Shri Parag Mohata, Ahmedabad V. The Income Tax Officer, Ward-1(3)(4), Ahmedabad

ITA 3198/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6343 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 09-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Keywords: Unexplained expenditure
• Section: 69C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMB ER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO. 3198/AHD/2015 (ASSESSMENT YEAR : 2012-13) SHRI PARAG MOHATA 711, GOLDEN TRIANGLE, STADIUM ROAD, NAVJIVAN, AHMEDABAD 380014 APPELLANT VS. ITO, WARD 1(3)(4), AHMEDABAD RESPONDENT PAN: AAZPM1736A / BY ASSESSEE : SHRI PARIN SHAH, A.R. / BY REVENUE : SHRI ANTONY PARIATH, SR. D.R. /DATE OF HEARING : 14.11.2017 /DATE OF PRONOUNCEMENT : 05.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13, ARISES AGAINST THE CIT(A)-10, AHMEDABADS ORDER DATED 16.09.2015, IN C ASE NO. CIT(A)- 10/ITO.WD/1(3)/708/14-15, PARTLY UPHOLDING ASSESSI NG OFFICERS ACTION MAKING SECTION 69C UNEXPLAINED EXPENDITURE ADDITION OF RS.26,22,690/- TO RS. 6,22,690/-, IN PROCEEDINGS U/S. 143(3) R.W.S. 1 47 OF THE INCOME TAX ACT, 1961, HEREINAFTER THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO. 3198/AHD/2015 (SHRI PARAG MOHATA VS. ITO) A.Y. 2012-13 - 2 - 2. WE NOTICE AT THE OUTSET THAT THE CIT(A)S DETAIL ED FINDINGS UNDER CHALLENGE DISCUSS THE ABOVE ISSUE AT LENGTH AS FOLL OWS: 4.4 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT .OR DER AND THE SUBMISSION FILED BY THE APPELLANT. THE SEARCH PROCEEDING WAS CONDUCT ED AT THE PREMISES OF M/S. INDIA GREEN REALTY PVT. LTD AND BOOKING REGISTER FO R PLOTS SOLD AT NALSAROVAR ROAD, VILLAGE: ZAMP WAS FOUND WHICH SUGGESTS THAT A PPELLANT HAS MADE CASH PAYMENT OF RS. 26,2.2,690 FOR PLOT PURCHASED IN ABO VE REFERRED SCHEME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, APPELLANT HAS SUBMITTED ALLOTMENT LETTER AND NO DUE CERTIFICATE DATED 19TH JULY 2011 AND ASS ESSING OFFICER OBSERVED THAT SAIE DEED WAS NOT REGISTERED IN THE NAME OF APPELLA NT ON SUCH DATE. THE ASSESSING OFFICER HAS STATED THAT DURING THE COURSE OF SEARCH AT IGRPL, DIRECTOR HAS CONFIRMED THAT CASH PAYMENT WAS RECEIVED FROM APPEL LANT AND AS APPELLANT HAS NOT PROVED SOURCE OF CASH PAYMENT OF RS. 26,22,690, SUCH AMOUNT IS REQUIRED TO BE TAXED AS UNEXPLAINED CASH UNDER SECTION 69C OF T HE ACT. ON THE OTHER HAND, APPELLANT HAS ARGUED THAT IT HAS PURCHASED THE ABOV E PLOT FOR RS. 5,58,000 AND NO ALLEGED CASH PAYMENT WAS MADE TO SUCH PARTY. WITH R EFERENCE TO BOOKING REGISTER REFERRED BY ASSESSING OFFICER, APPELLANT HAS ARGUED THAT SUCH REGISTER WAS NOT PROVIDED TO APPELLANT HENCE SAME CANNOT BE RELIED U PON, IT WAS ALSO ARGUED BY APPELLANT THAT IT HAS CALLED FOR CROSS EXAMINATION OF DIRECTOR OF SGRPL ON 20TH JANUARY, 2015 AND 28TH JANUARY, 2015 BUT ON THE DAT E OF SUCH CROSS EXAMINATION, DIRECTOR OF SAID COMPANY HAD NOT APPEARED BEFORE TH E ASSESSING OFFICER HENCE STATEMENT OF DIRECTOR HAS NO CREDENCE ARID SAME CAN NOT BE RELIED UPON. THUS, APPELLANT HAS ARGUED THAT STATEMENT OF THIRD PARTY WITHOUT BRINGING ANY EVIDENCES OF ACTUAL CASH PAYMENT CANNOT BE RELIED UPON MORE P ARTICULARLY WHEN SUCH STATEMENT WAS NOT PROVIDED TO APPELLANT IN SPITE OF SPECIFIC REQUEST MADE BY IT AS WELL AS NO CROSS-EXAMINATION WAS PROVIDED HENCE ENT IRE ADDITION CANNOT BE MADE. IN ALTERNATE SUBMISSION, APPELLANT HAS ARGUED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT HAS SUBMITTED ALLOTMENT L ETTER AS WELL AS NO DUE CERTIFICATE DATED 19TH JULY, 2011 HENCE ASSESSING O FFICER IS NOT JUSTIFIED IN MAKING ADDITION FOR ALLEGED CASH PAYMENT REFLECTED IN BOOK ING REGISTER WHICH BEARS DATE SUBSEQUENT TO 19TH JULY, 2011. 4.5 ON CAREFUL CONSIDERATION OF ENTIRE FACTS, IT IS OBSERVED THAT ASSESSING OFFICER HAS PROCEEDED TO MAKE ENTIRE ADDITION BASED UPON BOOKING REGISTER FOUND DURING THE COURSE OF SEARCH AT IGRPL. THE ASSESSING OFFICER HAS OBSERVED THAT APPELLANT HAS MADE ALLEGED CASH PAYMENT OF RS. 26,2 2,690 FOR PURCHASE OF PLOT IN ABOVE REFERRED SCHEME AND PAYMENT OF RS. 50,000 WAS MADE ON 5TH APRIL, 2011, RS. 5,72,600 ON 19TH JULY, 2011, RS. 5,72,600 ON 8T H SEPTEMBER, 2011 AND RS. 14,27,400 ON 25TH SEPTEMBER, 2011. DURING THE COURS E OF ASSESSMENT PROCEEDINGS, APPELLANT HAS ASKED ASSESSING OFFICER TO PROVIDE BOOKING REGISTER, STATEMENT OF THE DIRECTOR OF IGRPL, WHEREIN HE HAS ADMITTED THAT CASH PAYMENT IS RECEIVED FROM APPELLANT AND CROSS-EXAMINATION OF SU CH DIRECTOR. THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS SILENT ON ABOVE REFERRED OBSERVATION AND SUBMISSION OF THE APPELLANT. CONSIDERING THESE FACT S, THE OBSERVATION MADE BY ASSESSING OFFICER CANNOT BE ACCEPTED IN ITS ENTIRET Y AS ALLEGED CASH PAYMENT REFLECTED IN BOOKING REGISTER IS AGAINST THE PLOT B OOKED BY APPELLANT. THE DETAILS SUBMITTED BY APPELLANT DURING THE COURSE OF ASSESSM ENT PROCEEDINGS AS WELL AS IN ITA NO. 3198/AHD/2015 (SHRI PARAG MOHATA VS. ITO) A.Y. 2012-13 - 3 - APPELLATE PROCEEDINGS CLEARLY SUGGESTS THAT IGRPL H AS ISSUED ALLOTMENT LETTER ON 19 TH JULY, 2011 AND ON VERY SAME DATE,-IT HAS ISSUED NO DUE CERTIFICATE-TO APPELLANT, WHICH CLEARLY MEANS THAT PAYMENT IS NOT MADE SUBSEQUENT TO 19TH JULY, 2011. IT IS OBSERVED THAT WHEN ASSESSING OFFICER IS HEAVILY RELYING UPON BOOKING REGISTER, STATEMENT OF DIRECTOR OF IGRPL, HE CANNOT IGNORE NO DUE CERTIFICATE AS WELL AS ALLOTMENT LETTER ISSUED BY VERY SAME SELLER . BOTH THE EVIDENCES WERE FILED WITH ASSESSING OFFICER AND SAME WERE NOT FOUND TO B E INCORRECT OR NON-GENUINE BY ASSESSING OFFICER. CONSIDERING THESE FACTS, CASH P AYMENT REFLECTED IN BOOKING REGISTER SUBSEQUENT TO 19TH JULY, 2011 AS REFERRED HEREIN ABOVE, CANNOT BE HELD AS CASH PAYMENT MADE BY APPELLANT TO SAID COMPANY AS N O INDEPENDENT EVIDENCES WERE BROUGHT ON RECORD BY ASSESSING OFFICER. FROM T HE DETAILS OF ALLEGED CASH PAYMENT MENTIONED IN ASSESSMENT ORDER AND REFERRED HEREIN ABOVE, IT IS OBSERVED THAT PAYMENT OF RS.5,72,600 MADE ON 8TH SEPTEMBER, 2011 AND RS. 14,27,400 ON 25TH SEPTEMBER, 2011 CANNOT BE CONSIDERED AS CASH P AYMENT MADE BY APPELLANT HENCE AGGREGATE AMOUNT OF RS. 20,00,000 CANNOT BE H ELD AS UNACCOUNTED CASH PAYMENT IN THE HANDS OF APPELLANT. IN THE RESULT, A DDITION MADE BY ASSESSING OFFICER FOR RS, 26,22,690 IS RESTRICTED TO RS. 6,22 ,690. THE APPELLANT GETS RELIEF OF RS. 20,00,000. THIS GROUND OF APPEAL IS PARTLY ALLO WED. 3. HEARD BOTH THE PARTIES. CASE FILE PERUSED. THER E IS NO DISPUTE THAT THE CIT(A) HAS ALREADY GRANTED SUFFICIENT RELIEF TO THE ASSESSEE MAINLY ON THE GROUND THAT THE REMAINING ALLEGED ON MONEY PAYMENT OF RS.20LACS COULD NOT HAVE BEEN MADE AFTER COMPLETION OF THE RELEVANT TRA NSACTION. MR. PARIN SHAH VEHEMENTLY CONTENDS THAT THERE IS NO EVIDENCE IN TH E CASE RECORDS OR SEARCH DOCUMENTS INDICATING THE ASSESSEE TO HAVE PAID THE ON MONEY IN QUESTION. HE HIGHLIGHTS THE FACT THAT THE ASSESSEE COULD NOT EXAMINE THE SEARCHED ASSESSEE AS WELL (SUPRA). WE FIND NO SUBSTANCE IN EITHER OF THE TWO CONDITIONS. IT IS COME ON RECORD THAT THE IMPUGNED REMAINING ADDITION IS BASED ON SEIZED RECORD DURING SEARCH. WE QUOTE THI S TRIBUNALS THIRD MEMBER DECISION IN MRS. MALINI RELE VS. ITO (1994) 49 ITD 43 (AHD) THAT SUCH AN INFERENCE OF ON MONEY IS BASED ON PREPONDER ANCE OF PROBABILITY. WE REPEAT THAT THE IMPUGNED ADDITION IS BASED ON TH E ABOVE EVIDENCE FOUND DURING SEARCH. WE ARE NOT CONVINCED WITH CROSS EXA MINATION PLEA AS WELL AS REMITTING THE ISSUE BACK TO THE ASSESSING OFFICER F OR SUCH AN OPPORTUNITY WOULD MEAN THAT THE ENTIRE ISSUE HAS TO BE RE-EXAMI NED. THE ASSESSEE DOES NOT AGREE TO THE SAME. BE THAT AS IT MAY, THE CIT( A) HAS ADJUDICATED THE ITA NO. 3198/AHD/2015 (SHRI PARAG MOHATA VS. ITO) A.Y. 2012-13 - 4 - IMPUGNED ISSUE IN DETAIL WHILST GRANTING SUBSTANTIV E RELIEF TO ASSESSEE. WE FIND NO REASON TO ADOPT A DIFFERENT APPROACH IN GIV EN FACTS OF THE CASE. THE ASSESSEES SOLE SUBSTANTIVE GROUND IS REJECTED. 4. THIS ASSESSEES APPEAL IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF JANUARY, 2018.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD: DATED 05/01/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 6 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0