YOGESH THAKKAR, NAVI MUMBAI V. DCIT CC 3(4), MUMBAI

CO 72/MUM/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3104 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 17-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ASSESSMENT YEAR S; YOGESH THAKKAR IN APPEAL FILED
• Keywords: Search and seizure; Document seized; Tax effect; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B R BASKARAN, ACCOUNTANT MEMBER ITA NOS.6805 & 6806/MUM/2016 ASSESSMENT YEARS : 2008-09 & 2007-08 DY CIT CENTRAL CIR. 3(4) MUMBAI VS. SHRI YOGESH THAKKAR 31, ADARSH CHS, BAWAN BUNGLOW, PANVEL, NAVI MUMBAI 400 026 PAN AAPPT1825P (APPELLANT) RESPONDENT) CO 72 & 73/MUM/2017 (ARISING OUT OF ITA NOS.6806 & 6805/MUM/2016 FOR ASSESSMENT YEARS : 2007-08 & 2008-09) SHRI YOGESH THAKKAR NAVI MUMBAI 400 026 PAN AAPPT1825P VS. DY CIT CENTRAL CIR. 3(4) MUMBAI (CROSS-OBJECTOR) RESPONDENT) APPELLANT BY : SHRI F SHANKARAN CROSS-OBJECTOR BY : SHRI MANISH SANGHVI DATE OF HEARING : 20.06.2017 DATE OF PRONOUNCEMENT : 20 .06.2017 O R D E R THE APPEALS FILED BY THE REVENUE AND THE CROSS-OBJE CTIONS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATE D 08.08.2016 PASSED BY THE LEARNED CIT(A)-51, MUMBAI, AND THEY RELATE TO ASSES SMENT YEARS 2007-08 AND 2008-09. 2 SHRI YOGESH THAKKAR 2. IN THE APPEAL FILED BY THE REVENUE FOR A.Y. 2008 -09, THE QUANTUM IN DISPUTE IS ONLY ` .20 LACS AND THE TAX EFFECT THEREON WILL BE LESS TH AN 10 LACS. HENCE, IN VIEW OF THE CIRCULAR NO.21/2015 DATED 10.12.2015 ISSUED BY THE CBDT, THE REVENUE IS PRECLUDED FROM PURSUING THIS APPEAL. ACCORDINGLY, I DISMISS THE APPEAL FILED BY THE REVENUE FOR A.Y. 2008-09 ON ACCOUNT OF TAX EFFECT. 3. NOW I TAKE UP APPEAL FOR A.Y. 2007-08, WHEREIN T HE REVENUE IS CONTESTING THE RELIEF OF ` 57.50 LACS GRANTED BY THE CIT(A). 4. I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS A DIRECTOR IN M/S. THAKKAR POPATLAL VELJI SALES LTD. THE REVE NUE CARRIED OUT SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT IN THE PREMISES OF TH E ASSESSEE ON 05.06.2007. DURING THE COURSE OF SEARCH, THE ASSESSEE ADMITTED ADDITIO NAL INCOME OF ` 60 LACS RELATING TO INVESTMENT MADE IN M/S. PERSIAN AGRO HOT ENTERPR ISES. BASED ON THE STATEMENT, THE ASSESSING OFFICER ASSESSED THE SUM OF ` 60 LACS IN A.Y. 2007-08. IN THE APPELLATE PROCEEDINGS, THE ASSESSEE CONTENDED THAT IT HAS GIVEN AN ADVANCE OF ` 2.5 LACS ONLY FOR PURCHASE OF SHARES IN M/S. PERSIAN AG RO HOT ENTERPRISES AND THE ADDITIONAL INCOME OF ` 60 LACS WAS OFFERED ERRONEOUSLY IN THE STATEMENT. WHEN THE MATTER REACHED TRIBUNAL, THE ITAT RESTORED THE MATT ER BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THIS ISSUE AFRESH W ITH AN OBSERVATION THAT NO ADDITION CAN BE MADE SIMPLY ON THE BASIS OF ADMISSION MADE I N THE STATEMENT. IN THE SET ASIDE PROCEEDINGS, THE ASSESSING OFFICER AGAIN ASSE SSED THE AMOUNT OF ` 60 LACS. HOWEVER, THE LEARNED CIT(A) RESTRICTED T HE ADDITION OF ` .2.50 LACS, GIVING 3 SHRI YOGESH THAKKAR A FINDING THAT THE ASSESSEE HAS INVESTED A SUM OF ` .2.50 LACS ONLY AND NOT ` 60 LACS. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE I S IN APPEAL BEFORE THIS TRIBUNAL. 5. I HEARD THE PARTIES. I NOTICED THAT THE LEARNED CIT(A) HAS GRANTED RELIEF WITH THE FOLLOWING OBSERVATIONS: I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE. T HE UNDISPUTED FACT IS THAT KACCHA CASH BOOK WAS SEIZED AND THIS CASH B OOK REFLECTED ENTRY OF RS 2.5 LAKHS ONLY AND NOT OF RS 60 LAKHS. ASSESS EE STATES THAT THE PURCHASE OF SHARES FINALLY DID NOT TAKE PLACE AND H ENCE ONLY RS 2.5 LAKHS IS PAID. ASSESSEE HOWEVER DECLARED RS 60 LAKH S ON THIS ISSUE BUT LATER RETRACTED HIS STAND. AS OBSERVED BY HONBLE I TAT, ADDITION CANNOT BE MADE ONLY ON THE BASIS OF STATEMENT. ITAT RESTORED THE MATTER TO AO ONLY FOR EXAMINATION OF THE ISSUE AS T O WHETHER RS 60 LAKHS IS PAID AND WHETHER THE SHARES HAVE BEEN FINA LLY PURCHASED. AO MADE NO FURTHER INQUIRY INTO THIS ASPECT. ONCE ASSE SSEE SAYS THAT SHARES HAVE NOT BEEN FINALLY PURCHASED ONUS IS UPON THE AO TO PROVE THAT THE SAID SHARES HAVE INFACT BEEN PURCHASED AND THAT RS 60 LAKHS HAVE BEEN PAID. AO DID NOT DO ANY FURTHER ENQUIRY I N THIS REGARD. INSTEAD HE RELIED ON SEIZED DOCUMENTS WHICH ONLY RE FLECT AN ENTRY OF RS 2.5 LAKHS. IN THE BACKGROUND OF THE ABOVE FACTS AND IN VIEW OF THE CLEAR OF HON'BLE ITAT, ADDITION TO THE EXTENT OF RS 60 LAKHS ONLY BASED ON THE STATEMENT AND ENTRY OF RS 2.5 LAKHS CA NNOT BE MADE. HOWEVER, AO IN THIS REGARD OF ITAT DIRECTIONS SIMPL Y REPEATED THE ADDITION WITHOUT ANY FURTHER ENQUIRY OR EVIDENCE. THEREFORE, I AM UNABLE TO AGREE WITH THE STAND OF THE ASSESSING OFF ICER. AN ADDITION OF ` .2.5 LAKHS ONLY IS CALLED FOR AS THERE IS CORROBORA TIVE EVIDENCE TO THAT EXTENT IN THE SEIZED MATERIAL. 6. BEFORE ME, THE REVENUE DID NOT FURNISH ANY MATER IAL TO CONTRADICT THE FINDING GIVEN BY THE LEARNED CIT(A). HENCE, I HAVE NO OTHE R OPTION BUT TO CONFIRM THE ORDER PASSED BY THE LEARNED CIT(A). 7. IN THE CROSS-OBJECTIONS, THE ASSESSEE HAS REQUES TED TO TELESCOPE THE ADDITION OF ` .2.50 LACS AGAINST THE ADDITIONAL INCOME OFFERED BY THE COMPANY M/S. THAKKAR 4 SHRI YOGESH THAKKAR POPATLAL VELJI SALES LTD. I AM UNABLE TO AGREE WIT H THE PLEA OF THE ASSESSEE, AS THE ASSESSEE AND THE COMPANY ARE TWO DIFFERENT PERSONS AND INCOME OF ONE PERSON CANNOT BE TELESCOPED WITH THE INCOME OF THE OTHER P ERSON. ACCORDINGLY, I REJECT THE CROSS-OBJECTIONS FILED FOR BOTH THE YEARS. 8. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A ND THE CROSS-OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 0 TH JUNE 2017 SD/- (B R BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 20 TH JUNE, 2017. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI