Shri Bhagwanti Cooperative Group Housing Society, Gurgaon V. DCIT, New Delhi

CO 17/DEL/2011

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3548 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 1 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P D MITTAL
• Keywords: Search and seizure
• Section: 56; 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AN D SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO.5668/DEL./2010, A.Y. 2006-07 DCIT VS. BHA GWANTI COOPERATIVE GROUP CENTRAL CIRCLE -12, HOUSING SOCIETY ROOM NO. 330, PLOT NO. GH-83, ARA CENTRE, JHANDEWALAN EXTN. SECTOR- 56 NEW DELHI GURGAON (PAN : AAAAB3888J) CROSS OBJECTION 17/ DEL/2 011 (ARISING APPEAL NO. 5668/DEL/2010) ASSESSMENT YEAR 2006-07 BHAGWANTI COOPERATIVE GROUP VS. DCIT HOUSING SOCIETY CENTRAL CIRCL E -12, PLOT NO. GH-83, ROOM NO. 330, SECTOR-56 ARA CENTRE, JHANDEWALAN EXTN NEW DELHI GURGAON (PAN : AAAAB3888J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. P.D.MITTAL , CA REVENUE BY : SHRI AMIT KATOCH, SR. DR DATE OF HEARING : 23.01.2019 DATE OF ORDER : 26 .02.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : AFORESAID APPEAL AS WELL AS CROSS OBJECTI ONS FILED BY REVENUE AS WELL AS ASSESSEE RESPECTIVELY ARE BEING DISPOSED OF WITH COMPOSITE ORDER ITA NO. 5668/DEL./2010 C.O. NO. 17/DEL/2011 2 HAVING BEEN EMANATED FROM SAME IMPUGNED ORDER DATED 03.09.2010 PASSED BY LD. CIT(A), TO AVOID REPETITION OF DISCUS SION. 2. THE APPELLANT DY. COMMISSIONER OF INCOME T AX, NEW DELHI (HEREINAFTER REFERRED TO AS 'THE REVENUE') BY FILIN G THE AFORESAID APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 30/09 /2010 PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEALS), NEW DELHI QUA THE ASSESSMENT YEAR 2006-07 ON THE GROUNDS INTER ALIA THAT : 1. THE ORDER OF THE LD. CIT(APPEALS) IS NOT CORREC T IN LAW AND FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE A DDITION OF RS. 1,92,00,000/- MADE BY THE AO ON ACCOUNT OF UNDISCLO SED INCOME F THE ASSESSEE, AS WELL AS THE SUBSTANTIVE A DDITION IN THE HANDS OF GTM BUILDERS AND PROMOTERS (P) LTD. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F THE HEARING OF THE APPEAL. CROSS OBJECTION 17/DEL/2011, A.Y. 2006-07 3. APPELLANT BHAGWANTI COOPERATIVE GROUP HOUSING SO CIETY (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG CROSS OBJECTIONS SOUGHT TO CHALLENGE THE IMPUGNED ORDER PASSED BY THE LD. C IT(A)-1 NEW DELHI BY RAISING GROUNDS OF CROSS OBJECTIONS AS UNDER :- 1. THAT THE LD. A.O. HAS FAILED TO MAKE OUT ANY C ASE AGAINST THE ASSESSEE SOCIETY IN VIEW OF THE FACT THAT THERE IS NO MATERIAL EVEN FOR NAME SAKE. ITA NO. 5668/DEL./2010 C.O. NO. 17/DEL/2011 3 2. THAT THE LD. A.O. HAS FAILED TO APPRECIATE THE E VIDENCE IN THE FORM OF STATEMENT OF ONE OF THE FLAT OWNER SHRI RAM ESH KUMAR RECORDED WHEREIN SHRI RAMESH KUMAR HAS CATEGORICALL Y DENIED ANY PAYMENT MADE TO THE SOCIETY IN EXCESS OF THE RE CORDED PRICE. UNFORTUNATELY, THIS PART OF THE EVIDENCE THO UGH AVAILABLE WITH THE LD. A.O. WAS NOT CONSIDERED AS EVIDENT FRO M THE ASSESSMENT ORDER. 3. THAT EVEN IN THE CONCLUDING PARA 37 IT HAS BEEN CATEGORICALLY HELD THAT M/S. GTM BUILDERS IS THE BENEFICIARY OF T HE ALLEGED ADDITIONAL SALE PRICE IF ANY. 4. BRIEFLY STATED THAT FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS INTO THE BUSI NESS OF CONSTRUCTION OF FLATS FOR THE MEMBERS OF SOCIETY. A SURVEY WAS COND UCTED U/S 133A OF THE ACT AT THE PREMISES OF ASSESSEE SOCIETY ON 21.03.20 07. ON THE BASIS OF SEARCH AND SEIZURE OPERATION CONDUCTED IN CASE OF G TM BUILDERS AND PROMOTERS P. LTD. AS WELL AS RESIDENCE OF SHRI MOHI T VOHRA. IT IS THE CASE OF ASSESSING OFFICERS THAT DURING THE COURSE OF SEA RCH AT THE RESIDENCE OF SH. MOHIT VOHRA VARIOUS DOCUMENTS RELATING TO ASSES SEES SOCIETY WERE FOUND. FROM THE STATEMENT OF SH. MOHIT VOHRA, SH. VIDYASAGAR VISHNOI, SH. RAJESH CHABRA, SH. RAMESH KUMAR VADHAWAN, SH. A SHOK KUMAR AND SH. TUSHAR KUMAR, AO PROCEEDED TO CONCLUDE THAT ASSESSEE SOCIETY WAS MANAGED AND CONTROLLED BY GTM GROUP AND THE MAI N CONTRACT PERSON WAS SH. TUSHAR KUMAR AND THAT FOR EACH OF TH E 48 FLATS, GTM / TUSHAR KUMAR RECEIVED SUM OF RS. 4,00,000/-, TOTAL AMOUNTING TO RS.1,92,00,000/- WHICH REPRESENTS THE UNDISCLOSED I NCOME OF THE GROUP AND THEREBY MADE PROTECTIVE ASSESSMENT OF 1,92,00,0 00/- IN THE HANDS OF THE ASSESSEES SOCIETY U/S 153(C) OF THE ACT. ITA NO. 5668/DEL./2010 C.O. NO. 17/DEL/2011 4 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A ) BY WAY OF FILING THE APPEAL WHO HAS DELETED THE ADDITION BY ACCEPTI NG THE APPEAL. 6. WE HAVE HEARD THE LD. DR FOR THE REVENUE, G ONE THROUGH THE ORDER PASSED BY THE LOWER REVENUE AUTHORITIES AND DOCUMEN TS RELIED UPON BY THE PARTIES TO THE APPEAL. 7. UNDISPUTEDLY ASSESSEE SOCIETY IS AN INDEPENDENT LEGAL ENTITY. IT IS ALSO NOT IN DISPUTE THAT IN CASE OF GTM BUILDERS AN D PROMOTERS PVT. LTD. FOR A.Y. 2006-07 THE ISSUE IN CONTROVERSY IN THE PR ESENT APPEAL WAS CONSIDERED AND CONSEQUENTLY ASSESSMENT WAS MADE ON SUBSTANTIVE BASIS. LD. CIT(A) DURING THE APPELLATE PROCEEDINGS IN CASE OF GTM BUILDERS AND PROMOTERS PVT. LTD. FOR A.Y. 2006-07 VIDE ORDER NO. 88/08-09 DATED 28.05.2010 PROCEEDED TO HOLD THAT, THE ASSESSEE SO CIETY IS AN INDEPENDENT LEGAL ENTITY AND IS NOT A BENAMI CONCERN MR. TUSHAR KR. / GTM BUILDERS AND PROMOTERS P. LTD. AND THE AO HAS NO EVIDENCE TO SHOW THAT ANY MONEY HAS PASSED FROM THE MEMBERS OF THE SOCIETY TO THE ASSESSEE SOCIETY QUA THE SALE OF FLATS. 8. WHEN WE EXAMINE PARA 39 OF THE ASSESSMENT ORDER, AO PROCEEDED ON THE BASIS OF THE FACT THAT FOR EACH OF 48 FLATS, GTM BUILDERS AND PROMOTERS P. LTD. / SH. TUSHAR KR. RECEIVED A SUM O F RS. 4,00,000/- TOTAL AMOUNTING TO RS. 1,92,00,000/- WHICH REPRESENTS THE UNDISCLOSED INCOME OF THE GROUP AND MADE PROTECTIVE ADDITION THEREOF I N THE HANDS OF THE ASSESSEE SOCIETY. WE ARE OF THE CONSIDERED VIEW THA T IN ANY CASE THE ADDITION WAS TO BE MADE IT WAS REQUIRED TO BE MADE IN THE HANDS OF INDIVIDUAL FLAT OWNERS, WHO ALLEGED TO HAVE MADE TH E PAYMENT OF RS. 4,00,000/- EACH IN CASH. MERELY BECAUSE OF THE FA CT THAT SOME DOCUMENTS RELATING TO MEMBERSHIP ETC. WERE FOUND AT THE PRE MISES OF GTM BUILDERS AND PROMOTERS P. LTD. / MR. TUSHAR KUMAR P ROTECTIVE ADDITION CANNOT BE MADE ON THE BASIS OF ASSUMPTION AND SURMI SES. MOREOVER, LD. ITA NO. 5668/DEL./2010 C.O. NO. 17/DEL/2011 5 CIT(A) HAS RIGHTLY OBSERVED THAT SH. RAMESH KUMAR VADHAWAN, OWNER OF FLAT NO. 604 RECORDED DURING THE SURVEY PROCEEDI NGS DENIED TO HAVE MADE ANY PAYMENTS IN CASH EITHER TO THE SOCIETY OR TO MR. TUSHAR KUMAR. QUESTION NO. 5 AND ITS ANSWER GIVEN BY MR. RAMESH K R. IS EXTRACTED IN PARA 4.4 OF THE IMPUGNED ORDER. 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT THE LD. CIT(A) HAS RIGHTLY REA CHED THE CONCLUSION THAT THERE IS NO MATERIAL ON RECORD BEFORE THE AO T O MAKE EVEN PROTECTIVE ADDITION AGAINST THE ASSESSEE SOCIETY PARTICULARLY WHEN SUBSTANTIVE ADDITION HAVE ALREADY MADE IN THE HANDS OF GTM BUIL DERS AND PROMOTERS P. LTD. AND IN THAT CASE ISSUE WAS DECIDED THAT THE ASSESSEE SOCIETY IS NOT A BENAMI CONCERN OF GTM GROUP AS ITS ACTIVITIES, OB JECTIVES ARE GOVERNED BY ITS MEMORANDUM OF ARTICLES OF ASSOCIATION. SO, F INDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDERS PASSED BY LD. CIT (A) . PRESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. 10. CROSS OBJECTION FILED BY ASSESSEE SOCIETY STAND S DISMISSED HAVING NOT BEEN PRESSED AT THE TIME OF ARGUMENT. ORDER PRONOUNCED IN OPEN COURT ON THIS 26 TH FEBRUARY, 2019. SD/- SD/- (B.R.R.KUMAR) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26/02/ 2019 BR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXVI, NEW DELHI. 5. CIT(ITAT), NEW DELHI. ITA NO. 5668/DEL./2010 C.O. NO. 17/DEL/2011 6 AR, ITAT NEW DELHI DATE OF DICTATION 18.02.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.02.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER