DCIT CEN CIR 8(1), MUMBAI V. SURESH GAGGAR, MUMBAI

ITA 1292/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1020 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAVITA BUNDAS LD
• Assessee Lawyers: ANUJ KISHNADWALA LD
• Keywords: Additional evidence
• Section: 143(3); 153A; 68

Judgement Text

ITA NO.1292/M/2015 SURESH GAGGAR ASSESSMENT YEAR 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 1292/MUM/2015 ( / ASSESSMENT YEAR: 2008-09) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-8(1) ROOM NO. 656, 6 TH FLOOR AAYKAR BHAVAN M.K.ROAD MUMBAI 400 020 / VS. SURESH GAGGAR 302, GAURAV APARTMENTS GOKULDHAM GOREGAON (EAST) MUMBAI 400 063 ./ ./PAN/GIR NO. ABLPG-3809-K ( /APPELLANT ) : ( !' / RESPONDENT ) A SSESSEE BY : ANUJ KISHNADWALA, LD. AR RE VENUE BY : SAVITA BUNDAS, LD. CIT DR / DATE OF HEARING : 02/05/2017 / DATE OF PRONOUNCEMENT : 05/05/2017 ITA NO.1292/M/2015 SURESH GAGGAR ASSESSMENT YEAR 2008-09 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT Y EAR [AY] 2008- 09 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-47 [CIT(A)] ORDER DATED 02/12/2014 QUA DELETION OF CERTAIN ADDITIONS U/S 68, DELETION OF ADDITION AGAINST UNACCOUNTED RECEIPTS O N SALE OF CERTAIN SHARES AND ADMISSION OF ADDITIONAL EVIDENCES AS PER RULE 46A. 2. BRIEFLY STATED, THE ASSESSEE, BEING RESIDENT IND IVIDUAL, WAS SUBJECTED TO AN ASSESSMENT U/S 143(3) / 153A PURSUA NT TO SEARCH OPERATIONS CONDUCTED ON 06/10/2010 IN THE CASE OF ARSS INFRASTRUCTURE PROJECTS LTD. AND ITS GROUP CONCERNS. THE ASSESSEE, ALONG WITH M ANY OTHER PERSONS, WAS ALSO COVERED IN THE SEARCH OPERA TIONS AND WAS SADDLED WITH A NOTICE U/S 153A PURSUANT TO WHICH SH E FILED RETURN OF INCOME FOR IMPUGNED AY ON 05/10/2012 DECLARING TOTA L INCOME OF RS.39,46,634/-. THE ORIGINAL RETURN OF INCOME WAS F ILED ON 18/11/2008. IN THE SAID ASSESSMENT, THE ASSESSEE SUFFERED ADDITION U/S 68 FOR RS.29,96,455/- ON ACCOUNT OF UNCONFIRMED LOANS AND ANOTHER ADDITION OF RS.152.50 LACS TOWARDS UNACCOUNTED RECEIPT ON SALE OF CERTAIN SHARES. 3. AGGRIEVED, THE ASSESSEE CHALLENGED, INTER-ALIA, BOTH THE ADDITIONS WITH SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 02/12/2014 WHEREIN THE ADDITION U/S 68 WERE DELETED ON FACTUAL MATRIX OF THE CASE AND ON THE BASIS OF EVIDENCES SUBMITTED BY THE ASSE SSEE. SIMILARLY, THE OTHER ADDITION OF RS.152.50 LACS WAS DELETED FOR WA NT OF EVIDENCES AND ITA NO.1292/M/2015 SURESH GAGGAR ASSESSMENT YEAR 2008-09 3 BY NOTING THAT NO COGENT MATERIAL AGAINST THE SAME WAS AVAILABLE WITH THE AO. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4. AT THE OUTSET, LD. COUNSEL FOR ASSESSEE [AR] DRE W OUR ATTENTION TO THE FACT THAT CERTAIN OTHER PERSONS WERE ALSO COVER ED IN THE SAME SEARCH OPERATIONS AND SADDLED WITH SIMILAR DISALLOWANCES. HOWEVER, SIMILAR ISSUES IN ALL THOSE CASES HAVE BEEN DECIDED BY TRIB UNAL IN FAVOR OF RESPECTIVE ASSESSEE BY WAY OF DISMISSAL OF REVENUE S APPEAL AS PER THE FOLLOWING DETAILS:- NO. NAME OF CASE ITA NO. DATE OF ORDER AYS 1. DCIT VS. JYOTI BRIGHT BAR PVT. LTD. ITA NO. 2832 & 2833/MUM/2014 08/06/2016 2009-10 & 2010- 11 2. DCIT VS. DEVEN J.MEHTA ITA NO. 6058/MUM/2014 27/1 0/2016 2008-09 3. DCIT VS. INDRA GAGGAR ITA NO. 808,1294,1295,1296 & 809/M/2015 30/11/2016 2006-07, 2007-08, 2008-09, 2009-10, 2011-12 4. DCIT VS. RAMAKANT GAGGAR ITA NO.1287 TO 1290/MUM/2015 21/12/2016 2006-07 TO 2009- 10 5. DCIT VS. BHUTA INVESTMENT P. LTD. ITA NO. 1291/MUM/2015 16/03/2017 2008-09 THE COPIES OF RESPECTIVE ORDERS HAVE BEEN PLACED IN THE PAPER BOOK. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTR OVERT THE SAME AND ALSO COULD NOT DISTINGUISH THE CASE ON FAC TUAL MATRIX IN ANY MANNER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. A PERUSAL OF ABOVE ORDERS LENDS STRENGTH TO THE ARGUMENTS OF LD. AR THAT THE ISSUE STANDS SETTLED I N FAVOR OF THE ASSESSEE. WE FIND THAT THE ADDITION U/S 68 DELETED BY LD. CIT(A) HAS BEEN CONFIRMED BY THE TRIBUNAL BY FOLLOWING JURISDI CTIONAL BOMBAY HIGH COURTS DECISION RENDERED IN CIT VS. MURLI AGRO PRODUCTS LIMITED [2014 49 TAXMANN.COM 172] AND ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT ITA NO.1292/M/2015 SURESH GAGGAR ASSESSMENT YEAR 2008-09 4 [2012 137 ITD 287 SB MUMBAI] ON THE PREMISES THAT WITH RESPECT TO ASSESSMENTS WHICH HAVE ATTAINED FINALITY ON THE DAT E OF SEARCH OPERATIONS, ADDITIONS COULD BE MADE ONLY QUA SEARCH MATERIAL AND NOT OTHERWISE. THE DELETION OF OTHER ADDITION BY LD. CI T(A) HAS BEEN CONFIRMED BY NOTING THAT THERE WAS NO JUSTIFICATION FOR ADDITION BY DISREGARDING THE ACTUAL SALE CONSIDERATION WITHOUT BRINGING ON RECORD ANY COGENT MATERIAL TO SUPPORT THE SAME. 6. THEREFORE, WE SEE NO REASON TO DEVIATE FROM THE CONSISTENT STAND TAKEN BY CO-ORDINATE BENCHES OF THE TRIBUNAL, THERE BEING NO MATERIAL CHANGE IN FACTS OR CIRCUMSTANCES. THEREFORE, RESPE CTFULLY FOLLOWING THE RATIO OF THESE DECISIONS, WE CONFIRM THE ORDER OF L D. CIT(A) AND DISMISS REVENUES APPEAL. 7. IN NUTSHELL, THE REVENUES APPEAL STANDS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH MAY, 2017. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 05.05.2017 SR.PS:- THIRUMALESH ITA NO.1292/M/2015 SURESH GAGGAR ASSESSMENT YEAR 2008-09 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. !$, , , , / DR, ITAT, MUMBAI 6. -. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI