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TMI Blog2015 (3) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... terial, the A.O. has made various additions which were partly allowed by the first appellate authority. Being aggrieved, the cross appeals were filed before the Tribunal, who has deleted the additions. Being aggrieved, the Department has filed the present appeal. Based upon certain observations made by the CIT(A), notice under section 148 was issued by the A.O. for the assessment year 1996-97 for the assessment year 1999-2000 to the company and to its Director. The said notice has been challenged by them in a writ petition. We have heard the learned counsel for the parties and gone through the material available on record. We decide the appeal as well as the writ petitions as under:- Income Tax Appeal No.192 of 2004:- 1. The Income Tax Appeal No.192 of 2004 is filed by the Department against the impugned order dated 28.11.2003, passed by the Income Tax Appellate Tribunal, Delhi in IT(SS) Appeal Nos.108 & 233(Del)/2002 for the block period 1.4.1988 to 17.3.1999. 2. On 2.9.2009, a coordinate Bench admitted the Appeal on the following substantial questions of law:- "1. Whether the I.T.A.T. is justified in deleting the addition of Rs. 48 lacs made by the A.O. merely on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T (A) is not applicable in as much as the Hon'ble High Court has not distinguished the Principle of Law laid by the Hon'ble Supreme Court. 8. Whether the I.T.A.T. is justified in deleting the addition of Rs. 4 lacs on account of unexplained deposit in the form of bid money in the benami name of Shri Umesh Gupta on the ground that the addition either could have been made in the hands of Shri Naresh Kumar or Shri Umesh Gupta, ignoring the fact that the bid money was made on behalf of company and the appellant has not discharged its onus to prove the identity of Shri Umesh Gupta?" 3. The first four questions of law admitted in the appeal are related to the addition of Rs. 48 lacs, pertaining to the profit. During the course of search, documents marked as B-29; LP-18; and B-19 were seized from the premises of M/s Thrill Hotel Pvt. Ltd.. The document B-29 was not in the handwriting of Shri Rakesh Goyal, Director of the Company. But on the basis of an entry, the A.O. made the addition of Rs. 48 lacs by observing that the transaction recorded on the impugned document was the transaction pertaining to the sale of goods out side the book of account, so, he has estimated the turnov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report from the A.O. From the record, it is evident that books of account were not rejected by the A.O. under Section 145 of the Act. Hence, there is no question to enhance the income on estimate basis by the A.O. In the circumstances, both the appellate authorities have rightly deleted the addition and the same is hereby sustained along-with the reasons mentioned herein. 8. The substantial questions of law Nos.6 & 7 are related to addition of Rs. 42,15,000/- made on account of unexplained deposit on various dates in the current account No.4515 in the Oriental Bank of Commerce. The A.O. picked up the entries relating to deposits in cash in the month of March, 1998-99 (search year) and made the addition on the short ground that the explanation for deposit of Rs. 42,15,000/- did not appear to be reasonable. 9. But the Tribunal has deleted the addition by observing that the said entry pertaining to the deposit were duly reflected in the books of account. The books of account were seized during the course of search and entries were duly reflected at that time. The entries were also reflected in the excise record pertaining to the sale in-cash and the availability of cash with the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement u/s 132 and the assessee could not even give family composition of the donor and in the block assessment proceedings, no evidence was find and even the signature on the gift deed was found fabricated as the assessee could not prove the visit of donor Shri Mhendra Singh in India and whether the finding is not contrary to the retrospective amendment in the computation of undisclosed income as contain in section 158 BB of the Act? 3. Whether the I.T.A.T. is justified in approving the order of Ld. C.I.T.(Appeal) deleting addition of Rs. 10,11,885/- on a/c of capital gain with the finding that such additions should be considered in regular assessment despite the fresh fact came to light and the assessee could not furnish complete details and the broker Blue Chips Investment Ltd. expressed his inability to trace the record and whether the finding is not contrary to the retrospective amendment in the computation of undisclosed income as contain in section 158 BB of the Act? 4. Whether the I.T.A.T. is justified in approving the order of Ld. CIT (Appeal) deleting the addition of Rs. 18,57,038/- made by the A.O on a/c of bogus declaration in VDIS, with the observations that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see of Rs. 8,50,000/-. However, the Tribunal has given the entire relief to the assessee of Rs. 23,75,000/-. 15. After hearing the submissions of the learned counsel for the parties, it appears that during the course of search, a diary was found in which at page 78, some details were mentioned pertaining to the contract of river bed mining by M/s Saharanpur Associates. On the basis of the entries, the addition was made for Rs. 26.75 lacs, in the hands of the assessee namely Shri Rakesh Goyal. From the record, it also appears that the details of drafts prepared in the balance sheet of M/s Saharanpur Associates shows that Rs. 13.5 lacs has been returned to Shri Rakesh Goyal i.e. the assessee, one of the partner of M/s Saharanpur Associates Group. After examining the document, the CIT(A) has found that the Rs. 15,25,000/- was recorded in the hands of assessee. 16. During the course of arguments the representative of the department has relied upon the A.O. order and he has stated that the assessee was the partner of M/s Saharanpur Associates, neither any proper explanation was given nor any documentary evidence was submitted by the assessee pertaining to the transaction, so the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 21. The substantial question of law No.4 relates to addition on Rs. 18.57,038/-. The A.O. has made this addition on account of bogus declaration in VDIS in the name of assessee's wife namely Smt. Parul Goyal. 22. After hearing both the parties and on perusal of material available on record, it appears that wife of the assessee namely Smt. Parul Goyal had availed the benefit of VDIS Scheme, 1997 and disclosed jewellery of Rs. 18,57,384/-. The A.O. observed that the declaration of VDIS was not genuine. But the CIT(A) as well as the Tribunal held that the VDIS declared in the name of the wife of the assessee was duly accepted by the department. When it is so, then there is no question for making the addition again. When the amount was bogus in the VDIS then there is no occasion to make any addition, specially when declaration was accepted by the Department. Considering the facts and circumstances of the case we find no reason to interfere with the order passed by the appellate authorities. So this question has no merit. 23. The substantial question of law No.5 is pertaining to addition of Rs. 1,47,000/- on account of seven gifts received in the name of minor children of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he addition, if any, i.e. in the hands of Shri Nand Kishore Goyal and certainly not in the hands of the assessee. When it is so, then the Tribunal has rightly deleted the addition and the same is hereby sustained along-with the reasons mentioned herein. 26. The substantial question of law No.8 pertaining to grant of relief of Rs. 4,37,569/-. The A.O. has made the addition on account of diversion of income in the name of wife of the assessee. The A.O. observed that Smt. Parul Goyal i.e. wife of the assessee is not filing any separate return on her behalf and came to the conclusion that her income is the income of the assessee. The CIT(A) has deleted the said addition by observing that Smt. Parul Goyal had filed regular return since long, therefore, she is independent. 27. By considering the rival submission, we are of the opinion that the assessee and Smt. Payal Goyal are the husband and wife in the bedroom, but for the purpose of income tax they are separate and they have filed their separate return since long, which were accepted by the department. When it is so, then there is no justification to make addition. 28. In the light of the above discussion and by considering the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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