Ashok Kumar Tyagi Vs ACIT (ITAT Delhi)
ITAT Delhi held that addition towards unexplained jewellery unsustainable as panchnama clearly mentions the fact that ownership of jewellery belongs to various people.
Facts- The appellant contested that Commissioner of Income Tax (A) has erred in confirming the addition made by the learned Assessing officer of Rs.7,03,200/- under the head unexplained cash and addition of Rs.28,44,470/- under the head unexplained jewellery without going through the facts of the case that cash and jewellery does not belong to the appellant.
Conclusion- We find from the record that no statement of the assessee with regard to the cash found has been recorded u/s 132(4) of the Income Tax Act, 1961 and statement recorded of the father of the assessee Sh. Jaiveer Tyagi on day of search itself revealed that the amount pertains Sh. Jaiveer Tyagi and other family members. Hence, keeping in view, the entire facts and circumstances, the location of the cash found, the statement of Sh. Jaiveer Tyagi recorded on the date of search, we hold that no addition is called for on account of cash in the hands of the assessee.
We find that the jewellery has been separately valued in different names of the family members namely, Ms. Bindu Tyagi, Ms. Indu Tyagi and Ms. Rajni The panchnama drawn has also clearly mentioned the fact of ownership of the jewelley with various people. Hence, the addition ought not to have been made in the hands of the assessee and hence, the same is ordered to be deleted.
FULL TEXT OF THE ORDER OF ITAT DELHI
The present appeals have been filed by the assessee against the orders of ld. CIT(A)-31, New Delhi dated 17.05.2017.
2. In ITA No. 5651/Del/2017, the assessee has raised the following grounds of appeal:
“1. The order of the Hon’ble Commissioner of Income Tax (A) is arbitrary, against law and facts on record.
2. The Hon’ble Commissioner of Income Tax (A) failed to appreciate that the issuance of notices u/s 153A / 142(1)/143(2) of the Income Tax Act, 1961 by the Assessing officer and the proceedings conducted there under are against the provisions contained in the Income Tax Act, 1961 and is bad in law and hence liable to be quashed.
3. The Hon’ble Commissioner of Income Tax (A) while confirming the addition has failed to consider the fact that during the course of search no incriminating documents have been found in respect of addition made and as such addition made by the Assessing officer while passing the order u/s 153A/ 143(3) is against the provision contained in the Income Tax Act, 196 1.
4. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case by not admitting the additional grounds of appeal during the appellate proceeding and such action of the Hon’ble Commissioner of Income Tax (A) is bad in law.
5. The Hon’ble Commissioner of Income Tax (A) while confirming the addition of Rs.83,097/- in respect of income from partnership firm has failed to consider that the said income have already been declared in the return filed u/s 153A of the Income Tax Act and as such addition made by the learned Assessing officer in the assessment order have resulted in taxing the same income twice.
6. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case in confirming the addition made by the learned Assessing Officer by considering the agriculture income of 3,70,000/- as income from other sources and such action of the Assessing officer is not based on cogent material and shows lack of application of mind.
7. The Hon’ble Commissioner of Income Tax (A) has erred has erred in law as much as on the facts of the case in confirming the addition of Rs.1,60,00,000/- under the head unexplained investment which have been made by the Assessing officer on the basis of assumption and presumption and is not based on cogent material and is bad in law and hence liable to be deleted”
3. In ITA No. 5655/Del/2017, the assessee has raised the following grounds of appeal:
“1. The order of the Hon’ble Commissioner of Income Tax (A) is arbitrary, against law and facts on record.
2. The Hon’ble Commissioner of Income Tax (A) failed to appreciate that the issuance of notices u/s 153A / 142(1)/143(2) of the Income Tax Act, 1961 by the Assessing officer and the proceedings conducted there under are against the provisions contained in the Income Tax Act, 1961 and is bad in law and hence liable to be quashed.
3. The Hon’ble Commissioner of Income Tax (A) while confirming the addition has failed to consider the fact that during the course of search no incriminating documents have been found in respect of addition made and as such addition made by the Assessing officer while passing the order u/s 153A/ 143(3) is against the provision contained in the Income Tax Act, 196 1.
4. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case by not admitting the additional grounds of appeal during the appellate proceeding and such action of the Hon’ble Commissioner of Income Tax (A) is bad in law.
5. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case in confirming the addition of Rs 62,11,740/- under the head commission income which have been made by the Assessing officer on the basis of assumption and presumption and is not based on cogent material and is bad in law and hence liable to be deleted.”
4. In ITA No. 5656/Del/2017, the assessee has raised the following grounds of appeal:
“1. The order of the Hon’ble Commissioner of Income Tax (A) is arbitrary, against law and facts on record.
2. The Hon’ble Commissioner of Income Tax (A) failed to appreciate that the issuance of notices u/s 153A / 142(1)/143(2) of the Income Tax Act, 1961 by the Assessing officer and the proceedings conducted there under are against the provisions contained in the Income Tax Act, 1961 and is bad in law and hence liable to be quashed.
3. The Hon’ble Commissioner of Income Tax (A) while confirming the addition has failed to consider the. fact that during the course of search no incriminating documents have been found in respect of addition made and as such addition made by the Assessing officer while passing the order u/s 153A/ 143(3) is against the provision contained in the Income Tax Act, 196 1.
4. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case by not admitting the additional grounds of appeal during the appellate proceeding and such action of the Hon’ble Commissioner of Income Tax (A) is bad in law.
5. The Hon’ble Commissioner of Income Tax (A) has erred much as on the facts of the case in confirming the addition of Rs.48,77,600/- under the head commission income which have been made by the Assessing Officer on the basis of assumption and presumption and is not based on cogent material and is bad in law and hence liable to be delete.”
5. In ITA No. 5657/Del/2017, the assessee has raised the following grounds of appeal:
“1. The order of the Hon’ble Commissioner of Income Tax (A) is arbitrary, against law and facts on record.
2. The Hon’ble Commissioner of Income Tax (A) failed to appreciate that the issuance of notices u/s 153A / 142(1)/143(2) of the Income Tax Act, 1961 by the Assessing officer and the proceedings conducted there under are against the provisions contained in the Income Tax Act, 1961 and is bad in law and hence liable to be quashed.
3. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case by not admitting the additional grounds of appeal during the appellate proceeding and such action of the Hon’ble Commissioner of Income Tax (A) is bad in law.
4. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case in confirming the addition of Rs.1,54,000/- under the head commission income which have been made by the Assessing officer on the basis of assumption and presumption and is not based on cogent material and is bad in law and hence liable to be deleted.
5. The Hon’ble Commissioner of Income Tax (A) has erred in law as much as on the facts of the case in confirming the addition made by the learned Assessing officer of Rs.7,03,200/- under the head unexplained cash and addition of Rs.28,44,470/- under the head unexplained jewellery without going through the facts of the case that cash and jewellery does not belong to the appellant.”
6. A search & seizure operation was conducted u/s 132 of the Income Tax Act, 1961 on 12.02.2013 at the residential and business premises of the assessee.
A.Y. 2007-08:
Agricultural Income:
7. The addition made treating the agricultural income as “income from other source” has been deleted by the ITAT in assessee’s own case for the A.Y. 2008-09, 2009-10, 2010-11 vide order dated 17.03.2022 in ITA No. 5652-5654/Del/2017. In the absence of any change in the factual matrix, we hereby delete the addition made by the AO.
8. The appeal of the assessee on this ground is allowed.
Addition on the basis of MoU:
9. Based on MOU dated 07.03.2006 found during search for purchase of property no. 9/11, Nehru Place, Delhi, the AO made addition of Rs.1,16,00,000/-. The relevant facts are as under:
