Sh. Sandeep Wadhwa, New Delhi V. DCIT, New Delhi

ITA 496/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3557 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Section: 69C; 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND MS. SUCHITRA KAMBLE , JM ITA NO. 496/DEL/2015 : ASSTT. YEAR : 2009 - 1 0 SH. SANDEEP WADHWA, C/O M/S RRA TAXINDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049 VS DCIT, CIRCLE - 8, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AHPW8925D ASSESSEE BY : SH. SOMIL AGARWAL, ADV. & SH. DEEPESH GARG, ADV. REVENUE BY : SH. S. S. RANA, CIT DR DATE OF HEARING : 18 .01 .201 8 DATE OF PRONOUNCE MENT : 01 .02 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11. 12 .2014 OF LD. CIT(A ) - X XVI I , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED ASSESSMENT ORDER U/S 153A/1 43(3) WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT SERVING THE VALID NOTICES AS PER LAW AND WITHOUT RECORDING REQUISITE SATISFACTION AS PER LAW AND WITHOUT OBTAINING REQUISITE APPROVAL AS PER LAW AND WITHOUT COMPLYING WITH OTHER MANDATORY CONDITION S UNDER THE ACT AND WITHOUT SERVING THE MANDATORY NOTICES U/S 143(2) AND 142(1) OF INCOME TAX ACT, 1961. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD, CIT(A) HAS ERRED IN LAW AND ON FACTS IN ITA NO . 496 /DE L/2015 SANDEEP WADHWA 2 CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.2,45,000/ - ON ACCOUNT OF FOREIGN TRAVEL U/S 69C OF INCOME TAX ACT, 1961. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.2,45,000/ - ON ACCOUNT OF FOREIGN T RAVEL IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN ANY CASE IMPUGNED ADDITION IS BEYOND THE SCOPE AND JURISDICTION OF THE IMPUGNED ASSESSMENT ORDER. 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, ADDITIONS/DISALLOWANCES COULD NOT H AVE BEEN MADE IN THE PRESENT APPEAL BECAUSE NO INCRIMINATING MATERIAL HAS BEEN FOUND AS A RESULT OF SEARCH. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUND S ARE WITHOUT PREJUDICE TO EACH OTHER. 3. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE SUSTENANCE OF ADDITION OF RS.2,45,000/ - MADE BY THE AO U/S 69C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON ACCOUNT OF FOREIGN TRAVEL. 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS ISSUE IS SQUARELY COVERED IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 IN ITA NO. 5185/DEL/2014 VIDE OR DER DATED 31.10.2017 WHEREIN A SIMILAR ADDITION U/S 69C OF THE ACT AMOUNTING TO RS.2,90,000/ - MADE BY THE AO WAS DELETED (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). ITA NO . 496 /DE L/2015 SANDEEP WADHWA 3 5. IN HIS RIVAL SUBMISSIONS, THE LD. CIT DR ALTHOUGH SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS BEEN DECIDED BY THE ITAT DELHI BENCH F , NEW DELHI IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 IN ITA NO. 5185/DEL/2014 VIDE ORDER DATED 31.10.2017 WHEREIN THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 6 WHICH READ AS UNDER: 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE ALSO PERUSED THE MATERIAL ON RECORD. IT IS SEEN THAT ITAT DELHI HAS ALLOWED THE ASSESSEE S APPEAL FOR ASSESSMENT YEAR 2006 07 IN ITA NO. 495/DEL/2015 ON ID ENTICAL FACTS AND BY FOLLOWING THE RATIO LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VERSUS KABUL CHAWLA (SUPRA). DURING THE COURSE OF ARGUMENTS BEFORE US, THE DEPARTMENT COULD NOT POINT OUT ANY DISTINGUISHING FACT IN THE YEAR UND ER APPEAL. IT IS ALSO SEEN THAT THE HON BLE JURISDICTIONAL HIGH COURT HAS REITERATED THE RATIO LAID DOWN IN CIT VERSUS KABUL CHAWLA (SUPRA) IN THE CASES OF PRINCIPAL CIT VERSUS BEST INFRASTRUCTURE (INDIA) PRIVATE LIMITED (SUPRA) AND PRINCIPAL CIT VERSUS ME ETA GUTGUTIA AND OTHERS (SUPRA). THEREFORE, ON AN OVERALL CONSIDERATION OF THE FACTS AS WELL AS THE SETTLED JUDICIAL PRECEDENT, WE ALLOW THE LEGAL GROUND TAKEN UP BY THE ASSESSEE AND HOLD THAT THE ASSESSMENT FRAMED UNDER SECTION 153A, IN ABSENCE OF ANY INC RIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, IS BAD IN LAW AND CANNOT BE SUSTAINED. 7. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 31.10.2017 IN ASSESSEE S OWN CASE FOR THE EARLIER ASSESSMENT ITA NO . 496 /DE L/2015 SANDEEP WADHWA 4 YEAR 2007 - 08, THE ADDITION MA DE BY THE AO U/S 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH IS DELETED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 01 /0 2 / 2018 ) SD/ - SD/ - ( SUCHITRA KAMBLE ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01 /0 2 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR