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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 198/JP/2013
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh dqy Hkkjr] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 198/JP/2013 fu/kZkj.k o"kZ@Assessment Year : 2007-08 cuke DCIT Central Circle-1, Shri Ram Babu Gupta, Vs. Jaipur 12-13, Patel Colony, Sardar Patel Marg, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACPPG7427A vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@Revenue by : Shri R.A.Verma (Addl.CIT) fu/kZkfjrh dh vksj ls@Assessee by : Shri S.L. Poddar (Advocate) lquokbZ dh rkjh[k@ Date of Hearing : 14/02/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement: 28/03/2017 vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the Revenue against the order of ld. CIT(A), Alwar dated 18.12.2012 for A.Y. 2007-08 wherein Revenue has taken the following grounds of appeal. “(i) On the facts and in the circumstances of the case, the Ld. CIT(A), Alwar has erred in directing “to allow set off of Rs. 2,51,60,000/- instead of Rs. 1,28,00,000/- notwithstanding the fact that assessed income would fall to Rs. 7,37,94,94,065/- i.e. below the returned income of Rs. 8,27,40,410/-“, which directions are against the
2 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
findings of CIT(A) and ITAT in original appellate orders reproduced by the AO in the set-aside assessment order. (ii) On the facts and in the circumstances of the case, the Ld. CIT(A), Alwar has erred in directing to compute the income below the income declared by the assessee himself in his return of income. (iii) On the facts and in the circumstances of the case, the Ld. CIT(A) has exceeded his powers in directing to allow the set off over and above the amount determined by the appellate authorities in the original appellate proceedings.
It is noted that this is the second round of appeal where the
matter has reached the Tribunal. The genesis of this appeal lies in the
the additional ground of appeal which was taken by the appellant in the
first round of appeal before the Tribunal. Here it would be relevant to
refer to the findings of the ld CIT(A) in the first round of appeal which
was the subject matter of appeal before the Coordinate Bench and
which formed the basis of filing the additional ground of appeal before
the Tribinal:
“As regards to addition of undisclosed profit from the sale of
Mahala property amounting to Rs. 12800000/- it is submitted that the
sale of property under question was made on 3.7.2006 which is beyond
the AY under appeal i.e. the same relates to AY 2007-08. Thus no
addition can be made in the year relevant assessment year the
3 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
undisclosed profit from the sale of Mahala Property amounting to Rs.
12800000/-. More over the ld A/R submits that since the property is
owned by the company no addition can be made in the case of assessee
individual. This argument of the A/R is found unacceptable as above on
the ground that the assessee himself taken the responsibility to pay the
additional tax on the income arising out of undisclosed transactions of
the individuals or companies of assessee group in his statements u/s
132(4) of the IT Act. Since the undisclosed transactions are carried out
by the assessee individual capacity on behalf of other individual or
company the undisclosed income arising out of undisclosed transactions
is correctly assessed in the hands of the assessee individual on his own
expressed taking of responsibility. The total sale of property under
question is found by the AO Rs. 37660000 on the basis of seized papers
as against Rs. 12500000/- as per sale deed in the name of company as
against purchase by the company for a sum of Rs. 24805000 on the
basis of seized materials. Therefore, there was undisclosed transactions
of purchase and sale of this property other than the sale deeds in the
name of company. Thus the profit arising out of the undisclosed
transactions Rs. 12800000 can be assessed in the hands of the assessee
individual. However the property stands sold on 3.7.2006 as per date of
sale deed. Therefore the undisclosed profit is to be considered in the
4 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
year of its sale i.e. in AY 2007-08 and the addition of undisclosed profit
Rs. 12800000 during this year is deleted. However a due set off should
be allowed if similar profit arise in AY 2007-08 from the purchase and
sale of this property with the surrendered amount of undisclosed
investments from properties by the assessee group in AY 2007-08.”
2.1 In the above background, the additional ground of appeal was
filed by the appellant and we now refer the observations and the finding
of the Coordinate Bench in respect of the said additional ground of
appeal filed by the appellant which reads as under:-
“49. After going through the written submission and taking into
consideration the arguments of the parties, we find that facts are not
clear in respect of the issue raised through additional grounds. Addition
directed to be made for AY 2007-08 has not been challenged by the
assessee. However assessee is asking to allow set off of undisclosed
profit of Rs. 1.28 crores against the amount surrender by the assessee.
Since the facts are not clear, therefore, we are of view that this matter
should go back to the file of AO to consider the submission of the
assessee. There is no dispute that set off is allowable against
surrendered amount. However, onus is on the assessee to prove that
the surrendered amount was available with the assessee for allowing set
5 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
off against the income added by the AO or by the ld. CIT(A). If the set
off is not allowed, then it will tantamount to double taxation. Therefore,
the set off has to be allowed.
One of the contentions of the assessee that the AO is not allowing
set off for the reason that if set off is allowed, then the assessed income
will be reduced or not. The question is to allow set off. The AO has
added the amount for AY 2006-07. However the ld CIT(A) has directed
to add this amount for AY 2007-08. Therefore, for this reason if the
assessed income of the AY 2006-07 becomes less than the disclosed
income, then effect has to be given as per direction of ld CIT(A) as
assessee has not filed any appeal against such findings of ld CIT(A).
In view of these facts and circumstances, we set aside this issue
to the file of AO to examine the additional grounds in the light of our
observation as above and after taking into consideration the written
submission filed on behalf of the assessee here before the Tribunal. The
assessee may be allowed reasonable opportunity of being heard. We
order accordingly.”
2.2 In view of the above directions of the Coordinate Bench in respect
of the additional ground of appeal, the matter was again taken up for
fresh consideration by the Assessing officer and the relevant finding of
6 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
the Assessing officer are contained at para No. 17 to 20 of its order
which is reproduced as under:-
“17. Above submissions are carefully considered and the same are found
to be not acceptable being beyond the directions of the higher
authorities. There is no directions of set off of entire sale proceeds of
Mahala property either by the CIT(A) or by the ITAT. Where the
directions of the CIT(A) are clear that set off be allowed of profit earned,
if the same profit is part of surrender in AY 2007-08. The directions of
the ITAT are that set off of profit be allowed to the assessee subject to
proof by the assessee that surrendered amount was available with the
assessee for allowing set off against the income added by the AO.
Assessee has never claimed set off of entire sale proceeds before the
CIT(A) or the ITAT. So there is no question of allowing of set off of
profit of Rs. 1.28 crores against the investment in AY 2007-08. Now the
A/R wants to travel beyond the directions of the higher authorities which
cannot be done in set aside/restored proceedings. In such proceedings
the AO is restricted to act strictly in accordance with the directions of the
higher authorities.
It may be seen from the order of the ld CIT(A) that set off of
profit part could only be allowed if the same profit arises in AY 2007-08
7 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
from sale and purchase of this property with the surrendered amount of
undisclosed investment from properties in AY 2007-08. The assessee
has not been able to provide any details in this respect. Undisputedly
the profit was earned in AY 2007-08 instead of AY 2006-07 and
therefore the same amount was excluded from the assessed income of
AY 2006-07 and it was required to be added separately in AY 2007-08
subject to specific observation of the CIT(A) that a due set off should be
allowed if similar profit arises in AY 2007-08 from purchase and sale of
this property with the surrendered amount of investment. The assessee
has not been able to provide any details as to how he has computed the
revised income before the AO at the time of giving effect to the order of
CIT(A). It may be seen that the assessee has declared following
undisclosed income in AY 2007-08 as referred in para 5.1 of the asstt
order:-
S. No. Details of income surrender Amount
Undisclosed investment made in the property at NRI colony Jaipur on Rs. 5340000 the basis of seized Annex A-1 and other papers
Undisclosed investment made in the property at Shri Nath Nagar, Jaipur Rs. 816000 on the basis of seizes annexure A-4 Page 6 and other seized annexures
Undisclosed investment made in the property at C-10, Jai Singh Rs. 16500000 Highway, Jaipur on the basis of Annexure A-4, page 1 to 24, A-15 page
8 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
1 to 40 and other seized Annexures
Undisclosed investment made in the property at Subhash Chowk Amer Rs. 3015000 Road Jaipur on the basis of seized annexure A-6, page 44, A-10 page 12 to 18, A-13 page 1 to 39 and other seized Annexures
5 Undisclosed investment made in the excess stock found during the Rs. 28000000 course of search in the business concern
Rs. 48336340
It may be seen that the above details of undisclosed income no
where prescribes the profit earned on sale of Mahala property as
directed by the ld CIT(A) and therefore question of giving set off has no
relevance. From the order of the ld CIT(A) it may further be seen that
the disclosed investment in the said property was only of Rs. 10936055
whereas the AO found undisclosed investment in the said property of Rs.
1.50 crores in this property which stands considered in AY 2006-07 and
also partly confirmed by the CIT(A). Now the only question remained is
of set off of profit of Rs. 1.28 crores on the date of sale of the property if
the same is part of surrender in AY 2007-08 as per the directions of the
ld CIT(A) but it is not so as is evident from the chart of unaccounted
income surrendered in the return, details of which are reproduced
9 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
above. As such the assessee does not deserve any set off, if the
directions of the ld CIT(A) are considered.
However, the directions of the ITAT are on different footings
directing to set off of this amount of profit as available for undisclosed
investments surrendered by the assessee in AY 2007-08 because if it
was not done it would amount to double taxation once in the form of
earning of profit and then in the form of undisclosed investment.
Accordingly, following the directions of the ITAT set off of profit earned
from this property is allowable, if it is used for investment in other
properties which have been surrendered in AY 2007-08 are made after
the sale of the Mahala property i.e. 3.6.2007 or before this date, the
assessee was specifically asked to provide the date wise details of
undisclosed investment in AY 2007-08. But the assessee has not
furnished date wise details of investment in AY 2007-08 but has claimed
that such set off is allowable against surrender of stock of Rs.2.80
crores. Since search was carried out on 1.11.2006 whereas the property
was sold on 3.7.2006, set off of profit can be allowed against this
disclosure of stock on 1.11.2006. Accordingly set off of profit of Rs.1.28
crores is allowed against undisclosed/excess stock surrendered.
10 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
With these remarks income of the assessee is computed as under
giving effect to the order of the ITAT and present proceedings.
Income as per order u/s/154/143(3)/153A dated 28.1.2009 Rs.89551227 (LTCG Rs9519089+Rs.80032138) Less relief allowed by the ld CIT(A) (i) On account of un-named property (-) Rs.2000000 (ii) On account of MI Road property (-) Rs.3075000 (-)Rs.5075000 Less:- LTCG on MI Road property to be Considered based on DVO report Rs.2270079 Add:- Capital gain on MI Report as per DVO reports as discussed Rs.1002862 Add:-Part Investment in Mahala property pertaining to This year as per order of the CIT(A) Rs.4504000 Add:- Profit on sale of Mahala property Rs.12800000 Less:- Set off for investment in undisclosed Stock surrendered as discussed Rs.12800000 Rs. NIL Total Income Rs.87713010
2.3 Being aggrieved with the above order of AO, the assessee carried
the matter in appeal before the ld. CIT(A) and his findings are contained
at para 4.3 of its order which is reproduced below:-
“4.3 I have considered the assessment order of the AO u/s
254/250/154/143(3) dated 28.12.2011 and the submissions made by the
AR of the appellant.
(i) I am inclined to agree with the observation of the AO that the AO
has to act strictly in accordance with the findings and directions of
the higher authorities in set aside proceedings and while giving
effect to appellate orders. The findings and directions by the ld.
11 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta CIT(A) with respect to Mahla property in order dated 19.05.2009
are as under:-
(a) Para 1,2 & 3 page 31:
• The undisclosed investment in the form of cash payment for
purchase of Mahla property at Rs. 95,15,000/- is confirmed.
Balance Rs. 328,390/- is deleted.
• Outstanding liability for payment for purchase Rs.
45,04,000/- is to be considered in next year as investment
on actual payment basis. Similarly sale proceeds of this
purchase may be set off with the available surrender of the
investment in next assessment year if co-related.
• Thus the profit arising out of the undisclosed transactions
Rs. 128,000,000/- can be assessed in the hands of the
assessee individual. However, the property stands sold on
03.07.2006 as per the date of sale deed. Therefore, the
undisclosed profit is to be considered in the year of its sale
i.e. in AY 2007-08 and the addition of the undisclosed profit
of Rs. 128,00,000/- during the relevant assessment year is
deleted. However, a due set off should be allowed if similar
12 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
profit arises in assessment year 2007-08 from the purchase
and sale of this property with the surrendered amount of
undisclosed investment for properties by the assessee group
in AY 2007-08.
Thus, there is a clear finding of ld. CIT(A) that undisclosed
investment of Rs. 45,04,000/- in Mahla property and similar profit
arising on its sale is to be assessed to tax in AY 2007-08 as against
addition of Rs. 1.28 crores made by the AO in AY 2006-07. Further,
there is a direction to give set off of sale proceeds of this purchase
and of profits arising on its sale in AY 2007-08.
The AO has accordingly added Rs. 45,04,000/- and Rs. 1.28 crores
in AY 2007-08 and has observed that the assessee does not deserve
any set off, if the directions of the ld. CIT(A) are considered since
assessee has not correlated the sale proceeds of Mahla property
(which was sold on 03.07.2006) with the surrender of income of Rs.
4.83 crores by way of undisclosed investment in various properties
and in excess stock (of Rs. 2.8 crores) of business found on the date
of search i.e. 01.11.2006.
However, the AO has been gracious enough to allow set off of Rs.
1.28 crores being profit on sale of the said property by following the
13 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
directions of the Hon’ble ITAT, otherwise it would amount to double
taxation. Further, the AO has simply ignored/excluded the set off of
Rs. 26723945/- allowed by AO in order dated 29.06.2009.
(ii) The appellant had taken following additional ground before the
ITAT for AY 2007-08 in ITA No. 646/JP/09.
“The learned CIT(A) has erred in not given direction to the
Assessing Officer to give effect to the following findings given by him in
the order for AY 2006-07-
Undisclosed profit of Rs. 1,28,00,000/- on sale of Mahla property
required to be considered in AY 2007-08. Set off of this profit required
to be allowed with the surrendered amount of undisclosed investments
for properties by the assessee group in AY 2007-08”.
The Hon’ble ITAT set aside this issue to the file of AO to consider the
issue of set off of undisclosed profit of Rs. 1.28 crores against the
amount surrender by the assessee since facts in that regard were not
clear
(iii) The AR has submitted that the said Mahla property was sold on
3.7.2006 as per date of sale deed and the ld. CIT(A) directed the
AO to give set off of sale consideration and profit in the year of sale
14 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
which is available for other investment made by the assessee in the
AY 2007-08.
It has been submitted by the AR that the said property was
sold for Rs. 3,76,60,000/- as per sale deed and the purchase cost
as per registered deed is Rs. 109,36,055/-. So set off of Rs.
267,23,945/- should be allowed since the sale consideration was
received out of books on 3.07.2006 and was found as investment in
stock of Rs. 2.80 crore on the date of search on 01.11.2006. It has
been further submitted that profit from the sale of said property of
Rs. 15,63,945/- was recorded/disclosed in the regular books of
accounts of the company M/s Mahla Real Estate Pvt. Ltd. and
therefore unaccounted profit which requires to be added in the
hands of assessee at Rs. 112,36,055/- (Rs. 128,00,000-15,63,945).
(iv) I find from orders and submissions that as per seized
documents, the value of sales recorded is Rs. 3,76,60,000/- as
against the sales recorded in registered sale deed at Rs.
125,00,000/-. Therefore, unrecorded sales proceeds work out to
Rs. 251,60,000/-. Cost of the land as per seized documents has
been worked out at Rs. 248,55,000/-. Further, cost of property as
recorded in registered deeds is Rs. 109,36,055/-. Thus profit of Rs.
15 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
15,63,945/- has been recorded/booked in the case of Mahla Real
Estate Pvt. Ltd. Therefore, undisclosed profit from sale of said
property would work out to (Rs. 128,05,000-Rs. 15,63,945)=
112,41,055/-.
(v) Ld. CIT(A) in order dated 19.05.09 had directed that undisclosed
profit is to be considered in the year of its sale and quantum of
this profit was required to be worked out by the AO for AY 2007-
In view of above discussion, the AO is directed to assess the
undisclosed profit from this property at Rs. 112,41,055/- for AY
2007-08 instead of Rs. 128,00,000/- in order dated 28.12.2011.
The addition of Rs. 45,04,000/- is found to be in order as it is
as per directions of the ld. CIT(A). Therefore, ground No. 2 in this
regard is dismissed.
(vi) However, the set off would be available against the
undisclosed stock surrender of Rs. 2.8 crores found at the time of
search out of sale proceeds realized out of books of
Rs.251,60,000/- (Rs. 376,60,000- Rs. 125,00,000) on 03.07.06
since there is no material/evidence on record that this amount was
invested elsewhere and in view of the clear directions of the ld.
CIT(A) in his order dated 19.05.09.
16 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
Further, the Hon’ble ITAT has also observed in this regard in
their order dated 26.11.2010 (para 49) that effect of set off has to
be given as per direction of ld. CIT(A) since the AO has added the
amount for AY 2006-07, whereas the ld. CIT(A) has directed to
add this amount for AY 2007-08. Thus, in this case there is
shifting of income from AY 2006-07 to AY 2007-08 and the ratio of
the Hon’ble Supreme Court decision of CIT Vs Shelly Products 261
ITR 367 is not applicable.
In view of above discussion, the AO is directed to allow set off
of Rs.251,60,000/- instead of Rs. 128,00,000/- in the order dated
28.12.11, notwithstanding the fact that the assessed income
would fall to Rs. 737,94,065/- i.e. below the returned income of
Rs. 827,40,410/-. In fact, it is also seen that the although the
assessed income would fall below the returned income in AY 2007-
08 by Rs. 89,46,345/- but at the same time, the assessed income
has gone up by Rs. 94,15,000/- in AY 2006-07 on account of
additions relating to the Mahla property. The AO is directed to
work out the revised income and relief as directed above.
17 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
In view of the above, the ground No. 1,4 & 5 are partly
allowed on above terms, ground No. 3 is allowed and ground No.
2 is dismissed. “
2.4 Now the Revenue is in appeal before us. Ld. DR has vehemently
argued the matter, took us through the orders of Coordinate Bench in
the first round of appeal and the order of the ld CIT(A) in the first round
of appeal and the latest CIT(A) order under challenge. He supported the
order of the Assessing Officer and submitted that the AO has correctly
given effect to the directions of the ITAT in the first round of appeal and
there is no infirmity in such order.
2.5 The Ld. AR relied on and supported the order of the ld CIT(A) and
submitted that broadly two issues are involved in this case. First issue is
regarding set off against surrendered income and secondly shifting of
income from assessment year 2006-07 to 2007-08 and also whether
assessed income can be below the return income. On each of this
matter, Ld. AR has submitted as under:-
Issue of set off against surrendered income:-
It was submitted that the issue involved revolves around the immovable
property titled as Mahla Property. Although this property has been
18 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
purchased in the hands of the M/s Mahla Real Estate Pvt. Ltd. but the
unaccounted investment/profit in respect of this property has been
considered in the hands of the assessee. The assessee being a director
in this company had offered the unaccounted investment and the
income pertaining to the purchase and sale of this property in his
individual hands. The facts of purchase and sale of this property as per
registered deed and as per seized papers found during search are as
under:-
Particulars of purchase and sale of Mahla Property:
Mahla Property Purchase Sale amount Profit amount As per registered deed 10936055 12500000 1563945 As per seized documents 24855000 37660000 12805000
The admitted facts are that whereas the property was purchased in
Assessment Year 2006-07 it was sold in Assessment Year 2007-08. The
assessee had claimed that on the sale of this property funds over and
above and in addition to that accounted for on sale of this property
amounted to Rs. 2,51,60,000/- (37660000-125000000) were received.
The property actually was sold as per seized documents for a sum of Rs.
19 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
3,76,60,000/- whereas as per sale deed the sale was shown only for a
sum of Rs. 1,25,00,000/-. Thus actually assessee was in receipt of on
money funds of Rs. 2,51,60,000/- (37660000-125000000). The set off
of this amount was sought against surrendered investments in other
properties in Assessment Year 2007-08. The Learned CIT(A) has
allowed the same as per para (vi) on page 19 of the appellate order.
The Learned CIT(A) has correctly held that the set off of this amount of
Rs. 2,51,00,000/- would be available against the undisclosed stock
surrendered by the assessee at the time of search of Rs. 2.8 Crores.
The Learned CIT(A) has further observed that there is nothing on record
which may show that this amount of Rs. 2,51,60,000/- was invested
elsewhere. The finding of the Learned CIT(A) is perfectly in order. This
finding of the Learned CIT(A) is in tune with the earlier order dated
19.05.2009 wherein the Learned CIT(A) had directed that the sale
proceeds of the purchase of this property require to be set off with the
available surrender of the investment.
Shifting of income from Assessment Year 2006-07 to 2007-08
It was submitted that the Learned CIT(A) has further correctly held that
as per the earlier order dated 19.05.2009 the profit on sale of this
property was required to be considered in Assessment Year 2007-08
20 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
instead of in Assessment Year 2006-07. Thus the income on sale of this
property of Rs. 1,28,05,000/- was wrongly taken in Assessment Year
2006-07 was shifted/transferred to Assessment Year 2007-08. The
profit on sale of this property was further corrected. It was held that the
assessee as per registered sale deed declared profit of Rs. 15,63,945/- in
the books of accounts as is clear from the table above. Whereas the
profit as per seized documents worked out to Rs. 1,28,05,000/-. Thus
only the difference between the two which comes to Rs. 1,12,41,055/-
(12805000-1563945) was assessable as income in Assessment Year
2007-08 as income to the extent of Rs. 15,63,945/- already stood
declared by the assessee in the books of accounts. The directions of the
Learned CIT(A) are perfectly lawful, legal and justified. There is no case
for the Revenue for agitating the matter.
Issue of assessed income being below the returned income:-
It was submitted that the Revenue has also agitated the matter on the
ground that the direction of the Learned CIT(A) would result in
determination of income lesser than shown in the return by the
assessee. This issue had cropped up in the first round of appeal before
the Hon’ble ITAT and the same was decided in cross-objection no.
127/JP/2009 and ITA no. 645, 646/JP/2009 order dated 26.12.2010.
21 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
The relevant directions of the Hon’ble ITAT are in the context of this
very property the same appear in para no. 49 & 50 of page 37 of the
order dated 26.11.2010 of the ITAT. The same are quoted below:-
“There is no dispute that set off is allowable against the surrendered
amount …………..(Para 49) ………. One of the contention of the assessee
that the Assessing Officer is not allowing set off for the reason that if the
set off is allowed then the assessed income will be less than the
disclosed income. This is not a question whether returned income will
be reduced or not. The question is to allow the set off.”(Para 50)
In view of the aforesaid finding and observation of the Hon’ble ITAT the
matter stands settled. The direction of the Learned CIT(A) are in tune
with the observations of the Hon’ble ITAT. The Revenue’s appeal on this
point does not hold good and fails. The decision of the Learned CIT(A)
deserves to be confirmed. It is further submitted that it is also the
established position of law that the income of the assessee has to be
determined as per provisions of law and the same can be assessed
lesser than shown in the return. The following decisions are quoted in
support:-
(i) SUSHIL KUMAR DAS vs. INCOME TAX OFFICER (2011) 11 ITR
0017
22 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
The moot question arising out of this appeal is whether the income
determined by the AO on the basis of the return filed by the assessee
can be a figure lower than the income returned by the assessee. It is a
well settled that the principle for determining the taxable income of the
assessee under the IT Act should be within the purview of the law in
force. If the taxable income determined by the AO is not in accordance
with such principle it is open to the assessee to contend the same before
the higher authorities to follow the correct application of law to
determined the actual taxable income of the assessee. In our considered
view, the lower authorities, not expected, to say that merely because the
assessee has returned income which is higher than the income
determined in accordance with legal principles such returned income can
be treated as lawfully assessed. An assessee is liable to pay tax only
upon the taxable income. The law imposed by the AO to assess the
income according to law and determined the tax payable thereon. In
doing so, the AO cannot assess the income of the assessee an amount
which is not taxable as per law though shown by the assessee in the
return. It is always open to the assessee to take a plea that the taxable
income though shown as income is not taxable under law before the
higher authorities.
23 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
(ii) UNITED PHOSPHOROUS LTD. vs. DEPUTY COMMISSIONER OF
INCOME TAX (2012)67 DTR -395
In view of the provisions of the IT Act, there can be determination of
income under the provisions of the Act less than the returned income
due to various factors. There is no bar in determining the total
income/undisclosed income less than the returned income if facts so
warrant.
(iii) NIRMALA L.MEHTA vs. BALASUBRAMANIAM, COMMISSIONER OF
INCOME TAX & ORS. (2004) 269 ITR 0001
It may be held that merely because the petitioner offered the prize
money won in the lottery of the Sikkim Government, to tax under the IT
Act, 1961, that shall not take away her right in contending that the said
prize money was not chargeable and assessable to tax under the IT Act
in the revisional jurisdiction.
In view of the aforesaid facts it was submitted that the order of the
learned CIT(A) is perfectly lawful and deserves to be confirmed. The
directions given by him are in accordance with the law and facts of the
case. The appeal of the Revenue deserves to be dismissed.
24 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
2.6 We have heard the rival submissions and pursued the material
available on record including the order of the ld CIT(A) and the
Coordinate Bench in the first round of appeal as well as the latest order
of ld CIT(A) under challenge before us and the ld AR’s contentions as
reproduced above. The limited issue under consideration is the nature
of directions issued by the Coordinate Bench in the first round of appeal
and whether the same has been given duly effect to by the AO. The
directions of the Coordinate Bench are clear that “the assessee is asking
to allow set off of undisclosed profit of Rs 1.28 Crores against the
amount surrendered by the assessee and since the facts are not clear,
therefore, we are of the view that matter should go back to the file of
the AO to consider the submissions of the assessee.” And “we set aside
this issue to the file of the AO to examine the additional ground of
appeal in the light of our observations as above and after taking into
considerations the written submissions filed on behalf of the assessee.”
2.7 Undisputedly, the impunged proceedings are set-aside
proceedings with directions to consider the additional ground as
submitted before the Co-ordinate Bench in terms of examining the set
off of undisclosed profit of Rs 1.28 Crores against the amount
surrendered by the assessee. And in light of these directions, the AO
25 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta
has considered the submissions of the assessee and has stated that
since the sale of Mahala property has happened on 3.7.2006, the profit
arising from such sale of Mahala property amounting to Rs 1.28 Crores
(after considering the sale consideration of Rs 3.76 Crores and cost of
purchase of Rs 2.48 Crores as per seized documents) has been worked
out and the same was allowed set off against the surrender of stock of
Rs 2.8 Crores. In our view, the AO has rightly given effect to the
directions of the Coordinate Bench and we see no infirmity in the same.
2.8 At the same time, we are not in agreement with the findings of
the ld CIT(A) where he states at para 4.3 (vi) of his order that set off OF
sale proceeds would be available against the undisclosed stock surrender
of Rs 2.8 crores found at the time of search of sale proceeds realized out
of books of Rs 2.51 crores since there is no material/evidence on record
that this amount was invested elsewhere and in view of the clear
directions of the ld CIT(A) in his order dated 19.5.09.” The reason for
the same is that there is no such directions by the ld CIT(A) in the first
round and that’s precisely the reason why the assessee took the
additional ground before the Coordinate Bench and which has been
rightly given effect to by the AO.
26 ITA No. 198/JP/2013 DCIT Vs. Shri Ram Babu Gupta In light of above discussions, we set aside the order of the ld CIT(A) and restore the order passed by AO. In the result, the appeal filed by the Revenue is allowed.
Order pronounced in the open court on 28/03/2017.
Sd/- Sd/- ¼dqy Hkkjr ½ ¼foØe flag ;kno½ (Kul Bharat) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 28/03/2017. *Ganesh*. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- DCIT, Central Circle-1, Jaipur 2. izR;FkhZ@ The Respondent- Shri Ram Babu Gupta, 12-13, Patel Colony, Sardar Patel Marg, Jaipur 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File {ITA No. 198/JP/2013}.
vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत