ACIT, New Delhi V. Shri Rajiv Gupta, New Delhi

ITA 2984/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7121 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAMITA M BISWAS
• Assessee Lawyers: SB GUPTA
• Keywords: Unexplained cash credit; Unexplained expenditure; Income from undisclosed sources; Document seized; Additional evidence; Documents seized; Set aside
• Section: 143(3); 153A; 72; 13; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEM BER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO.-2984/DEL/2016 ASSESSMENT YEAR: 2008-09 ACIT CENTRAL CIRCLE-07, R.NO. 330, ARA CENTRE, JHANDEWALAN EXTEN., NEW DELHI VS . SH. RAJIV GUPTA R/O A-1, CC COLONY OPP. RANA PRATAP BAGH, NEW DELHI PAN : AFEPG3221J APPELLANT RESPONDENT ASSESSEE BY : SH. S.B.GUPTA, CA REVENUE BY : MS PRAMITA M. BISWA S, CIT-DR ORDER PER ANADEE NATH MISSHRA, A.M.: THIS APPEAL IS PREFERRED BY REVENUE AGAINST IMPUGNE D APPELLATE ORDER DATED 21.03.2016 PASSED BY THE LD. CIT (APPEALS)-24, NEW DELHI FOR ASSESSMENT YEAR 2008-09 . FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED IN THI S APPEAL : 1. THE ORDER OF ID. CIT(A) IS NOT CORRECT IN LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 30,000/- AS UNACCOUNTED EXPENDITURE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE 2 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) CASE, THE CIT(A) HAS ERRED IN HOLDING THAT ONCE THE RECEIVING COMPANY HAS ADMITTED THE UNACCOUNTED INCOME, IT IS AUTOMATICALLY EXPLAINED IN THE HANDS OF THE GIVER I.E. ASSESSEE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,85,88,600/- AS UNACCOUNTED EXPENDITURE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT ONCE THE SOURCE OF RECEIPTS ARE EXPLAINED, IT IS NOT TO BE TAXED IN THE HANDS OF THE RECEIVER. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT UNEXPLAINED CREDITS AND UNACCOUNTED RECEIPTS ARE ONE AND THE SAME. 7. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2. SEARCH ACTION U/S 132 OF IT ACT WAS CARRIED OUT ON M/S. SATYA PRAKASH & BROTHERS PVT. LTD. GROUP OF CA SES ON 28.10.2010. THE ASSESSEES PREMISES WERE ALSO SEARC HED U/S 132 OF IT ACT AS PART OF AFORESAID SEARCH ACTION. A SSESSMENT ORDER U/S 153A READ WITH SECTION 143(3) OF IT ACT W AS PASSED ON 28.03.2013 WHEREIN ADDITIONS OF RS. 1,85,88,600/- AND RS. 30,000/- (TOTALING RS. 1,86,1 8,600/-) WERE MADE. THE AFORESAID ADDITION OF RS. 1,85,88,60 0/- WAS MADE ON THE BASIS OF SEIZED RECORDS (PARTY CN, ANNE XURE A- 72 PAGE 16 TO 20). THE AFORESAID ADDITION OF RS. 30 ,000/- WAS MADE ON THE BASIS OF SEIZED RECORDS (PARTY CN, ANNEXURE A-72 PAGE 133). THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). VIDE IMPUGNED APPELLATE ORDER DATED 3 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) 21.03.2016 OF THE LD. CIT(A) BOTH THE AFORESAID ADD ITIONS OF RS. 1,85,88,600/- AND RS. 30,000/- WERE DELETED. TH E RELEVANT PORTION OF THE AFORESAID IMPUGNED APPELLAT E ORDER DATED 21.03.2016 IS REPRODUCED AS UNDER :- 4 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) 5 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) 6 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) (2.1) THIS PRESENT APPEAL HAS BEEN FILED BY REVE NUE AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATE D 21.03.2016 OF THE LD. CIT(A). AT THE TIME OF HEARIN G BEFORE US, BOTH SIDES WERE IN AGREEMENT THAT THE ENTRIES I N THE AFORESAID SEIZED DOCUMENTS VIDE (PARTY CN, ANNEXURE A-72 PAGE 16 TO 20) AND (PARTY CN, ANNEXURE A-72 PAGE 13 3) HAVE BEEN OWNED UP BEFORE SETTLEMENT COMMISSION BY M/S. SATYA PRAKASH & BROTHERS PVT. LTD., SH. SATYA PRAKASH GU PTA AND SMT. ABHA GUPTA AND OFFERED FOR TAXATION IN THE SET TLEMENT APPLICATIONS. HOWEVER, NEITHER SIDE (NEITHER REVENU E NOR THE ASSESSEE) HAS FILED COPY OF FINAL ORDER(S) PASSED B Y SETTLEMENT COMMISSION U/S 245D(4) OF INCOME TAX ACT IN THE CASES OF AFORESAID M/S. SATYA PRAKASH & BROTHER S PVT. LTD., SH. SATYA PRAKASH GUPTA AND SMT. ABHA GUPTA. CONSEQUENTLY, THE OUTCOME OF THE AFORESAID M/S. SAT YA PRAKASH & BROTHERS PVT. LTD. SH. SATYA PRAKASH GUPT A AND SMT. ABHA GUPT OWNING UP THE ENTRIES IN THE AFORESA ID SEIZED DOCUMENTS (PARTY CN, ANNEXURE A-72 PAGE 16 T O 20) AND (PARTY CN, ANNEXURE A-72 PAGE 133) IS NOT AVAIL ABLE IN 7 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) THE RECORDS OF ITAT. THUS, INFORMATION IS NOT AVAIL ABLE AS TO THE EXTENT TO WHICH INCOME HAS BEEN EVENTUALLY TAXE D IN THE HANDS OF THE AFORESAID PERSONS AS A RESULT OF ORDER (S) OF SETTLEMENT COMMISSION U/S 245D(4) OF I.T.ACT. IT IS ALSO NOT KNOWN FROM PERUSAL OF RECORDS OF ITAT, WHETHER ORDE R(S) OF SETTLEMENT COMMISSION U/S 245D(4) OF I.T.ACT IN THE CASE OF AFORESAID PERSONS HAS ATTAINED FINALITY HAVING REGA RD TO PROCEEDINGS, IF ANY, IN HIGH COURT OR SUPREME COURT AND HAVING REGARD TO STATUTORY PROVISIONS, SUCH AS S. 245D(6), S. 245D(6B), S. 245D(7), S. 245E OF I.T.ACT. MOREOV ER, ON PERUSAL OF THE IMPUGNED APPELLATE ORDER DATED 21.03 .2016 OF THE LD. CIT(A), WE FIND THAT ALTHOUGH THE LD. CIT( A), IN PARAGRAPH 4.2.5 OF HIS IMPUGNED APPELLATE ORDER HAS STATED, NO REPLY HAS BEEN RECEIVED FROM A.O.; THE ORDER O F THE LD. CIT(A) IS SILENT ON HOW MUCH OPPORTUNITY WAS GIVEN BY THE LD. CIT(A) TO THE ASSESSING OFFICER, AFTER ADMISSIO N OF ADDITIONAL EVIDENCES UNDER RULE 46A OF INCOME TAX R ULES HAVING REGARD TO RULE 46A (3) OF INCOME TAX RULES W HEREBY THE LD. CIT(A) WAS DUTY BOUND TO ALLOW A REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS EXAMINE THE WITNES S PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EV IDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTABLE OF THE ADDITI ONAL EVIDENCE PRODUCED BY THE APPELLANT. IN VIEW OF FORE GOING; AND AFTER PERUSAL OF MATERIALS ON RECORD, AND MOREOVER AFTER HEARING BOTH SIDES WE SET ASIDE THE IMPUGNED APPELL ATE ORDER DATED 21.03.2016 OF THE LD. CIT(A) AND RESTOR E ALL THE DISPUTED ISSUES TO THE FILE OF THE ASSESSING OFFICE R WITH THE 8 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) DIRECTION TO PASS FRESH ASSESSMENT ORDER AS PER LAW , AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE, AND TAK ING DUE CONSIDERATION OF THE ORDER(S) PASSED BY SETTLEMENT COMMISSION U/S 245D(4) OF I.T.ACT IN THE CASES OF AFORESAID M/S. SATYA PRAKASH & BROTHERS PVT. LTD., SH. SATYA PRAKASH GUPTA AND SMT. ABHA GUPTA. WE FURTHER DIRECT THE ASSESSING OFFICER TO ENSURE THAT DOUBLE ADDITION OF SAME INCOME IS AVOIDED; AND ALSO THAT INCOME ASSESSED AN D TAXED IN THE HANDS OF THE AFORESAID M/S. SATYA PRAKASH & BROTHERS PVT. LTD., SH. SATYA PRAKASH GUPTA AND SMT. ABHA GU PTA, IN CONSEQUENCE OF ORDER(S) OF SETTLEMENT COMMISSION U/ S 245D(4) OF I.T.ACT IN THEIR CASES, IS NOT TAXED AGA IN IN THE HANDS OF THE ASSESSEE IF 877777THE ORDERS OF SETTLE MENT COMMISSION IN THE CASES OF AFORESAID M/S. SATYA PRA KASH & BROTHERS PVT. LTD., SH. SATYA PRAKASH GUPTA AND SM T. ABHA GUPTA HAVE ATTAINED FINALITY. (3) THE APPEAL IS PARTLY ALLOWED, FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/0 1/2020. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER *BR* DATED: 31/01/2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 9 ITA NO. 2984/DEL/2016 (RAJIV GUPTA) 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 31.01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING 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 WE BSITE 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 RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER