Rajni Gupta , Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 501/LKW/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92206 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 19-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK MISHRA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.501/LKW/2013 ASSESSMENT YEAR:2005 - 06 DY.C.I.T., CENTRAL CIRCLE - II, KANPUR. VS SMT. RAJNI GUPTA, 51/56, SHAKKARPATTI, KANPUR. PAN:ABGPG9040F (RESPONDENT) (APPELLANT) SHRI ASHISH JAISWAL, ADVOCATE APPELLANT BY SHRI VIVEK MISHRA, C.I.T., D. R. RESPONDENT BY 19/06/2015 DATE OF HEARING 30 /06/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, KANPUR DATED 18/03/2014 FOR THE ASSESSMENT YEAR 2005 - 2006. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CASE, L D. CIT(A) HAS ERRED IN DISMISSING THE GROUND RELATING TO VALIDITY OF PROCEEDINGS AND IN HOLDING THAT SATISFACTION RECORDED BY LD. ASSESSING OFFICER WAS PROPER AND CORRECT. 2. BECAUSE ON FACTS AND I N CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF R S.4 , 40 , 000.00 TO THE TOTAL INCOME WHICH WAS OFFERED BY THE ASSESSEE IN PETITION BEFORE H ON'BLE INCOME TAX SETTLEMENT COMMISSION WITHOUT ANY BASIS. ESPECIALLY WHEN DURING THE COUR SE OF ENTIRE ASSESSMENT AND APPELLATE PROCEEDINGS, NOTHING WAS FOUND UNEXPLAINED AND THE ADDITIONS MADE IN ASSESSMENT AND CONFIRMED IN 1 SI APPEAL ARE BASED ON ESTIMATES ONLY. 3. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN GO ING INTO IRRELEVANT CONSIDERATIONS IN CONFIRMING ADDITIONS AND DECIDING ON ILLEGALITY OF 2 PROCEEDINGS AND HIS OBSERVATIONS/CONCLUSIONS ARE NOT BASED ON SOUND R E ASONING AND DESERVES TO BE STRUCK DOWN AND ENTIRE CLAIMS OF THE ASSESSEE IS TO BE ALLOWED. 4. THAT WITHOUT PREJUDICE TO ABOVE MENTIONED CLAIM, IF IN CASE, ADDITION OF RS .4 , 40 , 000.00 IS FOUND TO BE CONFIRMED THEN THE INCOME ASSESSED IN THIS YEAR AS WELL AS IN OTHER YEARS, APART FROM THIS ADDITION, SHOULD BE ORDERED TO BE COVERED BY A DDITION OF R S . 4 , 40 , 000.00. 5. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER AS WELL AS OBSERVATIONS OF LD. ASSESSING OFFICER AS WELL AS OF LD. CIT(A) ARE NOT CORRECT BOTH LEGALLY AS WELL AS FACTUALLY. 6. THAT THE PROCEEDINGS OF ASSESSMENT AS WELL AS ADDITIONS MADE IN ASSESSMENT ORDER TO THE EXTENT CONFIRMED IN 1 ST APPEAL IS BAD IN LAW AS WELL AS ON FACTS AND APPROPRIATE RELIEF DESERVES TO BE ALLOWED. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT UNDER SIMILAR FACTS, SIMILAR ADDITIONS WERE MADE IN THE HANDS OF RAM SINGHARE YADAV, RAJJAN LAL VINOD GUPTA (HUF), RAJJAN LAL NEERAJ GUPTA (HUF), MAYA DEVI VINOD NEERAJ GUPTA (HUF) ETC. WHO ARE FRIENDS/RELATIVES OF THIS ASSESSEE AND IN THOSE CASES, TH E MATTER REACHED UP TO TRIBUNAL IN I.T.A. NO.503 TO 512/LKW/2013 AND IT WAS HELD BY THE TRIBUNAL THAT THE ASSESSEE SHOULD GET BENEFIT OF TELESCOPING IN RESPECT OF ADDITIONS UPHELD IN EARLIER YEARS. HE SUBMITTED COPY OF TH IS TRIBUNAL DECISION AND DRAWN OUR ATTENTION TO PARA NO. 11 OF THE TRIBUNAL ORDER. 4. LEARNED D.R. OF THE REVENUE SUBMITTED THAT THE ADDITION SUSTAINED IN EARLIER YEARS CANNOT BE CONSIDERED FOR GIVING TELESCOPING BENEFIT IN THE PRESENT YEAR. HE SUPPORTED THE ORDERS OF THE AUTHORITIES BEL OW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL , WE REPRODUCE PARA NO. 11 OF THE TRIBUNAL ORDER CITED BY LEARNED A.R. OF THE ASSESSEE, WHICH IS AS UNDER: 3 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS IS ADMITTED POSITION THAT OFFER BEFORE SETTLEMENT COMMISSION AS REPRODUCED IN WRITTEN SUBMISSIONS WAS A COMBINED OFFER FOR A.Y. 1999 2000 TO A.Y. 2005 06 WITHOUT ANY YEAR WISE BREAK UP OR ITEM WISE BREAK UP. NO SUCH DETAIL COULD BE FILED BY THE ASSESSEE AND THE R EVENUE ALSO COULD NOT FIND ANY MATERIAL IN SPITE OF SEARCH TO PIN POINT THE YEAR OF EARNING OF THIS INCOME OR NATURE OF THIS INCOME AND THEREFORE, ADDITION WAS MADE IN EACH YEAR ON PROTECTIVE BASIS AND IN A.Y. 2005 - 06 ON SUBSTANTIVE BASIS. LEARNED CIT (A) HAS CONFIRMED AN ADDITION OF RS. 16,500 IN A.Y. 1999 2000, RS. 10,500 IN A.Y. 2000 2001, RS. 22,000 IN A.Y. 2001 2002, RS. 20,500 IN A.Y. 2002 2003 AND RS. 25,000 IN A.Y. 2003 2004 ON DIFFERENT ACCOUNT APART FROM CONFIRMING THE ADDITION ON SU BSTANTIVE BASIS IN A.Y. 2005 06 BEING OFFER BEFORE SETTLEMENT COMMISSION. TOTAL OF ALL THESE ADDITIONS COMES TO RS. 94,500 ONLY WHICH IS MUCH LESS THAT THE ADDITION CONFIRMED IN A.Y. 2005 06. IN VIEW OF PECULIAR FACTS OF THE PRESENT CASE WHERE THE ADD ITION IS MADE AND CONFIRMED ON THE BASIS OF OFFER BEFORE SETTLEMENT COMMISSION, WHICH IS NOT SPECIFIC, IT HAS TO BE ACCEPTED THAT PART OF SUCH INCOME MIGHT HAVE BEEN EARNED IN THESE EARLIER YEARS AND HENCE, IN VIEW OF THESE PECULIAR FACTS, WE GRANT TELESC OPING AND DIRECT THE A.O. THAT THE ADDITIONS CONFIRMED BY LEARNED CIT (A) IN A. Y. 1999 2000 TO 2003 04 AS NOTED ABOVE SHOULD BE CONSIDERED AS PART OF SURRENDER BEFORE SETTLEMENT COMMISSION AND THEREFORE, THE NET ADDITION IN THIS YEAR IS CONFIRMED TO T HE EXTENT OF RS. 344000 ONLY (RS. 438500 94500). 5.1 FROM THE ABOVE PARA , IT IS SEEN THAT IN THAT CASE, THE OFFER BEFORE THE SETTLEMENT COMMISSION WAS A COMBINED OFFER FOR ASSESSMENT YEAR 1999 - 2000 TO ASSESSMENT YEAR 2005 - 2006 WITHOUT GIVING ANY YEAR WISE BREAKUP OR ITEM WISE BREAKUP. IN THE PRESENT CASE ALSO, THE OFFER MADE BY THE ASSESSEE BEFORE THE SETTLEMEN T COMMISSION, REPRODUCED BY THE ASSESSING OFFICER ON PAGE NO. 2, IS SIMILAR I.E. AN OFFER OF RS.4.40 LAC WAS MADE BEFORE THE SETTLEMENT COMMISSION, WHICH IS A COMBINED OFFER FOR ASSESSMENT YEAR 1999 - 2000 TO ASSESSMENT YEAR 2005 - 2006 WITHOUT ANY YEAR WISE B REAKUP OR ITEM WISE BREAKUP. HENCE, IT IS SEEN THAT THE FACTS OF THE PRESENT CASE ARE 4 SIMILAR TO THE CASE CITED BY THE LEARNED AR OF THE ASSESSEE . WE ALSO FIND THAT THIS IS ALSO NOTED BY THE TRIBUNAL IN THAT CASE THAT NO SUCH DETAILS REGARDING YEAR WISE BREAKUP OR ITEM WISE BREAKUP C OULD BE FILED BY THE ASSESSEE AND REVENUE ALSO, COULD NOT FIND ANY MATERIAL IN SPITE OF SEARCH TO PIN POINT THE YEAR OF EARNING OF THIS INCOME OR NATURE OF THIS INCOME AND THEREFORE, ADDITION WAS MADE IN EACH YEAR ON PROTECTIV E BASIS AND IN ASSESSMENT YEAR 2005 - 06 ON SUBSTANTIVE BASIS. IN THE PRESENT CASE ALSO, THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2005 - 06 ON SUBSTANTIVE BASIS AND IN ALL THE EARLIER YEARS FROM ASSESSMENT YEAR 1999 - 2000 TO 2004 - 2005, THE SAME ADDITION WAS MADE ON PROTECTIVE BASIS. THE CIT(A) HAS CONFIRMED THE SUBSTANTIVE ADDITION IN THE PRESENT YEAR AND ALL THE PROTECTIVE ADDITIONS HAVE BEEN DELETED BY LEARNED CIT(A) I N THE PRESENT CASE ALSO AS IN THOSE CASES. THE TRIBUNAL HAS OBSERVED IN THE ABOVE PARA THAT IN VIEW OF THE PECULIAR FACTS OF THE PRESENT CASE WHERE THE ADDITION IS MADE AND CONFIRMED ON THE BASIS OF AN OFFER BEFORE SETTLEMENT COMMISSION, WHICH IS NOT SPECIFIC, IT HAS TO BE ACCEPTED THAT PART OF SUCH INCOME MIGHT H AVE BEEN EARNED IN TH O SE EARLIER YEARS AND HENCE, IN VIEW OF THESE PECULIAR FACTS, WE GRANT TELESCOPING OF THE INCOME OFFERED BEFORE SETTLEMENT COMMISSION IN THE RESPECTIVE YEAR WHERE ADDITION HAS BEEN CONFIRMED BY CIT (A) AND AS A RESULT, ONLY BALANCE OF THE OFFERED INCOME CAN BE ADDED IN THE PRESENT YEAR. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER THAT THE ADDITIONS CONFIRMED BY LEARNED CIT(A) IN ASSESSMENT YEAR 1999 - 2000 TO 2003 - 04 SHOULD BE CONSIDERED AS PART OF SURRENDER BEFORE SETTLEMENT COMMISSION . IN THE PRESENT CASE, AS PER THE COMBINED ORDER OF CIT(A), AVAILABLE WITH THE APPEAL MEMO, WE FIND THAT CIT(A) HAS CONFIRMED THE FOLLOWING ADDITIONS: ASSESSMENT YEAR AMOUNT OF ADDITION (RS) -------------------- ------------------------------ 1999 - 2 000 3,550.00 1999 - 2000 16,600.00 2000 - 2001 10,000.00 5 2001 - 2002 5,500.00 2001 - 2002 10,000.00 2002 - 2003 11,200.00 2002 - 2003 10,000.00 2003 - 2004 5,000.00 2003 - 2004 10,000.00 TOTAL ADDITION SO CONFIRMED IN EARLIER ASSE SSMENT YEAR S IS RS.81,650/ - . 6. IN FACT , THE TRIBUNAL HAS HELD THAT OUT OF TOTAL SURRENDER MADE BY THE ASSESSEE BEFORE SETTLEMENT COMMISSION, ADDITION ALREADY UPHELD BY CIT(A) IN EARLIER YEARS SHOULD BE REDUCED FOR CONFIRMING THE ADDITION IN THE PRESENT YEAR ON SUBSTANTIVE BASIS. SINCE THE FACTS IN THE PRESENT CASE ARE SIMILAR TO THE FACTS OF THE CASES CITED BY LEARNED A.R. OF THE ASSESSEE, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN T HE PRESENT CASE AND THEREFORE, RESPECTFULLY FOLLOWING THE TRIBUNAL DECISION CITED BY LEARNED A.R. OF THE ASSESSEE, WE HOLD THAT WHEN ADDITION OF RS.81,650/ - IS ALREADY UPHELD BY LEARNED CIT(A) IN EARLIER YEARS, THE ADDITION IN THE PRESENT YEAR SHOULD BE UP HELD FOR BALANCE AMOUNT ONLY I.E. RS.4,40,000 81,650 =RS.3,58,350/ - . WE CONFIRM THE ADDITION TO THIS EXTENT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTI ON PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 /06/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR