Krishan Kumar Goyal, Chandigarh V. DCIT, Patiala

ITA 957/CHANDI/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4025 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 18-02-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 01-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH GUPTA
• Keywords: Search and seizure
• Section: 153A; 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH , !' # $ % &' , '( BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 957/CHD/2016 / ASSESSMENT YEAR : 2006-07 KRISHAN KUMAR GOYAL R/O H.NO. 996, SECTOR 4, CHANDIGARH THE DCIT, CENTRAL CIRCLE, PATIALA ./PAN NO: AESPK5599N / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE & SH. ASHOK GOYAL, CA ' ! / REVENUE BY : SHRI ASHISH GUPTA, CIT DR # $ % /DATE OF HEARING : 07.03.2019 &'() % / DATE OF PRONOUNCEMENT : .03.2019 ')/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 01.06.2016 OF THE COMMISSIONER OF INCOM E TAX-5, LUDHIANA. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE WORTHY COMMISSIONER OF INCOME TAX (A) H AS ERRED IN DISMISSING THE APPEAL THEREBY CONFIRMING ADDITION AS MADE BY THE ASSESSING OFFICER. 2. (A) THAT THE WORTHY CIT (A) HAS ERRED IN CONFIRM ING THE ADDITION OF RS. 4 LACS IN RESPECT OF UNEXPLAINE D UNSECURED LOANS AS PER PARA 4.2 OF HIS ORDER. 2. (B) THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERING PROPERLY THE APPLICATION FILED BEFORE H IM UNDER RULE 46A DURING THE COURSE OF HEARING. ITA NO. 957/CHD/2016- SH. KRISHAN KUMAR GOYAL, PANCHKULA 2 2. (C) THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERING PROPERLY ALL THE REQUISITE DOCUMENTARY EVIDENCES, ESTABLISHING IDENTITY, CREDIT WORTHINESS AND TO PROVE THE GENUINENESS OF TRANSACTION IN RESPECT OF BOTH PERSONS FROM WHOM LOAN OF RS. 4 LACS HAD BEEN TAKEN , FILED ALONGWITH THE APPLICATION UNDER RULE 46A DURI NG THE COURSE OF HEARING. 3. THAT THE ADDITION AS ABOVE HAS BEEN MADE AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISS ION MADE DURING THE COURSE OF HEARING HAS NOT BEEN CONSIDERED PROPERLY. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEAR D OR DISPOSED OFF. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE FACTS AND ISSUE INVOLVED IN THIS APPEAL AR E RELATING TO THE ADDITIONS MADE WHICH WERE NOT BASED ON ANY INCRIMIN ATING MATERIAL FOUND DURING THE SEARCH ARE SQUARELY COVERED BY THE VARIOUS DECISIONS OF THE TRIBUNAL / HON'BLE HIGH COURTS. 4. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE RELATE S TO MOTIA GROUP OF CASES, ZIRAKPUR. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') WAS CONDU CTED ON 25.2.2009. THEREAFTER, A NOTICE U/S 153A WAS SERVED ON ASSESSEE ON 14.7.2009 TO FILE THE RETURN OF INCOME IN RESPONSE THERETO THE ASSESSEE FILED THE RETURN ON 2.9.2009. DURING THE YEAR THE ASSESSEE HAD RECEIVED FRESH UNSECURED LOANS. THE ASSESSEE WA S ASKED TO FURNISH CONFIRMATIONS AND COPIES OF THE RETURN OF I NCOME AND BANK STATEMENTS OF THE PERSONS WHO HAD ADVANCED THE UNSE CURED LOANS TO THE ASSESSEE DURING THE YEAR SO AS TO ESTABLISH THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE IDENTITY OF THE LENDER. BEING ITA NO. 957/CHD/2016- SH. KRISHAN KUMAR GOYAL, PANCHKULA 3 NOT SATISFIED WITH THE EXPLANATIONS SUBMITTED BY TH E ASSESSEE, THE ASSESSING OFFICER MADE THE IMPUGNED ADDITIONS INTO THE INCOME OF THE ASSESSEE. 5. THE ASSESSEE UNSUCCESSFULLY CONTESTED THE MATTER BEFORE THE CIT(A) BUT REMAINED UNSUCCESSFUL. 6. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE HAS S UBMITTED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION. THAT THE ASSESSMENT PROCEEDINGS WERE CARRIED OUT U/S 153A OF THE ACT AND THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITIONS B UT NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION. THE LD. COUNSEL, HAS SUBMITTED THAT SINCE THE ORIGINAL ASSE SSMENT PROCEEDINGS ALREADY STOOD COMPLETED IN THIS CASE ON THE DATE OF SEARCH AND THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING TH E SEARCH ACTION, THE ASSESSING OFFICER WAS PRECLUDED FROM MAKING ANY ADDITION OR OPENING UP AN ISSUE, IN RELATION TO ALREADY CONCLUD ED ASSESSMENT PROCEEDINGS AND, HENCE, NO ADDITIONS WERE WARRANTED IN THE YEAR UNDER CONSIDERATION IN THE ASSESSMENT PROCEEDINGS C ARRIED OUT U/S 153A OF THE ACT. HE IN THIS RESPECT HAS RELIED UPO N VARIOUS JUDICIAL DECISIONS INCLUDING THE DECISION OF THE IN THE HON 'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS PVT LTD, (2014) 49 TAXMAN.COM 172 (BOM.), ITA NO.36 OF 2009 AND IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION ITA N O. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AND OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 23 4 TAXMAN 300 ITA NO. 957/CHD/2016- SH. KRISHAN KUMAR GOYAL, PANCHKULA 4 (DELHI) AND SUBSEQUENT DECISION OF THE DELHI HIGH C OURT IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS, ITA 306/2017 AND OTHERS DECIDED VIDE ORDER DATED 25 .5.2017. 7. THE LD. DR HAS ALSO BEEN FAIR ENOUGH TO ADMIT TH AT NO INCRIMINATING MATERIAL WAS FOUND IN THE CASE DURING THE SEARCH ACTION AND THAT THE FACTS AND ISSUE INVOLVED ARE SQUARELY COVERED BY THE AFORESAID DECISIONS. 8. WE FIND FORCE IN THE CONTENTION OF THE LD. AR. ADMITTEDLY, THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION STOOD COMPLETED ON THE DATE OF SEARCH. NO INCRIMINATING MATERIAL WHATSOEV ER IN RELATION TO THE SHARE APPLICATION MONEY WAS FOUND. IT HAS BEE N TIME AND AGAIN HELD BY THE VARIOUS HIGH COURTS THAT IF NO INCRIMI NATING MATERIAL IS FOUND DURING THE SEARCH ACTION, THE ADDITION IN THE CASE OF ALREADY CONCLUDED ASSESSMENT CANNOT BE MADE WHILE FRAMING A SSESSMENT U/S 153A OF THE ACT. RELIANCE IN THIS RESPECT CAN BE PL ACED IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION ITA N O. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AND OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 23 4 TAXMAN 300 (DELHI). 9. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARE LY COVERED BY THE AFORESAID DECISIONS. THE AFORESAID DECISIONS HAVE B EEN FURTHER AFFIRMED BY THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS, ITA 306/2017 AND OTHERS DECIDED VIDE ORDER DATED 25.5.2 017. THE ITA NO. 957/CHD/2016- SH. KRISHAN KUMAR GOYAL, PANCHKULA 5 AFORESAID CASE LAWS CAN BE WELL APPLIED TO THE FACT S AND CIRCUMSTANCES OF THE CASE IN HAND. IN VIEW OF THIS, WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE LOWER AUTHORITIES FOR MAKING ADDITION ON ACCOUNT OF SHARE APPLICATION MONEY FOR THE YEAR UNDER CONSIDERATION. IN VIEW OF THIS, THE APPEAL OF THE ASSESSEE IS HERE BY ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2019 SD/- SD/- ( # $ % &' / ANNAPURNA GUPTA) '( / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 07.03.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR