Dr. S.K. Dhawan, Gurgaon V. ITO, New Delhi

ITA 4955/DEL/2011

• Counselvise Citation: 495520114 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 13-04-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 08-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: ASHOK MALIK
• Keywords: Unexplained expenditure; Additional evidence; Competent authority
• Section: 69C; 142(1); 133(6); 147; 131; 69; 148

Judgement Text

ITA NO. 4955/ DEL/ 2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI H.S. SIDHU , JUDICIAL MEMBER I.T.A.NO. 4 955 /DEL/201 1 A.Y. : 200 2 - 0 3 DR. S.K. DHAWAN, F - 160, OMEX SECTOR - 56, SUSHANT LOK, PHASE - II, GURGAON (PAN: AGJPD9094N) VS. INCOME TAX OFFICER, WARD 37(2), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ASHOK MALIK, FCA DEPARTMENT BY : SH. BRR KUMAR, SR. DR DATE OF HEARING : 13 - 0 4 - 201 5 DATE OF ORDER : 2 4 - 0 4 - 201 5 ORDER PER H.S. SIDHU : J M THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED O RDER DATED 05 / 9 /20 1 1 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXVIII, N EW DELHI ON THE FOLLOWING GROUNDS: - 1 . THE LEARNED CIT(A) HAS GROSSLY ERRED ON THE FACTS OF THE CASE AND IN LAW IN UPHOLDING THAT THE ITO HAS NOT ERRED IN LAW TO ASSUME JURISDICTION U/S. 147 OF THE INCOME TAX ACT, 1961 AND THE NOTICE ISSUED U/S. 148 IS VALID. 2. THE LD. CIT(A) HAS GROSSLY E RRED ON THE FACTS OF THE CASE AND IN LAW IN UPHOLDING THAT THE REOPENING OF THE ASSESSMENT U/S. 147 WITHOUT ITA NO. 4955/ DEL/ 2011 2 RECORDING THE REASON OF REOPENING AND ISSUING OF NOTICE U/.S. 148 OF THE INCOME TAX ACT IN THE ORDER SHEET IS VALID. 3. THE LD. CIT(A) HAS GROSSLY ERRED ON THE FACTS OF THE CASE AND IN LAW IN UPHOLDING THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED EXPENDITURE NOT SUPPORTED BY ANY EVIDENCE BUT ON PRESUMPTION AMOUNTING TO RS. 34,13,000/ - . 4. THE APPELLANT SEEKS LEAVE TO ADD OR TO AMEND THE FOR EGOING GROUNDS OF APPEAL IF IT BECOMES NECESSARY TO DO SO IN THE INTEREST OF JUSTICE. 2. THE FACTS IN BRIEF ARE THAT T HE ASSESSMENT IN THIS CASE WAS REOPENED U/S. 147 AND NOTICE U/S. 148 WAS ISSUED ON 31.3.2009 AFTER OBTAINING NECESSARY SANCTION OF THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 37, NEW DELHI, AND DULY SERVED UPON THE ASSESSEE. THE COUNSEL OF THE ASSESSEE VIDE LETTER DATED 20.4.2009 SUBMITTED A PHOTOCOPY OF ACKNOWLEDGEMENT OF HAVING FILED THE INCOME TAX RETURN BY THE ASSESSEE FOR THE AY 2 002 - 03 DECLARING INCOME OF RS. 1,63,480/ - VIDE ACKNOWLEDGEMENT NO. 2318 ON 30.7.2002 BE TREATED TO BE FILED IN COMPLIANCE TO NOTICE ISSUED U/S. 148. THE ASSESSMENT IN THIS CASE WAS REOPENED ON RECEIPT OF TEP FROM INVESTIGATION WING, NEW DELHI, AND AFTER RECORDING REASONS TO BELIEVE THAT THE ASSESSEE HAS MADE AN EXPENDITURE AMOUNTING TO RS. 34,13,300/ - WHICH IS CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE YEAR UNDER CONSIDERATION. NOTICES U/S. 143(2) & 142(1) WERE ISSUED ON 24.9.2009 FIXING THE CASE F OR HEARING ON 30.9.2009. NONE ATTENDED ON 30.9.2009. ON 16.10.2009, ASSESSEE S COUNSEL ATTENDED AND FILED A LETTER DATED 1.10.2009 REQUESTING FOR INSPECTION OF RECORD. ITA NO. 4955/ DEL/ 2011 3 THE ASSESSEE S COUNSEL ATTENDED ON 19.11.2009 ALONGWITH RECEIPT OF INSPECTION CHARGES PAID AND FILE WAS INSPECTED BY HIM ON 19.11.2009. NOTICES U/S. 143(2) & 142(1) ALONGWITH QUESTIONNAIRE WERE ISSUED ON 24.11.2009 FIXING THE CASE FOR HEARING ON 7.12.2009 AND WAS SPECIFICALLY ASKED FOR THE DETAILS OF EXPENSES INCURRED ON THE MARRIAGE CE REMONY AND OTHER CEREMONIAL FUNCTION OF HIS DAUGHTER DURING THE YEAR UNDER CONSIDERATION WITH SOURCE AND NECESSARY EVIDENCE. THE NOTICE U/S. 148 WAS COMMUNICATED TO THE ASSESSEE VIDE AO S LETTER DATED 22.12.2009. THE ASSESSEE S COUNSEL ATTENDED THE HE ARING ON 24.12.2009 AND FURNISHED A LETTER DATED 24.1.22009. THE ASSESSEE HAS NOT FURNISHED THE DOCUMENTARY EVIDENCE WITH REGARD TO THE EXPENDITURE ON MARRIAGE CEREMONY OF HIS DAUGHTER. HE ONLY SUBMITTED THAT THE EXPENDITURE OF MARRIAGE OF HIS DAUGHTER WAS INCURRED BY HIS MOTHER IN LAW LATE. MRS. JANAK DULARI PURI, THE PENSION HOLDER FROM THE ARMY ALSO HAVING AGRICULTURAL LAND. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE WAS PROVIDED THE COPY OF FIR AND COPIES OF LETTERS ISSUED U/S. 133(6) OF THE I.T. ACT, 1961 TO HOTEL QUTAB, M/S TAMMANA FARMS AND M/S SAPNA GARDENS, WHEREIN THE MARRIAGE CEREMONIES WERE ALLEGED TO BE PERFORMED IN THE ABOVE SAID HOTEL AND FARM HOUSES. IN THE FIR LODGED BY MRS. JYOTI KAPOOR DAUGHTER OF THE ASSESSSEE, SHE HAS STATED THAT THE MARRIAGE AND OTHER CEREMONIAL FUNCTIONS WERE PERFORMED AT THE ABOVE PLACES AND HUGE EXPENDITURE WAS MADE BY HER FATHER. THE DETAILS OF THE EXPENDITURE OF RS. 34,13,000/ - IS AS UNDER: - CEREMONY NAME DATE VENUE AMOUNT INCURRED ROKA CEREMONY 23.11.2011 HOTEL QUTAB RS. 1,89,000/ - SAGAN CEREMONY 13.2.2002 SAPNA GARDEN RS. 3,26,000/ - MARRIAGE CEREMONY 15.2.2002 TAMMANA FARMS RS. 25,48,000/ - CASH FOR VISA RS. 40,000/ - ITA NO. 4955/ DEL/ 2011 4 APPROXIMATE EXPENSES WHICH HAVE BEEN MET / INCURRED ON THEIR OWN DRESS /FOOD / CEREMONIES TAKEN @20% OF TOTAL EXPENDITURE RS. 3,10,000/ - TOTAL RS. 34,13,000/ - 2.1 THE AO HAS OBSERVED THAT ASSESSEE HAS PERFORMED THE MARRIAGE OF HIS DAUGHTER AND I NCURRED AN EXPENDITURE OF RS. 34,13,000/ - . THE ASSESSEE HAS SUPPRESSED MATERIAL RELEVANT FACTS OF THE CASE AND NOT FURNISHED THE SATISFACTORY EXPLANATION REGARDING CEREMONIAL FUNCTIONS AND MARRIAGE CEREMONY PERFORMED IN THE FIVE STAR QUTAB HOTEL AND FA RM HOUSES ON ONE PRETEXT OR THE OTHER. THE AO BY RELYING UPON THE CASE LAW OF MADAN LAL VS. CIT [1984] 149 ITR 533(DELHI) AND IN THE ABSENCE OF SATISFACTORY EXPLANATION , THE EXPENDITURE AMOUNTING TO RS. 34,13,000/ - WAS TREATED AS UNEXPLAINED EXPENDITU RE U/S. 69C OF THE I.T. ACT, 1961 AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE FOR THE ASSTT. YEAR 2002 - 03 VIDE HIS ORDER DATED 29.12.2009 PASSED U/S. 143(3)/147 OF THE I.T. ACT, 1961. 3. BEING AGGRIEVED WITH THE ASSESSMEN T ORDER DATED 29 . 12. 2009 , ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 28 . 9 .201 1 HAS AFFIRMED THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. 4 . NOW THE ASSESSEE IS AGGRIEVED AGAINST THE IMPUGNED ORDER AND FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESSEE REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL AND HE STATED THAT THE ASSESSING OFFICER HAS WRONGLY ASSUM ED THE JURISDICTION U/S. 147 ITA NO. 4955/ DEL/ 2011 5 OF THE I.T. A CT, WITHOUT RECORDING THE REASONS OF REOPENING AND WRONGLY ISSUED A NOTICE U/S. 148 OF THE I.T. ACT. HE REQUESTED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY BE DELETED. TO SUPPORT HIS CONTENTION, HE HAS ALSO FILED PAPER BOOK CONTAINING PAGES 1 TO 83 HAVING THE COPY OF SUMMON ISSUED U/S. 131 DT. 6.12.07; COPY OF LETTER WRITTEN TO ITO DT. 10.6.08; COPY OF NOTICE U/S. 148 DT. 31.3.09; COPY OF LETTER WRITTEN TO ITO DT 20.4.09; COPY OF RETURN FURNISHED DT. 30.7.02 AND COPY OF NOTICE ISSUED U/S. 143(2) & 142(1) DT. 24.9.09 AND 24.11.09; COPY OF LETTER DATED 16.1.2009 BY ITO; COPY OF HAND WRITTEN ORDER SHEET AND TYPED COPY OF THE SAME; COPY OF FIR FILED BY THE DAUGHTER OF THE ASSESSEE DATED 7.5.02 ETC. AND HE REQUESTED THAT A DDITION IN DISPUTE MAY BE DELETED. 6. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS AVAILABLE WITH US ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES ON THE ISSUE IN GROUND NO. 1 & 2 AND WE ARE OF THE CONSIDERED THAT IT IS AN ADMITTED FACT THAT THE ASSESSEE IS A DOCTOR BY PROFESSION AND HAS BEEN FILING THE RETURN OF INCOME RE GULARLY AND FOR THE ASSESSMENT YEAR IN DISPUTE , H E HAS FILED HIS RETURN ON 30.7.2002 WITH THE INCOME TAX OFFICER, WARD - 37(4). THE ASSESSMENT IN THE CASE OF THE ASSESSEE WERE REOPENED ON THE RECEIPT OF TEP INFORMATION RECEIVED FROM THE INVESTIGATION WING, NEW DELHI THAT THE ASSESSEE HAD MADE THE EXPENDITURE AMOUNTING TO RS. 34,13,000/ - WHICH IS CHARGEABLE TO TAX AS ESCAPED ASSESSMENT FOR THE YEAR UNDER CONSIDERATION. NOTICE U/S. 143(2) AND 142(1) WERE ISSUED TO THE ASSESSEE ON 24.9.2009 FIXING THE CASE FOR HEARING ON 30.9.2009. ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE ATTENDED. IN RESPONSE TO THE NOTICE ON 6.10.2009 , SH VK SABHARWAL ITA NO. 4955/ DEL/ 2011 6 ATTENDED AND FILED A LETTER DATED 1.10.2009 AND REQUESTED FOR INSPECTION OF RECORD WHICH WAS ACCEPTED BY HIM ON 19.11 .2009. LD. COUNSEL OF THE ASSESSEE ALSO REQUESTED TO SUPPLY THE CERTIFIED COPY OF THE CERTAIN DOCUMENTS WHICH WAS SENT TO THE ASSESSEE VIDE OFFICE LETTER DATED 16.12.2009 BY SPEED POST. THE ASSESSEE WAS SPECIFICALLY ASKED BY A QUESTIONNAIRE DATED 24.11. 2009 FOR THE DETAILS OF THE EXPENDITURE INCURRED ON THE MARRIAGE CEREMONY AND THE OTHER CEREMONIAL FUNCTION OF HIS DAUGHTER DURING THE YEAR UNDER CONSIDERATION WITH SOURCE AND NECESSARY EVIDENCE. ON 22.12.2009 COUNSEL ATTENDED AND FILED A LETTER DATED 21. 12.2009 ASKING TO ADJUDICATE THE LEGAL ISSUE TO INITIATE PROCEEDINGS UNDER SECTION 147 OF THE ACT. NOTICE U/S. 148 WAS COMMUNICATED TO THE ASSESSEE VIDE LETTER DATED 24.12.2009 WHICH THE AO HAS REPRODUCED AT PAGES 2 TO 4 OF THE ASSESSMENT ORDER. IN SPITE OF THE SAME ASSESSEE HAS NO T FURNISHED THE DOCUMENTARY EVIDENCE WITH REGARD TO EXPENDITURE OF MARRIAGE CEREMONY OF HIS DAUGHTER AND HE ONLY SUBMITTED IN HIS LETTER THAT THE EXPENDITURE OF MARRIAGE OF HIS DAUGHTER WAS INCURRED BY HIS MOTHER IN LAW LATE SM T. JANAK DULARI PURI, THE PENSION HOLDER FROM THE ARMY AND ALSO HAVING AGRICULTURAL LAND. THE AO HAS ALSO PROVIDED A COPY OF FIR AND COPIES OF LETTER ISSUED UNDER SECTION 133(6) OF THE I.T. ACT , TO HOTEL QUTAB; M/S TAMANA FARMS AND M/S SAPNA GARDEN S WHER EIN THE MARRIAGE CEREMONY WERE ALLEGED LY PERFORMED IN THE ABOVE SAID HOTEL AND FARM HOUSE S . IN THE FIR HIS DAUGHTER JYOTI KAPOOR HAS STATED THAT HER MARRIAGE CEREMONIAL EVIDENCE OF HER MARRIAGE WERE PERFORMED AT THE ABOVE PLACES AND HUGE EXPENDITURE WAS MADE BY HER FATHER. AFTER GIVING OPPORTUNITY TO THE ASSESSEE, THE ASSESSING OFFICER IN THE ABSENCE OF ANY EVIDENCE MADE ADDITION IN DISPUTE AND COMPLETED THE ASSESSMENT U/S. 143(3)/147 OF THE I.T. ACT. ITA NO. 4955/ DEL/ 2011 7 7.1 THE QUESTION OF VALIDITY OF NOTICE U/S. 14 8 OF THE I.T. ACT , LD. FIRST APPELLATE AUTHORITY AT PAGE NO. 32 OF HIS ORDER STATED THAT THE AO IN HIS ASSESSMENT ORDER STATED THAT THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF AO FOR WHICH HE IS NOT ENTITLED AS PER SECTION 124 OF THE I.T. ACT, HOWEV ER, THE ASSESSEE IN HIS REJOINDER HAS STATED THAT JURISDICTION OF THE AO HAS NOT BEEN CHALLENGED AND THE JURISDICTION IS NOT IN DISPUTE. THIS VERSION HAS BEEN MENTIONED IN PARA NO. 13 OF THE IMPUGNED ORDER. AS PER THE RECORD THE NOTICE U/S. 148 WAS ISSUED ON 31.3.2009, AFTER OBTAINING NECESSARY APPROVAL OF THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 37, NEW DELHI AND IT WAS DULY SERVED UPON THE ASSESSEE. SUBSEQUENTLY, AS PER LETTER DATED 20.4.2009 THE ASSESSEE SUBMITTED THAT HIS RETURN OF I NCOME HAS ALREADY BEEN FILED FOR THE ASSTT. YEAR 2003 - 04 ON 30.7.2012 DECLARING INCOME OF RS. 1,63,480/ - . IN OUR CONSIDERED OPINION, AO HAD INITIATED THE PROCEEDINGS U/S. 147 OF THE I.T. ACT ON THE BASIS OF THE DOCUMENTARY EVIDENCE I.E. FIR FILED BY H IS DAUGHTER AND TEP RECEIVED FROM THE INVESTIGATION WING, WHICH WAS CONFRONTED TO THE ASSESSEE AND ASSESSEE HIMSELF ADMITTED AND NOT PRESSED ON THE ISSUE OF INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE I.T. ACT. IN OUR CONSIDERED OPINION, THE AO HAS RIGHTLY ISSUED NOTICE U/S. 148 OF THE I.T. ACT, AFTER MAKING NECESSARY INQUIRY, IN VIEW OF THE TEP RECEIVED FROM THE INVESTIGATION WING, NEW DELHI AND AFTER BEING SATISFIED FOUND THAT IT IS A CASE WHERE INCOME HAS ESCAPED ASSESSMENT . HE HAS ALSO TAKEN DUE APPROVAL FROM THE COMPETENT AUTHORITY, AFTER APPLYING THEIR MIND , THE NOTICE IN DISPUTE HAS BEEN ISSUED TO THE ASSESSEE. HE HAS ALSO RECORDED THE REASONS FOR SUCH ACTION. THE AO HAS GIVEN HIS CLEAR CUT FINDING AND SATISFIED HIMSELF BEFORE ISSUING OF NOTICE U/S. 148 OF THE I.T. ACT. THE REASONS WERE ALSO PROVIDED TO THE ASSESSEE WHICH ARE NOT BASED ON MERE SUSPICION AND IS ON THE BASIS OF VARIOUS DOCUMENTARY EVIDENCE. THERE FORE, IN OUR CONSIDERED OPINION, THE LD. FIRST APPELLATE ITA NO. 4955/ DEL/ 2011 8 AU THORITY HAS ALSO APPRECIATED THE RELEVANT PROVISIONS AS WELL AS THE FACTS OF THE CASE AND RIGHTLY UPHELD THE ISSUANCE OF NOTICE U/S. 148 OF THE I.T. ACT IN THE CASE OF THE ASSESSE. WE ARE OF THE CONSIDERED VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE WEL L REASONED ORDER PASSED BY THE LD. CIT(A) ON THE FINDING GIVEN BY HIM ON THE ISSUE OF ASSUMPTION OF JURISIDCITON U/S. 147 OF THE I.T. ACT AND NOTICE U/S. 148 OF THE ACT WHICH IS VALID AND AS PER LAW. THEREFORE, THE ISSUE INVOLVED IN GROUND NO. 1 AND 2 IS DISMISSED. 8 . W ITH REGARD TO ISSUE INVOLVED IN GROUND NO. 3 REGARDING ADDITION OF RS. 34,13,000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED EXPENDITURE MADE ON THE MARRIAGE CEREMONY OF THE ASSESSEE S DAUGHTER UNDER SECTION 69 OF THE I.T. ACT IS CONCERNED, WE FIND THAT THE AO IN HIS REMAND REPORT HAS STATED THAT THE MAIN ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF RS. 34,13,000/ - ON THE MARRIAGE CEREMONIES OF THE ASSESSEE S DAUGHTER U/S. 69C OF THE I.T. ACT, 1961. THE AO HAS OBSERVED THAT TH E ASSESSEE HAS SUPPRESSED THE MATERIAL RELEVANT TO THE FACTS OF THE CASE AND NOT FURNISHED THE SATISFACTORY EXPLANATION REGARDING CEREMONIAL FUNCTIONS AND MARRIAGE CEREMONY PERFORMED IN FIVE STAR QUTAB HOTEL AND FARM HOUSES ON ONE PRETEXT OR THE OTHER. REL YING IN THE CASE OF MADAN LAL VS. CIT [1984] 149 ITR 533 (DELHI) . HE ADDED AMOUNT OF RS. 34,13,000/ - AS UNEXPLAINED EXPENDITURE U/S. 69C OF THE I.T. ACT, 1961 . L D. CIT(A) OBSERVED THAT ASSESSEE SOUGHT SYMPATHY AS HIS DAUGHTER WAS VICTIM OF DOWRY HARASSMENT WHICH RESULTED IN DIVORCE BY MUTUAL CONSENT. LD. CIT(A) FURTHER OBSERVED THAT HON BLE HIGH COURT OF DELHI IN THEIR WISDOM, AS PER MUTUAL CONSENT, HAD AWARDED RS. 7,00,000/ - TO BE PAID TO ASSESSEE DAUGHTER IN CONSIDERATION OF THE TOTAL EXPENDITURE INCURRED BY THE ASSESSEE, HIS FAMILY AT THE TIME OF MARRIAGE. H E OBSERVED THAT EXPENDITURE INCURRED ON MARRIAGE CEREMONIES WAS MUCH MORE THAN ITA NO. 4955/ DEL/ 2011 9 RS. 7,00,000/ - BEING THE AMOUNT AWARDED BY THE HON BLE HIGH COURT OF DELHI. WE FIND T HAT THE LD. CIT(A) HAS NOTED THAT THE AO DURING THE COURSE OF REMAND PROCEEDINGS HAS MADE FURTHER INQUIRIES RELATED TO UNEXPLAINED, UNACCOUNTED EXPENDITURE MADE BY THE ASSESSEE FOR THE MARRIAGE OF HIS DAUGHTER TO THE TUNE OF RS. 34,13,000/ - . THEREFORE, H E CONCLUDED THAT THE FACTS OF THE CASE AND THE FINDINGS OF THE AO PROVE THAT SUCH EXPENDITURE WAS ACTUALLY INCURRED BY THE ASSESSEE. LD. CIT(A) HAS ALSO NOTED THAT AS PER FACT OF THE CASE AN FIR WAS FILED BY THE DAUGHTER OF THE ASSESSEE, CLEARLY CLINCH ES THE ISSUE OF HUGE EXPENDITURE INCURRED BY THE ASSESSEE FOR THE WEDDING OF HIS DAUGHTER. HENCE, LD. CIT(A) WAS INCLINED TO AGREE WITH THE FINDING OF THE AO AND SUSTAINED THE ADDITION OF RS. 34,13,000/ - U/S. 69C OF THE I.T. ACT. AFTER GOING THROUGH THE FINDING GIVEN BY THE REVENUE AUTHORITIES AND THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE BEFORE THEM, WE ARE OF THE VIEW THAT AO HAS NOT BROUGHT ON RECORD ANY EVIDENCE ABOUT THE INCURRING OF THESE EXPENDITURE OF RS. 34,13,000/ - AND HAS ONLY MADE ADDITI ON ON THE BASIS OF THE INFORMATION RECEIVED FROM THE INVESTIGATION WING. HE CITED THE DECISION OF DELHI TRIBUNAL GIVEN IN THE CASE OF ELECTRIC CHAMBER PVT. LTD. VS. LAC 26 ITD 236 (DELHI), AND ALSO THE CASE OF ARUNA JAIN VS. DCIT CIRCLE 17(1) , 21 SOT 218, WHERE THE BENCH HAS HELD THAT, ASSESSEE SHOULD NOT BE DISQUALIFIED FROM PROVIDING EVIDENCES MERELY ON THE GROUND THAT THE EVIDENCES WERE NOT FILED BEFORE THE LOWER AUTHORITY. THE A.O. IN HIS REMAND REPORT HAS STATED THAT THE PRINCIPAL OFFICER OF HOTEL Q UTAB HAS STATED THAT THE HOTEL QUTAB WAS ACQUIRED BY EDEN PARK HOTELS PVT. LTD., SINCE THE REQUISITE BILL BOOKS / DOCUMENTS PERTAINS TO THE PERIOD WHEN QUTAB HOTEL WAS UNDER ADMINISTRATIVE CONTROL OF INDIA TOURISM DEVELOPMENT CROP. LTD. AND THERE ARE VERY R EMOTE CHANCES TO LAY HAND ON THESE, NINE YEARS OLD DOCUMENTS. SO, THEY SEEK THE REASONABLE TIME FOR LOCATING DOCUMENTS AND IN THE ABSENCE OF THESE DETAILS BEING RECEIVED HE ITA NO. 4955/ DEL/ 2011 10 HAD HELD THAT THE EXPENDITURE INCURRED IS NOT VERIFIABLE AND IS OF THE VIEW THAT AS THE ASSESSEE FAILS TO FILE THE ORIGINAL RECEIPTS FOR VERIFICATION, SO GENUINENESS OF EXPENDITURE OF ROCA CEREMONY COULD NOT BE VERIFIED HE HAD NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT ASSESSEE HAD SPENT RS.1,89,000 / - AS ALLEGED BY HIM IN THE ASSES SMENT ORDER. 8.2 WE FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE ASSESSEE S COUNSEL THAT ASSESSEE HAS ONLY SPENT RS . 36,087/ - ON ROCA CEREMONY AGAINST RS. 1,89,000 / - ALLEGED TO HAVE BEEN SPENT BY THE ASSESSEE. THE A.O. HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT THE ASSESSEE HAD INCURRED EXPENDITURE OF RS. 1,89,000 / - SO, NO ADDITION U/S 69C CAN BE MADE UNTIL AND UNLESS THERE IS ANY MATERIAL WITH THE DEPARTMENT TO PROVE THAT THE ASSESSEE HAS INCURRED THAT AMOUNT, ON THE CONTRARY THE APPELLAN T HAS SUBMITTED HOTEL QUTAB'S BILL NO. 0001444 DATED 23.11.2001 AND RECEIPT ISSUED BY HOTAL QUTAB BEARING NO. 7167 DATED 6.11.2001 AND 1055 DATED 24.11.2001 FOR RS. 31,087 / - & RS. 5000 / - THESE RECEIPTS ARE BY THE GOVERNMENT'S HOTEL AND THE ASSESSEE HAS AL SO GIVEN THE SOURCE OF EXPENDITURE THAT IS HIS WIFE MRS. VINOD DHAWAN HAD WITHDRAWN RS. 70,000 / - FORM HER BANK ACCOUNT, OUT OF THAT RS. 31,087/ - WAS PAID 23RD NOVEMBER, 2001, AND RS. 5000 / - PAID EARLIER OUT HER SAVING. THE APPELLANT HAS FULLY EXPLAINED THE AMOUNT SPENT BY THE ASSESSEE ON ROCA CEREMONY WHERE 100 PERSON PARTICIPATED. A.O. HAS NOT STATED ANYWHERE IN HIS ORDER OR IN THE REMAND REPORT THAT THE ITA NO. 4955/ DEL/ 2011 11 RECEIPTS ARE FABRICATED OR NOT TRUE. SO, THERE IS NO JUSTIFICATION WHATSOEVER IN MAKING ADDITION OF RS. 1,89,000 / - IN THE INCOME OF THE ASSESSEE ON THIS ACCOUNT. THEREFORE, WE DELETE THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) AND ACCEPT THE CONTENTION OF THE ASSESSEE. (B) SECONDLY WITH REGARD TO EXPENDITURE ON SAGAN CEREMONY, IT IS ALLEGED THAT AS PER THE TEP REPORT THAT RS. 3,26,000 / - WERE SPENT ON SAGUN CEREMONY. THE A.O. HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT, ON THE CONTRARY THE APPELLANT HAD PROVED THAT THE ACTUAL AMOUNT SPENT ON SHAGUN CEREMONY AT SAPNA RESTAURANT COMPLE X WAS RS. 94,800 / - AND IN SUPPORT OF THAT, RECEIPTS BEARING 643 DATED 22.12.2001 FOR RS. 5,000 / - AND A RECEIPT DULY SIGNED BY SAPNA GARDEN INDICATING RECEIPT OF RS. 89,800 / - WAS FURNISHED. THE SOURCES OF THE EXPENSES WAS ALSO EXPLAINED AND SAPNA GARDEN AUT HORITIES HAD ADMITTED THAT FUNCTION WAS HELD AND PAYMENT OF RS.94,800 / - WAS MADE FOR THAT FUNCTION ONLY AS STATED BY A.O. IN HIS REMAND REPORT. THE A.O HAS STATED THAT BESIDES THIS NO OTHER EVIDENCES WERE FURNISHED, WE REALLY FAIL TO UNDERSTAND WHAT OTHER EVIDENCES IS REQUIRED TO BE FURNISHED. A.O. HAD FURTHER STATED THAT THE RECEIPT NO. 643 DATE OF BOOKING HAS BEEN SHOWN AS 13.02.2001, IN THIS RE GARD, WE FIND THAT IN ADVERTENTLY YEAR 2001 INSTEAD OF 2002 WERE MENTIONED BY SAPNA GARDEN AS NOBODY WILL ISSUE T HE RECEIPT ON 22ND DECEMBER 2001 FOR THE FUNCTION TO BE HELD ON PRIOR DATE I.E. 13TH FEBRUARY 2001 WHICH WAS MENTIONED, IN THE RECEIPT THE FACTS THAT THE FUNCTION HELD AT SAPNA GARDEN AND A SSESSEE HAD PAID RS. 94,800 / - WAS ALSO ADMITTED BY THEM. THE ASSESS EE HAS WHOLLY DISCHARGED THE ONUS LIES ON HIM WITH REGARD TO INCURRING OF THE EXPENDITURE, THE A.O. HAS NOT DISPUTED IN HIS REMAND REPORT ABOUT ITA NO. 4955/ DEL/ 2011 12 THE SOURCE OF THE CORRECTNESS OF THE STATEMENT OF SAPNA GARDEN. SO, THERE IS NO JUSTIFICATION WHATSOEVER IN MAKI NG THESE ADDITION IN THE INCOME OF THE ASSESSEE. THEREFORE, WE DELETE THE ADDITION IN DISPUTE BY ACCEPTING THE EXPLANATION OF THE ASSESSEE. (C) AS REGARD TO MARRIAGE EXPENSES - TAMANNA FARMS (SATKAR CATERERS) RS. 25,48,000/ - - LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE A.O. HAS MADE ADDITION OF RS. 25,48,000 / - AS MARRIAGE EXPENSE IN THE INCOME OF THE ASSESSEE AS PER THE INFORMATION RECEIVED BY HIM FROM THE INVESTIGATION WING. THE ASSESSEE HAS FURTHER SUBMITTED THAT HE HAS INCURRED RS. 1,61,000/ - ON MARRIAGE CEREMONY, WHICH WAS HELD IN TAMANNA F ARM . IN SUPPORT OF THAT THE QUOTATION OF SATKAR TENT HOUSE WAS ALSO FURNISHED, SATKAR TENT HOUSE HAS ADMITTED THAT FUNCTION WAS HELD ON 15.02.2002 AND SUM OF RS. 47,280 / - WAS SPENT BY THE APPELLANT ON FEEDI NG ALONE AND THEY HAVE ADMITTED THAT THIS IS A PACKAGED DEAL FOR FOOD AND TENT ARRANGEMENT, AND THEY ARE NOT IN A POSSESSION OF THE RECORDS AT THE MOMENT EXCEPT THAT OF RS.47,280 / - . HOWEVER, WHEN THE ASSESSEE HAS STATED THAT HE HAS SPENT RS. 1,61,000/ - AN D IN SUPPORT COPIES OF THE RECEIPTS AND BILLS ETC . WERE FURNISHED AND SOURCE OF EXPENDITURE HAS BEEN EXPLAINED. SO, THE AO HAS ALSO NOT FOUND THAT THESE RECEIPTS ARE FALSE OR NOT VERIFIABLE. THERE IS NO JUSTIFICATION WHATSOEVER OF UPHOLDING THIS ADDITION BY A.O. 8.3 LD. COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT THE CIT(A) HAS NOT EVEN CONSIDERED THE RECOMMENDATION MADE BY THE A.O. IN HIS REMAND REPORT WHERE HE HAS CATEGORICALLY STATED THAT CASH FOR VISA AMOUNTING TO RS. 40,000 / - WAS INCURRED BY THE APPELLANT IN THE F.Y. 2002 - 03 RELATING TO ASSESSMENT YEAR 2003 - 04 AND NOT IN THE ASSESSMENT YEAR 2002 - 03. HE HAD STILL MADE THIS ADDITION WHCIHI S WRONG. ITA NO. 4955/ DEL/ 2011 13 8.4 AS REGARD TO THE MISC. EXPENSE OF RS. 3,10,000/ - INCURRED ON ACCOUNT OF DRESS, FOOD , CEREMON IES ETC. ACCORDING TO THE AO AND THE LD. FIRST APPELLATE AUTHORITY THE ASSESSEE HAS NOT FILED ANY EVIDENCE EXPLAIN ING THE SOURCE OF THESE EXPENSES. BUT ACCORDING TO THE IMPUGNED ORDER THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES REGARDING THE TOTAL EXPEN DITURE INCURRED ON ELECTRONICS AND OTHER MISC. ITEMS WHICH THE ASSESSEE HAS INCURRED ONLY TO THE EXTENT OF RS. 3,694/ - . FOR THAT THE ASSESSEE HAS FILED THE COPY OF BILLS AND CASH MEMOS OF MOST OF THE ITEMS WHICH HAVE BEEN VERIFIED. THE AO HAS NOT DOUBTED THE GENUINENESS OF THESE EXPENSES. IN OUR CONSIDERED OPINION, THE AO HAS WRONGLY MADE THE ADDITION WITHOUT ANY BASIS AND THE EXPLANATION OF THE ASSESSEE REGARDING THE MISC. EXPENSE S AMOUNTING TO RS. 3,694/ - WHICH IS SELF - EXPLANATORY AND IS ACCEPTED AND TH EREFORE, NO MORE ADDITION IS REQUIRED ON THIS ACCOUNT. 8.5 AS REGARDS THE EXPENSES ON JEWELRY, THE REVENUE AUTHORITY HAS MADE THE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF RS. 5,98,193/ - . THE ASSESSEE S CONTENTION REGARDING THESE EXPENSES ARE THAT THESE EXPENSES HAVE BEEN INCURRED FROM THE WITHDRAWAL OF THE BANK ACCOUNT OF THE ASSESSEE HIMSELF, HIS WIFE MRS. VINOD DHAWAN, HIS SON MANISH DHAWAN AND FROM THE JOINT ACCOUNT OF ASSESSEE HIMSELF AND HIS WIFE AND AMOUNT CONTRIBUTED BY LATE MRS. JANA K DULARI AND HIS FAMILY OUT OF HER AGRICULTURAL INCOME, PENSION AND LOANS AGAINST THE DEPOSITS. THE ASSESSEE HAS FILED THE EVIDENCE SUPPORTING HIS CLAIM I.E. THE BANK STATEMENT AND OTHER DETAILS REGARDING THE WITHDRAWAL FROM THE BANK ACCOUNT DURING THE PERIOD IN DISPUTE. THE AO HAD MADE THE ADDITION ON PRESUMPTION AND ASSUMPTION AND WITHOUT ANY BASIS. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ACCEPT THE EXPLANATION OF THE ASSESSEE WITH SUPPORTING DOCUMENTARY EVIDENCE WHI CH HAS NOT ITA NO. 4955/ DEL/ 2011 14 BEEN NEGA T ED BY THE REVENUE AUTHORITY , THEREFORE, THE ADDITION ON ACCOUNT OF JEWELLERY IS NOT SUSTAINABLE AND THE EXPLANATION OF THE ASSESSEE IS ACCEPTED. 8.6 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS DISCUSSED IN THE FORGOING PARAGRAPHS, IT IS PERTINENT TO MENTION HERE THAT THE DAUGHTER OF THE ASSESSE NAMELY JYOTI KAPOOR WAS A VICTIM OF DOWRY HARASSMENT BY HER IN - LAWS INCLUDING HER HUSBAND. SHE HAS ALSO LODGED FIR WHICH THE ASSESSEE HAS ATTACHED IN HIS PAPER BOOK PAGES 15 TO 20. THE FIR HAS BEEN REGISTERED BY SMT. JYOTI KAPOOR, D/O OF THE ASSESSEE UNDER SECTION 498A, 406, 506, 323/34 IPC ON 7.5.2002 AGAINST HER HUSBAND AND OTHER FAMILY MEMBERS. NO DOUBT THAT THE DAUGHTER OF THE ASSESSEE HAS WRITTEN THAT HER FAT HER HAS INCURRED A HUGE EXPENDITURE ON HER MARRIAGE, BUT SHE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE THAT HUGE EXPENDITURE HAS BEEN INCURRED BY HER FATHER, BEFORE THE POLICE AUTHORITIES. ASSESSEE BEING THE FATHER, ACCORDINGLY, REMAINED UNDER MEN TAL TENSION DURING THE DISPUTE BETWEEN HIS FAMILY AND THE FAMILY OF HER DAUGHTER IN LAW. WHEN THE DISPUTE ARISE BETWEEN BOTH THE PARTIES, IT IS VERY MUCH POSSIBLE TO FILE A COMPLAINT BY THE IN - LAWS CITED BY THE ASSESSEE S DAUGHTER AGAINST THE ASSESSE E FOR HER HARASSMENT AND THEY FILED THE COMPLAINT AGAINST THE ASSESSEE FOR UNEXPLAINED, UNACCOUNTED EXPENDITURE INCURRED BY THE ASSESSEE ON THE MARRIAGE OF HIS DAUGHTER. BUT THEY HAVE ALSO NOT PRODUCED ANY EVIDENCE SUPPORTING THE COMPLAINT MADE BY TH EM AGAINST THE ASSESSEE. THIS GENERALLY HAPPEN IN THE QUARREL IN THE MATRIMONIAL DISPUTE. LASTLY, BOTH THE PARTIES MUTUALLY SEEK DIVORCE AND THE HON BLE HIGH COURT OF DELHI HAS AWARDED RS. 7 LACS TO THE ASSESSEE S DAUGHTER ON ACCOUNT OF EXPENDITURE INC URRED BY THE ASSESSEE ON THE MARRIAGE OF HIS DAUGHTER. KEEPING IN VIEW OF THE ABOVE, MUTUAL DIVORCE GRANTED BY THE HON BLE DELHI HIGH COURT BY AWARDING RS. 7 ITA NO. 4955/ DEL/ 2011 15 LACS ON ACCOUNT OF MARRIAGE EXPENDITURE INCURRED BY THE ASSESSEE ON HER DAU GHTER S MARRIAGE , W E ARE OF THE CONSIDERED VIEW THAT WE ARE UNABLE TO HOLD THAT ASSESSEE HAS INCURRED MORE THAN RS. 7 LACS EXPENDITURE ON THE MARRIAGE OF HIS DAUGHTER FOR WHICH THE ASSESSEE HAS PRODUCED ALL THE NECESSARY EVIDENCE BEFORE THE REVENUE AUTHORITIES, WHICH HAS NO T BEEN PROPERLY APPRECIATED BY THEM. THE AO HAD MADE THE ADDITION OF RS. 34,13,000/ - UNDER SECTION 69 OF THE I.T. ACT WITHOUT ANY BASIS, BASED ON PRESUMPTION AND ASSUMPTION, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE DELETE THE ADDITION OF RS. 34,13,000/ - , WHICH WAS WRONGLY MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A). 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE O PEN C OURT ON 2 4 / 0 4 /20 1 5 . S D / - S D / - [ S.V. MEHROTRA ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 2 4 / 0 4 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES