Balbir Sharma, New Delhi V. ITO WARD- 64(2), New Delhi

ITA 8641/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5181 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 05-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Search and seizure; Additional evidence; Reassessment proceedings; Set aside
• Section: 143(3); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.8641/DEL/2019 (FOR ASSESSMENT YEAR 2002-03) BALBIR SHARMA S-5, 2 ND FLOOR, GK-1, NEW DELHI-110048 PAN NO. ACCPS 4257 P VS. ITO WARD 64(2), NEW DELHI (APPELLANT) (RESPONDENT) A SSESSEE BY SHRI SATYAJEET GOEL, C.A. RE VENUE BY SH. R. K. GUPTA , SR. DR DATE OF HEARING: 21 / 09 /202 1 DATE OF PRONOUNCEMENT: 27 / 09 /202 1 ORDER PER ANIL CHATURVEDI, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14.08.2019 OF THE COMMISSIONER OF INCOME TAX (A)- 21, NEW DELHI RELATING TO ASSESSMENT YEAR 2002-03. 2. THE RELEVANT FACTS AS CULLED FROM THE MATERIAL ON RECORDS ARE AS UNDER : 3. ASSESSEE IS AN INDIVIDUAL WHO IN RESPONSE TO NOTICE U/S 148 OF THE ACT DATED 30.03.2009 FILED HIS RETURN OF INCOME FOR A.Y. 2002-03 ON 10.12.2009 DECLARING INCOME OF RS.1,59,676/-. ITA NO.8641/DEL/2019 BALBIR SHARMA VS ITO A.Y. 2002-03 2 THEREAFTER, ASSESSMENT WAS FRAMED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT VIDE ORDER DATED 31.03.2002 AND THE TOTAL INCOME WAS DETERMINED AT RS.6,59,680/- BY MAKING AN ADDITION OF RS. 5,00,000/- ON ACCOUNT OF UNEXPLAINED INCOME UNDER SECTION 68 OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 27.11.2015 IN APPEAL NO.513/09-10/124/15-16 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. TRIBUNAL VIDE ORDER DATED 02.06.2017 (IN ITA NO.223/DEL/2016) SET ASIDE THE ORDER OF CIT(A) AND RESTORED THE MATTER TO THE FILE OF AO WITH INTER ALIA DIRECTING THE AO TO DECIDE THE ISSUE AFRESH AFTER GRANTING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. CONSEQUENT TO THE ORDER OF TRIBUNAL, AO PASSED ORDER UNDER SECTION 143(3)/254/147 OF THE ACT VIDE ORDER DATED 28.11.2017 AND DETERMINED THE TOTAL INCOME AT RS.6,59,680/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 14.08.2019 IN APPEAL NO.10118/2017-18 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS IN APPEAL IN SECOND ROUND AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN THE CONFIRMING THE ADDITION OF RS.5,00,000/- ON ACCOUNT OF UNEXPLAINED GIFT U/S 68 OF THE INCOME TAX ACT, 1961. ITA NO.8641/DEL/2019 BALBIR SHARMA VS ITO A.Y. 2002-03 3 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FAILED TO TAKE INTO THAT GIFT WAS RECEIVED FROM THE MOTHER OF THE APPELLANT. 3. THAT THE ORDERS OF LOWER AUTHORITIES ARE WITHOUT PROPER APPRECIATION OF FACTS AND OPPORTUNITY TO THE APPELLANT. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY OR ALL OF THE GROUNDS AS MAY BE NECESSARY AND IN THE INTEREST OF JUSTICE. 5. THAT THE ORDERS OF LOWER AUTHORITIES ARE NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. 4. BEFORE ME, LEARNED AR SUBMITTED THAT THE ISSUE IN THE PRESENT APPEAL IS WITH RESPECT TO THE ADDITION OF GIFT OF RS.5,00,000/- WHICH WAS TREATED AS UNEXPLAINED UNDER SECTION 68 OF THE ACT. HE SUBMITTED THAT RS.5,00,000/- WAS RECEIVED BY THE ASSESSEE AS GIFT FROM LATE MATERNAL GRANDMOTHER AND THE GIFT IS DULY SUPPORTED BY GIFT DEED. HE SUBMITTED THAT THE CONTENTION OF THE ASSESSEE OF HAVING RECEIVED THE GIFT WAS NOT ACCEPTED BY THE LOWER AUTHORITIES ON THE GROUND THAT THE GENUINENESS OF GIFT WAS NOT ESTABLISHED DESPITE THE FACT THAT THE GIFT WAS SUPPORTED BY ORIGINAL GIFT DEED AND CONFIRMATION OF THE WITNESSES. HE SUBMITTED THAT THE AO WAS HIGHLY INFLUENCED BY THE FACT OF CBI RAID AND THAT THE ASSESSEE DESPITE BEING A GOVERNMENT EMPLOYEE HAD NOT REPORTED THE GIFT TO THE EMPLOYER. HE SUBMITTED THAT THE CBI RAID HAS NOT RESULTED IN TO ANY INCRIMINATING MATERIAL OR ANY LEGAL ACTION OR UNDISCLOSED INVESTMENT AND THUS THE CBI RAID HAS NO RELEVANCE OR BEARING IN RESPECT OF GIFT AND HE HAS NOT BEEN FOUND GUILTY BY THE EMPLOYER. ITA NO.8641/DEL/2019 BALBIR SHARMA VS ITO A.Y. 2002-03 4 5. BEFORE ME, ASSESSEE MADE AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. WITH RESPECT TO THE PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE, HE SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT ON THE BASIS OF INFORMATION OF CBI SEARCH ON THE ASSESSEE WHEREIN IT WAS ALLEGED THAT ASSESSEE HAD MADE INVESTMENT IN IMMOVABLE PROPERTY AND DEPOSITED CASH IN THE BANK ACCOUNT. DURING THE REASSESSMENT PROCEEDINGS, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE AMOUNT OF RS.5,00,000/- WAS CASH GIFT RECEIVED BY THE ASSESSEE FROM HIS MATERNAL AUNT. APART FROM THE AFORESAID, ASSESSEE ALSO FURNISHED THE EVIDENCES AND EXPLANATION TO SUPPORT HIS CONTENTIONS BUT THE SAME WERE NOT FOUND ACCEPTABLE TO THE LOWER AUTHORITIES. HE SUBMITTED THAT AO DREW ADVERSE CONCLUSION IN RESPECT OF GIFT IN VIEW OF THE FACT THAT DESPITE THE ASSESSEE BEING A GOVERNMENT EMPLOYEE, THE RECEIPT OF GIFT WAS NOT INTIMATED BY THE ASSESSEE TO THE EMPLOYER AND FURTHER THE AO AND CIT(A) WERE CARRIED AWAY BY THE FACT OF CBI ENQUIRY AGAINST THE ASSESSEE. BEFORE ME, LEARNED AR SUBMITTED THAT ASSESSEE HAS NOT BEEN FOUND GUILTY AND HAS BEEN EXONERATED OF THE ALLEGATION MADE AGAINST HIM BY HIS EMPLOYER AND IN SUPPORT OF WHICH HE POINTED TO THE ENQUIRY ORDER OF THE EMPLOYER WHICH WAS PASSED ON 02.01.2019. HE ALSO SUBMITTED THAT THE DRAFTER OF THE GIFT DEED, SHRI ANAND MOHAN RAWLA, ADVOCATE IN HIS STATEMENT BEFORE CBI SPECIAL COURT HAD CATEGORICALLY CONFIRMED THE FACT OF THE GIFT TO THE ASSESSEE AND THE COPY OF HIS STATEMENT IS PLACED IN THE PAPER BOOK. HE SUBMITTED THAT THE AFORESAID DOCUMENTS ARE VERY CRUCIAL ITA NO.8641/DEL/2019 BALBIR SHARMA VS ITO A.Y. 2002-03 5 FOR ADJUDICATION OF THE CASE AND THE SAME COULD NOT PRODUCED BEFORE LOWER AUTHORITIES AS IT CAME INTO EXISTENCE AFTER THE ORDER WAS PASSED BY CIT(A). HE THEREFORE PRAYED THAT THE AFORESAID DOCUMENTS BE ADMITTED IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963 AND TAKEN INTO CONSIDERATION. HE THEREAFTER SUBMITTED THAT THE ADDITIONAL EVIDENCES PLACED BY THE ASSESSEE BE SENT TO AO FOR NECESSARY ACTION. 6. LEARNED DR ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSIONS MADE BY THE LEARNED AR BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE ME, ASSESSEE HAS MADE AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. THE ADDITIONAL EVIDENCES ARE IN THE FORM OF THE STATEMENT OF THE ADVOCATE SHRI ANAND MOHAN RABRA BEFORE CBI SPECIAL COURT CONFIRMING THE FACT OF RECEIPT OF GIFT BY THE ASSESSEE FROM HIS MATERNAL AUNT, ORDER DATED 02.01.2019 OF NEHRU YUVA KENDRA SANATHAN (THE EMPLOYER OF THE ASSESSEE) EXONERATING THE ASSESSEE OF ANY OFFENCE, INQUIRING REPORT DATED 30.07.2018 OF THE DEPARTMENT PROCEEDINGS INQUIRING INTO THE CHARGES FRAMED AGAINST ASSESSEE AND CONCLUDING OF NOT PROVING CHARGES OF MISCONDUCT AGAINST THE ASSESSEE. I FIND FORCE IN THE SUBMISSIONS OF THE ASSESSEE THAT THE AFORESAID DOCUMENTS COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORITIES AS THEY WERE RECEIVED BY THE ASSESSEE SUBSEQUENT TO THE PASSING OF ORDER BY ITA NO.8641/DEL/2019 BALBIR SHARMA VS ITO A.Y. 2002-03 6 AO AND CIT(A) AND THEY GO TO THE ROOT OF THE MATTER. IN SUCH A SITUATION, CONSIDERING THE TOTALITY OF THE FACTS, I AM OF THE VIEW THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE NOW NEEDS TO BE ADMITTED SINCE THESE EVIDENCES WERE NOT BEFORE THE LOWER AUTHORITIES. I THEREFORE DIRECT ITS ADMISSION. SINCE THE DOCUMENTS ARE NOW ADMITTED, I AM OF THE VIEW THAT THE MATTER OF IMPUGNED ADDITION NEEDS TO BE LOOKED INTO AFRESH BY THE AUTHORITIES IN THE LIGHT OF THE ADDITIONAL EVIDENCES AND OTHER SUBMISSIONS OF THE ASSESSEE. I THEREFORE RESTORE THE ISSUE BACK TO THE FILE OF THE AO AND DIRECT HIM TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF ADDITIONAL EVIDENCES THE SUBMISSIONS OF ASSESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT ADEQUATE OPPORTUNITY OF HEARING SHALL BE GRANTED TO THE ASSESSEE BY THE AUTHORITIES. IN VIEW OF RESTORING THE ISSUE BACK TO THE FILE OF THE AO, GROUNDS RAISED ON THE MERITS ARE NOT ADJUDICATED. THUS THE GROUND OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.09.2021 SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER PY* DATE:- 27.09.2021 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI