Sh. Surya Kant Jaipuria, New Delhi V. ACIT, New Delhi

ITA 6781/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2994 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 10-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 28-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWROOP
• Assessee Lawyers: P C YADAV MS NEHA GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE HONBLE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6781/DEL./2015 (ASSESSMENT YEAR : 2012-13) SHRI SURYA KANT JAIPURIA, VS. ACIT, CENTRAL CIRCL E 7, S 25, GREEN PARK MAIN MARKET, NEW DELHI. NEW DELHI 110 016. (PAN : AAIPJ6008K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.C. YADAV, ADVOCATE MS. NEHA GUPTA, ADVOCATE REVENUE BY : MS. SHEFALI SWROOP, CIT DR DATE OF HEARING : 07.11.2017 DATE OF ORDER : 07.12.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI SURYA KANT JAIPURIA (HEREINAFT ER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 13.10.2015 PASSED BY THE C OMMISSIONER OF INCOME-TAX (APPEALS)-24, NEW DELHI QUA THE ASSES SMENT YEAR 2012-13 ON THE GROUNDS INTER ALIA THAT :- ITA NO.6781/DEL/2015 2 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LD. CIT (APPEAL) IS BAD BOTH IN THE EYES OF LAW AND ON FACTS. 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.11,48,000 /- BY TREATING THE CASH FOUND DURING SEARCH AS UNEXPLAINE D. 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE TRANSACTIONS RECORDED IN SEIZED BOOKS OF ACCOUNTS FOR CONFIRMING THE ADDITION OF RS.11,48,000/-. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : DURING THE SEARCH AND SEI ZURE OPERATION CONDUCTED ON M/S. JAIPURIA GROUP OF CASES ON 27.03. 2012, CASH AMOUNT OF RS.35,31,500/- WAS FOUND OUT OF WHICH CAS H AMOUNT OF RS.31,00,000/- WAS SEIZED AND SHRI S.K. JAIPURIA WA S CALLED UPON TO EXPLAIN THE SOURCE OF THE CASH DURING RECORDING OF HIS STATEMENT IN THE COURSE OF SEARCH. AO, BEING DISSATISFIED WI TH THE REPLY FILED BY THE ASSESSEE THAT THE CASH AMOUNT BELONGS TO THE COMPANIES, NAMELY, JAIPURIA DUROBUILDING PVT. LTD., JAIPURIA T OWN PLANNERS PVT. LTD., VIBHU DRINKS PVT. LTD., SMV AGENCIES PVT . LTD., SMV BEVERAGES PVT. LTD. ETC., MADE AN ADDITION OF RS.35 ,31,500/- ON ACCOUNT OF UNACCOUNTED CASH SEIZED. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS SUSTAINED THE ADDITION TO T HE EXTENT OF RS.11,48,000/- BUT DELETED THE REMAINING ADDITION. FEELING ITA NO.6781/DEL/2015 3 AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY CHALLENGING THE IMPUGNED ORDER PASSED BY LD. CIT (A ) . 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT DURING THE COURSE OF SEAR CH AND ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS DULY EXPLA INED THE IMPUGNED CASH BEING BELONGED TO JAIPURIA LEO SOFTWA RE & SYSTEMS PVT. LTD. (JLSSPL) AND HAVE CATEGORICALLY S TATED IN HIS STATEMENT THAT THE BOOKS OF ACCOUNT OF THE SAID COM PANY ARE MAINTAINED AT NAGPUR BY SHRI PRADEEP KHODE; THAT TH E REVENUE HAS FAILED TO CONTROVERT THE FINDINGS THAT CASH OF RS.1 1,48,000/- DOES NOT BELONG TO JLSSPL, IN WHICH ASSESSEE AND HIS FAM ILY MEMBERS ARE DIRECTORS; THAT THE LD. CIT (A) HAS SUSTAINED T HE ADDITION OF RS.11,48,000/- DESPITE THE FACT THAT THE SAID CASH ACTUALLY BELONGS TO JLSSPL AND RELIED UPON THE DECISIONS OF ITO VS. C ATCHAIAH 218 ITR 239 (SC), CIT VS. NAYAN ENGG WORKS 248 IT R 596 (MAD.), S.R. VENKAT RAMAN VS. CIT 127 ITR 807 (KA R) AND CIT VS. KULWANT RAI 291 ITR 36 (DEL.) . ITA NO.6781/DEL/2015 4 6. HOWEVER, ON THE OTHER HAND, THE LD. DR FOR THE R EVENUE TO REPEL THE ARGUMENTS ADDRESSED BY LD. AR FOR THE ASS ESSEE CONTENDED THAT SINCE THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS TO EXPLAIN THE CASH AMOUNT, ADDITION HAS BEEN RIGHTLY MADE BY THE AO AND SUSTAINED BY THE LD. CIT (A) AND RELIED UPON THE OR DER PASSED BY THE LD. CIT (A). 7. UNDISPUTEDLY, THE ASSESSEE HAS PRODUCED THE CASH BOOK OF JLSSPL FOR THE ENTIRE YEAR 2011-12 AND HAS BEEN THO ROUGHLY PERUSED BY LD. CIT (A) DURING THE APPELLATE PROCEED INGS WHEREIN CASH AMOUNT OF DIFFERENT DATES IS SHOWN TO HAVE BEE N GIVEN TO VAIBHAV JAIPURIA IMPREST. WHEN LD. CIT (A) HAS NOT DISPUTED THE CASH BOOK CONTAINING ENTRIES AS TO AMOUNT OF RS.11, 48,000/- IN THE HANDS OF VAIBHAV JAIPURIA IMPREST, MERELY SUSTAININ G THE ADDITION ON GROUND OF PREPONDERANCE OF PROBABILITIES IS NOT SUSTAINABLE IN THE EYES OF LAW. 8. LD. CIT (A) ALSO TAKEN NOTE OF THE FACT THAT WHE N THE CASH AMOUNT WAS GIVEN TO VAIBHAV JAIPURIA AT NAGPUR OFFI CE, IT IS DIFFICULT TO DIGEST THAT SAID AMOUNT FIND ITS WAY T O THE RESIDENCE OF ASSESSEE, SHRI S.K. JAIPURIA, NEW DELHI FOR SAFE KE EPING IN THE MONTH OF 2012. WE ARE AGAIN OF THE CONSIDERED VIEW THAT WHEN IT IS NOT IN DISPUTE THAT JLSSPL IS OWNED BY ASSESSEE AND HIS FAMILY MEMBER AND VAIBHAV JAIPURIA IS NOT ALLEGED OR PROVE D TO BE SOME ITA NO.6781/DEL/2015 5 THIRD PERSON NOT RESIDING AT DELHI, THIS REASONING IS ALSO NOT SUSTAINABLE. 9. FURTHERMORE IN CASE, THERE IS ANY DISCREPANCY IN THE ACCOUNT OF VAIBHAV JAIPURIA QUA THE IMPREST OF RS.11,48,000 /- THAT HAS TO BE ATTRIBUTED TO HIM (VAIBHAV JAIPURIA) AND NOT TO THE ASSESSEE PARTICULARLY WHEN CASH BOOK OF JLSSPL HAS NOT BEEN DISPUTED / REJECTED BY LD. CIT (A). MOREOVER WHEN THE ASSESSE E HAS DULY EXPLAINED IN HIS STATEMENT RECORDED DURING SEARCH O PERATION THAT THE AMOUNT BELONGS TO JLSSPL AND PRODUCED THE CASH BOOK THEREOF, IT CANNOT BE CONSIDERED AS AN AFTERTHOUGHT OF THE ASSE SSEE HAVING BEEN DULY CORROBORATED WITH THE CASH BOOK PERUSED A ND DISCUSSED BY LD.CIT (A) IN PARA 4.3 OF THE IMPUGNED ORDER. 10. NOT ONLY THIS, WHEN ASSESSMENT OF JLSSPL FOR AY 2012-13 WAS COMPLETED U/S 143 (3) OF THE ACT AND THIS CASH BOOK RELIED UPON BY THE ASSESSEE QUA THE AMOUNT IN QUESTION CAN NOT BE DISPUTED ON THE BASIS OF SURMISES. ASSESSMENT ORDE R PASSED U/S 143 (3) OF THE ACT IN JLSSPL IS AVAILABLE AT PAGES 90 TO 93 OF THE PAPER BOOK. EVEN AO HAS NOT DISPUTED THE GENUINENE SS OF THE CASH BOOK AS HAS BEEN MENTIONED IN PARA 4.1.3 OF THE IM PUGNED ORDER, WHICH HE HAS PERUSED AFTER TALLYING THE BALANCE OF CASH OF RS.15,41,020/- ON 01.03.2012 AND TWO ENTRIES OF RS. 17,20,000/- AND RS.2,00,000/- AS VAIBHAV JAIPURIA BEING SHOWN A S CASH FROM ITA NO.6781/DEL/2015 6 VAIBHAV JAIPURIA FROM HIS IMPREST ACCOUNT PRIOR TO THE DATE OF SEARCH. IN ANY CASE, THE INCOME HAS TO BE ASSESSED IN THE HANDS OF VAIBHAV JAIPURIA AS WELL AS JLSSPL WHO HAS PRODUCED THE CASH BOOK BEING INDEPENDENTLY ASSESSED. IN THESE CIRCUM STANCES, WHEN THE CASH BOOK OF THE ENTIRE YEAR HAS BEEN PERUSED B Y THE LD. CIT (A) AND ENTRIES THEREIN HAVE NOT BEEN DISPUTED, THE ADDITION SUSTAINED BY LD. CIT (A) IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE ORDERED TO BE DELETED. CONSEQUENTLY, THE APPEAL FI LED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 7 TH DAY OF DECEMBER, 2017. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBER DATED THE 7 TH DAY OF DECEMBER, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-24, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.