Income Tax Appellate Tribunal - Delhi
Shri Rajiv Gulati, New Delhi vs Acit, New Delhi on 14 August, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'F', NEW DELHI
Before Sh. N. K. Saini, AM and Smt. Beena A. Pillai, JM
ITA No. 3484/Del/2014 : Asstt. Year : 2010-11
Sh. Rajiv Gulati, Vs ACIT,
C-8A, DDA MIG Flats, Mayapuri, Circle-27,
New Delhi-110064 New Delhi-110002
(APPELLANT) (RESPONDENT)
PAN No. ACRPG7838N
Assessee by : Sh. M. S. Mathuria, Adv.
Revenue by : Smt. Paramita Tripathy, CIT DR
Date of Hearing : 07.08.2017 Date of Pronouncement : 14.08.2017
ORDER
Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 25.03.2014 of ld. CIT(A)-XXIV, New Delhi.
2. Following grounds have been raised in this appeal:
"[1] On the facts and in law, learned CIT (A) has erred in sustenance of additions of Rs.1,30,00,000/- made by the AO under suspicion and without taking due cognizance of the submissions made before the said AO supported with documentary evidences.
[2] On the facts and in law, learned CIT (A) has erred in not taking cognizance of unconditional affirmation and confirmation by the "real owner" of the impugned sum of Rs. 1,30,00,000/- that the said sum was deposited by the said "real owner" with the 2 ITA No. 3484/Del/2014 Rajiv Gulati Appellant for resale of plots of agricultural land situated at Nasarpur, Tehsil and District Rohtak (Haryana) which were purchased by the Appellant from Shri Rishi Prakash s/o Shri Chander Sarup of Village : Titoli, Tehsil and District Rohtak (Haryana).] [3] On the facts and in law impugned additions of Rs. 1,30,00,000/- made by the AO and sustained by the CIT (A) may kindly be deleted."
3. During the course of hearing the ld. Counsel for the assessee at the very outset stated that the impugned amount was added to the income of the assessee on substantive basis and protective addition was made in the hands of Sh. Tajender Kakkar. In support of the above contention, the ld. Counsel for the assessee furnished copy of the assessment order dated 26.03.2013 passed u/s 143(3) of the Income Tax Act, 1961 in the case of Sh. Tajender Kakkar. It was further stated that against the aforesaid assessment order, Sh. Tajender Kakkar filed an appeal before the ld. CIT(A)-34, New Delhi who dismissed the same vide order dated 27.02.2017. The ld. Counsel for the assessee furnished a fact sheet and also the affidavit and requested to delete the addition made in the hands of the assessee.
4. In his rival submissions the ld. CIT DR supported the orders of the authorities below and further submitted that the 3 ITA No. 3484/Del/2014 Rajiv Gulati addition made by the AO and sustained by the ld. CIT(A) was justified.
5. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the assessee had filed an affidavit and also fact sheet which are reproduced verbatim as under:
(i) Fact Sheet:-
Paper Book Sr. Description Page Nos. Para No s.
1 Appellant is an "Individual" assessed under PAN: 01 and 15 to 20 [2] Exh.
ACRPG-7873-N. Return of income for A. Y. 2010 - "A" 11 was filed u/s.139 on 15.10.2010.
2 His source of income : 01 and 15 to 20 [2] and [a] Salary Income as Chief Executive (Clearing) [3.1] and of Mumbai Office of Messrs. Skyline Cargo Agents [3.2] Pvt. Ltd., - Licensed Registered Custom House Exh. "A"
Agent [CHA], having their registered office at B- 411, Somdutt Chambers -1,5, Bhikaji Cama Place, New Delhi - 110 066.
[b] Business / Profession Income as agent in Immovable Properties and [c] Bank Interest on savings bank account. 3 On 28,12.2009, the Appellant had entered into an 01 and 15 to 29 [3.2] agreement for purchase of agricultural plots of Exh. "B" land situated at Nasarpur, Tehsil and District Rohtak with Shri Rishi Prakash s/o Shri Chander Sarup residing at Village: Titoli, Tehsil and District Rohtak, (Haryana) for total consideration of Rs.l,83,75,000/=. On the date of signing the said agreement, the Appellant had paid to said Shri Rishi Prakash sum of Rs.5,00,000/= as token amount and said agreement was duly registered 4 ITA No. 3484/Del/2014 Rajiv Gulati with the competent authority under serial No. 1437.
4 On 28.12.2009, the Appellant entered into an 02 and 30 to 33 [3.2] agreement to sale [ above said agricultural plots of Exh. "C" land situated at Nasarpur, Tehsil and District Rohtak] with Shri Tajender Kakkar s/o Shri G. D. Kakkar residing at D-7/7176, Sector "D", Vasant Kunj, New Delhi - 110 070 for total consideration of Rs. 1,90,00,000/= of which Rs. 11,25,000/= is to be paid to the Appellant by the said Shri Tajender Kakkar and balance Rs.l,78,75,000/= to be paid to above named Shri Rishi Prakash s/o Shri Chander Sarup residing at Village: Titoli, Tehsil and District Rohtak, (Haryana) through the Appellant in terms of said agreement to sale dated 28.12.2009.
5 The said Shri Tajender Kakkar [purchaser of 02 [3.3] above said plots of land] delivered total sum of Rs. Exh. "C" 1,30,00,000/= by 31.01.2010 to the Appellant and requested to extend the time for payment of balance sum of Rs.60,00,000/= till 31.03.2010. - Also see serial No.14 hereunder.
6 One of the clients of the said Messrs. Skyline 02 and 43 to 77 [3.4] Cargo Agents Private Limited [Licensed CHA] Exh. "G-1"
(Employers of the appellant), namely, Messrs. Starlight Overseas (having their offices at New Delhi and Faridabad - Haryana), have imported between 01.04.2009 to 31.12.2009 - 63 consignments of Knitted Flocked Fabrics / PU Coated Fabrics / Non Texturised Polyester Lining Fabrics Pa coated Polyester Fabrics from China.
Out of said 63 consignments -
52 consignments were cleared by the said Messrs. Starlight Overseas through ICD, Ballabhgarh by Licensed CHA Messrs. Aknsha Logistics of Delhi and 11 consignments were cleared through ICD, Mulund by Licensed CHA Messrs. Skyline Cargo Agents Private Limited. (Employers of the appellant)
7 Intelligence was gathered by Mumbai Zonal Unit 02 and 43 to 77 [3.4] of Directorate of Revenue Intelligence [hereinafter Exh. "G-1"
5 ITA No. 3484/Del/2014Rajiv Gulati referred to as "the said DRT] that the said Importer Messrs. Starlight Overseas has undervalued such imported goods and have evaded payment of Custom Duty by such mis-declaration of cost of such imported goods by the said Messrs. Starlight Overseas.
In consequence of such information, the DRI have carried out search at place of business and residence of said Messrs. Starlight Overseas as well as place of Licensed CHAs Messrs. Aknsha Logistics of Delhi and Messrs. Skyline Cargo Agents Private Limited of Mumbai including place of residence of the Appellant who is a CEO at Mumbai Office of said Messrs. Skyline Cargo Agents Private Limited on 03.02.2010.
8 In the process of impugned search the officials of 02 and 30 to 33 [3.5] read the DRI have found cash of Rs. 1,72,67,000/= at with [3.3] the place of residence of the Appellant who is a and CEO at Mumbai Office of said Messrs. Skyline Exh. "C" Cargo Agents Private Limited. Even though the Appellant has explained that the said sum of Rs. 1,72,67,000/= consist of --
Rs. 42,67,000/= belongs to the Appellant out of Rs.48,87,000/= disclosed from his proprietary business earned during the relevant accounting year.
Rs. 1,30,00,000/= belongs to Shri Tajertder Kakkar residing at D-
7/7176, Sector "D", Vasant Kunj, New Delhi - 110 070
- being advance received against agreement to sale dated 28.12.2009 as referred in Para [3.3] here above.
9. Said search party disbelieving the facts as narrated 02 and 45 [3.6] by the Appellant and had seized impugned sum of Rs.1,72,67,000/= from the Appellant on 03.02.2010.
10. The Appellant was unlawfully detained between 03 [3.7] 03.02.2010 to 05.02.2010 in the office of the DRI 6 ITA No. 3484/Del/2014 Rajiv Gulati and was forced to sign some statements involving some Customs Officers under coercion and applying third degree treatment with verbal threat of dire consequences and putting in the jail. The Appellant has repeatedly said that he has acted only as Licensed CHA of the said Messrs. Starlight Overseas who are the Importers and Owners of goods imported from China. If any under valuation is made by the said Messrs. Starlight Overseas, the Appellant and 7 or his employers Messrs. Skyline Cargo Agents Private Limited are not the beneficiary and any Custom Duty evasion by the said importer Messrs. Starlight Overseas, they are solely responsible and liable for the action under the Customs Act, 1962.
11. The Appellant was released from unlawful 03 [3.7] to detention by the DRI on 05.02.2010. Due to third [3.10] and degree and inhuman treatment meted out by the Exh. "D" to DRI, he was not able walk and he was rushed to "F" Casualty Ward of Sir J. J. Hospital; Deen Dayal Upadhyay Hospital, New Delhi and Escort Heart Institute & Research Centre Ltd., at New Delhi between 05.02.2010 to 19.02.2010
12. After thorough investigation by the said Mumbai 3 read with page [3.11] and Zonal Unit of Directorate of Revenue Intelligence No.52 and 42 [3.12] Exh. [hereinafter referred to as "the said DRI"], they "G" and were satisfied and convinced that the appellant is "G-I"
innocent and adjudicated that ----
"No evidence could be gathered during investigation that the Rs.1.72 crores that had been seized from the residence of Shri Rajiv Gulati (Chief Executive of M/s. Skyline Cargo Agents (P) Limited, the CHA firm), at 701-702, B, Express Apartment, Yari Road, Versova, Mumbai
- 400061 under the reasonable belief that they represented the sale proceeds of smuggled goods, were actually so. This amount was therefore handed over to the Income Tax authority on 02.08.2010 [Asstt. Director of Income Tax (Investigation), Unit IV (1), ARA Centre, 2nd Floor, E-2, Jhandewalan Extension, New Delhi - 110 055] under intimation to Shri Rajiv Gulati for 7 ITA No. 3484/Del/2014 Rajiv Gulati proceeding under the Income Tax Act."
13. After requisition of the said sum of Rs. Page 1 and 2 of 1,72,67,000/= on 02.08.2010 U/S.132A, notice assessment order u/s.153A was issued by the ACIT, Circle 48(1), New Delhi on 28.09.2011 which was duly complied by the Appellant by filing his return of income for Assessment Year : 2010-11 on 14.10.2011
14. Appellant's authorized representative attended Page 2 to 4 of Para 8 and before the assessing officer from time to time and assessment order 9 Exh. "I" filed required information / evidences. r.w. PB page 4 to 6 On 11.12.2010 Survey action u/s. 133A was taken up against the said Shri Tajender Kakkar [purchaser of above said plots of land] who delivered total sum of Rs. 1,30,00,000/= by 31.01.2010 to the Appellant ( Kindly see serial No.5 hereabove) who unconditionally affirmed and confirmed that the said sum of Rs. 1,30,00,000/= "BELONGS TO HIM" and was kept with the Appellant for passing on to the owner of a plots of land which was agreed to be purchased by the "SAID REAL OWNER" of the said sum of Rs. 1,30,00,000/-.
15 Impugned assessment order passed u/s.153A 17 to 21 of appeal r.w.s. 143(3) on 28.03.2013 making addition of Rs. memo. 1,30,00,000/- u/s.69A under suspicion and discarding evidences produced and without considering the decisions relied on by the appellant along with unconditional affirmation and confirmation by the "SAID REAL OWNER" that the said sum of Rs.l,30,00,000/= "BELONGS TO HIM"
and was kept with the Appellant for passing on to the owner of a plots of land which was agreed to be purchased through the Appellant.
16 Appeal against impugned assessment order 3 to 14 of appeal dismissed by the learned CIT (A) mechanically and memo without considering the submission made and without considering the decisions relied on by the appellant.
17 Present appeal against impugned appeal order and assessment order.
8 ITA No. 3484/Del/2014Rajiv Gulati
(ii) The assessee also furnished an affidavit dated 19.06.2017 stating therein as under:
"I, Shri Rajiv Gulati son of Shri Yoginder Kumar Gulati, adult Indian, (permanently residing at C-8A, DDA MIG Flats, Mayapuri, New Delhi - 110 064) presently residing at 701/702, "B", Express Apartment, Yari Road, Versova, Mumbai-400061, solemnly declare and affirm as follows:-
1. I am regularly assessed to tax under PA Number: ACRPG-7837-N.
2. Return of income for assessment year: 2010-11 was electronically filed u/s.139 on 15.10.2010 declaring taxable income of Rs.51,67,216/= comprising "Income from salary" from Messrs. Skyline Cargo Agents Pvt. Ltd., Mumbai, "Income from Business/profession" being commission on purchase/sale of immovable properties and "income from other sources" - Interest on savings bank account. Again in compliance of notice u/s 153A, fresh return of income was filed on 14.10.2011.
3. For the sake of brevity and to avoid repetition, I affirm and confirm facts of the present appeal as enumerated in "FACT SHEET" filed herewith.
4. In course of my employment as Chief Executive (Clearing) at Mumbai Office of Messrs. Skyline Cargo Agents Pvt. Ltd., - Licensed Registered Custom House Agent [CHA], having registered office at B-411, Somdutt Chambers - 1, 5, Bhikaji Cama Place, New Delhi -110066, I cleared between 01.04.2009 to 31.12.2009, 11 [eleven] consignments of Knitted 9 ITA No. 3484/Del/2014 Rajiv Gulati Flocked Fabrics / PU Coated Fabrics / Non Texturised Polyester Lining Fabrics Pa coated Polyester Fabrics from China, through ICD, Mulund, Mumbai of an Importer Messrs. Starlight Overseas (Proprietor: Shri Sachin Malik] having offices at -
(a) 2D/49, Navrang Panchayat Gurudwara, NIT, Faridabad, Haryana-121001 and
(b) 4/14, First Floor, Roop Nagar, Delhi - 110 007.
5. It is alleged by the Customs Department that the said Importer "Messrs. Starlight Overseas" has undervalued such imported goods from China. Intelligence was gathered by Mumbai Zonal Unit of Directorate of Revenue Intelligence [hereinafter referred to as "the said DRI"], Customs that by such misdeclaration, said "Messrs. Starlight Overseas"
has "evaded payment of Custom Duty". In consequence of such information, the DRI have carried out search at place of business and residence of said "Messrs. Starlight Overseas" as well as place of Licensed CHA "Messrs. Aknsha Logistics" of Delhi [who cleared 52 consignments of Knitted Flocked Fabrics / PU Coated Fabrics / Non Texturised Polyester Lining Fabrics Pa coated Polyester Fabrics imported from China by the said Importer "Messrs. Starlight Overseas" through ICD, Ballabhgarh] and place of Licensed CHA "Messrs. Skyline Cargo Agents Private Limited" of Mumbai including my place of residence at 701/702, "B", Express Apartment, Yari Road, Versova, Mumbai - 400 061 on 03.02.2010.10 ITA No. 3484/Del/2014
Rajiv Gulati
6. In the search proceedings on 03.02.2010 at my residence, DRI officials seized Indian currency of Rs.l,72,67,000/= of my proprietary business being commission on purchase / sale of immovable properties under belief that said sum was sale proceeds of the undervalued goods imported by the said Importer "Messrs. Starlight Overseas".
Even though I explained them that the said sum of Rs.l,72,67,000/= consist of -
Rs. 42,67,000/= belongs to me out of net profit of Rs.48,87 , 000/= disclosed from my proprietary business being commission on purchase / sale of immovable properties earned during the relevant accounting year and Rs.l,30,00,000/= belongs to Shri Tajender Kakkar residing at D-7/7176, Sector "D", Vasant Kunj, New Delhi - 110070
-being "advance received against agreement to sale dated 28.12.2009" of plots of land as per Agreement to sell dated 28.12.2009.
However, said search party disbelieving the facts as narrated by me and had seized impugned sum of Rs.l,72,67,000/= from my residence.
7. After thorough investigation by the said Mumbai Zonal Unit of Directorate of Revenue Intelligence [hereinafter referred to as "the said DRI], they were 11 ITA No. 3484/Del/2014 Rajiv Gulati satisfied and convinced that I am innocent and they adjudicated that -
"No evidence could be gathered during investigation that the Rs,1.72 crores that had been seized from the residence of Shri Rajiv Gulati (Chief Executive of M/s. Skyline Cargo Agents (P) Limited, the CHA firm), at 701-702, B, Express Apartment, Yari Road, Versova, Mumbai - 400061 under the reasonable belief that they represented the sale proceeds of smuggled goods, were actually so. This amount was therefore handed over to the Income Tax authority on 02.08.2010 [Asstt Director of Income Tax (Investigation), Unit IV (1), ARA Centre, 2 nd Floor, E-2, Jhandewalan Extension, New Delhi - 110055] under intimation to Shri Rajiv Gulati for proceeding under the Income Tax Act"
8. While processing my return of income filed u/s 153A on 14.10.2011, learned Assessing Officer has erred in adding impugned sum of Rs.1,30,00,000/= u/s.69A in my hands on "Substantive Basis" vide his assessment order u/s.153A r.w.s 143(3) dated 28.03.2013.
8.1. An appeal u/s.246A was filed by me against impugned assessment order with the Commissioner of Income Tax (Appeals)-XXIV, New Delhi was dismissed vide appeal order No.101/13 -14 dated 25.03.2014.
8.2. Against impugned appeal order / assessment order an appeal u/s.253 was filed by me before this Hon'ble Tribunal registered as I.T.A. No. 3484 / DEL /2014.
12 ITA No. 3484/Del/2014Rajiv Gulati
9. While assessing above said Shri Tajender Kakkar under PA No.ABMPK-6252-B, his Assessing Officer, ITO, Ward 24(4), New Delhi, has added the said sum of Rs.1,30,00,000/= u/s 69A in his hands on "Protective Basis". - Copy of impugned assessment order dated 26.03.2013 is attached herewith as EXHIBIT "A".
9.1. Said Shri Tajender Kakkar filed an appeal u/s.246A against impugned assessment order dated 26.03.2013 with the Commissioner of Income Tax (Appeals)-34, New Delhi was dismissed vide appeal order No.19/160/13-14 dated 27.02.2017. - Copy of the said appeal order dated 27.02.2017 is attached herewith as EXHIBIT "B".
9.2. Against impugned appeal order / assessment order an appeal u/s 253 was filed by the said Shri Tajender Kakkar before this Hon'ble Tribunal registered as I.T.A. No. 2748/DEL/2017.
10. On the facts, [a] due to seizure of impugned sum of Rs.l,72,67,000/= since 03.02.2010 by the DRI and requisitioned on 02.08.2010 by the Income Tax Department u/s 132-A, I could not make agreed payment of Rs.l,83,75,000/= to Shri Rishi Prakash of Rohtak, (Haryana) in terms of an agreement dated 28.12.2009 for purchase of agricultural plots of land and said agreement is terminated by the lapse of time by the said Shri Rishi Prakash of Rohtak, [Haryana);
[b] due to seizure of impugned sum of Rs.l,72,67,000/= since 03.02.2010 by the DRI and 13 ITA No. 3484/Del/2014 Rajiv Gulati requisitioned on 02.08.2010 by the Income Tax Department u/s 132-A, I cannot fulfill terms of agreement to sale dated 28.12.2009 of above said agricultural plots of land to Shri Tajender Kakkar of New Delhi - 110070;
[c] I have been acquitted / exonerated by the DRI from alleged charge that said sum of Rs.l,72,67,000/= represent the sale proceeds of smuggled goods by Importer Messrs. Starlight Overseas (Proprietor :
Shri Sachin Malik), and accordingly, instead of refunding the said sum of Rs.l,72,67,000/= to me, said DRI handed over the said sum of Rs.l,72,67,000/= on 02.08.2010 to the Income Tax Department u/s 132-A and said sum of Rs.l,72,67,000/= are not released to me till date;
[d] Since more than 7 years said sum of Rs. l,72,67,000/= lying with the Department as they are not sure in whose hand it is to be taxed and accordingly, I have been assessed on "Substantive Basis" vide assessment order u/s 153A r.w.s. 143(3) dated 28.03.2013 and also said Shri Tajender Kakkar have been assed on "Protective Basis" vide assessment order u/s.143(3) dated 26.03.2013. Appeals u/s 246A also dismissed by the respective CIT(A)s and appeals u/s. 253 are pending before the Hon'ble Tribunal;
[e] As impugned sum of Rs.l,30,00,000/= deposited by the said Shri Tajender Kakkar in terms of agreement to sale dated 28.12.2009, I am not able to refund him due to exorbitant delays on the part of the Department to release the said sum of Rs.l,72,67,000/= to me, my relationship with the said Shri Tajender Kakkar is 14 ITA No. 3484/Del/2014 Rajiv Gulati strained / tensed / stressed and it was mutually agreed by and between us that the matter may be referred to an independent and impartial sole arbitrator / conciliator, Shri Sourabh Agrawal, Chartered Accountant, under the Arbitration and Conciliation Act, 1996 for conciliation of disputes arising out between myself and said Shri Tajender Kakkar due to above facts;
[f] After several meetings between myself / Shri Tajender Kakkar and after going through various points at issue as supported by documentary evidences / additional information, the said sole arbitrator / conciliator, with a view to assist us to reach an amicable settlement of our inter se dispute, in an independent and impartial manner, as guided by principles of objectivity, fairness and justice, giving consideration to the rights and obligations of either of us, the usages and the circumstances surrounding the dispute made "Ad-interim Award" for a settlement of "Dispute with Department".
11. "Ad-interim Award" with supporting reasoning by the sole arbitrator / conciliator for a settlement of the dispute with the Income Tax Department [a] As communicated and looking to returns of income filed for assessment year: 2010-11 u/s.139 on 15.10.2010 and in response to notice u/s. 153 A on 14.10.2011 it is seen that the said Shri Rajiv Gulati has truly reported advance of Rs.5,00,000/= paid to Shri Rishi Prakash of Rohtak, (Haryana) for purchase of agricultural plots of land as per agreement dated 28.12.2009 as well as advance of Rs.l,30,00,000/= received from Shri Tajender Kakkar for sale of 15 ITA No. 3484/Del/2014 Rajiv Gulati agricultural plots of land as per agreement dated 28.12.2009. Taxable income declared at Rs.51,67,220/= and tax payable thereon was duly paid before filing of return of income filed for assessment year : 2010-11 u/s.139 on 15.10.2010.
[b] Said Shri Rajiv Gulati had duly complied with notice U/S.153A and had co-operated with the assessing officer by providing all information / details with supporting evidences. Shri Tajender Kakkar had in survey proceedings unconditionally affirmed and confirmed that the said sum of Rs.l,30,00,000/= "BELONGS TO HIM" and was kept with Shri Rajiv Gulati for passing on to the owner of a plots of land which was agreed to be purchased by the "SAID REAL OWNER" of the said sum of Rs.l,30 , 00,000/=. It is pertinent to note that said Shri Tajender Kakkar has declared additional income of Rs,l,40,00,000/= for assessment year : 2010 - 11 and has been assessed by his assessing officer of taxable income at Rs.l,43,19,680/=.
[c] However, impugned sum of Rs.l,30,00,000/= has been assessed on "Substantive Basis" in the hands of Shri Rajiv Gulati whereas Shri Tajender Kakkar has been assessed for . the said sum of Rs.l,30,00,000/= on "Protective Basis".
[d] In both cases, first appeals were dismissed by respective CIT(A)s.
[e] Said Shri Rajiv Gulati and Shri Tajender Kakkar have preferred appeals u/s.253 vide I.T.A. No. 3484 / DEL / 2014 and I.T.A. No. 2748 / DEL / 2017 respectively.
16 ITA No. 3484/Del/2014Rajiv Gulati [f] It is pertinent to note that DRI has acquitted / exonerated Shri Rajiv Gulati from alleged charge that said sum of Rs.l,72,67,000/= represent the sale proceeds of smuggled goods by Importer Messrs. Starlight Overseas (Proprietor: Shri Sachin Malik].
[g] Since more than 7 years said sum of Rs.l,72,67,000/= lying with the Department and impugned advance of Rs.l,30,00,000/= received by Shri Rajiv Gulati from Shri Tajender Kakkar is not refunded to him, their relation is heavily strained / tensed / stressed for want of fund to carry on their legitimate businesses.
[h] With a view to assist said Shri Rajiv Gulati and Shri Tajender Kakkar and to reach an amicable settlement of inter se dispute, in all fairness and justice, giving consideration to the rights and obligations of inter se and the circumstances surrounding the dispute I am making ad-interim proposals for a settlement of the dispute to "avoid prolong litigation with the Department" and "amicably co-operate and settle with the Department"
by offering applicable tax on impugned sum of Rs.l,30,00,000/= which Department is entitled to recover either from said Shri Rajiv Gulati OR from Shri Tajender Kakkar and, therefore,------
[i] Shri Rajiv Gulati in his appeal u/s.253 filed before this Hon'ble Tribunal registered as I.T.A. No. 3484 / DEL / 2014 should "admit" and "offer impugned sum of Rs.l,30,00,000/= to be assessed in his hands" on "Substantive Basis" as per the applicable provisions of the Income Tax Act 1961 even though has truly 17 ITA No. 3484/Del/2014 Rajiv Gulati reported respective transactions in his return of income filed u/s.139 as well as u/s 153A;
[ii] On acceptance of above offer by the Hon'ble Tribunal and after receipt of appropriate order from the Hon'ble Tribunal Shri Tajender Kakkar should unconditionally withdraw his appeal u/s.253 registered as I.T.A. No. 2748 / DEL / 2017.
[iii] On being disposal of both the appeals, I.T.A. No. 3484 / DEL / 2014 and I.T.A. No. 2748 / DEL / 2017, Shri Rajiv Gulati should take appropriate steps and claim refund after due appropriation U/S.132B from his assessing officer.
[iv] On receipt of refund from the Department, Shri Rajiv Gulati should report me as sole arbitrator / conciliator and after due process of details, final "Award".
12. In light of above "Ad-interim Award" with supporting reasoning by the sole arbitrator / conciliator for a settlement of the dispute with the Income Tax Department, I unconditionally offer / admit, declare and affirm that-----
"Impugned sum of Rs.1,30,00,000/= may please be assessed in my hands" on "Substantive Basis" as per the applicable provisions of the Income Tax Act, 1961 and appropriate direction may kindly be given to my jurisdictional assessing officer to appropriate legal demand of tax from Rs.1,72,67,000/- requisitioned u/s 132A on 02.08.2010 from DRI."18 ITA No. 3484/Del/2014
Rajiv Gulati
6. From the above affidavit, it is clear that the assessee himself admitted in para 12 that the impugned sum of Rs.1,30,00,000/- be assessed in his hand on substantive basis as per the applicable provision of the Act. However, a request has been made to appropriate the outstanding demand, out of Rs.1,72,67,000/- requisitioned u/s 132A of the Act.
7. In view of the above, we remand this issue to the file of the AO for taking the appropriate action as per law.
8. In the result, appeal of the assessee is allowed for statistical purposes.
(Order Pronounced in the Court on 14/08/2017) Sd/- Sd/-
(Beena A. Pillai) (N. K. Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 14/08/2017
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
ASSISTANT REGISTRAR