Neetu Verma , New Delhi vs Department Of Income Tax

ITO, vs Neetu Verma, Ward-33(3), E-2, Room No.-1609, 30/23, East Patel Nagar, Dr.S.P.Mukherjee, Civic Centre, New Delhi. New Delhi PAN-ACAPV5385P (APPELLANT) (RESPONDENT)

Appellant by Sh.P.Dam Kanunjna, Sr. DR Respondent by Sh.Manjit Singh Sahani, CA

Date of Hearing 25.05.2015 Date of Pronouncement 30 .06.2015

ORDER

PER DIVA SINGH, JM

By both the appeals filed by the Revenue, the correctness of the separate orders dated 28.02.2013 passed in the quantum and penalty proceedings by the CIT(A)-XXVI, New Delhi in 2008-09 Assessment Year is assailed. Accordingly for the sake of convenience, both these appeals are being decided by a common order. We first address the departmental grounds in ITA No.-2998/Del/2013. These read as under:-

1. "The Ld. CIT(A) has erred in deleting the addition of Rs.30,10,500/-

made by AO u/s 69 of IT Act, 1961 on account of unexplained investment in property, despite the remand report specifically mentioning that assessee was not able to satisfactorily explain source of investment.

2. The Ld. CIT(A) has erred in admitting additional evidences in violation of rule 46(A) of the IT Rule 1962."

2. The relevant facts of the case are that the assessee in the year under consideration declared an income of Rs.1,39,470/-. The case was selected for I.T.A .No.-2998 & 3000/Del/2013

scrutiny under CASS in AIR category and notice u/s 143(2) as per the assessment order dated 11.08.2009 was served on the assessee. Thereafter notices u/s 143(2) & 142(1) dated 19.02.2010 were sent by speed post but returned with the remarks "Left". Subsequent efforts met with the same fate. In view thereof service of notice by way of affixture was effected at the last known address of the assessee i.e 28/46, West Patel Nagar, New Delhi-08. Considering the material available on record, an addition of Rs.30,10,500/- was made on the grounds of failure on the part of the assessee to explain the purchase of immovable property as per AIR information received from Sub- registrar-II, Distt.-West Janak Puri office.

3. Aggrieved by this, the assessee came in appeal before the CIT(A) and submitted that none of the notices were received by her. On merits, it was submitted that investment in respect of the specific House No.-30/23, East Patel Nagar, New Delhi was made by way of funds received as loan from her father through an account payee cheque. In support of the said claim, copy of the sale deed; bank pass-book, copy of the bank pass book of the mother and confirmation of the loan having been taken from her father were filed upon before the CIT(A).

3.1. The said evidences were confronted by the CIT(A) to the AO and his comments were received vide Remand Report dated 23.11.2012. The AO as per record objected to the admission of fresh evidence and without prejudice to the same also addressed the evidences now filed on record. Referring to the same, he submitted that as per the assessee's explanation she had transferred a sum of Rs.30 lacs in favour of her mother, Smt. Vijay Kakkar who has made payment of Rs.60,21,000/- to Sh. Ashok Kumar Arora as a consideration for the property purchased jointly in the name of Smt. Neetu Verma and Smt. Vijay Kakkar. It was pointed out that the confirmation of the father was only to the extent of Rs.20 lacs by way of cheque drawn on Syndicate Bank, Patel Nagar. Regarding the remaining payment of Rs.10 lacs it was pointed out by the AO, no explanation had been offered by the assessee. The said reply has been extracted in para 5 of the impugned order.

3.2. The objections of the AO were also confronted to the assessee. The re- joinder of the assessee to the objections posed by the AO is addressed in para 6

Page 2 of 7 I.T.A .No.-2998 & 3000/Del/2013

by the CIT(A). A perusal of the same shows that it was submitted that the loan of Rs.10 lacs was received vide cheque No.103201 drawn on ICICI Bank. The amount was stated to be received from some relative. However confirmation in support of the claim was not filed.

4. Considering these submissions, the CIT(A) deleted the addition after admitting the fresh evidence. The relevant extract is reproduced herein below:-

10. "I have considered the facts of the case, written submissions of the appellant, remand report of the Assessing officer and appellant's rejoinder. After taking into account all the relevant material, I find that the property bearing no.30/23, East Patel Nagar, New Delhi was jointly purchased by the appellant with her mother Smt. Vijay Kakkar with 50% share each. The appellant had invested her 50% share amounting to Rs.30,10,500/- partly by raising a loan of Rs.20,00,000/- from her father Sh.Vinod Kumar Kakkar and partly out of funds available with her bank account maintained with Syndicate bank, East Patel Nagar, New Delhi.

Sh. Vinod Kumar Kakkar has filed confirmation in this regard. This loan was given through an account payee cheque number 562222 dated 5.11.2007 which was duly credited in appellant's above bank account. The appellant had issued a cheque bearing no.196501 dated 5.11.2007 or Rs.30,00,000/- in favour of Smt. Vijay Kakkar, mother of the appellant, who in term issued a cheque no.573360 from her bank account maintained with Syndicate Bank, East Patel Nagar, New Delhi in favour of Sh.Ashok Kumar Arora, the vendor, towards total sale consideration of Rs.60,21,000/-. It is also to be noted that the father of the appellant Sh. Vinod Kumar Kakkar who had given loan of Rs.20,00,000/- to the appellant is also assessed to tax in the same ward as that of appellant i.e. Ward-33(3), New Delhi under PAN-AARPK1499C. Therefore, considering all these facts, I hold that the investment of Rs.30,10,500/- made by the appellant towards her 50% share in the property stands explained and no addition on this account is warranted. Accordingly, the addition of Rs.30,10,500/- made by the Assessing Officer is deleted."

5. Aggrieved by this, the Revenue is before the Tribunal.

6. The Ld. Sr. DR inviting attention to the impugned order submitted that no arguments have been advanced on behalf of the assessee to address why the assessee chose to remain un-represented before the AO. It was his argument that mere repetition of the argument that the notices were not served upon the assessee does not negate the fact that the notice sent initially was received at the address given by the assessee in its return and change of address was never intimated to the department by the assessee. Apart from that service by way of an affixture at the last known address in the circumstances it was submitted is sufficient compliance of law.

Page 3 of 7 I.T.A .No.-2998 & 3000/Del/2013

6.1. On merits, it was argued that even if the explanation to the extent of Rs.20 lacs as a loan given by her father is accepted as this fact it is seen is confirmed by him, the fact remains that it does not address the position for the remaining amount of Rs.10 lacs. For this specific amount despite all possible opportunities till date the assessee has failed to offer an explanation. The amount it was submitted remains unexplained as except for the vague unsupported statement that it was given as a loan by some unknown unnamed relative the assessee has failed to come out with a name. Thus the occasion to consider genuineness of the same remained unsubstantiated. The general statement it was submitted does not absolve the assessee from the responsibility of discharging its onus. Inviting attention to the impugned order it was submitted that the CIT(A) has not given any reason why in the face of confirmation of only Rs.20 lacs, he has proceeded to delete the addition of Rs.30,10,500/- without even caring to bother to see where the amount of Rs.10 lacs had come from.

7. Ld. AR relying on the impugned order submitted that Rs.10 lacs had been advanced by some relative however the assessee has not been able to ascertain who is the relative who gave the loan. For the said purpose it was his submission the assessee had sought time on the last occasion to find out the details of the name of the relative from the bank details available but could not get any information. Reliance was placed on the impugned order.

8. We have heard the rival submissions and perused the material available on record. In the light of the arguments of the parties before the Bench, we find that as far as the availability of funds to the extent of Rs.20 lacs for investing in the specific house property in the joint name of the assessee and her mother it can be accepted. In order to arrive at the conclusion, we have seen that qua the same the confirmation of loan advanced by the father of the assessee, Sh.Vinod Kumar Kakkar is available on record; the loan is explained from his specific bank account; his particulars of tax jurisdiction where he was assessed to tax; and his PAN details have been provided by the assessee and confronted to the AO which remain unrebutted on record. Thus in the absence of any rebuttal on the same, the finding of the CIT(A in concluding that the availability of funds to

Page 4 of 7 I.T.A .No.-2998 & 3000/Del/2013

the said extent can be accepted and the said finding cannot be faulted with. Accordingly the relief granted to this extent is upheld.

9. However, considering the contents of paras 5 & 6 of the impugned order which have been addressed in the earlier part of this order, we find that in the facts of the present case the action of the CIT(A) in deleting the addition of Rs.10 lacs also on the same reasoning cannot be upheld. There is nothing on record to show how the short fall of Rs.10 lacs odd can be stated to have been explained by the assessee. The Ld. AR had referred to Paper Book page 20 and sought to raise the plea that the specific amount had originally been transferred to Sh. Ashwini who had repaid the same back to the assessee and it is from this source that Rs. 10 lacs are explained. The said explanation on facts is misleading as the very said page i.e 20 of Paper Book records that on 30.04.2007 the assessee received an amount of Rs.10 lacs by way of cheque No.-103201 drawn on ICICI Bank. It is this amount which was transferred to Sh. Ashwini on 26.05.2007 and was received back from him on 05.11.2007. The fact remains that who is the person who has given the loan of the said amount by way of cheque No.-103201 remains unexplained till date. The assessee by its silence and misleading arguments evidently has deliberately chosen not to come out with correct facts. In the above stated factual position considering the departmental ground, we find that the vague unsupported argument that the loan was advanced by some un-named relative whose name, particulars and relationship is unstated cannot be accepted. The argument that the assessee does not remember the name cannot be accepted as the assessee who returns an income of Rs.1,39,470/- in order to purchase a specific property that too jointly with her mother who as per record takes a loan of Rs.20 lacs from her father and another loan for half the amount of loan taken from the father i.e. Rs.10 lacs cannot claim to continuously remain in ignorance of the name of the loan lender. When availability of funds is claimed to be by way of a loan it goes without saying that there must be an obligation to repay the loan. Describing the amount as a loan from a relative and claiming to trace the name of the loan lender from the bank account is a preposterous argument and cannot be accepted. The information pertains to the personal financial position of the assessee and necessarily by its very claim is expected to be exclusively in

Page 5 of 7 I.T.A .No.-2998 & 3000/Del/2013

the domain of assessee's personal knowledge and the assessee cannot be allowed to claim that a third party like the Bank ought to provide this information. The relative's name is presumed to be in assessee's personal knowledge. Even otherwise time for this specific exercise has been availed and no further time has been sought. It is a matter of record that the relevant fact as to who is the loan lender was not explained even before the CIT(A) despite the fact that the specific shortcoming was pointed out by the AO in the Remand Report. Even before us, the Ld. AR has stated that the assessee is unable to trace the relative's name for which purpose as per the submissions advanced time had been sought on earlier occasions before the ITAT. The need for the specific funds at the relevant point of time is available on record. Accordingly in view of the above reasoning on facts on record the impugned order to the extent of the addition of Rs.10 lacs is set aside. The additions made by the Assessing Officer to the extent of Rs.10 lacs is upheld as no cogent explanation by way of any evidence has been placed on record to justify the finding arrived at in the impugned order. The Revenue having successfully demonstrated that the order to the said extent is not maintainable on facts, the ground is partly allowed. In the result, ITA No.-2998/Del/2013 is partly allowed.

10. In ITA No.-3000/Del/2013, the Revenue has assailed the correctness of the order of the CIT(A) wherein the penalty imposed by the AO on the grounds of addition amounting to Rs.30,10,500/- u/s 69 was deleted by the CIT(A) in view of the relief granted in the quantum proceedings.

11. Considering the fact that the quantum order has been modified in the earlier part of this order as the addition of Rs.10 lacs has been sustained thus the challenge by the Revenue in the penalty proceedings deserves to succeed. A perusal of the impugned order shows that the only reasoning adopted is that the addition on merits has not survived. Consequently the penalty was quashed. This finding in view of the above factual position cannot be upheld.

12. Accordingly, after hearing the parties on this issue where the stand of both the parties was that instead of sending the issue back to the CIT(A), it would be appropriate to send the same back to the AO, we find ourselves in agreement with the view expressed. The challenge posed to the impugned order by the Revenue succeeds and the issue is restored back to the file of the AO

Page 6 of 7 I.T.A .No.-2998 & 3000/Del/2013

with the direction to decide the same by way of a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.

12. In the result, ITA No.-2998/Del/2013 is partly allowed and ITA No.- 3000/Del/2013 is allowed for statistical purposes.

The order is pronounced in the open court on 30th of June, 2015.

Sd/- Sd/-

(N.K.SAINI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated:30/06/2015 *Amit Kumar*

Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI

Page 7 of 7