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

ITA 3559/DEL/2013

• Counselvise Citation: 355920114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 08-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: SALIL KAPOOR ADVT
• Keywords: Search and seizure; Loose papers; Document seized; Source of fund; Documents seized
• Section: 153A; 132

Judgement Text

PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SH. G.C.GUPTA, V.P. AND SH. PRASHANT MAHAR ISHI, AM ITA NO. 3559/DEL/: ASSTT. YEA R: 2005-06 DCIT CENT, CIRCLE-17 NEW DELHI VS VINEET KASHYAP, 223, SUKHDEV VIHAR, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. REVENUE BY: SH. O.P.MEENA, CIT, DR ASSESSEE BY: SH. SALIL KAPOOR, ADVT. DATE OF HEARING : 08.09.2015 DATE OF PRONOUNCEMENT : 08.10.2015 ORDER PER PRASHANT MAHARISHI, AM: 1. THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-II, NEW DELHI DATED 08.03.2013 RAISING FOLLOWING EFFECTIVE GROUND OF APPEAL THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AS WELL AS ON FACTS IN THE CASE IN DELETING THE ADD ITION OF RS 72,00,000/- MADE ON ACCOUNT OF INVESTMENT MADE IN CASH FROM UNDISCLOSED SOURCES. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT WAS CONDUCTED ON 19 TH FEB, 2008 IN CASE OF M/S B.L.KASHAP AND SONS GROUP OF CASES. SEARCH WAS ALSO CONDUCTED AT THE RESIDENCE OF ONE SRI SUNIL KHEMKA ON 18 TH FEB, 2008 SIMULTANEOUSLY ALONG WITH B.L.KASHAP GROUP. FROM THE POSSESSION OF SRI K HEMKA TWO PAPERS BEING PAGE NO. 67-68 OF ANNEXURE A -9 WERE SEIZED C ONTAINING THE INVESTMENT MADE BY THE ASSESSEE IN CASH IN ONE PROJ ECT NAMELY AKME ITA NO. 3559/DEL/2013 VINEET KASHYAP 2 PROJECT LTD. IN THE CASE OF THE ASSESSEE NOTICE U/S 153A WAS ISSUED ON 30 TH DECEMBER, 2008 AND PURSUANT TO THAT RETURN OF INCOM E WAS FILED DECLARING INCOME OF RS. 62,84,720/-. BASED ON FINDINGS PERTA INING TO ASSESSMENT YEAR 2005-06 WHERE ASSESSEE WAS ALLEGED TO HAVE INVESTED RS. 17 CRORES FROM UNDISCLOSED SOURCES IN THAT PROJECT, YEAR WISE ADDI TIONS IN AY 2005-06 OF RS. 15.74 CRORE, RS 0.54 CRORES IN AY 2006-07 AND 0 .72 CRORES IN AY 2007-08 WAS MADE. AGAINST THE ADDITION OF RS 0.72 C RORE FOR THIS YEAR ASSESSEE PREFERRED APPEAL BEFORE CIT (A), WHO DELET ED THE ADDITION AND AGAINST SUCH DELETION NOW REVENUE IS IN APPEAL BEFO RE US. 3. BEFORE US LD. DR SUBMITTED THAT AS TOTAL DISCLOSURE OF RS. 17 CRORES HAS BEEN MADE BY ASSESSEE OUT OF WHICH 15.74 CRORES PER TAINING TO AY 2005-06 AND RS. 0.54 CRORES PERTAINS TO ASSESSMENT YEAR 200 6-07 AND HENCE THE BALANCE FIGURES OF 72 LAKHS PERTAINS TO AY 2007-08 AND THEREFORE BASED ON THIS DISCLOSURE ADDITION HAS BEEN MADE. HE FURTHER SUBMITTED THAT TRIBUNAL HAS SET ASIDE APPEALS FOR AY 2005-06 AND 2006-07 THEREFORE THIS APPEAL SHOULD ALSO BE SET ASIDE TO THE FILE OF AO. 4. LD. AR OF THE APPELLANT VEHEMENTLY OPPOSED THAT ADD ITION OF RS. 72 LAKHS MADE IN THE HANDS OF APPELLANT FOR AY 2007-08 STATI NG THAT THESE ARE WITHOUT ANY EVIDENCE. HE SUBMITTED COPIES OF PAGE N O 67-68 OF ANNEXURE A- 9 AND DEMONSTRATED THAT PAGE NO 67 RELATES TO TRANS ACTIONS UP TO 4/12/2004 WHERE AT THE BOTTOM IN SOURCES OF FUND RS 15.74 CRO RES ARE MENTIONED AGAINST NAME OF THE ASSESSEE AND THAT AMOUNT RELATE S TO AY 2005-06. FURTHER ON PAGE NO 68 WHERE AN AMOUNT OF RS. 16.28 CRORE IS MENTIONED WHICH CONTAINS THE TRANSACTIONS UP TO 30.6.2005 REL ATED TO AY 2006-07 AND THEREFORE IN AY 2006-07 ADDITION OF RS. 0.54 CRS HA S BEEN MADE. HE ALSO STATED THAT THERE IS NO AMOUNTS MENTIONED IN THOSE PAGES FOR PERIOD WHICH RELATES TO AY 2007-08 SUCH AS RS 0.72 CRORES AN D THEREFORE THE ADDITIONS IS NOT BASED ON ANY SEIZED MATERIAL. HE FURTHER STA TED THAT FOR ASSESSMENT YEAR 2008-09 SURRENDER OF RS. 17 CRORES HAS BEEN OW NED BY ASSESSEE AND DUE TAX HAS BEEN PAID, HOWEVER, IN AY 2005-06 TO 20 07-08 THE ADDITION OF RS. 17 CRORES HAS FURTHER BEEN MADE THEREFORE, HE S TATED THAT IT IS DOUBLE ITA NO. 3559/DEL/2013 VINEET KASHYAP 3 ADDITION AND FOR THIS HE RELIED UPON THE FINDING FO R THE AO WHICH ITSELF SPEAKS THAT 72 LAKHS IS THE BALANCING FIGURE WITH T HE TOTAL ADDITION OF RS. 17 CRORES. RESPONDING TO THE REQUEST OF LD. DR TO SET IT ASIDE TO THE FILE OF AO HE OBJECTED STATING THAT WHEN THE MATERIAL SEIZED D OES NOT BEAR TRANSACTION RELATED TO AY 2007-08 THERE IS NO REASON FOR SETTIN G IT ASIDE TO FILE OF AO. HE SUBMITTED THAT CIT (A) IN HIS ORDER HAS CATEGORI CALLY STATED SO. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AS WELL AS THE ORDERS OF LOWER AUTHORITIES. FIRSTLY ADDRESSING THE PLEA OF L D DR TO SET ASIDE THE APPEAL TO THE FILE OF AO, WE DO NOT FEEL THAT SAME IS REQUIRED AS THE FACTS RELATING TO THESE ADDITION SHOWS THAT THE WHOLE ADD ITION HAS BEEN MADE BY AO FOR THIS YEAR WITHOUT HAVING ANY EVIDENCE. FURTH ER OUR DISCUSSION IN SUBSEQUENT PARA WILL SHOW THAT NO FURTHER EXAMINATI ON OF FACTS IS REQUIRED. THEREFORE WE PROCEED TO DECIDE THE ISSUE ON MERIT. 6. SUCCINCTLY, THE FACTS ARE THAT DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHRI SUNIL KHEMKA ON 18/2/2008 PAGE NO 67 AND 68 WE RE FOUND WHICH ARE PART OF ANNEXURE A-9 WHERE IN SOME INVESTMENTS MADE BY THE ASSESSEE WERE FOUND TABULATED UP TO THE PERIOD 30 TH JUNE 2005. FACTS RELATING TO THESE TRANSACTION ARE DISCUSSED ELABORATELY BY AO IN ASSE SSMENT ORDER FOR AY 2005-06 WHERE IN CONCLUDING PARA IT IS MENTIONED AS UNDER :- IN VIEW OF AFORESAID DELIBERATIONS AND OBSERVATION S, I AM CONVINCED THAT THE ASSESSEE HAS MADE CASH INVESTMEN TS OF RS 15.74 CRORE UP TO 04/12/2004 RELEVANT FOR AY 2005-0 6 AND A FURTHER SUM OF RS 0.54 CRORES IN THE ASSESSMENT YEA R UP TO 30 TH JUNE 2005 RELEVANT TO AY 2006-07 AND BALANCE OF RS 0.72 CRORES THEREAFTER UP TO 31.3.2007 . SINCE NO EVIDENCE REGARDING THE DATE OR YEAR IN WHICH THE SAID BALANCE OF RS 0. 72 CRORES IS AVAILABLE EXCEPT THE CLINCHING EVIDENCE THAT IT WAS INVESTED BEFORE 31.3.2007, ALLOWING THE ASSESSEE BENEFIT OF DOUBT, THE SAID AMOUNT FOR S 0.72 CRORES IS CONSIDERED TO HAD BEEN INVESTED IN THE IMMEDIATELY FOLLOWING A Y I.E. 2007 -08. ACCORDINGLY THE FOLLOWING ADDITIONS ARE MADE IN RES PECTIVE YEARS AS INVESTMENTS FROM UNACCOUNTED SOURCES:- A Y 2005-06 RS 15.74 CRORES A Y 2006-07 * RS 0.54 CRORES A Y 2007-08 RS 0.72 CRORES TOTAL RS 17.00 CRORES (* WRONGLY MENTIONED BY AO AS AY 2005-06) ITA NO. 3559/DEL/2013 VINEET KASHYAP 4 BASED ON ABOVE OBSERVATIONS OF AO IT IS CLEAR THAT AO IS TRYING TO MATCH THE DISCLOSURE MADE BY ASSESSEE OF RS 17 CRORES ON ACCOUNT OF INVESTMENT MADE IN THIS PROJECT WHICH IS OWNED BY ASSESSEE IN AY 2008-09. CLEARLY AO HAS HELD IN ASSESSMENT ORDER FOR AY 2005-06 THAT FOR MAKING ADDITION OF RS 0.72 CRORE IN THIS YEAR THERE IS NO EVIDENCE AVAILABLE WITH THE REVENUE. NOW WE EXAMINE THE SEIZED PAPERS 67-68 OF ANNEXURE A-9 WHETHER THEY CONTAIN ANY EVIDENCE PERTAINING TO ADDITION MA DE IN AY 2007-08. PAGE NO 67 IS A STATEMENT SHOWING STATUS OF AKME PROJECT LIMITED AS ON 4 TH DECEMBER 2004 WHERE IN THE AMOUNT INVESTED BY ALL P ERSONS IN VARIOUS PROJECTS AS WELL AS ADVANCES AND OTHER ASSETS BIFUR CATING BETWEEN THE AMOUNTS INVESTED IN CASH AS WELL AS THROUGH CHEQUE. ON THAT PAGE TOTAL INVESTMENTS IS FOUND TO HAVE BEEN MADE OF RS. 30.30 CRORES OUT OF WHICH RS. 15.74 CRORES HAVE BEEN MADE IN CASH AND BALANCE OF RS 14.56 CRORES THROUGH CHEQUE. THE SOURCES OF THE FUND OF RS 15.74 CRORES IN CASH IS THROUGH MR V KASHYAP (ASSESSEE) MENTIONED AT SERIAL NO 4 IN SOURCES DETAILS. AS THE SEIZED PAPER SHOWS THE DETAILS OF SOURCES AND APPLICATION OF FUNDS AS AT 4/12/2004 THEREFORE THE INVESTMENTS MEN TIONED IN THAT PAGE IS ADDED BY AO IN AY 2005-06. SIMILARLY, PAGE NO 68 SH OWS CUMULATIVE INVESTMENT UP TO 30 TH JUNE 2005 OF RS. 92.47 CRORES OUT OF WHICH 18.33 CRORES HAVE BEEN MADE IN CASH AND BALANCE OF RS 74. 14 CRORES THROUGH CHEQUE. OUT OF THE SOURCE OF FUNDS OF RS 18.33 CROR ES IN CASH, RS. 16.28 IS MENTIONED AGAINST THE NAME OF MR V KASHYAP (ASSES SEE) AT SERIAL NO 4 OF THE SOURCES DETAILS. AS THE SEIZED PAPER SHOWS T HE DETAILS OF SOURCES AND APPLICATION OF FUNDS UP TO 30 TH JUNE 2005 THEREFORE THE INVESTMENTS MENTIONED IN THOSE PAGES OF RS 0.54 CRORE BEING IN CREMENTAL INVESTMENTS ( RS 16.28- 15.74 ) CRORE ARE ADDED BY AO IN AY 2006- 07. ON APPRECIATION OF LOOSE PAPERS MENTIONED BY AO THERE IS NO DATES M ENTIONED ON THESE PAPERS WHICH PERTAINS TO AY 2007-08. FURTHER THER E IS NO SUM MENTIONED OF RS 0.72 CRORES ON THOSE PAGES EXCEPT (0.72) CROR E WHICH IS ON PAGE NO 67 MENTIONED IN CHEQUE COLUMN. AS THIS TRANSACTION IS UNDISPUTEDLY REFERS ITA NO. 3559/DEL/2013 VINEET KASHYAP 5 TO THE CHEQUE TRANSACTIONS, IT CANNOT BE CONSIDERED FOR ADDITION, FURTHER THE TRANSACTIONS MENTIONED AT PAGE NO 67 PERTAINS TO T RANSACTION UP TO 4 TH DECEMBER 2004 RELATED TO AY 2005-06, THEREFORE AN Y AMOUNT MENTIONED IN PAGE NO 67 CANNOT BE RELATED TO AY 2007-08. HENC E IT IS CRYSTAL CLEAR THAT DETAILS OF TRANSACTIONS MENTIONED IN THOSE P AGES PERTAINS TO AY 2005- 06 AND 2006-07 ONLY AND NOT AT ALL TO AY 2007-08. W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT (A) WHO HAS HELD THAT SEIZED DOCUMENTS DOES NOT SUPPORT THE ADDITION OF RS 0.72 CRORE FOR AY 20 07-08 AND THEREFORE SAME IS RIGHTLY DELETED. WE CONFIRM THE ORDER OF CI T (A). 7. IN THE RESULT APPEAL OF REVENUE IS DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 08/10/201 5) SD/- SD/- (G.C.GUPTA) (PRASHANT MAHARISHI) VICE PRESIDENT ACCOUNTANT MEMBE R DATED: 08/10/2015 *B. RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO. 3559/DEL/2013 VINEET KASHYAP 6 DATE INITIAL 1. DRAFT DICTATED ON 07/09/2015 2. DRAFT PLACED BEFORE AUTHOR 08/09/2015 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.