Shri Vineet Kashyap, New Delhi V. DCIT, New Delhi

ITA 3172/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69512 (ITAT-DELHI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2002-2003
• Appeal Filed On: 21-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S MEENA
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Principle of natural justice; Additional evidence; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.3172, 3173, 3174, 3175, 3176, 3177 & 3181/D EL./2013 (ASSESSMENT YEAR : 2002-03 TO 2008-09) SHRI VINEET KASHYAP, VS. DCIT, CENTRAL CIRCLE 17 , 223, SUKHDEV VIHAR, NEW DELHI. NEW DELHI. (PAN : AGDPK0402H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANAT KAPOOR, ADVOCATE REVENUE BY : SHRI R.S. MEENA, CIT DR ORDER PER BENCH : ALL THESE APPEALS FILED BY THE ASSESSEE EMANATE FRO M THE ORDERS OF THE CIT (APPEALS)-II, NEW DELHI DATED 28.02.2013, 06.03 .2013 AND 08.03.2013 FOR ASSESSMENT YEARS 2002-03 TO 2008-09. THE AFORE SAID APPEALS ARE EMANATED FROM THE ORDERS OF THE CIT (A) AS UNDER :- S.NO. ITA NUMBERS DATE OF CIT (A) ORDER 1. 3172/DEL/2013 28.02.2013 2. 3173/DEL/2013 28.02.2013 3. 3174/DEL/2013 06.03.2013 4. 3175/DEL/2013 08.03.2013 5. 3176/DEL/2013 08.03.2013 6. 3177/DEL/2013 08.03.2013 7. 3181/DEL/2013 28.02.2013 ITA NOS.3172 TO 3177 & 3181/DEL./2013 2 THE ASSESSEES APPEALS FOR ASSESSMENT YEARS 2002-03 TO 2006-07 AND FOR ASSESSMENT YEAR 2008-09 WERE DISMISSED AND FOR ASSE SSMENT YEAR 2007-08, THE APPEAL WAS PARTLY ALLOWED. THE RELIEF GRANTED B Y CIT (A) IN PARA 8.21 READ AS UNDER : 8.21. IN CONCLUSION, THE CORROBORATION OF THE SEIZ ED DOCUMENTS IS EVIDENT FROM THE DISCUSSION IN THE ASS ESSMENT ORDER. SINCE SEVERAL ENTRIES OF THE SEIZED DOCUMENT S, WHICH ARE IN THE FORM OF PRINT-OUTS OR HAND WRITTEN JOTTINGS IN A DIARY, TALLY WITH THOSE IN THE BOOKS OF ACCOUNTS OF AKME P ROJECTS LTD, IT IS EVIDENT THAT THE NOTING OF CASH IN THE SEIZED DOCUMENTS WERE ALSO MADE IN THE REGULAR COURSE OF BUSINESS. T HEREFORE, THESE DOCUMENTS ARE MATERIAL EVIDENCES OF UNDISCLOS ED INVESTMENT BY THE APPELLANT IN THE RELEVANT YEARS T O WHICH THE SEIZED PAPERS PERTAIN, IE, FY 04-05 AND FY 05-06. H ENCE, THE AO WAS JUSTIFIED IN ADDING RS.15.74 CRORES IN AY 05 -06 AND RS.0.54 CRORES IN AY 06-07. THESE ADDITIONS OF RS.1 5.74 CRORES IN AY 05-06 AND RS.0.54 CRORES IN AY 06-07 T HAT EMANATE FROM PAGES 67 AND 68 OF ANNEXURE A-9, SEIZE D FROM THE RESIDENCE OF SUNIL KHEMKA, ARE THEREFORE SUSTAI NED. HOWEVER, SINCE THE ADDITION OF RS.0.72 CRORES IN AY 07-08 IS NOT SUPPORTED BY PAGES 67 AND 68 OF ANNEXURE A-9 AN D THE DISCLOSURE OF RS.17 CRORES WAS MADE BY THE APPELLAN T IN RESPECT OF AY 08-09, IT WILL STAND DELETED. FOR AY 07-08 TH EREFORE, GROUND 11 OF THE APPEAL IS ALLOWED. ASSESSEE HAS ALSO TAKEN GROUND FOR NOT PROVIDING AD EQUATE OPPORTUNITIES AND VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THESE APPEALS ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT U /S 132 OF THE INCOME- TAX ACT, 1961 IN THE CASE OF M/S. B.L. KASHYAP & SO NS GROUP OF CASES IN ITA NOS.3172 TO 3177 & 3181/DEL./2013 3 WHICH THE PREMISES OF THE ASSESSEE WERE ALSO COVERE D ON 19.02.2008. NOTICES U/S 153A WERE ISSUED ON 30.12.2008 FOR SIX YEARS FO R ASSESSMENT YEARS 2002- 03 TO 2007-08 AND IN RESPONSE TO THAT THE ASSESSEE FILED THE RETURN U/S 153A ON 23.03.2009 FOR ASSESSMENT YEARS 2002-03 TO 2007-08. FOR ASSESSMENT YEAR 2008-09, NOTICE U/S 143(2) WAS ISSUED TO THE ASSESS EE ON 30.12.2008 AND THE ASSESSEE REPLIED THAT THE RETURN HAS ALREADY BEEN F ILED ELECTRONICALLY ON 30.09.2008. IN ALL THESE APPEALS, THE ASSESSEE HAS TAKEN VARIOUS GROUNDS BUT THERE IS ONE COMMON GROUND FOR NOT ADMITTING THE AP PLICATION UNDER RULE 46A OF THE INCOME-TAX RULES, 1962 FOR FILING THE ADDITI ONAL EVIDENCES. THERE ARE ALSO GROUNDS FOR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. WE HAVE HEARD BOTH THE SIDES ON THIS GROUND. 2. AT THE OUTSET OF THE HEARING, THE LD. AR SUBMITT ED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCES, AS ASSESSING OFF ICER WAS NOT ABLE TO PROVIDE REASONABLE AND ADEQUATE OPPORTUNITIES OF BE ING HEARD TO THE ASSESSEE. THERE WAS VIOLATION OF PRINCIPLES OF NATURAL JUSTIC E. LD. AR ALSO SUBMITTED THAT THERE IS NO NEED TO DEAL WITH THE OTHER ISSUES RAISED IN THE APPEAL AS ALL ISSUES MAY BE RESTORED TO THE ASSESSING OFFICER. LD . DR WAS NOT HAVING ANY SERIOUS OBJECTION TO THE RESTORING OF THE ISSUES TO ASSESSING OFFICER EXCEPT ON ITA NOS.3172 TO 3177 & 3181/DEL./2013 4 THE ISSUE OF ADDITION OF RS.15,74,000/- IN ASSESSME NT YEAR 2005-06 RAISED IN GROUND NOS.10 TO 12 OF APPEAL NO.3175/DEL/2013. 3. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE A SSESSEE DESERVES A FRESH OPPORTUNITY OF BEING HEARD ON ALL THE ISSUES RAISED IN THESE APPEALS. ASSESSEE SHALL BE GRANTED AN OPPORTUNITY TO SUBMIT ADDITIONA L EVIDENCES IN SUPPORT OF ITS CONTENTION. KEEPINGS THESE FACTS IN VIEW AND IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPROPRIATE TO RESTORE ALL THESE APPEALS TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE DE NOV O AS PER LAW. THE ASSESSEE SHALL BE AT LIBERTY TO FILE EVIDENCES BEFORE ASSESS ING OFFICER. 4. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 21 ST DAY OF NOVEMBER, 2013 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (DIVA SINGH) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 21 ST DAY OF NOVEMBER, 2013/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.