Shri Dharamshibhai C.Narola, Surat V. The ACIT.,Circle-8, Surat

CO 148/AHD/2012

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4020 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P M MEHTA; S N SOPARKAR
• Keywords: Unexplained investment
• Section: 69B; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI S.K. YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NOS:1535/AHD/2012 & C.O. NO. 147/AHD/2012 (ASSESSMENT YEAR: 2009-10) THE A.C.I.T, CIRCLE-8, SURAT SHRI VIJAYBHAI DHARMSHIBHAI NAROLA,. 15, RISHIKESH SOCIETY, MAGAN NAGDAR, KATARGAM SINGANPORE ROAD, SURAT- 395004 PAN NO. AAZPN 9338D V/S V/S SHRI VIJAYBHAI DHARMSHIBHAI NAROLA,. 15, RISHIKESH SOCIETY, MAGAN NAGDAR, KATARGAM SINGANPORE ROAD, SURAT- 395004 PAN NO. AAZPN 9338D THE A.C.I.T, CIRCLE-8, SURAT (APPELLANT) (RESPONDENT) ITA. NOS:1536/AHD/2012 & C.O. NO. 148AHD/2012 (ASSESSMENT YEAR: 2009-10) THE A.C.I.T, CIRCLE-8, SURAT SHR DHARMSHIBHAI NAROLA, 15, RISHIKESH SOCIETY, V/S V/S SHRI DHARMSHIBHAI NAROLA, 15, RISHIKESH SOCIETY, MAGAN NAGDAR, KATARGAM SINGANPORE ROAD, SURAT- 395004 PAN NO. AEJPN 8887K THE A.C.I.T, CIRCLE-8, SURAT ITA NOS. 153 5 & 1536/AHD/2012 & C.O. NOS. 147 & 148/AHD/2012 . A.Y. 2009- 10 2 MAGAN NAGDAR, KATARGAM SINGANPORE ROAD, SURAT- 395004 PAN NO.AEJPN 8887K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JAMES KURIAN, SR. D.R. RESPONDENT BY: SHRI S.N.SOPARKAR & P.M. MEHTA, A. R. ( )/ ORDER DATE OF HEARING : 14 -07-201 6 DATE OF PRONOUNCEMENT : 19 -07-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. ITA NO. 1535 & C.O. NO. 147/AHD/2012 AND ITA NO. 15 36 & C.O. NO. 148/AHD/2012 ARE APPEALS BY THE REVENUE AND CROSS OBJECTIONS BY THE ASSESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)- V, SURAT DATED 25.04.2012 PERTAINING TO A.Y. 2009-1 0 IN RELATION TO TWO DIFFERENT ASSESSEES RESPECTIVELY. 2. THESE APPEALS BY THE REVENUE AND CROSS OBJECTIONS O F THE ASSESSEE HAVE COMMON ISSUES BASED ON SAME SET OF FACTS; THER EFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE. 3. AS MENTIONED ELSEWHERE, THE FACTS IN ISSUES IN THES E APPEALS/CROSS OBJECTIONS ARE COMMON; WE ARE TAKING UP THE FACTS I N ITA NO. 1535/AHD/2012. THE COMMON GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 84 LAC S MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S. 69B OF THE ACT. ITA NOS. 153 5 & 1536/AHD/2012 & C.O. NOS. 147 & 148/AHD/2012 . A.Y. 2009- 10 3 4. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS AND ON THE BASIS OF CERTAIN INFORMATIONS, THE A.O. FOUND THAT THE ASSESSEE ALONG WITH HIS FATHER SHRI DHARAMSINGH BHURABHAI NAROLA ( ITA NO. 1536/AHD/2012) HAD PURCHASED AGRICULTURAL LAND FROM SHRI CHHOTA MOHAMED BADAT FOR RS. 12 LACS. THE A.O. CAME TO KNO W THAT IN THE STATEMENT RECORDED U/S. 131 OF THE ACT ON 05.01.200 9, SHRI ILYAS CHHOTA BADAT, WHO HAPPENS TO BE THE SON OF THE SELL ER, SHRI CHHOTA MOHAMED BADAT ADMITTED THAT THE SAID LAND WAS SOLD BY HIS FATHER FOR A TOTAL CONSIDERATION OF RS. 1.80 CRORES. 5. TAKING A LEAF OUT OF THIS STATEMENT, THE A.O. WAS O F THE OPINION THAT THE ASSESSEE, ALONG WITH HIS FATHER HAS MADE UNACCO UNTED INVESTMENT IN THE SAID AGRICULTURAL LAND TO THE TUNE OF RS. 1. 68 CRORES. SINCE, THE SAID AGRICULTURAL LAND WAS PURCHASED JOINTLY; THE A .O. DIVIDED THE ALLEGED UNEXPLAINED INVESTMENT OF RS. 1.68 CORES BE TWEEN THE FATHER AND THE SON AND MADE ADDITION OF RS. 84 LACS EACH I N THE RESPECTIVE ASSESSMENTS. 6. THE MATTER WAS STRONGLY AGITATED BEFORE THE LD. CIT (A). IT WAS STRONGLY CONTENDED THAT THE ONLY BASIS OF MAKING THE ADDITIO N WAS THE STATEMENT OF SHRI ILYAS CHHOTA BADAT. IT WAS BROUGH T TO THE NOTICE OF THE FIRST APPELLATE AUTHORITY THAT IN HIS STATEMENT SHRI ILYAS CHHOTA BADAT DID NOT MENTION THE NAME OF THE ASSESSEE OR H IS FATHER TO HAVE MADE ALLEGED UNDERHAND PAYMENT OVER AND ABOVE THE C ONSIDERATION DECLARED. 7. AFTER CONSIDERING THE FACTS AND THE STATEMENTS, THE LD. CIT(A) FOUND FORCE IN THE CONTENTION OF THE ASSESSEE. THE LD. CI T(A) WAS OF THE ITA NOS. 153 5 & 1536/AHD/2012 & C.O. NOS. 147 & 148/AHD/2012 . A.Y. 2009- 10 4 OPINION THAT THAT THE MERE FACT THAT SOMEBODY MADE A STATEMENT, BY ITSELF, CANNOT BE TREATED AS HAVING RESULTED IN AN IRREFUTABLE PRESUMPTION AGAINST THE ASSESSEE. THE BURDEN WAS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS MADE UNEXPLAINED INVEST MENT BY PAYING THE CONSIDERATION OVER AND ABOVE THE DECLARED CONSI DERATION. THE LD. CIT(A) ALSO FOUND THAT THOUGH SHRI ILYAS CHHOTA BAD AT MENTIONED THAT THE LAND WAS SOLD WAS FOR A CONSIDERATION OF RS. 1. 80 CRORES BUT IT DOES NOT SPECIFY AS TO WHICH LAND, AREA, HAS BEEN SOLD. IN FACT, IT WAS FOUND THAT SHRI ILYAS CHHOTA BADAT HAS SPECIFICALLY GIVEN THE NAME OF THE PERSON TO WHOM THE LAND HAS BEEN SOLD AND HAPPENS T O BE KNOWN AS BADSHAHBHAI WHO IS LAVJIBHAI DUNGARBHAI DALIYA WHOS E NAME AND ADDRESS AND PHONE NUMBER WAS ALSO GIVEN. 8. AFTER APPRECIATING ALL THESE FACTS IN TOTA LITY, THE LD. CIT(A) DELETED THE ADDITION MADE BY THE A.O. 9. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US . 10. THE LD. D.R. STRONGLY RELIED UPON THE FINDINGS OF T HE A.O. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 11. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW AND WITH THE ASSISTANCE OF THE LD . SENIOR COUNSEL, WE HAVE GONE THROUGH THE RELEVANT DOCUMENTARY EVIDENCE S BROUGHT ON RECORD AND REFERRED TO DURING THE COURSE OF THE HEA RING. IT IS AN UNDISPUTED FACT THAT THE SOLE BASIS OF MAKING THE I MPUGNED ADDITION IS THE STATEMENT OF SHRI ILYAS CHHOTA BADAT. IT IS ALS O AN UNDISPUTED FACT THAT IN HIS STATEMENT SHRI ILYAS CHHOTA BADAT HAS N OT EVEN MENTIONED ITA NOS. 153 5 & 1536/AHD/2012 & C.O. NOS. 147 & 148/AHD/2012 . A.Y. 2009- 10 5 THE NAME OF THE ASSESSEE OR HIS FATHER. IT IS ALSO AN UNDISPUTED FACT THAT NAME OF SOME THIRD PERSONS WAS MENTIONED BY SH RI ILYAS CHHOTA BADAT WITHOUT EVEN SPECIFYING THE AGRICULTURAL LAND TRANSACTED BY HIS FATHER. THE A.O. HAS NOT BROUGHT ANY CORROBORATIVE EVIDENCE ON RECORD WHICH COULD PROVE THE NEXUS BETWEEN THE STATEMENT O F SHRI ILYAS CHHOTA BADAT AND THE ASSESSEE OR HIS FATHER. MOREOV ER, WE FIND EVEN THE STATEMENT OF SHRI ILYAS CHHOTA BADAT WAS NOT PU T TO CROSS- EXAMINATION TO THE ASSESSEE WHICH MAKES THE STATEME NT MORE VULNERABLE AND NOT ACCEPTABLE. 12. CONSIDERING ALL THESE FACTS IN TOTALITY, WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE FIRST APPELLATE AU THORITY. WE, ACCORDINGLY, DISMISS BOTH THE APPEALS OF THE REVENU E. 13. BEFORE US, THE LD. SENIOR COUNSEL DID NOT PRESS THE CROSS OBJECTIONS OF THE ASSESSEE AND THE SAME ARE DISMISS ED AS NOT PRESSED. 14. IN THE RESULT, THE APPEALS OF THE REVENUE AND THE C ROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 19 - 07 - 2016. SD/- SD/- (S.K. YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT.