Anurag Pandey, Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 165/LKW/2014

• Counselvise Citation: 16523714 RSA 2014
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-11-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 18-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK MISHRA
• Section: 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.165/LKW/2014 ASSESSMENT YEARS:2001 - 02 DY.C.I.T., CENTRAL CIRCLE - V, KANPUR. VS. SHRI ANURAG PANDEY, 133/88 M BLOCK, KIDWAI NAGAR, KANPUR. PAN:ADBPP4203G (RESPONDENT) (APPELLANT) ITA NO.166/LKW/2014 ASSESSMENT YEARS:2001 - 02 DY.C.I.T., CENTRAL CIRCLE - V, KANPUR. VS. SMT. ASHA PANDEY, 133/88 M BLOCK, KIDWAI NAGAR, KANPUR. PAN:ADBPP4201E (RESPONDENT) (APPELLANT) ITA NOS.167 TO 170/LKW/2014 A . YRS:2001 - 02 TO 2003 - 04 & 2007 - 08 DY.C.I.T., CENTRAL CIRCLE - V, KANPUR. VS. SHRI SUNIL KUMAR PANDEY, 133/88 M BLOCK, KIDWAI NAGAR, KANPUR. PAN:ACJPP7983J (RESPONDENT) (APPELLANT) ITA NOS.171 & 172/LKW/2014 ASSESSMENT YEARS:2001 - 02 & 2005 - 06 DY.C.I.T., CENTRAL CIRCLE - V, KANPUR. VS. SHRI SANDEEP PANDEY, 133/88 M BLOCK, KIDWAI NAGAR, KANPUR. PAN:ADBPP4203G (RESPONDENT) (APPELLANT) 2 SHRI ABHINAV MEHROTRA, ADVOCATE APPELLANT BY SHRI VIVEK MISHRA, CIT, D. R. RESPONDENT BY 12/11/2014 DATE OF HEARING 17 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. ALL THESE APPEALS ARE FILED BY DIFFERENT ASSESSEES OF THE SAME GROUP, WHICH INCLUDES SHRI ANURAG PANDEY FOR ASSESSMENT YEAR 2001 - 02, SMT. ASHA PANDEY FOR ASSESSMENT YEAR 2001 - 02, SHRI SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2001 - 02, 2002 - 03, 2003 - 04 AND 200 7 - 08 AND SHRI SANDEEP PANDEY FOR ASSESSMENT YEAR 2001 - 02. 2. IN ALL THESE APPEALS, ONE GROUND IS REGARDING ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF CASH IN HAND AS ON 01/04/2000 BEING OPENING BALANCE IN FINANCIAL YEAR 2000 - 01 RELEVANT TO ASSES SMENT YEAR 2001 - 02. THE AMOUNT OF SUCH ADDITION IS RS.1,35,110/ - IN THE CASE OF SHRI ANURAG PANDEY, RS.3,15,379/ - IN THE CASE OF SMT. ASHA PANDEY, AND RS.66,180/ - IN THE CASE OF SUNIL KUMAR PANDEY. IN THE CASE OF SANDEEP PANDEY, SUCH ADDITION IS RS.99,13 0/ - . THERE IS NO OTHER ADDITION IN THE CASE OF ANURAG PANDEY AND SANDEEP PANDEY IN ASSESSMENT YEAR 2001 - 02. IN THE CASE OF SUNIL KUMAR PANDEY ALSO , THERE IS NO OTHER ADDITION IN ASSESSMENT YEAR 2001 - 02. IN ASSESSMENT YEAR 2002 - 03, AN ADDITION OF RS.51,0 00/ - WAS MADE BY THE ASSESSING OFFICER ON THE BASIS THAT THE ASSESSEE COULD NOT PROPERLY EXPLAIN THE UNSECURED LOANS. IN ASSESSMENT YEAR 2003 - 04 IN THE CASE OF SUNIL KUMAR PANDEY, THE ASSESSING OFFICER MADE ADDITION OF RS.60,000/ - AS UNEXPLAINED CONSTRUCT ION OF BOUNDARY WALL ON HIS BASIS THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE SAME. IN ASSESSMENT YEAR 2007 - 08, THE ASSESSING OFFICER MADE ADDITION OF RS.84,400/ - B Y ALLEGING THAT THE CASH FOUND AT THE TIME OF 3 SEARCH WAS NOT EXPLAINED. THE ASSE SSING OFFICER ALSO MADE ANOTHER ADDITION OF RS.40,000/ - IN THAT YEAR ON THE BASIS THAT THE CLAIMED ADVANCE FROM RAM BABU WAS NOT PROPERLY EXPLAINED. OTHER ADDITIONS MADE BY ASSESSING OFFICER IN THIS YEAR WERE DELETED BY CIT(A) AND HENCE, THESE ISSUES ARE NOT BEFORE US. IN THE CASE OF SANDEEP PANDEY IN ASSESSMENT YEAR 2005 - 06, THE ASSESSING OFFICER MADE ADDITION OF RS.36,000/ - BY ALLEGING THAT THERE IS UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. 3. LEARNED A.R. OF THE ASSESSEE REITERATED THE SAME CONTENTION S, WHICH WERE RAISED BEFORE THE CIT(A) WHEREAS LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST WE TAKE UP THE APPEAL OF ANURAG PANDEY FOR ASSESSMENT YEAR 2001 - 2002 IN I.T.A. NO .165/LKW/2012. IN THIS CASE, ONLY ONE ADDITION WAS MADE BY THE ASSESSING OFFICER OF RS.1,35,110/ - BY ALLEGING THAT AS PER CASH FLOW STATEMENT FILED BY THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDINGS FOR THIS YEAR , THE ASSESSEE HAS SHOWN RS.1,35,110/ - AS BROUGHT FORWARD CASH BALANCE BUT THE ASSESSEE COULD NOT PRODUCE ANY DIRECT EVIDENCE TO PROVE THE AVAILABILITY OF CASH. THE CIT(A) HAS REPRODUCED THE CASH FLOW STSTEMENT FOR ASSESSMENT YEAR 2000 - 01 ON PAGE NO. 3 OF HIS ORDER. IN THIS CASE, SEARCH U/S 132 OF THE ACT WAS CARRIED OUT IN PANDEY GROUP OF CASES ON 19/04/2006. RETURN FOR ASSESSMENT YEAR 2001 - 02 WAS FILED BY ANURAN PANDEY ON 31/10/2001 DECLARING TOTAL INCOME AT RS.84,981/ - AS NOTED BY THE ASSESSING OFFICER IN PARA 3 OF THE ASSESSMENT ORDER BECAUSE IN REPLY TO NOTICE, ISSUED BY THE ASSESSING OFFICER U/S 153 C , IT WAS SUBMITTED BY THE ASSESSEE THAT THE SAID RETURN FILED ON 31/10/2001 MAY BE TREATED AS RETURN FILED IN RESPONSE TO THIS NOTICE. THIS IS NOT THE CASE OF THE ASSESSING OFFICER THAT ASSESSMENT PROCEEDINGS FOR THIS ASSESSMENT YEAR WAS PENDING ON THE DATE OF SEARCH AND HENCE, THE ASSESSMENT HAS A BA TED. NOW THIS IS SETTLED POSITION OF LAW AS PER THE DECISIO N OF SPECIAL BENCH OF THE 4 TRIBUNAL RENDERED IN THE CASE OF ALL CARGO GLOBAL LOGISTICS VS. DCIT 137 ITD 287 (MUM) (SB) THAT IN THOSE ASSESSMENT YEARS WHERE THE ASSESSMENT HAS NOT A BA TED , THE ASSESSMENT U/S 153 A WILL BE MADE ON THE BASIS OF INCRIMINATING MA TERIAL FOUND DURING SEARCH. IN THE PRESENT CASE, THIS IS NOT THE CASE OF THE ASSESSING OFFICER THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH FOR THIS ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF CASH FLOW STATEMENT FILED I N COURSE OF ASSESSMENT PROCEEDINGS. IN OUR CONSIDERED OPINION, SUCH AN ADDITION CANNOT BE MADE IN THE PRESENT YEAR IN THE ABSENCE OF ANY INCRIMINATING MATERIAL HAVING BEEN FOUND IN COURSE OF SEARCH BECAUSE THE ASSESSMENT OF THIS YEAR HAS NOT ABATED. THER EFORE, RESPECTFULLY FOLLOWING THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL, WE HOLD THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 6. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE I.E. SMT. ASHA PANDEY IN I.T.A. NO.166/LKW/2014 FOR ASSESSMENT YEAR 2001 - 02. IN THIS CASE ALSO, THE ASSESSING OFFICER HAS MADE ADDITION OF RS.2,65,379/ - ON THE SAME BASIS THAT IN THE CASH FLOW STATEMENT FILED BY THE ASSESSEE IN COURSE OF ASSESSM ENT PROCEEDINGS, THE ASSESSEE HAS SHOWN A SUM OF RS.3,15,379/ - AS BROUGHT FORWARD CASH BALANCE. IN THIS CASE ALSO, IT IS NOTED BY THE ASSESSING OFFICER IN PARA 4 THAT IN RESPONSE TO NOTICE ISSUED U/S 153C, IT WAS SUBMITTED BY THE ASSESSEE THAT ORIGINAL RE TURN OF INCOME WAS FILED ON 31/10/2001, WHICH MAY BE TREATED AS RETURN FILED IN RESPONSE TO THIS NOTICE. HENCE, IN THIS CASE ALSO , THE ASSESSMENT HAS NOT ABATED AND THEREFORE, THE FACTS ARE IDENTICAL WITH THE FACTS IN THE CASE OF ANURAG PANDEY AND THEREFO RE, ON THE SAME BASIS , THE ADDITION MADE BY ASSESSING OFFICER IS NOT SUSTAINABLE. WE HOLD ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 5 8. NOW WE TAKE UP THE APPEAL IN THE CASE OF SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2001 - 0 2 I.E. I.T.A. NO.167/LKW/2014. IN THIS CASE ALSO, THE ASSESSING OFFICER MADE ADDITION OF RS.66,801/ - ON THE SAME BASIS THAT THE ASSESSEE HAS SHOWN THIS MUCH OPENING CASH BALANCE IN CASH FLOW STATEMENT FILED BY THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDI NGS. IN THIS CASE ALSO, IT WAS NOTED IN PARA 3 OF THE ASSESSING OFFICER THAT IN RESPONSE TO NOTICE ISSUED U/S 153C, IT WAS SUBMITTED BY THE ASSESSEE THAT ORIGINAL RETURN OF INCOME FILED ON 31/10/2001, MAY BE TREATED AS RETURN FILED IN RESPONSE TO THIS NO TICE. HENCE, IN THIS CASE ALSO , THE ASSESSMENT HAS NOT ABATED AND THEREFORE, THE FACTS ARE IDENTICAL WITH THE FACTS IN THE CASE OF ANURAG PANDEY AND THEREFORE, ON THE SAME BASIS , THE ADDITION MADE BY ASSESSING OFFICER IS NOT SUSTAINABLE. WE HOLD ACCORDIN GLY. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 10. NOW WE TAKE UP THE APPEAL IN THE CASE OF SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2002 - 03 I.E. I.T.A. NO.168/LKW/2014. IN THIS CASE , THE ASSESSING OFFICER MADE ADDITION OF RS.51,000/ - IN RESPECT OF THREE UNSECURED LOANS OF RS.15,000/ - FROM RAM BABU, RS.18,000/ - FROM SHRI SURENDRA KUMAR AND RS.18,000/ - FROM RAJESH KUMAR TOTALING TO RS.51,000/ - ON THE BASIS THAT THE ASSESSEE COULD NOT F ILE CONFIRMATION FROM THESE PERSONS. IN THIS CASE ALSO, IT IS NOTED THAT THE ORIGINAL RETURN WAS FILED ON 06/08/2002. HENCE, THE ASSESSMENT FOR THIS YEAR HAS ALSO NOT ABATED AND THEREFORE, THE FACTS ARE IDENTICAL WITH THE FACTS IN THE CASE OF ANURAG PAND EY AND THEREFORE, ON THE SAME BASIS , THE ADDITION MADE BY ASSESSING OFFICER IS NOT SUSTAINABLE BECAUSE THE SAME IS NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND IN SEARCH . WE HOLD ACCORDINGLY. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS A LLOWED. 6 12. NOW WE TAKE UP THE APPEAL IN THE CASE OF SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2003 - 04 I.E. I.T.A. NO.169/LKW/2014. IN THIS YEAR , THE ASSESSING OFFICER MADE ADDITION OF RS.60,000/ - BY ALLEGING THAT THE ASSESSEE HAS CONSTRUCTED A BOUNDARY WA LL AND THE ASSESSING OFFICER ESTIMATED THE COST OF BOUNDARY WALL AT RS.60,000/ - . IN THIS YEAR ALSO, THE ASSESSING OFFICER HAS NOTED IN PARA 3 OF THE ASSESSMENT ORDER THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 14/09/2003. IT IS NOTED BY ASSESSIN G OFFICER IN PARA 8 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS PURCHASED A FLAT IN THIS YEAR. THE ASSESSING OFFICER CONDUCTED ENQUIRY THROUGH INSPECTOR AND THE INSPECTOR HAS SUBMITTED HIS REPORT AS NOTED IN PARA 8 IN WHICH IT WAS STATED THAT THE ASSESS EE HAS CONSTRUCTED A BOUNDARY WALL AROUND THIS PLOT A ND THE HEIGHT OF THE BOUNDARY WALL IS ABOUT 6 FEE T WITH A THICKNESS OF 9 INCH. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT. HENCE, IT IS SEEN THAT THE BASIS OF MAKING T HIS ADDITION IS ALSO NOT THIS THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND THE SAME IS ON THE BASIS OF POST SEARCH ENQUIRY AND IN SUCH ENQUIRY ALSO, THE FACTS ARE NOT BROUGHT ON RECORD AS TO WHETHER THE FLAT WAS PURCHASED ALONG WITH THE BOUNDARY WALL OR THE BOUNDARY WALL WAS CONSTRUCTED AFTERWARDS. IN THIS YEAR ALSO, THE ASSESSMENT HAS NOT ABATED AND THEREFORE, IN THIS YEAR ALSO, NO ADDITION CAN BE MADE EXCEPT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND IN SEARCH . SINCE N O INCRIMINATING MATERIAL WAS FOUND IN SEARCH IN RESPECT OF CONSTRUCTION OF BOUNDARY WALL, THE ADDITION IS NOT SUSTAINABLE. THE SAME IS DELETED BY RESPECTFULLY FOLLOWING THE SAME DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL (SUPRA). 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 14. NOW WE TAKE UP THE APPEAL IN THE CASE OF SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2007 - 08 I.E. I.T.A. NO.170/LKW/2014. IN THIS YEAR, THE ISSUE IN DISPUTE IS REGARDING ADDITION OF RS.84,400/ - FOR CASH FOUND I N COURSE 7 OF SEARCH AND RS.40,000/ - BEING ADVANCE RECEIVED FROM SHRI RAM BABU, WHICH IS TREATED BY THE ASSESSING OFFICER AS UNEXPLAINED. IN SUPPORT OF THE CASH FOUND IN COURSE OF SEARCH, THE ASSESSEE HAS FURNISHED CASH FLOW STATEMENT ON THE DATE OF SEARCH I.E. 18/04/2006 BUT THE ASSESSING OFFICER HAS NOT ACCEPTED THE SAME BY STATING THAT THIS IS SELF - SERVING DOCUMENT. IT IS NOTED BY THE CIT(A) IN PARA 5.2 OF HIS ORDER THAT IN THE BEDROOM OF SHRI SUNIL KUMAR PANDEY AND KALPANA PANDEY, CASH OF RS.84,400/ - W AS FOUND AGAINST CASH AVAILABILITY OF RS.63,389/ - . THE CIT(A) HAS CONFIRMED ADDITION OF BALANCE AMOUNT OF RS.21,011/ - AND ALLOWED RELIEF TO THE EXTENT OF RS.63,389/ - . SINCE THE AVAILABILITY OF CASH, AS PER CASH FLOW STATEMENT HAS BEEN ACCEPTED BY CIT(A) AND RELIEF WAS ALLOWED, WE DO NOT FIND ANY MERIT IN THIS GROUND OF THE ASSESSEE. GROUND NO. 1 IS REJECTED. 15. REGARDING GROUND NO. 2, WE FIND THAT IT IS NOTED BY CIT(A) AS PER PARA 6.2 OF HIS ORDER THAT SHRI RAM BABU WAS NOT PRODUCED FOR VERIFICATION AN D NOR HIS SOURCE OF INVESTMENT WAS EXPLAINED. ON THIS BASIS, HE HAS CONFIRMED THE ADDITION OF RS.40,000/ - . WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) ON THIS ISSUE. ACCORDINGLY, GROUND NO. 2 IS ALSO REJECTED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 17. NOW WE TAKE UP THE APPEAL IN THE CASE OF SANDEEP PANDEY FOR ASSESSMENT YEAR 2001 - 02 I.E. I.T.A. NO.171/LKW/2014. IN THIS CASE ALSO, THE ASSESSING OFFICER HAS MADE ADDITION OF RS.99,130/ - ON THE SAME BASIS THAT THE ASSESSEE HAS SHOWN OPENING CASH BALANCE OF THIS AMOUNT IN THE CASH FLOW STATEMENT FILE D IN COURSE OF ASSESSMENT PROCEEDINGS. IN THIS CASE ALSO, THE ASSESSING OFFICER HAS NOTED AS PER PARA 4 OF HIS ORDER THAT THE ORIGINAL RETURN WAS FILED ON 31/10/2001 AND HENCE, THE ASSESSMENT HAS NOT ABATED AND NO INCRIMINATING MATERIAL WAS FOUND IN SEARCH AND THEREFORE, BY RESPECTFULLY FOLLOWING THE SAME DECISION OF SPECIAL BENCH OF TRIBUNAL, THIS ADDITION IS DELETED. 8 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 19. NOW WE TAKE UP THE APPEAL IN THE CASE OF SANDEEP PANDEY FOR ASSESSMENT YEAR 2005 - 06 I.E. I.T.A. NO.172/LKW/2014. IN THIS YEAR , THE ASSESSING OFFICER MADE ADDITION OF RS.33,000/ - ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT IN THE PRESEN T YEAR, WHICH THE ASSESSEE COULD NOT EXPLAIN. IT IS NOTED BY CIT(A) IN PARA 7.2 OF HIS ORDER THAT BEFORE HIM ALSO, THE ASSESSEE COULD NOT OFFER ANY EXPLANATION REGARDING THIS ENTRY. BEFORE US ALSO, NO SUCH EXPLANATION WAS FURNISHED AND THEREFORE, ON THIS ISSUE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 21. IN THE COMBINED RESULT, THE APPEAL OF THE ASSESSEE SUNIL KUMAR PANDEY FOR ASSESSMENT YEAR 2007 - 08 I.E. I.T.A. NO.1 70/LKW/2014 AND IN THE CASE OF SANDEEP KUMAR PANDEY FOR ASSESSMENT YEAR 2005 - 06 I.E. I.T.A. NO.172/LKW/2014 ARE DISMISSED AND THE REMAINING SIX APPEALS ARE ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /12/2014 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1 . THE APPELLANT 2 . THE RESPONDENT. 3 . CONCERNED CIT 4 . THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR