RAJEEV AGGARWAL,GHAZIABAD vs. ACIT, CIRCLE- 2, GHAZIABAD

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ITA 417/DEL/2019Status: HeardITAT Delhi17 May 2022AY 2015-164 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal noted the assessee's application under the Vivad Se Vishwas Scheme and the issuance of Form-5. Consequently, the appeal was treated as withdrawn.

What were the facts?

The assessee filed an appeal against the order of the CIT(A) concerning unexplained credit and investment. The assessee later intimated that they had applied for settlement under the Vivad Se Vishwas Scheme.

What were the issues?

Whether the appeal should be dismissed as withdrawn due to the assessee's participation in the Vivad Se Vishwas Scheme.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

(A) This appeals by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals), Ghaziabad [“Ld. CIT (A)”, for short], dated 24.10.2018 for Assessment Year 2015-16. Grounds taken in this appeal of Assessee is as under:

“1. That on the facts & in the circumstances of the case and in law, the order passed by the Ld. Commissioner of Income Tax (Appeals) [CIT(A)] is wrong and bad in law.

2.

That on the facts and m the circumstances of the case and in law, the order passed by Ld AO Dated-29.12.2017 (‘Ld. AO's Order') and further order passed by Ld CIT(A) Dated 24/10/2018 (‘Ld. CIT(A)'s Order') on alleged Unexplained credit of Rs. 78,20,321/- u/s 68 of Income Tax Act,1961 (hereinafter called the 'Act') is bad in law.

ITA No.-417/Del/2019 Rajeev Aggarwal vs. ACIT 3. That on fact and circumstances of the case and in law, the order passed by Ld AO and further order passed by Ld. CIT(A) are bad in law and addition is made inter alia on the basis of statements recorded at the time of Search u/s 132(4) of the Act, which have no evidential' value as cross- examination of the person recording that statement on behalf of the revenue is also not offered as per law.

4.

That on the fact and circumstances of the case and in law, the order passed by Ld. AO and further order passed by Ld. CIT(A) are bad in law and addition is made inter-alia on the basis of statement recorded at the time of search which have no evidentiary value such as: (i) Firstly, these statements are not equivalent to “material”, much less “incriminating material” in the eyes of law and they are not corroborated with any iota of independent material;

(ii) Secondly, these statements cannot bind assessee who was not subject matter of any parallel search operation;

(iii) Thirdly, these statements are pre-exiting as were recorded by the investigation wing and no where independently re-examined by the Ld.AO;

(iv) Fourthly, these statements are not put to acid-test of cross- examination;

(v) Fifthly, these statements are recorded after the expiry of extant financial year cannot be extrapolated to subject period;

(vi) Lastly, it is nobody’s case that these general statements talk about assessee’s particular transaction.

5.

That on the fact and the circumstances of the case and in law, both Ld. AO and Ld. CIT(A) erred in making subject additions without appreciating that the modus-operandi relied extensively in impugned order is never co- related even remotely to the fact of the present case as there is no iota of evidence brought on record which can display that assessee herein inducted certain cash at the time of sale to the certain identified broker/middlemen/agent/syndicate member who has in turn introduced certain identified artificial paper company for alleged parking of cash to buy the shares purchased by the assessee which theatrical trail has remained inchoate completely nullifying entire basis of addition.

6.

That on the facts and in the circumstances of the case and in law, Ld CIT- A erred in sustaining the action of Ld AO in making addition without Page 2 of 5

ITA No.-417/Del/2019 Rajeev Aggarwal vs. ACIT appreciating that basis of findings of the lower authorities is “suspicion” and “human probabilities” only which is never converted to reliable and trustworthy material and entire assessment order is passed on sole basis of “borrowed satisfaction” and without any independent application of mind (like a rubber stamp order).

7.

That on the facts and in the circumstances of the case and in law, Ld CIT- A erred in sustaining the action of Ld AO in making addition without appreciating that no opportunity is given to the assessee to be confronted with back material relied extensively in impugned orders like investigation wing report, statements referred in the order etc and no opportunity to confront the statements and cross examine the revenue’s witness was given.

8.

That on the facts and in the circumstances of the case and in law, the order passed by Ld. AO and further order passed by Ld. CIT(A) on alleged Unexplained investment of Rs. 2,34,610/- as commission paid is bad in law.

That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal.”

(B) At the time of hearing, the appellant (assessee) was not represented. However, we considered letter dated 09.05.2022 of the assessee; wherein, it has been intimated that the assessee has submitted application for settlement of the dispute in the Vivad Se Vishwas Scheme ("VSVS", for short) and further; that Form-5 has already been issued by Income Tax Department. In view of this, the learned Senior Departmental Representative [Ld. “Sr.

DR”, for short] submitted before us that this appeal may be treated as withdrawn and may be dismissed on account of the aforesaid VSVS. After due consideration, and in view of the foregoing; we treat this appeal as withdrawn on account of the aforesaid VSVS.

Accordingly, this appeal is dismissed, as withdrawn.

(B.1) Before we part, we hereby clarify, by way of abundant caution, that if for some reason the dispute(s) under this appeal before us is / are not settled

ITA No.-417/Del/2019 Rajeev Aggarwal vs. ACIT under the aforesaid VSVS, then the assessee will be at liberty to approach ITAT for restoration of this appeal, in accordance with law.

(C) In the result, this appeal is dismissed.

This order was orally pronounced on 17th May, 2022 in Open Court, in the presence of CIT(DR) for the Revenue, after conclusion of the hearing. Now this order in writing is signed today on 17th May, 2022.

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