ACIT, New Delhi V. Sh Kamal Kishore Chaurasia, New Delhi

ITA 1006/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6773 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 20-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: SATYAJIT GO EL CAS
• Keywords: Search and seizure; Document seized; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO. 1006/DEL/2014 (ASSESSMENT YEAR 2007-08) A N D CO NO. 5/DEL/2016 (ASSESSMENT YEAR 2007-08) APPELLANT BY : SH. S. S. RANA, CIT, DR RESPONDENT BY : SH. R. S. SINGHVI & SH. SATYAJIT GO EL, CAS. DATE OF HEARING : 03.02.2017 DATE OF PRONOUNCEMENT: 08.02.2017 ACIT CENTRAL CIRCLE-21, NEW DELHI (APPELLANT) VS. KAMAL KISHORE CHAURASIA 575, DOUBLE STOREY FLATS, RAJINDRA NAGAR, NEW DELHI GIR/PAN : ABJPC8088J (RESPONDENT) KAMAL KISHORE CHAURASIA 575, DOUBLE STOREY FLATS, RAJINDRA NAGAR, NEW DELHI GIR/PAN : ABJPC8088J (APPELLANT) VS. ACIT CENTRAL CIRCLE-21, NEW DELHI (RESPONDENT) ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 2 OF 7 ORDER PER BEENA A. PILLAI, JM: 1. THESE ARE CROSS APPEALS FILED BY REVENUE AS WELL AS ASSESSEE AGAINST ORDER DATED 21.11.2013 PASSED BY L D. CIT(A)-12, NEW DELHI, FOR ASSESSMENT YEAR 2007-08 O N THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 1006/DEL/2014 1. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITI ON OF RS. 7,62,92,143/- MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT. 2. (A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. CO NO. 5/DEL/2016 1(I). THAT ADDITION OF RS. 7,62,92,1437- BASED ON DOCUMENTS FOUND AT THE PREMISES OF THIRD PARTY IS N OT SUSTAINABLE IN THE ABSENCE OF RECORDING OF SATISFAC TION BY THE ASSESSING OFFICER OF SEARCH PARTY AND THE ASSESSING OFFICER OF THE ASSESSEE IN TERMS OF PROVISIONS OF SEC. 153C OF THE INCOME TAX ACT, 1961 . (II) THAT EVEN OTHERWISE, THE SAID DOCUMENT DOES N OT BELONG TO THE ASSESSEE AND THERE COULD BE NO ASSESSMENT ON THE BASIS OF SAME. ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 3 OF 7 2. THAT ORDERS OF LOWER AUTHORITIES ARE ILLE GAL AND WITHOUT JURISDICTION. 2. LD.AR SUBMITTED THAT ISSUE RAISED IN CROSS OBJECTI ON BY ASSESSEE IS A LEGAL ISSUE PERTAINING TO JURISDICTIO N OF ASSESSING OFFICER. HE SUBMITTED THAT THE ADDITIONS ARE BASED ON DOCUMENTS FOUND AT THE PREMISES OF THIRD-PARTY A ND IN THE ABSENCE OF ANY SATISFACTION BEING RECORDED UNDER SE CTION 153C OF THE ACT, BY ASSESSING OFFICER OF SEARCHED P ARTY, NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE . SINCE THIS ISSUE GOES TO THE ROOT OF ASSESSMENT PROCEEDINGS, WE ARE INCLINED TO DEAL WITH CROSS OBJ ECTION RAISED BY ASSESSEE FIRST. 3. BRIEF FACTS OF THE CASE AS OBSERVED FROM ASSESSMEN T ORDER ARE AS UNDER: ASSESSEE DERIVED ITS INCOME FROM HOUSE PROPERTY, BUSINESS, CAPITAL GAINS AND OTHER SOURCES DURING TH E YEAR UNDER CONSIDERATION. SEARCH AND SEIZURE OPERATION U NDER SECTION 132 OF THE ACT WAS UNDERTAKEN IN THE CASE O F ASSESSEE ON 29.04.2008 AND NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 15.03.2010. ASSESSING OFFICER COMPLETED T HE ASSESSMENT ON 29.12.2010, ON AN INCOME OF RS.19,86,22,400/-. LATER ON ASSESSEES CASE WAS CEN TRALISED PURSUANT TO SEARCH CONDUCTED ON LALIT MODI GROUP ON 19.06.2009, A NOTICE UNDER SECTION 153A WAS AGAIN I SSUED TO ASSESSEE. IN RESPONSE TO NOTICE, RETURN WAS FILED D ECLARING ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 4 OF 7 INCOME OF RS.12,20,78,260/-. ASSESSING OFFICER MADE ADDITION BASED ON THE BASIS OF ANNEXURE A-1 FOUND I N SEARCH AND SEIZURE ACTION CONDUCTED UNDER SECTION 132 IN C ASE OF LALIT MODI GROUP ON 19.06.2009. ASSESSING OFFICER C OMPLETED THE ASSESSMENT ON 29.12.2011, UNDER SECTION 153A RE AD WITH SECTION 143 (3) OF THE ACT. 4. LD. AR SUBMITTED THAT ALL THE PROCEEDINGS INITIATE D IN CASE OF ASSESSEE ARE BASED ON INCRIMINATING DOCUMEN TS FOUND FROM THE PREMISES OF LALIT MODI. HE HAS SUBMITTED T HAT AS THERE IS NO SATISFACTION RECORDED THE ASSESSING OFF ICER OF SEARCHED PERSON IN RESPECT OF THE INCRIMINATING MAT ERIAL RELATING TO THE OTHER PERSON I.E ASSESSEE, THEREFOR E, THE PROCEEDINGS INITIATED IN THE CASE OF THE ASSESSEE I S BEYOND JURISDICTION. 5. LD. DR OPPOSED THE ARGUMENT ADVANCED BY LD. AR AND SUBMITTED THAT ASSESSMENT IN CASE OF ASSESSEE HAS B EEN MADE BY ASSESSING OFFICER UNDER SECTION 153A AS THE ASSESSEE WAS ALSO SEARCHED. HE PLACED HIS RELIANCE ON THE DECISION OF HONBLE KERLA HIGH COURT IN THE CASE OF E. N. GOPAL KUMAR VS. CIT REPORTED IN (2016) 75 TAXMANN.COM.215. HE ALSO SUBMITTED THAT THE CROSS OBJECTION RAISED BY THE ASSESSEE DOES NOT ARISE FRO M THE ORDER OF LD. CIT(A) AND THEREFORE, THE SAME MAY BE DISMIS SED 6. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH T HE SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 5 OF 7 7. WE DO NOT AGREE WITH THE SUBMISSIONS ADVANCED BY L D. AR AS ASSESSING OFFICER HAS COMPLETED THE ASSESSMEN T UNDER SECTION 153A READ WITH SECTION 143(3). THE REQUIREM ENT OF RECORDING SATISFACTION IN THE CASE OF SEARCHED PERS ON AS LAID DOWN BY HONBLE COURTS IS WHEN THE NOTICE IS ISSUED UNDER SECTION 153C. EVEN OTHERWISE, WE AGREE WITH THE OBJ ECTION RAISED BY LD. DR FOR CONSIDERING THE CROSS OBJECTIO N. LD. CIT(A) HAS NOT GIVEN ANY FINDING IN THIS RESPECT. T HEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE IS INFRAC TUOUS. WE ACCORDINGLY DISMISS THE CROSS OBJECTION RAISED B Y THE ASSESSEE. ITA NO. 1006/DEL/14 8. THE ISSUES RAISED BY THE REVENUE ARE IN RESPECT OF THE ADDITION THAT HAS BEEN DELETED ON ACCOUNT OF UNDISC LOSED INVESTMENT. 9. LD. DR SUBMITTED THAT VARIOUS LOOSE SHEETS WERE FO UND FROM THE POSSESSION OF THIRD-PARTY WHICH HAS BEEN B ROUGHT TO THE KNOWLEDGE OF ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT THE EXPLANATION OFFE RED BY ASSESSEE WAS NOT ACCEPTED BECAUSE OF WHICH THE ADDI TION WAS MADE BY LD. AO. HE PLACED HIS RELIANCE UPON OBSERVA TIONS THE ORDER OF ASSESSING OFFICER. 10. ON THE CONTRARY LD. AR SUBMITTED THAT THE MATERIAL S OBTAINED FROM PREMISES OF A THIRD-PARTY COULD NOT B E RELIED ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 6 OF 7 UPON ESPECIALLY WHEN THIRD-PARTY HIMSELF HAS GIVEN STATEMENT CLARIFYING THAT, NAME OF THE ASSESSEE, DOES NOT APP EAR ON THE SEIZED DOCUMENTS AND THAT THESE DOCUMENTS DO NOT RE PRESENT ANY TRANSACTION OF PROPERTY OR OTHERWISE WITH ASSES SEE IN ANY MANNER WHATSOEVER. HE SUBMITTED THAT THE OWNERSHIP OF TRANSACTION IN RESPECT OF THE DOCUMENTS RECOVERED F ROM THE POSSESSION AND CONTROL OF 3 RD PARTIES SHOULD BE ESTABLISHED BEFORE MAKING ANY ADDITION IN THE HANDS OF ASSESSEE . LD. AR PLACED HIS RELIANCE UPON THE OBSERVATIONS AND FINDI NGS GIVEN BY LD. CIT (A). 11. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH T HE PARTIES IN THE LIGHT OF THE RECORDS PLACED BEFORE U S. IT IS OBSERVED THAT ASSESSING OFFICER HAS MADE ADDITION M ERELY ON THE BASIS OF SURMISES AND CONJUNCTURES AND HAS REJE CTED THE EXPLANATION GIVEN BY ASSESSEE WITHOUT THERE BEING A NY MATERIAL CONTRARY TO THAT ON RECORD. IT IS ALSO OBS ERVED THAT ASSESSING OFFICER HAS NOT EVEN CONSIDERED THE STATE MENT GIVEN BY LALIT MODI FROM WHOSE PREMISES THE ALLEGED DOCUMENTS WERE OBTAINED. 12. LD. CIT(A) HAS DEALT WITH THE ADDITION MADE BY ASSESSING OFFICER IN DETAIL AND HAS ANALYZED THE IS SUE ON MERITS THREADBARE. A PERUSAL OF ANNEXURE-I, SHOWS T HAT NOWHERE ASSESSEES NAME APPEARS. LD. CIT (A) HAS CO RRECTLY HELD THAT THIS PIECE OF PAPER (ANNEXURE-I) TO BE A DUMB DOCUMENT. WE DO NOT FIND ANY INFIRMITY IN THE FINDI NGS OF LD. ITA NO. 1006/DEL/2014 & CO NO. 5/DEL/2016 (AY 2007 -08) PAGE 7 OF 7 CIT(A) AND UPHOLD THE SAME. ACCORDINGLY GROUND RAIS ED BY THE REVENUE STANDS DISMISSED. 13. GROUND NO. 2 RAISED BY THE REVENUES GENERAL IN NA TURE AND DOES NOT REQUIRE ANY ADJUDICATION. IN THE RESULT APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH FEBRUARY, 2017. SD/- SD/- (N. K. SAINI) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 08.02.2017 @M!T COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI)