Santosh Gupta, Ahmedabad V. ACIT, Hisar

ITSSA 16/DEL/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3259 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 04-05-2017
• Assessment Year: misc
• Appeal Filed On: 06-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: V K TULSIAN
• Keywords: Gift; Search and seizure; Documents seized
• Section: 132

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER IT(SS)A NO. 16/DEL/2011 (ASSESSMENT YEAR: 01/04/1987 TO 13/06/1997 ) SANTOSH GUPTA, W/O. SHRI PR GUPTA, C/O. MEHTA LODHA & CO., CA 105, SAKAR - I, ASHRAM ROAD, AHMEDABAD PAN:AGOPG5495R VS. ACIT, HISAR (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VK TULSIAN, CA REVENUE BY: SH. SS RANA, CIT DR DATE OF HEARING 11/05/ 2017 DATE OF PRONOUNCEMENT 18 / 05 / 2017 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - ROHTAK DATED 24.01.2011 FOR ASSESSMENT YEAR 01.04.1987 TO 13.06.1997. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY NOT CANCELLING THE ORDER PASSED BY THE LEARNED AC) AND THEREFORE ORDER PASSED BY THE AO SHOULD BE CANCELLED AND THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE ENTIRE ADDITIONS. WITHOUT PREJUDICE TO GROUND NO. 1 2. THAT THE LEARNED CIT(A) HAS ERRED IN LAW IN CONFIRMING THE DETERMINATION OF UNDISCLOSED INCOME OF RS.8,03,235/ - THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE ADDITION. THE DETAILS OF THE ADDITIONS IS AS UNDER: - ASSTT. YEAR HOUSE HOLD PERQUISITE SALARY CMS PROPERTY TOTAL SRNO. 1 2 3 4 5 6 1988 - 89 20000 20000 1989 - 90 20000 20000 1990 - 91 25000 25000 1991 - 92 25000 25000 1992 - 93 6000 20000 26000 1993 - 94 7200 24000 31200 PAGE 2 OF 4 1994 - 95 7200 500000 50720 0 1995 - S6 9600 1067 115570 126237 1996 - 97 9600 3398 12998 1997 - 98 9600 9600 TOTAL 90000 49200 48465 500000 115570 803235 3. THAT THE LEARNED CIT(A) HAS ERRED IN LA W AND FACTS BY CONFIRMING THE ACTION OF THE LEARNED FOR CHARGING INTEREST UNDER SECTION 158BFA OF THE ACT, 3. THE BRIEF FACTS OF THE CASE IS THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON 29 .05.1997 AT THE FACTORY PREMISES AND RESIDENTIAL PREMISES OF THE DIRECTORS OF VESSELS COPY RULER FLOOR MILLS LTD. SUBSEQUENTLY IN THE CASE OF THE ASSESSEE ASSESS MENT ORDERS UNDER SECTION 158B C OF THE ACT WAS PASSED BY THE JOINT COMMISSIONER OF INCOME TAX, SPECIAL RANGE, KARNAL ON 21/06/1999 DETERMINING THE TOTAL UNDISCLOSED INCOME FOR THE BLO CK PERIOD OF THE APPELLANT AT RS. 836235/ . SUBSEQUENTLY, THE CIT (APPEALS) RO H T AK PASS ED A CONSOLIDATED ORDER ON 03/06/2004 ALLOWED A RELIEF OF RS. 33,000 IN CASE OF APPELLANT . ON FURTHER APPEAL BEFORE THE COORDINATE BENCH THE ASSESSMENTS WERE SET ASIDE V IDE ORDER DATED 23 RD OF MAY 2008 AFTER PROVIDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN CONSEQUENCE OF THAT THE LD. ASSESSING OFFICER PASSED AN ORDER UNDER SEC TION 143 (3) OF THE INCOME TAX ACT ON 02/12/2009 COMPUTING THE TOTAL UNDISCLOSED INCOME OF THE ASSESSEE OF RS. 836235/ . AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT (A). THE LD. CIT (A) PASSED AN ORDER ON 24/01/2011 CONFIRMING THE ABOVE DISALLOWANCE. THEREFORE AGAINST THAT ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE FIRST GROUND OF APPEAL IS CONTESTING THE ORDER IN GENERAL AND NO SPECIFIC ARGUMENTS WERE RAISED HENCE SAME IS DISMISSED. 5. GROUND NO. 2 OF T HE APPEAL IS AGAINST THE ADDITION OF UNDISCLOSED INCOME OF RS. 803235/ - ON ACCOUNT OF UNACCOUNTED HOUSEHOLD EXPENDITURE OF RS. 90000/ - , PERQUISITES OF RS. 49200/ - AND SALARY OF RS. 48465/ - . FURTHER, DURING THE COURSE OF SEARCH GIFT DEEDS WERE FOUND FROM T WO PERSONS AMOUNTING IN ALL TO RS. 5 LAKHS WHICH WERE ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE AS THE ASSESSEE COULD NOT SUBSTANTIATE THE SAME. FURTHER, SOME OF RS. 115570/ - WAS ADDED ON ACCOUNT OF PROPERTY PURCHASED IN JAIPUR. 6. THE LD. AUTHORISED REPR ESENTATIVE SUBMITTED BEFORE US THAT THE ADDITION OF HOUSEHOLD EXPENSES AND INTEREST EXPENSES AND PERQUISITES HAVE BEEN MADE UNDER SECTION PAGE 3 OF 4 158BC OF THE ACT. HE SUBMITTED THAT THE ADDITION HAVE BEEN MADE ON ESTIMATED BASIS AND THERE WAS NO INCRIMINATING EVID ENCES FOUND DURING THE COURSE OF SEAR CH PROCEEDINGS. IT WAS A SUBMITTED THAT ASSESSEE DOES NOT HAVE ANY SOURCE OF INCOME OTHER THAN SHOWN BY THE ASSESSEE. 7. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSMENT ORDERS PASSED BY THE LD. AO AND CON FIRM BY THE LD. CIT APPEAL ARE PERFECTLY IN ORDER. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. APPARENTLY NO INCRIMINATING DOCUMENTS WITH RESPECT TO THE HOUSEHOLD EXPENDITURE, PERQUISITES WERE FO UND DURING THE COURSE OF SEARCH, THEREFORE, WE DIRECT THE LD. AO TO DELETE THE ADDITION ON ACCOUNT OF THE HOUSEHOLD EXPENDITURE OF RS. 90,000/ AS WELL AS ADDITION ON ACCOUNT OF THE PERQUISITES OF RS. 49,200/ IN ABSENCE OF ANY EVIDENCE THAT ASSESSEE HAS I NCURRED SUCH EXPENDITURE OR HAS RECEIVED SUCH PERQUISITES. 9. WITH RESPECT TO THE GIFT OF RS. 5 LACS, IT WAS NOTED BY THE LD. ASSESSING OFFICER THAT DURING THE YEAR THE BLO CK PERIOD ASSESSEE HAS RECEIVED TWO GIFTS OF RS. 2 LACS AND RS. 3 LAKHS EACH TO WHICH A SSESSEE COULD NOT FILE NECESSARY EVIDENCES AND THEREFORE SAME WERE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL BEFORE THE LD. CIT (A) ASSESSEE SUBMITTED THE GIFT DEED AND THE BANK CERTIFICATES IN ORIGINAL WERE IN THE POSSESSION OF THE AO AS SEIZED MATERIAL. HENCE, NO FURTHER MATERIAL EVIDENCE IN SUPPORT OF IDENTITY OF THE PERSONS, INCLUDING THEIR NAMES AND ADDRESSES ETC COULD BE FURNISHED AND , THEREFORE, THE LD. CIT APPEAL ALSO CONFIRMED THE ADDITION. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE CO ULD NOT SAY THAT THOSE GIFT DEEDS AS WELL AS THE BANK CERTIFICATES IN ORIGINAL WERE NOT SEIZED DURING THE COURSE OF THE SEARCH. AS THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH WITH RESPECT TO THE CAPACITY OF THE DONOR AS WELL AS OF RELATIONSHIP AND OCCASION OF THE GIFT , WE DO NOT FIND INFIRMITY IN THE ORDERS OF THE LOWER AUTHORITIES CONFIRMING THE ADDITION OF RS. 5 LACS ON THIS ACCOUNT. 10. THE NEXT ADDITION WAS WITH RESPECT TO A SUM OF RS. 115570/ - TOWARDS THE PURCHA SE OF IMMOVABLE PROPERTY AT JAIPUR ON 25 TH . NOVEMBER, 1994. AS ASSESSEE COULD NO T EXPLAIN THE ABOVE TRANSACTION THE LD. ASSESSING OFFICER MADE AN ADDITION. ON APPEAL BEFORE THE LD. CIT (A). IT WAS SUBMITTED THAT THE PAYMENTS HAVE BEEN MADE THROUGH DEMAND D RAFTS FROM THE BANK ACCOUNT AND FURTHER THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE WHOLE ADDITION IS BASED ON THE POST - SEARCH ENQUIRIES. THE LD. CIT (A) REJECTED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ADDITION. B EFORE US, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO PAGE 4 OF 4 THIS ADDITION AND THEREFORE SAME SHOULD BE DELETED. HE REITERATED THE SAME SUBMISSIONS WHICH WERE RECORDED AT PA GE NO. 11 OF THE ORDER OF THE LD. CIT (A). LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND FOUND THAT NO SUCH INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARC H WHICH WARRANTED THE ADDITION OF RS. 115570/ AS THE PAYMENTS WERE MADE THROUGH DEMAND DRAFT FROM THE BANK ACCOUNTS OF THE ASSESSEE. IN VIEW OF THIS WE DIRECT THE LD. ASSESSING OFFICER TO DELETE THE DISALLOWANCE OF RS. 115570/ . IN THE RESULT THE ADDIT ION MADE TO THE EXTENT OF RS. 1 15570/ IS DELETED. 12. IN THE RESULT OUT OF THE TOTAL ADDITION OF RS. 8 03235/ THE ADDITION OF RS. 5 LACS WITH RESPECT TO THE GIFTS RECEIVED BY THE ASSESSEE FOR WHICH THE DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH AND WHICH COULD NOT BE SUBSTANTIATED BY THE ASSESSEE IS UPHELD, AND THE BALANCE ADDITION OF RS. 303235/ IS DELETED. 13. IN THE RESULT APPEAL O F THE ASSESSEE IS PARTLY ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 18 / 05 / 2017 . - SD/ - - SD/ - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:18 / 0 5 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI