Sh. Sandeep Bansal, Chandigarh V. ACIT, CC-II, Chandigarh

ITA 889/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4512 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-05-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 14-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S PHANI KISHORE
• Keywords: Search and seizure
• Section: 133A; 153A; 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B , CHANDIGARH !'# , $ !% &' ' ( ) * + , !% BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NOS. 889 & 890/CHD/2018 / ASSESSMENT YEARS : 2011-12 & 2012-13 SH. SANDEEP BANSAL, H.NO. 749, SECTOR 8, CHANDIGARH THE A.C.I.T., CENTRAL CIRCLE-II, CHANDIGARH. ./PAN NO: ABEPB7982M /ASSESSEE BY : SHRI JASPAL SHARMA PROXY FOR SHRI SUDHIR SEHGAL, ADV. / REVENUE BY : SHRI G.S.PHANI KISHORE, CIT DR ! /DATE OF HEARING : 15.05.2019 ! /DATE OF PRONOUNCEMENT: 31.05.2019 /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER BOTH THE PRESENT APPEALS HAVE BEEN FILED BY THE SAM E ASSESSEE AGAINST THE CONSOLIDATED ORDER OF THE COMM ISSIONER OF INCOME TAX [(APPEALS)-3, GURGAON (IN SHORT CIT(A)] DATED 21.5.2018, PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: ITA NO.889/CHD/2018(A.Y. 2011-12): ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 2 1. THAT THE LD.CIT(A) IS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION AMOUNTING TO RS.5,00,000/- U/S 69 OF THE I.T. ACT. 2. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL; THE APPELLANT DISPUTES THE QUANTUM OF ADDITION. 3. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION OR AMENDMENT IN THE GROUNDS OF APPEAL TILL THE DISPOSAL OF THE SAME. ITA NO.890/CHD/2018(A.Y. 2012-13): 1. THAT THE LD.CIT(A) IS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION AMOUNTING TO RS.14,00,000/- U/S 69 OF THE I.T. ACT. 2. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL; THE APPELLANT DISPUTES THE QUANTUM OF ADDITION. 3. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION OR AMENDMENT IN THE GROUNDS OF APPEAL TILL THE DISPOSAL OF THE SAME. 3. AN APPLICATION SEEKING ADJOURNMENT WAS FILED BY THE LD. COUNSEL FOR THE ASSESSEE. BUT ON GOING THROUGH THE ORDER OF THE LD.CIT(A) IT WAS NOTED THAT THE SOLITARY ISSUE INVO LVED IN BOTH THE APPEALS RELATED TO ADDITION MADE ON ACCOUNT OF ENTRIES IN A DOCUMENT FOUND DURING SURVEY U/S 133A OF THE ACT ,R EMAINING UNEXPLAINED. IT WAS NOTED THAT DESPITE THE SPECIFIC SUBMISSIONS MADE BY THE ASSESSEE ,THE LD.CIT(A) HAD DISMISSED T HE ASSESSES APPEAL SUMMARILY WITHOUT ADDRESSING THE SUBMISSIONS OF THE ASSESSEE. 4. BRIEF FACTS RELATING TO THE ISSUE IN BOTH THE APPEALS ARE THAT A SEARCH AND SEIZURE OPERATION 132 OF THE ACT WAS CARRIED ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 3 OUT AT THE RESIDENTIAL/BUSINESS PREMISES OF SHRI SA NDEEP BANSAL, THE ASSESSEE ON 17.11.2013. THE ASSESSEE DURING THE IMPUGNED YEARS WAS PROPRIETOR OF M/S CHANNEL MANAGEMENT & MA RKETING, M/S PAUL TRADERS AND M/S ONLINE SERVICES. HE WAS AL SO PARTNER IN M/S DIVYA BROADCASTING PVT. LTD. AND EARNED SALA RY INCOME FROM CAPITAL GAINS. DURING THE ASSESSMENT PROCEEDIN GS CONDUCTED U/S 153A OF THE ACT, IT WAS NOTED THAT A SURVEY U/S 133A OF THE ACT HAD BEEN CONDUCTED IN THE PREMISES OF M/S DIVYA BROADCASTING PVT. LTD, SCO 306, SECTOR 38D IN WHICH THE ASSESSEE WAS A PARTNER. THAT DURING THE SAID SURVEY ONE AGREEMENT DATED 28.2.2011 MARKED AS ANNEXURE-4 (PAG E NOS.1,2 & 3) BETWEEN SHIVAM CABLE NETWORK (PROP. SHRI AMIT KAPOOR) AND SHRI SANDEEP BANSAL, THE ASSESSEE FOR THE SALE OF M /S SHIVAM CABLE NETWORK TO THE ASSESSEE FOR RS.25 LACS WAS FO UND, THE SAID DOCUMENTS SHOWED RECEIPTS TO THE TUNE OF RS.19 LACS BY SHRI AMIT KAPOOR, PROP. OF M/S SHIVAM CABLE NETWORK AS U NDER : DATE AMOUNT REMARKS 14.03.2011 RS.5,00,000/- PAGE 1 OF THE ANNEXURE A-4 23.04.2011 RS.7,00,000/- PAGE 1 OF THE ANNEXURE A-4 26.04.2011 RS.7,00,000/- BACKSIDE OF PAGE 2 OF THE ANNEXURE A-4 5. DURING THE POST SEARCH PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE ABOVE AMOUNTS TO WHICH DUE REPLY WAS FILED BY THE ASSESSEE DATED 30.1.2014 AND 25.3. 2016. THE SAME WAS REJECTED BY THE AO STATING THAT THE ASSESS EE IN THE EARLIER REPLY HAD NOT ADMITTED TO HAVING MADE THE P AYMENT OF RS.13 LACS BUT IN THE LATER REPLY HAD MADE A U TURN AND ACCEPTED ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 4 PAYMENT OF RS.19 LACS. THAT THE SOURCE OF PAYMENT MADE, AS BEING OUT OF CASH WITHDRAWALS FROM THE BANK ACCOUNT OF THE ASSESSEE, SALE OF JEWELLERY, WITHDRAWAL FROM PARTNE RSHIP FORM, RENTAL INCOME, HAD NOT BEEN SUBSTANTIATED BY THE AS SESSEE. ACCORDINGLY, THE A.O. HELD THAT THE SOURCE OF INVES TMENT OF RS.5 LACS DURING ASSESSMENT YEAR 2011-12 AND RS.14 LACS IN ASSESSMENT YEAR 2012-13 HAD REMAINED UNEXPLAINED AN D MADE ADDITION OF THE SAME TO THE INCOME OF THE ASSESSEE FOR THE SAID YEARS. 6. BEFORE THE LD. CIT(A), THE ASSESSEE HAD REITERA TED HIS EXPLANATION REGARDING THE SOURCE OF THE PAYMENTS MA DE TO SHRI AMIT KAPOOR, PROP. OF M/S SHIVAM CABLE NETWORK OF R S.19 LACS AS UNDER: DURING THE COURSE OF SURVEY IN THE CASE OF DIVYA BROADCASTING (P) LTD, SCO 306,SECTOR 38D , CHANDIGARH AN AGREEMENT DATED 28.02.2011 MARKED AS ANNEXURE A-4 ( PAGE NO. 1- 3) WAS FOUND, WHICH WAS ENTERED INTO BETWEEN SHIVAM CABLE NETWORK (PROP. SH. AMIT KAPOOR) AND SANDEEP BANSAL FOR THE SALE OF M/S SHIVAM CABLE NETWORK TO SANDEEP BANSAL FOR R S.TWENTY FIVE LACS ONLY. THE ASSESSEE HAS MADE PAYMENTS OF RS. 5,00,000/- 7,00,000/- AND 7,00,000/- FOR THE SAME O N 14.03.2011, 23.04.2011 AND 26.04.2011 RESPECTIVELY , WHICH HAVE BEEN ADDED BY THE LD. AO. THE COPIES OF SUCH R ECEIPTS ARE ENCLOSED AT P.B. PAGE 2-3. THE AMOUNT OF RS. 5,00,000/- IS WITH REGARD TO A.Y. 2011-12 AND RS.14,00,000/- (7,00,000 /- PLUS 7,00,000/-) IS WITH REGARD TO A.Y. 2012-13. THE ASS ESSEE SUBMITTED BEFORE THE LD. AO THAT THE SOURCE OF SUCH PAYMENTS IS OUT OF JEWELLARY SALE, WITHDRAWALS FROM BANK, WITHD RAWALS FROM FIRMS AND RENT RECEIPTS. THE COPY OF ACCOUNT IN A-O NE TELESHOP MARKETING AND IN SETELLITE SERVICES, BANK STATEMENT AND JEWELLARY RECEIPTS WERE FILED BY THE ASSESSEE BEFORE THE LD. AO, BUT LD. AO DID NOT ACCEPTED THE EXPLANATION OF ASSESSEE AND MADE T HE ADDITION OF RS. 5,00,000/- IN A.Y 2011-12 AND RS. 14,00,000/- I N A.Y. 2012- 13. IN THIS REGARD, IT IS SUBMITTED THAT THE SOURCE OF SUCH PAYMENT IS OUT OF JEWELLARY SALE, RENT RECEIPTS, BANK WITHDRAW ALS AND ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 5 WITHDRAWALS FROM THE FIRMS. THE COPY SUBMISSIONS FI LED BEFORE THE ID. AO, JEWELLARY SALE RECEIPTS, BANK STATEMENT, CO PY OF ACCOUNT IN A-ONE TELESHOP MARKETING AND IN SETELLITE SERVICES ARE ALSO ENCLOSED HEREWITH AT P.B. PAGES 4-9. THE CASH FLOW STATEMENT DISCLOSING SUCH FACTS IS ALSO ENCLOSED FOR THE CONVENIENCE OF YOUR GOOD SELF AT P.B. PAGE 10. THIS CLEARLY EXPLAINS THE SOURCE OF INVEST MENTS OF RS.5,00,000/- FOR A.Y. 2011-12 AND RS. 14,00,000/- FOR A.Y. 2012-13. KEEPING IN VIEW THE ABOVE SAID FACTS AND CIRCUMSTAN CES OF THE CASE, IT IS REQUESTED THAT THE ADDITION MADE ON THI S ACCOUNT BE DELETED. 7. IT IS EVIDENT FROM THE ABOVE THAT THE ASSESSEE H AD SUBSTANTIATED HIS EXPLANATION OF THE SOURCE OF INVE STMENT BEING FROM CASH WITHDRAWALS FROM BANKS, JEWELLERY RECEIVE D AND WITHDRAWALS FROM PARTNERSHIP FIRM WITH THE COPY OF JEWELLERY RECEIVED, COPY OF BANK STATEMENT AND COPY OF ACCOUN T OF THE PARTNERSHIP FIRM IN A-ONE TELESHOP MARKETING AND IN SETELLITE SERVICES. ALSO CASH FLOW STATEMENT DISCLOSING THE S AID FACTS HAD ALSO BEEN FILED BEFORE THE CIT(A).BUT THE LD.CIT(A ) DISMISSED THE CONTENTION OF THE ASSESSEE BY SIMPLY STATING TH AT THE DOCUMENTS REFERRED TO BY THE ASSESSEE HAD ALREADY B EEN CONSIDERED BY THE A.O. AND THAT THEY WERE ALL SELF SERVING DOCUMENTS AND THUS COULD NOT BE RELIED UPON TO EXPL AIN THE SOURCE OF THE INVESTMENTS. THE FINDINGS OF THE LD.C IT(A) ARE AS UNDER: THE CONTENTIONS OF THE APPELLANT CANNOT BE ACCEPTE D BECAUSE THE DOCUMENTS REFERRED TO BY THE APPELLANT HAVE ALREADY BEEN CONSIDERED BY THE AO . FURTHER, ALL THE DOCUMENTS R EFERRED TO INCLUDING ACCOUNT WITH M/S A-ONE TELESHOP MARKETING (CASH W/D AFTER TRANSACTION DATE) M/S SATELLITE SERVICE (CASH W/D AFTER TRANSACTION DATE) AND BOTH HAVING NO CREDIBILITY, J EWELLERY SALE RECEIPTS IN CASH FROM AN INDESCRIPT PERSON ARE ALL SELF SERVING DOCUMENTS WHICH CANNOT BE RELIED UPON SO AS TO EXPL AIN THE SOURCE OF RS. 5,00,000/- PAID BY THE APPELLANT TO SHRI AMI T KAPOOR DURING THE YEAR UNDER CONSIDERATION. ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 6 IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION OF RS . 5,00,000/- MADE BY THE AO IS CONFIRMED. AY 2012-13 THE ADDITION OF RS. 14,00,000/-MADE DURING THE YEA R UNDER CONSIDERATION U/S 69 OF THE ACT IS ALSO CONFIRMED A S THE APPELLANT DURING ASSESSMENT PROCEEDING AND APPELLATE PROCEED ING HAS NOT SUBMITTED ANY CREDIBLE EVIDENCE OF SOURCE OF THIS C ASH PAID AS PER THE DOCUMENT FOUND DURING THE SURVEY, DURING TH E YEAR UNDER CONSIDERATION. 8. THE REASONING OF THE LD.CIT(A) FOR REJECTING TH E ASSESSEES EXPLANATION, WE FIND, IS NOT SUFFICIENT. THE FINDIN GS OF THE CIT(A) THAT THE DOCUMENTS HAD BEEN CONSIDERED BY THE A.O., WE NOTE, IS INCORRECT BECAUSE THE A.O. HAD FOUND THAT NO DOCUME NTS HAD BEEN FILED BY THE ASSESSEE TO SUBSTANTIATE ITS EXPL ANATION. FURTHER THE FINDING OF THE CIT(A) THAT THE DOCUMENT S WERE SELF SERVING HAVING NO CREDIBILITY WERE CONCLUSIONS DRAW N BY THE LD.CIT(A) WITHOUT DEALING WITH THE DOCUMENTS THEMSE LVES AND EXPLAINING HOW HE ARRIVED AT THE SAID CONCLUSION. T HEREFORE, THE ORDER OF THE CIT(A) WAS CLEARLY NON SPEAKING. 9. THE ABOVE FACTS WERE POINTED OUT TO THE LD. DR W HO CONCEDED TO THE SAME. IT WAS, THEREFORE, PROPOSED T HAT THE ORDERS BE RESTORED BACK TO THE CIT(A) FOR PASSING A SPEAKI NG ORDER AFTER CONSIDERING THE ISSUE AFRESH. THE LD. DR DID NOT OP POSE THE SAME. IN VIEW OF THE SAME, THE ADJOURNMENT APPLICAT ION FILED BY THE ASSESSEE WAS REJECTED. THE APPEALS FILED BY THE ASSESSEE ARE, THEREFORE, RESTORED BACK TO THE CIT(A) TO PASS A SP EAKING ORDER ON THE ISSUES BEFORE US AFTER CONSIDERING ALL THE E XPLANATIONS ITA NOS.889 & 890/CHD/2018 A.YS.2011-12-2012-13 7 AND EVIDENCES FILED BY THE ASSESSEE AND AFTER GIVIN G DUE OPPORTUNITY OF HEARING TO THE ASSESSEE IN THIS REGA RD. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- !'# ' ( ) * + (DIVA SINGH) (ANNAPURNA GUPTA) $ !% /JUDICIAL MEMBER ,- !% /ACCOUNTANT MEMBER '' /DATED: 31 ST MAY, 2019 * * #&' ()*) / COPY OF THE ORDER FORWARDED TO : 1. + / THE APPELLANT 2. ',+ / THE RESPONDENT 3. - / CIT 4. - ( )/ THE CIT(A) 5. )./' 0 , !0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35 / GUARD FILE #& / BY ORDER, / ASSISTANT REGISTRAR