ACIT, New Delhi V. Shri Kanwar Singh Tanwar, New Delhi

ITA 537/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0719 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARIKSHIT JAIN
• Assessee Lawyers: DEEPALI
• Keywords: Business income; Search and seizure
• Section: 133A; 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NO.537/DEL/2016 ASSESSMENT YEAR : 2007-08 ACIT, CENTRAL CIRCLE-2, NEW DELHI. VS. KANWAR SINGH TANWAR, 127, ASOLA FATEHPUR BERI, NEW DELHI. PAN: AADCR3293G (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. DEEPALI. DEPARTMENT BY : SHRI PARIKSHIT JAIN, CA DATE OF HEARING : 17.09.2018 DATE OF PRONOUNCEMENT : 18.09.2018 ORDER PER R.S. SYAL, VP: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 12.11.2015 PASSED BY THE CIT(A) IN RELATION TO THE ASSESSMENT YEAR 2007- 08. ITA NO.537/DEL/2016 2 2. THE ONLY SUBSTANTIAL ISSUE RAISED IN THIS APPEAL IS AGAINST THE TREATMENT OF INCOME OF RS.14,46,87,324/- ON ACCOUNT OF SALE O F SHARES OF M/S MUDRA FINANCE LTD., AS LONG-TERM CAPITAL GAIN AS AGAINS T INCOME FROM OTHER SOURCES TREATED BY THE ASSESSING OFFICER. 3. SUCCINCTLY, THE FACTS OF THE CASE, AS RECORDED IN THE ASSESSMENT ORDER, ARE THAT A SEARCH AND SEIZURE ACTION WAS CARRIED OU T U/S 132 OF THE INCOME- TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) O N 8.02.2013 IN KANWAR SINGH TANWAR GROUP OF CASES WHICH INCLUDED THE ASSE SSEE AS WELL. A SURVEY U/S 133A WAS ALSO CONDUCTED ON 25.04.2013 AT M/S MUDRA FINANCE LTD., WHICH WAS HAVING A LAND AT DHARUHERA, GURGAON , FOR THE DEVELOPMENT OF RESIDENTIAL FLATS. THE AO RECORDED IN PARA 5 OF HIS ORDER THAT THE ASSESSEE TRANSFERRED SHARES OF M/S MUDRA FINANCE LTD., TO TH REE ENTITIES AND THE INCOME THEREFROM WAS REFLECTED AS LONG-TERM CAPITA L GAIN OF RS.14,46,87,324/- IN THE YEAR UNDER CONSIDERATION. HE TREATED THIS INCOME AS ARISING FROM THE NORMAL BUSINESS RECEIPTS AND HE LD IT TO BE CHARGEABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. THE LD. CIT(A) NOTICED THAT SHARES OF M/S MUDRA FINANCE LTD., WERE ACTUALLY TRA NSFERRED IN THE SUCCEEDING YEAR AND, HENCE, THE ASSESSING OFFICER E RRED IN TREATING INCOME ITA NO.537/DEL/2016 3 FROM SALE OF SUCH SHARES AS INCOME FROM OTHER SOUR CES IN RELATION TO THE YEAR UNDER CONSIDERATION. THE REVENUE HAS COME UP I N APPEAL AGAINST THIS FINDING RECORDED BY THE LD. CIT(A). 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS OBVIOUS FROM THE ASSESSMENT ORDER THA T THE ENTIRE DISCUSSION FOCUSES ON THE SHARES OF M/S MUDRA FINANCE LTD., AL LEGEDLY SOLD BY THE ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE ASSES SMENT YEAR UNDER CONSIDERATION, RESULTING INTO LONG-TERM CAPITAL GA IN OF RS.14.46 CRORE IN THE YEAR. AS AGAINST THAT, THE LD. CIT(A) HAS RECORDED THAT THE TRANSFER OF SHARES OF M/S MUDRA FINANCE LTD., TOOK PLACE IN THE SUCCEE DING YEAR AND NOT THE YEAR IN QUESTION. 5. WE HAVE GONE THROUGH PAGE NOS.8 AND 9 OF TH E PAPER BOOK WHICH ARE COPY OF INCOME-TAX RETURN AND THE COMPUTATION OF IN COME FOR THE YEAR UNDER CONSIDERATION. FROM SUCH INCOME-TAX RETURN, IT CAN BE SEEN THAT NO INCOME FROM TRANSFER OF SHARES OF M/S MUDRA FINANCE LTD., WAS OFFERED BY THE ASSESSEE. PAGE NOS.11 AND 12 REPRESENT INCOME-T AX RETURN AND THE COMPUTATION OF INCOME FOR THE ASSESSMENT YEAR 2008- 09. THE ASSESSEE, IN ITA NO.537/DEL/2016 4 FACT, AS RECORDED BY THE LD. FIRST APPELLATE AUTHOR ITY, DECLARED INCOME FROM TRANSFER OF SHARES OF M/S MUDRA FINANCE LTD., UNDER THE HEAD CAPITAL GAINS IN ITS RETURN FOR THE ASSESSMENT YEAR 2008-0 9, WHICH WAS STATED TO HAVE BEEN ASSESSED ACCORDINGLY. THE LD. DR COULD N OT POINT OUT ANY FACTUAL INACCURACIES IN THE POSITION RECORDED IN THE IMPUGN ED ORDER. THUS, IT IS APPARENT THAT NO TRANSFER OF SHARES OF M/S MUDRA FI NANCE LTD., TOOK PLACE DURING THE YEAR UNDER IN QUESTION WARRANTING ANY C ONSIDERATION OF THE ISSUE IN THE INSTANT PROCEEDINGS. WE, THEREFORE, UPHOLD THE IMPUGNED ORDER ON THIS SCORE. 6. HAVING DEALT WITH THE ISSUE ON MERITS, THERE IS NO NEED TO DEAL WITH THE LEGAL ISSUE TAKEN UP IN THIS APPEAL THROUGH GROUND NO. 3 THAT THE LD. CIT(A) ERRED IN LAW IN NOT SUSTAINING THE ASSESSMENT ORDER FRAMED U//S 153A OF THE ACT ON THE GROUND THAT NO INCRIMINATING MATERIAL WA S FOUND IN THIS REGARD. ITA NO.537/DEL/2016 5 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 18.09.201 8. SD/- SD [BEENA A. PILLAI] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 18 TH SEPTEMBER, 2018. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.