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07-01-2019, Rajeev Jain, Section 234A, 234B, 133(6), Tribunal Delhi

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2 months 1 week ago #8293 by amit
Section - 234A, 234B, 133(6)
Order Date - 07-01-2019
Favouring - Assessee Partly allowed for statistical purposes
Court - Tribunal Delhi
Appellant - Rajeev Jain
Respondent - ITO
Justice - AMIT SHUKLA JM & PRASHANT MAHARISHI AM
Citation - 119Taxpundit90
Appeal No. - ITA No. 3662/Del/2013
Asstt. Year - 2009-10

Order

PER : PRASHANT MAHARISHI

1. This is an appeal filed by the assessee against the order of the ld CIT(A)- XXII, New Delhi dated 03.01.2013 for the Assessment Year 2009-10, wherein, effectively three grounds of appeal are raised as under:-

“1. That on the facts and in the circumstances of the petitioner’s case the learned Commissioner of Income-tax (Appeals) was wrong in upholding the action of the Assessing Officer in making an addition of Rs. 33,92,703/- as undisclosed payments towards credit cards.

2. That on the facts and in the circumstances of the petitioner’s case the learned Commissioner of Income-tax (Appeals) was wrong in upholding the addition of Rs. 3,18,925/- made by the Assessing Officer under the head ‘short term capital gain’.

3. That on the facts and in the circumstances of the petitioner’s case, the learned Commissioner of Income-tax (Appeals) was wrong in upholding the addition of Rs. 2,58,472/- made by the Assessing Officer, for alleged payments to multiplex capital Limited.

4. That on the facts and in the circumstances of the petitioner’s case, the learned Commissioner of Income-tax (Appeals) was wrong in upholding the action of the Assessing Officer in charging interest of Rs. 5,28,695/- under section 234A and 234B of the Income Tax Act, 1961.”

2. Brief facts of the case shows that the assessee is an individual, derived its income from salary, business and other sources. The assessee is also engaged in trading of shares. The assessee filed its return of income on 31.03.2010 declaring total income of Rs. 154473/-. The assessment u/s 143(3) of the Act was passed on 31.03.2010 declaring total income of Rs. 41,24,573/-. The assessment u/s 143(3) of the Act was passed on 26.12.2011 where three additions were made (i) additions of Rs. 3392703/- as undisclosed payment towards various credit cards; (ii) short term capital gain of Rs. 318925/-; (iii) undisclosed payment to M/s. Multiplex Capital Ltd of Rs. 258472/-. The assessee preferred an appeal before the ld CIT(A), who dismissed the appeal of the assessee vide order dated 31.01.2013 and therefore, aggrieved assessee has preferred this appeal before us.

3. The ground No. 1 relates to the confirmation of the addition of Rs. 3392703/- as undisclosed payment towards various credit cards. During the assessment proceedings the assessee has made payment towards credit cards and was asked to furnish the source thereof. Assessee submitted that these are bank transfer from one credit card to another credit card. Ld AO rejected the same and made the above additions. The ld CIT(A) also no ed the fact at para 8 of his order and confirmed the above additions as under:-

“8.1 During the course of appellate proceedings, Ms. Meenakshi Jain, CA, the Ld. Counsel of the Appellant attended on 08.10.12 and filed the first paper book dated 08.10.12 in which details of 10 Credit Cards from 7 organizations were filed. Among others, the following queries were made on the Order Sheet dated 08.10.12 :-

“3. To specify the Credit Cards and Bank A/cs held by the Assessee during the year and to explain the deposits in them.

4. Specify the investment mode for Shares and specify the Profit/Loss on Shares and also the Profit/Loss on Speculative Transactions.”

8.2 Sh. Sumnish Jain, CA, the other Counsel of the Appellant filed reply dated 29.10.12, which is reproduced above in Para 7.2. On 29.10.12 itself the following Order Sheet entry was made

“It was pointed out to the Ld. Counsel that the reply is incomplete. To furnish full reply / documents and to justify the Grounds of Appeal with evidence.”

8.3 Sh. Sumnish Jain, CA, the Ld. Counsel of the Appellant, on 28.12.12, filed the second paper book (dated 28.12.12). It was noticed that in this Paper Book a very large number of accounts of various Credit Cards from various organizations were filecf which add upto a total of 41 Cards from 8 organizations. Comparing this tcy the details filed in the first Paper Book (dated 08.10.12) it was seen that in the first Paper Book details of only 10 Credit Cards from 7 organizations were filed. Perusal of the written Submissions dated 29.10.12 signed by the Appellant Sh. Rajeev Jain, show that the Appellant had admitted having bank accounts in_-5 Banks (Karur Visya Bank, Karnatka BankTHDf C Bank, RBS and AXIS Bank) and Credit Cards from 8 different organizations (ICICI Bank, RBS, Indslnd, Citi Bank, SB1 Tata, HDFC, HSBC and Std. Chartered Bank). It was noticed that the second Paper Book (dated 28.12.12) claimed to have filed statements of 41 Cards from 8 organizations and 4 Bank Accounts from 3 Bank (Axis Bank, Karnatka Bank and Karur Visya Bank). Thus it is seen that even the second Paper Book did not give the complete details of all the bank accounts, asagainst accounts in 5 Banks admitted by the Appellant vide his letter dated 29.10.12, the second Paper Book (dated 28.12.12) gave the details of bank accounts from only 3 Banks, leaving out the bank accounts from 2 Banks. Further, it is also seen that even the second Paper Book did not give the complete details of all the Credit Cards, as against Credit Cards from 8 organizations admitted by the Appellant vide his letter dated 29.10.12, the second Paper Book (dated 28.12.12) gave the details of Credit Cards from only 7 of those 8 organizations mentioned, leaving out the Credit Cards from “Indslnd”, which was mentioned in point no. 5| of the Submissions dated 29.10.12 as one of the organizations from which Credit Cards were held by the Appellant Thus the second Paper Book did not give the complete details of all the Cred t Cards also. However, it was noticed that the Second Paper Book gave the details of Credit Cards from “Deutsche”, though this was not mentioned in the written Submissions dated 29.10.12 filed by the Appellant. Thus even the written Submissions dated 29.10.12 did not give the complete picture and the full details of all the Credit Cards or even all the organizations from which the Assessee had Credit/Cards.

8.4 In view of the above situation, the Ld. Counsel of the Appellant was made aware of the situation that the Appellant has not come out with the full details and is even now concealing the full details and even the exact number of Credit Cards held by the Assessee. The Ld. Counsel of the Appellant admitted that in addition to the Credit Cards mentioned the Appellant has 2 or 3 more Credit Cards whose details have not been given.

The following entry was made in the Order Sheet on 28.12.12

“The Ld. Counsel has stated that all the evidence was already produced before the AO and there is no new evidence. The Ld. Counsel has stated that in addition to the Cards shown on page 1 & 2 of Paper

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