Addl. CIT, Ghaziabad V. Shri Satish Kumar, Ghaziabad

ITA 1463/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97716 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 24-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 23-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S R WADHWA
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : G NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, A.M. AND SHRI SUDHANSHU SRIVASTAVA , JM ITA N O. 1 4 6 2 /DEL/201 1 ASSESSMENT YEAR : 200 3 - 04 ACIT, RANGE 2, CGO 2 VS. SH. SATISH KUMAR HAPUR ROAD 1001, MALAYAGIRI, KAUSHAMBI GHAZIABAD GHAZIABAD PAN: AGRPK 2819 R & C.O.NO. 129 /DEL/201 1 (IN ITA NO. 1462/DEL/2011 ) AY: 200 3 - 04 SH. SATISH KUMAR VS. ACIT, RANGE 2 GHAZIABAD GHAZIABAD AND ITA N O. 1463 /DEL/201 1 ASSESSMENT YEAR : 200 4 - 05 ACIT, RANGE 2, CGO 2 VS. SH. SATISH KUMAR HAPUR ROAD 1001, MALAYAGIRI, KAUSHAMBI GHAZIABAD GHAZIABAD PAN: AGRPK 2819 R & C.O.NO. 128 /DEL/201 1 (IN ITA NO. 1463 /DEL/2011 ) AY: 200 4 - 05 SH. SATISH KUMAR VS. ACIT, RANGE 2 GHAZIABAD GHAZIABAD (APPELLANT) (RESPONDENT) REVENUE BY: - SHRI SUJIT KUMAR, SR.D.R. ASSESSEE BY: - SHRI S.R.WADHWA, ADV. ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 2 O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER BOTH THESE APPEALS ARE FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) - GHAZIABAD DT. 28.1.2011 FOR THE A.Y. 2003 - 04 AND 2004 - 05. THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE. 2. FACTS IN BRIEF : - THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE WAS THE SECRETARY OF ONE HOUSING SOCIETY BY NAME TAKSHASILA S EH KARI AWAS SAMITHI, INDIRAPURA, GHAZIABAD FROM THE YEAR 2000. IN THE YEAR 2002 HE JOINED M/S SUMAN GALAM SEWA AIVAM EDUCATIONAL SAMITI WHICH RUNS A SCHOOL IN THE NAME OF INDIA INTERNATIONAL PUBLIC SCHOOL AT VAISHALI, GHAZIABAD. A SURVEY OPERATION U/S 133A O F THE ACT WAS CONDUCTED IN THE CASE OF M/S SUMANGALAM SEWA AIVAM EDUCATIONAL SOCIETY & INDIA INTERNATIONAL PUBLIC SCHOOL. THE ASSESSEE WAS PRESENT DURING THE COURSE OF SURVEY AND THE STATEMENT OF OATH WAS RECORDED BY THE REVENUE AUTHORITIES, DURING THE COURSE OF SURVEY OPERATIONS. THE ASSESSEE, IN HIS STATEMENT, SUBMITTED THAT, THE SOCIETY WAS ORIGINALLY FORMED BY SHRI SANJEEV AGARWAL IN THE YEAR 2001 AND THAT IT REMAINED UNDER HIS CONTROL TILL 2003. DURING THIS PERIOD, HE GOT ALLOTTED LAND MEASURING 10075 SQ.METRES, FROM GHAZIABAD DEVELOPMENT AUTHORITY IN THE YEAR 2002 BY PAYING REGISTRATION FEE OF RS.50,000/ - ALONG WITH APPLICATION FOR ALLOTMENT OF LAND. THE COST OF THE LAND ALLOTTED BY THE GHAZIABAD DEVELOPMENT AUTHORITY WAS RS.2.21 CRORES. 3. TH E LD.CIT(A) AT PAGE 2, REFERRED TO THE ASSESSMENT ORDER AND BROUGHT OUT THE FACTS WHICH ARE EXTRACTED FOR READY REFERENCE. IN THE YEAR 2003, THE ORIGINAL MANAGEMENT OF SOCIETY MOVED OUT, WHEREAS THE PRESENT MANAGEMENT TOOK OVER THE REINS OF SOCIETY, WHICH HAS THE FOLLOWING OFFICE BEARERS. ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 3 SL.NO. NAME & ADDRESS OF THE PERSONS POSITION IN THE SOCIETY 1. PROF. C.P.THAKUR, 34, NATIONAL MEDIA CENTRE, GURGAON (HARYANA) PRESIDENT 2. SHRI JAYKANT SINGJ, C - 1/1270, VASANT KUNJ, N.DELHI VICE - PRESIDENT 3. SH. SATIS H KUMAR, 1001, MALAYAGIRI, KAUSHAMBI, GHAZIABAD SECRETARY 4. SH.JAGDISH KUMAR GULATI, F - 111, PRASHANT VIHAR, DELHI MEMBER 5. SH.SANJAY KUMAR, F 7, RAM LAKHAN APARTMENT, MEHSANA (GUJARAT) MEMBR 6. SH.RAVI KISHORE, 138, MEDHA APARTMENT, MAYUR VIHAR, PHASE 1, DELHI MEMBER 7. SH. VIJAY KUMAR GUPTA, C 149, B, MOTI NAGAR, NEW DELHI MEMBER AFTER TAKEN OVER THE REINS OF THE SOCIETY BY THE PRESENT MANAGEMENT, RS.52 LAKHS WERE PAID BY THE SOCIETY TO THE GHAZIABAD DEVELOPMENT AUTHORITY, GHAZIABAD, DURING THE YEA RS 2003 AND 2004. THE SCHOOL INDIA INTERNATIONAL PUBLIC SCHOOL AT THE PREMISES OF PLOT NO.11, SECTOR 6, VAISHALI, GHAZIABVAD IS BEING RUN SINCE APRIL, 2004 IN A TEMPORARY MAKESHIFT BUILDING WITH ASBESTOS ROOFS, WHEREIN THE STRENGTH OF STUDENTS WAS FOUND O NLY 38. THERE WERE SIX TEACHERS, CLERK, MAID, AND PEON ONE EACH AND TWO WATCHMEN. 3.1. THE ISSUE BEFORE US RELATES TO SHEET NO.89 OF ANNEXURE D - 3 FOUND DURING THE COURSE OF SURVEY, IN THE ADMINISTRATIVE OFFICE OF M/S SUMANGALAM SEVA AVAM EDUCATIONAL SOCIETY AND INDIA INTERNATIONAL PUBLIC SCHOOL ON 17.2.2006. TH E PHOTO COPY OF THIS PAPER IS AT PAGES 6 AND 7 OF THE PAPER BOOK FILED BY THE ASSESSEE. THESE PAPERS CONTAIN PAYMENTS AGGREGATING TO RS.98,88,600/ - MADE ON VARIOUS DATES FROM 2002 TO 2004 BY SHRI VIJAY GUPTA AND SHRI JK GULATI FOR INDIA INTERNATIONAL PUBLIC SCHOOL. THE HEADING OF THIS DOCUMENT ON PAGE OF PAPER BOOK READS AS UNDER. PAYMENT MADE BY MR. VIJAY GUPTA AND MR.JK GULATI TO MR.SATISH KUMAR FOR INDIA INTERNATIONAL PUBLIC SCHOOL, UG - 1, 661/5, VAISHALI, GHAZIABAD. THE ASSESSEE IN RESPONSE TO A QUESTION NO S .41 , AT PAGE S 26 TO 28 OF THE PAPER BOOK STATED HIS REPLIES TO VARIOUS QUESTIONS PUT TO HIM. THERE ARE NOT REPRODUCED FOR THE SAKE OF BREVITY. L ATER IN ANSWER TO QUESTION NO.2, IN ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 4 THE STATEMENT RECORDED BY THE ADIT(INVESTIGATION) DURING THE COURSE OF SURVEY PROCEEDINGS, THE ASSESSEE AGREED TO THE ASSESS MENT OF THE ENTIRE AMOUNT OF RS.98,88,600/ - IN HIS HANDS. L ATER , ON 17.11.2008, THE ASSESSEE RETRACTED THE AFORESAID STATEMENTS BEFORE THE ASSESSING OFFICER. 3.2. THE ASSESSING OFFICER IN HIS ORDER U/S 143(3)/148 OF THE ACT DT. 30.12.2008, HELD THAT THE MONEY IN QUESTION BELONGS TO M/S SUMANGALAM SEVA AAIVAM EDUCATIONAL S AMITHI . HE MADE ADDI TIONS IN THE HANDS OF THE SOCIETY FOR THE A.Y. 2003 - 04 AND 2004 - 05 ON SUBSTANTI VE BASIS. THE A.O. MADE PROT ECTIVE ASSESSMENTS IN THE HANDS OF THE ASSESSEE. 4. ON APPEAL THE LD.CIT(A) CONFIRMED THE ADDITIONS IN THE HANDS OF THE SAMITHI AND ALLOWED THE A PPEALS OF THE ASSESSEE. HE DELETED THE PROTECTIVE ADDITIONS. THE REVENUE FILED THESE APPEALS AGAINST THE ORDER OF THE LD.CIT(A) FOR THE REASON THAT M/S SUMANGALAM SEVA AIVAM EDUCATIONAL SOCIETY SAMITHI HAS FILED AN APPEAL DISPUTING THE ADDITIONS IN QUEST ION, MADE ON SUBSTANTIAL BASIS IN THE HANDS OF THE SOCIETY. THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE IN SUPPORT OF THE ORDER OF THE LD.CIT(A). 5. SHRI S.R.WADHWA, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DEPARTMENTAL APPEALS ARE NOT MAIN TAINABLE FOR THE REASON THAT, THERE COULD BE A PROTECTIVE ASSESSMENT BUT THERE CANNOT BE A PROTECTIVE APPEALS. HE REFERRED TO THE GROUNDS OF APPEAL RAISED BY THE REVENUE AND SUBMITTED THAT THE APPEALS IN THIS CASE ARE FILED ON TECHNICAL GROUNDS AND POINT ED OUT THAT BOTH THE AOS AS WELL AS THE LD.CIT HAVE COME TO A DEFINITE FINDING THAT THE INCOME IN QUESTION BELONGS TO M/S SUMANGALAM SEVA AAIVAM EDUCATIONAL SAMITHI AND UNDER THOSE CIRCUMSTANCES, THE SAME INCOME CANNOT B E ASSESSED IN THE HANDS OF THE ASS ESSE, EVEN ON PROTECTIVE BASIS. 6. ON MERITS, THE LD.COUNSEL RELIED ON THE ORDER OF THE A.O. AS WELL AS THE LD.CIT(A) AND SUBMITTED THAT THE ADDITION CANNOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE. HE VEHEMENTLY CONTENDED THAT THERE IS NO EVIDENCE ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 5 WH ATSOEVER TO LINK THE INCOME TO THE ASSESSEE. HE POINTED OUT THAT THE ASSESSEE EARNS A MONTHLY HONORARIUM OF RS.20,000/ - FROM THE SAMITHI AND THAT THIS AMOUNT WAS ALSO NOT PAID FOR MANY MONTHS . 7. SHRI SUJIT KUMAR, THE LD.SR. D.R. ON THE OTHER HAND SUBMITT ED THAT THE AMOUNT IN QUESTION SHOULD BE ASSESSED AS INCOME IN EITHER THE HANDS OF THE SOCIETY M/S SUMANGALAM SEVA AIVAM EDUCATIONAL SOCIETY OR IN THE HANDS OF THE ASSESSEE. HE ARGUED THAT IN CASE THE TRIBUNAL DOES NOT CONFIRM THE ADDITION MADE BY THE REVENUE AUTHORITIES IN THE HANDS OF THE SOCIETY THEN THE ADDITION SHOULD B E CONFIRMED IN THE HANDS OF THE ASSESSEE. 8. WE HAVE HEARD RIVAL CONTENTIONS. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF MATERIAL ON RECORD, ORDERS OF LOWER AUTHORITIES, CASE LAWS CITED, WE HOLD AS FOLLOWS. 9. THE GROUND TAKEN BY THE REVENUE READS AS FOLLOWS. SINCE THE SUBSTANTIVE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD.CIT(A) IN THE CASE OF M/S SUMANGALAM SEWA AVAM EDUCATIONAL SAMITI HAS NOT BEEN ACCEPTED BY THE SOCIETY, THE ORDER OF THE LD.CIT(A) IS NOT ACCEPTABLE ON TECHNICAL GROUND. 10. A PLAIN READING OF THE SAME DEMONSTRATES THAT THE APPEAL HAS BEEN FILED ONLY ON TECHNICAL GROUNDS. THE A.O. IN THIS CASE HAS COME TO A DEFINITE CONCLUSION THAT THE INCOME IN QUESTION BELONGS TO M/S SUMANGALAM SEVA AVAM EDUCATIONAL SAMITHI . THE LD.CIT(A) CONFIRME D THIS FACTUAL FINDING. THE LD.D.R. COULD NOT CONTROVERT THIS CON CURRENT FACTUAL FINDING OF THE REVENUE AUTHORITIES. UNDER THESE CIRCUMSTANCES WE SEE NO REASON TO INTERFERE IN THE ORDER OF THE FIRST APPELLATE AUTHORITY. THERE IS NO GAINSAYING THAT THE S AME INCOME CANNOT B TAXED IN THE HANDS OF TWO DIFFERENT ASSESSES. ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 6 11. IN VIEW OF THE ABOVE DISCUSSION THE APPEALS FILED BY THE REVENUE ARE DISMISSED. 12. THE CROSS OBJECTIONS ARE FILED MERELY IN SUPPORT OF THE ORDER OF THE LD.CIT(A). AS WE HAVE DISMISSE D THE REVENUE APPEALS, THE CROSS OBJECTIONS ARE DISMISSED AS INFRUCTUOUS. 13 . IN THE RESULT REVENUE S APPEAL S AS WELL AS ASSESSEE S C ROSS OBJECTIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2015 . SD/ - SD/ - ( SU DHANSHU SRIVASTAVA ) ( J. SUDHAKAR R EDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 29 TH OCTOBER, 2015 *MANGA ITA NOS. 1462 AND 1463/DEL/11 AND CROSS OBJECTION NOS.128 AND 129/DEL/11 A.YS. 2003 - 04 AND 2004 - 05 SH.SATISH KUMAR 7 COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR