DCIT, NEW DELHI vs. SMT. KRISHNA THEOPOLIS, NOIDA

ORDER PER H.S. SIDHU : JM

The Revenue has filed the present appeal against the impugned order dated 31/01/2012 passed by the Ld. Commissioner of Income Tax (Appeals)-II, New Delhi relevant to assessment year 2008-09 on the following grounds:-

1. On the facts and in the circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 1,40,00,000/- made on account of unaccounted receipt of cash by the assessee.

2(a). The order of the Ld. CIT(A) is erroneous and not tenable in law and on facts.

(b) The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal.

Act, 1961 was issued on 01.12.2010 requiring the assessee to furnish return of income. The assessee filed its return of income declaring NIL income on 16.12.2010. Notices u/s. 142(1) & 143(2) of the I.T. Act, 1961 alongwith questionnaire were issued on 6.12.2010 requiring the assessee to furnish details. In response to the notice u/s. 143(2) the assessee filed the details dated 16.12.2010. But nobody was appeared on behalf of the assessee. During the course of search and seizure on 20.10.2008 in the case of M/s Thapar Homes Group of Cases a Pen Drive (Annexure A-13) was seized containing electronic documents. One such document is a letter of receipt of Rs. 1,40,00,000/- in cash on 5.2.2008 as a part payment on account of collaboration in respect of property bearing no. 8, Street No. 5, measuring 975 sq.yds. situated in the lay out plan of the Government Servants Cooperative House Building Society Limited, also known as Shanti Niketan, New Delhi. The receipt shows that Mrs. Krishna Theophilus has received a sum of Rs. 1,40,00,000/- in cash from M/s Thapar Homes Ltd. through its Director Mr. Inder Mohan Thapar. The assessee was summoned u/s. 131 of the Income Tax Act, 1961 on 30.11.2010 in respect of assessment proceedings of M/s Thapar Homes Ltd. AO observed that assessee had entered into property development agreement on 05.2.2008. Advance was also received by the assessee on 5.2.2008 amount of Rs. 70,00,000/- by cheque. The electronic document mentioned above is also dated 5.2.2008. The property to be developed is Plot No. 8, Street No. 5, Shantiketan, New Delhi. The matter has also been referred to Valuation Cell also but report is awaited. As the assessment getting barred by limitation of time it was held that the existence of the letter is evidence that it was intentionally drafted and the transaction did not take place. Anything containing in electronic form in the pen drive is a document. Therefore, the amount of Rs. 1,40,00,000/- is treated as an undisclosed income of the assessee and was added to the assessee’s income. Though the assessee has however declared the transaction of sale of property as completed as per section 53A of the Transfer of Property Act only in the next previous year, it was held that the sum of Rs. 1,40,00,00-0/- was never intended to be declared to the Income tax authorities and the same was held as unaccounted receipt of cash in the hands of the assessee and was brought to tax in the current year. The AO completed the assessment u/s. 144/153C of the I.T. Act, 1961 at the income of Rs. 1,40,00,000/- vide his order dated 30.12.2010.

filed by the Revenue. He further stated that in this case assessment was completed u/s. 144 of the I.T. Act as per the material available on record and to the best judgment on the basis of records available as the assessee and her AR have not attended any further proceedings in the matter and remain non- cooperative before the AO. He further stated that against the assessment order assessee Appealed before Ld. CIT(A) and filed the written submissions which were forwarded to the AO for his comments. But no Report was received from the AO and a Reminder dated 25.8.2011 was issued to the AO followed by order u/s. 250(4) dated 21.9.2011. In response thereto, the AO has sent a report dated 11.10.2011 and in response to the same a letter dated 14.10.2011 was issued to the AO again giving some directions. In spite of the directions and opportunities no further report was received from the AO. Subsequently reminders dated 13.12.2011 and 26.12.2011 were also issued to the AO by giving further time of 15 days for the Report. However since no report has been received, the matter was examined in the absence of the AO's report and the said valuation report due in this matter, Ld. CIT(A) passed a non- speaking order, which is contrary to the principles of natural justice. He further stated that Assessee has not filed any evidence before the AO for substantiating its case and now filed the detailed Paper Book before the 4. Tribunal, as a result thereof, the AO was deprived from availing the opportunity to examine the same and adjudicate upon. In view of the above, he requested that matter may be remitted back to the file of the AO to examine the same afresh, after giving adequate opportunity to the parties.

6. On the contrary, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A) and stated that Ld. CIT(A) has passed a well reasoned order which does not need any interference on our part and accordingly requested to dismiss the appeal of the Revenue.

Order pronounced in the Open Court on 19/05/2017.