Smt. Madhu Saraf, New Delhi v. ACIT, New Delhi

ITA 2150/DEL/2014 | 2008-2009
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 215020114 RSA 2014
Assessee PAN APPPS8499K
Bench Delhi
Appeal Number ITA 2150/DEL/2014
Duration Of Justice 1 year(s) 3 month(s) 21 day(s)
Appellant Smt. Madhu Saraf, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC 2
Tribunal Order Date 31-07-2015
Date Of Final Hearing 30-06-2015
Next Hearing Date 30-06-2015
Assessment Year 2008-2009
Appeal Filed On 09-04-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -2 NEW DELHI BEFORE SH. I.C.SUDHIR JM ITA NO. 2150/DEL./2014 : ASSTT. YEAR : 2008-09 MADHU SARAF 1290 KATRA DHULIA CHANDNI CHOWK NEW DELHI VS A.C.I.T. CIRCLE CIRCLE II NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. APPPS8499K APPELLANT BY : S H. ASHOK JAIN C.A. RESPONDENT BY : SH. P.D.TAN EJA SR. DR DATE OF HEARING : 30.06.2015 DATE OF PRONOUNCEMENT : .07.2015 ORDER PER I.C.SUDHIR J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.02.2014 OF THE LD. C.I.T.(A)-III NEW DELHI. 2. THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORD ER ON THE FOLLOWING GROUNDS. 1. THAT THE ORDER OF LD. AO IS AGAINST THE LAW FACTS CIRCUMSTANCES NATURAL JUSTICE AND ALL OTHER PRINCIPLES AND RULES OF LAW. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING AN ADDITION OF RS. 2 82 600 ON ACCOUNT O F UNACCOUNTED SALE WHICH IS BASED ON SURMISES AND CONJECTURES CONTRARY TO PRINCIPELS OF NATURAL JUST ICE FACTS AND PROVISION OF LAW AS SUCH THE ACTION OF LD . ITA NO.2150/DEL/2014 2 AO NEED TO BE UNDONE AND THE ADDITION MADE BY HIM NEEDS TO BE DELETED. 3. WITHOUT PREJUDICE TO ABOVE THE INTERPRETAT ION OF SEIZED MATERIAL AND THE METHOD OF CALCULATION OF THE AMOUNT OF RS. 2 82 600 FOR THE ASSESSMENT YEAR 2008-09 IS ERRONEOUS AND WITHOUT ANY BASIS AND BASED ON SURMISES AND CONJECTURES AND CONTRARY TO FACTS BORNE ON RECORD AND PROVISIONS OF LAW AS SUC H THE ACTION NEEDS TO BE UNDONE AND THE CALCULATION SHOULD BE MADE PROPERLY LIABLE TO BE DELETED. 4. THAT THE LD. CIT(A) ERRED IN HOLDING THAT SEARCH WARRANT WAS IN RESPECT OF BOTH SH. BAL KISHA N SARAF & SMT. MADHU SARAF (APPELLANT) AND PRESUMING THAT THE DOCUMENTS SEIZED FROM THE OFFICE PREMISES OF HUSBAND OF THE APPELLANT BELONGS TO THE APPELLANT AS SUCH THE ADDITION MADE BY LD. AO & CONFIMED BY CIT(A) ON ACCOUNT OF PRESUMPTION IS CONTRARY TO PRINCIPELS OF NATURAL JUSTICE FACTS AN D PROVISION OF LAW AS SUCH THE ACTION OF LD. AO NEED TO BE UNDONE AND THE ADDITION MADE BY HIM NEEDS TO BE DELETED. 5. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLD ING THAT THE ONUS TO PROVE THAT THE DOCUMENTS SEIZED FR OM THE PREMISES OF THE THIRD PARTY LIES ON APPELLANT WHICH IS CONTRARY TO PROVISIONS OF LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE AS SUCH THE ACTIO N OF LD. CIT(A) NEEDS TO BE UNDONE AND ANY ADDITION CONFIRMED ON SUCH ASSUMPTION NEEDS TO BE DELETED. 6. THAT APPELLANT CRAVES RIGHT TO AMEND ADD DELETE OR WITHDRAW ANY OF THE GROUND OF APPEAL EITH ER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 3. HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF THE ORDERS OF THE AUTHORITIES BE LOW THE ITA NO.2150/DEL/2014 3 MATERIAL AVAILABLE ON THE RECORD AND THE DECISIONS RELIED UPON. 4. THE FACTS IN BRIEF ARE THAT SEARCH AND SEIZ URE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT AT THE OFFICE OF RESIDENTIAL PREMISES OF THE ASSESSEE AND HER HUSBAN D. 5. AS PER THE ASSESSMENT ORDER AT THE RESIDENTI AL PREMISES OF THE HUSBAND SOME LOSE PAPERS WERE FOUND AND SEI ZED MARKED ANNEXURE AI. IT HAS BEEN STATED IN THE ASSES SMENT ORDER THAT SEIZED MATERIAL MARKED PAGE NO. 18 TO 27 PERTAIN TO THE ASSESSEE. THE ASSESSEE WAS ACCORDINGLY ASKED TO FURNISH THE PAGE WISE DETAILS OF THE SEIZED MATERIA L AND DESPITE SEVERAL OPPORTUNITIES THE ASSESSEE DID NOT FURNISH ANY REPLY IN THIS REGARD. THE AO NOTED THAT PAGE NO . 18 SHOWS SUMMARY OF BILLS FOR SALE OF JEWELLERY (PAGE NOS. 20 21 21-A 22 SHOWING THE ABOVE SALE) AMOUNTING TO RS. 2 82 600/- ON THE BASIS OF THE PAGE NOS. 19 23 25 2 6 AND 27. THE AO OBSERVED THAT THE ASSESSEE APART FROM BUSIN ESS HAS ALSO INCOME FROM UNDISCLOSED SOURCES BESIDES DISCLO SED INVESTMENTS. THE AO IN ABSENCE OF REPLY FROM THE AS SESSEE PRESUMED THAT THE ASSESSEE HAS NOTHING TO SAY IN TH IS REGARD AND ADDED THE DISALLOWANCE OF RS. 2 82 600/- BEING SALE MADE OUT OF BOOKS OF ACCOUNTS. THE LD. CIT(A) HAS U PHELD THE SAME. ITA NO.2150/DEL/2014 4 6. IN SUPPORT OF THE GROUNDS INVOLVING THE ISSUE REGARDING THE VALIDITY OF ADDITION OF RS. 2 82 600/- ON ACCOU NT OF UNACCOUNTED SALE THE LD. AR SUBMITTED THAT IT IS V ERY MUCH EVIDENT FROM PUNCHNAMA THAT SEARCH WARRANT WAS IS SUED IN THE NAME OF ASSESSEE TO SEARCH HER LOCKER HELD JOIN TLY WITH HER MOTHER-IN-LAW SMT. SULOCHNA SARAF WHICH WAS EXE CUTED ON 20.3.2009 AND NO DOCUMENT WAS SEIZED DURING THE COURSE OF SEARCH. DOES THE AO WAS NOT JUSTIFY IN CASTING UNNECESSARY BURDEN ON ASSESSEE BY PRESUMING THAT TH E SAID DOCUMENTS BELONG TO ASSESSEE BY INVOKING PROVISION OF SECTION 292(C) OF THE ACT. THOUGH THE SAME IS NOT A PPLICABLE IN THE PRESENT CASE AT THE SAID DOCUMENTS ARE NOT F OUND FROM THE POSSESSION OR CONTROL OF THE ASSESSEE DURING TH E COURSE OF SEARCH OR SURVEY. HE SUBMITTED FURTHER THAT THE ASSESSEE IS NOT AFFORD OF THOSE DOCUMENTS NOR ANY WHERE NAME OF THE ASSESSEE RETURN ON THOSE DOCUMENTS. HE CONTENDED TH AT THE AO HAS NOT DISCHARGED HIS ONUS TO PROVE THAT THE SA ID DOCUMENTS BELONG TO THE ASSESSEE AND THAT TOO BY RE LYING ON STATEMENT OF THIRD PARTY WHO CONFIRM THE OWNERSHIP OF SAID PAPERS FROM WHOSE POSSESSION THE SAME WAS SEIZED. 7. WITHOUT PREJUDICE TO ABOVE CONTENTION THE LD . AR SUBMITTED THAT DURING THE COURSE OF SEARCH U/S 132 THE DOCUMENT NO. ANNEXURE A-1 PAGES 18 TO 27 WERE FOUND FROM ITA NO.2150/DEL/2014 5 THE OFFICIAL PREMISES OF SHRI BAL KISHAN SARAF THE HUSBAND OF THE ASSESSEE BUT STATED IN HIS ASSESSMENT PROCEE DINGS THAT THE DOCUMENT NO. 18 CONTAINS DETAILS OF TRANSACTION OF JEWELLERY WORTH OF RS. 4 10 950/- MADE DURING THE P ERIOD FEB. 2008 TO MAY 2008 AND PAGE NOS. 19 22 CONTAIN S QUALITIES PRESCRIPTION OF THESE TRANSACTIONS GIVEN ON DOCUMENT NOS. 19 20 21 21-A AND 22. THE DETAILS AR E OF JEWELLERY PURCHASED BY SOME DR. RUCHI C/O. R.B OF D-9 NIRALA NAGAR AND THE DOCUMENT IS NEITHER IN THE H AND WRITING OF EITHER ASSESSEE SHRI BALKISHAN SARAF OR ANY OF ITS EMPLOYEES. DR. RUCHI IS NEITHER ANY RELATIVE OR EMP LOYEE NOR KNOWN TO THE ASSESSEE. THE LD. AR SUBMITTED THA T IT APPEARS THAT THE DOCUMENTS HAVE BEEN LEFT BEHIND BY SOME ANONYMOUS VISITOR TO THE OFFICE KNOWN TO THE ASSESS EE AND CONTAINS THE TRANSACTION NOT RELATED TO THE ASSESSE E. THUS THESE DOCUMENTS ARE DUMB DOCUMENTS. HE PLACED RELIA NCE ON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF BATICA GREEN FIELD (P) LTD. (2009 130 TTJ 208 DELH I) HOLDING THAT PRESUMPTION AS ENVISAGED IN SECTION 29 2C IN LTD. TO CORRECTNESS OF DOCUMENTS FOUND AT THE TIME OF SEARCH AND SURVEY BUT THAT PRESUMPTION HAS NOT BEEN EXTEND ED BY INSTITUTE TO PRESUME AN AMOUNT ON THE BASIS THEREOF TO BE ITA NO.2150/DEL/2014 6 INCOME OF ASSESSEE. THE LD. AR ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS. 8. THE LD. AR SUBMITTED THAT THE DECISIONS RELI ED BY THE LD. CIT(A) SUPPORTS THE CASE OF THE ASSESSEE AS THE IMPUGNED DOCUMENTS SEIZED FROM THE POSSESSION AND C ONTROL OF HUSBAND OF THE ASSESSEE ARE NOT RELATED TO THE ASSESSEE. BOTH THE ASSESSEE AND HER HUSBAND ARE ASSESSED TO I NCOME TAX WITH THERE OWN PAN SEPARATELY. 9. THE LD. SR. DR ON THE OTHER HAND TRY TO JUST IFY THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE. 10. CONSIDERING THE ABOVE SUBMISSION IT APPEARS FROM THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS MATERIAL AVAILABLE ON RECORD BUT THE DOCUMENTS IN QUESTION WERE FOUND AND SEIZED FROM THE OFFICE PREMISES OF HUSBAND OF THE A SSESSEE. THUS SRI BALKISHAN SARAF THE HUSBAND OF THE ASSES SEE FROM WHOSE OFFICIAL PREMISES THE DOCUMENTS WERE FOUND WA S DUTY BOUND TO EXPLAIN ABOUT THE DOCUMENTS. IN HIS STATEM ENT AND EXPLANATION SRI BALKISHAN SARAF HAS ABOUT THE PAGE NOS. 18 TO 25 AND REGARDING PAGE NOS. 26 AND 27. HE HAS STA TED THAT THESE DUMB DOCUMENTS AS THE DOCUMENTS ARE NOT PREPA RED BY THE ASSESSEE OR HIS WIFE IN SO FAR AS THE DOCUMENTS ARE NOT IN THE HAND WRITING AND EITHER OF THEM. ITA NO.2150/DEL/2014 7 11. ON PERUSAL OF THESE DOCUMENTS COPIES OF WHIC H HAVE BEEN MADE AVAILABLE IN THE PAPER BOOK. I AM OF THE VIEW THAT WHEN IT IS NOT THE CASE OF THE AO THAT THE DOCUMENT S ARE IN THE HAND WRITING OF THE ASSESSEE OR HER HUSBAND OR THEIR EMPLOYEES THE ONUS LINES UPON THE AO TO ESTABLISH THAT THESE DOCUMENTS PERTAIN TO THE ASSESSEE AND THE ONU S OF THE ASSESSEE IS CONFINED TO EXPLAIN THE ENTRIES AGAINST THE NAME AGAINST THE ASSESSEE ON DOCUMENTS. IN THE INTEREST OF JUSTICE I THUS SET ASIDE THE MATTER TO THE FILE OF AO TO EXAMINE THE SEIZED DOCUMENT ACCORDINGLY AFTER AFFORDING OPPORTU NITY OF BEING HEARD TO THE ASSESSEE AND MAKE THE ASSESSMENT ACCORDINGLY. THE GROUNDS ARE THUS ALLOWED FOR STATI STICAL PURPOSES. IN RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PUR POSES. (ORDER PRONOUNCED IN THE COURT ON 31/07/2015). SD/- (I.C.SUDHIR) JUDICIAL MEMBER DATED: 31 / 07/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.2150/DEL/2014 8 DATE INITIAL 1. DRAFT DICTATED ON 20.07.2015 2. DRAFT PLACED BEFORE AUTHOR 21.07.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.