ACIT, New Delhi V. M/s. Shyam Sunder Infrastructure (P) Ltd., New Delhi

ITA 6446/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7005 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SEEMA RAJ
• Assessee Lawyers: SANJEEV BINDAL
• Keywords: Search and seizure
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA, JM IT A NO. 6446/DEL/2013 : ASSTT. YEAR : 2010 - 11 ASSTT. COMMISSIONER O F INCOME TAX, CENTRAL CIRCLE - 15, NEW DELHI VS M/S SHYAM SUNDER INFRASTRUCTURE (P) LTD., FORMERLY KNOWN AS M/S MAMRAM DEVELOPERS (P) LTD., G - 18 & 19, MAJESTY MALL PLOT NO. 2, ROAD NO. 43, GURU HARKISHAN MARG, PITAMPURA, DELHI - 110034 (APPELLANT) (RESPONDEN T) PAN NO. A A ECM1207G ASSESSEE BY : SH. SANJEEV BINDAL , CA REVENUE BY : MS. SEEMA RAJ , CIT DR DATE OF HEARING : 10 .0 1 .201 7 DATE OF PRONOUNCE MENT : 13 .01 .201 7 ORDER PER N . K. SAINI, AM : THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 17.09 .2013 OF LD. CIT(A) - X XXI , NEW DELHI. 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL READS AS UNDER: 1. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS.2,80,00,000/ - . 3 . FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ITA NO . 6446 /DE L/201 3 SHYAM SUNDER INFRASTRUCTURE (P) LTD. 2 ACT) WAS CONDUCTED ON 24.09.2009 IN THE CASE OF M/S MAMRAM GRO UP OF CASES WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF TIN PLATES, RUNNING BANQUET HALL AND CONSTRUCTION & SALE OF COMMERCIAL COMPLEXES/BUILDING. THE AO MADE THE IMPUGNED ADDITION ON THE BASIS OF STATEMENT OF SH. RAM KISHAN GUPTA BY OBSE RVING AS UNDER: S. NO. NAME OF THE PERSON AMOUNT SURRENDERED (RS.) 1 RAM KISHAN GUPTA 2.00 CR. 2 SANJAY GUPTA 2.50 CR. 3 KAMLA GARG 4.25 CR. 4 RENU GUPTA 0.25 CR. 5 SYMPHONY CELEBRATORS (P) LTD. 1.00 CR. 6 ATHENA LOGISTICS PARK (P) LID. 1.00 CR. 7 MAMRAM DEVELOPERS (P)'LLD. 6.00 CR. 8 BABUSHAKA PROMOTERS (P) LID. 2 . 00 CR. TOTAL 19.00CR. 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DELETED THE ADDITION BY OBSERVING IN PARA 3.15 OF THE IMPUGNED ORDER AS UNDER: 3.15 AFTER CONSIDERING THE ARGUMENTS OF THE AR AND THE JUDICIAL PRONOUNCEMENTS CITED BY HIM, I AM OF THE VIEW THAT, SOLE RELIANCE ON THE STATEMENT U/S 132(4) AND WITHOUT ANY POINTER (AT LEAST) TO THE POSSIBLE AREAS OF SUPPRESSION OF INCOME, CANNOT BE A SUF FICIENT AND VALID GROUND, FOR MAKING SUCH HUGE ADDITION TO THE TOTAL INCOME. SH. RAM KISHAN GUPTA WAS NOT ASKED TO PROVIDE, IN DETAIL, THE NATURE OF THE ADDITIONAL INCOME WHICH WAS BEING SURRENDERED. THIS MISSING POINT HAS NOT BEEN MADE UP EITHER AT THE PO ST SEARCH ITA NO . 6446 /DE L/201 3 SHYAM SUNDER INFRASTRUCTURE (P) LTD. 3 STAGE OR AT THE ASSESSMENT STAGE. THEREFORE, I HOLD THAT THE ADDITION OF RS. 2,80,00,000/ - SOLELY ON THE BASIS OF STATEMENT OF SH. RAM KISHAN GUPTA MADE U/S 132(4) IS NOT PROPER AND HENCE THE ADDITION IS LIABLE TO BE DELETED. 5 . NOW THE DEPART MENT IS IN APPEAL. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION DATED 20.09.2016 OF THE ITAT DELHI BENCH D , NEW DELHI IN ITA NO. 6444 /DEL/2013 FOR THE ASSESSMENT YEAR 2010 - 11 IN THE CASE OF ACIT, CENTRAL CIRCLE - 15, NEW DELHI VS M/S BABUSHAKA PROMOTERS PVT. LTD., DELHI, WHO BELONGS TO THE SAME GROUP TO WHICH THE ASSESSEE BELONGS AND THE ADDITION MADE THEREIN WAS ALSO BASED ON SIMILAR FAC TS (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). 6 . IN HER RIVAL SUBMISSIONS THE LD. CIT DR ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 7 . WE HAVE CONS IDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE IMPUGNED ADDITION WAS MADE BY THE AO SOLELY ON THE BASIS OF STATEMENT OF SH. RAM KISHAN GUPTA. ON A SIMILAR ISSUE IN THE CASE OF ACIT, CENTRAL CIRCLE - 15, NEW DELHI VS M/S BABUSHAKA PROMOTERS PVT. LTD., DELHI (SUPRA), THIS BENCH OF THE ITAT VIDE ORDER DATED 20.09.2016 HELD IN PARAS 9 & 10 AS UNDER: ITA NO . 6446 /DE L/201 3 SHYAM SUNDER INFRASTRUCTURE (P) LTD. 4 9. ON CAREFUL CONSIDERATION OF ALLEGATIONS MADE BY THE AO FOR M AKING THE IMPUGNED ADDITION, IT IS VIVID THAT THE AO MADE ADDITION IN PRESENT A.Y 2010 - 11 IN PURSUANCE TO SOME ALLEGED DISCREPANCIES PERTAINING TO A.Y 2009 - 10. IN OUR CONSIDERED OPINION, IF ANY ALLEGATION OF DISCREPANCIES RELATING TO ACCOUNTING OF INCOME HAS BEEN FOUND IN REPORT OF ANY OTHER PARTICULAR YEAR I.E. A.Y 2009 - 10 IN THE PRESENT CASE, THEN THE FACT MAY BE CONSIDERED FOR MAKING ADDITION OR DISALLOWANCES, IF PERMISSIBLE AND SUSTAINABLE UNDER THE PROVISIONS OF THE ACT BUT NOT IN THE OTHER PERIOD REL EVANT TO OTHER A.Y, SUCH AS A.Y 2010 - 11 IN THE CASE IN HAND. 10. WE ARE IN AGREEMENT WITH THE CONCLUSION RECORDED BY THE FIRST APPELLATE AUTHORITY THAT THE SURRENDER WAS NOT MADE ON SPECIFIC ITEMS BY SHRI RAM KISHAN GUPTA AND WHILE ALLOCATION OF THE UNDIS CLOSED INCOME BETWEEN THE COMPANIES AND OTHER PERSONS OF THE GROUP, HE HAS NOT MENTIONED AND SPECIFIED THE HEADS OF INCOME AS SUCH. IN THE ABSENCE OF ANY SUCH DISCLOSURE AND RELEVANT MATERIAL TO ESTABLISH THE UNDISCLOSED INCOME FOR THE PRESENT A.Y 2010 - 11 , ADDITION CANNOT BE MADE. SINCE AT THE TIME OF SURRENDER AND STATEMENT RECORDED U/S 132(4) OF THE ACT SHRI RAM KISHAN GUPTA WAS NOT ASKED TO PROVIDE DETAILS THE NATURE OF INCOME HE WAS SURRENDERING IN THE CASE OF A PARTICULAR COMPANY OR PERSON AND PARTIC ULAR HEAD OF INCOME AND AS SUCH FAILURE OF THE REVENUE AUTHORITIES, ADDITION CANNOT BE MADE WITHOUT ANY BASIS FOR A.Y 2010 - 11. EVEN DURING ASSESSMENT PROCEEDINGS THE AO EITHER AT THE POST SEARCH STAGE OR DURING ASSESSMENT PROCEEDINGS COULD NOT BRING ANY C OGENT MATERIAL T SHOW THAT SUCH UNDISCLOSED INCOME UNDER SUCH HEAD HAS BEEN SURRENDERED FOR A.Y 2010 - 11. THUS WE ARE UNABLE TO SEE ANY AMBIGUITY, PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE WITH THE ORDER AND HENCE WE UPHOLD THE SAME. BEFORE WE PAR T WITH THE ORDER, WE MAKE IT CLEAR THAT OUR FINDINGS AND ITA NO . 6446 /DE L/201 3 SHYAM SUNDER INFRASTRUCTURE (P) LTD. 5 OBSERVATIONS RECORDED IN THIS ORDER ARE BASED UPON THE FACTS OF A.Y 2010 - 11. THE AO HAS MADE THE ADDITION IN A.Y 2010 - 11 IN RESPECT OF SOME ALLEGED DISCREPANCIES IN A.Y 2009 - 10. IN OUR OPINION IF T HERE IS ANY DISCREPANCY AS OF A.Y 2009 - 10, THAT IS TO BE CONSIDER IN THAT YEAR AND NOT IN A.Y 2010 - 11.' 8 . THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF M/S BABUSHAKA PROMOTERS PVT. LTD., DELHI (SUPRA). SO, RESPECTFULLY FO LLOWING THE AFORESAID REFERRED TO ORDER DATED 20.09.2016 IN ITA NO. 6444/DEL/2013 FOR THE ASSESSMENT YEAR 2010 - 11 IN THE CASE OF ACIT, CENTRAL CIRCLE - 15, NEW DELHI VS M/S BABUS HAKA PROMOTERS PVT. LTD., DELHI, W E DO NOT SEE ANY VALID GROUND TO INTERFERE WIT H THE FINDINGS OF THE LD. CIT(A) AND DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 9 . IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. . (O RDER PRONOUNCED IN THE COURT ON 13 /01/2017 ) SD/ - SD/ - (SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 /01/2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR