Shri Vishvendu Gupta, Kanpur V. Deputy Commissioner of Income Tax, Central Circle-2, Kanpur

ITA 52/LKW/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5560 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 22-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K BAR
• Assessee Lawyers: S K GARG SHRI P K KAPOOR
• Keywords: Gift; Question of law; Validity of assessment; Set aside
• Section: 153A; 10

Judgement Text

I.T.A. NOS.51 TO 55/LKW/2018 ASSESSMENT YEARS:2009-10 TO 2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NOS.51 TO 55/LKW/2018 ASST . YR S : 2009 - 10 TO 2013 - 14 SHRI VISHVENDU GUPTA, 14/75, GOPAL VIHAR, CIVIL LINES, KANPUR. DY.C.I.T., CENTRAL CIRCLE-2, KANPUR. T AN: AVEPG 6475 C (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C.A. RESPONDENT BY: SHRI A. K. BAR CIT (DR) DATE OF HEARING: 25 07 2019 DATE OF PRONOUNCEMENT: 22 0 8 2019 O R D E R PER BENCH: THIS IS A GROUP OF FIVE APPEALS FILED BY THE ASSESS EE AGAINST THE COMMON AND CONSOLIDATED ORDER OF THE LD. CIT(A) DAT ED 29/11/2017. THE ASSESSEE HAS TAKEN VARIOUS GROUNDS OF APPEAL IN THE SE CASES AND ALL THE GROUNDS OF APPEALS ARE SIMILAR AND THEREFORE, WERE HEARD TOGETHER AND THEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON AN D CONSOLIDATED ORDER IS BEING PASSED. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT A SE ARCH & SEIZURE OPERATION TOOK PLACE ON DOLPHIN DEVELOPERS LTD. AN D ALSO ON THE INDIVIDUALS RESIDING TOGETHER AT THE ADDRESS MENTIONED IN THE P ANCHNAMA. IT WAS I.T.A. NOS.51 TO 55/LKW/2018 ASSESSMENT YEARS:2009-10 TO 2013-14 2 SUBMITTED THAT IN VIEW OF THE SEARCH, THE CASES OF THE ASSESSEE WERE REOPENED U/S 153A OF THE ACT AND IN VIEW OF THE PRO VISIONS OF SECTION 153A, THE ASSESSEE HAD DULY FILED RETURNS FOR THE RELEVAN T ASSESSMENT YEARS. HOWEVER, IT WAS SUBMITTED THAT NO INCRIMINATING MAT ERIAL WAS FOUND DURING SEARCH & SEIZURE OPERATION AND THE ASSESSMENTS OF T HE YEARS UNDER CONSIDERATION STOOD COMPLETED AND THEREFORE, NO ADD ITION COULD HAVE BEEN MADE EXCEPT ON ACCOUNT OF INCRIMINATING DOCUMENTS. IT WAS SUBMITTED THAT IN ALL THESE FIVE YEARS THE ADDITIONS HAVE BEEN MAD E ONLY ON THE BASIS OF CERTAIN GIFTS RECEIVED BY THE ASSESSEE. IT WAS SUB MITTED THAT DURING SEARCH & SEIZURE OPERATION, NO DOCUMENT, WHAT TO TALK OF I NCRIMINATING DOCUMENT REGARDING GIFT, WAS FOUND AND THEREFORE, THE AUTHOR ITIES BELOW HAVE WRONGLY CONFIRMED THE ADDITION AS THE ADDITIONS SUSTAINED B Y LEARNED CIT(A) ARE AGAINST THE PROVISIONS OF LAW SETTLED BY VARIOUS CO URTS AND SPECIFIC REFERENCE WAS MADE TO THE DECISION OF DELHI BENCH OF THE TRIB UNAL IN THE CASE OF MGF AUTOMOBILES LTD. VS. ACIT. 2.1 TO A QUESTION PUT BY THE BENCH AS TO WHAT WAS T HE FINDING OF LEARNED CIT(A) ON THIS GROUND, LEARNED A. R. SUBMITTED THAT HE HAS DISMISSED THIS GROUND OF APPEAL HOLDING THE SAME TO BE GENERAL IN NATURE AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAGE 3 OF CIT( A)S ORDER FOR ASSESSMENT YEAR 2009-10. HOWEVER, IT WAS SUBMITTED THAT SINCE THIS WAS A LEGAL QUESTION THEREFORE, EVEN IF LEARNED CIT(A) HAS NOT DECIDED THE ISSUE, THE TRIBUNAL WAS COMPETENT TO DECIDE THE SAME. 3. LEARNED D. R., ON THE OTHER HAND, SUBMITTED THAT THIS IS A MIXED QUESTION OF FACTS AND LAW THEREFORE, IT WILL BE APP ROPRIATE TO SET ASIDE THE MATTER TO THE FILE OF LEARNED CIT(A) TO REDECIDE TH E ISSUE ON THIS LEGAL AND FACTUAL GROUND. I.T.A. NOS.51 TO 55/LKW/2018 ASSESSMENT YEARS:2009-10 TO 2013-14 3 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ADDITIONS IN THE FIVE YEARS HAVE BEEN MADE ONLY ON ACCOUNT OF CERTAIN GIFTS RECEIVED BY T HE ASSESSEE DURING THESE YEARS. THOUGH THERE IS NO MENTION OF ANY INCRIMINA TING MATERIAL IN THE ASSESSMENT ORDER BUT STILL THE QUESTION TO BE DECID ED BY US IS NOT A PURE QUESTION OF LAW BUT IT IS A MIXED QUESTION OF FACTS AND LAW AND THEREFORE, THIS QUESTION CANNOT BE DECIDED HERE UNLESS THE LEA RNED CIT(A) IS GIVEN OPPORTUNITY TO DECIDE THE ISSUE FIRST. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF LEARNED CIT(A) WHO SHOULD DECIDE THE GROUND ON LEGALITY OF ASSESSMENT, WHICH WAS RAISED BEFORE HIM VIDE GROUND NO. 7 IN ASSESSMENT YEAR 2009-10 TO ASSESSMENT YEAR 2012-13 AND VIDE GROUND NO. 6 IN ASSESSMENT YEAR 2013-14. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HE ARD. 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 22/08/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:22/08/2019 *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 ASSISTANT REGISTRAR