Mr. Tarun Goyal, New Delhi V. ACIT, Noida

ITA 6717/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7511 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 30-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Accommodation entries; Set aside
• Section: 68

Judgement Text

ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: G: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 6717/DEL/2016 ( ASSESSMENT YEAR: 2007-08) MR. TARUN GOYAL, 13/34, W.E.A. KAROL BAGH, NEW DELHI-110005. VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, NOIDA. PAN NO: AAPPG1505R APPELLANT RESPONDENT ASSESSEE BY : SHRI ANUNAV KUMAR, ADV. REVENUE BY : SHRI N.K. BANSAL, SR. DR ORDER PER ANADEE NATH MISSHRA , AM THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-III, [LD. CIT (A), FOR SHORT] KANPUR, DATED 18.11.2016 FOR ASSESSMENT YEAR 2007-08, ON THE FOLL OWING GROUNDS: 1. THE CIT(A) ERRED IN UPHOLDING THE ORDER OF A.O. MAKING ADDITION OF RS. 2,00,000/- ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT WITHOUT APPRECIATING THAT SINCE ADMITTEDLY THE APPELLANT HAS BEEN CARRYING ON THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES, AMOUNT OF CASH DEPOSITS WAS PART OF THE BUSINESS AND, ACCORDINGLY, SAME COULD NOT BE ADDED U/S 68 OF THE ACT AND ONLY COMMISSION INCOME THEREON COULD BE CONSIDERED AS INCOME. ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 2 OF 6 2. THAT THE CIT(A) ALSO FAILED TO APPRECIATE THAT I N CASE OF OTHER COMPANIES OF THE GROUND MANAGED BY MR. TARUN GOYAL, ONLY COMMISS ION INCOME WAS CONSIDERED BY THE A.O. IN RESPECT OF ENTRIES FOR DEPOSITS IN THE BANK AND ACCORDINGLY ADDING THE AMOUNT OF CASH DEPOSITS IN THE CASE OF THE APPELLAN T WAS CONTRARY TO THE STAND OF THE A.O. IN OTHER CASES. 3. THAT THE CIT(A) ALSO ERRED IN REFERRING TO AND F OLLOWING THE ORDER OF CIT(A)- 33, NEW DELHI, FOR A.Y. 2004-05, DATED 03.08.2012, WHICH ORDER HAS ALREADY BEEN SET ASIDE BY ITAT VIDE ITS ORDER DATED 18.10.2013 AND, ACCORDINGLY, THE CIT(A) OUGHT TO HAVE DECIDED THE APPEAL AS PER THE DIRECTION OF ITA T VIDE ITS ORDER REFERRED ABOVE. 4. THAT THE CIT(A) ERRED IN NOT DETERMINING THE CO MMISSION INCOME IN RESPECT OF CASH DEPOSITS IN THE BANK ACCOUNT @ 0.25% TAKING INTO CONSIDERATION PRECEDENTS IN THIS REGARD IN OTHER CASES AND ALSO STATEMENT OF MR . TARUN GOYAL MADE DURING THE COURSE OF SEARCH AND ALSO GIVING A HOLDING THAT SIN CE THE AMOUNT OF COMMISSION AT ABOVE RATE HAS ALREADY BEEN OFFERED BY THE APPELLAN T IN A.Y. 2009-10, NO ADDITION WAS CALLED FOR IN THE YEAR UNDER APPEAL. 5. THAT THE APPELLANT CRAVE LEAVE TO ADD, AMEND OR MODIFY ANY GROUND HEREINAFTER. (2) IN THIS CASE, A SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 17.09.2010. IN PURSUANCE TO THAT ASSESSMENT ORDER DATED 30.03.2013 WAS PASSED BY THE ASSESSING OFFICER (AO, FOR SHORT) WHEREIN AN ADDITION OF RS . 2,00,001/- WAS MADE AS INCOME FROM UNDISCLOSED SOURCES, ON ACCOUNT OF CASH DEPOSI TED IN BANK. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO, VIDE ORDER DATED 18.11.2016 DISMISSED THE ASSESSEES APPEAL, HOLDING AS UNDER: 3.2 FACTS AND CIRCUMSTANCES OF THE APPEAL HAVE BEE N CONSIDERED CAREFULLY. UNDISPUTEDLY, BEFORE THE AO THE APPELLA NT HAD FAILED TO EXPLAIN AND SUBSTANTIATE THE SOURCE OF THE DEPOSITS IN THE BANK ACCOUNT. AS SEEN FROM THE ASSESSMENT ORDER THE FACTS AND CIRCUMSTANCES OF THE APPEAL IN HAND ARE FOUND TO BE PARIMATERIA WITH THE CASE OF THE APPELLANT FOR A Y 2004-05 WHERE, ALSO THE APPELLANT HAD FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS WHICH PROMPTED THE AO TO TAX THEM U/S 68 AND THIS ACTION OF THE AO WAS UPHELD BY THE CIT(A). THE APPELLANT IN THE PRESENT APPEAL HAS BROUGHT NO MATE RIAL AT ALL ON RECORDS TO PERSUADE ME TO TAKE A DIFFERENT VIEW. (UNDERLINING SUPPLIED BY US FOR EMPHASIS) ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 3 OF 6 (3) THE PRESENT APPEAL BEFORE US HAS BEEN FILED BY ASSESSEE AGAINST THE AFORESAID IMPUGNED ORDER DATED 18.11.2016 OF THE LD. CIT(A). DURING THE APPELLATE PROCEEDINGS IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT ), THE ASSESSEE FILED COPIES OF ORDERS OF CO-ORDINATE BENCH OF ITAT, DELHI, IN ASSESSEES OWN CASE, FOR ASSESSMENT YEARS 2005-06 AND 2006-07 (VIDE ORDER DATED 22.05.2019 IN ITA NOS. 6715 & 6716/DEL/2016) AND FOR ASSESSMENT YEARS 2003-04 AND 2004-04 (VIDE ORDER DATED 18.10.2013 IN ITA NOS. 4636 & 4637/DEL/2012). AT THE TIME OF HEARIN G BEFORE US, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT, VIDE AFORESAID ORDERS DATE D 22.05.2019 AND 18.10.2013, ITAT HAS ALREADY, IN IDENTICAL FACTS AND CIRCUMSTANCES, RESTORED THE IDENTICAL ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. IN VIEW OF THE FOREGOING, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT FOR THE ASSESSMENT YEAR 2007-08 ALSO , THE ISSUE MAY BE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE LD. CIT (DR), WHO APPEARED FOR REVENUE, FILED A COPY OF THE WRITTEN SUBMISSION PERTAINING TO AFOR ESAID APPEALS IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEARS 2005-06 AND 2006-07 I N ITA NOS.- 6715 & 6716/DEL/2016. HE PLACED RELIANCE ON THE SAME. HO WEVER, HE FAILED TO BRING ANY FACTS OR CIRCUMSTANCES TO OUR ATTENTION TO DISTINGUISH TH E PRESENT ASSESSMENT YEAR BEFORE US (I.E 2007-08) FROM THE FACTS AND CIRCUMSTANCES FOR THE ASSESSMENT YEARS 2003-04 & 2004-05 AND 2005-06 & 2006-07 FOR WHICH ITAT HAS AL READY PASSED ORDERS VIDE AFORESAID ORDERS DATED 18.10.2013 AND 22.05.2019. (4) WE HAVE HEARD BOTH SIDES PATIENTLY AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO CONSIDERED THE JUDICIAL PRECE DENTS BROUGHT TO OUR ATTENTION. DURING THE APPELLATE PROCEEDINGS, WE FIND THAT WRIT TEN SUBMISSIONS OF THE LD. CIT(DR), ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 4 OF 6 PERTAINING TO ITA NOS. 6715 & 6716/DEL/2016, IN THE CASE OF THE ASSESSEE HIMSELF, FOR ASSESSMENT YEAR 2005-06 AND 2006-07 HAVE ALREADY BE EN CONSIDERED BY CO-ORDINATE BENCH OF ITAT WHILE ADJUDICATING THE APPEALS, VIDE ORDER DATED 22.05.2019 IN ITA NOS. 6715 & 6716/DEL/2016. WE ALSO FIND THAT FOR ASSESS MENT YEARS 2003-04 AND 2004-05, THE CO-ORDINATE BENCH OF ITAT, DELHI, VIDE AFORESAI D ORDER DATED 18.10.2013 HAS SET ASIDE THE DISPUTED ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. AFTER CONSIDERING THE AFORESAID ORDER DATED 1 8.10.2013, THE CO-ORDINATE BENCH OF ITAT, DELHI, HAS PASSED ORDER DATED 22.05.2019 FOR ASSESSMENT YEARS 2005-06 AND 2006-07 IN ITA NOS.- 6715 & 6716/DEL/2016, AND FOLL OWING THE AFORESAID ORDER DATED 18.10.2013 FOR ASSESSMENT YEARS 2003-04 AND 2004-05 , THE DISPUTED ISSUE FOR ASSESSMENT YEAR 2005-06 AND 2006-07 WERE ALSO RESTO RED TO THE FILE OF THE AO FOR FRESH ADJUDICATION, VIDE AFORESAID ORDER DATED 22.05.2019 . THE LD. CIT(A), IN PARAGRAPH NO. 3.2 OF THE AFORESAID IMPUGNED ORDER DATED 18.11.201 6 (ALREADY REPRODUCED IN FOREGOING PARAGRAPH NO. 2) HELD THAT FACTS AND CIRCUMSTANCES FOR ASSESSMENT YEARS 2007-08 ARE IN PARI-MATERIA WITH ASSESSMENT YEAR 2004-05. IT IS N OT IN DISPUTE THAT FACTS AND CIRCUMSTANCES OF THIS YEAR ARE SIMILAR TO FACTS AND CIRCUMSTANCES FOR ASSESSMENT YEARS 2003-04 & 2004-05 AND 2005-06 & 2006-07. THE LD. C IT(DR) DID NOT BRING ANY MATERIAL FOR OUR CONSIDERATION TO DISTINGUISH THE FACTS AND CIRCUMSTANCES OF THIS CASE FOR ASSESSMENT YEAR 2007-08 FROM FACTS AND CIRCUMSTANCE S OF ASSESSMENT YEAR 2003-04, 2004-05, 2005-06 AND 2006-07 FOR WHICH, ON IDENTICA L ISSUE HAS ALREADY PASSED IN AFORESAID ORDERS DATED 18.10.2013 AND 22.05.2019. THE SUBMISSIONS OF THE LD. CIT(DR) FOR ASSESSMENT YEAR 2005-06 AND 2006-07 HAVE ALREAD Y BEEN CONSIDERED IN THE ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 5 OF 6 AFORESAID ORDER DATED 22.05.2019 OF CO-ORDINATE BEN CH OF ITAT, DELHI. RESPECTFULLY FOLLOWING THE PRECEDENTS IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2005-06 & 2006- 07 AND 2003-04 & 2004-5 VIDE AFORESAID ORDER DATED 22.05.2019 AND 18.10.2013 IN ITA NOS. 6715 & 6716/DEL/2016 AND 4637 & 4637/DEL/201 2 RESPECTIVELY, WE SET ASIDE THE DISPUTED ISSUE TO THE FILE OF THE AO FOR FRESH ADJU DICATION FOR ASSESSMENT YEAR 2007-08 ALSO, WITH THE DIRECTION TO PASS FRESH ORDER IN ACC ORDANCE WITH LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. (5) IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/7/2019 SD/- SD/- (H.S. SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26.07.2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.6717/DEL/2016. MR. TARUN GOYAL. PAGE 6 OF 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER