Balaji Laxman Chalukya, Osmanabad V. ITO, Ward 3(4), Latur

ITA 2527/PUN/2012

• Counselvise Citation: 252724514 RSA 2012
• Duration Of Justice: 1 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 21-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Principle of natural justice; Retraction
• Section: 133A; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.2527/PN/2012 (ASSESSMENT YEAR 2009-10) BALAJI LAXMAN CHALUKYA, PROP. OF M/S TRIMURTI ARCHITECT, ANAND NAGAR, OSMANABAD. PAN : AGRPC6400H . APPELLANT VS. INCOME TAX OFFICER, WARD- 3(4), LATUR. . RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : MR. RAJESH DAMOR DATE OF HEARING : 24-11-2014 DATE OF PRONOUNCEMENT : 26-11-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), AURANGABA D DATED 04.09.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 12.1 2.2011 PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S. 147 OF THE INCOME- TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1] IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LEARNED INCOME TAX COMMISSIONER (APPEALS) W AS NOT JUSTIFIED IN DISALLOWING RS.24.99 LAC ADDED BASED ON THE DIARIES FOUND IN SURVEY AND WITHOUT CONSIDERING THE FACTS AND THE NATURE OF BUS INESS AND THE DOCUMENTS. THE ORDER WAS PREJUDICIAL AND THEREFORE THIS APPEAL IS FILED FOR THE NATURAL JUSTICE. 2] IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LEARNED INCOME TAX COMMISSIONER (APPEALS) E RRED IN NOT CONSIDERING THE INFORMATION EXPLANATIONS AND STATEMENT OF FACTS AS REGARDS THE SOURCE OF INCOME AND NATURE OF TRANSACTION AND ITS TREATMENT IN ACCOUNTS. THE CIT APPEALS HAD ERRED IN LAW FOR NOT GIVING A JUSTICE A ND CONFIRMING THE ADDITIONS JUST BECAUSE THE ASSESSEE HAD NOT FILED THE LETTER OF RETRACTION. ITA NO.2527/PN/2012 3] IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LEARNED INCOME TAX COMMISSIONER (APPEALS) H AS NOT CONSIDERED THE FACT THAT LEARNED REPRESENTATIVE OF THE ASSESSEE DI D NOT GUIDE THE ASSESSEE PROPERLY EITHER DURING THE ORIGINAL ASSESSMENT AND ALSO IN APPEAL, THE ASSESSEE HIMSELF HAD TO BE PRESENT FOR THE SAME. TH E LEARNED CIT APPEALS DID NOT CONSIDER THE FACT THAT IN ABSENCE OF THE PR OPER AID FROM THE LEGAL COUNCIL, THE ASSESSEE WAS LEFT TO THE MERCY. THE AS SESSEE SHALL BE GIVEN A NATURAL JUSTICE. 4] IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LEARNED INCOME TAX COMMISSIONER (APPEALS) H AS NOT CONSIDERED THE FACT IN RESPECT OF THE EXPLANATION GIVEN TO ITO DUL Y ACKNOWLEDGED BY THE INCOME TAX OFFICE DT.13.12.2011. 3. AT THE TIME OF HEARING, IT WAS NOTICED THAT THE APPEAL HAS BEEN FIXED ON VARIOUS OCCASIONS IN THE PAST. IN THE PAST, ASSESS EE APPEARED AND ALSO SOUGHT ADJOURNMENT. WHEN THE APPEAL CAME UP FOR HE ARING TODAY I.E. 24.11.2014, NONE APPEARED AND NOR ANY ADJOURNMENT W AS SOUGHT ON BEHALF OF THE APPELLANT-ASSESSEE. THEREFORE, HAVING REGARD T O THE RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963, THE APPEAL IS BEING DISPOSED-OFF AFTER HEARING THE RESPONDENT ON MERITS AND EX-PARTE QUA THE ASSES SEE-APPELLANT. 4. IN BRIEF, THE FACTS EMERGING FROM THE ORDERS OF THE AUTHORITIES BELOW ARE THAT ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINESS /PROFESSION IN THE NAME AND STYLE M/S TRIMURTI ARCHITECT. A SURVEY ACTION U/ S 133A OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 20.02.2009. IN THE COURSE OF SURVEY, SOME INCRIMINATING DOCUMENTS/DIARIES WERE FOUND AND ASSE SSEES STATEMENT ON OATH WAS ALSO RECORDED ON 21.02.2009. IT IS NOTED IN TH E ORDERS OF THE AUTHORITIES BELOW THAT BASED ON THE DOCUMENTS/DIARIES FOUND AT THE TIME OF SURVEY, ASSESSEE DECLARED AN ADDITIONAL INCOME OF RS.25,00, 000/- FOR THE ASSESSMENT YEAR 2009-10 UNDER VARIOUS HEADS, NAMELY, ON ACCOUN T OF CASH; INVESTMENT IN RESIDENCE; INVESTMENT IN GOLD/SHARES PURCHASE; AND, ON ACCOUNT OF PLOT/FLAT ADVANCE, AS PER THE DETAILS NOTED IN PARA 2 OF THE ASSESSMENT ORDER. IT WAS NOTED THAT ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 31.03.2010 DECLARING TOTAL INCOME OF RS. 4,61,996/-. ON 26.08.2010, THE ASSESSING OFFICER INITIATED RE-ASSE SSMENT PROCEEDINGS ON THE ITA NO.2527/PN/2012 GROUND THAT INCOME HAD ESCAPED ASSESSMENT FOR THE R EASON THAT THE INCOME DECLARED IN THE RETURN OF INCOME DID NOT CORRESPOND TO THE ADDITIONAL INCOME DECLARED AT THE TIME OF SURVEY. ACCORDINGLY, IN TH E ENSUING ASSESSMENT MADE U/S 144 R.W.S. 147 OF THE ACT ON 12.12.2011, THE AS SESSING OFFICER ADDED A SUM OF RS.24,99,000-/ TO THE RETURNED INCOME THEREB Y COMPUTING THE TOTAL ASSESSED INCOME AT RS.29,61,000/-. ASSESSEE CARRIE D THE MATTER IN APPEAL BEFORE THE CIT(A) CHALLENGING THE ADDITION OF RS.24 ,99,000/- MADE TO THE RETURNED INCOME. ONE OF THE PERTINENT POINTS RAISE D BEFORE THE CIT(A) WAS THAT ADDITIONAL INCOME OF RS.24,99,000/- WAS DECLAR ED BY THE ASSESSEE IN THE COURSE OF SURVEY UNDER PRESSURE AND THAT HE HAD NOT EXPLAINED ANY PARTICULAR SOURCE OF INCOME. THE CIT(A) HAS, HOWEVER, DISMISS ED THE PLEA OF THE ASSESSEE AND IN-PARTICULAR, IT HAS BEEN HELD THAT T HE FACTUM OF THE ASSESSEE HAVING DECLARED THE ADDITIONAL INCOME ON ACCOUNT OF INCRIMINATING DOCUMENTS/DIARIES FOUND DURING THE COURSE OF SURVEY IS UN-REBUTTED. FURTHER, ASSESSEE HAD ALSO SOUGHT TO EXPLAIN THE SOURCES OF INVESTMENT OF RS.24,99,000/-, WHICH WAS ALSO NOT ACCEPTED BY THE CIT(A). AS A CONSEQUENCE, THE ASSESSEE IS IN FURTHER APPEAL BEFO RE US. 5. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REP RESENTATIVE APPEARING FOR THE REVENUE HAS SUPPORTED THE ORDERS OF THE AUT HORITIES BELOW BY POINTING OUT THAT THE ASSESSEE HAS NO JUSTIFIABLE REASONS TO RESIST THE ADDITION OF RS.24,99,000/- MADE TO THE RETURNED INCOME AS THE S AME IS IN ACCORDANCE WITH THE STATEMENT MADE DURING THE SURVEY DECLARING ADDITIONAL INCOME UNDER VARIOUS HEADS. 6. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND FIND NO REASONS TO INTERFERE WITH THE SAME. THE CIT(A) HAS ELABORATELY DISCUSSED THE POINTS RAISED BY THE ASSESSEE AND HAS NOT FOUND ANY MERIT IN THE SAME. THE CIT(A) HAS NOTED THAT THE ADDITION OF RS.24,99,000/ - IS BASED ON THE ADDITIONAL ITA NO.2527/PN/2012 INCOME DECLARED BY THE ASSESSEE IN THE COURSE OF SU RVEY. IT IS ALSO NOTED BY THE CIT(A) THAT THERE IS NO RETRACTION MADE BY THE ASSESSEE UPTO THE DATE OF COMPLETION OF ASSESSMENT. THEREFORE, THE CIT(A) HA S NOTICED THAT THE STAND OF THE ASSESSEE TO RESIST THE ADDITION IS UNJUSTIFIED INASMUCH AS IT IS BASED ON THE DECLARATION OF THE ASSESSEE IN THE CONTEXT OF THE I NCRIMINATING DOCUMENTS/DIARIES FOUND DURING THE COURSE OF SURVEY . ALL THE AFORESAID FINDINGS OF THE CIT(A) ARE UN-REBUTTED. EVEN THE A TTEMPT MADE BY THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT OF RS. 24,99,000/- HAS ALSO NOT BEEN ACCEPTED BY THE CIT(A) IN PARA 7 OF HIS ORDER, WHICH READS AS UNDER :- 7. GROUND NO.5 IS THAT THE SOURCE OF INVESTMENT OF RS.24,99,000/- IS AVAILABLE WITH THE APPELLANT AND HENCE THE ADDIT ION IS NOT JUSTIFIED. BEFORE ME, THE APPELLANT HAS FILED WRITTEN SUBMISSION ON 2 8/08/2012 CLAIMING THE SOURCE OF INVESTMENT AS UNDER - DATE OF RECEIPT AMOUNT OF RECEIPT RS. CLAIM OF THE APPELLANT 08/01/2009 16,75,000 THE APPELLANT HAS RECEIVED ADVANCE OF RS.16.75 LAKH S AS PER AGREEMENT DATED 08/01/2009 IN RESPECT OF SAL E O F LAND AT SURVEY NO.190 FOR RS.25,00,000/- . THE SAID AGREEMENT WAS CANCELLED ON 10/03/2009 AND THE EARNE ST MONEY WAS REPAID. 05/01/2009 2,90,000 THE APPELLANT HAS RECEIVED ADVANCE OF RS.2.90 LAKHS AS PER AGREEMENT DATED 05/01/2009 IN RESPECT OF SALE O F PL OT NO.15, SURVEY NO.159 AT OSMANABAD FOR CONSIDERATION OF RS.4,90,000/- . THE SAID AGREEMENT WAS CANCELLED ON 23/03/2009 AND THE EARNEST MONEY WAS REPAID. 09/03/2009 1,50,000 THE APPELLANT HAS PAID ADVANCE OF RS.1.50 LAKHS AS EARNEST MONEY ON 04/02/2009 WH ICH HAS BEEN RECEIVED BACK ON 09/03/2009 AS DUE TO FINANCIAL DIFFICULTIES THE ASSESSEE HAS CANCELLED THE TRANSACTION OF PROPOSED PURCHASE OF PLOT. F.Y.2008-09 4,25,000 THE AMOUNT RECEIVED BY THE APPELLANT AS ADVANCE FRO M HIS FATHER. TOTAL 25,40,000 FROM THE ABOVE SUBMISSION OF THE APPELLANT IT HAS B EEN NOTICED THAT THE APPELLANT HAS CLAIMED THAT HE HAS RECEIVED BACK RS.1,50,000/- ON 09/03/2009 WHEREAS THE SURVEY ACTION HAS BEEN CONDU CTED ON 21/02/2009. FURTHER, THE ABOVE SOURCE CLAIMED BY THE APPELLANT IS NOT SUPPORTED BY ANY EVIDENCE. THE APPELLANT HAS NOT FILED ANY SUCH EVID ENCE EITHER IN THE ASSESSMENT PROCEEDINGS OR AT THE APPELLATE STAGE. T HE APPELLANT HAS NOT MENTIONED ANYTHING ABOUT THE ABOVE MENTIONED SOURCE DURING THE COURSE OF SURVEY ACTION IN THE STATEMENT RECORDED BY SURVEY P ARTY ON OATH. THE APPELLANT OR HIS AR HAS NOT FILED ANY RETRACTION LE TTER CLAIMING THE ABOVE SOURCE OF INCOME AFTER SURVEY ACTION. THE APPELLANT 'S CLAIM THAT HE HAS ENTERED INTO AGREEMENT TO SALE THE PROPERTY AND REC EIVED ADVANCE AND ON LATER DATE THE DEALS ARE CANCELLED APPEARS TO BE NO T CONVINCING AND IMPROBABLE. FURTHER, THE APPELLANT HAS NOT EXPLAINE D SOURCE OF REFUND OF SO CALLED ADVANCES CLAIMED TO HAVE BEEN RECEIVED. IN V IEW OF THE ABOVE FACTS, ITA NO.2527/PN/2012 THE ABOVE CLAIM OF THE APPELLANT IS AFTERTHOUGHT AN D WITHOUT ANY EVIDENCE. IN VIEW OF THE ABOVE FACTS AND DISCUSSION, I AM OF THE CONSIDERED VIEW THAT THE INVESTMENT MADE BY THE APPELLANT IS NOT SUPPORTED B Y ANY SOURCE AND THE SAME IS UNEXPLAINED. THE A.O. IS, THEREFORE, JUSTIF IED IN MAKING ADDITION OF RS.24,99,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT , OFFERED TO TAX BY THE APPELLANT AS ADDITIONAL INCOME IN VIEW OF INCRIMINA TING MATERIAL FOUND DURING THE COURSE OF SURVEY ACTION IN THE FORM OF DOCUMENT S AND DIARIES. THE ADDITION OF RS.24.99,000/- IS, THEREFORE, CONFIRMED. GROUND NO.5 STANDS DISMISSED. 7. IN VIEW OF THE AFORESAID DISCUSSION OF THE CIT(A ), WE FIND THERE IS NO JUSTIFIABLE REASON TO INTERFERE WITH THE SAME. THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND ASSESSEE FAILS ON THIS ASPECT ALSO. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER, 2014. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 26 TH NOVEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), AURANGABAD; 4) THE CIT, AURANGABAD; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE