DCIT, New Delhi V. Shri Manoj Kumar, Delhi

ITA 42/DEL/2010

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1828 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-12-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 04-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Keywords: Loose papers; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : E : NEW DELHI BEFORE SHRI R.S. SYAL, AM & SHRI C.M. GARG, JM ITA NO.41/DEL/2010 ASSESSMENT YEAR : 2000-01 DCIT, CENTRAL CIRCLE-19, ROOM NO.319, ARA CENTRE, E-2, JHANDEWALAN EXTENSION, NEW DELHI. VS. SHRI ANKIT GUPTA, L/H, MANOJ KUMAR, 292, TAGORE PARK EXTN., MODEL TOWN-I, DELHI. PAN: AALPK9906J ITA NO.42/DEL/2010 ASSESSMENT YEAR : 2002-03 DCIT, CENTRAL CIRCLE-19, ROOM NO.319, ARA CENTRE, E-2, JHANDEWALAN EXTENSION, NEW DELHI. MANOJ KUMAR, 292, TAGORE PARK EXTN., MODEL TOWN-I, DELHI. PAN: AALPK9906J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH KAUSHIK, ADVOCATE DEPARTMENT BY : SHRI ANKUR GARG, CIT, DR DATE OF HEARING : 09.12.2015 DATE OF PRONOUNCEMENT : 10.12.2015 ITA NOS.41 & 42/DEL/2010 2 ORDER PER R.S. SYAL, AM: THESE TWO APPEALS BY THE REVENUE RELATING TO TWO D IFFERENT BUT CONNECTED ASSESSEES RELATE TO THE ASSESSMENT YEARS 2000-01 AND 2002-03. SINCE BOTH THE APPEALS ARE BASED ON MUTATIS MUTANDIS SIMILAR FACTS AND IDENTICAL GROUNDS, WE ARE THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. FIRSTLY, WE ARE ESPOUSING THE FACTUAL MATRIX OF ITA NO.41/DEL/2010 FOR DISCUSSION. 3. ACTION U/S 132 OF THE INCOME-TAX ACT, 1961 (HERE INAFTER ALSO CALLED `THE ACT) WAS TAKEN ON B.M. GUPTA GROUP OF CASES O N 15.12.2004. DURING THE COURSE OF SUCH SEARCH PROCEEDINGS, VARIO US INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. SHRI RAM AVTAR SI NGHAL, ACCOUNTANT OF SHRI B.M. GUPTA, WHO HAD WRITTEN ALL THE SEIZED BOOKS OF ACCOUNT AND DOCUMENTS INCLUDING ANNEXURE A-50, A-5 AND A-79, DE POSED THAT COMMISSION WAS CHARGED BY SHRI B.M. GUPTA @ 10 PAIS E PER RS.100/- AND THE NAMES OF THE PARTIES APPEARING ON THE LEFT SIDE OF THE LEDGERS ITA NOS.41 & 42/DEL/2010 3 WERE THE PERSONS WHO ADVANCED CASH LOANS AND EARNED INTEREST INCOME THEREON AS SHOWN AGAINST THEIR NAMES. THE AO NOTIC ED THAT SUCH ENTRIES INDICATING CASH ADVANCES MADE BY THE ASSESSEE IN TH ESE LOOSE PAPERS/DOCUMENTS STOOD AT RS.1.63 CRORE. APART FROM MAKING ADDITION FOR THIS AMOUNT, THE AO ALSO ADDED A FURTHER SUM OF RS.1,52,711/- AS UNACCOUNTED INTEREST INCOME ON THE ABOVE AMOUNT. T HE LD. CIT(A), AFTER GOING THROUGH THE SATISFACTION NOTE OF THE AO , OBSERVED THAT HE NOWHERE STATED THAT ANY BOOKS OF ACCOUNT OR DOCUMEN TS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED FROM THE PREMISES OF SHRI B.M. GUPTA OR HIS ACCOUNTANT SHRI RAM AVTAR SINGHAL. HE ALSO PER USED THE DOCUMENTS SEIZED FROM THE PREMISES OF THESE PERSONS WHICH CON TAINED DETAILS REGARDING MONEY OBTAINED FROM VARIOUS PERSONS BY SH RI B.M. GUPTA, WHICH WAS, IN TURN, GIVEN AS LOAN TO OTHER PERSONS AND THE DETAILS OF INTEREST INCOME WAS THERE. THE LD. FIRST APPELLATE AUTHORITY CAME TO HOLD THAT THE INVOCATION OF SECTION 153C UNDER SUCH CIRC UMSTANCES WAS NOT APPROPRIATE. HE, THEREFORE, ANNULLED THE ASSESSMEN T. THE REVENUE IS AGGRIEVED AGAINST SUCH ANNULMENT. ITA NOS.41 & 42/DEL/2010 4 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, AT THE OUTSET IT IS NOTICED THA T SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN THE CASE O F OTHER FAMILY MEMBERS OF THE ASSESSEE IN WHICH ALIKE ADDITIONS WE RE MADE IN THE BACKDROP OF SIMILAR SATISFACTIONS RECORDED ON THE B ASIS OF ENTRIES IN THE RECORDS OF SHRI B.M. GUPTA. THE TRIBUNAL, VIDE ITS ORDER DATED 10.6.2011 IN ITA NOS.37 TO 40/DEL/2010 IN THE CASE OF ANKIT GUPTA AND OTHERS, HAS HELD THAT ACTION U/S 153C CAN BE TAKEN IN RESPECT OF ANY PERSON OTHER THAN THE ONE MENTIONED IN SECTION 153A ONLY IF THE BOOKS OF ACCOUNT BELONGING TO SUCH OTHER PERSONS ARE SEIZED DURING THE COURSE OF SEARCH. SINCE THE ENTRIES IN THE NAME OF SUCH ASS ESSES, AS CONTAINED IN THE BOOKS OF SHRI B.M. GUPTA, WERE NOT THEIR BOOKS OF ACCOUNT, THE TRIBUNAL UPHELD THE VIEW TAKEN BY THE LD. FIRST APP ELLATE AUTHORITY IN QUASHING THE ASSESSMENTS. THE LD. DR, IN ALL FAIRN ESS, CONCEDED BEFORE US THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT APPEAL ARE SIMILAR TO THOSE ALREADY CONSIDERED AND DECIDED BY THE TRIBUNA L IN AFORE-QUOTED ORDER. RESPECTFULLY FOLLOWING THE PRECEDENT, WE APP ROVE THE ACTION TAKEN BY THE LD. CIT(A) IN ANNULLING THE ASSESSMENT. ITA NOS.41 & 42/DEL/2010 5 5. THE FACTS AND CIRCUMSTANCES OF THE SECOND APPEAL IN ITA NO.42/DEL/2010 ARE INDISPUTABLY SIMILAR TO THE FIRS T APPEAL ITA NO.41/DEL/2010 WHICH WE HAVE DEALT WITH HEREINABOVE . HERE ALSO, THE LD. DR CANDIDLY ADMITTED THE SIMILARITY BETWEEN THE FACTS AND CIRCUMSTANCES OF THIS CASE VIS--VIS THOSE ALREADY CONSIDERED AND DECIDED BY THE TRIBUNAL. WE, THEREFORE, COUNTENANCE THE VI EW TAKEN BY THE LD. CIT(A) ON QUASHING THE ASSESSMENT ON THIS LEGAL ISS UE. 6. IN THE RESULT, BOTH THE APPEALS STAND DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 10.12.201 5. SD/- SD/- [C.M. GARG] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED,10 TH DECEMBER, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.