ACIT, Meerut V. Shri Satish Chand Goel, Ghaziabad

ITSSA 41/DEL/2012

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3546 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 28-06-2017
• Assessment Year: misc
• Appeal Filed On: 06-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Search and seizure; Share purchase agreement; Block assessment
• Section: 132; 144

Judgement Text

PAGE | 1 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. 41/DEL/2012 ( BLOCK PERIOD : 04/01/1989 TO 22/02/2000 ) ACIT, CENTRAL CIRCLE, MEERUT VS. SATISH CHAND GOEL, KG - 94, KAVI NAGAR, GHAZIABAD PAN:ABKPG6474H (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SS RANA, CIT DR ASSESSEE BY: SHRI V RAJAKUMAR, ADV DATE OF HEARING 19 /09/2017 DATE OF PRONOUNCEMENT 1 1 / 12 /2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS APPEAL IS FILED BY REVENUE AGAINST THE ORDER OF THE LD. CIT(APPEALS), MEERUT DATED 14/06/2012 FOR BLOCK PERIOD 01/04/1989 TO 22 / 02 /2000 CHALLENGING ON FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD CIT(A) HAS ERRED IN LAW IN NOT ADJUDICATING ON THE POINTS MADE IN HIS OWN ORDER DATED 29.03.2005, IN WHICH HE CONSIDERED VARIOUS SEARCH MATERIALS, SPECIFICALLY IN VIEW OF THE DIRECTIONS OF THE HONBLE ITAT WHILE RESTORING THE MATTER TO THE FILE OF THE LD CIT(A) TO ADJUDICATE ON THE ISSUES RAISED BY THE DEPARTMENTS ALSO. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT FOLLOWING THE DIRECTIONS GIVEN BY THE HONBLE ITAT IN THEIR ORDER DATED 21.08.20 09 IN THE CROSS APPEALS IN IT(SS) A NO. 327/DEL/2005 AND IT(SS) NO. 331/DEL/2005 AND AT THE SAME TIME IGNORING THAT IN HIS EARLIER ORDER DATED 29.03.2005 HE HAS REFERRED TO VARIOUS SEARCH MATERIAL WHICH WERE CONSIDERED BY HIM. 3. THAT THE LD CIT(A) HAS ER RED IN LAW AND ON FACTS IN ERRONEOUSLY OVER RULING THE FACT OF THE SEIZED MATERIAL TO BE USED FOR THE PURPOSE OF ESTIMATE OF ASSESSEES INCOME, WHICH WAS CONSIDERED AND APPRECIATE BY LD CIT(A) IN HIS EARLIER ORDER DATED 29.03.2005. 4. THAT THE ORDER OF THE LD CIT(A) DESERVES TO BE VACATED AND THE MATTER BE RESTORED TO THE FILE OF AO FOR BEING ADJUDICATED A FRESH ON THE BASIS OF SEIZED MATERIAL. 2. THE BRIEF FACTS OF THE CASE IS THAT SEARCH AND SEIZURE OPERATION UNDER SECTION 132 (1) OF THE INCOME TAX ACT , 1961 WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF SATISH CHAND GOEL SITUATED AT KG 94, KAVI NAGAR, GHAZIABAD AND BUSINESS CONCERN ON 22/02/2000. DURING THE COURSE OF SEARCH BOOKS OF ACCOUNTS , LO O SE PAPERS , FLOPPIES , CENTR AL PROCESSING UNITS , SHARE CERTIFICATE IBP ETC ARE FOUND AND SEIZED AS PER THE PANCHNAMA ON 22/02/2000. ACCORDINGLY, ACIT VS. SATISH CHAND GOEL, IT (SS)A NO. 41/DEL/2012 (BLOCK PERIOD: 04/01/1989 TO 22/02/2000) PAGE | 2 NOTICE UNDER SECTION 158BC WAS ISSUED TO THE ASSESSEE ON 14/12/2001 FOR FURNISHING THE RETURN WITHIN 60 DAYS OF THE RECEIPT OF THE NOTICE. THE ASSESSEE DID NOT FILE THE RETURN OF INCOME WITHIN THE TIME ALLOWED. SUBSEQUENT TO THAT NOTICE UNDER SECTION 14 2 (1) DATED 06/02/200 2 ALONG WITH THE QUESTIONNAIRE WAS ISSUED. SUBSEQUENTLY THE ASSESSMENT UNDER SECTION 14 4 OF THE INCOME TAX ACT READ WITH S ECTION 158 BC OF THE ACT TAX WAS PASSED ON 28/2/200 2 WHEREIN THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 25 LACS . ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A). THE LD. CIT (A ) CONFIRMED THE ABOVE ADDITION. THEREFORE, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COORDINATE BENCH WHO V IDE ORDER DATED 21/08/2009 SET ASIDE THE APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENUE BACK TO THE FILE OF THE LD. CIT (A) . THE LD. CIT (A) PURSUAN T TO THE ORDER OF THE COORDINATE BENCH DELETED THE ABOVE ADDITION. HOWEVER , HE UPHELD THE ASSESSMENT ORDER HOLDING THAT IT CANNOT BE HELD TO BE ANNULLED . HOW EVER, ON THE MERITS OF THE CASE HE DELETED THE ADDITION HOLDING THAT THERE IS NO REFERENCE TO ANY S EIZED MATERIAL OR TO ANY ENTRY CONTAINED THEREIN. ACCORDING TO HIM AS THERE IS NO MATERIAL ON RECORD AS REQUIRED UNDER LAW TO JUSTIFY THE INCOME OF RS. 25 LACS IN THE CIRCUMSTANCES THE ASSESSMENT ORDER IS THEREFORE ANNULLED. THEREFORE, REVENUE BEING AGGRIE VED WITH THE ORDER OF THE LD. CIT (A) HAS PREFERRED AN APPEAL BEFORE US. 3. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED REMAND REPORT DATED 02/11/2004 WHICH SPEAKS ABOUT REPAYMENT OF LOAN TO VARIOUS PARTIES AND FURTHER THERE IS A REFERENCE OF THE CASH DEPOS ITS. HE FURTHER REFERRED TO THE REMAND REPORT DATED 02/11/2004, SUBMITTED BY THE LD. ASSESSING OFFICER BEFORE THE LD. CIT (A). HE FURTHER REFERRED TO THE SCRUTINY REPORT PREPARED BY THE ASSESSING OFFICER. HE THEREFORE SUBMITTED THAT THERE ARE ENOUGH EVIDEN CES FOUND DURING THE COURSE OF THE SEARCH AND THEREFORE THE ADDITION OF RS. 25 LACS HAS RIGHTLY BEEN MADE BY THE LD. ASSESSING OFFICER. 4. THE LD. AUTHORISED REPRESENTATIVE VEHEMENTLY CONTESTED THE ORDER OF THE LD ASSESSING OFFICE R AND SUBMITTED THAT THE LD. CIT(A) HAS DELETED THE WHOLE ADDITION, AS THERE IS NO EVIDENCE AVAILABLE WITH THE LD ASSESSING OFFICER ABOUT THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH BASED ON WHICH AN ADDITION OF RS. 25 LACS CAN BE MADE. HE THEREFORE STATED THAT THE LD. CIT (A) HAS CORRECTLY DELETED THE ADDITION. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE LD. CIT (A) HAS ADJUDICATED THAT IN TERMS OF THE LAW GOVERNING THE BLOCK ASSESSMENT , THERE CANNOT BE AN ESTIMATE , UNLESS SUCH ESTIMATES ARE BASED ON THE BASIS OF THE MATERIAL RECOVERED DURING SEARCH. FOR THE PURPOSE OF TAXING ANY INCOME, THERE HAS TO BE REFERENCE OF ANY SEIZED MATERIAL OR TO ANY ENTRY THEREIN, WHICH IS MISSING IN THE PRESENT CASE. THE LD. CIT (A) FURTHER RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF ACIT VS. SATISH CHAND GOEL, IT (SS)A NO. 41/DEL/2012 (BLOCK PERIOD: 04/01/1989 TO 22/02/2000) PAGE | 3 MUNISH MAHESHWARI 289 ITR 341 TO STATE THAT THE PROVISIONS OF THE BLOCK ASSESSMENTS ARE TO BE STRICTLY CONSTRUED AND ALSO THE HONBLE DELHI HIGH COURT WHEREIN IT HAS BEEN HELD THAT THE BLOCK ASSESSMENTS COULD BE FRAMED ONLY ON THE BASIS OF THE SEIZED MATERIAL. IN THE PRESENT CASE, THE TOTAL ADDITION HAS BEEN MADE BY THE LD. ASSESSING OFFICER WITHOUT REFERENCE TO ANY OF THE SEIZED METAL FOUND DURING THE COURSE OF THE SEARCH. BEFORE US , THE LD. CIT DR HAS TRIED TO DEFEND THE ASSESSMENT ORDER BY PRODUCING THE REMAND REPORT OF THE ASSESSING OFFICER. HOWEVER, ON READING OF THE ASSESSMENT ORDER AND ALSO CORRELATING THE PAPER RELIED UPON IN THE REMAND REPORT THE FIGURE OF RS. 25 LA CS CANNOT BE RECONCILED. IN VIEW OF TH IS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT (A) IN DELETING THE ADDITION OF RS. 25 LACS WHICH IS NOT BASED ON ANY SEIZED MATERIAL BUT MADE ON ESTIMATE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT POINT OUT ANY INFIRMITY IN THE ORDER OF THE LD. CIT (A). THEREFORE, WE CONFIRM THE FINDING OF THE LD CIT(A) IN DELETING THE ABOVE ADDITION OF RS. 25 LACKS. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 / 12 /2017. - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 / 12 /2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI