Bharath Kumar Nakka, Ghaziabad V. ACIT, Circle-69(1), New Delhi

ITA 4067/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7359 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 29-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: S KRISHNA DASAN; BHARAT KUMAR NAKKA
• Keywords: Salary income
• Section: 142(1); 133(6); 131; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4067/DEL/2018 ASSESSMENT YEAR: 2014-15 BHARATH KUMAR NAKKA, VS. ACIT, CIRCLE 69(1), FLAT NO. SF-4, SAI KUTIR NEW DELHI (BESIDES BSNL EXCHNAGE ON GT ROAD,) PLOT NO. 14,15,16, SHAHID NAGAR GHAZIABAD (PAN: ACOPN7964N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. S. KRISHNA DASAN, CA & SH . BHARAT KUMAR NAKKA, ASSESSEE REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 01.5.2018 OF THE LD. CIT(A)-21, NEW DELHI PERTAINI NG TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD CIT(A) ERRED BOTH IN LAW AND FACTS IN ACCEPTING THE ORDER BY LD AO , WITHOUT APPLYING HER MIND INTO THE FACT THAT 'ADMISSION SHOULD BE TAKEN IN TOTALITY AND NOT IN PART' WHICH IS A WELL KNOWN LAW AS PER PRINCIPALS O F ADMISSIONS AS EVIDENCE IN LAW. 2 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE ,THE LD CITA(A)-21 NOT PROPERLY APPLIED HER MIND IN MY APPLICATION AND DOCUMENTS SUBMITTED DURING APPLEAL PROCEEDINGS 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE ,THE LD CIT(A)- 21 WAS NOT JUSTIFIED IN APPROVING THE OR DER BY LD AO THAT 16.40 LAKH AS UNEXPLAINED INCOME . 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD CIT(A)- 21 WAS NOT JUSTIFIED IN APPROVING THE OR DER BY LD AO THAT CASH DEPOSIT OF 4.00 LAKH AS UNEXPLAI NED INCOME 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE ,THE LD CIT(A)- 21 WAS NOT APPLIED HER MIND IN CALCULATI NG THE CAPITAL/CAPITAL LOSS AND TAKEN A UNILATERAL DEC ISION 6. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE ,THE LD CIT(A)- 21 SHOULD HAVE APPLIED HER MIND AND LOGI C BEFORE ACCEPTING THE CONTENTION OF AO AND REJECTING MY CLAIM. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD TO ,ALTE R, AMEND, MODIFY, SUBSTITUTE, DELETE AND/ OR RESCIND ALL OR A NY OF THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARIN G ,IF NECESSARY SO ARISES. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH A ND SEIZURE OPERATION U/S. 132 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT ) WAS CARRIED OUT ON THE ASSESSEE AT TERMINAL 1D, IGI AIRPORT, NEW DELHI BY THE ADIT(INV.), AIU, NEW DELHI ON 4.8.2013. APPRAISAL REPORT FOR T HE SAME WAS RECEIVED IN THE OFFICE OF ITO, WARD 69(1), (ERSTWHILE WARD-4 5(1)) ON 21.10.2013. 3 AFTER ASCERTAINING THE CORRECT JURISDICTION AND AS PER THE RECOMMENDATION OF THE ADIT, THE CASE WAS TRANSFERRED TO CIRCLE 69( 1). ACCORDINGLY, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 4.12.2014. NOT ICE U/S. 142(1) OF THE ACT ALONGWITH QUESTIONNAIRE WERE ISSUED. IN RESPONS E TO THE NOTICES, THE AR OF THE ASSESSEE, ATTENDED THE PROCEEDINGS AND FI LED THE NECESSARY DETAILS. DURING THE YEAR UNDER CONSIDERATION, THE A SSESSEE WAS AN EMPLOYEE OF AMBEDKAR POLYTECHNIC UNDER GOVERNMENT O F NCT OF DELHI. THE ASSESSEE HAS FILED HIS RETURN OF INCOME ELECTRO NICALLY ON 28.6.2014 DECLARING INCOME OF RS. 4,80,900/-, AFTER AVAILING DEDUCTION UNDER CHAPTER VIA OF THE TUNE OF RS. 1,45,191/-. THE ASSE SSEE IN HIS COMPUTATION HAS SHOWN INCOME FROM SALARY, CAPITAL G AIN AND INCOME FROM OTHER SOURCES. AO OBSERVED THAT THE BUYERS ADDRES S FROM THE SALE DEED, PAN DATABASE AS WELL AS THE LATEST ITR WAS USED TO CONTACT THE BUYER. A NOTICE U/S. 133(6) OF THE ACT DATED 22.12.2016, WAS SENT TO ALL THE THREE ADDRESSES OF THE BUYER SHRI ANSAR. NO RESPONSE CAME FROM ANY OF THE ADDRESSES OF THE BUYER. FINALLY, A SUMMON U/S. 13 1 OF THE ACT WAS ISSUED FOR SH. ANSAR ASKING HIM TO APPEAR BEFORE T HE UNDERSIGNED PERSONALLY ON 15.3.2016 WITH THE RELEVANT DOCUMENTS , BUT NONE APPEARED NOR ANY OF THE DOCUMENT OR INFORMATION WAS FILED. T HEREAFTER, THE AO OBSERVED THAT THE EXPLANATION OFFERED BY THE ASSESS EE ABOUT THE SOURCE OF MONEY SEIZED FROM HIM IS NEITHER TENABLE NOR ACC EPTABLE. HENCE, HE HELD THAT AN AMOUNT OF RS. 16,40,000/- IS DEEMED TO BE THE INCOME OF THE ASSESSEE U/S. 69A OF THE I.T. ACT, 1961 FOR THE AY 2014-15 AND MADE THE ADDITION THEREOF. FURTHER, THE AO OBSERVED THAT ON PERUSAL OF THE ITS 4 STATEMENT (FORM 26AS) DOWNLOADED FROM THE SYSTEM, I T IS FOUND THAT THE ASSESSEE HAS MADE THE CASH DEPOSIT OF RS. 4,00,000/ - ON 4.7.2013 WITH SBI, MADHUBAN VIDE ACCOUNT NO. 30423197016. THE A O ASKED TO EXPLAIN THIS CASH CREDIT ALONGWITH EVIDENCES, BUT T HE ASSESSEE HAS NEITHER FILED ANY EXPLANATION NOR ANY SUPPORTING EV IDENCE REGARDING THE SOURCE OF THE CASH DEPOSITS OF RS. 4,00,000/-, HENC E, THE SAME AMOUNT WAS ADDED BACK TO THE INCOME OF THE ASSESSEE AND AC CORDINGLY, THE ASSESSEES INCOME WAS ASSESSED AT RS. 28,20,900/- A ND ALLOWED TO CARRY FORWARD CURRENT YEARS LONG TERM CAPITAL LOSS OF R S. 15,38,511/-. AGAINST THE ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 28.3.2018 HAS DISMISSED T HE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE IMPUGNED ORDER, ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT THE LD CIT(A) WRONGLY ACCEPTED THE ORDER OF AO, WI THOUT APPLYING HER MIND INTO THE FACT THAT 'ADMISSION SHOULD BE TAKEN IN TOTALITY AND NOT IN PART' WHICH IS A WELL KNOWN LAW AS PER PRINCIPALS O F ADMISSIONS AS EVIDENCE IN LAW. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) NOT PROPERLY APPLIED HER MIND IN MY APPLICATION AND DOCUMENTS SU BMITTED DURING APPEAL PROCEEDINGS. IT WAS THE FURTHER CONTENTION THAT LD. CIT(A) WAS NOT JUSTIFIED IN APPROVING THE ORDER BY LD AO THAT 16.40 LAKH AS UNEXPLAINED INCOME AND ALSO WAS NOT JUSTIFIED IN AP PROVING THE ORDER BY LD AO THAT CASH DEPOSIT OF 4.00 LAKH AS UNEXPLAINED INCOME. HE FURTHER STATED THAT LD CIT(A) WAS NOT APPLIED HER MIND IN C ALCULATING THE 5 CAPITAL/CAPITAL LOSS AND TAKEN A UNILATERAL DECISIO N. HENCE, HE REQUESTED THAT ADDITIONS IN DISPUTE MAY BE DELETED AND ALSO R EQUESTED TO REWORK THE CALCULATION OF CAPITAL LOSS, AS REQUESTED BY THE AS SESSEE. IN VIEW OF ABOVE, HE REQUESTED TO ALLOW THE APPEAL OF THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT HE HAS PASSED A WELL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDER. AS REGARDS ADDITION OF RS. 16.40 LA CS IS CONCERNED, I NOTE THAT ASSESSEE HAS CLAIMED THAT THE MONEY WAS RECEIV ED AGAINST THE SALE OF PROPERTY OF RS. 32 LAKHS OUT OF WHICH THE DEPART MENT HAS SEIZED RS. 24.70 LAKHS BUT AS THE REGISTERED SALE DEED OF THIS PROPERTY IS OF RS. 15.60 LAKHS, THE AO WAS RIGHT IN HOLDING THAT THE A MOUNT OF RS. 16.40 LAKHS IS UNACCOUNTED AS IT COULD NOT BE SUBSTANTIAT ED BY ANY DOCUMENT OF THE BUYER. FURTHER, THE AO HAS ALSO SUMMONED THE BU YER IN THIS RESPECT AND ASKED FOR CONFIRMATION DURING THE COURSE OF ASS ESSMENT PROCEEDINGS BUT THE BUYER DID NOT RESPONDS TO THIS, HENCE, THE EXPLANATION OF THE ASSESSEE THAT THE MONEY IS RECEIVED FROM THE BUYER REMAINED UNEXPLAINED, HENCE, ADDITION WAS RIGHTLY SUSTAINED BY THE LD. CIT(A). SIMILARLY, WITH REGARD TO ADDITION OF RS. 4 LACS ON ACCOUNT OF CASH DEPOSIT IS CONCERNED, I FIND THAT THE CASH DEPOSIT OF RS. 4 LACS IN THE BANK ACCOUNT OF THE ASSESSEE IS TRANSFERRED TO MADHUBAN BRANCH AND NOT A PART OF THE ADDITION MADE BY THE AO OF RS. 16.40 LACS, T HEREFORE, THE ADDITION 6 OF RS. 4 LACS MADE BY THE AO WAS RIGHTLY CONFIRMED AS THIS CASH DEPOSIT COULD NOT BE EXPLAINED BY THE ASSESSEE DURING THE C OURSE OF ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS. WITH REGARD TO REWORK THE CALCULATIONS OF CAPITAL LOSS IS CONCERNED, I NOTE T HAT THE RELEVANT PROVISIONS DOES NOT ALLOW SET OFF OF LONG TERM CAPI TAL LOSS AGAINST ANY OTHER HEAD OF INCOME, HENCE, THIS CLAIM OF THE ASSE SSEE WAS RIGHTLY REJECTED BY THE AUTHORITIES BELOW. IN VIEW OF ABOV E, I AM OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS RIGHTLY UPHELD THE ADDITION OF RS. 16,40,000/- AND CASH DEPOSITED OF RS. 4,00,000/- A S UN EXPLAINED INCOME RESPECTIVELY AND ALSO RIGHTLY REJECTED THE C LAIM OF ASSESSEE FOR SET OFF THE LONG TERM CAPITAL LOSS AND DISMISS THE APPE AL OF THE ASSESSEE, WHICH DOES NOT NEED ANY INTERFERENCE ON MY PART, H ENCE, I UPHOLD THE ACTION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AN D REJECT THE GROUNDS RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 15-01-2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:15/01/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 7