M/S Alpha Impex Pvt. Ltd, Panaji V. Dy. CIT Central Circle, Panaji

CO 3/PAN/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8563 (ITAT-PANAJI)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 28-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRINIVAS NAYAK
• Assessee Lawyers: SURESH BABU; ASHA DESAI
• Keywords: Corroborative evidences
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI, GOA BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 96/PNJ/2012 (ASST. YEAR 2007 - 08) DEPUTY COMMISSIONER OF INCOME TAX APPELLANT CENTRAL CIRCLE, PANAJI, GOA VS M/S. ALPHA IMPEX PVT. LTD., F - 3, LANDSCAPE MENDES PLAZA, CARANZALEM, PANAJI GOA. PAN : AA DCA2023C . RESPONDENT C.O NO. 3/PNJ/2013 (IN I.T.A. NO. 96/PNJ/2012) (ASST. YEAR 2007 - 08) M/S. ALPHA IMPEX PVT. LTD., OBJECTOR F - 3, LANDSCAPE MENDES PLAZA, CARANZALEM, PANAJI GOA. PAN : AA DCA2023C . V/S DEPUTY COMMISSIONER OF INCOME TAX RESPONDENT CENTRAL CIRCLE, PANAJI, GOA APPE LLANT BY : SMT. ASHA DESAI AND SHRI SURESH BABU, DR RESPONDENT BY : SHRI SRINIVAS NAYAK , CA DATE OF HEARING : 2 8 .2.2013 DATE OF PRONOUNCEMENT : 12 . 04 .2013 2 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) O R D E R PER D.T. GARASIA : 1. THIS APPEAL IS BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) VI, BANGALORE FOR THE ASSESSMENT YEAR 2007 - 08 DTD. 3.9.2012. 2. FOLLOWING GROUNDS ARE RAISED BY THE DEPARTMENT WHICH READS AS UNDER : 1. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN DELETING THE ADDITION OF RS. 6,60,00,000/ - MADE ON ACCOUNT OF UNDISCLOSED INCOME IN RESPECT OF TALEIGAO PROPERTY . 3. THE SHORT FACTS OF THE CASE ARE AS UNDER : THE ASSESSEE IS A CLOSELY HELD PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING TYRE CORD AND TWINE ETC. THERE WAS A SEARCH UNDER SECTION 132 ON 17.11.2009 IN THE CASE OF SHRI SURESH V. PARULEKAR AND HIS GROUP OF CASES INCLUDING THE APPELLANT COMPANY. DURING THE COURSE OF SEARCH AT TH E RESIDENCE OF SHRI SURESH PARULEKAR A COPY OF E - MAIL WRITTEN BY SHRI HARISH JAIN TO SHRI SURESH PARULEKAR WAS FOUND. SHRI HARISH JAIN IS A FAMILY FRIEND OF PROMOTERS OF M/S. EMAAR MGF LAND PVT. LTD. AND ALSO OF SHRI SURESH PARULEKAR. A COPY OF THE E - MAI L WAS ALSO FOUND FROM THE LAPTOP OF SHRI SATISH PAI PANANDIKAR WHO IS ASSISTANT VICE PRESIDENT OF M/S. EMAAR MGF LAND PVT. LTD. THE E - MAIL READS AS UNDER : DEAR MR. PARULEKAR, I GOT A PHONE CALL FROM YOU YESTERDAY BUT I COULD NOT TAKE IT BECAUSE MY PH ONE WAS NOT WITH ME. 3 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) THERE ARE A FEW POINTS WHICH I WOULD LIKE TO BRING TO YOUR NOTICE. 1. I AM A FAMILY FRIEND OF THE GUPTAS. IT IS THEIR COMPANY AND THEY RUN IT. THEY SOMETIMES TAKE MY ADVICE. YOU ARE THE SOLE PROPRIETOR OF YOUR COMPANY. ANY DEALI NG OF MINE WITH YOU IN GOA HAS BEEN CONSIDERED BY THE COMPANY AS MY DEALING WITH MY FRIEND MR. SURESH PARULEKAR. 2. WE HAD ENTERED THIS AGREEMENT AND AS PER THE INFORMATION GIVEN TO THEM IT WAS UNCONDITIONAL AND EVEN THE PAYMENT DATES WHICH HAVE BEEN GI VEN BY U HAD BEEN PASSED ON TO THEM. NOWHERE NO THE PAYMENTS ANY CONDITIONS PUT, ONLY DATES. HENCE I WOULD LIKE TO INVOLVE WITH YOU IN A MANNER THAT WE TRY AND CLEAR UP ALL THE MATTERS IN A WAY WHICH IS BEST FOR YOU AND IS ALSO ACCEPTABLE TO THE COMPANY, THE AUDITORS AND THE PARTNERS IN DUBAI. 3. THE OVERALL FACTS ARE AS UNDER : A) BOUGHT PROPERTY AT TALEGAO (FOR MALL C - 2) FOR APPROX 20 CR., PAID FOR . B) 132000 SQ. METERS FOR APPROX 10 CR., PAID FOR , DELIVERY NOT RECEIVED. REASONS MANY. C) APPROX 9 CR. RECEIVED FOR PROPERTY. REGISTRIES NOT DONE, DUE TO VARIOUS REASONS. YOU WILL HAVE TO SEE THE 2 UNREGISTERED PROPERTIES IN A MANNER THAT WE CAN CLEAR UP ALL THE PENDING MATTERS AS WELL AS THE CHEQUES OF 4 CR. AND 4 CR. RECEIVED BY YOU INCLUDI NG DRAFT AMOUNTS. PLEASE DO NOT TREAT THE LAST PROPERTY (C) IN TWO NAMES AS THE ONLY UNFINISHED JOB BUT ALL OF THEM THAT YOU CAN DO AND CLEAR UP ALL THE MATTERS. 4 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) ONCE YOU HAVE UNDERSTOOD THE WHOLE THING, THERE WILL BE VARIOUS WAYS THAT WE CAN TRY AND SE TTLE THE MATTERS & RETRIEVE THE BEST SITUATION. I AM SENDING THIS EMAIL SO THAT ONCE YOU SEE IT AND WORK OUT THE POSSIBILITIES THEN EVERYTHING CAN BE DONE. THANKING YOU, WITH KIND REGARDS, HARISH JAIN 4. BASED ON THE ABOVE CONTENT OF E - MAIL, THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS. 6,60,00,000/ - TO THE RETURNED INCOME AS UNDISCLOSED INCOME AGAINST THE SALE OF LAND AT TALEIGAO. 5. THE MATTER CARRIED TO CIT(A) AND CIT(A) HAS DELETED THE ADDITION BY OBSERVING AS UNDER : IN THE LIGHT OF THE ABOVE, THE DETAILS FURNISHED BY THE ASSESSEE, THE ACCOUNTS THAT HAS BEEN PRESENTED BEFORE ME, THE FOLLOWING SITUATION EMERGES: A. THE AO HAS ADDED RS. 6,60,00,000/ - ON THE BASIS OF THE E - MAIL SEIZED AT THE PREMISES OF MR. HARISH JAIN. B. THE DETAILS OF THE TRANSACTIONS REGARDING THE PROPERTY AT TALIEGOA HAS BEEN FURNISHED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS. THESE DETAILS ALONG WITH THE CLARIFICATIONS WERE AVAILABLE WITH ADIT (INV.) AND ALSO BEFORE DCIT, CENTRAL AND THE REFORE THE DCIT (CENTRAL) HELD IN RELYING ON ADIT(INV.) CONCLUSION RATHER THAN MAKING HIS OWN INDEPENDENT ENQUIRIES. NO INDEPENDENT CORROBORATIVE ENQUIRIEIS 5 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) HAVE BEEN MADE AND NO EVIDENCE HAS BEEN BROUGHT OUT ON RECORD BY THE AO TO ESTABLISH THE GENUINENE SS OF THE TRANSACTION ARE THE SEIZED E - MAIL. THE AO DID NOT BRING ON RECORD ANY CORROBORATIVE EVIDENCE IN SUPPORT OF HIS CLAIM THAT THERE WAS UNACCOUNTED PAYMENT BY M/S. SHITIJ BUILCON PVT. LTD., THE BUYER, SHITIJ BUILDCON PVT. LTD. WERE NOT SUMMONED AND EXAMINED FOR ASCERTAINING THE FACTS. C. THERE IS NO BASIS FOR THE CONCLUSION ARRIVED AT THE ASSESSING AUTHORITY EXCEPT FOR THE SEIZED E - MAIL WITH ADHOC WORKINGS, THERE IS NOTHING ON RECORD TO PROVE THAT THE PAYMENT OF ON - MONEY TO THE COMPANY HAS BEEN MADE. THERE ARE NO SUPPORTING EVIDENCE AVAILABLE IN ANY OTHER SEIZED MATERIAL TO COME TO A LEGITIMATE CONCLUSION THAT RS.6,60,00,000/ - WAS ON - MONEY. THE D EPOSITION OF MR. HARISH JAIN WAS OUT OF CONTEXT AND HAD NOTHING TO DO WITH THIS TRANSACTION AS THE PROPERTY DOES NOT BELONG TO THE APPELLANT. THEREFORE, THE STATEMENT OF MR. HARISH JAIN DID NOT HAVE MUCH RELEVANCE IN THE TOTAL GAMUT OF AFFAIRS. THEREFORE , THERE WAS NO EVIDENCE OF ON - MONEY PAYMENT. ADDITION ON INCONCLUSIVE FACTS, WITHOUT ANY ENQUIRY, WITHOUT ANY CORROBORATIVE EVIDENCE IS NOT CORRECT. THEREFORE THE ADDITION MADE IS DELETED. THEREFORE, GROUND NOS. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 OF THE ABOVE ASSESSMENT YEAR W.R.T. TALEIGAO PROPERTY ARE ALLOWED. THEREFORE, THE APPEAL IS ALLOWED. 6 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) 6. THE LEARNED D R SUBMITTED THAT ASSESSEE AS WELL AS SHRI HARISH JAIN FAILED TO FURNISH THE COMPLETE AND REALISTIC RECONCILIATION OF FIGURES MENTIONED IN THE E - MAIL. THE ASSESSEE ACCOUNT RECONCILIATION IS MERELY A REPRESENTATION AFTER TWISTING THE FACTS TO HIS CONVENIENCE. THE ASSESSEES CONTENTION THAT AMOUNT OF RS. 11,46,60,960/ - RECEIVED TOWARDS BAINGUINI PROPERTY AND NOT AN ADDITIONAL CONSIDERATION FOR TALEIGAO PROPERTY. THE ASSESSEE COULD NOT PROVE THE PURPOSE OF GETTING THE AMOUNT. THE FACTS THAT MRS. NILIMA SAATOSKAR, DAUGHTER OF SHRI SURESH PARULEKAR WAS THE HIGHEST BIDDER, SHE HAS ASSIGNED HER RIGHT IN FAVOUR OF M/S. SHITIJ BUILDCON PVT. LTD. THE SALE DEED OF TALEIGAO PROPERTY WAS COMPLETED AND CONSIDERATION WAS SHOWN AS RS. 7.04 CR. THERE IS NO DOCUMENTARY EVIDENCE TO PROVE THE ACTUAL PURPOSE OF AM OUNT GIVEN BY M/S. SHITIJ BUILDCON PVT. LTD. THE DOCUMENTARY EVIDENCE FOUND AND SEIZED SHOWS THAT THE CONSIDERATION FOR BAINGUINI PROPERTY IS RS. 3,06,50,260/ - . THE MOU BETWEEN SMT. NIRUPA PAWAR AND M/S. SHITIJ BUILDCON PVT. LTD. SHOWS THAT THE SALE CONS IDERATION FOR BAINGUINI PROPERTY WAS RS. 3,06,50,260/ - ONLY. THE BAINGUINI PROPERTY COULD NOT BE SHOWN BECAUSE OF LITIGATION AND COURT ORDERS. THEREFORE, ADDITIONAL CONSIDERATION IS GIVEN FOR TALEIGAO PROPERTY. SHRI HARISH JAIN DID NOT CONFIRM THAT PAYM ENTS WERE MADE FOR BAINGUINI PROPERTY. THEREFORE, IT PROVES THAT THE ADDITIONAL AMOUNT OF RS. 11,46,60,960/ - WERE PAID FOR TALEIGAO PROPERTY AND CIT(A) IS NOT JUSTIFIED IN DELETING THE SAME. 7. THE LEARNED AR RELIED UPON THE WRITTEN SUBMISSION FILED BE FORE CIT(A) AND HE ALSO RELIED UPON THE ORDER OF CIT(A). THE LEARNED AR SUBMITTED THAT MAPUSA URBAN CO - OP. BANK HAD AUCTIONED TALEIGAO PROPERTY FOR WHICH MRS. NILIMA SATOSKAR WAS ONE OF THE BIDDER ALONGWITH SHITIJ BUILDCON PVT. LTD. TO 7 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) WITHDRAW THE TENDE R M/S. SHITIJ BUILDCON PVT. LTD. HAS PAID RS. 23,00,000/ - TO MRS. NILIMA SATOSKAR WHICH SHE HAS DECLARED AS HER INCOME IN RETURN A.Y. 2008 - 09. THE ASSESSEE HAD NO ROLE TO PLAY. THE SALE DEED HAS BEEN EXECUTED BETWEEN MAPUSA URBAN CO - OP. BANK AND M/S. SHI TIJ BUILDCON PVT. LTD. AND NO OTHER PARTY IS INVOLVED IN THIS TRANSACTION. THE ASSESSEE NEVER SELLER OR CONFIRMING PARTY IN THIS PROPERTY. THEREFORE, CIT(A) HAS RIGHTLY DELETED THE ADDITION. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH PARTIES. LOOKI NG INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSING OFFICER HAS ADDED RS. 6,60,00,000/ - ON THE BASIS OF E - MAIL SEIZED AT THE PREMISES OF SHRI HARISH JAIN. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAS FURNISHED THE DETAILED TR ANSACTION REGARDING THE PROPERTY AT TALEIGAO. THE ASSESSEE HAS SUBMITTED ALL THESE DETAILS BEFORE A D IT (INV . ) AND BEFORE CIT. THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT INQUIRY AND NO EVIDENCE WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO EST ABLISH THE GENUINENESS OF THE TRANSACTION SEIZED IN THE SEARCH. T HE ASSESSING OFFICER HAS NOT EXAMINED M/S. SHITIJ BUILDCON PVT. LTD. WE FIND THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY INDEPENDENT INQUIRY, INDEPENDENT MATERIAL TO PROVE THAT ON - MONEY HAS BEEN PAID TO COMPANY. THEREFORE, WE ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED THE ADDITION AND OUR INTERFERENCE IS NOT REQUIRED. 9. IN THE RESULT, THE APPEAL IS DISMISSED. 8 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 ) C.O NO. 3/PNJ/2013 : 10. DURING THE COURSE OF HEARING, THE LEARNED AR HAS NOT PRESSED THIS CROSS OBJECTION. THEREFORE, C.O IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 .04.2013. SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER SD/ - ( D.T.GARASIA) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 12 .04.2013 * SSL * COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, PANAJI, GOA 9 ITA NO. 96/ PNJ/2012 & CO NO. 3/PNJ/2013 (ASST. YEAR 200 7 - 0 8 )