ITA No. 368 of 2015 -1- IN HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos. 20803 to 05-CII of 2015 ITA No. 368 of 2015 Date of Decision: 17.11.2015 Neena Aggarwal ....Appellant. Versus Commissioner of Income Tax, Panchkula ...Respondent. 1. Whether Reporters of local papers may be allowed to see judgment? 2. To be referred to Reporters or not? 3. Whether judgment should be reported in Digest? CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. HON'BLE MR. JUSTICE RAMENDRA JAIN. PRESENT: Mr. Jagmohan Bansal, Advocate for appellant. AJAY KUMAR MITTAL, J. CM No. 20803-CII of 2015 Application is allowed and delay of 277 days in refiling appeal is condoned. CM No. 20804-CII of 2015 Learned counsel for appellant submitted that deficiency in court fee has been made good, delay, if any, be condoned. Application is allowed and delay, if any, in making good deficiency in court fee, is condoned. ITA No. 368 of 2015 1. This appeal has been preferred by assessee under GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -2- Section 260A of Income Tax Act, 1961 (in short Act ) against order dated 6.3.2014 (Annexure A-1) passed by Income Tax Appellate Tribunal, Chandigarh Bench , Chandigarh (hereinafter referred to as Tribunal ) in ITA No. 520/CHD/2012, for assessment year 2008-09, claiming following substantial questions of law:- i. Whether impugned order is perverse and contrary to record? ii. Whether Ld. Tribunal has passed impugned order on assumption and surmises? Iii. Whether appellant is liable to pay income tax when undisputedly appellant has sold piece of land? 2. Briefly stated, facts necessary for adjudication of instant appeal as narrated therein may be noticed. appellant is running boutique and regularly filing her income tax returns. She sold piece of land situated in Sector-9, Ambala for sum of ` 10,00,000/- in September, 2007. As per sale deed dated 14.9.2007, she received said amount by way of cheque dated 14.9.2007. She did not deposit said cheque in her SBI account and as per mutual understanding with buyer, said cheque was cancelled and two bearer cheques No. 684557 dated 14.9.2007 amounting to ` 5 lacs and No. 684558 dated 14.9.2007 for ` 4 lacs, respectively were drawn from saving bank account No. 1002619886 with SBI, Model Town, Ambala City. appellant withdrew sum of ` 9 lacs. She deposited said amount in installments in her bank account. assessee was getting sale receipts from her boutique and was regularly depositing her saving in GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -3- her bank account. During year 2007-08, she got receipts from sale of plot as well as business operation of boutique and during September, 2007 to March, 2008, she deposited sum of ` 12,12,000/- in her bank account. assessee filed her income tax return on 31.3.2009 for assessment year 2008-09 declaring income at ` 1,65,990/-. said return was processed under Section 143(1)(a) of Act at returned income and was selected for scrutiny through CASS. notice under Section 143(2) of Act was issued to assessee. assessment under Section 143(3) of Act was completed by Assessing Officer vide order dated 31.12.2010 (Annexure A-3) at total income of ` 13,77,990/-. Feeling aggrieved, assessee filed appeal, Annexure A-4, before Commissioner of Income Tax (Appeals) [for brevity CIT(A) ]. Along with appeal, assessee also attached certificate (Annexure A-5) received from State Bank of India under RTI information that cheque mentioned in sale deed was never encashed. She also filed statement of account dated 17.4.2012 (Annexure A-6) showing details of deposit and available cash with her during assessment year 2008-09. CIT(A) vide order dated 25.4.2012 (Annexure A-7) dismissed appeal holding that assessee had failed to prove that cheque was deposited by her in SBI account to get cash and no cash deposit of ` 10 lacs was made by assessee on 14.9.2007. Further, it was held that dates of deposit and availability of cash do not tally either for sale of plot or receipts of boutique. Still dissatisfied, assessee approached Tribunal by way of appeal. Tribunal vide order dated 6.3.2014 (Annexure A-1) dismissed appeal which gave rise to assessee to approach this Court by way of instant appeal. GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -4- 3. Learned counsel for appellant submitted that order of Tribunal dated 6.3.2014 (Annexure A-1) dismissing her appeal is not legally sustainable in eyes of law, being based on surmises and conjectures. It was further submitted that Tribunal has acted in arbitrary manner in holding that assessee had not been able to satisfactorily explain deposit of cash on various dates. 4. After hearing learned counsel for appellant-assessee, we do not find any merit in appeal. 5. assessee had derived income from running boutique. She filed return under Section 44AF of Act and no books of account were maintained. Assessing Officer asked appellant to explain source of cash deposits of ` 12,12,000/- to which she submitted that said amount was out of sale proceeds as she had sold piece of land in Sector 9, Ambala for sum of ` 10 lacs in September, 2007 and also from business of boutique where sales amounting to ` 14.50 lacs were made resulting in profit of ` 1,54,690/-. explanation of assessee was not accepted by Assessing Officer who held ` 12,12,000/- as unexplained deposits/investment in bank. relevant findings of Assessing Officer are as under:- 3.2. This explanation on behalf of assessee is not acceptable. As per copy of sale deed, assessee received entire sale proceeds of Rs.10,00,000/- through cheque no. 684555 dated 14.09.2007. This amount is no where reflected in above mentioned bank account. Further, copy of sale account has also been filed during assessment proceedings as per which total sales GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -5- during year were Rs.14,49,820/- from which profit is shown to be Rs.1,54,960/-. Thus, remaining amount has been claimed as expenditure. Further, quantum of sales is also not of such level which could provide money for deposit in said bank account. Thus, neither from sale proceeds of plot nor from sale proceeds of boutique profession, assessee was having surplus funds to deposit in bank as per detail given above. Therefore, I hold assessee as to have not been able to explain aforesaid deposits and accordingly make addition of Rs.12,12,000/- to assessee's total income as unexplained investment/deposit. 6. said findings of Assessing Officer were affirmed by CIT(A) in appeal. CIT(A) held that although as per sale deed, assessee had received ` 10 lacs vide cheque dated 14.9.2007 but she had failed to prove that cheque was deposited by her in SBI to get cash. Further, it was observed that dates of deposit and availability of cash do not tally either for sale of plot or gross receipts of boutique and assessee had failed to explain entries of cash deposits in her bank account. findings recorded by CIT(A) read thus:- 4.1 appellant has filed copy of sale deed of plot (supra) dated 14.09.2007. As per this deed appellant received Rs.10 lacs vide cheque No. 684555 dated 14.09.2007 of State Bank of India, Ambala City. appellant has failed to prove that GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -6- cheque was deposited by her in SBI to get cash. Moreover, there is no cash deposit of Rs.10 lacs in Centurion Bank of Punjab on 14.09.2007. dates of deposit and availability of cash do not tally either for sale of plot or gross receipts of boutique. appellant has failed to explain entries of cash deposits in her bank account. Therefore, appellant has failed to provide NEXUS between cash availability and Bank deposits. As result, addition of Rs.12,12,000/- is confirmed on account of unexplained deposits/investments in bank. 7. Tribunal has affirmed aforesaid findings of CIT (A) by observing that even if it is assumed that certificate is correct and bearer of this property Shri Rajiv Kalra issued two bearer cheques No. 684557 and 684558, then also it was not possible for assessee to encash cheque on 14.9.2007 itself whereas sale deed was executed on 14.9.2007 which must have taken some time. Further, it was held that if assessee had cash of ` 10 lacs on 14.9.2007, i.e. ` 9 lacs from encashment of two cheques and ` 1 lac as cash payment, then why ` 4.05 lacs was deposited and remaining amount has been deposited in various installments. According to Tribunal, assessee had failed to satisfactorily explain deposits of cash. Tribunal has noticed as under:- 8. We have considered rival submission carefully, we do not find any force in submission of Ld. counsel for assessee. Even if it is assumed GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -7- that certificate is correct and bearer of this property Shri Rajiv Kalra issued two bearer cheques No. 684557 and 684558, then how it is possible that assessee has been able to encash cheque on 14.07.2007 itself. sale deed is also executed on 14.09.2007 which must have taken sometime. Thereafter assessee got time to exchange cheques. Assuming for argument sake that this is possible. Still problem is that on 15.09.2007 assessee has deposited Rs.4,05,000/- only. details of cash deposited by assessee are as under:- 14.09.2007 4,05,000 23.10.2007 60000 27.02.2008 25000 12.3.2008 1,00,000 17.03.2008 1,20,000 17.03.2008 1,47,000 18.03.2008 1,45,000 24.03.2008 2,10,000 Total 12,12,000 9. So, if assessee has cash of Rs.10 lacs on 14.09.2007 i.e. Rs.9 lacs from encashment of two cheques and Rs.1 lakh as cash payment, then why only Rs.4.05 lacs was deposited and then money has been deposited in various installments as stated above. No explanation was given for this discrepancy. Therefore, in our opinion, assessee has not been able to satisfactorily explain deposits of cash and GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh ITA No. 368 of 2015 -8- accordingly we confirm order of CIT(A). 8. authorities below on appreciation of material on record have concurrently recorded that ` 12,12,000/- was unexplained deposits/ investment in bank of assessee. Nothing could be shown that approach of Assessing Officer, CIT(A) and Tribunal was erroneous or perverse except only effort was made to reappreciate evidence so as to record finding different from one arrived at by authorities below. view of Assessing Officer, CIT(A) and Tribunal is plausible view based on material on record which warrant no interference by this Court. 9. In view of above, no substantial question of law arises in this appeal. Accordingly, instant appeal is dismissed. 10. There is delay of 33 days in filing appeal. CM No. 20805-CII of 2015 has been filed for condonation of 33 days' delay in filing appeal. Since appeal has been dismissed on merits, no further orders are required to be passed in application for condonation of delay in filing appeal and same is disposed of as such. (AJAY KUMAR MITTAL) JUDGE November 17, 2015 (RAMENDRA JAIN) gbs JUDGE GURBACHAN SINGH 2015.11.28 12:43 I attest to accuracy and authenticity of this document High Court Chandigarh Neena Aggarwal v. Commissioner of Income-tax, Panchkula