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TMI Blog2015 (3) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. Unexplained deposit on various dates in the current account No.4515 in the Oriental Bank of Commerce - Tribunal deleted the addition by observing that the said entry pertaining to the deposit were duly reflected in the books of account - Held that:- The books of account were seized during the course of search and entries were duly reflected at that time. The entries were also reflected in the excise record pertaining to the sale in-cash and the availability of cash with the assessee on the date of cash deposit in the bank. When it is so, then we find no reason to interfere with the impugned order passed by the Tribunal and the same is hereby sustained along-with the reasons mentioned therein. - Decided in favour of assessee. Unexplained deposit in the form of bid money - Held that:- addition of ₹ 4 lacs was made by the A.O. pertaining to the payment through Shri Umesh Gupta. The Tribunal has confirmed the addition of ₹ 4 lacs. When it is so, then there is no occasion for the department to have any grievance by taking this ground in the appeal. The ground was decided by the Tribunal in favour of the Department and it shows that the substantial questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments as no details were mentioned except amount and also no name was mentioned - Held that:- As the Tribunal observed that these documents are simple deaf and dumb documents, which cannot be considered for making any addition, specially, when no incriminating evidence was produced. When it is so, then we find no reason to interfere with the order passed by the Tribunal and the same is hereby sustained along-with the reasons mentioned herein. - Decided against revenue. Addition on account of diversion of income in the name of wife of the assessee - grant of relief - Held that:- y considering the rival submission, we are of the opinion that the assessee and Smt. Payal Goyal are the husband and wife in the bedroom, but for the purpose of income tax they are separate and they have filed their separate return since long, which were accepted by the department. When it is so, then there is no justification to make addition. - Decided against revenue. - Income Tax Appeal No. - 189 of 2004, Income Tax Appeal No. - 192 of 2004, Writ Tax No. - 473 of 2003, Writ Tax No. - 474 of 2003 - - - Dated:- 11-3-2015 - Hon'ble Tarun Agarwala And Hon'ble Dr. Satish Chandra,JJ. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has not been able to prove that these papers do not belong to it and the application of G.P. Rate was based on the past record of the assesse which is the best guide for application of rate? The assessee himself surrendered an amount of ₹ 6,31,200/- on account of income/G.P. 3. Whether the I.T.A.T. is justified in deleting the addition of ₹ 48 lacs despite the fact that the activity of sales outside the books of account is proved from the fact that the debit balance were existing in excess to the balance shown in the return of income filed by the assessee? 4. Whether the I.T.A.T. is justified in deleting the addition of ₹ 48 lacs ignoring the provision of sub-section (4A) of section 132 which provide that anything found in the premises presumed to be belonging the assessee and the assessee has not discharged its onus? 5. Whether the I.T.A.T. is justified in deleting the addition of ₹ 28.73.759/- on the sole ground that no addition can be made on the basis of diary found from the almirah of Shri Dinesh Kumar ignoring the fact that these are the difference of balances of B-29 taken as actual business transaction and the balances shown in the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of business income. Finally, the Tribunal has estimated the n.p. rate @ 6.5%, which was accepted by the department in the earlier years and shown by the assessee during the assessment year under consideration. 5. By considering the totality of the facts and circumstances of the case and on perusal of the record, it appears that the key of the almirah was provided at the time of search by Sri Rakesh Goyal and the same was seized. Later, the almirah was opened and incriminating material was found therein. The entry made in the seized document was already reflected in the books of account. The said slip can be treated as 'Yaaddast Parcha' i.e. memory slip. There was no sale out side the books so, there was no occasion to estimate the turnover or n.p., hence, the Tribunal has rightly applied the n.p. rate @ 6.5% which was accepted by the Department in the earlier years and the same appears reasonable in the peculiar facts and circumstances of the case. Moreover, estimation of n.p. rate is a question of fact, which was rightly decided by the Tribunal, being a final fact finding authority. The same is hereby sustained along-with the reasons mentioned therein. 6. The substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined deposit in the form of bid money. From the impugned order, it appears that the addition of ₹ 4 lacs was made by the A.O. pertaining to the payment through Shri Umesh Gupta. The Tribunal has confirmed the addition of ₹ 4 lacs. When it is so, then there is no occasion for the department to have any grievance by taking this ground in the appeal. The ground was decided by the Tribunal in favour of the Department and it shows that the substantial questions of law have been framed in a casual manner by the department. Therefore, this question neither adjudicated nor any answer is provided. 11. The answer to all the substantial questions of law is in favour of the assessee and against the Department. In the result the appeal filed by the Department is dismissed. Income Tax Appeal No.189 of 2004:- 12. This Appeal is filed by the Department against the impugned order dated 9.12.2003, passed by the Income Tax Appellate Tribunal, Delhi in IT(SS) Appeal No.109 and 232(Del)/2002 for the block period 1.4.1988 to 17.3.1999. 13. On 2.9.2009, a coordinate Bench has admitted the Appeal on the following substantial questions of law:- 1. Whether the I.T.A.T. is just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient and valid reason for disbelieving the declaration in VDIS? 5. Whether the I.T.A.T. is justified in upholding the finding of Ld. CIT (appeal) in granting relief of ₹ 1,47,000/- on a/c of seven gift received in the name of minor children on the ground that gift tax returns were filed, ignoring the fact that this was a device of capital formation in as much as the copies of seven gifts tax returns were found in the possession of assessee during the course of search? 6. Whether the I.T.A.T. is justified in upholding the order of Ld. CIT (Appeal) allowing the relief of ₹ 2,75,000/- on a/c of investment and income from the money landing business on the ground that it was a deaf and dumb document as no description of complete transaction was there, ignoring the fact that onus to prove the entries of papers found in the search, lies on the assessee and which onus has not been discharged by the assessee? 7. Whether the I.T.A.T. is justified in upholding the finding of Ld. CIT(Apeal) deleting the addition of ₹ 67,50,000/- being 45% share in Thrill Hotel Pvt. Ltd. Without appreciating the full facts of the case and the documents by way of contents of wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit entry of ₹ 26,75,000/- was in the name of assessee. Out of this credit entry of ₹ 26,75,000/-, a sum of ₹ 3 lacs has been explained by the assessee, as the same was made after withdrawal from Ms/ Patni Chemicals Ltd. The CIT(A) has further noted that the assessee had paid further amount of ₹ 8.5 lacs out of saving bank account No.14718 with the Oriental Bank of Commerce, Saharanpur and the same was duly disclosed in the income tax return year after year. It is the submission of the learned counsel that the during the search at M/s Saharanpur Associates, the entry was found in the name of company's account, but the name of the assessee was not mentioned. 18. By considering the rival submissions and on perusal of material available on record, it appears that neither the copies of the documents on which basis the addition was made for ₹ 15,25,000/- confronted to the assessee nor any other material was brought on record, which will justify the addition. So, no adverse inference can be drawn with regard to entry of ₹ 15,25,000/- wrongly shown pertaining to the assessee. It is a finding of fact that no name of the assessee was mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as deleted the addition by accepting the gifts as genuine. The Tribunal has rightly observed that when the gift tax return and regular return were duly filed at the relevant time, then there is no question for making the addition again. We agree with it. 24. The substantial question of law No.6 is pertaining to addition of ₹ 2,75,000/- on account of investment and income from the money lending business. The A.O. has made the addition on ₹ 2,75,000/- on the basis of loose papers marked as pages 22 and 25 found during the course of search. These parchas were numbered as 25 to 32 of Annexure-26. These parchas were containing some jointing which give an aggregate figure of ₹ 5.42 lacs and ₹ 2,50,000/-. The A.O. considered that it was an investment from the undisclosed source, so he observed that the assessee was dealing in the business of money lending and accordingly, he estimated the investment in money lending at ₹ 10 lacs and likewise the figure of ₹ 2,50,000/- was altered by ₹ 2,75,000/-. The CIT(A) has deleted the addition by observing that the said papers were deaf and dumb documents as no details were mentioned except amount and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal the same is hereby sustained along-with the reasons mentioned herein. 29. The answer to all the substantial questions of law is in favour of the assessee and against the Department. 30. In the result the appeal filed by the department is dismissed. WRIT TAX No. - 473 of 2003 and 474 of 2003 31. By these writ petitions the assessee has made a request that the notice dated 18.6.2002 and 13.9.2002 may kindly be quashed. 32. In the appeal filed by the department the Tribunal has deleted the addition of ₹ 42,15,000/- and ₹ 20,00,000/- respectively by observing that however, the A.O. is free to consider this view in the regular assessment proceedings. pursuant to observation the A.O. has issued notice under sections 148/147 for the assessment year 1996-97 in the hands of the each assessee. 33. After hearing both the parties and on perusal of record, it appears that when the addition is deleted on merit and we uphold the same, then there is no question to issue any further notice for re-opening of the assessment under section 148/147. Therefore, we expunge the above mentioned directions and quash the impugned notice for the assessment year under c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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