Shri Anil Makhanlal Agarwal, Baroda V. The ACIT, Central Circle-2, Baroda

ITA 1177/AHD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94749 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 19-11-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 21-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALA PHILIPS
• Section: 148; 132

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.1177/AHD/2014 /BLOCK ASSTT. YEAR: 2004-2005 SHRI ANIL MAKHANLAL AGARWAL A/2, SEVASHRAM SOCIETY, NR. ATMA JYOTI ASHRAM ELLORA PARK RACE COURSE, BARODA. PAN : ABJPA 6636 L VS ACIT, CENT.CIR.2 BARODA. %& / (APPELLANT) '( %& / (RESPONDENT) ASSESSEE BY : SHRI MUKUND BAKSHI REVENUE BY : SHRI LALA PHILIPS, SR.DR / DATE OF HEARING : 19/11/2015 / DATE OF PRONOUNCEMENT: 01/12/2015 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE CIT(A)-IV, AHMEDABAD DATED 3.2.2014 FOR THE ASSTT.Y EAR 2004-05. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.4,07,644/-. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE HAS FILED ITS RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT ON ITA NO.1177/AHD/2014 2 28.10.2004 DECLARING TOTAL INCOME AT RS.60,478/-. A SEARCH UNDER SECTION 132 WAS CONDUCTED IN THE GROUP CASES OF DAR SHANAM LIFE SPACE PVT. LTD. ON 26.10.2010. DURING THE COURSE OF SEAR CH, A LARGE NUMBER OF INCRIMINATING DOCUMENTS WERE SEIZED. THE ASSESS EE IS ALSO A PARTNER/DIRECTOR IN THESE FIRMS/COMPANIES. ACCORDI NG TO THE AO, ANNEXURE A/2 CONTAINED PAGE NOS.1 TO 101 CONSISTING THE DETAILS OF CASH RECEIPTS ALONG WITH CHEQUES. THE LD.AO HAS REPRODU CED PAGES ON WHICH DATE, NUMBERS AND THE AMOUNTS RECEIVED IN CASH. THE TOTAL SUM OF RS.4,07,644/- WAS ALLEGED TO BE RECEIVED IN CASH BY THE ASSESSEE. THE LD.AO, THEREFORE, REOPENED THE ASSESSMENT BY ISSUAN CE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT. HE PASSED ASSES SMENT ORDER ON 30.11.2011. THE AO HAS MADE AN ADDITION OF RS.4,07 ,644/-. 4. ON APPEAL, THE LD.CIT(A) HAS CONFIRMED THE ADDIT ION BY OBSERVING AS UNDER: 5.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE APPELLANT AND HAVE GONE THROUGH THE ASSESSMENT ORDE R AS WELL. 5.2.1 THE CONTENTION OF THE APPELLANT CANNOT BE ACC EPTED. ADMITTEDLY, DURING SEARCH, VARIOUS INCRIMINATING DO CUMENTS WERE FOUND AND SEIZED AS ANNEXURE A-2 CONTAINING PAGES 1 -101, EVIDENCING RECEIPT OF ON-MONEY ON SALE OF UNITS IN THE PROJECT NAMED 'DEEP DARSHAN SOCIETY' DEVELOPED BY A FIRM OF THE APPELLANT GROUP NAMED M/S SAGAR DEVELOPERS. THE EVI DENCES REFLECTED THAT ON-MONEY WAS RECEIVED ON SALE OF UNI TS IN ABOVE STATED PROJECT IN VARIOUS YEARS. TOTAL CASH RECEIPT S FOR RELEVANT P.Y. 2003-04 WERE OF RS. 4,07,644/-. WHILE FILING R ETURN OF INCOME AFTER SEARCH, THE APPELLANT HAD MADE DISCLOSURE OF RS.3,70,99,741/- AS ON-MONEY RECEIPT .WHICH INCLUDE D RS. 50,000/- AND RS. 4,09,552/- MENTIONED IN THIS VERY ANNEXURE A- 2. THUS APPELLANT HIMSELF HAS ACCEPTED THAT ACTUALL Y HE HAS RECEIVED CASH ON MONEY ON SALE OF UNITS IN THE PROJ ECT NAMED 'DEEP DARSHAN SOCIETY' DEVELOPED BY M/S.SAGAR DEVEL OPERS. THEREFORE, IT IS AN ADMITTED FACT THAT THOUGH THIS PROJECT WAS BEING CONSTRUCTED IN THE NAME OF M/S SAGAR DEVELOPE RS BUT THE ON-MONEY CHARGED ON SALE OF UNITS THEREIN WAS, IN R EALITY, BEING ITA NO.1177/AHD/2014 3 COLLECTED BY THE APPELLANT. IF THIS WAS NOT SO,WHY THE APPELLANT HIMSELF WOULD ADMIT RELATED CASH ON-MONEY IN HIS RE TURN OF OTHER YEARS AND PAY TAXES THERE UPON. THE FACTS OF THIS Y EAR AND OTHER ASSESSMENT YEARS ARE SAME; THE SEIZED MATERIAL IS S AME THEN HOW APPELLANT CAN CLAIM THAT IN THIS YEAR HE HAS NOT CO LLECTED ON- MONEY WHERE AS IN OTHER YEARS HE HAS COLLECTED ON-M ONEY. THE CLAIM THAT IN OTHER YEARS SUCH ON-MONEY INCOME WAS OFFERED WITHOUT PROPER VERIFICATION OF COMPLETE RECORDS, IS ABSOLUTELY ILLOGICAL AND CANNOT BE ACCEPTED. NO ASSESSEE OFFER S ANY INCOME UNLESS HE HAS ACTUALLY EARNED IT. 5.2.2 THE RELIANCE OF THE APPELLANT ON VARIOUS CITA TIONS IS MISPLACED AS IT IS NOT A CASE OF DOUBLE TAXATION. T HE CASH ON- MONEY INCOME HAS TO BE TAXED SOMEWHERE. IN OTHER AS SESSMENT YEARS, THE APPELLANT HAS OFFERED SUCH INCOME IN HIS HANDS AND NOT IN THE FIRM M/S SAGAR DEVELOPERS IMPLYING THAT ACTU ALLY HE HAS RECEIVED SUCH ON-MONEY. SIMILARLY, THE CLAIM THAT E VERY ASSESSMENT YEAR IS DIFFERENT, IS TECHNICALLY CORREC T BUT NOT APPLICABLE TO THE PRESENT CASE. THERE ARE AMPLE JUD ICIAL RULINGS WHEREIN IT IS HELD THAT INCONSISTENCY ON THE SAME F ACTS SHOULD BE AVOIDED. SOME SUCH RULINGS ARE: (A) H.A. SHAH & CO. V. CIT (30 ITR 618) (BOM) (B) CITV. L.G. RAMAMURTHY(110ITR453)(MAD) (C) CITV. DALMIA DADRI\CEMENT LTD. 77 ITR410( P&H) 5.2.3 IN VIEW OF ABOVE FACTUAL AND LEGAL DISCUSSION , IT IS HELD THAT A.O. WAS CORRECT IN MAKING ADDITION OF ON-MONEY OF RS.4,07,644/- IN THE HANDS OF THE APPELLANT. THIS GROUND IS ACCOR DINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 5. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT T HE PROJECT VIZ. DEEP DARSHAN WAS DEVELOPED BY M/S.SAGAR DEVELOPERS. IF ANY CASH AMOUNT WAS RECEIVED, OVER AND ABOVE THE ONE STATED IN THE DOCU MENTS, THEN IT WAS TO BE CONSTRUED AS RECEIPT BY M/S.SAGAR DEVELOPERS. IT C ANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE. HE FURTHER CONTENDED THAT A S FAR AS THE ACCEPTANCE AT THE END OF THE ASSESSEE IN OTHER TWO YEARS IS CONCE RNED, THAT WAS ACCEPTED ON ACCOUNT OF NON-AVAILABILITY OF COMPLETE FACTS. THE REFORE, ON THE BASIS OF ITA NO.1177/AHD/2014 4 ADMISSION MADE IN ASSTT.YEAR 2005-06 OR 2006-07, TH E ASSESSEE CANNOT BE SUBJECT TO TAX IN THIS YEAR UNLESS SOME EVIDENCE WA S FOUND AGAINST THE ASSESSEE. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES BELOW. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD THAT DUR ING THE COURSE OF SEARCH, PAPERS CONTAINING PAGE NOS.1 TO 101 INVENTORISED IN ANNEXURE A/2 WERE FOUND. WHEN THESE PAGES WERE CONFRONTED TO THE ASS ESSEE, HE ADMITTED ACCEPTANCE OF ON-MONEY OVER AND ABOVE THE ONE STATE D IN THE DOCUMENTS. THE ASSESSEE HAS DISCLOSED A SUM OF RS.50,000/- AND RS.4,09,552/- FOR THE ASSTT.YEAR 2005-06 AND 2006-07. IN THIS YEAR, ON-M ONEY COMPONENT IS RS.4,07,644/-. THIS YEAR, THE ASSESSEE HAS TAKEN A LTOGETHER DIFFERENT STAND AND SUBMITTED THAT, IT BE ASSESSED IN THE HANDS OF THE SAGAR DEVELOPERS AND NOT IN HIS HAND. QUESTION BEFORE US IS HOW TO CONSTRUE TH E ANNEXURE A/2. ON ONE HAND, IT IS THE ADMISSION OF THE ASSESSEE ABOUT THE ACCEPTANCE OF ON-MONEY COUPLED WITH THE FACT OF DISCLOSURE OF ON-MONEY, FO R THE ASSESSMENT IN HIS HAND FOR TWO YEARS, WHETHER THE ASSESSEE HAS BROUGH T ANY EVIDENCE ON RECORD TO DEMONSTRATE THE FACT THAT HE HAS ACTUALLY NOT RE CEIVED ON-MONEY. THE ARGUMENT OF THE ASSESSEE IS THAT SINCE BUSINESS INC OME ON DEVELOPMENT OF DEEP DARSHAN HAS BEEN ASSESSED IN THE HANDS OF M/S. SAGAR DEVELOPERS, THEREFORE, AN INFERENCE SHOULD BE DRAWN THAT ON-MON EY ALSO DESERVES TO BE ASSESSED IN THE HANDS OF M/S.SAGAR DEVELOPERS. IN OUR OPINION, WHEN WE PIT BOTH THESE LOGIC AGAINST EACH OTHER, THEN, THE SCAL E WOULD TILT IN FAVOUR OF ADMISSION MADE BY THE ASSESSEE DISCLOSING ACCEPTANC E OF ON-MONEY AND FINDING FURTHER CORROBORATION FOR OFFERING SUCH ON- MONEY FOR TAXATION IN TWO ASSESSMENT YEARS. THIS FACT CANNOT BE BRUISED ASID E MERELY BY DRAWING AN INFERENCE. THEREFORE, IN OUR OPINION, THE LD. REVE NUE AUTHORITIES HAVE ITA NO.1177/AHD/2014 5 APPRECIATED THE CONTROVERSY IN RIGHT PERSPECTIVE AN D NO INFERENCE IS CALLED FOR. HENCE, APPEAL OF THE ASSESSEE IS DEVOID OF ANY MERI T. IT IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 1 ST DECEMBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/12/2015