TMI Blog2017 (11) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 60,000 per month, the husband of the assessee was not paying her other sums. It is pertinent to note here the assessment proceedings for assessment year 2001 – 02 which was also before us in a separate appeal wherein a sum of ₹ 58 lakhs was received from the husband of the assessee. Therefore it is apparent that despite the fact being both the assessee and her husband separate the amount of cash found during the course of search is covered by the withdrawal of assessee and her husband. Furthermore it is not the case of the revenue that amount of cash withdrawal by the husband of the assessee has been used somewhere else and is not available. In view of this we reverse the finding of the Ld. Lower authorities and allow the appeal of the assessee directing the assessing officer to delete the addition of ₹ 12.96 Lacs on account of excess cash found during the course of search. In the result ground No. 2 of the appeal of the assessee is allowed. Addition of sum received by the assessee from her husband Mr. Suresh from the account payee cheques - Held that:- it is nowhere established by the revenue that money belongs to the assessee and it is rooted through the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of 6 assessment years, or for the relevant assessment year then they shall abate. Therefore, in the present case the assessment for assessment year 2005 – 06 was not pending and therefore the assessing officer sell assess or reassess the total income in respect of this assessment year because it is falling within such 6 assessment years. Hence, it cannot be said that the assessment order passed by the Ld. assessing officer is invalid. In view of this ground No. 2 of the appeal of the revenue is allowed and order of the Ld. CIT appeal annulling the assessment order is set aside. - ITA No. 3719/Del/2011, ITA No. 3720/Del/2011, ITA No. 3721/Del/2011, ITA No. 4808/Del/2014, ITA No. 3700/Del/2011 And Wealth Tax No. 27/Del/2014 - - - Dated:- 11-8-2017 - SMT BEENA A. PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Revenue : Shri Paramita Tripathy, CIT DR For The Assessee : Shri Ajay Wadhwa, Adv Ms. Megha Mittal, CA ORDER PER PRASHANT MAHARISHI, A. M. These are the appeal filed by the revenue as well as assessee for several years under the income tax act as well as for assessment year 2010 11 under the wealth tax act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque from the bank account of the assessee s husband. He further referred to the order of the Ld. CIT (A) stated that there is no question of the identity as the sum is received from the husband of the assessee. With respect to the creditworthiness of the giver, He submitted that sufficient money is lying into the non-resident external account of Sh. Suresh Nanda, who is separately assessed to tax. Therefore, the creditworthiness is also proved. With respect to the genuineness of the transactions, the submitted that the giver of the money is the husband of the assessee, Therefore, there is no doubt about the genuineness. In view of this he submitted that the addition has wrongly been made by the Ld. assessing officer. Invoking rule 27 of the income tax appellate tribunal rules, he submitted that there is no incriminating material found during the course of the search respect to this amount and therefore the addition was made without finding any incriminating documents therefore it does not survive. He relied upon the decision of the Hon ble Delhi High Court in case of Kabul Chawla 61 Taxmann.com 412. 7. We have carefully considered the rival contentions and also perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has considered this issue in principal Commissioner of income tax versus sun pharmaceuticals Ltd (2017 TIOL 2008 Gujarat HC ) as under:- 8. Rule 27 of the Rules reads as under: Respondent may support order on grounds decided against him. 27. The respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. 9. This Rule thus provides that the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. This rule embodies the fundamental principle that the person, who may not have been aggrieved by an order of the lower authority or the Court and has therefore not filed any appeal against such order, is free to defend the order before the Appellate Forum on all grounds including the ground, which may have been held against him by the lower authority or the Court, whose order is otherwise in his favour. 10. The contention of the counsel for the Revenue was that the assessee had to file independent appeals or cross-objections in terms of section 253 (4) of the Act to enable the assessee to raise the ground of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the expression any part of the order of the Commissioner in context of which, the said phrase has been used in sub-section (4) of section 253. 11. To put the controversy beyond doubt, Rule 27 of the Rules makes it clear that the respondent in appeal before the Tribunal even without filing an appeal can support the order appealed against on any of the grounds decided against him. It can be easily appreciated that all prayers in the appeal may be allowed by the Commissioner (Appeals), however, some of the contentions of the appellant may not have appealed to the Commissioner. When such an order of the Commissioner is at large before the Tribunal, the respondent before the Tribunal would be entitled to defend the order of the Commissioner on all grounds including on grounds held against him by the Commissioner without filing an independent appeal or crossobjection. 12. Rule 27 of the Rules is akin to Rule 22 Order XLI of the Civil Procedure Code. Sub-rule (1) provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court. 14. Similar issue came-up before Division Bench of this Court in case of Dahod Sahakari Kharid Vechan Sangh Ltd. vs. Commissioner of Income Tax reported in 282 ITR 321 = 2005-TIOL-242-HC-AHM-IT in which the Court observed as under: 17. Taking up the second issue first, the Tribunal has committed an error in law in holding that the assessee having not filed cross-objection against findings adverse to the assessee in the order of Commissioner (Appeals), the said findings had become final and remained unchallenged. The Tribunal apparently lost sight of the fact that the assessee had succeeded before the Commissioner (Appeals). The appeal had been allowed and the penalty levied by the assessing officer deleted in entirety. In fact, there was no occasion for the assessee to feel aggrieved and hence, it was not necessary for the assessee to prefer an appeal. The position in law is well settled that a cross objection, for all intents and purposes, would amount to an appeal and the cross object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d since the assessee had not filed cross objections. 15. The first question is, therefore, answered against the Revenue and in favour of the assessee. 9. The Ld. departmental representative also could not point out any incriminating material before us. In view of this respectfully following the decision of the Hon ble Delhi High Court in case of CIT versus Kabul Chawla (supra) and also following the Hon ble Gujarat High Court where the provisions of rule 27 of the income tax appellate tribunal rules were invoked, and also the decision of the coordinate bench in the case of the daughter of the assessee where on identical facts and circumstances the appeal of the revenue is dismissed, we dismiss the appeal of the revenue on this count. 10. In the result ITA No. 3719/del/2011 for assessment year 2001 02 filed by the revenue is dismissed. ITA NO 3700/Del/2011( By Assessee) ITA No 3721 4808/ Del/2011 2014 ( By revenue) A Y 2007-08 11. in the present case the assessment under section 143 (3) of the income tax act was passed on 29/12/2009 in response to the return of income filed by the assessee on 09/08/2007 of ₹ 2 03110/ wherein an ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement was given. He therefore submitted that irrespective of the fact that assessee and her husband are living apart, the amount of cash found is covered by the amount of withdrawal from the account of husband and the assessee. He further submitted that it is a fact that no unaccounted cash was recorded by the assessing officer in this assessment order that was found by the revenue during the course of search on account of land owned by husband. Therefore, the credit is required to be given of the withdrawal made by her husband. He further referred to page No. 40 of his paper book to show the amount of cash available. 15. The Ld. CIT DR vehemently relied upon the order of the lower authorities and submitted that the credit of the cash withdrawn by the husband of the assessee cannot be given credit to the assessee because both are living apart. 16. We have carefully considered the rival contention and also perused the orders of the lower authorities. Admittedly during the course of search cash of ₹ 17.96 Lacs was found. The explanation given by the assessee is that assessee has withdrawn ₹ 14.65 Lacs and her husband has withdrawn 60.45 Lacs during the year and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where else and is not available. In view of this we reverse the finding of the Ld. Lower authorities and allow the appeal of the assessee directing the assessing officer to delete the addition of ₹ 12.96 Lacs on account of excess cash found during the course of search. In the result ground No. 2 of the appeal of the assessee is allowed. 17. Ground No. 1 and 3 of the appeal of the assessee is general in nature and therefore dismissed. 18. In the result appeal No. 3700/del/2011 for assessment year 2007 08 filed by the assessee is partly allowed. 19. The Revenue has raised the following grounds of appeal in ITA No. 3721/Del/2011 for assessment year 2007 08:- 1. The order of the Ld. CIT (Appeals) is not correct in law and facts. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as in facts in deleting the addition of ₹ 12,30,700/- made by the assessing officer on account of unexplained money received by the assessee from Shri Suresh Nanda, 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as in facts in deleting the addition of ₹ 1,20,73,114/- made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the reason that source of the foreign income has not been disclosed by Suresh Nanda in his assessment proceedings. He further held that it is nowhere established by the revenue that money belongs to the assessee and it is rooted through the bank account of her husband. In fact, he held that there is sufficient money in the bank account of the husband of the assessee, and the above sum as been paid on account of order of the Hon ble court who has determined the sum based on the creditworthiness of the payer. The Ld. departmental representative could not point out that how the identity, creditworthiness of the husband of the assessee is not proved and further when the sum is paid in pursuance of a court order, the genuineness of the transaction cannot be doubted. In view of this we confirm the order of the Ld. CIT (A) in deleting the addition of ₹ 1 230700 made in the hands of the assessee on account of some received by assessee from her husband. In the result ground No. 2 of the appeal of the revenue is dismissed. 24. Ground No. 3 of the appeal of the revenue is against the deletion of the addition of ₹ 1 207 3114 on account of unexplained jewellery found during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f search. To the weight of gold and ^ at of diamonds identified the valuation report filed with the will tax return, the weight of the gold and ^ age of diamond as per the purchase invoices after 01/04/2002 to have been added. The assessing officer stated that the appellant has merely increase the value of jewellery by applying the rate of gold on 31st of March of the previous year. Hence, the appellant has not considered the value of diamonds owned by her. According to the appellant, the valuation report filed along with the return of wealth in respect of assessment year 2002 03 contained items of jewellery comprising of gold and diamond. On those items of jewellery, the appellant has been ending the jewellery purchase during the year after a while 2002 03 and thereafter after applying the rate of gold on 31st March of each previous year. Hence, jewellery comprising of both, gold and diamond, has been increased each year according to the market value of the gold. It cannot therefore be said that the diamonds have not been considered in the jewellery report in the wealth tax return. As per the reconciliation, the appellant has included the total weight of gold in grams of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Ld. CIT appeal in deleting the above addition. Further more on the identical facts and circumstances in case of daughter of the assessee. The coordinate bench has confirmed the deletion of the addition vide para No. 16 20 of the order. The above decision has not been disputed by the revenue as stated before us. In view of this, we also direct the Ld. assessing officer to delete the above addition on account of jewellery found. In the result ground No. 3 of the appeal of the revenue is dismissed. 28. In the result appeal of the revenue for assessment year 2007 08 in ITA No. 3721/Del/2011 is dismissed. 29. The Revenue has raised the following grounds of appeal in ITA No. 4808/Del/2014 for assessment year 2007 08 wherein the penalty levied by the Ld. assessing officer on the addition of ₹ 1 296300 on account of unexplained case found during the course of search was deleted by the Ld. CIT appeal:- 1. The order of Ld. CIT (A) is not correct in law and facts. 2. On the facts and circumstances of the case the Ld. CIT(A) has erred in law in deleting the penalty u/s 271(l)(c) of the Income Tax Act, 1961 amounting to ₹ 4,32,512/- levied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer on account of unexplained money received by the assessee from Shri Suresh Nanda. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as in facts in deleting the addition of ₹ 4416694/- made by the assessing officer on account of unexplained investment in purchase of a E-240 Merecedes car. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as in facts in deleting the addition of ₹ 52,70,000/- made by the assessing officer on account of unexplained investment in jewellery. 33. A brief fact of the case is that pursuant to search on Suresh Nanda group of cases on 28/2/2007. The assessee filed her return of income in response to notice under section 153A declaring income of ₹ 7 2845/ on 27/01/2009. Consequently, the assessment under section 143 (3) read with section 153A of the income tax act was passed on 29/12/2009 wherein the Ld. assessing officer made following 3 additions: a. ₹ 1 50, 07557/ on account of money provided by Mr. Suresh Nanda to the assessee b. ₹ 441 6694/on account of purchase of the motor car by the hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment or reassessment is pending within the period of 6 assessment years, or for the relevant assessment year then they shall abate. Therefore, in the present case the assessment for assessment year 2005 06 was not pending and therefore the assessing officer sell assess or reassess the total income in respect of this assessment year because it is falling within such 6 assessment years. Hence, it cannot be said that the assessment order passed by the Ld. assessing officer is invalid. In view of this ground No. 2 of the appeal of the revenue is allowed and order of the Ld. CIT appeal annulling the assessment order is set aside. 40. Now we come to ground No. 3, 4 and 5 of the appeal of the revenue where the additions are made with respect to unexplained money received by the assessee of ₹ 1 50, 07557/ from Mr. Suresh Nanda, addition of ₹ 4416694/ on account of unexplained investment in purchase of a car and ₹ 5 270, 000 made by the assessing officer on account of unexplained investment in jewellery. The Ld. CIT (A) deleted the above addition. Therefore, revenue is in appeal before us. 41. The Ld. departmental representative vehemently supported the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the search, the Hon ble high court held that :- 37. On a conspectus of section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under : (i) Once a search takes place under section 132 of the Act, notice under section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six assessment years immediately preceding the previous year relevant to the assessment year in which the search takes place. Page No : 0590 (ii) Assessments and reassessments pending on the date of the search shall abate. The total income for such assessment years will have to be computed by the Assessing Officers as a fresh exercise. (iii) The Assessing Officer will exercise normal assessment powers in respect of the six years previous to the relevant assessment year in which the search takes place. The Assessing Officer has the power to assess and reassess the total income of the aforementioned six years in separate assessment orders for each of the six years. In other words, there will be only one assessment order in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating material mentioned by the assessing officer in his assessment order. In the remand report furnished before the Ld. CIT (A) ld. Assessing officer did not submit any incriminating material with respect to the above addition. In view of this, respectfully following the decision of the Hon ble Delhi High Court, we confirm the finding of the Ld. CIT (A) that no addition can be made on account of all these 3 items as no incriminating material with respect to these additions have been found during the course of search by revenue. Hence, we direct the Ld. assessing officer to delete the above the additions involved in ground No. 3, 4 and 5 of the appeal of the revenue. In the result ground No. 3 5 of the appeal of the revenue is dismissed. 45. In the result appeal No. 3720/del/2011 for assessment year 2005 06 of the revenue is dismissed. A Y 2010-11 WTA No 27/del/2014( By Revenue) 46. The assessee and individual filed her return of wealth tax on 30/03/2012 declaring net taxable wealth of ₹ 7 878 6100/ . The return was processed under section 16 (1) of the wealth tax act, 1957 and then picked up for scrutiny. On 25/03/2013. The assessment under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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