ACIT, New Delhi V. M/s. SMV Agencies Pvt. Ltd., New Delhi

ITA 5460/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6946 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 29-11-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: SSH V K JAIN; VIKASH KUMAR
• Keywords: Document seized; Additional evidence; Documents seized; Reassessment proceedings
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G NEW DELHI BEFORE SH. H.S. SIDHU , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5460 /DEL/ 2013 ASSESSMENT YEAR: 2005 - 06 ACIT, CENTRAL CIRCLE - 12, ROOM NO. 330, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI VS. M/S. SMV AGENCIES PVT. LTD., S - 25, FIRST FLOOR, MAIN MARKET, GREEN PARK, NEW DELHI PAN : AAA CS3405J (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.K. JAIN, SR.DR RESPONDENT BY S/SH. V.K. JAIN & VIKASH KUMAR, CA DATE OF HEARING 29.11.2016 DATE OF PRONOUNCEMENT 18.01.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE R EVENUE IS DIRECTED AGAINST ORDER DATED 12/07/2013 OF LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) - XXXI, NEW DELHI FOR ASSESSMENT YEAR 2005 - 06 , RAISING THE FOLLOWING GROUNDS: I. THE ORDER OF LEARNED CIT(A) IS NOT CORRECT IN LAW AND FACTS. II. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,62,00,000/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED C ASH RECEIPT BY ASSESSEE BY ADMITTING ADDITIONAL EVIDENCES WHICH TANTAMOUNT TO VIOLATION OF RULE 46A OF IT ACT. III. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ALL OR ANY OF THE AFORESAID GROUNDS OF APPEAL AND ADD OTHER GROUND OF APPEAL. 2 ITA NO. 5460/DEL/2013 AY: 2005 - 06 2. T HE F ACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOM E DECLARING TOTAL INCOME OF RS.54,34, 458/ - ON 29/10/2005. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME - TAX ( I NVESTIGATION), NAGPUR , THAT CERTAIN INCRIMINATING DO CUMENTS RELATED TO THE ASSESSEE WERE SEIZED IN THE SEARCH ACTION AT THE RESIDENCE OF SH. VAIBHAV SURYA K ANT , JAPURIA INDICATING UNACCOUNTED CASH RECEIPT OF RS. 2.62 CRORES. THE ASSESSING OFFICER, AFTER RECORDING REASONS TO BELIEVE THAT THERE WAS ESCAPEMENT O F INCOME TO THE TUNE OF RS. 2.62 CRORES, ISSUED NOTICE UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT ). THE REASSESSMENT PROCEEDINGS WERE COMPLETED BY THE ASSESSING OFFICER ON 28/03/2013 UNDER SECTION 147/143(3) OF THE ACT AFTER MAKING AD DITION OF RS. 2.62 CRORES TO THE RETURNED INCOME. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) AND CHALLENGED THE REOPENING OF THE ASSESSMENT ON LEGAL GROUNDS AS WELL AS CHALLENGED THE ADDITION ON MERIT. IT W AS CONTENDED BY THE ASSESSEE THAT THE SEIZED PAPER ON THE BASIS OF WHICH, THE ASSESSMENT WAS REOPE NED , PERTAINED TO M/S JAIPURIA INFRASTRUCTURE DEVELOPERS P RIVATE L IMITED AND NOT RELATED TO THE ASSESSEE. THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) UPHELD THE LEGALITY OF THE REASSESSMENT PROCEEDINGS, HOWEVER , HELD THAT THE SEIZED DOCUMENTS DID NOT PERTAIN TO THE ASSESSEE AND ACCORDINGLY , HE DELETE D THE ADDITION. AGGRIEVED, THE R EVENUE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. THE LEARNED S ENIOR D EPARTMENTAL R EPRESENTATIVE SUBMITTED THAT IN SUPPORT OF THE CLAIM THAT THE SEIZED PAPER UNDER RE FERENCE PERTAIN TO M/S JAPURIA INFRASTRUCTURE D EVELOPERS LTD . , THE ASSESSEE ONLY FILED THE CERTIFICATE FROM THE SAID CONCERN BEF ORE THE ASSESSING OFFICER AND NO OTHER EVIDENCE OR DOCUMENTS ESTABLISHING THAT THE SEIZED PAPERS PERTAIN 3 ITA NO. 5460/DEL/2013 AY: 2005 - 06 TO THAT CONCERN, WERE FILED BEFORE THE ASSESSING OFFICER. BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS), THE ASSESSEE FILED OTHER DOCUMENTS L IKE BUILDING LAYOUT PLAN, LAND FOR RESIDENTIAL FLATS, AGREEMENTS OF ALLOTMENT/REGISTERED SALE DEED IN RESPECT OF FLATS/SHOPS AND THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) ADMITTED THOSE DOCUMENTS WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSING OF FICER TO REBUT THE SAME. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) PASSED THE IMPUGNED ORDER RELYING ON TH OSE DOCUMENTS. ACCORDING TO THE SENIOR DEPARTMENTAL R EPRESENTATIVE THAT ADMITTING OF ADDITIONAL EVID ENCES AMOUNTED TO VIOLATION OF R ULE 46A OF THE INCOME TAX RULES AND, THUS , REQUESTED THE MATTER MAY BE RESTORED BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) FOR ALLOWING OPPORTUNITY TO THE ASSESSING OFFICER TO COMMENT ON THE ADDITIONAL EVIDENCES. 4. ON THE OTHER HAND , THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT ALL THE DOCUMENTS FILED BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS), WERE ALREADY FILED BEFORE THE ASSESSING OFFICER. IN THIS REFERENCE , HE DRAWN OUR ATTENTION TO PAGE 74 OF THE PAPER BOOK. H E SUBMITTED THAT NO NEW ADDITIONAL EVIDENCES WERE FILED BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) AND , THUS , THERE IS NO Q UESTION OF VIOLATION OF RULE 4 6A OF THE INCOME TAX RULES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PER USED THE RELEVANT MATERIAL ON RECORD INCLUDING THE PAPER BOOK OF THE ASSESSEE. FROM PARA 4.3.8 OF THE IMPUGNED ORDER, WE FIND THAT BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS), THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED FOL LOWING DOCUMENTS AND CLAIMED THAT THOSE WERE FILED BEFORE THE ASSESSING OFFICER: I. BUILDING LAYOUT PLAN DULY CERTIFIED M/S. JAIPURIA INFRASTRUCTURE DEVELOPERS PVT. LTD. II. LAND FOR RESIDENTIAL FLAT. 4 ITA NO. 5460/DEL/2013 AY: 2005 - 06 III. AGREEMENTS OF ALLOTMENT/REGISTERED SALE DEED IN RESPECT OF THE FLATS/SHOPS. 6. WHEREAS, THE ASSESSING OFFICER IN PARA - 3.5 OF HIS ORDER HAS MENTIONED THAT EXCEPT THE CERTIFICATE FROM MR . JAPURIA INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED , THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE FOR ESTABLISHING THAT DETAILS SEIZED DURING THE COURSE OF SEARCH ACTION IN REFERENCE DID NOT BELONG TO THE ASSESSEE. 7. THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) REJECTED THE ABOVE CONTENTION OF THE ASSESSING OFFICER STATING THAT IT WAS NOT THE CORRECT STATEMENT OF FACTS. HOWEVER, WE FIND THAT THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) HAS NOT GIVEN ANY REASONS AS HOW IT WAS NOT CORRECT STATEMENT OF FACTS. HE NEITHER BROUGHT ON RECORD ANY EVIDENCE IN SUPPORT THAT THOSE DOCUMENTS WERE FILED BEFORE THE ASSESSING OFFICER NOR CONFRO NTED THOSE DOCUMENTS TO THE ASSESSING OFFICER. FURTHER, WE FIND THAT B E F O R E U S THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO THE LETTER DATED 25 TH OF MARCH 2013 OF THE AUTHORIZED REPRESENTATIVE THE ASSESSEE , WHICH IS CLAIMED TO HAVE CONTAINING ALL THE SAID DOCUM ENTS AND FILED BEFORE THE ASSESSING OFFICER. THIS LETTER IS AVAILAB LE ON PAGE 74 OF THE PAPER BOOK . ON PERUSAL OF THE SAID LETTER, WE FIND THAT IT IS NOT CONTAINING ANY EVIDENCE OF ACKNOWLEDGEMENT OF THE LETTER BY THE ASSESSING OFFICER OR HIS OFFICE AND CA N T PROVE CONCLUSIVELY THAT THOSE DOCUMENTS WERE FILED BEFORE THE ASSESSING OFFICER. IN SUCH CIRCUMSTANCES, FOLLOWING THE PRINCIPLE S OF N ATURAL JUSTICE AND INCOME - TAX R ULES , THE LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS) WAS REQUIRED TO DIRECT THE ASSESS EE FOR FILING THOSE DOCUMENTS AS ADDITIONAL EVIDENCES AND THOSE DOCUMENTS SHOULD HAVE BEEN SENT TO THE ASSESSING OFFICER FOR HIS COMMENTS, BUT HE DID NOT DO SO. 5 ITA NO. 5460/DEL/2013 AY: 2005 - 06 8. IN VIEW OF ABOVE OF FACTS, WE FEEL IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF LEA RNED COMMISSIONER OF INCOME - TAX ( APPEALS) TO DECIDE THE ISSUE AFRESH WITH THE DIRECTION TO CONSIDER THE DOCUMENTS, WHICH WERE NOT PRODUCED BEFORE THE ASSESSING OFFICE BUT FILED BY THE ASSESSEE BEFORE HIM, IN ACCORDANCE WITH THE R ULE 46A OF THE INCOME - TAX R ULES, 1962 AND ACCORDINGLY, DECI DE THE ISSUE OF ADDITION OF RS.2.62 CRORES IN ACCORDANCE WITH LAW. 9. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 8 T H JANUARY , 201 7 . S D / - S D / - ( H.S. SIDHU ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 8 T H JANUARY , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI