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Income Tax Appellate Tribunal, DELHI BENCH ‘F’, NEW DELHI
Before: SH. N. K. BILLAIYA & SH. C.N. PRASAD
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI
BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. C.N. PRASAD, JUDICIAL MEMBER ITA No.7114/Del/2017 Assessment Year: 2014-15 Jai Shankar Srivastava, Vs. DCIT Central Circle – 18 D-153, Pinnacle, DLF New Delhi Phase-5, Gurgaon Haryana 122002 PAN No.APQPS0001J (APPELLANT) (RESPONDENT) Appellant by None Respondent by Sh. Rohit Garg, CIT DR Date of hearing: 13/12/2023 Date of Pronouncement: 13/12/2023 ORDER PER N. K. BILLAIYA, AM:
This appeal by the assessee is preferred against the order of the CIT(A)-28, New Delhi dated 18.09.2017 pertaining to A.Y.2014-15.
The grievance of the assessee read as under :- “1. Because CIT (A) has hold assessment as valid without keeping into Law and facts that no warrant has been
issued u/s 132(1) of the IT Act as well as no incriminating material found against the assessee.
Because CIT (A) has treated the Panchnama issued in the name of Jai Shanker Srivastava as valid warrant of authorization u/s 132(1) without keeping into law &facts that such warrant was issued & served on the Bank of the assessee and executed by the Manager of the Axis Bank and not served on the assessee and therefore bank of the assessee is not a person as defined u/s 2(31) of the Income Tax Act, 1961. 3. Because CIT (A) has treated the Panchnama issued in the name of Jai Shanker Srivastava a valid warrant of authorization u/s 132(1) and thereby impounding a sum of Rs 33,93,195/- through a Pay order dated 24.10.2013 without keeping into law &facts that there is no provision u/s 132 to take fund directly from the Bank of the Assessee. 4. Because CIT (A) has treated the Proceedings as valid u/s 132(1) of the I.T Act without keeping into law &facts for impounding any assets which is in the control of other than the assessee be initiated u/s 132(1)(a)(c) of the I.T Act, instead of u/s 132(1) of the I.T Act therefore entire proceeding u/s 153A in lieu of sec 132(1) is bad in law. 5. Because CIT (A) has stated that the search and seizure actions which was conducted as per the Information
collected by the Investigation wing and that to after due process carried out which hold diversion of money fraudulent from NSEL is liable for tax as it is an Income of the Assessee without keeping in view of Law and facts that Session Court of MPID has observed in its order on the plea of Dy Director of Income Tax (Investigation wing) that it is almost undisputed that the amount is transferred from the account of NSEL and therefore it is apparently and basically the money from the pockets of investors and dealing with the NSEL which is repayable to NSEL. 6. Because CIT (A) has treated the Proceeding initiated u/s 143(2) in lieu of section 153A as valid without keeping into the law & facts that proceedings under the assessment for the assessment year is not the part of Proceedings u/s 153A of the Income Tax Act. 7. Because the CIT (A) treated the assessment as valid one without keeping in view of law and facts the provision of section 153A is inapplicable in the absence of any material found and seized from the premises of the assessee. 8. Because CIT(A) has treated the proceedings valid even though the notice issued under section 143(2) beyond the period of six month after filing of the return based on the decision of jurisdictional High Court in the case of Ashok Chaddha vs Income Tax Officer without keeping in view of law and facts the assessment proceeding for the year under assessment is not u/s 153(1)(a) of the IT Act.
Because CIT (A) has confirmed the addition made u/s 2(24)(iv) of the I.T Act of 473.71 cr in the hands of the assessee by holding as a business income as per provision of section 28 under the head of Profit and Gains of business or profession in the hands of group companies M/s Tavishi Enterprises Pvt Ltd, M/s Brindal Commodity Pvt Ltd & Mohan India Pvt Ltd without keeping in view of law and facts that the money received form NSEL by all the three companies as stated above has not assessed in the hand of group companies by the AO and therefore finding laid down by the CIT (A) treated as income of the same nature in the hand of the appellant is bad in law. 10. Because CIT (A) has confirmed the addition of Rs 473.71 Cr under the provision of section 2(24)(iv) of the Act which is a definition of income and not a part of total income defined as per section 2(45) of the Act as laid down in respect of computation of income. 11. Because CIT (A) has confirmed the addition of Rs 473.71 Cr under the provision of section 2(24)(iv) of the Act which is a definition of income without keeping in view of law and facts that the income is computed as per section 4, 5 & 14 of the Income Tax Act, 1961. 12. Because CIT Appeal has confirmed the addition of Rs 473.71 Cr under the provision of section 2(24)(iv) of the act without keeping in view of law and facts that the income is not repayable as evident from the agreement entered by
the assessee with NSEL during the previous year relevant to the assessment year under assessment. 13. Because CIT (A) has confirmed the addition of Rs 473.71 Cr under the provision of section 2(24)(iv) of the act without keeping in view of law and facts that the real income is to be assessed and not on hypothetical basis. 14. Because CIT(A) has confirmed the addition of Rs 473.71 Cr without keeping in view of law and facts that neither AO nor LD.CIT(A) has found any sum which directly benefited to the assessee and assesssee own books of accounts has been accepted in Toto since A.Y 2008-09 to 2014-15 except an addition has been made u/s section 2(24)(iv) of the act in addition to the returned income in A.Y.2014-15. 15. Because CIT(A) has confirmed the addition of Rs 473.71 Cr without keeping in view of law and facts that the addition has been made in the hands of assessee is bad-in-law based on the observation in the assessment order of group companies M/s Tavishi Enterprises Pvt Ltd, M/s Brinda Commodity Pvt Ltd & Mohan India Pvt Ltd even though income assessed In the hands of group companies is NIL. 16. Because CIT(A) has confirmed the addition of Rs 473.71 Cr in the A.Y.2014-15(Year in Appeal)without keeping in view of law and facts that the assessee returned income for A.Y-2013-14 has accepted on the
same system of accounting as followed in the A.Y-2014-15 even though the funds have been received in AY 2013-14 as well as in AY 2014-15. 17. Because CIT(A) CIT(A) has confirmed the amount of Rs 473.71 treated as income after applying the provision of Income Tax Act without keeping in view of law and facts that the amount in question is not income as the amout of Rs 473.71 is within the jurisdiction of provision of MPID Act which override the provisions of other Act including Income Tax Act as held by Special Court constituted under the MPID Act at Session Court Mumbai dated 02.12.2013 and also confirmed by the Session (MPID) for Greater Bombay dated 08.01.2014. 18. That the Assessee reserves the right to amend, delete, add, substitute, modify or alter any one or more of the grounds of appeal at the time of hearing.”
This appeal was listed for hearing on 22.04.2021 thereafter on several occasions the appeal was listed for hearing but none appeared on behalf of the assessee. The notices issued were returned back and are part of our record.
We are left with no choice but to dismiss the appeal for non prosecution.
Decision announced in the open court on 13.12.2023.
Sd/- Sd/- (C.N. PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* Date:- .12.2023 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI