SHRI VISHVENDU GUPTA,KANPUR vs. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, KANPUR

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ITA 51/LKW/2018Status: DisposedITAT Lucknow22 August 2019AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the issue of additions based on gifts, in the absence of incriminating material, is a mixed question of fact and law. Therefore, it cannot be decided at the Tribunal level without a prior decision by the CIT(A).

What were the facts?

A search and seizure operation was conducted, leading to the reopening of assessments under Section 153A. Additions were made based on gifts received by the assessee, but no incriminating material was found during the search.

What were the issues?

Whether additions can be made based on gifts received when no incriminating material was found during a search and seizure operation, and whether this is a pure question of law or a mixed question of fact and law.

Which sections of the Income-tax Act were involved?

Section 153A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, LUCKNOW BENCH ”A“, LUCKNOW

Before: SHRI. A. D. JAIN & SHRI. T.S. KAPOOR

For Appellant: Shri S. K. Garg, Advocate, Shri P. K. Kapoor, C.A
For Respondent: Shri A. K. BAR CIT (DR)

PER BENCH: This is a group of five appeals filed by the assessee against the common and consolidated order of the ld. CIT(A) dated 29/11/2017. The assessee has taken various grounds of appeal in these cases and all the grounds of appeals are similar and therefore, were heard together and therefore, for the sake of convenience, a common and consolidated order is being passed.

2.

At the outset, Learned A. R. submitted that a search & seizure operation took place on Dolphin Developers Ltd. and also on the individuals residing together at the address mentioned in the Panchnama. It was Assessment Years:2009-10 to 2013-14 2

submitted that in view of the search, the cases of the assessee were reopened u/s 153A of the Act and in view of the provisions of section 153A, the assessee had duly filed returns for the relevant assessment years. However, it was submitted that no incriminating material was found during search & seizure operation and the assessments of the years under consideration stood completed and therefore, no addition could have been made except on account of incriminating documents. It was submitted that in all these five years the additions have been made only on the basis of certain gifts received by the assessee. It was submitted that during search & seizure operation, no document, what to talk of incriminating document regarding gift, was found and therefore, the authorities below have wrongly confirmed the addition as the additions sustained by learned CIT(A) are against the provisions of law settled by various courts and specific reference was made to the decision of Delhi Bench of the Tribunal in the case of MGF CIT(A) on this ground, Learned A. R. submitted that he has dismissed this ground of appeal holding the same to be general in nature and in this respect our attention was invited to page 3 of CIT(A)’s order for assessment year 2009-10. However, it was submitted that since this was a legal question therefore, even if learned CIT(A) has not decided the issue, the Tribunal was competent to decide the same.

3.

Learned D. R., on the other hand, submitted that this is a mixed question of facts and law therefore, it will be appropriate to set aside the matter to the file of learned CIT(A) to redecide the issue on this legal and factual ground.

Assessment Years:2009-10 to 2013-14 3

4.

We have heard the rival parties and have gone through the material placed on record. We find that the additions in the five years have been made only on account of certain gifts received by the assessee during these years. Though there is no mention of any incriminating material in the assessment order but still the question to be decided by us is not a pure question of law but it is a mixed question of facts and law and therefore, this question cannot be decided here unless the learned CIT(A) is given opportunity to decide the issue first. Therefore, we deem it appropriate to remit the issue back to the file of learned CIT(A) who should decide the ground on legality of assessment, which was raised before him vide ground No. 7 in assessment year 2009-10 to assessment year 2012-13 and vide ground No. 6 in assessment year 2013-14. Needless to say that assessee will be provided sufficient opportunity of being heard.

5.

In the result, all the appeals are allowed for statistical purposes.

(Order pronounced in the open court on 22/08/2019) . . Dated:22/08/2019 *Singh

Copy of the order forwarded to :

1.

The Appellant

2.

The Respondent.

3.

Concerned CIT

4.

The CIT(A)

5.

D.R., I.T.A.T., Lucknow

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