Chapter VIA , 80C

LIC Premium and Tution Fees paid through Banking Channels have to be allowed ITAT Delhi

Disallowance of the deductions under section 80C (Chapter VI-A) of Income  Tax Act’1961, on the basis of no documentary evidence, if paid through Banking Channels should be allowed – Income Tax Appellate Tribunal (ITAT) Delhi.

 

Devender Kumar vs ITO, New Delhi

Case no. I.T.A. No. 3239/DEL/2014

Assessment Year: 2007-2008

Date of Order: 30-08-2016

 

Case details:

 

IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH “SMC-3”, NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER

 

I.T.A. No. 3239/DEL/2014
(AY. 2007-08)

SH. DEVENDER KUMAR,       vs       ITO, WARD 26(3), NEW DELHI
(APPELLANT)                                      (RESPONDENT)

 

Assessee by: Sh. Ved Jain, Adv. & Sh. Ashish Goel, CA
Department by : None
Date of Hearing : 17-08-2016
Date of Order : 30-08-2016

ORDER
PER H.S. SIDHU, JM

Assessee has filed the Appeal against the Order dated 14.2.2014 passed by the Ld. Commissioner of Income Tax (Appeals)—XVIII, New Delhi pertaining to assessment year 2007-08 

2. The grounds raised by the assessee read as under:-

1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals)[(CIT(A)] is bad both in the eye of law and on facts.

2(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of the AO in making addition of Rs.17, 10,000/- on account of cash deposits in bank. 
(ii) That the above-said has been confirmed rejecting the explanation and
evidences brought on record by the assessee.

(iii) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the said addition despite the fact that an amount of RS.1,95,000 was withdrawn and re-deposited in the same account, as such the net cash deposit was Rs.15,15,200/- and not Rs.17,10,200/-.

3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition of Rs.50,000 made by the AO on account of trading results, without there being any basis for the same.

4. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of the AO in disallowing business expenses to the extent of 50% without there being any basis for the same.

5. On the facts and circumstances of the case, the learned GIT(A) has erred both on facts and in law in confirming the action of the AO in disallowing an amount of Rs.49,971/- claimed by assessee under Chapter VIA of the Act.

6. That the appellant craves leave to add, amend or alter any of the grounds of appeal.

3. The brief facts of the case are that assessee filed return of income declaring taxable income at Rs. 1,01,960/- on 5.11.2007. The same was processed u/s. 143(1). The case was selected for scrutiny. Consequently, notices u/s. 143(2) dated 21.7.2008, 27.7.2009 12.10.2009 were issued,
but none appeared on behalf of the assessee. However, notice u/.s. 142(1) alongwith Questionaire and AIR information was served upon the assessee for hearing on 23.11.2009, but on 19.11.2009 the Assessee’s Representative attended and noted down the details of AIR information on 19.11.2009. But on the scheduled date of hearing none appeared on behalf of the assessee nor any application was received by the AO, hence, the AO completed the assessment exparte to the best of his judgment u/s. 144 on the basis of material available on record and assessed the income at Rs. 19,41,920/- and made the various additions vide his order dated 18.12.2009 passed u/s. 144 of the I.T. Act, 1961.

4. Against the assessment order dated 18.12.2009, assessee appealed before the Ld. CIT(A), who vide impugned order dated 14.12.2014 has dismissed the appeal of the assessee. 

5. Aggrieved with the aforesaid order of the Ld. CIT(A), assessee is in appeal before the Tribunal.

6. Ld. Counsel of the assessee in support of his contention has filed the Written Synopsis. For the sake of convenience, we are reproducing the same as under:

1. This is an appeal filed by the assessee against the order dated 14.02.2014 passed by the Ld. CIT(A), wherein the additions made by the AO have been sustained by the Ld. CIT(A). 

2. Assessee filed its return of income for the year under consideration on 05.11.2007, declaring an income of Rs.1,01,960/-. Thereafter, the case of the assessee was selected for scrutiny and following additions were made by the AO:

(i) Adhoc addition on account of trading results Rs.50,0001-
(ii) 50% adhoc addition made on account of Rs.29,793/-
disallowance of expenses
(iii) Disallowance of deduction under chapter VI – A – Rs.49,971/-
(iv) Addition on account of unexplained cash deposit Rs.17,10,200/-

3. Ground No.2:
3.1 This ground deals with the action of the Ld. CIT(A) in confirming the addition of Rs.17,10,200/- made by the AO on account of unexplained cash deposits. 

3.2 During the course of assessment, it was observed by the AO that as per the AIR information, the assessee had made cash deposit of Rs.17,10,200/- in its bank account. The AO has considered these deposits as unexplained deposits alleging that no explanation in respect of these deposits was offered by the assessee.
3.3 During the course of appellate proceedings the assessee filed various documentary evidences in support of its contention along with an application under Rule 46A. The details filed by the assessee along with Rule 46A application were as follows:

(i) Balance sheet and Profit and Loss account of assessee (PB 5-6)
(ii) Copy of cash book for the period 1.4.2006 to 31.3.2007 (PB 7-18)
(iii) Copy of bank book of Oriental Bank of Commerce for the period 1.4.2006 to 31.3.2007 (PB 19-20)

3.4 The AO objected to the admission of these evidences vide remand report dated 05.03.2012 (PB 21 – 22). The said evidences were, however, admitted by the Ld. CIT(A), holding that these evidences were very essential for the adjudication of the matter.
3.5 At the very outset, it was submitted by the assessee that the net cash deposited by the assessee in its bank account was for Rs.15,15,2001-, as the amount of Rs.1,95,000/- was withdrawn and then re-deposited by the assessee in its bank account.
3.6 It was further submitted by the assessee that the cash deposited by “‘the assessee in the bank account was received as loan from various friends and relatives, in order to discharge the liability of bank loan existing on the assessee. In this regard, the assessee has submitted complete details regarding the persons from whom the said loans have been received in cash.
3.7 The Ld. CIT(A), however, has completely disregarded these evidences and submissions of the assessee and has held that the details filed by the assessee are fabricated and are suspicious. The Ld. CIT(A) has given his findings in this regard at Page 9 -12 in Para 10 -10.2 of the order.
3.8 It is submitted that the assessee has duly submitted complete details of the persons from whom the loans have been obtained, and the addition made by the AO has been sustained by the Ld. CIT(A) without pointing out any defect or discrepancy in the evidences filed by the assessee. The Ld. CIT(A), only on the basis of surmises and conjectures has sustained the addition made by the AO. Therefore, the addition made by the AO and sustained by the Ld. CIT(A) deserves to be deleted.
3.9 Without prejudice to the above, it is submitted that no addition can be made more than the peak credit appearing in the books of accounts of the assessee. Reliance in this regard is placed on the decision of Hon’ble Rajkot Bench of the ITAT in the case of ITO vs. Mahesh Kumar Jayantilal Vora, wherein it was specifically held as under:
“We have duly considered the rival contentions and the material on record. The only dispute for our resolution is whether peak credit method applied in the facts of case is rightly applied or not. It is well established that no income can be taxed twice. It is also not in dispute that these deposits include refunds of the subscriptions made from the deposits.Thus, by aggregating all deposits, they tend to get taxed twice which is against the principles of taxation the decisions cited by the Id. counsel lend support to the case of the assessee and hence we decline to
interfere with the decision of the CIT(A).”
3.10 The Hon’ble ITAT has also considered the following judgments while deciding the case in favour of the assessee:
• G. Venkatareddy & Co. vs. Dy. CIT (2001) 73 TTJ (Hyd.) 401
• S.R. Enterprise vs. ITO (2002) 77 TT J (Ahd.) 69
• Addl. CIT vs. Chetan Dass (1975) 99 ITR 46 (Del) ~
• CIT vs. Neemar Ram Bandhu Ram(1979) 11 CTR (All) 253: (1980) 122 ITR 68 (All).

3.11 Therefore, in view of the above judgments, the addition, if any, cannot in any way exceed the peak credit appearing in the books of accounts of the assessee.

4. Ground No.3 and 4:
4.1 These grounds deal with the action of the Ld. CIT(A) in sustaining the adhoc additions made by the AO.
4.2 The AO has made addition of Rs.50,OOO/- on account of trading results declared by the assessee, alleging that no documentary evidences were filed by the assessee in support of the trading results declared in the return of income.
4.3 In this regard, it is submitted that it is a settled law that in the absence of any specific finding, the adhoc additions made by the AO cannot be sustained. Reliance in this regard is placed-on the judgment of this Hon’ble ITAT in the case of DCIT VS. Norma IndiCJ Ltd. in ITA No. 4562/Del/2010 dated 04.12.2015.
4.4 Further reliance in this regard is placed on the following judgments:
• ACIT vs Amtek Auto Ltd. 112 TT J 455
“19. We have considered the rival submissions, and find that the ground preferred by the Revenue is lacking in
substance, inasmuch as, the CIT(A) has correctly concluded that the addition has been made by the AO without any basis. Evidently, the AO has not pointed out any particular voucher or expenditure, which was unrelated to the business of the assessee. There is no instance noticed by the AO, which showed that the expenditure was incurred for personal purpose. Moreover, the accounts of the assessee, as noted by us earlier, are statutorily required to be audited and have been so done. There is also no adverse observation by the auditors in this regard. The disallowance, therefore, was made by the AO on mere surmises and conjectures. Therefore, the CIT(A) appropriately deleted the addition. We hereby affirm the order of the CIT(A) and, therefore, the Revenue fails on this ground.”
• DCIT VS. Yash B. Johar, ITA No. 2612/Mum/2008, AY 2004-05 dt. 5.2.2010 .
“14. We have considered the rival submissions made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the decisions cited before us. There is no dispute to the fact that the accounts of the assessee are audited. We find the Assessing Officer has not pointed out any specific defect in any of the vouchers and has made a general remark that huge cash expenditure has been incurred and some vouchers are not fully supported by bills, etc. Although the Assessing Officer mentions that huge cash expenses have been incurred, we find provisions of section 40A(3) of the Act have not been applied which shows that these are small cash expenses below the prescribed limit. As regards the other cash expenses which are supported by the self made vouchers only, since the provisions of section 40A(3) have not been applied it indicates that these are also small amounts below the prescribed limit u/s. 40A(3). Since the accounts of the assessee are audited and no specific instance has been brought on record by the Assessing Officer as to which is the expenditure which according to him is not fully supported with vouchers, therefore, we do not find any infirmity in the order of the CIT(A) deleting the ad hoc
disallowance made on the basis of presumptions and guesswork. We accordingly uphold the same. The grounds
by the Revenue are accordingly dismissed. “
• Devji Nenshi Palani vs: ITO, ITA No. 6519/Mum/2009, AY 2006-07 dated 29.10.2010 .
• Nitin Sales Corpn. 212 Taxation 49 (Del), ITA No. 1809/Del/2005 dt. 11.7.2008
Ground No.5:
This ground ‘deals with the action of the Ld. CIT(A) in sustaining the addition of Rs.49,971/- made by the AO on account of disallowance of deduction under Chapter VI – A claimed by the assessee in the return of income.

In this regard, it is respectfully submitted that the said deduction has been claimed by the assessee on account of the L1C premium and the Tuition Fees paid during the year under consideration. The AO has disallowed the said deduction only on the basis that no documentary evidence in this regard was produced by the assessee. It is submitted that the said amounts have been duly paid out of the banking channels and thus, should be allowed to the assessee.

 

7. In this case, Notice of hearing to both the parties was sent, despite the same, the Ld. DR not appeared to prosecute the matter in dispute, nor filed any application for adjournment by the Department. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, I am of the view that no useful purpose would be served to issue notice again and again to the Revenue, therefore, I am deciding the present appeal exparte qua Revenue, after hearing the Ld. Counsel of the assessee and perusing the records.

8. I have heard the Ld. Counsel of the assessee and perused the relevant records available with me, especially the orders passed by the revenue authorities alongwith the Written Synopsis filed by the assessee’s counsel as well as the case laws cited by him therein, as aforesaid.
8.1 Ground No. 1 is general.
8.2 With regard to ground no. 2 relating to addition of Rs. 17,10,200/- made by the AO and confirmed by the Ld. CIT(A) without pointing out any defect or discrepancy in the evidences filed by the assessee. I find that the Ld. CIT(A) merely on the basis of surmises has sustained the addition made by the AO which is not sustainable in the eyes of law, in view of the various ITAT Benches decision including one i.e. ITAT, Rajkot Bench decision in the case of ITO vs. Mahesh Kumar Jayantilal Vora, wherein it was specifically held as under:-

“We have duly considered the rival contentions and the material on record. The only dispute for our resolution is whether peak credit method applied in the facts of case is rightly applied or not. It is well established that no income can be taxed twice. It is also not in dispute that these deposits include refunds of the subscriptions made from the deposits. Thus, by aggregating all deposits, they tend to get taxed twice which is against the principles of taxation the decisions cited by the Id. counsel lend support to the case of the assessee and hence we decline to interfere with the decision of the CIT(A).”

8.3 Respectfully, following the finding of the ITAT, Rajkot Tribunal, as aforesaid, I delete the addition in dispute and allow the ground no. 2 raised by the Assessee.

9. With regard to ground no. 3 & 4 are concerned, I find that the AO has made addition of Rs. 50,000/- on account of trading results declared by the assessee, alleging that no documentary evidences were filed by the assessee in support of the trading results declared in the return of income. I find that it is a settled law that in the absence of any specific finding, the adhoc additions made by the AO cannot be sustained, hence, I delete the addition in dispute and allow the ground nos. 3 & 4 raised by the assessee. My view is fully supported by the following decisions:-
– ACIT vs. Amtek Auto Ltd. 112 TTJ 455
– DCIT vs. S. Yash B. Johar. ITA No. 2612/Mum/2008, AY
2004-05 dated 5.5.2010.

10. With regard to ground No. 5 relating to addition of Rs. 49,971/- is concerned, I find that the AO made the addition on account of disallowance of deduction under Chapter VI A claimed by the assessee in the return of income. I find that the said deduction has been claimed by the assessee on account of LIC premium and the Tuition Fees paid during the year under consideration. I also find that AO has disallowed the said deduction only on the basis that no documentary evidence in this regard was produced by the assessee. However, the said amounts have been duly paid out from the banking channels and deserve to be allowed, hence, I delete the addition in dispute and accordingly, the ground no. 5 raised by the assessee is allowed.

11. In the result, the Appeal filed by the Assessee stand allowed.

Order pronounced in the Open Court on 30/08/2016.

Sd/-
[H.S. SIDHU]
JUDICIAL MEMBER

Date: 30/08/2016

“SRBHATNAGAR”
Copy forwarded to: –

1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT

TRUE COPY

By Order,
Assistant Registrar,
ITAT, Delhi Benches

DEVENDER_KUMAR_VS_ITO-Chapter-VIA