Ved Prakash, Haryana V. ACIT, Bhiwani

ITA 1409/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8514 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 07-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Gift; Search and seizure; Agreed addition; Block assessment; Retraction; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G , NEW DELHI BEFORE SH. H. S. SIDHU , JUDICIAL MEMBER DR. B. R. R. KUMAR , ACCOUNTANT MEMBER ITA NO. 1409 /DEL/2017 : ASSTT. YEAR : 2001 - 02 ITA NO. 1410/DEL/2017 : ASSTT. YEAR : 2002 - 03 ITA NO. 1411/DEL/2017 : ASSTT. YEAR : 2003 - 04 ITA NO. 1412/DEL/2017 : ASSTT. YEAR : 2004 - 05 ITA NO. 1413/DEL/2017 : ASSTT. YEAR : 2005 - 06 VED PARKASH, S/O SH. PARTAP SINGH, PARAS WALI GAL, NEAR BUS ST AND, CHARKHI DADRI, HARYANA VS ASSTT. COMMISSIONER OF INCOME TAX, SCO 202 - 203, OFFICE OF INCOME TAX, HUDA CITY CENTRE, BHIWANI (APPELLANT) (RESPONDENT) PAN NO. A ZYPS0463J ASSESSEE BY : NONE REVENUE BY : SH. S. S. RANA, CIT DR DATE OF HEAR ING: 04 . 07 .201 9 DATE OF PRONOUNCEMENT: 09 .07 .201 9 ORDER PER DR. B. R. R. KUMAR , A CCOUNTANT M EMBER : THESE ARE THE APPEAL S FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), ROHTAK EACH DATED 30.12 .2016 . 2. IN ITA NO. 1409/DEL/2017, T HE ASSESSEE H AS RAISED THE FOLLOWING EFFECTIVE GROUNDS : 1. THAT THE LD. CIT(A) IN THE FACTS & CIRCUMSTANCES OF THE CASE HAS ERRED IN DISMISSING THE APPEAL WITHOUT CONSIDERING THAT THE ASSESSED INCOME AFTER GIVING APPEAL EFF ECT OF ORDER OF LD. CIT(A) AND HON'BLE ITAT WAS WRONGLY DETERMINED ON 03/03/2011 AT RS.1,58,925/ - INSTEAD OF CORRECT COMPUTATION AT RS.66,425/ - . EVEN THIS ISSUE HAS NOT BEEN CONSIDERED THOUGH RAISED. 2. THAT THE LD. CIT(A) IN THE FACTS OF THE CASE HAS ERR ED IN CONFIRMING THE ASSESSMENT OF INCOME FROM SCHOOL WITHOUT ITA NO S. 1409 TO 1413 /DEL /2017 VED PARKASH 2 CONSIDERING THE DIRECTIONS OF THE HON'BLE ITAT TO ASSESS INCOME AFTER ANALYSING THE INFORMATION APPEARING IN SEIZED MATERIAL, PROCEEDED TO ASSESS THE INCOME ON ALLEGED AGREED BASIS AFTER OBTAINI NG SIGNATURE ON BLANK ORDER SHEET WRITTEN LATER ON AS IS EVEN EVIDENT THERE FROM. THE CONFORMATION OF THE INCOME IN THE CIRCUMSTANCE IS ILLEGAL. 3. OWING TO THE SIMILARITY TO THE ISSUES IN ALL THE FOUR CASES, THEY ARE BEING DISPOSED OFF BY COMMON ORDER. 4. GROUND NO. 1 PERTAINS TO A CALCULATION MISTAKE WHEREIN THE AMOUNT OF RS.66 , 425/ - HAS BEEN WRONGLY TAKEN AT RS.1,58,925/ - THIS ISSUE OF COMPUTATION MISTAKE IS COMMON IN ALL THE CASES EXCEPT THE ABSOLUTE FIGURES. BOTH THE PARTIES AGREED THAT A CALCULATION MISTAKE HAS CREPT IN. SINCE, THIS IS A PRIMA FACIE COMPUTATIO N MISTAKE, THE MATTER IS BEING REFERRED BACK TO THE FILE OF THE ASSESSING OFFICER TO RE - COMPUTE THE CORRECT AMOUNT. 5. IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ON THIS GROUND IS ALLOWED 6 . REGARDING THE GROUND NO. 2, THE ASSESSEE HAS ALLEGED THAT THE AGREED ADDITION WAS ON ACCOUNT OF THREAT AND COERCION. BEFORE US, THE LD. AR ARGUED THAT THE ASSESSEE WAS COMPELLED TO SIGN ON THE BLANK ORDER SHEET DURING THE ASSESSMENT PROCEEDING LEADING TO THE ADDITION BY THE ASSESSING OFFICER WHICH NEEDS TO BE DELETE D AT TH IS JUNCTURE. THE LD. DR, SH. S. S. RANA VEHEMENTLY OPPOSED TO THE ARGUMENTS OF THE LD. AR AND RELIED ON THE JUDGMENT IN THE CASE OF ACIT VS HUKUM C HAND JAIN 191 TAXMANN 319. THE ARGUMENTS IN THE WRITTEN FORM SUBMITTED BY THE LD. DR ARE AS UNDER: IT IS HUMBLY SUBMITTED THAT THE MATTER WAS SET ASIDE BY HON BLE ITAT. THE ASSESSEE SURRENDERED INCOME VIDE ORDER SHEET ENTRY DATED 29.1.2011 (COPY ENCLOSED). THE ASSESSEE IS NOW CONTENDING THAT HE HAD NEVER AGREED FOR THE ADDITION. ITA NO S. 1409 TO 1413 /DEL /2017 VED PARKASH 3 THE AO HAD OBTAINED SIGNAT URE OF THE ASSESSEE ON ORDER SHEET. THE ASSESSEE COULD NOT POSSIBLY HAVE SIGNED ORDER SHEET WITHOUT READING. MOREOVER, NO EVIDENCE HAS BEEN PRODUCED TO SHOW THAT THERE WAS ANY THREAT OR COERCION. THE VOLUNTARY SURRENDER OF INCOME PRECLUDED THE AO FROM MAKI NG ANY FURTHER ENQUIRY. HENCE, THE ADDITION DESERVES TO BE CONFIRMED. IT IS HUMBLY SUBMITTED THAT THE FOLLOWING DECISIONS MAY KINDLY BE CONSIDERED WITH REGARD TO ADDITIONS CONFIRMED DESPITE RETRACTION: 1 . SMT . DAYAWANTI VS CIT [ 2016 ] 75 TAXMANN.COM 308 (DEL HI)/[2017] 245 TAXMAN 293 (DELHI)/[2017] 390 ITR 496 (DELHI)/[ 2016 ] 290 CTR 361 (DELHI) (COPY ENCLOSED) WHERE HON BLE DELHI HIGH COURT HELD THAT WHERE INFERENCES DRAWN IN RESPECT OF UNDECLARED INCOME OF ASSESSEE WERE PREMISED ON MATERIALS FOUND AS WELL AS STATEMENTS RECORDED BY ASSESSEE'S SON IN COURSE OF SEARCH OPERATIONS AND ASSESSEE HAD NOT BEEN ABLE TO SHOW AS TO HOW ESTIMATION MADE BY ASSESSING OFFICER WAS ARBITRARY OR UNREASONABLE, ADDITIONS SO MADE BY ASSESSING OFFICER BY REJECTING BOOKS OF ACCOUNT WAS JUSTIFIED 2 . BHAQIRATH AQQARWAL VS CIT (31 TAXMANN.COM 274, 215 TAXMAN 229, 351 ITR 143) (COPY ENCLOSED) WHERE HON BLE DELHI HIGH COURT HELD THAT AN ADDITION IN ASSESSEE'S INCOME RELYING ON STATEMENTS RECORDED DURING SEARCH OPERATIONS CANNOT BE DELETED WITHOUT PROVING STATEMENTS TO BE INCORRECT. 3 . CIT VS M. S. AGGARWAL [ 2018 ] 93 TAXMANN.COM 247 (DELHI) (COP Y ENCLOSED) WHERE HON BLE DELHI HIGH COURT HELD THAT WHERE IN COURSE OF BLOCK ASSESSMENT PROCEEDINGS, AO MADE ADDITION TO ASSESSEE'S UNDISCLOSED INCOME IN RESPECT OF GIFT, IN VIEW OF FACT THAT ASSESSEE DID NOT EVEN KNOW DONOR PERSONALLY AND, MOREOVER, HE HIMSELF IN PRESENCE OF HIS CHARTERED ACCOUNTANT HAD MADE A STATEMENT UNDER SEC. 132(4) ADMITTING THAT SAID GIFT WAS BOGUS, IMPUGNED ADDITION WAS TO BE CONFIRMED. 4 . ACIT VS HUKUM CHAND JAIN [2010] 191 TAXMAN 319 (CHHATTISGARH) (COPY ENCLOSED) WHEN ASSESSEE DID NOT RETRACT HIS STATEMENT IMMEDIATELY AFTER SEARCH AND SEIZURE WAS OVER AND IN RETURN ALSO NO EXPLANATION WAS OFFERED FOR SURRENDER OF UNDISCLOSED INCOME AT TIME OF SEARCH AND SEIZURE OPERATIONS UNDER SECTION 132(4), IT COULD BE SAID THAT ASSESSEE HAD FAILED TO ITA NO S. 1409 TO 1413 /DEL /2017 VED PARKASH 4 DISCHARGE ONUS OF PROVING THAT CONFESSION MADE BY HIM UNDER SECTION 132(4) WAS AS A RESULT OF INTIMIDATION, DURESS AND COERCION OR THAT SAME WAS MADE AS A RESULT OF MISTAKEN BELIEF OF LAW OR FACTS 5 . GREENVIEW RESTAURANT VS ACIT [2003] 133 TAXMAN 4 32 (GAUHATI)/[2003] 263 ITR 169 (GAUHATI)/[2003 ] 185 CTR 651 (GAUHATI) (COPY ENCLOSED) 'FROM FACTS, IT WAS CLEAR THAT THERE WAS A DELAY ON THE PART OF THE APPELLANT AND ITS PARTNER IN RETRACTING THE STATEMENTS RECORDED. THE ATTENTION OF THE COURT HAD ALSO NOT BEEN DRAWN TO ANY MATERIAL ON RECORD TO ESTABLISH THAT ANY ATTEMPT WAS MADE ON BEHALF OF THE APPELLANT TO PROVE THE ALLEGATION OF INDUCEMENT, THREAT OR COERCION THROUGH THE WITNESSES. HAVING EXAMINED THE IMPUGNED ORDERS RENDERED BY THE TRIBUNAL WITH T HE REASONINGS IN SUPPORT OF ITS FINDING AGAINST THE COMPLAINT OF THREAT, INDUCEMENT OR COERCION, NO GOOD AND SUFFICIENT REASON WAS FOUND TO DIFFER FROM IT. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, HAVING REGARD TO THE MATERIALS ON RECORD, THE APPELLANT HAD FAILED TO ESTABLISH THAT THE STATEMENTS OF ITS PARTNER HAD BEEN RECORDED IN THE COURSE OF THE SEARCH BY USING COERCION, THREAT OR INDUCEMENT. HENCE, THE CONTENTIONS ADVANCED BY THE APPELLANT IN THAT REGARD WERE DISMISSED AND THE CONCLUSION OF THE TRIBU NAL ON THAT COUNT WAS AFFIRMED.' [PARA 9] 6 . RAJ HANS TOWERS (P.) LTD. VS CIT (56 TAXMANN.COM 67, 230 TAXMAN 567, 373 ITR 9) (COPY ENCLOSED) WHERE HON BLE DELHI HIGH COURT HELD THAT WHERE ASSESSEE HAD NOT OFFERED ANY SATISFACTORY EXPLANATION REGARDING SURRE NDERED AMOUNT BEING NOT BONA FIDE AND IT WAS ALSO NOT BORNE OUT IN ANY CONTENTIONS RAISED BEFORE LOWER AUTHORITIES, ADDITIONS SO MADE AFTER ADJUSTING EXPENDITURE WERE JUSTIFIED (SURVEY CASE) 7 . PCIT VS AVINASH KUMAR SETIA [2017 ] 81 TAXMANN.COM 476 (DELHI) (C OPY ENCLOSED) WHERE HON BLE DELHI HIGH COURT HELD THAT WHERE ASSESSEE SURRENDERED CERTAIN INCOME BY WAY OF DECLARATION AND WITHDRAW SAME AFTER TWO YEARS WITHOUT ANY SATISFACTORY EXPLANATION, IT COULD NOT BE TREATED AS BONA FIDE AND, HENCE, ADDITION WOULD SUSTAIN (SURVEY CASE) . 7. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES, PERUSED THE MATERIAL ON RECORD AND THE JUDGMENTS OF THE VARIOUS COURTS. WE FIND THAT THE LD. AR COULD NOT BRING OUT ANY EVIDENCE OR MATERIAL COGENTLY TO PROVE HIS ARGUMENTS OF THR EAT /COERCION BY ITA NO S. 1409 TO 1413 /DEL /2017 VED PARKASH 5 THE DEPARTMENT WHEREAS WE FIND STRENGTH IN THE SUBMISSIONS MADE BY THE REVENUE WHICH GOES TO PROVE THAT THE ASSESSEE , HAVING SURRENDER ED THE AMOUNT OWING TO ABSENCE OF ANY EXPLANATION FROM HIS PART DURING THE ASSESSMENT PROCEEDINGS AND PRE - EMPTED THE REVENUE AUTHORITIES FROM CONDUCTING ANY FURTHER ENQUIRIES CANNOT TAKE A PLEA LATER ON ALLEGE ANY THREAT OR COERCION. 8. IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ON THIS GROUND IS DISMISSED. 9. IN THE RESULT , THE APPEAL S OF THE ASSESSEE A RE PARTLY ALLOWED. ( ORDER PRONOUNCED IN THE OPEN COURT ON 09 .07.2019) SD/ - SD/ - ( H. S. SIDHU ) ( DR. B. R. R. KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09 /07 /2019 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR