Mohan Gupta, New Delhi V. Deputy Commissioner of Income-tax, New Delhi

ITA 3392/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1219 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: SAUMYA SINGH
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F , NEW DELHI BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3392 /DEL/201 5 AY: 201 1 - 12 SH. MOHAN GUPTA LANE 13 B, WESTERN AVENUE SAINIK FARMS NEW DELHI 110 034 PAN: AANPG5697C VS. DY.CIT, CENTRAL CIRCLE 25 NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. SAUMYA SINGH, ADV. DEPARTMENT BY : S H. SURENDER PAL, SR. D.R. DATE OF HEARING : 08/11/2018 DATE OF PRONOUNCEMENT : 28 /11/2018 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 25/03/15 PASSED BY LD.CIT(A) - 25, NEW DELHI FOR A SSESSMENT Y EAR (A.Y.) 2011 - 12 ON FOLLOWING GROUNDS OF APPEAL: 1 . THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT(A) - 25, N EW DELHI IS PERVERSE , ILLEGAL AS THE PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE AND HENCE IT IS LIABLE TO BE QUASHED. ITA NO. 3392 /DEL/2015 A.Y. - 20 11 - 12 SH. MOHAN GUPTA 2 2 . THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS GROSSLY ERRED IN HOLDING THAT APPELLANT HAS NOT TAKEN ANY GROUND WITH REGARD TO SEIZURE AMOUNT TO RS. 4,50,000/ - , SO THERE IS NO DECISION ON THAT AMOUNT. WHEREAS, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND : THAT ON FACT AND CIRCUMSTANCES OF THE CASE THE L D . AO HAS GROSSLY ERRED IN MAKING THE ADDITION OF RS .4,50,000/ - ON ACCOUNT OF CASH SEIZED FROM THE PREMISES OF THE ASSESSEE ILLEGALLY. THEREFORE THE SAME IS LIABLE TO BE QUASHED. THEREFORE, THE ORDER IS ALSO PERVERSE ON THIS ACCOUNT ALSO. 3 . THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THE L D . CIT(A) HAS E RRED IN CONFIRMING THE ADDITION MADE TO THE TUNE OF RS.2 , 69 , 130/ - ON ACCOUNT OF UNEXPLAINED JEWELLERY, IN DEFIANCE OF THE INSTRUCTION NO . 1916, WHICH IS ILLEGAL, HENCE LIABLE TO BE QUASHED. 4 . THE APPELLANT CRAVES LEAVE FOR ADDITION, MODIFICATION, ALTERATION, AMENDMENT OF ANY OF THE GROUNDS OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: A SSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.14,44,400/ - ON 31/03/12. A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (THE ACT) WAS CARRIED OUT ON 03/03/11 WHEREIN CASH AMOUNTING TO RS.5,86,950/ - , AND JEWELL ERY AMOUNTING TO RS.15,98,094/ - WAS FOUND. THE SEARCH TEAM SEIZED CASH AMOUNTING TO RS.4,50,000/ - AND THE JEWELLERY AMOUNTING TO RS.2,69,130/ - . ACCORDINGLY A SHOW CAUSE NOTICE WAS ISSUED TO ASSESSEE FOR EXPLAINING THE SOURCE OF CASH AND JEWELLERY WITH SUPPOR TING EVIDENCES. ASSESSEE ITA NO. 3392 /DEL/2015 A.Y. - 20 11 - 12 SH. MOHAN GUPTA 3 PLA CED RELIANCE UPON I NSTRUCTION NO.1916 ISSUED BY B OARD IN REGARDS TO JEWELL E RY SEIZED. IT WAS SUBMITTED THAT JEWELLERY WEIGHING 640.850 GM, VALUING RS.15,98,094/ - BELONGED TO ASSESSEE S WIFE AND OTHER FAMILY MEMBERS. 3. LD.AO R EJECTED ASSESSEE S CLAIM BY SUBMITTING THAT NO DETAILS WERE FURNISHED IN RESPECT OF THE JEWELL E RY SEIZED AND HELD THAT EXPLANATION REGARDING THE SEIZED JEWELL E RY WAS NOT SATISFACTORY. 4. AGGRIEVED BY ORDER OF LD.AO ASSESSEE PREFERRED APPEAL BEFORE THE LD.C IT(A) WHO REJECTED ASSESSEE S CLAIM. 5. AGGRIEVED BY THE ORDER OF LD.CIT(A) ASSESSEE IS IN APPEAL BEFORE US. 6. LD. AR PRIMARILY SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS NOT GRANTED TO ASSESSEE IN ORDER TO SUBSTANTIATE HIS CLAIM. 6.1 . ON THE CONTRARY L D. SR. DR PLACED RELIANCE UPON THE ORDERS OF AUTHORITIES BELOW. 7. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 8. IT IS OBSERVED THAT ASSESSEE INSTITUTED APPEAL BEFORE LD. CIT (A) ON 18/12/14 AND IMPUGNED ORDER W AS PASSED ON 25/03/15. IN OUR CONSIDERED OPINION LD.CIT(A) SHOULD HAVE GRANTED SUFFICIENT TIME TO ASSESSEE TO REPRESENT HIS CASE AND TO FILE REQUISITE DETAILS IN SUPPORT OF THE CLAIM. 9. ACCORDINGLY WE ARE INCLINED TO SET ASIDE THIS ISSUE BACK TO LD. CIT(A) WITH A DIRECTION TO GRANT PROPER OPPORTUNITY TO ASSESSEE AS PER LAW. ASSESSEE IS DIRECTED TO FILE ALL REQUISITE DETAILS AS CALLED FOR IN SUPPORT OF HIS CLAIM. ITA NO. 3392 /DEL/2015 A.Y. - 20 11 - 12 SH. MOHAN GUPTA 4 10. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 T H NOVEMBER, 2018. S D / - S D / - ( PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBE R DT. 2 8 T H NOVEMBER, 2018 G MV COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 3392 /DEL/2015 A.Y. - 20 11 - 12 SH. MOHAN GUPTA 5 DATE DRAFT DICTATED ON 28 /11/18 DRAFT PLACED BEFORE AUTHOR 2 8 .11.18 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 2 8 . 1 1 . 1 8 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.