Shri Rajeshsinh Prahladsingh Patel L/h of late Prahladsingh Patel, Ahmedabad V. The Income tax Officer,Ward-11(3), Ahmedabad

ITA 2584/AHD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50490 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-08-2011
• Assessment Year: 1989-1990
• Appeal Filed On: 14-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINOD TANWANI
• Assessee Lawyers: SURESH GANDHI
• Keywords: Unexplained investment; Income from undisclosed sources; Salary income; Opportunity of being heard; Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M .) I.T.A. NO. 2584/AHD./2009 ASSESSMENT YEAR : 2006-2007 SHRI RAJESHSINH PRAHLADSINGH PATEL, ABAD -VS- ITO, WARD-11(3), AHMEDABAD (PAN : ACVPP 5395G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURESH GANDHI, A .R. RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. DATE OF HEARING : 17.08.2011 DATE OF PRONOUNCEMENT : 17.08.2011 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 30.06.2009 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XV I, AHMEDABAD CONFIRMING THE ADDITION OF RS.1,26,000/- WHICH WAS MADE BY THE AO IN RESPECT OF UNACCOUNTED INCOME ADVANCED TO JAGANNATH TEMPLE TRUST FOR THE ASSESSM ENT YEAR 2006-2007. 2. BRIEFLY STATED, THE FACTS ARE THAT I.T.A.T. VIDE ITS ORDER DATED 22.11.2005 SET ASIDE THE ISSUE OF ADDITION OF RS.1,26,000/-, INVESTED IN LAND AT JAGANNATH TEMPLE TRUST, TO THE FILE OF THE AO WITH THE FOLLOWING DIRECTION. ' THE SUBMISSION OF THE LD DEPTT REPRESENTATIVE IS TH AT THE CIT(A) HAS REDUCED THE ADDITION ON THE BASIS OF ASSESSMENT PROCEEDINGS FOR A.Y. 1990-91. HOWEVER IN THAT ASSESSMENT YEAR ALSO THE QUANTUM WHICH WAS E XPLAINED WAS NOT ADDED AND ONLY UNEXPLAINED INVESTMENT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD ADV ANCED THE SUM OF RS. 1,26,000/- TO JAGANNATH TEMPLE TRUST ON 13-1-1989 AND, THEREFO RE, IT IS THE PRIMARY RESPONSIBILITY OF THE ASSESSEE TO EXPLAIN THE SOURC E OF THE SAID ADVANCE OF RS. 2 ITA NO. 2584-AHD-2009 1,26,000/-. THE ASSESSEE HAS NOT FURNISHED THE PART ICULARS OF AMOUNTS OBTAINED FROM CO-OWNERS AND THEIR COPIES OF ACCOUNTS AND REL EVANT EVIDENCE. IN THESE CIRCUMSTANCES, THE CIT(A), IN MY OPINION, MAY NOT B E JUSTIFIED IN RESTRICTING THE ADDITION TO 1/7 TH OF THE ADDITION OF RS. 1,26,000/-. IN VIEW OF THE ABOVE, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER BEFORE WHOM, AS ASSURED BY LD. COUNSEL OF T HE ASSESSEE, THE ASSESSEE WOULD PRODUCE ALL THE RELEVANT EVIDENCE IN RESPECT OF THE ADVANCE MADE BY THE ASSESSEE FOR THE PURCHASE OF PLOT ALONGWITH DETAILS OF SOURCES AVAILABLE WITH THE SIX OTHER CO- OWNERS, THEIR COPIES OF ACCOUNT, ETC. IN SUPPORT OF THE CO-OWNERSHIP IN THE PLOT AND CONTRIBUTION BY THEM. IF THE ASSESS EE, HOWEVER, IS NOT IN A POSITION TO EXPLAIN THE CCNTRIBUTION BY THE OTHER SIX CO-OWN ERS END/OR THEIR CO-OWNERSHIP IN THE PLOT, THE ORDER OF THE ASSESSING OFFICER IS FUL LY JUSTIFIED AND NO INTERFERENCE IS CALLED FOR. THE ASSESSING OFFICER IS, ACCORDINGLY, DIRECTED TO GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THIS ISSUE A FRESH AFTER FAKING INFO CONSIDERATION THE EXPLANATION OF THE CONTRIBUTION A ND THE CO-OWNERSHIP OF THE OTHER ALLEGED CO-OWNERS.' 2.1 IN PURSUANCE OF THE AFORESAID DIRECTION, THE AO DEALT THE ISSUE AS UNDER: 3) THE ASSESSEE HAD ASSURED THE ITAT REGARDING FI LING OF COPY OF CONFIRMATIONS COPY, DETAILS OF ACCOUNTS, AND RELEVANT EVIDENCES REGARDING PAYMENTS RECEIVED FROM THE FOLLOWING SIX CO-OWNERS DETAILED AS UNDER: '. [1] SHRI RAJESHSINQH P. PATEL [2] SHRI JOGENDRASINGH P. PATEL [3] SHRI BADRINSING GURUJITSING RAJPUT [4] SHRI RAMESHWORLAL CHHOTALAL SHARMA [5] SHRI FULSINGH UDAYSINGH GURJAR [6] SHRI JANAKSINGH RAMKARANSINGH GURJAR THE ASSESSEE HAS STATED THAT PRAHLADSINGH R PATEL A ND SHRI BADRISINGH G RAJPUT HAS ALREADY EXPIRED AND THE DEATH CERTIFICATES HAVE BEEN SUBMITTED. THE VERIFICATIONS AS PER THE DIRECTIONS OF THE HON'BLE ITAT HAVE BEEN DULY CARRIED OUT ON THE BASIS OF SUBMISSIONS MADE AND THE EVIDENCES SUBMITTED. THE DETAILS OF THE SAME ARE LISTED BELOW PARAWISE: [3.1] SHRI PRAHLADSINQH B. PATEL ; THE ENTIRE TRANSACTIONS ORE CONDUCTED BY SHRI P. B. PATEL. THE SUBMISSIONS DURING THE APPELLATE AS WELL AS THE ASSESSMENT PROC EEDINGS ARE SUBMITTED BY SHRI R. P. PATEL. THE TOTAL CONTRIBUTION STATED TO HAVE BEEN MADE BY HIM IS RS. 18,000/-. THE ASSESSING OFFICER DISALLOWED T HE SAME SINCE THE ASSESSEE 3 ITA NO. 2584-AHD-2009 FAILED TO FURNISH THE PARTICULARS ASKED FOR BY THE ASSESSING OFFICER AS DISCUSSED IN PARA - 2 OF THE ORDER DTD. 29-03-1996. THE ASSESSEE WAS REQUESTED TO PRODUCE THE COPY OF ACCOUNT OF JAGANNN ATH TEMPLE TRUST AND WAS ASKED TO EXPLAIN THE SOURCE OF THE DEPOSITS WIT H THE TRUST. BUT HE DID NOT FILE COPY OF ACCOUNT WITH JAGANNATH TEMPLE TRUST NO R ANY SUBMISSIONS WERE MADE DURING ASSESSMENT PROCEEDINGS. THE ASSESS ING OFFICER RELIED ON THE DISCUSSION MADE IN THE ASSESSMENT ORDER FOR ASS ESSMENT YEAR 1990-91 DTD. 10-03-1993 VIDE PARA 7-PAGE NO.15 OF THE ORDER THE ASSESSING OFFICER CONCLUDED AS FOLLOWS: 'THE ASSESSEE HAS NOT FURNISHED THE PARTICULARS ASK ED FOR. HE HAS ALSO NOT FURNISH THE PARTICULARS OF AMOUNT OBTAINED FROM THE CO-OWNERS AND THEIR COPY OF ACCOUNTS AND THE RELEVANT EVIDENCES, THOUGH HE WAS SPECIFICALLY ASKED FOR IN THIS REGARD. I THEREFORE, HOLD THAT ALL THE AMOUNT BELONGS TO ASSESSEE HIMSELF AND HE HAS MADE THE PAY MENTS OUT OF HIS UNACCOUNTED INCOME NOT DISCLOSED TO THE DEPARTMENT. ' THE HON'BLE ITAT WHILE SETTING ASIDE THE ORDER HAS DIRECTED THE ASSESSING OFFICER TO GRANT RELIEF IF THE DOCUMENTS NOT PRODUC ED BEFORE THE ASSESSING OFFICER ARE PRODUCED FOR VERIFICATION NOW. IN CASE OF SHRI PRAHLADSINGH B. PATEL, THE ASSESSEE HAS SUBMITTED THE FOLLOWING DET AILS: (I) DEATH CERTIFICATE DTD. 27-01-2003 (II) LETTER FROM THE L/H SHRI R. P. PATEL DTD. 25 -11 -2006 (III) THE L/H STATED THAT SHRI P. B. PATEL HAD INCO ME FROM RENT, BUSINESS AND AGRICULTURE, [3.1(A) HOWEVER, THE ASSESSING OFFICER DURING THE A SSESSMENT PROCEEDINGS HAD CALLED FOR THE CONFIRMATIONS AND RELEVANT EVIDE NCES. THE ASSESSEE HAS NOT FILED THE CONFIRMATION SINCE HE IS NO MORE. HOW EVER, THE LEGAL HEIR HAS NOT BEEN ABLE TO FILE ANY EVIDENCES SHOWING THE SOU RCE OF FUNDS OR MAKING THE CONTRIBUTION. MOREOVER, THE GENUINENESS OF THE TRANSACTIONS STILL REMAINS UNPROVED. IN VIEW OF THE SAME, THE CONTENTI ON OF THE ASSESSEE IS NOT ACCEPTED. [3.2] SHRI RATESHSINGH P. PATD. AS STATED ABOVE IN PARA - 3.1, THE HON'BLE ITAT WHI LE SETTING ASIDE THE ORDER HAS DIRECTED THE ASSESSING OFFICER TO GRANT R ELIEF IF THE DOCUMENTS NOT PRODUCED BEFORE THE ASSESSING OFFICER ARE PRODUCED FOR VERIFICATION NOW. IN CASE OF SHRI RATESHSINGH P. PATEL, THE ASSESSEE HAS SUBMITTED THE FOLLOWING DETAILS : (I) LETTER FROM THE SHRI R. P. PATEL DTD. 25-11-2006 4 ITA NO. 2584-AHD-2009 (II) THE ASSESSEE STATED THAT HE HAS INCOME FROM RENT, B USINESS AND AGRICULTURE. [3.2(A)] HOWEVER, AS STATED VIDE REASONS ABOVE IN PARA 3.1(A ) THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS HAD CALLE D FOR THE CONFIRMATIONS AND RELEVANT EVIDENCES. THE ASSESSEE HAS NOT BEEN A BLE TO FILE ANY EVIDENCES SHOWING THE SOURCE OF FUNDS OR MAKING THE CONTRIBUTION. MOREOVER, THE GENUINENESS OF THE TRANSACTIONS STILL REMAINS UNPROVED. IN VIEW OF THE SAME, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED. [3.3] SHRI BADRISINGH GURUJITSINGH RAJPUT AS STATED ABOVE IN PARA - 3.1, THE HON'BLE ITAT WHI LE SETTING ASIDE THE ORDER HAS DIRECTED THE ASSESSING OFFICER TO GRANT R ELIEF IF THE DOCUMENTS NOT PRODUCED BEFORE THE ASSESSING OFFICER ARE PRODUCED FOR VERIFICATION NOW. IN CASE OF SHRI BADRISINGH GURUJITSINGH THE ASSESSEE H AS SUBMITTED THE FOLLOWING DETAILS : (I) DEATH CERTIFICATE OF SHRI BADRISINGH G RAJP UT DTD. 25-02-2002 (II) CERTIFICATE FROM MAJOOR MAHAJAN SANGH DTD. 2 7-12-2006. (III) LETTER FROM THE LEGAL HEIR OF SHRI B. G. RAJ PUT. [3.3(A)] HOWEVER, AS STATED VIDE REASONS ABOVE IN P ARA 3.1(A) THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS HAD CALLED FOR THE CONFIRMATIONS AND RELEVANT EVIDENCES. THE ASSESSEE HAS NOT FILED THE CONFIRMATION SINCE HE IS NO MORE. HOWEVER, THE LEGA L HEIR HAS NOT BEEN ABLE TO FILE ANY EVIDENCES SHOWING THE SOURCE OF FUNDS O R MAKING THE CONTRIBUTION. MOREOVER, THE GENUINENESS OF THE TRAN SACTIONS STILL REMAINS UNPROVED. IN VIEW OF THE SAME, THE CONTENTION OF TH E ASSESSEE IS NOT ACCEPTED. [3.4] SHRI RAMESHWARLAL CHHOTALAL SHARMA AND SHRI J ANAKSINGH R.GURJAR: AS STATED ABOVE IN PARA - 3. 1, THE HON'BLE ITAT WH ILE SETTING ASIDE THE ORDER HAS DIRECTED THE ASSESSING OFFICER TO GRANT R ELIEF IF THE DOCUMENTS NOT PRODUCED BEFORE THE ASSESSING OFFICER ARE PRODUCED FOR VERIFICATION NOW. IN THESE CASES NO DETAILS HAVE BEEN FURNISHED. IT W ILL BE APPRECIATED FROM THE ORDER OF THE HON'BLE ITAT THAT ANY RELIEF TO BE GRANTED TO THE ASSESSEE IS STRICTLY GOVERNED BY THE EVIDENCES PRODUCED DURING THE SET-A-SIDE PROCEEDINGS BEFORE THE ASSESSING OFFICER. THE ASSES SEE HAS NOT PRODUCED ANY EVIDENCES FROM THESE CO-OWNERS. IN SUCH CIRCUMS TANCES, THE 5 ITA NO. 2584-AHD-2009 UNDERSIGNED IS BORNE TO FOLLOW THE DIRECTIONS OF TH E HON'BLE ITAT AND NOT GRANT ANY RELIEF SINCE THE TRANSACTIONS REMAINED UN PROVED. [3.4(A)] HOWEVER, AS STATED VIDE REASONS ABOVE IN PARA 3.1 ( A) THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS HAD CALLED FOR THE CONFIRMATIONS AND RELEVANT EVIDENCES. THE ASSESSEE HAS NOT FILED THE CONFIRMATION. HOWEVER, THE ASSESSEE HAS NOT BEEN AB LE TO FILE ANY EVIDENCES SHOWING THE SOURCE OF FUNDS OR MAKING THE CONTRIBUT ION. MOREOVER THE GENUINENESS OF THE TRANSACTION STILL REMAINS UNPROV ED. IN VIEW OF THE SAME, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED. [3.5] SHRI FULSINGH UDAYSINGH GURJAR AND SHRI JOGIN DERSINGH P.PATEL- AS STATED ABOVE IN PARA - 5.1. THE HON'BLE ITAT WHI LE SETTING ASIDE THE ORDER HAS DIRECTED THE ASSESSING OFFICER TO GRANT R ELIEF IF THE DOCUMENTS NOT PRODUCED BEFORE THE ASSESSING OFFICER ARE PRODUCED FOR VERIFICATION NOW. IN CASE OF SHRI F. U. GURJAR AND SHRI. P. PATEL, THESE ASSESSES HAVE SUBMITTED THE FOLLOWING DETAILS : (I) CERTIFICATE FROM MAJOOR MANOJAN SANGH DTD. 27 -12-2006. (II) LETTER STATING TO HAVE INCOME FROM SALARY. [3.5(A)] HOWEVER, AS STATED VIDE REASONS ABOVE IN PARA 3.1 A SSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS HAD CALLE D FOR THE CONFIRMATIONS AND RELEVANT EVIDENCES. THE ASSESSEE HAS NOT BEEN A BLE TO FILE ANY EVIDENCES SHOWING THE SOURCE OF FUNDS OR MAKING THE CONTRIBUTION. MOREOVER, THE GENUINENESS OF THE TRANSACTIONS STILL REMAINS UNPROVED. IN VIEW OF THE SAME, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED. 3. AGGRIEVED WITH THE AFORESAID ORDER, THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A), IN THE IMPUGNED ORDER, I N PARA 3.2, STATED THE DETAILS OF 27 OPPORTUNITIES ALLOWED TO THE ASSESSEE. IN THE IMPUG NED ORDER, THE LD. CIT(A) STATED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPE AL AND HE ACCORDINGLY CONFIRMED THE ADDITION OF RS.1,26,000/- FOR THE DETAILED REASONS GIVEN IN PARA 3.3 AND 3.4, WHICH READ AS UNDER: 3.3 THUS MORE THAN 27 OPPORTUNITIES WERE GIVEN TO THE APPELLANT BUT NO COMPLIANCE OF THE NOTICES ARE MODE. IT APPEARS THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL. THE APPELLANT VIDE ITS WRIT TEN SUBMISSION DT 8-5-2008 REPEATED THE SAME ARGUMENTS MADE BEFORE THE ASSESSI NG OFFICER. ON MERIT ALSO SINCE THE ITAT HAS GIVEN CLEAR DIRECTION TO THE APP ELLANT TO PROVE ALL THE EVIDENCE 6 ITA NO. 2584-AHD-2009 IN RESPECT OF ADVANCES MADE BY APPELLANT FOR PURCHA SE OF PLOT ALONGWITH DETAILS OF SOURCE BY OTHER CO OWNERS, THEIR COPIES OF ACCOUNTS ETC. IN SUPPORT OF THE CO- OWNERSHIP IN THE PLOT AND CONTRIBUTION BY THEM. IT WAS CLEARLY MENTIONED BY THE HON'BLE ITAT THAT 'IF THE APPELLANT, HOWEVER, IS NO T IN A POSITION TO EXPLAIN THE CONTRIBUTION BY THE OTHER SIX CO-OWNERS AND/OR THEI R CO-OWNERSHIP IN THE PLOT, THE ORDER OF THE ASSESSING OFFICER IS FULLY JUSTIFIED A ND NO INTERFERENCE IS CALLED FOR. 3.4 IN MY OPINION, THE APPELLANT HAS NOT EXPLAINE D THE SOURCE OF INVESTMENTS BY OTHER CO-OWNERS BEFORE THE ASSESSING OFFICER. IN VI EW OF THE CLEAR CUT DIRECTIONS OF HON'BLE 1TAT, I CONFIRM THE ADDITION OF RS.1,26,000 /-. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI SURESH GANDHI APPEARED AND POINTED OUT THAT IN SET ASIDE PROCEEDINGS, THE ASSE SSEE COULD NOT FURNISH ANY OTHER DETAILS AFRESH EXCEPT THE DETAILS WHICH WERE ALREADY FURNIS HED. HE ACCORDINGLY SUBMITTED THAT THE TRIBUNAL MAY THE DECIDE THE MATTER ACCORDINGLY. 6. ON THE OTHER HAND, SHRI VINOD TANWANI, APPEARING ON BEHALF OF THE REVENUE, CONTENDED THAT ITAT, IN ITS ORDER DATED 22.11.2005, WHILE REMANDING THIS ISSUE TO THE FILE OF THE AO, HAS CLEARLY DIRECTED THE ASSESSEE TO PRO VE ALL THE EVIDENCES IN RESPECT OF ADVANCES MADE FOR PURCHASE OF PLOT ALONG WITH THE D ETAILS OF SOURCES OF OTHER CO-OWNERS, COPY OF ACCOUNT, ETC. IN SUPPORT OF CO-OWNERSHIP IN THE PLOT AND THE CONTRIBUTIONS MADE BY THEM. IN THIS ORDER, THE ITAT ALSO MENTIONED IF THE APPELLANT, HOWEVER, IS NOT IN A POSITION TO EXPLAIN THE CONTRIBUTION BY THE OTHER S IX CO-OWNERS AND/OR THEIR CO- OWNERSHIP IN THE PLOT, THE ORDER OF THE ASSESSING O FFICER IS FULLY JUSTIFIED AND NO INTERFERENCE IS CALLED FOR. DESPITE SEVERAL OPPORTUNITIES GIVEN DURING THE REMA ND PROCEEDINGS, THE ASSESSEE COULD NOT EXPLAIN THE SOU RCES OF INVESTMENT OF OTHER CO-OWNERS BEFORE THE AO. THEREFORE, THE ADDITION WAS RIGHTLY MADE AND CONFIRMED BY THE LD. CIT(A), IN THE IMPUGNED ORDER. 7. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT DES PITE THE SPECIFIC DIRECTION OF THE ITAT IN ITS ORDER DATED 22.11.2005 REMANDING THE ISSUE OF A DDITION OF RS.1,26,000/- TO THE FILE OF 7 ITA NO. 2584-AHD-2009 THE AO, THE ASSESSEE COULD NOT EXPLAIN THE SOURCE O F INVESTMENT OF OTHER CO-OWNERS BEFORE THE AO. IN VIEW OF CLEAR DIRECTION OF THE TR IBUNAL IN ITS ORDER DATED 22.11.2005, I AM OF THE VIEW THAT ADDITION OF RS.1,26,000/- WAS R IGHTLY MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A), IN THE IMPUGNED ORDER. I, THEREF ORE, INCLINE TO UPHOLD THE ORDER OF THE LD. CIT(A). RESULTANTLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 .08.2011. SD/- (T.K. SHARMA) JUDICIAL MEMBER DATED : 17/08/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY` BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.