Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH: ‘B’ NEW DELHI
Before: SHRI R.K.PANDA & SHRI SUDHANSHU SRIVASTAVA
PER SUDHANSHU SRIVASTAVA, J.M. This appeal is preferred by the assessee against order dated 31.01.2017 passed by the Ld. CIT (Appeals) – IV, Kanpur and pertains to assessment year 2015-16.
The brief facts of the case are that a search and seizure operation u/s 132 of the Income Tax Act, 1961 (hereinafter called as the ‘Act’) was carried out in the premises of the assessee comprising of Cloud-9 and Sethi Group of cases on 13.05.2014.
During the course of search operation at the residential premises of the assessee at E-18, Preet Vihar, New Delhi-92, the income tax officials found cash of Rs. 1,64,22,360/-. The tax officials seized cash of Rs. 1,60,00,000/- and also seized certain documents and also recorded the statement of the assessee u/s 132(4) of the Act.
Another statement of the assessee was recorded u/s 132(4) on 23.06.2014. In the first statement recorded on 13.05.2014 the assessee, when inquired about the cash found in his premises, submitted that the mother-in-law of his brother had expired and, therefore, he was to go to the cremation and he was not in a mental state to give details and that the same will be provided in due course of time. During the recording of the second statement of oath u/s 132(4) of the Act, the assessee stated that he had received cash of Rs. 1,82,01,920/- on sale of 96,000 shares in the Mehta Art Press Pvt. Ltd. over and above Rs. 3,19,99,680/- received through cheques and also stated that the entire sale consideration received through cheques as well as in cash will be considered while filing the return of income for assessment year 2014-15.
2.1 The assessee filed the return of income for the year under consideration on 30.09.2015 declaring a total income of Rs. 62,42,990/-. Before the AO, the assessee submitted that the assessee had already taken into consideration the cash of Rs. 1,82,90,920/- in the computation of capital gains for assessment year 2014-15 and, therefore, the same was not to be considered in assessment year 2015-16 i.e. the year under consideration.
However, the AO did not accept the assessee’s submission and proceded to add the impugned amount of Rs. 1,64,22,360/- to the income of the assessee and completed the assessment at Rs. 2,26,65,350/-.
2.2 Aggrieved, the assessee approached the Ld. CIT (A) who also upheld the addition. Now the assessee has approached the ITAT against the order of the Ld. CIT (A) upholding the impugned addition.
The Ld. Authorised Representative submitted that it is settled principle of law that same amount cannot be taxed twice. It was submitted by the Ld. AR that with respect to the impugned cash found during the course of search and amounting to Rs. 1,64,22,360/- it had been submitted before the AO that this amount represented the sale consideration of shares of Mehta Art Press Pvt. Ltd. and the same had already been offered for tax in assessment year 2014-15. The Ld. Authorised Representative further submitted that both the AO as well as the Ld. CIT (A) had not considered the second statement of the assessee which was recorded on 23.06.2014 and had also not examined the veracity of the assessee’s statement from the income tax return and the related records of assessment year 2014-15 in which the amount had already been offered for tax. It was submitted that the lower authorities could not disprove the explanation offered by the assessee regarding the source of cash. Our attention was also drawn to question no. 17 of the statement recorded on 23.06.2014 wherein the assessee had specifically stated that the cash was received on account of sale of shares held by him in Mehta Art Press Pvt. Ltd. The Ld. Authorised Representative also drew our attention to computation of income attached with the return of income for assessment year 2014-15 and showed that income from long term capital gain on sale of shares had been reflected in this computation of income. It was prayed that the impugned addition be deleted.
In response, the Ld. Sr. Departmental Representative vehemently placed reliance on the concurrent findings of both the lower authorities and submitted that the assessee had made contradictory statements before the two lower authorities and further that the explanation regarding sale of shares was an afterthought. It was also submitted that no person of ordinary prudence will keep this much of cash at his residence. It was also submitted that there was no evidence linking the money seized with the share consideration.
We have heard the rival submissions and have also perused the material on record. It is seen that the assessee had specifically replied in answer to question no. 17 in his statement recorded u/s 132(4) of the Act on 23.06.2014 that the cash pertained to the cash component of the sale of shares. It was also submitted before the AO that the amount of long term capital gains from the sale of shares have been offered to tax in the preceding assessment year i.e. AY 2014-15. However, both the lower authorities have simply brushed aside the assessee’s explanation without verifying the veracity of assessee’s claim. It is our considered opinion that in the interest of justice this issue should be re-examined by the Assessing Officer. Accordingly, we restore the issue to the file of the Assessing Officer with a direction to duly the second statement of the assesse which was recorded on 23.06.2014 and to further relate the same with the return of income filed for assessment year 2014-15 and thereafter pass the order in accordance with law after giving due opportunity to the assessee to present his case.
Accordingly, the grounds raised by the assessee stand allowed for statistical purposes.
In the final result, appeal of the assessee stands allowed for statistical purposes.
Order pronounced in the open court on 30.07.2018