Roop Bansal, Gurgaon V. ACIT, New Delhi

ITA 5165/DEL/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3301 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 24-05-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: A T PANDA S
• Keywords: Gift; Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SMT BEENA PILLAI, JUDICIAL MEMBER ITA NO.5165/DEL/2012 ASSESSMENT YEAR: 2002-03 ROOP BANSAL, C-13, SUSHANT LOK-1, GURGAON. PAN: AFJPK0250N VS. ACIT, CENTRAL CIRCLE-7, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATYEN SETHI & SHRI A.T. PANDA, ADVOCATES DEPARTMENT BY : SMT. PARAMITA TRIPATHY, CIT, DR DATE OF HEARING : 14.11.2017 DATE OF PRONOUNCEMENT : 15.11.2017 ORDER PER R.S. SYAL, VP: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER PASSED BY THE CIT(A) ON 04.07.2012 IN RELATION TO T HE ASSESSMENT YEAR 2002-03. ITA NO.5165/DEL/2012 2 2. THE FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.15,21,000/-. FACTS APROPOS THIS ISSUE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 WAS CARRIED OUT IN THE CASE OF TH E ASSESSEE ON 12.09.2007. PURSUANT TO NOTICE U/S 153A, THE ASSES SEE FILED RETURN DECLARING INCOME OF RS.1,86,884/-. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE ASSESSING OFFIC ER THAT THE ASSESSEE HAD SHOWN IN HIS STATEMENT OF AFFAIRS, OPENING CASH IN HAND ON 01.04.2001 AT RS.17,21,000/-. ON BEING CALLED UPON TO JUSTIFY THE AVAILABILITY OF CASH IN HAND TO THIS EXTENT, THE AS SESSEE SUBMITTED THAT HE WAS A REGULAR INCOME-TAX ASSESSEE FOR THE PAST MORE THAN 15 YEARS. APART FROM THE AVAILABILITY OF CASH THROUGH HIS REG ULAR INCOME, THE ASSESSEE ALSO SUBMITTED THAT HE RECEIVED GIFTS AMOU NTING TO RS.8,48,000/- FROM HIS MOTHER AND WIFE DURING THE IMMEDIATELY PRE CEDING ASSESSMENT YEAR. THE ASSESSING OFFICER OBSERVED THAT CASH OF RS.83,71,000/- WAS FOUND FROM THE RESIDENCE AND BUSINESS PREMISES OF T HE ASSESSEE DURING THE COURSE OF SEARCH ON 12.09.2007. HE ALSO HELD G IFTS RECEIVED FROM RELATIVES AS NOT BONA FIDE WITHOUT CARRYING OUT ANY PROPER INVESTIGATION. IN THE BACKDROP OF THESE FACTS, THE ASSESSING OFFIC ER TREATED AVAILABILITY ITA NO.5165/DEL/2012 3 OF CASH IN THE HANDS OF THE ASSESSEE ONLY TO THE TU NE OF RS.2 LAC. REMAINING AMOUNT OF RS.15,21,000/- WAS ADDED. THE LD. CIT(A) SUSTAINED THE ADDITION, AGAINST WHICH THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS AN ADMITTED POSITION THAT THE ASSESS EE FILED HIS ORIGINAL RETURN FOR THE YEAR UNDER CONSIDERATION ON 20.08.20 02. INTIMATION U/S 143(1) WAS ISSUED ON 31.01.2003, A COPY OF WHICH IS AVAILABLE ON PAGE 10 OF THE PAPER BOOK. NO NOTICE U/S 143(2) WAS ISSU ED AND THE TIME LIMIT FOR ISSUANCE OF SUCH NOTICE EXPIRED ON 31.08.2003. THUS, IT IS CLEAR THAT AS ON THE DATE OF SEARCH, NAMELY, 12.09.2007, NO AS SESSMENT FOR ASSESSMENT YEAR 2002-03 WAS PENDING, WHICH GOT IMPL IEDLY COMPLETED AND STOOD ABATED. THE HON'BLE DELHI HIGH COURT IN CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL) ALONG WITH SEVERAL OTHER JUDGMENTS, HAS HELD THAT COMPLETED ASSESSMENTS CANNOT BE REVIE WED IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH. WHEN WE CONSIDER THE FACTS AND CIRCUMSTANCES OF THE INST ANT CASE IN THE LIGHT OF ITA NO.5165/DEL/2012 4 THE RATIO LAID DOWN IN KABUL CHAWLA (SUPRA) , IT BECOMES APPARENT THAT THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION STO OD COMPLETED AND ABATED AT THE TIME OF SEARCH. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THERE COULD HAVE BEEN NO POINT IN MAKING ADDITION FOR A SUM OF RS.15,21,000/-. AS RE GARDS THE ASSESSING OFFICERS CONTENTION OF THE AVAILABILITY OF CASH AM OUNTING TO RS.83,71,000/- AT THE TIME OF SEARCH, IT IS AN ADMI TTED POSITION THAT THE SAID SUM WAS SURRENDERED FOR THE ASSESSMENT YEAR 20 08-09. THUS, THE AVAILABILITY OF CASH WHICH WAS SURRENDERED FOR THE PREVIOUS YEAR RELEVANT TO THE YEAR OF THE SEARCH, HAS NO CONNECTION WITH T HE AVAILABILITY OF CASH AS ON THE BEGINNING OF THE PREVIOUS YEAR RELEVANT T O ASSESSMENT YEAR 2002-03 UNDER CONSIDERATION. THE LD. AR HAS PLACED ON RECORD A COPY OF THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF THE ASSESSEES BROTHER, NAMELY, BASANT BANSAL. IN THIS ORDER DATED 05.10.2 017, IN ITA NO.5164/DEL/2012, THE TRIBUNAL HAS DELETED SIMILAR ADDITION MADE BY THE ASSESSING OFFICER, WHO ACCEPTED OPENING CASH IN HAND OF RS.2 LAC AS GENUINE AND MADE ADDITION FOR THE REMAINING OPENING BALANCE OF RS.11,06,458/-. AS THE FACTS AND CIRCUMSTANCES OF T HE CASE UNDER ITA NO.5165/DEL/2012 5 CONSIDERATION ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF THE ASSESSEES BROTHER AND, MORE SPECIFICALLY, WHEN IT WAS A CASE OF A COMMON SEARCH CARRIED OUT AT THE ASSESSEE AND HIS BROTHER, RESPEC TFULLY FOLLOWING THE PRECEDENT, WE ORDER TO DELETE THE ADDITION OF RS.15 ,21,000/-. 4. THE ONLY OTHER GROUND IN THIS APPEAL IS AGAINST SUSTENANCE OF ADDITION OF RS.74,332/- U/S 40A(3), BEING, 100% OF PURCHASES MADE BY THE ASSESSEE OTHERWISE THAN THROUGH ACCOUNT PAYEE C HEQUES. 5. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELE VANT MATERIAL ON RECORD, IT IS FOUND THAT THE ADDITION HAS BEEN MADE AND CONFIRMED U/S 40A(3). THERE IS NO REFERENCE TO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH CASTING SHADOW OF DOUBT ON THE GENUINENESS OF THE PURCHASE TRANSACTIONS. RESPECTFULLY FOLLOWI NG THE RATIO DECIDENDI IN THE CASE OF KABUL CHAWLA (SUPRA), WE ORDER TO DELETE THE INSTANT ADDITION AS WELL SINCE THE SAME IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. ITA NO.5165/DEL/2012 6 6. IN THE RESULT, THE APPEAL IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 1 5 TH NOVEMBER, 2017. SD/- SD/- [BEENA PILLAI] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 15 TH NOVEMBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.