Mr. Sandeep Kumar Garg, New Delhi V. ITO, New Delhi

ITA 2585/DEL/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69483 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-08-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 18-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: VK SABHARWAL
• Keywords: Gift; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER I.T.A. NO.2585/DEL./2011 ASSESSMENT YEAR: 2002-03 SANDEEP KUMAR GARG VS. INCOME-TAX OFFICER, Z-83, LOHA MANDI, NARAINA, WARD 27(1), NEW DELHI NEW DELHI PAN/GIR NO. AEOPG 7887 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.K. SABHARWAL, ADVOCATE RESPONDENT BY : MS. Y. KAKKAR, SR. DR ORDER PER U.B.S. BEDI, JM: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGA INST THE ORDER PASSED BY LEARNED CIT(A)-XXIV, NEW DELHI DATED 17.02.2011 REL EVANT TO ASSESSMENT YEAR 2002-03 WHEREBY BESIDES CHALLENGING CONFIRMATI ON OF INITIATION OF PROCEEDING U/S 147, ASSESSEE HAS ALSO CHALLENGED CO NFIRMATION OF ADDITION OF RS.95,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME-TAX ACT, 1961. 2. FACTS INDICATE THAT THE ASSESSING OFFICER RECEI VED INFORMATION FROM THE DIT(INV.), NEW DELHI ABOUT ACCOMMODATION E NTRIES TAKEN BY DIFFERENT PERSONS/ASSESSES. THE LIST OF SUCH PERSON S INCLUDED THE NAME OF THE ASSESSEE AS ONE OF THE BENEFICIARIES OF ACCOMMODATI ON ENTRIES. FROM THE I.T.A. NO.2585/DEL/2011 2 INFORMATION, THE ASSESSING OFFICER INFERRED THAT TH E ASSESSEE HAD TAKEN ACCOMMODATION ENTRY OF `95,000/- FROM SHRI LEELA DH AR DURING THE YEAR UNDER CONSIDERATION. ON THE BASIS OF THIS INFORMAT ION, THE ASSESSING OFFICER INITIATED REASSESSMENT PROCEEDINGS. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE ASSESSEE FILED RETURN ON 17.4.2007. DURIN G /THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT THE SUM OF `95,000/- WAS GIFT RECEIVED FROM SHRI LEELA DHAR. HOWEVER, THE CREDIT APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE ON THIS SCORE WAS NOT EXPLA INED BEYOND SHADOW OF DOUBT BY THE ASSESSEE, THEREFORE, THE ASSESSING OFF ICER HELD IT AS UNDISCLOSED INCOME OF THE ASSESSEE AND ASSESSED IT ACCORDINGLY U/S 68 OF THE ACT. 2.1 ASSESSEE CHALLENGED SUCH ACTION OF THE ASSESSI NG OFFICER IN APPEAL AND IT WAS CONTENDED BEFORE THE FIRST APPELL ATE AUTHORITY THAT NEITHER INITIATION OF PROCEEDING U/S 147 WAS JUSTIFIED NOR ADDITION MADE OF RS.95,000/- U/S 68 IS PROPER. MOREOVER, REASONABLE OPPORTUNITY HAS NOT BEEN AFFORDED TO THE ASSESSEE BEFORE PASSING OF THE ASSE SSMENT ORDER. THEREFORE, IT WAS PLEADED TO DELETE THE ADDITION BY QUASHING T HE REASSESSMENT. 2.2 DETAILED ARGUMENTS WERE ADVANCED AND VARIOUS D ECISIONS WERE CITED ON THE POINT OF REASSESSMENT AS WELL AS ON DE LETION OF ADDITION TO PLEAD FOR QASHMENT OF THE ORDER OR IN ALTERNATIVE, DELETI ON OF ADDITION MADE. 2.3 LD. CIT(A) DISCUSSED AND CONSIDERED EACH AND EV ERY POINT OF ARGUMENTS RAISED BEFORE HIM IN THE LIGHT OF VARIOUS CASE LAWS CITED. WHILE CONSIDERING AND DISCUSSING THE LEGAL AS WELL AS FAC TUAL ASPECTS FROM PARAS 2 TO 2.2, 3, 4 TO 4.7 AND 5 TO 5.9 HAS CONCLUDED TO D ISMISS THE APPEAL OF THE ASSESSEE AS PER PARA 5.10 OF HIS ORDER WHICH IS REP RODUCED AS UNDER: 5.10 IN VIEW OF THE FACTUAL AND CIRCUMSTANTIAL EVI DENCE AS DISCUSSED ABOVE, I HEREBY COME TO THE CONCLUSION THAT THE APP ELLANT HAS NOT I.T.A. NO.2585/DEL/2011 3 RECEIVED THE GIFT. IN THIS CONTEXT, THE ATTENTION IS DRAWN TO THE OBSERVATION THE OBJECT OF THE COURT IS TO METE OUT JUSTICE AND TO CONVICT THE GUILTY AND PROTECT THE INNOCENT, THE TR IAL SHOULD BE A SEARCH FOR THE TRUTH AND NOT ABOUT OVER TECHNICALITIES MA DE BY THE HONBLE SUPREME COURT WITH REFERENCE TO THE APPEAL FILED AG AINST THE DECISION OF LOWER COURT IN JESSICA LAL MURDER CASE ACQUITTIN G THE CULPRITS TO STATE. THE OVERALL CIRCUMSTANCE OF THE INSTANT CAS E DISCUSSED HEREIN BEFORE ESTABLISHES THAT THE GIFT OF RS.95,000/- IS NON-GENUINE. FURTHER, IF EVIDENCES BEYOND REASONABLE DOUBT ARE NOT AVAILA BLE, THE TOTALITY OF CIRCUMSTANCES HAS TO BE LOOKED INTO TO EVOLVE A PRO CESS WHICH WOULD ADAPT TO SITUATION IN PURSUIT OF THE TRUTH & JUSTIC E. HERE THE DIRECT EVIDENCES ESTABLISH THAT THE GIFT IS NON-GENUINE. IN NUTSHELL, UNDER THE PREVAILING CIRCUMSTANCES AND IN THE LIGHT OF DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF P. MOHAN KALA AND OBSE RVATIONS TO DECIDE THE ISSUE IN LIGHT OF DECISION IN THE CASE O F SUMATI DAYAL, IT EMERGES THAT THE ASSESSEE HAS GROSSLY FAILED TO PRO VE THAT HE GIFT HAVE BEEN MADE FOR NATURAL LOVE AND AFFECTION. THE ADDI TION OFRS.95,143/- MADE BY THE O THEREFORE IS SUSTAINED INCLUDING THE SUM/COMMISSION PAID TO TAKE THIS ACCOMMODATION ENTRY/ALLEGED GIFT. 2.4 AGGRIEVED, THE ASSESSEE HAS COME UP IN FURTHER APPEAL WHEREBY BESIDES CHALLENGING REASSESSMENT PROCEEDINGS AND AD DITION MADE, ASSESSEE HAS ALSO CONTESTED THAT REASONABLE OPPORTUNITY OF B EING HEARD HAS NOT BEEN AFFORDED TO IT AND WHEN AR OF THE ASSESSEE WAS ESPE CIALLY ASKED TO SHOW ANY MATERIAL OR EVIDENCE AS TO HOW REASONABLE OPPORTUNI TY OF BEING HEARD HAS NOT BEEN AFFORDED TO THE ASSESSEE BEFORE THE A.O. AND B EFORE LD. CIT(A), HE HAD NO ANSWER. HE, AT THE VERY OUTSET SUBMITTED THAT ENTIRE REASSESSMENT PROCEEDING ARE BAD IN LAW BECAUSE DATE AND NAME OF THE ASSESSEE HAVE BEEN WRITTEN BY HAND WHEREAS OTHER CONTENTS OF THE NOTIC E ARE TYPED AND MOREOVER, THE NOTICE IS IN THE NAME OF SANDEEP GARG WHEREAS THE COMPLETE NAME OF THE ASSESSEE IS SANDEEP KUMAR GARG AND WHEN SPECIFICALLY ASKED WHETHER SUCH OBJECTION WAS RAISED BEFORE THE A.O. O R BEFORE LD. CIT(A), HE VERY FAIRLY SUBMITTED THAT NO SUCH OBJECTION HAS BE EN RAISED AND MOREOVER, I.T.A. NO.2585/DEL/2011 4 GENUINENESS AND BONA FIDE OF THE REASSESSMENT PROCE EDINGS HAVE ADMITTEDLY NOT BEEN QUESTIONED BEFORE ANY OF THE LOWER AUTHORI TIES AND RELYING UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SIGNATURE HOTELS PVT .LTD. VS ITO AND ANOTHER, (2001) 338 ITR 51, IT WAS PLEADED FOR QUASHMENT OF THE REASSESSMENT PROCEEDINGS AND ALSO FOR DELETI ON OF THE ADDITION MADE BY THE A.O. AND CONFIRMED BY LD. CIT(A). 3. LD. D.R. STRONGLY OBJECTED TO ALL THE PLEAS RAIS ED BY THE AR OF THE ASSESSEE. SO FAR AS THE DEFECT IN THE NAME AND DAT E AND THE NAME WRITTEN BY HAND IS CONCERNED, IT WAS SUBMITTED THAT THERE WAS NO IRREGULARITY OR INFIRMITY BECAUSE SECTION 292 B OF THE I. T. ACT, 1 961 COVERS THE SAME AND NOTICE OR PROCEEDINGS SHALL NOT BE INVALID OR DEEME D TO BE INVALID MERELY BECAUSE OF ANY MISTAKE DEFECT OR OMISSION IN THE NO TICE OTHERWISE THIS IS NOT EVEN A MISTAKE, LD. D.R. RELIED UPON THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF RAYMOND WOOLLEN MILLS LTD. VS ITO 23 6 ITR 34, PHOOLCHAND BAJRANGLAL & ANOTHER VS ITO & ANOTHER 203 ITR 456, CIT VS SANJAY KAPOOR (2008) (JHARKHAND) 299 ITR 360 (DEL.), DESHR AJ UDYOG CHAMAN UDYOG VS ITO 318 ITR 06 (ALLD.), ADITYA KHANNA VS A CIT 208 TAXMAN 93 (DEL.) AND 207 TAXMAN 117 (DEL.), IT WAS PLEADED T HAT SUCH PLEAS OF THE AR OF THE ASSESSEE CANNOT HOLD GOOD AND SHOULD BE DISM ISSED. 4. SO FAR AS VALIDITY OF REOPENING IS CONCERNED, RE LIANCE WAS PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT DECISION I N THE CASE OF RAJAT EXPORT IMPORT INDIA PVT. LTD. VS ITO 341 ITR 135 (D EL.) AND SUN INVESTMENT PVT. LTD. VS ACIT 344 ITR 01 (DEL.). SO FAR AS NAME OF THE ASSESSEE WRITTEN AS SANDEEP GARG INSTEAD OF SANDEEP KUMAR GARG IS CONCERNED, IT IS A TRIVIAL MISTAKE AND THE ASSESSEE HIMSELF HAS WRITTEN AT SOME PLACES AS SANDEEP KUMAR GARG AND AT SOME PLACES AS SANDEEP GARG AND REFERENCE WAS MADE TO PAGE 40 OF THE PAPER BOOK TO SUPPORT THE PLEA. SO IT I.T.A. NO.2585/DEL/2011 5 WAS STRONGLY PLEADED FOR UPHOLDING THE ORDERS OF AU THORITIES BELOW IN INITIATION OF REASSESSMENT PROCEEDINGS. SO FAR AS CASE ON MERIT IS CONCERNED, IT WAS SUBMITTED THAT THE AMOUNT HAS BEEN DEPOSITED IN THE BANK ACCOUNT TWO DAYS BEFORE ISSUANCE OF CHEQUE AND EVEN IF AMOUNT I S ROUTED THROUGH BANKING CHANNEL, THIS WILL NOT ABSOLVE THE ASSESSEE FROM PRODUCING NECESSARY EVIDENCE TO SUPPORT CREDITWORTHINESS, GENUINENESS A ND IDENTITY OF THE PERSON (CREDITOR) SINCE SOURCE HAS NOT BEEN EXPLAINED SO ADDITION WAS CALLED FOR WHICH WAS RIGHTLY MADE BY THE A.O. AND CONFIRMED BY LD. CIT(A) WHICH ACTION SHOULD BE FURTHER CONFIRMED. RELIANCE HAS BEEN PLACED ON VARIOUS DECISIONS INCLUDING R K MITTALS CASE 3 ITR (TRIB) 5 08 (DEL.). SINCE, THERE WAS NO OCCASION FOR GIFTING THE AMOUNT TO THE ASSES SEE RELIANCE WAS PLACED ON ITO VS USHA , DESHRAJ UDYOG CHAMAN UDYOG VS ITO 318 ITR (AT) 394 (ALLD.), HACIENDA FARMS P. LTD. VS CIT 328 ITR 01 ( DEL.), 341 ITR 362 (GUJ.), MANGILAL JAIN VS ITO (MAD.) 315 ITR 105 (MA D.), RAJIV TANDON VS ACIT (DEL.) 294 ITR 488 (DEL.), CIT VS ANIL KUMAR 2 92 ITR 552 (DEL.), YUVRAJ VS UNION OF INDIA (2009) 315 ITR 84 (BOM.) C ITIBANK N.A. VS S K OJHA & OTHERS 257 ITR 663 (BOM.) AND SUMATI DAYAL V S ACIT 214 ITR 801 (S.C.). IT WAS ALSO SUBMITTED THAT THERE WAS N O CHANGE OF OPINION AND IT WAS PLEADED FOR DISMISSAL OF APPEAL OF THE ASSESSEE . 5. IN ORDER TO COUNTER THE SUBMISSIONS OF THE LD. D .R., LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REASONS HAVE NOT BE EN RECORDED WHEN THE ASSESSEE HAS DECLARED THE AMOUNT OF GIFT IN THE RET URN OF INCOME AND SECTION 292 B IS NOT APPLICABLE AS NOTICE OF REASSESSMENT H AS NOT BEEN ISSUED TO THE PROPER PERSON AND THE A.O. DID NOT CONSIDER THE REA SONABLENESS AND BONA FIDE OF THE ASSESSEE BEFORE MAKING THE ADDITION. T HEREFORE, IT WAS PLEADED FOR QUASHMENT OF THE ORDER OF RE-ASSESSMENT OR ALTE RNATIVELY, TO DELETE THE IMPUGNED ADDITION. I.T.A. NO.2585/DEL/2011 6 6. BOTH THE SIDES HAVE BEEN HEARD AND THE MATERIAL ON RECORD AS WELL AS RELEVANT PROVISIONS OF LAW AND THE CASE LAW CITED B Y BOTH THE SIDES HAVE BEEN CONSIDERED. THE ASSESSMENT ORDER AS WELL AS THE OR DER OF LD. CIT(A) IN FIRST APPEAL HAS BEEN DULY CONSIDERED AND IT IS FOUND THA T LD. FIRST APPELLATE AUTHORITY HAS DISCUSSED EACH AND EVERY POINT AS RAI SED BEFORE IT IN A VERY DETAILED AND ELABORATE MANNER IN THE LIGHT OF CASE LAW RELIED UPON BY THE LD. A.R. OF THE ASSESSEE IN THE FIRST APPEAL. SINCE NO INFIRMITY OR FLAW HAS BEEN POINTED OUT OR NOTICED IN THE IMPUGNED ORDER, THERE FORE, THERE IS NO OPTION LEFT BUT TO CONCUR WITH THE FINDINGS AND CONCLUSION AS DRAWN BY LD. CIT(A). AS SUCH, WHILE UPHOLDING THE ORDER OF LD. CIT(A) ON THE BASIS AND REASONING AS GIVEN BY HIM, THE APPEAL FILED BY THE ASSESSEE I S DISMISSED. 7. AS A RESULT, APPEAL OF THE ASSESSEE GETS DISMISS ED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH NOV., 2013. SD./- ( U.B.S. BEDI ) JUDICIAL MEMBER DT. 08/11/2013 NS/SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XXIV, NEW DELHI 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).