Kanwaljeet Singh Toor, Punjab v. DCIT, New Delhi

ITA 6251/DEL/2014 | 2007-2008
Pronouncement Date: 21-11-2017 | Result: Allowed

Appeal Details

RSA Number 625120114 RSA 2014
Assessee PAN AAQPT2132C
Bench Delhi
Appeal Number ITA 6251/DEL/2014
Duration Of Justice 3 year(s) 7 day(s)
Appellant Kanwaljeet Singh Toor, Punjab
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 21-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted D
Tribunal Order Date 21-11-2017
Assessment Year 2007-2008
Appeal Filed On 14-11-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES D : DELHI BEFORE SHRI BHAVNESH SAINI J.M. AND SHRI O.P. KANT A.M. ITA.NO.6249 6250 & 6251/DEL./2014 ASSESSMENT YEARS 2005-06 2006-07 & 2007-08 SHRI KANWALJEET SINGH TOOR HOUSE NO.1026 PHASE-X MOHALI (PUNJAB) PANAAQPT2132C VS. THE DCIT CENTRAL CIRCLE - 4 JHANDEWALAN EXIM NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI M.R. SHARMA ADVOCATE. FOR REVENUE : SHRI VINAY VERMA CIT - D.R. DATE OF HEARING : 0 8 .11.2017 DATE OF PRONOUNCEMENT : 21 .11.2017 ORDER PER BHAVNESH SAINI J.M. ALL THE APPEALS BY THE SAME ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CIT(A)-XXXIII NEW DELH I DATED 14 TH JULY 2014 FOR THE A.Y. 2005-2006 2006-2007 AND 2 007-2008. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 3. ALL THE APPEALS OF THE ASSESSEE ARE TIME BARRED BY 03 DAYS. THE ASSESSEE FILED AN APPLICATION FOR CONDONATION O F DELAY AND IT IS EXPLAINED THAT APPEAL PAPERS WERE SINGED BY ASSESSE E ON 29 TH OCTOBER 2014 AND APPEAL FEES WAS DEPOSITED ON 05.1 1.2014. THE 2 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. SAME APPEALS WERE HANDED OVER TO THE COUNSEL TO FIL E THE SAME BEFORE THE TRIBUNAL WHO FILED THE APPEALS ON 14.11.2014. I N THE PROCESS THERE IS A DELAY OF 03 DAYS. CONSIDERING THE EXPLAN ATION OF ASSESSEE WE ARE OF THE VIEW THAT NOMINAL DELAY IN FILING THE APPEALS SHALL HAVE TO BE CONDONED. WE ARE SATISFIED WITH THE EXPLANATI ON OF ASSESSEE THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT F ILING THE APPEALS WITHIN THE PERIOD OF LIMITATION. THE DELAY IN FILIN G ALL THE APPEALS ARE CONDONED. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE I.T. ACT WAS CAR RIED OUT AT VARIOUS BUSINESS AND RESIDENTIAL PREMISES OF THE DIRECTORS AND IMPORTANT EMPLOYEES OF THE PEARL GROUP ON 22.03.2010. THIS GR OUP IN THE RECENT PAST DIVERSIFIED INTO MULTIFARIOUS ACTIVITI ES AND APART FROM LAND SALE AND PURCHASE IT HAS ENTERED INTO THE FIE LD OF CONSTRUCTION OF INTEGRATED TOWNSHIP GROUP HOUSING BUILDING COM MERCIAL MALLS - CUM- COMPLEXES MULTIPLEXES EDUCATION AND HOSPITAL S PRINT AND VISUAL MEDIA MANUFACTURE OF SPICES ETC. THE RESIDE NCE OF THE ASSESSEE WAS ALSO COVERED UNDER SECTION 132 OF THE I.T. ACT. IN RESPONSE TO THE STATUTORY NOTICE UNDER SECTION 153A ISSUED ON 30 TH 3 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. DECEMBER 2010 ASSESSEE FILED HIS RETURN OF INCOME ON 08 TH JUNE 2011. THE A.O. ISSUED STATUTORY NOTICES FOR COMPLET ION OF THE ASSESSMENTS UNDER SECTION 153A OF THE I.T. ACT. 5. IN A.Y. 2005-2006 IT WAS NOTICED THAT ASSESSEE HAS SHOWN LOAN OF RS.8 LAKHS RECEIVED FROM M/S. ASSURANCE BUI LDTECH LTD. IN A.Y. 2006-2007 SIMILARLY IT WAS NOTICED THAT ASSE SSEE HAS TAKEN LOAN OF RS.12 LAKHS FROM M/S. ASSURANCE BUILDTECH L TD. AND RS.11 53 077 FROM M/S. SHOVELLER INFRACON LTD. TOT ALING TO RS.23 53 077/-. IN A.Y. 2007-08 ASSESSEE HAD TAKEN LOAN OF RS.73 60 000/- FROM M/S. ASSURANCE BUILDTECH LTD. RS.49 LAKHS FROM M/S. SHOVELLER INFRACON LTD. AND RS.69 20 000 /- FROM M/S. P.P.SYNTEX (P) LTD. TOTALING TO RS.1 91 80 000/-. CONFIRMATIONS OF THE SAME LOANS WERE FILED. THE A.O. HOWEVER WAS NOT SA TISFIED WITH THE EXPLANATION OF ASSESSEE AND MADE ALL THE ABOVE ADDI TIONS AGAINST THE ASSESSEE UNDER SECTION 68 OF THE I.T. ACT. 5.1. THE ASSESSEE CHALLENGED ALL THE THREE ADDITI ONS BEFORE THE LD. CIT(A) ON MERITS. THE ASSESSEE ALSO CHALLEN GED THE ORDER OF THE A.O. UNDER SECTION 153A OF THE I.T. ACT BECAUSE NO ADDITION COULD BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIA L FOUND DURING 4 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. THE COURSE OF SEARCH. THE LD. CIT(A) NOTED FROM THE ASSESSMENT ORDER THAT IT APPEARS THAT THERE IS NO INCRIMINATING EVID ENCE FOUND DURING THE COURSE OF SEARCH RELATING TO ADDITIONS UNDER SE CTION 68 OF THE I.T. ACT. THE LD. CIT(A) FOLLOWED THE DECISION OF THE HO NBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA IN I TA.NO.1626 1632 1998 2006 2010 AND 2020 OF 2010 DATED 07.08.2012 THAT THE A.O. HAS FULL POWER TO ASSESS TOTAL INCOME UNDER SECTION 153A IRRESPECTIVE OF INCRIMINATING EVIDENCE FOR EACH ONE ASSESSMENT Y EAR FOR THE ENTIRE PERIOD OF SEARCH ASSESSMENT. THE LD. CIT(A) ACCORDI NGLY REJECTED THE LEGAL GROUND OF THE ASSESSEE. THE LD. CIT(A) ALSO D ISMISSED THE APPEALS OF ASSESSEE ON MERIT. 6. THE ASSESSEE IN ALL THE APPEALS HAS CHALLENGED THE ADDITIONS OF RS.8 LAKHS RS.23 53 077 AND ADDITION OF RS.1 91 80 000 UNDER SECTION 68 OF THE I.T. ACT. THE ASSESSEE HAS ALSO CHALLENGED THE ORDERS OF THE AUTHORITIES BELOW IN MAKING AND CONFI RMING THE ABOVE ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDITS IN PROCEEDINGS UNDER SECTION 153A OF THE I.T. ACT WITHOUT ANY INC RIMINATING MATERIAL OR OTHERWISE RELATING TO THESE CASH CREDITS WERE FO UND DURING THE COURSE OF SEARCH. 5 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT FOR A.Y. 2005-2006 THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 30 TH JULY 2005 FOR A.Y. 2006-2007 ORIGINAL RETURN WAS FILED ON 27 TH JULY 2006 AND FOR A.Y. 2007-2008 ORIGINAL RETURN WAS FIL ED ON 31 ST JULY 2007. HE HAS THEREFORE SUBMITTED THAT ON THE DATE OF SEARCH THE ASSESSMENTS HAVE GOT COMPLETED BECAUSE NO NOTICE UN DER SECTION 143(2) HAVE BEEN ISSUED TO THE ASSESSEE IN ALL THE ASSESSMENT YEARS UNDER APPEALS. HE HAS SUBMITTED THAT SINCE NO INCRI MINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH ABOU T THE CASH CREDITS OF WHICH ADDITIONS HAVE BEEN MADE IN THE AS SESSMENT YEARS UNDER SECTION 153A OF THE I.T. ACT THEREFORE NO A DDITIONS COULD BE MADE IN PROCEEDING UNDER SECTION 153A OF THE I.T. A CT. HE HAS SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF TH E ASSESSEE BY THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. KABUL CHAWLA 380 ITR 573. 8. ON THE OTHER HAND LD. D.R. RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW. THE LD. D.R. SUBMITTED THAT REVE NUE HAS ALREADY MADE A REQUEST TO THE EFFECT THAT IN CASE THE TRIBU NAL COMES TO A CONCLUSION THAT THIS ADDITION CANNOT BE MADE UNDER SECTION 153A 6 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. THEN A DIRECTION UNDER SECTION 150(1) SHOULD BE ISS UED FOR TAXING THIS AMOUNT UNDER SECTION 148 OF THE I.T. ACT 1961. SUC H POINT CAN BE RAISED ORALLY AT THE TIME OF HEARING IF IT GOES TO ROOT OF THE MATTER. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THE H ONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWL A 380 ITR 573 HELD AS UNDER : COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY AS SESSING OFFICER WHILE MAKING ASSESSMENT UNDER SECTION 153A ONLY ON BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURI NG COURSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALREADY DISCLO SED OR MADE KNOWN IN COURSE OF ORIGINAL ASSESSMENT. 10. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ABOVE DECISION IT IS CLEAR THAT DURING THE COURSE OF SEA RCH NO INCRIMINATING MATERIAL WAS FOUND IN RESPECT OF ASSESSMENT YEARS U NDER APPEALS SO AS TO MAKE ADDITIONS OF UNEXPLAINED CASH CREDITS UN DER SECTION 153A OF THE I.T. ACT. THE A.O. MADE ADDITIONS OF UNEXPLA INED CASH CREDITS IN ALL THE ASSESSMENT YEARS UNDER APPEALS WITHOUT T HERE BEING RECOVERY OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. ALL THE ORIGINAL RETURNS HAD ALREADY BEEN F ILED PRIOR TO THE 7 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. SEARCH AND THE LAST DATE OF ISSUE OF NOTICE UNDER S ECTION 143(2) HAD ALREADY EXPIRED ON THE DATE OF SEARCH. THEREFORE O N THE DATE OF SEARCH ON 22 ND MARCH 2010 NO ASSESSMENTS WERE PENDING FOR ASSES SMENT YEARS UNDER APPEALS. IN THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS CLEAR THAT A.O. WAS NOT JUSTIFIED IN INVOKING THE P ROVISIONS OF SECTION 153A OF THE ACT AGAINST THE ASSESSEE FOR ASSESSMENT YEARS UNDER APPEALS BECAUSE NO INCRIMINATING MATERIAL QUA ASSES SMENT YEARS UNDER APPEALS WERE FOUND DURING THE COURSE OF SEARC H. IT MAY ALSO BE NOTED HERE THAT LD. CIT(A) IN HIS FINDINGS HAS S PECIFICALLY MENTIONED ON PERUSAL OF THE ASSESSMENT RECORDS THAT THERE IS NO INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF S EARCH RELATING TO THE ADDITIONS UNDER SECTION 68 OF THE I.T. ACT. THE ISSUE IS THEREFORE COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT O F THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUP RA). SAME VIEW IS TAKEN BY HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. MEETA GUTGUTIA 395 ITR 526 FOLLOWING ITS EARLIER DECISION IN THE CASE OF KABUL CHAWLA (SUPRA). IN VIEW OF THE ABOVE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE ALL THE ADDITIO NS UNDER SECTION 68 8 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. OF THE I.T. ACT IN THE PROCEEDINGS UNDER SECTION 15 3A OF THE I.T. ACT IN ALL ASSESSMENT YEARS UNDER APPEALS. 11. THE LD. D.R. FURTHER CONTENDED THAT IN CASE AP PEALS ARE DECIDED AGAINST THE REVENUE BY HOLDING THAT THIS AD DITION CANNOT BE MADE UNDER SECTION 153A THEN THE DIRECTION UNDER SECTIO N 150(1) SHOULD BE ISSUED FOR TAXING THIS AMOUNT UNDER SECTION 148 OF THE I.T. ACT 1961. WE ARE AFRAID TO ACCEPT THIS CONTENTION OF THE LD. D.R . BECAUSE IT IS THE SOLE PREROGATIVE OF THE A.O. TO INITIATE RE-ASSESSMENT P ROCEEDINGS AFTER SATISFYING THE CONDITIONS OF SECTION 148 AND RECORD ING THE REASONS FOR THE SAME. THE JURISDICTION OF THE A.O. CANNOT BE USHERE D-UP IN THE PRESENT PROCEEDINGS. SINCE THE APPEALS HAVE ALREADY BEEN AL LOWED IN FAVOUR OF THE ASSESSEE THEREFORE WHAT REMEDY IS AVAILABLE TO TH E REVENUE FOR PROCEEDING FURTHER AGAINST THE ASSESSEE CANNOT BE RAISED IN TH E PRESENT PROCEEDINGS. THE SCOPE OF THE PROCEEDING CANNOT BE ENLARGED TO G IVE A DIFFERENT COLOUR TO PROCEED AGAINST THE ASSESSEE. ONCE ASSESSMENT OR DERS HAVE BEEN SET ASIDE UNDER SECTION 153A OF THE I.T. ACT AND ADDITI ONS HAVE BEEN DELETED REVENUE IS AT LIBERTY TO TAKE ANY ACTION AS PER LAW IF SO ADVISED IN ACCORDANCE WITH LAW. THEREFORE NO DIRECTION IS REQ UIRED UNDER SECTION 150(1) OF THE I.T. ACT. THE CONTENTION OF LD. D.R. IS REJECTED. 9 ITA.NOS.6249 6250 & 6251/DEL./2014 SHRI KANWALJIT SINGH TOOR MOHALI PUNJAB. 12. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI DATED 21 ST NOVEMBER 2017 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT D BENCH DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.