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Income Tax Officer, Ward-36 (1) , New Delhi Versus Sh. Krishna Kumar Sethi, Prop. M/s. Sethi Auto Deals

2016 (8) TMI 905 - ITAT DELHI

Addition on account of cash credit under section 68 - Held that:- We find that assessee has not produced any document which could rebut the findings of the Tribunal in order dated 14/05/2010. The assessee has not produced any receipt of advance payments by the proposed buyers. It is seen from the page 31 of the paper book that the cash was deposited in the bank accounts from 03/09/2004 to 23/03/2005, i.e., for a period of almost sevenmonth. The assessee has not been able to explain before us why .....

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,48,185/-. Similarly, total income of Rajendra Kumar Garg (Page 10 of the assessee paper book ) was only ₹ 1,54,000/-. Further the total income of another proposed buyer Sh. Gaurav Gupta (page 11 of the assessee paper book) was merely ₹ 69,616/-. No evidence in support of income of Sh. Dinesh Gupta is filed in the paper book submitted by the assessee. No other documents evidencing the financial capacity of the proposed buyer to advance the money were submitted. Looking to the amounts .....

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ly we set aside the order of the ld. Commissioner of Incometax (Appeals) and restore the order of the ld. Assessing Officer. - Decided against assessee - ITA No. 3330/Del/2009 - Dated:- 8-7-2016 - Sh. H. S. Sidhu, Judicial Member And Sh. O. P. Kant, Accountant Member Appellant by : Sh. T. Vasanthan, Sr. DR Respondent by : Sh. Salil Kapoor & C.S. Anand, Ms. Ananya Kapoor ORDER Per O. P. Kant, A. M. This appeal by the Revenue has arisen consequent to the judgment of the Hon ble High Court of D .....

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. The facts in brief of the case are that the assessee, an individual, filed return of income for the year under consideration on 12/08/2005 declaring total income of ₹ 4,05,265/- comprising of income under the head income from house property and income from business and profession of dealing in financing of three wheeler/scooters on commission basis. The case of the assessee was selected for scrutiny. During the course of scrutiny the Assessing Officer observed from the Annual Information .....

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e any logical reason for deposit and withdrawal of the cash in bank accounts. In view of the facts, the Assessing Officer worked out the peak cash credit of ₹ 36,80,000/- based on cash deposits and withdrawal in the bank accounts and in absence of any explanation from the assessee added the same as unexplained cash credit in terms of section 68 of the Act. 4. Before the Ld. Commissioner of Income-tax (Appeals), it was explained by the assessee that bank accounts in the name of his minor so .....

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eived a sum of ₹ 33,00,000/- as advance from them. It was explained that the assessee had deposited this advance amount in the bank accounts of his sons Master Sahil Sethi and Master Sarik Sethi on various dates. The assessee withdrew the cash from the bank on various dates and again re-deposited the same into bank accounts. It was further submitted that the buyers parties could not arrange the balance amount with the result that deal for the sale of property did not mature and the assesse .....

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r of Income-tax (Appeals) forwarded the additional evidences filed by the assessee for comments of the Assessing Officer. The comments of the Assessing Officer were forwarded to the assessee. In the rejoinder, the assessee reiterated the facts submitted earlier before the learned Commissioner of Income-tax (Appeals) and further stated that the property in reference was given on rent to the Axis Bank and the assessee derived rental income, which was reflected in the income tax return. After consi .....

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e by the Assessing Officer on account of cash credit u/s 68 of the I.T. Act, 1961. 2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 6. The Tribunal, after considering the arguments of the both parties set aside the order of the Ld. Commissioner of Income-tax (Appeals) and restored that of the Assessing Officer. The relevant findings of the Tribunal are as under: 7. We have .....

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o suggest that the amounts deposited on various dates have come out from the sale consideration received in advance from the prospective buyers. The Id. CIT (A) has not recorded any finding as to how the amount of ₹ 30,00,000/- received from buyers was deposited on different dates. If the transaction was genuine, the deposit should have been a one-time affair. It is unbelievable that a party, who can pay 75 per cent of the amount as advance would not be able to arrange 25 per cent of the a .....

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wo minor sons. The assessee had deposited ₹ 92,80,000/- on various dates peak thereof worked out to ₹ 36,80,000/-. Another amount of ₹ 3,80,000/- has been explained from the past savings for which no evidence has been filed. The Id. CIT (A) has deleted the addition merely on the basis of explanation offered by the assessee. No nexus has been established either before the Id. CIT(A) or before us that the amount of ₹ 33,00,000/- received from sale agreement for property let .....

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the learned CIT(A) was no justified in deleting the addition. We, therefore, set aside the order of the learned CIT(A) and restore the order of the Assessing Officer. 7. Aggrieved, the assessee carried the matter to the Hon ble High Court of Delhi by filing an appeal under section 260A of the Act. Before the Hon ble High Court, the counsel of the assessee pleaded that the appeal was heard by the Tribunal without the paper book and without even giving chance to the assessee to file the papers. A .....

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te the representative of the Department filed an application for adjournment on the ground that he wanted to see the assessment records. Case was adjourned to 16th March, 2010. On that date again, the departmental representative sought an adjournment stating that he intended to file a paper book. Acceding to his request, the case was again adjourned to 5th May, 2010. It is pointed out by Mr. Kapoor, learned counsel for the appellant, that paper book was not filed, which could have contained the .....

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t there was sufficient evidence, which was produced before the CIT(Appeal) and since the Revenue was the appellant before the Tribunal, it was for the Revenue to file the entire paper book. Even if the Revenue had not filed the paper book, it is submitted that in those circumstances chance should have been given to the assessee to place the papers on record. 4. After hearing the learned counsel for the parties, we find substance in the aforesaid submissions: In these circumstances, without comme .....

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ing documents as under: Sl. No. Particulars 1. Photocopy of Agreement for Sale dt.27.08.2004 in r/o portion of property no. F-2/25 Krishna Nagar, Delhi-51, executed between the assessee and Sh. Anuj Garg 2. Photocopy of Agreement for Sale dt.27.08.2004 in r/o portion of property no. F-2/25 Krishna Nagar, Delhi-51, executed between the assessee and Smt. Jyoti Sethi and S/Sh. R. K. Garg, Gaurav Gupta, Dinesh. 3. Photocopy of confirmation of Sh. Anuj Garg (PAN: AHEPG 5644F) 4. Photocopy of confirma .....

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the Id. CIT(A) 9. On the direction of the bench, the Authorized Representative of the assessee also filed following documents before the bench: Documents filed vide letter dated. 02.08.2012: i. Remand report submitted by the Assessing Officer before Commissioner of Income Tax(A)-XXVII in pursuance to application for admission of additional evidence U/s. 250 r/w Rule 46A. ii. Copy of cash flow statement of the assessee for the period of 01.04.2005 to 08.04.2005 reflecting repayment of advance mo .....

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nfirmation of Anju Garg for Sale/Purchase in respect of a portion in property No. F-2/25, Krishna Nagar, Delhi-51, With Sh. Krishan Kumar Sethi, S/o- Sh. Ajit Lal Sethi, R/o A-171, Suraj Mal Vihar, Delhi-92 on 07.04.2005. ii. Copy of confirmation of Sh. R.K. Garg, Sh. Gaurav Gupta and Sh. Dinesh Garg for Sale/Purchase in respect of a portion in property No. F-2/25, Krishan Nagar, Delhi-51, with Smt. Jyoti Sethi, W/o Sh. Krishan Kumar Sethi, R/o- A-171, Suraj Mal Vihar, Delhi-92, on 08.04.2005. 1 .....

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emand report, which is available in the documents supplied by the ld. AR before the bench is as under: Kindly refer to your goodself s letter F. No. DEL/CIT(A)-XXVII/A.P. No. 142/2008-09/dated 11/12/2008 on the above mentioned subject forwarding therewith additional evidence filed by the appellant u/s 250 read with rule 46A of the I.T. Rules 1962 directing me to furnish my comments on the same. In this connection, it is humbly submitted that the following points need to be considered:- 1. No rec .....

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the ownership of the assessee of this property no. F-2/25, has not been filed. 5. Lastly since the assessee has filed photocopies of all these documents, he may be asked to file the original documents to produce the same to prove the genuineness of these documents. Thus, the addition evidence may not be entertained as it is an afterthought evidence produced before your goodself which was not produced before the Assessing Officer during the course of assessment proceedings. 12. It is settled law .....

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or certain documents from the assessee like receipt of payments made by the proposed buyers to the assessee, cancellation of the sale agreement, original copy of documents etc, however, Ld. Commissioner of Income-tax (Appeals), decided appeal without considering the request of the Assessing Officer. The Tribunal in the order dated 14/05/2010 held that no evidence had been brought on record by the assessee to suggest that the amounts deposited on various dates have come out from the sale consider .....

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pay 75% of the amount as advance could not be able to arrange balance 25% of the amount. Moreover, the property was let out to the Axis Bank and the assessee could not file any evidence to suggest that the Bank was informed about the sale of property. No evidence in respect of amount of ₹ 3,80,000/- stated as saving, were filed. In view of above findings, the Tribunal held that a sale deed in respect of property, which was let out to Axis Bank, was an afterthought for the purpose of explai .....

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he Tribunal, the assessee could not produce paper book before the Tribunal. 15. On the perusal of the paper book and the documents submitted by the assessee, we find that assessee has not produced any document which could rebut the findings of the Tribunal in order dated 14/05/2010. The assessee has not produced any receipt of advance payments by the proposed buyers. It is seen from the page 31 of the paper book that the cash was deposited in the bank accounts from 03/09/2004 to 23/03/2005, i.e. .....

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