DCIT, NEW DELHI vs. SHRI VIKRANT PURI, NEW DELHI

ITA NOS. 142, 5789, & 608/DEL/2013

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “H”, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER

ITA Nos. 142 & 5789/DEL/2013 A.Y. : 2008-09 Sh. Vikrant Puri, Vs. ACIT, Central Circle-13 A-1/36, Panchseel Enclave, New Delhi New Delhi – 110 017 (PAN: AFYPP9110K) (APPELLANT) (RESPONDENT)

AND ITA NO. 608/DEL/2013 A.Y. 2008-09 ACIT, Central Circle-13 Vs. Sh. Vikrant Puri, Room No. 332, ARA Centre, A-1/36, Panchseel Enclave, Jhandewalan Extn., New Delhi – 110 017 New Delhi (PAN: AFYPP9110K) (APPELLANT) (RESPONDENT)

Assessee by : Sh. V.K. Agarwal, AR Department by : Sh. Amit Mohan Govil, CIT(DR)

Date of Hearing : 18-02-2016 Date of Order : 04-03-2016

ORDER PER H.S. SIDHU : JM Assessee has filed two appeals and Revenue has filed one appeal

against the common Order of the Ld. Commissioner of Income Tax

(Appeals)-I, New Delhi dated 26.11.2012 pertaining to assessment year

2008-09. Since the issues involved in these Appeals are similar and

identical, hence, these appeals were heard together and are being disposed

of by this common order.

ITA NOS. 142, 5789, & 608/DEL/2013

2008-09) read as under:-

“1. The Ld. CIT (A) has grossly erred, on facts as well as in law in confirming the addition of Rs. 3,87,33,29/- of the loan from M/s Arlington Impex Pvt. Ltd. as deemed dividend u/s 2(22)(e) without appreciating the facts in proper perspective and without proving/any opportunity of hearing on this issue though the whole of the Loan has been treated as explained. 2. a) The Ld. CIT (A) has grossly erred on facts as well as in law in confirming the addition of Rs. 59.21,600/- out of loan from Shri D. K. Gupta and his AOP u/s 56(2)(vi) without appreciating the facts in proper perspective I 'and without providing any opportunity of hearing on this issue though the whole of the loan has been-treated as explained. b) Without prejudice to the above, the Ld. CIT (A) has grossly erred on facts as well as in law in considering the outstanding balance at the end of the year in the name of Shri D. K. Gupta and his AOP at Rs. 59,21,600/- as against the actual balance of Rs. 15,00,000/- only. 3. a) The Ld. CIT (A) has grossly erred on facts as well as in law confirming the addition of Rs. 3,30,00,000/- out of loan from Shri Pankaj Kapur u/s 56(2)(vi) without appreciating the facts in proper perspective and without / providing any opportunity of hearing on this issue though the whole of the loan/ has been treated as explained. b) The Ld. CIT (A) has grossly erred on facts as well as in law in considering the outstanding balance at the end of the year in the name of Shri Pankaj Kapur at Rs. 3,30,00,000/- as against the actual balance being NIL.

of income declaring an income of Rs. 1,44,19,770/- on 31.12.2008 which

was processed by the AO u/s. 142(1) of the I.T. Act, 1961 (hereafter referred

as Act). The case of the assessee was picked up for scrutiny and notice

ITA NOS. 142, 5789, & 608/DEL/2013

u/s. 143(2) dated 12.1.2009 was issued and served on the assessee.

Another notice u/s. 143(2) of the Act was also issued on 25.8.2010. A

detailed questionnaire was issued on 13.9.2010. In response to the same

A.R. of the Assessee appeared and filed necessary documents which was

examined by the AO and lastly the AO made the addition of Rs.

22,82,98,179/- on account of unexplained loan from following persons:-

M/s Arlington Impex Pvt. Ltd. Rs. 5,92,01,579/-

Sh. DK Gupta Rs. 9,12,96,600/-

Sh. Pankaj Kapoor Rs. 7,30,00,000/-

Sh. Tanish Mohan Rs. 48,00,000/-

Total Rs. 22,82,98,179/-

3.1 AO has also made addition on a/c house hold expenses of Rs. 3 lacs.

Thereafter, assessed the total taxable income at Rs. 24,30,17,952/- and

completed the assessment vide order dated 21.12.2010 passed u/s. 143(3)

of the Act in the following manner:-

Income from House Property

Declared as per return Rs. 1,23,66,113/- Income from Capital Gain

Declared as per return Rs. 1,14,708/- Income from other sources

Declared as per return Rs. 20,49,914/- Add: as per Para-9 above Rs. 22,82,98,179/- Add: House Hold expenses Rs. 3,00,000/- Rs. 23,06,48,093/-

ITA NOS. 142, 5789, & 608/DEL/2013

disallowed Gross Total Income Rs. 24,31,28,914/- Less: Deduction Under Rs. 1,10,962/- Chapter VI-A Total Taxable Income Rs. 24,30,17,952/-

appeal before the Ld. CIT(A) who vide impugned order dated 26.11.2012 has

partly allowed the appeal of the assessee.

appeal before the Tribunal.

Application u/R 46A on 28.4.2011 before the Ld. CIT(A). In the said

application the Assessee has submitted that the AO has not given sufficient

time to produce some evidences for substantiating the claim of the asessee

and completed the assessment in a hurry manner which is contrary to the

principle of natural justice. The assessee has filed some documentary

evidence by stating that these documents are not additional evidence, but

only clarificatory in nature which the Ld. CIT(A) has mentioned in para 4 to

6 at page no. 4 to 5 of the impugned order. Ld. CIT(A) has asked for the

Remand Report from the AO who vide Remand Report dated 20.7.2011

submitted that the AR of the Assessee attended the hearing on 24.11.2010,

1.12.2010, 20.12.2010 and 21.12.2010 and filed certain details on this

aspect also on which addition has been made i.e. source of loan taken by

the assessee during the year. Hence, to say that no sufficient opportunity

was given to the assesse on the issue on which subsequently addition was

ITA NOS. 142, 5789, & 608/DEL/2013

made is factually incorrect. In the rejoinder by the assessee dated

22.11.2011 to the Remand Report of the AO, assessee has submitted that

the AO has not controverted the averments of the assessee made in the

Application u/r 46 of the I.T. Rules dated 28.4.2011, because the AO was

satisfied with the evidence filed before him during the course of hearing and

did not require any further evidence to establish the genuineness of the

loans.

show cause notice as to why the request of admitting additional evidence

under rule 46A should not be rejected and the assessee vide reply dated

07.11.2012, filed copy of Appeal order dated 06.04.2011 for AY 2006-07

and 2007-08 passed by the Ld. CIT(A)-II, Delhi wherein Application of the

assessee for admitting fresh evidence under Rule 46A has been allowed. Ld.

CIT(A) admitted the additional evidence filed by the assessee and

adjudicated the ground relating to the addition of Rs. 22,82,98,179/- on

account of unexplained loans given to 4 persons mentioned in para no. 4 at

Page 11 of the impugned order. Ld. CIT(A) has discussed all the evidence

produced by the assessee on the unexplained loans and household

expenses and finally passed the impugned order dated 26.11.2012 and

partly allowed the appeal of the assssee by confirming the following

additions :-

i) Rs. 3,87,33,295/- out of the loan from M/s Arlington Impex Pvt. Ltd. as deemed dividend u/s. 2(22)(e).

ITA NOS. 142, 5789, & 608/DEL/2013

ii) Rs. 59,21,600/- out of loan from Sh. DK Gupta and his AOP u/s. 56(2)(vi).

iii) Rs. 3,30,00,000/- out of loan from Sh. Pankaj Kapur u/s. 56(2)(vi).

iv) Rs. 48,00,000/- being loan from Ms. Tanish Mohan u/s. 56(2)(vi).

stated that Ld. CIT(A) has made the additions in dispute u/s. 2(22)(e) and

56(2)(vi) of the Income Tax Act, 1961, inspite of the fact that the AO has not

considered any issue pertaining to these two sections. He further stated

that Assessee has filed his Written Submissions on merits before the Ld.

CIT(A, on the additions made by the AO, but the Ld. CIT(A) has wrong fully

made the addition on a ‘Different Heads’ of income which have not been

made by the AO. Ld. Counsel for the assessee objected the impugned order

on the ground that Ld. CIT(A) did not have any jurisdiction to make such

additions on the issues which were never considered by the AO. He further

stated that though the powers of the Ld. CIT(A) are co-terminus with the

powers of AO yet he has jurisdiction only on those items which have been

considered by the AO irrespective of the fact whether the issue is subject

matter of appeal or not. According to him Ld. CIT(A) have no jurisdiction

over those issues which have not been considered by the AO may be subject

matter of revision u/s. 263 or reassessment u/s. 147 of the Act. He stated

that if Ld. CIT(A) tries to examine those issue which have not been

considered by the AO, Section 147 as well as Section 263 of the Act will

become redundant and the conditions for their operation will be nullified.

ITA NOS. 142, 5789, & 608/DEL/2013

He requested that the impugned order passed by the Ld. CIT(A) be cancelled

and the addition may be deleted. In support of his arguments, he cited the

following case laws:-

a) CIT vs. Union Tyres 250 ITR 556 (Del. )

b) CIT vs. Sardari Lal & Co. 251 ITR 864 (Del.) (FB)

c) CIT vs. Rai Bahadur Hardutroy Motilal Chamaria, (1967) 66 ITR 443 (SC)

d) Holcim (India) Pvt. Ltd. vs. DCIT 2013 TIOL 903 ITAT- Del.

8.1 Ld. DR relied upon the order of the AO and reiterated the contentions

raised in the grounds of appeal and stated that the same may be restored.

especially the written submissions filed by the Ld. Counsel of the assessee

alongwith the various judgments of the Apex Court as well as Hon’ble

Jurisdictional High Court. We would like to reproduce the finding given by

the Ld. CIT(A) on the issues in dispute which are as under:-

(i) With regard ground no. 1 relating to confirming the addition of Rs.

3,87,33,295 out of the loan from M/s Arlington Impex Pvt. Ltd. as deemed

dividend u/s. 2(22)(e), the Ld. CIT(A) has given his finding vide para no. 5.4

& 5.5 at pages 16 & 17 of the impugned order which are reproduced as

under:-

5.4 It is undisputed that M/s Arlington Impex Pvt. Ltd. is a company incorporated on 12.3.1990 under the Companies Act,1956. The company has been regularly filing income tax

ITA NOS. 142, 5789, & 608/DEL/2013

returns and meeting other statutory requirements. During the previous year (FY 2007-08) the Co. had income from rent and interest on FDRs. In the immediately preceding year (AY 2006- 07), it had some contract income also. The fund availability with the company at the beginning of the previous year on 1.4.2007 was Rs.7.81 crore, consisting of share capital of Rs.1,00,000/- reserves and surplus of Rs.2,16,194/- and unsecured loans from Directors / share holders / corporate of Rs. 7,78,17,727/-. These funds were invested in fixed assets of Rs.I,29,60,000/--, cash in bank balances of Rs.5,32,72,409/- and loans and advances of Rs.l,43,22,034/-. to the end of the previous year i.e. on 31.3.2008, the fund available reduced to Rs.6.24 crore mainly on account of reduction on loans from directors / share holders from Rs.3.53 crore to Rs.1.50 crore. These funds were invested in fixed assets, cash and bank balances and loan & advances. The cash and bank balance decreased to Rs.3,21,785/- while the loan and advance Increased to Rs.5,45,32,091/-. The details of loans and advances filed indicates that an amount of Rs. 3,87,33,295/- is due from the appellant as "advances recoverable". Thus the company had sufficient funds to advance money to the appellant. It is also undisputed that the transaction took place between disclosed bank accounts of the company and the appellant. In the circumstances, the stand taken by the revenue that amount received by the appellant from the Company is unexplained cannot be sustained in view of the evidences available on record.

5.5 However it is seen from the detail' filed that no interest is charged by the company or paid by the appellant. 0 income from business has been disclosed by the appellant. Therefore, these amounts cannot be considered as trading advances. Most of the borrowed funds have been invested by the appellant in the properties and other investments. 0 provision for interest has

ITA NOS. 142, 5789, & 608/DEL/2013

been made by the appellant on such borrowed funds. It is also seen from the record that the appellant is a shareholder and director of MIs Arlington Impex Pvt. Ltd. Together with his father Sh Vinay Puri, the appellant controls 99% share of the company. Section 2(22)(e) provides that 'dividend' includes any payment by a company, company in which the public are substantially interested, made after 31st day of May, 1987 by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares holding not less than 10% of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has substantial interest. Section 2(14)(ii) defines income to include dividend. Therefore, the sums paid by M/s Arlington lmpex Pvt Limited to the appellant Sh Vikrant Puri, who is shareholder and Director of the company, and having controlling rest with his father Sh. Vinay Puri, is chargeable to tax u/s 2(22)(e) read with 2(24)(ii). As the amount outstanding at the end of the previous year was Rs.3,87,33,295/- the balance of Rs. 2,04,68,314/- having been returned by the appellant to the company during the previous year, only this amount is chargeable. Accordingly, out of the unexplained loan from M/s Arlington Impex Pvt. Ltd., addition of Rs. 3,87,33,295/- is sustained as ‘deemed dividend’ as discussed above. Appellant gets relief of Rs. 2,04,68,314/- (i.e. 5,92,01,579/- minus Rs. 3,87,33,295/-).

(ii) With regard ground no. 2 relating to confirming the addition of

Rs. 59,21,600/- out of loan from Shri D. K. Gupta and his AOP u/s 56(2)(vi),

the Ld. CIT(A) has given his finding vide para no. 6.5 & 6.5 at pages 22 & 23

of the impugned order which are reproduced as under:-

“6.5 However, it is also to be noted that frequent and high value fund transfers without provision for corresponding interest among unrelated entities are not normal business transactions. I do not 9

ITA NOS. 142, 5789, & 608/DEL/2013

find anything in the submissions filed on behalf of the appellant that establishes commercial expediency of these transactions. Section 56 provides that:

“56. (1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head “Income from other sources”, if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. (2) In particular, and without prejudice to the generality of the provisions of sub- section (1), the following incomes, shall be chargeable to income-tax under the head “Income from other sources”, namely :— …….. [(vi) where any sum of money, the aggregate value of which exceeds fifty thousand rupees, is received without consideration, by an individual or a Hindu undivided family, in any previous year from any person or persons on or after the 1st day of April, 2006 6[but before the 1st day of October, 2009], the whole of the aggregate value of such sum: Provided that this clause shall not apply to any sum of money received— (a) from any relative; or (b) on the occasion of the marriage of the individual; or (c) under a will or by way of inheritance; or (d) in contemplation of death of the payer; or (e) from any local authority as defined in the Explanation to clause (20) of section 10; or (f) from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in clause (23C) of section 10; or (g) from any trust or institution registered under section 12AA. Explanation.—For the purposes of this clause, “relative” means— (ii) brother or sister of the individual; (iii) brother or sister of the spouse of the individual; (iv) brother or sister of either of the parents of the individual; (v) any lineal ascendant or descendant of the individual; (vi) any lineal ascendant or descendant of the spouse of the individual; (vii) spouse of the person referred to in clauses (ii) to (vi);]…..”

6.6 The appellant is an individual. He is not related to Sh. DK Gupta. The amounts have been received without consideration. There is no provision of interest for the amounts received. The commercial expediency of these transactions has not been

ITA NOS. 142, 5789, & 608/DEL/2013

explained or established. In the circumstances, the provisions of section 56(2)(vi) as narrated above would be applicable. Accordingly, I hold that the amount of Rs. 59,21,600/- , being the outstanding balance at the end of the previous year in the name of Sh. DK Gupta and his AOP, to be amount received without consideration chargeable to tax u/s. 56(2)(vi) of the I.T. Act, 1961. Thus, out of Rs. 9,12,96,600/- made by the AO as unexplained loan from Sh. DK Gupta and his AOP, the sum of Rs. 59,21,600/- is sustained as income being amount received without consideration as above. The balance amount of Rs. 8,53,75,000/- is deleted as this amount was returned by the appellant to Sh. DK Gupta during the previous year itself.”

(iii) With regard to ground no. 3 relating to confirming the addition of Rs.

3,30,00,000/- out of loan from Shri Pankaj Kapur u/s 56(2)(vi), the Ld.

CIT(A) has given his finding vide para no. 7.4 at page 27 of the impugned

order which are reproduced as under:-

“7.4 I have considered the matter. In the given facts of the case, particularly that the creditor is a non-resident Indian and a trade licence holder (No. 1130) from Ajman Free Zone Authority, Government of Ajman (UAE) having his own source of income and transactions having taken place through the banking channel, it cannot be held that the amount received by the appellant from Sh. Pankaj Kapur is unexplained. However, for the reasons detailed in para 6.5 & 6.6 above, I hold that the amount of Rs. 3,30,00,000/-, being the outstanding loan in the name of Sh. Pankaj Kapur, to be amount received without consideration chargeable to tax u/s. 56(2)(vi) of the I.T. Act, 1961. Thus, out of Rs. 7,30,00,000/- made by the AO as unexplained loan from Sh. Pankaj Kapur, the sum of Rs. 3,30,00,000/- is sustained as income being amount received without consideration as above. The balance amount of Rs. 4,00,00,000/- is deleted as this 11

ITA NOS. 142, 5789, & 608/DEL/2013

amount was returned by the appellant to Sh. Pankaj Kapur during the previous year itself.”

(iv) With regard to ground no. 4 relating to confirming the addition of Rs.

48,00,000/- being loan from Ms. Tanisha Mohan u/s 56(2)(vi), The Ld.

CIT(A) has given his finding vide para no. 8.4 & 8.5 at pages 29 & 30 of the

impugned order which are reproduced as under:-

“8.4 I have considered the matter. The income of Smt. Tanisha Mohan from house property was Rs. 1,28,09,976/- during the previous year and was clubbed with the income of her husband Sh. Rajesh Mohan in the return of income filed by Sh. Rajesh Mohan. Therefore, Smt. Mohan appears to have sufficient resources of her own to advance the sum of Rs. 48,00,000/- to the appellant. It is, however, seen that two payments were made to the appellant from bank accounts of minor daughters Alia Mohan and Amani Mohan with CITI Bank, South Extension, New Delhi of Rs. 3,00,000/- vide cheque no. 139126 and Rs. 5,00,000/- vide cheque no. 139177 on 8.1.2008. I find that in the copy of the return of income and computation of Sh. Rajesh Mohan, no income of the two minor daughters has been clubbed. If the two minors are having separate bank accounts, they would have some income which would be taxable. There is no such indication from the documents filed. The AO is directed to inform the AO of Sh. Rajesh Mohan regarding this matter.

8.5 Further, for the reasons detailed in para 6.5 and 6.6. above, I hold that the amount of Rs. 48,00,000/-, being the outstanding balance at the end of the previous year in the name of Smt. Tanisha Mohan, to be amount received without consideration chargeable to tax u/s. 56(2)(vi) of the I.T. Act, 1961. Thus, entire addition made by the AO as unexplained loan from

ITA NOS. 142, 5789, & 608/DEL/2013

Smt. Tanisha Mohan is sustained as income being amount received without consideration as above.”

9.1 We have gone through the assessment order as well as the impugned

order passed by the Ld. CIT(A) on the additions in dispute, we are of the

view that after admitting the additional evidence, Ld. CIT(A) has held that

the stand taken by the Revenue that amount received by the assessee from

the company is unexplained cannot be sustained is a correct one and

therefore, we are in agreement with this finding, but later Ld. CIT(A) has

diverted his view and wrongly applied the provisions of sections 2(22)(e) read

with section 2(24)(ii) and section 56(2)(vi) of the Income Tax Act, 1961,

which is not in his jurisdiction and also not sustainable in the eyes of law.

9.2 After going through the additions made by the AO as mentioned in

vide para 3 & 3.1 at pages 2&3 of this Order as well as findings given by the

Ld. CIT(A) on the issues in dispute raised in the grounds of appeals involved

in the present Appeal alongwith the judgment of the Apex Court and

Hon’ble High Court decision cited by the Ld. Counsel of the assessee, as

aforesaid. We are of the considered view that Ld. CIT(A) have made these

addition u/s 2(22)(e) and 56(2)(vi) of the I.T. Act, 1961 under different heads

which has not been discussed / adjudicated by the AO in the assessment

order which is not sustainable in the eyes of law. The AO has not considered

any of these issues pertaining to these sections. In our view Ld. CIT(A) did

not have any jurisdiction to make any such additions on the issues which

were never considered by the Assessing Officer in the assessment order.

Although the powers of the CIT(A) are co-terminus with the powers of the

AO, yet the Ld. CIT(A) has jurisdiction only on those issues which have 13

ITA NOS. 142, 5789, & 608/DEL/2013

been considered by the AO irrespective of the fact that whether the issue is

subject matter of the Appeal or not. The Ld. CIT(A) does not have any

jurisdiction over those issues which have not been considered by the AO.

This may be subject matter of revision u/s. 263 of the I.T. Act or

reassessment u/s. 148 of the I.T. Act. If the Ld. CIT(A) tries to examine

those issues which have not been considered by the AO, then the provisions

of section 147 as well as section 263 of the I.T. Act will become redundant

and the condition for their operation will be nullified. Our view is supported

by the following judgments passed by the Apex Court as well as Hon’ble

High Court.

a) CIT vs. Union Tyres 250 ITR 556 (Del. )

b) CIT vs. Sardari Lal & Co. 251 ITR 864 (Del.) (FB)

c) CIT vs. Rai Bahadur Hardutroy Motilal Chamaria, (1967) 66 ITR 443 (SC)

d) Holcim (India) Pvt. Ltd. vs. DCIT 2013 TIOL 903 ITAT- Del.

9.3 Respectfully following the aforesaid decisions rendered by the Hon’ble

Supreme Court as well as Hon’ble High Court, we hold that Ld. CIT(A) did

not have any jurisdiction to make such additions on the issues which were

never considered by the AO as has been done in the present case.

Therefore, the impugned order on the issues involved in the grounds of

appeal are without jurisdiction and is not sustainable in the eyes of law,

hence, we cancel the impugned order dated 26.11.2012 being without

jurisdiction by accepting the Appeal filed by the Assessee.

ITA NOS. 142, 5789, & 608/DEL/2013

ASSESSEE’S APPEAL BEING ITA NO. 5789/DEL/2013 (AY 2008-09)

“1. Under the facts and circumstances of the case, the appellate order passed u/s 250 / 154 by the Ld. CIT (A) is illegal being against the principles of natural justice as the application u/s 154 was rejected without providing any opportunity of hearing. 2. Under the facts a, id circumstances of the case, the appellate order passed u/s 250 / 154 by the ld. CIT (A) is illegal as the Ld. CIT (A) has reviewed his own order u/s 250 under the garb of rectification u/s 154. 3. The Ld. CIT (A) has grossly erred on facts as well as in law in not replacing the outstanding balance at the end of the previous year in the name of Shri D.K. Gupta and his AOP by the actual figure of Rs. 15,00,000/- as against the figure of Rs. 59,21,600/- taken in the original appellate order. 4. The Ld. CIT (A) has grossly erred on facts as well as in law in not replacing the outstanding loan at the end of the previous year in the name of Shri Pankaj Kapur by the actual NIL figure as against the figure of Rs. 3,30,00,000/- taken in the original appellate order. 5. The appellant craves leave to add, alter, modify and withdraw any ground of appeal before or during the appellate proceedings.” 11. The assessee has filed the present appeal against the impugned order

dated 22.1.2013 passed by the Ld. CIT(A) stating therein that appellate

order passed u/s 250 / 154 by the Ld. CIT (A) is illegal being against the

principles of natural justice. The assessee has challenged the impugned

order of the Ld. CIT(A) on the averments made by the assessee in the

grounds of appeal.

u/s. 250 by the Ld. CIT(A) in deciding the Assessee’s Appeal in ITA No.

142/Del/21013, as aforesaid, being without jurisdiction on the facts and

circumstances explained in detail, by respectfully following the Apex Court

decision as well as Hon’ble High Court decisions, we are of the view that this 15

ITA NOS. 142, 5789, & 608/DEL/2013

Assessee’s Appeal being ITA No. 5789/Del/2013 filed against the Ld.

CIT(A)’s order dated 22.1.2013 passed u/s. 154 r.w.s. 250 of the I.T. Act,

1961, has become infructuous and dismissed as such.

REVENUE’S APPEAL BEING ITA NO. 608/DEL/2013 (AY 2008-09)

2008-09) read as under:-

“1. The order of the Ld. CIT(A) is not correct in law and facts.

dated 26.11.2012 relevant for the assessment year 2008-09. The Revenue

has challenged the deletion of addition of Rs. 2,04,68,314/-,

Rs.8,53,75,000/- and Rs.4,00,00,000/- made on a/c of unexplained loan /

cash credit raised vide ground no. 2 and also challenged the deletion of

addition of Rs. 3,00,000/- made by AO on a/c of insufficient withdrawals for

household expenses raised vide ground no. 3.

the Ld. CIT(A) while deciding the Assessee’s Appeal No. 142/Del/2013, as

ITA NOS. 142, 5789, & 608/DEL/2013

aforesaid. Keeping in view of our finding, the Revenue’s Appeal has become

infructuous on the issue no. 2, because we have already cancelled the

impugned order being without jurisdiction, as discussed in detail in our

aforesaid finding given in para no. 9 to 9.3 of this order.

15.1 As regards the ground no. 2 relating to deletion of addition of

Rs. 3,00,000/- made by AO on a/c of insufficient withdrawals for household

expenses is concerned, we are of the view that AO has made this addition

in dispute on estimate basis. Ld. CIT(A) in the Appeal filed by the assessee

has deleted the addition vide para no. 10.4 at page no. 31 & 32 of the

impugned order which is reproduced as under:-

“10.4 I have considered the matter. No doubt the

appellant is living jointly with his parents and, therefore,

withdrawal of all the members of the family living together

have to be considered while estimating house hold

expenditure. In fairness, I also notice that in the capital

account of the appellant as on 31.3.2008 drawings of Rs.

2,92,77,983/- have been shown. This fact has been

ignored by the AO and also not highlighted in the

submission filed on behalf of the appellant. With such large

drawings, the question of any addition on account of low

house hold expenses does not arise. This ground of the

appellant succeeds. Appellant gets relief of Rs. 3,00,000/-.”

15.2 After going through the aforesaid finding given by the Ld. CIT(A) on

the addition of Rs. 3 lacs, we are of the considered view that no interference

ITA NOS. 142, 5789, & 608/DEL/2013

is called for in the well reasoned order passed by the Ld. CIT(A) on this

issue, hence, we uphold the same and dismiss the ground no. 2 raised by

the Revenue in its Appeal. In the result, this Appeal filed by the Revenue

stands dismissed.

allowed and ITA No. 5789/Del/2013 (AY 2008-09) stand dismissed as

infructuous and the Revenue’s Appeal No. 608/Del/2013 (AY 2008-09) also

stands dismissed.

Order pronounced in the Open Court on 04/03/2016.

Sd/- Sd/-

[O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 04/03/2016

“SRBHATNAGAR” Copy forwarded to: - 1. Appellant - 2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches