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Sunil Kumar, S/o Sh. Dariyao Singh, Aggarwal, Bhawan, Jharna Ghat, Hira, Chowk, Ch. Dadri, Distt. Bhiwani vs Income Tax Officer, Ward-2, Bhiwani
August, 28th 2018

Subject: During the course of assessment proceedings, the AO noticed that the assessee was maintaining bank account

Referred Sections:
Section 142(1)/143(2)
Section 69A of the Act

 

         IN THE INCOME TAX APPELLATE TRIBUNAL
               DELHI BENCH `G', NEW DELHI
     Before Sh. N. K. Saini, AM and Ms. Suchitra Kamble, JM
            ITA No. 6746/Del/2014 : Asstt. Year : 2011-12
Sunil Kumar,                     Vs Income Tax Officer,
S/o Sh. Dariyao Singh, Aggarwal     Ward-2,
Bhawan, Jharna Ghat, Hira           Bhiwani
Chowk, Ch. Dadri, Distt. Bhiwani
(APPELLANT)                         (RESPONDENT)
PAN No. AWNPK0793P

                Assessee by : Sh. Ved Jain, CA &
                              Sh. Ashish Chadha, CA
                Revenue by : Sh. Kaushlendra Tiwari, Sr. DR

Date of Hearing : 28.05.2018        Date of Pronouncement :      .08.2018

                                  ORDER

Per N. K. Saini, AM:

      This is an appeal by the assessee against the order dated 14.10.2014 of
ld. CIT(A), Rohtak.

2.    Following grounds have been raised in this appeal:
     1. That the Ld. CIT (A) in the facts and circumstances of
     the case has erred in law in conforming the addition
     made by the Assessing Officer of Rs. 1,62,50,000/- merely
     by rejecting the explanation given by the appellant
     considering that the amount received on sales
     transactions of agricultural land are different than the
     amount deposited in Bank.

     2. That the Ld. CIT(A) has committed factual error in not
     considering the fact that the appellant neither deposited
                             2                   ITA No. 6746/Del/2014
                                                     Sunil Kumar


amount of Rs. 1,57,50,000/- in the bank on 17/02/2011 or
therafter nor such amount was credited in his saving
bank account opened on the same date, Deposit of Rs.
1,37,25,000/- after opening various saving bank account
on 17/02/2011 explained & confirmed by such depositors
in their statement before the Ld. Assessing Officer out of
part payment received from the purchaser before
execution and Registration of Sale Deeds for which stamp
papers were even purchased on 15/02/2011 but the same
could not be executed and registered as the amount of
total sales consideration could not be arranged by
16/02/2011.

3. That in the circumstances of the case the LD. CIT(A)
has erred in law in not appreciating the Ld. Income Tax
Officer had failed to prove the explanation of the
appellant as incorrect. In law it is the duty of the Ld.
Income Tax Officer to prove that the explanation of the
assessee is not correct.

4.    The order of the Ld. CIT(A) has been adversely
effected due to misconstruing the facts regarding sale
proceeds received regarding sale deed No 7144 Dt.
22.03.2011 at Rs.7,52,500/- against the exact amount of
Rs. 75,25,000/- and has wrongly considered the total
amount of the conveyance deed executed by Baljeet,
Bhupinder and Sher Singh S/o Sh. Laxmi Narayan at Rs.
55,77,500/- against the exact amount of Rs. 1,23,50,000/-
. By such misconstruing the facts the appeal as been
wrongly dismissed against facts.

5.   That the appellant craves leave to add amend or
recind any ground of appeal at the time or before the
hearing of the appeal.

6. That the appeal is within limitation and no admitted
tax is due to be paid.
                                         3                         ITA No. 6746/Del/2014
                                                                       Sunil Kumar


      The appeal may kindly be heard and the orders of the LD.
      Assessing Officer as well as of the CIT(A) be quashed
      and cancelled.

3.     From the above grounds, it is gathered that the grievance of
the    assessee   relates     to   the       confirmation     of     addition        of
Rs.1,62,50,000/- made by the AO.

4.     Facts of the case in brief are that the assessee is a salaried
person working with Birla Sun Life Insurance Company, Charkhi
Dadri.     The return of income was e-filed by him                 on 22.11.2011
declaring an income of Rs.2,96,270/- which was processed u/s
143(1) of the Income Tax Act, 1961 (hereinafter referred to as the
Act). Later on, the case was selected for scrutiny through CASS.
During the course of assessment proceedings, the AO noticed that
the assessee was maintaining bank account with Oriental Bank of
Commerce, Charikhi Dadri, copy of which was obtained from the
bank which revealed that the assessee made cash deposits of
Rs.1,57,50,000/-     and     Rs.5,00,000/-       on     17.02.2011        in    cash.
However, cash entry of Rs.1,57,50,000/- was reversed on the same
day. The assessee was required to explain the source of cash
deposit and his statement was recorded. The assessee stated that he
did not make deposit of Rs.1,57,50,000/- and that he made the
deposit of Rs.5,00,000/-, the source of which would be explained
lateron. However, he admitted that he had made the deposit of
Rs.17,25,000/- in the account of his wife Smt. Annu, source of
which was stated to be explained by 17.01.2014. Since, the
assessee    denied   to     have   made       deposit    of   Rs.1,57,50,000/-,
                                  4                  ITA No. 6746/Del/2014
                                                         Sunil Kumar


therefore, the AO recorded the statement of banking authorities i.e.
Sh. Ved Parkash, Manager on 08.01.2014. In his statement Sh. Ved
Parkash, Manager stated that on 16.02.2011, the assessee Sh. Sunil
Kumar Fogat came in the bank with Rs.1,57,50,000/- which were
deposited in his account on 17.02.2011. However, on the same day,
the assessee stated that the said amount was not his and that a sum
of Rs.5,00,000/- only belonged to him. He stated that the amount to
be deposited in the following accounts:
     Annu D/o Sh. Baljeet       01222191021544      20,00,000/-
     Singh
     Sunil Kumar Phogat S/o     01222191021544      5,00,000/-
     Sh. Dariyao Singh
     Smt. Sushila W/o Sh.       01222191021568      25,00,000/-
     Baljeet
     Sunny S/o Sh. Bhupender    01222191021551      20,00,000/-
     Singh
     Yashwanti     W/o    Sh.   01222191021575      50,00,000/-
     Bhupender Singh
     Veena Rani W/o Sh. Sunil   01222191021650      17,25,000/-
     Phogat

5.     Accordingly, Rs.1,37,25,000/- was deposited in the aforesaid
accounts and the remaining amount i.e. Rs.20,25,000/-, the assessee
had taken back to his home. When the AO asked the bank manager,
the details of those persons, the bank manager stated that he was
not having the record of them. The AO again asked the assessee to
explain the source of deposit of Rs.1,57,50,000/- and Rs.5,00,000/-.
In response, the assessee vide letter dated 29.01.2014 submitted as
under:
      "Kindly refer to the above said questionnaire dated 05-
      03-2013 in the case of Sh. Sunil Kumar, Aggarwal
                             5                   ITA No. 6746/Del/2014
                                                     Sunil Kumar


Bhawan, Jharna Ghat, Hira Chowk, Charkhi Dadri,
Bhiwani to the assessment year 2011-12. The detailed
reply in reference to above said questionnaire is
submitted as under:-

1. Since no assets were either purchased or sold during
   the last two years in my individual capacity. There
   for the required information may kindly be treated as
   nil.
2. No movable or immovable property was acquired by
   me in my individual capacity nor any of members of
   my family acquired any such property in their
   individual hands in the last two years.
3. I, maintained bank account with the HDFC bank,
   which is salary account and with the Axis Bank,
   where my salary was received previously. Copies of
   Bank accounts are already on the records. The bank
   account with the OBC belong to my HUF which was
   opened after the sale of agriculture land fallen in my
   share after the death of my father 25 years back.
   Copy of bank account with the OBC is also on record.
   My wife also maintained bank account with the OBC
   Charkhi Dadri which has been opened after the sale
   of agriculture land of our HUF. She is also co-
   partner of the HUF. This account was also opened at
   the time of sale of agriculture land belonging to our
   HUF.
4. Neither any land/plot/house was sold during the last
   three years in my individual status. So far as question
   of cash deposit worth Rs. 1,62,50,000/- is concerned,
   necessary reply is furnished separately. Details of
   house hold with drawls alongwith justification
   thereof is submitted as under:-

    a) My family consists of myself, my wife, one son 4
    years old & one daughter I year old as on 31 -03-
    2011.
                                  6                  ITA No. 6746/Del/2014
                                                         Sunil Kumar


         b) 1 am residing in rental house belonging to Sh.
         Vinod Kumar in house No. 212, sector-23, at a
         monthly rent of Rs. 4000/-.
         c) During the year under consideration i.e.
         financial year 2010-11 relevant for assessment year
         2011-12 monthly electricity bill was about Rs.
         1000/- per month & telephone bills was about
         1500/- per month.
         d) My son as on 31-03-2011 was about 4 years old
         and he was admitted in BPS stepping school,
         Bhiwani in Jan. 2011. Nominal fees charges were
         paid upto 31-03-2011. At that time my daughter was
         only I year old.
         e) Neither any social nor any religious function was
         arranged by me during that period, therefore no
         expenses was incurred on any function. The
         information may kindly be treated as nil.

     I have filed my Income-tax Return for the assessment
     year 2011-12 through e-filing acknowledgement No.
     316402920221111 dated 22-11-2011. Photocopy of the
     same, is on the record already furnished. At that time I
     was employed as Assistant Branch Manager in Max New
     York Life insurance Company Ltd., from where I
     received salary worth Rs. 3,32,320/- for which I have
     paid the regular income tax with the department."

6.    It was further submitted as under:
     In this regard, it is submitted that no cash
     deposit   of    Rs.1,62,50,000/- was made in my account
     with the OBC, Charkhi Dadri. The following family
     members of our family sold agriculture land worth Rs.
     1,98,00,000/-on 15-02-2011 against which the full & final
     payment was received in the non banking hours on 16-02-
     2011. My grandfather Sh. Ramji Lal has got three son
     namely Laxminarayan, Daryyav Singh & Sh. Jai Singh.
     The land in question has fallen in the hands of three
     brothers as stated above after the death of my grandfather
     near about 60 years back. The above said land has come to
                             7                  ITA No. 6746/Del/2014
                                                    Sunil Kumar


shares of our family, uncle family & Tau Family (elder
than our father). After the death of my father near about
25 years back and in the hands of Baljeet, Bhupender,
Sher Singh sons Prem and Raj Kumari daughters after the
death of my tau ji 20 years back. The family tree is as
under:-
             Shree Ramji Lal (Grand Father)

1. Laxminarain         2. Dariyao Singh     3. Vijay Singh

Panmeshwari(Widow)      Saroj(Widow)          he is alive.
Baljeet(Son)           Anil Kumar (Son)
Bhupender Singh(Son)   Sunil Kumar (Son)
Sher Singh(Son)        Hemlata (Daughter)
Prem(Daughter)
Raj Kumar (daughter)

The agriculture land situated outside Municipal limit
charkha Dadri measuring 15 Kanal 1 Maria belonging to
Shri Sunil Kumar (Son) and mother Saroj (Widow) sold
above said land for consideration of Rs, 75,25,000/- on
15-02-2011 full -and final payment was received in the
non banking hours on 16-02-2011. The deed of conveyance
was to be executed on 16-02-2011 as the stamp worth
Rs.49500/- were purchased on 15-02-2011. Due to social
problem with the purchaser, he requested that I am making
full and final payment but the sale deed will be executed
after one month. Thus the sale deed was executed on 22-
03-2011 after near about one month of receiving the full
and final payment. It has been clearly mentioned in the
sale deed executed on 22-03-2011. Photocopy of the sale
deed is submitted herewith.






Similarly three sale deed were executed by Sh. Baljeet,
Bhupender Singh, Sher Singh (Sons) and Smt. Prem and
Raj Kumari(daughters). The land in question was also sold
on 15.02.2011 and full and final payment was received in
non banking hours on 16.02.2011. All the other facts are
similar to facts of the case as mentioned above in the
                                  8                      ITA No. 6746/Del/2014
                                                             Sunil Kumar


hands of Shri Sunil Kumar HUF. The total                         sale
consideration in all the four sale deed is as under:

S. No.   Conveyance Deed No. Amount                      Executed by
         with date
1.       7145 dt. 22.03.2011 75,25,000                   Sunil and Smt.
                                                         Saroj
2.       7144 dt. 22.03.2011          75,25,000          Baljeet,
                                                         Bhupender
                                                         Singh      and
                                                         Sher Singh
3.       7260 dt. 22.03.2011          36,50,000          Baljeet,
                                                         Bhupender
                                                         Singh,    Sher
                                                         Singh (Sons)
                                                         Prem & Raj
                                                         Kumari
                                                         (Daughter)
4.       7263 dt. 22.03.2011          11,75,000          Baljeet,
                                                         Bhupender
                                                         Singh      and
                                                         Sher Singh
         Total Amount                 1,98,75,000

Since the amount was received in the non banking hours, Sh.
Kulwant is our real cousin Brother, all of us have got full faith on
him, we discussed the matter in his house at Dadri how to keep this
amount in safe custody. He told that bank manager of OBC is well
known to him. Therefore, it was decided to carry the cash worth Rs,
1,57,50,000/- in the bank on 16-02-2011 at 5:30 PM. It was well
known to us that it is non banking hours and deposit cannot be made
on 16-02-2011. He was requested to keep this amount in the safe
custody of the bank. Shri Raju Ranjan manager called his cashier
Shri Suresh Gupta to keep this amount in the locker and locker key
may be handed over to Shri Kulwant our cousin brother. On 17-02-
2011 when I reached the bank, the bank manager told me that the
amount has been deposited in the name (sunil Kurnar). When I told
him that the amount belonged to the above said family members and
it is not my individual amount, he felt sorry and stated that he will
                                 9                     ITA No. 6746/Del/2014
                                                           Sunil Kumar


reverse the entry. Therefore, the reverse entry worth Rs.
1,57,50,000/- was made. Neither any deposit form or withdrawal
form was signed by me. Since the amount of Rs. 75,25,000/-
belonged to my HUF ½ share and ½ share of my mother Smt. Saroj.
Thus I opened the bank account with the OBC on 17-02-2011 and
deposited Rs. 5,00,000/-. My wife is also member of my HUF a sum
of Rs. 17,25,000/- was deposited in the name of Smt. Veena Rani W/o
Sh. Sunil Kumar. Half of the amount which works out of Rs.
37,62,500/-. ½ share belonged to my mother Smt. Saroj, she has
taken the cash and refused to the deposit the same with the bank.]

Rest of the amount which works out to Rs.1,23,50,000/-
belonging to the three bothers namely Shri Barjeet,
Bhupender and Sher Singh and Smt. Prem and Raj
Kumar(sister). Bank account in the name of Sushila W/o
Sh. Baljeet (25,00,000/-) Annu D/o Sh. Baljeet(20,00,000
Yashwanti W/o Sh. Bhupender (50,00,000/-) total amount
1,15,00,000/- were deposited out of the total funds
available worth Rs.1,23,50,000/-. Both the sister Smt.
Prem and Smt. Raj Kumari are married 1 in well settled
families and they have got sufficient land in their in-laws
side, they refused to carry any amount with them. Anyhow
all the brothers Shri Baljeet, Bhupender and Sher Singh
requested them to carry some amount to their home,
therefore they agreed to carry a sum of Rs. 4,00,000/-each
with them. The remaining amount of Rs. 1,15,00,000/- was
deposited in the hands of family members of Shri Baljeet
and Bhupender as mentioned above. Since the whole
amount was received on sale of agriculture land belonging
to the HUF of Shri sunil Kumar as Sh. Baljeet, Bhupender
and Sher Singh was deposited in the OBC bank on 17-02-
2011 itself. Thus cash deposited worth Rs. 1,57,50,000/-
has been well explained and the photocopy of all the four
conveyanced deed are enclosed for your kind perusal.

Photocopy of Nakal Jamabandi year 2004-05 is enclosed
with this reply. It proves that the whole agriculture land
belonged to HUF of Sh. Sunil Kumar, Shri Baljeet, Shri
Bhupender and Sh. Sher Singh. The said land has fallen to
                                 10                   ITA No. 6746/Del/2014
                                                          Sunil Kumar


     the hands-of above said person after the death of their
     father 20-25 years back. It is humbly requested that in
     view of the above said submission the proceeding initiated
     under section 142(1)/143(2) in the hands of Shri Sunil
     Kumar individual may kindly be dropped. Any other
     information/explanation if required we are ready to
     furnish."

7.    The assessee also furnished copies of the following sale deed:
     "i) Sale of land by the assessee and his mother Smt.
     Saroj for Rs.75,25,000/- on 22-03-2011
     ii) Sale of land by Sh. Baljeet Singh, Bhupinder Singh
     and Sh. Sher Singh for Rs.75,25,000/-
     iii) Sale of land by Sh. Bhupinder Singh, Baljeet Singh
     and Sh. Sher Singh, Prem and Raj Kumari for
     Rs.36,50,000/- on 25-03-2011
     iv) Sale of land by Sh. Baljeet, Bhupinder and Sher
     Singh for Rs.11,75,000/- on 25-03-2011."

8.    The AO after considering the submissions of the assessee
observed that the land in question was sold after the deposit of
Rs.1,57,50,000/- and Rs.5,00,000/- and no evidence had been filed
by the assessee in regard to receipt of sale proceeds of the above
land. The AO also recorded the statements of the persons in whose
accounts, the amounts were deposited and observed as under:
     "i) Annu D/o Sh. Baljeet Singh.
     In the bank account of this lady, a sum of Rs.20 lacs
     were deposited. In her statement, Miss Annu deposed
     that she received a sum of Rs.20 lacs from his father out
     of sale proceeds of his land on 17-02-2011 which was
     deposited by her in the bank. She did not know the
     details as to when sale of land was effected particularly
     when she claimed that she has to do home affairs as his
     father is not mentally sound.

     ii)    Smt. Sushila Devi.
                                   11                      ITA No. 6746/Del/2014
                                                               Sunil Kumar


     In the bank account of this lady, a sum of Rs.25 lacs
     were deposited. In her statement, she stated that she
     made cash deposit of Rs.25 lacs after opening a bank
     account which was received from her husband after sale
     of land. She did not know the details of land holding,
     date of sale of land, as she is an illiterate lady. She only
     knows how to sign.

     iii)   Sh. Sunny S/o Bhupinder Singh.
     He is a student of BA third year and the amount of Rs.20
     lacs was slated to have been deposited by himself on 17-
     02-2011 which was received from his father Sh.
     Bhupinder Singh out of sale proceeds of land.

     iv)    Smt Veena Rani W/o Sunil Kumar(Assessee)
     Statement of Smt. Veena Rani was recorded and she
     stated that a sum of Rs.17,25,000/- was deposited by
     herself after opening the bank account on 17-02-2011
     which was received from her husband Sh. Sunil Kumar
     after sale of his land. She did not know the details of
     sale consideration.

     v)     Smt. Yashwanti W/o Sh. Bhupender Singh
     Her statement was recorded and she stated that she
     made a deposit, of Rs.50 lacs on 17-02-2011 in Oriental
     Bank of Commerce, Charkhi Dadri after opening the
     bank account and the bank account number was not
     remembered to her. The amount was stated to have been
     received from her husband Sh. Bhupinder Singh after the
     sale of his land."

9.    The AO further observed that the persons in whose accounts
the cash had been deposited, stated that amounts were deposited by
themselves whereas banking authorities categorically confirmed
that Sh. Sunil Kumar-assessee himself made cash deposit on
17.02.2011    and   lateron   instructed   to   transfer    the     sum      of
Rs.1,57,50,000/- in the accounts of above persons after opening the
                                   12                  ITA No. 6746/Del/2014
                                                           Sunil Kumar


bank accounts on the same day. He, therefore, was of the view that
the deposits of Rs.1,57,50,000/- and Rs.5,00,000/- totaling to
Rs.1,62,50,000/- remained unexplained and to be treated as income
of the assessee from undisclosed sources under the provisions of
Section 69A of the Act for the following reasons:
      "(i) The cash deposit in the bank account was made on
      17-02-2011 whereas the sale, of land is after cash
      deposits and the assessee has failed to furnish any
      evidence in regard to receipt of sale proceed prior to
      cash deposits.
      ii) On 08-01-2014 when the statement of the assessee
      was recorded. He could not intimate the source of cash
      deposits in his account and in the account of his wife. At
      the first instance he denied to have made deposit of
      Rs.1,57,50,000/- and later on concocted story was made
      that the amounts were deposited in the account of
      different persons out of sale proceeds of land. Had this
      was a true story, the assessee could have explained this
      position on 08-01-2014 itself when his statement was
      recorded. On 08-01-2014 he could not explain the
      source of deposit except that it will be explained
      lateron."


10.    Being aggrieved the assessee carried the matter to the ld.
CIT(A) and submitted that the AO on the basis of the statement of
Sh. Ved Parkash, Manager of the bank held that the deposition
made by the assessee in his statement was not true. It was further
submitted that the AO recorded the statements of the persons in
whose accounts, the cash was deposited and the said persons stated
that money was deposited in cash after selling the agricultural land
coming from their big grandfather to grandfather to their father and
then in the hands of all the sellers. It was further stated that the
                                       13                    ITA No. 6746/Del/2014
                                                                 Sunil Kumar


conveyance deed duly executed by all such persons were submitted
to the AO. The total sale consideration in all the sale deed was as
under:

      S. No.     Conveyance Deed No. Amount                  Executed by
                 with date
      1.         7145 dt. 22.03.2011 75,25,000               Sunil and Smt.
                                                             Saroj
      2.         7144 dt. 22.03.2011        75,25,000        Baljeet,
                                                             Bhupender
                                                             Singh      and
                                                             Sher Singh
      3.         7260 dt. 25.03.2011        36,50,000        Baljeet,
                                                             Bhupender
                                                             Singh,    Sher
                                                             Singh (Sons)
                                                             Prem & Raj
                                                             Kumari
                                                             (Daughters)
      4.         7263 dt. 25.03.2011        11,75,000        Baljeet,
                                                             Bhupender
                                                             Singh      and
                                                             Sher Singh
      Total Sale Consideration              1,98,75,000

11.     It was further submitted that the AO recorded the statement of
Sh. Kulwant Singh S/o Sh. Vijay Singh on 27.01.2014 who infact
brought the cash worth Rs.1,62,50,000/- in the late hours on
16.02.2014. The assessee also furnished the family pedigree as
under:
      1 . Laxmi Narain     2. Sh. Daryao Singh     3.Sh.VijaySingh (Alive)
      (Deceased)           (Deceased)
      a) Baljit Son        Smt. Saroj Devi Widow   Kulwant Singh (Son)
      b) Bhupender Son     Sh. Anil Kumar Son
                                       14            ITA No. 6746/Del/2014
                                                         Sunil Kumar


      c) Sher Singh Son     Sh. Sunil Kumar Son
      d) Prem Kumari         Hem Lata Daughter
      Daughter
      e) Raj Kumari Daughter


12.     It was submitted that the AO disbelieved the real facts
produced before him and held that a sum of Rs.1,57,50,000/- and
Rs.5,00,000/- totaling to Rs.1,62,50,000/- remained unexplained
and treated the same as income of the assessee from undisclosed
sources. It was contended that the AO disbelieved the actual
happening of the events which generally occurs during the course of
sale of immovable properties. It was submitted that the amount was
received on sale of agricultural land situated outside municipal
limits of Charkhi Dadri, the deed of conveyance was to be executed
on 16.02.2011 and all the stamp papers were purchased on
15.02.2011 which was proved by the conveyance deed itself which
was to be executed on 16.02.2011 but due to certain problems with
the purchasers who requested that the sale deed would be executed
lateron, but full and final payments was made to the sellers and the
deed was executed on 22.03.2011 nearly about 34 days of making
the full and final payment. It was contended that the AO never
required any evidence in support of his disbelieving the assessee's
statement and that inspite of producing all the conveyance deeds
during the course of assessment proceedings, it was brought to the
kind notice of the A.O. by the assessee that the amount did not
belong to him and he had never deposited the same with O.B.C.
Charkhi Dadri on 17.02.2011. It was submitted that the AO himself
                                 15                  ITA No. 6746/Del/2014
                                                         Sunil Kumar


had written a letter to the manager OBC Charkhi Dadri u/s 133(6)
of the Act and the bank manager furnished the certificate as under:
                 "TO WHOM IT MAY CONCERN
      IT IS CERTIFIED THAT SH. SUNIL KUMAR PHOGAT
      S/O DARYAO SINGH R/O HEERA CHOWK NEAR
      AGGARWAL BHAWAN, CHARKHI DADRI DISIT
      BHIWANI IS MAINTAINING A SAVING ACCOUNT NO
      01222191021520 WITH US AND AS ON 17.02.2011, A
      SUM OF RS. 15750000/- HAS BEEN WRONGLY
      CREDITED AS CASH DEPOSITED IN ACCOUNT AND
      SAME CASH ENTRY HAS ALSO BEEN REVERSED FROM
      THE ACCOUNT AS CASH PAYMENT FOR SAME
      AMOUNT ON SAME DAY.

          ORIGINAL CERTIFIED COPY IS ENCLOSED."

13.   It was contended that the cash deposit of Rs.1,62,50,000/- was
on account of sale of agricultural land of HUF coming from the
forefathers of the family. The assessee also furnished photocopy of
intkal varasat through which the land had fallen in the hands of Sh.
Sunil Kumar, Sh. Anil Kumar S/o Dariyao Singh, Hemlata D/o Sh.
Daryao Singh and Smt. Saroj Bala W/o Sh. Daryao Singh alongwith
nakal jamabandi and khasra girdawri. It was also stated that
agricultural land of HUF coming from forefather had fallen in the
hands of Sh. Baljeet Singh, Sher Singh, Bhupender S/o Laxmi
Narain and Smt. Prem and Raj Kumari D/o Sh. Laxmi Narain.
Photocpy of intkal varasat vide report No. 396 dated 12.08.1989
was also furnished. It was contended that the banking authority
himself admitted in writing vide certificate dated 27.12.2013 that
the cash entry was wrongly credited in the account of Sh. Sunil
Kumar (assessee), but the same was reversed from his account as
                                   16                    ITA No. 6746/Del/2014
                                                             Sunil Kumar


cash payment for the same amount on the same day and that the
FDR worth Rs.1,37,25,000/- in different names were made as
admitted by the bank manager during the course of his statement
recorded on 08.01.2014. It was also contended that in his statement
, the assessee duly affirmed that the amount worth Rs.1,62,50,000/-
was not deposited by him in his account but the banking persons
have deposited the same in his account under some mistaken belief.
It was stated that he had deposited a sum of Rs.5,00,000/- in his
account in cash and the evidence of the same would be produced
within a week's time. It was contended that the assessee stated the
real   facts   before   the   AO during   the   course   of   assessment
proceedings and that in his statement it was stated that amount did
not belong to him but belonged to several persons of his family. It
was submitted that he would explain the source of deposit and the
complete details of the persons to whom it related would be
explained within weeks time. It was also submitted that thereafter
the AO required the assessee vide order sheet entry dated
27.01.2014 to produce all the six persons by whom the money was
received on account of sale of agricultural land belonging to HUF
and all the persons were produced on 29.01.2014. The AO recorded
their statements in which all of them stated that the money was
received on account of sale of agricultural land coming from their
forefathers. It was also stated that neither any cash voucher worth
Rs.1,57,50,000/- nor any withdrawal form for this amount was
filled up by the assessee or signed by him. So, it was a clear cut
banking mistake which had occurred on 17.02.2011 and rectified on
                                   17                        ITA No. 6746/Del/2014
                                                                 Sunil Kumar


the same day by the banking authorities itself and that while
forwarding the AIR information, the banking authorities had
forwarded the same to the Income Tax department and it had
become the selected case for scrutiny under CASS. The assessee
also furnished the bank certificate in original dated 01.08.2014. It
was further submitted that the assessee in his individual capacity
was earning salary of Rs.3,00,000/- per annum, so it was not
possible for him to deposit such a huge amount in his individual
capacity and that the AO while framing the assessment merely
relied upon some portion of the statement recorded by him of the
assessee and bank manager Sh. Ved Parkash but ignored the second
part of their statements as well as the certificate issued by the
banking authorities in this regard. It was contended that the sale
considerations in the cases of immovable properties are generally
received in cash prior to the date of execution of the conveyance
deeds to safeguard the interest of the seller as well as the
purchaser.   It   was   also   contended   that   it   was     categorically
mentioned on the first page of the conveyance deed that the full
amount had already been received by the sellers              at their house
before the date of execution of sale deed and that the payment had
been received in full and nothing remained receivable by the seller
and that the conveyance deed would be executed as and when it
suited the sellers as well as the purchaser. The reliance was placed
on the judgment of the Hon'ble Supreme Court in the case of CIT
Vs Chinnathamban K (2007) 292 ITR 682.
                                 18                ITA No. 6746/Del/2014
                                                       Sunil Kumar


    It was submitted that in this case, the banking authority
wrongly deposited a sum of Rs.1,62,50,000/- in the name of the
assessee on 17.02.2011 and reversed the entry suo motu without any
direction of the assessee. On the same day FDR's were purchased in
the name of six persons. The assessee also furnished the following
documents before the ld. CIT(A):
    "i) ITOs letter dated 09-12-2013.
    ii) Bank Manager letter in response to the above letter
    dated 27-12-2013.

    iii) ITOs letter dated 08-01-2014.

    iv) Bank Manager letter in response to the above letter
    dated 29-01-2014.

    v) Photocopy of statement of Sh. Sunil Kumar assessee
    dated 08-01-2014 recorded by the Ld. AO.

    vi) Photocopy of statement of Sh. Ved Parkash Branch
    Manager dated 08-01-2014 recorded by the AO.

    vii) Photocopy of statement of Smt. Yashwanti W/o Sh.
    Bhupender Singh, Sunny S/o Sh. Bhupender Singh, Smt.
    Veena Rani W/o Sh. Sunil Kumar, Sushila Devi W/o Sh.
    Baljeet Singh, Miss Anu D/o Sh. Baljeet Singh.

    viii) Photocopy of all the four conveyance deed dated
    22-03-2011.

    ix) Photocopy of Intkal Varasat of Late Sh. Daryao
    Singh dated 29-04-1986 and Late Sh. Laxmi Narain
    dated 09-09-1989.

    x) Photocopy of cash deposit voucher dated 17-02-2011.
                                 19                   ITA No. 6746/Del/2014
                                                          Sunil Kumar


      xi) Photocopy of statement of Sh. Kulwant Singh dated
      27-01-2014 recorded by the AO who       carried    on
      the cash worth Rs. 1,57,50,000/- to the bank
      on
      16-02-2011 after the banking hours.

      xii) Photocopy of the letter from the Manager OBC
      Charkhi Dadri dated 01-08-2014 in which the banking
      authority has categorically admitted that neither any
      credit voucher nor any debit voucher for above both
      entries was filled up & signed by the depositor.
      xiii) English Translation of statement of Sh. Sunil
      Kumar, Sh. Ved Parkash, Sh. Kulwant Singh, Miss. Anu,
      Smt. Sushila Devi, Smt. Yashwanti, Sh. Sunny & Smt.
      Veena Rani."

14.    The ld. CIT(A) after considering the submissions of the
assessee observed that it was incomprehensible as to how and why
the Oriental Bank of Commerce, Charkhi Dadri branch accepted a
sum of Rs.1,57,50,000/- in cash on 17.02.2011 deposited the same
in the account of Sh. Sunil Kumar and reversed the said entry on
the verbal request of the customer, Sh. Sunil Kumar. The Branch
Manager, vide a letter dated 29.01.2014 has stated that the
photocopy of the withdrawal form was not available because it was
a verbal request and that as per the said verbal request of Sh. Sunil
Kumar a sum of Rs.1,37,25,000/- was credited in the names of Sh.
Sunny s/o Sh. Bhupinder Singh (Rs 20,00,000), Smt. Yashwanti w/o
Sh. Bhupinder Singh (Rs 50,00,000), Sh. Sunil Kumar Phogat s/o
Sh. Daryao Singh (Rs 5,00,000), Smt. Veena Rani w/o Sh. Sunil
Phogat (Rs 17,25,000), Smt. Susheela w/o Baljeet Singh (Rs
25,00,000) and Ms Annu d/o Baljeet Singh (Rs 20,00,000). The
Bank also stated that they had no record of the balance amount of
                                    20                    ITA No. 6746/Del/2014
                                                              Sunil Kumar







Rs 20,25,000/-. According to the ld. CIT(A), the entire transactions
appeared to be a method to hoodwink the tax department with the
help of banking instruments and that no bank would accept cash
without a deposit slip nor make transactions entries on verbal
requests. He also observed that the statements of Sh. Sunil Kumar
had a query which made it clear that he took the cash of
Rs.1,57,50,000/- to the bank on 16.02.2011 and the bank authorities
asked to deposit the same the next day, Sh. Sunil Kumar opened an
account on 17.02.2011 and this entire amount was deposited in his
account, within a span of a few hours, he got entry reversed by
stating   that   the amount    did not   belong   to   him alone          and
interestingly, Smt. Veena Rani, Sh. Sunny, Smt. Yashwanti, Smt.
Susheela Devi, Miss Annu and the assessee all opened their
accounts in this bank on 17.02.2011.
    The ld. CIT(A) confirmed the addition of Rs.1,62,50,000/- by
observing as under:
    "The appellant claimed that this was out of sale
    proceeds of agricultural land held by the HUF. What is
    strange is that the said sale deed was executed on
    22.03.2011, a month after the said amount was
    deposited according to the appellant, the total sale
    consideration received was Rs.1,98,75,000/-. The
    original constituent of the HUF owing the said land
    were 3 brothers, Laxmi Narayan (deceased), Daryao
    Singh (deceased) and Shri Vijay Singh. Again, the
    apportionment of the sale proceeds should have been
    equal amongst their successors. However, it is seen that
    out of the four sale deeds executed, the said property
    was sold in the following manner:-

   S. No. Conveyance           Amount       Executed by
          deed No. with date
                                     21                          ITA No. 6746/Del/2014
                                                                     Sunil Kumar


1.     7145 dt. 22.03.11       7525000/-             Sunil & Smt. Saroj
2.     7144 dt. 22.03.11       752500/-              Baljeet,   Bhupender Singh
                                                     & Sher Singh
3.     7260 dt. 25.03.11       3650000/-             Baljeet,   Bhupender Singh
                                                     & Sher Singh (sons)
4.     7263 dt. 25.03.11       1175000/-             Baljeet,   Bhupender Singh
                                                     & Sher Singh
Total Sale consideration       19875000/-

 The total amount on the conveyance deed executed by Baljeet,
 Bhupender & Sher Singh Ss/o Laxmi Narayan comes to Rs
 55,77,500/- and that executed by Sunil and his mother Smt. Saroj
 was Rs 75,25,000/-.
 The family tree has been stated to be in the following order:

                      Sh. Ramji Lal s/o Sh. Kishan Lal
 1. Laxmi Narain             2. Sh. Daryao Singh     3. Sh. Vijay Singh
 (deceased)                  (deceased)              (alive)
 a) Baljit (son)             Smt. Saroj Devi (widow) Kulwant Singh (son)
 b) Bhupender (son)          Sh. Anil Kumar (son)
 c) Sher Singh (son)         Sh. Sunil Kumar (son)
 d) Prem Kumari           Hem Lata (daughter)
 (daughter)
 e) Raj Kumari (daughter)

 What is again abnormal is the fact, that it was Shri Kulwant Singh
 s/o Sh. Vijay Singh, a cousin of the appellant who received the
 cash. The apportionment of cash shows that the total deposit in the
 accounts of the wife and daughter of Shri Baljeet Singh was Rs
 45,00,000/-(Rs 25 lakhs and Rs 20 lakhs), for the wife and son of
 Shri Bhupinder Singh it was Rs 70,00,000 (Rs 20 lakhs plus Rs 50
 lakhs) and for the appellant and his wife, it was Rs 22.25 lakhs (Rs
 5 lakhs plus Rs 17.25 lakhs). Out of the balance amount,
 according to Shri Kulwant Singh son of Shri Vijay Singh and a
 cousin of the assessee Rs 20,25,000/- in cash went to Sh. Sher
 Singh, another son of Shri Laxmi Narain and brother of Sh.
 Bhupinder and Sh. Baljeet Singh. It is strange that no money went
 to Shri Anil Kumar, brother of the appellant nor to the appellant's,
                                    22                   ITA No. 6746/Del/2014
                                                             Sunil Kumar


      surviving uncle, Shri Vijay Singh and the latter's son, Shri
      Kulwant Singh.

      3. This does not appear to be truly accounting for what
      were the proceeds of the sale of the HUF land. Hence,
      the property sold by the HUF in actual fact, registered
      conveyance deed, not withstanding, has nothing to do
      with the amount deposited in the appellant's bank
      account. All the transactions in respect of HUF land are
      distinct and separate from the sources of deposits of Rs
      1,57,50,000/- and Rs 5 lakhs made in the appellant's
      bank account. Hence, the explanation offered by the
      assessee has no substance or relevance to the source of
      deposits. I, therefore, confirm the addition of Rs
      1,62,50,000/-."

15.    Now the assessee is in appeal. The ld. Counsel for the
assessee reiterated the submissions made before the authorities
below and further submitted that the amount was belonging to six
persons who were having the bank accounts and names of all the
persons were appearing in the conveyance deed. It was further
submitted that the property sold belonged to the HUF but the
amount was wrongly deposited by the bank authorities in the
account of the assessee and when they came to know the mistake,
the said entry was reversed on the same day and deposited in the
name of the persons to whom the amount belonged. A reference was
made to page no. 51 of the assessee's paper book which is a
certificate given by the bank manager. It was further submitted that
the property was sold on 15.02.2011 which is evident from the date
mentioned in the stamp papers used in conveyance deed. A
reference was made to page no. 56 of the assessee's paper book. It
was stated that the amount was received by the coparceners of HUF
                                  23                   ITA No. 6746/Del/2014
                                                           Sunil Kumar


on 16.02.2011 and this fact has been mentioned in the sale deed
also wherein it is written that the amount was received by the
sellers at home and not at the time of registration of the conveyance
deed which took place on 22.03.2011, therefore, the allegation of
the AO that the amount in question was not relating to the sale deed
was not maintainable, particularly when, this facts was clearly
mentioned in the conveyance deed that the stamp papers were
purchased on 15.02.2011 and the amount was received at home and
nothing was to be paid at the time of registration. In support of the
above contention, a reference was made to page nos. 56 & 57 of the
assessee's paper book which is the copy of the conveyance deed.
The ld. Counsel for the assessee also referred to the statement of
Sh. Kulwant Singh (copy of which is placed at page nos. 71 to 74 of
the assessee's paper book), and        stated that he went to the OBC
Bank on 16.02.2011 for depositing the amount which was received
by him in late evening and the said amount was relating to Sh.
Bhupender Singh, Sh. Baljeet Singh, Sh. Shre Singh, Smt. Prem and
Smt. Raj Kumari who sold their 7.5 acres of land and Sh. Kulwant
Singh is their cousin i.e. son of their uncle. It was contended that
the amount in question was wrongly added in the hands of the
assessee, even when facts were very much clear from the
conveyance deed, statements of the bank manager as wll as Sh.
Kulwant Singh. Therefore, the addition made by the AO and
sustained by the ld. CIT(A) was not justified.

16.   In his rival submissions, the ld. Sr. DR strongly supported the
orders of the authorities below and further submitted that the
                                 24                   ITA No. 6746/Del/2014
                                                          Sunil Kumar


amount was deposited in the bank account of the assessee, so , onus
was on him to prove the sources of the said deposit which could not
be explained. It was also stated that the amount was not co-related
with the amount mentioned in the sale deed, therefore, the AO was
justified in making the impugned addition in the hands of the
assessee and the ld. CIT(A) rightly confirmed the same.
17.   We have considered the submissions of both the parties and
perused the material available on record. In the present case, it is
noticed that the AO made the addition by presuming that the cash
deposited in the O.B.C, Charkhi Dadri, on 17.02.2011 belonged to
the assessee. On the contrary, the explanation of the assessee was
that the said cash was brought to the bank by Shri Kulwant Singh
and it belonged to six different persons who sold their ancestral
agricultural land. In the present case, the AO recorded the
statement of Shri Kulwant Singh (copy of which is placed at page
no. 71 to 74 of the assessee's paper book), in the said statement
recorded on 27.01.2014, Shri Kulwant Singh categorically stated
that he want to the Oriental Bank of Commerce, Charkhi Dadri
branch after the banking hours on 16.02.2018 to deposit a sum of
Rs. 1,62,50,000/- which belonged to Shri Bhupender Singh, Shri
Baljeet Singh, Sher Singh, Shri Sunil Kumar, (the assessed) and
Smt. Prem who sold 7.5 acres of land and gave the money to him
for depositing the same. He also stated that he is a son of the uncle
of the assessee. He also stated that he went to bank on 17.02.2011
and requested the manager to open the accounts of Smt. Sushila
wife of Shri Baljeet Singh, Ms. Annu daughter of Shri Baljeet
                                 25                 ITA No. 6746/Del/2014
                                                        Sunil Kumar


Singh, Sh. Sunny Son of Bhupinder Singh, Smt. Yashwanti, wife of
Sh. Bhupender Singh, Sunil Kumar, son of Shri Daryao Singh,
Which is evident from page no. 72 and 73 of the assessee's paper
book.    Shri Kulwant Singh also stated that a sum of Rs.
1,42,25,000/- was deposited in the account of the following persons
:-
1. Sh. Sunil Kumar S/o. Sh. Daryao Singh        Rs. 5,00,000/-
2. Smt. Yashwanti W/o. Sh. Bhupender Singh    Rs. 50,00,000/-
3. Sh. Sunny S/o. Sh. Sh. Bhupender Singh     Rs. 20,00,000/-
4. Smt. Veena Rani W/o. Sh. Sunil Kumar        Rs. 17,25,000/-
5. Annu D/o. Sh. Baljeet Singh                 Rs. 20,00,000/-
6. Smt. Sushila W/o. Sh. Baljeet Singh          Rs. 25,00,000/-
                                                  1,37,25,000/-
The remaining amount of Rs. 20,25,000/- was given to Shri Sher
Singh, son of Shri Laxmi Narain, Sub-inspector in the S.P.Office
and that the said amount was given to him as was told by Shri
Bhupender Singh. Therefore, it is crystal clear that the assessee
Shri Sunil Kumer did not bring the amount in the bank as alleged
by the A.O., moreover no bank deposit slip was brought on record
to substantiate that the amount in question was deposited by the
assessee in the bank. In the instant case, the AO also recorded the
statements of all the aforesaid persons (copies of which are placed
at page no. 79 to 89 of the assessee's compilation), in their
statements, all the persons confirmed that the above said amount
belonged them which was received on the sale of ancestral
property. It is also noticed from the Conveyance Deeds (copies of
                                  26                  ITA No. 6746/Del/2014
                                                          Sunil Kumar


which are placed at page no. 56 to 66 of the assessee's paper book)
that the stamp papers were purchased on 15.02.2011 and the amount
was given to the sellers at their residences. It has also been
mentioned in those conveyance deed registered on 21.03.2011 that
the possession of the land was given prior to the registration done
on 21.03.2011 on the said date, nothing was due because the
amount was already paid so it can be said that the amount in
question was the receipt from the sale proceeds of the agriculture
land. In the present case, the AO also recorded the statement of the
bank managers (copy of which is placed at page no. 52 to 54 of the
assessee's paper book), in the said statement, Bank Manger Sh. Ved
Prakash stated that he went to income tax office with record on
31.12.2013 in response to the summon dated 23.12.2013 and that
the amount was deposited in the account of Shri Sunil Kumar on
17.02.2011 but later on, in the evening the entry was reversed and
the amount was deposited in the following accounts :-


"(i) Annu, D/o. Sh. Baljeet Singh 012221911021044    20,00,000/-
(ii) Sh. Sunil Kumar Phogat    01222191021520        5,00,000/-
   S/o. Sh. Dari yao Singh
(iii) Smt. Sushila             01222191021568       25,00,000/-
    w/o. Sh. Baljeet
(iv) Sunn y                     01222191021551      20,00,000/-
   S/o. Bhupender Singh
(v) Yashwanti                  01222191021575       50,00,000/-
   W/o. Sh. Bhupender Singh
(vi) Veena Rani                01222191021650       17,25,000/-
   W/o. Sh. Sunil Phogat"
                                  27                   ITA No. 6746/Del/2014
                                                           Sunil Kumar




18.   In the instant case,      nothing is brought on record to
substantiate that the amount was deposited by Shri Sunil Kumar,
(the assessee) and it was withdrawn by him from his account
because no deposit slip filled by the assessee. Sh. Sunil Kumar or
withdrawal form was produced before the AO rather it was stated
that no record was available with him which clearly proves that the
amount was deposited by Sh. Kulwant Singh and not by the
assessee and when the bank realised its mistake the entry was
reversed and the amount was the deposited in the account of the six
persons. In the present case, nothing is brought on record that the
sale proceeds from the family land claimed to be received on
15.02.2011 or 16.02.2011 was utilized elsewhere and not deposited
in the bank accounts of aforesaid six persons. Therefore, by
considering the totality of the facts, we are of the view that the
impugned amount was wrongly added in the hands of the assessee,
particularly when the same amount was credited in the names of 6
persons. The said amount received from the sale proceeds of the
land can not be stated to be related to the assessee as well as the
other six persons at a same time. If it was to be presumed that said
amount belonged to the assessee then there should have been
another amount which was deposited in the bank account of the six
persons. However, nothing is brought on record to substantiate that
the amount deposited in the bank account of the assessee by
mistake, was different from the amount deposited in the bank
account of the six persons out of the sale proceeds of the
agricultural land. We, therefore, considering the totality of the facts
                                         28                           ITA No. 6746/Del/2014
                                                                          Sunil Kumar


are of the view that the impugned addition made by the AO and
sustained by the Ld. CIT(A) was not justified. In that view of the
matter the addition made by the AO and sustained by the Ld.
CIT(A) is deleted.
19.     In the result, the appeal of the assessee is allowed.
 (Order Pronounced in the Court on 27/08/2018)


             Sd/-                                                 Sd/-
 (Suchitra Kamble)                                  (N. K. Saini)
JUDICIAL MEMBER                                ACCOUNTANT MEMBER
Dated: 27/08/2018
*Subodh/Binita*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
                                                        ASSISTANT REGISTRAR



                                                   Date         Initial
1.        Draft dictated on                    21.08.2018                  PS
2.        Draft placed before author           21.08.2018                  PS
3.        Draft proposed & placed before the                               JM/AM
          second member
4.        Draft discussed/approved by Second                               JM/AM
          Member.
5.        Approved Draft comes to the Sr.PS/PS                             PS/PS
6.        Kept for pronouncement on                                        PS
7.        File sent to the Bench Clerk                                     PS
8.        Date on which file goes to the AR
9.        Date on which file goes to the Head
          Clerk.
10.       Date of dispatch of Order.
11.       Date of Uploading

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