DCIT, NEW DELHI vs. TUSHAR KUMAR, NEW DELHI

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ITA 3796/DEL/2010Status: DisposedITAT Delhi10 February 2021AY 2006-079 pages

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

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s order, finding that the major credit entries were explained by confirmations from parties like GTM Builders & Promoters, Ansal Properties Ltd., and The Seth Vihar CGHS Ltd. Any unreconciled difference was already declared as business income.

What were the facts?

The Assessing Officer (AO) added Rs. 56,90,039/- to the assessee's income as unexplained bank credit entries. The AO included reversal entries and failed to correctly calculate the total credit entries. The CIT(A) deleted this addition, finding the entries to be explained.

What were the issues?

Whether the CIT(A) erred in deleting the addition for unexplained bank credit entries by admitting additional evidence and not allowing the AO to examine the chargeability of the source of entries. Also, whether the addition on a protective basis for undisclosed income from sale of flats was warranted.

Which sections of the Income-tax Act were involved?

Section 133A,Section 132(4A),Section 292-C

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI

Before: Sh. Amit ShuklaDr. B. R. R. Kumar

For Respondent: Ms. Sunita Singh, CIT DR
Hearing: 12.01.2021Pronounced: 10.02.2021

Per Dr. B. R. R. Kumar, Accountant Member:

1.

The present appeal has been filed by the revenue against the order of ld. CIT(A)-1, New Delhi dated 28.05.2010.

2.

Following grounds have been raised by the revenue: “1. The order of the Ld. CIT (A) is not correct in law and facts.

2. In the facts and circumstances of the case, Learned CIT(A) has erred in law and on facts in deleting the addition of Rs. 56,90,039/- towards unexplained bank credit entries not explained before, AO, while admitting addition evidence in the form of confirmations, in violation of provisions of Rule - 46A(3) of Income Tax Rules, 1962.

3. In the facts and circumstances of the case, Learned CIT(A) has erred in law and on facts in deleting the addition of Rs. 56,90,039/- towards unexplained bank credit entries without examining the chargeability of the source of such entries to Income Tax and without giving opportunity to AO to examine the same.

4. In the facts and circumstances of the case, Learned CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,92,00,000/- on protective basis, towards undisclosed income on sale of flats as recorded in documents seized during search in GTM Group and impounded during survey under section 133A, showing payments to the assessee while ignoring the provisions of section 132(4A) and 292-C of Income Tax Act 1961. Learned CIT(A) has also deleted the addition of substantive basis in the case of M/s GTM Builders and Promoters Private Limited.”

Credit entries in the Bank Account: Ground Nos.2 & 3

3.

The Assessing Officer on perusal of the bank account no.01321000057551 in the name of Tushar kumar with HDFC Bank, Palam Vihar, New Delhi found that there were some debit and credit entries. The AO held that the assessee has not explained the narration for debited entries, as well as some of credit entries. Further, it was held that a credit entry of Rs.25,00,000/- on 11.08.2005, for which the assessee has not given any narration. On 08.08.2005, before this credit entry the assessee was having a balance of Rs.4085/-. It was held that on 12.08.2005, the assessee has transferred Rs.24,50,000/- in GTM Builder & Promoters Pvt. Ltd. as introduction share capital.

Since, the assessee has failed to explain the bank entries appearing in the bank statements, the Credit entries which have no explanations were treated as unexplained income and added to the income of the assessee. The total of these entries work out by the AO are to the tune of Rs.76,90,039/-. However, as a sum of Rs.20,00,000/- declared by the assessee as income from various miscellaneous works of civil nature for different parties, the addition of Rs.56,90,039/-(Rs.76,90,039/- - Rs.20,00,000/-) was made to the income of the assessee as unexplained income.

4.

Aggrieved the assessee filed appeal before the ld. CIT (A).

5.

The ld. CIT (A) deleted the addition on the grounds that the entries have been duly explained.

6.

Aggrieved with the order of the ld. CIT (A), the revenue filed appeal before us.

7.

Heard the arguments of both the parties and perused the material available on record.

8.

We have perused the documents and the explanation, the details of the bank entries are as under: S.No. Date Particulars Ch. No. Receipts Amount 1 01.04.2005 Tushar Malik Rs. 98/- 07.04.2005 Director Remuneration 2 Rs. 20,000/- 3 07.05.2005 GTM Builders & 196868 Rs. 18,000/- Promoters Pvt. Ltd. 4 16.05.2005 Cash deposited Rs. 20,000/- 5 30.05.2005 GTM Builders & 205963 Rs. 18,000/- Promoters Pvt. Ltd. 30.05.2005 GTM Builders & 205964 Rs. 100,000/- 6 Promoters Pvt. Ltd.

7 23.06.2005 GTM Builders & 205909 Rs. 2,00,000/- Promoters Pvt. Ltd. 8 25.06.2005 GTM Builders & 205912 Rs. 32,400/- Promoters Pvt. Ltd. 9 30.06.2005 Tushar Malik Rs. 9/- 10 11.07.2005 Tushar Malik 205944 Rs. 20,000/- 16.07.2005 GTM Builders & 217781 Rs. 32,400/- 11 Promoters Pvt. Ltd. 02.08.2005 GTM Builders & 217800 Rs. 17,400/- 12 Promoters Pvt. Ltd. 13 11.08.2005 Ansal Properties Ltd. 771068 Rs. 25,00,000/- 14 31.08.2005 Tushar Malik 217944 Rs. 11,400/- 15 14.09.2005 GTM Builders & 217959 Rs. 32,400/- Promoters Pvt. Ltd. 16 16.09.2005 Tushar Malik Rs. 2,800/- 17 26.09.2005 Tushar Malik 217995 Rs. 73,200/- 1 28.09.2005 Tushar Malik 217998 Rs. 17,000/- 18 19 30.09.2005 Tushar Malik Rs. 31/- 20 10.10.2005 GTM Builders & 227427 Rs. 34,650/- Promoters Pvt. Ltd. 21 18.10.2005 The Seth Vihar CGHS 404000 Rs. 3,00,000/- Ltd. 22 19.10.2005 Tushar Malik 113008 Rs. 6,00,000/- 23 31.10.2005 Tushar Malik 228401 Rs. 23,830/- 24 03.11.2005 Gautam Kumar 751416 Rs. 8,00,000/- 25 03.11.2005 Tushar Malik 228404 Rs. 6,000/- 05.11.2005 GTM Builders & 228417 Rs. 8,00,000/ - 26 Promoters Pvt. Ltd. 27 10.11.2005 GTM Builders & 228424 Rs. 34,650/- Promoters Pvt. Ltd. 28 07.12.2005 Tushar Malik 228487 Rs. 50,167/- 29 31.12.2005 Tushar Malik Rs. 188/- 30 05.01.2006 GTM Builders & 228574 Rs. 2,00,000/- Promoters Pvt. Ltd. 31 12.01.2006 GTM Builders & 228588 Rs. 43,330/- Promoters Pvt. Ltd. 32 14.02.2006 GTM Builders & 240335 Rs. 33,330/- Promoters Pvt. Ltd. 15.02.2006 Tushar Malik 33 240357 Rs. 36,152/- 34 28.02.2006 GTM Builders & 240388 Rs. 33,330/- Promoters Pvt. Ltd. 35 06.03.2006 Cash deposited Rs. 100/- 36 13.03.2006 Tushar Malik 240230 Rs. 10,735/- 37 23.03.2006 Tushar Malik 240256 Rs. 37,839/ -

38 27.03.2006 Other Income 817026 Rs. 2,25,100/- Total(A) Rs. 63,84,539/- Entries considered by the Assessing Officer in Credit entries which are actually reversal entries For cheques returned S. No. Date Particulars Ch. No. Receipts Amount 1 05.11.2005 Cheque Returned 398932 Rs. 6,00,000/ - 2 05.11.2005 Cheque Returned 398933 Rs. 2,00,000/- 3 06.01.2006 Cheque Returned 398944 Rs. 5,00,000/ - 4 06.03.2006 Cheque Returned 400137 Rs. 5,000/- 5 13.08.2005 Cheque Returned 246775 Rs. 500/- Total(B) Rs. 13,05,500/- Gross Total(A+B) Rs. 76,90,039/-

9.

It was argued that the Assessing Officer has wrongly worked out the credit entries at Rs. 76,90,039/- in the bank statement instead of actual credit entries Rs. 63,84,539/- and according to the Assessing Officer the addition should have been (Rs. 63,84,539/- - Rs. 20,00,000/- = Rs. 43,84,539/-). Whereas, the Ld. Assessing Officer has made the addition of Rs. 56,90,039/- without looking the facts relating to the credit entries in the bank statement.

10.

It was submitted that actual credit entries amounting to Rs.63,84,530/- consists of the following credits:

Date Cheque No Received from Amount 30.05.2005 205964 GTM Builders & Promoters 1,00,000 23.06.2005 205909 -do- 2,00,000 11.08.2005 246775 Ansal Properties Ltd 25,00,000 18.10.2005 404000 The Seth Vihar CGHS Ltd 3,00,000 19.10.2005 113008 GTM Builders & Promoters 6,00,000 03.11.2005 751416 Gautam Kumar 8,00,000 05.11.2005 228417 GTM Builders & Promoters 8,00,000 05.01.2006 228574 GTM Builders & Promoters 2,00.000 55,00,000

11.

The rest of the credits are small receipts from GTM Builders & Promoters and Rs. 2,25,100/- representing other income. Confirmation in respect of GTM Builders & Promoters, Ansal Properties, The Seth Vihar CGHS Ltd. Gautam Kumar were filed.

12.

Having examined the observations of the Assessing Officer and the submissions made by the assessee, the total credit entries after taking out the cheques reversed works out to Rs.63,84,539/- as under: S. No. Date Particulars Ch. No. ReceiptsAmount 1 01.04.2005 Tushar Malik Rs. 98/- 2 07.04.2005 Director Remuneration Rs. 20,000/- 3 07.05.2005 GTM Builders &196868 Rs. 18,000/- Promoters Pvt. Ltd. 4 16.05.2005 Cash deposited Rs. 20,000/- 5 30.05.2005 GTM Builders Promoters &205963 Rs. 18,000/- Pvt. Ltd. 6 30.05.2005 GTM Builders &205964 Rs. 100,000/- Promoters Pvt. Ltd. 7 23.06.2005 GTM Builders &205909 Rs. 2,00,000/- Promoters Pvt. Ltd. 8 25.06.2005 GTM Builders &205912 Rs. 32,400/- Promoters Pvt. Ltd. 9 30.06.2005 Tushar Malik Rs. 9/- 10 11.07.2005 Tushar Malik 205944 Rs. 20,000/- 11 16.07.2005 GTM Builders & 217781 1Rs. 32,400/- Promoters Pvt. Ltd. 12 02.08.2005 GTM Builders & 217800 Rs. 17,400/- Promoters Pvt. Ltd. 13 11.08.2005 Ansal Properties Ltd. 771068 Rs. 25,00,000/- 14 31.08.2005 Tushar Malik 217944 Rs. 11,400/- 15 14.09.2005 GTM Builders & 217959 Rs. 32,400/- Promoters Pvt. Ltd. 16 16.09.2005 Tushar Malik Rs. 2,800/- 17 26.09.2005 Tushar Malik 217995 Rs. 73,200/- 18 28.09.2005 Tushar Malik 217998 Rs. 17,000/- 19 30.09.2005 Tushar Malik Rs. 31/- 20 10.10.2005 GTM Builders & 227427 Rs. 34,650/- Promoters Pvt. Ltd.

21 18.10.2005 The Seth Vihar CGHS 404000 Rs. 3,00,000/- Ltd. 22 19.10.2005 Tushar Malik 113008 Rs. 6,00,000/- 23 31.10.2005 Tushar Malik 228401 Rs. 23,830/- 24 03.11.2005 Gautam Kumar 751416 Rs. 8,00,000/- 25 03.11.2005 Tushar Malik 228404 Rs. 6,000/- 26 05.11.2005 GTM Builders & 228417 Rs. 8,00,000/- Promoters Pvt. Ltd. 27 10.11.2005 GTM Builders & 228424 Rs. 34,650/- Promoters Pvt. Ltd. 28 07.. Tushar Malik 228487 Rs. 50,167/- 12.2005 29 31.12.2005 Tushar Malik iRs. 188/- 30 05.01.2006 GTM Builders & 228574 Rs. 2,00,000/ - Promoters Pvt. Ltd. 31 12.01.2006 GTM Builders & 228588 Rs. 43,330/- Promoters Pvt. Ltd. 32 14.02.2006 GTM Builders & 240335 Rs. 33,330/ - Promoters Pvt. Ltd. 33 15.02.2006 Tushar Malik 240357 Rs. 36,152/- 34 28.02.2006 GTM Builders & 240388 Rs. 33,330/ - Promoters Pvt. Ltd. 35 06.03.2006 Cash deposited Rs. 100/- 36 13.03.2006 Tushar Malik 240230 Rs. 10,735/- 37 23.03.2006 Tushar Malik 240256 Rs. 37,839/- 38 27.03.2006 Other Income 817026 Rs. 2,25,100/- Total(A) Rs.63,84,539/- Entries considered by the Assessing Officer in Credit entries which are actually reversal entries

13.

The details of the cheque returned is as under:

For cheques returned So Date Particulars Ch. No. Receipts No. Amount 1 05.11.2005 Cheque Returned 398932 Rs. 6,00,000/- 2 05.11.2005 Cheque Returned 398933 Rs. 2,00,000/- 3 06.01.2006 Cheque Returned 398944 Rs. 5,00,000/ - 4 06.03.2006 Cheque Returned 400137 Rs. 5,000/- 5 13.08.2005 Cheque Returned 246775 Rs. 500/- TotalfB) Rs. 13,05,500/- Gross Total(A+B) Rs. 76,90,039/-

14.

Thus, the major credit entries were of Rs.55,00,000/- as shown in the table above at para.

15.

The entries considered by the Assessing Officer includes bank reversal entries too. The explanation of the credit entries has been examined which are received from Ansal Properties Ltd., The Seth Vihar, CGHS Ltd. and the remaining from flagship company of the assessee. There has been an unreconciled difference of Rs.8,84,500/- which has been already declared as business income of Rs.20,00,000/- in the return filed in response to the notice u/s 153A of the Income Tax Act, 1961. Since, the balance amount stands offered to tax and the other credit entries have been duly explained. We decline to interfere with the order of the ld. CIT (A) on this issue.

16.

Ground No. 4 deals with undisclosed income assessed in the hands of the assessee on protective basis. The amounts were held to be received from sale of flats. The matter has already been dealt in the case of GTM Builders & Promoters Pvt. Ltd. in A.Y. 2006-07 under the head unaccounted income from sale of flats in Cooperative Societies vide para no. 30 to 32 wherein it was held that the addition was unwarranted.

17.

Hence, the appeal of the revenue on this ground is liable to be dismissed.

18.

In the result, the appeal of the revenue is dismissed. Order Pronounced in the Open Court on 10/02/2021.

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