Smt Anila Gupta, Faridabad V. Income Tax Officer, Faridabad

ITA 1230/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7596 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 18-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI O.P. KANT ITA NO. 1230 /DEL/201 5 ASSESSMENT YEAR: 200 8 - 09 ANILA GUPTA, VS. INCOME - TAX OFFICER, HOUSE NO. 927, SECTOR - 15, WARD - 1(2), FARIDABAD. FARIDABAD. (PAN: A GZPG3954E) (APPELLANT) (RESPONDENT) ITA NO. 1231/DEL/2015 ASSESSMENT YEAR: 2008 - 09 SHANTI SWAROOP GUPTA, VS. INCOME - TAX OFFICER, HOUSE NO. 927, SECTOR - 15, WARD - 1(5 ), FARIDABAD. FARIDABAD. (PAN: ABDPG8698Q) (APPELLANT) (RESPONDENT) ITA NO. 1232/DEL/2015 ASSESSMENT YEAR: 2008 - 09 SHIV KUMAR GUPTA, VS. INCOME - TAX OFFICER, HOUSE NO. 927, SECTOR - 15, WARD - 1(4), FARIDABAD. FARIDAB AD. (PAN: ABDPG6997B) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI C. S. ANAND, A DV. DEPARTM ENT BY: SMT. RISHPAL BEDI, JCIT DATE OF HEARING : 18 . 0 4 .201 6 DATE OF PRONOUNCEMENT: 26 : 0 5 .201 6 ORDER PER I.C. SUDHIR : JUDICIAL MEMBER IN ALL THESE APPEALS PREFERRED BY THE ABOVE NAMED ASSESSEES, THE FIRST APPELLATE ORDER HAS BEEN QUESTIONED ON THE SOLE GROUND THAT THE LEARNED CIT(APPEALS) HAS ERRED IN UPHOLDING THE ADDITION OF RS.10,98,400 ON 2 ACCOUNT OF UNDISCLOSED CASH PAYMENT FOR 1/3 RD SHARE OF PROPERTY BOUGHT FROM AEZ GROUP . 2. BESIDES ABOVE, THE ASSESSEES HAVE ALSO MOVED APPLICATION FOR PERMISSION TO RAISE FOLLOWING ADDITIONAL GROUND S : 1 ) IN THE CASE OF SMT. ANILA GUPTA, FOLLOWING ADDITIONAL GROUNDS HAVE BEEN RAISED: A) THAT THE LEARNED ITO, WARD - 1(5), FARIDABAD HAS WRONGLY ASSUMED JURISDICTION TO INITIATE PROCEEDINGS UNDER SEC. 147 FOR ASSESSMENT YEAR 2008 - 09 IN AS MUCH AS (1) HE IS NOT THE ASSESSING OFFICER OF THE ASSESSEE (II) ON THE FACTS OF THE CASE THE PROVIS I ONS OF SEC. 153C WERE APPLICABLE, WHICH SUPERSEDES THE APPLICABILITY OF THE PROVIS I ONS OF SEC. 147 AND 148 AND (III) HE WAS NOT HAVING MATERIAL/DOCUMENTARY EVIDENCES SUGGESTING ANY PAYMENT IN CASH, OVER AND ABOVE, THE DISCLOSED INVESTMENT. B) THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED ITO, WARD - 1(2), FARIDABAD UNDER SEC. 143(3)/148 ON 15 - 2 - 2014 ON THE BASIS OF PROCEEDINGS INITIATED UNDER SEC. 147 BY THE OFFICER, WHO WAS NO T THE ASSESSING OFFICER OF THE ASSESSEE, BEING ILLEGAL, DESERVES TO BE QUASHED. 2. IN THE CASE OF SHRI SHANTI SWAROOP GUPTA, FOLLOWING ADDITIONAL GROUND HAS BEEN RAISED: A) THAT THE LEARNED ASSESSING OFFICER HAD WRONGLY ASSUMED JURISDICTION TO INITIATE PR OCEEDINGS UNDER SEC. 147 FOR ASSESSMENT YEAR 2008 - 09, BECAUSE ON THE FACTS OF THE CASE, PROVISIONS OF SECTION 153C WERE APPLICABLE, WHICH SUPERCEDES 3 THE APPLICABILITY OF THE PROVISIONS OF SECTION 147 AND 148 OF THE ACT. 3. IN THE CASE OF SHIV KUMAR GUPTA, THE FOLLOWING ADDITIONAL GROUNDS HAVE BEEN RAISED: A) THAT THE LEARNED ITO, WARD - 1(5), FARIDABAD HAS WRONGLY ASSUMED JURISDICTION TO INITIATE PROCEEDINGS UNDER SEC. 147 FOR ASSESSMENT YEAR 2008 - 09 IN AS MUCH AS (1) HE IS NOT THE ASSESSING OFFICER OF THE ASSESSEE (II) ON THE FACTS OF THE CASE THE PROVISIONS OF SEC. 153C WERE APPLICABLE, WHICH SUPERSEDES THE APPLICABILITY OF THE PROVISIONS OF SEC. 147 AND 148 AND (III) HE WAS NOT HAVING MATERIAL/DOCUMENTARY EVIDENCES SUGGESTING ANY PAYMENT IN CASH, OVER AND ABOVE, THE DISCLOSED INVESTMENT. B) THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED ITO, WARD - 1(2), FARIDABAD UNDER SEC. 143(3)/148 ON 13 - 2 - 2014 ON THE BASIS OF PROCEEDINGS INITIATED UNDER SEC. 147 BY THE OFFICER, WHO WAS NOT THE ASSESSING OFFICER OF THE ASSESSEE, BEING ILLEGAL, DESERVES TO BE QUASHED 3. IN SUPPORT OF THE ABOVE APPLICATIONS FOR PERMISSION TO RAISE THE ABOVE ADDITIONAL GROUNDS, THE LEARNED AR SUBMITTED THAT THE ISSUES RAISED THEREIN ARE LEGAL IN NATURE AND NO FRESH MATERIAL OUTSIDE THE REC ORD IS REQUIRED TO BE CONSIDERED FOR THE ADJUDICATION OF THE SAME. HE SUBMITTED FURTHER THAT THE ISSUES RAISED IN THE ABOVE ADDITIONAL GROUNDS GO TO THE ROOT OF THE MATTER AS THE VERY ASSUMPTION OF JURISDICTION OF THE ASSESSING OFFICER HAS BEEN QUESTIONED. 4 4. THE LEARNED SENIOR DR OPPOSED THE APPLICATION WITH THE SUBMISSION THAT NO SUCH ISSUES WERE RAISED BEFORE THE AUTHORITIES BELOW. 5. IN THE REJOINDER, THE LEARNED AR SUBMITTED THAT BEFORE THE LEARNED CIT(APPEALS), THE ASSESSEES HAD QUESTIONED THE VALIDI TY OF ASSESSMENT ORDER FRAMED UNDER SEC. 147 READ WITH 143(3) OF THE INCOME - TAX ACT, 1961 BUT COULD NOT SUCCEED. 6. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT THE ISSUES RAISED IN THE PROPOSED ADDITIONAL GROUNDS ARE LEGAL IN NATURE, WHICH GO TO THE RO OT OF THE MATTER QUESTIONING THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER TO FRAME THE ASSESSMENT IN QUESTION AND ADJUDICATION OF THE SAME DOES NOT REQUIRE CONSIDERATION OF FRESH MATERIAL OUTSIDE THE RECORD. WE THUS ALLOW THE ASSESSEES/APPLICANT S TO RAISE THE ABOVE ADDITIONAL GROUNDS FOR ADJUDICATION OF THE BENCH. THE APPLICATIONS ARE ACCORDINGLY ALLOWED. 7 . ON THE MERIT OF ADDITIONS IN QUESTION, WE A FTER CONSIDERING THE ARGUMENTS ADVANCED BY THE PARTIES, FIND THAT A SEARCH AND SEIZURE OPERATI ON WAS CONDUCTED ON AEZ GROUP ON 17.8.2011 BY THE INVESTIGATION WING WHEREIN COMPUTER HARD DISCS WERE SEIZED. IT WAS FOUND THAT AEZ GROUP WAS CONSTRUCTING VARIOUS PROJECTS AND SOLD COMMERCIAL SPACE TO DIFFERENT PARTIES BY RECEIVING PART PAYMENT IN CASH. SU BSEQUENTLY, THIS INFORMATION WAS 5 RECEIVED BY THE ASSESSING OFFICER FROM ADIT(INV.) REGARDING PURCHASE OF COMMERCIAL SPACE BY THE ASSESSEES AT G - 4B FOR RS. 62,95,200. ON THE BASIS OF SAID INFORMATION, THE ASSESSING OFFICER INITIATED REOPENING PROCEEDINGS UN DER SEC. 147 OF THE ACT AFTER RECORDING REASONS TO BELIEF THAT THERE WAS ESCAPEMENT OF ASSESSMENT OF TAXABLE INCOME. NOTICE UNDER SEC. 148 OF THE ACT WAS ISSUED ON THE ASSESSEE AND ASSESSMENTS UNDER SEC. 147/143(3) IN QUESTION WERE FRAMED. IN THE PRESENT C ASE BEFORE US, IT IS AN ADMITTED FACT, AS ALSO EVIDENT FROM THE REASONS RECORDED AND THE ASSESSMENT ORDER THAT THE INITIATION OF REOPENING PROCEEDINGS WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTORATE OF INCOME - TAX (INV.) ON THE BASIS OF SEARCH & SEIZURE OPERATION CONDUCTED AT THE PREMISES OF AEZ GROUP OF CASES WHEREIN COMPUTER HARD DISCS WERE FOUND AND SEIZED AS PER WHICH IT WAS NOTED THAT AEZ GROUP WAS CONSTRUCTING VARIOUS PROJECTS AND SOLD COMMERCIAL SPACE TO DIF FERENT PARTIES BY RECEIVING PART PAYMENTS IN CASH. SUBSEQUENTLY, THIS INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER FROM THE INVESTIGATION WING OF THE DEPARTMENT REGARDING PURCHASE OF COMMERCIAL SPACE BY THE ASSESSEES AT G - 4B FOR RS.62,95,200 AS EXTRAC TED FROM HARD DISC OF COMPUTER OF AEZ GROUP DURING SEARCH. SUBSEQUENT TO THIS, THE REOPENING PROCEEDINGS WERE INITIATED AND ASSESSMENTS WERE FRAMED UNDER SEC. 147/143(3) OF THE ACT BY THE PRESENT ASSESSING OFFICER. 6 8 . I T REMAINED THE CASE OF THE ASSESSEE S THAT THEY HAVE NOT MADE ANY PAYMENT IN CASH TOWARDS THE CONSIDERATION FOR PURCHASING THE COMMERCIAL SPACE MARKED AS G - 4B IN THE PROJECT OF AEZ GROUP SINCE THE PROPERTY WAS UNDER LITIGATION AND WAS SE A L E D BY THE ORDER OF THE COURT AND THE BUILDER HAD NOT GOT THE SALE DEED REGISTERED IN FAVOUR OF THE ASSESSEE S DESPITE PAYMENT OF RS.30 LACS BY THEM THROUGH CHEQUES. THE ADDITION IN QUESTION HAS BEEN MADE AGAINST THE ASSESSEE S BY THE ASSESSING OFFICER ON THE BASIS OF THE MATERIAL FOUND AND SEIZED FROM THE PREM ISES OF AEZ GROUP SHOWING THAT RS.30 LACS WAS PAID IN CHEQUE AND RS.32,95,200 WAS PAID IN CASH. IT HAS BEEN THOROUGHLY DENIED BY THE ASSESSEES THAT THEY HAD MADE ANY PAYMENT IN CASH WHICH ALSO SOUNDS LOGICAL AS SALE DEEDS HAVE NOT BEEN EXECUTED AND REGISTE RED IN FAVOUR OF THE ASSESSEES AND NOBODY WILL MAKE FULL PAYMENT IN SUCH SITUATION . IT ALSO REMAINED THE UNREBUTTED CASE OF THE ASSESSEES THAT AGREEMENT FOR SALE OF THE PROPERTY IN QUESTION HAD ALSO BEEN CANCELLED AND ON ACCOUNT OF THE SAID CANCELLATION A EZ GROUP HAD AGREED TO RETURN TO THE ASSESSEE S RS.30 LACS RECEIVED BY CHEQUES AS SALE CONSIDERATION OF THE PROPERTY. THUS, UNDER THE ABOVE FACTS AND CIRCUMSTANCES AND IN ABSENCE OF CORROBORATIVE EVIDENCE REGARDING THE ALLEGED CASH PAYMENTS BY THE ASSESSEES , WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION IN QUESTION IN THE HANDS OF THE ASSESSEES ON ACCOUNT OF 7 UNDISCLOSED INCOME . WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITIONS IN QUESTION MADE AGAINS T THE ASSESSEE. THE MAIN GROUND OF THE APPEALS QUESTIONING THE ADDITION OF RS.10,98,400 AGAINST EACH OF THE ASSESSEES MADE ON ACCOUNT OF UNDISCLOSED CASH PAYMENT FOR 1/3 RD SHARE OF PROPERTY BOUGHT FROM AEZ GROUP IS THUS ALLOWED. 9 . IN VIEW OF THE ABOVE FI NDINGS, THE LEGAL ISSUES RAISED IN THE ADDITIONAL GROUND QUESTIONING THE VALIDITY OF INITIATION OF REOPENING PROCEEDINGS AND ASSESSMENTS FRAMED UNDER SEC. 147/143(3) OF THE ACT IN FURTHERANCE THERETO HAVE BECOME INFRUCTUOUS AS THE MAIN GRIEVANCE OF THE AS SESSEES AGAINST THE ABOVE ADDITIONS DELETED BY US. 1 0 . IN RESULT, APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 . 0 5 . 201 6 S D/ - SD/ - ( O.P . K A NT ) ( I.C. S UDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26 / 0 5 /201 6 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 8 DATE DRAFT DICTATED DIRECTLY ON COMPUTER 26 . 0 5 .201 6 DRAFT PLAC ED BEFORE AUTHOR 26 . 0 5 .2016 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 26 .05 .2016 APPROVED DRAFT COMES TO THE SR.PS/PS 26 . 0 5 .2016 KEPT FOR PRONOUNCEMENT ON 26. 0 5 .2016 FILE SENT TO THE BENCH CLERK 27 . 0 5 .2016 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.