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ACIT, Circle 43 (1), vs. Shri Gavendra Kumar Sharma, New Delhi. A 1/30, Ist Floor, Panchsheel Enclave, New Delhi 110 016.
April, 03rd 2014
                (DELHI BENCH `C' : NEW DELHI)


                            ITA No.4203/Del./2012
                       (ASSESSMENT YEAR : 2009-10)

ACIT, Circle 43 (1),            vs.          Shri Gavendra Kumar Sharma,
New Delhi.                                   A ­ 1/30, Ist Floor,
                                             Panchsheel Enclave,
                                             New Delhi ­ 110 016.

                                                   (PAN : AAUPS2694C)

      (APPELLANT)                                  (RESPONDENT)

                      ASSESSEE BY : None
               REVENUE BY : Shri Satpal Singh, Senior DR



      This appeal filed by the assessee emanates from the order of CIT

(Appeals)-XXX, New Delhi dated 08.05.2012 for the assessment year 2009-


2.    The assessee is a salaried employee. The return of income was filed on

21.07.2009 declaring income at Rs.29,65,714/-. The Assessing Officer made

an addition of Rs.19,02,100/- as income from unexplained investments/

deposits u/s 69 of the Income-tax Act, 1961. The CIT (A) has partly deleted

the addition by evaluating the evidences submitted by the assessee as under :-
                                  2               ITA No.4203/Del./2012

"      I have gone through the entire facts of the case & also the
judicial pronouncements referred by the assessee and came to the
conclusion that the A.O., before passing such an order, could have
made an effort to collect some more corroborative evidences or have
telescoped the transactions of the assessee to establish the correct
facts that the transactions are of genuine or not. Without doing so he
has passed the order in haste. The assessee had purchased another
house/plot from Unitech/Pioneer group at a cost of Rs.25,11,533/-
(including stamp duty) in 2004 through Agreement to sell but
registered on 17/3/2009. The appellant had also paid 11 lakhs stamp
duty on the purchase of house at Rs.2.20 crores from Mr. Naresh N
Pandey and others. The appellant derives salary income of following
for 3 AYs as shown below:-

             Assessment Year      Returned Total Income
                2007-08                 13,17,175/-
                2008-09                 21,31,426/-
                2009-10                 29,65,714/-
                Total                   64,14,315/-

      The appellant had availed           HDFC     Home     loan   of
Rs.1,30,00,000/- on 29/01/2009.

      The home loan from Standard Chartered Bank on Gurgaon
(Nirvan County) had been closed on 20/02/2009 by the bank.

Details of loan amount is 19,00,000/- taken on 10/02/2004 @ 10%

       Regarding balance of Rs.2,18,500/- and Rs.40, 000/- it is
submitted before AO, by the assessee that these were from cash
withdrawals and loan from wife respectively had not been accepted
by the AO and has made the additions. The assessee during the
appeal hearing has submitted that the AO had not telescoped the bank
entries for such withdrawals and deposits, without doing so he has
added back to income. Further assessee has contended that the AO
could also have applied peak credit and telescoping theories before
arriving to such a naive conclusion to make an addition and liable the
assessee to pay tax.

      The assessee with regard to loan from wife of Rs. 40, 000/-,
has submitted that in a Hindu Society Culture, there is a habit of
saving money by the House wife. So whenever, the money required
by the husband, always wife will come to the rescue of her husband
by giving her savings money to the husband. In the given
                                         3                 ITA No.4203/Del./2012

      circumstances taking loan from wife to the extent of small amount of
      Rs.40,000/- is not un reasonable and not to be doubted. Assessee
      further has requested to render the justice in a fair and equitable, to
      uphold the facts of the cases and genuinity of the transactions.

      The mistakes on the part of the appellant are :-

            (a)     The appellant does not maintain any books of a/cs like
                    cash book, ledger, journal etc except bank pass book.
                    The IT Act provides of maintenance of books of a/cs
                    when Turn Over of appellant exceeds 10 lakhs Rupees.
                    The appellant had returned income of Rs.30 lakhs for
                    this year and besides this income, he is having income
                    from sale/purchase of property business, which may
                    yield capital gains income. The appellant should
                    maintain balance sheet and capital a/c in future. His
                    accounts should also be audited by CA.

            (b)     The explanation of sale of jewellery and cash deposit
                    brings no other evidences into account. The appellant
                    should have declared the gold & jewellery in W.T.

      The action of the department slows down when the appellant gives
      affidavits that he had sold jewellery and out of sale proceeds, he
      deposited the cash in his bank a/cs. The AO could have taken
      statement on oath from father and father-in-law of appellant or make
      inspector enquiry in such case to strengthen the case. The AO could
      have also made local enquiry or survey u/s 133A to find out the truth
      in the case. However, considering the overall circumstances, and facts
      of the case, it justified to sustain addition of Rs. 5 lakhs to the total
      income of the appellant from undisclosed services and balance
      addition is deleted."

3.    Now, the revenue is in appeal by taking the following grounds of

appeal :-

      "On the facts and in the circumstances of the case and in law, the Ld.

CIT (A) has erred in :
                                          4                ITA No.4203/Del./2012

       "1. Deleing an addition of Rs.14,02,100/- out of total addition of
       Rs.19,02,100/- by accepting additional evidence in contravention of
       Rule 46A of the I.T. Rules.

       2.     Whether the CIT (A) has ignored the material fact that neither
       the genuineness of the transaction of the sale of jewellery in cash nor
       the identity of the alleged purchaser could be established.

       3.     The appellant craves the right to alter, amend, add or substitute
       the grounds of appeal."

4.    After hearing the revenue, we find that the CIT (A) has deleted the

addition by proper evaluation of the evidences submitted by the assessee. The

assessee was able to produce corroborative evidence of the transactions in its

bank account. Therefore, Assessing Officer was not justified in making the

addition on account of cash deposit in the ICICI Saving Bank Account

No.017701540729 u/s 69 of the Act. In view of these facts, we find no fault

in the order of the CIT (A) and we sustain the same.

4.    In the result, the appeal of the revenue stands dismissed.

     Order pronounced in open court on this 28th day of March, 2014.
                  Sd/-                                       sd/-
           (A.T. VARKEY)                               (B.C. MEENA)
         JUDICIAL MEMBER                           ACCOUNTANT MEMBER

Dated the 28th day of March, 2014/TS

Copy forwarded to:
     4.CIT(A)-XXX, New Delhi.
     5.CIT(ITAT), New Delhi.                                         AR, ITAT
                                                                  NEW DELHI.
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