Sh. Suresh Chand Sharma, Firozabad V. Dy.C.I.T., Range-5, Firozabad

ITA 266/AGR/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94113 (ITAT-AGRA)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH KUMAR
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Search and seizure; Validity of assessment; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SH RI G.C. GUPTA, VICE PRES ID ENT AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO S . 260 TO 266/A G RA / 201 5 ASSESSMENT YEAR S : 2004 - 05 TO 20 10 - 11 SHRI S URESH CHAND SHARMA , VS. DY. COMMISSIONE R OF INC OME TAX , 29 - C, CHURCH COMPOUND, RANGE - 5, FIROZABAD. SHI K OHABAD. (PAN DXPPS 3556 G ) . (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI MAHESH AGARWAL, C.A. RE SPONDENT BY : S HRI ANIRUDH KUMAR, CIT (D.R.) DATE OF HEARING : 2 3 .07. 201 5 DATE OF PRONOUNCEMENT : 12.08 .2015 ORDER PER INTURI RAMA RAO , ACCOUNTANT MEMBER: TH ESE ARE ALL APPEALS FILED BY THE APPELLANT AGAINST THE CONSOLIDATED ORDER OF LD. CIT(A) - II , AGR A DATED 2 3.03.2015 FOR THE A.Y S . 200 4 - 05 TO 2010 - 11 . 2. SINCE IDENTICAL ISSUES ARE INVOLVED IN THESE APPEALS, WE DISPOSE OF THESE APPEALS BY THIS COMMON ORDER , FOR THE SAKE OF CONVENIENCE. ITA NOS.260 TO 266/AGRA/2015 A.YS. 2004 - 05 TO 2010 - 11 2 3. SINCE COMMON GROUNDS HAVE BEEN RAISED BY THE APPELLANT IN ALL THESE APPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE, THE GROUNDS RAISED IN ITA NO.260/AGRA/2015 FOR A.Y. 2004 - 05 ARE REPRODUCED AS UNDER : - 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AUTHORITIES HAVE ERRED IN CONFIRMING THE ADDITIONS OF RS.50,000 / - 2. THAT THE LD. AUTHORITIES HAVE BEEN UNJUSTIFIABLE IN UPHOLDING THE ADDITION OF RS.35,000/ - ON ACCOUNT OF ADVANCES GIVEN TO LABOUR DECLARED BY THE APPELLANT IN HIS PERSONAL BALANCE SHEET. AUTHORITIES FAILED TO APPRECIATE THE FAC T THAT APPELLANT FULLY DISCLOSED THE CASH FLOW STATEMENT CLEARLY STATING THE DETAILS OF ADVANCE. LD. AUTHORITIES F AILED TO PLACE ANY MATERIAL OR INFORMATION ON RECORD BEFORE DOING SO BUT MERELY ON SELF ASSUMPTION. 3. THAT THE LD. AUTHORITIES HAVE ERRED BOTH IN FACTS AND IN LA W UPHOLDING THE ADDITION OF RS. 15,000/ - ON ADHOC BASIS I.E., 50% OF TOTAL AGRICULTURAL INCOME DECLARED RS.30,000/ - BY THE APPELLANT . AUTHORITIES IGNORED THE MATERIAL FACTS AND EVIDENCES PLACED ON RECORD BY T HE APPELLANT VIZ. DETAILS OF AGRICULTURAL LAND A ND NATURE OF HARVE S T GROWN ETC., AND FAILED TO PLA CE ANY MATERIAL OR INFORMATION TO THE CONTRARY FOR ASSESSEE S REBUTTAL BEFORE MAKING THE IMPUGNED ADDITION , BUT MERELY ON SUSPICION AND SELF ASSUMPTIONS AND CONCLUSIONS. 4. THAT LD. AUTHORITIES FAILED TO A PPRECIATE T HAT THE APPARENT WAS NOT REAL AND THE BURDEN ON REVENUE T O ESTABLISH THE FACT AND BASIS OF CONTENTION COULD NOT BE DISCHARGED IN ABSENCE OF ANY POSITIVE AND COGENT MATERIAL AND HENCE NO ADVERSE INFERENCE COULD BE DRAWN AGAINST THE ASSESSEE. 5. THAT THE ADDITIONS HAVE BEEN MADE ON MERE SUSPICION. THIS IS A WELL - ESTABLISHED LAW THAT SUSPICIONS HOWSOEVER STRONG CANNOT TAKE PLACE OF EVIDENCE AND ADVERSE INFERENCE CANNOT BE T AKEN AGAINST THE ASSESSEE MERELY ON THE BASIS OF SUSPICIONS . 6. THAT THE ADDITIONS ARE MADE CONTRAVENING THE STATUTE PROVISIONS AND WITHOUT MAKING DUE DISCLOSURES OF THE SAME. ITA NOS.260 TO 266/AGRA/2015 A.YS. 2004 - 05 TO 2010 - 11 3 7. THAT THE APPELLANT CRAVES TO BE ALLOWED TO ADD, A MEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. IT IS , THEREFORE, PRAYED T HAT THE ADDITIONS MADE BE DIRECTED TO BE DELETED AND THE APPEAL BE ALLOWED AS PRAYED ABOVE. 4. THE APPELLANT HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE VERY VALIDITY OF ASSESSMENT MADE UNDER SECTION 153C OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER). THEREFORE , WE SHALL FIRST DEAL WITH T HIS GROUND OF APPEAL SINCE IT GOES TO THE VERY ROO T OF THE MA TT ER. THE LD . COUNSEL FOR THE ASSESSEE CONTENDED THAT THE IMPUGNED ADDITIONS WERE MADE WITHOUT ANY REFERENCE TO THE INCRIMINATING MATERIAL SEIZED A S A RESULT OF SEARCH AND SEIZURE OPERATION CONDUCTED IN THE HAND S OF THE SON OF THE ASSESSEE. THEREFORE, THE ASSESSMENTS MADE SHOULD BE DECLARED AS NULL AND VOID. 5. THE LD . CIT DEPARTMENTAL REPREHENSIVE FAIRLY ADMITTED THAT THE A D DITIONS WERE MADE WITHOUT REFERRING TO ANY SEIZ ED MATERIAL. THEREFORE, NOW WE PROC E ED TO ADJUDICATE THIS GROUND , SINCE IT GOES TO THE VERY ROOT OF THE MAT T ER. IT IS TRITE LAW THAT THE ADDITIONS MADE IN RESPECT OF THE ASSESSMENT M A DE UNDER SECTION 153C OF THE ACT CAN BE ONLY BASED ON THE SEIZED MATERI AL AND WE FIND THAT THERE IS NO WHISPER TO THE SEIZED MATERIAL AND , THEREFORE , WE QUASH ALL THE ASSESSMENTS MADE IN TH ESE CASE S . HENCE , APPEALS FILED BY THE APPELLANT ARE ALLOWED. ITA NOS.260 TO 266/AGRA/2015 A.YS. 2004 - 05 TO 2010 - 11 4 6. IN RESPECT OF ITA NO.263/AGRA/2015, THE ADDITION OF RS.10,04,320/ - HAS BEEN MADE ON THE DOCUMENTS SEIZED OF AGREEMENT TO SELL WHICH IS SIGNED ONLY BY THE SELLER OF THE PROPERTY AND NOT BY THE ASSESSEE. IT IS UNDISPUTED FACT THAT THIS AGREEMENT TO SELL WAS NOT SIGNED BY THE ASSESSEE AND NOT EVEN REGISTERED . THEREFORE , IT CA NNOT BE INFERRED THAT THE ASSESSEE HAS PAID MORE CONSIDER ATION OF RS.10,04,320/ - AND THE ADDITION CANNOT BE SUSTAINED IN THE EYE OF LAW. 7. IN THE RESULT , ALL THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT O N 1 2.08.2015) SD/ - SD/ - ( G.C. GUPTA ) ( INTURI RAMA RAO ) VICE PRESIDENT ACC OUNTANT MEMBER DATE: 12 TH A UGUST , 201 5 PBN/* COPY OF THE ORDER FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R. , ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA