DCIT, New Delhi V. Sh. Vijay Jain, Gurgaon

ITSSA 30/DEL/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9666 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 16-12-2013
• Assessment Year: misc
• Appeal Filed On: 16-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S MEENA
• Keywords: Unexplained investment; Document seized; Additional evidence; Non passing of speaking order; Block assessment; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H NEW DELHI) BEFORE SHRI U. B. S. BEDI, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER IT(SS)NO.30/DEL/2012 (BLOCK PERIOD 01.04.1996 TO 20.09.2002) DCIT, CIRCLE 30(1), VS. SHRI VIJAY JAIN, NEW DELHI 260/1, ADARSH NAGAR, NEW RAILWAY ROAD, GURGAON (HARYANA) PAN: ADCPJ2932L (APPELLANTS) (RESPONDENTS) ASSESSEE BY : NONE DEPARTMENT BY: SHRI R S MEENA, CIT DR ORDER PER U B S BEDI, JUDICIAL MEMBER: THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) XXV, NEW DELHI DATED 14.03.2012 RELEVANT TO BLOCK PERIOD 01.04.1996 TO 20.09.2002 WHEREBY ASSESSEE HAS RAISE D THE FOLLOWING SINGLE EFFECTIVE GROUND AS UNDER: ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, LD. CIT(A) XXV, NEW DELHI HAS ERRED IN DELETING THE ADDITION OF RS.10,3 8,000/- AND RS.6,01,983/- MADE BY A.O. ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN PROPERTIES AND ON ACCOUNT OF UNEXPLAINED DEPOSIT IN BANK RESPECTIVELY. 2. THE FACTS INDICATE THAT THE A.O. HAS COMPLETED T HE ASSESSMENT U/S 158BC/254 ON 29.12.2009 AGAINST WHICH THE ASSESSEE FILED APPEAL AND CHALLENGED THE ADDITION OF RS.10,38,000/- UNDER THE HEAD UNEXPLAINED IT(SS)NO.30/DEL/2012 2 INVESTMENT IN PROPERTY AND ADDITION OF RS.6,01,983/ - UNDER THE HEAD UNEXPLAINED DEPOSITS IN THE BANK. THE FACTS EMANAT ING FROM THE ORDER OF THE A.O. ARE THAT A SEARCH U/S 132(1) WAS CONDUCTED ON 20.09.2002 AND ACCORDINGLY THE BLOCK ASSESSMENT U/S 158BC WAS MADE FOR THE BLOCK PERIOD 01.04.1996 TO 20.09.2002 ON 30.09.2004 ON A TOTAL I NCOME OF RS.57,72,598/- . THE ASSESSEE HAD PREFERRED APPEAL AND THE ASSESS EE GOT SUBSTANTIAL RELIEF AT THE LEVEL OF THE LD. CIT(A) INCLUDING THE ABOVE TWO AMOUNTS OF RS.10,38,000/- AND RS.6,01,983/-. SUBSEQUENTLY THE RE WAS CROSS APPEALS IN THE APPELLATE TRIBUNAL BY THE ASSESSEE AND ALSO THE DEPARTMENT AND THE TRIBUNAL HAS PASSED THE ORDER IN APPEAL NO.IT(SS)A NO.217/DEL/2005 AND IT(SS)A NO.158/DEL/2005 VIDE THE ORDER DATED 28.03. 2008. THE TRIBUNAL HAD SET ASIDE THE ADDITIONS OF THE ABOVE TWO AMOUNT S OF RS.10,38,000/- AND RS.6,01,983/- WHICH WERE DELETED BY THE LD. CIT(A) AND HAD DIRECTED THE A.O. TO MAKE DE-NOVO FRESH ASSESSMENT ON THE GROUND THAT THERE WERE SOME ADDITIONAL EVIDENCE AT THE LEVEL OF THE LD. CIT(A). SUBSEQUENTLY, THE A.O. HAS MADE THE FRESH ASSESSMENT AT RS.21,77,493/- AND HAS AGAIN MADE THE OLD ADDITIONS ON THE GROUND OF UNSATISFACTORY EXPLANATI ONS FOR THE SOURCES OF INVESTMENTS OF THE ABOVE TWO AMOUNTS OF RS.10,38,00 0/- AND RS.6,01,983/- WHICH WERE EARLIER DELETED BY THE LD. CIT(A) VIDE T HE ORDER OF THE A.O. AND THE DETAILS OF THE ADDITIONS MADE BY THE A.O. UNDER THE VARIOUS HEADS ARE AS UNDER:- GROUND NO.1 INVESTMENT IN LAND ARDEE CITY GURGAON 3 ,75,000/- INVESTMENT IN LAND AT SULTANPUR 2,70,000/- INVESTMENT MADE BY SMT. NEELAM JAIN 3,93,000/- TOTAL UNEXPLAINED INVESTMENT IN PROPERTY 10,38,000 /- GROUND NO.2 DEPOSIT IN RAJ SINGH ACCOUNT 2,70,000/- DEPOSITS IN MS. VANI JAINS ACCOUNT 1,95,000/- DEPOSITS IN MRS NEELAM JAINS ACCOUNT 1,36,983/- TOTAL UNEXPLAINED DEPOSITS IN BANKS ETC. 6,01,983/ - IT(SS)NO.30/DEL/2012 3 3. THE ASSESSEE TOOK UP THE MATTER IN APPEAL AGAINS T THE ORDER OF THE A.O. AND IT WAS SUBMITTED BEFORE LD. CIT(A) THAT THE A.O . IS NOT JUSTIFIED TO MAKE THE ADDITION WITHOUT ANY VALID REASONS AS THE SOURC E OF THE INVESTMENTS WERE EXPLAINED BEFORE THE A.O. BUT THE SAME HAS BEEN IGN ORED BY THE A.O. IT WAS SUBMITTED REGARDING THE TOTAL INVESTMENT OF RS.10,3 8,000/-, THAT FOR THE INVESTMENT OF RS.3,75,000/- THE ASSESSEE HAD RECEIV ED RS.1,45,000 FROM M/S. AJAY PAPER AGENCIES IN WHICH THE ASSESSEE WAS A PAR TNER, THE AMOUNT OF RS.82,500/- WAS RECEIVED FORM SALE OF AGRICULTURE L AND AND ANOTHER AMOUNT OF RS.1,20,000/- WAS RECEIVED FROM SATBIR SINGH. R EGARDING THE INVESTMENT OF RS.2,70,000/- IT WAS SUBMITTED THAT THERE WAS A SALE OF AGRICULTURE LAND FOR RS.2,65,000/- AND THE SAME WAS UTILIZED FOR THE PUR CHASE OF THE LAND AT SULTANPUR AS ABOVE. REGARDING THE INVESTMENT OF RS ,3,93,000/- IN THE NAME OF THE ASSESSEES WIFE (SMT. NEELAM JAIN) THAT THE PAYMENTS WERE MADE FROM THE BANK ACCOUNT OF THE SMT., NELAM JAIN WITH BANK OF INDIA, GURGAON (A/C NO.8221) AND THE PAYMENTS WERE MADE IN CHEQUE OFRS, 2,25,000/- ON 22.05.1996 AND ANOTHER AMOUNT OF RS,.1,68,000/- ON 20.01.1997 AND THE TOTAL AMOUNTS COMES TO RS.3,93,000/- (RS.2,25,000/ -(+) RS.1,68,000/-). IT WAS ALSO SUBMITTED THAT MRS. NEELAM JAIN HAD TAKEN LOAN OF RS.1,68,000/- FROM HER FATHER-IN-LAW SH. M. C. JAIN AND ANOTHER L OAN OF RS.2,25,000/- FROM SH. KHEM CHAND AND ALL THE LOANS WERE TAKEN IN CHEQ UE THROUGH BANK. 3.1 REGARDING THE INVESTMENT OF RS.6,01,983/-, IT W AS SUBMITTED THAT THE AMOUNT OF RS.2,70,000/- WAS RECEIVED FROM SH. RAJ S INGH AS REPAYMENT OF LOAN AS THE ASSESSEES FATHER SH. M.C. JAIN HAD EAR LIER GIVEN THE LOAN OF RS.3,70,000/- TO SH. RAJ SINGH. REGARDING THE DEPO SIT OF RS.1,95,000/- IN THE BANK ACCOUNT OF THE ASSESSEES DAUGHTER MS. VAN I JAIN, ITS IS SUBMITTED THAT THE AMOUNTS HAS BEEN RECEIVED ON TRANSFER FROM THE BANK ACCOUNT OF THE IT(SS)NO.30/DEL/2012 4 ASSESSEE (SH. VIJAY JAIN) AND ALSO TRANSFER OF FUND FROM SMT. NEELAM JAIN AND ALSO THERE ARE MATURITY AMOUNTS OF GOVERNMENT S ECURITIES IN THE NAME OF MS. VANI JAIN. IT WAS SUBMITTED THAT THERE HAS BEE N THE FLOW OF THE FUNDS OF THE DEPOSITS AND CASH WITHDRAWALS AND AGAIN SAME CA SH DEPOSITS WERE MADE AS ABOVE VIDE THE ORDER OF THE A.O. AND AS SUCH THE RE IS NO UNEXPLAINED INVESTMENT OF CASH DEPOSITS IN THE CASE OF MS. VANI JAIN. REGARDING THE INVESTMENT OF RS.1,36,983/- IN THE NAME OF ASSESSEE S WIFE SMT. NEELAM JAIN, IT IS SUBMITTED THAT THERE HAS BEEN THE MATUR ITY OF OLD FDRS WHICH ARE FORM BEYOND THE PERIOD OF BLOCK PERIOD AND MATURITY OF GOVERNMENT SECURITIES OUT OF THE PERSONAL SAVINGS OVER THE YEA RS AND AS SUCH THERE IS NO UNEXPLAINED INVESTMENT AS SUCH AS EXPLAINED BY THE ASSESSEE. 3.2 IT WAS ALSO SUBMITTED THAT THE A.O. IS NOT JUST IFIED TO MAKE THE ADDITIONS IN THE HANDS OF THE ASSESSEE WITHOUT ANY SPECIFIC SEIZED DOCUMENTS AS THE BLOCK ASSESSMENT IS REQUIRED TO BE MADE ONLY IN THE CASE OF SEIZED DOCUMENTS WHICH REVEALS UNEXPLAINED INCOME OR UNEXP LAINED INVESTMENT RELATING TO THE ASSESSEE ONLY. ALSO SUBMITTED THAT THE ADDITIONS HAS BEEN MADE IN THE HANDS OF THE ASSESSEE UNDER THE VARIOUS HEADS LIKE MS. VANI JAIN AND SMT. NEELAM JAIN WHICH ARE NOT PROPER AS AT THE BEST THE ADDITIONS IF ANY COULD HAVE BEEN MADE ONLY IN THE HANDS OF MS. VANI JAIN AND SMT., NEELAM JAIN AND NOT IN THE HANDS OF THE ASSESSEE. IT IS A LSO SUBMITTED THAT ALL THE NECESSARY DETAILS AND EXPLANATIONS REGARDING THE IN VESTMENTS WERE SUBMITTED BEFORE THE A.O. BUT THE A.O. DID NOT APPRECIATE THE EXPLANATIONS AND HAS IGNORED THE EXPLANATIONS OF THE ASSESSEE WITHOUT AN Y PROPER JUSTIFICATION. 4. LD. CIT(A) WHILE CONSIDERING THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE HAS CONCLUDED TO DELETE BOTH THE ADDITIONS AS PER PARA 4.6 OF HIS ORDER WHICH IS REPRODUCED AS UNDER: IT(SS)NO.30/DEL/2012 5 I HAVE CONSIDERED THE ADDITION/ORDER OF THE A.O. A ND THE SUBMISSIONS OF THE ASSESSEE AND I FIND CONSIDERABLE MERIT IN TH E SUBMISSION OF THE ASSESSEE THAT THE A.O. IS NOT JUSTIFIED TO MAKE THE ADDITIONS IN THE HANDS OF THE ASSESSEE WITHOUT RELATING ANY SPECIFIC SEIZED DOCUMENTS TO THE ASSESSEE. IT IS ALSO APPARENT FROM THE SUBM ISSIONS OF THE ASSESSEE THAT THE ASSESSEE HAD PRIMA FACIE SUBMITTE D SATISFACTORY EXPLANATION REGARDING THE VARIOUS INVESTMENTS AND A S SUCH THE A.O. IS NOT JUSTIFIED TO IGNORE THE EXPLANATIONS OF THE ASS ESSEE TO MAKE THE ADDITIONS WITHOUT PROPER JUSTIFICATION. AFTER CONS IDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THA T THERE IS CONSIDERABLE MERIT IN THE SUBMISSION OF THE ASSESSE E REGARDING THE SOURCE OF THE INVESTMENTS AND AS SUCH, THE A.O. IS NOT JUSTIFIED TO MAKE THE ADDITIONS AND ACCORDINGLY, ALL THE ABOVE ADDITI ONS AS REFERRED IN GROUND NOS. 1 AND 2 MADE BY THE A.O. ARE DELETED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), DEPARTMENT HAS COME UP IN APPEAL AND CHALLENGED THE DELETION OF BOTH THE ADDI TIONS MADE BY THE A.O. ON THE GROUND THAT ALL THE POINTS RAISED IN THE ASS ESSMENT ORDER HAVE NOT BEEN COMPLIED WITH WHICH IS CONFRONTED BY LD. CIT(A) BEF ORE DRAWING HIS CONCLUSION WITH RESPECT TO BOTH THE ADDITIONS WHEN THE A.O. HAS GIVEN JUST AND APPROPRIATE REASON FOR MAKING THE IMPUGNED ADDI TION. IT WAS THUS STRONGLY PLEADED THAT THE ORDER OF LD. CIT(A) SHOUL D BE SET ASIDE AND THE MATTER MAY BE RESTORED BACK TO HIS FILE FOR REDECID ING THE APPEAL AFRESH AFTER PASSING THE SPEAKING AND REASONED ORDER METING ALL THE POINTS RAISED BY THE A.O. IN THIS REGARD. 6. DESPITE NOTING DOWN THE ADJOURNED DATE OF HEARIN G ON 06.08.2013 FOR 16.12.2013, NEITHER THE ASSESSEE NOR HIS REPRESENTA TIVE APPEARED AT THE TIME THE CASE WAS CALLED UP FOR HEARING. EVEN ADJOURNME NT REQUEST HAS ALSO NOT BEEN MADE BY THE ASSESSEE. HOWEVER, ON OTHER EARLIE R OCCASIONS ALSO, COUNSEL FOR THE ASSESSEE HAD BEEN SEEKING ADJOURNME NTS. SO, IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HAVE NO OPTION BU T TO PROCEED EX-PARTE QUA IT(SS)NO.30/DEL/2012 6 THE ASSESSEE TO DECIDE THIS APPEAL AFTER CONSIDERIN G THE ARGUMENTS OF LD. D.R. 7. AFTER HEARING LD. D.R. AND CONSIDERING THE MATER IAL ON RECORD, WE FIND THAT LD. CIT(A) HAS JUST DELETED THE ADDITION WITHOUT MEETING ALL THE POINTS RAISED BY THE A.O. FOR MAKING THE ADDITION. THIS IS IN A WAY A CRYPTIC AND NON SPEAKING ORDER WHICH DOES NOT CONTAIN APPRO PRIATE DETAILS AND DISCUSSION ON THE ISSUE RAISED IN THE APPEAL. THE RELIEF APPEARS TO HAVE BEEN GIVEN TO THE ASSESSEE WITHOUT EVEN DISCUSSING MINIM UM DETAILS OF FACTS OF THE CASE AND RELEVANT BASIS. AS SUCH, WHILE ACCEPT ING THE APPEAL OF THE REVENUE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND R ESTORE THE MATTER BACK TO HIS FILE WITH THE DIRECTION TO REDECIDE THE APPEAL AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE AS WELL AS TO THE A.O. AND BY PASSING WELL REASONED AND SPEAKING ORDER BY APPROPRIATELY DISCUS SING AND DEALING WITH EACH AND EVERY POINT RAISED/TO BE RAISED BY THE RIV AL SIDES. 8. AS A RESULT, THE APPEAL OF THE REVENUE GETS ACCE PTED FOR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DEC., 2013. SD./- SD./- (B. C. MEENA) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 20 TH DEC., 2013. SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXV, NEW DELHI AR, ITAT, 5. CIT(ITAT), NEW DELHI NEW DELHI