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

ITA 3484/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5198 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 22-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: MATHURIA
• Keywords: Salary income; Corroborative evidences; Competent authority
• Section: 143(3); 133A; 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 3484 /DEL/2014 : ASSTT. YEAR : 2010 - 11 SH. RAJIV GULATI, C - 8A, DDA MIG FLATS, MAY APURI, NEW DELHI - 110064 VS ACIT, CIRCLE - 27, NEW DELHI - 110002 (APPELLANT) (RESPONDENT) PAN NO. A CRPG7838N ASSESSEE BY : SH. M. S. MATHURIA , ADV. REVENUE BY : SMT. PARAMITA TRIPATHY , CIT DR DATE OF HEARING : 07.08 .201 7 DATE OF P RONOUNCEMENT : 14 . 08 .201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25.03.2014 OF LD. CIT(A) - XXIV, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: [1] ON THE FACTS AND I N LAW, LEARNED CIT (A) HAS ERRED IN SUSTENANCE O F ADDITIONS OF RS.1,30,00,000/ - MADE BY THE AO UNDER SUSPICION AND WITHOUT TAKING DUE COGNIZANCE OF THE SUBMISSIONS MADE BEFORE THE SAID AO SUPPORTED WITH DOCUMENTARY EVIDENCES. [2] ON THE FACTS AND IN LAW, LEARNED CIT (A) HAS ERRED IN NOT TAKING COGNIZANCE OF UNCONDITIONAL AFFIRMATION AND CONFIRMATION BY THE 'REAL OWNER' OF THE I MPUGNED SUM OF RS. 1,30,00,000/ - THAT THE SAID SUM WAS DEPOSITED BY THE SAID 'REAL OWNER' WITH THE ITA NO. 3484 /DEL /201 4 RAJIV GULATI 2 APPELLANT FOR RESALE OF PLOTS OF AGRICULTURAL LAND SITUATED AT NASARPUR, TEHSIL AND DISTRICT ROHTAK (HARYANA) WHICH WERE PURCHASED BY THE APPELLANT FROM SHRI RISHI PRAKA SH S/O SHRI CHANDER SARUP OF VI LLAGE : TITOLI, TEHSIL AND DISTRICT ROHTAK (HARYANA). ] [3] ON THE FACTS AND IN LAW IMPU GNE D ADDITIONS OF RS. 1,30,00,000/ - MADE BY THE AO AND SUSTAINED BY THE CIT (A) MAY KINDLY BE DELETED. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET S T ATED THAT THE IMPUGNED AMOUNT WAS ADDED TO THE INCOME OF THE ASSE SSEE ON SUBSTANTIVE BASIS AND PROTECTIVE ADDITION WAS MADE IN THE HANDS OF SH. TAJENDER KAKKAR. IN SUPPORT OF THE ABOVE CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE FURNISHED COPY OF THE ASSESSMENT ORDER DATED 26.03.2013 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 IN THE CASE OF SH. TAJENDER KAKKAR . IT WAS FURTHER STATED THAT AGAINST THE AFORESAID ASSESSMENT ORDER, SH. TAJENDER KAKKAR FILED AN APPEAL BEFORE THE LD. CIT(A) - 34, NEW DELHI WHO DISMISSED THE SAME VIDE ORDER DATED 27.02.2017. THE LD. COUNSEL FO R THE ASSESSEE FURNISHED A FACT SHEET AND ALSO THE AFFIDAVIT AND REQUESTED TO DELETE THE ADDITION MADE IN THE HANDS OF THE ASSESSEE. 4 . IN HIS RIVAL SUBMISSIONS THE LD. CIT DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ITA NO. 3484 /DEL /201 4 RAJIV GULATI 3 AD DITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS JUSTIFIED. 5 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, I T IS NOTICED THAT THE ASSESSEE HAD FILED AN AFFIDAVIT AND ALSO FACT SHEET WHICH ARE REPRODUCED VERBATIM AS UNDER: (I) FACT SHEET: - PAPER BOOK SR. DESCRIPTION PAGE NOS. PARA NOS. 1 APPELLANT IS AN 'INDIVIDUAL' ASSESSED UNDER PAN: ACRPG - 7873 - N. RETURN OF INCOME FOR A. Y. 2010 - 11 WAS FILED U /S.139 ON 15.10.2010. 01 AND 15 TO 20 [2] EXH. A 2 HIS SOURCE OF INCOME : [A] SALARY INCOME AS CHIEF EXECUTIVE (CLEARING) OF MUMBAI OFFICE OF MESSRS. SKYLINE CARGO AGENTS PVT. LTD., - LICENSED REGISTERED CUSTOM HOUSE AGENT [CHA], HAVING THEIR REGISTERE D OFFICE AT B - 411, SOMDUTT CHAMBERS - 1,5, BHIKAJI CAMA PLACE, NEW DELHI - 110 066. [B] BUSINESS / PROFESSION INCOME AS AGENT IN IMMOVABLE PROPERTIES AND [C] BANK INTEREST ON SAVINGS BANK ACCOUNT. 01 AND 15 TO 20 [2] AND [3.1] AND [3.2] EXH. 'A' 3 ON 28,12.2009, THE APPELLANT HAD ENTERED INTO AN AGREEMENT FOR PURCHASE OF AGRICULTURAL PLOTS OF LAND SITUATED AT NASARPUR, TEHSIL AND DISTRICT ROHTAK WITH SHRI RISHI PRAKASH S/O SHRI CHANDER SARUP RESIDING AT VILLAGE: TITOLI, TEHSIL AND DISTRICT ROHTAK, (HA RYANA) FOR TOTAL CONSIDERATION OF RS.L,83,75,000/=. ON THE DATE OF SIGNING THE SAID AGREEMENT, THE APPELLANT HAD PAID TO SAID SHRI RISHI PRAKASH SUM OF RS.5,00,000/= AS TOKEN AMOUNT AND SAID AGREEMENT WAS DULY REGISTERED 01 AND 15 TO 29 [3.2] EXH. 'B ITA NO. 3484 /DEL /201 4 RAJIV GULATI 4 WITH THE COMPETENT AUTHORITY UNDE R SERIAL NO. 143 7. 4 ON 28.12.2009, THE APPELLANT ENTERED INTO AN AGREEMENT TO SALE [ ABOVE SAID AGRICULTURAL PLOTS OF LAND SITUATED AT NASARPUR, TEHSIL AND DISTRICT ROHTAK] WITH SHRI TAJENDER KAKKAR S/O SHRI G. D. KAKKAR R ESIDING AT D - 7/7176, SECTOR 'D', VASANT KUNJ, NEW DELHI - 110 070 FOR TOTAL CONSIDERATION OF RS. 1,90,00,000/= OF WHICH RS. 11,25,000/= IS TO BE PAID TO THE APPELLANT BY THE SAID SHRI TAJENDER KAKKAR AND BALANCE RS.L,78,75,000/= TO BE PAID TO ABOVE NAMED S HRI RISHI PRAKASH S/O SHRI CHANDER SARUP RESIDING AT VILLAGE: TITOLI, TEHSIL AND DISTRICT ROHTAK, (HARYANA) THROUGH THE APPELLANT IN TERMS OF SAID AGREEMENT TO SALE DATED 28.12.2009. 02 AND 30 TO 33 [3.2] EXH. 'C 5 THE SAID SHRI TAJENDER KAKKAR [PURCHAS ER OF ABOVE SAID PLOTS OF LAND] DELIVER ED TOTAL SUM OF RS. 1,30,00,000/ = BY 31.01.2010 TO THE APPELLANT AND REQUESTED TO EXTEND THE TIME FOR PAYMENT OF BALANCE SUM OF RS.60,00,000/= TILL 31.03.2010. - ALSO SEE SERIAL NO.14 HEREUNDER. 02 [3.3] EXH. 'C 6 ONE OF THE CLIENTS OF THE SAID MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED [LICENSED CHA] (EMPLOYERS OF THE APPELLANT), NAMELY, MESSRS. STARLIGHT OVERSEAS (HAVING THEIR OFFICES AT NEW DELHI AND FARIDABAD - HARYANA), HAVE IMPORTED BETWEEN 01.04.2009 TO 31 .12.2009 - 63 CONSIGNMENTS OF KNITTED FLOCKED FABRICS / PU COATED FABRICS / NON TEXTURISED POLYESTER LINING FABRICS PA COATED POLYESTER FABRICS FROM CHINA. OUT OF SAID 63 CONSIGNMENTS 52 CONSIGNMENTS WERE CLEARED BY THE SAID MESSRS. STARLIGHT OVERSEAS THROUGH ICD, BALLABHGARH BY LICENSED CHA MESSRS. AKNSHA LOGISTICS OF DELHI AND 11 CONSIGNMENTS WERE CLEARED THROUGH ICD, MULUND BY LICENSED CHA MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED. (EMPLOYERS OF THE APPELLANT) 02 AND 43 TO 77 [3.4] EXH. 'G - 1 7 INTELLIGENCE WAS GATHERED BY MUMBAI ZONAL UNIT OF DIRECTORATE OF REVENUE INTELLIGENCE [HEREINAFTER 02 AND 4 3 TO 77 [3.4] EXH. 'G - 1 ITA NO. 3484 /DEL /201 4 RAJIV GULATI 5 REFERRED TO AS 'THE SAID DRT] THAT THE SAID IMPORTER MESSRS. STARLIGHT OVERSEAS HAS UNDERVALUED SUCH IMPORTED GOODS AND HAVE EVADED PAYMENT OF CUSTOM DUTY B Y SUCH MIS - DECLARATION OF COST OF SUCH IMPORTED GOODS BY THE SAID MESSRS. STARLIGHT OVERSEAS. IN CONSEQUENCE OF SUCH INFORMATION, THE DRI HAVE CARRIED OUT SEARCH AT PLACE OF BUSINESS AND RESIDENCE OF SAID MESSRS. STARLIGHT OVERSEAS AS WELL AS PLACE OF LIC ENSED CHAS MESSRS. AKNSHA LOGISTICS OF DELHI AND MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED OF MUMBAI INCLUDING PLACE OF RESIDENCE OF THE APPELLANT WHO IS A CEO AT MUMBAI OFFICE OF SAID MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED ON 03.02.2010. 8 IN THE PROCESS OF IMPUGNED SEARCH THE OFFICIALS OF THE DRI HAVE FOUND CASH OF RS. 1,72,67,000/= AT THE PLACE OF RESIDENCE OF THE APPELLANT WHO IS A CEO AT MUMBAI OFFICE OF SAID MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED. EV EN THOUGH THE APPELLANT HAS EXPLAINED THAT THE SAID SUM OF RS. 1,72,67 ,000/ = CONSIST OF 02 AND 30 TO 33 [3.5] READ WITH [3.3] AND EXH. C RS. 42,67,000/= BELONGS TO THE AP PELLANT OUT OF RS.48,87,000/ = DISCLOSED FROM HIS PROPRIETARY BUSIN ESS EARNED DURING THE RELEVANT ACCOUNTING YEAR. RS. 1,30,00,000/= BELONGS TO SHRI TAJERTDER KAKKAR RESIDING AT D - 7/7176, SECTOR 'D', VASANT KUNJ, NEW DELHI - 110 070 - BEING ADVANCE RECEIVED AGAINST AGREEMENT TO SALE DATED 28.12.2009 AS REFERRED IN PA RA [3.3] HERE ABOVE. 9. SAID SEARCH PARTY DISBELIEVING THE FACTS AS NARRATED BY THE APPELLANT AND HAD SEIZED IMPUGNED SUM OF RS.1,72,67,000/ = FROM THE APPELLANT ON 03.02.2010. 02 AND 45 [3.6] 10. THE APPELLANT WAS UNLAWFULLY DETAINED BETWEEN 03.02.201 0 TO 05.02.2010 IN THE OFFICE OF THE DRI 03 [3.7] ITA NO. 3484 /DEL /201 4 RAJIV GULATI 6 AND WAS FORCED TO SIGN SOME STATEMENTS INVOLVING SOME CUSTOMS OFFICERS UNDER COERCION AND APPLYING THIRD DEGREE TREATMENT WITH VERBAL THREAT OF DIRE CONSEQUENCES AND PUTTING IN THE JAIL. THE APPELLANT HAS REPEATEDLY SAID THAT HE HAS ACTED ONLY AS LICENSED CHA OF THE SAID MESSRS. STARLIGHT OVERSEAS WHO ARE THE IMPORTERS AND OWNERS OF GOODS IMPORTED FROM CHINA. IF ANY UNDER VALUATION IS MADE BY THE SAID MESSRS. STARLIGHT OVERSEAS, THE APPELLANT AND 7 OR HIS EMPLOYERS M ESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED ARE NOT THE BENEFICIARY AND ANY CUSTOM DUTY EVASION BY THE SAID IMPORTER MESSRS. STARLIGHT OVERSEAS, THEY ARE SOLELY RESPONSIBLE AND LIABLE FOR THE ACTION UNDER THE CUSTOMS ACT, 1962. 11. THE APPELLANT WAS RELEASED FROM UNLAWFUL DETENTION BY THE DRI ON 05.02.2010. DUE TO THIRD DEGREE AND INHUMAN TREATMENT METED OUT BY THE DRI, HE WAS NOT ABLE WALK AND HE WAS RUSHED TO CASUALTY WARD OF SIR J. J. HOSPITAL; DEEN DAYAL UPADHYAY HOSPITAL, NEW DELHI AND ESCOR T HEART INSTITUTE & RESEARCH CENTRE LTD., AT NEW DELHI BETWEEN 05.02.2010 TO 19.02.2010 03 [3.7] TO [3.10] AND EXH. 'D' TO F 12. AFTER THOROUGH INVESTIGATION BY THE SAID MUMBAI ZONAL UNIT OF DIRECTORATE OF REVENUE INTELLIGENCE [HEREINAFTER REFERRED TO AS 'THE SAID DRI'], THEY WERE SATISFIED AND CONVINCED THAT THE APPELLANT IS INNOCENT AND ADJUDICATED THAT 'NO EVIDENCE COULD BE GATHERED D URING INVESTIGATION THAT THE RS. 1.72 CRORES THAT HAD BEEN SEIZED FROM THE RESIDENCE OF SHRI RAJIV GULATI (CHIEF EX ECUTIVE OF M/S. SKYLINE CARGO AGENTS (P) LIMITED, THE CHA FIRM), AT 701 - 702, B, EXPRESS APARTMENT, YARI ROAD, VERSOVA, MUMBAI - 400061 UNDER THE REASONABLE BELIEF THAT THEY REPRESENTED THE SALE PROCEEDS OF SMUGGLED GOODS, WERE ACTUALLY SO. THIS AMOUNT WAS THEREFORE HANDED OVER TO THE INCOME TAX AUTHORITY ON 02.08.2010 [ ASSTT. DIRECTOR OF INCOME TAX (INVESTIGATION), UNIT IV (1), ARA CENTRE, 2 ND FLOOR, E - 2, JHANDEWALAN EXTENSION, NEW DELHI - 110 055] UNDER INTIMATION TO SHRI RAJIV GULATI FOR 3 READ WITH PAGE NO.52 AND 42 [3.11] AND [3.12] EXH. 'G' AND 'G - I' ITA NO. 3484 /DEL /201 4 RAJIV GULATI 7 PROCEEDING UNDER THE INCOME TAX ACT.' 13. AFTER REQUISITION OF THE SAID SUM OF RS. 1,72, 67,000/ = ON 02.08.2010 U/S.132A, NOTICE U/S.1 53A WAS ISSUED BY THE ACIT, CIRCLE 48(1), NEW DELHI ON 28.09.2011 WHI CH WAS DULY COMPLIED BY THE APPELLANT BY FILING HIS RETURN OF INCOME FOR ASSESSMENT YEAR : 2010 - 11 ON 14.10.2011 PAGE 1 AND 2 OF ASSESSMENT ORDER 14. APPELLANT'S AUTHORIZED REPRESENTATIVE ATTENDED BEFORE THE ASSESSING OFFICER FROM TIME TO TIME AND F ILED REQUIRED INFORMATION / EVIDENCES. ON 11.12.2010 SURVEY ACTION U/S. 133A WAS TAKEN UP AGAINST THE SAID SHRI TAJENDER KAKKAR [PURCHASER OF ABOVE SAID PLOTS OF LAND] WHO DELIVER ED TOTAL SUM OF RS. 1,30,00,000/ = BY 31.01.2010 TO THE APPELLANT ( KINDLY SE E SERIAL NO.5 HEREABOVE) WHO UNCONDITIONALLY AFFIRMED AND CONFIRMED THAT THE SAID SUM OF RS. 1,30,00,000/ = 'BELONGS TO HIM' AND WAS KEPT WITH THE APPELLANT FOR PASSING ON TO THE OWNER OF A PLOTS OF LAND WHICH WAS AGREED TO BE PURCHASED BY THE 'SAID REAL OW NER' OF THE SAID SUM OF RS. 1,30,00,000/ - . PAGE 2 TO 4 OF ASSESSMENT ORDER R.W. PB PAGE 4 TO 6 PARA 8 AND 9 EXH. I 15 IMPUGNED ASSESSMENT ORDER PASSED U/S.153A R.W.S. 143(3) ON 28.03.2013 MAKING ADDITION OF RS. 1,30,00,000 / - U/S.69A UNDER SUSP ICION AND DISCARDING EVIDENCES PRODUCED AND WITHOUT CONSIDERING THE DECISIONS RELIED ON BY THE APPELLANT ALONG WITH UNCONDITIONAL AFFIRMATION AND CONFIRMATION BY THE 'SAID REAL OWNER' THAT THE SAID SUM OF RS.L,30,00,000/= 'BELONGS T O HIM' AND WAS KEPT WITH THE APPELLANT FOR PASSING ON TO THE OWNER OF A PLOTS OF LAND WHICH WAS AGREED TO BE PURCHASED THROUGH THE APPELLANT. 17 TO 21 OF APPEAL MEMO. 16 APPEAL AGAINST IMPUGNED ASSESSMENT ORDER DISMISSED BY THE LEARNED CIT (A) MECHANI CALLY AND WITHOUT CONSIDERING THE SUBMISSION MADE AND WITHOUT CONSIDERING THE DECISIONS RELIED ON BY THE APPELLANT. 3 TO 14 OF APPEAL MEMO 17 PRESENT APPEAL AGAINST IMPUGNED APPEAL ORDER AND ASSESSMENT ORDER. ITA NO. 3484 /DEL /201 4 RAJIV GULATI 8 (II) THE ASSESSEE ALSO FURNISHED AN AF FIDAVIT DATED 19.06.2017 STATING THEREIN AS UNDER: I, SHRI RAJIV GULATI SON OF SHRI YOGINDER KUMAR GULATI, ADULT INDIAN, (PERMANENTLY RESIDING AT C - 8A, DDA MIG FLATS , MAYAPURI, NEW DELHI - 110 064) PRESENTLY RESIDING AT 701/702, 'B', EXPRESS APARTMENT, YA R I ROAD, VERSOVA, MUMBAI - 400 061, SOLEMNLY DECLARE AND AFFIRM AS FOLLOWS: - 1. I AM REGULARLY ASSESSED TO TAX UNDER PA NUMBER: ACRPG - 7837 - N. 2. RETUR N OF INCOME FOR ASSESSMENT YEAR: 2010 - 11 WAS ELECTRONICALLY FILED U/S.139 ON 15.10.2010 DECLARING T AXABLE INCOME OF RS.51,67,216/= COMPRISING I NCOME FROM SALARY' FROM MESSRS. SKYLINE CARGO AGENTS PVT . LTD., MUMBAI, IN COME FROM BUSINESS/ PROFESSION' BEING COMMISSION ON PURCHASE/ SALE OF IMMOVABLE PROPERTIES AND 'INCOME FROM OTHER SOURCES' - IN TEREST ON SAVINGS BANK ACCOUNT. AGAIN IN COMPLIANCE OF NOTICE U/S 153A, FRESH RETURN OF INCOME WAS FILED ON 14.10.2011. 3. FOR THE SAKE OF BREVITY AND TO AVOID REPETITION, I AFFIRM AND CONFIRM FACTS OF THE PRESENT APPEAL AS ENUMERATED IN 'FACT SHEET' FILE D HEREWITH. 4. IN COURSE OF MY EMPLOYMENT AS CHIEF EXECUTIVE (CLEARING) AT MUMBAI OFFICE OF MESSRS. SKYLINE CARGO AGENTS PVT. LTD., - LICENSED REGISTERED CUSTOM HOUSE AGENT [CHA], HAVING REGISTERED OFFICE AT B - 411, SOMDUTT CHAMBERS - 1, 5, BHIKAJI C AMA PL ACE, NEW DELHI - 110 066, I CLEARED BETWEEN 01.04.2009 TO 31.12.2009, 11 [ELEVEN] CONSIGNMENTS OF KNITTED ITA NO. 3484 /DEL /201 4 RAJIV GULATI 9 FLOCKED FABRICS / PU COATED FABRICS / NON TEXTURISED POLYESTER LINING FABRICS PA COATED POLYESTER FABRICS FROM CHINA, THROUGH ICD, MULUND, MUMBAI OF AN IMPORTER MESSRS. STARLIGHT OVERSEAS (PROPRIETOR: SHRI SACHIN MALIK] HAVING OFFICES AT (A) 2D/49, NAVRANG PANCHAYAT GURUDWARA, NIT, FARIDABAD, HARYANA - 121001 AND (B) 4/14, FIRST FLOOR, ROOP NAGAR, DELHI - 110 007. 5. IT IS ALLEGED BY THE CUSTOMS DEPART MENT THAT THE SAID IMPORTER 'MESSRS. STARLIGHT OVERSEAS' HAS UNDERVALUED SUCH IMPORTED GOODS FROM CHINA. INTELLIGENCE WAS GATHERED BY MUMBAI ZONAL UNIT OF DIRECTORATE OF REVENUE INTELLIGENCE [HEREINAFTER REFERRED TO AS 'THE SAID DRI'], CUSTOMS THAT BY SUCH MISDECLARATION, SAID 'MESSRS. STARLIGHT OVERSEAS' HAS 'EVADED PAYMENT OF CUSTOM DUTY'. IN CONSEQUENCE OF SUCH INFORMATION, THE DRI HAVE CARRIED OUT SEARCH AT PLACE OF BUSINESS AND RESIDENCE OF SAID 'MESSRS. STARLIGHT OVERSEAS' AS WELL AS PLACE OF LICENSED CHA 'MESSRS. AKNSHA LOGISTICS' OF DELHI [WHO CLEARED 52 CONSIGNMENTS OF KNITTED FLOCKED FABRICS / PU COATED FABRICS / NON TEXTURISED POLYESTER LINING FABRICS PA COATED POLYESTER FABRICS IMPORTED FROM CHINA BY THE SAID IMPORTER 'MESSRS. STARLIGHT OVERSEAS' THROUGH ICD, BALLABHGARH] AND PLACE OF LICENSED CHA 'MESSRS. SKYLINE CARGO AGENTS PRIVATE LIMITED' OF MUMBAI INCLUDING MY PLACE OF RESIDENCE AT 701/702, 'B', EXPRESS APARTMENT, YARI ROAD, VERSOVA, MUMBAI - 400 061 ON 03.02.2010. ITA NO. 3484 /DEL /201 4 RAJIV GULATI 10 6. IN THE SEARCH PROCEED INGS ON 03.02.2010 AT MY RESIDENCE, DRI OFFICIALS SEIZED INDIAN CURRENCY OF RS.L,72,67,000/= OF MY PROPRIETARY BUSINESS BEING COMMISSION ON PURCHASE / SALE OF IMMOVABLE PROPERTIES UNDER BELIEF THAT SAID SUM WAS SALE PROCEEDS OF THE UNDERVALUED GOODS IMPORT ED BY THE SAID IMPORTER 'MESSRS. STARLIGHT OVERSEAS'. EVEN THOUGH I EXPLAINED THEM THAT THE SAID SUM OF RS.L,72,67,000/= CONSIST OF RS. 42,67,000/= BELONGS TO ME OUT OF NET PROFIT OF RS.48,87 , 000/= DISCLOSED FROM MY PROPRIETARY BUSINESS BEING COMMISSI ON ON PURCHASE / SALE OF IMMOVABLE PROPERTIES EARNED DURING THE RELEVANT ACCOUNTING YEAR AND RS.L,30,00,000/= BELONGS TO SHRI TAJENDER KAKKAR RESIDING AT D - 7/7176, SECTOR 'D', VASANT KUNJ, NEW DELHI - 110070 - BEING 'ADVANCE RECEIVED AGAINST AGREEMENT TO S ALE DATED 28.12.2009' OF PLOTS OF LAND AS PER AGREEMENT TO SELL DATED 28.12.2009. HOWEVER, SAID SEARCH PARTY DISBELIEVING THE FACTS AS NARRATED BY ME AND HAD SEIZED IMPUGNED SUM OF RS.L,72,67,000/= FROM MY RESIDENCE. 7. AFTER THOROUGH INVESTIGATION BY T HE SAID MUMBAI ZONAL UNIT OF DIRECTORATE OF REVENUE INTELLIGENCE [HEREINAFTER REFERRED TO AS 'THE SAID DR I ], THEY WERE ITA NO. 3484 /DEL /201 4 RAJIV GULATI 11 SATISFIED AND CONVINCED THAT I AM INNOCENT AND THEY ADJUDICATED THAT 'NO EVIDENCE COULD BE GATHERED DURING INVESTIGATION THAT THE RS,1 . 72 CRORES THAT HAD BEEN SEIZED FROM THE RESIDENCE OF SHRI RAJIV GULATI (CHIEF EXECUTIVE OF M/S. SKYLINE CARGO AGENTS (P) LIMITED, THE CHA FIRM), AT 701 - 702, B, EXPRESS APARTMENT, YARI ROAD, VERSOVA, MUMBAI - 400061 UNDER THE REASONABLE BELIEF THAT THEY RE PRESENTED THE SALE PROCEEDS OF SMUGGLED GOODS, WERE ACTUALLY SO. THIS AMOUNT WAS THEREFORE HANDED OVER TO THE INCOME TAX AUTHORITY ON 02.08.2010 [ASSTT DIRECTOR OF INCOME TAX (INVESTIGATION), UNIT IV (1), ARA CENTRE, 2 ND FLOOR, E - 2, JHANDEWALAN EXTENSION, NEW DELHI - 110 055] UNDER INTIMATION TO SHRI RAJIV GULATI FOR PROCEEDING UNDER THE INCOME TAX ACT' 8. WHILE PROCESSIN G MY RETURN OF INCOME FILED U/S 153A ON 14.10.2011, LEARNED ASSESSING OFFICER HAS ERRE D IN ADDING IMPUGNED SUM OF RS. 1,30,00,000/= U/S.69A IN MY H ANDS ON 'SUBSTANTIVE BASIS' VIDE HIS ASSESSMENT ORDER U/S.1 53A R.W.S 143 (3) DATED 28.03.2013. 8.1. AN APPEAL U/S.246A WAS FILED BY ME AGAINST IMPUGNED ASSESSMENT ORDER WITH THE COMMI SSIONER OF INCOME TAX (APPEALS) - XXIV, NEW DELHI WAS DISMI SSED VID E APPEAL ORDER NO.101/13 - 14 DATED 25.03.2014. 8.2. AGAINST IMPUGNED APPEAL ORDER / ASSESSMENT ORDER AN APPEAL U/S.253 WAS FILED BY ME BEFORE THIS HON'BLE TRIBUNAL REGISTERED AS I.T.A. NO. 3484 / DEL /2014. ITA NO. 3484 /DEL /201 4 RAJIV GULATI 12 9. WHILE ASSESSING ABOVE SAID SHRI TAJENDER KAK KAR UNDER PA NO.ABMPK - 6252 - B, HIS ASSESSING OFFICER, ITO, WARD 24(4), NEW DELHI , HAS ADDED THE SAID SUM OF RS.1,30,00,000/= U/S 69A IN HIS HANDS ON 'PROTECTIVE BASIS'. - COPY OF IMPUGNED ASSESSMENT ORDER DATED 26.03.2013 IS ATTACHED HEREWITH AS EXHIBIT A . 9.1. SAID SHRI TAJENDER KAKKAR FILED AN APPEAL U/S.246A AGAINST IMPUGNED ASSESSMENT ORDER DATED 26.03.2013 WITH THE COMMI SSIONER OF INCOME TAX (APPEALS) - 34, NEW DELHI WAS DI SMISSED VIDE APPEAL ORDER NO.19/160/13 - 14 DATED 27.02.2017. - COPY OF THE SAID A PPEAL ORDER DATED 27.02.2017 IS ATTACHED HEREWITH AS EXHIBIT 'B'. 9.2. A GAINST IMPUGNED APPEAL ORDER / ASSESSME NT ORDER AN APPEAL U/S 253 WAS FILED BY THE SAID SHRI TAJENDER KAKKAR BEFORE THIS HON'BLE TRIBUNAL REGISTERED AS I.T.A. NO. 2748/DEL/ 2017. 10. ON THE FACTS, [A] DUE TO SEIZURE OF IMPUGNED SUM OF RS.L,72,67,000/= SINCE 03.02.2010 BY THE DRI AND REQUISITIONED ON 02.08.2010 BY THE INCOME TAX DEPARTMENT U/S 132 - A, I COULD NOT MAKE AGREED PAYMENT OF RS.L,83,75,000/= TO SHRI RISHI PRAKASH OF ROHTAK, ( HARYANA) IN TERMS OF AN AGREEMENT DATED 28.12.2009 FOR PURCHASE OF AGRICULTURAL PLOTS OF LAND AND SAID AGREEMENT IS TERMINATED BY THE LAPSE OF TIME BY THE SAID SHRI RISHI PRAKASH OF ROHTAK, [HARYANA); [B] DUE TO SEIZURE O F IMPUGNED SUM OF RS.L,72,67,000 /= SINCE 03.02.2010 BY THE DRI AND ITA NO. 3484 /DEL /201 4 RAJIV GULATI 13 REQUISITIONED ON 02.08.2010 BY THE INCOME TAX DEPARTMENT U/S 132 - A, I CANNOT FULFILL TERMS OF AGREEMENT TO SALE DATED 28.12.2009 OF ABOVE SAID AGRICULTURAL PLOTS OF LAND TO SHRI TAJ ENDER KAKKAR OF NEW DELHI - 110 070; [C] I HAVE BEEN ACQUITTED / EXONERATED BY THE DRI FROM ALLEGED CHARGE THAT SAID SUM OF RS.L,72,67,000/= REPRESENT THE SALE PROCEEDS OF SMUGGLED GOODS BY IMPORTER MESSRS. STARLIGHT OVERSEAS (PROPRIETOR : SHRI SACHIN MALIK), AND ACCORDINGLY, INSTEAD OF REFUNDING THE SAID SUM OF RS.L,72,67,000/= TO ME, SAID DRI HANDED OVER THE SAID SUM OF RS.L,72,67,000/= ON 02.08.2010 TO THE INCOME TAX DEPARTMENT U/S 132 - A AND SAID SUM OF RS.L,72,67,000/= ARE NOT RELEASED TO ME TILL DATE; [D] SINCE MORE THAN 7 YEARS SAID SUM OF R S. L,72,67,000/= LYING WITH THE DEPARTMENT AS THEY ARE NOT SURE IN WHOSE HAND IT IS TO BE TAXED AND ACCORDINGLY, I HAVE BEEN ASSESSED ON 'SUBSTANTIVE BASIS' VIDE ASSESSMENT ORDER U/S 153A R.W. S. 143 (3) DATED 28.03.2013 AND ALSO SAID SHRI TAJENDER KAKKAR HA VE BEEN ASSED ON 'PROTECTIVE BASIS ' VIDE ASSESSMENT ORDER U/S.143 (3) DATED 26.03.2013. APPEALS U/S 246A ALSO DISMISSED BY THE RESPECTIVE CIT (A)S AND APPEALS U/S. 253 ARE PENDING BEFORE THE HON'BLE TRIBUNAL; [E] AS IMPUGNED SUM OF RS.L,30,00,000/= DEPOSITE D BY THE SAID SHRI TAJENDER KAKKAR IN TERMS OF AGREE MENT TO SALE DATED 28.12.2009, I AM NOT ABLE TO REFUND HIM DUE TO EXORBITANT DELAYS ON THE PART OF THE DEPARTMENT TO RELEASE THE SAID SUM OF RS.L,72,67,000/= TO ME, MY RELATIONSHIP WITH THE SAID SHRI TAJE NDER KAKKAR IS ITA NO. 3484 /DEL /201 4 RAJIV GULATI 14 STRAINED / TENSED / STRESSED AND IT WAS MUTUALLY AGREED BY AND BETWEEN US THAT THE MATTER MAY BE REFERRED TO AN INDEPENDENT AND IMPARTIAL SOLE ARBITRATOR / CONCILIATOR, SHRI SOURABH AGRAWAL, CHARTERED ACCOUNTANT, UNDER THE ARBITRATION AND CO NCILIATION ACT, 1996 FOR CONCILIATION OF DISPUTES ARISING OUT BETWEEN MYSELF AND SAID SHRI TAJENDER KAKKAR DUE TO ABOVE FACTS; [F] AFTER SEVERAL MEETINGS BETWEEN MYSELF / SHRI TAJENDER KAKKAR AND AFTER GOING THROUGH VARIOUS POINTS AT ISSUE AS SUPPORTED BY DOCUMENTARY EVIDENCES / ADDITIONAL INFORMATION, THE SAID SOLE ARBITRATOR / CONCILIATOR, WITH A VIEW TO ASSIST US TO REACH AN AMICABLE SETTLEMENT OF OUR INTER SE DISPUTE, IN AN INDEPENDENT AND IMPARTIAL MANNER, AS GUIDED BY PRINCIPLES OF OBJECTIVITY, FAIRN ESS AND JUSTICE, GIVING CONSIDERATION TO THE RIGHTS AND OBLIGATIONS OF EITHER OF US, THE USAGES AND THE CIRCUMSTANCES SURROUNDING THE DISPUTE MADE 'AD - INTERIM AWARD' FOR A SETTLEMENT OF 'DISPUTE WITH DEPARTMENT'. 11. 'AD - INTERIM AWARD' WITH SUPPORTING REA SONING BY THE SOLE ARBITRATOR / CONCILIATOR FOR A SETTLEMENT OF THE DISPUTE WITH THE INCOME TAX DEPARTMENT [A] AS COMMUNICATED AND LOOKING TO RETURNS OF INCOME FILED FOR ASSESSMENT YEAR: 2 010 - 11 U/S.139 ON 15.10.2010 AND IN RESPONSE TO NOTICE U/S. 153 A O N 14.10.2011 IT IS SEEN THAT THE SAID SHRI RAJIV GULATI HAS TRULY REPORTED ADVANCE OF RS.5,00,000/= PAID TO SHRI RI SHI PRAKASH OF ROHTAK, (HARYANA) FOR PURCHASE OF AGRICULTURAL PLOTS OF LAND AS PER AGREEMENT DATED 28.12.2009 AS WELL AS ADVANCE OF RS.L,30,0 0,000/= RECEIVED FROM SHRI TAJENDER KAKKAR FOR SALE OF ITA NO. 3484 /DEL /201 4 RAJIV GULATI 15 AGRICULTURAL PLOTS OF LAND AS PER AGREEMENT DATED 28.12.2009. TAXABLE INCOME DECLARED AT RS.51,67,220/= AND TAX PAYABLE THEREON WAS DULY PAID BEFORE FILING OF RETURN OF INCOME F ILED FOR ASSESSMENT YEAR : 2010 - 11 U/S.139 ON 15.10.2010. [B] SAID SHRI RAJIV GULATI HAD DULY COMPLIED WITH NOTICE U/S.153A AND HAD CO - OPERATED WITH THE ASSESSING OFFICER BY PROVIDING ALL INFORMATION / DETAILS WITH SUPPORTING EVIDENCES. SHRI TAJENDER KAKKAR HAD IN SURVEY PROCEED INGS UNCONDITIONALLY AFFIRMED AND CONFIRMED THAT THE SAID SUM OF RS.L,30,00,000/= 'BELONGS TO HIM' AND WAS KEPT WITH SHRI RAJIV GULATI FOR PASSING ON TO THE OWNER OF A PLOTS OF LAND WHICH WAS AGREED TO BE PURCHASED BY THE 'SAID REAL OWNER' OF THE SAID SUM OF RS.L,30 , 00,000/=. IT IS PERTINENT TO NOTE THAT SAID SHRI TAJENDER KAKKAR HAS DECLARED ADDITIONAL INCOME OF RS,L,40,00,000/= FOR ASSESSMENT YEAR : 2010 - 11 AND HAS BEEN ASSESSED BY HIS ASSESSING OFFICER OF TAXABLE INCOME AT RS.L,43,19,680/=. [C] HOWEVE R, IMPUGNED SUM OF RS.L,30,00,000/= HAS BEEN ASSESSED ON 'SUBSTANTIVE BASIS' IN THE HANDS OF SHRI RAJIV GULATI WHEREAS SHRI TAJENDER KAKK AR HAS BEEN ASSESSED FOR . THE SAID SUM OF R S.L,30,00,000/= ON 'PROTECTIVE BASIS'. [D] IN BOTH CASES, FIRST APPEALS WE RE DISMISSED BY RESPECTIVE CIT(A) S. [E] SAID SHRI RAJIV GULATI AND SHRI TAJENDER KAKKAR HAVE PREFERRED APPEALS U/S.253 VIDE I.T.A. NO. 3484 / DEL / 2014 AND I.T.A. NO. 2748 / DEL / 2017 RESPECTIVELY. ITA NO. 3484 /DEL /201 4 RAJIV GULATI 16 [F] IT IS PERTINENT TO NOTE THAT DRI HAS ACQUITTED / EX ONERATED SHRI RAJIV GULATI FROM ALLEGED CHARGE THAT SAID SUM OF RS.L,72,67,000/= REPRESENT THE SALE PROCEEDS OF SMUGGLED GOODS BY IMPORTER MESSRS. STARLIGHT OVERSEAS (PROPRIETOR: SHRI SACHIN MALIK]. [G] SINCE MORE THAN 7 YEARS SAID SUM OF RS.L,72,67,000/= LYING WITH THE DEPARTMENT AND IMPUGNED ADVANCE OF RS.L,30,00,000/= RECEIVED BY SHRI RAJIV GULATI FROM SHRI TAJENDER KAKKAR IS NOT REFUNDED TO HIM, THEIR RELATION IS HEAVILY STRAINED / TENSED / STRESSED FOR WANT OF FUND TO CARRY ON THEIR LEGITIMATE BUSINES SES. [H] WITH A VIEW TO ASSIST SAID SHRI RAJIV GULATI AND SHRI TAJENDER KAKKAR AND TO REACH AN AMICABLE SETTLEMENT OF INTER SE DISPUTE, IN ALL FAIRNESS AND JUSTICE, GIVING CONSIDERATION TO THE RIGHTS AND OBLIGATIONS OF INTER SE AND THE CIRCUMSTANCES SURRO UNDING THE DISPUTE I AM MAKING AD - INTERIM PROPOSALS FOR A SETTLEMENT OF THE DISPUTE TO 'AVOID PROLONG LITIGATION WITH THE DEPARTMENT' AND 'AMICABLY CO - OPERATE AND SETTLE WITH THE DEPARTMENT' BY OFFERING APPLICABLE TAX ON IMPUGNED SUM OF RS.L,30,00,000/= WH ICH DEPARTMENT IS ENTITLED TO RECOVER EITHER FROM SAID SHRI RAJIV GULATI OR FROM SHRI TA JENDER KAKKAR AND, THEREFORE, ------ [I] SHRI RAJIV GULATI IN HIS APPEAL U/S.253 FILED BEFORE THIS HON'BLE TRIBUNAL REGISTERED AS I.T.A. NO. 3484 / DEL / 2014 SHOULD 'A DMIT' AND 'OFFER IMPUGNED SUM OF RS.L,30,00,000/= TO BE ASSESSED IN HIS HANDS' ON 'SUBSTANTIVE BASIS' AS PER THE APPLICABLE PROVISIONS OF THE INCOME TAX ACT 1961 EVEN THOUGH HAS TRULY ITA NO. 3484 /DEL /201 4 RAJIV GULATI 17 REPORTED RESPECTIVE TRANSACTIONS IN HIS RETURN OF INCOME FILED U/S.139 A S WELL AS U/S 153A; [II] ON ACCEPTANCE OF ABOVE OFFER BY THE HON'BLE TRIBUNAL AND AFTER RECEIPT OF APPROPRIATE ORDER FROM THE HON'BLE TRIBUNAL SHRI TAJENDER KAKKAR SHOULD UNCONDITIONALLY WITHDRAW HIS APPEAL U/S.253 REGISTERED AS I.T.A. NO. 2748 / DEL / 20 17. [III] ON BEING DISPOSAL OF BOTH THE APPEALS, I.T.A. NO. 3484 / DEL / 2014 AND I.T.A. NO. 2748 / DEL / 2017, SHRI RAJIV GULATI SHOULD TAKE APPROPRIATE STEPS AND CLAIM REFUND AFTER DUE APPROPRIATION U/S.132B FROM HIS ASSESSING OFFICER. [IV] ON RECEIPT OF REFUND FROM THE DEPARTMENT, SHRI RAJIV GULATI SHOULD REPORT ME AS SOLE ARBITRATOR / CONCILIATOR AND AFTER DUE PROCESS OF DETAILS, FINAL 'AWARD'. 12. IN LIGHT OF ABOVE 'AD - INTERIM AWARD' WITH SUPPORTING REASONING BY THE SOLE ARBITRATOR / CONCILIATOR FOR A SETTLEMENT OF THE DISPUTE WITH THE INCOME TAX DEPARTMENT, I UNCONDITIONALLY OFFER / ADMIT, DECLARE AND AFFIRM THAT ----- 'IMPUGNED SUM OF RS. 1,30,00,000 / = MAY P LEASE BE ASSESSED IN MY HANDS' ON 'SUBSTANTIVE BASIS' AS PER THE APPLICABLE PROVISIONS OF TH E INCOME TAX ACT, 1961 AND APPROPRIATE DIRECTION MAY KINDLY BE GIVEN TO MY JURISDICTIONAL ASSESSING OFFICER TO APPROPRIATE LEGAL DEMAND OF TAX FROM RS.1,72,67,000/ - REQUISITIONED U/S 132A ON 02.08.2010 FROM DRI. ITA NO. 3484 /DEL /201 4 RAJIV GULATI 18 6 . FROM THE ABOVE AFFIDAVIT, IT IS CLEAR THAT THE ASSESSEE HIMSELF ADMITTED IN PARA 12 THAT THE IMPUGNED SUM OF RS.1,30,00 , 0 00 / - BE ASSESSED IN HIS HAND ON SUBSTANTIVE BASIS AS PER THE APPLICABLE PROVISION OF THE ACT . HOWEVER, A REQUEST HAS BEEN MADE TO APPROPRIATE THE OUTSTANDING DEMAND, OUT OF RS.1,72,67,000/ - REQUISITIONED U/S 132A OF THE ACT . 7 . IN VIEW OF THE ABOVE, WE REMAND THIS ISSUE TO THE FILE OF THE AO FOR TAKING THE APPROPRIATE ACTION AS PER LAW. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PR ON OUNCED IN THE COURT ON 14 /0 8 /2017 ) SD/ - SD/ - (BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 14 /08 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESP ONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR