DCIT, BIKANER V. Dr. Mahesh Maheshwari, SRIGANGANAGAR

ITA 315/JODH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7809 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Document seized; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO S .314 TO 316 /JODH/201 4 (A.Y S . 200 5 - 06 , 2006 - 07 & 2009 - 10 ) DCIT, CENTRAL CIRCLE, VS. DR. MAHESH MAHESHWARI, BIKANER . 2 - A - 6, SUKHARIA NAGAR , SRIGANGANAGAR. PAN NO. ACTPM 0288 R (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI O.P. MEENA - D.R. DATE OF HEARING : 0 8 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 11 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M TH ESE THREE APPEAL S BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDER S EACH DATED 2 4 /02 /201 4 OF L D . CIT(A), BIKANER . SINCE THE ISSUE INVOLVED IN ALL THESE APPEALS IS COMMON HAVING IDEN T IC AL FACTS, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED OR DER FOR THE SAKE OF CONVENIENCE AND BREVITY . 2 2 DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE AND AN APPLICATION FOR A D JOURNM E NT DATED 07/08/2012 HAS BEEN MOVED BY THE LEARNED COUNSEL FOR THE ASSESSEE STATING THEREIN THAT THE DEPARTMENT IS SEEKING ADJOURNMENT, HOWEVER, NOTHING IS AVAILABLE ON THE RECORD TO SHOW THAT THE DEPARTMENT HA S SOUGHT ANY ADJOURNMENT, THEREFORE, THE APPLICATION MOV ED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS REJECTED AND THE APPEALS ARE DECIDED EXPARTE QUA THE ASSESSEE AFTER HE A R I NG LEARNED D.R. , OF COURSE , ON MERITS. 3. FIRST OF ALL, WE WILL DECIDE THE APPEAL IN I.T.A.NO. 314/JODH/2014 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: - A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), BIKANER HAS ERRED IN DELETING THE ADDITION OF RS. 13 , 36,177/ - RIGHTLY ASSESSED IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS AS THE INCOME ACTUALLY PERTAI NED TO THE ASSESSEE WAS ESTABLISHED BY SEIZED DOCUMENTS ANNEXURE - A - 65 (PAGE NO. 1 TO 3) B ON THE FACTS AND CIRCUMSTA N CES OF THE CASE, THE LD. CIT(A), BIKANER HAS ERRED IN DELETING THE ADDITION OF RS. 13,36,177/ - BY RELYING ON THE DECISION OF HON'BLE ITAT J ODHPUR DATED 31/05/2013 WHICH HAS NOT ATTAINED FINALITY AS THE DEPARTMENT HAS CHALLENGED THE HON'BLE ITAT DECISION BEFORE HON'BLE HIGH COURT OF RAJASTHAN. C THE APPELLANT CRAVES THE RIGHT TO AMEND, ALTER OR ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 4. FROM THE PERUSAL OF THE ABOVE G R O U NDS ITSELF, IT IS CRYSTAL CLEAR THAT THE L D. CIT(A) FOLLOWED THE DECISION OF THE ITAT JODHPUR DATED 31/05/2013, THEREFORE, IT APPEARS THAT THE APPEAL HA S BEEN FILED BY THE 3 DEPARTMENT ONLY TO KEEP THE ISSUE ALIVE, HOWE VER, NOTHING IS BROUGHT ON RECORD THAT THE DECISION FOLLOWED BY THE LD. CIT(A) HAS BEEN SET ASIDE OR REVERSED BY ANY HIGHER FORUM. ON THAT SCORE ALONE, THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE . 5. EVEN ON MERITS, APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE AS IS CLEAR FROM THE FACTS OF THIS CASE WHICH IN BRIEF ARE THAT THE ASSESSEE IS A DOCTOR BY PROFESSION WORKING AS NEUROSURGEON WITH TANTIA HOSPITAL AND ENTERED INTO A CONTRACT WITH THE ABOVE HOSPITAL TO RECEIVE 50% OF THE TOTAL RECEIPTS AS HIS SHARE OF INCOME. A SEARCH U/S. 132 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) WAS CONDUCTED IN THE PREMISES OF TANTIA HOSPITAL . THE ASSESSING OFFICER OBSERVED THAT ON THE BASIS OF INCRIMINATING DOCU MENTS FOUND DURING THE COURSE OF SEARCH, THE UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS WORKED OUT AT RS. 13,36,177/ - , BUT THE SAME DID NOT REFLECT IN THE RETURN OF INCOME. THE ASSESSING OFFICER ACCORDINGLY, MADE THE ADDITION OF TH E AFORESAID AMOUNT . 6 . BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) , WHO DELETED THE ADDITION BY OBSERVING THAT THE SAME INCOME HAS BEEN DISCLOSED IN THE HANDS OF DR. S.S. TANTIA ON SUBSTANTIVE BASIS AND THE ITAT 4 JODHPUR BENCH JODHPUR DECIDED THIS ISSUE IN I.T.A.NO. 158/JODH/2013 VIDE ORDER DATED 31/05/2013 FOR THE A.Y. 2007 - 08 BY OBSERVING THEREIN AS UNDER: - WE HAVE CONSIDERED THE ARGUMENT OF BOTH SIDES AND WE ARE OF THE OPINION THAT THERE CANNOT BE DOUBLE ADDITION IN CASE OF THE ASSESSEE, AS SUBSTANTIVE ADDITION, THE A.O. HAS CONSIDERED IN THE CASE OF DR. S.S. TANTIA. THE APPEAL OF DR. S.S. TANTIA HAS BEEN DECIDED A LSO IN WHOSE CASE; WE HAVE DISCUSSED THIS ISSUE AT LENGTH AND ACCEPTED THE APPEAL OF DR. S.S. TANTIA ON THIS GROUND THAT THE ADDITION HAS TO BE MADE IN HIS HANDS. WE, THEREFORE, DELETE THE IMPUGNED ADDITION MADE BY THE A.O. AND SUSTAINED BY THE CIT(A) AN D ALLOW THE ASSESSEE GROUND IN THIS REGARD. LD. CIT(A) BY F O LLOWING THE AFORESAID ORDER, DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. NOW THE DEPARTMENT IS IN APPEAL. 7 . LEARNED C . I . T . D.R. , ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE AFORESAID FINDINGS GIVEN BY THE LD. CIT(A) . 8 . AFTER CONSIDERING THE SUBMISSIONS OF THE LD . C . I . T . D.R. AND THE MATERIAL ON RECORD, IT IS NOTICED THAT THE SAME INCOME HAD ALREADY BEEN DIRECTED TO BE INCLUDED IN THE HANDS OF THE DR. S.S. TANTIA BY THE ITAT IN I.T.A.NO 158/JODH/2013 VIDE ORDER DATED 31/05/2013 . IT IS WELL SETTLED THAT THE SAME INCOME CANNOT BE TAXED TWICE, WE THEREFORE, DO NOT SEE 5 ANY INFIRMITY IN THE OR DER OF THE LD. CIT(A) ON THIS ISSUE AND ACCORDINGLY DO NOT SEE ANY MERIT IN THIS AP PEAL OF THE DEPARTMENT. 9 . IN I.T.A.NOS. 315 & 316/JODH/2014 FOR THE A.Y. 2006 - 07 & 2009 - 10 RESPECTIVELY , AN IDENTICAL ISSUE IS INVOLVED HAVING SIMILAR FACTS, THE ONLY DIFFERENCE IS IN THE AMOUNT, THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER IN RESPECT OF I.T.A.NO. 314/JODH/2014 SHALL APPLY MUTATIS - MUTANDIS FOR THESE TWO APPEALS ALSO . ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THESE APPEALS OF THE DEPARTMENT ALSO . 10 . IN THE RESULT, APPEAL S OF THE DEPARTMENT ARE DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 11 TH AUGUST , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .