Shri Suresh Nanda, New Delhi V. ACIT, New Delhi

CO 266/DEL/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2125 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 05-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 13-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Keywords: Unexplained expenditure; Residential status; Double taxation relief; Deemed dividend; Commercial expediency; Documents seized
• Section: 153A; 54; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : E : NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI SUDHANSHU SRIVASTAVA, JM ITA NOS.4802 TO 4806/DEL/2015 AYS : 2006-07, 2007-08, 2008-09, 2009-10 & 2012-13 ACIT, CENTRAL CIRCLE-03, ROOM NO.332, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS. SURESH NANDA, 4, CASURINA AVENUE, WESTEND GREENS, 30-D, RAJOKRI, NEW DELHI. PAN: AAFPN9895H CO NOS.266 TO 269/DEL/2015 (ITA NOS.4802 TO 4805/DEL/2015) AYS : 2006-07, 2007-08, 2008-09 & 2009-10 SURESH NANDA, 4, CASURINA AVENUE, WESTEND GREENS, 30-D, RAJOKRI, NEW DELHI. PAN: AAFPN9895H VS. ACIT, CENTRAL CIRCLE-03, ROOM NO.332, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY WADHWA, ADVOCATE DEPARTMENT BY : MS NIRUPAMA KOTRU, CIT, DR DATE OF HEARING : 07.01.2016 DATE OF PRONOUNCEMENT : 22.02.2016 ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 2 ORDER PER BENCH: ALL THESE APPEALS FILED BY THE REVENUE ARE DIRECTE D AGAINST THE COMMON ORDER PASSED BY THE CIT(A)-23, NEW DELHI, DATED 1.5 .2015 FOR THE ASSESSMENT YEARS 2006-07, 2007-08, 2008-09 & 2009-10 AND ORDER DATED 25.05.2015 FOR THE ASSESSMENT YEAR 2012-13. THE CROSS OBJECTIONS ARE F ILED BY THE ASSESSEE. 2. AS THE ISSUE ARISING IN ALL THESE APPEALS ARE CO MMON, FOR THE SAKE OF CONVENIENCE THEY WERE HEARD TOGETHER AND DISPOSED O F BY WAY OF THIS COMMON ORDER. 3. THE FACTS OF THE CASE AS BROUGHT OUT AT PARA 3.1 & 3.2 OF THE ORDER OF THE CIT(A) IS EXTRACTED FOR READY REFERENCE:- 3.1 BACKGROUND OF THE MATTER IS THAT IN APRIL 1 MA Y, 2011 INDIA RECEIVED INFORMATION FROM A FOREIGN GOVERNMENT UNDE R THE RELEVANT DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA) THAT CER TAIN INDIAN PASSPORT HOLDERS HAD OPENED AND MAINTAINED BANK ACC OUNTS WITH HONGKONG & SHANGHAI BANKING CORPORATION (HSBC) IN SWITZERLAND, ETC. THE INFORMATION RECEIVED WAS COVE RED UNDER THE CONFIDENTIALITY CLAUSE OF THE DTAA, AND ITS CONTENT S COULD NOT BE DISCLOSED OR SHARED BY THE INCOME TAX DEPARTMENT (I TD) OTHER THAN FOR TAX PURPOSES OR WITHOUT THE CONSENT OF THE COUN TRY WHICH HAD SHARED INFORMATION. THE SOURCE OF THE INFORMATION W AS NOT DISCLOSED BY THE SHARING FOREIGN GOVERNMENT. BASED ON THE INF ORMATION RECEIVED, INVESTIGATIONS WERE INITIATED BY THE ITD IN JULY, 2011. WHEN THE INVESTIGATIONS WERE ON, MANY PERSONS APPEA RED SUO MOTU ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 3 BEFORE THE ITD AND ADMITTED HAVING OPENED THE BANK ACCOUNTS AND PAID TAX ON THE MAXIMUM AMOUNTS DEPOSITED/ OUTSTAND ING. IN SEVERAL CASES,' SEARCHES CONDUCTED LED TO ADMISSION BY THE PERSONS SEARCHED THAT THEY HAD OPENED ACCOUNTS OVERSEAS AND NOT DISCLOSED IT FOR TAX PURPOSES IN INDIA. SOME PERSONS, WHEN SUMMO NED BY THE ITD, ADMITTED HAVING OPENED THE ACCOUNTS AND TRANSA CTED THEREIN WHILE SOME PERSONS DENIED HAVING ANY TRANSACTION IN THE SAID ACCOUNTS. SOME PERSONS OUTRIGHTLY DENIED HAVING OPE NED ANY SUCH BANK ACCOUNTS OVERSEAS. BASED ON THE INVESTIGATIONS , FURTHER INFORMATION HAS BEEN SOUGHT FROM THE RESPECTIVE COU NTRIES AND IN SEVERAL CASES REFERENCE HAS BEEN MADE TO HSBC WITH A CONSENT FORM / AFFIDAVIT DULY SIGNED BY THE ALLEGED ACCOUNT HOLD ERS TO ENABLE HSBC TO FURNISH THE REQUISITE DETAILS SUCH AS ACCOU NT OPENING FORM, OTHER DOCUMENTS, NAMES OF BENEFICIARIES, DETAILS OF TRANSACTIONS, ETC., TO THE ACCOUNT HOLDERS. THE GOVERNMENT ALSO A MENDED THE INCOME TAX ACT, 1961 TO PROVIDE FOR REOPENING OF TA X ASSESSMENTS FOR A PERIOD OF 16 YEARS IN CASES WHERE THE ASSESSE E IS FOUND TO HAVE MAINTAINED UNDISCLOSED BANK ACCOUNTS / INCOMES / TR ANSACTIONS / ASSETS OVERSEAS. 3.2 THE APPELLANT'S NAME FIGURED AS ONE OF THE BENE FICIARIES OF AN ACCOUNT WITH HSBC, GENEVA. NAME OF LATE DR. M V RAO ALSO FIGURED IN THE LIST. CONSEQUENTLY, ON 24.02.2012, S EARCH AND SEIZURE ACTION WAS CARRIED OUT ON THE APPELLANT AND HIS RE LATIVES, CONCERNS AND ASSOCIATES, INCLUDING AT THE PREMISES OF LATE D R. M V RAO. WHILE THE APPELLANT DENIED HAVING ANY FOREIGN ACCOU NT IN HSBC, GENEVA, HE NONETHELESS PAID TAX ON THE MAXIMUM OUTS TANDING BALANCE IN THE SAID ACCOUNT 'TO BUY PEACE'. APPELLA NT'S SON SH. SANJEEV NANDA AND BROTHER SH. PAUL NANDA HAVE FILED APPLICATIONS BEFORE THE INCOME TAX SETTLEMENT COMMISSION (ITSC) IN THE MATTER, WHICH HAVE BEEN ADMITTED. IN THE CASE OF LA TE DR. M V RAO, CASH AMOUNTING IN ALL TO RS.7.69 CRORE WAS FOUND IN DIFFERENT BANK LOCKERS IN DELHI HELD BY HIS WIFE SMT. M SWARNALATA AND NIECE MS. K PADMARANI, OUT OF WHICH RS.7.60 CRORE WAS SEIZED. ONE OF THE ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 4 ENTITIES LINKED TO THE BANK ACCOUNT WITH HSBC, GENE VA, IS M/S CLAIR CONSULTANTS LTD., A COMPANY INCORPORATED IN THE BRI TISH VIRGIN ISLANDS, A TAX HAVEN. THERE WAS A REMITTANCE OF US $30,000 AT THE INSTANCE OF THIS COMPANY FROM DEUTSCHE BANK, SINGAP ORE TO THE NRO / NRE ACCOUNT OF SH. M VENU, SON OF LATE DR. RA O, MAINTAINED WITH DEUTSCHE BANK, NEW DELHI. THUS, MAI NTENANCE OF FOREIGN BANK ACCOUNT AND SEIZURE OF LARGE AMOUNTS O F CASH (I.E. RS.2 CRORE IN 2007 AND RS.7.6 CRORE IN 2012, TOTALING RS .9.6 CRORE), LED TO AN INESCAPABLE CONCLUSION THAT DR. RAO WAS BENEFICI ARY OF SOME BUSINESS ACTIVITIES / TRANSACTIONS WHICH HE WAS NOT DISCLOSING IN THE TAX RETURNS FILED WITH THE DEPARTMENT AND WAS ALSO AVOIDING PAYING DUE TAXES THEREON. TWO WRIT PETITIONS FILED BY SH. M VENU, NRI SON OF DR. RAO, AGAINST THE ACTION U/S 132 AND CONSEQUE NT PROCEEDINGS UNDER THE ACT, WERE ALSO DISMISSED BY THE HON'BLE D ELHI HIGH COURT. 4. THE AO MADE ADDITIONS OF INCOME BEING PEAK DEPOS ITS HELD BY THE ASSESSEE IN HIS DIFFERENT FOREIGN BANK ACCOUNTS. ADDITIONS WERE ALSO MADE ON CERTAIN OTHER ISSUES WHICH WE WOULD BE SPECIFICALLY REFERRING TO LATER. 5. WE HAVE HEARD MS NIRUPAMA KOTRU, THE LD. CIT, DR ON BEHALF OF THE REVENUE AND SHRI AJAY WADHWA, THE LD. COUNSEL FOR T HE ASSESSEE. DETAILED SUBMISSIONS WERE MADE BY BOTH THE PARTIES. PAPER B OOKS WERE FILED ALONG WITH WRITTEN SUBMISSIONS. 6. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRC UMSTANCES OF THE CASE AND ON A PERUSAL OF THE FACTS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE ADJUDICATE THE ISSUES AS FOLLOWS. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 5 7. THE FIRST COMMON GROUND RAISED BY THE REVENUE FO R AYS 2006-07 AND 2007- 08 RELATES TO THE DELETION OF ADDITION MADE BY THE AO ON ACCOUNT OF PEAK DEPOSITS IN HSBC, GENEVA ACCOUNT. 8. THE LD. CIT(A) DELETED THE SAID ADDITION AS FOLL OWS:- THUS, ON THE ISSUE WHETHER AMOUNTS KEPT BY THE NON -RESIDENT APPELLANT IN FOREIGN BANK ACCOUNT IS EXIGIBLE TO T AX IN INDIA, I HAVE HELD THAT EVIDENCE IS YET TO BE COLLECTED TO ESTABL ISH THAT THE AMOUNTS KEPT BY THE APPELLANT IN HIS FOREIGN BANK ACCOUNTS, INCLUDING IN HSBC ACCOUNT, ARE PROCEEDS OF COMMISSION RECEIVED IN DEF ENCE CONTRACTS AWARDED BY THE GOVERNMENT OF INDIA. IF THE REVENUE HAS SUSPICION THAT THE AMOUNTS REPRESENT INCOME ACCRUED / ARISEN IN IN DIA, EVIDENCE HAS TO BE COLLECTED FOR THE SAME AND CONFRONTED TO THE APPELLANT. THERE WAS SOME INDICATION TO THIS EFFECT IN THE EARLIER SEARC HES CONDUCTED IN 2007, FOR WHICH REFERENCES HAD BEEN MADE TO VARIOUS FOREIGN TAX AUTHORITIES UNDER THE RESPECTIVE TREATY PROVISIONS. SOME INFORMATION RECEIVED UNDER THE DTAAS CONFIRMED THE FOREIGN SOUR CE OF THE CAPITAL BROUGHT IN BY THE APPELLANT INTO VARIOUS CONCERNS I N INDIA. THE MAIN REFERENCE TO THE GOVERNMENT OF ISRAEL FOR CONFIRMIN G WHETHER ANY COMMISSION OF US $27.603 MILLION OR RS.123.27 CRORE WAS PAID BY M/S TADIRAN COMMUNICATION LTD. TO SH. SURESH NANDA AND HIS ASSOCIATES / CONCERNS, INCLUDING LATE DR. M V RAO I S STILL PENDING. OTHER REFERENCES ARE ALSO STILL TO BE RESPONDED TO, AND NEED TO BE PURSUED BY THE REVENUE. THUS, THERE IS NO EVIDENCE YET TO LINK THE MONEY BROUGHT INTO INDIA, OR KEPT IN FOREIGN ACCOUN TS, WITH ANY INDIAN DEFENCE CONTRACT PAYMENTS. IN THE ABSENCE OF ANY PO SITIVE EVIDENCE INDICATING RECEIPT OF MONEY IN DEFENCE CONTRACTS AW ARDED IN INDIA, ANY CONCLUSION THAT AMOUNTS KEPT BY THE APPELLANT IN HI S FOREIGN ACCOUNTS OR CAPITAL BROUGHT BY HIM INTO INDIA ARE PROCEEDS O F SUCH COMMISSION WOULD BE PREMATURE AND PRESUMPTIOUS. THUS, EVEN IF IT IS CONCLUDED ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 6 THAT THE AMOUNTS KEPT IN THE HSBC ACCOUNT BELONGS T HE APPELLANT, IT CANNOT BE SUBJECTED TO TAX AS INCOME ACCRUED OR ARI SEN IN INDIA UNLESS REQUISITE EVIDENCE IS COLLECTED. I HOLD ACCORDINGLY . 9. RELYING ON THE JUDGEMENT OF THE HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF KABUL CHAWLA IN ITA NO.707/2014, IT WAS SUB MITTED BY THE LD. AR THAT NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH RELATING TO THE ALLEGED HSBC ACCOUNT AND, THEREFORE, NO ADDITION COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 10. IT WAS ALSO SUBMITTED THAT THE ISSUE INVOLVED F OR THESE YEARS IS EVEN OTHERWISE COVERED BY THE JUDGEMENT OF THE HONBLE D ELHI HIGH COURT DATED 25.02.2013, IN ITA NOS.85/2013, 100/2013 AND 87/201 3 IN THE ASSESSEES OWN CASE FOR AYS 2001-02, 2002-03 & 2003-04, WHEREIN THE ASS ESSEE WAS HELD TO BE AN NRI AND DELETED THE ADDITION IN RESPECT OF THE ASSESSEE S BANK IN SINGAPORE HOLDING THAT IN ABSENCE OF ANY EVIDENCE OF ACCRUAL OR RECEIPT OF INCOME IN INDIA, FOREIGN BANK ACCOUNTS OF NRI CANNOT BE SUBJECTED TO TAX IN INDIA . THE RELEVANT PORTIONS OF THE JUDGEMENT OF THE HONBLE HIGH COURT READ AS UNDER:- 6. WE ARE LEFT TO CONSIDER THE ADDITION OF RS.10,5 1,20,000/- MADE U/S 68 OF THE ACT. IN SO FAR AS THE ADDITION IS CO NCERNED, THE DECISION WITH REGARD TO IT WOULD DEPEND ON WHETHER THE ASSESSEE IS REGARDED AS A RESIDENT OR NON-RESIDENT. IN CASE HE IS REGARDED AS RESIDENT, THEN, OBVIOUSLY, THIS ADDITION WOULD HAVE TO BE MADE. BUT IF HE IS REGARDED AS A NON-RESIDENT, THEN, THIS ADD ITION WILL HAVE TO BE DELETED. THIS IS EXACTLY WHAT THE TRIBUNAL HAS DONE. THE ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 7 TRIBUNAL CONSIDERED THE CASE OF THE REVENUE AS WELL AS THAT OF THE ASSESSEE AND DETERMINED THAT THE ASSESSEE WAS A NON -RESIDENT AND, THEREFORE, THE SAID ADDITION WAS DELETED. 13. IN VIEW OF THE FACT THAT THE TRIBUNAL HAS COR RECTLY DECIDED THAT THE RESPONDENT/ASSESSEE WAS NOT A RESIDENT IN INDIA IN THE YEARS IN QUESTION, IT IS AXIOMATIC THAT THE ADDITION OF RS.1 0,51,20,000/- U/S 68 WOULD HAVE TO BE DELETED BECAUSE IT WAS A TRANSF ER FROM THE RESPONDENT/ASSESSEES FOREIGN ACCOUNT TO THE DOMEST IC ACCOUNT. 11. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO RELIE D UPON VARIOUS JUDGEMENST/ORDERS OF THE HONBLE HIGH COURT/TRIBUN AL, IN THE ASSESSEES OWN CASES, IN SUPPORT OF THE ASSESSEES CASE. THEY ARE: (I) ORDER OF THE TRIBUNAL DATED 24.07.2012 FOR AYS 2001-02, 2002-03 & 2004-05 IN IT A NOS.1428, 1429 & 1430/DEL/2012 (II) ORDER OF THE TRIBUNAL DATED 21.2 .2014 FOR AYS 2004-05, 2005- 06 AND 2006-07 IN ITA NOS.2236, 2601, 2605/DEL/2013 , CO NO.165/DEL/2013, ITA NOS.2606/DEL/2013 & CO NO.166/DEL/2013 (III) JU DGEMENT OF THE HONBLE DELHI HIGH COURT DATED 27.5.2015 FOR AYS 2007-08 AN D 2008-09, IN ITA NO.715/2014, CM NO.19243/2014, ITA NOS.722/2014 & 7 23/2014 (IV) ORDER OF THE ITAT FOR AYS 2007-08 AND 2008-09 DATED 11.4.201 4 IN ITA NOS.2237,3718, 3431 & 4641/DEL/2013 (V) JUDGEMENT OF THE HONBLE D ELHI HIGH COURT DATED 23.9.2015 FOR AY 2009-10 IN ITA NO.741/2015. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 8 12. THE LD. DR THOUGH NOT LEAVING HER GROUND FAIRLY SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE J UDGEMENTS/ORDERS CITED BY THE LD. AR. NEVERTHELESS, SHE SUBMITTED THAT THE REVENUE HA S CHALLENGED THE JUDGMENT OF THE HONBLE HIGH COURT BEFORE THE HONBLE SUPREME C OURT, BOTH ON THE ISSUE OF RESIDENTIAL STATUS OF THE ASSESSEE AS WELL AS THE D ELETION OF ADDITIONS ON MERITS. SHE RELIED ON THE ORDER OF THE AO AND SUPPORTED THE SAM E. 13. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSIN G THE MATERIAL ON RECORD, PARTICULARLY, THE JUDGEMENTS/ORDERS CITED BY THE LD . AR, WE FIND THAT THE COMMON ISSUE AS MENTIONED ABOVE, INVOLVED IN THE APPEALS F OR THE AYS 2006-07 AND 2007- 08 ARE SQUARELY COVERED BY THE JUDGEMENTS/ORDERS CI TED BY THE LD. AR (SUPRA) IN FAVOUR OF THE ASSESSEE. THE LD. DR COULD NOT CONTRO VERT THE FACTUAL FINDING OF THE LD.CIT(A) THAT THE AO HAD NOT BROUGHT ON RECORD ANY EVIDENCE TO LINK THE MONEY BROUGHT INTO INDIA OR KEPT IN FOREIGN ACCOUNTS BY T HE ASSESSEE HAVE A LINK WITH ANY INDIAN DEFENCE CONTRACT PAYMENT. THE INCOME HAS NO T ACCRUED OR ARISEN IN INDIA. WE THEREFORE, UPHOLD THE ORDERS OF THE CIT(A) ON TH IS ISSUE. 14. IN SO FAR AS THE RELIANCE ON KABUL CHAWLA (SUP RA) IS CONCERNED, SINCE THE DELETION OF ADDITION HAS BEEN UPHELD, THERE IS NO N EED TO EXAMINE THE INSTANT ISSUE IN THE LIGHT OF THE DECISION ON KABUL CHAWLA (SUPRA ). ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 9 15. CONSEQUENTIAL ADDITION OF INTEREST, ON AMOUNTS OUTSTANDING IN ILORA (HSBC) ACCOUNT ON PRESUMPTIVE BASIS BY THE AO HAS B EEN RIGHTLY DELETED BY THE LD.CIT(A). THUS, THE GROUNDS OF THE REVENUE ON THI S ISSUE FOR AY 2007-08, 2008- 09, 2009-10, 2010-11, 2011-12 AND 2012-13 ARE DISMI SSED. 16. ANOTHER COMMON GROUND RAISED FOR THE AYS 2006-0 7 & 2007-08 RELATE TO THE DELETION OF ADDITIONS MADE BY THE AO ON ACCOUNT OF DOCUMENTS SEIZED FROM SHRI SURESH GULATIS RESIDENCE. 17. THE LD. CIT(A) VIDE THE IMPUGNED ORDER HELD AS UNDER:- 8.1 THE FOURTH GROUND OF APPEAL IN AYS 2006-07 & 2007-08 ARE AGAINST ADDITIONS OF RS.4,82,543/- & RS.1 ,66,07,25 7/-, RESPECTIVELY, BASED ON CERTAIN DOCUMENTS SEIZED FROM THE RESIDENC E OF SH. SURESH GULATI. THESE PAYMENTS WERE MADE BY THE APPELLANT F ROM HIS ACCOUNT WITH DEUTSCHE BANK, SINGAPORE FOR THE PURPO SE OF RENOVATIONS MADE IN SONALI FARMS. THE MATTER WAS DE CIDED IN FAVOUR OF THE APPELLANT IN THE EARLIER APPEALS, WHE REIN IT WAS HELD THAT MONEY KEPT IN HIS ACCOUNT AT SINGAPORE IS NOT TAXABLE IN INDIA. IT WAS ALSO HELD THAT REMITTANCES MADE FROM THE SAI D ACCOUNT FOR EXPENSES IN INDIA COULD NOT BE HELD AS UNEXPLAINED EXPENDITURE/INVESTMENTS. DETAILS ARE AVAILABLE IN T HE SUBMISSIONS FILED BY LD. AR REPRODUCED IN PARA-4 ABOVE. FOLLOWI NG THE EARLIER APPEAL ORDERS, THESE ADDITIONS ARE DELETED AND THES E GROUNDS OF APPEAL ARE ALLOWED. 18. IT WAS SUBMITTED BY THE LD. AR THAT THIS ISSUE RELATES TO THE PAYMENT MADE OUTSIDE INDIA FROM BANK ACCOUNT IN DEUTSCHE BANK, S INGAPORE. HE RELIED ON THE ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 10 JUDGEMENTS OF THE JURISDICTIONAL HIGH COURT ON THE VERY SAME ISSUE IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS 2006-07 & 2007-08. 19. WE FIND THAT THIS ISSUE IS ALSO SQUARELY COVERE D IN FAVOUR OF THE ASSESSEE BY THE JUDGEMENTS/ORDERS OF THE HONBLE HIGH COURT/ITA T CITED ABOVE FOR AYS 2006- 07 & 2007-08. THE LD. DR COULD NOT FACTUALLY DISPU TE THE FINDINGS OF THE LD.CIT(A) THAT THE ISSUE IS NO MORE RES INTEGRA . THE REMITTANCES WERE MADE FROM THE NRE ACCOUNT, WHICH WERE HELD BY THE ASSESSEE. THE DEPOSITS AND BALANCES IN THESE NON-RESIDENT BANK ACCOUNTS WERE HELD AS NOT T AXABLE IN INDIA VIDE PARA 13 OF THIS ORDER. HENCE REMITTANCES FROM THE SAME ACCOUN TS ARE ALSO NOT TAXABLE IN INDIA. RESPECTFULLY FOLLOWING THOSE JUDGEMENTS/ORDERS, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE ALSO AND DISMISS THIS GROUND O F REVENUE FOR A.Y. 2006-07 AND 2007-08. 20. FOR AY 2007-08 THE REVENUE HAS RAISED A GROUND THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,44,18,350/- MADE BY THE AO ON ACCOUNT OF REMITTANCE IN NRE ACCOUNT. 21. THE LD.CIT(A) HELD AS UNDER:- 8.2 THE SIXTH GROUND OF APPEAL IN AY 2007-08 IS A GAINST ADDITION OF RS.3,44,18,350/- BEING THE DIFFERENCE BETWEEN TH E BALANCE OF RS.9,81,48,350/- IN NRE ACCOUNT OF THE APPELLANT IN DEUTSCHE ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 11 BANK, INDIA AND AMOUNT OF RS.6,37,30,300/- ALREADY TAXED IN THE HANDS OF THE APPELLANT BEING ENTRIES RECORDED IN DO CUMENTS SEIZED IN 2007. THE ISSUE OF TAXABILITY OF DEPOSITS IN DEUTSC HE BANK, SINGAPORE AND TRANSFER OF FUNDS FROM THE SAID ACCOU NT TO DEUTSCHE BANK, INDIA STANDS DECIDED IN FAVOUR OF THE APPELLA NT IN THE EARLIER APPEALS, WHEREIN IT WAS HELD THAT MONEY KEPT IN HIS ACCOUNT AT SINGAPORE IS NOT TAXABLE IN INDIA. DETAILS ARE AVAI LABLE IN THE SUBMISSIONS FILED BY LD. AR REPRODUCED IN PARA-4 AB OVE. FOLLOWING THE EARLIER APPEAL ORDERS, THIS ADDITION ALSO DOES NOT SURVIVE AND IS DELETED. THIS GROUND OF APPEAL IS A LLOWED. 22. THE LD. AR MADE THE SAME SUBMISSIONS AND RELIED ON THE SAME JUDGEMENTS/ORDERS AS FOR AYS 2006-07 & 2007-08 IN S UPPORT OF THIS ISSUE ALSO. 23. WE FIND THAT THIS ISSUE IS ALSO SQUARELY COVER ED BY THE JUDGEMENTS/ORDERS OF THE HONBLE HIGH COURT/ITAT CITED ABOVE WHILE DEALI NG THE FIRST COMMON ISSUE FOR AYS 2006-07 & 2007-08. RESPECTFULLY FOLLOWING THOS E JUDGEMENTS/ORDERS, AND CONSISTENT WITH OUR VIEW ON THE ISSUE OF DEPOSITS I N FOREIGN BANK ACCOUNTS DRAWN FROM PARA 7 TO PARA 13, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE ALSO AND DISMISS THE GROUND OF REVENUE. 24. FOR AYS 2007-08 & 2008-09 THE COMMON GROUND RAI SED BY THE REVENUE IS THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITI ONS OF RS.1,15,40,179 (AY 2008- 09) AND RS.3,61,47,562 (AY: 2007-08) MADE BY THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS IN ICICI, LONDON. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 12 25. THE LD. CIT(A) HELD AS UNDER:- 8.3 THE SEVENTH GROUND OF APPEAL IN AY 2007-08 AND THE FOURTH GROUND OF APPEAL IN AY 2008-09 IS AGAINST ADDITION OFRS.3,61,47,562/- & RS.1,15,40,179/-, RESPECTIVELY , BEING DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT HELD WITH ICIC I BANK, LONDON. IT HAS BEEN HELD BY HON'BLE ITAT IN APPELLANT'S CAS E IN THE EARLIER APPEALS THAT MONEYS KEPT IN ACCOUNTS HELD BY HIM OU TSIDE INDIA COULD NOT BE TAXED AS HE IS A NON-RESIDENT. I HAVE ALSO HELD IN THE CASE OF THE APPELLANT THAT UNLESS IT CAN BE ESTABL ISHED THAT THE MONEY HELD BY THE APPELLANT IN HIS FOREIGN BANK ACC OUNTS ARE PROCEEDS OF INCOME ACCRUING OR ARISING IN INDIA OR DEEMED TO HAVE ACCRUED OR ARISEN IN INDIA IT CANNOT BE BROUGHT TO TAX. FOLLOWING THESE DECISIONS I HOLD THAT AS THE APPELLANT IS A N ON-RESIDENT AMOUNTS KEPT IN THE ACCOUNT HELD BY IN ICICI BANK L ONDON, OR FOR THAT MATTER ANY OTHER FOREIGN BANK ACCOUNT, CANNOT BE TAXED IN INDIA UNLESS IT CAN BE ESTABLISHED THAT THE MONEYS ARE PR OCEEDS OF INCOME ACCRUING OR ARISING IN INDIA OR DEEMED TO HAVE ACCR UED OR ARISEN IN INDIA. AS THERE IS NO EVIDENCE TO ESTABLISH THAT TH E MONEY KEPT IN ICICI BANK, LONDON HAS ACCRUED OR ARISEN FROM A SOU RCE IN INDIA, THESE AMOUNTS CANNOT BE BROUGHT TO TAX. I HOLD ACCO RDINGLY AND DELETE THESE ADDITIONS. THESE GROUNDS OF APPEAL ARE ALLOWED. 26. THE LD. AR MADE THE SAME SUBMISSIONS AND RELIED ON THE SAME JUDGEMENTS/ORDERS AS FOR THE FIRST COMMON ISSUE FOR AYS 2006-07 & 2007-08 IN SUPPORT OF THIS ISSUE ALSO. 27. WE FIND THAT THIS ISSUE IS ALSO SQUARELY COVER ED BY THE JUDGEMENTS/ORDERS OF THE HONBLE HIGH COURT/ITAT CITED ABOVE WHILE DEALI NG THE FIRST COMMON ISSUE FOR AYS 2006-07 & 2007-08. RESPECTFULLY FOLLOWING THOS E JUDGEMENTS/ORDERS, AND ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 13 CONSISTENT WITH OUR VIEW ON THE ISSUE OF DEPOSITS I N FOREIGN BANK ACCOUNTS DRAWN FROM PARA 7 TO PARA 13, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE ALSO AND DISMISS THE GROUND OF REVENUE. 28. THE COMMON GROUNDS FOR AYS 2008-09 & 2009-10 ST ATES THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.7,20,000/- MADE BY THE AO ON ACCOUNT OF DEEMED DIVIDEND RECEIVED. 29. THE FACTS OF THE CASE IN BRIEF ARE THAT CROWN C ORPORATION PVT. LTD., ENTERED INTO A COMMERCIAL AGREEMENT WITH THE ASSESSEE IN RE SPECT OF PROPERTY AT SOM VIHAR FOR WHICH INITIALLY AN AMOUNT OF RS.7,20,000/- WAS PAID AS SECURITY DEPOSIT TO THE ASSESSEE ON 04.03.2008. SUBSEQUENTLY, THE SAID SEC URITY DEPOSIT WAS REFUNDED ON 28.03.2009 TO CROWN CORPORATION AND THE SAME PROPER TY WAS LET OUT TO DYNATRON EXPORTS PVT. LTD., RECEIVING SECURITY OF RS.7,20,00 0/- ON 20.02.2009. ANOTHER PROPERTY, I.E., SONALI FARMS WAS LET OUT TO CROWN C ORPORATION PVT. LTD., ON 11.6.2008 AND A SECURITY DEPOSIT OF RS.50,00,000/- WAS RECEIVED. 30. THE AO HAS TREATED THESE DEPOSITS AS DEEMED DIV IDEND BEING THE AMOUNT RECEIVED BY THE ASSESSEE FROM COMPANIES IN WHICH HE HELD SUBSTANTIAL INTEREST. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 14 31. THE LD.CIT(A) DELETED THE SAID ADDITION HOLDING AS UNDER:- THE VIEW TAKEN BY THE REVENUE IS INCORRECT INASMUC H AS THIS IS NOT A CASE OF LOAN OR ADVANCE BUT THAT OF MONEY RECEIVE D FOR CONSIDERATION, I.E., SECURITY DEPOSIT AGAINST PROPE RTY LET OUT. SUCH CASES OF AMOUNTS RECEIVED FOR CONSIDERATION AND HAV ING COMMERCIAL EXPEDIENCY ARE NOT COVERED IN THE PURVIEW OF SECTIO N 2(22)(E). IT IS NOTED THAT THE SECURITY DEPOSIT WAS ALSO REFUNDED B Y THE APPELLANT ON TERMINATION/CANCELLATION OF LEASE AGREEMENT. TH E ADDITIONS MADE ARE ERRONEOUS AND ARE DELETED. THESE GROUNDS OF APPEAL ARE ALLOWED. 32. THE LD. AR SUBMITTED THAT THE DEEMED DIVIDEND A PPLIES TO LOANS OR ADVANCES IN THE NATURE OF LOANS. IT DOES NOT APPLY TO BUSIN ESS OR COMMERCIAL TRANSACTION. HENCE, THE SECURITY DEPOSIT IS NOT IN THE NATURE OF A LOAN, BUT, IS A CONSIDERATION FOR THE BENEFIT WHICH THE COMPANY HAS ACQUIRED BY GETTI NG PROPERTY ON RENT. HE PLACED RELIANCE ON THE FOLLOWING CASE LAWS:- (A) CIT V. AMBASSADOR TRAVELS (P) LTD. (2008) 318 ITR 3 76 (DEL); (B) CIT VS. CREATIVE & PRINTING (P) LTD. (2009) 318 ITR 416 (DEL) (C) SUNIL SETHI VS. DCIT (2008) 26 SOT 95 (DEL). 33. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD, WE ARE IN AGREEMENT WITH THE LD.CIT(A) THAT THE CONSIDERATION IN QUESTION RECEIVED BY THE ASSESSEE IS NOT COVERED BY SECTION 2(22)(E) OF THE ACT. THIS COMMON GROUND RAISED BY THE REVENUE FOR AYS 2008-09 & 2009-10 IS, THEREFORE, REJECTED. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 15 34. CROSS OBJECTION NO.1 FOR ALL THE ASSESSMENT YEA RS STATES THAT THE LD.CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ASSESSMENT U/S 15 3A OF THE ACT., WITHOUT THERE BEING ANY INCRIMINATING EVIDENCE/DOCUMENT FOUND DUR ING THE COURSE OF SEARCH. 35. WE FIND THAT BY APPLYING THE RATIO OF THE JUDGE MENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KABUL CHAW LA IN ITA NO.707/2014, THE ASSESSMENT IS LIABLE TO BE QUASHED, AS THE UNDISPUT ED FACT IS THAT THE ADDITIONS IN ALL THESE APPEALS ARE NOT BASED ON ANY INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH U/S 132 CONSEQUENT TO WHICH THE ASSESSMEN TS WERE FRAMED U/S 153A R.W.S. 143(3), SINCE IN THE REVENUES APPEALS THE I SSUES INVOLVED HAVE BEEN DECIDED ON MERITS IN FAVOUR OF THE ASSESSEE, TAKING INTO CO NSIDERATION THE STATUS OF THE ASSESSEE AS A NON-RESIDENT INDIAN AND THE FACT THAT THE REVENUE COULD NOT DISCOVER ANY INCRIMINATING MATERIAL DURING THE COURSE OF SEA RCH, THIS CROSS OBJECTION HAS BECOME INFRUCTUOUS AND, IS THEREFORE, DISMISSED AS SUCH. 36. GROUND NO.2 OF THE CROSS OBJECTIONS FOR AYS 200 6-07 & 2007-08 STATES THAT THE LD.CIT(A) HAS ERRED IN UPHOLDING THE CONTE NTION OF THE LD. AO THAT THE ONUS IS ON THE APPELLANT TO ESTABLISH THAT THE AMOUNT KE PT IN HSBC ACCOUNT DID NOT BELONG TO HIM. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 16 37. WE HOLD THAT SINCE THE ADDITION MADE ON ACCOUNT OF THE AMOUNT FOUND IN THE HSBC ACCOUNT OF THE ASSESSEE HAS BEEN DELETED, THIS GROUND OF THE CROSS OBJECTIONS HAS BECOME ACADEMIC AND, THEREFORE, THIS GROUND IS DISMISSED AS SUCH. 38. GROUND NO.3 OF THE CROSS OBJECTIONS FOR AYS 200 6-07 & 2007-08 STATES THAT THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE AP PELLANT HAS ADMITTED TO PAY TAX ON THE AMOUNTS KEPT IN HSBC BANK ACCOUNT AND THEREFORE ALL DUE TAXES ON THE SAID AMOUNTS ALONG WITH INTEREST THEREON ARE TO BE REALI ZED FROM THE APPELLANT DESPITE THE FACT THAT THE LD.CIT(A) HAS HIMSELF DELETED THE ADDITION RELATING TO BALANCES IN HSBC ACCOUNT. 39. AFTER HEARING THE PARTIES AND PERUSING THE MATE RIAL ON RECORD, WE SUBSCRIBE TO THE VIEW OF THE ASSESSEE THAT WHEN THE CIT(A) HA S DELETED THE ADDITIONS RELATING TO THE BALANCES IN HSBC ACCOUNT, THE ASSESSEE IS NO T LIABLE TO PAY ANY TAX NOR ANY INTEREST THEREON WHEN IT IS HELD THAT THIS AMOUNT C ANNOT BE TAXED UNDER THE ACT. THE QUESTION OF PAYING INCOME TAX ON THE SAME DOES NOT ARISE. THE AO IS DIRECTED TO REFUND THE TAX PAID IS IN EXCESS OF TAX PAYABLE ON INCOME FINALLY ASSESSED IN ACCORDANCE WITH THE APPELLATE ORDERS. HENCE THIS V IEW OF THE LD.CIT(A) IS RIGHT. THERE IS NO ESTOPPEL AGAINST LAW. THIS GROUND OF TH E ASSESSEE IS, THEREFORE, ALLOWED. ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 17 40. THE COMMON GROUNDS RAISED IN THE CROSS OBJECTIO NS OF THE ASSESSEE FOR AYS 2007-08, 2008-09, 2009-10 & 2011-12 STATES THAT: (I ) THE LD.CIT(A) HAS ERRED IN STATING ON PRESUMPTIVE BASIS THAT INTEREST ON AMOUN TS OUTSTANDING IN ILORA (HSBC) ACCOUNT, IF AT ALL, CAN BE CHARGED AT THE PR EVALENT ACTUAL RATES OR ALTERNATIVELY AT THE MEAN RATE FOR THE ENTIRE BLOCK PERIOD OF ASSESSMENT; AND (II) THAT THE LD.CIT(A) HAS ERRED IN STATING THE ABOVE DESPIT E THE FACT THAT HE HAS HIMSELF DELETED THE ADDITION RELATING TO THE AMOUNTS IN HSB C ACCOUNT AND HAS ALSO STATED THAT SINCE THE PRINCIPAL AMOUNTS CANNOT BE BROUGHT TO TAX, THE QUESTION OF TAXING INTEREST ON THOSE AMOUNTS DOES NOT ARISE. 41. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONS FOR THESE YEARS WERE MADE ON PRESUMPTIVE BASIS ON ACCOUNT OF DEEMED INTEREST OF 4% ON THE LAST KNOWN BALANCE IN THE HSBC GENEVA BANK ACCOUNT. WHE N THE PRINCIPLE AMOUNT IN THE HSBC GENEVA BANK ACCOUNT IS ITSELF NOT TAXABLE DUE TO THE NON-RESIDENT STATUS OF THE ASSESSEE, THEN, THERE CANT BE ANY ADDITION ON ACCOUNT OF INTEREST INCOME ON THE AMOUNT OF DEPOSITS IN THE SAME BANK ACCOUNT. 42. WE HAVE HEARD THE PARTIES AND PERUSED THE RELEV ANT MATERIAL ON RECORD. SINCE WE HAVE HELD THAT SINCE THE PRINCIPLE AMOUNT IN THE HSBC GENEVA BANK ACCOUNT IS ITSELF NOT TAXABLE DUE TO THE NON-RESID ENT STATUS OF THE ASSESSEE, AND AS THERE IS NO PROOF THAT THE INCOME HAS ACCRUED OR AR ISEN IN INDIA CONSEQUENTLY, THERE ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 18 CANT BE ANY ADDITION ON ACCOUNT OF INTEREST INCOME ON THE AMOUNT OF DEPOSITS IN THE SAME BANK ACCOUNT. 43. FOR AY 2009-10 THE GROUND RAISED BY THE ASSESSE E IN ITS CROSS OBJECTION IS THAT THE LD.CIT(A) HAS ERRED IN SUSTAINING THE ADDI TION OF RS.58,00,000/- ON ACCOUNT OF ALLEGED NON-UTILISATION OF CAPITAL GAINS EARNED BY THE ASSESSEE WITHIN THE STATUTORY PERIOD OF THREE YEARS. 44. THE LD.CIT(A) HELD AS UNDER:- 8.5 THE FIFTH GROUND OF APPEAL IN AY 2009-10 RELA TES TO ADDITION OF RS.58,00,000/- TO THE TAXABLE INCOME OF THE APPE LLANT, BEING AMOUNT DEPOSITED BY THE APPELLANT IN A CAPITAL GAIN S DEPOSIT ACCOUNT BUT NOT UTILIZED WITHIN THE STATUTORY PERIOD OF 3 Y EARS AS REQUIRED UNDER THE LAW. THE FACTS ARE UNDISPUTED. THE APPELL ANT DID NOT UTILIZE THE AMOUNT WITHIN THE STATUTORY PERIOD OF 3 YEARS WHICH EXPIRED ON 26.10.2008. HENCE THE AMOUNT BECOMES TAX ABLE AS THE PROVISO TO SECTION 54 COMES INTO OPERATION. THE ADD ITION HAS' BEEN CORRECTLY MADE BY THE REVENUE AND IS SUSTAINED. THI S GROUND OF APPEAL IS DISMISSED. 45. RELYING ON THE JUDGEMENT OF THE HONBLE JURISDI CTIONAL HIGH COURT IN THE CASE OF KABUL CHAWLA IN ITA NO.707/2014, IT WAS SUB MITTED BY THE LD. AR THAT NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEA RCH AND, THEREFORE, NO ADDITION COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED . IT WAS FURTHER SUBMITTED THAT THIS ISSUE WAS EXAMINED IN DETAIL IN AY 206-07 CONS EQUENT TO SEARCH DATED ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 19 28.2.2007. AFTER DUE VERIFICATION OF THE TRANSACTIO N, THE CAPITAL GAIN WAS ACCEPTED TO BE CORRECT. IT IS A MATTER OF RECORD THAT THE T OTAL EXPENDITURE INCURRED BY THE ASSESSEE FOR CONSTRUCTION OF NEW HOUSE PROPERTY AT SONALI FARMS (AT WESTEND GREENS, NH-8) FAR EXCEEDED THE CAPITAL GAINS OF RS. 1.58 CRORES ACCRUED ON SALE OF PROPERTY AT COLABA, MUMBAI. A COPY OF THE CHART SH OWING DETAILS OF EXPENDITURE INCURRED WAS ATTACHED TO THE WRITTEN STATEMENT. TH E ASSESSEE RELIED ON THE FOLLOWING DECISIONS FOR THE PROPOSITION THAT THE EX PENDITURE TO QUALIFY FOR DEDUCTION U/S 54 NEED NOT BE SOURCED OUT OF THE SAL E PROCEEDS OF THE PROPERTY SOLD:- (I) KAPIL KUMAR AGARWAL V. ACIT (2014) 63 SOT 22 (DELHI -TRIB.) (II) SUNIL SACHDEVA V. ACIT (2013) 56 SOT 321 (DELHI-TRI B.) (III) ITO V. K.C. GOPALAN (1999) 107 TAXMAN 591 (KER) (IV) MUNEER KHAN V. ITO (2010) 41 SOT 504 (HYD. ITAT) (V) LALIT MARDA VS. ACIT (2008) 23 SOT 250 (KOL) (VI) DCIT V. GAYLORD INVESTMENTS & TRADING CO. (P) LTD. (2008) 21 SOT 407 (MUM). 46. THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 47. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. SINCE THE TOTAL EXPENDITURE INCURRED BY THE ASSESSEE FOR CONSTRUCTION OF NEW ITA NOS.4802 TO 4806/DEL/2015 CO NOS.266 TO 269/DEL/2015 20 HOUSE PROPERTY AT SONALI FARMS (AT WESTEND GREENS, NH-8) FAR EXCEEDED THE CAPITAL GAINS OF RS.1.58 CRORES ACCRUED ON SALE OF PROPERTY AT COLABA, MUMBAI, WE ARE OF THE OPINION THAT THE AMOUNT OF RS.58,00,000/ - LYING IN THE ACCOUNT OF THE ASSESSEE SHOULD HAVE BEEN DEEMED TO HAVE UTILIZED F OR ACQUIRING THE NEW ASSET AND THE REVENUE OUGHT NOT TO HAVE MADE THE ADDITION ON THIS COUNT. THIS ADDITION IS, THEREFORE, DELETED. 48. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A RE DISMISSED AND THE CROSS OBJECTIONS OF THE ASSESSEE ARE PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.02.201 6. SD/- SD/- [SUDHANSHU SRIVASTAVA] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 22 ND FEBRUARY, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.