Shri Ved Prakash Agarwal, New Delhi V. ACIT, New Delhi

ITA 4245/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6561 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 02-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Retraction; Documents seized
• Section: 201; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. N. K. CHOUDHARY, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 4245/DEL/2016 : ASSTT. YEAR : 201 3-14 VED PRAKASH AGARWAL, 36/78, WEST PUNJABI BAGH, NEW DELHI VS ACIT, CENTRAL CIRCLE-30, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAJPA5292M ASSESSEE BY : SH. AKSHAT JAIN, CA REVENUE BY : SH. ABHISHEK KUMAR, SR. DR DATE OF HEARING: 06.02.2020 DATE OF PRONOUNCEMENT: 07.02.2020 ORDER PER N. K. CHOUDHARY, JUDICIAL MEMBER: THIS PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 16.05.2016 OF LD. CIT (A)-30, N EW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE APPELLANTS CASE, THE LD. CIT(A) ERRED BOTH ON FACT S AND IN LAW IN CONFIRMING THE ADDITION OF RS 50 LACS BEING UNDISCLOSED INVESTMENTS U/S 69 OF THE ACT ON ACCOUNT OF ALLEGED CASH LOAN GIVEN A) BY HOLDING CONTENT OF DUMB DOCUMENTS I.E. PAGE 93, 94 AND 95 SEIZED FROM THE BUSINESS PREMISES OF M/S PRAKASH INDUSTRIES LIMITED DURING SEARCH ACTION AS TRUE. B) WITHOUT CONSIDERING THE FACT THAT CONTENT OF TH E AFFIDAVIT HAVE BEEN CONFIRMED BY LD. AO THROUGH CROSS EXAMINATION OF THE DEPONENTS AND BY RECORDING THEIR STATEMENT DURING REMAND PROCEEDINGS. ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 2 C) BY HOLDING THAT RETRACTION OF STATEMENT BY APPELLANT, FILING OF AFFIDAVITS AND DENYING OF RECE IPT OF LOAN BY THE PARTIES (DEPONENTS) IN THEIR STATEME NT IS JUST AFTER THOUGHT WITHOUT BRINGING ANY MATERIAL IN SUPPORT OF HIS CONTENTION. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION WAS CONDUCTED ON 30.10.2012 AT THE PREMISES OF PRAKASH INDUSTRIES AND THE ASSESSEE. 4. DURING THE SEARCH AT CORPORATE OFFICE OF PRAKASH INDUSTRIES LTD., THREE LOOSE PAGES 93, 94 AND 95 WERE FOUND AND SE IZED AND ANNEXURISED AS A-12. THESE LOOSE PAPER WAS CONFRONT ED TO VED PRAKASH AGARWAL, CHAIRMAN PRAKASH INDUSTRIES LTD. DURING HI S STATEMENT RECORDED U/S 132(4) ON 31.10.2012, HE STATED THAT PAGE NO. 9 3 AND 95 ARE REPEATS AND PAGE 95 IS RECEIPT GIVEN BY C.B. BANSAL, ADVOCA TE FOR CASH LOAN OF RS.15 LACS GIVEN TO HIM SOMETIMES IN OCTOBER, 2012 AND PAGE NO. 94 IS RECEIPT GIVEN BY MAHAMANTRA DAS FOR CASH LOAN OF RS .20 LACS GIVEN TO HIM SOMETIMES IN APRIL, 2012 OUT OF WHICH RS.3.6 LACS H AS BEEN REPAID. 5. THE ASSESSING OFFICER MADE AN ADDITION U/S 69 OF THE INCOME TAX ACT, 1961 OF RS.50,00,000/- ON THE BASIS OF SAID LO SE PAPERS SEIZED AND STATEMENT RECORDED OF THE ASSESSEE DURING THE COURS E OF SEARCH. THE LD. CIT (A) CONFIRMED THE ADDITION. 6. DURING THE ARGUMENTS BEFORE US, THE LD. AR RELIE D ON THE SUBMISSIONS TAKEN BEFORE THE LD. CIT (A) AND ON THE PAPER BOOK CONTAINING PAGES 1 TO 84. THE LD. DR STRONGLY SUPPO RTED THE ORDER OF THE LD. CIT (A) ESPECIALLY SUB-PARA NO. XII OF PARA 4.7 . 7. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 3 8. STATEMENT ON OATH U/S 132(4) OF THE INCOME TAX A CT, 1961 HAS BEEN RECORDED BY THE ADIT(INV.), UNIT-6(3), DURING THE PROCEEDINGS OF SEARCH WHEREIN THE ASSESSEE WHILE ANSWERING THE DET AILS REGARDING THE SEIZED PAGES NUMBERED 93, 94 AND 95, HAS SUBMITTED AS UNDER: QUESTION NO. 38: I AM SHOWING YOU PAGE NO. 93, 94 AND 95 OF ANNEXURE A- 12 SEIZED FROM YOU PREMISES AT BRIJWASAN. PLEASE EX PLAIN THE CONTENTS OF THESE PAGES. ANSWER: PAGE NO. 93 AND 95 ARE REPEATS. PAGE NO. 95 IS A RECEIPT GIVEN BY SH. C.B. BANSAL, ADVOCATE R/O LAXMI NAGAR AREA FOR THE CASH LOAN (LOAN GIVEN IN CASH) GIVEN BY ME TO HIM. THIS LOAN OF RS. 15 LACS WAS GIVEN TO HIM SOMETIMES IN THE MONTH OF OCTOBER 2012. OUT OF MY C ASH BALANCE PAGE N. 94 IS A RECEIPT GIVEN BY MAHAMANTRA DAS OF ISKCON T EMPLE FOR THE LOAN GIVEN IN CASH BY ME TO HIM AMOUNTING TO RS.20 LACS. THIS LOAN WAS GIVEN BY ME IN THE MONTH OF APRIL, 2012 AND HE HAS REPAID IN CASH AS AMOUNT OF RS.3.6 LACS. 9. SUBSEQUENT TO THE ABOVE STATEMENT RECORDED ON 31 .10.2012, THE ASSESSEE HAS FILED A LETTER BEFORE THE ADDL. DIT(IN V.), UNIT-3 RETRACTING THE STATEMENT GIVEN BEFORE THE AUTHORITIES ON 31.10 .2012. THE RELEVANT PORTION OF THE LETTER DATED 02.11.2012 RETRACTING T HE EARLIER STATEMENT IS AS UNDER: AFTER TWO DAYS OF INTERROGATION AND MENTAL TORTURE AND THREATS THE OFFICERS COMPELLED ME TO SIGN ON SHEETS OF QUESTIONS AND ANSWERS WHICH WERE WRITTEN BY THEM LA TE IN THE EVENING ON 31ST OCTOBER 2012. I WAS NOT EVEN ALLOWE D TO READ THE ANSWERS WHICH HAD BEEN WRITTEN BY THE DEPARTMENTAL OFFICERS. I BELIEVE THAT I WAS MADE TO SIGN ALL WRITTEN SHEETS OF PAPERS WHEREIN I HAD PURPORTEDLY/ ALLEGEDLY CONFESSED THAT ONE SHRI AGGARWAL FROM CALCUTTA HELP ED ME IN BRINGING UNUTILIZED CASH IN THE FORM OF SHARE CAPIT AL, SHARE PREMIUM, SHARE APPLICATION AND UNWARRANTED LOAN. TH E OFFICERS ALSO MADE ME SIGN ON SOME CHART OF COMPANI ES WHICH WERE SAID TO BE PAPER COMPANIES FROM WHOM SHARE CAP ITAL, SHARE PREMIUM ETC HAS BEEN RECEIVED. I WAS ALSO MAD E TO SIGN ON A REPLY FRAMED BY THE OFFICER THAT UNACCOUN TED CASH ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 4 BROUGHT IN SHARE CAPITAL ETC WAS GENERATED DUE TO S UPPRESSION OF PROFIT ON WHICH, INCOME TAX HAS NOT BEEN PAID. 12. AT THE VERY INCEPTION, I COMPLETELY DENY, WITHD RAW AND RETRACT FROM ALL THE AFORESAID CONFESSIONS WHICH I WAS COMPELLED TO SIGN. THERE IS NOT EVEN A RUPEE OF UND ISCLOSED INCOME EARNED BY ME OR THE GROUP OF COMPANIES IN AN Y MANNER. THERE WAS NOT EVEN AN IOTA OF EVIDENCE FOUN D BY THE DEPARTMENT TO EVEN REMOTELY ESTABLISH THAT ANY UNDI SCLOSED INCOME WAS MADE BY ME OR ANY OF THE GROUP COMPANIES . THERE WAS ALSO NO EVIDENCE WHAT SO EVER TO SHOW THA T ANY CASH HAS BEEN GENERATED OR PAID TO ANYBODY FOR BRIN GING ANY SHARE CAPITAL, SHARE APPLICATION OR UNSECURED LOAN. HENCE, I CAN SAY WITH AUTHORITY AND CONVICTION AND FULL KNOW LEDGE THAT NONE OF THE ALLEGATIONS MADE AGAINST ME AND THE GRO UP IS BACKED BY ANY DOCUMENTARY EVIDENCE FOUND DURING THE COURSE OF SEARCH. I WAS COMPELLED TO SIGN DOCUMENTS/STATEM ENTS WHICH, RESPECTFULLY SUBMITTING, WERE MERE FIGMENTS OF THE IMAGINATION OF THE CONCERNED OFFICERS. I, THEREFORE , COMPLETELY AND TOTALLY RETRACT FROM THE DISCLOSURE OF RS. 77.7 4 CRORES EXTRACTED FROM ME ON BEHALF OF THE COMPANY. 10. FURTHER, ON PERUSAL OF THE RECEIPTS REVEAL THAT THE RECEIPTS HAVE BEEN UNDATED AND UNSIGNED. THERE IS NO SIGNATURE OF EITHER THE RECIPIENTS OR THE PAYER. THE NAME MENTIONED ON THE RECEIPTS AR E SH. C.B. BANSAL AND MAHAMANTRA DAS. DURING THE REMAND PROCEEDINGS, THE STATEMENT OF SH. C.B. BANSAL R/O A-40, NIRMAN VIHAR, NEW DELHI H AS BEEN RECORDED WHEREIN SH. C.B. BANSAL DENIED ON RECEIVING ANY CAS H LOAN FROM THE ASSESSEE. THE RELEVANT PART OF THE STATEMENT RECORD ED BY THE ASSESSING OFFICER IS AS UNDER: (PAGE NO. 65, 66 MARKED) QUESTION NO. 5: WHETHER YOU HAVE TAKEN LOAN OF RS. 15 LAKH FROM M/S PRAKASH INDUSTRIES LTD. AND RS.15 LAKH FRO M SH. VED PRAKASH AGARWAL AND WHEN IT WAS REPAID? ANS: NO. I HAVE NOT RECEIVED ANY LOAN AMOUNT AND QU ESTION OF REPAYMENT DOES NOT ARISE. Q.NO. 6: I AM SHOWING YOU TWO DOCUMENTS SEIZED DURI NG THE SEARCH OPERATION OF CORPORATE OFFICE OF M/S PRAKASH INDUSTRIES LTD. SRIVAN, BIJWASAN IN WHICH RECEIPT OF TWO LOANS OF RS.15 ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 5 LAKH EACH FROM M/S PRAKASH INDUSTRIES LTD. AND SH. VED PRAKASH AGARWAL IS MENTIONED. PLEASE COMMENT? ANS.: AS STATED EARLIER, I HAVE NOT TAKEN ANY KIND OF LOAN FROM M/S PRAKASH INDUSTRIES LTD. AND SH. VED PRAKASH AGA RWAL. Q.NO. 7: IN THE STATEMENT RECORDED U/S 132(4) OF TH E ACT DURING SEARCH CHAIRMAN OF M/S PRAKASH INDUSTRIES LT D. GROUP SH. VED PRAKASH AGARWAL ADMITTED THAT YOU HAD RECEI VED OF RS.30 LAKH (15+15) AS LOANS FROM HIM (SH. VED PRAKA SH AGARWAL) AS DECLARED THIS AMOUNT AS ADDITIONAL INCO ME. HOW YOU ARE DENYING THE RECEIPT. PARTICULARLY, IN VIEW OF THE EFFECT THAT YOU HAVE NOT BROUGHT ANY RECORD/DOCUMENTS. ANS.: I AM NOT AWARE OF THE SAME. Q.NO. 8: WHERE ARE YOU ASSESSED TO TAX? ANS.: I AM PRESENTLY ASSESSED WITH CIRCLE 58(1), DE LHI AND MY PAN NO. IS AATPB5963C. Q.NO.: HOW DO YOU KNOW M/S PRAKASH INDUSTRIES LD.? ANS.: I AM CONSULTANT OF M/S PRAKASH INDUSTRIES LTD . 11. IN ADDITION, SH. C.B. BANSAL HAS ALSO FILED AN AFFIDAVIT DATED 10.03.2015 BEFORE THE ASSESSING OFFICER REAFFIRMING HIS STATEMENT. 12. FURTHER, THE ASSESSING OFFICER HAS ALSO RECORDE D STATEMENT OF SH. MAHAMANTRA DAS (KAMLA SHANKAR DUBEY, THE OTHER NAME ) R/O 165, GROUND FLOOR, ISKCON WHEREIN HE CATEGORICALLY REFUS ED OF HAVING TAKEN ANY LOAN FROM THE ASSESSEE. THE RELEVANT PART OF TH E STATEMENT RECORDED BY THE ASSESSING OFFICER IS AS UNDER: QUESTION NO. 3: DO YOU KNOW SH. VED PRAKASH AGARWA L AND M/S PRAKASH INDUSTRIES LTD.? ANS: YES, SH. VED PRAKASH AGARWAL IS KNOWN AS VEDYA S DAS IN OUR SOCIETY. HE IS VERY COMMITTED DEVOTEE OF LORD K RISHNA. HE IS MY GOOD BROTHER. HE IS RUNNING M/S PRAKASH INDUS TRIES LTD. ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 6 QUESTION: DO YOU HAD ANY TRANSACTION WITH SH. VED P RAKASH AGARWASL OR M/S PRAKASH INDUSTRIES DURING THE LAST 6 YEARS? ANS.: I HAD NEVER TOOK LOAN FROM SH. VED PRAKASH AG ARWAL OR M/S PRAKASH INDUSTRIES LTD. QUESTION: NOW I AM SHOWING YOU RECEIPT OF LOAN FOR RS.20 LAKH FROM SH. VED PRAKASH AGARWAL IN THE F.Y. 2012- 13. PLEASE EXPLAIN ON THE SAME? ANS.: THIS RECEIPT NOT SIGNED BY ME AND THE SAME DO ES NOT PERTAINS TO ME. QUESTION: THIS RECEIPT WAS FOUND AT THE PREMISES OF M/S PRAKASH INDUSTRIES LTD. DURING THE COURSE OF SEARCH AND SH. VED PRAKASH AGARWAL ADMITTED THAT UNACCOUNTED MONEY OF RS.20 LAKH WAS GIVEN BY ME TO MAHAMANTRA DAS. IN HI S STATEMENT RECORDED U/S 132(4) OF THE I.T. ACT WHAT YOU WANT TO SAY IN THIS REGARD? ANS.: I HAVE NOT TAKEN LOAN FROM ANYBODY IN THE .I NCLUDING SH. VED PRAKASH AGARWAL. 13. IN ADDITION, SH. MAHAMANTRA DAS HAS ALSO FILED AN AFFIDAVIT DATED 20.03.2015 BEFORE THE ASSESSING OFFICER REAFFIRMING HIS STATEMENT. 14. WE FIND ALL THESE FACTS HAVE BEEN AVAILABLE BEF ORE THE LD. CIT (A). HOWEVER, THE LD. CIT (A) DID NOT ACCEPT THE EVIDENC ES FILED BY THE ASSESSEE DURING THE REMAND REPORT AND HELD THAT THE STATEMENTS AND AFFIDAVITS ARE NOTHING BUT AN AFTERTHOUGHT AND ONLY TO HELP THE ASSESSEE. 15. HOLDING THIS, HE CONFIRMED THE ADDITION. WE ALS O FIND THAT THE LD. CIT (A) HAS ALSO CONFIRMED THE FACT THAT THE THREE UNSIGNED RECEIPTS ARE INCRIMINATING DOCUMENTS FOUND IN THE SEARCH AND SEI ZURE ACTION U/S 132, WHICH SHOWS ACTUAL TRANSACTIONS HAVE BEEN TAKEN PLA CE. ON GOING THROUGH THE ENTIRE FACTUAL POSITION, WE ARE UNABLE TO ACCEPT WITH THE OBSERVATION OF THE LD. CIT (A) WHO HAS CONFIRMED TH E ADDITION AND AT THE SAME TIME ACCEPTING THE FACT THAT THE RECEIPTS ARE UNSIGNED AND YET ITA NO. 4245/DEL/2016 VED PAKASH AGARWAL 7 TREATING THEM AS INCRIMINATING DOCUMENTS. THE SEQUE NCE OF EVENTS ARE REITERATED AS UNDER: 30.10.2012 SEARCH CONDUCTED AND STATEMENT RECORDED U /S 132(4). 02.11.2012 STATEMENT RETRACTED. 10.03.2015 AFFIDAVIT FILED BY SH. C.B. BANSAL REFU TING RECEIPT OF LOAN. 20.03.2015 AFFIDAVIT FILED BY SH. MAHA MAYA DAS RE FUTING RECEIPT OF LOAN. 04.03.2016 STATEMENT OF SH. MAHA MAYA DAS RECORDED. 10.02.2016 STATEMENT OF SH. C.B. BANSAL RECORDED. 16. HAVING GONE THROUGH THE MATERIAL FACTS ON RECOR D AS NARRATED ABOVE VIZ. THE STATEMENTS OF THE ASSESSEE AS WELL A S THE COUNTER PARTIES, AFFIDAVITS, THE RECEIPTS PER SE AND ALSO THE OBSERVATION OF THE LD. CIT (A) THAT THE RECEIPTS ARE UNSIGNED, WE HEREBY HOLD THAT NO ADDITION IS CALLED FOR BASED ON THESE DOCUMENTS AND HENCE, THE ADDITIO N MADE BY THE ASSESSING OFFICER ON THIS ACCOUNT IS HEREBY DIRECTE D TO BE DELETED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/02/2020. SD/- SD/- (DR. B.R.R. KUMAR) (N . K. CHOUDHARY) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 07/02/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR