Sh. Sunil Jindal, New Delhi V. DCIT, Faridabad

ITA 835/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9085 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K CHAUDHARY
• Keywords: Assessment record
• Section: 143(3); 153A; 147

Judgement Text

I.T.A.NO.835/DEL/2017/A.Y.2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER . . /. I.T.A NO.835/DEL/2017 / ASSESSMENT YEAR:2012-13 SH. SUNIL JINDAL C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-1, NEW DELHI. VS. DCIT, CENTRAL CIRCLE-II, FARIDABAD. PAN NO. AFSPJ5785L APPELLANT / RESPONDENT /ASSESSEE BY SH. SOMIL AGGARWAL, ADV. /REVENUE BY SH. H.K. CHAUDHARY, CIT (DR) / DATE OF HEARING: 10 .0 8 .20 2 1 /PRONOUNCEMENT ON 1 2 .0 8 .20 2 1 /O R D E R PER MADHUMITA ROY, J.M. 1. THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 23.12.2016 PASSED BY THE LD. CIT(A), KA RNAL ARISING OUT OF THE ORDER DATED 27.02.2015 PASSED BY THE LD. DCI T, CENTRAL CIRCLE-II, FARIDABAD U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2012-13. 2. THE ADDITION OF RS. 21 LAKHS ON ACCOUNT OF SUBSCRIP TION IN COMMITTEE/CHITS IS A SUBJECT MATTER BEFORE US. DUR ING THE COURSE OF SEARCH ON 09.05.2012 AT THE RESIDENCE OF PROMOTE RS OF SRS GROUP I.T.A.NO.835/DEL/2017/A.Y.2012-13 2 AT HOUSE NO. 535, SECTOR 14, FARIDABAD, MESSAGES WE RE RETRIEVE FROM THE MOBILE OF THE ASSESSEE SH. SUNIL JINDAL WH ICH SHOWS THAT HE IS TRANSACTING IN CHITS, SUCH MESSAGES WERE RECE IVED FROM ONE SH. VIKAS KUMAR GUPTA. THE ASSESSEE IN HIS STATEME NT ON THE DATE OF SEARCH ADMITTED HIM TO BE HIS FRIEND SINCE LAST 8-9 YEARS. HOWEVER, THE ASSESSEE DENIED OF HAVING CHITS BUT AS HE COULD NOT GIVE ANY REASON WHY SUCH MESSAGES WERE BEING RECEIV ED BY HIM OVER HIS MOBILE NUMBER, SUMMONS DATED 21.05.2012 WA S ISSUED DIRECTING HIM TO FURNISH THE INCOME ARISING ON SUCH CHITS AND SOURCE OF INVESTMENT. THE ASSESSEE WAS FURTHER REQUIRED T O EXPLAIN AS TO WHY RS. 3 LAKHS PER MONTH FOR SEVEN MONTHS MAY NOT BE ADDED TO HIS INCOME WITH RESPECT TO HIS SUBSCRIPTION HIS CHI T TRANSACTED BY HIM AS WAS FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE REPLIED AS FOLLOWS: G) WITH REFERENCE TO THE ALLEGED CHIT, IT IS HUMB LY SUBMITTED THAT THE ASSESSEE HAS NEITHER INVESTED IN ANY CHIT NOR IS HE DEALING IN CHIT FUNDS. THE ASSESSEE HAS ALSO CONFIRMED FROM HIS FRIEND VIK AS GUPTA FROM WHOSE PURPORTED MOBILE THE IMPUGNED ELECTRONIC MESSAGES WERE RETRIEVED. IT HAS BEEN STATED BY SH. VIKAS GUPTA THAT HE IS NOT DEALING IN CHITS AND NEVER SEN T ANY MESSAGE TO THE ASSESSEE. THERE APPEARS TO BE SOME SORT OF TECHNICAL ERROR SINCE VIKAS GUPTA DEALS IN MOBILE R EPAIRING AND MESSAGE, IF AT ALL FROM HIS NUMBER, MAY HAVE GE NERATED OUT OF SOME FAULTY HANDSET NOT RELATED TO HIM. THE FACTS HAD BEEN TESTED BY THE DEPARTMENT ITSELF IN THE ASS ESSMENT OF SH. VIKAS GUPTA. THE ASSESSMENT ORDER OF SH. GU PTA REGARDING THE MATTER IS ATTACHED AND HIS ASSESSMENT RECORDS ARE RELIED IN THIS REGARD. IT IS HUMBLY SUBMITTED THAT NO CORROBORATIVE EVIDEN CE ANY PAYMENT BY THE ASSESSEE IS THERE. THE ASSESSEE IS NOT GM IN I.T.A.NO.835/DEL/2017/A.Y.2012-13 3 ANY COMPANY EITHER. THUS, IF AT ALL SOMETHING, THE SE APPEAR TO BE SOME MISDIRECTED ELECTRONIC TEXTS. 3. HOWEVER, SUCH SUBMISSION WAS NOT FOUND SUITABLE BY THE LD. AO. FURTHER THAT THOUGH THE ASSESSEE ADMITTED MR. VIKAS GUPTA AS HIS FRIEND BUT NOT BEEN ABLE TO PRODUCE HIM FOR HIS TES TIMONY IN THE OFFICE OF THE LD. AO, ULTIMATELY TAKING INTO CONSID ERATION THE RECORDS AVAILABLE BEFORE THE LD. AO, ADDITION OF RS . 21 LAKHS @ 3 LAKHS PER MONTH FOR SEVEN MONTHS WAS MADE TO THE TO TAL INCOME OF THE ASSESSEE WHICH WAS IN TURN CONFIRMED BY THE FIR ST APPELLATE AUTHORITY. HENCE, THE INSTANT APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RES PECTIVE PARTIES. WE HAVE ALSO PERUSED THE RELEVANT MATERIA LS ON RECORD AS AVAILABLE BEFORE US. 4.1IT APPEARS FROM THE ORDER OF THE LD. AO THAT THE ADDITION OF RS. 21 LAKHS HAS BEEN MADE ON THE GROUND THAT THERE WERE T EXT MESSAGES FROM ONE SHRI VIKAS GUPTA WHICH WAS FOUND ON APPELL ANTS MOBILE NUMBER DURING SEARCH, WHICH FURTHER SHOWS THAT THE ASSESSEE WAS MAINTAINING A CHIT OF SUM OF RS. 3 LAKHS PER MONTH FOR SEVEN MONTHS. HOWEVER, THE LD. AO HAS NOT SPECIFIED THAT THE ADDITION IS MADE ON ACCOUNT OF ANY INVESTMENT ALLEGEDLY MADE BY THE ASSESSEE OR FOR SOMETHING ELSE. MORESO, THE ADDITION HAS BE EN MADE WITHOUT ANY BASIS, MATERIAL OR EVIDENCE RATHER ON S URMISES AND CONJECTURES UPON PERUSAL OF THE TEXT MESSAGES, AS I T APPEARS FROM I.T.A.NO.835/DEL/2017/A.Y.2012-13 4 THE ORDER PASSED BY THE LD. AO WE DO NOT FIND THE S AME REFLECTS ANY INCOME OR INVESTMENT MADE BY THE ASSESSEE. FUR THER, THE ASSESSEE, DURING THE COURSE OF SEARCH PROCEEDINGS I TSELF STATED AND EXPLAINED THAT HE HAS NOT MAINTAINED ANY CHIT. 4.2 APART FROM THAT WE HAVE TAKEN INTO CONSIDERATIO N ANOTHER ASPECT OF THE MATTER AS HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. AR THAT THE ASSESSMENT IN RESPECT OF SHRI VIKAS GUPTA THOUG H WAS REOPENED U/S 147 ON THE SIMILAR CHARGE OF MAKING INVESTMENT, NOTHING ADVERSE WAS FOUND. THE SAID ASSESSMENT ORDER OF SH . VIKAS GUPTA IS ALSO FILED BEFORE US BEING PART OF THE PAPER BOO K. IT IS RELEVANT TO MENTION THAT IN THE SAID ASSESSMENT ORDER OF SH. VIKAS GUPTA THE DEPARTMENT HAS ACCEPTED THAT THERE WAS NO SUCH CHIT WHICH IS EVIDENT BY THIS FACT THAT THIS ASSESSMENT REOPENED ON THE VARY GROUND WAS FINALLY ASSESSED AT THE RETURNED INCOME. RELEVANT TO MENTION THAT ON OATH SH. VIKAS GUPTA HAS ALSO DEPOS ED THAT HE NEVER SENT THESE MESSAGES TO THE APPELLANT. IT IS HIS CASE THAT HE IS HAVING A BUSINESS OF REPAIRING MOBILE PHONES AND TH ERE IS ANY POSSIBILITY OF ANY CUSTOMER/EMPLOYEE TESTING OF PHO NE THROUGH HIS SIM CARD AND SOME VIRUS MIGHT HAVE BEEN ACTIVATED. SUCH STATEMENT OF SH. VIKAS GUPTA HAS BEEN ACCEPTED BY T HE REVENUE AND ASSESSMENT HAS BEEN FINALIZED AT THE RETURNED I NCOME IN HIS CASE. THEREFORE, WHEN THE VARY BASIS OF THE ALLEGA TION OF INVOLVEMENT WITH CHIT BY THE ASSESSEE FAILS, WE DO NOT FIND ANY I.T.A.NO.835/DEL/2017/A.Y.2012-13 5 REASON FOR MAKING ADDITION OF RS. 21 LAKHS ON ACCOU NT OF ALLEGED SUBSCRIPTION IN COMMITTEE/CHIT BY THE ASSESSEE PART ICULARLY WHEN THE REVENUE HAS ALSO FAILED TO CONTROVERT SUCH CASE MADE OUT BY THE ASSESSEE BY ADDUCING CORROBORATIVE EVIDENCE. T HUS, IN THE ABSENCE OF ANY COGENT EVIDENCE AND/OR DOCUMENTS IN THE HANDS OF THE REVENUE FOR MAKING ADDITION AGAINST THE ASSESSE E IN THE MANNER AS HAS BEEN DONE, WE FIND THE SAME IS NOT SU STAINABLE. HENCE, THE SAME IS HEREBY DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/08/2021. SD/- SD/- (N.K. BILLAIYA) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH AUGUST, 2021 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI