ACIT, New Delhi V. Anand Tiwari, New Delhi

ITA 2897/DEL/2010

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3120 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-04-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Unexplained investment; Income from undisclosed sources; Deemed to accrue or arise in india; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 6; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SH. C.M. GARG , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 2897 /DEL/ 2010 ASSESSMENT YEAR: 2001 - 02 ACIT, CIRCLE - 3(1), NEW DELHI VS. SH. ANAND TIWARI, C - 67, FRIENDS COLONY (EAST), NEW DELHI PAN : AAGPT4274N (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.K. JAIN, SR. DR RESPONDENT BY NONE PRESENT DATE OF HEARING 12.04.2017 DATE OF PRONOUNCEMENT 17.05.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE R EVENUE IS DIRECTED AGAINST ORDER DATED 31/03/2010 OF THE LD. COMMISSIONER OF INCOME - TAX ( APPEALS) - IV, DELHI (FOR SHORT THE CIT - A ) FOR ASSESSMENT YEAR 2001 - 02 , RAISING FOLLOWING GROUNDS: I. THE LEARNED CIT( A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT REOPENING OF THE CASE U/S 147/148 WAS NOT JUSTIFIED AND QUASHING THE ASSESSMENT PARTICULARLY IN VIEW OF THE DECISION OF THE HON BLE HIGH COURT OF DELHI IN THE CASE OF SHRI RAKESH AGGARWAL VS. ASSTT. COMMISSI ONER OF INCOME TAX (225 ITR 496). II. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING ADDITION OF RS.70,77,000/ - AS UNEXPLAINED INVESTMENT TREATED AS DEEMED INCOME U/S 69B OF THE I.T. ACT, 1961. 2 ITA NO . 2897/DEL/2010 III. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED NOR ANY APPLICATION FOR ADJOURNMENT OR ANY WRITTEN SUBMISSION WAS PLACED BEFORE THE BENCH. ON PERUSAL OF THE RECORD, WE FIND THAT THE APPEAL IS PENDING SINCE 2010 AND DESPITE SEVERAL OPPORTUNITIES GIVEN TO THE ASS ESSEE INCLUDING NO TICE THROUGH INCOME T AX DEPARTMENT, THE ASSESSEE IS NOT APPEARING HIMSELF OR THROUGH HIS COUNSEL. THEREFORE , THE APPEAL IS PENDING FOR ADJUDICATION SINCE LONG FOR WANT OF PROSECUTION. IN VIEW OF THE ABOVE, WE ARE OF CONSIDERED VIEW THAT ISSUE OF FURTHER NO TICE OR ADJOURNING THE APPEAL WOULD NOT BE JUST AND PROPER AND THESE APPEALS MAY BE DISPOSED OF ON THE BASIS OF RECORD AFTER HEARING THE LD. DR, APPEARING ON BEHALF OF THE R EVENUE. WE, THEREFORE , PROCEEDED TO HEAR AND ADJUDICATE THE APPEAL ACCORDINGLY. 3. THE FACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ORIGINALLY ON 28/ 03/2002 DECLARING INCOME OF RS. 13,20,000/ - , WHICH INC LUDED AGRICULTURE INCOME OF RS. 1,40,000/ - . THE RETURN WAS PROCESS ED UNDER SECTION 143(1) OF THE INCOME - T AX ACT, 1961 (IN SHORT THE ACT ). SUBSEQUENTLY , NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 26/04/2005 AND IN CONSEQUENCE THERETO THE ASSESSEE S INCOME WAS ASSESSED AT RS. 17,60,000/ - V IDE ORDER PASSED UNDER SECTION 148/143(3) OF THE ACT ON 10/06/2005 AFTER MAKING FOLLOWING ADDITIONS: INCOME DECLARED UNDER THE HEAD SALARY AS PER RETURN RS. 3,20,000/ - ADD: (I) AMOUNT DECLARED WITH ASSESSEE AS AGRICULTURE INCOME TREATED AS INCOME FROM OTHER SOURCES RS. 1,40,000/ - (II) AMOUNT DECLARED WITH ASSESSEE IS RECOVERED FROM OTHERS TREATED AS INCOME FROM UNDISCLOSED SOURCES RS. 3,00,000/ - TOTAL RS. 17, 60,000 / - 3 ITA NO . 2897/DEL/2010 3.1 AGAIN, A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 19/03/2008 REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME. THE ASSESSEE RESPONDED THAT RETURN ALREADY FILED MIGHT BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE DATED 19/3/2008. A COPY OF REASONS RECORDED FOR REOPENING OF THE ASSESSMENT WAS ALSO SUPPLIED TO THE ASSESSEE. IN THE IMPUGNED ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MENT IONED THAT DURING REASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2002 - 03 THE ASSESSEE FILED A STATEMENT OF AFFAIRS FOR ASSESSMENT YEAR 2001 - 02 ALSO AND ACCORDING TO WHICH, THE INVESTMENT OF ASSESSEE IN EQUITY SHARES STOOD AT RS. 10 LAKH. THE ASSESSING OFFICE R FURTHER NOTED F ROM THE RETURNS FILED WITH THE REGISTRAR OF C OMPANIES (ROC) IN THE CASE OF SH. P . K . TIWARI, WHO WAS ALSO ONE OF DIRECTORS IN CENTURY COMMUNICATION L TD . , ALONG WITH ASSESSEE, INVESTMENT IN SHARES OF M/S . C ENTURY COMMUNICATION L TD . WAS SEE N. FURTHER , THE ASSESSING OFFICER NOTED THAT VIDE LETTER DATED 10/05/2005 , DURING EARLIER REASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE DECLARE D INVESTMENT IN SHARES OF M/S CENTURY COMMUNICATION L TD . AT RS.92.48 LACS. CONTENTS OF SAID LETTER HAS BEEN REPRODUCED BY THE ASSESSING OFFICER IN THE IMPUGNED ORDER AS UNDER: 'EQUITY SHARES IN COMPANIES (A) THIRD EYE COMMUNICATIONS PVT. LTD OPENING BALANCE AS ON 01.04.2000 55.00 LESS: SOLD DURING THE YEAR 10,00,000 SHARES AT PAR @ RS.10/ - PER SHARE 20.00 35.00 (B) CENTURY COMMUNICATION LTD. OPENING BALANCE AS ON 01.04.2000 60.00 9,00,000 EQUITY SHARES (INCLUDING 3,00,000 EQUITY SHARES RECEIVED AS BONUS SHARES) ADD: (I) 2,00,000 SHARES OF RS. 10/ - PER SHARE 20.00 OF ALLOTTED BY COMPANY (II) 8,32,500 SHARES PURCHASED FROM OTHERS 12.48 92.48 4 ITA NO . 2897/DEL/2010 3.2 IN THE SECOND REASSESSMENT PROCEEDING, THE ASSESSEE SUBMITTED THAT IT HAD PURCHASED RS. 8,32,500 SHARES FROM THE MARKET THROUGH A STOCKBROKER FOR RS. 12.48 LACS. THE ASSESSING OFFICER ASKED THE ASSESSEE DETAILS OF PURCHASE ALONGWITH DOCUMENTARY EVIDENCE IN RESPECT OF 8, 32, 5 00 SHARES PURCHASED FOR RS. 12.48 LACS, HOWEVER , NO DETAILS WERE SUPPLIED BY TH E ASSESSEE. THE ASSESSING OFFICER WAS OF VIEW THAT VALUE OF THE SHARES SHOULD BE AT RS. 10 PER SHARE AND , THEREFORE , THE INVESTMENT IN THE 8,32,500/ - SH ARES SHOULD HAVE BEEN WORTH RS. 83,25,000 AND THUS ASSESSEE HAS MADE AN UNDISCLOSED INVES TMENT TO THE EXT ENT OF RS. (83,25,000 - 12, 48,000) = RS. 70,77,000/ - , WHICH HE ASSESSED AS DEEMED INCOME UNDER SECTION 6 9B OF THE ACT. 3.3 BEFORE THE LD. CIT - A, THE ASSESSEE CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AS WELL AS MER IT OF THE ADDITION. THE LD. CIT - A ANNULLED THE REASSESSMENT PROCEEDING AS WELL AS DELETED THE ADD ITION ON MERIT. AGGRIEVED, THE R EVENUE IS IN APPEAL RAISING THE GROUNDS AS REPRODUCED ABOVE. 4. IN GROUND NO. 1 , THE R EVENUE CHALLENGED QUASHING OF REASSESSMENT PROCEEDING . 4.1 BEFORE US, THE LD. S ENIOR DR SUPPORTING THE GROUNDS SUBMITTED THAT THE ASSESSING OFFICER WAS JUSTIFIED IN REOPENING THE ASSESSMENT DESPITE BEING FULL AND TRUE DISCLOSURE OF MATERIAL FACTS BY THE ASSESSEE IN VIEW OF THE DECISION OF THE HON BLE HIGH COURT OF DELHI IN THE CASE OF SH. RAKESH AGARWAL VS. ACIT , REPORTED IN 225 ITR 496. 4.2 WE HAVE HEARD THE SUBMISSION OF THE LD. SR. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING THE PAPER BOOK CONTAINING 1 - 20 PAGES FILED BY THE LD. COUNSEL OF THE ASSESSEE ON 06/08/2010. THE LD. CIT - A HAS QUASHED THE REASSESSMENT PROCEEDING WITH FOLLOWING FINDINGS: 5 ITA NO . 2897/DEL/2010 FINDINGS: AFTER GOING THROUGH THE OBSERVATIONS OF THE ASSESSING OFFICER, SUBMISSIONS OF THE AR OF THE APPELLANT AND THE VARIOUS JUDICIAL PRONOUNCEMENTS ON T HE ISSUE THESE GROUNDS OF THE APPELLANT ARE BEING FINALIZED ON THE BASIS OF THE FOLLOWING OBSERVATIONS: - A) ON GOING THROUGH THE ASSESSMENT ORDER IT IS OBSERVED THAT THE ASSESSING OFFICER HAS STATED THAT FOR ASSESSMENT YEAR 2001 - 02 THE TOTAL ISSUED, PAID UP AND SUBSCRIBED CAPITAL OF THE COMPANY WAS DECLARED ONLY TO THE EXTENT OF RS.75,00,000/ - . THE ASSESSING OFFICER HOWEVER CAME TO THE CONCLUSION THAT ON THE BASIS OF THIS DISCREPANCY, THERE WAS ADEQUATE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AND ACCORDINGLY ACTION U/S 147/148 WAS JUSTIFIED. THE ASSESSING OFFICER HOWEVER HAS NOT SPECIFICALLY MENTIONED THE DISCREPANCIES AND HAS ALSO IGNORED THE FACT THAT THE ASSESSMENT FOR ASSESSMENT YEAR 2001 - 02 HAD BEEN COMPLETED U/S 148/143(3) OF THE INCOME TAX ACT. IT IS ALSO PERTINENT TO NOTE THAT DURING THE COURSE OF THE EARLIER ASSESSMENT CO MPLETED U/S 148/143(3), THE THEN ASSESSING OFFICER HAD EXAMINED THIS ISSUE RELATING TO THE SHARES HELD BY THE APPELLANT AND HAD ALSO TAKEN THE STATEMENT OF THE BROKER TO WHICH THESE SHARES HAD BEEN PURCHASED, A COPY OF STATEMENT OF SH. DALIP KUMAR SINGHAL WAS ALSO PRODUCED BEFORE ME WHEREIN IT HAS BEEN MENTIONED THAT THE BOOKS OF ACCOUNTS WERE PRODUCED FOR VERIFICATION AND THE ASSESSING OFFICER BY CONSIDERING THE MATTER IN DEPTH. SUBSEQUENT TO THIS INVESTIGATION ON ENQUIRING THE ASSESSING OFFICER HAD ACCEPT ED THE CONTENTIONS OF THE ASSESSEE AND COMPLETED THE ASSESSMENT U/S 148/143(3). IT IS PERTINENT TO NOTE THAT ON THE SAME ISSUE SINCE A DETAILED ENQUIRY HAD ALSO BEEN CONDUCTED BY THE ASSESSING OFFICER EARLIER AND THERE WAS NO ADDITIONAL INFORMATION OR FRES H FACTS WHICH COULD LEAD THE ASSESSING OFFICER TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT, THERE DOES NOT APPEAR TO BE VALID REASON FOR RE - OPENING THE ASSESSMENT U/S 148 ON A SECOND OCCASION ON SIMILAR GROUNDS. B) THE AR HAS ALSO STRO NGLY ARGUED ON THE BASIS OF VARIOUS JUDICIAL PRONOUNCEMENTS THAT SINCE THE ASSESSEE HAD DISCLOSES FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY DISCREPANCY FOR INVOKING THE PROVISIONS U/S 148 , THIS ACTION OF THE ASSESSING OFFICER DOES NOT APPEAR TO BE JUSTIFIED. THE AUTHORIZED REPRESENTATIVE HAS STRONGLY ARGUED THAT EVEN THE PROCEDURE FOLLOWED FOR RE - OPENING OF THE ASSESSMENT HAS NOT BEEN FOLLOWED PROPERLY AND ON INSPECTION IT HAS BEEN FOUND T HAT PROPER REASONS HAD NOT BEEN RECORDED AND ADEQUATE MIND HAS NOT BEEN APPLIED BEFORE RE - OPENING OF THE ASSESSMENT. THE AR HAS RELIED UPON THE DECISION OF UNITED ELECTRICALS CO.(P) LTD. (DEL) (SUPRA). C) THE AR HAS FURTHER ARGUED THAT THE ASSESSEE HAD RA ISED BEYOND THE OBJECTIONS TO THE REASONS RECORDED BY THE ASSESSING OFFICER, BUT THESE OBJECTIONS HAVE NOT BEEN DISPOSED OF BY THE ASSESSING OFFICER BEFORE PROCEEDINGS WITH THE ACTION U/S 147/148 OF THE INCOME TAX ACT. IN THIS REGARD THE AR HAS RELIED UPON THE DECISION OF GKN DRIVESHAFTS (INDIA) LTD. 259 ITR (SC). CONSIDERING THESE STRONG ARGUMENTS OF THE AR OF THE APPELLANT IT IS CLEAR THAT PROPER PROCEDURE HAS ALSO NOT BEEN FOLLOWED BY THE ASSESSING OFFICER BY RECORDING THE REASONS FOR RE - 6 ITA NO . 2897/DEL/2010 OPENING OF THE A SSESSMENT AND AT THE SAME TIME THE OBJECTIONS FILED BY THE APPELLANT WITH REGARD TO REASONS FOR RE - OPENING U/S 148 HAVE NOT BEEN DISPOSED OF. THE ASSESSING OFFICER HAS NOT LOGICALLY FOLLOWED THE PROVISIONS OF SECTION 148 OF THE INCOME TAX ACT AND THEREFORE THIS ACTION OF THE ASSESSING OFFICER DESERVES TO BE QUASHED. KEEPING IN VIEW THE ABOVE OBSERVATIONS, IN MY OPINION THE ACTION U/S 48/147 OF THE INCOME TAX ACT TAKEN BY THE ASSESSING OFFICER IS NOT VALID FIRSTLY B ECAUSE ON THE SAME ISSUE, THE EARLIER ASS ESSING OFFICER HAD CONDUCTED SPECIFIC ENQUIRIES AND HAD COME TO A CONCLUSION IN FAVOUR OF THE APPELLANT. THE ASSESSING OFFICER WAS THEREFORE NOT JUSTIFIED TO TAKE ACTION U/S 148 WITHOUT HAVING STRONG REASONS TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ES CAPED ASSESSMENT . IN THE ASSESSMENT ORDER ALSO THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY FACTS WHICH CLEARLY INDICATE THAT THE APPELLANT HAD NOT DISCLOSED FULL MATERIAL FACTS ON THE EARLIER OCCASION. I AM THEREFORE INCLINED TO AGREE WITH THE SUBMISSIO NS AND ARGUMENTS OF THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT THAT THE ACTION TAKEN BY THE ASSESSING OFFICER WAS NOT JUSTIFIED. AFTER CONSIDERING THE VARIOUS JUDICIAL PRONOUNCEMENTS CONSIDERING ABOVE I HOLD THAT THE ACTION OF THE ASSESSING OFFICER WIT H REGARD TO THE RE - OPENING OF THE CASE U/S 147/148 IS NOT JUSTIFIED AND THE ASSESSMENT THEREFORE DESERVES TO BE ANNULLED. THESE GROUNDS OF THE APPELLANT ARE THEREFORE TREATED AS ALLOWED. 4.3 WE OBSERVE THAT THIS SECOND REASSESSMENT PROCEEDING HAS BEEN INITIATED ON 19/03/2008, WHICH IS AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS AND , THEREFORE , PROVISO TO SECTION 147 OF THE ACT IS RELEVANT . THE SAID PROVISO READS AS UNDER: 147. . PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB - SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB - SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT YEAR: 7 ITA NO . 2897/DEL/2010 4.4 T HUS , IT IS EVIDENT THAT WHEREVER ASSESSMENT/REASSESSMENT HAS BEEN COMPLETED UNDER SECTION 143(3) OF THE ACT OR UNDER SECTION 147 OF THE ACT AND FOUR YEARS HAVE ALREADY ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, SUBSEQUENT NOTICE UNDER SECTION 148 OF THE ACT FOR REASSESSMENT CANNOT BE ISSUED UNLESS THERE IS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IN THE CASE OF RAKESH AGARWAL (SUPRA), THE NOTICE UNDER S ECTION 148, WAS ISSUED WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THEREFORE FACTS OF THE SAID CASE ARE DISTINGUISHABLE. 4.5 IN THE INSTANT CASE , THE ASSESSING OFFICER HAS NOT POINTED OUT HOW THE ASSESSEE FAILED TO DISCLOSE FULLY A ND TRULY ALL MATERIAL FACTS RELATED TO THE ASSESSMENT. IN FACT , THE ASSESSEE ONLY SUBMITTED DETAILS OF I NVESTMENT IN 8,32, 500 SHARES IN FIRST ROUND OF REASSESSMENT PROCEEDINGS. BEFORE THE LD. CIT ( A ) , THE ASSESSEE CONTENDED THAT IN FIRS T REASSESSMENT PROCEE DINGS, THE ASSESSING O FFICER HAD EXAMINED THE ISSUE RELATING TO THE SHARES HELD BY THE ASSESSEE AND ALSO RECORDED THE STATEMENT OF THE BROKER THROUGH WHICH SHARES IN QUESTI ON WERE PURCHASED. THE LD. CIT( A ) HAS MENTIONED THAT A COPY OF STATEMENT OF THE BRO KER SH. DALIP KUMAR SINGHAL , WAS PRODUCED BEFORE HIM, WHEREIN IT HAS BEEN MENTIONED THAT BOOKS OF ACCOUNTS WERE PRODUCED FOR VERIFICATION AND THE ASSESSING OFFICER CONSIDER ED THE MATTER IN - DEPTH. ACCORDING TO THE LD. CIT ( A ) , A DETAILED ENQUIRY HAD ALREADY BEEN CONDUCTED BY THE ASSESSING OFFICER EARLIER AND THERE WAS NO ADDITIONAL INFORMATION OR FRESH FACTS AND THUS IT WAS MERELY CHANGE OF OPINION ON SAME SET OF FACTS AND THEREFORE THERE WAS NO VALID REASON FOR REOPENING THE ASSESSMENT. THE LD. CIT - A HAS ALS O OBSERVED THAT NO PROPER REASONS HAVE BEEN RECORDED. FURTHER , THE LD. CIT - A ALSO OBSERVED THAT THE ASSESSING OFFICER HAS NOT DISPOSED OFF THE OBJECTION OF THE ASSESSEE 8 ITA NO . 2897/DEL/2010 TO THE REASONS RECORDED IN ACCORDANCE TO THE DECISION OF THE HON BLE APEX COURT IN GKN DRIVESHAFT (INDIA) L IMITED , 259 ITR 19(SC). THE REVENUE HAS NOT BROUGHT BEFORE US ANY MATERIAL TO CONTRADICT THE FACTUAL FINDINGS OF LD. CIT(A). 4.6 IN OUR CONSIDERED OPINION, THE FINDING OF THE LD. CIT - A ON THE ISSUE IN DISPUTE IS COMPREHENSIVE AND WELL REASONED AND , THEREFORE, NO INTERFERENCE ON OUR PART IS REQUIRED. ACCORDINGLY , WE UPHOLD THE FINDING OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) IN QUASHING THE REASSESSMENT PROCEEDING. ACCORDINGLY , GROUND NO. 1 OF THE APPEAL IS DISMISSED. 5 . IN GROUND NO. 2, THE R EVENUE HAS CHALLENGED DELETING OF THE ADDITION ON MERIT. 5.1 BEFORE US, LEARNED SR. DR RELIED ON THE ORDER OF ASSESSING OFFICER. 5.2 WE HAVE HEARD THE SUBMISSION OF LD. SR. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND TH AT THE LD. CIT - A HAS DELETED THE ADDITION WITH FOLLOWING OBSERVATIONS: FINDINGS: AFTER GOING THROUGH THE FACTS OF THE CASE AS WELL AS THE SUBMISSIONS OF THE AR OF THE APPELLANT, THE REMAND REPORT AS WELL AS THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE, THI S GROUND IS BEING FINALIZED AFTER MAKING THE FOLLOWING OBSERVATIONS: - (A) KEEPING IN VIEW THE FACTS OF THE CASE, IT IS AN UNDISPUTED FACT THAT HIS ISSUE HAD BEEN EXAMINED IN DETAIL BY THE ASSESSING OFFICER ON AN EARLIER OCCASION AND THE ORDER HAD BEEN FI NALIZED U/S 143(3)/147 OF THE INCOME TAX ACT. IT IS OBSERVED THAT NO NEW FACTS WERE AVAILABLE BEFORE THE ASSESSING OFFICER AND THERE WAS NO MATERIAL ON THE BASIS OF WHICH IT COULD BE CONCLUDED THAT A HIGHER AMOUNT OF INVESTMENT MADE BY THE APPELLANT FOR AC QUIRING THESE SHARES. ALSO CONSIDERING THE VARIOUS JUDICIAL PRONOUNCEMENTS OF CIT VS. K.P. VERGHESE, 131 ITR (SC) & ORS., INCLUDING THE DECISION OF ITAT DELHI BENCH IN THE CASE OF K.J. ARORA VS. DCIT, IN ITA NO. 4126/4127 & ORS., IT HAS BEEN HELD THAT DIFF ERENT IN THE CASE OF INVESTMENT IN PROPERTY ONLY ON THE BASIS OF ESTIMATION, CANNOT BE A VALID GROUND FOR SUSTAINING THE ADDITION. GROUNDS HAVE ALSO HELD THAT THE BURDEN OF PROVE THAT THERE IS UNEXPLAINED INVESTMENT LIES ON THE REVENUE. 9 ITA NO . 2897/DEL/2010 B) IN THE PRESENT SET OF FACTS THE ASSESSING OFFICER HAS MADE THE ADDITION OF IGNORING EARLIER FINDINGS OF THE ASSESSING OFFICER WHO HAD EXAMINED THE BOOKS OF ACCOUNTS AND MADE NECESSARY ENQUIRIES BEFORE ACCEPTING THE CONTENTIONS OF THE APPELLANT. THE ADDITIO N HAS BEEN MADE BY THE ASSESSING OFFICER ONLY ON GROUNDS THAT NO WRITTEN CONFIRMATION WAS PROVIDED FROM THE PURCHASING PARTY THAT THE SHARES HAD ONLY BEEN SOLD FOR RS. 12,48,000/ - AND NOT RS.70,77,000/ - . THE ASSESSING OFFICER HOWEVER HAS NOT CONTROVERTED T HE EARLIER FINDINGS OF THE ASSESSING OFFICER BASED ON THE EXAMINATION OF THE STOCK BROKER COMPANY AND THE STATEMENT OF SH. D.K. SINGHAL CONFIRMING THE AMOUNT OF INVESTMENT IN THESE SHARES. FURTHER KEEPING IN VIEW THE NATURE OF SHARE BUSINESS, SHARE TRANSAC TIONS ARE NOT ONCE BASED ON THE FACE VALUE OF THE SHARE AND ARE LIABLE TO FLUCTUATIONS DEPENDING ON THE FINANCIAL STRONGLY AND VARIOUS OTHER FACTORS OF THE COMPANY. IN THE PRESENT CASE THERE ARE NO GROUNDS TO DISBELIEVE THE TRANSACTION REFLECTED BY THE APP ELLANT. EVEN IF THE ASSESSING OFFICER DID HAVE AN APPREHENSION ADDITION UNACCOUNTED MONEY HAS CHANGED NEEDS, THERE HAS TO BE SOME MATERIAL EVIDENCE ON THE BASIS OF WHICH ANY ADDITION CAN BE MADE U/S 69B OF THE INCOME TAX ACT. SINCE IN THE PRESENT SET OF CI RCUMSTANCES THERE IS NO MATERIAL TO INDICATE THAT ANY UNEXPLAINED INVESTMENT HAS BEEN MADE BY THE APPELLANT WHILE PURCHASING THE SHARES, THERE IS NO JUSTIFICATION FOR MAKING THIS ADDITION MERELY ON THE BASIS OF APPREHENSION OR SERVICES. THE VARIOUS JUDICIA L PRONOUNCEMENTS HAVE SETTLED THIS ISSUE IN FAVOUR OF THE APPELLANT AND ACCORDINGLY IN MY OPINION THIS ADDITION MADE BY THE ASSESSING OFFICER DESERVES TO BE DELETED. ACCORDINGLY, THIS GROU ND OF THE APPELLANT IS ALLOWED. 5.3 WE NOTE THAT IN REASSESSMEN T PROCEEDING THE ASSESSING OFFICER HAS MENTIONED THAT NO INFORMATION WAS PROVIDED BY THE ASSESSEE AND THEREFORE MADE THE ADDITION. HOWEVER, IN APPELLAT E PROCEEDING BEFORE THE LD. CIT( A ) , A REMAND REPORT WAS CALLED FROM THE ASSESSING OFFICER BUT IN THE SAI D REMAND REPORT ALSO , NO EVIDENCE AS REGARD TO THE MARKET VALUE OF THE SHARES OR ANY EVIDENCE OF UNACCOUNTED MONEY INVESTED BY THE ASSESSEE WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER. NO MATERIAL HAS BEEN BROUGHT BY THE REVENUE TO REBUT THE ABOVE FACTU AL FINDING OF THE LD. CIT(A). IN SUCH CIRCUMSTANCES, WE ARE OF CONSIDERED OPINION THAT IN ABSENCE OF ANY MATERIAL TO INDICATE THAT ANY UNEXPLAINED INVESTMENT HAS BEEN MADE BY THE ASSESSEE IN PURCHASE OF SHARES, NO ADDITION COULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT( A ) ON THE ISSUE IN DISPUTE IS 10 ITA NO . 2897/DEL/2010 COMPREHENSIVE AND WELL REASONED AND WE ARE NOT INCLINED TO INTERFERE IN THE SAME. ACCORDINGLY , WE UP HOLD THE FINDING OF THE LD. CIT( A ) ON THE ISSUE IN DISPU TE AND GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. 6 . IN THE RESULT, THE APPEAL OF THE R EVENUE IS DISMISSED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 7 T H MAY , 201 7 . S D / - S D / - ( C.M.GARG ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 7 T H MAY , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI