Assistant Commissioner of Income-tax, V. Unity Ugal Builders and Developers,, Pune

ITA 2241/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7187 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Unexplained expenditure; Revision of order; Assessment record
• Section: 143(3); 69

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! ' # $ , % & BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM !. / ITA NO.2241/PUN/2014 ' ( ( / ASSESSMENT YEAR : 2007-08 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE. . / APPELLANT V/S UNITY YUGAL BUILDERS & DEVELOPERS, OFFICE NO.10, 11, 12, 4 TH FLOOR, SUYSH PLAZA, 976/58, BHANDARKAR ROAD, PUNE 411 004. PAN : AABFU8956C. . / RESPONDENT / APPELLANT BY : SHRI ANIL CHAWARE / RESPONDENT BY : NONE (WRITTEN SUBMISSIONS) ) / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE O RDER OF COMMISSIONER OF INCOME TAX (A) CENTRAL, PUNE DT.10.09 .2014 FOR THE ASSESSMENT YEAR 2007-08. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- / DATE OF HEARING : 24.01.2017 / DATE OF PRONOUNCEMENT: 02.02.2017 2 ITA NO.2241/PUN/2014 AY.NO.2007-08 2.1 ASSESSEE IS PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION AND BUILDERS. A SEARCH ACTION WA S CONDUCTED AT THE RESIDENCE OF SHRI N.K. MUNDADA ON 16 TH AND 17 TH NOVEMBER, 2006 WHEREIN CERTAIN PAPERS WERE FOUND WHICH IN DICATED THAT THE ASSESSEE FIRM IN WHICH SHRI N.K. MUNDADA IS A PARTNER (2% SHARE) HAD MADE ON MONEY PAYMENT OF RS.1,18,80,000/- TO THE SELLER OF FOUR PLOTS OF LAND IN BANER AREA IN PUNE. DURING T HE COURSE OF SEARCH, THE SELLER OF THE LAND (SHRI TINDERSINGH A HLUWALIA) AND THE BUYER OF THE LAND I.E., THE ASSESSEE, ADMITTED TO THE ON MONEY TRANSACTIONS AND THEREAFTER DISCLOSURE OF RS.1.18 C RORES WAS MADE U/S 132(4) OF THE ACT BY THE ASSESSEE. IN THE PRO FIT AND LOSS ACCOUNT ASSESSEE HAD ADDED THE UNEXPLAINED EXPENDITURE OF RS.1,18,00,000/- AND HAD ALSO INCLUDED THE SAME IN CLOSING STOCK AND THERE WAS ALSO A SEPARATE CREDIT FOR RS.1,18,00,000/- IN THE PROFIT AND LOSS ACCOUNT. THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 31.12.2008 AND THE TOTAL INCOME WA S DETERMINED AT RS.1,01,38,820/-. THEREAFTER ON EXAMINING THE ASSESSMENT RECORDS, LD. CIT NOTICED THAT THE DEDUCTION O F RS.1,18,00,000/- CLAIMED WAS REQUIRED TO BE DISALLOWED U/S 69 C OF THE ACT. HE THEREAFTER PASSED ORDER U/S 07.02.2011 DIR ECTING THE AO TO RECOMPUTE THE INCOME AFTER DISALLOWING DEDUCTION OF RS.1,18,00,000/- CLAIMED BY ASSESSEE. PURSUANT TO THE DIREC TIONS OF THE LD.CIT, ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 263 VID E ORDER DT.18.08.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,19,38,820/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A) WHO VIDE ORDER DT.10.09.2014 ALL OWED THE APPEAL OF THE ASSESSEE INTER-ALIA FOR THE REASON THAT THE ORDER OF 3 ITA NO.2241/PUN/2014 AY.NO.2007-08 LD. CIT PASSED U/S 263 WAS QUASHED BY TRIBUNAL AND THER EFORE CONSEQUENTIAL ORDER PASSED BY AO DOES NOT SURVIVE. AG GRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO AMOUNTING TO RS.1,18,00,000/- WITHOUT CONSIDERING T HE MERIT OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION M ADE BY THE AO AMOUNTING TO RS.1,18,00,000/- BY HOLDING THAT SI NCE THE HONBLE TRIBUNAL HAS QUASHED THE 263 PROCEEDINGS, T HE ORDER PASSED BY THE AO IN CONSEQUENCE OF THE SAID ORDER H AS NO LEG TO STAND ON, WITHOUT APPRECIATING THE FACT THAT DEP ARTMENT HAS NOT ACCEPTED THE DECISION OF THE HONBLE ITAT Q UASHING THE ORDER PASSED U/S 263 OF THE I.T. ACT. 3. THE ORDER OF LD. CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL. 3. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF AS SESSEE BUT HOWEVER WRITTEN SUBMISSIONS WERE FILED WHEREIN IT WAS INTER-ALIA SUBMITTED THAT AGAINST THE ORDER PASSED BY LD.CIT U/S 263 ASSESSEE HAD CARRIED THE MATTER BEFORE THE TRIBUNAL AND THE CO- ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DT.29.10.2013 HAD QUASHED THE ORDER OF LD.CIT PASSED U/S 263. IT WAS THEREFORE SUBMIT TED THAT SINCE LD.CIT(A) HAD ALLOWED THE APPEAL OF THE ASSESSEE BY F OLLOWING THE ORDER OF CO-ORDINATE BENCH OF THE TRIBUNAL, THE APPEA L OF THE REVENUE NEEDS TO BE DISMISSED. LD. D.R ON THE OTHER H AND SUPPORTED THE ORDER OF AO. 4 ITA NO.2241/PUN/2014 AY.NO.2007-08 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE IMPUGNED ORDER HAS BEEN PASSED U/S 143(3) R.W.S. 263 ON 18.08.2011 CONSEQUENT TO THE ORDER OF LD.CIT PASSED U/S 263 OF THE ACT. THE ORDER PASSED BY LD.CIT U/S 263 HAS BEEN QUASHED BY THE CO-ORDINATE BENCH OF THE TRIBUNA L BY ORDER DT.29.10.2013 IN ITA NO.365/PN/2011. SINCE THE ORDER PASSED U/S 263 ITSELF HAS BEEN QUASHED, THE CONSEQUENTI AL ORDER PASSED BY AO THEREFORE DOES NOT SURVIVE. IN SUCH A SIT UATION, WE FIND NO INFIRMITY IN THE ORDER OF LD.CIT(A) AND DECIDING THE APP EAL IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE ORDER PASSED U/S 143(3) R.W.S. 263 HAS NO LEGS TO STAND ON. BEFORE US REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE ORDER OF THE TRIBUNAL QUASHING THE ORDER PASSED BY LD.CIT U/S 263 HA S BEEN SET ASIDE BY HIGHER JUDICIAL FORUM. IN VIEW OF THE AFORESAID FACT S, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A). THUS THE GROUNDS OF THE REVENUE ARE DISMISSED. 5 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED ON 2 ND FEBRUARY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER % / ACCOUNTANT MEMBER PUNE; ! DATED : 2 ND FEBRUARY, 2017. YAMINI 5 ITA NO.2241/PUN/2014 AY.NO.2007-08 ) * +#,- .-# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. COMMISSIONER OF INCOME TAX-(A)- 12, PUNE. COMMISSIONER OF INCOME TAX, CENTRAL, PUNE.. #$% &&'(, * '(, + / DR, ITAT, A PUNE; %-. / / GUARD FILE. )' / BY ORDER, // 0 // TRUE COPY // ///// 1 2345 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.