DCIT, Circle-20(1), New Delhi V. Meera Gupta, Noida

ITA 9454/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1113 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 08-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 132; 143(3); 54F; 153A; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. ANUBHAV SHARMA, JUDICIAL MEMBER ITA Nos. 9454 to 9458/Del/2019 (Assessment Years : 2009-10 to 2013-14) DCIT Circle – 20(1) New Delhi PAN No. AAMPG 3386 P Vs. Meera Gupta A-76, Sector-17, GB Nagar Noida-201 301 (APPELLANT) (RESPONDENT) Assessee by Shri Mukul Gupta, C.A. Revenue by Ms. Sarita Kumari, CIT-D.R. Date of hearing: 10.10.2022 Date of Pronouncement: 12.10.2022 ORDER PER ANIL CHATURVEDI, AM: These five appeals filed by the Revenue are directed against the order dated 11.09.2019 (for A.Y. 2009-10), 12.09.2019 (for A.Ys. 2010-11 & 2011-12), 20.09.2019 (for A.Ys. 2012-13 & 2013-14) passed by the Commissioner of Income Tax (Appeals)- XXV, New Delhi. 2. Before us, at the outset, Learned DR submitted that though the appeals by the Revenue are for 5 different years but the issue involved in all the appeals are similar and therefore, the submissions made by her while arguing appeal for one year would 2 be applicable to other years also. Learned AR did not controvert the aforesaid submissions made by Learned DR and submitted that the submissions made by him while arguing one appeal would be applicable to other appeals also. 3. In view of the aforesaid submissions of both the parties and in view of the admitted position that the issue in all five appeals are common, we therefore, have clubbed all of them together for the sake of brevity and convenience. However, we are taking ITA No.9454/Del/2019 as a lead case and referring it to the extent relevant to the issues on hand. 4. Brief facts of the case as culled out from the material on record are as under :- 5. Assessee is an individual. AO has noted that a search and seizure operation u/s 132 of the Act was conducted on 11.11.2014 at the residential premises of Shri Y. K. Gupta and his family members (Smt. Meera Gupta and Mukul Gupta) at A- 76, Sector-17, Noida, U.P. and M/s. Y. K. Gupta & Co. at 206, Hans Bhawan, 1, Bahadur Shah Zafar Marg, New Delhi and his family members (Smt. Meera Gupta and Mukul Gupta) of the assessee comprising Tirupati Sunworld Group of Companies (TSGC). Consequently, notice u/s 153A dated 22.12.2016 was issued and served upon the assessee. In response to the aforesaid notice, assessee vide letter dated 23.12.2016 stated that return of income filed by her for A.Y. 2009-10 on 28.05.2009 declaring 3 total income of Rs.35,69,360/- be treated as return of income filed in response to notice u/s 153A of the Act. Thereafter, case was taken up for scrutiny and consequently, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 30.12.2016 and the total income of the assessee was determined at Rs.3,46,88,453/-. 6. As far as A.Y. 2010-11 is concerned, in response to the notice dated 22.12.2016 issued u/s 153A of the Act, assessee vide letter dated 23.12.2016 stated that return of income filed by her for A.Y. 2010-11 on 31.07.2010 declaring total income of Rs.16,43,030/- be treated as return of income filed u/s 153A of the Act. Thereafter, case was taken up for scrutiny and consequently, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 30.12.2016 and the total income of the assessee was determined at Rs.2,62,50,181/-. 7. As far as A.Y. 2011-12 is concerned, in response to the notice dated 22.12.2016 issued u/s 153A of the Act, assessee vide letter dated 23.12.2016 stated that return of income filed by her for A.Y. 2011-12 on 28.07.2011 declaring total income of Rs.16,06,270/- be treated as return of income filed u/s 153A of the Act. Thereafter, case was taken up for scrutiny and consequently, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 30.12.2016 and the total income of the assessee was determined at Rs.14,98,67,100/-. 4 8. As far as A.Y. 2012-13 is concerned, in response to the notice dated 22.12.2016 issued u/s 153A of the Act, assessee vide letter dated 23.12.2016 stated that return of income filed by her for A.Y. 2012-13 on 04.09.2012 declaring total income of Rs.44,35,890/- be treated as return of income filed u/s 153A of the Act. Thereafter, case was taken up for scrutiny and consequently, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 30.12.2016 and the total income of the assessee was determined at Rs.21,52,69,900/-. 9. As far as A.Y. 2013-14 is concerned, in response to the notice dated 22.12.2016 issued u/s 153A of the Act, assessee vide letter dated 23.12.2016 stated that return of income filed by her for A.Y. 2013-14 on 10.07.2013 declaring total income of Rs.46,59,180/- be treated as return of income filed u/s 153A of the Act. Thereafter, case was taken up for scrutiny and consequently, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 30.12.2016 and the total income of the assessee was determined at Rs.23,91,86,934/-. 10. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 11.09.2019 in Appeal No.10342/16-17 granted substantial relief to the assessee. Aggrieved by the order of CIT(A), Revenue is now in appeal and has raised the following grounds: 5 Revenue has raised following grounds in ITA No. 9454/Del/2019 for A.Y. 2009-10: “(i) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was correct in deleting the addition made by the AO on account of withdrawal of Indexation cost while computing Long Term Capital Gain on Sale of jewellery and sale of shares holding that the assessee did not provide any documentary evidence which could prove that the assessee had purchased the same on any given date. (ii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 of the Act on account of unexplained unsecured loan holding that in number of cases, the notices returned un-served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iii) The appellant craves to be allowed to add and alter any fresh ground(s) of appeal and/or delete or amend any of the ground(s) of appeal.” Revenue has raised following grounds in ITA No. 9455/Del/2019 for A.Y. 2010-11: “(i) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was correct in deleting the addition made by the AO on account of withdrawal of Indexation cost while computing Long Term Capital Gain on Sale of jewellery and sale of shares holding that the assessee did not provide any documentary evidence which could prove that the assessee had purchased the same on any given date. (ii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 of the Act on account of unexplained unsecured loan holding that in number of cases, the notices returned un-served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. 6 (iii) The appellant craves to be allowed to add and alter any fresh ground(s) of appeal and/or delete or amend any of the ground(s) of appeal.” Revenue has raised following grounds in ITA No. 9456/Del/2019 for A.Y. 2011-12: (i) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was correct in deleting the addition made by the AO on account of withdrawal of Indexation cost while computing Long Term Capital Gain on Sale of jewellery and sale of shares holding that the assessee did not provide any documentary evidence which could prove that the assessee had purchased the same on any given date. (ii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 of the Act on account of unexplained unsecured loan holding that in number of cases, the notices returned un-served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 69 on account of unverified loans and advances given by the assessee holding that in number of cases, the notices returned un- served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors consideration. (iv) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the disallowance made by the AO u/s 54F on account of out of long term capital gain on sales of shares holding that the assessee was having more than one property during the year under consideration. (v) The appellant craves to be allowed to add and alter any fresh ground(s) of appeal and / or delete or amend any of the ground(s) of appeal.” 7 Revenue has raised following grounds in ITA No. 9457/Del/2019 for A.Y. 2012-13: (i) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was correct in deleting the addition made by the AO on account of withdrawal of Indexation cost while computing Long Term Capital Gain on Sale of jewellery and sale of shares holding that the assessee did not provide any documentary evidence which could prove that the assessee had purchased the same on any given date. (ii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 of the Act on account of unexplained unsecured loan holding that in number of cases, the notices returned un-served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 on account of unverified loans and advances given by the assessee holding that in number of cases, the notices returned un- served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iv) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the disallowance made by the AO u/s 54F on account of out of long term capital gain on holding that the assessee was having more than one property during the year under consideration. (v) The appellant craves to be allowed to add and alter any fresh ground(s) of appeal and / or delete or amend any of the ground(s) of appeal.” Revenue has raised following grounds in ITA No. 9458/Del/2019 for A.Y. 2013-14: (i) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was correct in deleting the addition made by the AO on account of withdrawal of Indexation cost while computing Long Term Capital Gain on Sale of jewellery and sale of shares holding 8 that the assessee did not provide any documentary evidence which could prove that the assessee had purchased the same on any given date. (ii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 68 of the Act on account of unexplained unsecured loan holding that in number of cases, the notices returned un-served by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iii) Whether on the facts and in the circumstances of the case, the Ld CIT(A) was right in deleting the addition made by the AO u/s 69 on account of unverified loans and advance given by the assessee holding that in number of cases, the notices returned unserved by the postal department, reflecting the non-existence of the entities and reflected doubt on the identity of the creditors itself. (iv) The appellant craves to be allowed to add and alter any fresh ground(s) of appeal and / or delete or amend any of the ground(s) of appeal.” 11. Before us, Learned DR pointed to the assessment order and submitted that assessee had claimed Long Term Capital Gain on sale of jewellery and sale of shares. While computing the Long Term Capital Gain, AO noticed that assessee had claimed indexation cost with respect to the jewellery as well as the shares. He noted that since assessee did not furnish complete details with regard to the purchase and payments made for purchase and in view of the short time available at the end of AO to verify the payment, he rejected the indexation cost price of jewellery and shares and accordingly, made additions of Rs.1,25,763/- and Rs.1,83,830/- being the disallowance of indexation cost of jewellery and shares respectively. 9 12. AO also noticed that during the year under consideration assessee had taken unsecured loans from various parties listed at Page 9 of his assessment order. The aggregate of such unsecured loan was Rs.3,08,09,500/-. AO noted that assessee was asked to furnish the confirmations, ITRs, Bank Accounts of the parties from whom the loans were taken along with the complete postal address and PAN numbers. AO noted that assessee did not furnish the necessary details and according to AO the reasons for non submissions of the details was to avoid proper investigation on the issue. He thereafter, by placing reliance on the various decisions cited in the order held the unsecured loan aggregate to Rs.3,08,09,500/- to be unexplained cash credits and made its addition u/s 68 of the Act. 13. Aggrieved by the order of AO, assessee carried the matter before CIT(A). CIT(A) after considering the submissions made by assessee, remand the report from the AO, assessee’s reply to the remand report and after considering the additional evidences furnished by assessee at page 146 of his order has given a finding that on the date of search no assessment/reassessment was pending in the case of assessee for A.Ys. 2009-10 to 2013-14. He has further given a finding at page 148 of his order that for A.Y. 2009-10, the assessee has furnished the return of income u/s 139(1) of the Act on 28.05.2009. No notice u/s 143(2) of the Act was issued to the assessee within the statutory period and accordingly, the return filed by the assessee became final and no proceedings were pending on the date of search. He has further 10 given a finding that no seized document or material pertaining to A.Y. 2009-10 was found during the course of search and further no incriminating material has been referred by the AO in the assessment order. With respect to the denial of the indexation benefit by the AO in the assessment order, he has given a finding that no incriminating material was found during the course of search on the basis of which the indexation could have been disallowed to the assessee. As far as the addition of Rs.3,08,09,500/- u/s 68 of the Act is concerned, he after perusing the copy of the Panchnama has given a finding that no incriminating material was found on the basis of which any adverse inference had been drawn by the AO in respect of the unsecured loans. He, therefore, held that since on the date of search, pending proceedings and assessment relating to A.Y. 2009-10 had not abated and was final assessment, therefore, additions could not have been made by AO. He, thus deleted the additions made by AO. 14. Aggrieved by the order of CIT(A), Revenue is now before us. 15. Before us, Learned DR took us through the findings of AO and submitted that during the assessment proceedings, assessee did not furnish the required details called for by the AO and, therefore, AO was fully justified in making the additions. As far as the findings of CIT(A) that no incriminating material was found during the course of search, she submitted that the material found during the course of search has to be considered in totality 11 and CIT(A) has erred in deleting the addition. She thus supported the order of AO. 16. Learned AR on the other hand reiterated the submissions made before CIT(A) and supported his order. 17. We have heard the rival submissions and perused the material available on record. The issue in the present ground is with respect to the deletion of the additions made by AO in the order framed u/s 153A r.w.s 143(3) of the Act. We find that CIT(A) while deleting the additions has given a categorical finding that on the date of search, no assessment or reassessment was pending for any of the years under appeal and the AO in the remand report also has not disputed the aforesaid facts. He has further given a finding that no seized document or material pertaining to A.Y. 2009-10 was found during the course of search and the additions that have been made by the AO are not based on any incriminating material found during the course of search. While deleting the additions, CIT(A) has also placed reliance on the decision of Hon’ble Delhi High Court in the case of Kabul Chawla reported in 380 ITR 573 and other decisions cited in the order. Before us, no fallacy in the findings of CIT(A) has been pointed out by Revenue. Further Revenue has also not placed any contrary binding decision in its support. Considering the totality of the aforesaid facts, we find no reason to interfere with the order of CIT(A) and thus the grounds of Revenue are dismissed. 12 18. In the result, appeal of Revenue for A.Y. 2009-10 is dismissed. 19. As far as ITA Nos.9455 to 9458/Del/2019 for A.Ys. 2010-11 to 2013-14 is concerned, before us, both the parties have submitted that the issue raised in the appeals for A.Ys. 2010-11 to 2013-14 is identical to that of A.Y. 2009-10. 20. We have hereinabove while deciding the appeal for A.Y. 2009-10 for the reasons stated therein have dismissed the grounds of Revenue and thus the appeal of the Revenue was dismissed. We, therefore, for similar reasons also dismiss the grounds of the Revenue for A.Ys. 2010-11 to 2013-14. Thus the appeals of the Revenue are dismissed. 21. In the combined result, all the five appeals of the Revenue are dismissed. Order pronounced in the open court on 12.10.2022 Sd/- Sd/- (ANUBHAV SHARMA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 12.10.2022 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI