DCIT, New Delhi V. Smt. Krishna Theopolis, Noida

ITA 1514/DEL/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3086 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAVEEN CHANDRA
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Valuation report
• Section: 142(1); 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 1514/DEL/2012 A.Y. : 2008-09 DCIT, CC-17, NEW DELHI ROOM NO. 353, ARA CENTRE, E-2, JHANDEWALAN EXTN., NEW DELHI VS. SMT. KRISHNA THEOPHILUS, D-124, SECTOR-36, NOIDA (PAN:ACNPT5283D) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. NAVEEN CHANDRA, CIT(DR) ASSESSEE BY : SH. GEORGE KOSHI, CA ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 31/01/2012 PASSED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS)-II, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,40,00,000/- MADE ON ACCOUNT OF UNACCOUNTED RECEIPT OF CASH BY THE ASSESSEE. 2(A). THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. 2 (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE NOTI CE U/S. 153C OF THE I.T. ACT, 1961 WAS ISSUED ON 01.12.2010 REQUIRING THE A SSESSEE TO FURNISH RETURN OF INCOME. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING NIL INCOME ON 16.12.2010. NOTICES U/S. 142(1) & 143(2) OF THE I.T. ACT, 1961 ALONGWITH QUESTIONNAIRE WERE ISSUED ON 6.12.2010 RE QUIRING THE ASSESSEE TO FURNISH DETAILS. IN RESPONSE TO THE NOTICE U/S. 143(2) THE ASSESSEE FILED THE DETAILS DATED 16.12.2010. BUT NOBODY WAS APPEA RED ON BEHALF OF THE ASSESSEE. DURING THE COURSE OF SEARCH AND SEIZURE ON 20.10.2008 IN THE CASE OF M/S THAPAR HOMES GROUP OF CASES A PEN DRIVE (ANNEXURE A-13) WAS SEIZED CONTAINING ELECTRONIC DOCUMENTS. ONE SU CH DOCUMENT IS A LETTER OF RECEIPT OF RS. 1,40,00,000/- IN CASH ON 5 .2.2008 AS A PART PAYMENT ON ACCOUNT OF COLLABORATION IN RESPECT OF P ROPERTY BEARING NO. 8, STREET NO. 5, MEASURING 975 SQ.YDS. SITUATED IN TH E LAY OUT PLAN OF THE GOVERNMENT SERVANTS COOPERATIVE HOUSE BUILDING SOCI ETY LIMITED, ALSO KNOWN AS SHANTI NIKETAN, NEW DELHI. THE RECEIPT SH OWS THAT MRS. KRISHNA THEOPHILUS HAS RECEIVED A SUM OF RS. 1,40,00,000/- IN CASH FROM M/S THAPAR HOMES LTD. THROUGH ITS DIRECTOR MR. INDER MO HAN THAPAR. THE ASSESSEE WAS SUMMONED U/S. 131 OF THE INCOME TAX AC T, 1961 ON 30.11.2010 IN RESPECT OF ASSESSMENT PROCEEDINGS OF M/S THAPAR HOMES LTD. AO OBSERVED THAT ASSESSEE HAD ENTERED INTO P ROPERTY DEVELOPMENT 3 AGREEMENT ON 05.2.2008. ADVANCE WAS ALSO RECEIVED BY THE ASSESSEE ON 5.2.2008 AMOUNT OF RS. 70,00,000/- BY CHEQUE. THE ELECTRONIC DOCUMENT MENTIONED ABOVE IS ALSO DATED 5.2.2008. THE PROPERT Y TO BE DEVELOPED IS PLOT NO. 8, STREET NO. 5, SHANTIKETAN, NEW DELHI. T HE MATTER HAS ALSO BEEN REFERRED TO VALUATION CELL ALSO BUT REPORT IS AWAITED. AS THE ASSESSMENT GETTING BARRED BY LIMITATION OF TIME IT WAS HELD THAT THE EXISTENCE OF THE LETTER IS EVIDENCE THAT IT WAS INT ENTIONALLY DRAFTED AND THE TRANSACTION DID NOT TAKE PLACE. ANYTHING CONTAINING IN ELECTRONIC FORM IN THE PEN DRIVE IS A DOCUMENT. THEREFORE, THE AMOUNT OF RS. 1,40,00,000/- IS TREATED AS AN UNDISCLOSED INCOME OF THE ASSESSEE AND WAS ADDED TO THE ASSESSEES INCOME. THOUGH THE ASSESSEE HAS HOWE VER DECLARED THE TRANSACTION OF SALE OF PROPERTY AS COMPLETED AS PE R SECTION 53A OF THE TRANSFER OF PROPERTY ACT ONLY IN THE NEXT PREVIOUS YEAR, IT WAS HELD THAT THE SUM OF RS. 1,40,00,00-0/- WAS NEVER INTENDED TO BE DECLARED TO THE INCOME TAX AUTHORITIES AND THE SAME WAS HELD AS UNA CCOUNTED RECEIPT OF CASH IN THE HANDS OF THE ASSESSEE AND WAS BROUGHT T O TAX IN THE CURRENT YEAR. THE AO COMPLETED THE ASSESSMENT U/S. 144/153 C OF THE I.T. ACT, 1961 AT THE INCOME OF RS. 1,40,00,000/- VIDE HIS O RDER DATED 30.12.2010. 3. AGAINST THE AFORESAID ORDER DATED 30.12.2010 ASS ESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 31.1.2012 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING THE ADDITION IN DISPUTE. 4 4. AGGRIEVED WITH THE LD. CIT(A)S ORDER DATED 30. 12.2010, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL FILED B Y THE REVENUE. HE FURTHER STATED THAT IN THIS CASE ASSESSMENT WAS COM PLETED U/S. 144 OF THE I.T. ACT AS PER THE MATERIAL AVAILABLE ON RECORD AN D TO THE BEST JUDGMENT ON THE BASIS OF RECORDS AVAILABLE AS THE ASSESSEE AND HER AR HAVE NOT ATTENDED ANY FURTHER PROCEEDINGS IN THE MATTER AND REMAIN NON- COOPERATIVE BEFORE THE AO. HE FURTHER STATED THAT A GAINST THE ASSESSMENT ORDER ASSESSEE APPEALED BEFORE LD. CIT(A) AND FILED THE WRITTEN SUBMISSIONS WHICH WERE FORWARDED TO THE AO FOR HIS COMMENTS. BUT NO REPORT WAS RECEIVED FROM THE AO AND A REMINDER DAT ED 25.8.2011 WAS ISSUED TO THE AO FOLLOWED BY ORDER U/S. 250(4) DATE D 21.9.2011. IN RESPONSE THERETO, THE AO HAS SENT A REPORT DATED 1 1.10.2011 AND IN RESPONSE TO THE SAME A LETTER DATED 14.10.2011 WAS ISSUED TO THE AO AGAIN GIVING SOME DIRECTIONS. IN SPITE OF THE DIREC TIONS AND OPPORTUNITIES NO FURTHER REPORT WAS RECEIVED FROM THE AO. SUBSEQU ENTLY REMINDERS DATED 13.12.2011 AND 26.12.2011 WERE ALSO ISSUED TO THE AO BY GIVING FURTHER TIME OF 15 DAYS FOR THE REPORT. HOWEVER SI NCE NO REPORT HAS BEEN RECEIVED, THE MATTER WAS EXAMINED IN THE ABSENCE OF THE AO'S REPORT AND THE SAID VALUATION REPORT DUE IN THIS MATTER, LD. C IT(A) PASSED A NON- SPEAKING ORDER, WHICH IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. HE FURTHER STATED THAT ASSESSEE HAS NOT FILED ANY EVID ENCE BEFORE THE AO FOR SUBSTANTIATING ITS CASE AND NOW FILED THE DETAILED PAPER BOOK BEFORE THE 5 TRIBUNAL, AS A RESULT THEREOF, THE AO WAS DEPRIVED FROM AVAILING THE OPPORTUNITY TO EXAMINE THE SAME AND ADJUDICATE UPO N. IN VIEW OF THE ABOVE, HE REQUESTED THAT MATTER MAY BE REMITTED BA CK TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH, AFTER GIVING ADEQUAT E OPPORTUNITY TO THE PARTIES. 6. ON THE CONTRARY, LD. COUNSEL OF THE ASSESSEE REL IED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS PA SSED A WELL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE ON OUR P ART AND ACCORDINGLY REQUESTED TO DISMISS THE APPEAL OF THE REVENUE. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. WE FIND THA T IN THIS CASE ASSESSMENT WAS COMPLETED U/S. 144 OF THE I.T. ACT, 1961 AS PER THE MATERIAL AVAILABLE ON RECORD AND TO THE BEST JUDGME NT ON THE BASIS OF RECORDS AVAILABLE AS THE ASSESSEE AND HER AR HAVE N OT ATTENDED ANY FURTHER PROCEEDINGS IN THE MATTER AND REMAIN NON-CO OPERATIVE BEFORE THE AO. WE FURTHER FIND THAT AGAINST THE ASSESSMENT OR DER ASSESSEE APPEALED BEFORE LD. CIT(A) AND FILED THE WRITTEN SUBMISSIONS WHICH WERE FORWARDED TO THE AO FOR HIS COMMENTS. BUT NO REPORT WAS RECE IVED FROM THE AO AND A REMINDER DATED 25.8.2011 WAS ISSUED TO THE AO FOL LOWED BY ORDER U/S. 250(4) DATED 21.9.2011. IN RESPONSE THERETO, THE AO HAS SENT A REPORT DATED 11.10.2011 AND IN RESPONSE TO THE SAME A LETT ER DATED 14.10.2011 WAS ISSUED TO THE AO AGAIN GIVING SOME DIRECTIONS. IN SPITE OF THE SAID DIRECTIONS AND OPPORTUNITIES NO FURTHER REPORT WAS RECEIVED FROM THE AO, 6 WHICH IS VERY ESSENTIAL TO DECIDE THE ISSUE IN DISP UTE. SUBSEQUENTLY REMINDERS DATED 13.12.2011 AND 26.12.2011 WERE ALSO ISSUED TO THE AO BY GIVING FURTHER TIME OF 15 DAYS FOR SUBMISSION OF THE REPORT. HOWEVER SINCE NO REPORT HAS BEEN RECEIVED, THE MATTER WAS E XAMINED IN THE ABSENCE OF THE AO'S REPORT HURRIEDLY AND THE SAID V ALUATION REPORT DUE IN THIS MATTER AND LD. CIT(A) PASSED THE NON-SPEAKING ORDER WITHOUT THE REMAND REPORT, WHICH IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. WE FURTHER NOTE THAT ASSESSEE HAS NOT FILED ANY EVIDE NCE BEFORE THE AO FOR SUBSTANTIATING ITS CASE AND NOW FILED THE DETAILED PAPER BOOK CONTAINING PAGES 1 TO 52 HAS BEEN FIELD BEFORE US HAVING THE C OPY OF PERPETUAL SUB- LEASE; CONVEYANCE DEED; MEMORANDUM OF FAMILY SETTL EMENT PROPERTY DEVELOPMENT AGREEMENT; MEMORANDUM OF UNDERSTANDING ; SUPPLEMENTARY PROPERTY AGREEMENT; AREA FOR 5/8 SH ANTI NIKETAN; POSSESSION LETTER; LETTER DATED 3.8.2011 TO THE COM MISSIONER OF INCOME TAX; LETTER DATED 18.12.2010 TO THE ACIT WHICH NEED S TO BE EXAMINED AT THE LEVEL OF THE AO. IN VIEW OF THE ABOVE, WE ARE O F THE CONSIDERED VIEW THAT THE AFORESAID DOCUMENTS ATTACHED WITH THE PAPE R BOOK FILED BY THE ASSESSEES COUNSEL AND THE ISSUE RELATING TO REMAN D REPORT HAS TO BE EXAMINED AT THE LEVEL OF THE AO FOR FRESH CONSIDER ATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THEREFORE, IN THE INTEREST OF PRINCIPLE OF NATURAL JUSTICE, WE ARE SE TTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO DE NOVO , AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 7 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19/05/2017. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 19/05/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES