M/s Land Craft Developers (P) Ltd., New Delhi V. DCIT, New Delhi

ITA 4373/DEL/2016

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8332 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 09-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY CHOUDHARY
• Assessee Lawyers: RAJ KUMAR CA SH J P SHARMA
• Keywords: Search and seizure
• Section: 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH.KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.4373/DEL/2016 ASSESSMENT YEAR: 2013-14 LAND CRAFT DEVELOPERS (P) LTD. C/O RAJ KUMAR & ASSOCIATES, CA, L-7A, (LGF), SOUTH EXTN. PART-2 NEW DELHI-110049 PAN NO.AABCL1391F VS DCIT CENTRAL CIRCLE -27 NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. RAJ KUMAR, CA SH. J. P. SHARMA, ADVOCATE RESPONDENT BY SH. VIJAY CHOUDHARY, SR. DR. DATE OF HEARING: 11/01/2021 DATE OF PRONOUNCEMENT: 14/01/2021 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-29, NEW DELHI DATED 28.06.2016 PERTAININ G TO A.Y. 2013-14. 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, THERE IS ABSOLUTELY NO LEGALITY AND JUSTIFICATION IN MAKING AN ADDITION OF RS. 10 LACS U/S.68 FOR SHARE APPLICATION MONEY R ECEIVED FROM M/S. PIIRUSHOTTAM VINIMAY (P) LTD. DURING A.Y. 2013 - 2014. 2. THAT WITHOUT PREJUDICE AND ALTERNATIVELY, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, ADDITION OF RS . 10 LACS U/S. 68 SHOULD BE SET OFF / ADJUSTED / PART AND OUT OF OPEN AND UN - SPECIFIED SURRENDER OF RS. 40 LACS MADE U/ S. 132 (4) FOR A.Y. 2013 - 2014 WHICH HAS BEEN ASSESSED ALSO, IN THE ABSENCE OF WHICH, ADDITION TO THE EXTENT TO RS. 10 LACS STANDS MADE TWICE. 3. WE WILL FIRST ADDRESS TO THE GRIEVANCE RAISED VI DE GROUND NO.2. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 23.08.2012. DURING THE SEARCH OPERATION FOR THE ASSESSMENT YEAR 2013-14 WHICH IS UNDER CONSIDERATION, THE ASSE SSEE MADE SURRENDER OF RS.68257474 AS UNDER :- 1. RS.64257474- RELATING TO SPECIFIC SEIZED MATERIAL 2. RS. 40 LACS - UNSPECIFIED, UNRELATED AND OPEN SURR ENDER TO COVER UP ANY OTHER ADDITIONS IF MADE ON ANY ACCOUNT 3 5. RS. 40 LACS WAS INCLUDED IN THE RETURNED INCOME FOR THE YEAR UNDER CONSIDERATION WHILE DECLARING THE TOTAL OF RS .6606900/- 6. THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 31 .03.2015 FRAMED U/S.143 (3) OF THE ACT BY MAKING ADDITION OF RS.10 LACS U/S. 68 OF THE ACT AND RS.398235/- ON ACCOUNT OF DE AL WITH M/S. PANDAV DEVELOPERS. 7. ASSESSEE AGITATED THE MATTER BEFORE THE CIT(A). 8. IT WAS VEHEMENTLY CONTENDED THAT THE SURRENDER O F RS.40 LACS SHOULD COVER THE ADDITIONS MADE BY THE AO AND ACCORDINGLY CLAIMED SET OFF ALL THE ADDITIONS AGAINST THE SURRE NDERED INCOME. 9. THE CLAIM OF THE ASSESSEE WAS ALLOWED BY THE CIT (A) IN SO FAR AS ADDITION OF RS.398235/- IS CONCERNED. HOWEVER, T HE CIT(A) DENIED THE CLAIM OF SET OFF ADDITION OF RS.10 LACS MADE U/S. 68 AGAINST THE SURRENDERED AMOUNT OF RS.40 LACS. 10. BEFORE US THE COUNSEL FOR THE ASSESSEE REITERAT ED THE CLAIM, THE DR STRONGLY SUPPORTED THE FINDINGS OF THE CIT(A ). 11. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE SURRENDER MADE U/S.132(4) OF THE ACT. WE FIND THAT SURRENDER OF RS.40 LACS WAS ON ACCOUNT OF MISCELLANEOUS INCOME TO COVER UP ANY OTHER 4 UNACCOUNTED/ UNRECORDED INCOME/ EXPENDITURE ETC. I F ANY FOUND DURING SEARCH AND / OR FROM SEIZED MATERIAL AND FR OM OTHER RELATED INFORMATION. 12. IN OUR CONSIDERED OPINION THE SURRENDER OF RS. 40 LACS WAS NOT RELATED TO ANY SPECIFIC ITEMS AS THE SURRENDER OF RS.6.42 CRORES WAS. 13. WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD BE ALLOWED SET OFF OF ALL THE ADDITIONS MADE IN THE AS SESSMENT ORDER BY THE AO AGAINST THE SURRENDERED AMOUNT OF RS.40 L ACS AS THE SAME HAS BEEN HONOURED BY THE ASSESSEE IN HIS RETUR N OF INCOME AND HAS PAID TAXES THEREON. 14. WE ACCORDINGLY DIRECT THE AO TO ALLOW THE SET O FF OF RS.10 LACS AGAINST THE SURRENDERED AMOUNT OF RS.40 LACS. GROUND NO. 2 IS ACCORDINGLY ALLOWED. GROUND NO.1 BECOMES INFRUC TUOUS. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED QUA GROUND NO.2. ORDER PRONOUNCED IN THE OPEN COURT ON 14.01.2021. SD/- SD/- (KULDIP SINGH) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOU NTANT MEMBER *NEHA* DATE:-14.01.2021 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI DATE OF DICTATION 11 . 01.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.01.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 14.01.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 14.01.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 14.01.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 14.01.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 14.01.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.01.2021 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER