TMI Blog2016 (1) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... at the transaction was genuine and Shri Nalnish Aggarwal was not benami of the assessee - Decided in favour of revenue for statistical purposes. - ITA No. 40 of 2010 (O&M) - - - Dated:- 18-9-2015 - MR. AJAY KUMAR MITTAL MR RAMENDRA JAIN, JJ. For The Appellant : Ms. Urvashi Dhugga, Advocate For The Respondent : Mr. Rajesh Garg, Sr. Advocate with Ms. Nimrata Shergill, Advocate Ajay Kumar Mittal,J. 1. This appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated dated 23.7.2009, Annexure A.3 passed by the Income Tax Appellate Tribunal Chandigarh Bench 'B', Chandigarh (in short, the Tribunal) in ITA No.1/CHANDI/2009 for the assessment year 2005-06, claiming following substantial questions of law:- i) Whether on the facts and in the circumstances of the case and in law the order of the Hon'ble ITAT is correct in deleting the addition made by the Assessing Officer, holding that assessee cannot be said to be benami of Shri Nalnish Aggarwal, whereas Shri Nalnish Aggarwal was neither produced before the AO nor any evidence was given in support of his capacity to make payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Limited was treated as unexplained income of the assessee inter alia on the basis of the reasons i.e. Shri Nalnish Aggarwal was not known to him; Mr. Aggarwal did not reside at the given address as mentioned in the agreement; no account existed in the name of Mr. Aggarwal in HDFC Bank and the assessee could not produce Shri Aggarwal. The assessee's contention that he invested ₹ 5 lacs from the sale proceeds of H.No.886 at Panipat was rejected by the Assessing Officer on the ground that according to the purchase deed of the said property, the assessee was neither the purchaser nor did he submit any evidence to show that he was owner of the said property. The appeal filed by the assessee before the Commissioner of income Tax (Appeals) [(CIT(A)] was allowed vide order dated 17.10.2008, Annexure A.2. The revenue went in appeal before the Tribunal. Vide order dated 23.7.2009, Annexure A.3, the Tribunal dismissed the appeal holding that the addition was made by the Assessing officer merely on the basis of enquiry from one Shri Kedia residing at H.No.559, Sector 10, Panchkula i.e. the so called address of Shri Nalnish Aggarwal as per departmental records and no specific o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know anything about Shri Nalnish Aggarwal. Thus, all the above facts prove that either Shri Nalnish Aggarwal does not exist or the assessee had used the name of any existing person for benami transaction with M/s Chandigarh Overseas.The enquiries made by the department prove that no account exist in the name of Nalnish Aggawal in HDFC Bank from where cheques have been withdrawn as mentioned in the agreement and also stated by the assessee. The cheque of ₹ 6 lacs was withdrawn from Bank of India, Sector 16, Panchkula which is not the account mentioned in the agreement but from another account. It may be possible that the assessee used the name of Shri Nalnish Aggarwal to operate the account just to avoid tax and to channelize his unaccounted money. Moreover the account from which ₹ 6 lacs have been withdrawn was opened on 1.1.2005 i.e. on the same day of the agreement with M/s Chandigarh Overseas. 3.7 In view of all above, it is clear that here is no evidence of any type whether Shri Nalnish Aggarwal was a genuine party to the agreement and the payments were actually made by him. Therefore,it is held that the whole of the amount of the agreement with M/s Chandigarh Ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has been able to produce clinching evidence to show that Shri Nalnish Aggarwal is an existing person (see para 9). In my opinion, the Assessing Officer was not justified to treat investment made by Shri Nalnish Aggarwal as an investment/undisclosed income of Shri Rajiv Manuja i.e. the assessee. 6. While affirming the findings recorded by the CIT(A), the Tribunal noticed thus:- 4.There is a finding in the impugned order that the impugned addition was made merely on the basis from inquiry from one Shri Kedia and no specific opportunity was given to the assessee to prove that the assessee was not benami. There is a further finding that the nature of the documents like sale deed, copy of return, bank documents etc. are as such that these cannot be fabricated. If the conclusion drawn in the impugned order is analyzed, we have found that there was sufficient evidence to prove that the assessee cannot be said to be benami of Shri Nalnish Aggarwal. The investment with M/s Chandigarh Overseas Pvt. Limited was found to be genuine and the documents were also found from the premises of M/s Chandigarh Overseas Pvt. Limited. Even if the agreement is perused, we have found that it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
