Income Tax Appellate Tribunal - Delhi
Nitin Kumar Gupta, New Delhi vs Assessee on 29 February, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'Meerut Camp', NEW DELHI
Before Shri I.C.Sudhir, Judicial Member
And Shri Prashant Maharishi , Accountant Member
ITA No. 4412/Del./2014
Assessment Year : 2009-10
Nitin Kumar Gupta vs. ACIT
A-2/83, Central Circle
Safdarjung Enclave Meerut
New Delhi
PAN : AEEPG7895K
Assessee by : Shri Prashant Narang, Sh. R.P. Narang, CA
Revenue by : Shri Sheodan Singh Bhddoria, Sr. DR
Date of hearing : 16/12/2015
Date of pronouncement : 29 .02.2016
ORDER
PER I.C.Sudhir, J.M.
The appeal filed by the assessee is directed against order of CIT(A)- Meerut dated 19.05.2014 and pertains to assessment year 2009-10.
2. The assessee has questioned first appellate order on the following grounds :
"1. That on the facts and as per the circumstances of the case, both the Lower Authorities i.e. AO & CIT(A), have erred in assessing the Income of the appellant at Rs. 15,56,180/- as against returned 2 ITA No.4412/Del/2014 Nitin Kumar Gupta income of Rs. 8,80,908/-. As such the aggregate additions made of Rs. 6,75,272/- thereon may please be deleted.
2. That on the facts and in the circumstances of the case & in Law, the lower authorities being Ld. CIT(A) & AO have erred in making the addition of Rs. 6,75,272/- under section 69A of the Act. As such, the addition of Rs. 6,75,272/- may please be deleted.
3. That on facts and in circumstances of case the learned A.O. has erred in making an addition of Rs. 3,75,272/- out of the cash seized of Rs. 40,44,820/- considering the same as unexplained money u/s 69A of the Income Tax Act, 1961.
4. That on facts and in circumstances of case the learned A.O. has erred in making an addition of Rs. 3,00,000/- to the total income of the appellant found from the joint locker belonging to appellant and his wife during the search considering the same as an unexplained money u/s 69A of the Income Tax Act, 1961."
3. At the outset of hearing the ld. AR pointed out that issue raised in the present appeal is fully covered by the decisions of the Tribunal in the cases of Goldee Gupta vs. ACIT, ITA no. 4411/Del/2014 (AY 2009-10) order dated 31.8.2015 and Arun Kumar Gupta vs. ACIT, ITA no. 4413/Del/2014 (AY 2009-10) order dated 6.10.2015, copies of which have been furnished by the ld. AR.
4. The ld. Sr. DR on the other hand placed reliance on the orders of the authorities below.
5. On perusal of the above grounds it appears that the main grievance of the assessee is assessment of income by the AO at Rs. 15,56,180/- as against returned income of Rs. 8,80,908/-, thus, resulting into the addition of Rs. 6,75,272/- in aggregate. The ld. CIT(A) has upheld this addition against which assessee is in appeal.
3 ITA No.4412/Del/2014Nitin Kumar Gupta
6. The facts in brief are that a search and seizure operation u/s 132 of the Act was conducted in the cases of Supertecj & Crossing Infrastructure Groups of companies covering its offices as well as residences of Directors / Promoters of the group. Surya Merchants Ltd. being one of the sister concerns of Supertech & Crossing Infrastructure Ltd. was also covered by such operation along with its directors and their family members, which amongst others included the residence at A-2/83, Safdarjung Enclave, New Delhi, of Shri Arun Kumar Gupta, Nitin Kumar Gupta and Goldy Gupta being directors in Surya Merchant Ltd. In compliance of the notice issued, the assessee declared total income of Rs. 8,80,908/-. The AO has however, assessed the income at Rs. 15,56,180/- after making addition of Rs. 6,75,272/- on account of unexplained cash u/s 69 of the IT Act. The ld. CIT(A) has upheld the same, which has been questioned before the Tribunal.
7. Under Similar set of facts addition was made in the case of Goldy Gupta (supra) wherein the matter has been set aside by the Tribunal to the file of the Assessing Officer to examine the veracity of the submission of the assessee in its entirety and dispose of the matter after affording opportunity of being heard to the assessee. In that case before the Tribunal, the Ld. CIT(A) had denied the explanation of the assessee that cash of Rs. 20,57,056/- belonged to their company, Star Realcom Pvt. Ltd. and Ors on the basis that affidavit of cashier of Star Realcon Pvt. Ltd. and a Chartered Accountant certifying that cash of Rs. 21,00,0730/- on 5.2.2009 was available as per the books of Star Realcom Pvt. Ltd. were not corroborated by convincing evidence. The ld. CIT(A) had also not considered the alternative argument of the assessee that aforesaid cash may be considered out of the cash on money received in respect of sale of flats/shops in case of Surya Merchant Ltd. in which the assessee, Arun Gupta, Nitin Gupta are the Director and the other arguments. Finding substance in the 4 ITA No.4412/Del/2014 Nitin Kumar Gupta above contention of the assessee, the Tribunal has set aside the matter to the file of the AO to examine the veracity of submission of the assessee in its entirety and dispose of the matter after affording opportunity of being heard to the assessee.
8. Similar are the facts in the present case before us as in the present case also during the course of search at the residence of the assessee, cash of Rs. 40,44,820/- was found, out of which 35,00,000/- was seized. The cash amount of Rs. 40,44,820/- ( 20,57,050/- + Rs. 19,87,770/-) were found in the custory of Mr. Arun Gupta, Goldy Gupta, and Nitin Gupta (assessee). The AO found the explanation of the assessee regarding cash balance of Rs. 19,46,399/- as per books of account of Surya Merchant Pvt. Ltd. as on 05.02.2009 and out of which Rs. 10,950/- was found in the locker from the office of Surya Merchant Ltd. as explained and hence did not make any addition on this amount. The AO, however, did not find the explanation of the assessee regarding cash of Rs. 20,57,050/- on as fully satisfactory and added Rs. 6,75,272/- (Rs. 3,75,272/-+ Rs. 3,00,000/-) out of said amount on account of unexplained cash u/s 69(A) of the Act. Rs. 3,75,272/- was made out of the cash seized and Rs. 3,00,000/- added which was found from the joint locker belonging to the assessee and his wife of the explanation of the assessee in respect of cash of Rs. 20,57,050/- found from the bed room of Shri Arun Kumar Gupta it was submitted that cash of Rs. 17,00,000/- out of the above belong to Star Realcom (P) Ltd. and their associate company, in which the assessee and Goldy Gupta are also the Directors. The affidavits of cashier and Chartered Accountant to this effect were filed. It was further explained that, in case, the AO did not agree with the above explanation cash should be considered out of the cash money received in respect of sales in case of Surya Merchant Ltd. in which all the above captioned assessee are the directors. It was further explained that the assessee 5 ITA No.4412/Del/2014 Nitin Kumar Gupta had offered an income of Rs. 5,81,42,294/- for the assessment years 2004-05 to 2009-10 in the case of Surya Merchant Ltd. It was also explained that Surya Merchant ltd. had received cash on money of Rs. 16,50,000/- in respect of sale during two months only preceding the date of search i.e. 06.02.2009 which clearly shows that the above cash found in the custody of the assessee was belonging to Surya Merchant ltd. hence, no addition is required to be made in the hands of the assessee as it would amount to be a double addition, once in the hands of Surya Merchant Ltd. and second in the hands of the Assessees, Shri Arun Kumar Gupta, Goldy Kumar Gupta and Nitin Kumar Gupta ( present assessee). The AO did not agree and held that if the amount of cash of Rs. 19,35,450/- is deducted from the cash of Rs. 19,87,770/- found during the course of search there remains cash balance of Rs. 42,320/- which was unexplained. He, thus, added this unexplained amount of Rs. 42,320/- with the other unexplained amount of Rs. 20,57,050/- making the total unexplained cash at Rs. 20,99,370/- found during the course of search belonging to Shri Arun Kumar Gupta, Goldy Gupta and Nitin Gupta. Since the amount belonged to 3 persons, 1/3rd of cash of Rs. 20,99,370/- amounting to Rs. 6,99,790/- was held belonging to the assessee. Since there was cash balance of Rs. 3,24,518/- as on 05.02.2009 in the books of assessee, hence, this amount was deducted from the unexplained cash and thus, balance remained at Rs. 3,75,272/- held as unexplained income. The AO further added Rs. 3,00,000/- which was found and seized from the locker belonging to the assessee, Smt. Sonia Gupta and Smt. Sashi Gupta. The addition in total coming to Rs. 6,75,272/- has thus, been upheld by the ld. CIT(A). We find that the ld. CIT(A) has also not considered the above explanation of the assessee, which in our view should not have been out rightly rejected. We, thus, in the interest of justice set aside the matter to the file of the AO to examine the veracity of the above explanation of the 6 ITA No.4412/Del/2014 Nitin Kumar Gupta assessee and dispose of the matter after affording opportunity of being heard to the assessee regarding the addition of Rs. 6,57,620/- made on account of unexplained income, as it was ordered by the Tribunal in the case of Goldy Gupta and Arun Kumar Gupta. The grounds are accordingly allowed for statistical purposes.
9. In the result, appeal of the assessee is allowed for statistical purposes.
(Order Pronounced in the Court on 29/02/2016).
Sd/- Sd/-
(Prashant Maharishi) (I.C.Sudhir)
ACCOUNTANT MEMEBR JUDICIAL MEMBER
Dated: 29 / 02/2016
*Binita*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
DR: ITAT ASSISTANT REGISTRAR
5.
7 ITA No.4412/Del/2014
Nitin Kumar Gupta
Date Initial
1. Draft dictated on 26.02.2016
2. Draft placed before author 24.02.2016
3. Draft proposed & placed before the JM/AM
second member
4. Draft discussed/approved by Second JM/AM
Member.
5. Approved Draft comes to the Sr.PS/PS PS/PS
6. Kept for pronouncement on 29.02.2016 PS
7. File sent to the Bench Clerk PS
8. Date on which file goes to the AR
9. Date on which file goes to the Head Clerk.
10. Date of dispatch of Order.