IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES : "F", NEW DELHI
BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER
AND SHRI A.T. VARKEY, JUDICIAL MEMBER
I.T.A.No. 6116/DEL/2013
A.Y. 2009-10
Sh. Pardeep Kumar Rai JCIT, Range 37
C/o Raj Kumar & Associates, CAs Vs. New Delhi
4435/7, Ansari Road
Darya Ganj
New Delhi 110 002
PAN: APCPK 6691 J
(APPELLANT) (RESPONDENT)
Assessee by : Sh. Raj Kumar, C.A.
Department by : Sh. Vikram Sahay, Sr.DR
ORDER
PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER
This is an appeal filed by the Assessee against the order of the
Ld.CIT(Appeals) XXVIII, New Delhi dated 14.01.2013 pertaining to the
Assessment Year (A.Y.) 2009-10.
2. Facts in brief:- The assessee is an Advocate by profession. He filed
his return of income on 7.12.2009 declaring income of Rs.2,59,96,890/-.
The A.O. passed an order u/s 143(3) of the Income Tax Act, 1961 (the Act)
on 30.12.2011 determining the total income at Rs.2,93,80,454/-. Aggrieved
the assessee carried the matter in appeal. The First Appellate Authority in a
very cryptic and non speaking order dismissed the appeal of the assessee.
Further aggrieved the assessee filed this appeal before us on the following
grounds.
"1. That under the facts and circumstances, no proper and reasonable
opportunity has been allowed by the AO.
ITA No. 6116/Del/2013
AY: 2009-10
Mr.Pardeep Kumar Rai, N.Delhi
2. That under the facts and circumstances, no proper and reasonable
opportunity has been allowed by the CIT (A).
3. That under the facts and circumstances, the addition of Rs. 43,755/- as
un - disclosed interest income is absolutely illegal and un - sustainable in
law as well as on merits.
4. That under the facts and circumstances, the addition of Rs. 18,39,806/-
as alleged unexplained income of the assessee is absolutely wrong and un -
sustainable in law as well as or merits. The alleged unexplained income is
actually expenditure incurred by the assessee which were paid by cheque for
payments made to MTNL, NDMC, Insurance expenses and electricity
expenses.
5. That under the facts and circumstances, there is no legality and
justification in treating the cash deposit of Rs. 15, 00,000/- on 15.01.2009 in
Allahabad bank as un - explained as the source of the same stands fully
explained. The sum of Rs. 15,00,000/- was actually withdrawn from one
saving bank account and was deposited in another saving bank account ,of
the assessee, on the same day."
3. We have heard Shri Vikram Sahay, Ld.Sr.D.R. on behalf of the
Revenue and Shri Raj Kumar, the Ld.Counsel for the assessee.
4 On a careful consideration of the facts and circumstances of the case,
on perusal of material on record, orders of the authorities below, case laws
cited, we hold as follows.
5. The assessee has disclosed total professional receipts of Rs.2.49
crores and interest receipts of Rs.22.5 lakhs. 96.4% of the gross
professional receipts were offered as income. During the year the assessee
claimed that he had received an amount of Rs.18,39,806/-, from various
clients, as reimbursement of expenses. This amount was entered in the
books of accounts. The assessee debited expenditure incurred on behalf of
the client, against such amounts received. It is the admitted position that
the assessee has never claimed the expenditure incurred by him on behalf of
his clients, while computing his taxable income. Under these circumstances
the amount received by the assessee for incurring expenditure on behalf of
the client, cannot be treated as his income. If the Assessing Officer (A.O.)
chooses to treat this receipt as income of the assessee, then the relatable
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ITA No. 6116/Del/2013
AY: 2009-10
Mr.Pardeep Kumar Rai, N.Delhi
expenditure, incurred and to be incurred has to be deducted from this
receipt and then only the income should be determined.
5.1. The Ld.CIT(A) has not applied his mind and passed a very cryptic and
non speaking order. This is not proper. The Revenue authorities,
specifically the Appellate Authorities, should pass speaking orders after
taking into consideration the material supplied by the assessee and the
contentions raised by them. In the result ground no.4 of the assessee is
allowed.
6. Ground no.3 is against the deletion of addition of Rs.43,755/-. This
addition is made on account of difference in cash balance depicted in the
balance sheet filed along with the return of income and cash balance
appearing in the cash book produced during the course of assessment
proceedings. The assessee's contention is that the interest in savings bank
account was credited but the accountant has mistakenly classified the same
under the group head "cash in hand." The assessee admits that this
resulted in non taxation of interest income received from Axis Bank. Thus
we set aside the issue to the file of the A.O. to verify whether the interest in
question was disclosed by the assessee as part of its interest income and if it
has not been disclosed, the addition would be justified.
7. Ground no.5 is against an addition of Rs.15 lakhs. The assessee
explains that the AO obtained information directly from the bank regarding
cash deposit of Rs.15 lakhs. The confusion was regarding the date of
deposit. The A.O. was of the view that the date of deposit was 15.1.2009
and whereas the assessee states that the date of deposit was 2.1.2009.
After the assessment was completed, the assessee obtained a certificate from
the bank that the transactions in question was only on 2nd January, 2009
and that there was no transaction in the bank on 15.1.2009.
7.1. The assessee explains that on 2.1.2009, Rs.15 lakhs was withdrawn
from Axis Bank account and thereafter deposited in Allahabad bank account
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ITA No. 6116/Del/2013
AY: 2009-10
Mr.Pardeep Kumar Rai, N.Delhi
for the reason that payment was to be made to one M/s E &
Communications which was having its account in Allahabad Bank.
7.2. As this is a matter of verification, and as the certificate obtained from
the banks were not put to the AO, we set aside this issue to the file of AO for
fresh adjudication in accordance with law. In the result ground no.5 is
allowed for statistical purposes.
8. Ground nos. 1 and 2 are on the issue of opportunity and as the same
were not argued by the Ld.Counsel for the assessee, they are dismissed as
such.
9. In the result the appeal by the assessee is allowed in part.
Order pronounced in the Open Court on 24th June, 2015.
Sd/- Sd/-
[A.T VARKEY] [J. SUDHAKAR REDDY]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dt. the 24th June, 2015
· Manga
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ITA No. 6116/Del/2013
AY: 2009-10
Mr.Pardeep Kumar Rai, N.Delhi
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar, ITAT, Delhi Benches
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