Madhu Singla, Dehradun V. DCIT, Central Circle, Dehradun

ITA 8330/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1359 (ITAT-DEHRADUN)
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HOPUL SINGH
• Keywords: Income from undisclosed sources; Salary income; Retraction
• Section: 132; 143(3); 142(1); 13; 20

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCHES, NEW DELHI (CIRCUIT BENCH AT DEHRADUN ) BEFORE SHRI SUDHANSHU SRIVASTAVA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 8329/DEL/2018 (ASSESSMENT YEAR: 2016 - 17 ) YOGESH SINGLA, C/O. MATTA GARG & CO, 15 ASTLEY HALL, DEHRADUN, UTTARAKHAND PAN: BQAPS5912C VS. DCIT, CENTRAL CIRCLE, DEHRADUN (APPELLANT) (RESPONDENT) ITA NO. 8330/DEL/2018 (ASSESSMENT YEAR: 2016 - 17 ) MADHU SINGLA, C/O. MATTA GARG & CO, 15 ASTLEY HALL, DEHRADUN, UTTARAKHAND PAN: ADWPS5499J VS. DCIT, CENTRAL CIRCLE, DEHRADUN (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. MATT A , CA REVENUE BY: SHRI HOPUL SINGH, JCIT, DR DATE OF HEARING 28/02 / 2020 DATE OF PRONOUNCEMENT 13 / 05 / 2020 O R D E R PER PRASHANT MAHARISHI , A. M. THESE ARE THE TWO APPEALS OF THE INDIVIDUAL ASSESSES ARISING OUT OF SAME SEARCH INVOLVING COMMON AND IDENTICAL ISSUE, THEREFORE, THOSE ARE HEARD TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER. ITA NO. 8329/DEL/2018 1 . THIS APPEAL IS FILED BY AN INDIVIDUAL ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - IV, KANPUR DATED 05.12.2018, WHEREIN, THE LD CIT(A) HAS CONFIRMED THE ADDITION OF RS. 20 LAKHS ON ACCOUNT OF SURRENDER MADE AT THE TIME OF SEARCH U/S 132 OF THE OF ACT. PAGE | 2 2 . THE ASSESSEE IS AN INDIVIDUAL, DERIVED ITS INCOME FROM SALARY, BUSINESS, CAPITAL GAIN ETC. SEARCH U/S 13 2 WAS CONDUCTED ON 22.07.2015 ON GOLDEN MANOR GROUP. DURING SEARCH , DOCUMENTS BELONGING TO ASSESSEE WERE FOUND. NOTICE U/S 142(1) WAS ISSUED ON 30.03.2017 . IN RESPONSE TO WHICH ASSESSEE FILED RETURN ON 14. 8.2017 OF RS. 576240/ - . 3 . DURING THE COURSE OF SEARCH FATHER OF ASSESSEE SRI. THACKUR SINGLA SURRENDERED RS. 20 LACS IN THE HANDS OF THE ASSESSEE IN STATEMENT RECORDED U/S 132(4) ON 22.07.2015. IN RESPONSE TO QUESTION NO. 35, THE ASSESSEE ALSO AGREED FOR THE SAME AND SURRENDERED THE ABOVE SUM. HOWEVER, WHILE FILING THE RETURN OF INCOME THE ASSESSEE DID NOT OFFER THE ABOVE SUM. ON QUESTION ED , ASSESSEE SUBMITTED THAT VIDE LETTER DATED 23.07.2015 TO THE JOINT DIR ECTOR OF INCOME TAX (INVESTIGATION), DEHRADUN HE HAS ALREADY RETRACTED THE SURRENDER. SUBSEQUENTLY, ALSO ON THE SAME DATE HIS FATHER HAS ALSO RETRACTED THE ABOVE STATEMENT AND FURTHER COMMUNICATED TO THE RESPECTIVE AUTHORITIES. ACCORDING TO THE ASSESSEE SU CH RETRACTION OF SURRENDER IS UNCHALLENGED BY REVENUE. HE FURTHER SUBMITTED THAT THERE IS NO MATERIAL AVAILABLE WITH THE REVENUE BASED ON WHICH THE ABOVE SURRENDER WAS EXTRACTED. HE ALSO SUBMITTED THAT THERE ARE NO MATERIALS FOUND DURING SEARCH WHICH CAN E VEN REMOTELY CONNECT TO ANY UNDISCLOSED INCOME OF EQUIVALENT SUM IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT EVEN CHEQUES HANDED OVER HAVE NOT BEEN DEPOSITED BY REVENUE. THEREFORE IT IS APPARENT THAT SURRENDER IS BALD. THE AO REJECTED THE CONTENTION OF THE ASSESSEE STATING THAT THE RETRACTION IS BAD AND WITHOUT ANY EVIDENCE. THEREFORE, RS. 20 LAK H S WERE ADDED IN ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 31.12.2017 AT THE TOTAL INCOME OF RS. 2576420/ - . THE ASSESSEE CONTESTED THE ABOVE ADDITION BEFOR E THE LD CIT ( A) WHO REJECTED THE EXPLANATION OF THE ASSESSEE AND DISMISSED HIS APPEAL. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 4 . THE LD AR SUBMITTED THAT THE SURRENDER WAS MADE AT THE PRESSURE OF THE SEARCH PARTY AND IT DOES NOT HAVE ANY EVIDENCE. T HE STATEMENT WAS RETRACTED AND THEREFORE, COULD NOT HAVE BEEN RELIED UPON BY THE LD AO TO MAKE THE ADDITION. HE FURTHER RELIED UPON THE CIRCULAR ISSUED BY CBDT AS WELL AS DECISION OF THE SEVERAL COURTS TO SUPPORT HIS CONTENTION. PAGE | 3 5 . THE LD DR VEHEMENTLY SUPPO RTED THE ORDER OF THE LOWER AUTHORITIES. HE SUBMITTED THAT WHEN ASSESSEE HAS MADE THIS SURRENDER IN FACT HE IS IN POSSESSION OF THE EVIDENCE OF THE CONCEALED INCOME AND THEREFORE, BURDEN CANNOT BE PUT ON THE LD AO TO SHOW THAT SURRENDER IS BASED ON THE CER TAIN EVIDENCE. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE FACT IS THAT THE ASSESSEE DISCLOSED A SUM OF RS. 20 LACS IN HIS HANDS UNDER A STATEMENT MADE U/S 132(4) OF THE ACT BASED ON THE STA TEMENT OF HIS FATHER. THEREFORE, IT IS IMPORTANT TO LOOK AT THE STATEMENT MADE U/S 132(4) OF MR. THACKUR SING LA TO DETERMINE WHETHER THE DISCLOSURE WAS BASED ON S O ME EVIDENCE OR NOT. APPARENTLY, IN ASSESSMENT ORDER AS WELL AS IN THE APPELLATE ORDER NO EVID ENCE WAS DISCLOSED BASED ON WHICH THE FATHER OF THE ASSESSEE DISCLOSED THE SUM. FURTHER, IN THE STATEMENT U/S 132(4) OF THE ACT OF THE ASSESSEE IN REPLY TO QUESTION NO. 35 , WHERE ASSESSEE HAS DISCLOSED RS. 20 LACKS ON HIS OWN , ALSO DOES NOT HAVE ANY DISCUSSION ABOUT THE MATERIAL BASED ON WHICH THE DISCLOSURE IS MADE. NO DOUBT THE DISCLOSURE MADE FOR THE FIRM OF GOLDEN MANOR MAY HAVE OTHER EVIDENCE, HOWEVER IN THE CASE OF THE IMPUGNED ADDITION OF RS. 20 LAKHS; WE DO NOT FIND ANY MENTION ABOUT EVIDENCE OF UNACCOUNTED INCOME. IT IS ALSO ADMITTED BY REVENUE THAT THE ASSESSEE HAS RETRACTED THE STATEMENT IMMEDIATELY AFTER THE SEARCH THAT IS ALMOST WITHIN 10 DAYS OF THE SEARCH. FURTHER THE CIRCULAR OF CBDT DATED 10.03.2003 ALSO DISCO URAGE REVENUE FROM MAKING AN ADDITION MERELY ON THE BASIS OF STATEMENT OR CONFESSION WITHOUT ANY EVIDENCE. FURTHER HAD THERE BEEN ANY EVIDENCE LD AO SHOULD HAVE MADE ADDITION OF THAT AMOUNT AND NOT RS 20 LAKHS. IN VIEW OF THIS, WE DO NOT FIND ANY REASON TO SUSTAIN THE ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, THE LD AO IS DIRECTED TO DELETE THE ADDITION OF RS. 20 LACS. ORDERS OF THE LOWER AUTHORITIES ARE REVERSED AND APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 8330/DEL/2018 7 . IDENTICAL FACTS ARE RAISE D WHERE THE AO HAS MADE AN ADDITION OF RS. 30 LACS BASED ON THE BASI S OF STATEMENT OF THE FATHER U/S 132 (4) OF THE PAGE | 4 ACT , WHICH WAS SUBSEQUENTLY RETRACTED. THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES IN THE CASE OF YOGESH SINGLA AND THE PRES ENT ASSESSEE OF EVEN A PIECE OF SAND, THEREFORE, F OR THE REASONS GIVEN BY US IN THE ABOVE ORDER OF MR. YOGESH SINGLA WE ALSO DIRECT THE LD AO TO DELETE THE ADDITION OF RS. 30 LACS. ORDERS OF LOWER AUTHORITIES ARE REVERSED. APPEAL OF ASSESSEE IS ALLOWED. 8 . IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 / 05 / 2020 . - SD/ - - SD/ - ( SUDHANSHU SRIVASTAVA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 / 05 / 2020 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI PAGE | 5 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