Rameshwar Lal, New Delhi V. DCIT, Circle-71(1), New Delhi

ITA 4826/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3668 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH S
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Assessment record; Reason to believe
• Section: 143(3); 142(1); 143(2); 13; 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 4826/DEL/2018 ASSESSMENT YEAR: 2011-12 RAMESHWAR LAL, VS. DCIT, CIRCLE 71(1), C/O V.N. PUROHIT & CO, CAS NEW DELHI 214, NEW DELHI HOUSE, 2 ND FLOOR, 27, BARAKHAMBA ROAD, NEW DELHI 110 001 (PAN: AAVPL2411M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AMIT SHARMA, ADVOCATE REVENUE BY : MS. PARUL SINGH, S. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 31.5.2018 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(A)-21 , NEW DELHI RELATING TO ASSESSMENT YEAR 2011-12 ON THE FOLLOWIN G GROUNDS:- 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ADDITION OF RS. 5.0 0 LAKHS AS MADE BY AO BEING MONEY PAID FOR PURCHASE OF RESIDENTIAL PROPERTY OUT OF OWN FUNDS. 2. THAT APPELLANT CRAVES LEAVE TO ADD, TO AMEND OR WITHDRAW TO ANY GROUND ON OR BEFORE THE HEARING OF THE APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FI LED ITS RETURN OF INCOME DECLARING AN INCOME OF RS. 16,17,759/- ON 2 8.7.2011. THE ADDL. DIT(INV.), UNIT-I, MUMBAI VIDE ITS LETTER DATED 10. 3.2016 FORWARDED INFORMATION TO PR. CIT-20, KOLKATA IN THE CASE OF C OSMOS GROUP, WHICH IS ENGAGED IN THE BUSINESS OF BUILDING AND CONSTRUCTIO N. DURING THE SEARCH PROCEEDING, INCRIMINATING MATERIAL RELATING TO THE ON-MONEY RECEIPTS OF THE ASSESSEE WAS UNEARTHED AND SEIZED. THE CASE OF THE ASSESSEE WAS 2 REOPENED U/S. 147 BY THE ITO, WARD 62(4), KOLKATA A FTER RECORDING REASON TO BELIEVE AND OBTAINING APPROVAL FROM ADDL. CIT, RANGE-62, KOLKATA. NOTICE U/S. 148 OF THE ACT FOR AY 2011-12 WAS ISSUE D ON 22.3.2016. THE ASSESSEE VIDE ITS LETTER DATED 27.4.2016 STATED THA T HE HAS ALREADY FILED HIS INCOME TAX RETURN FOR AY 2011-12 ON 27.7.2011 W HICH MAY BE TREATED AS INCOME TAX RETURN FILED IN RESPONSE TO THE NOTIC E U/S. 148 OF THE ACT. SUBSEQUENTLY, ORDER U/S. 127(2) OF THE ACT WAS PASS ED BY PCIT-21, TRANSFERRING THE CASE FROM ITO, WARD 62(4), KOLKATA TO ACIT, CIRCLE 71(1), NEW DELHI ON 18.7.2016. THE ASSESSMENT RECORD U/S. 127 OF THE ACT WAS TRANSFERRED VIDE LETTER DATED 28.7.2016 AND ACCORDI NGLY, NOTICE U/S. 142(1) OF THE ACT ALONGWITH QUESTIONNAIRE WAS ISSUE D ON 29.8.2016 AND NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 30.8.20 16. IN RESPONSE, VIDE LETTER DATED 14.9.2016, THE ASSESSEE REQUESTED FOR COPIES OF DOCUMENT SEIZED DURING THE SEARCH. THE SAME WERE PROVIDED TO THE ASSESEEE VIDE LETTER DAEDTD 7.11.2016. IN RESPONSE TO THE SAME, T HE AR OF THE ASSESSEE ATTENDED THE HEARING FROM TIME TO TIME AND FILED TH E REQUIRED DETAILS. THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 18.11.2016 WA S REQUIRED TO SHOW CAUSE WHY CASH PAYMENT AMOUNTING TO RS. 5,00,000/- PAID IN CASH TO COSMOS GROUP MAY NOT BE ADDED TO THE INCOME AS UNEX PLAINED INVESTMENT. THE ASSESSEE VIDE HIS SUBMISSION DATED 24.11.2016, STATED THAT HE HAD PAID RS. 5,00,000/- IN CASH TO COSMOS C ONSTRUCTION DURING THE FY 2010-11 OUT OF HIS PAST SAVINGS OVER THE YEA RS, AND HIS WIFE AND OTHER FAMILY MEMBERS. IN SUPPORT, NEITHER ANY SUPPO RTING DOCUMENT/ EVIDENCE NOR ANY BANK STATEMENT WAS FILED BY THE AS SESSEE. AO OBSERVED THAT THE SUBMISSION MADE BY THE ASSESSEE REGARDING THE NATURE AND SOURCES OF INVESTMENT MADE IN THE FORM OF ADVANCE I N CASH AMOUNTING TO RS. 5,00,000/- TO COSMOS GROUP IS FOUND TO BE EVASI VE AND UNSATISFACTORY. SINCE NO SATISFACTORY EXPLANATION H AS BEEN OFFERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF PAYMENT OF CASH, THE VALUE OF THE INVESTMENT IS DEEMED TO BE THE INCOME OF THE A SSESSMENT OF THE RELEVANT F.Y. AND ACCORDINGLY, THE SAME WAS ADDED TO THE HANDS OF THE ASSESSEE AND THE INCOME OF THE ASSESSEE WAS ASSESSE D AT RS. 21,22,040/- U/S. 148 OF THE ACT R.W.S. 143(3) OF THE I.T. ACT, 1961 VIDE ORDER DATED 3 09.12.2016. AGAINST THE ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 31.5. 2018 HAS DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE IMP UGNED ORDER DATED 31.5.2018, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 3. LD. COUNSEL FOR THE ASSESSEE STATED THAT LD. CI T(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 5.00 LACS AS MADE BY THE AO BEING MONEY PAID FOR PURCHASE OF RES IDENTIAL PROPERTY OUT OF OWN FUNDS. HENCE, THE SAME MAY BE DELETED. 4. AT THE TIME OF HEARING, LD. DR RELIED UPON THE O RDER PASSED BY THE REVENUE AUTHORITIES AND STATED THAT LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUE IN DISPUTE AND DECIDED THE SAME AGAINST T HE ASSESSEE BY PASSING THE WELL REASONED ORDER AND AFTER GIVING AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, HE REQUESTED TH AT THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS PASSED BY THE REVENUE AUTHORITIES, I AM OF THE VIEW THAT LD. CIT (A) HAS DECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE. FOR THE SAK E OF CONVENIENCE, THE FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE M ENTIONED AT PAGE NO. 12 TO 15 VIDE PARA NO. 6.6 TO 6.11 IS REPRODUCED AS U NDER:- 6.6 GROUND NO. 2 OF THE APPEAL DEALS WITH THE ME RIT OF THE CASE WHERE THE APPELLANT S CHALLENGED THE ADDIT ION OF RS. 5 LAKHS MADE BY THE AO. THE AO HAS DISCUSSED I N THE ASSESSMENT ORDER MENTIONED SUPRA IN PARA 4 THAT DURING THE COURSE OF SEARCH AND SEIZURE OPERATION CONDUCTED IN THE CASE OF COSMOS GROUP INCRIMINATING MATERIAL OF ACCEPTING ON-MONEY FROM DIFFERENT PARTI ES HAVE BEEN FOUND AND IN THIS REGARD INFORMATION OF PAYMENT OF RS. 5 LAKHS BY THE APPELLANT IN CASH WAS ALSO GATHERED WHICH IS DISCUSSED BY THE AO IN PARA 4 OF THE ASSESSMENT ORDER. HOWEVER, IN THE CHART THE DAT E OF PAYMENT HAS BEEN MENTIONED AS 07.02.2010 WHICH IS 4 ACTUALLY 02.07.2010 I.E, 2ND JULY, 2010 WHICH IS CL ARIFIED BY THE LD. AR OF THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS. HENCE, IT IS HELD THAT THE TRANSACTION RELATES TO A.Y. 2011-12 ONLY. 6.7 THIS IS AN UNDISPUTED FACT THAT THIS TRANSACTIO N TOOK PLACE BETWEEN THE APPELLANT AND THE COSMOS GROUP FO R THE PURCHASE OF THE APARTMENT AND ALL THE PAYMENTS OF RS. 27,58,512/- WAS MADE BY THE APPELLANT THROUGH CHEQUE ON 25 OCCASIONS FROM 28.08.2010 TO09.03.2013 EXCEPT THE AMOUNT OF RS. 5 LAKHS FOR WHICH THE INFORMATION WAS GATHERED BY THE AO AS A RESULT OF SEARCH IN THE CASE OF COSMOS GROUP AND THE SOURCE O F THIS AMOUNT OF RS. 5 LAKHS IN CASH COULD NOT BE SUPPORTED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY ANY DOCUMENTARY EVIDENCE OR BANK STATEMENT. THE PLEA OF THE APPELLANT THAT T HE CASH PAYMENT WAS MADE FROM PAST SAVINGS HAS NOT BEEN ACCEPTED BY THE AO AS PER THE DETAILED DISCUSSI ON MADE IN THE ASSESSMENT ORDER MENTIONED SUPRA IN PAR A 6.8 THE APPELLANT ON THE OTHER HAND HAS FILED A DETAILED WRITTEN SUBMISSION MENTIONED SUPRA IN PARA 5 AND CLAIMED THAT THE AO HAS NOT CONSIDERED THE AMOUN T OF RS. 6,90,000/- WHICH WAS WITHDRAWN IN THE LAST T WO YEARS BEFORE THIS INVESTMENT AND ALSO CLAIMED THAT THE APPELLANT'S SON IS ALSO EMPLOYED WITH TCI WHO RUNS THE HOUSEHOLD EXPENSES FOR HIMSELF AND HER MOTHER AND H E ALSO WITHDREW RS. 1,68,500/- AND THE INITIAL PAYMEN T OF RS. 5 LAKHS IN CASH WAS MADE OUT OF THE ACCUMULATED SAVINGS OF ENTIRE FAMILY. THE PLEA OF THE APPELLANT HAS BEEN CONSIDERED AND N OT FOUND ACCEPTABLE AS THIS IS A FRESH PLEA TAKEN BY T HE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDING S 5 THAT THE CASH IS OUT OF ACCUMULATED SAVINGS OF THE ENTIRE FAMILY INCLUDING HIS SON. DURING THE COURSE OF ASSESSMENT PROCEEDINGS HE HAS ONLY MENTIONED THE SAVING OF HIS INCOME AND PETTY SAVINGS MADE BY THE WIFE OUT OF HIS INCOME ONLY. IN THIS LIGHT, THIS FR ESH SUBMISSION THAT THE SOURCE OF RS. 5 LAKHS CASH BELO NGS TO HIS SON ALSO DESERVES TO BE REJECTED AS THE APPE LLANT HAS NEVER CLAIMED THAT HE HAS EVER TAKEN MONEY FROM HIS SON FOR THE INVESTMENT FOR THE PURCHASE OF THIS PROPERTY BEFORE AO. 6.9 FURTHER, THE DETAILS GIVEN BY THE APPELLANT OF THE WITHDRAWAL OF AMOUNT OF THE LAST 2 YEARS CLEARLY SUGGESTS THAT THE APPELLANT HAS EVEN WITHDRAWN RS. 5,000/- FOR HIS PERSONAL NEED. IF THIS CASH OF RS. 5 LAKHS WAS LYING IN HIS HOUSE, WHY HE WILL WITHDRAW SUCH PETTY AMOUNT FROM THE BANK. THE TRANSACTIONS GIVEN BY THE APPELLANT CLEARLY SHOWS THAT HE HAS GOOD BANKING HA BIT AND NO PRUDENT PERSON WILL KEEP CASH OF RS. 5 LAKHS IN HIS HOUSE FOR ANY EMERGENCY IN THE PRESENT SCENARIO WHERE THE MONEY CAN BE WITHDRAWN FROM THE ATM AND THE PAYMENTS ALSO CAN BE MADE THROUGH CHEQUE, DEBIT CARD, CREDIT CARD, INTERNET ETC. FURTHER, THIS IS A LSO RELEVANT THAT THE ALMOST ENTIRE WITHDRAWAL OF THE L AST 2 YEARS HAVE BEEN CLAIMED BY THE APPELLANT AS HIS SAV INGS THEN WHAT HAPPENED FOR HIS HOUSEHOLD EXPENSES AND FROM WHERE THESE HAVE BEEN MET HENCE, CLEARLY THESE SUBMISSIONS ARE AN AFTERTHOUGHT AND GIVEN BY THE APPELLANT WHEN THE CLINCHING EVIDENCE OF HIS PAYMEN T IN CASH OF RS. 5 LAKHS WAS RECOVERED BY THE DEPARTMENT DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS FORM COSMO GROUP. 6 6.10 APPARENTLY THE WITHDRAWALS FROM THE BANK ACCOU NT IS MADE FOR MEETING THE EXPENSES AND NOT FOR KEEPIN G THE MONEY AT HOUSE. HENCE, THE EXPLANATION OF THE APPELLANT THAT CASH OF RS. 5 LAKHS IS DEPOSITED OUT OF SAVINGS IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENC E AND AGAINST THE PREPONDERANCE O(PROBABILITY AND DESERVES TO BE REJECTED. THE HON'BLE SUPREME COURT IN THE FOLLOWING CASES HAS HELD THAT TAX AUTHORITIES S HOULD TAKE INTO ACCOUNT HUMAN PROBABILITIES IN CONSIDERIN G THE EVIDENCES PRODUCED BY THE ASSESSEE. IN THE CASE OF DURGA PRASAD MORE 82 ITR 540 HON'BLE SUPREME COURT HAS HELD THAT SURROUNDING CIRCUMSTANC ES AND HUMAN PROBABILITIES SHOULD NOT BE IGNORED BY TH E TAXING AUTHORITIES AND OBSERVED IN PARA 8 AND 13 AS UNDER :- 8. IT IS TRUE THAT AN APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL PARTY WHO RELIES ON A RECITAL IN A DEED AS TO ESTABLISH THE TRUTH OF THOSE RECITALS, OTHERWISE IT WILL BE VERY EASY TO MAKE SELF-SERVING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APPARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE 7 DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS. 13 ......SCIENCE HAS NOT YET INVENTED ANY INSTRUMENT TO TEST THE RELIABILITY OF THE EVIDENCE PLACED BEFORE A COURT OR TRIBUNAL. THEREFORE, THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES.' IN THE CASE OF SUMATI DAYAL 214 ITR 801 HON'BLE SUPREME COURT HAS AGAIN GIVEN THE IMPORTANCE OF HUMAN PROBABILITY AND HELD THAT 'THE MAJORITY OPINI ON AFTER CONSIDERING SURROUNDING CIRCUMSTANCES AND APPLYING THE TEST OF HUMAN PROBABILITIES HAD RIGHTL Y CONCLUDED THAT THE APPELLANT'S CLAIM ABOUT THE AMOU NT BEING HER WINNING FROM RACES, WAS NOT GENUINE. IT C OULD NOT BE SAID THAT THE EXPLANATION OFFERED BY THE APP ELLANT IN RESPECT OF THE SAID AMOUNTS HAD BEEN REJECTED UNREASONABLY AND THAT THE FINDING THAT THE SAID AMO UNTS WERE INCOME OF THE APPELLANT FROM OTHER SOURCES WAS NOT BASED ON EVIDENCE.' IN THE CASE OF ME DOWELL & CO. 1541TR 148 HON'BLE SUPREME COURT HAS HELD THAT 'SO FAR AS THE CONTENTI ON THAT IT IS OPEN TO EVERYONE TO SO ARRANGE HIS AFFAI RS AS TO REDUCE THE BRUNT OF TAXATION TO THE MINIMUM, WAS CONCERNED, THE TAX PLANNING MAY BE LEGITIMATE PROV IDED IT IS WITHIN THE FRAMEWORK OF LAW. COLOURABLE DEVIC ES CANNOT BE PART OF TAX PLANNING AND IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IT IS HONOUR ABLE TO AVOID THE PAYMENT OF TAX BY RESTORING TO DUBIOUS 8 METHODS. IT IS THE OBLIGATION OF EVERY CITIZEN TO P AY THE TAXES HONESTLY WITHOUT RESORTING TO SUBTERFUGES. CO URTS ARE NOW CONCERNING THEMSELVES NOT MERELY WITH THE GENUINENESS OF A TRANSACTION, BUT WITH THE INTENDED EFFECT OF IT FOR FISCAL PURPOSES. NO ONE CAN NOW GE T AWAY WITH A TAX AVOIDANCE PROJECT WITH THE MERE STATEMEN T THAT THERE IS NOTHING ILLEGAL ABOUT IT.' 6.11 IN THIS LIGHT, I HAVE NO REASON TO INTERFERE I N THE DECISION OF THE AO AND THE ADDITION OF RS. 5 LAKHS M ADE BY THE AO U/S. 69 OF THE ACT DESERVES TO BE CONFIRME D. 5.1 AFTER GOING THROUGH THE FINDINGS OF THE LD. CIT (A), I DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER, HENCE, I UPHOLD TH E WELL REASONED FINDING OF THE LD. CIT(A) AND DISMISS THE GROUND RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON 04/03/2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 04/03/2020 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES