ACIT, New Delhi v. Sh. Siddharth Sareen, New Delhi

ITA 3110/DEL/2011 | 2002-2003
Pronouncement Date: 11-04-2014 | Result: Dismissed

Appeal Details

RSA Number 311020114 RSA 2011
Assessee PAN EYEAR2013T
Bench Delhi
Appeal Number ITA 3110/DEL/2011
Duration Of Justice 2 year(s) 10 month(s)
Appellant ACIT, New Delhi
Respondent Sh. Siddharth Sareen, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 11-04-2014
Date Of Final Hearing 30-01-2014
Next Hearing Date 30-01-2014
Assessment Year 2002-2003
Appeal Filed On 10-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T.A. NO3110& 3011/DEL/2011 ASSESSMENT YEAR : 2002-03& 2003-04 ACIT SHRI SIDDHARATH SAREEN CENTRAL CIRCLE-7 B-101 GK PART-I NEW DELHI. V. NEW DELHI. AND C.O. NOS. 205 & 206/DEL/20133 IN I.T.A. NO. 3010 &3111/DEL/2011 ASSESSMENT YEAR : 2002-03 SH.SIDDHARATH SAREEN ACIT B-101 GK PART-I CENTRAL CIRCLE-7 NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI RAMESH CHANDRA CIT-DR. ASSESSEE BY : SHRI R.N. MARWAH C.A. ORDER PER TS KAPOOR AM: THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST TH E TWO SEPARATE ORDERS OF LD CIT(A) BOTH DATED 31.3.2011. TH E GROUNDS OF APPEALS TAKEN BY REVENUE ARE COMMON IN THESE TWO APPE ALS WHEREBY THE REVENUE IS AGGRIEVED FOR THE DELETION OF ADDITIO NS WHICH WERE MADE BY ASSESSING OFFICER TO BE TAXABLE ON THE BASIS OF RESID ENTIAL STATUS WHEREAS THE LD CIT(A) HAS DELETED THE ADDITION HOLDIN G THE STATUS OF ASSESSEE AS RESIDENT BUT NOT AS ORDINARILY RESIDENT. THE A SSESSEE HAS ITA NO3110 & 3111/DEL/2011 2 ALSO FILED CROSS OBJECTIONS TO THE APPEAL WHEREBY THE A SSESSEE HAS TAKEN THE GROUND THAT THE ASSESSMENTS WERE COMPLETED ON THE DATE OF SEARCH AND NO ADDITION WAS POSSIBLE WITHOUT INCRIMINAT ING MATERIAL FOUND AT THE TIME OF SEARCH. THESE APPEALS AND CROSS OBJ ECTIONS WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE A COM MON ORDER IS BEING PASSED. 2. AT THE OUTSET THE LD DR READ FROM ASSESSMENT ORDER AN D ARGUED THAT IN THE ABSENCE OF PASSPORT THE ASSESSING OFFICER H AS RIGHTLY HELD THE ASSESSEE TO BE A RESIDENT IN INDIA. THE LD AR ON THE OTHER HAND ARGUED THAT PHOTO COPY OF PASSPORT WAS FILED AND THE REFORE LD CIT(A) ON THE BASIS OF COMPLETE FACTS AND FINDINGS HAD DELETED TH E ADDITION. REGARDING CROSS OBJECTIONS THE LD AR SUBMITTED THAT N O ADDITION WAS POSSIBLE IN THE ABSENCE OF ANY INCRIMINATING DOCUMENT S FOUND DURING SEARCH AND RELIED ON A NUMBER OF CASE LAWS. AS THE CRO SS OBJECTIONS RAISED BY THE ASSESSEE INVOLVED LEGAL ISSUES SO THEREFORE CROSS OBJECTIONS WERE TAKEN UP FIRST. 3. AT THE OUTSET THE LD AR SUBMITTED THAT THERE IS A D ELAY IN FILING OF CROSS OBJECTION BY 865 DAYS. INVITING OUR ATTENTION TO AFFIDAVIT FILED BY THE ASSESSEE IT WAS SUBMITTED THAT ASSESSEE WAS A NRI AND HE USED TO VISIT INDIA ON FEW OCCASIONS ONLY AND DURING ONE OF HI S VISITS THE COUNSEL OF THE ASSESSEE ADVISED HIM TO FILE CROSS OBJECTION S IN VIEW OF THE FACT THAT THERE WERE NEW DECISIONS WHICH WERE IN FAVOUR OF ASSESSEE AND THEREFORE IT WAS PRAYED THAT SINCE THE ASSESSEE WAS NRI & THE DELAY IN FILING OF CROSS OBJECTIONS WAS BONA FIDE . THEREFORE IT WAS PRAYED THAT THE DELAY BE CONDONED. 4. THE LD DR ON THE OTHER HAND OBJECTED TO THE CON DONATION OF DELAY AND RELIED UPON THE ORDER OF HON'BLE SUPREME COURT IN THE CASE ITA NO3110 & 3111/DEL/2011 3 OF CHIEF POST MASTER GENERAL V. LIVING MEDIA INDIA LT D. REPORTED IN 348 ITR 7. THE LD DR SUBMITTED THAT DELAY IN FILING CROSS OBJECTIONS WERE NOT JUSTIFIED THEREFORE IT NEEDED TO BE DISMISSED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. REGARDING CONDONATION OF DELAY IT IS ADMITTED FACT THAT ASSESSEE IS AN NRI AS IS APPARENT FROM THE FACTS NARRATED IN THE FILE RELATIN G TO APPELLATE PROCEEDINGS. IT IS ALSO A FACT THAT IN THE YEAR 2013 T HE DELHI TRIBUNAL IN A NUMBER OF CASES HAS HELD THAT IN THE ABSENCE OF INCRI MINATING MATERIAL FOUND AT THE TIME OF SEARCH NO ADDITION CAN BE MADE IN THE YEARS IN WHICH ASSESSMENTS WERE COMPLETED. THE ISSUE RAISED IN THE CROSS OBJECTIONS BEING LEGAL IN NATURE AND IN VIEW OF THE FACT THAT ASSESSEE IS AN NRI WHO USED TO VISIT INDIA ON FEW OCCASIONS ONLY WE CONDONE THE DELAY IN FILING OF CROSS OBJECTIONS. THE C ASE LAW RELATING TO CONDONATION OF DELAY AS RELIED UPON BY LD DR IS DISTIN GUISHABLE AS IN THAT CASE THE HON'BLE SUPREME COURT DID NOT CONDONE THE DELAY IN FILING APPEAL BY POSTAL AUTHORITIES ON THE BASIS OF CE RTAIN FACTS ON THE BASIS OF WHICH THE HON'BLE SUPREME COURT HAD HELD THA T THERE WAS NO EXPLANATION FOR DELAY. 6. REGARDING CROSS OBJECTION THE LD AR INVITED OUR A TTENTION TO THE FOLLOWING CASE LAWS:- 1. MGF AUTOMOBILES LTD. V. ACIT IN I.T.A. NO.4212 & 421 3/DEL/. 2. ACIT V. PRADEEP KUMAR IN I.T.A. NO. 4016/DEL/. 3. KUSAM GUPTA V. DCIT IN 2011 (TM). AND IN THIS RESPECT INVITED OUR ATTENTION TO THE BRI EF SYNOPSIS WHEREIN FACTS OF THESE CASES WERE NARRATED. ITA NO3110 & 3111/DEL/2011 4 SIMILARLY OUR ATTENTION WAS INVITED TO THE SPECIAL B ENCH DECISION IN ALL CARGO V. DCIT AND THAT OF SHRI GURINDER SINGH BAWA V. DCIT DECIDED BY MUMBAI TRIBUNAL. THE LD AR INVITED OUR ATTENTION TO THE FINDINGS IN THESE CASES AND SUBMITTED THAT IN ALL THESE CASES THE TRIB UNAL HAD HELD THAT IN THE ABSENCE OF INCRIMINATING MATERIAL RECOVE RED DURING SEARCH NO ADDITION CAN BE MADE IF THE ASSESSMENTS STOOD COMPLETE D AT THE TIME OF SEARCH. IN THE PRESENT CASES WE FIND THAT SEARC H TOOK PLACE ON 12.9.2007 AND CONSEQUENTLY THE ASSESSEE WAS REQUIRED TO F ILE THE RETURNS OF INCOME FOR 6 ASSESSMENT YEAR PRECEDING THE DA TE OF SEARCH. THE ASSESSMENT YEARS UNDER APPEAL INVOLVED ASSESSMENT YEAR 2 002-03 & 2003-04 THE ASSESSMENTS OF WHICH ON THE DATE OF SEARC H STOOD COMPLETED AND THEREFORE THE ADDITION COULD BE MADE ONLY IN RESPECT OF INCRIMINATING MATERIAL IF ANY FOUND AT THE TIME OF SEARCH. FROM THE ASSESSMENT ORDER WE DO NOT FIND THAT THE ADDITIONS WERE MADE ON THE BASIS OF SAME SEARCH MATERIAL. THEREFORE FOLLOWING THE JUDICIAL PRONOUNCEMENTS AS RELIED UPON BY LD AR WE HOLD THAT NO ADDITIONS WERE TO BE MADE WITHOUT ANY INCRIMINATING MATERIAL. IN VIEW OF THE ABOVE THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALLO WED. 6. IN VIEW OF OUR DECISION ON CROSS OBJECTIONS THE AP PEALS FILED BY THE REVENUE HAS BECOME ACADEMIC ONLY AND WITHOUT ADJ UDICATING ON THE SAME WE DISMISS THE APPEALS. 7. IN THE RESULT THE CROSS OBJECTIONS FILED BY THE ASSESSE E ARE ALLOWED WHEREAS THE APPEALS FILED BY THE REVENUE ARE DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 11TH DAY O F APRIL 2012. SD/- SD/- (R.P.TOLANI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 11.04.2014. HMS ITA NO3110 & 3111/DEL/2011 5 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DEL HI. TRUE COPY. BY ORDER (ITAT NEW DELHI). DATE OF HEARING 30.1.2014 DATE OF DICTATION 7.4.2014 DATE OF TYPING 7.4.2014 DATE OF ORDER SIGNED BY BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.