Parmanand M Jhamtani, Pune V. Income-tax Officer, Pune

ITA 1349/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9240 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-09-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN SHINDE
• Assessee Lawyers: KISHOR PHADKE SHRI RISHI LODHA
• Keywords: Unexplained investment; Loose papers; Principle of natural justice; Rule of consistency
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.1349/PUN/2017 / ASSESSMENT YEAR : 2008-09 PARMANAND M. JHAMTANI, S.NO.17/2, OPP. D WARD, AUNDH KALEWADI LINK ROAD, RAHATANI, PUNE-411017. PAN : AAOPJ0821C ....... / APPELLANT / V/S. ITO, WARD-8(3), PUNE. / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE SHRI RISHI LODHA REVENUE BY : SHRI KIRAN SHINDE / DATE OF HEARING : 11.09.2019 / DATE OF PRONOUNCEMENT : 19.09.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-9, PUNE DATED 21.03.2017 FOR THE ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, ERRED IN THE FACTS IN COMPUTING THE TAXABLE INCOME AMOUNTING TO RS. 1,36,14,030/- AGAINST RETURNED INCOME OF RS.7,90,510/-. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, ERRED IN MAKING ADDITION AS UNEXPLAINED INVESTMENTS/EXPENDITURE/INCOME/UNACCOUNTED TRANSACTIONS AMOUNTING TO RS.82,69,000/-' 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, ERRED IN MAKING ADDITION AS 'UNACCOUNTED SALES' AMOUNTING TO RS.14,43,520/-. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, ERRED IN NOT ACCEPTING THE DETAILS OF GENUINE TRANSACTIONS, ERRED IN DISALLOWING THE RANDOM THOUGHTS OF TRANSACTIONS WHICH WERE MERE NOTINGS OF TRANSACTIONS TO BE DONE OR NOT TO BE DONE. 2 ITA NO.1349/PUN/2017 5. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, ERRED IN NOT CONSIDERING THE EFFECT OF TELESCOPING WHILE MAKING THE ADDITIONS. 6. THE APPELLANT CRAVES FOR LEAVE TO ADD, ALTER & AMEND THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. BRINING OUR ATTENTION TO THE ABOVE EXTRACTED GROUNDS, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSEE WAS SURVEYED U/S 133A OF THE ACT. IT LED TO THE DISCOVERY OF A DIARY AND SOME OTHER INCRIMINATING INFORMATION. BASED ON THE SAME, THE ASSESSING OFFICER MADE VARIOUS ADDITIONS IN THE ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09. THE SAID DIARY CONTAINS VARIOUS INCRIMINATING INFORMATION RELATING TO THE UNEXPLAINED INVESTMENTS/EXPENDITURE/INCOME. LIKE IN THE ASSESSMENT YEAR 2008-09, THE ASSESSING OFFICER MADE ADDITIONS IN THE ASSESSMENT YEARS 2006-07 AND 2007- 08 TOO. THESE ADDITIONS WERE SUBJECT MATTERS OF ADJUDICATION BY THE TRIBUNAL VIDE ITA NOS.910 & 911/PUN/2015 FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 DATED 09.02.2018. THE ISSUES STAND REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 4. DEPARTING FROM THE DEMAND FOR ITEM-WISE ADJUDICATION RAISED BY THE ASSESSEE IN THE GROUNDS, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE ISSUES NEED TO BE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR WANT OF CONSISTENCY IN MATTERS OF SIMILAR ADDITION AS THE SOURCE MATERIAL LEVEL I.E. DIARY AND OTHER INCRIMINATING MATERIAL ARE THE COMMON OF ALL THE THREE ASSESSMENT YEARS. IN THIS REGARD, LD. COUNSEL SUBMITTED THAT ALL THESE ISSUES SHOULD BE REMANDED TO THE FILE OF THE CIT(A) FOR REQUISITE ADJUDICATION AS THE PROCEEDINGS FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 ARE NOW PENDING BEFORE THE CIT(A). IN THIS REGARD, LD. COUNSEL FILED A WRITTEN SUBMISSION JUSTIFYING THE REQUEST FOR REMAND ALL THE ISSUES TO THE FILE OF THE CIT(A). 3 ITA NO.1349/PUN/2017 5. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE REVENUE AUTHORITIES BUT HE HAS NO OBJECTION IF ALL THE ISSUES OF THIS APPEAL ARE REMANDED TO THE FILE OF THE CIT(A) FOR ONE MORE ROUND ADJUDICATION. 6. ON HEARING BOTH THE SIDES AND CONSIDERING THE WRITTEN SUBMISSION OF THE ASSESSEE, WE FIND IT RELEVANT TO EXTRACT THE SAID WRITTEN SUBMISSION AND THE SAME IS EXTRACTED HEREUNDER :- GROUND NO. 1 TO GROUND NO. 4 - THE FIRST FOUR (4) GROUNDS ARE ON MERITS OF THE MATTER. IT IS THE RESPECTFUL SUBMISSION OF THE APPELLANT THAT VARIOUS CONTENTIONS AND ISSUES RAISED BY THE APPELLANT WERE NOT DELIBERATED ON REQUISITE MERITS. FOR EXAMPLE, THE ADDITIONS REGARDING ALLEGED INTRODUCTION OF CAPITAL IN M/S SUPREME DEVELOPERS (A PARTNERSHIP FIRM IN WHICH, APPELLANT IS A PARTNER) AMOUNTING TO RS. 6 LACS, IS FACTUALLY INCORRECT. M/S SUPREME DEVELOPERS WAS ALSO SUBJECTED TO TAX PROCEEDINGS AND NO SUCH CASH INTRODUCTION WAS CONSIDERED IN THE SAID CASE. THIS ISSUE WAS ALREADY RAISED BEFORE THE L-T AUTHORITIES (PAGE-6, PARA-2 OF LEARNED CIT- A ORDER), BUT UNFORTUNATELY HAS NOT BEEN CONSIDERED. SIMILAR ARE THE OTHER ISSUES ON MERITS REGARDING ADDITIONS ON THE BASIS OF SEIZED DIARY. IT IS SUBMITTED, VARIOUS ADDITIONS MADE BY THE LEARNED AO ARE MERE ASSUMPTIONS / PRESUMPTIONS OF SOME PROPOSED LAND DEALS, WHICH DID NOT FRUCTIFY FACTUALLY. APPELLANT CARRIED STRONG OBJECTION AS REGARDS ADDITIONS ON MERITS. GROUND NO. 5 - APART FROM THE ISSUES ON MERITS, AN ALTERNATE CONTENTION HAS BEEN RAISED VIDE GROUND NO. 5 AS PER WHICH, EFFECT OF TELESCOPING HAS BEEN PRAYED FOR. A SIMILAR ISSUE WAS RAISED IN THE PAST TWO YEARS AS WELL (GROUND NO. 11 FOR AY 2006-07 AND GROUND NO. 21 FOR AY 2007-08). COPIES OF THE GROUNDS RAISED FOR THE PAST TWO YEARS ARE SUBMITTED VIDE PAPER-BOOK-2 (CONTAINING 35 PAGES) TODAY. IT IS SUBMITTED, THE GROUND OF TELESCOPING WAS RAISED BEFORE THE LEARNED CIT(A) AS WELL, THOUGH THE SAME WAS UNFORTUNATELY DISMISSED. PRAYER - THE CONTENTIONS RAISED VIDE APPEALS FOR AY 2006-07 AND AY 2007-08 HAVE BEEN SENT BACK BY THE HONOURABLE ITAT, TO THE LEARNED CIT(A), VIDE ITAT ORDER DATED 9/2/2018. APPELLANT SUBMITS, THE APPEAL FOR AY 2008-09 INVOLVES ISSUES SIMILAR TO AY 2006-07 AND AY 2007-08 INCLUDING ISSUE OF NON-GRANT OF TELESCOPING EFFECT. NOW, ISSUE OF TELESCOPING FOR AY 2008-09, CAN BE DECIDED ONLY AFTER SIMILAR ISSUES GET DECIDED FOR AY 2006-07 AND AY 2007-08 (CONSIDERING MECHANISM OF OPENING BALANCE V. CLOSING BALANCE). AS SUCH, IT IS THE HUMBLE REQUEST OF THE APPELLANT THAT, THE PRESENT APPEAL MAY ALSO PLEASE BE REMITTED BACK TO THE LEARNED CIT(A) FOR REQUISITE ADJUDICATION OF ALL THE INVOLVED GROUNDS OF APPEAL. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE, FOR WANT OF RULE OF CONSISTENCY, ALONG WITH THE FINDINGS OF THE ASSESSING OFFICER/CIT(A) FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08, DESIRES THAT THE PRESENT APPEAL SHOULD ALSO BE REMANDED TO THE FILE OF THE CIT(A). 4 ITA NO.1349/PUN/2017 8. WE ALSO PERUSED THE CONTENTS OF PARA 6 AND 7 OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 AND FIND THE ISSUES ALREADY STAND REMANDED TO THE FILE OF THE CIT(A). FOR THE SAKE OF COMPLETENESS, THE CONTENTS OF PARA 6 AND 7 OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) ARE EXTRACTED HEREUNDER :- 6. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. IT IS AN UNDISPUTED FACT THAT DURING IMPUGNED ASSESSMENT YEARS, THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF IMPOUNDED LOOSE PAPERS/SLIPS/POCKET DIARIES AND OTHER DOCUMENTS FOUND AND SEIZED DURING SURVEY OPERATION CARRIED OUT AT THE PREMISES OF ASSESSEE ON 22.01.2009. DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS, COMMISSIONER OF INCOME TAX (APPEAL) VIDE ORDER DATED 20.10.2011 CALLED FOR REPORT FROM THE ASSESSING OFFICER IN RESPECT OF VARIOUS TRANSACTIONS RECORDED ON LOOSE PAPERS/DIARIES SEIZED DURING SURVEY FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 AFTER NECESSARY ENQUIRIES. THE LD. AR OF THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE NOTICE DATED 28.02.2014 ISSUED BY ASSESSING OFFICER TO THE ASSESSEE GRANTING FINAL OPPORTUNITY TO SUBMIT POINT WISE EXPLANATION ALONG WITH DOCUMENTARY EVIDENCES ON OR BEFORE 06.03.2014. THE COPY OF SAID NOTICE IS AT PAGE 234 OF THE PAPER BOOK. ON THE SAME DATE I.E. 28.02.2014, THE ASSESSING OFFICER FINALIZED THE REMAND REPORT AND FURNISHED TO THE COMMISSIONER OF INCOME TAX (APPEAL) DISREGARDING THE FACT THAT HE HAS ISSUED NOTICE TO THE ASSESSEE GRANTING FINAL OPPORTUNITY TO SUBMIT DOCUMENTS AND EXPLANATIONS ON OR BEFORE 06.03.2014. AFTER HAVING FURNISHED REMAND REPORT ON 28.02.2014, NO EFFORT WAS MADE BY THE ASSESSING OFFICER TO FILE FINAL/SUPPLEMENTARY REMAND REPORT AFTER RECEIVING FINAL SUBMISSIONS OF THE ASSESSEE ON 06.03.2014. THE PRECLOSURE OF REMAND PROCEEDINGS AND FURNISHING OF REPORT BY THE ASSESSING OFFICER ON 28.02.2014 WITHOUT CONSIDERING THE FINAL SUBMISSIONS OF THE ASSESSEE IS PATENT VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 7. A PERUSAL OF THE WRITTEN SUBMISSIONS MADE BY ASSESSEE BEFORE COMMISSIONER OF INCOME TAX (APPEAL) ON 12.05.2014 REVEAL THAT ASSESSEE HAD TAKEN A SPECIFIC OBJECTION THAT THE REMAND REPORT WAS SENT BEFORE CONSIDERING THE FINAL SUBMISSION OF ASSESSEE WHICH THE ASSESSEE HAD FILED ON 06.03.2014 IN ACCORDANCE WITH THE NOTICE OF THE ASSESSING OFFICER. THE IMPUGNED ORDER SHOWS THAT THE COMMISSIONER OF INCOME TAX (APPEAL) HAS NEITHER DEALT WITH THE OBJECTION RAISED BY ASSESSEE NOR HAS CONSIDERED THE SUBMISSION OF ASSESSEE DATED 06.03.2014 FILED BEFORE THE ASSESSING OFFICER DURING REMAND PROCEEDINGS. THUS, IN VIEW OF THE FACTS OF THE CASE AND THE MANNER IN WHICH THE PROCEEDINGS HAVE BEEN CONDUCTED BY AUTHORITIES BELOW, WE ARE OF CONSIDERED VIEW THAT BOTH THE APPEALS NEED RE-VISIT TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEAL). THE COMMISSIONER OF INCOME TAX (APPEAL) SHALL CONSIDER THE SUBMISSION OF THE ASSESSEE DATED 06.03.2014 FILED BEFORE THE ASSESSING OFFICER DURING REMAND PROCEEDINGS. THE COMMISSIONER OF INCOME TAX (APPEAL) IS AT LIBERTY TO CONSIDER THE SUBMISSIONS OF ASSESSEE AND THE MATERIAL PLACED BEFORE HIM BEFORE PASSING THE FRESH ORDER OR THE COMMISSIONER OF INCOME TAX (APPEAL) MAY SEEK REPORT/COMMENTS FROM THE ASSESSING OFFICER BEFORE PASSING THE ORDER. NEEDLESS TO SAY THAT COMMISSIONER OF INCOME TAX (APPEAL) SHALL FOLLOW PRINCIPLES OF NATURAL JUSTICE BEFORE DECIDING THE ISSUES AFRESH, IN ACCORDANCE WITH LAW. THUS, WITHOUT COMMENTING ON THE MERITS OF ADDITIONS IN BOTH THE APPEALS, WE ARE RESTORING THE 5 ITA NO.1349/PUN/2017 APPEALS TO COMMISSIONER OF INCOME TAX (APPEAL). ACCORDINGLY, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. CONSIDERING THE ABOVE, WE ARE OF THE OPINION, WITH IDENTICAL DIRECTIONS GIVEN IN PARA 6 AND 7 OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA), THE ISSUES RAISED IN PRESENT APPEAL ALSO STAND REMANDED TO THE FILE OF THE CIT(A) WITHOUT GOING INTO THE MERITS. ACCORDINGLY, WE ORDER. THUS, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19 TH DAY OF SEPTEMBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 19 TH SEPTEMBER, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-9, PUNE. 4. THE PR.CIT-5, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.