Atul Bansal, Delhi V. ACIT, Circle- 47(1), New Delhi

ITA 1247/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7607 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2019
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1247/DEL/2019 [ASSESSMENT YEAR: 2010-11] ATUL BANSAL, 4581, MAHAVIR BAZAR, CLOTH MARKET, DELHI - 110006 ACIT, CIRCLE-47(1), DRUM SHAPED BUILDING, NEW DELHI - 110002 PAN - AAEPB7668M APPELLANT RESPONDENT ASSESSEE BY S MT. PREM LATA BANSAL, SHRI ABHISHEK KUMAR & SHRI DIVYANSHU AGRAWAL REVENUE BY SMT. RINKU SINGH DA TE OF HEARING 23 /07/2019 DATE OF PRONOUNCEMENT 25 /07/2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-16, NEW DELHI, DATED 26/12/2018, PERTAINING TO ASSESSME NT YEAR 2012-13. 2. THE GRIEVANCE OF THE ASSESSEE IS TWOFOLD. FIRSTL Y, THE ASSESSEE IS AGGRIEVED BY THE INITIATION OF THE REASSESSMENT PROCEEDINGS AND FRAMING THE ASSESSMENT ORDER U/S 147 OF THE ACT. SECONDLY, THE ASSESSEE IS AGGRIEVED BY THE ADDITION MADE U/S 69C OF THE ACT AMOUNTING TO RS.94 LAKHS. 2 ITA NO.1247/DEL/2019 3. THE BRIEF, FACTS OF THE CASE ARE THAT A SEARCH A ND SEIZURE OPERATION WAS CONDUCTED IN DKRIISH GROUP OF COMPANIES ON 15/1/201 3 BY DDIT(INV.)-II, NOIDA. DURING THE COURSE OF SEARCH PROCEEDINGS, CERTAIN INCRIMINA TING DOCUMENTS WERE FOUND AND SEIZED FROM THE PREMISES OF DKRRISH GROUP. IN ONE O F SUCH SEIZED DOCUMENTS, IT WAS FOUND THAT SHRI ATUL BANSAL (ASSESSEE) HAS PAID CAS H TO THE TUNE OF RS.94 LAKHS TOWARDS PURCHASE OF FARM HOUSE ON VARIOUS DATES DURING THE FINANCIAL YEAR 2011-12. 4. ON THE BASIS OF REPORT FROM DDIT(INV.), THE ASSE SSMENT WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT. THE REASONS FOR REOPENIN G OF ASSESSMENT READ AS UNDER:- A LETTER DATED 13.05.2015 WAS RECEIVED IN THIS OFF ICE ON 19.05.2015 FROM DY DIRECTOR OF INCOME TAX (INV.)-II, NOIDA. AS PER THE LETTER, IT IS NOTED THAT A SEARCH AND SEIZURE OPERATION WAS EXECUTED ON 15.10.2013 11 1 DKRRISH GROUP OF COMPANIES. DURING THE COURSE OF SEARCH, CERTAIN INC RIMINATING DOCUMENTS WERE FOUND AND SEIZED FROM THE PREMISES OF DKRRISH GROUP . ON PERUSAL OF PARTY NO. F4, PAGE NO. 14 OF ANNEXURE A-2, IT IS SEEN THAT THE AS SESSEE, SHR. ATUL BANSAL HAS PAID CASH TO THE TUNE OF RS.94,00,000/- TOWARDS THE PURCHASE OF FARM HOUSE ON VARIOUS DATES DURING THE FINANCIAL YEAR 2011-12. FURTHER, AS PER THIS LETTER RECEIVED FROM DY. DIREC TOR OF INCOME TAX (INV.)-II, NOIDA SUMMONS U/S 131(1A) WAS ISSUED TO THE ASSESSE E TO EXPLAIN THE SOURCE OF CASH INVESTED FOR THE PURCHASE OF THE FARM HOUSE, B UT THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF CASH WHICH WAS INVESTED FO R THE PURCHASE OF FARM HOUSE. IT IS PERTINENT TO MENTION THAT IN THE CASE OF CIT V S NOVA PROMOTERS & FINLEASE (P). LTD. (ITA NO.342 OF 2011) DATED 15.02.2012, TH E HONBLE DELHI HIGH COURT, WHICH IS THE JURISDICTIONAL HIGH COURT, HELD THAT A S LONG AS THERE IS A LIVE LINK BETWEEN THE MATERIAL WHICH WAS PLACED BEFORE THE AS SESSING OFFICER AT THE TIME WHEN REASONS FOR REOPENING WERE RECORDED, PROCEEDIN GS U/S 147 WOULD BE VALID. THE COURT ALSO HELD WE ARE AWARE OF THE LEGAL POSI TION THAT AT THE STAGE OF ISSUING THE NOTICE U/S 148, THE MERITS OF THE MATTE R ARE NOT RELEVANT AND THE ASSESSING OFFICER AT THAT STAGE IS REQUIRED TO FORM ONLY A PRIMA FACIE BELIEF OR OPINION THAT INCOME CHARGEABLE TO TAX HAS ESCAPED A SSESSMENT. FURTHERMORE, IN THE CASE OF JYOTI GOYAL VS ITO (ITA N O.1259/DEL/2010), THE HONBLE ITAT DELHI HELD THAT AS REGARDS THE OTHER CONTENTIONS OF THE ASSESSEE THAT THE REOPENING WAS DONE IN A MECHANICAL MANNER WITHOUT APPLICATION OF MIND, WE FIND THERE IS NOTHING ON RECORD TO SUPPORT SUCH A CONTENTION. THE REOPENING WAS ALSO NOT DONE ON ACCOUNT OF CHANGE OF OPINION A S PRIOR TO REOPENING OF THE ASSESSMENT THE CASE WAS ONLY PROCESSED U/S 143(1) O F THE ACT. THERE IS A LIVE 3 ITA NO.1247/DEL/2019 LINK BETWEEN THE INFORMATION WHICH WAS AVAILABLE WI TH THE ASSESSING OFFICER AND HIS FORMATION OF BELIEF THAT INCOME HAS ESCAPED ASS ESSMENT. SUFFICIENCY OF SUCH INFORMATION CANNOT BE GONE INTO WHILE DECIDING THE ISSUE OF VALIDITY OF REOPENING. THE ASSESSING OFFICER ALSO CANNOT MAKE ANY ENQUIRY A S NO PROCEEDINGS WERE PENDING BEFORE HIM FOR THE RELEVANT ASSESSMENT YEAR . IN THE ABOVE VIEW OF THE MATTER, WE ARE IN AGREEMENT WITH THE FINDING OF THE LD CIT(A) THAT THE REOPENING OF ASSESSMENT U/S 147 OF THE ACT WAS VALID. IN VIEW OF THE ABOVE DISCUSSION AND ANALYSIS OF THE MATERIAL PROVIDED BY DY. DIRECTOR OF INCOME TAX (INV.)-II, NOIDA, THE REASONS FOR BELIF THAT INCOME HAS ESCAPED ASSESSMENT HAS BEEN SUFFICIENT DEMONSTRATED . CONSEQUENTLY, I HAVE REASON TO BELIEVE THAT THE ASSESSEE HAS FURNISHED I NACCURATE PARTICULARS OF HIS INCOME FOR AY 2012-13 AND INCOME HAS ESCAPED ASSESS MENT WITHIN THE MEANING OF SECTION 14 OF I.T. ACT, 1961. ACCORDINGLY, NECES SARY APPROVAL U/S 151 OF THE I.T. ACT, 1961 IS SOLICITED TO ISSUE NOTICE U/S 148 OF T HE I.T. ACT TO RE-OPEN THE ASSESSMENT U/S 147 OF THE I. T. ACT. 1961. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS GIVEN COPY OF THE SEIZED PAPER AND WAS ASKED TO EXPLAIN THE PURCH ASE MADE THROUGH CHEQUE ALONGWITH DOCUMENT/AGREEMENT FOR THE TRANSACTION OF RUPEES ONE LAKH AND EXPLAINED THE SOURCE OF FUNDS FOR MAKING PAYMENTS OF RS.94 LAKHS IN CASH. THE ASSESSEE WAS ALSO ASKED TO EXPLAIN WHY THE PAYMENTS OF RS.94 LAKHS TO BE NOT ADDED AS UNEXPLAINED INVESTMENT AND ADDED BACK TO THE INCOME. 6. THE ASSESSEE FILED A DETAILED REPLY EXPLAINING T HAT CHEQUE OF RUPEES ONE LAKH WAS TOWARDS PURCHASE OF LAND AND SINCE, THE ASSESSE E DID NOT BUY THE PLOT OWNED BY DKRRISH BUILDER, MONEY WAS RETURNED BY THEM THROUGH CHEQUE IN FEBRUARY 2012. IN RESPECT OF CASH PAYMENT OF RS.94 LAKHS IS CONCERNED , THE ASSESSEE REPLIED THAT SINCE THE TRANSACTIONS DID NOT MATERIALISED, HE NEVER PAI D ANY SUM TO DKRRISH BUILDER. IT WAS EXPLAINED THAT THE ASSESSEE HAS ACTUALLY PURCHASED PLOT IN VILLAGE CHANKMANGRAULA, DISTRICT, DADRI GAUTAM BUDH NAGAR. 4 ITA NO.1247/DEL/2019 7. THE ASSESSEE SUPPLIED THE COPY OF THE DEED OF PU RCHASE. THE REPLY OF THE ASSESSEE DID NOT FIND ANY FAVOUR WITH THE AO WHO WA S OF THE FIRM BELIEF THAT THE NOTINGS IN THE SEIZED DOCUMENTS CLEARLY SHOW THAT THE ASSES SEE HAS MADE INVESTMENT OF RS.94 LAKHS FOR WHICH HE HAS NO KNOWN SOURCES INCOME AND ACCORDINGLY COMPLETED THE ASSESSMENT PROCEEDINGS BY MAKING ADDITIONS OF RS.94 LAKHS. 8. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 9. BEFORE US, THE COUNSEL FOR THE ASSESSEE VEHEMENT LY STATED THAT THERE IS NO BASIS FOR MAKING IMPUGNED ADDITIONS. IT IS THE SAY OF CO UNSEL THAT THE DOCUMENT WAS SEIZED FROM THIRD PARTY DKRRISH BUILDER AND THEREFORE ANY PRESUMPTION TO BE DRAWN FROM THE SAID DOCUMENT SHOULD BE DRAWN AGAINST DKRRISH GROUP AND NOT THE ASSESSEE. THE COUNSEL FURTHER STATED THAT THE ADDITION MADE U/S 69 OF THE ACT IS UNLAWFUL AND DESERVES TO BE DELETED. 10. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE AO. IT IS THE SAY OF THE LD. DR THAT THE SEIZED DOCUMENT IS NOT A DUMB D OCUMENT BECAUSE THE ENTRY OF RUPEES ONE LAKHS WHICH HAS BEEN ADMITTED BY THE ASS ESSEE IS VERY MUCH APPARENT FROM THE SEIZED DOCUMENT. THE LD. DR FURTHER STATED THAT IF ONE ENTRY IS ACCEPTED THEN THE PRESUMPTION IS THAT THE OTHER ENTRIES BELONG TO THE ASSESSEE AND THEREFORE THERE IS NO ERROR IN ADDITION OF RS.94 LAKHS MADE BY THE AO. 11. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF AUTHORITIES BELOW. THE DOCUMENTS SEIZED FROM THE PREMISES OF DKRRISH GROUP CAN BE UNDERSTOOD AS UNDER:- 5 ITA NO.1247/DEL/2019 12. THE CHEQUE ENTRY OF RUPEES ONE LAKH PERTAINING TO TRANSACTIONS DONE THROUGH UNION BANK OF INDIA CAN BE VERIFIED FROM THE BANK S TATEMENT EXHIBITED AT PAGES 47 AND 48 OF THE PAPER BOOK. AT PAGE-47, THE DATE OF PAYME NT IS SHOWN AS 07/12/2011 AND ON PAGE-48 THE SAME AMOUNT HAS BEEN REFUNDED BY DKRRIS H BUILDER ON 09/02/2012. THE REPAYMENT OF RUPEES ONE LAKHS IS SUBSTANTIATED BY T HE CERTIFICATE FROM THE UNION BANK OF INDIA WHICH IS PLACED AT PAGE-49 OF THE PAPER BOOK. EXCEPT FOR THE INVESTIGATION WING REPORT, THERE IS NO OTHER EVIDENCE WITH THE AO TO D EMONSTRATE THAT THE ASSESSEE HAS ACTUALLY PAID A SUM OF RS.94 LAKHS TO DKRRISH BUILD ER. WE FIND THAT DURING THE COURSE 6 ITA NO.1247/DEL/2019 ASSESSMENT PROCEEDINGS, THE AO HIMSELF CALLED FOR I NFORMATION U/S 133(6) OF THE ACT FROM DKRRISH BUILDERS PVT. LTD. AND THE REPLY OF THE SAM E IS AS UNDER:- 7 ITA NO.1247/DEL/2019 13. A PERUSAL OF THE ABOVE REPLY CLEARLY SHOWS THAT THE ALLEGED TRANSACTIONS OF RS.94 LAKHS WAS NEVER DONE BY THE ASSESSEE WITH DKRRISH B UILDER. 14. IT WOULD BE PERTINENT TO MENTION HERE THAT VIDE LETTER DATED 13/12/2013, THE DDIT(INV.), UNIT-2, NOIDA, ASKED THE ASSESSEE TO FU RNISH DETAILS PERTAINING TO ITS INCOME TAX RETURN, BANK STATEMENTS, COPY OF CASHBOOK AND S OURCES OF CASH FOR PURCHASE OF FARM LAND FROM GREEN BEAUTY FARM GROUP AND VIDE REPLY DA TED 20/12/2013, THE ASSESSEE FURNISHED THE COPY OF SALE DEED ALONG WITH BANK STA TEMENT WITH UNION BANK OF INDIA. IN THIS REPLY, THE ASSESSEE HAS CLEARLY STATED THAT IT HAS NOT PURCHASED ANY FARM LAND FROM DKRRISH BUILDER FOR THE ALLEGED CONSIDERATION OF RS .94 LAKHS BUT HAS PURCHASED A PLOT AT CHAKMANGRAULA, DIST. DADRI, GAUTAM BUDH NAGAR. AFTE R RECEIVING THIS REPLY, NO FURTHER ENQUIRY WAS MADE BY THE INVESTIGATION WING IN RESPE CT OF ALLEGED PAYMENTS OF RS.94 LAKHS. THE AO HAS EMPHASIZED THAT ON THE BASIS OF T HE SEIZED DOCUMENT, THERE IS A CLEAR MENTION OF PROPERTY SOLD TO THE ASSESSEE. HOWEVER, NO REGISTERED DOCUMENTS HAVE BEEN 8 ITA NO.1247/DEL/2019 BROUGHT ON RECORD TO DEMONSTRATE THAT THERE WAS A T RANSACTION OF PURCHASE AND SALE OF ANY IMMOVABLE PROPERTY MENTIONED IN THE SEIZED DOCU MENTS. 15. CONSIDERING THE REPLY OF DKRRISH BUILDER IN RES PONSE TO THE NOTICES U/S 133(6) OF THE ACT AND CONSIDERING THE NATURE OF ENTRIES IN TH E IMPOUNDED DOCUMENTS, WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE HAS FAILED TO DEMO NSTRATE THAT THERE WAS ANY INVESTMENT OUTSIDE THE BOOKS OF ACCOUNTS TO ATTRACT THE PROVISIONS OF SECTION 69 OF THE ACT. CONSIDERING THE PECULIAR FACTS OF THE CASE IN HAND, WE DO NOT FIND ANY MERIT IN THE IMPUGNED ADDITION, WE ACCORDINGLY DIRECT THE AO TO DELETE THE ADDITIONS OF RS.94 LAKHS. 16. THOUGH THE ASSESSEE HAS CHALLENGED THE REOPENIN G OF THE ASSESSMENT ALSO, BUT SINCE THE IMPUGNED ADDITIONS HAVE BEEN DELETED BY U S, WE DO NOT FIND IT NECESSARY TO DWELL INTO ADJUDICATION OF THIS GRIEVANCE OF THE AS SESSEE AND THE SAME IS LEFT OPEN. 17. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 25/07/ 2019. SD/- SD/- [LALIET KUMAR] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 25/07/2019. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 9 ITA NO.1247/DEL/2019 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI