ACIT, CC-I, LUCKNOW V. SHRI SHIKHAR, LUCKNOW

ITSSA 10/LKW/2021

AI Insights

The case involves an appeal by the Revenue against the order of the Learned Commissioner of Income-tax (Appeals)-3, Lucknow, which pertained to the assessment year 2016-17. The Revenue challenged the deletion of additions made by the Assessing Officer (AO) regarding unexplained cash payments and loans. The AO had initially made additions to the assessee's income based on unexplained investments and unexplained loans, which were later deleted by the CIT(A). The Revenue's appeal was primarily based on the argument that the CIT(A) erred in accepting the assessee's explanations without sufficient verification. However, the Tribunal dismissed the appeal due to the monetary limit set by the CBDT, rendering the appeal not maintainable.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 31853 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-11-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-11-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 09-02-2021
• Other Referred Cases: Surjeet Singh Chhabra vs. UOI, Rakesh Mahajan vs. CIT, Bhagirath Aggarwal V. CIT, B Kishore Kumar Vs DCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SIDDHARTH PANDEY
• Assessee Lawyers: NAMITA S. PANDEY; OPPOSING
• Keywords: Unexplained investment; Tax effect; Retraction; Search and seizure
• Section: 143(2); 132; 68; 69

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “A”, LUCKNOW BEFORE SHRI KUL BHARAT, VICE PRESIDENT AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.10/LKW/2021 Assessment Year: 2016-17 ACIT, Central Circle-1 2nd Floor, 27/2, P.K. Complex, Raja Ram Mohan Rai Marg, Lucknow-226001. v. Shri Shikhar D-6/216, Vipul Khand, Gomti Nagar, Lucknow- 226010. PAN:FMWPS6103M (Appellant) (Respondent) Appellant by: Shri Siddharth Pandey, Adv Shri Anil Pandey, Adv Respondent by: Smt Namita S. Pandey, CIT(DR) Date of hearing: 26 11 2024 Date of pronouncement: 27 11 2024 O R D E R PER KUL BHARAT, VICE PRESIDENT.: This appeal, by the Revenue, is directed against the order of the Learned Commissioner of Income-tax (Appeals)-3, Lucknow dated 22.07.2020 pertaining to the assessment year 2016-17. The Revenue has raised the following grounds of appeal: - “1. On facts and circumstances of the case and in law the Ld. CIT(A), erred in deleting the addition of Rs 1.45 Cr in r/o cash paid by assessee over and above the recorded value merely on the basis of self-serving affidavit of Sri Avinash Dhawan (seller) ignoring that the sized paper duly recorded the cash transaction with signature of seller in respect of property which assessee had purchased also and the seller had voluntarily made statement recorded during the search that he had received the cash payment. 2. The Ld. CIT(A) failed to appreciate that in background of seized material as evidence, the statement made u/s 131(1A) by Avinash Dhawan was a binding evidence and presumption u/s 292C was also applicable and therefore the burden of proving that earlier statement or seized evidence was vitiated, could not have been discharged by assessee merely based on a self-serving affidavit of seller retracting the earlier statement without adducing the cogent reasons for retraction, in view of decision reported in Surjeet Singh Chhabra vs. UOI in SLP(C) No. 14028/96, Rakesh Mahajan vs. CIT 214 CTR 218(P&H), Bhagirath Aggarwal V. CIT 351 ITR 143 (Delhi), B Kishore Kumar Vs DCIT 296 ITR 619 (Madras). 3. The Ld. CIT(A) failed to appreciate that the burden of proving that earlier statement of seller was wrong and also that the entries recorded on seized material did not record the true picture was on the assessee and not on the revenue and therefore his conclusion to accept the retraction by seller as true merely on ground that AO did not make any enquiry to find veracity of retraction was misplaced and perverse. ITA No.10/LKW/2021 Page 2 of 4 4. On facts and circumstances of the case and in law the Ld. CIT{A), erred in deleting ‘the addition u/s 68 of Rs 15 lacs- in r/o loan taken by assessee ignoring that an equivalent sum was found deposited in bank account of creditor immediately before he transferred the same sum to assessee as loan. 5. The Ld. CIT(A) failed to appreciate that in view of amendment u/s 68 w.e.f. 1/4/2013, the amount was liable to be treated as unexplained even if the lender failed to prove the source of credit in its own account and that this burden was on the assessee to prove the source of money lent by creditor and not on the revenue. The decisions relied by CIT(A) were distinguishable on legal as well as factual position. 6. That the above grounds are without prejudice to each other and appellant craves leave to add or amend any other more ground of appeal as stated above as and when needs for doing so may arise.” 2. Facts giving rise to the present appeal are that in this case, a search and seizure operation u/s 132 of the Income Tax Act, 1961 (hereinafter “the Act”) was carried out in the case of Mr. Satyendra Kumar Singh & others. Thereafter, the assessee filed his return of income declaring total income of Rs.5,59,410/-. And the Assessing Officer (“AO”) had taken the case for scrutiny by issuing of notice u/s 143(2) of the Act. In response to the notice, the assessee filed his reply, however, it was not found acceptable in respect of the sum of Rs.15,00,000/- which was received by the assessee. Further, the Assessing Officer made an addition of Rs.1.45 cr in respect of the payment made by the assessee in respect of the sale of property bearing House No.4/685, Gomti Nagar Extension, Lucknow u/s 69 of the Act treating the same as unexplained investment. Thus, the AO assessed income of assessee at Rs.1,65,59,410/- against the declared total income of Rs.5,59,410/-. Aggrieved by this, the assessee preferred an appeal before the Ld. CIT(A) who allowed the appeal of the assessee and deleted the impugned additions. Now the Revenue is in appeal before this Tribunal. 3. At the outset, the Ld. Counsel for the Assessee by opposing the grounds of appeal stated that the appeal filed by the Revenue is barred by time. Hence, the same deserves to be dismissed on this ground alone. He, further, pointed out that as per the ITA No.10/LKW/2021 Page 3 of 4 Revenue, itself, the tax effect stated to be Rs.55,80,584/- and he drew our attention to the Form no. 36 submitted by the Revenue. 4. On the other hand, the Ld. Departmental Representative (“DR”) submitted that so far the question of limitation is concerned; it is well within the time if the period of Covid-19 Pandemic as per the decision of the Hon'ble Supreme Court is excluded in the case of Suo Moto Writ Petition (C). No.03 of 2020. However, she fairly conceded that the tax effect as per Form No. 36 is stated to be Rs.55,80,584/- which is below the pecuniary limit for filing of appeal as instructed by Central Board of Direct Taxes (CBDT), Circular No. 5 of 2024 dated 15.03.2024. 5. We have heard the rival submissions and perused the material available on record. The CBDT in its Circular No. 5 of 2024 dated 15.03.2024 has enhanced the pecuniary limit for filing of appeal before the Tribunal. As per the aforesaid circular, the monetary limits of Rs.60,00,000/-, hence, the present appeal is below the pecuniary limit prescribed by the CBDT. Therefore, the appeal deserves to be dismissed on this ground alone. The appeal is not maintainable on this ground alone, we hold, accordingly. So far the question of limitation is concerned, since we have held that the present appeal is not maintainable in the light of aforesaid CBDT, Circular the question of limitation is left open. 6. In the result, the appeal of the Revenue is dismissed. Order pronounced in the open Court on 27/11/2024. Sd/- Sd/- [ANADEE NATH MISSHRA] [KUL BHARAT] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 27/11/2024 Vijay Pal Singh, (Sr. PS) ITA No.10/LKW/2021 Page 4 of 4 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR 5. Guard File By order // True Copy// Assistant Registrar "