TMI Blog2020 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and protective in the hands of another assessee, is not justified. Set aside order of the ld. CIT(A) and restore the matter back to the ld. CIT(A) for deciding afresh in accordance with law after verifying the records that Sh. Rajiv Gulati has finally accepted addition of ₹ 1.3 Crore in his hand. - Appeal of the assessee allowed for the statistical purposes. - ITA No.2748/Del/2017 - - - Dated:- 10-1-2020 - Shri Amit Shukla, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : None For the Respondent : Ms. Rakhi Vimal, Sr.DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against order dated 27/02/2017 passed by the ld. Commissioner of Income-tax (Appeals)-34, New Delhi [in short the Ld. CIT(A) ] for assessment year 2010-11 raising following grounds: 1. One the facts and in law, learned CIT(A) has erred in dismissing the appeal and on sustenance of additions of ₹ 1,30,00,000/- made by the AO On Protective Basis in the hands of the appellant without taking due cognizance of the submissions made before the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ₹ 1,30,00,000/- belonged to the appellant, the appellant Stated in survey that he agrees with the statement of Sh. Rajeev Gulati that ₹ 1.30 Crores found at the residence of Sh. Rajeev Gulati belongs to appellant only. The appellant also stated that he has given this amount to Sh. Rajeev Gulati as advance against purchase of agriculture land in Rohtak. This amount was paid in cash only. This amount was paid from 28/12/2009 to 31/01/2010. On being asked about the source of this cash, the appellant stated that this amount was earned by him by way of sale/purchase of Agriculture land in 2009-10 and also by getting some income as a property consultant. On being asked whether the said income of ₹ 1,30,00,000/- has been duly reflected in your regular books of accounts and whether taxes have been paid on this income, the appellant categorically stated, rather reiterated that stating that he has already told that he had earned this income in 2009-10 by sale/purchase of Agriculture land and also earned some income as property consultant/broker and this cash/income was not reflected in my regular books of account. In fact he stated that no books of accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had seized an amount of ₹ 1,72,67,000/-. The appellant's statement was recorded by the DRI for alleged involvement of some beneficiaries, it is alleged by the appellant that his impugned statement was obtained by DRI during unlawful detention between 03.02.2010 to 05.02.2010 under threat/coercion and physical assault etc. It is further alleged that impugned statement is retracted by the appellant before the said DRI. After following due legal procedure, impugned seized amount of ₹ 1,72,67,000/- was requisitioned u/s.l32A by the ADIT (Inv), Unit - IV (1), New Delhi on 02.08.2010. Statement of the appellant as well as one Shri Tajender Kakkar was recorded by the ADIT (Inv.), Unit-IV(l), New Delhi and case was transferred to the charge of the assessing officer, who after allowing due opportunity of hearing, have passed the assessment order on 28.03.2013. After verifying the assessment -records of the appellant as well as records of said Shri Tajender Kakkar (P. A. Number: ABMPK6252B], I am convinced that the appellant has failed to give satisfactory explanation of source of cash seized by DRI, Mumbai and requisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of ownership impugned sum ₹ 1,30,00,000/- is lack of genuineness and he creditworthiness and source of fund is not established. The appellant has not brought any material on record to show as to how the cash of ₹ 1,30,00,000/- alleged to have been received from Shri Tajender Kakkar was carried/ delivered by/to him in Mumbai from Delhi. The claim of appellant that impugned sum of ₹ 1,30,00,000/- belongs to Shri Tajender Kakkar and same was deposited with the appellant for alleged purchase of plot of land at Haryana is rejected and, addition made by the AO is hereby confirmed. 5.12 In the present case, the addition has been made in the hands of the appellant on protective basis. It is on record that during the entire survey proceedings and assessment proceedings, in the various statements recorded from the appellant, he has submitted that the cash amounting to ₹ 1,30,00,000/-, found at the premises of Sh. Rajeev Gulati belonged to him. He has not only admitted the cash belonged to him, but has even provided the manner in which such income was generated, being sale/purchase of agriculture land and also earned some income as property co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied/ delivered by/to him in Mumbai from Delhi. 5.12.In the present case, no doubt that additions made in the hands of Sh. Rajeev Gulati have already been upheld by CIT(A) on substantive basis. It is also on record that CIT(A) has given his findings that Sh. Tajinder Kakkar has not been able to substantiate ownership of cash amounting to ₹ 1,30,00,000/- found by DRI authorities at the residence of Sh. Rajeev Gulati in view of various observations made by CIT(A): (i) That Sh. Tajinder Kakkar is not maintaining books of account in support of his alleged acceptance of ownership impugned sum ₹ 1,30,00,00/- deposited with Sh. Rajeev Gulati for alleged purchase of plot of land at Haryana. (ii) That Shri Tajender Kakkar is a man of straw and his alleged statement of ownership impugned sum ₹ 1,30,00,000/- is lack of genuineness and he creditworthiness and source of fund is not established. (iii) That Sh. Rajeev Gulati has not brought any material on record to show as to how the cash of ₹ 1,30,00,000/- alleged to have been received from Shri Tajender Kakkar was carried/ delivered by/to him in Mumbai f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ******* 5.2 The Departmental Authorities are bound by the Circulars issued by the CBDT, and should take action in the hands of the assessee after verifying the facts in respect of the status of the addition in the hands of Sh. Rajiv Gulati. The Ld. CIT(A) is not justified in sustaining the protective addition merely on the reason that the assessee has not provided the status of finality of addition in the hands of Sh. Rajiv Gulati. The ld. CIT(A) had access to the records of the department and could have ascertained the status of finality of addition. In our opinion, retaining the addition by the First Appellate Authority, in both substantive in the case of one assessee and protective in the hands of another assessee, is not justified. 5.3 In the facts and circumstances of the case, we feel it appropriate to set aside order of the ld. CIT(A) and restore the matter back to the ld. CIT(A) for deciding afresh in accordance with law after verifying the records that Sh. Rajiv Gulati has finally accepted addition of ₹ 1.3 Crore in his hand. 6. The appeal of the assessee is accordingly allowed for the statistic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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