ACIT, New Delhi V. Smt. Anita Gupta, Uttar Pradesh

ITA 522/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6987 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Question of law
• Section: 143(3); 142(1); 153A; 201; 132

Judgement Text

1 ITA NO. 516 & 522/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 516 /D EL/2017 A.Y. 2011-12 ACIT CENTRAL CIRCLE 04, NEW DELHI (APPELLANT) VS . LATE SMT. BHAWNA GUPTA (THROUGH LEGAL HEIR, SH. SAMEER GUPTA) R/O. A-43, PHASE-II, NOIDA EXTENSION, UTTAR PRADESH-201305 PAN : AAEPG7683B (RESPONDENT) I.T.A. NO. 522 /DEL/2017 A.Y. 2012-13 ACIT CENTRAL CIRCLE 04, NEW DELHI (APPELLANT) VS. SMT. ANITA GUPTA R/O. A-43, PHASE-II, NOIDA EXTENSION, UTTAR PRADESH - 201305 PAN : AEVPG0643J (RESPONDENT) ORDER PER BENCH : BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE ORDER DATED 24.11.2016 PASSED BY CIT(A)-23, NEW DELHI FOR ASSES SMENT YEAR 2011-12 AND 2012-13. APPELLANT BY SH. ASHISH GOEL, CA RESPONDENT BY SH. SANJAY GOYAL, CIT-DR DATE OF HEARING 31.07.2019 DATE OF PRONOUNCEMENT 31.07.2019 2 ITA NO. 516 & 522/DEL/2017 2. GROUNDS OF APPEAL ARE AS UNDER : ITA NO. 516/DEL/2017 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 1,09,80,369/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GAIN ON SALE OF INVESTMENT. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEA L. ITA NO. 522/DEL/2017 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 1,88,27,050/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEA L. 3. THE ISSUES ARE IDENTICAL IN BOTH THE APPEALS, TH EREFORE, WE ARE TAKING ITA NO. 516/DEL/2017 FOR ASSESSMENT YEAR 2011-12. THE A SSESSEE IS AN INDIVIDUAL. DURING THE YEAR, THE ASSESSEE EARNED INCOME FROM HO USE PROPERTY AND OTHER SOURCES. THE ASSESSEE FILED RETURN OF INCOME FOR YE AR UNDER CONSIDERATION DECLARING A TOTAL INCOME OF RS. 9,08,750/-. A SEARC H AND SEIZURE OPERATION WAS CONDUCTED ON 03.10.2013 IN JAKSON GROUP OF CASES U/ S 132 OF THE ACT. CORRESPONDINGLY, ASSESSMENT U/S 153A INITIATED IN C ASE OF ASSESSEE, NOTICE U/S 153A(1) OF THE ACT WAS SERVED UPON THE ASSESSEE AND ASSESSEE FILED ORIGINAL ITR IN RESPONSE TO SAME. NOTICE U/S 142(1) ALONG WITH Q UESTIONNAIRES WERE SERVED UPON THE ASSESSEE AND IN RESPECT OF THERETO, THE AU THORIZED REPRESENTATIVE OF 3 ITA NO. 516 & 522/DEL/2017 THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED NECESSARY DETAILS AND PRODUCED BOOKS OF ACCOUNTS. THE ASSESSI NG OFFICER ASSESSED THE INCOME AT RS. 1,18,89,120/- AS AGAINST INCOME OF RS . 9,08,750/- AS PER ORDER U/S 153A /143(3) DATED 30.03.2016 THEREBY MAKING AD DITION OF RS. 1,09,80,369/- ON ACCOUNT OF BOGUS EXEMPT LONG TERM CAPITAL GAIN. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A) THROUGH LEGAL HEIRS. THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE. 5. DURING THE COURSE OF HEARING, THE LD. DR SUBMITT ED WRITTEN SUBMISSION WHEREIN THE LD. DR DISTINGUISHED THE DECISION OF TH E KABUL CHAWLA 21 TAXMAN.COM 412 PASSED BY THE HONBLE DELHI HIGH COU RT, BUT THE FACTS OF THE PRESENT ASSESSEES CASE WERE NOT ELABORATED BY THE LD. DR. THEREFORE WE ARE DECIDING THE CASE FROM THE OBSERVATIONS MADE BY THE ASSESSING OFFICER AS LD. DRS SUBMISSIONS. 6. THE LD. AR SUBMITTED THAT IN SIMILAR CIRCUMSTANC ES THE RELATIVES OF THE ASSESSEE AS BEING ASSESSED ON SIMILAR BASIS WHICH W AS DECIDED BY THE TRIBUNAL IN THE CASE OF SAMEER GUPTA WHO IS A SON OF ASSESSE E. THE LD.AR SUBMITTED THAT THE HONBLE HIGH COURT ALSO CONFIRMED THE DECI SION OF THE TRIBUNAL. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. THE TRIBUNAL IN CASE OF SON OF THE ASSESSEE HEREIN HELD AS UNDER :- 24. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY 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 DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE HAS FILED HIS ORIGINAL RETURN OF INCOME ON 30 TH MARCH, 2012 DECLARING TOTAL INCOME OF RS. 3,92,11,220/-. IN RESPONSE TO NOTICE U/S 153A OF TH E IT ACT, THE ASSESSEE FILED RETURN IN RESPONSE TO NOTICE U/S 153A ON 5 TH JANUARY, 2015 DECLARING THE SAME INCOME. THE ASSESSEE IN HIS RETURN OF INCOME H AD CLAIMED EXEMPTION OF LONG TERM CAPITAL GAIN OF RS. 5,62,61,726/-. THE AS SESSMENT ORDER WAS 4 ITA NO. 516 & 522/DEL/2017 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 A SSESSING OFFICER, WE FIND NOWHERE IT IS MENTIONED THAT ANY INCRIMINATING MATE RIAL WAS FOUND DURING THE COURSE OF SEARCH. THE ENTIRE ADDITION MADE BY THE A O IS BASED ON POST SEARCH INQUIRIES. THERE IS ALSO NO GROUND BY THE REVENUE T HAT 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 ADDITI ON MADE BY THE AO IN ABSENCE OF ANY INCRIMINATING MATERIAL. 25. WE FIND THE ID. CIT(A) WHILE DELETING THE ADDIT ION HAS RELIED ON VARIOUS DECISIONS INCLUDING THE DECISION OF THE HON 'BLE JURISIDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWALA REPORTED IN 21 TAXMAN.COM 412 (234 TAXMAN 300). FINDING OF THE CIT(A) ON THIS ISS UE HAS ALREADY BEEN REPRODUCED IN THE PRESIDING PARAGRAPHS. SO FAR AS T HE RELIANCE BY THE LD. DR IN THE CASE OF SMT. DAYAWANTI VS. CIT (SUPRA) IS CO NCERNED, WE FIND THE FACTS OF THAT CASE ARE COMPLETELY DIFFERENT FROM THAT OF THE FACTS OF THE PRESENT CASE. IN THAT CASE THE SON OF THE ASSESSEE HAD CATEGORICA LLY ADMITTED THAT THERE WERE UNACCOUNTED PURCHASE AND SALE OF VARIOUS ITEMS IN SUPARI FROM DIFFERENT PARTIES. HE HAD ALSO ADMITTED THAT CERTAIN PURCHASE S ARE UNACCOUNTED AND ACCORDINGLY HE HAD SURRENDERED CERTAIN INCOME. HOWE VER, IN THE PRESENT CASE THERE IS NO UNACCOUNTED TRANSACTION FOUND DURING TH E COURSE OF SEARCH. THE CAPITAL GAIN THAT AROSE FROM THE SALE OF SHARES ARE ALREADY RECORDED IN THE BOOKS OF ACCOUNTS AND NO INCRIMINATING MATERIAL WHA TSOEVER WAS FOUND DURING THE COURSE OF SEARCH . THEREFORE, THE SAID D ECISION IN OUR OPINION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 26. IT HAS COME TO OUR NOTICE SUBSEQUENT TO THE HEA RING THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. MEETA GUTGUTI A REPORTED IN 2017 (5) TMI 1224 HAS HELD THAT ADDITION CANNOT BE MADE IN ABSEN CE OF ANY INCRIMINATING MATERIAL AND THE DECISION IN THE CASE OF SMT. DAYAW ANTI GUPTA HAS BEEN DULY CONSIDERED. SO FAR AS THE DECISION OF HON'BLE KERAL A HIGH COURT IN THE CASE OF E. N. GOPAL KUMAR (SUPRA) RELIED BY THE LD. DR IS C ONCERNED, WE FIND THE SAID DECISION IS OF A NON-JURISDICTIONAL HIGH COURT AND THE TRIBUNAL IS BOUND BY THE DECISION OF THE JURISDICTIONAL HIGH COURT. SINCE TH E HON'BLE HIGH COURT IN A NUMBER OF CASES RECENTLY HAS HELD THAT ADDITION CAN NOT BE MADE IN ORDER PASSED U/S. 153A R.W.S. 143(3) IN ABSENCE OF ANY IN CRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE CASE OF CO MPLETED ASSESSMENTS, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF THE CIT(A) DELETING THE ADDITION IN ABSENCE OF ANY INCRIMINATING MATERIAL F OUND DURING THE COURSE OF 5 ITA NO. 516 & 522/DEL/2017 SEARCH. 27. WE FURTHER FIND THE REVENUE HAS NOT CHALLENGED THE VITAL LEGAL GROUND ON WHICH THE LD. CIT(A) HAS DELETED THE ADDITION. SINC E THE HON'BLE JURISDICTIONAL HIGH COURT HAS CLEARLY HELD THAT ADDITION IN ORDER PASSED U/S 143(3)/ 153A CANNOT BE MADE IN ABSENCE OF ANY INCRIMINATING MATE RIAL AND SINCE IN THE INSTANT CASE, THERE IS NO EVIDENCE WHATSOEVER ON RE CORD 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, TH EREFORE, ON THIS ISSUE ITSELF ADDITION HAS TO BE DELETED. WE, THEREFORE, UPHOLD T HE ORDER OF THE CIT(A) AND DISMISS THE GROUND RAISED BY THE REVENUE. THE HONBLE HIGH COURT IN THE SAID CASE HELD AS UND ER :- 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 SECTIO N 153A ASSESSMENT BY ADDING AMOUNTS UNDER SECTION 60A TO THE TUNE OF ?5, 62,61,726/- FOR AY 201 1-12. THE CIT (A) AND THE ITAT CONCURRENTLY GRANTED RELIEF TO THE ASSESSEE IN THE APPELLATE PROCEEDINGS HOLDING THAT NO FRESH INC RIMINATING MATERIAL WAS SEIZED WARRANTING THE ADDITIONS DURING THE SEARCH. BOTH THE APPELLATE AUTHORITIES RELIED UPON THE JUDGMENT OF THIS COURT IN CIT V. KABUL CHAW LA, 380 ITR 573. IN THESE CIRCUMSTANCES, THE COURT IS OF TH E OPINION THAT NO QUESTION OF LAW ARISES AS THE RATIO IN KABUL CHAWLA (SUPRA) APP LIED. THE APPEAL IS, THEREFORE, DISMISSED. IN THE PRESENT CASE ALSO THERE IS NO UNACCOUNTED TR ANSACTION FOUND DURING THE COURSE OF SEARCH. THE CAPITAL GAIN THAT AROSE FROM THE SALE OF SHARES ARE ALREADY RECORDED IN THE BOOKS OF ACCOUNTS AND NO IN CRIMINATING MATERIAL WHATSOEVER WAS FOUND DURING THE COURSE OF SEARCH. SINCE THE HON'BLE JURISDICTIONAL HIGH COURT HAS CLEARLY HELD THAT ADD ITION IN ORDER PASSED U/S 143(3)/ 153A CANNOT BE MADE IN ABSENCE OF ANY INCRI MINATING MATERIAL AND SINCE IN THE INSTANT CASE, THERE IS NO EVIDENCE WHA TSOEVER 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 6 ITA NO. 516 & 522/DEL/2017 THE SEARCH ON THE BASIS OF RETURN ALREADY FILED, TH EREFORE, ON THIS ISSUE ITSELF ADDITION HAS TO BE DELETED. THE ISSUE IN THE PRESEN T CASE IS IDENTICAL WITH THAT OF THE DECISION GIVEN BY THE TRIBUNAL AS THE SAME I S SON OF THE ASSESSEE HEREIN. IN FACT, NOW THE SON ONLY REPRESENTING THE ASSESSEE AFTER HER DEATH. THEREFORE, THE CIT(A) RIGHTLY ALLOWED THE APPEAL OF THE ASSESS EE. THUS, APPEAL OF THE REVENUE IS DISMISSED. 8. AS REGARDS ITA NO. 522/DEL/2017 THE SAME IS ALSO IDENTICAL, THEREFORE, THE APPEAL OF THE REVENUE IS DISMISSED. 9. IN RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 31/07/2019 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 7 ITA NO. 516 & 522/DEL/2017 DATE OF DICTATION 31.07.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.07.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK