Rajesh Katyal, New Delhi V. DCIT, Central Circle- 1, Gurgaon

ITA 759/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0449 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHMA SINGH
• Keywords: Unexplained cash credit; Search and seizure
• Section: 153; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. MAHAVIR PRASAD, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.759/DEL/2018 ASSESSMENT YEAR: 2012-13 RAJESH KATYAL C-654, NEW FRIENDS COLONY, NEW DELHI-110065 PAN NO. AAEPK4668G VS DCIT CENTRAL CIRCLE -1 GURGAON (APPELLANT) (RESPONDENT) APPELLANT BY SH. V. K. BINDAL, CA RESPONDENT BY SH. SUSHMA SINGH, CIT DR DATE OF HEARING: 13/07/2021 DATE OF PRONOUNCEMENT: 20/07/2021 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE CIT(A)-3, GURGAON DATED 24.11.2017 PERTAINING T O A.Y. 2012-13. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1.50 CRORES U/S. 68 OF THE ACT. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E RESIDENTIAL AS WELL AS OFFICE PREMISES OF M/S. KRRISH GROUP OF CAS ES WERE SUBJECTED TO SEARCH AND SEIZURE OPERATIONS ON 09.11 .2011 ACCORDINGLY ASSESSMENT JURISDICTION OVER THE ASSESS EE HAS BEEN TRANSFERRED TO THE CIRCLE GURGAON. STATUTORY NOTIC ES WERE ISSUED AND SERVED UPON THE ASSESSEE AND THE ASSESSEE FILED HIS RETURN OF INCOME DECLARED TOTAL INCOME OF RS.12573480/-. 4. WHILE SCRUTINIZING THE RETURN OF INCOME THE AO N OTICED THAT THE ASSESSEE HAS RECEIVED UNSECURED LOAN OF RS.1.50 CRORES FROM PANKAJ KAPOOR. ON THE BASIS OF THE INCRIMINATING M ATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIONS THE AO FORME D A BELIEF THAT PANKAJ KAPOOR IS ROUTING THE UNACCOUNTED MONEY OF THE M/S. KRRISH GROUP COMPANIES AND ITS DIRECTORS BACK TO TH E GROUP IN THE FORM OF SHARE IN THE COMPANIES AND UNSECURED LO ANS IN THE INDIVIDUALS AND THE GROUP COMPANIES. 5. ACCORDINGLY, THE ASSESSEE WAS ASKED TO EXPLAIN T HE LOAN TRANSACTION FROM PANKAJ KAPOOR IN THE LIGHT OF THE PROVISIONS OF SECTION 68 OF THE ACT. 3 6. ASSESSEE FURNISHED THE COPY OF ACCOUNT, CONFIRMA TION, INCOME TAX DETAILS AND BANK STATEMENTS. 7. AFTER OBSERVING THE DETAILS FURNISHED BY THE ASS ESSEE AND AFTER DISCUSSING VARIOUS JUDICIAL DECISION THE AO C AME TO THE CONCLUSION THAT RS.1.50 CRORES TAKEN FROM PANKAJ KA POOR IS UNEXPLAINED CASH CREDIT AND ACCORDINGLY MADE THE AD DITION U/S.68 OF THE ACT. 8. ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BU T WITHOUT ANY SUCCESS. 9. BEFORE US THE COUNSEL FOR THE ASSESSEE REITERATE D WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. THE COUN SEL VEHEMENTLY STATED THAT THE ASSESSEE HAS FURNISHED ALL THE DOCU MENTARY EVIDENCES WHICH HE COULD HAVE FURNISHED TO EXPLAIN THE TRANSACTION IN THE LIGHT OF SECTION 68 OF THE ACT. THE COUNSEL FURTHER STATED THAT IN EARLIER YEARS ALSO THE ASSES SEE HAS TAKEN LOAN FROM PANKAJ KAPOOR WHICH HAVE BEEN ACCEPTED BY THE AO UNDER SCRUTINY ASSESSMENT, THEREFORE, THE IDENTITY AND THE CAPACITY CANNOT BE DOUBTED DURING THE YEAR UNDER CO NSIDERATION. 10. THE COUNSEL FURTHER REFERRED TO THE DOCUMENTS W HICH WERE IN THE PUBLIC DOMAIN. THE COUNSEL FURTHER BROUGHT TO OUR NOTICE THE NEWS REPORT FROM THE TIMES OF INDIA DATED 13.08.201 1 WHICH RELATES TO THE SEARCH OPERATIONS CONDUCTED BY THE E NFORCEMENT 4 DIRECTORATE. THE SAID NEWS ITEM SHOWS THE NET WORT H OF PANKAJ KAPOOR BY MORE THAN RS.1000/- CRORES. THE COUNSEL CONCLUDED BY SAYING THAT THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON HIM BY PROVISION OF SECTION 68 OF THE ACT, AND, THE REFORE, THE ADDITION SHOULD BE DELETED. 11. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDIN GS OF THE AO AND THE CIT(A) AND READ THE RELEVANT PORTION OF ASS ESSMENT ORDER AS WELL AS THE ORDER OF THE FIRST APPELLATE AUTHORI TY. 12. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CAREFULLY PERUSED THE DOCUMENTA RY EVIDENCES BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN THE LIGHT OF RULE 18 (6) OF THE ITAT RULES. IT IS TRUE THAT THE ASSESSE E HAS TAKEN LOAN FROM PANKAJ KAPOOR IN EARLIER ASSESSMENT YEARS THE SAME CAN BE SEEN FROM THE FOLLOWING LEDGER ACCOUNT IN PAGE-63 O F THE PAPER BOOK :- 5 13. THE TRANSACTION PERTAIN TO F.Y. 2007-08 RELEVAN T TO A.Y.2008-09. IN A.Y. 2008-09 THE ASSESSMENT WAS FR AMED U/S. 153 A OF THE ACT VIDE ORDER DATED 24.03.2014 BY THE SAME AO I.E. PRATIBHA MEENA. THE ASSESSMENT ORDER FOR THE YEAR U NDER CONSIDERATION IS ALSO FRAMED ON 24.03.2014 WHICH ME ANS THAT THE AO KNEW THE TRANSACTIONS OF A.Y.2008-09. WHEN THE SAME AO HAS ACCEPTED THE TRANSACTION FOR A.Y.2008-09 THAN T HE SAME AO CANNOT AND SHOULD NOT QUESTION THE IDENTITY OF THE LENDER IN THE YEAR UNDER CONSIDERATION. SINCE THE LOAN AMOUNT OF RS.1.74 6 CRORES WAS ACCEPTED IN A.Y.2008-09 THIS MEANS THAT THE CAPACITY WAS ALSO ACCEPTED BY THE AO. WE FAIL TO UNDERSTAND WHY THE CAPACITY OF THE SAME PERSON HAVE BEEN QUESTIONED DU RING THE YEAR UNDER CONSIDERATION. MOREOVER AS PER THE NEWS REPOR T IN THE PUBLIC DOMAIN WHEN THE ENFORCEMENT DIRECTOR ITSELF IS SAYING THAT THE NET WORTH OF THE PANKAJ KAPOOR IS MORE THAN RS. 1000 CRORES THE CAPACITY OF PANKAJ TO LEND RS.1.50 CRORES SHOUL D NOT BE QUESTIONED. BE THAT AS IT MAY, CONSIDERING FACTS I N TOTALITY THE ASSESSEE HAS SUCCESSFULLY PROVED THE IDENTITY, GENU INENESS OF THE TRANSACTIONS PRIMA FACIE, CAPACITY OF THE LENDER PR IMA FACIE, AND HAS SUCCESSFULLY DISCHARGED THE INITIAL ONUS CAST U PON HIM BY THE PROVISIONS OF THE 68 OF THE ACT. WE ACCORDINGLY DIR ECT THE AO TO DELETE THE ADDITION OF RS.1.50 CRORES.. 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.07.2021. SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER A CCOUNTANT MEMBER *NEHA* DATE:-20.07.2021 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI 7 DATE OF DICTATION 13.0 7.2021 DATE O N WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20.07.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 20.07.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 20.07.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 20.07.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 20.07.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 20.07.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WH ICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER