Shri A. Seenivasan, Ahmedabad V. The ACIT.,Cent,Circle-1(2), Ahmedabad

CO 223/AHD/2011

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1344 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 08-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGRAWAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER ACIT, CENTRAL CIRCLE 1(2), ROOM NO. 305, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD (APPELLANT) VS SHRI A. SEENIVASAN, C/O. L.G. THAKKAR, 1 ST FLOOR, KASHMIRA CHAMBERS, B/H. OLD HIG H COURT, NAVRANGPURA, AHMEDAABD - 380009 PAN: APOPS3411E (RESPONDENT /CROSS OBJECTOR ) REVENUE BY : S H RI RAJEEV AGRAWAL, CIT - D . R. ASSESSEE BY: S H RI ASEEM THAKKAR , A.R. DATE OF H EARING : 08 - 09 - 2 015 DATE OF PRONOUNCEMENT : 28 - 10 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS REVENUE S APPEAL AND ASSESSEE S CROSS OBJECTION FOR A.Y. 2005 - 06, ARISE FROM ORDER OF THE CIT(A) - I, AHMEDABAD DATED 13 - 07 - I T (SS) A NO . 528 / A HD/20 11 & CO NO . 223/AHD/2011 A SSESSMENT YEAR 200 5 - 06 I .T(SS).A NO. 528 /AHD/20 11 & CO NO. 223/AHD/2011 A.Y. 2005 - 06 PAGE NO ACIT VS. SHRI A. SEENIVASAN 2 2011 IN APPEAL NO. CIT(A) - I/CC.1(2)/41/20 10 - 11 , IN PROCEEDINGS UNDER SECTION 153C R.W.S. 153A(1)(B) R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE REVENUE S SOLE SUBSTANTIVE GROUND CHALLENGES THE LOWER APPELLATE ORDER DIRECTING THE ASSESSING OFFICER TO ALLOW RELIEF @ 95% OF RS. 2,17,50,444/ - I.E. 2,06,62,9 22/ - ON ACCOUNT OF UNDISCLOSED INCOME FROM PROPRIETARY BUS INESS. THE ASSESSEE S PLEADING S I N CROSS OBJECTION CHALLENGE ADDITION OF UNDISCLOSED INCOME QUA THE REMAINING 5% COMPONENT OF THE ABOVE STATED GROSS AMOUNT. 3. FACTS OF THE CASE ARE IN A NARROW COMPASS. THE DEPARTMENT CARRIED OUT A SEARCH IN M/S RADHE GROUP OF CASES ON 04 - 08 - 2006 INTER ALIA DISCOVERING THAT SHRI ASHISH PATEL OF THIS GROUP HAD BEEN APPOINTED BY M/S SAHARA OF LUCKNOW FOR ACQ UIRING LANDS. THIS CULMINATED IN ISSUANCE OF SECTION 153 NOTICE ISSUED ON 19 - 08 - 2008. THE ASSESSEE FILED HIS RETURN ADMITTING INCOME OF RS. 1,8 3,710/ - . THE ASSESSING OFFICER TOOK UP SCRUTINY. HE REFERRED TO SHRI PATEL S STATEMENT DISCLOSING BOGUS LAND DEVELOPMENT EXPENSES CLAIMED THROUGH VARIOUS CONCERNS INC LUDING M/S DEVIDURGA CONSTRUCTIO N AND ITS PARTNER SHRI SEE NIVASAN (ASSESSEE.) THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT ON 31 - 12 - 2008 INTER ALIA ADDING COMMISSION INCOME OF RS. 15,10,580/ - @ 1.5% OF GROSS RECEIPTS OF RS. 10,07,05,428/ - ALONG WITH GROSS RECEIPTS ON ACCOUNT OF BOGUS BILLS OF RS. 2,17,50,444/ - IN QUESTION. I .T(SS).A NO. 528 /AHD/20 11 & CO NO. 223/AHD/2011 A.Y. 2005 - 06 PAGE NO ACIT VS. SHRI A. SEENIVASAN 3 4. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) REFERS TO HIS PREDECES SOR S ORDER IN CASE OF M/S. DEVI DURGA CONSTRUCTION ADDING 5% OF THE TOTAL AMOUNTS RECEIVED FROM SHRI ASHISH P ATEL (SUPRA) AS INCOME OF THE RELEVANT PREVIOUS YEAR. HE FOLLOWS THE VERY REASONING FOR RESTRICTING THE ABOVE STATED ADDITION OF RS. 2,17,50,444/ - TO THAT @ 5% ONLY COMING TO RS. 10,87,522/ - IN THE ORDER UNDER CHALLEN GE. THE OTHER ADDITION OF COMMISSION INCOME QUA A SUM OF RS. 15,10,580/ - (SUPRA) STANDS DELETED. THIS LEAVES BOTH PARTIES AGGRIEVED. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RESPECTIVE RIVAL CONTENTIONS ADVANCED AT THE REVENUE AND ASSESSEE S BEHEST SEEKING TO RESTORE AND DELETE THE ENTIRE ADDITION AMOUNT OF RS. 2,17,50,444/ - ON ACCOUNT OF UNDISCLOSED INCOME FROM PROPRIETARY BUSINESS. IT HAS COME ON RECORD THAT A CO - ORDINATE BENCH IN CASE OF IT(SS)A NOS. 181 TO 187/AHD/2011 AND 102 TO 109/AHD/2011 FILED BY M/S DEVIDURGA CONSTRU CTION AND THE REVENUE DECIDED ON 11/07/2014 HAS RESTRICTED THE IMPUGNED ADDITION OF 5% TO ITS HALF COMING TO 2.5% OF THE T OTAL RECEIPT AMOUNTS ON ESTIMATION BASIS. BOTH PARTIES FAIL TO REBUT THIS FACTUAL POSITION . NOR DO THEY POINT OUT ANY DISTINCTION T HERETO . WE DRAW SUP PORT FROM THIS DECISION AND DIRECT THE ASSESSING OFFICER TO COMPUTE ASSESSEE S UNDISCLOSED INCOME F ROM PROPRIETARY BUSINESS @ 2.5% OF THE GROSS RECEIPTS AMOUNTING TO RS. 2,17,50,444/ - (SUPRA). THE REVENUE S SOLE SUBSTANTIVE FAILS ACCOR DINGLY. THE ASSESSEE S CROSS OBJECTION PARTLY SUCCEEDS. I .T(SS).A NO. 528 /AHD/20 11 & CO NO. 223/AHD/2011 A.Y. 2005 - 06 PAGE NO ACIT VS. SHRI A. SEENIVASAN 4 6. THIS REVENUE S APPEAL IT(SS)A 528/AHD/2011 IS DISMISSED. ASSESSEE S CO 223/AHD/2011 IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 28 - 10 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 28 /10 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,