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12-06-2019, Saroj Bhadana, Section 24(a), 144(1), 69, Tribunal Delhi

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6 days 20 hours ago #9725 by amit
Section - 24(a), 144(1), 69, 133(6)
Order Date - 12-06-2019
Favouring - Assessees Partly allowed for statistical purpose
Court - Tribunal Delhi
Appellant - Saroj Bhadana
Respondent - DCIT
Justice - G.D.AGRAWAL VP & SUCHITRA KAMBLE JM
Citation - 619Taxpundit141
Appeal No. - ITA No. 2753/Del/2015
Asstt. Year - 2010-11

Order

PER : SUCHITRA KAMBLE

This appeal is filed against the order dated 30.03.2015 passed by the CIT(Appeals)-18, New Delhi for AY 2010-11.

2. Grounds of appeal read as under:

“1. The Ld. CIT(A) had erred, both in law as-well-as in facts of the case, in not appreciating the explanation filed during the course of appeal proceedings and recording findings which are not supported by documents on records.

2. The Ld. CIT(A) had erred both, in law as-well-as in facts of the case, in recording that “The addition of Rs.2,04,38,520/- made by the Assessing Officer in this account is justified and the same is confirmed. However, the amount of Rs.21,00,000/- has to be assessed under the head income from other source and no deduction u/s 24(a) can be allowed on this amount. The remaining rental receipt of Rs.1,45,02,588/- has to be assessed under the head income from House Property.”

3. That the Ld. CIT(A) committed a grave mistake in recording above findings in spite of her findings “The assesse has submitted copies of lease deed of the above mentioned properties. From the perusal of lease deed, the above claim of the assesse seems to be justified.”

4. That the Ld. CIT(A) had erred both in law as-well-as in facts of the case in upholding addition of Rs.1700000/- as deposit of cash in bank account as income from undisclosed sources on frivolous grounds

5. That the Ld. CIT(A) had erred both, in law as-well-as in facts of the case, in upholding addition of Rs.74,19,534/- as unexplained credits in bank account.”

3. During the year under consideration, the assessee filed return showing income of Rs. 1,16,17,700/- on 16.01.2012 which was processed u/s 143(1) of the Income Tax Act, 1961 On selection of case for scrutiny, notice u/s 143(2) of the Act was issued on 26.08.2011 and duly served through speed post. However, no compliance was made and subsequently, notice u/s 142(1) of the Act along with questionnaire and details was also issued on 26.04.2012 and was served on assessee through speed post. Again no compliance was made. Thereafter, a number of show-cause notices were issued to the assessee but no one appeared and furnished the details before the Assessing Officer. The Assessing Officer proceeded u/s 144(1) and made various additions, thereby assessed income at Rs. 3,45,21,410/-.

4. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee.

5. As regards, Ground Nos. 1, 2 & 3 relating to addition of Rs. 2,04,38,520/- by the Assessing Officer thereby holding the same as income from other sources as against income from house property, the Ld. AR submitted that the assessee showed total rental income at Rs. 1,66,02,588/- in its return of income and claimed 30% statutory deduction u/s 24(a) of the Act. Thus, deducting the net income from house property at Rs. 1,15,45,586/-, the Assessing Officer accepted the rental income from ICICI Bank Limited as an income from house property.

The assessment order shows three figures of Rs. 2,04,38,520/-, Rs. 1,45,02,588/- and Rs. 1,66,02,588/- out of which the correct figure is Rs. 1,66,02,588/-. The Ld. AR submitted that there is a mathematical error in the assessment order. The actual rental income including two months advance of Rs. 21 lakhs was Rs. 1,66,02,588/- and not Rs. 2,04,38,520/- as shown by the AO. The error occurred at the end of assessment order by showing a figure of Rs. 1,53,24,360/- separately and Rs 29,72,240/- separately and Rs. 18,52,120/- separately, whereas last two figures of Rs. 29,72,214/- and Rs. 18,52,120/- were already part of Rs. 1,53,24,360/-. In fact property at F-13, Okhla Industrial Area, New Delhi was let out for 8 months to M/s Society for Excellence in Higher Education and 4 months the M/s Bharti Telesoft Ltd./Comviva Technologies Ltd. for an aggregate amount of Rs. 1,53,24,360/-. Therefore, Ld. AR submitted that these figures have to be changed and the correct figures have to be adopted by the Assessing Officer. The above amounts were rental income accepted by the CIT(A) in the order under challenge. For AY 2011-12 and 2012-13 these very properties were let out and were assessed as income from house property.

6. The Ld. DR relied upon the order of the CIT(A) and the assessment order.

7. We have heard both the parties and perused all the relevant material available on record. The CIT(A) though has accepted this income as rental income and directed the Assessing Officer to assess under the head “income from house property”, but confirms the addition, which is without any finding or reasons. During the hearing, the Ld. AR pointed out the mathematical errors in this rental income which has also not been taken into account by the CIT(A). The Revenue for AY 2011-12 and 2012-13 has accepted these properties which were let out and its income was held as income from house property. Therefore, the Revenue cannot change its stand for a particular year, wherein the similar circumstances have occurred. Therefore, it will be appropriate to remand back this issue to the file of the CIT(A) to consider this income as rental income and assessed the same under the head “income from house property” and also to make mathematical corrections as pointed out by the Ld. AR during the hearing after verifying the same. Needless to say that the assessee be given opportunity of hearing by following principle of natural justice We further direct the Assessing Officer to place its remand report as regards to the mathematical error in the figures. Ground nos. 1, 2 & 3 are partly allowed for statistical purpose.

8. As regards Ground No. 4 is concerned relating to addition of Rs. 17,00,000/- being the amount of cash deposits in bank based on AIR Information, the Ld. AR submitted that the details were submitted before the CIT(A). The Ld. AR further submitted that since assessee has carried on no business, no books of accounts were maintained by her. It is the will of the assessee when she wishes to withdraw her legitimate money as long as all taxes have duly been paid by her on her income. The Ld. AR further submitted that the assessee proved beyond doubt that funds were withdrawn from her other account and transferred to her accounts only. Thus, the same cannot be taxed again in her hands.

9. The Ld. DR relied upon the assessment order and the order of the CIT(A).

10. We have heard both the parties and perused all the relevant material available on record. The bank statement of the banks from which the cash was withdrawn has been immediately deposited on the very same day or within a month by the assessee which has been explained with the documentary proof

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