Jitender Jain, New Delhi V. ITO WARD - 39(3), New Delhi

ITA 5078/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6037 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Documents seized; Set aside
• Section: 153; 147; 148; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC-1 BENCH, NEW DELH I BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.5078/DEL/2019 [A.Y 2009-10] JITENDER JAIN ITO C-1950, JAHANGIR PURI, WARD - 39 (3) NEW DELHI VS. NEW DELHI APPELLANT BY : SH. VED JAIN, ADVOC ATE SH. ASHISH GOEL, CA MS. SURBHI GOEL, CA RESPONDENT BY : SH. R.K. GUPTA, SR. DR DATE OF HEARING : 17.09.2020 DATE OF PRONOUNCEMENT : 28 .09.2020 ORDER PER N. K. BILLAIYA , AM : 1. WITH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE CO RRECTNESS OF THE ORDER OF THE CIT(A)-13, NEW DELHI DATED 28.03.2019 PERTAINING TO A.Y. 2009-10. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSES SEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ASSESSMENT FRAMED U/ S. 147 R.W.S 143 (3) 2 OF THE ACT AND THEREBY CONFIRMING THE ADDITION OF R S.24,08,550/- MADE BY THE AO ON ACCOUNT OF FEES PAID FOR THE STUDIES OF T HE DAUGHTER OF THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT AN IN FORMATION WAS RECEIVED FROM THE OFFICE OF DDIT (INVESTIGATION), U NIT -5 (1), DELHI BY WHICH THE AO CAME TO KNOW THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT CARRIED OUT ON 27.06.201 3 IN SANTOSH GROUP OF INSTITUTIONS AND DOCTOR P. MAHALINGAM, GHAZIABAD CE RTAIN DOCUMENTS WERE SEIZED FROM WHICH IT CAME TO THE NOTICE THAT T HE ASSESSEE HAS PAID CAPITATION FEES/ DONATION FOR THE ADMISSION OF DEEP ALI JAIN AND IN ALL LIKELY HOOD THE SOURCE OF SUCH PAYMENT IS FROM UNDI SCLOSED SOURCES OF THE ASSESSEE. 4. ACCORDINGLY THE ASSESSMENT WAS REOPENED. DURING TH E COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS CONFRONTED WITH THE DOCUMENTS. IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE THAT T HE DOCUMENTS SEIZED INDICATES THAT REGULAR FEES OF RS.18.12. LACS AND C APITATION OF RS. 12 LACS TOTALLING TO RS. 29.12 LACS WERE PAID IN RESPECT OF DAUGHTER OF THE ASSESSEE DEEPALI JAIN. 5. THE ASSESSEE STRONGLY DENIED THE TRANSACTION FOUND TO BE RECORDED IN THE SEIZED DOCUMENTS AND STATED THAT ALL THE FEE S HAVE BEEN PAID THROUGH BANKING CHANNEL. THE CONTENTION OF THE ASSE SSEE WAS DISMISSED BY THE AO WHO WAS OF THE FIRM BELIEF THAT THE ASSES SEE HAS FAILED TO PRODUCE ANY EVIDENCES AGAINST THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT. ACC ORDINGLY THE ADDITION OF RS. 24.08 LACS WAS MADE. 3 6. ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BUT W ITHOUT ANY SUCCESS. 7. BEFORE ME THE COUNSEL FOR THE ASSESSEE VEHEMENTLY S TATED THAT THE ENTIRE ASSESSMENT HAS BEEN FRAMED ON THE BASIS OF T HE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION C ONDUCTED ON M/S. SANTOSH GROUP OF INSTITUTIONS. IT IS THE SAY OF THE COUNSEL THAT SINCE THE DOCUMENTS BELONG TO THE ASSESSEE THE AO SHOULD HAVE INITIATED THE PROCEEDINGS U/S. 153 C OF THE ACT. THE COUNSEL STR ONGLY RELIED UPON THE DECISION IN THE CASE OF GIRISH CHAND SHARMA IN ITA NO.987/DEL/2018 AND POINTED OUT THAT ON IDENTICAL SET OF FACTS THE ASSE SSMENT WAS FRAMED U/S. 147 OF THE ACT WHICH WAS SET ASIDE BY THE TRIBUNAL HOLDING THAT THE ASSESSMENT SHOULD HAVE BEEN FRAMED U/S. 153 C. 8. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDINGS O F THE AO. 9. IT IS THE SAY OF THE DR THAT PROVISIONS OF SECTION 153 C OF THE ACT DO NOT APPLY ON THE FACTS OF THE CASE AS NO DOCUMENTS WERE SEIZED AND ONLY INFORMATION WAS FOUND IN THE SEIZED DOCUMENTS WHICH WERE USED FOR REOPENING THE ASSESSMENT AND, THEREFORE, THE ASSESS MENT FRAMED U/S. 147 R.W.S 143 (3) OF THE ACT IS VALIDLY MADE AND DESERV ES TO BE UPHELD. 10. I HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHO RITIES BELOW AND HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. AT THE VERY OUTSET I HAVE TO SAY THAT IT IS INCORRECT TO S AY THAT NO DOCUMENTS WERE SEIZED DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS. I FIND FOLLOWING DOCUMENTS WERE USED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OF THE ASSESSEE -: 4 5 6 7 11. THESE DOCUMENTS BELONG TO THE ASSESSEE AND, THEREFO RE, THE AO SHOULD HAVE FRAMED ASSESSMENT U/S. 153 C OF THE ACT . 12. I FIND THAT ON IDENTICAL SET OF FACTS WERE THERE IN THE CASE OF GIRISH CHAND SHARMA IN ITA NO.987/DEL/2018 WHEREIN SIMILAR REASONING WERE 8 GIVEN FOR REOPENING OF THE ASSESSMENT. I FURTHER F IND THAT SIMILAR SET OF FACTS WERE THERE IN THE CASE OF SUSHIL GAUR IN ITA NO.1500/DEL/2018 WHICH DECISION WAS USED IN THE CASE OF GIRISH CHAND SHARMA (SUPRA). THE RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS U NDER :- 9 13. ON FINDING PARITY OF FACTS I DO NOT FIND ANY RE ASON TO DIFFER FROM THE FINDINGS OF THE COORDINATE BENCH (SUPRA) AND FOLLOW ING THE FINDINGS OF THE COORDINATE BENCH I AM INCLINED TO HOLD THAT THE NOT ICE ISSUED U/S. 148 AND THE ASSESSMENT FRAMED U/S. 147 OF THE ACT IS VOID-A B-INITIO. 14. SINCE THE ASSESSMENT HAS BEEN QUASHED I DO NOT FIND IT NECESSARY TO DWELL INTO THE MERITS OF THE CASE. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 10 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.2020. SD/- [ N. K. BILLAIYA] ACCOUNTANT MEMBER DATED:28.09.2020 *NEHA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 21.09.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.09.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 28.09.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 28.09.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28.09.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 28.09.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 28.09.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.0 9.2020 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER