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Income Tax Appellate Tribunal, “D”
Before: HON’BLE SH. R. C. SHARMA, AM & HON’BLE SH. SANDEEP GOSAIN, JM
Radheshyam S. Gupta, ITO- 25 (3) (3), R. No. 606, C-10, 6th 5A 5B plot no. 16, बिधम/ AnuradhaSatyamurti floor, Residency, Vithal Nagar, PratyakshakarBhavan, Vs. BKC Bandra Juhu Vile Parle (west) EastMumbai-400 051 Mumbai-400049. स्थायीलेखासं./जीआइआरसं./ PAN No. AABPG4019L (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Chaitanya Anjaria, DR प्रत्यथीकीओरसे/Respondentby : ShriRadheShyam S. Gupta, AR सुनवाईकीतारीख/ : 02.08.2018 Date of Hearing घोषणाकीतारीख / : 06/08/2018 Date of Pronouncement आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the revenue is against the order of Ld. CIT (Appeal) – 39, Mumbai dated 23.09.16 for AY 2009-10 on the grounds mentioned herein below:-
1. On the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the addition of Rs.73,00,000/- on account of unexplained cash credit.
2. On the facts and in the circumstances of the case and in law the Ld. CIT (A) has erred in not considering the fact that the addition was made on the basis of information received from ACIT-2 1(1), Mumbai and a tax evasion petition letter dated 08/03/2011 of DDIT(inv), Unit-VII(2), Mumbai with the confirmation of the account duly signed by the assessee that assessee paid in cash Rs.73,00,000/- to Shri Narendra Mohan Singh.
On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in not considering that the addition was made on the basis of enquiries made from the RTO office Andheri and RTO office Raigad, that clearly shows the claim of the assessee that the said cars are sold to Shri Anil Kumar Singh during A.Y. 2009-10, is false.
4. On the facts and circumstances of the case and in law the Ld. CIT (A) has erred in not considering the fact that the addition was made on the basis of the ledger confirmation submitted by Shri
Radheshyam S. Gupta RadheyshyamGupta that clearly establishes that he paid the entire amount of Rs.73,00,000/- in cash and failed to explain the source of the said cash payments made.
On the facts and circumstances of the case and in law the Ld. CIT (A) has erred in not considering the fact that the assessee did not deny the confirmation letter signed by him and could not prove the source of this cash payment of Rs.73,00,000/- and failed to prove that he has not paid in cash Rs.73,00,000/- to Shri Narendra Mohan Singh to buy BMW cars.
The brief facts of the case are thatthe assessee is an individual and filed its return of income for the year under consideration. Thereafter, an assessment order u/s. 143(3) of the I.T. Act, 1961 was passed by the AO thereby making addition of Rs. 73 lakhs on account of unaccounted investment in purchase of a BMW car.
Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties,allowed the appeal of the assessee.
Radheshyam S. Gupta Now before us, the revenue has preferred the present appeal by raising the above grounds. Ground No. 1 to 5 3. Since all the grounds raised by the revenue are inter connected and inter related and relates to challenging the order of Ld. CIT(A)in deleting the addition of Rs. 73 lakhs on account of unaccounted investment in purchase of a BMW car, therefore we thought it fit to dispose of the same by this common order.
We have heard counsels for both the parties at length and we have also perused the material placed on record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in para no. 3to 8 ofitsorder. The operative portion of the order of Ld. CIT(A) is contained in para no. 8 of its order and the same is reproduced below:-
I have gone through the assessment order, submissions of the assessee, remand reports received
Radheshyam S. Gupta from the AO and reply from the appellant in respect of the same. The basic fact is that the AO has received an information from the DDIT(Inv.),Unit-VH(2),which was in the form of tax evasion petition which suggested that the appellant is involved into purchase of BMW cars from one Shri Narendra Mohan Singh and has paid an advance of Rs.73,00,000/- in cash. The contention of the appellant is that he has not entered into any such transaction and had not paid any amount for the same. It is apparent from the assessment order that the AO himself was not sure about this transaction as it is noted on page 3 of assessment order that "from above, it is seen that not only assessee other person Shri Anil Kumar S.Singh also save money to Shri Narendra Mohan K.Snh. Therefore, it is not clear who paid rupees to Shri Narendra Mohan K. Singh. Nothing is filed from the assessee’s side to clarify this issue." It is also evident from the assessment order itself that the ITO-21 (1 )(3), Mumbai who was the Assessing Officer of Shri Narendra Mohan K.Singh has informed the AO of the appellant that "Shri Narendra Mohan K.Singh is assessed in this charge. in this case assessment proceedings for A. Y.2004-05 to 2007-08 Et A.Y.2009-10 are pending and which are _getting .......... .In connection with a letter dated 08.03 .2011 received from the DD1T(!nv.), Unit-2, Mumbai informing that Shri Radheyshyam Gupta PAN:
Radheshyam S. Gupta AABPG4019L has given cash advance of Rs.78,00,000/- to Shri Narendra Mohan K. Singh for purchase of BMW car as under:..............However, as per my assessee's submission this cash deposits in respect of sale of BMW car has been received from Shri Anil Kumar S. Singh. This fact has been confirmed by Shri Anil Kumar S. Singh in his submission in response to notice u/s. 133(6) of the IT Act issued by this office. However, in the Balance sheet of Shri Narendra Mohan K. Singh as on 31.03.2009 in the loans and advance schedule Rs.5,00,000/- are shown against Shri Radheyshyam S. Gupta". Hence, there appears to be a case to suggest that the impugned transaction has happened between Narender Mohan Kumar Singh and Shri Anil Kumar S. Singh and not between Shri NarenderMohankumar Singh and the appellant. In the first remand report, it was clarified by the .40 that as per information received from the RTO, Andheri, the car No.MH-02JP 0081 was registered in the name of Shri Narendra Mohan Kumar Singh from 21.01.2008 to 07.02.2011. The NOC for this car was issued on 07.02.2011 from the RTO Andheri to the RTO-Thane. However, it is not mentioned in whose name the NOC was issued. In a subsequent remand report dated 11.12.2015, it is mentioned by the .40 that as per information received from the RIO, Raigad, the car No.MH-06 AT 0081 was Radheshyam S. Gupta registered in the name of Narendra Mohan K. Singh from 17.04.2008 to 02.02.2011. The NOC for this car was issued on 02.02.2011 RTO-Raigad to RTO-Thane. From the enclosures received along with the remand report, it is evident that No Objection Certificate issued to RIO Thane on 02.02.2011 for transfer of ownership in the name of Anil Kumar S. Singh at Ganraj Tower, Opp. Prashant Nagar, Wagte Estate, Thane. It is, therefore, evident that during the period from the date of registration i.e. 17.04.2008 till 01.02.2011, the ownership of the vehicle was with Shri Narendra Mohan K. Singh and on 02.02.201 " the ownership was transferred to Shri Anil Kumar S.Singh. Hence, the contention of the appellant that the transaction has happened between Shri Narendra Mohan K.Singh and Shri Anil Kumar S.Singh appears to be correct. It is evident in this case that there s no certainty in respect of transaction as .40 has nothing on record to prove that the transaction had actually happened between the said Shri Narendra Mohan K. Singh and the appellant. It is also evident that the amount which was treated as payment for purchase of BMW car was not found to have been paid and the transaction has not happened between Narendra Mohan K. Singh and the appellant. Rather, there is confirmation on record by the AO of Shri Narendra Mohan K. Singh that the transaction has actually
Radheshyam S. Gupta happened between Shri Narendra Mohan K. Singh and Shri Anil Kumar S Singh. This fact is further confirmed by the information received from the RTO, Raigad which says that No Objection Certificate issued to RTO Thane on 02.02.2011 for transfer of ownership of one of the BMW cars in the name of Shri Anil Kumar S. Singh. In the given facts and circumstances of the case there is no evidence on record to prove that the appellant had actually entered into such transactions. None of the BMW cars were found to be transferred in his name. Since, there is no evidence to prove that the appellant had actually purchased the said BMW cars, there could be no reason to believe that he had paid the impugned amount as advance for purchase of the Car. I am therefore, of considered view that the additions of Rs. 73,00,000/- made in the case of the appellant is not supported by the evidence to form a belief that the appellant had actually entered into such transactions and has paid such amount in cash. The addition is accordingly directed to be deleted. Ground No.1 to 3 is accordingly allowed.
After having gone through the facts of the present case as well as considering the orders passed by revenue authorities, judgments cited and submissions made by both the parties, we
Radheshyam S. Gupta find that the dispute in this case is with regard to purchasing of BMW car by the assessee from Narendra Mohan Singh and making payment of Rs. 73 lakhs advance in cash. In order to solve the controversies in question, Ld. CIT(A) during the appellate proceedings, called for remand report from the AO because as per the facts, the AO was not sure about the entire transaction and it was found that one Anil Kr. Singh had gave money to Narendra Mohan Singh for the purchase of the car. Therefore, in order to verify the factual position with regard to actual transaction, the remand report was sought. The first remand report was received on 01.12.15, which is contained in para no. 7 of the order of Ld. CIT(A) and the same is reproduced below:- "as per the information received from the RTO- Andheri, the car No.MH-02 JP 0081 (Make - BMW- 5301) was registered in the name of Shri NarendramohanK.Singh, from 21.01.2008 to 07.02 .2011. The NOC for this car was issued on 07/02/2011 from the RTO, Andheri to. the RTO-Thane. Hence, it is evident that the said car was owned by Shri Narendramohan K. Singh during the A.Y.2009-10 and A.Y.2010-11. The copies of the letter written and the Radheshyam S. Gupta reply received are enclosed herewith for your kind perusal. Further, to ascertain the source of Rs.73 lacs in the hands of Shri Anil Kumar S. Sinh, letter dt. 03/11/2014 was written by my predecessor to the ITO,Ward-1(1), Thane where Shri Anil Kumar 5.5inh is assessed. The ITO-Ward-1(1), Thane vide his letter dated 14.11.2014 stated that the source of Ps. 73,00,000/- in cash paid by Shri Anil Kumar S. Singh may not be ascertained by the case records available. The copies of the letter written and reply received are enclosed herewith for your kind perusal.
From the enquiries made, it is noticed that the car no.MH-02 JP 0081 was registered in the name of Shri NarendramohanK.Singh during the A.Y.2009-0 and A. Y.2010-11. Hence the claim of the assessee that the said car is sold to Shri Anil Kumar S. Singh during the A. Y.2009-10, is not found to be correct. Further, source of cash of Rs.73 lacs in the hands of Shri Anil Kumar S.Singh is not ascertainable as per the reply received from the office of ITO, Word- 1(1), Thane.
The reply from the office of RTO-Raigad regarding the vehicle no.MH-06 AT 0081 is still awaited, report regarding the some shall be furnished immediately on receipt of the reply. In view of the above, it is humbly requested to grant time of at least one month to make
Radheshyam S. Gupta the enquiries and to submit the report with respect of to vehicle No.MH-06 AT 0081."
The second remand report was also called from the AO on 15.12.2015 and the said remand report is also contained in para no. 7.1 of the order of Ld. CIT(A), which is reproduced below:-
"the reply from the office of the RTO-Raigad regarding the vehicle no.MH-% AT 0081 has been received and report regarding the same is hereby furnished.
As per the information received from the RTO-Raigad, the car no.MH-06 AT 0081 (Make BMW-5251) was registered in the name of Shri NarendramohanK.Sinqh from 17.04.2008 to 02.02.2011. The NOC for this car was issued on 02/02/2011 from the RTO, Raigad to the RTO-Thane. Hence, it is evident that the said car was owned by Shri NarendramohanK.Singh during the A.Y.2009-10 and A.Y.2010-11. The copies of the letter written and the reply received are enclosed herewith for your kind perusal.
From the enquiries made, it is noticed that the car no.MH-02 JP 0081 was registered in the name of Shri NarendramohanK.Singh during the A.Y.200910 and A. Y.2010-11. Hence the claim of the assessee that the Radheshyam S. Gupta said car is sold to Shri Anil Kumar S. Singh during the A. Y;2009- 10, is not found to be correct.
We have also gone through both the remand reports filed by the assessee and from the facts narrated in the records, we find that the ownership of the vehicle was with Narendra Mohan Singh up-till 01.02.11. However, on 02.02.11, the said ownership was transferred in the name of Anil Kumar Singh, therefore in these circumstances, Ld. CIT(A) has also correctly concluded that the transaction of purchase car has in fact happened between Narendra Mohan Singh and Anil Kumar Singh. There was no evidence on the court filed to prove that the assessee had actually purchased the said BMW car from Narendra Mohan Singh. But on the contrary, there is a confirmation on record that the transaction has actually happened between Narendra Mohan Singh and Anil Kr. Singh. Therefore, considering these circumstances, we are also of the view that additions of Rs. 73 lakhs made in the case of assessee was not supported by evidence to form a belief that the assessee had actually entered into such transactions and had paid such amount in cash. On the other
Radheshyam S. Gupta hand, Ld. DR could not rebut the contents contained in the order of Ld. CIT(A). Moreover, no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed.