MI Torica India P.Ltd, New Delhi V. DCIT, Circle-16(2), New Delhi

ITA 5992/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3095 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Principle of natural justice; Documents seized
• Section: 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI. BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND DR. M.L. MEENA, ACCOUNTANT MEMBER ITA NO.5952/DEL./2017 (ASSESSMENT YEAR : 2010-11) ITA NO.5953/DEL./2017 (ASSESSMENT YEAR : 2011-12) ITA NO.5954/DEL./2017 (ASSESSMENT YEAR : 2012-13) ITA NO.5955/DEL./2017 (ASSESSMENT YEAR : 2013-14) ITA NO.5956/DEL./2017 (ASSESSMENT YEAR : 2014-15) SHRI NEERAJ GOEL, VS. ACIT, C 355, SARASWATI VIHAR, CENTRAL CIRCLE 28, PITAMPURA, NEW DELHI. NEW DELHI 110 034. (PAN : AEPPG5267E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. AGGARWAL, AR MS. SHWETA BANSAL, CA REVENUE BY : NONE DATE OF HEARING : 14.02.2019 DATE OF ORDER : 28.02.2019 O R D E R PER BENCH : ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 2 SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOS ED OF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. THE APPELLANT, SHRI NEERAJ GOEL (HEREINAFTER REF ERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEALS, SOUG HT TO SET ASIDE THE IMPUGNED ORDERS ALL DATED 21.08.2017 PASSED BY LD. CIT (APPEALS)-XXVI, NEW DELHI QUA THE ASSESSMENT YEARS 2010-11, 2011-12, 2012-13, 2013-14 & 2014-15 ON THE IDENTICA L GROUNDS INTER ALIA THAT :- 1. THE LD. CIT(A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN CONFIRMING THE ORDER PASSED BY THE LD. AO WHICH IS ILLEGAL BEING AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND AGAIN ST THE PROVISIONS OF IT ACT, 1961. 2. THE LD. CIT(A) HAS GROSSLY ERRED ON FACTS AS WEL L AS IN LAW IN CONFIRMING THE ADDITION (RS.5,31,217/- EACH IN AYS 2010-11, 2011-12, 2012-13 & 2013-14 AND RS.3,09,876/- IN AY 2014-15) ON ACCOUNT OF ALLEGED INTEREST INCOME ON THE BASIS OF A SEIZED DO CUMENT WHICH IS DUMB/BALD. 3. THE LD. CIT(A) HAS GROSSLY ERRED ON FACTS AS WEL L AS IN LAW IN CONFIRMING THE ADDITION BY INVOKING SECTION 292C IN -SPITE OF THE FACT THAT THE DOCUMENT WAS NOT FOUND EITHER IN THE POSSE SSION OR CONTROL OF THE APPELLANT. 4. THE LD. CIT(A) HAS GROSSLY ERRED ON FACTS AS WEL L AS IN LAW IN HOLDING THAT THE APPELLANT HAS NOT DISCHARGED THE O NUS OF OFFERING SUITABLE EXPLANATION. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : DURING THE SEARCH & SEIZU RE OPERATION CONDUCTED UNDER SECTION 132 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ON THE BINDAL GROUP OF CASES INCLUDING T HE ASSESSEE, ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 3 VARIOUS BOOKS OF ACCOUNTS/DOCUMENTS WERE FOUND AND SEIZED AND CONSEQUENTLY NOTICE U/S 153A AND 142 (1) ALONG WITH QUESTIONNAIRE WERE ISSUED AND IN RESPONSE THERETO, ASSESSEE FILED COPY OF RETURN OF HIS INCOME U/S 153 OF THE ACT DECLARING AN INCOM E OF RS.15,63.930/-, RS.18,02,020/-, RS.17,02,670/-, RS. 20,17,480/- & RS.17,51,610/- FOR AYS 2010-11, 2011-12, 2012-13, 2 013-14 & 2014-15 RESPECTIVELY AND ADDITIONAL INCOME OF RS.10 ,500, RS.42,000/- & RS.5,067/- UNDER THE HEAD INCOME FRO M THE HOUSE PROPERTY FOR AYS 2010-11, 2011-12 & 2012-13 RESPEC TIVELY WHICH WAS CLAIMED IN THE ORIGINAL RETURN FILED U/S 139 OF THE ACT WAS FILED. FROM THE SEIZED DOCUMENTS, AO NOTICED T HAT ASSESSEE HAS GIVEN LOAN OF RS.12,00,000/- IN FY 2000-01 AT T HE INTEREST RATE OF 18% PER ANNUM. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE THAT ADDITION CANNOT BE MADE ON THE BASIS OF UNSIGNED, UNNAMED & DUMB DOCUMENT SHOWING HYPOTHETICAL FIGURE FOR 13 YEARS WHICH HAS NO RELATION WITH THE ASSESSEE OR HI S GROUP, AO PROCEEDED TO CONCLUDE THAT FROM THE SEIZED DOCUMENT , IT IS PROVED THAT THE ASSESSEE HAS GIVEN A LOAN OF RS.12,00,000/ - IN THE FY 2000-01 AND THUS RECEIVED THE TOTAL AMOUNT OF RS.29 ,51,207/- AND CALCULATED THE INTEREST THEREON @ 18% AMOUNTING TO RS.5,31,217/- EACH IN AYS 2010-11, 2011-12, 2012-13 & 2013-14 AND MADE ADDITION THEREOF IN THE TOTAL INCOME OF THE ASSESSE E. AO MADE ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 4 ADDITION ON ACCOUNT OF UNDISCLOSED INTEREST INCOME OF RS.3,09,876/- @ 18% ON PRINCIPAL AMOUNT OF RS.29,51,207/- IN AY 2 014-15. AO MADE ADDITION OF RS.84,000/- EACH IN AYS 2012-13 & 2013-14 ON ACCOUNT OF NOTIONAL RENT OF ONE PROPERTY @ 10% PER MONTH WHICH THE ASSESSEE HAS NOT DISCLOSED. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF APPEALS WHO HAS CONFIRMED THE ADDITIONS IN AYS 2010 -11, 2011-12 & 2014-15 BY DISMISSING THE APPEALS. HOWEVER, IN AY S 2012-13 & 2013-14, LD. CIT (A) PARTLY ALLOWED THE APPEALS BY DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF NOTIONAL RENT . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEALS. 5. WHEN THE CASE WAS CALLED NONE APPEARED ON BEHALF OF THE REVENUE RATHER AN ADJOURNMENT APPLICATION HAS BEEN MOVED BY THE INCOME-TAX OFFICER THAT LD. CIT DR IS ON CASUAL LEA VE TODAY. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES THAT TH E ENTIRE BOARD WILL CRASH, THE ADJOURNMENT REQUEST IS REJECTED. H OWEVER, LD. CIT DR HAS BEEN GIVEN LIBERTY TO FILE WRITTEN SUBMISSIO NS, IF ANY, WITHIN ONE WEEK, WHICH HAVE BEEN FILED ON 15.02.201 9, WHICH IS PART OF THE RECORD. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, GONE THROUGH THE WRITTEN SUBMISSIONS FILE D BY THE LD. DR ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 5 & DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE RE VENUE AUTHORITIES BELOW IN THE LIGHT OF THE FACTS AND CIR CUMSTANCES OF THE CASE. 7. UNDISPUTEDLY, ORIGINAL RETURNS FILED BY THE ASSE SSEE WERE PROCESSED U/S 143 (1) OF THE ACT. IT IS ALSO NOT I N DISPUTE THAT ON THE BASIS OF SEARCH AND SEIZURE OPERATION CONDUCTED U/S 132 OF THE ACT AT THE PREMISES OF BINDAL GROUP OF CASES INCLUDING THE ASSESSEE ON 07.03.2014, ONE DOCUMENT WAS FOUND AND SEIZED FROM THE RESIDENCE OF THE ASSESSEE WHICH IS EXTRACTED FOR RE ADY PERUSAL AS UNDER :- 31.10.01 12,00,000 - 31.10.02 2,16,000 14,16,000 31.10.03 2,54,880 16,70,880 31.10.04 3,00,758 19,71,638 31.10.05 3,54,895 23,26,533 31.10.07 4,18,775 27,45,308 31.10.08 4,94,155 32,39,463 31.10.09 5,83,103 38,22,566 31.10.10 6,88,061 45,10,627 31.10.11 8,11,912 53,22,539 31.10.12 9,58,057 62,80,696 31.10.13 11,30,525 74,11,221 8. IT IS ALSO NOT IN DISPUTE THAT AO HAS INVOKED TH E PROVISIONS CONTAINED U/S 292C THAT THERE IS A PRESUMPTION THAT THE CONTENTS OF THE DOCUMENTS ARE TRUE. IT IS ALSO NOT IN DISPUTE THAT AO ON THE ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 6 BASIS OF AFORESAID DOCUMENT SEIZED DURING THE SEARC H AND SEIZURE OPERATION REACHED THE CONCLUSION THAT IT APPEARS TH AT ASSESSEE HAS GIVEN A LOAN OF RS.12,00,000/- IN FY 2000-01 AT THE INTEREST OF 18% PER ANNUM AND HAS REJECTED THE SUBMISSIONS MADE BY THE ASSESSEE THAT THE DOCUMENT IS UNSIGNED, UNNAMED AND DUMB SHO WING SOME HYPOTHETICAL INTEREST CALCULATION AND HAD NO RELATI ON WITH THE ASSESSEE OR HIS GROUP, PROCEEDED TO HOLD THAT THE S AID DOCUMENT DEPICTS THAT ASSESSEE HAS GIVEN LOAN OF RS.12,00,00 0/- IN FY 2000- 01 AND CALCULATED THE INTEREST THEREON FROM FYS 200 1-02 TO 2012- 13 EVERY YEAR ON 31 ST OCTOBER TILL 31.03.2007 @ 18% PER ANNUM FOR THE PURPOSE OF ASSESSMENT. THUS, THE ASSESSEE HAS RECEIVED THE AMOUNT OF RS.29,51,207/- AND THEREBY MADE ADDITION OF RS.5,31,217/- ON ACCOUNT OF UNDISCLOSED INTEREST IN COME @ 18% PER ANNUM ON PRINCIPAL AMOUNT OF RS.29,51,207/- FOR AYS 2010- 11, 2011-12, 2012-13 & 2013-14 AND RS.3,09,876/- I N AY 2014- 15. 9. THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMPU GNED ORDER CONTENDED THAT THE DOCUMENT IN QUESTION CANNOT BE R ELIED UPON FOR MAKING ANY ADDITION BEING A BALD DOCUMENT AND RELIE D UPON THE DECISION RENDERED BY THE COORDINATE BENCH OF THE TR IBUNAL IN ASSESSEES OWN CASE IN ITA NO.5950/DEL/2017 FOR AY 2008-09 ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 7 ORDER DATED 21.03.2018, AVAILABLE AT PAGES 88 TO 96 OF THE PAPER BOOK. 10. TO REPEL THE ARGUMENTS ADDRESSED BY THE LD. AR FOR THE ASSESSEE, LD. DR FOR THE REVENUE CONTENDED BY WAY O F WRITTEN SUBMISSIONS THAT THE ASSESSEE WAS CONFRONTED DURING THE ASSESSMENT PROCEEDINGS BY THE AO TO EXPLAIN THE DOC UMENT IN QUESTION AND THE CASE OF THE ASSESSEE FALLS WITHIN THE DEEMING PROVISIONS OF SECTION 292C OF THE ACT AS THE ASSESS EE HAS NOT DENIED THE SEIZURE OF DOCUMENT FROM HIS RESIDENCE A ND FURTHER CONTENDED THAT THE AO/CIT (A) HAVE RIGHTLY HELD THA T EVEN THIS RATE OF INTEREST OF 18% IS COMMENSURATE WITH THE PREVAIL ING MARKET RATE AND HAVE RELIED UPON THE DECISION OF HONBLE HIGH C OURTS IN DAYACHAND VS. CIT (2001) 117 TAXMANN 438 (DELHI), CIT VS. NAGESH KUMAR AGGARWAL - (2011) 9 TAXMANN.COM 249 (D ELHI), MAHABIR PRASAD RUNGTA VS. CIT (2014) 43 TAXMANN.COM 328 & BHAGHEERATHA ENGINEERING LTD. VS. ACIT (2017) 79 TAXMANN.COM 325 (KERALA) . 11. BARE PERUSAL OF THE DOCUMENT IN QUESTION MARKED AS A-1, EXTRACTED IN THE PRECEDING PARAS, FOUND AND SEIZED FROM THE RESIDENCE OF THE ASSESSEE APPARENTLY GOES TO PROVE THAT THE DOCUMENT IS UNNAMED, UNSIGNED, VAGUE & AMBIGUOUS ON E AND IT IS NOT PROVED ON RECORD ALSO THAT IF THE SAME IS IN TH E HANDWRITING OF ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 8 THE ASSESSEE. NOR THE SAME BEARS THE SIGNATURES OF THE ASSESSEE NOR IT BEARS THE NAME OF SOME OTHER PERSON. NO DOUBT, THE PRESUMPTION ARISES U/S 292C IN CASE OF SUCH DOCUMENT BUT THE PR ESUMPTION IS REBUTTABLE ONE. 12. IT IS THE CASE OF THE ASSESSEE THAT HE IS DIREC TOR IN ONE OF THE BINDAL GROUP OF COMPANIES, NAMELY, NEERAJ PAPERS MA RKETING LTD. AND NUMEROUS PERSONS KEEP VISITING HIS RESIDENCE AN D HE WAS HAVING NO CONTROL ON THE VISITORS AND THE DOCUMENTS THEY CARRY AND SEIZED DOCUMENT WAS NOT FOUND FROM THE CONTROL AND POSSESSION OF THE ASSESSEE. MOREOVER, NO MONEY, BULLION OR INVES TMENT WAS FOUND DURING THE SEARCH AND SEIZURE OPERATION TO CO RROBORATE THE DOCUMENT IN QUESTION. 13. NO DOUBT, DATE AND AMOUNT HAS BEEN JOTTED DOWN IN THE SEIZED DOCUMENT WITH ONE YEAR GAP BUT IT IS BEYOND IMAGINATION AS TO HOW THE AMOUNT WRITTEN HAS BEEN ATTRIBUTED TO TH E ASSESSEE HAVING BEEN GIVEN AS LOAN TO SOMEONE BECAUSE THERE IS NEITHER NAME OF THE ASSESSEE NOR THE NAME OF THE LOANEE. T HE ENTIRE FINDINGS HAVE BEEN ARRIVED AT ON THE BASIS OF PRESU MPTIONS AND ASSUMPTION THAT THE AMOUNT OF RS.12,00,000/- ATTRAC TS THE INTEREST @ 18% BECAUSE WHEN WE EXAMINE PARA 5.4, THE AO HAS TABULATED THE PRESUMPTIVE FIGURE OF INTEREST CALCULATED @ 18% ON THE ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 9 PRINCIPAL AMOUNT OF RS.12,00,000/- BUT AFTER 31.03. 2007 TILL 31.10.2013 INTEREST FIGURES CONTINUED THE SAME I.E. RS.5,31,217/-. 14. THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN AY 2008-09 (SUPRA) HAS DELETED THE ADDITION FOR AY 2008-09 MADE ON THE BASIS OF SAME SEIZED DOCUMENT A-1 ON TH E GROUND THAT ALLEGED INTEREST INCOME CANNOT BE ATTRIBUTED TO THE ASSESSEE ON THE BASIS OF DUMB DOCUMENT. 15. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT ADDITION MADE ON THE BASIS OF UNNAMED, UNSIGNED, UNDATED, VAGUE AND AMBIGUOUS DOCUMENT WIT HOUT ANY FURTHER CORROBORATION IS NOT SUSTAINABLE IN THE EYE S OF LAW. MOREOVER, AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO PROVE THAT THE ASSESSEE WAS IN CONSCIOUS POSSESSION OF DOCUMEN T IN QUESTION. 16. FURTHERMORE, THE ASSESSEE HAS ALSO CATEGORICALL Y DENIED THAT THE SEIZED DOCUMENT BELONGS TO HIM. SO, WHEN THE S EIZED DOCUMENT DOES NOT BEAR THE NAME OF THE ASSESSEE NOT IT IS IN THE HANDWRITING OF THE ASSESSEE NOR DOES IT EXPLAIN THE PURPOSE OF MAKING AND RECEIVING THE PAYMENT, RATHER IT IS SILE NT AS TO THE NAMES OF PAYERS AND PAYEES QUA THE AMOUNT MENTIONED THEREIN NOR DOES IT DISCLOSE THAT THE PAYMENT WAS MADE BY CHEQU E OR CASH, ADDITION CANNOT BE MADE MERELY BY INVOKING THE DEEM ING PROVISIONS WITHOUT COLLECTING ANY CORROBORATIVE EVI DENCE. SO ITA NOS.5952, 5953, 5954, 5955 & 5956 /DEL./2018 10 PRESUMPTION ATTACHED TO THE SEIZED DOCUMENT, A-1, S TANDS REBUTTED. CONSEQUENTLY, ADDITIONS MADE BY THE AO AND CONFIRME D BY THE LD. CIT (A) IS NOT SUSTAINABLE, HENCE ORDERED TO BE DEL ETED. RESULTANTLY, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 28 TH DAY OF FEBRUARY, 2019. SD/- SD/- (DR. M.L. MEENA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 28 TH DAY OF FEBRUARY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.