Income Tax Appellate Tribunal - Delhi
Sandeep Kumar Garg, New Delhi vs Assessee on 17 February, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH 'SMC' NEW DELHI)
BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER
I.T.A. No.2585/Del./2011
Assessment year: 2002-03
Sandeep Kumar Garg Vs. Income-tax Officer,
Z-83, Loha Mandi, Naraina, Ward 27(1),
New Delhi New Delhi
Pan/GIR No. AEOPG 7887 F
(Appellant) (Respondent)
Appellant by : Shri V.K. Sabharwal, Advocate
Respondent by : Ms. Y. Kakkar, Sr. DR
ORDER
PER U.B.S. BEDI, JM:
This appeal of the assessee is directed against the order passed by learned CIT(A)-XXIV, New Delhi dated 17.02.2011 relevant to assessment year 2002-03 whereby besides challenging confirmation of initiation of proceeding u/s 147, assessee has also challenged confirmation of addition of Rs.95,000/- made by the Assessing Officer u/s 68 of the Income-tax Act, 1961.
2. Facts indicate that the Assessing Officer received information from the DIT(Inv.), New Delhi about accommodation entries taken by different persons/assesses. The list of such persons included the name of the assessee as one of the beneficiaries of accommodation entries. From the 2 I.T.A. No.2585/Del/2011 information, the Assessing Officer inferred that the assessee had taken accommodation entry of `95,000/- from Shri Leela Dhar during the year under consideration. On the basis of this information, the Assessing Officer initiated reassessment proceedings. In response to the notice u/s 148 of the Act, the assessee filed return on 17.4.2007. During /the assessment proceedings, the assessee submitted that the sum of `95,000/- was gift received from Shri Leela Dhar. However, the credit appearing in the bank account of the assessee on this score was not explained beyond shadow of doubt by the assessee, therefore, the Assessing Officer held it as undisclosed income of the assessee and assessed it accordingly u/s 68 of the Act.
2.1 Assessee challenged such action of the Assessing Officer in appeal and it was contended before the first appellate authority that neither initiation of proceeding u/s 147 was justified nor addition made of Rs.95,000/- u/s 68 is proper. Moreover, reasonable opportunity has not been afforded to the assessee before passing of the assessment order. Therefore, it was pleaded to delete the addition by quashing the reassessment. 2.2 Detailed arguments were advanced and various decisions were cited on the point of reassessment as well as on deletion of addition to plead for qashment of the order or in alternative, deletion of addition made. 2.3 Ld. CIT(A) discussed and considered each and every point of arguments raised before him in the light of various case laws cited. while considering and discussing the legal as well as factual aspects from paras 2 to 2.2, 3, 4 to 4.7 and 5 to 5.9 has concluded to dismiss the appeal of the assessee as per para 5.10 of his order which is reproduced as under:
"5.10 In view of the factual and circumstantial evidence as discussed above, I hereby come to the conclusion that the appellant has not 3 I.T.A. No.2585/Del/2011 received the gift. In this context, the attention is drawn to the observation 'the object of the court is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities' made by the Hon'ble Supreme Court with reference to the appeal filed against the decision of lower court in Jessica Lal murder case acquitting the culprits to state. The overall circumstance of the instant case discussed herein before establishes that the gift of Rs.95,000/- is non-genuine. Further, if evidences beyond reasonable doubt are not available, the totality of circumstances has to be looked into to evolve a process which would adapt to situation in pursuit of the truth & justice. Here the direct evidences establish that the gift is non-genuine. In nutshell, under the prevailing circumstances and in the light of decision of Hon'ble Supreme Court in the case of P. Mohan Kala and observations to decide the issue in light of decision in the case of Sumati Dayal, it emerges that the assessee has grossly failed to prove that he gift have been made for natural love and affection. The addition ofRs.95,143/- made by the o therefore is sustained including the sum/commission paid to take this accommodation entry/alleged gift."
2.4 Aggrieved, the assessee has come up in further appeal whereby besides challenging reassessment proceedings and addition made, assessee has also contested that reasonable opportunity of being heard has not been afforded to it and when AR of the assessee was especially asked to show any material or evidence as to how reasonable opportunity of being heard has not been afforded to the assessee before the A.O. and before Ld. CIT(A), he had no answer. He, at the very outset submitted that entire reassessment proceeding are bad in law because date and name of the assessee have been written by hand whereas other contents of the notice are typed and moreover, the notice is in the name of Sandeep Garg whereas the complete name of the assessee is Sandeep Kumar Garg and when specifically asked whether such objection was raised before the A.O. or before Ld. CIT(A), he very fairly submitted that no such objection has been raised and moreover, 4 I.T.A. No.2585/Del/2011 genuineness and bona fide of the reassessment proceedings have admittedly not been questioned before any of the lower authorities and relying upon the decision of Hon'ble Delhi High Court in the case of Signature Hotels Pvt .Ltd. Vs ITO and another, (2001) 338 ITR 51, it was pleaded for quashment of the reassessment proceedings and also for deletion of the addition made by the A.O. and confirmed by Ld. CIT(A).
3. Ld. D.R. strongly objected to all the pleas raised by the AR of the assessee. So far as the defect in the name and date and the name written by hand is concerned, it was submitted that there was no irregularity or infirmity because Section 292 B of the I. T. Act, 1961 covers the same and notice or proceedings shall not be invalid or deemed to be invalid merely because of any mistake defect or omission in the notice otherwise this is not even a mistake, Ld. D.R. relied upon the decision of Hon'ble Supreme Court in the case of Raymond Woollen Mills Ltd. Vs ITO 236 ITR 34, Phoolchand Bajranglal & Another Vs ITO & Another 203 ITR 456, CIT Vs Sanjay Kapoor (2008) (Jharkhand) 299 ITR 360 (Del.), Deshraj Udyog Chaman Udyog Vs ITO 318 ITR 06 (Alld.), Aditya Khanna Vs ACIT 208 Taxman 93 (Del.) and 207 Taxman 117 (Del.), It was pleaded that such pleas of the AR of the assessee cannot hold good and should be dismissed.
4. So far as validity of reopening is concerned, reliance was placed on the decision of Hon'ble Delhi High Court decision in the case of Rajat Export Import India Pvt. Ltd. Vs ITO 341 ITR 135 (Del.) and Sun Investment Pvt. Ltd. Vs ACIT 344 ITR 01 (Del.). So far as name of the assessee written as Sandeep Garg instead of Sandeep Kumar Garg is concerned, it is a trivial mistake and the assessee himself has written at some places as Sandeep Kumar Garg and at some places as Sandeep Garg and reference was made to page 40 of the paper book to support the plea. So it 5 I.T.A. No.2585/Del/2011 was strongly pleaded for upholding the orders of authorities below in initiation of reassessment proceedings. So far as case on merit is concerned, it was submitted that the amount has been deposited in the bank account two days before issuance of cheque and even if amount is routed through banking channel, this will not absolve the assessee from producing necessary evidence to support creditworthiness, genuineness and identity of the person (creditor) Since source has not been explained so addition was called for which was rightly made by the A.O. and confirmed by Ld. CIT(A) which action should be further confirmed. Reliance has been placed on various decisions including R K Mittals Case 3 ITR (Trib) 508 (Del.). Since, there was no occasion for gifting the amount to the assessee reliance was placed on ITO Vs Usha , Deshraj Udyog Chaman Udyog Vs ITO 318 ITR (AT) 394 (Alld.), Hacienda Farms P. Ltd. VS CIT 328 ITR 01 (Del.), 341 ITR 362 (Guj.), Mangilal Jain VS ITO (Mad.) 315 ITR 105 (Mad.), Rajiv Tandon Vs ACIT (Del.) 294 ITR 488 (Del.), CIT Vs Anil Kumar 292 ITR 552 (Del.), Yuvraj Vs Union of India (2009) 315 ITR 84 (Bom.) Citibank N.A. Vs S K Ojha & Others 257 ITR 663 (Bom.) and Sumati Dayal Vs ACIT 214 ITR 801 (S.C.). It was also submitted that there was no change of opinion and it was pleaded for dismissal of appeal of the assessee.
5. In order to counter the submissions of the Ld. D.R., Ld. counsel for the assessee submitted that the reasons have not been recorded when the assessee has declared the amount of gift in the return of income and Section 292 B is not applicable as notice of reassessment has not been issued to the proper person and the A.O. did not consider the reasonableness and bona fide of the assessee before making the addition. Therefore, it was pleaded for quashment of the order of re-assessment or alternatively, to delete the impugned addition.
6 I.T.A. No.2585/Del/20116. Both the sides have been heard and the material on record as well as relevant provisions of law and the case law cited by both the sides have been considered. The assessment order as well as the order of Ld. CIT(A) in first appeal has been duly considered and it is found that Ld. first appellate authority has discussed each and every point as raised before it in a very detailed and elaborate manner in the light of case law relied upon by the Ld. A.R. of the assessee in the first appeal. Since no infirmity or flaw has been pointed out or noticed in the impugned order, therefore, there is no option left but to concur with the findings and conclusion as drawn by Ld. CIT(A). As such, while upholding the order of Ld. CIT(A) on the basis and reasoning as given by him, the appeal filed by the assessee is dismissed.
7. As a result, appeal of the assessee gets dismissed.
8. Order pronounced in the open court on 08th Nov., 2013.
Sd./-
( U.B.S. BEDI ) JUDICIAL MEMBER Dt. 08/11/2013 NS/Sp Copy forwarded to:-
1. The appellant
2. The respondent
3. The CIT
4. The CIT(A)-XXIV, New Delhi
5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.
True copy. By Order
(ITAT, New Delhi).