ACIT, Central Circle- 26, New Delhi V. Jayanti Dalmia, New Delhi

ITA 6544/DEL/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9314 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 29-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Notional interest
• Section: 69; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘C’ NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE PRESIDENT & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA No.6544/Del/2017 Assessment Year: 2007-08 ACIT, Central Circle-26, New Delhi. Vs. Jayanti Dalmia, 2nd Floor, Indraprakash Building Road, New Delhi PAN :AADPD9437D (Appellant) (Respondent) ORDER PER KULDIP SINGH: JUDICIAL MEMBER Appellant, ACIT, Central Circle-26, New Delhi (hereinafter referred to as ‘Revenue’ ) by filing present appeal sought to set aside the impugned order dated 11.08.2017 passed by the learned Commissioner of Income(Appeals)-29, New Delhi. 2. Briefly stated that the facts necessary for adjudication of the controversy at hand are: on the basis of search and seizure operation conducted on 20.01.2012, certain assets in the form of cash and jewellery were found and seized along with some documents and proceedings under Section 153A of the Income-Revenue by Shri S.N. Pandey, Sr. DR Respondent by S/Shri Vinod Kumar Bindal, CA & Ms. Rinky Sharma, ITP Date of hearing 02.02.2022 Date of pronouncement .02.2022 2 ITA No.6544 /Del/2017 tax Act, 1961 were initiated. Assessing Officer on the basis of statement recorded during the search operation proceeded to make addition of Rs.92,99,740 and Rs.3,91,794 as appearing in the bank account/link profile and interest accrued thereon under Section 69 of the Act on protective basis whereas substantive addition of this amount has been made in case of Shri Anurag Dalmia and thereby framed the assessment at the total income of Rs.9,59,37,791 under Section 143(3) read with Section 153A of the Act. 4. Assessee carried the matter before the learned Commissioner of Income-tax (Appeals) by way of filing the appeal who has deleted the addition by partly allowing the appeal. 5. Feeling aggrieved with the impugned order, Revenue has come up before the Tribunal by way of filing the present appeal. 6. We have heard the learned authorized representatives of the parties of the appeal, perused the order passed by lower authorities in the light of facts and circumstances of the case and law applicable thereto. 7. Learned Departmental Representative for the Revenue challenging the impugned order passed by the learned Commissioner of Income-tax(Appeals) relied upon the order passed by the Assessing Officer. However, on the other hand, learned authorized representative for the assessee to repel the 3 ITA No.6544 /Del/2017 arguments addressed by the learned Departmental Representative for the Revenue relied on the order passed by learned Commissioner of Income-tax(Appeals) and contended that when substantive addition in the hands of Anurag Dalmia has already been deleted but the Tribunal vide order dated 15.02.2018 in ITA Nos. 5395 & 5396/Del/2017, protective addition is not sustainable. 8. We have heard the learned Departmental Representative for the Revenue and perused the orders passed by the learned lower authorities in the light of the facts and circumstances of the case and law applicable thereto. 9. Undisputedly, learned Commissioner of Income-tax(Appeals) deleted the addition made by the Assessing Officer against the assessee on protective basis on the ground that since substantive addition made in this case in the hands of Anurag Dalmia for assessment years 2006-07 and 2007-08 and addition on account of notional interest for assessment year of the alleged amount for assessment years 2008-09 to 2011-12 has already been deleted, this protective addition is not sustainable by turning following findings: “6. Ground no.3 for the AYs.2006-07 and 2007-08 relate to contention of the appellant against addition made by the AO under section 69 of the IT Act towards unexplained investment in relation to an alleged offshore bank account HSBC Bank Geneva, Switzerland. This ground has been adjudicated by me in the case of Sh. Anurag Dalmia for the AY 2006-07 and 2007-08 in which after discussing the issue 4 ITA No.6544 /Del/2017 involved in detail, the appeals have been dismissed. On identical facts, for these years in the appellant’s case also, the appeal on this ground are dismissed. However, since the additions in the case of appellant were made on protective basis and the substantive additions made in the case of Sh. Anurag Dalmia have been confirmed by me, therefore, the additions made on protective basis deserves to be deleted. 7. Ground no.3 for the Ays. 2008-09 to 2011-12 and ground no.4 for the AY 2007-08 relates to addition made by the A.O under section 69 of the IT Act as notional interest on the amount of alleged offshore bank accounts with HSBC Bank, Geneva. This ground has been adjudicated by me in the case of Sh. Anurag Dalmia for the AY 2006-07 in which after discussing the issue involved in detail, the appeal has been allowed. On identical facts, for these years in the appellant’s case also, the appeal on this ground are allowed.” 10. We are of the considered view that when the substantive addition in the hands of Shri Anurag Dalmia has already been deleted by co-ordinate bench of the Tribunal vide order dated 15.02.2018 (supra), the protective addition in the hands of the assessee is also not sustainable in the eyes of law. So finding no illegality or perversity in the impugned order passed by the learned Commissioner of Income-tax(Appeals), present appeal filed by the Revenue is hereby dismissed. Order pronounced in the open court on .02.2022. ( G.S. PANNU ) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBER Dated: February, 2022. Mohan Lal 5 ITA No.6544 /Del/2017 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi