Manoj Kumar Tanwar, Delhi V. ITO, New Delhi

ITA 4529/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97996 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 24-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 31-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: V K TULSIYAN
• Keywords: Gift
• Section: 142(1); 147; 68; 148

Judgement Text

ITA NO. 4529/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 4529 /DEL/2013 A.Y. : 200 5 - 0 6 MANOJ KR. TANWAR, 404, SUNEHRI BAGH APARTMENTS, PLOT NO. 15, SECTOR-13, ROHINI, DELHI 85 (PAN: AACPT9435G) VS. INCOME TAX OFFICER, WARD 25(1) NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. V.K. TULSIYAN, CA DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 26 2626 26- -- -11 1111 11- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 0 00 03 33 3- -- -12 1212 12- -- -201 201 201 2015 55 5 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXIV, NEW DELH I DATED 22.5.2013 PERTAINING TO ASSESSMENT YEAR 2005-06 ON THE FOLLOW ING GROUNDS:- 1. WHETHER THE LD.CIT(A) WAS JUSTIFIED BY UPHOLDING TH E ASSUMPTION OF JURISDICTION U/S 147 / 148 JUST IN A MECHANICAL WAY ALTHOUGH IT WAS BASED IN GENERAL AND MASS IN NATURE INFORMATION , NOT SUP PORTED BY ANY IOTA OF EVIDENCE NOR ANY ADVERSE MATERIAL BROUGHT ON RECORD TO SUBSTANTIATE INFORMATION INTO REASON . THEREFORE , THE ENTIRE EX ERCISE IS ILLEGAL AND UNJUST ITA NO. 4529/DEL/2013 2 AND BAD IN LAW. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UP HOLDING THE ASSESSMENT ORDER JUST IN A PASSIVE MANNER AS UNDER :- (A) ASSUMPTION WAS RIGHTLY EXERCISED AFTER RECORDIN G OF REASONS (B) NOTICE U/S 148 WAS SERVED THROUGH REGISTERED PO ST (C) NO REQUIREMENT FOR ISSUE ()F NOTICE U./S 143(2) WHEN THE C3SE REOPENED (D) REASONS HAVE BEEN PROVIDED (E) ENTIRE SUBMISSIONS AND PB HAVE BEEN EXAMINED 3. WHETHER THE LD. CIT(A) WAS JUSTIFIED, BY UPHOLDI NG AN ASSESSMENT ORDER WHICH IS BARRED BY LIMITATION BECAUSE BASED O N NOTICE ISSUED INSTEAD OF SERVICE EVEN THOUGH THE NOTICE U/S 148 W AS NOT SERVED HENCE BARRED BY LIMITATION . 4. WHETHER THE LD. CIT(A) WAS JUSTIFIED, BY UPHOLDI NG AN ADDITION OF RS51000/- AS LOAN U/S 68,BY NOT CONSIDERING THE PB , FROM PG.NO. 1 - 22 , AND WRITTEN SUBMISSION, WITHOUT EVEN BRINGING ANY A DVERSE MATERIAL AGAINST THE DETAILS FILED. THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR TO RAISE ANY THE TIME OF HEARING. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AO I SSUED NOTICE ULS 148 AFTER RECORDING REQUISITE REASONS FOR THE SAME WHICH WAS SERVED UPON THE ASSESSEE BY SPEED POST REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME IN RESPONSE TO THIS NOTICE. HOWEVER, NO RETURN WAS FILED BY THE ASSESSE E, THEREFORE, AO ISSUED NOTICES U/S 142(1) DT. 09.07.2010 FOR 19.07.2010,NO TICE DT. 25.6.2010 FOR ITA NO. 4529/DEL/2013 3 26.7.2010, NOTICE DT. 13.09.2010 FOR 23.09.2010 AND NOTICE DT. 4.10.2010 FOR 15.10.2010, BUT ALL THESE NOTICES REMAINED UN-COMPL IED WITH. ON 25.10.2010, AR OF THE ASSESSEE, SHRI KAMAL JAIN, CA APPEARED AN D FILED PART DETAILS ON 25.10.2010, 09.11.2010,15.11.2010 AND ON 26.11.2010 . ON 25.10.2010, AR OF THE ASSESEE ALSO FILED COPY OF RETURN ALREADY FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION WITH LTO, WARD 47( 1), NEW DELH I ON 28.06.2005 DECLARING INCOME OF RS.L,64,970/-. IT WAS SUBMITTED BY THE AR OF THE ASSESSEE THAT THIS RETURN MAY BE TREATED AS FILED IN RESPONSE TO NOTIC E ISSUED ULS 148. AO SUPPLIED COPY OF THE REASONS RECORDED FOR ISSUE OF NOTICE U/ S 148 OF THE ACT TO THE AR OF THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, IT WAS SUBMITTED BY THE AR OF THE ASSESSEE THAT ASSESSEE HAD TAKEN ~ LO AN OF RS. 51,000/- THROUGH CHEQUE DATED 23.4.2004 FROM ONE SH. MUKESH JAIN WHI CH WAS LATER RETURNED TO THE LENDER. HOWEVER, AO ASKED THE AR OF THE ASSESSE E TO PRODUCE SH. MUKESH JAIN ALONG WITH THE COPY OF HIS ITR FOR THE A Y 200 5-06 AND ALSO COPY OF HIS BANK ACCOUNT FOR THE PERIOD 01.04.2004 TO 31.3.2005 . IT WAS REQUIRED TO ESTABLISH THE GENUINENESS OF THE CLAIM OF LOAN OBTA INED FROM SH. MUKESH JAIN. HOWEVER, ASSESSEE FAILED TO COMPLY WITH THE ABOVE D IRECTIONS. IT HAS BEEN OBSERVCED BY THE AO IN THE ASSESSMENT ORDER THAT SH RI MUKESH JAIN HAS NOT ONLY ADVANCED LOAN TO THE ASSESSEE BUT HE HAS ALSO GIVEN LOANS / ADVANCES / GIFTS TO MANY OTHER PERSONS IN LIEU OF CASH. AO HELD THAT AS SESSEE WAS INVOLVED IN MONEY LAUNDERING ACTVITIY AND ROUTED HIS OWN MONEY, EARNE D FROM UNDISLCOSED SOURCES, THROUGH SH. MUKESH JAIN, WHICH WAS A COLOURABLE DE VICE TO GIVE A TRUE COLOR TO HIS UNDISCLOSED INCOME. THEREFORE, HE MADE AN AD DITION OF RS. 51,000/- TO THE TAXABLE INCOME OF THE ASSESSEE BY APPLYING THE PROV ISIONS OF SECION 68 OF THE ACT AND ASSESSED THE INCOME OF THE ASSESSEE AT RS. 2,15,970/- AS AGAINST THE ITA NO. 4529/DEL/2013 4 RETURNED INCOME OF RS. 1,64,970/- VIDE HIS ORDER DA TED 30.11.2010 PASSED U/S. 147/143(3) OF THE I.T. ACT, 1961. 3. AGAINST THE AFORESAID ASSESSMENT ORDER DATED 30 .11.2010, ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED OR DER DATED 22.5.2013 HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED, ASSESSEE APPEALED BEFORE THE TRIBUNAL . 5. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT HE IS NOT PRESSING THE GROUND NO. 1, 2 & 3. THEREFORE, THE G ROUND NO. 1, 2 & 3 AS AFORESAID ARE DISMISSED, AS NOT PRESSED. 5.1 WITH REGARD TO GROUND NO. 4 RELATING TO UPHOLDI NG THE ADDITION OF RS. 51,000/- IS CONCERNED, HE STATED THAT THIS ADDITIO N WAS MADE DUE TO NON- CONSIDERATION OF THE PAPER BOOK FROM PAGE NO. 1 T O 22 AND WRITTEN SUBMISSIONS, WITHOUT EVEN BRINGING ANY ADVERSE MATERIAL AGAINST THE DETAILS FILED. 6. ON THE CONTRARY, LD. SR. DR RELIED UPON THE ORD ER OF THE AUTHORITIES BELOW AND REQUESTED THAT THE SAME MAY BE UPHELD AND THE APPEAL OF THE ASSESSEE BE DISMISSED ACCORDINGLY. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES, PAPER BOOK CONT AINING PAGES 1 TO 25 HAVING THE DETAILS OF COMPLIANCE OF NOTICE U/S. 1452(1) DA TED 25.10.2010; COPY OF ITR FOR AY 2005-06; COPY OF ASSESSMENT ORDER FOR AY 200 4-05 WITH COMPUTATION OF TAXES; COPY OF NOTICE U/S. 142(1) DATED 4.10.201 0; COPY OF NOTICE U/S. 142(1) DATED 13.9.2010; COPY OF NOTICE U/S. 142(1) DATED 9 .7.2010; COPOY OF CONFIRMATION FROM SH. MUKESH JAIN WITH ITR, BANK ST ATEMENT, FINANCIAL ITA NO. 4529/DEL/2013 5 STATEMENTS, PAN CARD, ELECTION CARD, COMPUTATION OF INCOME; FINANCIAL STATEMENTS, COMPUTATION OF INCOME OF THE ASSESSEE; LETTER TO THE AO FOR INSPECTION OF RECORD DATED 14.1.2.2010 AND WRITTEN SUBMISSION FILED BEFORE THE LD.CIT(A). HE ALSO FILED A SEPARATE COPY OF THE WR ITTEN SUBMISSION DATED 9.3.2013 BEFORE US. LD. COUNSEL FOR THE ASSESSEE H AS ALSO CERTIFIED THAT ALL THE SAID DOCUMENT HAVE BEEN FILED BEFORE THE AO & CIT(A ) AND THERE IS NOT A SINGLE NEW DOCUMENT BEING PLACED ON RECORD. 7.1 AFTER GOING THROUGH THE AFORESAID DOCUMENTS/EVI DENCES, WE FIND THAT THE ASSESSEE HAS FILED ON RECORD ALL THE DETAILS FRO M WHOM HE HAS TAKEN LOANS, THEIR CONFIRMATIONS, ITRS, PAN CARD COPIES, BALANCE SHEETS, COMPUTATION OF INCOME. WE FURTHER FIND THAT THE AO WITHOUT DISPUT ING THESE DOCUMENTS, HAD MADE THE ADDITIONS JUST ON THE PIECE OF INFORMATION RECEIVED FROM THE INVESTIGATION WING AND BASED ON ASSUMPTIONS AND PR ESUMPTIONS. IT IS A SETTLED LAW IF THE ASSESSEE HAS FILED THE NECESSARY EVIDENC E WITHOUT ANY DISPUTE EITHER BRINGING ANY ADVERSE MATERIAL, THE EVIDENCE CANNOT BE REJECTED AND STILL IN THE PRESENT CASE THE AO HAS NOT REJECTED THE EVIDENCE ON RECORD BUT IS SOLELY BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING. WE FURTHER FIND THAT THE ASSESSEE IN THE PAPER BOOK HAS ALSO FILED THE CONF IRMATION OF SH. MUKESH JAIN, HAVING CONFIRMED THE PAYMENT OF RS. 51,000/- TO TH E ASSESSEE VIDE CHEQUE NO. 477714 DATED 1.7.2004 WHICH IS REFLECTED IN THE BA LANCE SHEET AS WELL AS IN THE STATEMENT OF ACCOUNT OF THE ASSESSEE AN D PROVES THE GENUINENESS AND ITA NO. 4529/DEL/2013 6 CREDITWORTHINESS OF THE TRANSACTIONS AND IDENTITY O F THE DONOR, WHICH IN OUR CONSIDERED OPINION SEEMS TO BE GENUINE AND ADDITION MADE ON THIS ACCOUNT DESERVE TO BE DELETED. 7.2 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS, WE DELETE THE ADDITION OF RS. 51,000/- MADE BY THE AO AND SUSTAINED BY THE LD . CIT(A) AND ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/12/2015. SD/- SD/- [ [[ [PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 03/12/2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES