Anjoo Kashyap, New Delhi V. DCIT, New Delhi

ITA 1209/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7459 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A MISRA
• Assessee Lawyers: R K GUPTA SAMIT GOEL CAS
• Keywords: Gift; Search and seizure
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A, NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.1209 /DEL/2013 ASSESSMENT YEAR : 2005-06 ANJOO KASHYAP, VS. DCIT, CC-17, B-7, SOAMI NAGAR, NEW DELHI NEW DELHI-110 017 GIR / PAN:AOQPK6742R (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI R.K.GUPTA, SAMIT GOEL, CAS RESPONDENT BY : SHRI A MISRA, CIT DR ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST OR DER OF LD. CIT(A) DATED 31.12.2012. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: I) THAT UNDER THE FACTS AND CIRCUMSTANCES IN SEARC H ASSTT. U/S 153A, ADDITION CAN BE MADE ONLY ON THE BASIS OF INC RIMINATING SEIZED MATERIAL. HENCE, BOTH THE ADDITIONS AS PER G.N.2 & 3 BELOW, SINCE, NOT EMANATING FROM SEARCH SEIZED MATERIAL, THEREFOR E, SHOULD BE DELETED. II) THAT THE LOWER AUTHORITIES GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN MAKING AND SUSTAINING AD-HOC ADDITION OF RS.1 LAC BY ESTIMATING FOREIGN TRAVELING EXPENSES. III) THAT UNDER THE FACTS AND CIRCUMSTANCES, THE AD DITION OF RS.5,72,300/- AS UNEXPLAINED CASH DEPOSITED IN BANK ON 05.01.2005 IS ABSOLUTELY ILLEGAL, UNJUSTIFIED AND UNSUSTAINABLE I N LAW AS WELL AS ON MERITS. 2 ITA NO.1209/DEL/2013 2. AT THE OUTSET, LD. A.R. SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REOPENED DUE TO SEARCH AND SEIZURE OPERATION ON 19.02.2008 AND THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 153A AND TWO ADDITIONS RELATING TO CASH DEPOSITS IN BANK AND ON ACCOUNT OF FOREIGN TRAVEL EXPENSES WERE MADE. IT WAS SUBMITTED THAT THESE TW O ADDITIONS WERE NOT BASED ON SEIZED MATERIAL AND ADMITTEDLY, THE ASSESS MENT IN THIS CASE STOOD COMPLETED AS ON THE DATE OF SEARCH AND, THERE FORE, KEEPING IN VIEW A NUMBER OF DECISIONS CITED BY HIM IN HIS SYNOPSIS AT SL. NO.1-5, THE ADDITION COULD NOT HAVE BEEN MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. LD. A.R. INVITED OUR ATTENTION TO PAPER BOOK 37 WHERE A COPY OF PETITION FOR ADMISSION OF ADDITIONAL GROUND WAS PLACED. THE ADDITIONAL GROUND OF APPEAL IS REPRODUCED AS UNDER: THAT UNDER THE FACTS AND CIRCUMSTANCES IN SEARCH A SSESSMENT U/S 153A ADDITION CAN BE MADE ONLY ON THE BASIS OF INCR IMINATING SEIZED MATERIAL. WHILE ARGUING GROUND NO.2 AND 3, BELOW S INCE NOT EMANATING FROM SUCH SEIZED MATERIAL, THEREFORE SHOU LD BE DELETED. 2.1 IT WAS FURTHER SUBMITTED THAT ADMITTEDLY THE AD DITIONS ARE NOT BASED UPON ANY INCRIMINATING MATERIAL; THEREFORE, T HE ADDITION ITSELF WERE BAD IN LAW. RELIANCE IN THIS RESPECT WAS PLACED ON VARIOUS CASE LAWS. LD. A.R. HAS ALSO RELIED UPON OTHER CASE LAWS AS ME NTIONED IN HIS SYNOPSIS. FOR THE SAKE OF CONVENIENCE, FEW CASE LA WS OF THEM ARE MENTIONED BELOW: I) JAI STEEL (INDIA) VS ACIT 259 CTR (RAJ.)281 II) CIT VS MURLI AGRO PRODUCTS LTD. I.T.A.NO. 36 O F 2009 (BOM.) HIGH COURT ORDER DTD 29.10.2010. III) CIT VS CHETAN DASS LACHMAN DASS 77 DTR (DEL.) 25. IV) CIT VS ANIL KUMAR BHATIA 352 ITR 493 (DEL.) 3 ITA NO.1209/DEL/2013 V) SANJAY AGGARWAL I.T.A.NO. 3184/DEL/2013 VI) PACL INDIA LTD. I.T.A.NO. 2637/DEL/2010 VII) KUSUM GUPTA I.T.A.NO. 3312/DEL.2009 VIII) MGF AUTOMOBILES LTD. I.T.A.NO. 4212/DEL/2011 IX) VEE GEE INDUSTRIAL ENTERPRISES I.T.A.NO. 1/DEL/ 2011 X) ASHA KATARIA I.T.A.NO. 3105-3107/DEL/2011 XI) MERIGOLD MERCHANDISE (P) LTD. I.T.A.NO. 2666/DE L/2013 XII) PRADEEP KUMAR I.T.A.NO. 4016/DEL/2011 XIII) ACIT VS MANOJ NARAIN AGGARWAL 99DTR (DEL.) (T RIB) 279 XIV) PARIVAR PROPERTIES (P) LTD. I.T.A.NO. 1011/DEL /2013 XV) INLAY MARKETING (P) LTD. I.T.A.NO. 4200/DEL/201 2 XVI) V K FISCAL I.T.A.NO. 5460/DEL/2013 XVII) PARSVNATH DEVLEOPERS LTD. VS DCIT 5188/DEL/20 13 XVIII) DCM SHRIRAM INDUSTRIS LTD. I.T.A.NO. 1648/DE L/2013. 3. LD. D.R. IMMEDIATELY INTERRUPTED AND INVITED OU R ATTENTION TO THE FACT THAT ASSESSEE HAD TAKEN THIS LEGAL GROUND BEFORE LD. CIT(A) BUT IT WAS NOT PRESSED AND, THEREFORE, LD. CIT(A) HAD D ISMISSED IT AND IN VIEW OF THIS, THE ASSESSEE SHOULD NOT BE PERMITTED TO TAKE THIS AS ADDITIONAL GROUND. 4. LD. A.R. IN REPLY SUBMITTED THAT THE GROUND RAI SED BEFORE LD. CIT(A) WAS DISMISSED AS NOT PRESSED WHICH MEANS TH AT IT WAS DISMISSED BY LD. CIT(A) THEREFORE ASSESSEE WAS VERY WELL WITH IN HIS RIGHT TO RAISE THIS GROUND BEFORE THE HONBLE TRIBUNAL. MOREOVER, IT WAS SUBMITTED THAT IT IS A LEGAL ISSUE AND IT CAN BE RAISED AT AN Y POINT OF TIME. RELIANCE IN THIS RESPECT WAS PLACED ON THE CASE OF NTPC 229 ITR 383 (SC). AS REGARDS THE MERITS OF THE CASE, LD. A.R. SUBMITTED THAT THE A.O. HAD MADE ADDITION OF RS.1 LAC ON ACCOUNT OF ESTIMATED F OREIGN TRAVELLING EXPENSES SIMPLY ON THE BASIS THAT COPY OF OLD PASSP ORT WAS NOT FILED WHICH WAS TOTALLY BASED UPON SURMISES AND CONJECTUR ES. IT WAS FURTHER 4 ITA NO.1209/DEL/2013 SUBMITTED THAT THE ADDITION IN THE CASE OF HUSBAND OF THE ASSESSEE WAS ALREADY MADE ON ACCOUNT OF TRAVEL EXPENSES AND HE H AD WITHDRAWN THE AMOUNT FOR FOREIGN TRAVEL EXPENSES AND, THEREFORE, AGAIN ADDITION IN THE CASE OF THE ASSESSEE TANTAMOUNT TO DOUBLE ADDITION AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO THE COPY OF ASSESSMENT ORD ER IN THE CASE OF HUSBAND OF THE ASSESSEE WHICH WAS PLACED AT PAPER B OOK PAGES 3-5. REGARDING THE ADDITION OF RS.5,72,300/-, LD. A.R. S UBMITTED THAT THE AMOUNT WAS DEPOSITED OUT OF SHAGUN COLLECTED ON THE OCCASION OF MARRIAGE OF HIS SON AND IN THIS RESPECT, OUR ATTENT ION WAS INVITED TO PAPER BOOK PAGE 16 WHERE A COPY OF INVITATION CARD WAS PL ACED. WE WERE ALSO TAKEN TO PAGES 18-27 WHERE COMPLETE LIST OF PERSONS WHO HAD GIVEN SHAGUN WERE PLACED. SPECIFIC ATTENTION WAS INVITED TO PAGE 27 WHERE IT WAS MENTIONED THAT TWO GIFTS WERE RECEIVED THROUGH CHEQUES FOR WHICH NO ADDITION WAS MADE. IT WAS SUBMITTED THAT DETAIL S WERE SUBMITTED BEFORE AUTHORITIES BELOW BUT THEY HAVE REJECTED THE CLAIM WITHOUT ASSIGNING ANY SOUND OR LEGAL REASON. IT WAS FURTHE R SUBMITTED THAT MARRIAGE EXPENSES AS INCURRED BY ASSESSEE WERE ACCE PTED WHEREAS THE GIFTS RECEIVED ON THE OCCASION OF SAME MARRIAGE WER E NOT ACCEPTED WHICH IS NOT JUSTIFIED. 5. LD. D.R. ON THE OTHER HAND SUBMITTED THAT SIMIL AR ADDITIONS ON ACCOUNT OF ESTIMATED FOREIGN TOUR EXPENSES WERE MAD E IN EARLIER YEARS ALSO AND ASSESSEE HAD NOT FILED APPEAL AGAINST THOS E ADDITIONS, THEREFORE, THE ASSESSEE HAD ADMITTED FOR SUCH ADDITIONS THEREF ORE, THE ACTION OF LD. CIT(A) SHOULD BE CONFIRMED. ON THE ADDITIONS OF CA SH DEPOSITS, LD. D.R. SUBMITTED THAT MARRIAGE OF SON OF ASSESSEE TOO K PLACE ON 5 ITA NO.1209/DEL/2013 14.12.2004 WHEREAS THE AMOUNT WAS DEPOSITED IN BANK ON 05.01.2005 AND FURTHER SUBMITTED THAT LIST CONTAINED ONLY NAME S, WHICH WAS NOT VERIFIABLE. THEREFORE, THE ACTION OF LD. CIT(A) SH OULD BE UPHELD. 6. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. FIRSTS OF ALL REGARDING ADMISSIO N OF ADDITIONAL GROUND OF APPEAL, WE FIND THAT LD. A.R. THOUGH HAD RAISED THE ISSUE BEFORE LD. CIT(A) BUT IT WAS NOT PRESSED AS LD. A.R. HAS STATE D THAT AT THAT TIME, THE VIEW WAS THAT SUCH GROUND WAS NOT MAINTAINABLE. WE FURTHER FIND THAT THE GROUND RAISED BY ASSESSEE IS A LEGAL GROUND WHI CH GOES TO THE ROOT OF ASSESSMENT ORDER ITSELF AND THEREFORE, KEEPING IN V IEW THE CASE LAW OF NTPC AS RELIED UPON BY LD. A.R., THE SAME NEEDS TO BE ACCEPTED AND WE ADMIT THE SAME AND FIRST ADJUDICATE ON IT. WE FIND THAT THE ADDITION WAS MADE WITHOUT REFERRING TO ANY INCRIMINATING MATERIA L AND LD. D.R. ALSO DID NOT BRING TO OUR NOTICE THE EXISTENCE OF ANY IN CRIMINATING MATERIAL ON THE BASIS OF WHICH ADDITIONS WERE MADE. IT IS AN A DMITTED FACT THAT ASSESSMENT IN THE PRESENT CASE WAS NOT PENDING AND STOOD COMPLETED. VARIOUS CASE LAWS AND VARIOUS ORDERS OF ITAT AS REL IED UPON BY LD. A.R. HOLD THAT IN CASE OF COMPLETED ASSESSMENT THE ADDITION U/S 153A CAN ONLY BE MADE ON THE BASIS OF INCRIMINATING MATE RIAL FOUND DURING SEARCH. LD. D.R. COULD NOT BRING ANY CONTRARY DECI SION BY WAY OF ANY JUDICIAL PRONOUNCEMENT IN THIS RESPECT. WE HOLD TH AT IN THE PRESENT CASE, ADDITION IN THE ABSENCE OF INCRIMINATING MATERIAL I S LEGALLY INVALID. THEREFORE, WE HELD THAT U/S 153A ADDITIONS IN THE C ASE OF COMPLETED ASSESSMENTS CAN ONLY BE MADE IF SO THE ADDITIONS AR E BASED UPON INCRIMINATING DOCUMENTS. SINCE ADDITIONS WERE NOT BASED UPON 6 ITA NO.1209/DEL/2013 INCRIMINATING DOCUMENTS, THEREFORE, ADDITIONS WERE NOT VALIDLY MADE. SINCE WE HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF ASSESSEE, THEREFORE, WE ARE NOT ADJUDICATING ON MERITS. 7. IN VIEW OF ABOVE, APPEAL FILED BY THE ASSESSEE IS ALLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DEC., 2014. SD./- SD./- (I. C. SUDHIR ) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 19 TH DEC., 2014 SP COPY FORWARDED TO:- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A)-, NEW DELHI. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).