DCIT, New Delhi V. Sh. Mohan Jagthap, Gurgaon

ITA 1909/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2876 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 30-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HK CHADHURY
• Assessee Lawyers: MUKESH RANA
• Keywords: Unexplained investment; Recovery proceedings; Search and seizure

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI R.P.TOLANI , HONBLE VICE PRESIDENT JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1909/DEL/2013 (ASSESSMENT YEAR: 2007 - 08 ) DCIT, CIRCLE - 13, NEW DELHI VS. MOHAN JAGTHAP, 2995, SECTOR - 23, GURGAON PAN:ADJPJ3988R (APPELLANT) (RESPONDENT) C . O . NO. 164/DEL/2013) (IN ITA NO. 1909/DEL/2013) (ASSESSMENT YEAR: 2007 - 08) MOHAN JAGTHAP, 2995, SECTOR - 23, GURGAON PAN:ADJPJ3988R VS. DCIT, CIRCLE - 13, NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : SH. HK CHADHURY, CIT DR ASSESSEE BY: SH. MUKESH RANA, AR DATE OF HEARING 05/06 / 2017 DATE OF PRONOUNCEMENT 06 / 06 / 2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THI S APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - 1, NEW DELHI DATED 07.01.2013 FOR THE ASSESSMENT YEAR 2007 - 08 RAISING FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LD CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 35800000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN LAND BY THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT ADDITION WAS MADE ON THE BASIS OF MATERIAL SEIZED DURING THE COURSE OF SEARCH. 2. THE ASSESSEE PREFERRED CROSS OBJECTION IN THE SAME APPEAL RA I SING FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD CIT(A) DELETED THE ADDITION OF RS. 35800000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENTS AND DECIDED THE CASE IN FAVOUR OF THE ASSESSEE. THE LEARNED ASSESSING OFFICER APPE ALED THE ORDER OF LEARNED CIT(APPEALS) WITH HONBLE APPELLATE TRIBUNAL. 2. THE APPELLANT, RESPECTFULLY SUBMITS AS FOLLOWS: - PAGE 2 OF 4 A. THAT THE LAND WHICH IS CALLED AS UNEXPLAINED INVESTMENT DOES NOT EXIST AS EXPLAINED IN PROCEEDING WITH LEARNED ASSESSING OFFICE R AND LEARNED CIT(A) AND THIS ADDITION WAS MERELY MADE ON THE BASIS OF DUMB DOCUMENT WHICH DOES NOT HOLD ANY DATE OF SIGNATURE. B. THAT THE SEARCH AND SEIZURE WAS CONDUCTED IN REGARDS TO MR. SURESH NANDA GROUP AND ASSESSEE WAS A JUNIOR LEVEL STAFF IN ONE OF HIS COMPANIES. THE STATEMENT OF ASSESSEE DURING THE SEARCH AND SEIZURE WAS RECORDED WHERE IT WAS VERY CLEARLY STATED BY THE ASSESSEE THAT HE WAS TRYING TO FIND A PROPERTY FOR MR. SURESH NANDA ON HIS INSTRUCTION AND NO INVESTIGATION WAS DONE BY THE LEARN ED ASSESSING OFFICER TO FIND OUT DOES SUCH PROPERTY IN REAL EXIST OR NOT ASSESSING OFFICE SHALL HAD MADE THIS ADDITION IN ACCOUNT OF MR. SURESH NANDA AS SEARCH AND SEIZURE WAS CONDUCTED UNDER HIS COMPANY/ GROUP NAME. THE LD ASSESSING OFFICER NEVER ADDRESSE D THE FACT THAT THIS DOCUMENT NEITHER WRITTEN BY ASSESSEE OR HIS FAMILY MEMBERS. C. THAT IF ANY OF SUCH PROPERTY EXIST WHY THE SAME WAS NOT LOCATED AND ATTACHED BY THE LEARNED ASSESSING OFFICER FOR RECOVERY OF TAX, IT PROVES THE FACT THAT LEARNED ASSESSIN G OFFICER MADE SURMISE ON THE BASIS OF ONE LOOSE PAPER SEIZED DURING SEARCH AND SEIZURE AND NO SUPPORTING FACT OR DOCUMENT TO SUPPORT THIS ADDITION BY THE ASSESSING OFFICER. 3. THAT APPELLANT, THEREFORE PRAYS THAT THE LD ASSISTANT COMMISSIONER OF INCOME TAX MAY BE DIRECTED TO MODIFY THE ASSESSMENT ACCORDINGLY AND TO GIVE EFFECT OF THE ORDER OF LD CIT(A). 3. IN THE PRESENT CASE AGAINST THE ORDER OF THE LD CIT( A) 07.01.2013 THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COORDINATE BENCH VIDE ITA NO. 1827/DEL/2013 FOR AY 2007 - 08. THIS APPEAL WAS DISPOSED OFF BY ITAT VIDE ORDER DATED 27.01.2015 WHEREIN, THE ITAT RESTORED THE MATTER BACK TO THE FILE OF LD ASSESSING OF FICER FOR AFRESH DE NOVO ADJUDICATION. INADVERTENTLY, AT THAT PARTICULAR TIME THE APPEAL FILED BY THE REVENUE IN THE IMPUGNED ITA NO. 1909/DEL/2013 AND CO OF THE ASSESSEE NO. 64/DEL/ 2013 FOR ASSESSMENT YEAR 2007 - 08 WAS NOT BROUGHT TO THE NOTICE OF THE BENC H EITHER BY THE REVENUE OR BY THE ASSESSEE. THEREFORE, THE COORDINATE BENCH COULD NOT ADJUDICATE THIS APPEAL AT THE TIME OF DISPOSAL OF THE APPEAL OF THE ASSESSEE FOR THE SAME ASSESSMENT YEAR AGAINST THE SAME ORDER OF THE LD CIT(A). NOW THE APPEAL OF THE R EVENUE AS WELL AS THE CO OF THE ASSESSEE IS FIXED FOR HEARING BEFORE US. 4. THE LD AR SUBMITTED THE COPY OF THE ORDER OF THE COORDINATE BENCH DATED 27.01.2015 AS WELL AS SUBMITTED COPY OF ITA NO. 6026/DEL/2016 OF THE REVENUE FOR AY 2007 - 08 WHEREIN, IDENTICAL GROUNDS OF APPEAL ARE RAISED. THEREFORE, HE SUBMITTED THAT THE ABOVE APPEAL OF THE REVENUE AS WELL AS THE CO OF THE ASSESSEE HAS BECOME INFRACTUOUS. 5. THE LD DR ALSO PERUSED THE RELEVANT GROUNDS OF APPEAL OF ITA NO. 6026/DEL/2016 AND ITA NO. 1909/DEL/2013. HE ALSO CONFIRMED THE SIMILARITY OF THE GROUNDS FOR THE SAME ASSESSMENT YEAR. PAGE 3 OF 4 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT APPEALS. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS AN INDIVIDUAL FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2007 - 08 ON 19.10.2009 DECLARING TOTAL INCOME OF RS. 234000/ - . IT WAS NOTED THAT VIDE ORDER DATED 27.01.2015, THE COORDINATE BENCH WHILE DECIDING THE APPEAL NO. 1827, 1828, 1829, 1830/DEL/2013 FOR THE ASSESSMENT YEAR 2007 - 08, 2002 - 03, 2006 - 07 AND 2005 - 06 HAS SET ASIDE THE APPEAL OF THE ASSESSEE BACK TO THE FILE OF THE AO. SUBSEQUENTLY, THE ASSESSMENT WAS FRAMED U/S 1 43(3) READ WITH SECTION 254 OF THE ACT BY THE LD AO WHICH WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD CIT(A). THE LD CIT(A) GAVE RELIEF TO THE ASSESSEE ON ADDITION OF RS. 3,58,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN LAND BY THE ASSESSEE. THE REVENUE CHALLENGED THE ORDER OF THE LD CIT(A) IN ITA NO. 6026/DEL/2016 , WHEREIN, THE FOLLOWING GROUNDS OF APPEAL ARE RAISED: - 1. THE ORDER OF LD CIT(A) IS NOT CORRECT I LAW AND ON FACTS. 2. ON THE FACTS OF THE CASE, THE CIT(A) HAS ERRED IN DELETING T HE ADDITION OF RS. 35800000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 523846/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED EXPENSES. 7. WE HAVE PERUSED ITA NO. 1909/DEL/2013 FOR ASSESSMENT YEAR 2007 - 08 WHERE THE REVENUE HAS ONCE CHALLENGED THE SIMILAR ADDITION BEFORE US. IN VIEW OF THE ABOVE FACTS THE ABOVE APPEAL BEFORE US HAS BECOME INFRACTUOUS IN VIEW OF THE ORDER OF THE COORDINATE BENCH DATED 27.01.2015. HOWEVER , THE INTEREST OF THE REVENUE IS SAFEGUARDED AS THE ISSUES IN ITA NO. 1909/DEL/2013 ARE STILL PENDING IN ITA NO. 6026/DEL/2016 FOR ASSESSMENT YEAR 2007 - 08 IN ASSESSEE OWN CASE . THEREFORE , THE PRESENT APPEAL BECOMES INFRACTUOUS. HENCE, WE DISMISS THE SAME. FURTHER THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO SUPPORTIVE IN NATURE, THEREFORE SAME IS ALSO DISMISSED. 8. IN THE RESULT THE APPEAL BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 6 / 06 / 2017 . - S D / - - S D / - ( R.P.TOLANI ) (PRASHANT MAHARISHI) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 0 6 / 06 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT PAGE 4 OF 4 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI