ACIT, New Delhi V. Sh Sundeep Kalsi, New Delhi

ITA 2835/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0160 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 23-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 07-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAJANAND MEENA
• Assessee Lawyers: S K MAINI; ADESH KUMAR JAIN

Judgement Text

ITA NO. 2835/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2835/DEL/2010 A.Y. : 2007-08 ACIT, C.C. - 5, ROOM NO. 361, 3 RD FLOOR, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI 110 055 VS. SH. SUNDEEP KALSI, J-1/72, GUPTA COLONY, MALVIYA NAGAR, NEW DELHI 110 017 (PAN/GIR NO. : AHEPK 8999D) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ADESH KUMAR JAIN, CA AND SH. S.K. MAINI, CA DEPARTMENT BY : SH. GAJANAND MEENA, C.I.T.(D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 27.11. 2009 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOM E TAX (APPEALS) ERRED IN DELETING THE ADDITION OF 50,00,0 00/- MADE ON PROTECTIVE BASIS WHICH REPRESENTED UNEXPLAINED CASH OF M/S SAS SERVIZIO LTD. OF WHOM THE ASSESSEE WAS AN EMPLOYEE. 3. IN THIS CASE SEARCH WAS CONDUCTED ON 08/09/2006 ON SHRI SUNDEEP KALSI S/O SH. AMARJEET SINGH KALSI WHO WAS TRAVELLING BY AIR SAHARA FLIGHT NO. S2-117 FROM DELHI TO GOA AND A CAS H OF ` 50,10,000/- WAS FOUND WITH HIM. ON ENQUIRY HE ACCEPTED THAT TH IS CASH BELONGS TO M/S SAS SERVIZIO LTD.. CONSIDERING THE ENTIRE ENQUI RY AND OTHER MATTERS, THE ASSESSING OFFICER CONCLUDED AS UNDER:- ITA NO. 2835/DEL/2010 2 ON THE ISSUE OF SOURCE AND PURPOSE OF ` 50,00,000/ -, NO PLAUSIBLE REPLY HAS BEEN FURNISHED. SH. SUNDEEP KA LSI IN HIS STATEMENT HAS STATEMENT THAT THE COMPANY HAS WITHDRAW N A SUM OF ` 30,00,000/- FROM ITS BANK, STANDARD CHAR TERED ON 10.8.2006 FOR THE PAYMENT OF LAND AT GOA AND THE MONE Y HE CARRYING IS THE SAME MONEY CANT BE RELIED UPON AS TH E CASH WAS WITHDRAWN ON 10.8.2006 AND PLACED IN AN IMPREST ACCOUNT HE DOES NOT STATE TO WHOM IT WAS GIVEN AND F OR WHAT PURPOSE. IN FACT THE COMPANY GOT THE LETTER OF ALLOTMENT ON 25.08.2006 AND THERE IS NO CLOSE AND PROXIMATE LINKAGE BETWEEN THE HAPPENING OF THE TWO EVENTS. MOREOVER, ASSESSEE WAS NOT ABLE TO OFFER ANY SATISFACTORY EXPLANATION OF WHY SUCH MONEY COULD NOT BE BROUGHT INTO REGULAR BOOKS OR ALLOWED TO REMAIN IN T HE BANK TILL IT WAS NEEDED. IN ANY CASE, THE ASSESSEE HAS N OT OFFERED ANY EXPLANATION IN RESPECT OF ` 10 LAKHS, CONFINING HIS EXPLANATION TO ` 40 LAKHS WITHDRAWN FOR ITS BANK ACCOUNT. HENCE THE CASH FOUND WITH SH. SUNDEEP KALSI AND S TATED BY HIM TO BE ACCOUNTED FOR IN THE BOOKS OF SAS SERVI ZIO LTD. COULD NOT BE ESTABLISHED, AS EVIDENT FROM THE SURVE Y FINDINGS AND VARIOUS STATEMENTS RECORDED IN THIS RE GARD. THE CASH AMOUNTING TO ` 50,00,000/- REMAINS UNEXPLAINED A ND REPRESENTS INCOME WHICH HAS NOT OR WOULD NOT HAVE B EEN DISCLOSED FOR THE PURPOSE OF INCOME TAX. THE EXPLAN ATION REGARDING SOURCE OF CASH OFFERED BY SH. SUNDEEP KAL SI WAS A COVER UP FOR THE UNACCOUNTED MONEY, THE SOURCE OF WH ICH HAS NOT BEEN EXPLAINED. IN ABSENCE OF ANY CREDIBLE EXPLANATION, THE CASH OF ` 50,00,000/- IS ASSESSED IN THE ITA NO. 2835/DEL/2010 3 HANDS OF M/S SAS SERVIZIO LTD. SUBSTANTIALLY AND AS A MATTER OF ABUNDANT PRECAUTION SINCE IT HAS BEEN RECOVERED FROM HIM IT IS ASSESSED PROTECTIVELY IN THE HANDS OF SH. SUNDEEP KALSI. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) ELABORATELY CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CONSIDERED THE SUBMISSION AS WELL AS CONTEN TIONS OF THE APPELLANT AND THE ASSESSING OFFICER MAKING THE IMPUGNED ADDITION. I HAVE PERUSED THE PAPER BOOK FI LED BY THE APPELLANT WHICH IS PLACED ON RECORD. I FIND FORCE IN THE CONTENTIONS PUT FORTH BY THE APPELLANT AND CASES R ELIED UPON. I AM OF THE OPINION THAT THE ASSESSING OFFI CER IS NOT JUSTIFIED IN MAKING ADDITION OF ` 50 LACS IN THE HAND S OF THE APPELLANT ON PROTECTIVE BASIS ON ACCOUNT OF CASH F OUND IN HIS POSSESSION EVEN WHEN M/S SAS SERVIZIO PRIVATE LIMI TED HAS ACCEPTED THE FACT THAT THE SAID CASH BELONG TO THE COMPANY TWICE, ONCE AT THE TIME OF SURVEY AS WELL A S AT THE TIME OF ASSESSMENT PROCEEDINGS UNDER SECTION 153C/1 43(3) OF THE INCOME TAX ACT, 1961 BEFORE THE LEARNED ASSES SING OFFICER. ALSO THE ASSESSING OFFICER HIMSELF ACCEP TED THAT THE SAID CASH BELONGS TO M/S SAS SERVIZIO PRIVATE L TD. IN HIS SATISFACTION RECORDED FOR INITIATING ASSESSMENT PRO CEEDINGS UNDER SECTION 153C OF THE INCOME TAX ACT, 1961. IT IS ALSO EVIDENT THAT FROM THE FACTS AS ELABORATED BY THE ASS ESSING OFFICER AND ALSO BY THE APPELLANT, THERE IS NO DO UBT EITHER IN RESPECT OF ASSESSEE OR IN RESPECT OF ASSESSMENT YEAR ABOUT CASH OF ` 50,00,000/- FOUND IN POSSESSION OF THE ITA NO. 2835/DEL/2010 4 APPELLANT. IN VIEW OF THE FACTS OF THE CASE, I AM O F THE OPINION THAT THE ADDITION OF ` 50,00,000/- IN THE H ANDS OF THE APPELLANT ON PROTECTIVE BASIS IS BAD IN LAW AND IS HEREBY DELETED. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT IT IS AN ADMITTED FACT THAT M/S SAS SERVIZI O LTD. HAS ACCEPTED THE FACT THAT THE CASH BELONG TO THE COMPANY. HENCE , ONCE WHEN THE AMOUNT HAS BEEN ASSESSED IN THE HANDS OF M/S SAS SER VIZIO LTD., WE DO NOT FIND ANY INFIRMITY IN THE LD. COMMISSIONER OF INC OME TAX (APPEALS)S FINDING THAT ADDITION IN THE HANDS OF T HE ASSESSEE ON PROTECTIVE BASIS IS NOT REQUIRED. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) AND HENCE, WE UPHOLD THE SAME. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/03/2011 UP ON CONCLUSION OF HEARING. SD/- SD/- [ [[ [A.D. JAIN A.D. JAIN A.D. JAIN A.D. JAIN] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 23/03/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1.APPELLANT 2.RESPONDENT 3. CIT 4. CIT (A) 5. DR, IT AT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES