Brijwasi Builders (P) Ltd, New Delhi V. ACIT, New Delhi

ITA 355/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2303 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Assessee Lawyers: M P RASTOGI SHRI SANJAY KALRA
• Keywords: Unexplained cash credit; Search and seizure; Question of law; Set aside
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.355/DEL./2017 (ASSESSMENT YEAR : 2009-10) M/S. BRIJWASI BUILDERS (P) LTD., VS. ACIT, E 9, PANCHSHEEL PARK, CENTRAL CIRCLE 30, NEW DELHI 110 017. NEW DELHI. (PAN : AADCB6676P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.P. RASTOGI, ADVOCATE SHRI SANJAY KALRA, ADVOCATE REVENUE BY : SHRI SATPAL GULATI, CIT DR DATE OF HEARING : 25.10.2021 DATE OF ORDER : 25.10.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, M/S. BRIJWASI BUILDERS (P) LTD. (HEREIN AFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 25.11.2016 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-31, NEW DELHI QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA T HAT :- ITA NO.355/DEL./2017 2 1. THAT THE ORDER PASSED BY LD. ERR (A)-31, (HEREI NAFTER REFERRED TO AS CIT (A)), NEW DELHI IS BAD IN 'LAW A ND CONTRARY TO FACTS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW,. THE LD. CIT (A) WAS NOT JUSTIFIED IN REFUSING TO ADMIT THE ADDITIONAL GROUND OF APPEAL RAISED DURING THE APPEL LATE PROCEEDINGS BY INCORRECTLY HOLDING THAT THE PLEA NO T TAKEN BEFORE THE ASSESSING OFFICER CANNOT BE TAKEN IN APP ELLATE PROCEEDINGS. 2.1 THAT THE ADDITIONAL GROUND RAISED BY THE APPELL ANT - 'THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. A.O. HAS ERRED IN MAKING ADDITIONS IN NON-A BATED ASSESSMENT COMPLETED U/S IS3A IN THE ABSENCE OF ANY INCRIMINATING MATERIAL'; CHALLENGED THE POWER OF TH E ASSESSING OFFICER TO MAKE ADDITIONS U/S 153A, IN A NON ABATE D ASSESSMENT, IN THE ABSENCE OF ANY INCRIMINATING MAT ERIAL. 2.2 THAT THE REMANDING OF ADDITIONAL GROUND TO THE ASSESSING OFFICER FOR COMMENTS AMOUNTED TO IMPLICIT ADMISSION OF ADDITIONAL GROUND AND THEREFORE THE LD . CIT (A) WAS NOT JUSTIFIED IN NOT ADJUDICATING THE ADDITIONA L GROUND OF APPEAL. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE A DDITION OF RS.1,45,00,000/- AS UNEXPLAINED CASH CREDITS IN RES PECT OF LOAN TAKEN FROM FOLLOWING PARTIES DURING THE ASSESSMENT YEAR UNDER APPEAL :- A. M/S. SAR LOGISTICS RS. 10,00,000 B. KUSHAL INFRA PROJECTS INDUSTRIES INDIAN LTD. RS. 1,15,00,000/- C. SRI BALAJI GARDENCITY DEVELOPERS (P) LTD.RS.20,0 0,000 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF SEARCH AN D SEIZURE ACTION CARRIED OUT U/S 132 OF THE INCOME-TAX ACT, 1961 (FO R SHORT THE ACT) ON 18.10.2011 AND 11.09.2013 AT THE BUSINESS PREMISES OF THE ASSESSEE AT E-9, PANCHSHEEL PARK, NEW DELHI AND ON THE BASIS OF SUBSEQUENT SEARCH ON THE ASSESSEE ALONG WITH SAL UJA GROUP OF CASES, NOTICE WAS ISSUED U/S 153A OF THE ACT ON 13. 08.2015 AND IN ITA NO.355/DEL./2017 3 RESPONSE THERETO, RETURN DECLARING LOSS OF RS.6,821 /- WAS FILED BY THE ASSESSEE. NECESSARY NOTICES WERE ISSUED VIDE Q UESTIONNAIRE DATED 13.10.2015, 20.01.2016 & 10.02.2016 AND ASSES SEE WAS CALLED UPON TO PROVE THE GENUINENESS OF ADVANCES/SH ARE APPLICATION MONEY/UNSECURED LOANS ENTERED IN THE BOOKS OF ACCOU NT AS HAVING BEEN RECEIVED DURING THE YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE HAS FAILED TO FURNISH ANY CONFIRMATION, SO URCE OF LOAN, IDENTITY AND CREDITWORTHINESS OF M/S SAR LOGISTICS, M/S. KUSHAL INFRA PROJECT INDUSTRIES INDIA LTD., M/S. KUSHAL IN FRA PROJECT INDUSTRIES INDIA LTD. & M/S. SRI BALAJI GARDENCITY DEVELOPERS PVT. LTD. QUA THE LOAN/ADVANCE TO THE TUNE OF RS.10 LAKH S, RS.1 CRORE, RS.15 LAKHS & RS.20 LAKHS RESPECTIVELY, AO MADE ADD ITION OF RS.1,45,00,000/- U/S 68 OF THE ACT AND THEREBY FRAM ED THE ASSESSMENT AT RS.1,44,93,180/- U/S 153A OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS CONFIRMED THE ADDITION BY DISMISSING THE APPEAL. FEELING AGGRIEVED BY THE ORDER PASSED BY T HE LD. CIT(A), THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ITA NO.355/DEL./2017 4 ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, ON THE BASIS OF SEARCH CONDUCTED O N 18.10.2011 AT THE BUSINESS PREMISES OF THE ASSESSEE , INITIALLY NO ACTION WAS TAKEN. IT IS ALSO NOT IN DISPUTE THAT A NOTHER SEARCH OPERATION WAS CARRIED OUT ON THE ASSESSEE ALONG WIT H SALUJA GROUP ON 11.09.2013 IN WHICH NO INCRIMINATING MATERIAL WA S FOUND/SEIZED. THEN AO ON THE BASIS OF FIRST SEARCH CONDUCTED ON 18.10.2011 INITIATED THE ENQUIRY AND MADE ADDITION OF RS.1,45,00,000/- ON THE GROUND THAT ASSESSEE HAS FA ILED TO PROVE ANY CONFIRMATION, SOURCE OF LOAN, IDENTITY AND CRED ITWORTHINESS OF HIS CREDITORS. 6. AT THE VERY OUTSET, LD. AR FOR THE ASSESSEE CONT ENDED THAT BEFORE LD. CIT (A), HE HAS RAISED ADDITIONAL GROUND CHALLENGING THE JURISDICTION OF THE AO INITIATING ENQUIRING ON THE BASIS OF SEARCH CONDUCTED ON 18.10.2011, WHICH WAS ARBITRARILY REJE CTED AND DREW OUR ATTENTION TOWARDS PARAS 4.5, 4.6 & 4.7 OF THE I MPUGNED ORDER PASSED BY THE LD. CIT (A). 7. FOR READY PERUSAL, OPERATIVE PART OF THE IMPUGNE D ORDER PASSED BY THE LD. CIT (A) REJECTING ADDITIONAL GROU ND RAISED BY THE ASSESSEE IS EXTRACTED AS UNDER :- ITA NO.355/DEL./2017 5 4.5 I HAVE CONSIDERED THE FINDINGS RECORDED BY THE LD. AO AS PER THE ASSESSMENT ORDER, THE ADDITIONAL GROUND RAI SED AND THE SUBMISSIONS OF THE APPELLANT THEREON THE REMAND REP ORT AND THE REJOINDER THERETO, THE POSITION OF THE LAW AND THE FACTS OF THE CASE ON RECORD. WHILE RAISING THE ADDITIONAL GR OUND, THE APPELLANT HAS RELIED UPON THE DECISIONS OF HON'BLE APEX COURT IN THE CASES OF NTPC LTD. (SUPRA) AND GOETZE (INDIA ) LTD (SUPRA) I HAVE CAREFULLY GONE THROUGH THESE DECISIO NS AND FIND THAT BOTH HAVE HELD THAT A QUESTION OF LAW CAN BE R AISED AT ANY POINT OF TIME HOWEVER, THE ISSUE RAISED BY THE APPE LLANT AS PER THE ADDITIONAL GROUND IS THAT THE ADDITION WAS WRON GLY MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. THIS NOT A QUESTION OF LAW BUT A FINDING OF FACT I.E. AS TO WHETHER ANY INCRIMINATING MATERIAL WAS FOUND OR NOT. HENCE, THE AFORESAID CAS E LAWS ARE NOT APPLICABLE TO THE CASE OF THE APPELLANT. THE ID . AO HAS REFERRED TO VARIOUS DOCUMENTS FOUND AND SEIZES FROM THE PREMISES OF THE APPELLANT WHILE MAKING THE ADDITION . THE NATURE OF THESE DOCUMENTS; AS TO WHETHER THEY ARE INCRIMINATING OR NOT, CANNOT BE ALLOWED TO BE RAISE D AT THIS STAGE, IF THIS WAS NOT DONE EARLIER BEFORE THE LD A O. RELIANCE IT THIS REGARD IS PLACED ON THE DECISION OF HON'BLE AP EX COURT IN THE CASE OF I.J. IYYAPAN AND ANR. VS. THE OHARMODAY AN COMPANY {1966 AIR 1017, 1963 SCR (1)85}. WHEREBY TH EIR LORDSHIPS HELD THAT A PARTY CANNOT CHANGE ITS STAND AND MAKE A NEW CASE AT APPELLATE STAGE OR RAISE AN ISSUE WHICH WAS NEVER RAISED EARLIER. THEIR LORDSHIPS IN THIS CASE HAVE OBSERVED AS UNDER: '13 NOW IT IS NOT OPEN TO A PARTY TO CHANGE HIS CA SE AT THE APPELLATE STAGE BECAUSE AT THE MOST THE CASE OF THE APPELLANT IN THE TRIAL COURT WAS WHAT WAS CONTAINED IN PARAGRAPH /I OF THE WRITTEN STATEMENT WHERE THE QUESTION OF ESTOPPEL WAS RAISED AND THE PLEA TAKEN WAS THAT THE RESPONDENT COMPANY WAS ESTOPPED FROM CLAIMING ANY RIGHT TO THE BUILDING AFTER ACCEPTING THE OFFER OF THE APPELLANT PURSUANT TO WHICH THE APPELL ANT HAD EXPENDED A LARGE AMOUNT OF MONEY THAT WAS NOT A PLEA OF LICENSE AT THAT STAGE IT IS NOT FOR US TO S AY WHAT THE EASE OF THE PARTIES WOULD HAVE BEEN IF THE CASE OF LICENSE HAD BEEN SPECIFICALLY RAISED BUT THE FACT R EMAINS THAT THE PLEA OF LICENSE WAS NOT RAISED IN THE TRIA L COURT NOR WAS IT ADJUDICATED UPON THERE. ' 4.6 FURTHER RELIANCE IS PLACED ON THE DECISION OF P UNJAB AND HARYANA HIGH COURT IN THE CASE OF PUNJAB FEED MILLS (228 ITR 386, 94 TAXMAN 405) WHEREIN IT WAS HELD THAT IF A M ATTER WAS NEVER CONTESTED ON A PARTICULAR ISSUE BEFORE THE LO WER AUTHORITY, NO GROUNDS COULD LEGITIMATELY BE RAISED BEFORE THE APPELLATE AUTHORITY. IT WAS HELD THAT THE APPROPRIA TE FORUM TO CLAIM HIGHER DEDUCTION WAS THE ASSESSING OFFICER ON LY. THE ITA NO.355/DEL./2017 6 APPELLATE AUTHORITY COULD GRANT RELIEF ONLY TO THE EXTENT IT WAS DECLINED UNJUSTIFIABLY BY THE LOWER AUTHORITY. FURT HER, IN THE CASE OF C.K. GOPINATH VS CIT (260 ITR 213) HON'BLE KERALA HIGH COURT HAS HELD THAT. WHEN THE ASSESSEE HAD NOT CHOSEN TO TAKE THE ALTERNATIVE CONTENTION BEFORE THE ASSESSIN G OFFICER, THE COMMISSIONER OF INCOME-TAX(APPEAL) AND THE TRIB UNAL WERE RIGHT IN HOLDING THAT THE QUESTION COULD NOT B E CONSIDERED AT THAT STAGE. THE ADDITION WAS THEREFORE, HELD JUS TIFIED 4.7 THE PLEA NOW TAKEN BY THE APPELLANT IS ALTOGETH ER NEW NOT EVEN ADVOCATED BEFORE THE AO AND EVEN IN THE ST ATEMENT OF FACTS FILED WITH THE APPEAL. HAVING FAILED TO PUT U P ITS CASE EARLIER, IN MY CONSIDERED VIEW, THE APPELLANT CANNO T BE ALLOWED TO MAKE OUT A NEW CASE IN APPEAL ENTIRELY DIFFERENT FROM WHAT WAS MADE OUT BEFORE THE AO BECAUSE INHERENTLY IN AP PEAR; IT IS THE FINDING OF THE AO WHICH NEEDS TO BE SHOWN AS NOT BEING CORRECT IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AND THE LEGAL POSITION AS BROUGHT BEFORE HIM (AO). THE LD. AR ARG UED THAT THE CIT(A) CAN ALLOW THE APPELLANT TO GO INTO ANY G ROUND OF APPEAL NOT SPECIFIED IN THE GROUNDS OF APPEAL, IF T HE APPELLATE AUTHORITY IS SATISFIED THAT THE OMISSION OF THAT GR OUND FROM THE FORM OF APPEAL WAS NEITHER WILLFUL NOR UNREASONABLE . IN THIS REGARD, HAVING CONSIDERED THE FACTS AND CIRCUMSTANC ES OF THE CASE, I AM OF THE OPINION THAT NO REASONABLENESS BE HIND NOT RAISING THIS ISSUE EARLIER, HAS BEEN SHOWN BY THE A PPELLANT AND THEREFORE, IT LACKS THE BONAFIDE. I, THEREFORE, HOL D THAT IN VIEW OF THE DECISIONS CITED SUPRA, THE APPELLANT CANNOT BE ALLOWED TO CHANGE THE NATURE OF THE CASE AT THIS STAGE. ACCORD INGLY, THE ADDITIONAL GROUND RAISED IS NOT ADMITTED. 8. BARE PERUSAL OF THE AFORESAID FINDINGS RETURNED BY THE LD. CIT(A) REJECTING THE ADDITIONAL GROUND SOUGHT TO BE RAISED BY THE ASSESSEE GOES TO PROVE THAT LD. CIT (A) HAS MISDIRE CTED HIMSELF BY RECORDING THAT, THE ISSUE RAISED BY THE ASSESSEE AS PER ADDITIONAL GROUND THAT ADDITION WAS WRONGLY MADE IN THE ABSENC E OF ANY INCRIMINATING MATERIAL IS NOT QUESTION OF LAW BUT F INDING OF A FACT. WE ARE OF THE CONSIDERED VIEW THAT INITIATING THE P ROCEEDINGS U/S 153A ON THE BASIS OF SEARCH AND SEIZURE CARRIED OUT U/S 132 OF THE ACT IS A LEGAL GROUND WHICH CAN BE RAISED AT ANY STAGE OF THE ITA NO.355/DEL./2017 7 PROCEEDINGS. SO, IN THESE CIRCUMSTANCES, TO IMPART THE COMPLETE JUSTICE, THE CASE IS REQUIRED TO BE REMITTED BACK T O LD. CIT (A) TO ALLOW AND DECIDE THE ADDITIONAL GROUND AS TO THE JU RISDICTION TO INITIATE THE PROCEEDINGS U/S 153A. LD. DR FOR THE REVENUE ALSO AGREED TO THE PROPOSITION MOOTED OUT BY THE BENCH. CONSEQUENTLY, PRESENT APPEAL IS REMITTED BACK TO LD.CIT (A) TO DE CIDE AFRESH AFTER ALLOWING/DECIDING THE ADDITIONAL GROUND CHALLENGING THE JURISDICTION OF THE AO BY THE ASSESSEE. CONSEQUENT LY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF OCTOBER, 2021 AFTER THE CONCLUSION OF THE VIRTUAL HEARING. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 25 TH DAY OF OCTOBER, 2021 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-31, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.