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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’ NEW DELHI
Before: SH. S.K. YADAV & SH. O.P. KANT
PER O.P. KANT, A.M.: This appeal by the Revenue is directed against the order dated 7/02/2014 of learned Commissioner of Income-tax (Appeals)-I, New Delhi, for assessment year 2011-12 raising following grounds of appeal: grounds of appeal:
“1. The order of the CIT(A) is not correct in law and facts. 2. On the facts and circumstances of the case, the learned CIT(A) has erred in deleting the addition of Rs.12,16,500/- made by the Assessing Officer on account of unaccounted cash found during the course of search.
3. On the facts and circumstances of the case and the learned CIT(A) has erred in deleting the addition of Rs.8,55,955/- made by on account of unaccounted jewellery.
4. On the facts and circumstances of the case the learned CIT(A) haws erred in deleting the addition of Rs.4,03,72,823/- made by on account of unaccounted receipt from Chit Fund Business. 5. The appellant craves leave to add, amend any/all the grounds of appeal before or during the course of hearing of the appeal.”
The facts in brief of the case are that a search and seizure action was carried out under section 132 of the Income Tax Act, 1961 (in short “the Act”) at the premises of the assessee. Pursuant to the search action, in notice under section 142(1) of the Act dated 9/02/2012 was issued for filing return of income for the year under consideration. The assessee in response submitted that the income declared of Rs.8,97,830/- in the original return of income filed on 04/01/2012 might be treated as return of income in response to notice under section 142(1) of the Act. During the course of assessment proceeding, the Assessing Officer noticed cash of Rs.12,16,500/- and jewellery of Rs.8,55,955/-, which was found during the course of search action. During the course of assessment proceeding, the assessee further declared Rs. 50 Lacs as income on account of undisclosed chit fund business. In the assessment completed under section 143(3) of the Act on 22/03/2013, the Assessing Officer determined the income at Rs.5,14,93,110/- by making following additions:
Sr. Particulars Amount No. (Rs.) i) Addition on account of unaccounted cash found 12,16,500 during the course of search ii) Addition on account of jewellery found during 8,55,955 search iii) Addition on account of income from chit fund 4,03,72,823 business iv) Addition on account of sale of flat on protective 81,50,000 basis by Bulland Infra projects (P) Ltd.
2.1 On appeal before the first appellate authority, the assessee challenged each of the additions. The submissions filed by the assessee were forwarded to the Assessing Officer calling for a remand report. The Learned Commissioner of Income-tax (Appeals) has noted in the remand report, admission of the Assessing Officer that the addition of Rs.4,03,72,823/- was made by adopting incorrect figures from the documents seized. The learned Commissioner of Income Tax (Appeals), having regard to the remand report and the fact that the assessee declared additional income of Rs. 50 Lacs in the assessment proceeding, deleted the additions made in the assessment order. Aggrieved, the Revenue is in appeal before the Tribunal raising the grounds as reproduced above.
Before us, the Learned CIT(DR) pointed out that the Revenue has raised grounds viz-a-viz three issues, namely, addition of Rs.12,16, 500/- on account of cash, Rs.8,55,955/- on account of unaccounted jewellery found during the course of search and addition of Rs.4,03,72,823/- on account of undisclosed income from chit fund business. On merits of the claim, he relied upon findings of the Assessing Officer.
On the other hand, the learned counsel of the assessee submitted that the learned Commissioner of Income-tax (Appeals) was justified in deleting the addition as in the remand report, the Assessing Officer himself admitted the arithmetical errors committed while making the addition in the assessment order. He submitted that after considering the arithmetical error the addition was worked out to Rs.6,91,419/- instead of addition of Rs.4,03,72,823/-on account of undisclosed income from the chit fund business. He further submitted that the learned Commissioner of Income-tax (Appeals) computed the income of Chit fund business at Rs.22,87,790/-, which was less than the sum of Rs. 50 Lacs, declared by the assessee. He further submitted that cash of Rs.12,16,500/- and jewellery of Rs.8,55,955/- duly explained from the aforesaid undisclosed income and accordingly, the order of the learned Commissioner of Income-tax ( Appeals) might be upheld.
We have heard the rival submission of the parties and perused the relevant material placed on record including the orders of the authorities below. Since all the three grounds and the appeal are interrelated, therefore these are being disposed of together. The undisputed factual matrix is that as a result of search on the ‘Bulland’ group of cases documents/registers marked as Annexure A-3 to A-5 were found and seized from the premises at Devli Road, Khanpur, New Delhi. It was found that aforesaid documents established that the assessee and Sh. Ramkesh Basist, both the directors of M/s Bulland Buildtech Private Limited were running a chit fund business. The directors admitted undisclosed income of Rs. 50 Lacs each on account of Chit fund business, which was offered by the assessee in the course of assessment proceeding for the instant assessment year. Based on the seized documents, the Assessing Officer computed the addition of Rs.4,03,72,823/- in the following manner:
Sr. Particulars Amount (Rs.) No. i) Total collection (A) 12,97,41,522 ii) Receivable (B) 21,60,06,515 iii) Total (C) = (A + B) 34,57,48,035 iv) Less: Payments (D) 15,17,59,672 v) Balance (E) = (C-D) 19,39,88,363 vi) Closing balance (F) 27,47,34,009 vii) Difference (G) = (F-E) 8,07,45,646 50% thereof held to be pertaining to assessee 4,03,72,823 and, balance 50% held to be pertaining to Shri Ramkesh Basist
In the remand report sent to the learned Commissioner of Income- tax (Appeals), the Assessing Officer admitted the error in the figures adopted while computing the above addition and based on the correct figures, the Assessing Officer computed the addition at Rs.6,91,419/-, which is noted by the learned Commissioner of Income-tax (Appeals) in the impugned order as under:
Sr. Particulars Amount (Rs.) No. i) Total collection 12,51,61,077 ii) Receivable 25,19,73,967 iii) Total 37,71,35,044 iv) Less: Payment 12,64,39,808 v) Balance 25,06,95,236 vi) Closing balance 25,20,78,074 vii) Difference 13,82,838 50% thereof held to be pertaining to assessee 6,91,419 and, balance 50% held to be pertaining to Shri Ramkesh Basist
The learned Commissioner of Income-tax (Appeals) in view of the factual position emerged from the remand report, deleted the addition of Rs.4,03,72,823/- holding as under: “4.2 The case of the appellant was that the entries and calculation based on such entries were incorrectly worked out by the revenue. To verify this claim, the matter was remanded to the AO, who has worked out the actual amounts on the basis of these seized documents vide his letter dated 07.01.2014/23.01.2014 as collections/receipts-Rs.12,51,61,077/-; payments-Rs. 12,64,39,808/; receivables/assets-Rs.25,19,73,967/-; and closing balance/liabilities- Rs.25,20,78,074/-. Based on these figures, and by applying the formula adopted in the assessment order, the income from the undisclosed chit fund business comes to Rs. 13,82,838/-, and its apportionment @ 50% to the two directors, including the appellant, comes to Rs.6,91,419/- each. 4.3 The entries in these documents are stated to be receipts/payments relating to some chit fund business. The details of this business are not available. Therefore, another way of looking at these transactions is that these are simply undisclosed cash receipts & payments. On this basis also, the ARs were directed to work out the peak balance. The maximum peak balance by this working comes to Rs.20,46,784/- This is the maximum undisclosed funds available with the appellant and his partner in the business at any point of time during these transactions. This amount is admittedly and decidedly undisclosed. Further, the turnover of this business would have generated some commission / brokerage income, which fact also stands admitted by the appellant. Since these amounts are higher than Rs. 13,82,838/- worked out on the basis of the formula adopted in the assessment order, the maximum undisclosed fund embedded in these transactions is taken at Rs.20,46,784/-. Further, a commission / brokerage of 2.0% (common in finance / real estate brokerage business) on the total payments of Rs. 12,64,39,808/- amounts to Rs.25,28,796/-. Therefore, undisclosed income of the appellant from undisclosed chit-fund business shall be Rs.22,87,790/- (i.e. @ 50% of Rs.45,75,580/-). I hold accordingly. The addition of Rs.4,03,72,823/-, based on incorrect entries and incorrect calculation thereon, is deleted. The third and fourth grounds of appeal are decided in these terms.”
8. We find from the above that in the business of chit fund frequent receipt/payments were observed and the learned Commissioner of Income-tax (Appeals) computed peak of the receipts from the business of chit fund at Rs.20,46,784/- which was found to be more than the amount of Rs.13,82,838/- computed by the Assessing Officer in the remand report as income from undisclosed chit fund business. The learned Commissioner of Income-tax (Appeals) also added brokerage at the rate of 2% on the total payments of Rs.12,64,39,808/-, which was computed at Rs.25,28,796/-. The learned Commissioner of Income Tax (Appeals) computed undisclosed income at Rs.45,75,580/- from the chit fund business by adding Rs.20,46,744/- and Rs.25,28,796/-worked out above. This undisclosed income was divided into both the directors and addition in the case of the assessee was computed at Rs.22,87,790/-. The learned Commissioner of Income Tax (Appeals) found this undisclosed income less than the undisclosed income of Rs. 50 Lacs declared by the assessee and therefore he deleted the addition made by the Assessing Officer.
9. We find that learned CIT(DR) also could not advance any argument to persuade us to arrive at a contrary conclusion. In the nature of business carried out by the assessee, the money received was further utilized towards payments, and thus the same money was rotated. In such circumstances making addition on the amount of peak credit is settled law and the learned Commissioner of Income-tax ( Appeals) has adopted the same. In our opinion, the finding of the learned Commissioner of Income Tax (Appeals) on the issue in dispute is well reasoned and no interference on our part is required and accordingly, we uphold the order of the learned Commissioner of Income Tax (Appeals) on the issue in dispute and delete the addition of Rs.4,03,72,823/-. 10. Now, we take up the addition of Rs.12,16,500/- and addition of Rs.8,55,000/-on account of cash and jewellery respectively, found in the course of search action. The learned Commissioner of Income-tax (Appeals) has deleted the addition by holding as under:
“5.2 The source of the cash found during the search is stated to be the said income from commission / brokerage in chit fund business or past savings. Even if it is assumed that the cash was in addition to the said chit-fund income held to be Rs.22,87,790/-, still the amount of Rs. 12,16,500/- stands included in the undisclosed income of Rs.50,00,000/- and, therefore, no separate addition is called for. The addition of Rs. 12,16,500/- on account of cash found / seized during the search is, therefore, deleted. The first ground of appeal is disposed of accordingly. 5.3 Another addition made was of 443.600 gms jewelries found during the search (but not seized) valued at Rs.8,55,955/-. The said jewelry was claimed to be belonging to the ladies in the family, namely Smt Shakuntala Nagar (mother, 210.2 gms), Smt. Rekha Nagar (wife, 85.6 gms) and Smt. Sangeet Nagar (sister- in-law, 147.87 gms) and stated to be traditional jewelry or stridhan. The only reason the revenue has disallowed the claim is that no documentary evidence was produced. I find that the holding / value of the jewelry is well within the limits reasonably expected in well-to- do Hindu family. The quantum is also below the limits permissible in a family by the CBDT - of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member, and was rightly not seized during search. There is no evidence to the contrary that these items were purchased out of undisclosed income. During hearing, the Ld. ARs pressed an alternative claim that since the admitted amount of Rs.50,00,000/- was well above the actual undisclosed income, even if it is assumed that the entire jewelry was undisclosed, it was well covered by the undisclosed income admitted by the appellant. I find merit in this argument also. The undisclosed income on the basis of seized documents and cash amounts to Rs.35,04,290/- only, while the appellant has already admitted Rs.50,00,000/-. The remaining amount of Rs. 14,95,710/- well covers the jewelry found. In this view of the matter also, no separate addition is called for in respect of the jewelry found during search. The addition of Rs.8,55,955/- is, accordingly, deleted. The second ground of appeal is disposed of accordingly.”
Having considered the above factual matrix, we find merit in the claim of the assessee that undisclosed income of Rs. 50 lacs warrants telescoping, which explains the source of cash and jewellery found as a result of search. The Hon’ble Supreme Court in the case of Anantharam Veerasinghaiah & Co. Versus CIT 123 ITR 457 has approved the concept of telescoping. The Revenue has not been able to prove that undisclosed has been invested in investment other than cash and jewellery. Therefore, having regard to the settled proposition of law and in absence of any material placed on record by the Learned CIT(DR) to rebut the factual findings recorded by the learned Commissioner of Income Tax (Appeals), we reject the grounds of appeal
12. In the result, appeal of the Revenue is dismissed.
The decision is pronounced in the open court on 20th January, 2017.