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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, N’EW DELHI
Before: SH. N. K. BILLAIYA & MS. ASTHA CHANDRA
PER N.K. BILLAIYA, AM:
4692/Del/2016 are three separate appeals by the assessee preferred against three separate orders of the CIT(A)-26, New Delhi dated 28.03.2016 and 12.07.2016 pertaining to A.Y.2005- 06, 2006-07 and 2008-09 respectively.
Since common issues are involved in all three appeals they were heard together and are disposed off by this common order for the sake of convenience and brevity.
For the sake of our convenience we are addressing to the grounds of appeal for A.Y. 2005-06 :-
Vide letter dated 05.09.2019 the assessee has also raised following additional ground of appeal :-
Representatives of both the sides were heard at length.
Case records carefully perused.
Briefly stated the facts of the case are that a search and seizure operation u/s.132 of the Act was conducted on 19.02.208 in the case of M/s. B.L. Kashyap and Sons Group of cases. A search also included the premises of the assessee. A search was also conducted at the residence of Sunil Khemka on 18.02.2008.
During the course of search at the residence of Sunil Khemka some incriminating documents were seized from the possession of Sunil Khemka. These documents contained handwritten diaries, spiral note books and ordinary note books maintained by Sunil Khemka in his own handwriting regarding day to day events of investments, profitability and progress of various projects undertaken by M/s. Akme Projects Ltd at Bangalore. Following documents seized from the premises of Sunil Khemka were taken for consideration by the AO in the impugned assessment proceedings:-
Basis the aforementioned documents on 18.06.2008 the statement on oath of the assessee was recorded by the AO who raised the following question and the assessee answered as under
Basis the above mentioned answer vide letter dated 15.04.2008 the assessee furnished the details of said surrender.
The relevant part of the details read as under :-
Mr. Vineet Kashyap Particulars 116300 From Residence 223 Sukhdev Vihar, New Delhi Cash in hand 51050750 As per seized Annexure No.9 as a whole a Investment in 170000000 and Particular and including Page No.68 of Akme Projects of the party No. LR 10, reflecting 221167050 hypothetical figure of Rs.16.28 crores as cash and Agreement did 04/04/07 read with other seized materials
Basis the aforementioned bifurcation and details of surrender in the computation of total income for A.Y. 2008-09 the assessee returned income u/s. 132 (4) of the Act totaling Rs.22,11,67,050/-which is evident from the pages 149 to 152 of the paper book.
A perusal of the assessment order for A.Y.2005-06 and 2006-07 show that in A.Y.2005-06 the AO has made addition of Rs.15.74 crores and in A.Y. 2006-07 addition of Rs. 0.54 crores have been made totaling to Rs. 16.28 crores.
Considering the aforementioned factual matrix we are of the considered opinion that since the entire income surrendered during the course of the search proceedings have been offered and taxed in A.Y.2008-09 which have been on the basis of the documents mentioned elsewhere found and seized from the premises of Sunil Khemka, once again the addition on the basis of the same document in A.Y.2005-06 and 2006-07 amounts to double addition which is not acceptable. Similar view was taken by this Tribunal in the case of K. K. Modi in which has been affirmed by the Hon’ble High Court of Delhi in ITA No.52/2021.
Considering the facts of the case in totality in the light of the aforementioned discussion we direct the AO to delete the impugned additions from the A.Y.2005-06 and 2006-07. Since we have directed the AO to delete the additions from A.Y. 2005-06 and 2006-07, appeal for A.Y.2008-09 becomes otiose.
Since we have deleted the additions on merits of the case, with the consent of all the representatives the jurisdictional issues raised in the grounds of appeal are left open.
In the result, all these three appeals filed by the assessee are allowed.
The order is pronounced in the open court on 24.03.2022 in the presence of both the rival representatives.