Mrs. Neeta Saha, Noida V. ITO, New Delhi

ITA 3436/DEL/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6645 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-02-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 14-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEV JOYTI DAS
• Keywords: Gift; Search and seizure; Salary income; Document seized; Documents seized; Reassessment proceedings
• Section: 153A

Judgement Text

1 ITA NO. 34 36/DEL/2010 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT ME MBER & SMT. BEENA PILLAI, JUDICIAL MEMBER I.T.A .NO.-3436/DE L/2010 (ASSESSMENT YEAR-2002- 03) NEETA SAHA G-22, SECTOR 27, NOIDA. AIGPS3023H VS ITO, WARD 46(1), NEW DELHI. APPELLANT BY SHRI SALIL AGGARWAL, ADV. RESPONDENT BY SHRI DEV JOYTI DAS, CIT - DR ORDER PER BEENA PILLAI, JUDICIAL MEMBER : THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINS T THE ORDER PASSED BY THE LD. CIT(A)S-XXX, NEW DELHI ON 20/05/ 2010 ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-XXX, NEW DELHI IS NOT JUSTIFIED IN CONFIRMIN G THE ADDITION MADE BY ASSESSING OFFICER OF RS. 4 LACS ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE WHO TREATE D IT AS BOGUS ONE. 2. THAT THE LD. ASSESSING OFFICER INITIATED AND COMPLE TED THE ASSESSMENT PROCEEDINGS WRONGLY, HAS CROSSED HIS JURISDICTION BY WAY OF INVOLVING HIMSELF INTO REASS ESSMENT PROCEEDINGS RATHER THAN COMPLETING THE ASSESSMENT O N THE DATE OF HEARING 18.02.2016 DATE OF PRONOUNCEMENT 24.02.2016 2 ITA NO. 34 36/DEL/2010 BASIS OF SEIZED MATERIAL. THEREFORE, THE ENTIRE PR OCEEDINGS OF THE ASSESSING OFFICER ARE INVALID, BEYOND THE SC OPE OF SECTION 153A. 3. THAT THE REVENUE AUTHORITIES COMPLETED THE ASSESSME NT AND APPELLATE PROCEEDINGS WITH PRE CONCEIVED MOTION AND WITHOUT AFFORDING ADEQUATE AND REASONABLE OPPORTUNI TY OF BEING HEARD TO THE APPELLANT. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER , AMEND OR DELETE ANY GROUND OF THE APPEAL AT THE TIME OF H EARING. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: 2.1. THERE WAS A SEARCH AND SEIZURE OPERATION THAT WAS CARRIED OUT BY THE INVESTIGATION WING-GHAZIABAD IN THE CASE OF ATS GROUP ON 15/02/2008. SHRI ANIL KUMAR SAHA IS A DIRECTOR OF M/S ATS INFRASTRUCTURE LTD. AND SMT. NEETA SAHA IS HIS WIFE . ACCORDINGLY, THE RESIDENTIAL PREMISES OF SHRI ANIL KUMAR SAHA AN D NEETA SAHA SITUATED AT 922, SECTOR 27, NOIDA AND LOCKERS IN TH EIR NAMES WERE ALSO COVERED UNDER THIS OPERATION. SMT. NEETA SAHA WAS ASSESSED BY WARD 46(1), NEW DELHI. ACCORDINGLY, PUNCHNAMA F ILES, PHOTOCOPIES OF SEIZED DOCUMENTS RELATING TO ASSESSE E WERE TRANSFERRED TO THE AO BEING ITO, WARD 46(1). ACCOR DINGLY, NOTICE U/S 153A WAS ISSUED TO THE ASSESSEE. THE ASSESSEE HAD FILED HER RETURN OF INCOME ON 26/07/2002 FOR THE YEAR UNDER C ONSIDERATION DECLARING A TOTAL INCOME OF RS. 1,65,215/-. ON REC EIPT OF THE NOTICE U/S 153A THE ASSESSEE FILED HER RETURN OF INCOME ON 18/12/2009 DECLARING THE RETURNED INCOME. 2.2. DURING THE YEAR UNDER CONSIDERATION, THE ASSES SEE HAS DERIVED INCOME FROM HOUSE PROPERTY, INCOME FROM SALARY AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAD ALSO RECEIVED GIFT FROM SHRI 3 ITA NO. 34 36/DEL/2010 SUMITRA GHOSH AMOUNTING TO RS. 4 LACS. ON A QUERY BEING RAISED, THE ASSESSEE FILED COPY OF THE GIFT DEED, COPY OF T HE VISA OF THE DONOR, AND MANAGERS CHEQUE WORTH RS. 4 LACS. THE LD. AO MADE AN ADDITION OF RS. 4 LACS IN THE HANDS OF THE ASSESSEE ON THE GROUND THAT THERE IS NO PROOF OF RELATIONSHIP BETWEEN THE DONOR AND THE ASSESSEE(DONE), AND THE GIFT DEED SUBMITTED BY THE ASSESSEE WAS INCOMPLETE. 3. AGGRIEVED BY THE ORDER OF THE LD. AO THE ASSESSE E PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) CONFI RMED THE ADDITION MADE BY THE LD. AO ON THE GROUND THAT SHRI ANIL KUM AR SAHA, THE HUSBAND OF THE ASSESSEE, HAD ACCEPTED DURING THE SE ARCH OPERATION AND ASSESSMENT PROCEEDINGS, IN HIS CASE, THAT THE G IFT RECEIVED BY HIM WAS BOGUS, AND HE HAD SURRENDERED THE AMOUNTS F OR TAXATION. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US NOW. 4.1 THE LD. AR SUBMITS THAT THE ASSESSEE HAD RECEIV ED THE GIFT AMOUNTING TO RS. 4 LACS FROM HER FIRST COUSIN. THE LD. AR FURTHER SUBMITTED THAT ASSESSEE HAD DISCHARGED THE ONUS OF PROVING THE CREDITWORTHINESS OF THE DONOR BY SUBMITTING THE GIF T DEED PASSPORT OF THE DONOR AND COPY OF THE PAY ORDER RECEIVED FRO M THE DONOR. 4.2 THE LD. AR SUBMITTED THAT THE AO DID NOT VERIFY THE SAME OR INVESTIGATE UPON TO DISPROVE THESE DOCUMENTS. THE LD. AR SUBMITTED THAT THERE WAS NO INCRIMINATING MATERIAL THAT WAS RELIED UPON BY THE LD. AO TO MAKE THE ADDITION IN THE HAND S OF THE 4 ITA NO. 34 36/DEL/2010 ASSESSEE. HE RELIED UPON THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA REPORTED IN 380 ITR 573. 5. ON THE CONTRARY THE LD. DR SUBMITTED THAT, ADMIT TEDLY THOUGH THERE IS NO SEIZED DOCUMENTS, THE ADDITION HAS BEEN MADE BASED ON THE STATEMENT RECORDED U/S 132(4) OF THE INCOME TAX ACT. 5.1 THE LD. DR FURTHER SUBMITTED THAT THE DECISION OF CIT VS. KABUL CHAWLA (SUPRA) IS DISTINGUISHABLE TO THE FACTS OF T HE PRESENT CASE. HE SUBMITTED THAT THE HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF KABUL CHAWLA HOLDS THAT AN ASSESSMENT U/S 153A W OULD BE VALID IF THERE IS AN INCRIMINATING MATERIAL THAT HAS BEEN UNEARTHED DURING THE SEARCH PROCEEDINGS. HE SUBMITTED THAT ANY STAT EMENT RECORDED U/S 132(4) WOULD AMOUNT TO EVIDENCE, THAT HAS BEEN FOUND DURING THE SEARCH PROCEEDINGS AND, THEREFORE, WOULD HAVE A BEARING ON THE ADDITIONS MADE IN THE ASSESSMENT PROCEEDINGS. THE LD. DR SUBMITTED THAT THERE HAS BEEN A STATEMENT RECORDED U/S 132(4) CANNOT BE OVERLOOKED. HE RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 6. THE LD. AR IN THE REJOINDER SUBMITTED THAT THERE HAS BEEN NO STATEMENT OF THE ASSESSEE THAT WAS RECORDED DURING THE SEARCH PROCEEDINGS. IT WAS THE STATEMENT OF HER HUSBAND, BEING ANIL KUMAR SAHA THAT WAS RECORDED. SHRI ANIL KUMAR SAHA HAS ADMITTED THE GIFTS TO BE NOT GENUINE AND HAD SURREN DERED THE AMOUNTS FOR TAXATION WHICH IS NOT THE CASE OF THE A SSESSEE. THE LD. AR FURTHER SUBMITTED THAT IT IS ALSO NOT DISPUTED B Y THE REVENUE THAT ANY ASSESSMENT WAS PENDING IN RESPECT OF THE R ELEVANT 5 ITA NO. 34 36/DEL/2010 ASSESSMENT YEAR OF THE ASSESSEE. HE, THEREFORE, PR AYED FOR DELETION OF THE ADDITION MADE BY THE LD. AO. 7. WE HAVE PERUSED THE RECORDED FILED BEFORE US, OR DERS PASSED BY THE AUTHORITIES BELOW AND THE DECISION RELIED UPON BY THE LD. AR. 7.1 IT IS APPARENT FROM THE ORDER OF THE LD. CIT(A) THAT THE STATEMENT U/S 132(4) HAS BEEN RECORDED IN THE CASE OF THE HUSBAND OF THE ASSESSEE AND NOT IN THE ASSESSEES CASE. TH E HUSBAND OF THE ASSESSEE HAS ADMITTED THE GIFTS RECEIVED BY HIM TO BE BOGUS. HOWEVER, THERE HAS BEEN NO SUCH STATEMENT OF THE AS SESSEE THAT HAS BEEN RECORDED DURING THE SEARCH PROCEEDINGS. F URTHER IT IS OBSERVED THAT THE LD. AO HAD NOT SEIZED ANY DOCUMENTS/INCRIMINATING MATERIAL, TO SUBSTANTIATE T HE ADDITION MADE. THE ADDITION WAS BASED ON THE INCOME DECLARE D IN THE RETURN OF INCOME FILED U/S 153A WHICH IS VERY CLEAR FROM T HE QUESTIONNAIRE RAISED BY THE LD. AO ON 18/12/2009. 7.2.TO OUR MIND THE LD. AO HAS COMPLETED THE ASSESS MENT AND CROSSED HIS JURISDICTION BY WAY OF INVOLVING HIMSEL F INTO A REASSESSMENT PROCEEDINGS RATHER THAN COMPLETING THE ASSESSMENT ON SEIZED MATERIAL, IF ANY, THEREBY MAKING THE ENTI RE PROCEEDINGS AS INVALID AND BEYOND THE SCOPE OF SEC. 153A OF THE AC T. 8. WE, THEREFORE, FOLLOWING THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA SET ASIDE THE ASSESSME NT MADE BY THE LD. AO U/S 153A OF THE ACT. 8.1 GROUNDS FILED BY THE ASSESSEE IS THUS, ALLOWED. 6 ITA NO. 34 36/DEL/2010 9. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24/02/ 2016 SD/- SD/- (N.K. SAINI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24/02/2016 *KAVITA, P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 18.02.2016 2. DRAFT PLACED BEFORE AUTHOR 22.02.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 7 ITA NO. 34 36/DEL/2010