ACIT, New Delhi V. Sundeep Gupta, Uttar Pradesh

ITA 518/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8993 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH GOEL
• Keywords: Question of law
• Section: 143(3); 153A; 201

Judgement Text

I.T.A.NO.518/DEL/2017/A.Y.2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER . . /. I.T.A NO.518/DEL/2017 / ASSESSMENT YEAR:2011-12 ACIT CENTRAL CIRCLE-04, ROOM NO. 331, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS. SUNDEEP GUPTA R/O A-43, PHASE-II, NOIDA EXTENSION, UTTAR PRADESH. PAN NO. AADPG8124E APPELLANT / RESPONDENT /REVENUE BY SH. H.K. CHOUDHARY, CIT (DR) /ASSESSEE BY SH. ASHISH GOEL, ADV. / DATE OF HEARING: 10 .0 8 .20 2 1 /PRONOUNCEMENT ON 10 .0 8 .20 2 1 /O R D E R PER MADHUMITA ROY, J.M. 1. THE INSTANT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 24.11.2016 PASSED BY THE LD. CIT(A)-23, NEW DELHI ARISING OUT OF THE ORDER DATED 30.03.2016 PASSED BY THE ACIT, CENTRAL CIRCLE-4, NEW DELHI U/S 153A/143(3) OF THE ACT FOR AY 2011- 12. 2. DELETION OF ADDITION OF RS. 4,62,96,186/- MADE BY T HE ASSESSING OFFICER ON ACCOUNT OF GAIN ON SALE OF INVESTMENT IS THE SUBJECT MATTER BEFORE US. I.T.A.NO.518/DEL/2017/A.Y.2011-12 2 3. THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER QUASHI NG THE REASSESSMENT ORDER RELYING UPON THE ORDER PASSED IN THE CASE OF THE BROTHER OF THE ASSESSEE SH. SAMEER GUPTA WHICH WAS CONFIRMED BY THE LD. TRIBUNAL IN APPEAL PREFERRED BY THE REVENUE IN ITA NO. 514 & 515/DELHI/2017 FOR AYS 2011-12 AND 2012-13 RESPEC TIVELY. IN FACT THE REVENUE HAS ALSO FILED AN APPEAL IN ASSESS EES FAMILY RELATIVE CASE OF LATE SMT. BHAWNA GUPTA THROUGH THE LEGAL HEIR SH. SAMEER GUPTA, BEING ITA NO. 516/DEL/2017, WHEREIN T HE HONBLE TRIBUNAL RELYING UPON THE JUDGMENT PASSED BY THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KA BUL CHAWLA, REPORTED IN 61 TAXMAN.COM 412 (234 TAXMANN 300) DIS MISSED THE SAME. 4. APART FROM THAT AT THE TIME OF HEARING OF THE INSTA NT APPEAL THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSMENT OF THE ASSESSEE IN RESPECT OF THE AY 201 2-13 HAS BEEN ALLOWED BY THE LD. CIT(A) ON THE SAME SET OF FACTS, A COPY WHEREOF HAS ALSO BEEN FILED BEFORE US. 5. THE LD. DR HAS HOWEVER, FAILED TO CONTROVERT SUCH C ONTENTION MADE BY THE LD. COUNSEL OF THE ASSESSEE. WE HAVE PERUSE D THE ORDER PASSED BY THE LD. TRIBUNAL IN ITA NO. 519/DEL/2017 THE RELEVANT PORTION WHEREOF IS AS FOLLOWS: - 8. WHEN WE EXAMINE THE IMPUGNED ORDER PASSED BY LD. CIT(A) QUASHING THE ASSESSMENT FRAMED U/S 153A READ WITH SECTION 143(3) OF THE ACT IN THE LIGHT OF THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND DUR ING I.T.A.NO.518/DEL/2017/A.Y.2011-12 3 THE SEARCH OPERATION, THE ENTIRE ADDITION HAS BEEN MADE BY THE AO IS ON THE BASIS OF POST SEARCH INQUI RY. THERE IS NOT AN IOTA OF MATERIAL NOR ANY SUCH GROUN D RAISED BY THE REVENUE IF ANY INCRIMINATING MATERIA L WAS FOUND AND THE ENTIRE CASE IS BASED UPON THE SOL E STATEMENT OF SANDEEP GUPTA, THE LD. CIT(A) HAS RIGH TLY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING DECISION RENDERED BY HONBLE DELHI HIGH COURT IN CASE OF CIT VS. KABUL CHAWALA CITED AS 21 TAXMANN.COM 412. OTHERWISE ALL THE TRANSACTION RELATING TO CAPITAL GAIN ARISEN DURING THE YEAR UND ER CONSIDERATION HAVE ALREADY BEEN RECORDED IN THE BOO KS OF ACCOUNTS. SO, IN THESE CIRCUMSTANCES IN THE ABSE NCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE O F SEARCH IN THE CASE OF COMPLETED ASSESSMENTS NO ADDITION CAN BE MADE U/S 153A READ WITH SECTION 143(3). 9. COORDINATE BENCH OF TRIBUNAL WHILE DECIDING CASE OF SAMEER GUPTA, SON OF ASSESSEE ARISEN OUT OF SAME SEARCH PROCEEDINGS AND KEY PERSON OF M/S. JAKSON GROUP DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE BY RETURNING FOLLOWING FINDINGS : 24. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE HY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECIS IONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTAN T CASE HAS FILED HIS ORIGINAL RETURN OF INCOME ON 30 TH MARCH, 2012 DECLARING TOTAL INCOME OF RS. 3,92,11,220/-. I N RESPONSE TO NOTICE U/S 153A OF THE IT ACT, THE ASSE SSEE FILED RETURN IN RESPONSE TO NOTICE U/S 153A ON 5 TH JANUARY, 2015 DECLARING THE SAME INCOME. THE ASSESS EE IN HIS RETURN OF INCOME HAD CLAIMED EXEMPTION OF LO NG TERM CAPITAL GAIN OF RS. 5,62,61,726/-. THE ASSESSM ENT ORDER WAS PASSED U/S 143(3) READ WITH SECTION 153A BY MAKING ADDITION OF THE LONG TERM CAPITAL GAIN AS BOGUS. FROM THE ORDER OF THE ASSESSING OFFICER, WE FIND NOWHERE IT IS MENTIONED THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. THE ENTIRE ADDITION MADE BY THE AO IS BASED ON POST SEARCH INQUIRIES. THERE IS ALSO NO GROUND BY THE REVENUE THAT ANY SUCH INCRIMINATING MATERIAL WAS FOUND OTHER THAN THE STATEMENT OF SHRI SUNDEEP GUPTA AT THE TIME OF SEARCH. UNDER THESE CIRCUMSTANCES, WE HAVE TO ADJUDICATE AS TO WHETHER THE CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE AO IN ABSENCE OF ANY INCRIMINATING MATERIAL. 25. WE FIND THE ID. CIT(A) WHILE DELETING THE I.T.A.NO.518/DEL/2017/A.Y.2011-12 4 ADDITION HAS RELIED ON VARIOUS DECISIONS INCLUDING THE DECISION OF THE HON'BLE JURISIDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. KABUL CHAWALA REPORTED IN 21 TAXMAN.COM 412 (234 TAXMAN 300). FINDING OF THE CIT(A) ON THIS ISSUE HAS ALREADY BEEN REPRODUCED IN THE PRESIDING PARAGRAPHS. SO FAR AS THE RELIANCE BY THE LD. DR IN THE CASE OF SMT. DAYAWANTI VS. CIT (SUPRA) IS CONCERNED, WE FIND THE FACTS OF THAT CAS E ARE COMPLETELY DIFFERENT FROM THAT OF THE FACTS OF THE PRESENT CASE. IN THAT CASE THE SON OF THE ASSESSEE HAD CATEGORICALLY ADMITTED THAT THERE WERE UNACCOUNTED PURCHASE AND SALE OF VARIOUS ITEMS IN SUPARI FROM DIFFERENT PARTIES. HE HAD ALSO ADMITTED THAT CERTAIN PURCHASES ARE UNACCOUNTED AND ACCORDINGLY HE HAD SURRENDERED CERTAIN INCOME. HOWEVER, IN THE PRESENT CASE THERE IS NO UNACCOUNTED TRANSACTION FOUND DURING THE COURSE OF SEARCH. THE CAPITAL GAIN THAT AROSE FROM THE SALE O F SHARES ARE ALREADY RECORDED IN THE BOOKS OF ACCOUNTS AND NO INCRIMINATING MATERIAL WHATSOEVER WAS FOUND DURING THE COURSE OF SEARCH . THEREFORE, THE SAID DECISION IN OUR OPINION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 26. IT HAS COME TO OUR NOTICE SUBSEQUENT TO THE HEARING THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA REPORTED IN 2017 (5) TMI 1224 HAS HELD THAT ADDITION CANNOT BE MADE IN ABSENCE OF ANY INCRIMINATING MATERIAL AND THE DECISION IN THE CASE OF SMT. DAYAWANTI GUPTA HAS BEEN DULY CONSIDERED. SO FAR AS THE DECISION OF HON'BLE KERALA HIGH COURT IN THE CASE OF E. N. GOPA L KUMAR (SUPRA) RELIED BY THE LD. DR IS CONCERNED, WE FIND THE SAID DECISION IS OF A NON-JURISDICTIONAL H IGH COURT AND THE TRIBUNAL IS BOUND BY THE DECISION OF THE JURISDICTIONAL HIGH COURT. SINCE THE HON'BLE HIGH COURT IN A NUMBER OF CASES RECENTLY HAS HELD THAT ADDITION CANNOT BE MADE IN ORDER PASSED U/S. 153A R.W.S. 143(3) IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE CASE OF COMPLETED ASSESSMENTS, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) DELETING THE ADDITION IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 27. WE FURTHER FIND THE REVENUE HAS NOT CHALLENGED THE VITAL LEGAL GROUND ON WHICH THE LD. CIT(A) HAS DELETED THE ADDITION. SINCE THE HON'BLE JURISDICTIONAL HIGH COURT HAS CLEARLY HELD THAT ADDITION IN ORDER PASSED U/S 143(3)/ 153A CANNOT I.T.A.NO.518/DEL/2017/A.Y.2011-12 5 BE MADE IN ABSENCE OF ANY INCRIMINATING MATERIAL AND SINCE IN THE INSTANT CASE, THERE IS NO EVIDENCE WHATSOEVER ON RECORD THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND SINCE THE ADDITION WAS MADE ON THE BASIS OF CERTAIN INQUIRIES CONDUCTED SUBSEQUENT TO THE SEARCH ON THE BASIS OF RETURN ALREADY FILED, THEREFORE, ON THIS I SSUE ITSELF ADDITION HAS TO BE DELETED. WE, THEREFORE, UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE GROUND RAISED BY THE REVENUE. 10. REVENUE HAS CHALLENGED THE ORDER PASSED BY THE TRIBUNAL IN CASE OF SAMEER GUPTA BEFORE HONBLE DELHI HIGH COURT BUT THEIR APPEAL HAS BEEN DISMISSE D BY HONBLE HIGH COURT BY RETURNING FOLLOWING FINDIN GS :- IN THIS CASE THE SEARCH TOOK PLACE IN THE PREMISES ON 03.10.2013. A NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE WHICH RE- AFFIRMED ITS EARLIER RETURNS. THE ASSESSING OFFICER COMPLETED THE SECTION 153A ASSESSMENT BY ADDING AMOUNTS UNDER SECTION 60A TO THE TUNE OF RS. 5,62,61,726/- FOR AY 2011-12. THE CIT (A) AND THE ITAT CONCURRENTLY GRANTED RELIEF TO THE ASSESSEE IN THE APPELLATE PROCEEDINGS HOLDING THAT NO FRESH INCRIMINATING MATERIAL WAS SEIZED WARRANTING THE ADDITIONS DURING THE SEARCH. BOTH THE APPELLATE AUTHORITIES RELIED UPON THE JUDGMENT OF THIS COURT IN CIT V. KABUL CHAWLA, 380 ITR 573. IN THESE CIRCUMSTANCES, THE COURT IS OF THE OPINION THAT NO QUESTION OF LAW ARISES AS THE RATIO IN KABUL CHAWLA (SUPRA) APPLIED. THE APPEAL IS, THEREFORE, DISMISSED 11. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FOLLOWING THE ORDER PASSED BY COORDINATE BENCH OF TRIBUNAL IN CASE OF SAMEER GUPTA AND BHAWNA GUPTA (SUPRA) CONFIRMED BY HONBLE DELHI HIGH COURT, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE CAPITAL GAIN EARNED FROM THE SALE OF SHARES WERE ALREADY RECORDE D IN THE BOOKS OF ACCOUNTS AND NO INCRIMINATING MATERIA L WAS FOUND DURING THE COURSE OF SEARCH OPERATION ON JAKSON GROUP BEING RUN BY SAMEER GUPTA, BHAWANA GUPTA AND SANDEEP GUPTA, ADDITION MADE ON THE BASI S OF SOLE STATEMENT OF SANDEEP GUPTA IS NOT SUSTAINAB LE IN THE EYES OF LAW, PARTICULARLY WHEN ALL THE TRANSACTIONS QUA SALE OF SHARES AND CAPITAL GAIN EA RNED DURING THE YEAR UNDER CONSIDERATION HAVE BEEN DULY I.T.A.NO.518/DEL/2017/A.Y.2011-12 6 RECORDED IN THE BOOKS OF ACCOUNTS. SO, IN THESE CIRCUMSTANCES WE FIND NO ILLEGALITY OR PERVERSITY I N THE IMPUGNED ORDER PASSED BY LD. CIT (A), HENCE, APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. 6. HAVING REGARD WITH THE FACTS AND CIRCUMSTANCES OF T HE CASE AND PARTICULARLY THE ORDER PASSED BY THE HONBLE TRIBUN AL IN ASSESSEES OWN CASE FOR AY 2012-13 ON THE IDENTICAL ISSUE AS A BOVE, WE FIND NO ERROR AND/OR AMBIGUITY IN THE ORDER PASSED BY THE L D. CIT(A) IN ALLOWING THE APPEAL PREFERRED BY THE ASSESSEE SO AS TO WARRANT INTERFERENCE. HENCE, DEPARTMENTS APPEAL IS FOUND TO BE DEVOID OF ANY MERIT AND THUS, DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/08/2021. SD/- SD/- (N.K. BILLAIYA) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH AUGUST, 2021 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI