Shri Dasharathbhai Gordhandas Patel, Ahmedabad V. The ACIT, Cent. Circle -2(4), Ahmedabad

ITA 1546/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9194 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 27-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Principle of natural justice
• Section: 153A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 1546/AHD/2013 / ASSESSMENT YEAR : 2007-08 SHRI DASHARATHBHAI G. PATEL, 15, SUN RESIDENCY, SWAGAT- GREEN VILLA, THALTEJ-SHILAJ ROAD, AHMEDABAD-380059 VS ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : WRITTEN SUBMISSION (NONE) REVENUE BY : SHRI ASHISH POPHARE, DR DATE OF HEARING : 13 /01/2017 DATE OF PRONOUNCEMENT IN COURT : 23/02/20 17 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-III, A HMEDABAD DATED 08.03.2013 FOR ASSESSMENT YEAR 2007-2008. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT MY ASSESSMENT WAS WRONGLY REOPENED AND WRONGLY MADE THE ADDITION OF RS.1039070/- ON THE BASIS OF WRONG ASSU MPTION THAT THE LAND WAS PURCHASED BY ME WHICH IS NOT FAIR AND NOT JUSTI FIED. 2. THAT THE LAND WAS PURCHASED BY THE FIRM SOPAN INDUS TRIAL INFRASTRUCTURE PARK AND THE PAYMENT FOR THE SAME WAS ALSO MADE BY THE FIRM. THE FIRM HAS ACCOUNTED SUCH LAND IN THE BOOKS OF ACCOUNTS OF IT. THE AO HAS MADE THE ADDITION OF RS.1039070/- CONSIDERING ME AS OWNE R OF THE LAND WHICH IS ALSO NOT FAIR AND NOT JUSTIFIED. 3. THAT I AM AN AGRICULTURIST AND I DO NOT KNOW SHRI P ARESHBHAI PATEL AND HE IS NOT EVEN A PARTNER OF SOPAN INDUSTRIAL INFRAS TRUCTURE PARK AND I DO NOT HAVE ANY TYPE OF CONNECTION WITH SHRI PARESHBHA I PATEL. EVEN THE PAGE NO.72 & 73 SEIZED BY THE DEPARTMENT IS NOT SHO WING MY NAME AS PURCHASER OF SUCH LAND AND I DO NOT KNOW ABOUT THE RATE OF RS.900000/- PER VIGHA OF SUCH LAND. DESPITE THE FACTS KNOWN TO AO, THE AO HAS MADE THE ADDITION TO THE TOTAL INCOME WHICH IS ALSO NOT JUSTIFIED AND ALSO AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 1. 4. THE BRIEF FACTS OF THE CASE ARE THAT, FOR THE YEAR UNDER CONSIDERATION, THE RETURN OF INCOME U/S.153A OF THE INCOME TAX ACT , 1961 (HEREINAFTER SMC-ITA NO.1546/AHD /2013 DASHARATHBHAI G PATEL VS. ACIT AY :2007-08 2 REFERRED TO AS THE ACT) WAS FILED ON 28.12.2010 D ECLARING TOTAL INCOME AT RS.2,54,780/-. SUBSEQUENTLY, THE CASE WAS REOPENED AND NOTICE U/S 148 OF THE ACT WAS ISSUED ON 10.02.2011 AND IN RESPONSE TO THE NOTICE, THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO TREAT THE RETURN OF INCOME FILED U/S. 153A AS THE RETURN OF INCOME U/S.148 OF THE ACT. THE C ASE WAS SUBSEQUENTLY REOPENED BY THE ASSESSING OFFICER AND DURING THE CO URSE OF REASSESSMENT THE ASSESSING OFFICER FOUND THAT THE AGRICULTURE LA ND BEARING SURVEY NOS.1212, 1239, 1240 1243, 1244, 1247, 1249, 1250, 1251, 1220, 1233 WERE PURCHASED IN ASSESSEES NAME BY SOPAN INDUSTRIAL IN FRASTRUCTURE PARK, A PARTNERSHIP FIRM, IN WHICH ASSESSEE WAS A PARTNER F OR THE SHARE OF PROFIT @ 5%. THEREAFTER, THE ASSESSMENT WAS FRAMED U/S 143( 3) R.W.S. 148 OF THE ACT DATED 30.12.2011 DETERMINING THE TOTAL INCOME OF TH E ASSESSEE AT RS.12,93,850/- WHICH INCLUDED THE UNEXPLAINED INVES TMENT IN PROPERTY U/S. 69B OF THE ACT, AMOUNTING TO RS.10,39,070/- @ 5% BE ING PROFIT SHARING RATIO IN LAND PURCHASED BY SOPAN INDUSTRIAL INFRASTRUCTUR E PARK. 4.1 AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER , THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER AND CONFIRMED THE ADDITION OF RS. 10,39,070/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT. 4.2 AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSES SEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, ASSESSEE DID NOT APPEAR, HOWEVER FILED A WRITTEN SUBMISSION DATED 22.03.2016 CONTENDING THAT THE ASSESSEES CASE IS FAVOURABLY COVERED BY THE CONSOLIDATED ORDER DATED 17.03.2016, DELIVERED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASES OF OTHER PARTNERS SHRI KANUBHAI PATEL, SMT. NAYANABEN PATEL AND SHRI SURE SHKUMAR PATEL IN ITA NOS. 1885/AHD/2012, 1882/AHD/2012 AND 1883/AHD/2012 , WHEREIN THE SMC-ITA NO.1546/AHD /2013 DASHARATHBHAI G PATEL VS. ACIT AY :2007-08 3 ADDITIONS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENTS WERE DELETED BY FOLLOWING OBSERVATIONS:- 12. NOW WE COME TO ASSESSEE'S SECOND SUBSTANTIVE G ROUND CHALLENGING UNEXPLAINED INVESTMENTS ADDITIONS OF RS. 41,56,282/ - MADE U/S. 69B OF THE ACT PERTAINING TO LANDS PURCHASED IN MOTIBHOYA VILL AGE. HIS CASE THROUGHOUT PLEADED THAT IT IS HIS FIRM M/S. SOPAN INDUSTRIAL I NFRASTRUCTURAL PARK WHICH IS THE ACTUAL PURCHASER/OWNER OF THE LAND IN QUESTI ON. A PERUSAL OF THE CASE RECORDS REVEALS THAT THE ASSESSING OFFICER REOPENED ASSESSMENT OF THIS FIRM OF THE IMPUGNED ASSESSMENT YEAR ITSELF ON THE BASIS OF THE VERY INCRIMINATING EVIDENCE I.E. ANNEXURE A-5, PAGES 72 AND 73 FOR MAK ING THE ENTIRE ADDITION OF ON MONEY CASH PAYMENT OF RS. 2,07,81,390/- IN IT S HANDS VIDE REASSESSMENT ORDER DATED 26-02-2014. THE SAME IS IN FACT FRAMED POST FACTO THE LOWER APPELLATE UNDER CHALLENGE BEFORE US. THE REVENUE FAILS TO REBUT THIS FACTUAL POSITION. WE HOLD IN THESE FACTS THAT THE I MPUGNED ADDITION OF UNEXPLAINED INVESTMENTS PERTAINING TO ASSESSEE'S LA ND PURCHASED IN MOTI BHOYAN VILLAGE IS NOT SUSTAINABLE SO AS TO AVOID DO UBLE TAXATION. THE SAME ACCORDINGLY STANDS DELETED. REST OF THE GROUNDS IN ASSESSEE'S APPEALS ARE TREATED SUPPLEMENTARY/CONSEQUENTIAL IN NATURE. ASSE SSEE'S APPEAL ITA 1885/AHD/2012 IS ACCEPTED. .. 14. THIS LEAVES US WITH THE REMAINING TWO ASSESSEE' S SMT. NAYANA ANIL PATEL AND SHRI SURESH CHANDULAL PATEL. THEY HAVE FILED IT A NOS. 1882 AND 1883/AHD/2012 CHALLENGING UNEXPLAINED INVESTMENT AD DITIONS OF RS. 31,17,211/- IN VILLAGE MOTI BHOYAN IN CASE OF FORME R AND RS. 20,78,141/- IN CASE OF THE LATTER ASSESSEE. LD. AUTHORIZED REPRESE NTATIVE SUBMITS THAT THESE TWO ASSESSEES ARE PARTNERS IN THE FIRM M/S. SOPAN I NDUSTRIAL INFRA. PARK WHO HAS ALREADY BEEN ASSESSED QUA THE ENTIRE ADDITION A MOUNT AS STATED IN THE CASE OF SHRI KANUBHAI MAGANLAL PATEL IN PRECEDING PARAGR APHS. THE REVENUE FAILS TO DRAW ANY DISTINCTION ON FACTS OF THE TWO CASES. WE ACCORDINGLY ACCEPT THIS SOLE SUBSTANTIVE GROUND RAISED IN THE TWO APPEALS A ND DELETE THE IMPUGNED ADDITIONS OF UNEXPLAINED INVESTMENTS. ITAS 1882 AND 1883/AHD/2012 SUCCEED. 6. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AS WELL AS THE ORDER OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL AS REFERRED BY THE ASSESSEE IN SMC-ITA NO.1546/AHD /2013 DASHARATHBHAI G PATEL VS. ACIT AY :2007-08 4 HIS WRITTEN SUBMISSION. I FIND FORCE IN THE SUBMI SSION OF THE ASSESSEE THAT THE ASSESSEES CASE IS FAVOURABLY COVERED BY ITAT D ECISION DATED 17.03.2016 IN THE CASES OF OTHER PARTNERS SHRI KANUBHAI PATEL, SMT. NAYANABEN PATEL AND SHRI SURESHKUMAR PATEL IN ITA NOS. 1885/AHD/201 2, 1882/AHD/2012 AND 1883/AHD/2012 FOR AY 2007-08. THEREFORE, RESPE CTFULLY FOLLOWING THE SAME, I DELETE THE ADDITION IN QUESTION AND ALLOW T HE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 23/02/2017 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD