Atul Kalra, New Delhi V. DCIT CC-11, New Delhi

ITA 2977/DEL/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53367 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-12-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 24-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS GEETMALA MOHANANEY
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Unexplained expenditure
• Section: 132

Judgement Text

ITA NO. 2977/DEL/2008 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2977/DEL/2008 A.Y. : 2004-05 SH. ATUL KALRA, C/O M/S CORPORATE PROFESSIONALS, D-28, SOUTH EXTENSION, PART-I, NEW DELHI 110 049 (PAN: AJCPK 6473G) VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-11, NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ASHWANI TANEJA, ADVOCATE DEPARTMENT BY : MRS. GEETMALA MOHANANEY, 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 ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 22.8.2 008 PERTAINING TO ASSESSMENT YEAR 2004-05. 2. EARLIER THIS APPEAL WAS DISPOSED OF BY THIS TRIB UNAL VIDE ORDER DATED 27.11.2009. SUBSEQUENTLY, IT WAS RECALLED FO R ADJUDICATION WITH REFERENCE TO GROUND NO. 4 WHICH READS AS UNDER:- THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERR ED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AS SESSING OFFICER IN MAKING ADDITION OF ` 1,71,097/- ON ACCOU NT OF ALLEGED UNEXPLAINED EXPENDITURE ON THE MARRIAGE OF THE ITA NO. 2977/DEL/2008 2 APPELLANT MORE SO WHEN MARRIAGE WAS NOT PERFORMED BY THE APPELLANT AND MARRIAGE TOOK PLACE ON 22.4.2004. 3. IN THE AFORESAID ORDER DATED 27.11.2009 THE TRI BUNAL HAD ADJUDICATED THE ISSUE BY CONCLUDING AS UNDER:- HAVING HEARD THE PARTIES AND HAVING PERUSED THE MATERIAL ON RECORD WITH REGARD TO THIS ISSUE, WE D O NOT FIND OURSELVES PERSUADED TO AGREE WITH THE GRIEVANCE RAISED BY THE ASSESSEE BY WAY OF GROUND N O. 4. UNDISPUTEDLY, THE DIARY UNDER CONSIDERATION WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE. NOW, AS PER THE PROVISIONS OF SECTION 292C(1) OF THE IT ACT , THIS BEING THE SITUATION, THE PRESUMPTION IS THAT THE DIA RY BELONGS TO THE ASSESSEE AND THAT THE CONTENTS OF TH E DIARY ARE TRUE. THE ASSESSEE HAS REMAINED UNABLE T O CONTROVERT THIS PRESUMPTION. THE AFFIDAVIT FILED B Y THE FATHER OF THE ASSESSEE (COPY AT APB 123) IS UNATTES TED AFFIDAVIT, CARRYING NO WEIGHT WHATSOEVER, WHICH FAC T HAS RIGHTLY BEEN TAKEN INTO CONSIDERATION BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS). IN THESE FACTS, THE ASSESSING OFFICER WAS CORRECT IN ADDIN G THE DIFFERENCE BETWEEN THE CASH AVAILABLE AND THE EXPENDITURE. DUE WEIGHTAGE WAS GIVEN TO THE EXPENSES EXPLAINED BEFORE THE ASSESSING OFFICER. THE AMOUNT WITHDRAWN BY SHRI IC KALARA, THE FATHER O F THE ASSESSEE FROM HIS OWN BANK ACCOUNT, WAS NOT ADDED. ITA NO. 2977/DEL/2008 3 4. SUBSEQUENTLY, IN MA NO. NO. 236/DEL/2010, THE TRI BUNAL HAS RECALLED THE ORDER OF THIS QUA OF THIS ISSUE BY HOL DING AS UNDER VIDE ORDER DATED 8.4.2011. IN THE PRESENT APPLICATION, THE ASSESSEE HAS C ONTENDED THAT WHILE DECIDING GROUND NO. 4 TAKEN BY THE ASSES SEE, THE TRIBUNAL DID NOT APPRECIATE THAT NO FINDING HAD BE EN RECORDED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) REGARDING THE CONFIRMATION OF THE ASSESSEES FATHER (COPY AT PAGE 85 OF THE ASSESSEES PAPER BOOK FILED BEFORE T HE TRIBUNAL) AND THAT THE TRIBUNAL HAS ALSO NOT RECORD ED ANY FINDING THEREON; THAT IN THIS CONFIRMATION, THE FATH ER OF THE ASSESSEE HAD ADMITTED THAT THE DIARY BELONGED TO H IM (THE ASSESSEES FATHER) AND THE JOTTINGS AND ENTRIES IN T HE SAID DIARY ALSO BELONGED TO HIM; THAT THE DIARY WAS IN T HE HAND WRITING OF THE FATHER OF THE ASSESSEE AND THAT THE MARRIAGE EXPENSES OF MS. SHWETA KALRA WERE BORNE BY THE FAT HER OF THE ASSESSEE; THAT THE SAID CONFIRMATION WAS ALSO FI LED BEFORE THE HONBLE HIGH COURT; THAT VIDE ORDER DAT ED 9.4.2010, THE HONBLE HIGH COURT HAS GIVEN LIBERTY TO THE ASSESSEE TO APPROACH THE TRIBUNAL BY WAY OF A PEITI TON U/S. 154(2) OF THE IT ACT. THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRE CT. THE CONFIRMATION (SUPRA) OF THE FATHER OF THE ASSESSEE H AS INDEED INADVERTENTLY REMAINED TO BE CONSIDERED BY U S WHILE PASSING OUR ABOVE-SAID ORDER DATED 27.11.2009 , EVEN THOUGH A COPY THEREOF FILED BEFORE US, AT PAGE 85 O F THE ASSESSEES PAPER BOOK. ITA NO. 2977/DEL/2008 4 THERE HAS, THEREFORE, CREPT IN AN INADVERTENT MISTAK E APPARENT FROM RECORD IN OUR ORDER DATED 27.11.2009. REJECTING GROUND NO. 4 RAISED BY THE ASSESSEE WITH OUT CONSIDERING THE AFORESAID CONFIRMATION OF THE ASSES SEES FATHER HAS VISITED THE ASSESSEE WITH PREJUDICE INASM UCH AS DUE TO THE AFORESAID INADVERTENT MISTAKE APPARENT FR OM RECORD, MATERIAL EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE HAS REMAINED FROM BEING CONSIDERED. 5. PURSUANT TO THE ABOVE RECALL ORDER THE CASE WAS LISTED FOR HEARING. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECO RDS. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. W E FIND THAT THE SAID CONFIRMATION FROM THE FATHER IN PAPER BOOK PAGE NO. 85 READS AS UNDER:- I, I.C. KALRA, S/O SH. RAM LAL KALRA, R/O F-1172, C HITTRANJAN PARK, NEW DELHI- 110017, DO HEREBY CONFIRMED THAT:- A) I AM FATHER OF ATUL KALRA, R/O F-1172, CHITTRANJAN PARK, NEW DELHI, THAT ON 04.8.2005, A SEARCH TOOK PLACE U/S 132 OF THE IT ACT AT MY RESIDENCE AND A DIARY WAS SEIZED IN THE SEARCH TO WHICH THE SEARCH TEAM IDENTIFIED AS ANNEXURE NO. A-1 (PAGE NO. 1 TO 60) B) THAT THE SAID DIARY BELONGS TO ME AND THE JOTTINGS AND ENTRIES IN THE SAID DIARY BELONG TO ME AND THAT THE DIARY WAS IN MY HANDWRITING. C) THAT MS. SHWETA KALRA IS MY DAUGHTER WHO WAS MARRIED ON 22.4.2004 AND MARRIAGE EXPENSES OF MY SAID DAUGHTER WAS BORNE BY ME AND THE SAID ITA NO. 2977/DEL/2008 5 DIARY CONTAINS THE DETAILS OF THE AFORESAID EXPENSES. D) THAT I AM INCOME TAX ASSESSEE AT WARD 47(4) DELHI AND MY PAN NO. IS ABFPK6378P. 6. UPON CAREFUL CONSIDERATION OF THE AFORESAID, WE FIND THAT THE FATHER OF THE ASSESSEE STATED THAT THE SAID DIARY BELONGED TO HIM AND THE JOTTINGS AND ENTRIES IN THE SAID DIARY BELONGED TO HIM; THAT THE SAID DIARY WAS IN THE HAND WRITING OF THE FATHER OF THE ASSESSEE AND THE MARRIAGE EXPENSES OF MS. SHWETA KALRA BORNE BY THE F ATHER OF THE ASSESSEE. IN THESE CIRCUMSTANCES, IT IS EVIDENT THA T THE MARRIAGE EXPENSES WERE BORNE BY THE FATHER OF THE ASSESSEE A ND THE ADDITION OF THE SAME IN THE HANDS OF THE ASSESSEE IS NOT WARRAN TED. ACCORDINGLY, WE SET THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28/12/2011. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [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 28/12/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITA NO. 2977/DEL/2008 6 ITAT, DELHI BENCHES