Shri Girraj Bansal, New Delhi V. ACIT, New Delhi

ITA 2002/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9377 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDER PAL SINGH BINDRA
• Keywords: Corroborative evidences; Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO.-2002/DEL/2017 ASSESSMENT YEAR: 2008-09 SH. GIRRAJ BANSAL 14, ASHOKA AVENUE ROAD, DLF FARMS, CHATTARPUR NEW DELHI PAN : AAGPR2648F VS . ACIT CENTRAL CIRCLE-26 NEW DELHI APPELLANT RESPONDENT ASSESSEE BY : SH RAJESH MALHOTRA, C A REVENUE BY : SH. INDER PAL SINGH BI NDRA, CIT-DR ORDER PER ANADEE NATH MISSHRA, J.M.: (A) THIS APPEAL FILED BY THE ASSESSEE IS AGAINST IM PUGNED APPELLATE ORDER DATED 20.01.2017 PASSED BY THE LD. CIT (APPEALS)-31, NEW DELHI FOR ASSESSMENT YEAR 2008-09 . FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED AS UND ER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONCLUD ING THAT LEARNED AO HAS CORRECTLY ASSUMED JURISDICTION TO ASSESS THE ASSESSEE U/S 153A/143(3) OF THE ACT, THE 2 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) WHOLE ACTION IS WRONG, ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN CONFIRMING ADDITION OF RS.83,50,000/- ON PRESUMPTIO N BASIS THAT THE ASSESSEE HAS RECEIVED THIS AMOUNT OF RS.83,50,000/- IN CASH NOT DECLARED IN REGISTERED S ALE DEED ON ACCOUNT OF SALE OF FIRST FLOOR AND BARSATI OF PROPERTY NO. 31, BLOCK J, SOUTH EXTENSION PART I, N EW DELHI. THE ACTION OF THE AUTHORITIES BELOW IS WRONG , ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN CONFIRMING THE ADDITION OF RS.83,50,000/- OBJECTED IN GROUND NO. 2 ABOVE ON THE BASIS OF SEARCH AND SEIZU RE CONDUCTED AND ALLEGED EVIDENCES FOUND IN PREMISES O F THIRD PARTY WITHOUT FOLLOWING THE PROPER PROCEDURE IN THE LAW BEFORE RELYING ON THOSE EVIDENCES THEREFORE ACTION OF THE AUTHORITIES BELOW IS WRONG, ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN CONFIRMING ADDITION OF RS.83,50,000/- ON PRESUMP TION 3 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) BASIS THAT THE ASSESSE HAS RECEIVED THIS AMOUNT OF RS.83,50,000/- IN CASH NOT DECLARED IN REGISTERED S ALE DEED ON ACCOUNT OF SALE OF ANOTHER PROPERTY AT GROU ND FLOOR NO. 31, BLOCK J, SOUTH EXTENSION PART I, NEW DELHI. THE ACTION OF THE AUTHORITIES BELOW IS WRONG , ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN CONFIRMING THE ADDITION OF RS.83,50,000/- OBJECTED IN GROUND NO.4 ABOVE ON THE BASIS OF SEARCH AND SEIZUR E CONDUCTED AND ALLEGED EVIDENCES FOUND IN PREMISES O F THIRD PARTY WITHOUT FOLLOWING THE PROPER PROCEDURE IN THE LAW BEFORE RELYING ON THOSE EVIDENCES THEREFORE ACTION OF THE AUTHORITIES BELOW IS WRONG, ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN CHARGING INTEREST U/S 234A RS.5,03,685/-, INTEREST U/S 234B RS.53,72,637/- AND INTEREST U/S 234C RS.2,08,000/-. THE ACTION OF THE AUTHORITIES BELOW IS WRONG, ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD A T LAW THEREFORE IT SHOULD BE QUASHED. 4 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) 7. T HE APPELLANT CRAVES THE RIGHT TO ADD, SUBMIT, ALTER OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL BEFORE OR ON THE DATE OF HEARING. (B). THE ASSESSMENT ORDER DATED 30.03.2016 WAS PASS ED U/S 253A/143(3) OF INCOME TAX ACT WHEREIN TWO SEPAR ATE ADDITIONS OF RS. 83,50,000/- EACH, TOTAL 1,67,00,00 0/- WAS MADE ON ACCOUNT OF ALLEGED UNDISCLOSED CASH RECEIVE D TOWARDS SALE OF PROPERTIES. THE ASSESSEE HAD 50% SH ARE IN THE AFORESAID PROPERTIES AND THE ADDITION MADE BY T HE ASSESSING OFFICER AS AFORESAID WAS 50% OF THE ALLEG ED TOTAL CASH RECEIVED BY THE TWO CO-OWNERS OF THE PROPERTIE S. THE REMAINING 50% ADDITION HAS BEEN MADE IN THE HANDS O F THE OTHER CO-OWNER, NAMELY SH. BHARAT SINGH WHO ALSO HA PPENS TO BE THE BROTHER OF THE ASSESSEE. THE RELEVANT POR TION OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER :- 5 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) 6 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) 7 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) (C). AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE TH E LD. CIT(A) WHO, VIDE HIS IMPUGNED APPELLATE ORDER DATED 20.01.2017, DISMISSED THE ASSESSEES APPEAL AND CON FIRMED THE AFORESAID ADDITIONS TOTAL 1,67,00,000/- WAS CON FIRMED. THE RELEVANT PORTION OF THE AFORESAID IMPUGNED ORDE R DATED 20.01.2017 OF THE LD. CIT(A) IS REPRODUCED AS UNDER :- 7.4 IT IS CLEAR THAT THE APPELLANT HAD RECEIVED A CASH OF RS.83,50,000/- UPON SALE OF I ST FLOOR OF THE PROPERTY. THE GROUND FLOOR OF THE SAME PROPERTY WAS SOLD TO THE WIFE OF THE BUYER OF THE L SL FLOOR. THUS, THE AUTOMATIC CONCLUSION IS THAT THE SAME ALSO MUST HAV E FETCHED AN EQUAL AMOUNT OF CASH, WHICH HAS BEEN ADDED BY ID. AO TO THE INCOME OF THE APPELLANT. 7.5 VARIOUS DECISIONS RELIED UPON BY ID AR ARE DISTINGUISHABLE BOTH ON FACTS AND LAW HENCE THE RELIANCE IS NOT WELL PLACED. 7.6 IN VIEW OF THE ABOVE, I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF ID. AO. ACCORDINGLY, TH E ADDITION OF RS. 1,67,00,000/- IS CONFIRMED AND THE GROUND NOS. 3 TO 8 ARE DISMISSED. (D). AGGRIEVED AGAIN, THE ASSESSEE HAS FILED THIS P RESENT APPEAL IN ITAT AGAINST THE AFORESAID IMPUGNED APPEL LATE ORDER DATED 20.01.2017 OF THE LD. CIT(A). IN THE CO URSE OF APPELLATE PROCEEDINGS IN ITAT, COPY OF ORDER DATED 25.01.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI IN T HE CASE OF SH. BHARAT SINGH (THE OTHER CO-OWNER OF THE PROP ERTIES, 8 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) WAS WHO ALSO HAPPENS TO THE ASSESSEES BROTHER) IN ITA NOS. 2001/DEL/2017 WAS FILED FROM THE ASSESSEES SIDE. (E). AT THE TIME OF HEARING BEFORE US, THE LD. AUTH ORISED REPRESENTATIVE (AR FOR SHORT) OF THE ASSESSEE SUBMI TTED AT THE OUTSET THAT THE ISSUE IN DISPUTE IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY AFOR ESAID ORDER DATED 25.01.2019 OF CO-ORDINATE BENCH OF ITAT , DELHI IN THE CASE OF THE AFORESAID SH. BHARAT SINGH. HE S UBMITTED THAT IN IDENTICAL FACTS AND CIRCUMSTANCES, ADDITION S HAVE ALREADY BEEN DELETED BY ITAT VIDE THE AFORESAID ORD ER DATED 25.01.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI; AND CONTENDED THAT THE ADDITIONS MADE IN THE HANDS OF T HE ASSESSEE ALSO DESERVES TO BE DELETED FOLLOWING THE PRECEDENT IN THE CASE OF SH. BHARAT SINGH. THE LD. CIT-DR APP EARING FOR REVENUE ALSO AGREED THAT THE ISSUES IN DISPUTE IN THE PRESENT APPEAL ARE SQUARELY COVERED IN FAVOUR OF TH E ASSESSEE VIDE THE AFORESAID ORDER DATED 25.01.2019 OF CO-ORD INATE BENCH OF ITAT, DELHI IN THE CASE OF AFORESAID SH. B HARAT SINGH. MOREOVER, HE COULD NOT BRING OUT ANY DISTING UISHING FACTS AND CIRCUMSTANCES IN THE CASE OF THE ASSESSEE TO PERSUADE US TO TAKE A VIEW DIFFERENT FROM THE VIEW ALREADY TAKEN BY CO-ORDINATE BENCH OF ITAT, DELHI IN THE CA SE OF AFORESAID SH. BHARAT SINGH. THE LD. CIT-DR FURTHER AGREED THAT FACTS AND CIRCUMSTANCES IN THE CASE OF ASSESSE E ARE IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN THE CAS E OF THE AFORESAID SH. BHARAT SINGH. 9 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) (F). WE HAVE HEARD BOTH SIDES AND PERUSED THE MATER IALS ON RECORD. THERE IS NO DISPUTE THAT THE FACTS AND CIRC UMSTANCES IN THE CASE OF THE ASSESSEE ARE IDENTICAL TO FACTS AND CIRCUMSTANCES IN THE CASE OF THE AFORESAID SH. BHAR AT SINGH IN WHOSE CASE CO-ORDINATE BENCH OF ITAT, DELHI HAS ALREADY DELETED SIMILAR ADDITIONS VIDE AFORESAID ORDER DATE D 25.01.2019. NEITHER SIDE HAS BROUGHT ANY DISTINGUIS HING FACTS AND CIRCUMSTANCES TO OUR NOTICE TO PERSUADE U S TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN ALREADY IN IDE NTICAL FACTS AND CIRCUMSTANCES, IN THE CASE OF AFORESAID SH. BHA RAT SINGH; BY CO-ORDINATE BENCH OF ITAT, DELHI IN THE A FORESAID ORDER DATED 25.01.2019 OF ITAT. FOR READY REFE RENCE THE FOLLOWING PORTION OF THE AFORESAID ORDER DATED 25.0 1.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI IS REPRODUCED :- 5.14 .WE ARE OF THE OPINION THAT NO ADDITION CAN BE SUSTAINED ONLY ON THE BASIS OF THE UNSIGNED DRAFT AGREEMENT TO SELL FOUND FROM THE PREMISES OF THE TH IRD PARTY AND THAT TOO WITHOUT ANY CORROBORATIVE EVIDENCES. ACCORDINGLY, WE SET ASIDE THE ORDER OF T HE LD. CIT(A) AND THE ASSESSING OFFICER ON THE ISSUE I N DISPUTE AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.83,50,000/- FOR ALLEGED CASH RECEIVE D ON SALE OF 1ST FLOOR OF THE PROPERTY UNDER REFERENC E. THE GROUNDS NO. 2 AND 3 OF THE APPEAL ARE, ACCORDINGLY, ALLOWED. 6. IN GROUND 4 AND 5 OF THE APPEAL, SIMILAR ADDITIO N OF RS.83,50,000/- HAS BEEN MADE IN RESPECT OF THE GROUND FLOOR OF THE SAME PROPERTY SOLD BY THE ASSES SEE ON THE BASIS OF THE DRAFT AGREEMENT TO SALE DISCUSS ED IN GROUNDS NO. 2 AND 3 OF THE APPEAL. THE GROUNDS NO. 2 AND 3 OF THE APPEAL HAVE ALREADY BEEN ALLOWED AND THUS, TO HAVE CONSISTENCY IN OUR DECISION ON TH E 10 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) ISSUE IN DISPUTE, THE GROUND NO. 4 AND 5 OF THE APP EAL ARE ALSO ALLOWED. (G). RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF CO- ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF AFORES AID SH. BHARAT SINGH IN WHOSE CASE VIDE AFORESAID ORDER DAT ED 25.01.2019, CO-ORDINATE BENCH OF ITAT, DELHI HAS AL READY DELETED SIMILAR ADDITIONS IN IDENTICAL FACTS AND CIRCUMSTANCES, WE ALSO DECIDE THE ISSUES IN DISPUTE IN THE PRESENT APPEAL IN FAVOUR OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE AFORESAID TWO SEPAR ATE ADDITIONS, EACH OF RS. 83,50,000; TOTALING RS.1,67 ,00,000/-. (H). IN RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/01/20. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08.01.2020 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 11 ITA NO. 2002/DEL/2017 (SH. GIRRAJN BANSAL) DATE OF DICTATION 03.01.2020 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