ACIT, New Delhi V. M/s Home Developers Pvt. Ltd, New Delhi

ITA 62/DEL/2010

• Counselvise Citation: 6220114 RSA 2010
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RIS GILL
• Assessee Lawyers: SHAILESH GUPTA CAS; SALIL AGARWAL SHRI GAUTAM JAIN
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Reasonable cause; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/2008 2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/2008 2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/2008 2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/2008 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2004 2004 2004 2004- -- -05, 2005 05, 2005 05, 2005 05, 2005- -- -06 & 2006 06 & 2006 06 & 2006 06 & 2006- -- -07 0707 07 M/S HOME DEVELOPERS M/S HOME DEVELOPERS M/S HOME DEVELOPERS M/S HOME DEVELOPERS (P) LTD., (P) LTD., (P) LTD., (P) LTD., D DD D- -- -22, 2 22, 2 22, 2 22, 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, 21, 21, 21, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NOS SS S. .. .4902/DEL/2009, 4903/DEL/2009, 49 4902/DEL/2009, 4903/DEL/2009, 49 4902/DEL/2009, 4903/DEL/2009, 49 4902/DEL/2009, 4903/DEL/2009, 4904/DEL/2009, 4905/D EL/2009, 04/DEL/2009, 4905/DEL/2009, 04/DEL/2009, 4905/DEL/2009, 04/DEL/2009, 4905/DEL/2009, 4906/DEL/2009 & 4907/DEL/2009 4906/DEL/2009 & 4907/DEL/2009 4906/DEL/2009 & 4907/DEL/2009 4906/DEL/2009 & 4907/DEL/2009 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2004 2004 2004 2004- -- -05, 2004 05, 2004 05, 2004 05, 2004- -- -05, 2005 05, 2005 05, 2005 05, 2005- -- -06, 2005 06, 2005 06, 2005 06, 2005- -- -06, 06, 06, 06, 2006 2006 2006 2006- -- -07 & 2006 07 & 2006 07 & 2006 07 & 2006- -- -07 0707 07 M/S HOME DEVELOPERS M/S HOME DEVELOPERS M/S HOME DEVELOPERS M/S HOME DEVELOPERS (P) LTD., (P) LTD., (P) LTD., (P) LTD., D DD D- -- -22, 2 22, 2 22, 2 22, 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. VS. VS. VS. VS. ADDITIONAL C ADDITIONAL C ADDITIONAL C ADDITIONAL COMMISSIONER OF OMMISSIONER OF OMMISSIONER OF OMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL RANGE CENTRAL RANGE CENTRAL RANGE CENTRAL RANGE- -- -2, 2,2, 2, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NOS SS S. .. .3312/DEL/2008, 3577/DEL/2008 & 3287/DEL/2008 3312/DEL/2008, 3577/DEL/2008 & 3287/DEL/2008 3312/DEL/2008, 3577/DEL/2008 & 3287/DEL/2008 3312/DEL/2008, 3577/DEL/2008 & 3287/DEL/2008 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2004 2004 2004 2004- -- -05, 2005 05, 2005 05, 2005 05, 2005- -- -06 & 2006 06 & 2006 06 & 2006 06 & 2006- -- -07 0707 07 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, 21, 21, 21, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., D DD D- -- -22, 2 22, 2 22, 2 22, 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. (APPELLANT) (RESPONDENT) ITA NO.2954/DEL/2008 & 16 OTHERS 2 ITA NO ITA NO ITA NO ITA NOS SS S. .. .59/DEL/2010, 60/DEL/2010, 61/DEL/2010, 62/DEL/2010 & 59/DEL/2010, 60/DEL/2010, 61/DEL/2010, 62/DEL/2010 & 59/DEL/2010, 60/DEL/2010, 61/DEL/2010, 62/DEL/2010 & 59/DEL/2010, 60/DEL/2010, 61/DEL/2010, 62/DEL/2010 & 63/DEL/2010 63/DEL/2010 63/DEL/2010 63/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2004 2004 2004 2004- -- -05, 2005 05, 2005 05, 2005 05, 2005- -- -06, 2006 06, 2006 06, 2006 06, 2006- -- -07, 2004 07, 2004 07, 2004 07, 2004- -- -05 & 2006 05 & 2006 05 & 2006 05 & 2006- -- -07 0707 07 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, 21, 21, 21, ROOM NO.344, ARA CENTRE, ROOM NO.344, ARA CENTRE, ROOM NO.344, ARA CENTRE, ROOM NO.344, ARA CENTRE, E EE E- -- -2, JHANDEWALAN EXTN., 2, JHANDEWALAN EXTN., 2, JHANDEWALAN EXTN., 2, JHANDEWALAN EXTN., NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 055. 110 055. 110 055. 110 055. VS. VS. VS. VS. M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., D DD D- -- -22, 2 22, 2 22, 2 22, 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, DEFENCE COLONY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. PAN : AAACH8444A. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SALIL AGARWAL, ADVOCATE, SHRI GAUTAM JAIN AND SHRI SHAILESH GUPTA, CAS. REVENUE BY : SHRI R.I.S.GILL, CIT-DR. ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: : ITA NOS.2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/200 8 ARE THE ASSESSEES APPEALS AGAINST THE ORDER OF LEARNED CIT (A)-II, DATED 4.8.2008, 12.9.2008 AND 4.8.2008 RESPECTIVELY WHILE ITA NOS.3312/DEL/2008, 3577/DEL/2008 & 3287/DEL/2008 AR E THE REVENUES APPEALS FOR AY 2004-05, 2005-06 & 2006-07 . 2. ITA NOS.59/DEL/2010, 60/DEL/2010 & 61/DEL/2010 A RE THE APPEALS BY THE REVENUE FOR AY 2004-05, 2005-06 & 2006-07 AG AINST THE REDUCTION IN THE PENALTY LEVIED UNDER SECTION 271D WHILE ITA NOS.4902/DEL/2009, 4904/DEL/2009 & 4906/DEL/2009 AR E THE ASSESSEES APPEALS AGAINST THE SUSTENANCE OF PENALT Y LEVIED UNDER SECTION 271D. 3. ITA NOS.62/DEL/2010 & 63/DEL/2010 ARE THE APPEAL S FILED BY THE REVENUE FOR AY 2004-05 & 2006-07 AGAINST THE REDUCT ION IN THE PENALTY LEVIED UNDER SECTION 271E WHILE ITA NOS.490 3/DEL/2009, 4905/DEL/2009 & 4907/DEL/2009 ARE THE APPEALS BY TH E ASSESSEE ITA NO.2954/DEL/2008 & 16 OTHERS 3 AGAINST THE SUSTENANCE OF PENALTY LEVIED UNDER SECT ION 271E FOR AY 2004-05, 2005-06 & 2006-07 RESPECTIVELY. 4. SINCE COMMON ISSUES ARE INVOLVED IN ALL THESE AP PEALS, THEY ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 5. THE FACTS OF THE CASE ARE THAT THERE WAS SEARCH AND SEIZURE OPERATION AT THE BUSINESS PREMISES OF THE ASSESSEE AND OTHER GROUP CONCERNS. SIMULTANEOUSLY, THE SEARCH ALSO TOOK PLA CE AT THE RESIDENCE OF THE DIRECTORS/PARTNERS OF THE ASSESSEE AND THE G ROUP CONCERNS. DURING THE COURSE OF SEARCH AT THE PREMISES OF SHRI YOGESH GUPTA, CERTAIN DOCUMENTS WERE FOUND AND SEIZED. HIS STATE MENT WAS ALSO RECORDED ON 31 ST MAY, 2006 IN WHICH HE SURRENDERED THE SUM OF ` 13 CRORES AS UNDER:- (I) IN HIS OWN NAME : ` 2 CRORES (II) HOME DEVELOPERS (P) LTD. : ` 2 CRORES (III) REALTECH PROJECT (P) LTD. REALTECH CONSTRUCTION (P) LTD. : ` 9 CRORES 6. IN HIS STATEMENT, SHRI YOGESH GUPTA HAD STATED T HAT THESE NOTING OF THE PAPER WERE UNACCOUNTED TRANSACTIONS. THE RE VENUE WAS FULLY SATISFIED WITH THE SURRENDER AND CLOSED THEIR INVES TIGATION. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER HELD THAT THE NOTING ON THE PAPERS FOUND AND SEIZED AT THE TIME O F SEARCH WAS IN RESPECT OF LOAN TAKEN BY THE ASSESSEE. HE PRESUMED THAT SUCH LOAN IS REPAID BY THE ASSESSEE ALONGWITH INTEREST. NO ADDI TION WAS MADE BY THE ASSESSING OFFICER FOR THE ALLEGED LOAN CLAIMED TO HAVE BEEN TAKEN BY THE ASSESSEE BUT, HE MADE THE ADDITION FOR ALLEG ED REPAYMENT OF LOANS ALONGWITH INTEREST FOR AY 2004-05 TO 2006-07 AS UNDER:- ITA NO.2954/DEL/2008 & 16 OTHERS 4 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ADDITION MADE ADDITION MADE ADDITION MADE ADDITION MADE 2004-05 ` 4,78,00,000/- 2005-06 ` 1,98,45,000/- 2006-07 ` 9,82,62,432/- 7. ON APPEAL, LEARNED CIT(A) DELETED THE ADDITION I N RESPECT OF THE REPAYMENT OF PRINCIPAL AMOUNT OF LOAN BUT HE PARTLY SUSTAINED THE ADDITION IN RESPECT OF ALLEGED REPAYMENT OF INTERES T. THE YEAR-WISE POSITION OF THE ADDITION DELETED AND SUSTAINED BY T HE LEARNED CIT(A) IS AS UNDER:- AY ADDITION MADE BY THE AO DELETED BY CIT(A) SUSTAINED BY CIT(A) 2004-05 4,78,00,000/- 4,49,65,000/- 28,35,000/- 2005-06 1,98,45,000/- 1,85,08,500/- 13,36,500/- 2006-07 9,82,55,432/- 9,08,85,750/- 73,69,682/- 8. THE REVENUE IS IN APPEAL IN RESPECT OF THE DELET ION OF ADDITION BY THE LEARNED CIT(A) VIDE APPEAL IN ITA NOS.3312/DEL/ 2008, 3577/DEL/2008 & 3287/DEL/2008. THE ASSESSEE IS IN APPEAL IN RESPECT OF THE ADDITION SUSTAINED IN ITA NOS.2954/DEL/2008, 3101/DEL/2008 & 2955/DEL/2008. 9. THE ASSESSING OFFICER ALSO LEVIED PENALTY FOR AC CEPTANCE OF LOAN IN CASH UNDER SECTION 271D OF THE INCOME-TAX ACT, 1 961 AS UNDER:- ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR PENALTY LEVIED PENALTY LEVIED PENALTY LEVIED PENALTY LEVIED 2004-05 ` 3,84,60,000/- 2005-06 ` 2,25,50,000/- 2006-07 ` 9,78,63,940/- ITA NO.2954/DEL/2008 & 16 OTHERS 5 10. ON APPEAL, LEARNED CIT(A) PARTLY SUSTAINED THE PENALTY AND THE YEAR-WISE POSITION IS AS UNDER:- AY PENALTY LEVIED RELIEF BY CIT(A) PENALTY SUSTAINE D 2004-05 3,84,60,000/- 3,23,60,000/- 61,00,000/- 2005-06 2,25,50,000/- 2,25,50,000/- - - 2006-07 9,78,63,940/- 9,53,63,940/- 25,00,000/- 11. THE REVENUE, AGGRIEVED BY THE DELETION OF PENAL TY, IS IN APPEAL BEFORE US VIDE ITA NOS.59/DEL/2010, 60/DEL/2010 & 6 1/DEL/2010. 12. THE ASSESSING OFFICER ALSO LEVIED PENALTY UNDER SECTION 271E FOR REPAYMENT OF LOAN IN CASH WHICH IS PARTLY SUSTAINED BY THE LEARNED CIT(A). THE YEAR-WISE BREAK UP IS AS UNDER:- AY PENALTY LEVIED RELIEF BY CIT(A) PENALTY SUSTAINE D 2004-05 1,36,69,400/- 68,19,000/- 68,50,000/- 2005-06 8,80,000/- ENHANCED BY 2,53,500/- 11,33,500/- 2006-07 8,46,33,100/- 8,36,33,100/- 10,00,000/- 13. THE REVENUE, AGGRIEVED WITH THE DELETION OF PEN ALTY, IS IN APPEAL VIDE ITA NOS.62/DEL/2010 & 63/DEL/2010 FOR AY 2004- 05 & 2006-07 WHILE ASSESSEE, AGGRIEVED WITH PENALTY SUSTAINED, I S IN APPEAL BEFORE US VIDE ITA NOS.4903/DEL/2009, 4905/DEL/2009 & 4907 /DEL/2009 FOR AY 2004-05, 2005-06 & 2006-07. 14. SINCE IN ALL THESE APPEALS, THE ISSUES ARE INTE RRELATED, THEY ARE HEARD TOGETHER. 15. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITT ED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT DURING THE COURSE OF SEARCH, CERTAIN LOOSE PAPERS WERE FOUND FROM THE RESIDENCE OF SHRI YOGESH GUPTA AND NOT ITA NO.2954/DEL/2008 & 16 OTHERS 6 THE BUSINESS PREMISES OF THE ASSESSEE WHICH IS A PR IVATE LIMITED COMPANY. IN PURSUANCE TO THE SEARCH, THE STATEMENT OF SHRI YOGESH GUPTA WAS RECORDED ON 31 ST MAY, 2006 IN WHICH HE ADMITTED THAT THE LOOSE PAPERS ARE IN HIS HANDWRITING AND HE ALSO EXP LAINED THAT THE LOOSE PAPERS CONTAIN DETAILS OF VARIOUS UNACCOUNTED TRANSACTIONS AS WELL AS CERTAIN UNACCOUNTED INVESTMENTS OF THE GROU P CONCERNS. HE ALSO SURRENDERED THE SUM OF ` 13 CRORES PARTLY IN HIS HANDS AND PARTLY IN THE HANDS OF M/S HOME DEVELOPERS PVT.LTD., M/S REAL TECH PROJECT (P) LTD. AND REALTECH CONSTRUCTION (P) LTD. ULTIMATELY , WHEN THE RETURNS WERE FILED, THE GROUP CONCERNS HAD OFFERED THE INCO ME OF ` 15 CRORES AS UNDER:- (I) SHRI YOGESH GUPTA : ` 2 CRORES (II) HOME DEVELOPERS (P) LTD. : ` 2 CRORES (III) RAJEEV BEHL & HIS FAMILY MEMBERS : ` 2 CRORES (IV) REALTECH PROJECT (P) LTD. REALTECH CONSTRUCTION (P) LTD. : ` 9 CRORES TOTAL : ` 15 CRORES 16. THE LEARNED COUNSEL SUBMITTED THAT IN THE LOOSE PAPER, THE NAME OF THE ASSESSEE IS NOT THERE. NEITHER FROM THE NOT ING ON THE LOOSE PAPER, IT CAN BE SAID THAT IT WAS IN RESPECT OF BOR ROWING OF MONEY BY THE ASSESSEE. MOREOVER, THE INFERENCE BY THE ASSES SING OFFICER THAT THERE WAS REPAYMENT OF LOAN DURING THE YEAR UNDER C ONSIDERATION IS WITHOUT ANY BASIS. HE REFERRED TO PAGE 43 ON THE B ASIS OF WHICH ADDITION OF ` 3,88,00,000/- WAS MADE AND POINTED OUT THAT FROM TH E ABOVE PAGE, IT WOULD BE EVIDENT THAT THERE IS ONLY MENTION OF NAME OF PALIWAL AND SOME AMOUNTS ON VARIOUS DATES. THE TOT AL OF THOSE AMOUNTS AT LEFT HAND SIDE WAS ` 2,40,000/-. THE ASSESSING OFFICER FURTHER PRESUMED IT TO BE ` 2,40,000/- AND THEN AGAIN PRESUMED THAT IT IS A BORROWING IN CASH WHICH IS REPAID DURING THE YEAR UNDER ITA NO.2954/DEL/2008 & 16 OTHERS 7 CONSIDERATION. HE ALSO PRESUMED THAT INTEREST THER EON IS PAID AT THE RATE OF 20% I.E. AMOUNTING TO ` 48 LAKHS. THUS, THE TOTAL ADDITION HE WORKED OUT IS ` 2,88,00,000/- BUT WHEN ACTUAL ADDITION IS MADE, THE ADDITION MADE WAS ` 3,88,00,000/-. THIS ITSELF SHOWS THAT THE ENTIRE ADDITION IS BASED UPON PURELY PRESUMPTION. NO CORR OBORATION OF THE ABOVE PAPER HAS BEEN MADE EITHER FROM MR.PALIWAL OR ANYBODY ELSE. THE ASSESSEE AND THE GROUP COMPANY HAVE ALREADY SUR RENDERED THE SUBSTANTIAL SUM OF ` 15 CRORES AS THE INCOME GENERATED FROM THE UNACCOUNTED TRANSACTION WHICH HAS BEEN ACCEPTED BY THE REVENUE AND FURTHER ADDITION HAS BEEN MADE BASED UPON PURELY PR ESUMPTIONS. THAT ALL OTHER PAPERS ARE ALSO SIMILAR AND FOR THE SAKE OF BREVITY, HE IS NOT REFERRING TO EACH AND EVERY INDIVIDUAL PAPER. HOWE VER, ALL THE PAPERS ARE IN THE PAPER BOOK. HE FURTHER SUBMITTED THAT S IMILAR ISSUE WAS CONSIDERED BY THE ITAT DELHI BENCH AND ALSO HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSESSEE ITSELF. THAT THE ASS ESSING OFFICER, CONSIDERING SAME AND SIMILAR PAPERS, LEVIED THE PEN ALTY UNDER SECTION 271D FOR AY 2001-02 TO 2006-07. THE TOTAL PENALTY WORKED OUT WAS ` 16,48,98,940/- WHICH WAS BIFURCATED IN SIX ASSESSME NT YEARS AS UNDER:- ASSESSMENT Y ASSESSMENT Y ASSESSMENT Y ASSESSMENT YEAR EAR EAR EAR AMOUNT AMOUNT AMOUNT AMOUNT 2001-02 ` 5,00,000/- 2002-03 ` 48,25,000/- 2003-04 ` 7,00,000/- 2004-05 ` 3,84,60,000/- 2005-06 ` 2,25,50,000/- 2006-07 ` 9,78,63,940/- TOTAL : ` 16,48,98,940/- THAT THE APPEALS FOR AY 2001-02, 2002-03 & 2003-04 CAME UP BEFORE THE ITAT DELHI BENCH VIDE ITA NOS.4495, 4496 & 4497 /DEL/2009 IN ITA NO.2954/DEL/2008 & 16 OTHERS 8 WHICH THE ITAT HELD THAT FROM THESE PAPERS, THE ACC EPTANCE OF LOAN IN CASH BY THE ASSESSEE IS NOT PROVED. ACCORDINGLY, T HE ITAT UPHELD THE ORDER OF THE CIT(A) WHEREIN THE PENALTY LEVIED UNDE R SECTION 271D WAS CANCELLED. THE REVENUE FILED APPEAL BEFORE THE HON BLE JURISDICTIONAL HIGH COURT WHICH ALSO UPHELD THE ORDER OF THE ITAT AND HELD THAT IT IS NOT ESTABLISHED THAT THE RESPONDENT ASSESSEE HAD TA KEN LOAN/DEPOSIT IN CASH. HE STATED THAT THE FACTS OF THE YEAR UNDER C ONSIDERATION ARE IDENTICAL. THAT IN THOSE YEARS ALSO, SAME/SIMILAR PAPERS WERE CONSIDERED, SAME STATEMENT OF SHRI YOGESH GUPTA WAS CONSIDERED AND SAME CONSOLIDATED ORDER PASSED BY THE ASSESSING OFF ICER WAS CONSIDERED. THEREFORE, THE ISSUE IS SQUARELY COVER ED IN FAVOUR OF THE ASSESSEE BY THE ABOVE DECISION OF THE TRIBUNAL AS W ELL AS HONBLE JURISDICTIONAL HIGH COURT. HE ALSO RELIED UPON THE FOLLOWING DECISIONS:- (I) CIT VS. SAHARA INDIA CORPORATION LTD. 296 ITR 285 (DELHI). (II) CIT VS. SAMIR DIAMONDS EXPORTS LTD. 245 ITR 548 (BOMBAY). (III) CIT VS. STANDARD BRANDS LTD. 285 ITR 295 (D ELHI). (IV) CIT VS. R.P.SINGH AND CO.PVT.LTD. 340 ITR 21 7 (DELHI). 17. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE ASSESSING OFFICER. HE STATED THAT DURING THE COURS E OF SEARCH, CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSEE AS WELL AS ITS GROUP CONCERN HAD DISCLOSED SUBSTANTIAL UNDI SCLOSED INCOME ON THE SAID LOOSE PAPERS. THUS, IT IS PROVED BEYOND D OUBT THAT THE LOOSE PAPERS BELONGED TO THE ASSESSEE AND ITS GROUP CONCE RN. THE ASSESSING OFFICER HAS ONLY DRAWN NECESSARY INFERENCE ON THE B ASIS OF THOSE LOOSE PAPERS AND HAS MADE THE ADDITION IN ACCORDANCE WITH LAW. WHEN THE ASSESSEE BORROWED THE SUBSTANTIAL AMOUNT IN CASH AN D REPAID SUBSTANTIAL AMOUNT IN CASH, THE LEVY OF PENALTY UND ER SECTION 271D/271E WAS IN ACCORDANCE WITH LAW AND LEARNED CI T(A) WAS NOT JUSTIFIED IN ALLOWING RELIEF TO THE ASSESSEE. HE, THEREFORE, SUBMITTED ITA NO.2954/DEL/2008 & 16 OTHERS 9 THAT THE ORDER OF LEARNED CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD BE SUSTAINED. 18. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF B OTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. FIRST, WE SHALL EXAMINE THE ASSESSEES CONTENTION THAT THIS ISSUE IS CONCLUDED BY THE DECISION OF ITAT AND HONBLE JURISDICTIONAL HIGH COURT IN ASSES SEES OWN CASE, OF COURSE IN RESPECT OF PENALTY UNDER SECTION 271D. W E FIND THAT THE ASSESSING OFFICER, VIDE CONSOLIDATED ORDER DATED 30 TH SEPTEMBER, 2008 FOR AY 2001-02 TO 2006-07, LEVIED PENALTY UNDER SEC TION 271D AMOUNTING TO ` 16,48,98,940/-. THE RELEVANT PORTION OF THE PENALT Y ORDER READS AS UNDER:- 06. FROM THE AFORESAID DISCUSSION, IT CAN BE SEEN THAT THE DEFAULTS HAVE TAKEN PLACE WITHIN THE MEANINGS OF SE CTION 269SS READ WITH SECTION 271D AND SECTION 269T READ WITH SECTION 271E OF THE INCOME TAX ACT. THERE IS NO DO UBT THAT THE DOCUMENTS REFERRED TO ABOVE REFLECT MAINLY THE UNACCOUNTED RECEIPT OF LOAN/DEPOSIT AND THEIR REPAY MENT ALONG WITH INTEREST. VARIOUS DOCUMENTS SEIZED FROM THE PREMISES OF THE ASSESSEE COMPANY OR OF ITS DIRECTOR S SHOW HUGE RECEIPT AND PAYMENT OF CASH LOAN/DEPOSITS. TH ESE HAVE BEEN ANALYZED AND IT IS SEEN THAT THE TRANSACT IONS IN VIOLATION TO THE PROVISIONS OF 269SS ARE AS PER BEL OW; DEFAULT AS COMMITTED U/S 269SS R.W. SEC. 271D SN NARRATION & REFERENCE AMOUNT OF DEFAULT 1 CASH LOAN/DEPOSITS OF 1,48,50,000 RECEIVED UPTO 1 7- 05-2004 AS FOUND REFERRED IN ANNEXURE A-7/PAGE 42 RELEVANT TO AY 05-06 1,48,50,000 2 LOAN/DEPOSIT OF RS.2.40 CR. RECEIVED FROM PALIWAL IN AY 04-05 SHOWN IN ANN. A-7 PAGE 43 LESS 35 LACS RECD BY CHEQUE IN AY 04-05 2,05,00,000 ITA NO.2954/DEL/2008 & 16 OTHERS 10 3 ADDITIONAL LOAN/DEPOSIT RECEIVED ON 18-05-04 AS REFERRED IN ANNEX. A-7 PAGE 43 IN AY 05-06 10,00,000 4 CASH LOAN/DEPOSITS RECEIVED UPTO 31-03-2004 AS REFERRED IN ANNEXURE A-7 PAGE 43 IN AY 04-05 25,00,000 5 CASH LOAN/DEPOSIT ON WHICH INTEREST OF 4.68 LACS PAID FROM 01-1-04 TO 31-03-04 AS REFERRED IN A-7 PAGE 43 IN AY 04-05 93,60,000 6 CASH LOAN/DEPOSITS (MINUS CHEQUE AMTS) RECEIVED MENTIONED IN A-12 PAGE 17 FALLING IN AY 01-02; 02- 03; 03-04 & 06-07 [AY 03-04=7 LACS; AY 02-03-48.25 & AY 01-02=5 LACS] 60,25,000 7 CASH LOAN/DEPOSITS FROM SAMEER JOHRII (AY 06-07) AS REFERRED IN ANN.A-10 PAGE 11 OF 3.55 CR. IN AY 06-0 7 3,55,00,000 8 CASH LOAN/DEPOSITS RECEIVED AS MENTIONED IN A/C UPTO 14-11-05 REFERRED IN ANN.A-11 PAGE 22 BACK (ALSO ON PAGE 23) AY 06-07 5,63,63,940 9 CASH LOAN/DEPOSIT FROM OJHAJEE AS ON 04-08-2004 A S INDICATED IN ANN. A-11 PAGE 17 IN AY 05-06 67,00,000 10 CASH LOAN/DEPOSITS RECD. AS MENTIONED IN ANN. A- 12 PAGE 24 IN AY 06-07 60,00,000 11 FURTHER RECEIPT OF CASH LOAN/DEPOSITS OF 61 LACS AS REFERRED IN ANN. A-11 PAGE 17 AFTER RECEIPT OF 67 L ACS ON 04-08-2003 IN AY 04-05 61,00,000 TOTAL AMOUNTS OF DEFAULTS COMMITTED 16,48,98,940 ASSESSMENT YEAR WISE DEFAULTS FOR WHICH PENALTY IS LEVIABLE IS AS UNDER; ASSTT.YEAR AY 01- 02 AY 02- 03 03-04 04-05 05-06 06-07 TOTAL PENALTY AMT. 500000 4825000 700000 38460000 22550000 97863940 16,48,98,940 07. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES O F THE CASE, IT IS CLEAR THAT THE ASSESSEE HAS VIOLATED TH E PROVISIONS OF SECTION 269SS OF THE ACT BY ACCEPTING THE LOANS/DEPOSITS OTHERWISE BY WAY OF CROSSED CHEQUE/D RAFT AS REFERRED TO ABOVE. FURTHER, THE ASSESSEE HAS FAILE D TO EXPLAIN AS TO WHY THE SAID TRANSACTIONS COULD NOT H AVE ITA NO.2954/DEL/2008 & 16 OTHERS 11 BEEN ENTERED INTO BY WAY OF BANK DRAFT OR CROSSED C HEQUES. ACCORDINGLY, IT IS HELD THAT THE ASSESSEE HAS COMMI TTED THE DEFAULT WITHOUT ANY REASONABLE CAUSE U/S 271D OF TH E ACT AND, THEREFORE, PENALTY OF RS.16,48,98,940 I.E. EQU AL TO THE AMOUNT RECEIVED AS MENTIONED ABOVE IS HEREBY LEVIED IN YEARS MENTIONED ABOVE. 19. IT SEEMS THAT THE APPEALS AGAINST THE ABOVE PEN ALTY ORDER FOR AY 2001-02, 2002-03 & 2003-04 WERE DECIDED EARLY BY TH E CIT(A) WHO CANCELLED THE PENALTY. THE REVENUE FILED APPEAL BE FORE THE ITAT AGAINST THE CANCELLATION OF PENALTY WHILE THE ASSES SEE WAS IN CROSS- APPEAL ON THE TECHNICAL ISSUE OF PENALTY BEING BARR ED BY LIMITATION. THE ITAT DISPOSED OF THOSE APPEALS VIDE ITA NOS.449 5, 4496 & 4497/DEL/2009 IN WHICH THE REVENUES APPEALS AS WEL L AS ASSESSEES APPEALS WERE DISMISSED. THE RELEVANT FINDING BY TH E ITAT READS AS UNDER:- 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. FROM T HE CONTENTS OF THE SEIZED DOCUMENT, IT CANNOT BE SAID WITH CERTAINTY THAT THE ASSESSEE BEING A COMPANY HAS CONTRAVENED THE PROVISIONS WHICH STIPULATES THAT NO PERSON SHALL, AFTER THE 30 DAY OF JUNE, 1984, TAKE OR ACCE PT FROM ANY OTHER PERSON (HEREINAFTER REFERRED TO AS DEPOSI TOR), ANY LOAN OR DEPOSIT OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT, IF THE SAID AMO UNT IN ANY CASE EXCEED ` 20,000 OR MORE. THE FIRST CONDITION TO BE FULFILLED IS THAT THE ACCEPTANCE BY THE PERSON UPON WHOM THE PENALTY SOUGHT TO BE LEVIED OF LOAN OR ADVANCE FROM ANY OTHER PERSON. THE DOCUMENT ITSELF DOES NOT IND ICATE THAT THE ASSESSEE ITSELF HAS ACCEPTED FROM ANY OTHE R PERSON ANY LOAN OR DEPOSIT OTHERWISE THAN BY AN ACC OUNT ITA NO.2954/DEL/2008 & 16 OTHERS 12 PAYEE CHEQUE. THE NAME OF THE ASSESSEE IS COMPLETE LY ABSENT FROM THE SAID DOCUMENT. IT IS NOT THE CASE OF THE REVENUE THAT THE SAID DOCUMENT WAS FURTHER CORROBOR ATED WITH SOME MATERIAL TO INDICATE THAT THE SAID AMOUNT S WERE PAID TO THE ASSESSEE COMPANY IN THE FORM OF LOAN OR DEPOSIT. IN THE ABSENCE OF ANY SUCH MATERIAL BEING BROUGHT ON RECORD SIMPLY ON THE BASIS OF AFOREMENTIONED DOCUMENT, IT CANNOT BE SAID THAT THE ASSESSEE COMPA NY HAS CONTRAVENED THE PROVISIONS OF SECTION 269-SS SO AS TO MAKE IT LIABLE FOR PENALTY U/S 271D. CONSIDERING T HE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE OPINION THAT THERE IS NO INFIRMITY IN THE OR DER OF THE CIT(A) VIDE WHICH HE HAS DELETED THE PENALTY ON MER ITS. WE DECLINE TO INTERFERE AND, THEREFORE, THE DEPARTM ENTAL APPEALS ARE DISMISSED. (EMPHASIS BY UNDERLI NING PROVIDED BY US) 20. THE REVENUE FILED APPEAL AGAINST THE ORDER OF T HE ITAT BEFORE HONBLE JURISDICTIONAL HIGH COURT. THE HONBLE JUR ISDICTIONAL HIGH COURT, VIDE ORDER DATED 23 RD MAY, 2012 IN ITA NOS.301/2012, 304/2012 & 305/2012, DISMISSED THE REVENUES APPEALS WITH THE FOLLOWING FINDING:- 5. LEARNED COUNSEL FOR THE REVENUE HAS RELIED ON T HE STATEMENT OF YOGESH GUPTA RECORDED ON 31 ST MAY, 2006. IN THE SAID STATEMENT YOGESH GUPTA HAD DISCLOSED AND SURRENDERED AN AMOUNT OF RS.13.05 CRORES AS ADDITIO NAL INCOME IN THE FINANCIAL YEAR 2005-06. THIS INCLUDE D RS.2 CRORES IN HIS OWN HAND AND RS.9.05 CRORES AS INCOME OF REAL TECH PROJECTS PVT.LTD. RS.2 CRORES WAS DISCLOS ED AS UNDECLARED INCOME OF HOME DEVELOPERS PVT.LTD. IN T HE SAID STATEMENT IN QUESTION NOS.11 AND 12 YOGESH GUP TA ITA NO.2954/DEL/2008 & 16 OTHERS 13 WAS ASKED TO EXPLAIN DOCUMENT A-12. YOGESH GUPTA H AD STATED THAT THESE WERE UNACCOUNTED TRANSACTIONS IN CASH. NO QUESTION WAS PUT TO STATE OR FURNISH THE DETAILS OF THE WRITER OR RECIPIENT I.E. THE DETAILS OF THE COMPANI ES, WHICH HAD RECEIVED THE SAID AMOUNTS. HE WAS ALSO NOT ASK ED TO SPECIFY OR STATE WHETHER THE AMOUNT RECEIVED WAS ON ACCOUNT OF ADVANCES FOR FLATS OR LOAN. REVENUE WAS FULLY SATISFIED BY THE SURRENDER MADE AND CLOSED THEIR INVESTIGATION. THUS, IN THE PRESENT CASE, THERE IS DOUBT, BUT IT IS NOT ESTABLISHED THAT THE RESPONDENT-ASSES SEE HAD TAKEN LOAN/DEPOSIT IN CASH. THERE IS SUSPICION BUT THIS ALONE WITHOUT FURTHER VERIFICATION AND INVESTIGATIO N CANNOT JUSTIFY THE FINDING THAT THE RESPONDENT-ASSESSEE HA D TAKEN LOAN/DEPOSIT IN CASH. THE FINDINGS RECORDED BY THE TRIBUNAL ARE NOT PERVERSE. 6. IN VIEW OF THE AFORESAID FACTUAL POSITION, WE DO NOT THINK THAT THE ORDER PASSED BY THE TRIBUNAL REQUIRE S ANY INTERFERENCE IN EXERCISE OF POWER UNDER SECTION 260 A OF THE ACT. ACCORDINGLY, THE APPEAL IS DISMISSED. 7. AT THIS STAGE, LEARNED COUNSEL FOR THE APPELLANT - REVENUE SUBMITS THAT APPEALS OF OTHER YEARS ARE PEN DING BEFORE THE TRIBUNAL. WE EXPRESS NO OPINION ON OTHE R APPEALS, AS THE DECISION WILL DEPEND ON THE FACTS O F EACH CASE. (EMPHASIS BY UNDERLIN ING PROVIDED BY US) 21. FROM PARAGRAPH NO.7 OF THE ABOVE DECISION OF HO NBLE JURISDICTIONAL HIGH COURT, IT IS CLEAR THAT THE HON BLE HIGH COURT HAS CLEARLY MENTIONED THAT THEY ARE NOT EXPRESSING ANY OPINION ON THE ITA NO.2954/DEL/2008 & 16 OTHERS 14 APPEAL OF OTHER YEARS WHICH ARE PENDING BEFORE THE TRIBUNAL AND THE SAME WILL DEPEND ON THE FACTS OF EACH CASE. 22. NOW, THE QUESTION ARISES WHETHER THE FACTS IN T HE APPEALS BEFORE US ARE DIFFERENT OR SIMILAR. 23. IT HAS BEEN ADMITTED BY THE PARTIES BEFORE US T HAT THE FACTS OF ALL THE THREE YEARS UNDER APPEAL BEFORE US ARE SIMILAR. THEREFORE, FOR THE SAKE OF BREVITY, WE SHALL DISCUSS HERE THE FACTS OF AY 2004-05. THE ASSESSING OFFICER, IN THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2007, RECORDED THE FOLLOWING FINDING RELATING TO LOOSE PA PERS:- ANALYSIS OF THE SEIZED MATERIAL IN REGARD TO LOAN TRANSACTIONS & REPAYMENT ANNEXURE A-7 1. ONE ANNEXURE A-7 WAS SEIZED FROM THE RESIDENCE O F SHRI YOGESH GUPTA. THIS REGISTER CONTAINS INTERALI A DETAILS OF VARIOUS TRANSACTIONS IN PROPERTIES. ABOUT THIS REGISTER, THE ASSESSEE IN HIS EXPLANATION HAS SUBMITTED THAT THE SAME ARE ROUGH WORKINGS AND DO NOT HAVE ANY FINANCI AL IMPLICATIONS. APART FROM THE PROPERTY TRANSACTIONS , THIS ALSO CONTAINS LOANS/DEPOSIT TRANSACTIONS ALSO. TO REFER, ON PAGE NO.42 AND 43 OF IT DETAILS OF VARIOUS LOANS/DE POSITS RECEIVED FROM ONE MR. PALIWAL AND MR. GUPTA SDA ARE MENTIONED. THE ENTRIES IN THIS REGISTER ARE VERY S PEAKING AND LEAVE NO DOUBT THAT THEY (E.G. ON PAGE 42 AND 4 3) ARE THE TRANSACTIONS OF CASH LOANS RECEIVED AND THE INT EREST PAID. THE LOANS HAVE BEEN RECEIVED IN FY 03-04 AND AFTERWARDS. VERY OBVIOUSLY WHEN THE ASSESSEE HAS RECEIVED CASH LOANS THEY ALSO MUST HAVE BEEN REPAID IN CASH ONLY. AS MENTIONED ABOVE, THERE IS NO CLAIM O F THE ITA NO.2954/DEL/2008 & 16 OTHERS 15 ASSESSEE THAT BY THE DISCLOSURE AMOUNT (WHICH ADMIT TED STAND INVESTED IN THE ASSETS AS MENTIONED) INTER AL IA INCLUDE REPAYMENT OF LOANS ALSO. GOING BY THE FACT THAT ASSESSEE NOTES THE ENTRIES IGNORING 00/000 (2/3 ZEROS) THE TRANSACTIONS ARE IN LACS/CRORES. EVEN IF IT IS PRESUMED THAT THE PROFITS AS EARNED BY THE ASSESSEE FORMS PA RT OF THE DISCLOSURE STILL VERY CLEARLY THE REPAYMENT OF INTE REST AND CASH LOANS/DEPOSIT IS IN ADDITION TO THE AFORESAID DISCLOSURE. APART FROM TAKING ACTION U/S 269SS/269T, THE REPAYM ENT OF LOAN AND INTEREST IS ALSO REQUIRED TO BE TAXED ADDI TIONALLY. AS PER PAGE 43 (PERTAINING TO SOME MR. PALIWAL) LO ANS RECEIVED COMES TO 2,40,00,000/- (IN AY 04-05) ON VA RIOUS DATES. IT IS HELD THAT THESE LOANS RECEIVED, AS AL SO SEEN FROM THE OTHER COLUMN OF THE PAGE, HAVE BEEN REPAID IN AY 04-05 ITSELF. FURTHER, THE INTEREST THEREON AS PAI D/PAYABLE COMES TO RS.48 LACS (18 TO 24% AND HERE IS AVERAGED OUT TO 20%). TOTAL ADDITION ON ACCOUNT OF THIS PAGE WO ULD WORK OUT TO RS.2,88,00,000/- (2,40,00,000/- + 48 LACS). I AM SATISFIED THE ASSESSEE HAS FURNISHING/CONCEALED PAR TICULARS OF HIS INCOME. PENALTY PROCEEDINGS U/S 271(1)(C) I S BEING INITIATED ON THIS POINT SEPARATELY. (ADDITION 3,88,00,000/-) 2. SIMILAR ARE THE FACTS OF PAGE NO.16 TO 18 (ANNEX URE A-11) SEIZED FROM THE RESIDENCE OF YOGESH GUPTA. T HESE PAGES GIVE DETAILS OF LOANS/DEPOSITS AND THE INTERE ST PAID/PAYABLE THEREON TO SOME OJHAJI & SHARMAJI WHIC H COMES TO 75 LACS (8 LACS + 67 LACS) IN AY 04-05. I T IS HELD THAT THESE LOANS RECEIVED, HAVE BEEN REPAID IN AY 0 4-05 ITSELF. FURTHER, THE INTEREST THEREON AS PAID/PAYA BLE COMES ITA NO.2954/DEL/2008 & 16 OTHERS 16 TO RS.15 LACS. TOTAL ADDITION ON ACCOUNT OF THIS P AGE WOULD WORK OUT TO RS.90 LACS (75 + 15). I AM SATISFIED T HE ASSESSEE HAS FURNISHING/CONCEALED PARTICULARS OF HI S INCOME. PENALTY PROCEEDINGS U/S 271(1)(C) IS BEING INITIATED ON THIS POINT SEPARATELY. 24. FROM THE ABOVE, IT IS EVIDENT THAT THE PAPERS W ERE SEIZED FROM SHRI YOGESH GUPTA AND AS PER THE ASSESSING OFFICER, THESE PAPERS RECORDED THE TRANSACTIONS OF LOAN RECEIVED BY THE A SSESSEE. HERE, IT WOULD BE RELEVANT TO CONSIDER THE STATEMENT OF SHRI YOGESH GUPTA FROM WHOM THE PAPERS WERE SEIZED. THE RELEVANT PORTION OF HIS STATEMENT READS AS UNDER:- Q.4 DURING THE SEARCH & SEIZURE OPERATIONS CARRIED OUT AT YOUR RESIDENCE ON 28/03/2006, YOU HAD MADE A VOLUNT ARY DISCLOSURE OF AN ADDITIONAL INCOME OF RS.13 CRORES. DO YOU CONFIRM THE SAME? ANS. - YES, I CONFIRM THE ABOVE DISCLOSURE OF RS.13 CRORES OF ADDITIONAL INCOME. Q.5 PLEASE GIVE THE ASSESSEE WISE BREAK UP OF THE A BOVE MENTIONED DISCLOSURE. ANS. I HAVE MADE A DISCLOSURE OF RS.13 CRORES THE B REAK UP OF WHICH IS AS UNDER: 1. IN MY OWN HANDS RS.2 CRORES (TWO CRORES ) 2. M/S HOME DEVELOPERS PVT.LTD. RS.2 CRORES ( TWO CRORES) 3. M/S REAL TECH PROJECTS & CONSTRUCTION PVT.LTD. RS.9 CRORES (NINE CR ORES) ITA NO.2954/DEL/2008 & 16 OTHERS 17 Q.6 PLEASE ALSO GIVE THE DETAILS REGARDING THE SOUR CES OF THIS UNACCOUNTED INCOME OF RS.13 CRORES AND ITS UTI LISATION. ANS. THE MONEY HAVE BEEN GENERATED BY THE GROUP OVE R A PERIOD OF TIME OUT OF UNACCOUNTED TRANSACTIONS OF COMMISSION, SALE, PURCHASE, CONSTRUCTION, FINISHING AS WELL AS FINANCING OF PROPERTIES. THE AMOUNTS SO GENERATED HAVE BEEN UTILIZED IN ACQUISITION OF ASSETS OR INTRODUCTION IN BUSINESS I N THE FORM OF STOCK AND CASH. THE DETAILS ARE AS UNDER: (A) IN MY OWN HANDS SL.NO. UTILISATION OF UNACCOUNTED MONEY AMOUNT UTIL IZED(RS.) 1 ADVANCE AGAINST PROPERTY TO M/S HOME DEVELOPERS PVT.LTD. 25,00,000/- 2 ADVANCE AGAINST PROPERTY NO.E-6/13, VASANT VIHAR, NEW DELHI TO M/S KIRTI REALTORS PVT.LTD. 1,61,00,000/- 3 INVESTMENT IN PROPRIETARY UNIT INNOVATION 1,95, 000/- 4 STOCK IN HOME DEVELOPERS PVT.LTD. (PURCHASED OUT OF REGULAR BOOKS OF ACCOUNTS IN CASH) 12,05,000/- TOTAL 2,00,00,000/- (B) IN THE HANDS OF M/S HOME DEVELOPERS PVT.LTD. SL.NO. UTILISATION OF UNACCOUNTED MONEY AMOUNT UTIL IZED(RS.) 1 PAYMENTS MADE AGAINST PURCHASE OF PROPERTY NO.A-9/33, VASANT VIHAR, NEW DELHI 1,54,00,000/- 2 PAYMENT MADE AGAINST PURCHASE OF PROPERTY NO.2, SUKHDEV MARKET, KOTLA, DELHI. 37,80,000/- 3 CASH IN HAND (IMPREST) 7,57,000/- TOTAL 1,99,37,000/- (C) IN THE HANDS OF M/S REAL TECH PROJECTS & CONSTR UCTION PVT.LTD. ITA NO.2954/DEL/2008 & 16 OTHERS 18 SL.NO. UTILISATION OF UNACCOUNTED MONEY AMOUNT UTIL IZED(RS.) 1 SALE PROCEEDS RECEIVED IN CASH IN CONNECTION WITH THE ONGOING & FUTURE PROJECTS UTILIZED IN INCURRING VARIOUS EXPENDITURE IN CASH RELATING TO CONSTRUCTION OF THE PROJECTS PAID OUTSIDE THE REGULAR BOOKS OF ACCOUNTS. 9,00,00,000/- Q.7 I AM SHOWING THE ANNEXURE A-7 SEIZED FROM YOUR RESIDENCE DURING THE SEARCH & SEIZURE OPERATIONS CA RRIED U/S 132 ON 28/03/2006. PLEASE EXPLAIN THE CONTENTS OF THE SAME AND IN WHOSE HANDWRITING THESE HAVE BEEN WRITT EN. ANS. THIS ANNEXURE IS IN MY OWN HANDWRITING AND IT CONTAINS THE DETAILS OF SAME UNACCOUNTED TRANSACTIO NS WHICH ARE CONTAINED IN ANNEXURES A-1 TO A-6 AND HAV E BEEN FULLY COVERED UNDER THE DISCLOSURE MADE ABOVE. SPECIFICALLY PAGE NO.7 OF THIS ANNEXURE CONTAINS DE TAILS OF INVESTMENT OF RS.37,80,000/- MADE IN PROPERTY AT KO TLA WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS. TH E FIGURE OF 29,300 ON THIS PAGE REPRESENTS THE COST OF PLO T AND ACTUALLY MEANS RS.29,30,000/- AND SIMILARLY THE FIG URE OF 8.5(C) REPRESENTS THE COST OF CONSTRUCTION AND ME ANS RS.8,50,000/-. THEREFORE THE TOTAL CASH AMOUNT INV ESTED IN THIS PROPERTY IS RS.37,80,000/- WHICH IS BEING OFFE RED FOR TAXATION AS AN ADDITIONAL INCOME. Q. PLEASE TELL THE SOURCE OF THIS CASH INVESTMENT O F RS.37.80 LAKHS. ANS. THE SOURCE OF THIS INVESTMENTS IS CASH RECEIPT S BY M/S HOME DEVELOPERS PVT.LTD. THROUGH THE BUSINESS O F ITA NO.2954/DEL/2008 & 16 OTHERS 19 SALE/PURCHASE OF PROPERTIES AND ARE NOT ACCOUNTED F OR IN THE REGULAR BOOKS OF ACCOUNTS. Q.8 I AM SHOWING THE ANNEXURES A-8 & A-9 SEIZED FRO M YOUR RESIDENCE DURING THE SEARCH & SEIZURE OPERATIO NS CARRIED U/S 132 ON 28/03/2006. PLEASE EXPLAIN THE CONTENTS OF THE SAME. ANS. THESE ANNEXURES CONTAIN VARIOUS DAY TO DAY MISCELLANEOUS NOTINGS REGARDING PENDING WORKS ETC. AND HAVE NO FINANCIAL IMPLICATIONS. Q.9 I AM SHOWING THE ANNEXURES A-10 & A-11 SEIZED F ROM YOUR RESIDENCE DURING THE SEARCH & SEIZURE OPERATIO NS CARRIED U/S 132 ON 28/03/2006. PLEASE EXPLAIN THE CONTENTS OF THE SAME. ANS. THESE ANNEXURES CONTAIN DETAILS OF VARIOUS ACCOUNTED AS WELL AS UNACCOUNTED TRANSACTIONS WHICH REPRESENT RECEIPTS IN CASH FROM VARIOUS PERSONS AND EXPENDITURE INCURRED IN CASH. HOWEVER THE SAME HAVE BEEN DULY CONSIDERED IN MAKING THE ABOVE DISCLOSURE OF RS.13 CRORES IN MY HANDS AND THE HANDS OF MY COMPAN IES. Q.10 I AM SHOWING THE ANNEXURE A-12 SEIZED FROM YOU R RESIDENCE DURING THE SEARCH & SEIZURE OPERATIONS CA RRIED U/S 132 ON 28/03/2006. PLEASE EXPLAIN THE CONTENTS OF THE SAME. ANS. THIS ANNEXURE CONTAINS DETAILS OF VARIOUS ACCO UNTED AS WELL AS UNACCOUNTED TRANSACTIONS WHICH REPRESENT RECEIPTS IN CASH FROM VARIOUS PERSONS AND EXPENDITU RE ITA NO.2954/DEL/2008 & 16 OTHERS 20 INCURRED IN CASH. SPECIFICALLY PAGES NO.7 TO 9 REP RESENT THE RECEIPTS AND PAYMENTS BY THE DIRECTORS OF M/S REAL TECH CONSTRUCTION PVT.LTD. (SHRI YOGESH GUPTA, SHRI RAJ IV BEHL AND SHRI PANKAJ DAYAL). ALL THREE OF THEM ARE ENTI TLED TO RECEIVE AND SPEND MONEY ON BEHALF OF THE COMPANY. THE PAGES NO.7 TO 9 REPRESENT THE AMOUNTS RECEIVED BY T HEM IN CASH AS WELL AS THROUGH CHEQUES FROM VARIOUS PERSON S ON ACCOUNT OF BOOKING OF VARIOUS UNITS OF SEVERAL PROJ ECTS OF THE COMPANY. PAGE NO.6 OF THIS ANNEXURE IS THE COMBINED SUMMARY OF THE RECEIPTS AS PER PAGES 7 TO 9. THE TOTAL CASH R ECEIPTS AS PER THESE PAGES ARE RS.7.25 CRORES. A DISCLOSURE OF AN ADDITIONAL INCOME OF RS.7.25 CRO RES HAS BEEN MADE ON THIS ACCOUNT. THE PAGES NO.24 TO 34 ( LEDGER ACCOUNTS) REPRESENT CASH COLLECTION MADE BY VARIOUS AGENTS AND THEIR UTILIZATION. HOWEVER, THESE CASH RECEIPTS ARE ALSO REFLECTED IN THE PAGES 6 TO 9 OF THIS ANNE XURE. Q. PLEASE TELL HOW THE ABOVE RECEIPTS OF RS.7.25 CR ORES HAVE BEEN UTILIZED? ANS. THIS AMOUNT HAS BEEN UTILIZED FOR INCURRING VA RIOUS EXPENDITURE RELATING TO THE CONSTRUCTION OF THE PRO JECTS BEING EXECUTED BY THE COMPANY PAID OUTSIDE THE BOOK S OF ACCOUNTS. Q.11 I AM SHOWING YOU THE ANNEXURE A-1 SEIZED FROM THE RESIDENCE OF SHRI JATINDER KUMAR GUPTA AT 1649, SEC TOR 7E, FARIDABAD, HARYANA DURING THE COURSE OF SEARCH & SE IZURE ITA NO.2954/DEL/2008 & 16 OTHERS 21 OPERATIONS CARRIED U/S 132 ON 28/03/2006. PLEASE E XPLAIN THE CONTAINS OF THE SAME. ANS. THIS ANNEXURE CONTAINS VARIOUS BUSINESS CORRESPONDENCE, COPIES OF CHEQUES, BANK STATEMENTS AND SOME BILLS ETC. Q.12 I AM SHOWING YOU THE ANNEXURE A-2 SEIZED FROM THE RESIDENCE OF SHRI JATINDER KUMAR GUPTA AT 1649, SEC TOR 7E, FARIDABAD, HARYANA DURING THE COURSE OF SEARCH & SE IZURE OPERATIONS CARRIED U/S 132 ON 28/03/2006. PLEASE E XPLAIN THE CONTENTS OF THE SAME. ANS. PAGE NO.1 & 2 ARE RECEIPTS ISSUED BY JOYCE TIT US IN RESPECT OF PAYMENTS MADE BY ME FOR PURCHASE OF PROP ERTY NO.F/5/2, VASANT VIHAR, NEW DELHI. OUT OF THIS RS. 25 LAKHS WAS PAID IN CASH AND THE SAME IS BEING SURRENDERED I.E. OFFERED FOR TAXATION. PAGES NO.45 TO 52 ARE AGREEMENT TO SELL REGARDING PURCHASE OF PROPERTY NO.E-6/13, VASANT VIHAR, NEW D ELHI BY M/S KIRTI REALTORS PVT.LTD. A CASH PAYMENT OF RS.3 1 LAKHS WAS MADE BY THE COMPANY TO THE VENDORS. I WOULD AL SO LIKE TO STATE THAT ALTHOUGH THE AGREEMENT TO SELL I S FOR RS.3.61 CRORES, THE SALE DEED OF THIS PROPERTY WAS EXECUTED FOR RS.2 CRORES I.E. IN THE SALE DEED THE PROPERTY WAS UNDERVALUED BY RS.1.61 CRORES. THEREFORE AN AMOUNT OF RS.1.61 CRORES IS BEING OFFERED FOR TAXATION AS AN ADDITIONAL INCOME IN MY OWN HANDS, SINCE I HAD MADE THE CASH PAYMENTS OF RS.1.61 CRORES OUT OF MY PERSONAL INCOM E. ITA NO.2954/DEL/2008 & 16 OTHERS 22 THE PAGES NO.77 TO 84 OF THIS ANNEXURE ARE RECEIPTS OF PAYMENTS MADE BY M/S HOME DEVELOPERS PVT.LTD. TO VARIOUS VENDORS AGAINST PURCHASE OF PROPERTY NO.A-9 /33, VASANT VIHAR, NEW DELHI. AS PER THESE PAGES, CASH PAYMENTS OF RS.54 LAKHS WERE MADE TO THE VENDORS. THEREFORE, AN ADDITIONAL INCOME OF RS.54 LAKHS IS B EING OFFERED FOR TAXATION IN THE HANDS OF M/S HOME DEVEL OPERS PVT.LTD. THE OTHER PAGES ARE VARIOUS SALE DEEDS IN R/O SEVER AL PROPERTIES WHICH HAVE ALREADY BEEN SOLD. (EMPHASIS BY UNDERLIN ING PROVIDED BY US) 25. FROM THE ABOVE, IT IS EVIDENT THAT A DETAILED E NQUIRY WAS MADE FROM SHRI YOGESH GUPTA IN RESPECT OF VARIOUS PAPERS SEIZED FROM HIM AND IN RESPECT OF NOT A SINGLE PAPER, HE HAS STATED THAT THE NOTING ON THE PAPER IS RELATING TO BORROWING BY THE ASSESSEE. IN RESPECT OF EACH AND EVERY PAPER, HE EXPLAINED THE NATURE OF TRANSAC TION AND IN MOST OF THE CASES ALSO EXPLAINED THE NAME OF THE GROUP CONC ERN TO WHICH SUCH PAPER BELONGED. IN RESPECT OF ONLY FEW PAPERS I.E. PAGE NOS.77 TO 84 OF THE ANNEXURE (SEE REPLY TO QUESTION NO.12), HE M ENTIONED THAT THESE PAPERS BELONGED TO M/S HOME DEVELOPERS (P) LT D., I.E., THE ASSESSEE. HE STATED THAT THESE PAPERS ARE RELATING TO PURCHASE OF PROPERTY NO.A-9/33, VASANT VIHAR, NEW DELHI IN RESP ECT OF WHICH CASH PAYMENT OF ` 54 LAKHS WAS MADE AND WHICH WAS OFFERED AS ADDITION AL INCOME. THE HONBLE JURISDICTIONAL HIGH COURT HAS ALSO CONSIDERED HIS STATEMENT WHILE DECIDING THE REVENUES APPEAL FOR A Y 2001-02, 2002- 03 & 2003-04 AND HAS RECORDED THE SIMILAR FINDING T HAT WITH REGARD TO THE LOOSE PAPERS, SHRI YOGESH GUPTA HAD STATED THAT THESE WERE UNACCOUNTED TRANSACTIONS IN CASH. IN HIS STATEMENT , HE ALSO SURRENDERED THE INCOME OF ` 13 CRORES IN HIS NAME AND IN THE NAME OF ITA NO.2954/DEL/2008 & 16 OTHERS 23 THE GROUP CONCERN. THE HONBLE JURISDICTIONAL HIGH COURT HAD ALSO NOTED THAT THE REVENUE WAS FULLY SATISFIED BY THE S URRENDER MADE AND CLOSED THEIR INVESTIGATION. THE ABOVE FINDING OF T HE HONBLE JURISDICTIONAL HIGH COURT IS SQUARELY APPLICABLE TO THE YEAR UNDER APPEAL ALSO BECAUSE WE FIND THAT IN THE YEAR UNDER APPEAL ALSO, THE REVENUE HAS BROUGHT NO OTHER MATERIAL ON RECORD TO ESTABLISH THAT AS PER THE LOOSE PAPERS, ANY AMOUNT WAS BORROWED BY TH E ASSESSEE. THEY HAVE NOT EVEN EXAMINED THE PERSON WHOSE NAME I S CLAIMED TO HAVE BEEN MENTIONED ON THE LOOSE PAPERS. IN THE LO OSE PAPERS, NO WHERE IT IS MENTIONED THAT THEY BELONGED TO THE ASS ESSEE I.E. M/S HOME DEVELOPERS (P) LTD. WHICH IS A COMPANY. ADMIT TEDLY, THE LOOSE PAPERS WERE FOUND FROM SHRI YOGESH GUPTA AND NOT TH E ASSESSEE COMPANY. THE UNDISCLOSED INCOME REPRESENTED BY SUC H LOOSE PAPERS HAD ALREADY BEEN OFFERED BY SHRI YOGESH GUPTA AND O THER GROUP COMPANIES WHICH HAS BEEN ACCEPTED BY THE REVENUE. PHOTOCOPY OF THE LOOSE PAPERS HAVE ALSO BEEN PRODUCED BY THE ASS ESSEE IN HIS PAPER BOOK. FOR THE SAKE OF BREVITY, WE SHALL MENTION HE REIN BELOW ONLY ONE LOOSE PAPER I.E. PAGE NO.43 IN WHICH, ACCORDING TO THE REVENUE, THERE IS AN EVIDENCE OF LOAN OF ` 2,40,00,000/- TAKEN BY THE ASSESSEE. WE FIND THAT THE ASSESSING OFFICER HAS CONSIDERED THE ENTRIES AT THE LEFT HAND SIDE OF THE PAPER WHICH IS TOTALED TO ` 2,40,000/-. ON THIS LOOSE PAPER, ONLY ONE NAME PALIWAL IS WRITTEN AND THERE A RE DATES AND AMOUNTS WITHOUT ANY NARRATION. THE TOTAL OF AMOUNT S IS ` 2,40,000/-. IT IS THE INFERENCE OF THE ASSESSING OFFICER THAT THE ASSESSEE IS MAKING THE ENTRIES IGNORING 00/000 (2/3 ZEROS). IT SE EMS THAT IN ` 2,40,000/-, HE INCREASED 00 (2 ZEROS) AND MADE IT ` 2,40,00,000/-. AS PER THE ASSESSING OFFICER, THE ENTRY IS FOR RECEIPT OF LOAN , THOUGH IN THE LOOSE PAPER THERE IS NO SUCH NARRATION EXCEPT DATE AND AM OUNT. THE ASSESSING OFFICER FURTHER PRESUMES THAT THE ASSESSE E HAS REPAID THE LOAN ALONGWITH THE INTEREST AND HE PRESUMED THE RAT E OF INTEREST TO BE 20%. HE MADE THE ADDITION IN RESPECT OF SUCH ALLEG ED REPAYMENT OF LOAN WITH INTEREST. THE LEARNED CIT(A) HAS DELETED THE ADDITION WITH ITA NO.2954/DEL/2008 & 16 OTHERS 24 REGARD TO REPAYMENT OF LOAN ON THE GROUND THAT SINC E LOAN AMOUNT ITSELF WAS AVAILABLE WITH THE ASSESSEE OUT OF WHICH THIS REPAYMENT WAS MADE, HE REDUCED THE INTEREST. THUS, THE ADDITION IS PARTLY SUSTAINED BY HIM. HOWEVER, AFTER CONSIDERING THE ENTIRE FACT S AND ARGUMENTS OF BOTH THE SIDES, WE FIND THAT THE ENTIRE ADDITION IS BASED UPON THE PRESUMPTION OF THE ASSESSING OFFICER. ON THE LOOSE PAPERS, THERE IS NOTING OF DATES AND AMOUNTS WITHOUT ANY NARRATION. THE TOTAL OF SUCH AMOUNT IS ` 2,40,000/-. THE FIRST PRESUMPTION BY THE ASSESSING OFFICER IS THAT IT IS NOT ` 2,40,000/- BUT ` 2,40,00,000/-. THE SECOND PRESUMPTION IS THAT THE NOTING IS RELATING TO LOAN TAKEN BY THE ASSESSEE. THE THIRD PRESUMPTION IS THAT THE LOAN W AS REPAID DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UND ER CONSIDERATION. THE FOURTH PRESUMPTION IS THAT THE REPAYMENT OF THE LOAN WAS ALONGWITH INTEREST AT THE RATE OF 20%. ON THESE SE RIES OF PRESUMPTIONS, HE NOT ONLY MADE HUGE ADDITIONS RUNNI NG INTO CRORES OF RUPEES BUT ALSO LEVIED PENALTIES UNDER SECTIONS 271 D & 271E. HIS FINDING IS NEITHER BASED UPON THE NOTING ON THE LOO SE PAPERS NOR ANY CORROBORATIVE EVIDENCE BROUGHT ON RECORD DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ON THE OTHER HAND, MATERIA L AVAILABLE ON RECORD IS CONTRARY, I.E., (I) THE PAPERS WERE FOUND FROM SHRI YOGESH GUPTA AND NOT THE ASSESSEE, (II) STATEMENT OF SHRI YOGESH GUPTA WAS RECORDED IN WHICH HE STATED THAT THESE WERE UNACCOU NTED TRANSACTIONS, (III) HE SURRENDERED THE INCOME FROM SUCH UNACCOUNT ED TRANSACTIONS IN HIS HANDS AS WELL AS IN THE HANDS OF GROUP CONCERN, (IV) THE INCOME FROM UNACCOUNTED TRANSACTIONS AS SURRENDERED BY SHR I YOGESH GUPTA AND ALL THE GROUP CONCERNS HAS BEEN ACCEPTED BY THE REVENUE. IN VIEW OF THESE FACTS, IF REVENUE WANTED TO TAKE THE VIEW THAT THE NOTING ON THE LOOSE PAPERS IS WITH REGARD TO LOAN TAKEN BY TH E ASSESSEE, THEN THE BURDEN WAS UPON THE REVENUE TO ESTABLISH SO. HOWEV ER, THE ASSESSING OFFICER DID NOTHING EXCEPT TO MAKE SERIES OF PRESUM PTIONS AND THEN MADE THE ADDITION AND LEVIED THE PENALTY ON THE BAS IS OF HIS PRESUMPTIONS. WE FIND THAT SIMILAR SITUATION WAS DEALT WITH BY THE ITA NO.2954/DEL/2008 & 16 OTHERS 25 ITAT WHILE CONSIDERING THE REVENUES APPEAL FOR PEN ALTY FOR AY 2001- 02, 2002-03 & 2003-04 AND THE ITAT HAS HELD THAT TH E DOCUMENT DOES NOT INDICATE THAT THE ASSESSEE HAS ACCEPTED LOAN OR DEPOSIT FROM ANY OTHER PERSON. THE NAME OF THE ASSESSEE IS COMPLETE LY ABSENT FROM THE SAID DOCUMENT. IDENTICAL IS THE SITUATION IN THE Y EARS UNDER APPEAL BEFORE US. NONE OF THE DOCUMENTS INDICATE THAT THE ASSESSEE I.E. M/S HOME DEVELOPERS (P) LTD. HAS TAKEN ANY LOAN OR DEPO SIT FROM ANY OTHER PERSON. THE ABOVE FINDING OF THE ITAT HAS BEEN UPH ELD BY THE HONBLE JURISDICTIONAL HIGH COURT. THE HONBLE JURISDICTIO NAL HIGH COURT HELD THAT THOUGH THERE IS A DOUBT BUT IT IS NOT ESTABLIS HED THAT THE RESPONDENT ASSESSEE HAD TAKEN LOAN/DEPOSIT IN CASH. THEIR LORDSHIPS FURTHER OBSERVED THAT THERE IS SUSPICION BUT THIS A LONE WITHOUT ANY FURTHER VERIFICATION AND INVESTIGATION CANNOT JUSTI FY THE FINDING THAT THE RESPONDENT-ASSESSEE HAD TAKEN LOAN/DEPOSIT IN CASH. WITH THESE OBSERVATIONS, THEIR LORDSHIPS UPHELD THE FINDING OF THE ITAT. IN OUR OPINION, THE ABOVE OBSERVATION OF THEIR LORDSHIPS O F THE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE FOR AY 2000-01 TO 2003-04 WOULD BE SQUARELY APPLICABLE IN THE YEARS UNDER APPEAL ALSO. IN THESE YEARS ALSO, AT THE MOST, IT CAN BE THE DOUBT OF THE ASSES SING OFFICER THAT UNACCOUNTED TRANSACTIONS ARE IN THE NATURE OF THE L OAN TAKEN. HOWEVER, THE DOUBT OR SUSPICION OF THE ASSESSING OF FICER IS NOT ENOUGH TO HOLD THAT THE ASSESSEE HAD TAKEN LOAN/DEPOSIT IN CASH. MOREOVER, IN THE YEARS UNDER APPEAL, THE ASSESSING OFFICER MADE FURTHER PRESUMPTIONS THAT THERE WAS REPAYMENT OF LOAN IN CA SH THOUGH THERE IS NO SUCH NOTING ON THE LOOSE PAPER. IN OUR OPINION, THE FINDING OF THE ITAT AS WELL AS HONBLE JURISDICTIONAL HIGH COURT I N AY 2000-01 TO 2003- 04 WOULD BE SQUARELY APPLICABLE TO THE YEARS UNDER APPEAL. WE FURTHER HOLD THAT WHEN IT IS NOT ESTABLISHED THAT THE ASSES SEE HAD TAKEN LOAN OR DEPOSIT, THE QUESTION OF FURTHER PRESUMPTION THAT S UCH LOAN OR DEPOSIT WAS REPAID DURING THE YEAR UNDER CONSIDERATION WAS WITHOUT ANY BASIS OR MATERIAL ON RECORD. ITA NO.2954/DEL/2008 & 16 OTHERS 26 26. IN VIEW OF THE ABOVE, WE, RESPECTFULLY FOLLOWIN G THE DECISION OF THE ITAT AND HONBLE JURISDICTIONAL HIGH COURT IN A SSESSEES OWN CASE FOR AY 2000-01 TO 2003-04 (SUPRA), HOLD THAT THE AD DITION MADE BY THE ASSESSING OFFICER FOR UNEXPLAINED REPAYMENT OF LOAN AND ALSO INTEREST THEREON CANNOT BE SUSTAINED. THEREFORE, THE ORDER OF LEARNED CIT(A) TO THE EXTENT HE DELETED THE ADDITION IS UPHELD AND TH E REVENUES APPEALS IN ITA NOS.3312/DEL/2008, 3577/DEL/2008 & 3 287/DEL/2008 ARE DISMISSED. SO FAR AS THE ADDITION IN RESPECT OF IN TEREST SUSTAINED BY THE LEARNED CIT(A) IS CONCERNED, THE SAME IS REVERS ED AND THE ADDITION SUSTAINED BY THE LEARNED CIT(A) IN RESPECT OF INTER EST IS DELETED. ACCORDINGLY, ASSESSEES APPEALS IN ITA NOS.2954/DEL /2008, 3101/DEL/2008 & 2955/DEL/2008 ARE ALLOWED. 27. THE ASSESSING OFFICER HAS ALSO LEVIED PENALTY I N RESPECT OF ACCEPTANCE OF LOAN/DEPOSIT IN CASH AND ALSO THE REP AYMENT OF LOAN/DEPOSIT IN CASH. AS WE HAVE ALREADY HELD THAT THERE IS NO EVIDENCE OF ACCEPTANCE OF LOAN OR DEPOSIT IN CASH O R REPAYMENT OF LOAN OR DEPOSIT IN CASH, THEREFORE, THE PENALTIES LEVIED UNDER SECTION 271D AND SECTION 271E ARE CANCELLED. THE APPEALS OF THE REVENUE AGAINST DELETION OF PENALTY ARE DISMISSED WHEREAS THE APPEA LS OF THE ASSESSEE AGAINST THE SUSTENANCE/ENHANCEMENT OF PENALTY ARE A LLOWED. 28. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED WHEREAS THAT OF THE REVENUE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2012. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 21.09.2012 VK. ITA NO.2954/DEL/2008 & 16 OTHERS 27 COPY FORWARDED TO: - 1. ASSESSEE : M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., M/S HOME DEVELOPERS (P) LTD., D DD D- -- -22, 2 22, 2 22, 2 22, 2 ND NDND ND FLOOR, DEFENCE COLONY, FLOOR, DEFENCE COLONY, FLOOR, DEFENCE COLONY, FLOOR, DEFENCE COLONY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. 2. REVENUE : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, NEW DELHI AND 21, NEW DELHI AND 21, NEW DELHI AND 21, NEW DELHI AND ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, CENTRAL RANGE CENTRAL RANGE CENTRAL RANGE CENTRAL RANGE- -- -2, NEW DELHI. 2, NEW DELHI. 2, NEW DELHI. 2, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR