Shrikant Dinkarrao Dahake, Nagpur V. ACIT, Cental Cir,1(1), Nagpur

ITA 240/NAG/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93371 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYA
• Keywords: Search and seizure; Salary income; Document seized; Corroborative evidences; Documents seized
• Section: 153A; 131

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. S.NO. I.T.A. NO. ASSTT. YEAR. 1. 240/NAG/2012. 2003-04 2. 241/NASG/2012 2004-05 3. 242/NAG/2012 2005-06 4. 243/NAG/2012 2006-07 5. 244/NAG/2012 2007-08 SHRIKANT DINKARRAO DAHAKE, ASSTT. COMMISSIONER OF 401, ANUSAYA SAHNIWAS, V/S. INCOME TAX,, SHRI CHHATRAPATI NAGAR, CENTRAL CIR. 1(1), NAGPUR. NA GPUR. PAN ABKPD7890G. APPELLANT. RESPOND ENT. APPELLANT BY : SHRI MUKESH AGRAWAL RESPONDENT BY : SH RI AMITAVA BHATTA CHARYA. DATE OF HEARING - 07-05-2015 DATE OF ORDER : 15-05-2015 O R D E R PER SHRI SHAMIM YAHYA, A.M. THESE APPEALS BY THE ASSESSEE ARISE OUT OF THE RES PECTIVE ORDERS OF THE LEARNED CIT(APPEALS)-I, NAGPUR PERTAINING TO SEPAR ATE ASSESSMENT YEARS FROM 2003-04 TO 2007-08. 2 SINCE THE ASSESSMENT IN THIS CASE WAS MADE UNDER SE CTION 153A FOR FIVE ASSESSMENT YEARS AND THE APPEALS WERE HEARD TOGETHE R AND COMMO0N ISSUES HAVE BEEN RAISED, THESE HAVE BEEN CONSOLIDATED AND DISPO SED OF BY THIS COMMON ORDER. 2. THE COMMON ISSUE RAISED IS THAT THE LEARNED CIT( APPEALS) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN AS SESSING SALARY INCOME FROM SMS SHIVNATH INFRASTRUCTURE LTD. AT AN AMOUNT WHICH IS AT VARIANCE WITH THAT SHOWN BY THE ASSESSEE. 3. IN THIS CASE SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE I.T. ACT WAS CARRIED OUT ON THE ASSESSEE AT INDIRA GANDHI IN TERNATIONAL AIRPORT, NEW DELHI ON 28-11-2006. PURSUANT TO THIS, NOTICE WAS ISSUED TO THE ASSESSEE UNDER SECTION 153A OF THE I.T. ACT. DURING THE SEARCH A LOOSE SHE ET WAS SEIZED WHICH CONTAINED FOLLOWING HAND WRITTEN MATERIAL: FOR PERIOD JUNE 2002 TO MAY 2003 6.75 JUNE 03 TO MAY 04 7.425 JUNE 03 TO MAY 05 8.617 JUNE 05 TO MAY 06 8.98 JUNE 06 TO ONWARDS 9.878 ABSTRACT FROM 13 TH AUG.05 TO 30 TH NOV.05 FROM 8 TH SEPT. TO 20 TH SEPT. WAS AT JHUNJHUNU. FROM 13 TH MAY,06 TO 13 TH JUNE-06 ATTENDED PARALI :- FROM DEC. 05 TO 12 TH MAY FOR ONLY TEN TO TWELVE DAYS. 3 4. IN RESPONSE TO SUMMON UNDER SECTION 131(1) OF I. T. ACT, THE ASSESSEE HAD STATED THAT THE CONTENTS OF THE SAID DOCUMENT WERE DETAILS OF AMOUNTS GIVEN BY THE COMPANY TO HIM AS SALARY PLUS OTHER INCENTIVE A ND THE AMOUNT IS IN LAKHS. THAT THE ABOVE AMOUNT IS IN LAKHS AND PERTAINS TO S ALARY OF THE ASSESSEE HAS BEEN ACCEPTED BY THE REVENUE AND THERE IS NO DISPUTE IN THIS REGARD. THE ONLY DISPUTE IS THAT IN THE ANSWER TO THE QUESTIONS ASSESSEE HAD STATED THAT HIS ONLY SOURCE OF INCOME WAS SALARY FROM SMS SHIVNATH INFRASTRUCTURE LTD. HOWEVER, LATERON THE ASSESSEE CLAIMED THAT THE ASSESSEE WAS RECEIVING SA LARY FROM BOTH M/S MAHARASHTRA STATE ELECTRICITY BOARD AND M/S SMS SHI VNATH INFRASTRUCTURE LTD. ASSESSEE HAS ALSO CLAIMED THAT HE HAS ALREADY SUBMI TTED HIS SALARY RETURNS MUCH PRIOR TO THE SEARCH. HENCE IT WAS CLAIMED BY THE AS SESSEE THAT THE AMOUNT OF SALARY NOW BEING ARRIVED AT ON THE BASIS OF LOOSE S HEET SHOULD BE ADJUSTED FROM THE SALARY AS SHOWN IN THE RETURN OF INCOME FILED E ARLIER. IT WAS ONLY THE RESULTANT AMOUNT WHICH WAS OFFERED BY THE ASSESSEE AS INCOME SURRENDERED. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED. HE DID NOT GI VE ANY CREDIT TO THE ASSESSEE WITH REGARD TO THE RETURN OF INCOME AS REGARDS SALA RY FROM MSEB. THE ASSESSING OFFICER OPINED THAT SINCE THE ASSESSEE HAS ACCEPTED THAT THE SEIZED DOCUMENTS RELATED TO HIS SALARY RECEIVED FROM SMS SHIVNATH IN FRASTRUCTURE LTD., BHILAI, HE PROCEEDED TO REDUCE THE SUM MENTIONED IN THE LOOSE SHEET FROM THE SALARY EARLIER RETURNED FROM M/S SMS SHIVNATH INFRASTRUCTURE LTD. ACCORDINGLY THE ASSESSING OFFICER FRAMED THE ASSESSMENT WITHOUT GIVING ANY CR EDIT TO THE SALARY RECEIVED FROM MSEB. 4 5. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) CON SIDERED THE ISSUE AND HELD AS UNDER :: THE CONTENTION OF APPELLANT IS THAT THE AMOUNTS NOTED IN DOCUMENT A-I PAGE INCLUDES THE SALARY RECEIVED FROM MSEB WH ICH HAD ALREADY BEEN OFFERED IN THE RETURN OF INCOME FILED U/S 139(1). HOWEVER, IT IS CLEAR THAT THERE IS NO EVIDENCE IN SUPPORT OF APPELLANTS CLA IM THAT THE SALARY RECEIVED FROM MSEB IS ALSO INCLUDED IN THE NOTINGS IN THE SEIZED DOCUMENT. EVEN AT THE TIME OF STATEMENT RECORDED FROM APPELL ANT U/S. 132(4) THIS CLAIM WAS NOT PUT FORTH. IT IS NECESSARY TO NOTE T HAT APPELLANT WAS AN EMPLOYEE WITH MSEB AND HAS OFFERED THE SAID SALARY INCOME IN THE ORIGINAL RETURN ITSELF. THERE IS NOTHING IN THE SEIZED DOCU MENT TO SHOW THAT THE AMOUNT REFERS TO TOTAL SALARY EARNED FROM VARIOUS EMPLOYEES DURING THE PERIOD. APPELLANT HAS ALSO CATEGORICALLY STATED IN ANSWER TO QUESTION NO.4 OF STATEMENT U/S 132(4) DT. 28.11.2006 THAT THE N OTING REFER TO SALARY PLUS INCENTIVES GIVEN BY THE COMPANY IN THE ABSENCE O F ANY CONCRETE SUPPORTING EVIDENCE OF CORROBORATIVE EVIDENCE I DO NOT FIND ANY MERIT IN THE CLAIM OF THE APPELLANT THAT THE ENTRY IN THE L OOSE PAPER INCLUDES SALARY RECEIVED FROM MSEB ALREADY OFFERED TO TAX. HOWEVER, I FIND MERIT IN THE APPELLANTS CONTENTI ONS THAT SINCE THE AMOUNTS RECEIVED AS PER THE SEIZED DOCUMENTS CLEAR LY PERTAIN TO 2 DISTINCT FINANCIAL YEARS ONLY THE AMOUNTS RECEIVED IN THE A .Y. 03-04 THAT IS THE PERIOD FROM APRIL02 TO MARCH03 ARE TO BE BROUGHT TO TAX. THIS CONTENTION OF THE APPELLANT IS VALID AND REQUIRES TO BE CONSI DERED. AO IS DIRECTED TO REWORK THE SALARY RECEIVED DURING THE YEAR TAKING INTO ACCOUNT THE ONLY AMOUNT RECEIVED TILL THE END OF THE FINANCIAL YEAR . AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFO RE US. 6. LEARNED COUNSEL OF THE ASSESSEE CONTENDED THAT T HE ASSESSEE HAS FILED HIS RETURN OF INCOME MUCH PRIOR TO THE DATE OF SEARCH. IN THIS RETURN, SALARY FROM MSEB AND SALARY FROM SMS SHIVNATH INFRASTRUCTURE LT D. BOTH WERE SHOWN. THE DOCUMENTS THAT WERE SEIZED DURING THE SEARCH HAS BE EN ACCEPTED BY THE DEPARTMENT AS RELATING TO THE SALARY INCOME OF THE ASSESSEE. HENCE HE CLAIMED 5 THAT THE SALARY AS ALREADY DISCLOSED BY MEANS OF RE TURN OF INCOME FILED MUCH PRIOR TO THE DATE OF SEARCH SHOULD BE ADJUSTED AND ONLY T HE RESULTANT FIGURE SHOULD BE ADDED. LEARNED COUNSEL FURTHER SUBMITTED THAT THE D OCUMENT SEIZED IS A DUMB DOCUMENT AND IN FACT NO CREDENCE SHOULD BE GIVEN TO THE SAID DOCUMENT IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. IN THIS REG ARD, LEARNED COUNSEL PLACED RELIANCE UPON THE ITAT DELHI BENCH DECISION IN THE CASE OF ACIT V/S. SHARAD CHOWDHARY 165 TTJ 145. 7. PER CONTRA, LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. LEARNED D.R. SUBMITTED THAT IN THE QUESTIONS ASKED , THE ASSESSEE HAS UNAMBIGUOUSLY STATED THAT THE LOOSE SHEET PERTAINE D TO HIS SALARY INCOME FROM SMS SHIVNATH INFRASTRUCTURE LTD. HENCE HE SUBMITTE D THAT THE ASSESSING OFFICER HAS RIGHTLY TREATED THE SAID INCOME AS AMOUNT RECEI VED FROM SMS SHIVNATH INFRASTRUCTURE LTD. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE NOWHERE IN HIS ANSWERS STATED THAT THE AMOUNT NOTED ALSO INCLUDED HIS SALARY RECEIVED FROM MSEB. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. UP ON CAREFUL PERUSAL OF THE LOOSE SHEET AS REPRODUCED IN THE ORDER HEREINABOVE, WE NOTE THAT THE SAID NOTING THOUGH NOT AT ALL SPEAKING, HAS BEEN ACCEPTED BY T HE DEPARTMENT AS PERTAINING TO SALARY INCOME OF THE ASSESSEE. THE AMOUNT MENTIONED THEREIN HAS ALSO BEEN ACCEPTED AS RUPEES IN LAKHS. NOW THE ONLY QUESTION IS WHETHER THE ASSESSEES CLAIM THAT ABOVE SO CALLED SALARY DETAIL CONTAINS T HE AMOUNTS RECEIVED FROM MSEB OR NOT. IN THIS REGARD, REVENUES CONTENTION IS THA T THE ASSESSEE IN RESPONSE TO QUESTIONAIR UNDER SECTION 131 OF THE I.T. ACT HAS S TATED THAT HE WAS ONLY WORKING 6 WITH SMS SHIVNATH INFRASTRUCTURE LTD. AND THE AMOUN T MENTIONED IN THE LOOSE SHEET WERE HIS SALARY AND INCENTIVE RECEIVED FROM T HE SAID COMPANY. ON THE OTHER HAND, ASSESSEES CLAIM IS THAT THE ASSESSEE HAS ALR EADY FILED RETURN OF INCOME MUCH PRIOR TO THE DATE OF SEARCH. IN THOSE RETURNS IT HAS ALREADY DISCLOSED SALARY INCOME FROM BOTH M/S MSEB AND SMS SHIVNATH INFRASTR UCTURE LTD.. HENCE THE ASSESSEES CLAIM IS THAT FROM THE SALARY FIGURE MEN TIONED IN THIS DOCUMENT, DEDUCTION SHOULD ALSO BE GRANTED TO THE SALARY RETU RNED EARLIER FROM MSEB ALSO. 9. WE FIND THAT THE LEARNED COUNSELS RELIANCE ON T HE PROPOSITION THAT THE SAID DOCUMENT IS DUMB DOCUMENT IS NO MORE SUSTAINABLE IN VIEW OF THE ASSESSEES ACCEPTANCE THAT THE SAID AMOUNT CONTAINS FIGURES OF THE SALARY INCOME FROM SMS SHIVNATH INFRASTRUCTURE LTD.. WE FIND THAT, IT IS A FACT THAT THE REVENUE HAS ACCEPTED THE SAID DOCUMENT AS CONTAINING THE AMOU NT OF ASSESSEES SALARY INCOME FOR FIVE YEARS AND THAT TOO IT IS RUPEES IN LAKHS. THIS ACCEPTANCE BY THE REVENUE IS SOLELY BASED UPON THE STATEMENT OF THE A SSESSEE WITH NO CORROBORATING MATERIAL WHATSOEVER. IN THE STATEMENT RECORDED U/S 131 ASSESSEE HAS MENTIONED THAT THE NOTINGS ARE HIS SALARY INCOME IN LAKHS OF RUPEES AND HIS ONLY SOURCE OF INCOME WAS SALARY AND INCENTIVE FROM M/S SMS SHIVNA TH INFRASTRUCTURE LTD. LTD. THIS THE ASSESSING OFFICER HAS ACCEPTED. 10. WE FIND THAT IN THE RETURN OF INCOME FILED MUCH PRIOR TO THE DATE OF SEARCH THE ASSESSEE HAS ALSO DISCLOSED SALARY INCOME FROM MSEB ALONG WITH SALARY INCOME FROM SMS SHIVNATH INFRASTRUCTURE LTD. ASSESS EE HAS CLAIMED THE SAME IN THE RETURN FILED PURSUANT TO SECTION 153A. IN OUR C ONSIDERED OPINION, THIS CLAIM OF THE ASSESSEE HAS COGENCY IN THE LIGHT OF THE EVIDEN CE IN THE FORM OF RETURN OF INCOME FILED MUCH PRIOR TO THE DATE OF SEARCH. IN T HESE CIRCUMSTANCES, IN OUR 7 CONSIDERED OPINION, WHEN THE ASSESSEES STATEMENT IS THE SOLE BASIS OF INTERPRETATION OF THE SAID SEIZED DOCUMENT, WE FIND NO REASON AS TO WHY THE SALARY INCOME DISCLOSED EARLIER BY MEANS OF RETURN FROM MSEB SHOULD NOT BE ADJUSTED AS CLAIMED BY THE ASSESSEE. IN THE BACKGRO UND OF AFORESAID DISCUSSION, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AN D DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 11. IN THE RESULT, THESE APPEALS FILED BY THE ASSES SEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MAY, 2015. SD/- SD/- (MUKUL K. SHRAWAT) (SHAMIM YAHYA) JUDICIAL MEMBER. ACCOUNTANT MEMBER NAGPUR, DATED: 15 TH MAY, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. T RUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE