten any tax liability, because the same was required to be corroborated by credible and independent evidence or was required to be tested in cross-examination by the assessee, quite clearly none of these aspects have done by the Revenue in this case - the Revenue has not proved that the investment has been made by the assessee - the essential pre-requisite of Section 69 of the Act is not satisfied in this case – Decided against revenue. - ITA No. 4212/Del/2013, ITA No. 4213/Del/2013, ITA No. 4211/Del/2013, ITA No. 4210/Del/2013 - - - Dated:- 29-8-2014 - Shri B. C. Meena And Shri A. T. Varkey,JJ. For the Appellant : G. H. Sema, Sr. DR For the Respondent : C.S. Agarwal, Adv R.P. Mull, Adv ORDER Per Bench These four Revenue appeals involve consideration of common issues and therefore heard together and are being disposed off by a consolidate order. 2. To appreciate the facts and issue under consideration we take up the appeal for Assessment Year 2002-03. In this appeal the revenue has raised following grounds:- 1. The CIT(A) has ignored the material finding of the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO observed that these credits/ deposits totaling to ₹ 34,83,206/- remained un-reflected and unexplained in the return of income filed by the appellant for the assessment year under consideration. As such the AO issued a notice dated 26.03.2009 u/s 148 of the Act after recording reasons as required u/s 147 of the Act and obtaining necessary approval u/s 151 from the Addl. Commissioner of Income-tax, Range-31, New Delhi. In compliance to the said notice, the assessee filed a return of income on 18.05.2009 declaring an income of ₹ 10,92,888/- as declared in the original return of income filed on 08.08.2002. 6. The AO vide questionnaire dated 09.05.2012 asked the assessee to explain the source of credits/ deposits appearing in the printout of the ledger accounts pertaining to BIBA and KIRAN/BIBA and also to show cause as to why these credits/ deposits be not added in her income as un-reflected and unexplained credits/ deposits for the assessment year under consideration. 7. In response to the same, vide her submissions dated 24.05.2012, the assessee denied having made any deposits with Sh. Chetan Gupta and further denied having received any interest. Thereupon, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship with the main person. In such cases, most of the time, only clues are found and in the instant case also the Punjab Vigilance Bureau has reached a logical conclusion by linking the threads of the case. A notice u/s 131 dated 30.5.2012 was also issued in the name of Sh. Chetan Gupta for his personal deposition in the case of the assessee. In response, a letter dated 11.6.2012 sent through M/s. Vipin Aggarwal Associates, the authorized representative, Shri Chetan Gupta showed his inability for personal deposition. Keeping in view the extensive enquiries and investigations carried out by various agencies and the above facts, and also keeping in view that the credits/deposits totaling to ₹ 34,83,206/- being un-reflected and unexplained in the return of income filed by the assessee, I hold that amount of ₹ 34,83.206/- being unexplained credits/deposits as income from other sources and is added to the income of the assessee. 9. On appeal, the ld CIT(A) has deleted the addition by holding as under:- 10. I have considered the facts of the case and written submissions of the appellant. On perusal of the details, I find that the addition was made on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the appellant not only denied the transactions but also vested the onus on the department for enforcing the personal deposition of Sh. Chetan Gupta. However, on page 1 to 4 of the paper book filed by the appellant which is placed on record is a copy of the statement of Sh. Chetan Gupta recorded on oath on 09.03.2009 and 16.11.2009 (Asstt. Commissioner of Income-tax, Central Circle-12, New Delhi) u/s 131 is perused. During this examination, the IT Authorities enquired from Sh. Chetan Gupta about the transactions found in the pen drive stated to have been recovered from him. The said person Sh. Chetan Gupta not only denied the recovery of the pen drive from him but also denied any transaction with the appellant. Firstly, the appellant denied any transactions with Sh. Chetan Gupta. Secondly, the claim of the Assessing Officer is based on the statement of Sh. Chetan Gupta and therefore it clearly indicates that he is a witness in the appellant's case. During the course of the assessment proceedings, the Assessing Officer issued summons u/s 131 for personal deposition of Sh. Chetan Gupta. Vide letter dated 11.06.2012, Sh. Chetan Gupta expressed his inability for appearing bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab). The said addition was deleted by the CIT(A)-XXVI, New Delhi vide his order dated 28.4.2009 in appeal no,81108-09, This order of CIT(A) was upheld by the Hon'ble ITAT, Delhi Bench- F, New Delhi vide their order dated 23.12,2009 in ITA Nos.2965 and 3196/Del/2009. The relevant findings of the Hon'ble !TAT are reproduced here under: As regards merits of the addition, there is no evidence in the possession of the revenue authorities to prove that the assessee ever paid cash to Shri Chetan Gupta except the so called report of ADIT (Investigation), Ludhiana, which in turn is based on the report of Superintendent of Police, Ludhiana. However, neither the report of SP, LUGh iana is available to the Assessing Officer much less to the assessee nor any statement was recorded by AD]T (Investigation) from Sh. Chetan Gupta to corroborate that any cash was paid by the assessee to Sh. Chetan Gupta, On the contrary Sh. Chetan Gupta on his deposition before the Assessing Officer clearly denied having received any cash. Shri Chetan Gupta also denied having given any statement admitting receipt of cash. Therefore, in absence of any evidence on record, the addition was not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion sought by the appellant through RTI, that has been filed in the paper book, I find that the department has not filed any SLP and therefore, the order of the Hon'ble High Court of Delhi has attained finality. 12. I also find that additions were made in similar circumstances on the basis of the data found in the pen drive seized from Sh. Chetan Gupta, in the cases of Maharaja Shri Amarinder Singh and Sh. K. Natwar Singh, the husband of the appellant, where the said additions were also deleted in appeals. 13. Therefore, respectfully following the decision of Hon'ble High Court of Delhi which was rendered Vide order dated 28.02.2011 on identical facts and circumstances in the case of Sh. Raninder Singh, Hon'ble ITAT, Chandigarh 'B' Bench Vide order dated 30.06.2010 in the case of Maharaja Sh. Amarinder Singh in IT Act, 1961 No. 505/CHD/2009 for assessment year 2001-02 passed on identical facts and circumstances, CIT(A) XXX, New Delhi Vide order dated 26.03.2013 passed in appeal nos. 1181 and 1152/2012-13 for assessment years 2003-04 and 2004-05, in case of Sh. K. Natwar Singh, appellant's husband, I hold that the impugned addition made by the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee nor any statement was recorded by ADIT (Investigation) from Sh. Chetan Gupta. On the contrary Sh. Chetan Gupta on his deposition before the Assessing Officer clearly denied having received any cash. Shri Chetan Gupta also denied having given any statement admitting receipt of cash. Therefore, in absence of any evidence on record, the addition was not sustainable. It is strange to note that the Assessing Officer having recorded the statement of Sh. Chetan gupta chosen to remain silent. This proves that in the statement of Shri Chetan Gupta there was no adverse factor affecting the tax liability of the assessee. Accordingly, the addition was rightly deleted by the learned CIT(A). 13. The aforesaid order was affirmed by the Hon‟ble High Court of Delhi vide order dated 28.02.2011. 14. Furthermore, even in the case of Capt. Amrinder Singh, the co-ordinate Bench of this Tribunal had examined this matter and vide order dated 30th June 2010 deleted the additions. In the said order the bench had referred to the statement of Shri Chetan Gupta and noted as under:- The relevant questions put by the Assessing Office and the replies of Shri Chetan Gupta thereto, are as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries arises. 13. From the aforesaid replies, it is evident that Shri Chetan Gupta has denied any transactions with the assessee, and in fact Q.No.3 reproduced above, covers the period under our consideration. 15. In the light of the aforesaid statement, the c-ordinate Bench of the Tribunal was pleased to order as under:- 14. Considering the aforesaid factual matrix. In our considered opinion, it does not stand established that the assessee has made the impugned investment. We say so for the reason that the burden to establish the existence of impugned investment was on the Revenue, which, in the present case has not been discharged. Firstly, assessee denied the impugned transaction. Secondly, the claim of the Assessing Officer is based on the alleged evidence found on Shrl Chetan Gupta, and quite clearly said witness has not been confronted to the assessee at any stage during the course of assessment, although the same was specifically pleaded by the assessee. The said person is the witness of the revenue because it is on the basis of his testimony, It has been held that the assessee made the impugned investment. Therefore, non- affording of cross-examination makes ..... 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