Ginni Devi, New Delhi V. DCIT, New Delhi

ITA 3145/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8434 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAJMI
• Keywords: Unexplained investment; Search and seizure; Salary income; Opportunity of being heard; Additional evidence
• Section: 153A; 143(1); 139(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 3145 /DEL/2017 (ASSESSMENT YEAR : 2012-13) GINNI DEVI E-270, SHASTRI NAGAR, NEW DELHI PAN NO. ACCPD 2043 E VS. DCIT CENTRAL CIRCLE 25 NEW DELHI (APPELLANT) (RESPONDENT) AND ITA NOS. 3242/DEL/2017 (ASSESSMENT YEAR : 2012-13) DCIT CENTRAL CIRCLE 25 NEW DELHI PAN NO. ACCPD 2043 E VS. GINNI DEVI E-270, SHASTRI NAGAR, NEW DELHI (APPELLANT) (RESPONDENT) A SSESSEE BY SHRI HIREN MEHTA, C.A. RE VENUE BY SHRI NAJMI, CIT - D.R. DATE OF HEARING: 1 1 .0 8 .2021 DATE OF PRONOUNCEMENT: 16 . 0 8 . 202 1 ORDER PER BENCH : THESE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (A)- 2 29, NEW DELHI DATED 22.02.2017 RELATING TO ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED FROM THE MATERIAL ON RECORDS ARE AS UNDER : 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING INCOME FROM SALARY, CAPITAL GAIN, INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. ASSESSEE HAD FILED RETURN OF INCOME FOR A.Y. 2012-13 U/S 139(1) OF THE ACT ON 19.02.2013 DECLARING INCOME OF RS.8,91,278/- WHICH WAS PROCESSED U/S 143(1) OF THE ACT ON 15.01.2014. THEREAFTER, CONSEQUENT TO THE SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WHICH WAS CARRIED OUT ON 15.10.2013 IN SRM GROUP OF CASES INCLUDING THE ASSESSEE NOTICE U/S 153A OF THE ACT WAS ISSUED ON 17.06.2014. IN RESPONSE TO THE NOTICE U/S 153A, ASSESSEE ELECTRONICALLY FILED THE RETURN OF INCOME ON 27.12.2014 DECLARING TOTAL INCOME AT RS.8,91,278/-. THEREAFTER, THE CASE WAS TAKEN UP FOR SCRUTINY AND CONSEQUENTLY THE ASSESSMENT WAS FRAMED U/S 153A/144 OF THE ACT VIDE ORDER DATED 20.05.2016 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,39,61,472/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 22.02.2017 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE AND REVENUE ARE NOW IN APPEAL BEFORE US. BEFORE US, ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITA NO.3145/DEL/2017 FOR A.Y. 2012-13: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT(A)-29, NEW DELHI {HEREINAFTER REFERRED TO AS CIT(A)} IS BAD IN LAW. 3 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER PASSED BY LD. CIT(A) IS ILLEGAL AND BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE CONTENTION OF THE AO FOR MAKING ADDITION OF RS.55,67,131/- TO THE RETURNED INCOME OF THE ASSESSEE BY TREATING THE AMOUNT BEING INVESTMENT MADE BY THE ASSESSEE FOR RENOVATION OF ITS PROPERTIES WHICH HAS BEEN DULY RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AS INCOME EARNED FROM UNDISCLOSED SOURCES/UNEXPLAINED INVESTMENT. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, AND MODIFY ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING OR EARLIER. 4. ON THE OTHER HAND, GROUNDS RAISED BY THE REVENUE IN ITA NO.3242/DEL/2017 FOR A.Y. 2012-13 READS AS UNDER: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN LAW AS WELL AS FACTS IN DELETING THE ADDITION OF RS.1,63,982/- MADE BY ASSESSING OFFICER ON ACCOUNT OF COMMISSION INCOME. 2. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AS WELL AS FACTS IN DELETING THE ADDITION OF RS. 13,33,880/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF RENTAL INCOME. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AS WELL AS FACTS IN DELETING THE ADDITION OF RS.1,50,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. C1T (A) HAS ERRED IN LAW AND ON FACTS BY RELYING ON THE DECISION IN THE CASE OF SH. KABUL CHAWLA BY THE JURISDICTIONAL HIGH COURT WHICH HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP AGAINST THE SAME HAS BEEN FILED BEFORE HONBLE SUPREME COURT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. C1T (A) HAS ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN 4 SECTION 153A WOULD ONLY MEAN UNDISCLOSED INCOME DISCOVERED FROM SEIZED/INCRIMINATING MATERIAL. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING RESTRICTIVE AND PEDANTIC INTERPRETATION OF THE SCOPE OF ASSESSMENT U/S 153A OF THE ACT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN ARRIVING AT THE CONCLUSION THAT THE WORDS TOTAL INCOME AS USED IN SECTION 153A WOULD ONLY MEAN INCOME UNEARTHED DURING SEARCH WHEN THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS DCIT DATED 09.08.2014 HAS HELD THAT TOTAL INCOME INCLUDES INCOME UNEARTHED DURING SEARCH AND ANY OTHER INCOME. 8. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 9. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. WE FIRST PROCEED WITH ASSESSEES APPEAL: 5. BEFORE US, ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF APPELLATE TRIBUNAL RULES, 1963. HE SUBMITTED THAT THE ADDITION OF RS.55,67,131/- WAS MADE BY AO BY TREATING THE INCREASE IN VALUE OF IMMOVABLE PROPERTY ON ACCOUNT OF RENOVATION AS UNEXPLAINED INVESTMENT. THE ADDITION WAS MADE, AS AO WAS OF THE VIEW THAT ASSESSEE HAS NOT FILED STATEMENT OF AFFAIRS, NARRATION OF BANK ACCOUNT AND OTHER RELEVANT DOCUMENTS. THE AFORESAID ADDITION MADE BY THE AO WAS UPHELD BY CIT(A). BEFORE US, LEARNED AR SUBMITTED THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR EXPLAINING THE SOURCE OF INVESTMENT AT THE ASSESSMENT STAGE AND NO SHOW-CAUSE NOTICE 5 WAS ISSUED ON THIS PARTICULAR ADDITION. HE SUBMITTED THAT AT THE APPELLATE STAGE SINCE ASSESSEE WAS CONFIDENT OF SUCCEEDING IN APPEAL ON THE BASIS OF RATIO LAID DOWN BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA, 61 TAXMANN.COM 412, AS IT WAS UNDER THE IMPRESSION THAT FOR A.Y. 2012-13 BEING A NON- ABATED ASSESSMENT YEAR NO ADDITION COULD BE MADE. HE SUBMITTED THAT HOWEVER CIT(A) NOTED THAT ASSESSMENT PROCEEDINGS FOR THE YEAR 2012-13 IS PENDING AND HENCE THE RATIO OF THE DECISION IN THE CASE OF KABUL CHAWLA (SUPRA) WAS NOT APPLICABLE. HE THEREFORE SUBMITTED THAT CIT(A) DECIDED THAT ALL THE GROUNDS ON MERITS BUT AS THE ASSESSEE COULD NOT PLACE EVIDENCE TO SUPPORT THE CASE WITH RESPECT TO THE SOURCE OF EXPENDITURE ON RENOVATION OF SHOPS, ASSESSEE NOW WISHES TO BRING ON RECORD THE NECESSARY EVIDENCE. HE THEREFORE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCES BE ADMITTED AND THE MATTER BE REMITTED BACK TO THE LOWER AUTHORITIES FOR VERIFICATION. 6. LEARNED DR ON THE ISSUE OF ADDITIONAL EVIDENCES DID NOT SERIOUSLY CONTROVERT THE SUBMISSIONS MADE BY THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US, ASSESSEE HAS MADE AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES. IT IS INTER ALIA ASSESSEES CONTENTIONS THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR EXPLAINING THE SOURCE OF INVESTMENTS AND BEFORE CIT(A) ALSO ASSESSEE COULD NOT PLACE ON RECORD NECESSARY EVIDENCES AS THE ASSESSEE WAS OF THE VIEW THAT THE RATIO OF THE DECISION IN THE CASE OF KABUL CHAWLA (SUPRA) WOULD BE APPLICABLE. 6 CONSIDERING THE TOTALITY OF THE FACTS THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE AO FOR EXPLAINING THE SOURCE OF INVESTMENTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PLACE ON RECORD THE NECESSARY EVIDENCES TO SUPPORT HER CASE. WE THEREFORE ADMIT THE ADDITIONAL EVIDENCE AND RESTORE THE ADDITIONAL EVIDENCE TO THE FILE OF AO TO EXAMINE THE SAME AND THEREAFTER DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE ARE RESTORING THE ISSUE TO THE FILE OF AO, THE OTHER GROUNDS RAISED BY THE ASSESSEE AND THE GROUNDS RAISED BY REVENUE ARE NOT BEING ADJUDICATED AT PRESENT AND THE SAME ARE ALSO REMITTED TO AO. THUS THE GROUNDS OF REVENUE AND ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.08.2021 SD/- SD/- (KULDIP SINGH) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE:- 16.08.2021 PY* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI