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Income Tax Appellate Tribunal, DELHI BENCH: ‘C’ NEW DELHI
Before: SHRI SUDHANSHU SRIVASTAVA & SHRI ANADEE NATH MISSHRA
(A) This appeal filed by the assessee is against impugned appellate order dated 20.01.2017 passed by the Ld. CIT (Appeals)-31, New Delhi for assessment year 2008-09. Following grounds of appeal have been raised as under :
“1. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has erred in concluding that Learned AO has correctly assumed jurisdiction to assess the assessee u/s 153A/143(3) of the Act, the whole action is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming addition of Rs.83,50,000/- on presumption basis that the assessee has received this amount of Rs.83,50,000/- in cash not declared in Registered Sale Deed on account of sale of first floor and barsati of property no. 31, Block J, South Extension Part I, New Delhi. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming the addition of Rs.83,50,000/- objected in ground no. 2 above on the basis of search and seizure conducted and alleged evidences found in premises of third party without following the proper procedure in the law before relying on those evidences therefore action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming addition of Rs.83,50,000/- on presumption
basis that the assesse has received this amount of Rs.83,50,000/- in cash not declared in Registered Sale Deed on account of sale of another property at ground floor no. 31, Block J, South Extension Part I, New Delhi. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming the addition of Rs.83,50,000/- objected in ground no.4 above on the basis of search and seizure conducted and alleged evidences found in premises of third party without following the proper procedure in the law before relying on those evidences therefore action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
6. On the facts and in the circumstances of the case and in law, the authorities below have erred in charging interest u/s 234A Rs.5,03,685/-, interest u/s 234B Rs.53,72,637/- and interest u/s 234C Rs.2,08,000/-. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed.
The appellant craves the right to add, submit, alter or withdraw any or all grounds of appeal before or on the date of hearing.
(B). The assessment order dated 30.03.2016 was passed u/s 253A/143(3) of Income Tax Act wherein two separate additions of Rs. 83,50,000/- each, total 1,67,00,000/- was made on account of alleged undisclosed cash received towards sale of properties. The assessee had 50% share in the aforesaid properties and the addition made by the Assessing Officer as aforesaid was 50% of the alleged total cash received by the two co-owners of the properties. The remaining 50% addition has been made in the hands of the other co-owner, namely Sh. Bharat Singh who also happens to be the brother of the assessee. The relevant portion of the assessment order is reproduced as under :-
(C). Aggrieved, the assessee filed appeal before the Ld. CIT(A) who, vide his impugned appellate order dated 20.01.2017, dismissed the assessee’s appeal and confirmed the aforesaid additions total 1,67,00,000/- was confirmed. The relevant portion of the aforesaid impugned order dated 20.01.2017 of the Ld. CIT(A) is reproduced as under :- “7.4 ……it is clear that the appellant had received a cash of Rs.83,50,000/- upon sale of Ist floor of the property. The ground floor of the same property was sold to the wife of the buyer of the lsl floor. Thus, the automatic conclusion is that the same also must have fetched an equal amount of cash, which has been added by Id. AO to the income of the appellant. 7.5 Various decisions relied upon by Id AR are distinguishable both on facts and law hence the reliance is not well placed. 7.6 In view of the above, I do not find any reason to interfere with the order of Id. AO. Accordingly, the addition of Rs. 1,67,00,000/- is confirmed and the ground nos. 3 to 8 are dismissed.”
(D). Aggrieved again, the assessee has filed this present appeal in ITAT against the aforesaid impugned appellate order dated 20.01.2017 of the Ld. CIT(A). In the course of appellate proceedings in ITAT, copy of order dated 25.01.2019 of co-ordinate Bench of ITAT, Delhi in the case of Sh. Bharat Singh (the other co-owner of the properties, was who also happens to the assessee’s brother) in was filed from the assessee’s side.
(E). At the time of hearing before us, the Ld. Authorised Representative (AR for short) of the assessee submitted at the outset that the issue in dispute in the present appeal is squarely covered in favour of the assessee by aforesaid order dated 25.01.2019 of Co-ordinate Bench of ITAT, Delhi in the case of the aforesaid Sh. Bharat Singh. He submitted that in identical facts and circumstances, additions have already been deleted by ITAT vide the aforesaid order dated 25.01.2019 of co-ordinate Bench of ITAT, Delhi; and contended that the additions made in the hands of the assessee also deserves to be deleted following the precedent in the case of Sh. Bharat Singh. The Ld. CIT-DR appearing for Revenue also agreed that the issues in dispute in the present appeal are squarely covered in favour of the assessee vide the aforesaid order dated 25.01.2019 of co-ordinate bench of ITAT, Delhi in the case of aforesaid Sh. Bharat Singh. Moreover, he could not bring out any distinguishing facts and circumstances in the case of the assessee to persuade us to take a view different from the view already taken by co-ordinate Bench of ITAT, Delhi in the case of aforesaid Sh. Bharat Singh. The Ld. CIT-DR further agreed that facts and circumstances in the case of assessee are identical to the facts and circumstances in the case of the aforesaid Sh. Bharat Singh.
(F). We have heard both sides and perused the materials on record. There is no dispute that the facts and circumstances in the case of the assessee are identical to facts and circumstances in the case of the aforesaid Sh. Bharat Singh in whose case co-ordinate bench of ITAT, Delhi has already deleted similar additions vide aforesaid order dated 25.01.2019. Neither side has brought any distinguishing facts and circumstances to our notice to persuade us to take a view different from the view taken already in identical facts and circumstances, in the case of aforesaid Sh. Bharat Singh; by co-ordinate Bench of ITAT, Delhi in the aforesaid order dated 25.01.2019 of ITAT. For ready reference the following portion of the aforesaid order dated 25.01.2019 of co-ordinate bench of ITAT, Delhi is reproduced :-
“5.14 ….we are of the opinion that no addition can be sustained only on the basis of the unsigned draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. Accordingly, we set aside the order of the Ld. CIT(A) and the Assessing Officer on the issue in dispute and direct the Assessing Officer to delete the addition of Rs.83,50,000/- for alleged cash received on sale of 1st floor of the property under reference. The grounds No. 2 and 3 of the appeal are, accordingly, allowed.
In ground 4 and 5 of the appeal, similar addition of Rs.83,50,000/- has been made in respect of the ground floor of the same property sold by the assessee on the basis of the draft agreement to sale discussed in Grounds No. 2 and 3 of the appeal. The Grounds No. 2 and 3 of the appeal have already been allowed and thus, to have consistency in our decision on the issue in dispute, the ground no. 4 and 5 of the appeal are also allowed.”
(G). Respectfully following the aforesaid decision of co- ordinate Bench of ITAT, Delhi in the case of aforesaid Sh. Bharat Singh in whose case vide aforesaid order dated 25.01.2019, co-ordinate Bench of ITAT, Delhi has already deleted similar additions in identical facts and circumstances, we also decide the issues in dispute in the present appeal in favour of the assessee and direct the Assessing Officer to delete the aforesaid two separate additions, each of Rs. 83,50,000; totaling Rs.1,67,00,000/-.
(H). In result, appeal of the assessee is allowed. Order pronounced in the open court on 08/01/20.