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2023 (6) TMI 163
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....both the appeals of the revenue and cross 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 ....
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....rred in not giving finding on this issue. The appellant craves leave to add, amend or withdraw any of the grounds 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....
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....rse of search in the group case of Gupta family. Shri Vijay Gupta was specifically asked regarding the agreement for sale of Paradizo 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 c....
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....ough 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 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....
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....h. Anoop Kumar Gupta and that Rs. 40,00,000/- was to be given in cash. The AO also observed that this fact was further got proved from the confirmation given 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 amoun....
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.... (iv) I have considered the facts of the case and it is observed that Sh. Ashok Kumar Jain, Smt. Beena Jain W/o Sh. Ashok Jain, Sh. Ashish Jain S/o Sh. Ashok Jain and Sh. 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 purcha....
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....zed during the course of search. Infact what was available was an unsigned Ikrarnama found from the mobile phone of Sh. Ashok Jain and it is not discernible from record that all necessary 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 e....
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.... (vii) It has been brought to my notice by the Ld. AR that the appellant was holding 40% shares of the total shareholding of the Tongya Resorts Pvt. Ltd., however till the year ending as on 31.03.2020, 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 appella....
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....ed at Kishangarh pride, Copies of an Ikrarnama relating to transfer of shares in Paradizo resort & relevant whatsapp chats extracted from the mobile phone of Shri Ashok Jain and Copies of relevant digital data obtained from the Mobile Phone of Shri Omanshu Sharma and relevant 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- ....
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....e along with his father had extended loan of Rs.4.90 Crore to Sh. Ashok Jain in lieu of the sale of 60% of shares of Paradizo resort by Sh. Ashok Jain. Sh. Chandra Kant Saini stated that neither shares of Paradizo resort were given to him nor the loan was returned back. Further, statements of Shri Vijay Gupta (key person in the Gupta Group of cases) brother of assessee Shri Anoop Kumar Gupta were also recorded during the course of 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 c....
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....lers and paid by the purchasers, over and above the book value of the property. Therefore, keeping in view all the materialistic facts and also the circumstances emerged consequent to the evidences gathered during search and also their analysis made in the assessment proceedings, the denial made in respect of the transactions occurred as per the Ikrarnama found and seized from the residence of Shri Ashok Jain, has no foot to stand. Therefore, it is established that through 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....
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....which claims that the agreement was not executed. Accordingly the addition of Rs. 6.21 was deleted by the Ld. CIT(A). • Decision of Ld CIT(A) is not acceptable. * It is to be noticed that even though agreement was unsigned but entries appearing therein had been duly accepted by respective parties to great extent in the form of unsecured loan and/or advance etc. It is duly admitted by them as well as by Ld. CIT(A) and it is an undisputed fact that amount of Rs 3.58 Cr was duly received by one of the director 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 t....
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.... on this loan. Even Shri Ashok Jain in his statement accepted that he has taken loan which is going to be paid by transferring of shares. It make it clear that the said loan was nothing but advance received/given for transfer of shares. But ld CIT(A) ignored this fact. * It is also proved from whatsapp chat that other than Rs 3.98 Cr at least amount of 75 lakhs, 38 lakhs, 40 laks were also received in the year under consideration. But But Id CIT(A) ignored this fact and deleted entire addition. * Even entry of Rs 40 lakhs in cash as mentioned in seized paper is not seen accepted 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 an....
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.... short-written submission which is reiterated for the sake of brevity: "A search and seizure operation was carried out by the Income Tax Department on 13.02.2020. During the search an unsigned agreement was recovered which was dated 08.11.2019 and was to be materialized by 31.07.2020. As the agreement was unsigned and such having no evidentiary value. In the agreement a sum of Rs. 3,58,00,000/- was paid out of which Rs.3,25,00,000/- to Ashok Kumar Jain and Rs. 33,00,000/- to Ashish Jain. This amount was shown as an unsecured loan in the books of Ashok Kumar Jain and Ashish Jain as the same was taken before the date of agreement. The same 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....
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....ts Private Limited? The ld. DR argued that the finding of the ld. CIT(A) is based on the submission of the assessee and no verification or opportunity were accorded to the assessing officer. However, at the same time ld. AR objected and submitted that the notice of hearing was given to the ld. AO and ld. DR. cannot take such a plea now. Based on these facts the bench directed the ld. DR to find out the correct fact and submit the status report on the issue so as to know that whether in fact the transfer of shares is reported and recorded in the income tax records or not? On the issue of transfer of shares of Tongya Resorts Private Limited ld. AO filed a status report which is reiterated herein 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 recorde....
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....ar claims and also gave stated I am undertaking that shares will be transferred in due H 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.,. Verification & comments: 1. First of all, returns filed by Shri Anoop Gupta for AY 2021-22 & 2022- 23 were examined from system. It is noticed that in its ROI filed for AY 2021-22 & 2022- 23, assessee had declared capital gain on account of transfer of shares. 2. As informed by DR, the A/R of assessee during the hearing assured the bench that overall sale price of shares in question would be Rs 16 Cr and his client would be responsible for 40% of 16 Cr in lieu of transfer of his 40% shares. In submission dated 09.11.22 also assessee 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 amoun....
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....assessee. He has also raised a question that whether in fact when the ikrarnama found during the search or thereafter the transfer of shares in fact transferred or not is not clear. He also submitted that whether the resultant transactions are recorded by the assessee in subsequent year or not, is the moot question to be addressed and that even if transferred deal the question of on money. As the question is circulating on the fact whether the assessee in fact executed the transaction and the related shares were transferred or not. On the contrary the ld. AR of the assessee categorically confirmed that the shares were transferred in accordance with the price agreed and the same was not transferred on account of pandemic but were subsequently based on the consideration paid transferred and relevant capital gain is also offered. So 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 perio....
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.... no. 1, 3 & 4 being general in nature and there is no specific submission and/or arguments advanced before us on the issue and therefore, we considered as general in nature and it does not require any adjudication and thus same are dismissed. 14. In the result the appeal of the revenue in ITA No. 337/JPR/2022 is dismissed. 15. The fact of the case in ITA No. 338-JP-2022 is similar to the case in ITA No. 337-JP-2022 and we have heard both the parties and persuaded the materials available on record. The bench has noticed that the issues raised by the revenue in this appeal in ITA No. 338-JP-2022 equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts and various grounds raised by both the parties. Hence, the bench feels that the decision taken by us in ITA No. 337-JP-2022 for the Assessment 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 ther....