JCIT (OSD), New Delhi v. Sh. J.R.D. Arora, New Delhi

ITA 2998/DEL/2011 | 2006-2007
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 299820114 RSA 2011
Assessee PAN AAEPA7926R
Bench Delhi
Appeal Number ITA 2998/DEL/2011
Duration Of Justice 9 month(s) 23 day(s)
Appellant JCIT (OSD), New Delhi
Respondent Sh. J.R.D. Arora, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 30-03-2012
Date Of Final Hearing 27-03-2012
Next Hearing Date 27-03-2012
Assessment Year 2006-2007
Appeal Filed On 07-06-2011
Judgment Text
ITA NOS. 2998 & 2999/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 2998 & 2999/DEL/2011 A.YRS. : 2006-07 & 2007-08 JCIT CIRCLE 26(1) 206-D BLOCK VIKAS BHAVAN NEW DELHI VS. SH. J.R. D. ARORA M-151 VIKAS PURI NEW DELHI (PAN/GIR NO. : AAEPA7926R) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. SANJEEV JAIN CA DEPARTMENT BY : MS. Y. KAKKAR D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA : AM SHAMIM YAHYA : AM SHAMIM YAHYA : AM SHAMIM YAHYA : AM THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECTE D AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS)-XXIV NEW DELHI DATED 07.3.2011 PERTAINING TO ASSESSMENT Y EARS 2006-07 & 2007-08. 2. THE GROUNDS OF APPEAL RAISED IN ITA NO. 2998 REA D AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED I N :- I) DELETING THE ADDITION OF ` 31 41 667/- BY HOLDING THAT NO ADDITION TO INCOME CAN BE MADE MERELY ITA NOS. 2998 & 2999/DEL/2011 2 ON THE BASIS OF A STATEMENT MADE DURING SURVEY U/S. 133A UNLESS SOME CORROBORATIVE EVIDENCE IS NOT BROUGHT ON RECORD. II) IGNORING THE FACT THAT THE ASSESSEE HAD NEVER RETRACTED FROM THE SURRENDERED INCOME UPTO THE DATE OF FILING OF THE LETTER DATED 29.12.2010 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. III) IGNORING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH THE RETURN OF INCOME NEITHER WITHIN THE TIM E ALLOWED U/S. 139 NOR WITHIN THE TIME ALLOWED IN NOTI CE U/S. 148 OF THE IT ACT. THE APPELLANT CRAVES THE RIGHT TO ADD ALTER OR AME ND ANY GROUND OF APPEAL. 3. THE GROUNDS OF APPEAL RAISED IN ITA NO. 2999 REA D AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED I N :- I) DELETING THE ADDITION OF ` 63 18 750/- BY HOLDING THAT NO ADDITION TO INCOME CAN BE MADE MERELY ON THE BASIS OF A STATEMENT MADE DURING SURVEY ITA NOS. 2998 & 2999/DEL/2011 3 U/S. 133A UNLESS SOME CORROBORATIVE EVIDENCE IS NOT BROUGHT ON RECORD. II) IGNORING THE FACT THAT THE ASSESSEE HAD NEVER RETRACTED FROM THE SURRENDERED INCOME UPTO THE DATE OF FILING OF THE LETTER DATED 29.12.2010 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. III) IGNORING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH THE RETURN OF INCOME NEITHER WITHIN THE TIM E ALLOWED U/S. 139 NOR WITHIN THE TIME ALLOWED IN NOTI CE U/S. 148 OF THE IT ACT. THE APPELLANT CRAVES THE RIGHT TO ADD ALTER OR AME ND ANY GROUND OF APPEAL. 4. IN THIS CASE FACTS IN BRIEF ARE THAT THE ASSES SEE ENGAGED IN THE BUSINESS OF TRADING IN PROPERTIES RESULTING BROKER AGE INCOME IN ADDITION TO RENTAL INCOME FROM THE PROPERTIES OWNED BY HIM WAS SURVEYED U/S. 133A OF THE ACT ON 16.3.2007. DURING THE COURSE OF SURVEY OPERATIONS IT WAS NOTICED THAT THE ASSESSE E WAS NOT FILING HIS RETURNS OF INCOME FROM ASSESSMENT YEAR 2003-04 ONWA RDS EVEN THOUGH HE HAD SUBSTANTIAL INCOME. DURING SURVEY THE BOOKS OF ACCOUNTS WERE ALSO FOUND NOT MAINTAINED AFTER FINAN CIAL YEAR 2002-03. ITA NOS. 2998 & 2999/DEL/2011 4 ON THE BASIS OF SURVEY REPORT PROCEEDINGS U/S. 147 READ WITH SECTION 148 OF THE ACT WERE INITIATED FOR ASSESSMENT YEARS UPTO A.Y. 2007-08. DURING THE SURVEY OPERATION THE ASSESSEE SURRENDERE D INCOME OF ` 1 60 00 000/- AS ADDITIONAL INCOME PERTAINING TO AY S 2003-04 2004-05 2005-06 AND 2007-08 WITH REQUEST FOR NON INITIATION OF PENALTY AND PROSECUTION PROCEEDINGS VIDE THE STATEMENT RECORDED ON 16.3.2007. FURTHER IT WAS STATED ON 16.3.2007 THAT THE BIFURC ATION OF DISCLOSED INCOME WOULD BE SUBMITTED LATER ON. LATER ON THE A SSESSEE SUBMITTED THE BREAKUP OF SURRENDERED INCOME BEFORE THE DDIT (IN V.) UNIT-IV(3) NEW DELHI VIDE HIS LETTER DATED 25.10.2007 AS ` 33 00 000/- AND ` 1 27 00 000/- FOR ASSESSMENT YEARS 2006-07 AND 2007 -08 RESPECTIVELY. IN RESPONSE TO NOTICES U/S. 148 OF THE ACT THE RET URNS OF INCOME SHOWING INCOME OF ` 65 67 952/- AND ` 1 59 61 680/- FOR AYRS 2006-07 AND 2007-08 WERE FILED (RENTAL INCOME OF ` 64 86 77 9/- AND ` 97 67 744/- FROM HOUSE PROPERTIES BUSINESS INCOME OF ` 83 334/- AND ` 62 01 250/- AND INCOME FROM OTHER SOURCES OF ` 30 83 9/- AND ` 27 688/- IN THE RETURNS FOR AYS 2006-07 AND 2007-08 RESPECTI VELY). THE ASSESSING OFFICER NOTICED THAT THE BUSINESS INCOME OF ` 83 334/- AND ` 62 01 250/- ONLY HAVE BEEN SHOWN IN THE RETURNS AS AGAINST ` 33 00 000/- AND ` 1 27 00 000/- SURRENDERED FOR AYR S 2006-07 AND 2007-08 RESPECTIVELY. ON SPECIFIC QUERIES BY THE ASSESSING OFFICER ITA NOS. 2998 & 2999/DEL/2011 5 FOR NOT SHOWING SURRENDERED INCOME IN THE RETURNS T HE ASSESSEE SUBMITTED THAT THE INCOME SURRENDERED BY HIM DURING T HE COURSE OF SURVEY STOOD INCLUDED IN RETURNS OF INCOME FILED BY HIM. THE ASSESSING OFFICER DID NOT CONSIDER THE EXPLANATIO N OF THE ASSESSEE SATISFACTORY ON THE FACT THAT THE SURRENDERED BUSIN ESS INCOME DURING THE COURSE OF SURVEY HAS NOT BEEN OFFERED FOR TAXA TION IN ENTIRELY IN AYRS 2006-07 AND 2007-08. THEREFORE THE ASSESSING OFFICER MADE ADDITIONS OF ` 31 41 667/- AND ` 63 18 750/- (DIFFE RENCE BETWEEN SURRENDERED BUSINESS INCOME MINUS BUSINESS INCOME SHO WN IN THE RETURNS). 5. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE RELEVANT FACTS AND SUBMISSION OF THE LD. AUTHORISED REPRESENTATIVE. T HE ASSESSING OFFICER HAS FAILED TO BRING ANY MATERI AL ON THE RECORD TO SUBSTANTIATE HIS FINDINGS. THE STATEMENT RECORDED DURING SURVEY AS MENTIONED IN THE SUBMISSIO NS (ANSWER TO QUERY 15) SUPPORTS THE APPELLANTS CLAI M THAT HE HAS OFFERED HIS ENTIRE INCOME FOR TAX IN RELEVANT YEARS. THE ASSESSING OFFICER HAS NOT RELIED ON ANY CORRO BORATORY EVIDENCE FOUND AND IMPOUNDED IN SURVEY WHILE DRAWING HIS CONCLUSION. THE STATEMENT RECORDED DURING THE SURV EY HAD BEEN FOUND NOT ADHERED VERBATIM AS FOR AS YEAR OF T AXATION ITA NOS. 2998 & 2999/DEL/2011 6 IS CONCERNED BECAUSE THE ASSESSEE WHO SURRENDERED INCOME OF ` 1 60 00 000/- AS ADDITIONAL INCOME PERT AINING TO AYS 2003-04 2004-05 2005-06 AND 2007-08 IN THE S URVEY LATER ON SUBMITTED THE BREAKUP OF SURRENDERED INCOM E BEFORE THE DDIT(INV.) UNIT IV(3) NEW DELHI VIDE HI S LETTER DATED 25.10.2007 AS ` 33 00 000/- AND ` 1 27 00 000 /- FOR AYS 2006-07 AND 2007-08 RESPECTIVELY. THE ASSESSI NG OFFICER HAS PLACED EMPHASIS ONLY ON THE FACT THAT T HE BUSINESS INCOME SURRENDERED VOLUNTARILY VIDE LETTER DATED 25.10.2007 OF THE ASSESSEE HAS NOT BEEN OFFERED FOR TAXATION IN THESE TWO YEARS. HOWEVER ACCORDING TO ME THE SURRENDER OF INCOME VIDE LETTER DATED 25.10.2007 OF THE ASSESSEE IS NOT RECONCILED FROM BOOKS OF ACCOUNTS A S THE BOOKS OF ACCOUNTS WERE NOT TRACEABLE BY 25.10.2007 (THIS FACT IS EMERGED FROM THE LETTER DATED 25.10.2007). F URTHER IT CAN BE RULED OUT THAT THE SURRENDER OF INCOME BY THE ASSESSEE DURING THE SURVEY IS NOT IN DURESS AND ITS SUBSEQUENT BREAKUP IS NOT WHOLLY AND COMPLETELY TRUE PARTICULARLY IN ABSENCE OF BOOKS OF ACCOUNTS AS ON THE DATE OF SURRENDER. MERELY IN SUCH A SITUATION SURREN DER OF INCOME OBTAINED DOES NOT DEPRIVE THE ASSESSEE TO P OINT OUT ANY DISCREPANCY / SHORTCOMING/ MODIFICATION AND CHANG E IN COMPUTATION OF INCOME LATER ON. IT IS AN UNDISPUTED FACT THAT THE ASSESSING OFFICER HAS NOT POINTED OUT ANY DEFECT IN THE BOOKS OF ACCOUNT OF BOTH YEARS AS GROSS BUSIN ESS RECEIPTS AND EXPENDITURE CREDITED AND DEBITED TO TH E P L ACCOUNT OF THESE YEARS HAVE NOT BEEN DOUBTED AT AL L. THEREFORE I AM OF THE CONSIDERED VIEW THAT THE ASSE SSING ITA NOS. 2998 & 2999/DEL/2011 7 OFFICER HAS NOT BASIS TO ENHANCE THE BUSINESS IN COME JUST ON RELYING PART OF THE LETTER DATED 25.10.2007 OF T HE ASSESSEE. I HAVE GONE THROUGH THE ENTIRE STATEMENT RECORDED BY THE SURVEY TEAM ON 16.3.2007 AND PARTICU LARLY ANSWER TO QUESTION NO. 15. EVIDENTLY THE ASSESSEE WAS NOT IN A POSITION TO VERIFY THE DETAILS WITH BOOKS AS T HE SAME WERE NOT MAINTAINED UP TO THE DATE EITHER ON THE DA TE OF THE SURVEY OR ON 25.10.2007 WHILE SUBMITTING BREAKU P OF SURRENDERED INCOME. FOLLOWING THE FINDINGS OF THE IT AT RELIED UPON BY THE APPELLANT AS MENTIONED ABOVE IT IS HELD THAT NO ADDITION TO INCOME CAN BE MADE MERELY ON THE BASIS OF A STATEMENT MADE DURING SURVEY U/S. 133A UNLESS S OME CORROBORATIVE EVIDENCE IS NOT BROUGHT ON RECORD. T HE ADDITIONS OF ` 31 41 667/- AND ` 63 18 750/- MADE B Y THE ASSESSING OFFICER IN AYS 2006-07 AND 2007-08 ARE THEREFORE HEREBY DELETED. ACCORDINGLY THE APPE LLANT GETS RELIEF. THUS THE GROUNDS OF APPEAL NUMBER 1 TO 6 O F BOTH YEARS ARE ALLOWED. 6. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 7. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT L D. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A FIDING THAT ASS ESSING OFFICER HAS FAILED TO BRING ANY MATERIAL ON THE RECORD TO SUB STANTIATE HIS FINDINGS. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOTED T HAT THE STATEMENT RECORDED DURING SURVEY AS MENTIONED IN TH E SUBMISSIONS ITA NOS. 2998 & 2999/DEL/2011 8 (ANSWER TO QUERY 15) SUPPORTS THE ASSESSEES CLAIM THAT HE HAS OFFERED HIS ENTIRE INCOME FOR TAX IN RELEVANT YEARS . LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER NOTED THAT ASSES SING OFFICER HAS NOT RELIED ON ANY CORROBORATORY EVIDENCE FOUND AND IMPOUNDED IN SURVEY WHILE DRAWING HIS CONCLUSION. THE STATEMEN T RECORDED DURING THE SURVEY HAD BEEN FOUND NOT ADHERED VERBATIM AS FA R AS YEAR OF TAXATION IS CONCERNED. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER FOUND THAT IT IS UNDISPUTED FACT THAT THE A SSESSING OFFICER HAS NOT POINTED OUT ANY DEFECT IN THE BOOKS OF ACCOUNT OF BOTH YEARS AS GROSS BUSINESS RECEIPTS AND EXPENDITURE CREDITED AN D DEBITED TO THE P&L ACCOUNT OF THESE YEARS HAVE NOT BEEN DOUBTED AT ALL. THEREFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT HE WAS OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER HAS NO BASIS TO ENHANCE THE BUSINESS INCOME JUST ON RELYING PART OF THE LETT ER DATED 25.10.2007 OF THE ASSESSEE. LD. COMMISSIONER OF INCOME TAX (A PPEALS) HAS HELD THAT HE HAS GONE THROUGH THE ENTIRE STATEMENT RECOR DED BY THE SURVEY TEAM ON 16.3.2007 AND PARTICULARLY ANSWER TO QUESTIO N NO. 15. EVIDENTLY THE ASSESSEE WAS NOT IN A POSITION TO VE RIFY THE DETAILS WITH BOOKS AS THE SAME WERE NOT MAINTAINED UP TO THE DATE EITHER ON THE DATE OF THE SURVEY OR ON 25.10.2007 WHILE SUBMITTI NG BREAKUP OF SURRENDERED INCOME. FURTHER AS HELD BY THE ITAT D ELHI IN THE CASE OF ITA NOS. 2998 & 2999/DEL/2011 9 RAVINDER KUMAR VS. DCIT DELHI 33 SOT 251 ADDITION CANNOT BE MADE BY THE LOWER AUTHORITIES MERELY ON THE BASIS OF A STATEMENT MADE DURING SURVEY U/S. 133A UNLESS SOME CORROBORATIVE EV IDENCE IS NOT BROUGHT ON RECORD. IN THE BACKGROUND OF THE AFORES AID DISCUSSIONS AND PRECEDENT RELIED UPON WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ACCORDINGL Y WE UPHOLD THE SAME. 8. IN THE RESULT BOTH THE APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/3/2012. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 30/3/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES