Sh. Subhash Chand Jain, New Delhi V. ITO, New Delhi

ITA 1842/DEL/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5446 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 10-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Assessee Lawyers: ASHWANI TANEJA; TARUN KUMAR S
• Keywords: Income from undisclosed sources; Source of fund; Corroborative evidences
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : G : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.1842/DEL/2011 ASSESSMENT YEAR : 2006-07 SUBHASH CHAND JAIN, C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION PART I, NEW DELHI. PAN : AETPJ8047H VS. ITO, WARD-19(2), NEW DELHI. ITA NO. 1843 & 1844 /DEL/201 1 ASSESSMENT YEAR : 2006-07 SIDDHARTH JAIN, C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION PART I, NEW DELHI. PAN : AFYPJ5345N VS. ITO, WARD-19(2), NEW DELHI. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI A SHWANI TANEJA, & SHRI TARUN KUMAR, ADVOCATES DEPARTMENT BY : S MT. RENUKA JAIN GUPTA, SR. DR ORDER PER A.D. JAIN, JUDICIAL MEMBER: ITAS 1842/DEL/2011 AND 1843/DEL/2011 ARE ASSESSEES APPEA LS FOR ASSESSMENT YEAR 2006-07 AGAINST THE ORDERS PASSED BY THE LD . CIT(A)-XXII, ITA NO.1842/DEL/2011 ITA NOS.1843 & 1844/DEL/2011 2 NEW DELHI. ITA NOS.1842/DEL/2011 AND ITA NO.1843/DEL /2011 CARRY THE FOLLOWING IDENTICAL GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING THE ACTION OF LD. A.O. IN MAKING ADDITION OF RS.53,81,355/- (` 9,5 0,000/- IN ITA NO.1843/DEL/2011) ON ACCOUNT OF CASH DEPOSIT OUT OF UN DISCLOSED SOURCES OF INCOME U/S 68 OF THE INCOME TAX ACT, 1961. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER LD. C IT (A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER PASSED BY THE LD. A.O. AND IN NOT DELETING THE IM PUGNED ADDITION MADE BY LD. A.O. AND THE ASSESSMENT ORDER IS NOT SUSTAI NABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS AND MORE SO AS THE SAME HAS BEEN PASSED BY RECORDING INCORRECT FACTS AND FINDING AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT REV ERSING THE ACTION OF LD. A.O. IN CHARGING INTEREST U/S 234B AND 234C OF THE INCOME TAX ACT, 1961. 2. ITA NO.1844/DEL/2011 IS ASSESSEES APPEAL IN THE CASE OF SHRI SIDDHARTH JAIN, THE ASSESSEE IN ITA NO.1843/DEL/2011, C HALLENGING THE ACTION OF THE CIT (A) IN CONFIRMING THE LEVY OF PENALTY OF ` 8,00,000/- U/S 271B OF THE IT ACT. 3. THE ASSESSING OFFICER MADE ADDITION OF ` 53,81,355/- IN THE CASE OF SUBHASH CHAND JAIN, THE ASSESSEE IN ITA NO.1842/DEL/201 1 AND OF ` 9,50,000/-, IN THE CASE OF SIDDHARTH JAIN, THE ASSESSEE IN ITA NO.1843/DEL/2011, FOR THE YEAR UNDER CONSIDERATION, ON ACCOUNT OF CASH DEPOSIT OUT OF UNDISCLOSED SOURCES OF INCOME, UNDER SECT ION 68 OF THE IT ACT. THE CIT (A) DISMISSED THE APPEALS FILED BY BOTH THE ASSESSE S. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT IN THE CASE OF A CONNECTED ASSESSEE, SHRI MANAN JAIN, IN ITA NO .1845/DEL/2011 FOR ASSESSMENT YEAR 2006-07, VIDE ORDER DATED 13.04.2012, T HE TRIBUNAL HAS, UNDER SIMILAR CIRCUMSTANCES, REMITTED THE APPEAL TO TH E FILE OF THE ASSESSING ITA NO.1842/DEL/2011 ITA NOS.1843 & 1844/DEL/2011 3 OFFICER FOR DECISION AFRESH, OBSERVING THAT THE ASSESSEE I N THAT CASE, ALONG WITH HIS FATHER, SHRI SUBHASH CHAND JAIN (THE ASSESSEE IN ITA NO.1842/DEL/2011), WAS PLANNING TO PURCHASE LAND SITUA TED IN VILLAGE KAMAAS PUR, DISTT. SONEPAT, HARYANA FOR GROUP HOUSING COMPLEX AT GT ROAD, SONEPAT, HARYANA; THAT THE ASSESSEE HAD, HOWEVER, NOT F ILED ANY DOCUMENTARY EVIDENCE IN THIS REGARD; THAT THE ASSESSEE H AD ALSO FAILED TO PROVE HIS CLAIM THAT THE AMOUNT HAD BEEN WITHDRAWN F OR INITIAL PAYMENTS TO LAND OWNERS SHRI SATBIR SINGH, WITH WHOM THE ASSESSEE WA S NEGOTIATING TO PURCHASE THE LAND; THAT NO EVIDENCE HAD BEEN PRODUCE D WITH REGARD TO THE ASSERTION THAT AGREEMENT TO SELL WERE PREPARED IN RESPE CT OF THE DEAL WITH THE INTENDING SELLERS; THAT EVEN NO EVIDENCE HAD BEEN FURNISHED TO SUPPORT THE CLAIM THAT THE ASSESSEE HAD, AT A LATER STAGE, COME TO KNOW THAT THE LAND INTENDED TO BE PURCHASED STOOD ALREADY IDENTIFIED BY HUDA FOR THE PURPOSE OF HOUSE COMPLEX FOR M/S OMAXE LIMITED, NOR WAS ANY EV IDENCE BROUGHT TO SUPPORT THE CLAIM THAT THE DEAL DID NOT MATERIALIZE AND THE CASH WITHDRAWAL WAS NOT UTILIZED; THAT FURTHER, IT HAD BEEN CLAIMED VIDE LETTER DATED 18.11.2010, THAT DURING THE PERIOD RELEVANT TO ASSESSME NT YEAR 2005-06, THE ASSESSEE WAS IN THE PROCESS OF ACQUIRING LAND IN THE REVEN UE ESTATE OF VILLAGE MEHRAULI, TEHSIL HAUZ KHAS, NEW DELHI AND IT WAS NEGOT IATED JOINTLY WITH HIS FATHER (SHRI SUBHASH CHAND JAIN, THE ASSESSEE IN ITA NO .1842/DEL/2011) AND HIS BROTHER (SHRI SIDDHARTH JAIN, THE ASSESSEE IN ITA NO .1843/DEL/2011), TO LAUNCH A RESIDENTIAL COMPLEX; THAT AS SUCH, NONE OF T HESE CLAIMS OF THE ASSESSEE, AS MADE IN LETTERS DATED 29.03.2010 AND 18.11.2 010 STOOD SUBSTANTIATED BY ANY DOCUMENTARY EVIDENCE; THAT EVEN THE CONCERNED PERSONS WITH WHOM THE TRANSACTIONS WERE MADE AND NEGOTI ATED, WERE NOT PRODUCED BEFORE THE TAXING AUTHORITIES; AND THAT IN THE STATEMENT RECORDED ON 28.06.2008, THE ASSESSEE HAD NOT GIVEN THE CORRECT A ND PROPER ADDRESS OF SHRI ANIL KUMAR CLAIMED TO BE THE DEALER FOR THE TR ANSACTION OF THE PURCHASE OF THE PROPERTY. ITA NO.1842/DEL/2011 ITA NOS.1843 & 1844/DEL/2011 4 5. IT HAS BEEN SUBMITTED BY THE LD. COUNSEL FOR THE ASSE SSEE THAT SINCE UNDER SIMILAR CIRCUMSTANCES, THE CONNECTED MATTER OF S HRI MANAN JAIN STANDS REMITTED TO THE FILE OF THE ASSESSING OFFICER AS ABOVE, THESE APPEALS, ALONG WITH ITA NO.1844/DEL/2011, WHICH IS A CONSEQUENTIAL M ATTER, BE ALSO REMITTED TO THE FILE OF THE ASSESSING OFFICER. 6. THE LD. DR, ON THE OTHER HAND, HAS SUBMITTED THAT EACH APPEAL IS AN INDEPENDENT MATTER AND NEEDS TO BE DECIDED SEPARATELY , ON A STAND ALONE BASIS. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. IN SHRI MANAN JAIN VS. ITO, WARD 19 (2), NEW DELHI VIDE ORDER DATED 13.04.2012 , PASSED BY THE TRIBUNAL IN ITA NO.1845/DEL/2011, UNDER CIRCUMSTANCES SIMILAR T O THOSE PRESENT HEREIN, THE TRIBUNAL HAS REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER, OBSERVING AS FOLLOWS:- 6. WE HAVE HEARD BOTH THE SIDES IN DETAIL. THE ASSE SSEE HAS CLAIMED THAT THERE WAS PLANNING TO PURCHASE THE LAND JOI NTLY WITH HIS FATHER SHRI SUBHASH CHAND JAIN FOR GROUP HOUSING COM PLEX AT G.T. ROAD, SONEPAT, HARYANA. THE LAND WAS STATED TO BE SITU ATED IN THE VILLAGE KAMAAS PUR, DISTT. SONEPAT, HARYANA. ASSESSEE HAD NOT FILED ANY DOCUMENTARY EVIDENCE IN THIS REGARD. ASSESSEES CLAIM THAT THE AMOUNT WAS WITHDRAWN FOR INITIAL PAYMENTS TO LAND OWNERS THOUGH SATBIR SINGH WITH WHOM THE ASSESSEE WAS NEGOTIATING TO PU RCHASE THE LAND BUT ASSESSEE FAILED TO PRODUCE THE SAME. IT IS CL AIMED THAT AGREEMENTS TO SELL WERE PREPARED WITH RESPECT OF THE DE AL WITH THE INTENDED SELLERS. HOWEVER, NO EVIDENCE WAS FILED IN THIS REGARD. THE ASSESSEE ALSO CLAIMS THAT HE CAME TO KNOW AT LATER STAGE THAT THE LAND, WHICH WAS INTENDED TO BE PURCHASED, WAS ALREADY IDEN TIFIED BY THE HUDA FOR THE PURPOSES OF HOUSING COMPLEX FOR M/S. OM AXE LIMITED. BUT NO SUPPORTING EVIDENCE WAS FILED. IT IS CLAIMED THAT THE DEAL WAS NOT MATERIALIZED AND THE CASH WITHDRAWAL WAS NOT UTILIZED . THIS CLAIM ALSO NOT SUPPORTED BY ANY EVIDENCE. FURTHER IN THE LE TTER DATED 18.11.2010, IT WAS SUBMITTED THAT DURING THE PERIOD REL EVANT TO ASSESSMENT YEAR 2005-06, THE ASSESSEE WAS IN THE PROCE SS TO ACQUIRE A LAND IN THE REVENUE ESTATE OF VILLAGE MEHRAULI, TEHS IL HAUZ KHAS, NEW DELHI AND IT WAS BEING NEGOTIATED JOINTLY WITH HIS FATHE R AND BROTHER TO LAUNCH A RESIDENTIAL COMPLEX. THIS ASSERTION IS ALS O NOT SUPPORTED BY ANY EVIDENCE. NONE OF THESE CLAIMS OF THE ASSESSEE A S MADE IN LETTER ITA NO.1842/DEL/2011 ITA NOS.1843 & 1844/DEL/2011 5 DATED 29.03.2010 AND 18.11.2010 ARE SUBSTANTIATED BY AN Y DOCUMENTARY EVIDENCE. EVEN THE CONCERNED PERSONS WITH WHOM THE TRANSACTION WERE MADE OR NEGOTIATED WERE NOT PRODUCED B EFORE THE AUTHORITIES BELOW. IN THE STATEMENT RECORDED ON 28.06.20 08, THE ASSESSEE HAS NOT GIVEN CORRECT AND PROPER ADDRESS OF SHRI ANIL KUMAR WHO IS CLAIMED TO BE THE DEALER FOR TRANSACTION OF PU RCHASE OF PROPERTY. THUS, THE CLAIM OF ASSESSEE THAT CASH WITHDRAWAL WAS N OT UTILIZED FOR OTHER PURPOSES HAVE REMAINED UNPROVED. PRIMARY ONU S IS ON ASSESSEE TO SUBSTANTIATE THE CLAIM OF FAILURE OF LAND DEALS DUE TO WHICH CASH REMAINED UNUTILIZED. ASSESSEE HAD NOT DISCHARGED ONU S BY FILING ANY EVIDENCE EITHER DOCUMENTARY OR ORAL IN THIS REGARD. THE ASSESSEES RELIANCE ON THE TWO DECISIONS OF ITAT IN THE CASES OF ACIT VS. BALDEV RAJ CHARLA & ORS. AND M/S. MOONGIPA INVESTMENT LTD. VS. ITO, CITED SUPRA, ARE OF NO HELP AS THE FACTS IN THOSE CASES ARE TOTALLY DIFFERENT FROM THE FACTS OF ASSESSEES CASE. SINCE ASSESSEE HA S ALSO PRAYED IN GROUND OF APPEAL THAT ORDER HAD BEEN PASSED WITHOUT GIV ING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THEREFORE, IN THE INTEREST O F JUSTICE AND EQUITY, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. 8. SINCE THE MATTER IN ITA NOS.1842/DEL/2011 AND 184 3/DEL/2011 IS EXACTLY SIMILAR TO AND DIRECTLY CONNECTED WITH THE C ASE OF MANAN JAIN (SUPRA), IN THE INTEREST OF JUSTICE, FOR A JUST DECISION OF THE MATTER, WE REMIT THESE APPEALS TO THE FILE OF THE ASSESSING OFFICER, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING DUE OPPORTUNITY O F HEARING TO THE ASSESSES, IN THE LIGHT OF THE DECISION TO BE TAKEN IN THE CASE OF MANAN JAIN (SUPRA). ITA NO.1844/DEL/2011 IS ALSO REMITTED TO THE ASSESSING OFFICER, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE, IN THE LIGHT OF HIS DECISION IN ITA NO.1843 /DEL/2011. ORDERED ACCORDINGLY. 9. IN THE RESULT, FOR STATISTICAL PURPOSES, ALL THE THRE E APPEALS FILED BY THE ASSESSES ARE TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.02.201 4. SD/- SD/- [ SHAMIM YAHYA ] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 21 ST FEBRUARY, 2014. ITA NO.1842/DEL/2011 ITA NOS.1843 & 1844/DEL/2011 6 DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.