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Income Tax Officer, Ward-2, Rewari. Vs. Smt. Sushila Yadav, W/o Shri D.S. Yadav, W/o Shri D.S. Yadav, Kanongo Mohalla, Kanongo Mohalla, Bawal, District Rewari. District Rewari
October, 07th 2015
                 IN THE INCOME TAX APPELLATE TRIBUNAL
                                  `G' : NEW DELHI
                      DELHI BENCH `G

                              GUPTA, VICE PRESIDENT AND
             BEFORE SHRI G.C. GUPTA,
                              KANT, ACCOUNTANT MEMBER
             SHRI OM PRAKASH KANT,

                              No.5295/Del/2014
                          ITA No.
                                          2009-10
                        Assessment Year : 2009-


Income Tax Officer,              Vs.                 Yadav,
                                        Smt. Sushila Yadav,
Ward-2,
Ward-                                   W/o Shri D.S. Yadav,
Rewari.                                 Kanongo Mohalla,
                                        Bawal,
                                        District Rewari.
                                        PAN : AABPY7821N.
     (Appellant)                            (Respondent)

              Appellant by       :     Shri Sujit Kumar, Senior DR.
              Respondent by      :     Shri Ashok Kumar.

        Date of hearing           :    01.10.2015
                                       01.10.2015
        Date of pronouncement     :    06.10.2015

                                  ORDER

         GUPTA, VP :
PER G.C. GUPTA,
        This appeal by the Revenue for the assessment year 2009-10 is
directed against the order of learned CIT(A), Rohtak dated 18th July,
2014.


2.      Ground No.1 to 3 of the Revenue's appeal are as under:-


        "1. On the facts and circumstances of the case, ld.CIT(A)
        has erred in law in deleting the addition amounting to
        Rs.13,00,000/- made by the AO on account of unexplained
        credit entries in the bank account.

        2.    On the facts and circumstances of the case, Ld.CIT(A)
        has erred in admitting the additional evidence U/R 46A
        without affording opportunity to the AO. Ld.CIT(A) has
        passed one line dictate saying "in view of the facts and
        circumstances of the case, the additional evidence has
                                   2                        ITA-5295/Del/2014






      been admitted in terms of Rule 46A of the I.T. Rules". This
      is in violation of rule 46A(2).

      3.    The ld.CIT(A) has erred in ignoring the fact that by
      surrendering the amount vide letter dated 28.11.2011,
      assessee prevented the department from making enquiries
      and therefore has availed a benefit by taking that position.
      The assessee can not be allowed to change this position
      afterwards."

3.    Learned DR submitted that the assessee has credited an amount
of `13 lakhs in her bank account and could not satisfactorily explain
the source thereof before the Assessing Officer with documentary
evidence and has agreed to offer the amount of `13 lakhs to tax during
assessment proceedings.     He submitted that the assessee could not
prove that the assessee has received a loan of `13 lakhs and,
therefore, the loan of `13 lakhs remains unexplained and was rightly
treated as unexplained income and added u/s 68 of the Income-tax
Act, 1961. He referred to the relevant portion of the assessment order
in support of the case of the Revenue.


4.    The learned representative of the assessee has opposed the
submissions of the learned DR.         He submitted that the offer of
surrender of `13 lakhs during assessment proceedings was coupled
with a condition that it shall be subject to no penal action.            He
submitted that the offer itself was not accepted by the Assessing
Officer as he has initiated penalty proceedings u/s 271(1)(c) of the Act
on this amount and, therefore, the assessee has to file an appeal
before the first appellate authority, i.e., the CIT(A). He submitted that
learned CIT(A) has called for the remand report and, in the remand
report, it was admitted that the identity proof and bank statement of
the lender was produced by the assessee.        He submitted that the
money has come from the joint bank account of Smt. Mansa Devi and
Sujata. Smt. Mansa Devi was aged 80 years of age and could not be
                                   3                        ITA-5295/Del/2014



produced and therefore, her daughter Sujata appeared before the
Assessing Officer and accepted that she has advanced a loan of `13
lakhs to the assessee. He submitted that the copy of the bank account
of the lender Smt. Mansa Devi and Sujata was also filed before the
Assessing Officer and therefore, there was enough proof of the identity
and creditworthiness of the lender. He submitted that the assessee is
a widow and was a bank employee and the lender Smt. Mansa Devi
and Sujata were assessee's family friends and it is for the first time in
the life of the assessee that she has to take money on loan due to
adverse circumstances. He relied on the order of the learned CIT(A).


5.    We have considered the rival submissions and have perused the
order of the Assessing Officer and learned CIT(A). We find that learned
CIT(A) has called for a remand report in this case. The assessee has
pleaded throughout that money came from the joint bank account of
Smt. Mansa Devi and Sujata. Smt. Mansa Devi being an aged lady of
80 years could not be produced and her daughter Sujata did appear
before the Assessing Officer and she has admitted the fact of loan
given to the assessee. It has been claimed by the assessee that it has
filed the copy of the bank account of Smt. Mansa Devi and Sujata,
which could not be controverted on behalf of the Revenue.              The
identity and creditworthiness of the lender are proved by filing the
copy of the joint bank account of Smt. Mansa Devi and Sujata and their
identity has not been doubted by the Revenue.           The CIT(A) has
recorded in his appellate order that in the remand report submitted by
the Assessing Officer dated 29.03.2014, it was admitted that the
identity proof and bank statement of the lender was produced.             In
these facts of the case, since the loan amount of `13 lakhs received by
the assessee has been confirmed by the lender and who has filed the
documentary evidence of the source thereof by filing the copy of joint
bank account of Smt. Mansa Devi and Sujata and has filed their
                                   4                           ITA-5295/Del/2014






identity proof, we find that there is no material brought on record on
behalf of the Revenue to suggest that the transaction of loan to the
assessee was not genuine.     There being no mistake in the order of
learned CIT(A) on this issue, the same is confirmed and ground Nos.1
to 3 of the Revenue's appeal are dismissed.


6.    Ground No.4 of the Revenue's appeal reads as under:-


      "On the facts and circumstances of the case, ld.CIT(A) has
      erred in deleting the addition amounting to Rs.70,000/-
      made by AO on account of the unexplained cash deposits
      without appreciating that assessee has been changing her
      stand and her explanation is without any support."

7.    We have heard the parties. The case of the assessee before the
learned CIT(A) was that the Assessing Officer has not enquired the
facts properly and has misjudged himself and that the bank account in
question was a joint account of the assessee with her mother-in-law
Smt. Misri Devi and that the nexus between the withdrawals and
deposits was evident with the bank statement which was furnished
before the Assessing Officer. There being no material to controvert the
explanation of the assessee, we hold that the learned CIT(A) was
justified in deleting the addition and his order on this issue is
confirmed. Ground No.4 is accordingly dismissed.


8.    In the result, the appeal of the Revenue is dismissed.
      Decision pronounced in the open Court on 6th October, 2015.


                  Sd/-                                Sd/-
                   KANT)
       (OM PRAKASH KANT)                       (G.C. GUPTA)
                                               (G.C. GUPTA)
      ACCOUNTANT MEMBER                       VICE PRESIDENT

VK.
                                 5                       ITA-5295/Del/2014



Copy forwarded to: -

1.   Appellant                        Ward-2, Rewari.
                : Income Tax Officer, Ward-
2.   Respondent : Smt. Sushila Yadav, W/o Shri D.S. Yadav,
                                                   Rewari.
                  Kanongo Mohalla, Bawal, District Rewari.

3.   CIT
4.   CIT(A)
5.   DR, ITAT

                            Assistant Registrar

 
 
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