TaxTMI 
TaxTMI 
2023 (6) TMI 163
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....s objections of the assessee are also on similar issues, we have heard together both the parties in the matter and are being disposed off by this consolidated order. 2. At the outset, the ld. AR has submitted that the matter pertaining to Shri Anoop Kumar Gupta in ITA no. 337/JPR/2022 & Co. No. 26/JPR/2022 may be taken as a lead case for discussions and understanding of the facts and issues involved. As the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other case are exactly identical, the ld. DR did not raise any specific objection against taking the case of Shri Anoop Kumar Gupta as a lead case. Therefore, for the purpose of the present discussions, the case of Shri Anoop Kumar Gupta is taken as a lead case. 3. In ITA No. 337/JP/2022 for A.Y 2020-21, the revenue has taken following grounds of appeal, which is reproduced here in below: "1 Ground 1 "The Ld. CIT(A) has erred in law and on facts in granting relief to the assessee. 2. Ground 2 " Whether on facts, and in the circumstances of the case and in law, the ld. CIT(A) is justified in deleting the addition of Rs.6,21,00,000/- made u/s 69 r....
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....rounds of the appeal during the course appellate proceedings. All the grounds of appeal are independent and without prejudice to each other." 5 The brief facts of the case as culled out from the records is that the search and seizure action u/s 132 of I.T. Act, 1961, was carried out on 13.02.2020 at the residential and business premises of the assessee group and his family members i.e. Saini Gupta Jain Malpani Somani Group of Ajmer. Various assets had been found at the time of search and some of them were also seized at various places of the group at the time of action u/s 132 of I.T. Act. Certain incriminating documents/Loose papers/Books of accounts etc. were also found, inventorized and some of them also seized or impounded at the time of search / survey u/s 132/133A of the I.T. Act. On account of search action the case of the assessee was centralized vide order under section 127 of the Act and thus the jurisdiction was assigned to ACIT, Central Circle, Ajmer. The assessee has filed his original return of income for the year under consideration on 15.02.2021 declaring taxable income of Rs. 28,92,260/-. During the year, the assessee is having income from House Property, Income....
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....dizo resort between Shri Ashok Jain and other directors of M/s Tongya Resorts Pvt. Ltd. and Sh. Ghanshyam Saini and his family members. However, Shri Vijay Gupta has denied to have any inkling of sale of Paradizo Resort. The statements given during the course of search proceedings by Shri Ashok Jain, Shri Chandra Kant Saini and Shri Vijay Gupta (brother of Shri Anoop Kumar Gupta) have been carefully gone through and analyzed all together with the details of transfer of property in Question in the Ikrarnama and the Whatsapp chats held between Shri Chandra Kant Saini, DCIT vs. Anoop Kumar Gupta Shri Vijay Gupta and Shri Ahok Jain and conclusion thereof has been drawn accordingly. The ld. AO incorporated the whatsapp chat in the assessment order and noticed that Shri Chandra Kant Saini (Chintu Saini) had assured for a payment of Rs.75,00.000/- (i.e. written in short as 75) tough transfer in the bank account of bhaiya (ie. Shri Anoop Kumar Gupta which may got proved in the subsequent paras] and Rs.40,00,000/ (i.e. written in short as 40) will be given in cash. The above messages were subsequently forwarded by Shri Vijay Gupta to Shri Ashok Jain on the same day which were in confirmati....
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....ther of Shri Vijay Kumar Gupta) being one of the directors among the Gupta Family in M/s Tongya Resorts Pvt. Ltd. have received a sum of Rs. 12.42 Crores in cash and all the story made up by them during the course of search proceedings, as well as in the assessment proceedings is nothing but their afterthought for just to escape from their regular tax liability. In the light of the facts narrated ld. AO noted that the assessee Shri Anoop Kumar Gupta is beneficiary of Rs. 6.21 crore [ being 50 % of Rs. 12.42 crore ] in the above transfer of property which represents his undisclosed income for the year under consideration and accordingly addition of Rs. 6,21,00,000/- made to the total income of the assessee being unexplained investment u/s . 69 r.w.s. 115BBE of the Act. 7. Aggrieved from the addition made by the ld. AO, assessee has carried the matter in appeal before the ld CIT(A). The ld. CIT(A) has deleted the addition and partly allowed the appeal of the assessee. On the issue of addition of Rs. 6.21 crore the relevant findings of the ld. CIT(A) is recorded at para 4.2 and the same is reproduced for the sake of understanding: "4.2 I have considered the facts of the case and wr....
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....by Sh. Heera Lal to Sh. Vijay Gupta as per chat no. 3, that an amount of Rs. 38,00,000/- our of the above amount of Rs. 75,00,000/- was already received on 11.12.2019 from Sh Chandra Kant Saini in the account of Sh. Anoop Kumar Gupta. Accordingly, the AC held that the above referred transfer of payments were in connection with the agreement held on 08.11.2019 between the sellers and purchasers as mentioned supra and that the agreement was actually in existence and was being executed as per the terms and conditions mentioned therein. The AO also observed that the amount of Rs. 3,58,00,000/-received by Sh. Ashok Jain on different dates through cheques was not a loan taken by him but was an advance payment received on account of transfer of his shares in the name of the above purchasers as per the terms of the agreement, Further, considering the fact that out of total sale consideration of Rs. 16 Crores, an amount of Rs. 3.58 Crores has already been received as advance through banking channels, the AO added back the balance amount of Rs. 6.21 Crores (being 50% of Rs. 12.42 Crores) in the hands of the appellant by considering the same to be the value taken by the sellers and paid by th....
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....Anoop Gupta, the appellant, are the Directors in M/s Tongya Resorts Pvt. Ltd. who have, as per the Ikrarnama, agreed to transfer the shares of Paradizo Resorts for an amount of Rs. 16,00,00,000/- to Sh. Ghanshyam Saini, Smt. Lalita Saini, Sh. Chandra Kant Saini, Sh. Gaurav Saini and Smt. Sangeeta Saini. The AO has observed that the amount of Rs. 3.58 Crores was received by Sh. Ashok Jain on different dates through cheques and was an advance payment received on account of transfer of his shares in the name of the above purchasers as per the terms of the Agreement. Thus as per the AO's own admission, the amount of Rs. 3.58 Crores has been received by Sh. Ashok Jain and not by the appellant, Sh. Anoop Gupta, though it is also observed that the addition of Rs. 6.21 Crores, being 50% of the balance amount of Rs. 12.42 Crores has been made by the AO in the hands of Sh. Anoop Gupta, the appellant. However the fact remains that neither the shares of Paradizo Resort were allotted by the appellant to the alleged purchasers nor the loan was returned back during the year under consideration. (v) Further, the factual position is this that the aforesaid document has been retrieved from the....
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....y steps were taken before cloning of phone of Sh. Ashok Jain and taking the printout of the same and that whether these were confronted to the appellant during the course of search proceedings and no objection was raised by the appellant on the same. It is observed that the agreement has been made for a total amount of Rs. 16 Crores out of which Rs. 3.58 Crores has been received by Sh. Ashok Kumar Jain through cheque and not by the appellant. Further, I find that the balance amount of Rs. 12.42 Crores was to be received by the sellers, i.e. the Directors of Tongya Resorts Pvt. Ltd. by 31.07.2020, in lieu of which, the sellers would transfer the shares of M/s Tongya Resorts Pvt. Ltd. to the purchasers. It is also observed that the search was initiated in the case of the appellant group on 13.02.2020 i.e. prior to the period by which the deal was to be materialized. I find that no evidence of payment has been found during the course of search nor the AO has made any enquiry and brought on record any evidence justifying the said payment of Rs. 6.21 Crores to the appellant. It is also observed that Sh. Anoop Gupta holds 40% of the shares of the aforesaid company and the balance 60% is ....
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....020, there was no sale and transfer of shares. In the subsequent years 7993 shares were sold and capital gain has been duly disclosed in the return of income filed and due tax has been paid thereon. As regards the whatsapp chat which refers to payment of Rs. 77 Lakhs to have been received by the appellant on 30.11.2018 and payment of Rs. 38 Lakhs received on 11.12.2019, these appear to be unsecured loans as these were duly accounted for and the appellant had paid interest thereon, upon which TDS was also deducted. However subsequently when the shares were sold, this unsecured loan has been adjusted towards the consideration of shares sold. Thus I find that there was no material with the AO to show that the appellant has actually received the amount of Rs.6.21 crores during the year as the AO has neither been able to justify the addition with any evidence in this regard nor has been able to cull out the time period of the alleged receipt whereas on the contrary, the Ld AR of the appellant has been able to bring the facts on record that the alleged shares were transferred in the subsequent years which were not only disclosed by the appellant in his returns of income but due taxes wer....
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....vant Annexure-CF in the case of Shri Omanshu Sharma) Original Authorizations letters of PCIT (Central), Rajasthan, Jaipur, Form No.36, Orders of CIT(A), Form No.35, Assessment Orders, Grounds filed by the assessee before the CIT(A) were already submitted along with appeals. Copies of the same were also already provided to your goodself. However, in case any other document/file/details etc. are required, kindly intimate to this office. Yours faithfully (Dheeraj Kumar Gupta) Deputy Commissioner of Income- tax, Central Circle, Ajmer No. CIT(DR-1)/ITAT/JPR/2022-23/402 Dated 31.10.2022 To, The Hon'ble Members, 'B' Bench, Income Tax Appellate Tribunal Jaipur. Sub:- Paper Book in the case of Saini-Gupta-Jain-Malpani-Somani Group of Ajmer ITA No. 334 to 339/JPr/2022 & 356/JPR/2022 and CO No. 23 to 29/JPR/2022, A.Y 2019-20 & 2020-21 reg- Respected Madam/Sir Kindly refer to the above appeal matter and find enclosed herewith the Paper Book received from the Assessing Officer i.e. DCIT, Central Circle, Ajmer vide his office letter No. 620 dated 13.10.2022 for you kind consideration. Yours faithfully (Shailendra Sharma) Commissioner of Income (DR)-II, ITAT, Jaipur ....
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.... search proceedings in the group case of Gupta Family. Sh. Vijay Gupta was specifically asked regarding the agreement for sale of Paradizo resort between Sh. Ashok Jain and other directors of M/s Tongya Resorts Pvt. Ltd. and Sh. Ghanshyam Saini and his family members. However, Shri Vijay Gupta has denied to have any inkling of sale of Paradizo resort. The statements given during the course of search proceedings by Shri Ashok Jain, Shri Chandra Kant Saini and Shri Vijay Gupta (brother of Shri Anoop Kumar Gupta) was carefully gone through by AO and analyzed all together with the details of transfer of property in Question in the Ikrarnama and the WhatsApp chats held between Shri Chandra Kant Saini, Shri Vijay Gupta and Shri Ashok Jain and conclusion thereof has been drawn accordingly. On perusal of the whatsapp chats, it can be noticed that Shri Chandra Kant Saini [Chintu Saini) had assured for a payment of Rs.75,00,000/- (i.e. written in short as 75) through transfer in the bank account of bhaiya (i.e. Shri Anoop Kumar Gupta which may got proved in the subsequent paras] and Rs.40,00,000/- (i.e. written in short as 40) will be given in cash. The above messages were subsequently f....
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....hrough the above transfer of property, the sellers Shri Ashok Jain being the key person of the Jain Group and Shri Anoop Kumar Gupta (brother of Shri Vijay Kumar Gupta) being one of the director among the Gupta Family in M/s Tongya Resorts Pvt. Ltd. have received a sum of Rs.12.42 Crores in cash and all the story made up by them during the course of search proceedings, as well as in the assessment proceedings is nothing but their afterthought for just to escape from their regular tax liability. Considering, all the issues discussed in the above paras and in the light of the facts narrated above, the assessee Shri Anoop Kumar Gupta has been held to be a beneficiary of Rs.6.21 Crores (being 50% of Rs.12.42 Crores) in the above transfer of property, which represents his undisclosed income for the year under consideration. Accordingly, an addition of Rs.6,21,00,000/- was made to the total income of the assessee being unexplained investment u/s 69 r.w.s. 115BBE of the I.T. Act, 1961. * Ld CIT(A) in her order deleted the addition made by AO and mentioned that agreement found in mobile was unsigned agreement. It has been brought to her notice that Sh. Anoop Gupta was holding 40 % shar....
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....r Shri Ashok Jain (one of seller) from Shri Chandra Kant Saini etc (the purchasers). Similarly amount of Rs 75 lakhs and 38 lakhs had also been received on 30.11.18 and 11.12.19 by assessee even though claimed as unsecured loan but had been admittedly adjusted in lieu of transfer of shares subsequently. Hence, it is understood that transfer of shares were occurred in the similar fashion as was in agreement but in subsequent years. As per provision of section 132(4A)(ii) it may be presumed that the content of such books of account and other documents are true; hence, onus is on the assessee. Hence, genuineness of agreement is duly proved in light of these evidences. * However, as a matter of fact before the transfer of shares in books search was executed by the department. After that shares were transferred in subsequent years. But here question to be decided is not the accounted transaction of transfer of shares rather it is about unaccounted transaction. AO had made addition of Rs 12.42 Cr (each 6.21 Cr) after allowing credit of 3.58 Cr received by Shri Ashok Jain seen duly accounted. * It is further to mention that transaction in subsequent years regarding transfer of shares ....
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....epted by Ld CIT(A) in spite of the fact that the same is duly reflecting in seized paper. * Further, it is also to mention that as per provision of section 132(4A)(ii) it may be presumed that the content of such books of account and other documents are true;. Hence, onus is on the assessee to cull out the time line of transactions mentioned in seized paper and in absence of the same AO had presumed time line of unexplained transactions in the search year i.e. year under consideration. * It is also to mention that AO had not made an addition for explained amount of Rs 3.58 Cr and addition was made of balance amount of Cr 12.42 Cr after allowing credit of Rs 3.58 Cr. out of Rs 16 Cr. which was unexplained. * Hence, order of Ld CIT(A) was not acceptable in view of above discussion, findings made by AO in assessment order and material on record. Accordingly, further appeal before Hon'ble ITAT was recommended. Accordingly, further appeal before Hon'ble ITAT was filed in both the cases as per order of worthy Pr. Commissioner of Income-tax (Central), Rajasthan, Jaipur on the grounds mentioned in the order of worthy PCIT. Said appeals were filed online as well as offline su....
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....ame was proposed to be adjusted against share transfer in case Sh. Ashok Kumar Jain and Ashish Jain are not able to pay the unsecured loan. No amount was received by Anoop Kumar Gupta at the time of agreement. As the search operation was carried out by the Department and assesse was facing corona pandemic and all the business activity was severally effected and deal cannot be materialized by that stipulated time. Later on some of the shares were got transferred in the F. Y. 2020-21 and due Tax in the form of Capital Gain Tax has been paid and in support of which Copy of the ITR is enclosed herewith. Similarly some of the shares were also got transferred in F.Y. 2021-22 and due Tax in the form of Capital Gain Tax has been paid and in support of which Copy of the ITR is enclosed herewith. The Appellant was having 30198 Shares and out of which 7993 shares were transferred in F. Y. 2020-21 and 7993 shares in F.Y. 2021-22 and remaining shares was still with the appellant as on 31.03.2022. The Ld AO in the Assessment order has made addition u/s 69 assuming that Sh. Anoop Kumar Gupta has holding 50% shareholding of Tongya Resorts Pvt Ltd. whereas The Appellant was having only 40% ....
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....n below: "As per Assessment orders in brief:- * Search & Seizure action u/s 132 of the I. T. Act, 1961 was carried out at the Residential and Business Premises of the assessee and his family members of the Group (Saini-Gupta-Jain-Malpani-Somani Group of Ajmer) on 13.02.2020. * On the basis of seized material (an Ikrarnama of Rs. 16.00 Crore relating to transfer of shares in Paradizo resort, whatsapp chats retrieved and other such materials), statements recorded and material ion record AO treated transaction to the extent of Rs 12.42 Cr regarding sale/purchase of transfer of shares in Paradizo resort as unexplained. In the case of key purchaser Shri Chandra Kant Saini AO made addition of 12.42 Cr. Similarly in the cases of key sellers Shri Ashok Jain being the key person of the Jain Group and Shri Anoop Kumar Gupta (brother of Shri Vijay Kumar Gupta) being one of the director among the Gupta Family in M/s Tongya Resorts Pvt. Ltd. Addition of Rs 12.42 Cr was made by dividing the same equally i.e Rs 6.21 Cr in each seller case. Appeal proceedings: * Ld CIT (A) deleted the addition. Decision of Ld CIT(A) was not accepted on merit. Accordingly, further appeal before Hon'bl....
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.... made similar claims and also gave stated "I am undertaking that shares will be transferred in due course taking total consideration as 40% of 16 Crore subject to term & condition as mutually agrred upon by buyers and sellers are met including receipt of payment etc.,...." is premature to comment upon this assurance. "However, it 3. Claim of assesse that any amount was not received during the year under consideration is not correct. As in the another case of same group purchaser Shri Chandra Kant Saini has enclosed ledger copy of assessee at page no 25 of reply filed on 07.11.22 before the Hon'ble Bench which shows that amount approx. of Rs 1.9 Cr has been shown as debit entry in the name of assessee Shri Anoop Gupta in the ledger copy of Shri Chandra Kant Saini. 4. However, submission of assessee cannot be accepted in view of findings made in assessment order and submissions made in paper book submitted vide this office letter no. 620 dated 13.10.2022 and letter no 641 dated 31.10.2022. Findings given therein are again reiterate here which are not repeated here due to brevity. Issue under dispute is not the accounted transaction/entries rather it is the unaccounted transac....
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.... as to find the truth on the issue bench directed the ld. DR to call for the status report to confirm the contentions of the assessee as confirmed by the ld. CIT(A) based on the evidences produced by the assessee. The ld. AR contended that fact is not disputed that agreement is unsigned and performance date as per the agreement was 31.07.2020 and said period was affected by the pandemic the assumption and presumption made by the revenue is not correct. As it is evident from the status report of the ld. AO that the 7993 shares were transferred in A.Y. 2021-22 & 7993 share transferred in A.Y. 2022-23 and remaining 14212 shares are still with the assessee not transferred. Thus, it is very much clear that the in the year under consideration the shares were not transferred as contended by the ld. AO and the unexplained investment as contended by the assessing officer in fact inkling based on the unsigned ikrarnama found. Thus, we are of the considered view that the addition was made based on the suspicion and the consideration fixed vide ikrarnama in fact not flowed and in fact there is no support found from the seized record to substantiate the view taken by the revenue. The asset is n....
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....Year 2020-21 shall apply mutatis mutandis in the case of Shri Chandra Kant Saini in ITA No. 338-JP-2022 for the Assessment Year 2020-21. 16. In the result, the appeal of the revenue in ITA No. 338/JPR/2022 is dismissed. 17. Now, we take up the cross objection filed by the assessee Shri Anoop Kumar Gupta in CO/26/JPR/2022 wherein effectively there are four grounds of cross objections raised by the assessee. 18. The cross-objection ground no. 1(i) & (ii) relates to invoking of provision of section 69 & 115BBE of the I.T. Act, as the addition has already been deleted by the ld. CIT(A) and we also concur the finding of the ld. CIT(A) this ground taken by the assessee becomes technical and infructuous does not require any adjudication. Ground no. 2 is related to challenging the proceeding on account of mechanical approval u/s . 153D of the Act, since we have concurred the findings of the ld. CIT(A) on merits therefore, these ground No. 2 becomes technical and infructuous does not require any adjudication. As regards ground no. 3 related to charging of interest u/s . 234B which is consequential in nature for which AO is directed to give the necessary effect as per law. Ground no. 4 is....