ACIT, New Delhi V. Shri Roshan Agrawal, Delhi

ITA 4645/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6766 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 14-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.4645/DEL/2015 ASSESSMENT YEAR : 2010-11 ACIT, CENTRAL CIRCLE-13, ROOM NO.355, 3 RD FLOOR, JHANDEWALAN EXTENSION, NEW DELHI. VS. ROSHAN AGRAWAL, A-54, SWASTHYA VIHAR, DELHI. PAN: ADOPA7054P ITA NO.4646/DEL/2015 ASSESSMENT YEAR : 2010-11 ACIT, CENTRAL CIRCLE-13, ROOM NO.355, 3 RD FLOOR, JHANDEWALAN EXTENSION, NEW DELHI. VS SHISHIR AGRAWAL, A-54, SWASTHYA VIHAR, DELHI. PAN: ADOPA7056P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ADESH KUMAR JAIN, CA, SHRI RAJAT JAIN, CA & SHRI AKSHAT JAIN, CA DEPARTMENT BY : MS RACHNA SINGH, CIT, DR DATE OF HEARING : 03.07.2018 DATE OF PRONOUNCEMENT : 04.07.2018 ITA NOS.4645 & 4646/DEL/2015 2 ORDER PER R.S. SYAL, VP: THESE TWO APPEALS FILED BY THE DEPARTMENT ARISE OU T OF THE ORDERS PASSED BY THE CIT(A) ON 27.04.2015 IN RELATION TO T HE TWO DIFFERENT, BUT, CONNECTED ASSESSEES FOR THE ASSESSMENT YEAR 2010-11 . FOR THE SAKE OF CONVENIENCE, WE HAVE CLUBBED THESE APPEALS AND ARE DISPOSING THEM OFF BY THIS CONSOLIDATED ORDER. 2. FACTS RELEVANT TO ITA NO.4645/DEL/2015 ARE THAT A SEARCH AND SEIZURE ACTION WAS TAKEN U/S 132(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) ON 10.01.2012 AT THE BUSINESS AS WELL AS THE RESIDENTIAL PREMISES OF MINDA GROUP. THE ASSESSEE IS PART OF M INDA GROUP HOLDING INTEREST IN THE GROUP COMPANIES. DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS CONDUCTED AT THE RESIDENTIAL PREMISES OF SHRI SHISHIR AGRAWAL AND SHRI ROSHAN AGRAWAL (APPEALS OF THESE TWO ASSES SEES ARE UNDER CONSIDERATION) CERTAIN RESTRAINT ORDERS WERE PASSED IN RESPECT OF TWO LOCKERS NO.101 AND 150 BY HDFC BANK BELONGING TO THEM. THES E LOCKERS WERE LATER ON SEARCHED. DURING THE COURSE OF SEARCH, 10 0 GOLD BARS WEIGHING 1 KG. EACH WERE FOUND OUT OF WHICH 38 GOLD BARS WERE SEIZED. DURING THE ITA NOS.4645 & 4646/DEL/2015 3 COURSE OF SEARCH OF LOCKERS, STATEMENT OF SHRI SHIS HIR AGRAWAL WAS RECORDED ON 07.03.2012, RELEVANT PARTS OF WHICH HAVE BEEN RE PRODUCED IN THE ASSESSMENT ORDER. SHRI SHISHIR AGRAWAL STATED IN T HE COURSE OF SEARCH OF LOCKERS THAT A SEARCH WAS EARLIER CONDUCTED ON M/S GOPAL ZARDA IN THE YEAR 2009. HE STATED TO HAVE DECLARED UNDISCLOSED INCOM E DURING THE COURSE OF SUCH EARLIER SEARCH, OUT OF WHICH INVESTMENT WAS MA DE IN GOLD, WHICH WAS FOUND FROM THE LOCKER. ON BEING CALLED UPON TO EXP LAIN AS TO HOW THE GOLD FOUND FROM THE LOCKER WAS PURCHASED AND HOW THE PAY MENT WAS MADE, THE ASSESSEE STATED THAT THE GOLD WAS PROCURED FROM GRE Y MARKET AND THROUGH UNACCOUNTED CASH GENERATED THROUGH PROPERTY DEALING S WHICH WAS DISCLOSED BEFORE THE SETTLEMENT COMMISSION PURSUANT TO THE FI RST SEARCH IN THE YEAR 2009. UNCONVINCED WITH THE ASSESSEES REPLY, THE AS SESSING OFFICER MADE AN ADDITION OF RS.4.61 CRORE IN THE HANDS OF THE AS SESSEE BY HOLDING THAT THE GOLD BARS FOUND FROM THE LOCKERS WERE PHYSICALLY DI FFERENT, WHICH THE ASSESSEE WAS CLAIMING TO HAVE INVESTED IN GOLD BARS OUT OF UNDISCLOSED INCOME DISCLOSED BEFORE THE SETTLEMENT COMMISSION P URSUANT TO THE SEARCH MADE IN 2009. SIMILAR IS THE POSITION REGARDING SH RI SHISHIR AGRAWAL, IN WHOSE HANDS THE ASSESSING OFFICER MADE AN ADDITION OF RS.1.99 CRORE UNDER ITA NOS.4645 & 4646/DEL/2015 4 SIMILAR CIRCUMSTANCES. THE LD. CIT(A) DELETED BOTH THE ADDITIONS, AGAINST WHICH THE REVENUE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT DURING THE C OURSE OF SEARCH CONDUCTED IN 2012, 100 GOLD BARS WEIGHING 1 KG. EACH WERE FOU ND. 43 CERTIFICATES OF GOLD BARS DATED 22/23.09.2009 WERE SEIZED. THE ASS ESSES MADE OUT A CASE BEFORE THE AUTHORITIES THAT THEY DECLARED INCOME IN RESPECT OF 114.5 KGS. OF GOLD DURING THE COURSE OF EARLIER SEARCH IN 2009 BE FORE THE SETTLEMENT COMMISSION. A COPY OF ORDER PASSED BY THE SETTLEME NT COMMISSION WAS PRODUCED BEFORE US, FROM WHICH IT IS EVIDENT THAT B OTH THE ASSESSEES UNDER CONSIDERATION DECLARED INCOME IN THE SPECULATION OF COMMODITIES ETC. AND ALSO INVESTMENT OF SUCH INCOME IN 114 (33 + 81) GOL D BARS EACH WEIGHING 1 KG. AS AGAINST THE AVAILABILITY OF SUCH 114 KGS. OF GOLD WITH THEM, THE TOTAL AMOUNT OF GOLD BARS FOUND DURING THE COURSE OF SEAR CH IS 100 BARS OF 1 KG. EACH. THE ASSESSEE NOT ONLY DECLARED INCOME BEFORE THE SETTLEMENT COMMISSION, BUT, THE FACT THAT THE GOLD BARS WERE P URCHASED OUT OF IT HAS ALSO BEEN RECORDED IN THE SETTLEMENT COMMISSIONS O RDER. IT IS NOT DISPUTED THAT SUCH ORDER PASSED BY THE SETTLEMENT COMMISSION HAS ATTAINED FINALITY. ITA NOS.4645 & 4646/DEL/2015 5 THIS, THEREFORE, ESTABLISHES THAT BOTH THE ASSESSEE S DECLARED INCOME DURING THE COURSE OF ORIGINAL SEARCH IN 2009 IN RESPECT OF 114 GOLD BARS. THAT APART, WEALTH TAX RETURNS SHOWING SO MUCH GOLD WERE ALSO FILED. NOW, IN THE INSTANT SEARCH, ONLY 100 GOLD BARS WERE FOUND, WHICH NUMBER IS PATENTLY LESS THAN THE GOLD BARS DECLARED BY THE ASSESSEES D URING THE COURSE OF EARLIER SEARCH WITH THE SAME WEIGHT. WHEN THE AMOUNT OF IN COME WAS OFFERED FOR TAXATION IN THE SEARCH CARRIED OUT IN 2009, IN OUR CONSIDERED OPINION, THE AO COULD NOT HAVE ONCE AGAIN MADE A FRESH ADDITION IN RESPECT OF 100 GOLD BARS FOUND AT THE TIME OF LATER SEARCH CARRIED OUT IN JANUARY, 2012, SIMPLY ON THE GROUND THAT THE GOLD BARS FOUND IN THE LOCKE R WERE PHYSICALLY DIFFERENT AS THESE WERE PURCHASED AT A LATER DATE F ROM THOSE DECLARED BEFORE THE SETTLEMENT COMMISSION. THE ASSESSEE HAS SPECIF ICALLY SUBMITTED THAT THE GOLD BARS EARLIER DECLARED WERE EXCHANGED LATER ON WITH THE NEW GOLD BARS WHICH WERE PLACED IN THE BANK LOCKER AND FOUND AT THE TIME OF SEARCH. THE AO SIMPLY DISLODGED THE CLAIM OF THE ASSESSES ON THE PREMISE THAT THEY COULD NOT PLACE ON RECORD ANY EVIDENCE OF SUCH EXCHANGE. HE HAS NOT POINTED OUT ANYWHERE IN THE ORDERS THAT THE INVESTM ENT IN GOLD BARS SURRENDERED BY THE ASSESSEE DURING THE COURSE OF TH E EARLIER SEARCH WAS ITA NOS.4645 & 4646/DEL/2015 6 LIQUIDATED AND THE AMOUNT SO REALIZED WAS UTILIZED ELSEWHERE. ONCE THE FACTUM OF THE ASSESSEE HAVING PURCHASED THE GOLD BA RS DURING THE COURSE OF SEARCH IN 2009 GOT ESTABLISHED, FOR WHICH INCOME WA S ALSO OFFERED FOR TAXATION AS WELL, IN OUR CONSIDERED OPINION, NO FAU LT COULD BE FOUND WITH THE LD. CIT(A) IN ACCEPTING THE ASSESSEES EXPLANATION THAT 100 GOLD BARS FOUND FROM THE LOCKER PURSUANT TO SEARCH IN 2012 CAME OUT OF THE AMOUNT SURRENDERED IN THE SEARCH CARRIED OUT IN 2009. WE, THEREFORE, COUNTENANCE THE VIEW TAKEN BY THE LD. CIT(A). 4. IN THE RESULT, BOTH THE APPEALS STAND DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.07.201 8. SD/- SD/- [K. NARASIMHA CHARY] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 04 TH JULY, 2018. DK ITA NOS.4645 & 4646/DEL/2015 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.