Pankaj Goel, New Delhi V. DCIT Central Circle-03, New Delhi

ITA 7283/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7818 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 03-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARAT KHAN
• Keywords: Assessment record
• Section: 251; 69A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 7283/DEL/2019 : ASSTT. YEAR : 2017-18 PANKAJ GOEL, 662/3A, 2 ND FLOOR, GHATI ROAD, ANAND PARVAT, NEW DELHI-110005 VS DCIT, CENTRAL CIRCLE-3, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A SWPG8949E ASSESSEE BY : SH. RANO JAIN, ADV. REVENUE BY : SH. FARAT KHAN, ADDL. CIT DR DATE OF HEAR ING: 10 . 0 2 .20 2 1 DATE OF PRONOUNCEMENT: 26 .03 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-23, NEW DELHI DATED 28. 06.2019. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)]) IS BAD BOTH IN THE EYE OF L AW AND ON FACTS. 2(I). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, I D. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ENHANC ING THE INCOME OF THE ASSESSEE TO THE EXTENT OF RS. 30,00,000/- UNDER SECTION 69A OF THE ACT. (II). THAT THE ENHANCEMENT HAS BEEN MADE MISUNDERSTANDING THE FACTS OF THE CASE, ARBITRARILY ITA NO. 7283/DEL/2019 PANKAJ GOEL 2 REJECTING THE EVIDENCES AND EXPLANATION BROUGHT ON RECORD BY THE ASSESSEE. 3(I). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, I D. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ENHANC ING THE INCOME OF THE ASSESSEE, HAVING BEEN MADE WITHOU T JURISDICTION, WITHOUT UNDERSTANDING THE LAW THAT FO R THE PURPOSE OF ENHANCEMENT UNDER SECTION 251 OF THE ACT , THE CIT(A) CANNOT MAKE A NEW SOURCE OF INCOME. (II). THAT THE CIT(A) IGNORED THE FACT THAT THERE B EING NO WHISPER, MUCH LESS ANY DISCUSSION REGARDING SAID TRANSACTION, IN THE A.O.S ORDER, THERE IS TOTAL LA CK OF JURISDICTION ON THE PART OF CIT(A) UNDER SECTION 25 1 OF THE ACT. 4(I). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, I D. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIR MING THE ACTION OF THE A.O. IN MAKING THE ADDITION TO TH E EXTENT OF RS. 1,42,500/- ON ACCOUNT OF INCOMES RECEIVED IN CASH. (II) THAT THE ADDITION HAS BEEN CONFIRMED, MISUNDERSTANDING THE FACTS OF THE CASE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIR MING THE ACTION OF THE A.O. IN MAKING ADDITION OF RS.2,25,000/- ON ACCOUNT OF INTEREST ON LOAN. 3. THE ASSESSEE WAS INTERCEPTED ON 25.03.2017 BY DE LHI POLICE AND CONSEQUENTLY AUTHORIZATION U/S 132 OF TH E INCOME TAX ACT, 1961 WAS ISSUED IN THE NAME OF THE ASSESSE E AND AN AMOUNT OF RS.25,00,000/- HAS BEEN SEIZED. THE ASSES SEE OPTED FOR DISCLOSURE UNDER PRADHAN MANTRI GARIB KALYAN YO JNA (PMGKY). 4. DURING THE ASSESSMENT, THE AO MADE ADDITION OF RS.2,25,000/- ON ACCOUNT OF INTEREST AND LOAN FROM THE PERIOD JULY 2016 TO MARCH 2017 ON THE AMOUNT OF RS.25,00,0 00/- THAT ITA NO. 7283/DEL/2019 PANKAJ GOEL 3 HAS BEEN SEIZED. THE AO HELD THAT THE ASSESSEE IS I N THE BUSINESS OF GIVEN CASH LOANS AND HE MUST HAVE RECEI VED THE INTEREST ON THE AMOUNT OF RS.25,00,000/- AT LEAST @ 1%. WE HAVE SEEN THE ASSESSMENT RECORD AND THE ORDER OF TH E LD. CIT (A) AND HAVING HEARD ARGUMENTS OF BOTH THE PARTIES, WE FIND THAT THE REVENUE HAS NO PRIMA FACIE EVIDENCE OF RECEIPT OF THE INTEREST BY THE ASSESSEE. THE ADDITION HAS BEEN MAD E ON A NOTIONAL BASIS WITHOUT ANY PROOF. HENCE, IN THE ABS ENCE OF ANY TANGIBLE REASONS AND MATERIAL AVAILABLE ON RECORD A ND OR WITH THE REVENUE, WE HEREBY DIRECT THAT NO NOTIONAL INTE REST CAN BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. THE LD. CIT (A) MADE AN ADDITION OF RS.30,00,000 /- TO THE RETURNED INCOME. THE REASON GIVEN BY THE LD. CIT (A ) WAS THAT THE ASSESSEE HAS ADMITTED DURING THE STATEMENT RECO RDED ON 25.03.2017 THAT ON 22.11.2016 HE HAS COLLECTED RS.3 0,00,000/- IN CASH. 6. THE QUESTION 14 READ AS UNDER: YOU ARE BEING SHOWN MESSAGE IN YOUR MOBILE SENT BY YOU TO SH. RAJENDRA GOEL JI ON 22.11.2016 AT 15:49 WHICH HAS T HE CONTENT 10 KA NOTE, 37L 881231, 30/- THE ASSESSEE ANSWERED THE MESSAGE MEANS THAT I WAS TO COLLECT RS.30,00,0 00/- IN CASH FROM THE PERSON HAVING THE RS.10/- NOTE WITH SERIAL NO. 37L 881231. 7. BASED ON THE ABOVE QUESTION AND ANSWER, THE LD. CIT (A) HELD THAT THE FULL ADDRESS OF SH. RAJENDRA GOEL AND FULL PARTICULARS OF TRANSACTIONS WERE NOT PROVIDED NOR A NY SUPPORTING ITA NO. 7283/DEL/2019 PANKAJ GOEL 4 EVIDENCES WERE PROVIDED. HOLDING THIS, THE LD. CIT (A) MADE ADDITION OF RS.30,00,000/- TO THE TOTAL INCOME OF T HE ASSESSEE. 8. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. 9. WE FIND FROM THE EVENTS THAT THE REVENUE DID NOT HAVE ANY EVIDENCE OF THE ASSESSEE BEING THE OWNER OF THE PUR PORTED RS.30,00,000/-. IT WAS NOT PROVED THAT THE ASSESSEE HAS RECEIVED THE MONEY AND THE MONIES HAVE BEEN FOUND I N THE CUSTODY OF THE ASSESSEE BY THE REVENUE. THE MESSAGE ONLY DEPICTS THAT THE ASSESSEE WAS TO COLLECT RS.30,00,0 00/- BUT IT WAS NOT PROVED THAT THE ASSESSEE HAS INDEED COLLECT ED THE AMOUNT AND THE AMOUNT BELONGS TO HIM AND THE MATTER HAS BEEN EXAMINED BY THE ASSESSING OFFICER WHO CHOOSE TO NOT TO TREAT THIS AMOUNT AS UNDISCLOSED INCOME. THE CBDT HAS ALS O ISSUED CIRCULARS FROM TIME TO TIME, DIRECTING THE OFFICERS NOT TO MAKE ADDITIONS MERELY BASED ON THE STATEMENT OF THE ASSE SSEE WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD OR C ONDUCTING SUITABLE ENQUIRIES. WE FIND IN THIS CASE, THE LD. C IT (A) HAS SWAYED AWAY BY THE MESSAGE IN THE MOBILE BUT COULD NOT BRING ANYTHING ON RECORD OR MADE ENQUIRIES OR PROVED THAT THE ASSESSEE HAS INDEED RECEIVED THE AMOUNTS. THE RIGOR S OF PRESUMPTION ALLOWED UNDER THE ACT CANNOT BE INVITED IN THE FACTS OF THE INSTANT CASE. IT WAS NOT EVEN PRIMA FACIE PROVED WHETHER THE ASSESSEE INDEED RECEIVED THE MONEY OR W AS TO RECEIVE THE MONEY. THERE WAS NO MATERIAL TO PROVE T HE CASE OF THE REVENUE REGARDING THE ADDITION (ENHANCEMENT) MA DE BY THE LD. CIT (A). ITA NO. 7283/DEL/2019 PANKAJ GOEL 5 10. IN VIEW OF THE AFORESAID OBSERVATION, WE HEREBY DIRECT THAT THE ENHANCEMENT MADE BY THE LD. CIT (A) IS NOT VALI D ON MERITS OF THE CASE. 11. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/03/2021. SD/- SD/- (BHAVNESH SAINI) (DR. B. R. R. KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 26/03/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR