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

ITA 838/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6898 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Set aside
• Section: 142(1); 143(2); 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI A BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.838/DEL/2017 ASSESSMENT YEAR : 2013-14 SH.ANIL JINDAL, C/O-M/S. RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI-110049. PAN-AAOPJ9776G VS DCIT, CENTRAL CIRCLE-II, FARIDABAD. APPELLANT RESPONDENT APPELLANT BY SH. RAKESH GUPTA, ADV. RESPONDENT BY SH. SATPAL GULATI, CIT DR DATE OF HEARING 30.03.2021 DATE OF PRONOUNCEMENT .0 4 .2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2013-14 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), KARNAL DAT ED 21.12.2016. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD.CIT(A HAS ERRED IN LAW AND ON FACTS IN UPHOLDI NG THE ACTION OF THE LD. A.O. IN MAKING AN ADDITION OF RS.56,55,380/- ON ACCOUNT OF JEWELLERY FOUND IN THE SEARCH. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, A CTION OF LD.CIT(A) IN CONFIRMING THE ACTION OF LD.AO IN MAKING A N ADDITION OF RS.56,55,380/- IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.-838/DEL/2017 2 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING T HE ACTION OF THE LD. A.O. IN MAKING AN ADDITION OF RS.3,50,000/- U/S 69A OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF CASH FOUND DURING THE SEA RCH. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER A CTION OF LD.CIT(A) IN CONFIRMING THE ACTION OF LD. A.O. IN MAKING THE IMPUGNED ADDITIONS ARE BAD IN LAW AND AGAINST THE FAC TS AND CIRCUMSTANCES OF THE CASE. 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT A S EARCH ACTION WAS CARRIED OUT AT M/S. SRS GROUP ON 09.05.2021. THE PREM ISES OF THE ASSESSEE WAS ALSO COVERED UNDER THE SEARCH ACTION. T HEREAFTER, NOTICES U/S 143(2) AND 142(1) OF THE INCOME TAX ACT, 1961 (THE A CT) WERE ISSUED. IN RESPONSE TO THE NOTICES, AUTHORIZED REPRESEN TATIVES OF THE ASSESSEE ATENDED THE ASSESSMENT PROCEEDINGS AND THE ISSUES WERE DISCUSSED WITH HIM. THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT, NOTED THAT DURING THE COURSE OF SEARCH, ST ATEMENT OF BROTHER OF THE ASSESSEE, SH. SUNIL JINDAL WAS RECORDED. T HE ASSESSING OFFICER FURTHER RECORDED THAT JEWELLERY AMOUNTING TO RS.1,0 4,08,109/- BELONG TO THE ASSESSEE WAS FOUND DURING THE COURSE OF S EARCH. HOWEVER, NO DOCUMENTARY EVIDENCE WAS PRODUCED IN SUPPORT OF TH E SOURCE OF PURCHASE OF JEWELLERY. THE ASSESSEE FILED EXPLANATION RE GARDING THE SOURCE OF JEWELLERY. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION FULLY OFFERED BY THE ASSESSEE AND PROCEEDED T O MAKE ADDITIONS PARTLY ON THIS ISSUE. IT WAS ALSO OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE COULD EXPLAIN THE GENUINENESS OF THE JEWE LLERY TO THE EXTENT OF RS.24,84,406/-. THE ASSESSING OFFICER MADE A DDITION OF ITA NO.-838/DEL/2017 3 RS.15,52,818/- AND RS.41,02,5622/- RESPECTIVELY. FURTHER, TH E ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF CASH FOUND DURING THE C OURSE OF SEARCH OF RS.3,50,000/-. HENCE, THE ASSESSING OFFICER ASSESS ED THE INCOME AT RS.2,23,14,890/- AGAINST THE RETURNED INCOME OF RS.1,63,09,510/-. AGGRIEVED AGAINST THIS, THE ASSESSEE PREF ERRED APPEAL BEFORE LD.CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DISMISSED THE APPEAL AND SUSTAINED THE ADDITIONS SO MADE BY ASSESSING OFFICER. AGGRIEVED AGAINST THE ORDER OF LD.CIT(A), THE ASSESSE E IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 3. GROUND NOS.1 & 2 RAISED BY THE ASSESSEE ARE AGAINST THE SUSTAINING ADDITION OF RS.56,55,380/- QUA THE UNEXPLAINED JE WELLERY FOUND DURING COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE, SH. RAKESH GUPTA VE HEMENTLY ARGUED THAT THE AUTHORITIES BELOW HAVE FAILED TO CONSIDER THE FACTS IN RIGHT PERSPECTIVE. HE SUBMITTED THAT THE ASSESSEE IS LIV ING IN JOINT FAMILY CONSISTING OF HIS PARENTS AND BROTHER AND HIS FAMILY. HE D REW OUR ATTENTION TO THE ASSESSMENT ORDER WHEREIN THE MEMBERS OF FAMILY ARE MENTIONED. HE FURTHER CONTENDED THAT BEFORE LD.CIT(A), CE RTAIN EVIDENCES WHICH WERE NOT AVAILABLE AT THE TIME OF ASSESSM ENT PROCEEDINGS WERE PLACED. HOWEVER, LD.CIT(A) DID NOT CONS IDER THE SAME. HE DREW OUR ATTENTION TO PARA 4.2 OF THE IMPUGNED ORDE R IN SUPPORT OF THE CONTENTION THAT A SPECIFIC SUBMISSION WAS MADE BEFORE THE LD.CIT(A), TO CONSIDER THE EVIDENCES SO FILED BEFORE HIM. HE FURTHER C ONTENDED THAT IN THE INTEREST OF JUSTICE, MATTER TO BE RESTORED BACK T O THE ASSESSING ITA NO.-838/DEL/2017 4 OFFICER TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE ADDITIO NAL DOCUMENTS FILED BY THE ASSESSEE AND HE FURTHER SUBMITTED THAT EVEN THE AUTHORITIES BELOW HAS NOT GIVEN EFFECT TO THE CBDT CIRCULAR IN LETTER AND SPIRIT. 5. LD. DR OPPOSED THESE SUBMISSIONS. HE FAIRLY CONCEDED THAT HE HAS NO OBJECTION, IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER, FOR VERIFYING GENUINITY OF THE CLAIM OF THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORDS AND THE SUBMISSIONS MADE AT BAR. HA VING HEARD THE PARTIES, WE DEEM IT PROPER IN THE INTEREST OF PRINCIPLES OF N ATURAL JUSTICE TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO PLACE THE R ELEVANT EVIDENCES THAT WERE NOT AVAILABLE WITH HIM AT THE TIME OF ASSESSMEN T PROCEEDINGS FOR VERIFICATION. FURTHER, THE ASSESSING OFFICER WOULD ALSO CON SIDER THE CLAIM OF THE ASSESSEE TAKING INTO ACCOUNT THE CBDT CIRCULA R. WE, THEREFORE, SET ASIDE THE FINDINGS OF AUTHORITIES BELOW AND RESTORE TH E ISSUE TO FILE OF ASSESSING OFFICER FOR DECISION AFRESH. GROUND NOS. 1 & 2 ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 7. GROUND NO.3 RAISED BY THE ASSESSEE IS AGAINST THE S USTAINING ADDITION ON ACCOUNT OF UNEXPLAINED CASH OF RS.3,50,000/- AD DED U/S 69A OF THE ACT. LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE AUTHORITIES BELOW HAVE NOT TAKEN INTO ACCOUNT THAT THE ASSESSEE H AS HAVING SUFFICIENT SOURCE TO EXPLAIN THE AVAILABILITY OF CASH. HE SUBMIT TED THAT THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNT OF THE A SSESSEE AND OTHER FAMILY MEMBERS. HENCE, THE CASH FOUND DURING THE COURSE OF SEARCH IS FULLY EXPLAINED. ITA NO.-838/DEL/2017 5 8. LD. SR. DR OPPOSED THE SUBMISSIONS. 9. WE HAVE HEARD BOTH LD. REPRESENTATIVES OF THE ASSES SEE AND THE REVENUE AND MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE RE IS WITHDRAWAL FROM THE BANK ACCOUNTS OF THE ASSESSEE AS WELL AS OTHER FAMILY MEMBERS AS REFLECTED IN THEIR RESPECTIVE BANK STATE MENTS. CONSIDERING THE SAME, THE FINDING OF THE ORDERS OF THE AUT HORITIES BELOW ARE SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE ASSESSING OFFICER TO VERIFY THE AVAILABILITY OF FUNDS AT THE TIME OF SEARCH. IF TH E ASSESSING OFFICER FINDS THAT THE WITHDRAWAL WAS MADE PRIOR TO THE SEA RCH AND THE AMOUNT WITHDRAWN WAS NOT UTILIZED FOR ANY OTHER PURPOSE , HE WOULD DELETE THE ADDITION. GROUND NO.3 OF THE ASSESSEES APPEA L IS ALLOWED IN THE TERMS INDICATED HEREIN ABOVE. 10. GROUND NO.4 RAISED BY THE ASSESSEE IS GENERAL IN NAT URE AND NEEDS NO ADJUDICATION. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS PER TERMS INDICATED ABOVE. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRTUAL HE ARING IN THE PRESENCE OF BOTH THE PARTIES ON 08 TH APRIL, 2021. SD/- SD/- (G.S. PANNU) (KUL BHARAT) VICE PRESIDENT JUDICIAL MEMBER * AMIT KUMAR * ITA NO.-838/DEL/2017 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI