The ITO, Ward-1, Valsad V. M/s. Best Builder, Valsad

ITA 1091/AHD/2009

• Counselvise Citation: 109120514 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-12-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 09-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR S CHOUHAN
• Section: 133A; 148

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !'# !'# !'# !'#, , , , $ $ $ $ . .. .% %% % . .. .&'( &'( &'( &'(, , , , %) * % # %) * % # %) * % # %) * % # BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. K. GARODIA, ACCOUNTANT MEMBER) ITA NO.1091 AND 1092 /AHD/2009 [ASSTT.YEAR : 2001-2002 AND 2002-2003] ITO, WARD-1 VALSAD. /VS. M/S. BEST BUILDER, NR. DOCTOR HOUSE OPP: BHAGINI SAMAJ HALDAR ROAD VALSAD. PAN : AADFB 9014 A ( (( (,- ,- ,- ,- / APPELLANT) ( (( (./,- ./,- ./,- ./,- / RESPONDENT) 01 2 3 %/ ASSESSEE BY : SHRI SAKAR SHARMA * 2 3 %/ REVENUE BY : SHRI JASBIR S. CHOUHAN 5 2 16)/ DATE OF HEARING : 20 TH DECEMBER, 2011 7&8 2 16)/ DATE OF PRONOUNCEMENT : 05-01-2012 %9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE ARE TWO APPEALS OF THE REVENUE DIRECTED AGAINST THE ORDERS OF THE COMMISSI ONER OF INCOME-TAX (APPEALS). SINCE IDENTICAL ISSUE IS RAISED IN BOTH THE APPEALS, THEY ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. THE IDENTICAL GROUND RAISED IN BOTH THE APPEALS READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND LAW THE LD.CIT(A) ERRED IN DELETING THE ADDITION FOR RS.9,5 0,024/- FOR A.Y.20012- 02 AND RS.2,49,980/- FOR A.Y.2002-2003 ON ACCOUNT O F DISALLOWANCE U/S.69B OF THE IT ACT. 3. THE LEARNED DR SUBMITTED THAT THERE WAS SURVEY U NDER SECTION 133A OF THE ACT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 18-6-2003 AND ONE OF THE ITA NO.1091 AND 1092 /AHD/2009 -2- PARTNERS OF THE ASSESSEE-FIRM ADMITTED PAYMENT OF ON MONEY OF RS.12 LAKHS FOR ACQUISITION OF LAND IN TWO ASSESSMENT YEARS I.E . 2001-02 AND 2002-2003. HE SUBMITTED THAT THE ASSESSEE HAS RETRACTED HIS STATE MENT OF ADMISSION OF RS.12 LAKHS AFTER A GAP OF 4 YEARS, AND THEREFORE, IT IS A CLEAR CASE OF AFTER-THOUGHT ON THE PART OF THE ASSESSEE. HE SUBMITTED THAT THERE WAS NO EVIDENCE OF ANY DURESS EXERCISED DURING THE COURSE OF SURVEY BY THE REVENU E OFFICERS. HE RELIED ON THE ORDERS OF THE AO. THE LEARNED COUNSEL FOR THE ASSES SEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. HE SUBMITTED THAT N O INCRIMINATING DOCUMENTS OR EVIDENCES FOR EARNING OR INVESTMENT OF UNACCOUNT ED INCOME WERE FOUND AS A RESULT OF SURVEY UNDER SECTION 133A CONDUCTED BY TH E DEPARTMENT. HE SUBMITTED THAT IT WAS A CLEAR CASE OF PRESSURE EXER CISED BY THE DEPARTMENT DURING THE COURSE OF RECORDING OF THIS STATEMENT OF THE PARTNER OF THE ASSESSEE- FIRM. HE RELIED ON THE DECISION OF THE ITAT, AHMED ABAD BENCHES IN THE CASE OF ACIT VS. M/S. M. PATEL & CO., ITA NO.290/AHD/200 6 DATED 13-2-2009. HE REFERRED TO THE DECISIONS OF THE HONBLE COURTS REF ERRED TO BY THE LEARNED CIT(A) IN THE APPELLATE ORDER. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT NO INCRIMINATING D OCUMENTS OR EVIDENCES COULD BE FOUND AT THE TIME OF SURVEY ACTION UNDER SECTION 133A AT THE BUSINESS PREMISES OF THE ASSESSEE ON 18-6-2003. ONE OF THE PARTNERS OF THE ASSESSEE- FIRM ADMITTED PAYMENT OF ON MONEY OF RS.12 LAKHS FOR ACQUISITION OF LAND DURING THE RELEVANT YEARS AT THE TIME OF SURVEY. H OWEVER, WE FIND THAT SUBSEQUENT TO THE SURVEY OPERATION, THE ASSESSEE DI D NOT REVISE ITS RETURN OF INCOME INCORPORATING THE ON MONEY OF RS.12 LAKHS AS ITS INCOME. THE AO DID NOT SOUGHT ANY EXPLANATION FROM THE ASSESSEE AS TO WHY IT HAS NOT DISCLOSED THE ON MONEY OF RS.12 LAKHS IN RESPECT OF SURVEY ACTION UNDER SECTION 133A OF THE ACT AND HAD NOT SCRUTINIZED THE RETURN BY IS SUING NOTICE UNDER SECTION 143(2) OF THE ACT. THE AO HAS THEREAFTER ISSUED NO TICE UNDER SECTION 148 ON 5- 3-2007 TO REASSESS THE INCOME OF THE ASSESSEE. THE ASSESSEE IN REPLY TO NOTICE UNDER SECTION 148 HAS FILED NIL RETURN AND HAS NOT OFFERED THE DISPUTED AMOUNT ITA NO.1091 AND 1092 /AHD/2009 -3- OF RS.12 LAKHS IN ITS RETURN. ALL THESE FACTS HAVE BEEN RECORDED BY THE CIT(A) IN ITS APPELLATE ORDER. THE CIT(A) HAS FOLLOWED TH E RATIO OF THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S. KHADER SONS, 300 ITR 157 AND ITAT, AHMEDABAD BENCH DECISION IN THE CASE OF ASHOK MANILAL THAKKAR VS. ACIT, 97 ITD 361 AND HELD THAT THE ADDI TION MADE ON THE BASIS OF THE STATEMENT RECORDED IN THE COURSE OF SURVEY WITH OUT ANY SUPPORTING MATERIAL AND LATER ON RETRACTED BY THE CONCERNED PERSON, HAV E NO EVIDENTIARY VALUE AND THEREFORE WERE NOT SUSTAINABLE AND THE ADDITION MAD E BY THE AO WAS DELETED. THERE BEING NO INCRIMINATING DOCUMENTS OR EVIDENCES FOUND AT THE TIME OF SURVEY AND THE CONDUCT OF THE ASSESSEE IN NOT SURRE NDERING THE AMOUNT OF ON MONEY IN THE RETURN FILED BY IT AFTER THE SURVEY O PERATION AND THE FACT THAT THE AO DID NOT SOUGHT ANY EXPLANATION FROM THE ASSESSEE AS TO WHY THIS INCOME HAS NOT BEEN DISCLOSED AND OPTED NOT TO SCRUTINIZE THE RETURN BY ISSUING NOTICE UNDER SECTION 143(2), WE HOLD THAT THERE WAS NO MISTAKE I N THE ORDER OF THE CIT(A) IN DELETING THE ADDITION MADE BY THE AO, WHICH IS ACCO RDINGLY CONFIRMED AND THE GROUNDS OF THE REVENUES APPEALS IN BOTH THE YEARS ARE DISMISSED. 5. IN THE RESULT, BOTH THE REVENUES APPEALS ARE DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. .% %% % . .. .&'( &'( &'( &'( /A.K. GARODIA) %) * /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD