Sh. Umesh Kumar Tyagi, Ghaziabad V. DCIT, Ghaziabad

ITA 1714/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3901 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 15-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 01-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H K CHAUDHARY
• Assessee Lawyers: DINESH CHANDRA
• Keywords: Unexplained investment; Set aside
• Section: 143(3); 13; 69; 132

Judgement Text

ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 1 OF 14 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: G: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1714/DEL/2016 ( ASSESSMENT YEAR: 2011-12) SH. UMESH KUMAR TYAGI, 5/50, SECTOR-2, RAJENDER NAGAR, SAHIABABAD, GHAZIABAD, U.P.- 201301. VS. DY. COMMISSIONER OF INCOME TAX, (CENTRAL CIRCLE, GHAZIABAD, U.P.) PAN NO: ACFPT4931J APPELLANT RESPONDENT ASSESSEE BY : SHRI DINESH CHANDRA, ADVOCATE REVENUE BY : SHRI H.K. CHAUDHARY, CIT(DR) ORDER PER ANADEE NATH MISSHRA, AM [A] THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED APPELLATE ORDER DATED 27.01.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, KANPUR, [IN SHORT, LD.CIT(A)] PERTAINING TO ASSES SMENT YEAR 2011-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CAS E THE CIT (A) ERRED IN SUSTAINING THE, ADDITION OF THE VALUE OF EXCESS JEW ELLERY QUANTIFIED AS UNEXPLAINED INVESTMENT PRESUMABLY IN TERMS OF SECTION 69 OF THE ACT EVEN THOUGH THERE WAS NO INDICATION IN THE ASSESSMENT ORDER PASSED BY THE LD. A.O. ON THE METHOD OF SUCH QUANTIFICATION FOR MAKING ASSESSMENT? ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 2 OF 14 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE CIT (A) AS WELL AS LD. A.O. ERRED IN NOT JUSTIFYING THE QUANTIFICATION OF JEWELLARY RECEIVED AT THE TIME OF MARRIAGE AND OTHER CEREMONIES AND QUANTIFICATION OF JEWELLARY PURCHASED BY THE ASSESSEE AND BOOKED IN ITS BOOKS OF ACCOUNTS AND AC CEPTED BY THE LD. AO IN THE ASSESSMENTS FRAMED IN CONSEQUENCE OF THE SEARCH? 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE CIT (A) ERRED IN DECIDING THAT THE LD. AO HAS ALREADY ACCEPTED THE P LEA OF THE APPELLANT REGARDING THE LIMIT GIVEN BY CBDT CIRCULAR 1916 DATED 11/05/1 994 WHICH BINDING IN NATURE, AND TREATED JEWELLERY WORTH RS. 30 LAC AS EXPLAINED KEEPING IN VIEW THE STATEMENT OF JEWELLERY PURCHASED BY THE FAMILY, THE PERMISSIBLE LIMITS GIVEN IN THE CIRCULAR OF THE CBDT AND SOCIAL STATUS OF THE FAMIL Y AND CUSTOMS OF THE SOCIETY. 4. THAT THE CIT (A) FAILS TO REALIZE THAT THE ID. AO HAS TREATED THE JEWELLERY TO THE EXTENT OF RS. 30 LAC AS EXPLAINED WITHOUT CONSI DERING THE MARKET VALUE OF PURCHASED JEWELLERY. THOUGH, VOUCHERS IN SUPPORT OF PURCHASE OF JEWELLERY WERE FOUND SEIZED, EXAMINED AND FOUND CORRECT AND ACCEPT ED BY THE ID. AO WHILE PASSING THE ASSESSMENT ORDERS OF THE RESPECTIVE YEA RS. THE CONTENTION OF THE ASSESSEE WAS THAT IF MARKET VALUE OF JEWELLEIY PURC HASED IS DEDUCTED FROM THE TOTAL VALUE OF JEWELLERY FOUND, THE VALUE OF BALANC E JEWELLERY PER LADY COMES TO RS. 5.25 APPROX AND CONSIDERING THE TOTAL MALE AND FEMALE MEMBERS IT IS WELL WITHIN THE PERMISSIBLE LIMITS LAID DOWN BY THE CBDT AND HAVING REGARD TO THE STATUS OF FAMILY IT SHOULD BE TREATED AS EXPLAINED. THUS, THE ADDITION IS LIABLE TO BE DELETED. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE ID. AO IS WRONG TO DIVIDE THE UNEXPLAINED JEWELLEIY, IF THERE BE ANY A MONG THE TWO MALE MEMBERS RATHER THAN AMONG THE ALL FAMILY MEMBERS AND THE CI T (A) ALSO ERRED IN LAW WHILE CONFIRMING THE ACTION OF AO STATING THAT CASES OF O THER FAMILY MEMBERS ARE NOT BEFORE THE UNDERSIGNED, SO THE DIRECTION CANNOT BE ISSUED REGARDING ASSESSMENT OF UNDISCLOSED INCOME IN THE HAND OF ALL THE FAMILY MEMBERS 6. THAT THE ASSESSEE CRAVES LEAVE OF THIS HONBLE COURT TO ADD , AMEND ,ALTER OR VARY ANY OR ALL THE ABOVE GROUNDS EITHER OR BEFO RE AT THE TIME OF HEARING , IF THE CIRCUMSTANCES ARISES PRAYER:- THAT ILLEGAL AND IMPUGNED DEMAND OF RS. 3,32,372/-C REATED ON ACCOUNT OF ALLEGED ADDITIONS OF RS. 9,88,500/- DETAILED ABOVE, MAY KIN DLY BE DELETED AND/OR ANY OTHER RELIEF WHICH THIS HONBLE COURT DEEMS FIT AND PROPER IN THE FACTS AND OF THE CIRCUMSTANCES OF THE CASE. ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 3 OF 14 (B) VIDE ASSESSMENT ORDER DATED 31.03.2013 UNDER SECTI ON 143(3) OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHORT) AN ADDITION OF RS . 9,88,500/- WAS MADE BY ASSESSING OFFICER (AO, FOR SHORT) ON ACCOUNT OF UNEXPLAINED JEWELLERY FOUND IN THE COURSE OF SEARCH UNDER SECTION 132 OF I.T. ACT. THE AO HAS D ETERMINED THE VALUE OF UNEXPLAINED JEWELLERY AT RS. 19,77,605/- OF WHICH 50% (AMOUNTIN G TO AFORESAID RS. 9,88,500/-) WAS ADDED IN THE HANDS OF THE ASSESSEE; AND THE REMAINI NG 50% WAS ADDED IN THE HANDS OF SHRI AMBESH TYAGI. RELEVANT PORTION OF AFORESAI D ORDER DATED 31.03.2013 IS REPRODUCED AS UNDER: ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 4 OF 14 (C) THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A). VIDE AFORESAID IMPUGNED APPELLATE ORDER DATED 27.01.2016, THE LD. CIT(A) DISMISSED TH E ASSESSEES APPEAL. RELEVANT PORTION OF THE ORDER OF LD. CIT(A) IS REPRODUCED BE LOW: ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 5 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 6 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 7 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 8 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 9 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 10 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 11 OF 14 ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 12 OF 14 (C.1) THE PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAI NST AFORESAID IMPUGNED APPELLATE ORDER DATED 27.01.2016. AT THE TIME OF H EARING BEFORE US, LEARNED AUTHORIZED REPRESENTATIVE (LD. AR, FOR SHORT) OF THE ASSESSEE BROUGHT IT TO OUR NOTICE THAT THE ISSUE IN DISPUTE IS COVERED BY ORDER DATED 14.08.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI, IN THE CASE OF THE AFORESAID SHRI AMBE SH TYAGI, IN ITA NO. 1717/DEL/2016, IN WHICH, IN IDENTICAL FACTS AND CIRCUMSTANCES THE DISPUTED ISSUE WAS REMITTED BACK TO THE AO TO RE-ADJUDICATE THE ISSUE KEEPING IN VIEW G UIDELINES GIVEN BY CENTRAL BOARD OF DIRECT TAXES (CBDT, FOR SHORT) IN CIRCULAR NO. 19 16 DATED 11.05.1994. HE SUBMITTED THAT THE SAME DECISION SHOULD BE FOLLOWED IN THIS A PPEAL ALSO. LEARNED COMMISSIONER OF INCOME TAX (DEPARTMENTAL REPRESENTATIVE) [LD. C IT(DR), FOR SHORT] AGREED THAT THE ISSUE IN DISPUTE, AS WELL AS, FACTS AND CIRCUMS TANCES IN THE PRESENT APPEAL BEFORE US ARE IDENTICAL TO FACTS AND CIRCUMSTANCES RELEVAN T FOR THE AFORESAID ORDER DATED ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 13 OF 14 14.08.2019 IN THE CASE OF THE AFORESAID MR. AMBESH TYAGI. HOWEVER, HE RELIED ON THE ORDERS OF THE AO AND LD. CIT(A). (D) BOTH SIDES AGREE THAT FACTS AND CIRCUMSTANCES AS W ELL AS ISSUE IN DISPUTE IN THE PRESENT APPEAL ARE IDENTICAL TO FACTS AND CIRCUMSTA NCES RELEVANT FOR THE AFORESAID ORDER DATED 11.08.2019 IN THE CASE OF THE AFORESAID MR. A MBESH TYAGI. NEITHER SIDE HAS BROUGHT ANY MATERIALS TO OUR NOTICE TO PERSUADE US TO TAKE A VIEW DIFFERENT FROM VIEW TAKEN IN AFORESAID ORDER DATED 11.08.2019. IN VIEW OF THE FOREGOING, AND RESPECTFULLY FOLLOWING AFORESAID ORDER DATED 11.08.2019 OF CO-OR DINATE BENCH OF ITAT, DELHI IN THE CASE OF THE AFORESAID MR. AMBESH TYAGI; SET ASIDE T HE IMPUGNED ORDER DATED 27.01.2016 OF THE LD. CIT(A) AND WE REMIT THE ISSUE S IN DISPUTE IN THE PRESENT APPEAL BEFORE US TO THE FILE OF THE AO FOR FRESH ORDER IN ACCORDANCE WITH LAW KEEPING IN VIEW GUIDELINES ISSUED BY CBDT VIDE AFORESAID CIRCULAR N O. 1916 DATED 11.05.1994. (F) IN THE RESULT, APPEAL IS PARTLY ALLOWED FOR STATIS TICAL PURPOSES. ORDER IS PRONOUNCED IN OPEN COURT ON 03/03/2020. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHR A) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 03/03/2020 POOJA/- ITA NO.- 1714/DEL/2016. UMESH KUMAR TYAGI. PAGE 14 OF 14 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER