ITO, Dehradun V. Shri Guneet Singh, Dehradun

ITA 579/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4567 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 01-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: VISHAL MISRA
• Keywords: Unexplained investment; Search and seizure; Document seized; Reason to believe; Documents seized
• Section: 147; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.579/DEL./2017 ASSESSMENT YEAR 2012-2013 THE INCOME TAX OFFICER, WARD-1(3), AAYAKAR BHAVAN, 13-A SUBHASH ROAD, DEHRADUN. VS. SHRI GUNEET SINGH 4/6, INDER ROAD, DEHRADUN 248 001. PAN BAFPS7450A (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI AMIT ARORA & SHRI VISHAL MISRA, C.A. FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 0 4 .09.2017 DATE OF PRONOUNCEMENT : 0 6 .09.2017 ORDER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), DEHRADUN, DATED 4 TH NOVEMBER, 2016, FOR THE A.Y. 2012-2013, ON THE FOLLOWING GROUNDS : 1. THE LD. CIT(A), DEHRADUN, HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE NOTICE UNDER SECTION 148 WAS ISSUE D WITHOUT ANY COGENT REASONS TO BELIEVE AND THEREFORE, IT IS DESERVING OF BEING QUASHED. 2. THAT THE LD. CIT(A), DEHRADUN, HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.35,00,000 MADE ON AC COUNT OF UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE IN PURC HASE OF IMMOVABLE PROPERTY. 2 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT IN THIS CASE, AN INFORMATION WAS RECEIVED FROM THE CIT, CENTRAL CIRC LE, DEHRADUN, THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED U NDER SECTION 132 OF THE I.T. ACT, 1961 IN THE CASE OF SHRI PARVINDER SINGH KOCHAR AT 1- CHANDER ROAD, DALANWALA, DEHRADUN, THE DOCUMENTS WH ICH WERE MARKED AS PAGES 68, 69, 70 AND 73 OF ANNEXURE LP-4 CONSISTED OF DETAILS OF PROPERTY AND TRANSACTIONS MADE RELATING TO SALE OF PROPERTIES MENTIONED THEREIN. IT WAS INFORMED THAT DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI PARVINDE R SINGH KOCHAR GROUP, IT CAME TO LIGHT THAT THE FIRM M/S. UTTARANC HAL REALTORS HAD DEVELOPED COMMERCIAL SPACE IN A MALL SITUATED AT 3- KHAN BANDHU MARG, DEHRADUN BETTER KNOWN AS CROSS ROAD MALL. THE SALE OF UNIT F-4 WAS EXECUTED WITH THE ASSESSEE AND UNIT-5 WAS E XECUTED WITH SMT. CHARANJEET KAUR W/O. SHRI N.P. SINGH. AGREEMEN T FOR SALE WAS EXECUTED AT AN AMOUNT OF RS.54,11,400 EACH AND EARN EST MONEY OF RS.5 LAKHS HAD BEEN PAID BY ASSESSEE FOR F-4 AND RS .5 LAKHS BY SMT. CHARANJEET KAUR FOR F-5. SINCE F-4 AND F-5 HAD BEEN PURCHASED BY ASSESSEE AND ANOTHER MEMBER OF HIS FAMILY SO THE AC COUNTS OF THESE TWO UNITS HAD BEEN GIVEN TOGETHER. THE A.O. PLACED A SCANNED COPY 3 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. OF THE DOCUMENTS ON RECORD AND POINTED OUT THAT ON PAGE NO.73 FOR UNITS F-4 &5, SALE PRICE AS PER REGISTERED DOCUMENT S, A FIGURE OF 108.23 IS WRITTEN UNDER THIS HEAD. IT WAS EXPLAINED THAT THIS FIGURE WAS ACTUALLY AN AMOUNT OF RS.108.23 LAKHS @ 7500 PE R SQ. FEET SUPER AREA AND IT COMPLETELY TALLIED WITH THE AMOUNT OF S ALE CONSIDERATION OF RS.54,11,400 WRITTEN ON THE ORIGINAL AGREEMENT T O SALE OF EACH UNIT. OUT OF THIS SALE CONSIDERATION, RS.1,08,22,80 0 WAS TO BE PAID THROUGH WHITE AS PER THE REGISTERED DOCUMENT AND THE REMAINING AMOUNT OF RS.1,08,22,800 IS TO BE PAID AS UNACCOUNT ED ON MONEY. HOWEVER, THERE WAS A PROVISION OF DISCOUNT WHICH HA D NOT BEEN MENTIONED IN THIS CASE AFTER WHICH AMOUNT TO BE PAI D IS RS.71 LAKHS. THESE AMOUNTS FULLY MATCHED WITH THE FIGURES UNDER THE HEAD REGIST AND OTHER WHICH WERE 108.23 AND 71 RESPECTIVELY. AN AMOUNT OF RS.67 LAKHS AS ON-MONEY HAD BEEN PAID BY THE PARTIE S AT THE TIME OF OR BEFORE MAKING OF THE AGREEMENT TO SELL AND EARNE ST MONEY OF RS.10 LAKHS FOR BOTH THE UNITS AND THAT IS WHY UNDER HEAD TOTAL A FIGURE OF 77 WAS WRITTEN WHICH IN FACT DENOTED 67+10. THE LAST HEAD OF THIS ACCOUNT ON PAGE 73 I.E., BALANCE SHEET UNDER THE HE AD UR IS FIGURE 98.23 IS WRITTEN WHICH WAS IN FACT RS.98.23 LAKHS I .E., BALANCE 4 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. AMOUNT TO BE RECEIVED AS PER THE REGISTERED AGREEME NT OR UNDER REGISTRY. THE A.O. POINTED OUT THAT WHEN ASSESSEE W AS ASKED TO EXPLAIN THE AMOUNT GIVEN AS PER THE COLUMN OTHER, IT WAS SUBMITTED THAT ASSESSEE HAD PURCHASED UNIT F-4 AND HAD PAID R S.5 LAKHS EARNEST MONEY WHICH TALLIES WITH THE AMOUNT MENTION ED AT PAGE-73 OF THE SEIZED DOCUMENTS UNDER THE COLUMN UR WHICH SHOWS RS.10 LAKHS FOR TWO UNITS. ASSESSEE FURTHER SUBMITTED THA T HE PAID RS.51,11,400 AND STAMP DUTY WHICH TALLIED WITH THE VALUE GIVEN ON THE SAME PAGE. THE A.O. HOWEVER, DID NOT ACCEPT THE CONTENTION OF ASSESSEE AND MADE ADDITION OF RS.33,50,000 ON ACCOU NT OF UNEXPLAINED INVESTMENT IN PROPERTY PURCHASED IN UNI T F-4, IN CROSS ROAD MALL, DEHRADUN. THE ASSESSEE CHALLENGED THE AD DITION BEFORE THE LD. CIT(A) AND DETAILED SUBMISSIONS ALONG WITH CASE LAW ARE REPRODUCED IN THE APPELLATE ORDER. THE LD. CIT(A) C ONSIDERING THE MATERIAL ON RECORD, IN THE LIGHT OF SEIZED PAPER WH ICH IS SCANNED IN THE ASSESSMENT ORDER FOUND THAT TRANSACTION ON THE LOOSE SHEETS ARE NOT RECORDED IN THE NAME OF THE ASSESSEE BUT IN THE NAME OF SOME RAJAN. THEREFORE, NOTHING EMERGES FROM THE LOOSE SHEETS THAT COULD GIVE THE A.O. REASON TO BELIEVE THAT INCOME HAS ES CAPED ASSESSMENT 5 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. IN THE HANDS OF THE ASSESSEE UNLESS THE A.O. WERE TO FIRST BRING ON RECORD, THE CONNECTION BETWEEN THE ASSESSEE AND RAJ AN. THIS HAS NOT BEEN DONE BY THE A.O. THE LD. CIT(A), THEREFORE, FO UND THAT A.O. HAS NOT APPRAISED THE EVIDENCE HIMSELF BUT ACTED MECHAN ICALLY ON THE BASIS OF THE PROMPTING OF THE A.O. OF M/S. UTTARANC HAL REALTORS, WHO MAY, IN TURN, BE ACTING ON THE REPORT OF THE INVEST IGATION WING BECAUSE IT CANNOT BE SAID THAT THERE EMERGED ANY RE ASON TO BELIEVE THAT FROM THE RECOVERED DOCUMENTS ANY INCOME HAD ES CAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. THE LD. CI T(A) ACCORDINGLY, QUASHED THE REOPENING OF THE ASSESSMENT UNDER SECTI ONS 147 & 148 OF THE ACT. THE LD. CIT(A) ON THE SAME REASONING AN D IN THE ABSENCE OF ANY EVIDENCE AGAINST THE ASSESSEE, DELETED THE A DDITION ON MERIT AS WELL. 3. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET , SUBMITTED THAT SAME ISSUE HAS BEEN CONSIDERED BY THE ITAT, DE LHI SMC BENCH IN THE CASE OF ITO VS. SMT. LAXMI BIJALWAN, DEHRADU N IN ITA.NO.6404/DEL./2016 DATED 12.07.2017 IN WHICH IN PARA-6 IT HAS BEEN HELD AS UNDER : 6 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. 6. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE MATTER. IT IS NOT IN DISPUTE THAT NAME OF THE ASSESSEE WAS NOT ME NTIONED IN THE INFORMATION PROVIDED BY INVESTIGATION WING, COPY OF THE SEIZED PAPER IS NOTED IN THE IMPUGNED ORDER. LE ARNED COUNSEL FOR THE ASSESSEE ALSO FILED COPY OF THE SEI ZED PAPER AT PAGE-4 OF THE PAPER BOOK WHICH IS COMPUTERISED P RINTED SHEET AND AS AGAINST PROPERTY NO.F-11 PURCHASED BY THE ASSESSEE, THE NAME OF SOME NAUTIYAL HAS BEEN MENTIONED. THE DEPARTMENT HAS NOT CONNECTED THE ASS ESSEE WITH THE ALLEGED PERSON NAUTIYAL. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD AS TO HOW THE ASSESS EE IS CONNECTED WITH THE ALLEGED NAUTIYAL, IT IS DIFFICUL T TO BELIEVE THAT ASSESSEE PAID ANY ON MONEY TO THE SELLER. IT T HEREFORE, APPEARS THAT THE A.O. WITHOUT APPLYING HIS MIND TO THE INFORMATION PROVIDED TO HIM REOPENED THE ASSESSMENT MERELY ON SUSPICION. LD. CIT(A) ON PROPER APPRECIAT ION OF MATERIAL ON RECORD, CORRECTLY QUASHED THE REOPENING OF THE ASSESSMENT IN THE MATTER. IT MAY ALSO BE NOTED HERE THAT NO 7 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. EVIDENCE HAS BEEN BROUGHT ON RECORD AS TO WHETHER ASSESSEE HAD PAID ANY ON MONEY TO THE SELLER. THE S EIZED PAPER HAVE NOT BEEN FOUND AND RECOVERED FROM THE POSSESSION OF THE ASSESSEE. THESE ARE COMPUTERISED SHEETS AND HAVE NOT BEEN SIGNED BY THE ASSESSEE. THE SEIZE D PAPERS WERE NOT IN THE NAME OF THE ASSESSEE. THEREF ORE, HOW THESE ARE ADMISSIBLE AGAINST THE ASSESSEE IN EV IDENCE HAS NOT BEEN EXPLAINED BY THE REVENUE DEPARTMENT. T HE LD. CIT(A) THEREFORE, CORRECTLY HELD THAT EVEN ADDITION ON MERIT IS WHOLLY UNJUSTIFIED. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND IN THE LIGHT OF FINDING OF TH E FACT RECORDED BY THE LD. CIT(A), I AM OF THE VIEW THAT N O INTERFERENCE IS CALLED FOR IN THE MATTER. I CONFIRM THE FINDINGS OF THE LD. CIT(A) AND DISMISS THE APPEAL OF REVENUE . 3.1. HE, THEREFORE SUBMITTED THAT THE ISSUE IS CO VERED IN FAVOUR OF THE ASSESSEE. 4. THE LD. D.R. DID NOT DISPUTE THE SAME. 8 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. 5. AFTER CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ORDER OF THE TRIBUNAL IN THE CASE OF ITO VS. SMT. L AXMI BIJALWAN, DEHRADUN (SUPRA), I FIND THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE IN THE CASE OF ITO VS. LAXMI BIJALWAN, DEH RADUN (SUPRA) IN WHICH IDENTICAL ISSUE HAS BEEN CONSIDERED ON THE BA SIS OF THE SIMILAR SEIZED PAPER AND ORDER OF THE LD. CIT(A) HAS BEEN C ONFIRMED FOR QUASHING THE REOPENING OF THE ASSESSMENT AS WELL AS DELETING THE ADDITION ON MERIT. FOLLOWING THE ORDER OF THE TRIBU NAL IN THE CASE OF ITO VS. SMT. LAXMI BIJALWAN, DEHRADUN (SUPRA), I FI ND THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THIS ORDER AND ACCORDINGLY, DID NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL, THE SAME IS ACCORDINGLY, DISMISSED. 6. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 06 TH SEPTEMBER, 2017 VBP/- 9 ITA.NO.579/DEL./2017 SHRI GUNEET SINGH, DEHRADUN. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES DELHI.