ITO, New Delhi V. Shri Abhay Kumar Mishra, New Delhi

ITA 38/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7236 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Unexplained investment
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 38/DEL/2013 38/DEL/2013 38/DEL/2013 38/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2008 2008 2008 2008 - -- - 09 0909 09 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(2), 46(2), 46(2), 46(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI ABHAY SHRI ABHAY SHRI ABHAY SHRI ABHAY KUMAR MISHRA, KUMAR MISHRA, KUMAR MISHRA, KUMAR MISHRA, R RR R- -- -2 22 2- -- -C CC C- -- -3/189, 3/189, 3/189, 3/189, GURUDWARA ROAD, GURUDWARA ROAD, GURUDWARA ROAD, GURUDWARA ROAD, MAHAVIR ENCLAVE MAHAVIR ENCLAVE MAHAVIR ENCLAVE MAHAVIR ENCLAVE- -- -1, 1,1, 1, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 045. 110 045. 110 045. 110 045. PAN : AMCPM8387L. PAN : AMCPM8387L. PAN : AMCPM8387L. PAN : AMCPM8387L. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. JAIN, DR. RESPONDENT BY : SHRI ASHISH BANSAL, ADVOCATE. DATE OF HEARING : 17.08.2016 17.08.2016 17.08.2016 17.08.2016 DATE OF PRONOUNCEMENT : 09.09.2016 09.09.2016 09.09.2016 09.09.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXX, N EW DELHI DATED 23 RD OCTOBER, 2012. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN : (I) DELETING THE ADDITION OF RS.1,81,11,875/- AS RI GHTLY MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT S MADE IN THE IMMOVABLE PROPERTY. (II) DELETING THE ADDITION OF RS.1,81,11,875/- ON R ELYING UPON THE EXPLANATION OF THE ASSESSEE THAT THE SAID INVESTMENT MADE BY THE COMPANY M/S HIRA REALTORS PVT.LTD. ITA-38/DEL/2013 2 THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 3. THE FACTS OF THE CASE ARE THAT AS PER INFORMATIO N COLLECTED BY THE REVENUE, THE ASSESSEE HAS PURCHASED THE IMMOVABLE P ROPERTY AMOUNTING TO `1,81,11,875/- DURING THE ACCOUNTING Y EAR RELEVANT TO THE ASSESSMENT YEAR 2008-09. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESS EE TO EXPLAIN THE SOURCE OF SUCH INVESTMENT, IN RESPONSE TO WHICH, TH E ASSESSEE INFORMED THAT ALL THE ABOVE PROPERTIES WERE PURCHAS ED BY M/S HIRA REALTORS PVT.LTD. AND THE ASSESSEE SIGNED THE SALE DEED ONLY IN HIS CAPACITY AS DIRECTOR OF THE SAID COMPANY. THEREAFT ER, THE ASSESSING OFFICER CALLED FOR THE INFORMATION U/S 133(6) FROM M/S HIRA REALTORS PVT.LTD., IN RESPONSE TO WHICH, M/S HIRA REALTORS P VT.LTD. DENIED TO HAVE PURCHASED ANY SUCH PROPERTY. THEREFORE, THE ASSESS ING OFFICER MADE THE ADDITION OF `1,81,11,875/- IN THE HANDS OF THE ASSESSEE. ON APPEAL, LEARNED CIT(A) EXAMINED THE SALE DEED AND FOUND THA T THE SALE DEED WAS IN THE NAME OF M/S HIRA REALTORS PVT.LTD. AND A SSESSEE ACTED ONLY AS A DIRECTOR OF THE COMPANY. HE ALSO NOTED THAT T HERE IS DISPUTE BETWEEN THE ASSESSEE AND M/S HIRA REALTORS PVT.LTD. AND FIR IN THIS REGARD IS REGISTERED WITH DABRI POLICE STATION. CO NSIDERING THESE FACTS, LEARNED CIT(A) DELETED THE ADDITION BUT, AT THE SAM E TIME, HE DIRECTED THE ASSESSING OFFICER TO PASS ON THE INFORMATION TO THE ASSESSING OFFICER OF M/S HIRA REALTORS PVT.LTD. SO THAT APPRO PRIATE ACTION CAN BE TAKEN IN THE CASE OF THE COMPANY. THE REVENUE, AGG RIEVED WITH THE DELETION OF THE ADDITION, IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D HAVE PERUSED THE MATERIAL PLACED BEFORE US. AT THE TIME OF HEARING BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE HAS STATED THA T THERE WAS DISPUTE BETWEEN THE ASSESSEE AND M/S HIRA REALTORS PVT.LTD. AND NOT ONLY THE FIR WAS REGISTERED BUT OTHER CRIMINAL CASES WERE AL SO FILED BY THE ITA-38/DEL/2013 3 PARTIES AGAINST EACH OTHER. THAT FINALLY, A SETTLE MENT HAS BEEN ARRIVED AT BETWEEN M/S HIRA REALTORS PVT.LTD. AND THE ASSES SEE AND THE SETTLEMENT IS APPROVED BY HONBLE HIGH COURT OF DEL HI VIDE ORDER DATED 16 TH DECEMBER, 2013. A COPY OF THE ORDER IS PLACED BEF ORE US. THE LEARNED DR STATED THAT THIS DECISION OF HON'BLE JUR ISDICTIONAL HIGH COURT WAS NOT AVAILABLE EITHER TO THE ASSESSING OFFICER O R TO THE CIT(A) WHEN THE MATTER WAS DECIDED. THAT SINCE NOW THE PARTIES HAVE AGREED TO CERTAIN FACTS BEFORE HON'BLE JURISDICTIONAL HIGH CO URT, IT WOULD BE APPROPRIATE IF THE MATTER IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER AND HE CAN EXAMINE, IN THE LIGHT OF THE SETTLEMENT BETWEEN THE PARTIES, WHO IS THE REAL OWNER OF THE ASSETS PURCHASED DURIN G THE YEAR UNDER CONSIDERATION AND THEN FURTHER EXAMINE THE SOURCE O F SUCH INVESTMENT. LEARNED COUNSEL FOR THE ASSESSEE HAS NO OBJECTION T O THIS SUGGESTION OF THE LEARNED DR. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER. WE DIRECT THE ASSESSEE TO FURNISH THE COP Y OF DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OF THE SETTLEMENT TO THE ASSESSING OFFICER AND THEREAFTER, THE ASSESSING OFFICER IS DI RECTED TO FIRST EXAMINE WHO IS THE ACTUAL OWNER OF THE LAND PURCHASED DURIN G THE YEAR UNDER CONSIDERATION AND THEREAFTER TO EXAMINE THE SOURCE OF SUCH PURCHASE. NEEDLESS TO MENTION THAT HE WILL ALLOW ADEQUATE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEN PASS A SPEAKING ORDE R IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DEEM ED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 09.09.2016 . SD/- SD/- (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-38/DEL/2013 4 COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -46(2), NEW DELHI. 46(2), NEW DELHI. 46(2), NEW DELHI. 46(2), NEW DELHI. 2. RESPONDENT : SHRI ABHAY KUMAR MISHRA, R SHRI ABHAY KUMAR MISHRA, R SHRI ABHAY KUMAR MISHRA, R SHRI ABHAY KUMAR MISHRA, R- -- -2 22 2- -- -C CC C- -- -3/189, 3/189, 3/189, 3/189, GURUDWARA ROAD, MAHAVIR ENCLAVE GURUDWARA ROAD, MAHAVIR ENCLAVE GURUDWARA ROAD, MAHAVIR ENCLAVE GURUDWARA ROAD, MAHAVIR ENCLAVE- -- -1, 1,1, 1, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 045. 110 045. 110 045. 110 045. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR