Jitender Kumar, New Delhi V. DCIT, New Delhi

ITA 5354/DEL/2014

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8810 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Unexplained cash credit; Opportunity of being heard; Accommodation entries; Set aside
• Section: 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5354/DEL./2014 (ASSESSMENT YEAR : 2005-06) SHRI JITENDER KUMAR, VS. DCIT, CENTRAL CIRCLE 4, 13/34, W.E.A. KAROL BAGH, NEW DELHI. NEW DELHI 110 005. (PAN : AAMPJ0062B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANUNAV KUMAR, ADVOCATE REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEARING : 08.07.2019 DATE OF ORDER : 11.07.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, SHRI JITENDER KUMAR (HEREINAFTER REFERR ED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 23.06.2014 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-XXXIII, NEW DELHI QUA THE ASSE SSMENT YEAR 2005-06 ON THE GROUNDS INTER ALIA THAT :- 1. THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT SINCE THE APPELLANT IS ADMITTEDLY PART OF TARUN GOYAL GROUP, WHICH GROUP HAS BEEN CARRYING ON THE BUSINESS OF PROVIDING ACCO MMODATION ENTRIES DURING THE RELEVANT YEAR AND THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT WAS REPRESENTING PART OF ABOVE BUSINESS AND, THEREFORE, ADDITION IN RESPECT THEREOF ITA NO.5354/DEL./2014 2 COULD NOT BE MADE UNDER SECTION 68 OF THE ACT AND T HE CASE OF THE APPELLANT COULD NOT BE CONSIDERED INDEPENDENTLY. 2 THAT THE CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS.54,63,000/- BEING THE CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT OBSERVING THAT THE APPELLANT HAS NOT GIVE N LIST OF BENEFICIARIES. HE FAILED TO APPRECIATE THAT AS PER THE ADMITTED POSITION DULY ACCEPTED BY MR. TARUN GOYAL WHO HAD A PPEARED BEFORE THE ASSESSING OFFICER, THE CASH DEPOSITS WER E PART OF BUSINESS CARRIED ON BY HIM OF PROVIDING ACCOMMODATI ON ENTRIES AND, THEREFORE, ONLY THE COMMISSION INCOME THEREON WAS TO BE ASSESSED AND THE CIT(A) ALSO FAILED TO APPRECIATE T HAT IT WAS NOT POSSIBLE AT THIS STAGE TO GIVE LIST OF BENEFICIARIE S OR THE PARTIES WITH WHOM THE BUSINESS WAS DONE. THAT THE CIT(A) AL SO FAILED TO APPRECIATE THAT AFTER DEPOSITS OF CASH IN THE BANK ACCOUNT OF THE APPELLANT THE FUNDS HAD BEEN TRANSFERRED TO OTHER A CCOUNTS OF THE GROUP FOR THE PURPOSE OF UTILIZING THE SAME FOR PRO VIDING ACCOMMODATION ENTRIES. 3. THAT THE CIT(A) ALSO FAILED TO APPRECIATE THAT C ONSIDERING THE FINANCIAL STATUS OF THE APPELLANT THERE WAS NO POSSIBILITY TO EARN SUCH AN AMOUNT AS AN INCOME AND, THEREFORE, AD DITION ON ACCOUNT OF CASH DEPOSITS COULD NOT BE MADE AS UNDIS CLOSED INCOME U/S 68 OF THE ACT IN THE CASE OF THE APPELLA NT IN VIEW OF THE DECISIONS OF SUPREME COURT IN THE CASES OF CIT VS. SMT. P.K. NOORJAHAN, 237 ITR 570 (SC) AND CIT V. BHARAT ENGIN EERS & CONSTRUCTION CO. 83 ITR 187 (SC). 4. THAT THE CIT(A) ALSO ERRED IN NOT ADJUDICATING T HE APPEAL FOLLOWING THE ORDER OF THIS HON'BLE TRIBUNAL DATED 18.10.2013 PASSED IN THE CASES OF TARUN GOYAL GROUP IN ACCORDA NCE WITH WHICH HOLISTIC VIEW IS TO BE TAKEN CONSIDERING THE GROUP AS A WHOLE AND ONLY THE COMMISSION INCOME IS TO BE ASSES SED IN RESPECT OF CASH RECEIVED AND DEPOSITED IN BANK ACCO UNTS AS A PART OF BUSINESS OF PROVIDING ACCOMMODATION ENTRIES BY T HE GROUP AT THE RATE OF PERCENTAGE TO BE DETERMINED CONSIDERING THE PRECEDENCE AVAILABLE IN THIS REGARD. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : DURING THE SEARCH AND SEI ZURE OPERATION UNDER SECTION 132 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ON 15.09.2008 ON THE VARIOUS PREMISES OF TARUN GOYA L GROUP OF COMPANIES, IT WAS NOTICED THAT A SUM OF RS.54,63,00 0- WAS ITA NO.5354/DEL./2014 3 DEPOSITED IN CASH ON DIFFERENT DATES IN THE BANK AC COUNT NO.31000323142 MAINTAINED WITH HDFC BANK, K.G. MARG , NEW DELHI AND ACCOUNT NO.10237294875 WITH SBI, SWASTHAY A VIHAR, DELHI. DECLINING THE CONTENTIONS RAISED BY THE ASS ESSEE, AO MADE ADDITION OF RS.54,63,000/- ON ACCOUNT OF UNEXPLAINE D CASH CREDIT DURING THE YEAR UNDER ASSESSMENT BY FOLLOWING THE O RDER PASSED BY THE LD. CIT (A) IN APPEAL NO.42/11-12/727 VIDE ORDE R DATED 19.08.2013 FOR AY 2004-05. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITION BY DISMI SSING THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE AND LD. DR FOR THE REVENUE THAT TH E IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT (A) BY FOLLOWI NG HIS OWN ORDER PASSED IN ASSESSEES OWN CASE FOR AY 2004-05, AS IS EVIDENT FROM PARA 3.3 OF THE ORDER, WHICH HAS SINCE BEEN SE T ASIDE BY THE ITA NO.5354/DEL./2014 4 TRIBUNAL VIDE ORDER DATED 27.08.2105 PASSED IN ITA NO.6127/DEL/2013 FOR AY 2004-05 , COPY AVAILABLE ON RECORD. 6. PERUSAL OF PARAS 4 & 5 OF THE ORDER PASSED BY TH E COORDINATE BENCH OF THE TRIBUNAL FOR AY 2004-05 (SUPRA) SHOWS THAT THE FACTS OF THE PRESENT APPEAL HAVE BEEN EMANATED FROM THE S IMILAR SET OF FACTS. FOR READY REFERENCE, OPERATIVE PART OF THE ORDER DATED 27.08.2015 (SUPRA) PASSED BY THE TRIBUNAL IS REPROD UCED AS UNDER :- 4. IT WAS SUBMITTED ON BEHALF OF THE APPELLANT TH AT IN THE SIMILAR CASES THIS TRIBUNAL IN ITA NO. 4636 & 4637/ DEL/2012 AS WELL AS IN ITA NO.6126/DEL/2013 HAS RESTORED THE MA TTER TO THE FILE OF AO FOR FRESH ADJUDICATION. THE OPERATIVE PO RTION OF THE ORDER IS AS UNDER :- 22. ADMITTEDLY CERTAIN ASSESSMENT OF SHRI TARUN GO YAL, THE KIN PIN ARE AT VARIOUS STAGES AND HAVE NOT REAC HED THE TRIBUNAL. UNDER THESE CIRCUMSTANCES, IT WOULD NOT B E POSSIBLE TO HAVE IN OVER ALL VIEW OF THE MATTER AND ELIMINATE CHAIN / MULTIPLE TRANSACTION, FOR ARRIVIN G AT THE CORRECT ASSESSABLE AMOUNT. THUS WE HAVE NO OTHER ALTERNATIVE BUT TO SET ASIDE ALL THESE APPEALS TO T HE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LA W. 23. THE AO SHALL AFTER EXAMINING THE EVIDENCE SUBMI TTED BY THE ASSESSEE, CONSIDER ALL THE CASES TOGETHER AN D; A) RESTRICT THE ADDITION U/S 68 TO ONLY THE PEAK UNEXPLAINED CREDIT IN EACH CASE AFTER ELIMINATION C IRCULAR TRANSACTION. B) TO ELIMINATE TAXATION OF THE SAME AMOUNT MULTIPL E TIMES, DUE TO THE CHAIN TRANSACTIONS WHICH RESULTED DUE TO LAYERING INDULGED BY THE ASSESSEE. C) CONSIDER THE MATERIAL ON RECORD AND THE PRECEDEN CE AVAILABLE ON THE ISSUE AND DETERMINE THE PERCENTAGE OF COMMISSION, WHICH THE ASSESSEES WOULD HAVE EARNED A ND BRING THE SAME TO TAX. 5. SINCE THE PRESENT CASE ALSO BELONGS TO THE SAME GROUP HAVING ALMOST SIMILAR FACTS AND HAVING NEXUS WITH T HE ASSESSMENT PROCEEDINGS OF MR. TARUN GOYAL, WE RESTO RE THE ITA NO.5354/DEL./2014 5 MATTER TO THE FILE OF THE AO TO DECIDE THE ISSUE AF RESH AS DIRECTED HERE IN ABOVE IN THE GROUP MATTER BY THE ITAT, AFTE R AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GRO UNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 7. WHEN UNDISPUTEDLY FACTS OF THE CASE AT HAND ARE IDENTICAL TO AY 2004-05 WHICH HAS BEEN SET ASIDE TO AO TO DECIDE AFRESH ALONG WITH OTHER GROUP CASES AND NO ORDER HAS YET BEEN FI LED IN THE SAME, WE ARE OF THE CONSIDERED VIEW THAT THE PRESENT CASE IS ALSO REQUIRED TO BE DECIDED BY THE AO ALONG WITH OTHER GROUP CASE S IN THE LIGHT OF THE DIRECTIONS ISSUED IN PARA 4 EXTRACTED ABOVE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . CONSEQUENTLY, PRESENT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 11 TH DAY OF JULY, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 11 TH DAY OF JULY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXXIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.