Dr Roop Meerut v. Acit Meerut

ITA 262/DEL/2015 | 2004-2005
Pronouncement Date: 18-12-2017 | Result: Allowed

Appeal Details

Note: Please login to view full details
RSA Number 26220114 RSA 2015
Assessee PAN xxxxxxxxxxx
Bench xxxxxxxxxxx
Appeal Number xxxxxxxxxxx
Duration Of Justice 2 year(s) 11 month(s) 5 day(s)
Appellant xxxxxxxxxxx
Respondent xxxxxxxxxxx
Appeal Type Income Tax Appeal
Pronouncement Date 18-12-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted F
Tribunal Order Date 18-12-2017
Date Of Final Hearing 13-07-2017
Next Hearing Date 13-07-2017
First Hearing Date 13-07-2017
Assessment Year 2004-2005
Appeal Filed On 13-01-2015
Judgment Text
In The Income Tax Appellate Tribunal Delhi D Bench New Delhi Before Shri S K Yadav Judicial Member And Shri B P Jain Accountant Member Ita No S 261 262 Del 20 15 Assessment Year S 2003 0 4 2004 05 Dr Roop Vs The A C I T C O Roop Netralaya Central Circle Shivaji Road Meerut Meerut Pan Abppr 3723 B Appellant Respondent Date Of Hearing 2 5 1 0 2017 Date Of Pronouncement 18 12 2017 Revenue By S Mt Paramita Tripathy Cit Dr Assessee By Shri Raj Kumar Gupta Ca Order Per B Ench Both T He Above Appeal S Preferred By The Assessee Are Directed Against The Common Order Dated 11 11 14 Passed By The Cit A Meerut For A Y S 2003 04 And 2004 05 2 2 Briefly Stated The Facts Of The Case Are That An Assessment Order Was Passed U S 153 A 143 3 Of The Income Tax Act 1961 Hereinafter Referred To As The Act For Short On 28 12 07 In The Case Of The Assessee In The Appeal Filed By The Assessee Against The Said Order Ld Cit A Meerut Vide His Order Dt 29 06 09 Deleted Both The Additions Which Are Under Consideration In This Appeal The Revenue Challenged The Same Before This Tribunal Being Ita No 3794 D 2009 And The Assessee Also Filed Cross Objections Bearing Co No 365 D 2009 Both The Matters Were Decided By The Itat Vide Common Order Dated 0 1 07 11 The Itat Vide Para 34 Of Its Order Remitted All Legal Issues Challenging The Validity Of The Notice U S 153 A To The File Of The Cit A For Deciding The Same Afresh With A Direction That The Assessee Shall Be At Liberty To Raise Any Other Content Ions Before The Ld Cit A Regarding Validity Of Assessment Made U S 153 A Of The Act As He Is So Advised Further Vide Para 71 Of The Said Itat Order Dt 01 07 11 The Issues Of Additions For Two Gifts Received From Smt Laxmi Aggarwal Rs 4 00 000 On 22 07 02 And Rs 3 50 000 From Sh Kesho Ram Gupta On 22 07 02 In The Departme Nts Appeal Were Also Remitted To The File Of The Ld Cit A To Be Decided De Novo After Providing An Opportunity Of Being Heard To The Assessee 3 3 In Compliance To The Direc Tions Of The Itt Cit A Meerut Passed Impugned Order Dated 11 11 14 The Ld Cit A Confirmed Both The Additions Of Rs 4 00 000 Rs 3 50 000 And Also Dismissed All Legal Grounds Taken Up By The Assessee Including The Challenge Of Validity Of Proc Eedings U S 153 A Of The I T Act The Assessee Has Filed The Present Appeal Before Ita T Against The Said Order Of Ld Cit A Dt 11 11 14 Challenging The Legality And Validity Of Proceedings U S 153 A As Well As Challenging Both The Additions Of Rs 4 00 000 Rs 3 50 000 On Merits Also 4 The Assessee During The Course Of Hearing On 15 05 17 Filed Concise Consolidated Revised Grounds Of Appeal Which Reads As Under I That Under The Facts And Circumstances This Being An Unabated Year Within The Meaning Of 2 Nd Proviso To Sec 153 A Both The Additions Under Consideration Being Gift Of Rs 4 Lacs From Smt Laxmi Agarwal And Rs 3 50 Lacs From Sh Kesho Ram Gupta Since Not Emanating From Any Seized Material Hence Outside The Scope Of Examination And Addition U S 153 A Ii That Under The Facts And Circumstances The Approval U S 153 D Being Mechanical Without Application Of Mind And 4 Without Giving An Opportunity Of Hearing Makes The Impugned Asstt Order Invalid And Unsustainable In Law Iii That Un Der The Facts And Circumstances Addition Of Rs 4 Lacs For Gift Received From Smt Laxmi Agarwal Is Un Sustainable In Law As Well As On Merits Iv That Under The Facts And Circumstances Addition Of Rs 3 50 Lacs For Gift Received From Sh Kesho Ram Gupta Is Un Sustainable In Law As Well As On Merits 5 The Ld Ar While Arguing Ground No 1 Submitted That Ay 2003 04 Was An Unabated Ay It Has Been Submitted That In This Case Search U S 132 Of The Income Tax Act 1961 Hereinafter Referred To As The Act For Short Took Place On 27 10 05 The Regular Return Of A Y 2003 04 Was Filed On 20 10 03 The Notice U S 143 2 For A Y 2003 04 As The Law Stood At That Point Of Time Could Have Been Issued Only Upto 31 10 04 However No Such Notice Was Issued T Ill That Time And Also That No Proceedings Were Pending In Respect Of A Y 2003 04 As On 27 10 05 The Ld Ar Further Submitted That In This Case The Additions Which Have Been Made Relate To Only Two Gifts Of Rs 4 00 000 Rs 3 50 000 Received From Smt Laxmi Aggarwal And Sh Kesho Ram Gupta Respectively Through Bank Accounts During The Year And There Is No Incriminating Material Found In Search In Respect Of These Two Gifts 5 It Has Been Contended That These Gifts Were Noticed Only On Perusal Of Regular Bank Account Of The Assessee During The Course Of Asstt Proceedings U S 153 A It Has Also Been Stated That These Gifts Were Duly Appearing In The Regular Balance Sheet As On 31 03 03 As Well As In The Capital Account The Ld Ar Further Stated That Since A Y 2003 04 Was An Unabated Ay And Since No Material Or Incriminating Material Was Found In Respect Of These Two Gifts Therefore The Issue Of These Gifts Was Altogether Outside The Scope Of Examination In Ay U S 153 A The Ld Ar Placed Reliance On The Cas E Of Cit Vs Kabul Chawla 380 Itr Del 573 Pr Cit Vs Meeta Gutgutia 295 Ctr Del 466 And Pr Cit Vs Ram Avatar Verma 395 Itr 252 Del For The Proposition That In The Case Of An Unabated Ay The Addition Can Be Made Only On The Basis Of Any Incri Minating Material Found During Search The Ld Ar Also Placed Reliance On The Case Of Pr Cit Vs World Window Impex India P Ltd In Ita No 175 2016 Decided By Honble Delhi High Court Vide Order Dt 09 03 16 For The Proposition That Even If The Original Return Was Processed U S 143 1 And Not U S 143 3 The Legal Position As Held In Kabul Chawla Supra Remains Unaltered In View Of These Submissions The Ld Ar Argued That Since Both The Additions In Appeal Do Not Emanate From Any Seized Material Fou Nd During The Course Of Search And A Y 2003 04 Being An Unabated Ay Therefore 6 Both The Additions Should Be Deleted Threshold On This Legal Ground Itself 6 The Ld Dr On The Other Side Stated That Although No Incriminating Material Relating To The Se Two Gifts For Which Addition Has Been Made Was Found During Search However As No Assessment U S 143 3 Took Place For A Y 2003 04 Prior To The Date Of Search And Since The Assessee Could Not Satisfactorily Explain The Gifts With Reference To Sec 68 Therefore The A O As Well As Cit A Were Fully Justified In Making And Confirming These Additions He Also Argued That These Additions Should Not Be Deleted Merely On Technicalities The Ld Dr Also Relied Upon The Findings Of Cit A 7 We Have Heard The Rival Submissions And Perused The Relevant Material On Record In This Case Search U S 132 Took Place On Assessee On 27 10 05 The Regular Return Of A Y 2003 04 Was Already Filed On 20 10 03 The Notice U S 143 2 For A Y 2003 04 Coul D Have Been Issued On Or Upto 31 10 04 As Claimed By The Assessee No Proceedings Were Pending For A Y 2003 04 As On The Date Of Search I E On 27 10 05 The Ld Dr Has Not Disputed This Contention That No Notice U S 143 2 Was Issued Upto 30 10 04 He A Lso Did Not Dispute The 7 Contention Of The Assessee That No Proceedings For A Y 2003 04 Were Pending As On The Date Of Search I E On 27 10 05 In This Case The Additions Under Dispute Are In Respect Of Two Gifts Of Rs 4 00 000 Rs 3 50 000 Received D Uring The Year From Smt Laxmi Aggarwal And Sh Kesho Ram Gupta Respectively On 22 07 02 No Incriminating Material Was Found And Seized During Search Relating To These Two Gifts The Credits In The Bank A C In Respect Of These Two Gifts Were Noticed By T He A O During The Course Of Impugned Proceedings U S 153 A While Examining The Regular Bank Account Of The Assessee The Perusal Of Copies Of Various Panchnamas Executed During The Course Of Search As Placed Before Us Vide Pgs 1 14 Of The Paperbook Revea Ls That Cash And Jewellery Were Found During Search From The Copy Of Capital Account For Ay 2003 04 It Is Apparent That Gifts Of Rs 7 50 000 Appears In The Capital Account Being Received In This Year Through Cheques Thus All These Facts Clearly Show That Firstly It Was An Unabated Ay And Secondly That No Incriminating Material Was Found And Seized During Search For That Ay The Contention Of The Ld Counsel Under These Facts Is That In Case Of Unabated Assessments U S 153 A The Addition Can Be Ma De Only On The Basis Of Incriminating Material In Cit Vs Kabul Chawla 380 Itr Del 573 It Has Been Held That In The Case Of Unabated Asstt U S 153 A In The Absence Of 8 Incriminating Material Being Unearthed During Search No Addition Could Have Been M Ade Again Honble Delhi High Court In The Case Of Meeta Gutgutia Supra Vide Order Dt 25 05 17 Confirmed The Findings As Given In The Case Of Kabul Chawla After Taking Into Consideration Other Cases On The Similar Issue 8 In Substance In This Case The Addition Has Been Made U S 153 A For Two Gifts Received During The Year However Since It Is An Unabated Ay And No Incriminating Document Was Found And Seized During The Course Of Search For That Ay Therefore Following The Ratio Of Kabul Chawl A Supra We Are Inclined To Hold That The Issue Of These Two Gifts Was Outside The Scope Of Examination In The Impugned Proceedings U S 153 A Now Reverting To The Contention Of Ld Dr That No Assessment Prior To Search For A Y 2003 04 Was Completed U S 1 43 3 Therefore The Issue Of These Gifts Can Be Examined In Proceedings U S 153 A Is Without Any Substance Honble Delhi High Court In The Case Of World Window Impex India P Ltd Supra Has Clearly Held That The Ratio As Laid Down In This Regard In Th E Case Of Kabul Chawla Supra Also Covers The Situation Where Prior To Search No Assessment U S 143 3 Was Passed For The Year Under Consideration In Result This Ground Of Appeal Stands Allowed 9 9 Since We Have Allowed The Ground No 1 Other Grou Nds Do Not Require Any Adjudication 10 In Result The Appeal Of The Assessee Stands Allowed A Y 2004 05 11 The Facts And Circumstances As Well As The Background Of Appeal Of This Year Are Also Similar To That Of A Y 2003 04 The Concise Consolidated Revised Grounds Of Appeal As Taken By The Assessee Are Also Similar Which Are As Under I That Under The Facts And Circumstances This Being An Unabated Year Within The Meaning Of 2 Nd Proviso T O Sec 153 A Both The Additions Under Consideration Being Gift Of Rs 9 Lacs From Sh Anand Jain Rs 10 Lacs From Sh Balbir Singh And Rs 10 Lacs From Sh Kirodi Mal Since Not Emanating From Any Seized Material Hence Outside The Scope Of Examination And Addition U S 153 A Ii That Under The Facts And Circumstances The Approval U S 153 D Being Mechanical Without Application Of Mind And Without Giving An Opportunity Of Hearing Makes The Impugned Asstt Order Invalid And Unsustainable In Law 10 Iii That Under The Facts And Circumstances Addition Of Rs 9 Lacs For Gift Rece Ived From Sh Anand Jain Is Un Sustainable In Law As Well As On Merits Iv That Under The Facts And Circumstances Addition Of Rs 10 Lacs For Gift Received From Sh Balbir Singh I S Un Sustainable In Law As Well As On Merits V That Under The Facts And Circumstances Addition Of Rs 10 Lacs For Gift Received From Sh Kirodi Mal Is Un Sustainable In Law As Well As On Merits 12 In Ground No 1 The Ld Ar Has Contended That The Facts And Circumstances Of This Year Are Similar To That Of A Y 2003 04 It Has Been Argued That This Year I E A Y 2004 05 Is Also An Unabated Ay Wherein No Incriminating Material Has Been Found And Seized The Additions Are In Respect Of Three Gifts Of Rs 9 00 000 Rs 10 00 000 Rs 10 00 000 Received During The Year From Sh Anand Jain Sh Balbir Singh And Sh Kirori Mal Respectively 13 In The Present Case Search U S 132 Took Place On 27 10 05 The Regular Return Was Filed In August 2004 And The No Tice U S 143 2 Could Have Been Issued On Or Upto 31 08 05 It Is Submitted That No Notice U S 143 2 Was Issued Till That Time And No Proceedings Were 11 Pending For A Y 2004 05 As On The Date Of Search I E 27 10 05 It Is Further Submitted That No Incrim Inating Material Was Found And Seized For These Three Gifts Totaling Rs 29 00 000 During Search And The Said Gifts Were Received Through Cheques Thus It Has Been Contended That It Is Also An Unabated Assessment And Since The Additions For The Gifts Is N Ot Emanating From Any Seized Material Found During The Course Of Search Therefore The Issue Of Examination Of These Three Gifts With Reference To Sec 68 Of The Act Or Otherwise Is Outside The Scope Of Assessment U S 153 A And Consequently The Addition Of Rs 29 00 000 Needs To Be Deleted For This Sole Reason Apart From Other Contentions Made On Merits In Support Of His Contention The Ld Ar Has Strongly Relied Upon His Same Submissions And On The Same Authorities As Relied Upon For A Y 2003 04 14 Th E Ld Ar On The Other Hand Also Made The Same Submissions As Made For A Y 2003 04 It Has Been Therefore Argued That The A O Was Justified In Considering These Issues In Assessment P Roceedings U S 153 A And The Cit A Was Correct In Confirming This Action Of The A O 12 15 The Same Issue Under Similar Facts Has Been Examined In This Order For Ay 2003 04 We Find That As Per The Facts Given Above A Y 2004 05 Is Also An Unabated Ay We Also Find That No Incriminating Material Was Found And Seized Duri Ng The Course Of Search For This Ay Hence Relying Upon The Authorities As Stated In Order Relating To A Y 2003 04 We Are Inclined To Hold That The Issue Of These Gifts Was Outside The Scope Of Examination In Assessment U S 153 A We Hold That The A O Wa S Not Justified In Making Addition For These Gifts In Assessment Framed U S 153 A Thus The Additions Stand Deleted And This Ground Stands Allowed 16 Since We Have Allowed The Ground No 1 Other Grounds Do Not Require Any Adjudication 17 As A Resul T The Appeal Of The Assessee Stands Allowed 18 To Sum Up Both The Appeals Of The Assessee Are Allowed The Order Is Prono Unced In The Open Court On 1 8 1 2 2017 Sd Sd S K Yadav B P Jain Judicial Member Accountant Member Dated 1 8 T H D E C E M B E R 2017 13 Vl Copy Forwarded To 1 Appellant 2 Respondent 3 Cit 4 Cit A Asst Registrar 5 Dr New Delhi