M/s Ramesh Chawla (HUF), New Delhi V. ITO, New Delhi

ITA 6652/DEL/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8446 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 15-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Recovery proceedings; Income from undisclosed sources; Opportunity of being heard; Accommodation entries; Reason to believe; Set aside
• Section: 143(3); 147; 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.6652/DEL/2015 ASSESSMENT YEAR: 2004-05 M/S. RAMESH CHAWLA (HUF) B-32, VISHAL ENCLAVE, RAJORI GARDEN, NEW DELHI. VS. ITO, WARD-26(1), NEW DELHI. TAN/PAN: ADDPJ9743P (APPELLANT) (RESPONDENT) I.T.A. NO.6653/DEL/2015 ASSESSMENT YEAR: 2004-05 SMT. KANIKA CHAWLA, B-32, VISHAL ENCLAVE, RAJORI GARDEN, NEW DELHI. VS. ITO, WARD-26(1), NEW DELHI. TAN/PAN: AERPC9703R (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SALIL AGARWAL, ADV. & SHRI SHAILESH GUPTA, ADV. RESPONDENT BY: SHRI N.K. BANSAL, SR.D.R. DATE OF HEARING: 26 09 2019 DATE OF PRONOUNCEMENT: 11 10 2019 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEALS HAVE BEEN FILED BY THE ABOVE NAMED ASSESSEES AGAINST SEPARATE IMPUGNED ORDERS DA TED 12.10.2015 IN THE CASE OF SMT. KANIKA CHAWLA; AND O RDER DATED 05.11.2015 IN THE CASE OF M/S. RAMESH CHAWLA (HUF), PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)- XV, NEW I.T.AS. NO.6652 & 6653/DEL/2015 2 DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.254/ 143 (3) FOR THE ASSESSMENT YEAR 2004-05. SINCE ISSUES INVOL VED IN BOTH THE APPEALS ARE COMMON ARISING OUT OF IDENTICA L SET OF FACTS, THEREFORE, SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER. THE COMMON GROUNDS RAISED IN BOTH THE APPEALS ARE AS UNDER: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A) IS ARBITRARY, AGAINST LAW AND FACTS ON RECORD. 2. THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN LAW AND ON FACTS OF THE CASE, IN DISMISSING THE APPEAL IGNO RING THE FACT THAT THE ORDER U/S 254/143(3) OF THE INCOME TAX ACT HAS BEEN PASSED BY THE ASSESSING OFFICER WITHOUT COMPLYING W ITH THE DIRECTIONS OF HONBLE INCOME TAX APPELLATE TRIBUNAL IN APPEAL NO 1724/DEL/2010 DATED 28/09/2012. 3. THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE DISMISSING THE APPEAL FAILED TO CONSIDER THAT THE IMPUGNED ADD ITION AND IMPUGNED ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER ARE BEYOND JURISDICTION, BAD IN LAW, UNJUSTIFIED, BARRE D BY LIMITATION, CONTRARY TO FACTS AND LAW AND IS BASED UPON RECORDI NG OF INCORRECT FACTS AND FINDINGS AND IS WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 2. AS A LEAD CASE, WE ARE TAKING UP THE APPEAL IN T HE CASE OF SMT. KANIKA CHAWLA AND FINDINGS THEREIN WILL APP LY MUTATIS MUTANDIS IN THE APPEAL OF M/S. RAMESH CHAWLA (HUF). 3. THE FACTS IN BRIEF ARE THAT AN INFORMATION WAS R ECEIVED BY THE ASSESSING OFFICER FROM ITO, WARD-28(4), NEW DELHI VIDE LETTER NO.164 DATED 21.01.2008, STATING THAT ASSESS EE HAS I.T.AS. NO.6652 & 6653/DEL/2015 3 RECEIVED GIFT OF RS.1,00,00,000/- FROM ONE SRI HARI SH KUMAR, (DONOR OF THE GIFTS) WHO HAD DULY ADMITTED IN HIS S TATEMENT ON OATH RECORDED ON 28.03.2007 U/S.131, THAT HE HAD RE CEIVED CASH FROM VARIOUS PARTIES AND DEPOSITED THE SAME IN HIS ACCOUNT NO. 3756 WITH PUNJAB AND SIND BANK, FATEHPUR I, NEW DELHI, THEN TRANSFERRED THE AMOUNTS TO ANOTHER ACCOUNT NO.3755 WITH THE SAME BANK AND ISSUED DRAFTS TO THE SAID PARTIES IN THE FORM OF GIFTS. OUT OF THESE DRAFTS, FOUR DRAFTS HAVE BEEN ISSUED TO MRS. KANIKA CHAWLA, THE DETAILS OF WHICH ARE AS UNDER: DATE AMOUNT BANK 02.08.2003 25 LAKHS PUNJAB AND SIND BANK, FATEHPURI BRANCH, DELHI 01.09.2003 25 LAKHS -DO- 03.09.2003 25 LAKHS -DO- 05.09.2003 25 LAKHS -DO- 4. BASED ON THIS INFORMATION, THE ASSESSING OFFICER INITIATED REOPENING PROCEEDINGS AND HAS RECORDED THE FOLLOWIN G REASONS FOR REOPENING THE ASSESSMENT U/S.147/148: IN THIS CASE RETURN OF INCOME FOR THE ASSESSMENT YE AR 2004-05 IN FORM NO.2D, WAS FILED ON 29.10.2004, DECLARING TOTA L INCOME OF RS.90,100/- THE SAME WAS PROCESSED U/S. 143(1), ON 03.05.2005 AND THE RETURN INCOME WAS ACCEPTED. AN INFORMATION HAS BEEN RECEIVED FROM ITO, WARD 28( 3,), DELHI, THAT MS. KANIKA CHAWLA, D/O SHRI. RAMESH CHAWLA, RESIDEN T OF B-32, VISHAL ENCLAVE, NEW DELHI-32, HAS RECEIVED THE FOLL OWING GIFTS, DURING THE PERIOD 01.04.2003 TO 31.03.2004, AS PER DETAILS GIVEN BELOW FORM SHRI HARISH KUMAR: I.T.AS. NO.6652 & 6653/DEL/2015 4 DATE AMOUNT BANK 02.08.2003 25 LAKHS PUNJAB AND SIND BANK, FATEHPURI BRANCH, DELHI 01.09.2003 25 LAKHS -DO- 03.09.2003 25 LAKHS -DO- 05.09.2003 25 LAKHS -DO- A PERUSAL OF INCOME TAX RETURN FILED BY THE ASSESSE D REVEALS THAT THE ASSESSEE HAS SHOWN BANK INTEREST AT RS.78, 100/- AND INTEREST FROM POST OFFICE MIS AT RS. 24,000/- ONLY. NO BALANCE SHEET / STATEMENT OF AFFAIRS HAVE BEEN FURNISHED ALONGWITH THE RETURN FROM WHERE IT CAN BE ASCERTAINED THE TRANSACTIONS MADE B Y THE ASSESSEE IF ANY. ONLY A COPY OF COMPUTATION OF INCOME HAD BEEN ATTACHED ALONGWITH THE RETURN. THIS PATTERN CONTINUED IN SUB SEQUENT ASSESSMENT YEAR ALSO. THE SAID AO HAS ALSO FOUND TH AT MRS. KANIKA CHAWLA WAS NOT A RELATIVE OF SH. HARISH KUMAR, THE DONOR. SHRI HARIAH KUMAR HAD OPENED ACCOUNT NO. 3755 ON 14.07.0 3 AND ACCOUNT NO.3756' ON 15.07.07. HUGE CASH ON DIFFERE NT DATES WERE DEPOSITED IN A/C NO. 3756 WHICH WERE SUBSEQUENTLY ( EITHER ON THE SAME DAY OR THE NEXT DAY) TRANSFERRED IN A/C NO. 37 55 IN THE NAME OF M/S. SHRESHTHA OVERSEAS. SUBSEQUENTLY, THESE AMOUNT S WERE GIVEN TO VARIOUS PERSONS AS GIFTS BY SHRI HARISH KUMAR. SUCH GIFTS WERE PRIMA FACIE BOGUS BECAUSE CASH WAS RECEIVED FROM THE DONE ES AND CHEQUES WERE ISSUED IN LIEU OF SUCH CASH RECEIPTS. THE ITO, WARD- 28(3), DELHI, PROVED BEYOND DOUBT AFTER CARRYING OUT DETAILED INV ESTIGATION THAT SHRI HARISH KUMAR WAS NOT CARRYING OUT ANY BUSINESS AND WAS A HAWALA OPERATOR GIVING ACCOMMODATION ENTRIES RELATING TO B OGUS GIFTS. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT AN INCOME OF RS. 1 CRORE CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR 200 4-05, RELEVANT TO FINANCIAL YEAR 2003-04, HAS ESCAPED ASSESSMENT WITH IN THE MEANING OF SECTION 147 OF THE ACT, 1961. NOTICE U/S. 148, D ATED 08.04.2008, IS ISSUED. I.T.AS. NO.6652 & 6653/DEL/2015 5 5. THEREAFTER, ASSESSMENT WAS MADE U/S. 143(3)/147 VIDE ORDER DATED 29.12.2008 AT AN INCOME OF RS.1,00,90,1 00/- AS AGAINST THE INCOME OF RS.90,100/-. THUS, THE ADDITI ON OF RS.1,00,00,000/- ON ACCOUNT OF GIFT WAS ADDED U/S 6 8 AS INCOME FROM UNDISCLOSED SOURCES. THE SAID ADDITION WAS CONFIRMED BY THE LD. CIT (A) ALSO. HOWEVER, THE TRI BUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING O FFICER AFTER OBSERVING AND HOLDING AS UNDER: 11. CONSIDERING THE ABOVE SUBMISSION WE FIND SUBST ANCE IN THE CONTENTION OF THE LD. AR AS IT IS VERY MUCH EVIDENT FROM THE STATEMENTS OF MR. HARISH KUMAR RECORDED BY THE ASSESSING OFFIC ER U/S.131 OF THE ACT THAT HE IN HIS STATEMENTS HAS NOWHERE ALLEGED S PECIFICALLY THAT THE GIFTS IN QUESTION GIVEN BY HIM TO THE ASSESSEES WER E BOGUS AND THE MONEY INVOLVED THEREIN WAS THE MONEY OF THE ASSESSE ES WHICH CAME TO HIM AND IN LIEU THEREOF HE HAD ISSUED HAVING ACC EPTED THE AMOUNT AS THE INCOME OF THE PARTNERS THEMSELVES, IT COULD NOT BE ADDED TO THE INCOME OF THE FIRM. THE ASSESSMENT OF THE PARTNERS HAD RESULTED IN THE SUM BEING CHARGED TO TAX IN THEIR HANDS AND IT DID NOT MAKE ANY DIFFERENCE WHETHER THE SUM WAS TAXED IN THE HANDS O F THE PARTNERS OR IN THE HANDS OF THE FIRM, HELD THE HONBLE HIGH COU RT. APPLYING THE RATIO LAID A OWN IN THESE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT, WE HOLD THAT IF THE DONOR HAS ALREADY PAID T AX ON THE AMOUNT GIFTED, THE SAME IS REQUIRED CONSIDERATION WHILE DE CIDING THE ASSESSABILITY OF THE SAME IN THE HANDS OF THE DONEE I.E. THE PRESENT ASSESSEES. WE THUS IN THE INTEREST OF THE JUSTICE S ET ASIDE THE MATTER TO THE FILE OF THE AO TO AFFORD OPPORTUNITY TO THE ASS ESSEES TO CROSS- EXAMINE SHRI HARISH KUMAR BY SECURING HIS PRESENCE BEFORE HIM AND TO EXAMINE THIS ASPECT OF THE CASE REGARDING PAYMEN T OF TAX ON THE GIFTED AMOUNT BY THE DONOR IN VIEW OF THE ABOVE STA TED DECISIONS OF HONBLE DELHI HIGH COURT AND DECIDE THE ISSUE ACCOR DINGLY AS PER THE I.T.AS. NO.6652 & 6653/DEL/2015 6 LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THE GROUNDS INVOLVING THE ISSUE NO.2 ARE THUS ALLOWED F OR STATISTICAL PURPOSE. 6. NOW IN THE SET ASIDE PROCEEDINGS, ONE VERY IMPOR TANT OBSERVATION AND FACT RECORDED BY THE ASSESSING OFFI CER IS THAT, SIMILAR ADDITION WAS MADE ON SUBSTANTIVE BASIS IN T HE HANDS OF THE DONOR IN SCRUTINY PROCEEDINGS AND ORDER PASS ED U/S. 143(3) BY THE ASSESSING OFFICER OF SHRI HARISH KUMA R. HE FURTHER OBSERVED THAT ASSESSEE WAS PROVIDED OPPORTU NITY TO PRODUCE THE DONOR, SHRI HARISH KUMAR FOR CROSS-EXAM INATION, BUT ASSESSEE HAS FAILED TO DO SO. THE LD. ASSESSING OFFICER AFTER DETAILED DISCUSSION HAD AGAIN MADE THE ADDITI ON, BUT ULTIMATELY HE HAS MADE THE ADDITION ON PROTECTIVE B ASIS. HOWEVER, BEFORE REACHING TO THE SAID CONCLUSION, HE OBSERVED THAT THE ASSESSING OFFICER IN THE CASE OF SHRI HARI SH KUMAR SHOULD NOT HAVE MADE THE ADDITION ON SUBSTANTIVE BA SIS AND THERE IS INADVERTENT ERROR KEPT IN THE SAID ASSESSM ENT ORDER, BECAUSE THE ADDITION SHOULD HAVE BEEN MADE ON SUBST ANTIVE BASIS IN THE CASE OF THE ASSESSEE. HOWEVER, DESPITE SUCH OBSERVATIONS, HE HAS FINALLY MADE THE ADDITION ON P ROTECTIVE BASIS AFTER OBSERVING AND HOLDING AS UNDER: 27. HERE, IT IS BEING MADE CLEAR THAT ADDITION MAD E ON SUBSTANTIVE BASIS HANDS OF HARISH KUMAR FOR A.Y. 20 04-05 IN RESPECT OF SAME AMOUNT WHICH IS BEING TAXED IN THE PRESENT CASE ON SUBSTANTIVE BASIS DOES NOT VITIATE THE ASSESSMEN T PROCEEDINGS IN THE PRESENT CASE. THE ASSESSEE CANNO T TAKE PLEA THAT THE AO IN THE PRESENT CASE IS BOUND BY FINDING S IN THE ASSESSMENT ORDER PASSED BY THE AO IN THE CASE OF HA RISH KUMAR I.T.AS. NO.6652 & 6653/DEL/2015 7 AND FOLLOWING THE ORDER OF THE AO IN THE CASE OF HA RISH KUMAR, ADDITION IN THE PRESENT CASE MUST BE MADE ON PROTEC TIVE BASIS ONLY. CHRONOLOGY OF THE EVENTS CANNOT DECIDE AS TO WHAT WILL BE RIGHT STEP TO TAX ANY PARTICULAR INCOME, SIMPLY BEC AUSE ASSESSMENT ORDER IN THE CASE OF HARISH KUMAR WAS PA SSED MUCH EARLIER AND ADDITION MADE ON SUBSTANTIVE BASIS IN THAT CASE CANNOT COMPEL ANOTHER AO TO TAX THE SAME INCOM E ON PROTECTIVE BASIS IN ANOTHER CASE. IT IS UPON THE AP PELLATE AUTHORITIES TO UPHOLD THE ADDITION ON SUBSTANTIVE B ASIS IN THE HANDS OF THAT ASSESSEE WHO DESERVES THAT ADDITION O N APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THEREAFTER THE ISSUE OF ADDITION ON PROTECTIVE OR S UBSTANTIVE BASIS IN THE CASES OF THESE ASSESSEES WILL BE SETTLED. 7. IF THE ASSESSING OFFICER HAS MADE THE ADDITION O N PROTECTIVE BASIS, BUT LD. CIT (A) BEING AN APPELLAT E AUTHORITY SHOULD NOT HAVE PERPETUATED BY CONFIRMING THE ADDIT ION ON PROTECTIVE BASIS. AS AN APPELLATE AUTHORITY, HE SHO ULD HAVE FIRSTLY, ASCERTAIN THE FATE OF SUBSTANTIVE ADDITION MADE IN THE HANDS OF HARISH KUMAR; AND THEN ONLY HE SHOULD HAVE EITHER DELETED OR CONFIRMED THE ADDITION ON SUBSTANTIVE BA SIS. THERE IS NO PROVISION FOR CONFIRMING THE ADDITION ON PROT ECTIVE BASIS. THE RELEVANT CONCLUSION IN PARAGRAPH 10.1 OF THE LD . CIT(A) IN THIS REGARD READ AS UNDER: 10.1 IN VIEW OF ABOVE, I HOLD THAT THE ADDITION OF RS.1,00,00,000/- MADE BY ASSESSING OFFICER U/S.68 O F THE ACT ON PROTECTIVE BASIS IS JUSTIFIED AND THE GROUNDS TAKEN BY APPELLANT ARE LIABLE TO BE DISMISSED. I.T.AS. NO.6652 & 6653/DEL/2015 8 8. BEFORE THE LD. COUNSEL FOR THE ASSESSEE, SHRI SA LIL AGARWAL AND LD. SR. D.R. HAD VEHEMENTLY ARGUED THE CASE ON MERITS AFTER REFERRING TO VARIOUS MATERIALS. HOWEVE R, WE ARE NOT INCLINED TO DECIDE AND ADJUDICATE THE ISSUE ON MERITS, BECAUSE THERE IS A CLEAR CUT FINDING BY THE AUTHORI TIES BELOW THAT THE ADDITION IN THE CASE OF THE ASSESSEE HAS B EEN MADE AND CONFIRMED ON PROTECTIVE BASIS AND SUBSTANTIVE A DDITION HAS BEEN MADE IN THE HANDS OF THE DONOR, SRI HARISH KUMAR. 9. AFTER CONSIDERING THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS, HERE IN THIS CASE AS DISCUSSED ABO VE, THE ASSESSING OFFICER DESPITE HIS RESERVATION ABOUT THE FINDING GIVEN IN THE CASE OF SHRI HARISH KUMAR FOR THE ASSE SSMENT YEAR 2004-05 WHEREIN THE SIMILAR AMOUNT HAS BEEN TA XED ON SUBSTANTIVE BASIS, AFTER OBSERVING THAT SUBSTANTIVE ADDITION SHOULD HAVE BEEN MADE IN THE CASE OF THE ASSESSEE B ECAUSE IT IS THE ASSESSEE WHO MUST HAVE PAID THE CASH FOR GET TING THE ACCOMMODATION ENTRY, HE WENT AHEAD AND MADE THE ADD ITION ON PROTECTIVE BASIS. AND RIGHTLY SO, BECAUSE SAME A DDITION CANNOT BE MADE IN TWO HANDS ON SUBSTANTIVE BASIS AN D CANNOT BE SUBJECT TO DOUBLE TAXATION. HERE ASSESSIN G OFFICER HAS RIGHTLY ACCEPTED THE FACT THAT, SINCE ADDITION IN THE CASE OF SHRI HARISH KUMAR HAS BEEN MADE ON SUBSTANTIVE BASI S; THEREFORE, HE IS PROCEEDING TO TAX THE ALLEGED GIFT ON PROTECTIVE BASIS. FURTHER, HE WAS CORRECT IN OBSERVING THAT IT IS THE APPELLATE AUTHORITY TO TAKE THE DECISION, WHETHER A DDITION SHOULD HAVE BEEN MADE ON SUBSTANTIVE BASIS OR PROTE CTIVE BASIS. THE LD. CIT (A) BEING AN APPELLATE AUTHORITY SHOULD I.T.AS. NO.6652 & 6653/DEL/2015 9 HAVE FIRST ASCERTAINED THE FATE OF SUBSTANTIVE ADDI TION AND IF HE WOULD HAVE FOUND THAT SUBSTANTIVE ADDITION HAS A TTAINED FINALITY OR THE FINDING GIVEN THEREIN IS STILL PERS ISTING, THEN HE SHOULD HAVE DELETED THE ADDITION MADE ON PROTECTIVE BASIS. 10. BEFORE US, THE LD. DR HAD POINTED OUT THAT SI NCE TAXES HAVE NOT BEEN PAID BY SHRI HARISH KUMAR, THEREFORE, SUCH AN ADDITION SHOULD BE CONFIRMED IN THE HANDS OF THE AS SESSEE AND REVENUES INTEREST SHOULD BE PROTECTED. HOWEVER , WE ARE UNABLE TO SUBSCRIBE TO THIS VIEW BECAUSE PROTECTIVE ADDITION AS SUCH CANNOT BE SUSTAINED AT SECOND APPELLATE STA GE AND CONSEQUENTLY NO PROCEEDINGS EITHER FOR RECOVERY OF TAX OR FOR INITIATING ANY PENALTY PROCEEDINGS COULD BE INITIAT ED. IF THE ADDITION HAS BEEN MADE ON SUBSTANTIVE BASIS IN CASE OF ANOTHER PERSON, HERE IN THIS CASE ALLEGED ENTRY PRO VIDER MR. HARISH KUMAR WHEREIN THE AMOUNT OF GIFT GIVEN BY HI M TO THE ASSESSEE HAS BEEN ADDED ON SUBSTANTIVE BASIS, THEN WHETHER TAX IS RECOVERABLE FROM HIM OR NOT IS RELEVANT AT A LL. WHAT IS RELEVANT IS THAT SAME ADDITION CANNOT BE TAXED TWIC E AND THERE HAS TO SPECIFIC FINDING IN WHOSE HAND THE AMO UNT IS TAXABLE. BEFORE US BOTH THE PARTIES COULD NOT PROVI DE THE DETAIL OF FATE OF SUBSTANTIVE ADDITION, WHETHER ANY APPELLATE AUTHORITY HAS HELD THAT THE ADDITION MADE IN THE CA SE OF MR. HARISH KUMAR SHOULD BE MADE ON PROTECTIVE BASIS AND SUBSTANTIVE ADDITION SHOULD BE MADE IN THE CASE OF THE DONEES, I.E., THE PERSON WHO HAS RECEIVED THE GIFT. UNTIL AND UNLESS THERE IS SUCH FINDING BY THE APPELLATE AUTHO RITY IN THE I.T.AS. NO.6652 & 6653/DEL/2015 10 CASE OF SRI HARISH KUMAR, THEN PROTECTIVE ADDITION HAS NO LEGS TO STAND. 11. UNDER THESE CIRCUMSTANCES, WE DIRECT THE ASS ESSING OFFICER AS UNDER: FIRSTLY , TO ASCERTAIN WHETHER IN THE CASE OF SHRI HARISH KUMAR ANY FINDING HAS BEEN GIVEN BY THE APPELLATE AUTHORITY THAT ADDITIONS MADE IN HIS HAND SHOULD BE TAXED ON PROTECTIVE BASIS AND SUBSTANTIVE ADDITION SHOULD HAVE BEEN MADE IN THE HANDS OF THE DONEE, I. E. THE ASSESSEE WHO HAS RECEIVED THE GIFT; SECONDLY , IF ADDITION HAS BEEN DELETED ON MERITS IN THE CASE OF SHRI HARISH KUMAR THEN AGAIN NO ADDITION CA N BE CONFIRMED AGAINST THE ASSESSEE. UNTIL AND UNLESS THE APPELLATE AUTHORITY HAS HELD THAT ADDITION MADE IN THE HANDS OF SHRI HARISH KUMAR IS TO BE EXAMINED OR MAD E IN THE CASE OF THE ASSESSEE NO ADDITION CAN BE MADE OR CONFIRMED; AND LASTLY , IF THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF SHRI HARISH KUMAR HAD ATTAINED FINALITY THEN ALSO N O ADDITION OR ANY PROCEEDINGS CAN BE INITIATED AGAINS T THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO COMPLY WITH TH IS DIRECTION WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECE IVING OF THE ORDER, BECAUSE ALREADY HUGE TIME HAVE ELAPSED AND B Y THIS TIME EITHER THE FATE OF THE APPEAL OF SHRI HARISH K UMAR MUST I.T.AS. NO.6652 & 6653/DEL/2015 11 HAVE BEEN DECIDED OR THE ASSESSMENT ORDER IN HIS CA SE MUST HAVE ATTAINED FINALITY. 12. WE ARE NOT DECIDING THE ISSUE ON MERIT WHICH HA S BEEN ARGUED BY BOTH THE PARTIES AND SAME IS KEPT OPEN. I N VIEW OF THE OBSERVATION MADE ABOVE, THE APPEAL OF THE ASSES SEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 13. SIMILARLY IN THE CASE OF M/S. RAMESH CHAWLA (HU F) ALSO, THE ASSESSING OFFICER HAS MADE THE ADDITION ON PROT ECTIVE BASIS BY MAKING SIMILAR OBSERVATION AND EVEN THE LD . CIT (A) HAS CONFIRMED THE ADDITION ON PROTECTIVE BASIS AS H E HAS FOLLOWED THE APPELLATE ORDER IN THE CASE OF MRS. KA NIKA CHAWLA. ACCORDINGLY, OUR FINDING AND DIRECTION GIVE N ABOVE WILL APPLY MUTATIS MUTANDIS IN THIS APPEAL ALSO. ACCORDINGLY, THIS APPEAL IS ALSO TREATED AS PARTLY ALLOWED FOR S TATISTICAL PURPOSES. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE S ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER, 2019. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 11 TH OCTOBER, 2019 PKK: