Shri Sachin Upadhaya, Dehradun V. ACIT, Meerut

CO 219/DEL/2011

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4089 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 14-07-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 04-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Assessee Lawyers: VIKRAM BAJAJ
• Keywords: Unexplained cash credit; Document seized; Additional evidence; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 3084/DEL/2011 ASSESSMENT YEAR: 2006-07 ACIT, CENTRAL CIRCLE, VS. SHRI SACHIN UPADHA YA, MEERUT 111/2, RAJPUR ROAD, DEHRADUN (PAN: AAPPU0297E) (APPELLANT) (RESPONDENT) AND C.O. NO. 219/DEL/2011 ASSESSMENT YEAR: 2006-07 SHRI SACHIN UPADHAYA, VS. ACIT, CENTRAL CIRCLE , 111/2, RAJPUR ROAD, MEERUT DEHRADUN UTTARAKHAND (APPELLANT) (RESPONDENT) DEPARTMENT BY : SMT. ANIMA BARNWAL, SR. DR. ASSESSEE BY : SH. VIKRAM BAJAJ, CA DATE OF HEARING : 14-07-2016 DATE OF ORDER : 18-07-2016 ORDER PER H.S. SIDHU, J.M. THE APPEAL HAS BEEN FILED BY THE DEPARTMENT AND THE CR OSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER O F THE LD. CIT(A), MEERUT DATED 24.3.2011 RELATING TO ASSESSMENT YEAR 2006 -07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN I TS APPEAL: ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 2 1 THAT THE ORDER OF CIT(A) IS ERRONEOUS IN LAW AND ON FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT IN CONTRAVENTION TO RULE 46A OF THE I.T. RULES WITHOUT GIVING PROPER OPPORTUNIT Y TO THE AO TO REBUT THE APPELLANTS CLAIM. 2 THAT THE CIT(A) ERRED IN LAW IN DELETING THE ADDITI ON OF RS. 9,73,000/- BEING THE INVESTMENT IN FDR ON A WRONG APPLICATION OF LAW AND FACT AND WITHOUT ANY BASIS IGNORING THE CONCLUSIVE EVIDENCE BROUGHT ON RECORD IN THIS REGARD BY THE AO, IN INSPITE OF THE FACT THAT MANY OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO SUBSTANTIATE THE ONUS OF THESE FDRS. 3 THAT THE CIT(A) ERRED IN LAW IN DELETING THE ADDITI ON OF RS. 7,84,360/- ON ACCOUNT OF UNEXPLAINED CREDIT ON A WRONG APPLICATION OF LAW AND FACT AND WITHOUT ANY BASIS. IN DOING SO, THE CIT(A) TOTALLY IGNORED THE EVIDENTIARY VALUE OF SEIZED ANNEXURE A-6 WITH CONCLUSIVELY ESTABLISHED UNEXPLAINED CREDIT. A DOCUMENT SEIZED DURING THE COURSE OF SEARCH AND ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 3 SEIZURE OPERATION CONSTITUTE AN EVIDENCE IN TERMS OF SECTION 132(4A) OF THE I.T. ACT, 1961. 4 THAT CIT(A) HAS ERRED IN SUBSTITUTING HIS OWN SATISFACTION IN PLACE OF AOS SATISFACTION AS REQUIR ED UNDER SECTION 68 OF THE I.T. ACT WITHOUT GIVING ANYT REASON OR JUSTIFICATION FOR THIS DEVIATION. 5 THAT THE ORDER OF THE CIT(A) BEING ERRONEOUS IN LAW AND FACTS NEEDS TO BE VACATED AND THE ORDER OF THE AO BE RESTORED. 6 THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS I N ITS CROSS OBJECTION:- 1. THE LD. CIT(A) ERRED IN HOLDING THAT THE APPELLA NT HAD FILED APPEAL AGAINST ORDER U/S. 127 OF THE ACT WHICH WAS NOT AN APPELLBLE ORDER. 2. IN SO DOING THE LD. CIT(A) DID NOT APPRECIATE THAT THE ASSESSMENT WAS VOID AND ILLEGAL AND, THEREFORE, BAD IN LAW IN ABSENCE OF COMMUNICATION OF ORDER ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 4 U/S. 127 OF THE ACT TO THE APPELLANT, A FACT ACCEPTED BY THE LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. FROM THE ABOVE, WE FIND THAT THE TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THEREF ORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW O F THE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007-ITJ (PT.) BY THE CBDT. FOR THE SA KE OF CONVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AF ORESAID CBDTS CIRCULAR ARE REPRODUCED AS UNDER:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME -TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00,000/ - 3 BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETA RY LIMITS ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 5 PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH C OURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE M AY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 5. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THO SE AUTHORITIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHD RAWN/ NOT PRESSED THE PRESENT APPEAL, IN VIEW OF THE AFORESAI D INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THA N THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS I NSTRUCTIONS. 6. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SH OULD HAVE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRI BUNAL. WE ARE ALSO OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPL ICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH I N TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 6 7. SINCE WE HAVE DISMISSED THE REVENUES APPEAL, AS AFORESAID, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. HENCE, THE SAME IS DISMISSED AS SUCH. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE AS WE LL AS CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/07/2016. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 18/07/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR ITA NO.3084/DEL/2011 & CO NO. 219/DEL/2011 7