The ACIT- 1(1), Bhopal V. Mohd. Shakeel Khan, Bhopal

ITA 326/IND/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6469 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-03-2019
• Assessment Year: 2004-2005
• Appeal Filed On: 20-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: SSH SUMIT NEMA SR ADV S S DESH
• Keywords: Search and seizure; Loose papers; Document seized; Additional evidence; Documents seized
• Section: 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS.417 TO 423/IND/2012 A.YS. 2003-04 TO 2009-10 ACIT-1(1), BHOPAL :: APPELLANT VS SIR SYED EDUCATIONAL & SOCIAL WELFARE SOCIETY, BHOPAL PAN AACTS 0888 E :: RESPONDENT ITA NO. 326/IND/2013 A.Y. 2004-05 ACIT-1(1), BHOPAL :: APPELLANT VS MOHD. SHAKEEL KHAN, BHOPAL PAN AMUPK 7601 F :: RESPONDENT REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEES BY S/SH. SUMIT NEMA, SR.ADV., S.S. DESHPANDE & GAGAN TIWARI ,ARS DATE OF HEARING 18.3.2019 DATE OF PRONOUNCEMENT 08.5.2019 O R D E R ON ADMISSION OF ADDL. EVIDENCE AND ADDL. GROUND PER SHRI KUL BHARAT, JUDICIAL MEMBER: THE ABOVE APPEALS ARE FILED BY THE REVENUE AGAINST THE DIFFERENT ORDERS OF LD. CIT(A)-RAIPUR CAMP AT BHOPAL, DATED 30.8.2012 & 09.1.2013. BY THIS ORDER, WE 2 WILL DISPOSE OFF THE APPLICATIONS FILED FOR ADMISSI ON OF ADDITIONAL EVIDENCES ON BEHALF OF THE REVENUE AND AN APPLICATION UNDER RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 (HEREINAFTER REFER RED TO AS THE APPELLATE TRIBUNAL RULES). 2. FACTS, IN BRIEF, ARE THAT ON 23.10.2018, THE LD. CIT/DR, DURING THE HEARING OF THE APPEALS, REFERRED THE SEIZED DOCUMENTS. BUT, LE ARNED COUNSEL FOR THE ASSESSEE OBJECTED TO REFERRING THESE DOCUMENTS ON THE GROUND THAT NO FORMAL APPLICATION FOR ADMISSION OF THESE SEIZED DOCUMENTS HAD BEEN MO VED BY THE REVENUE. THEREFORE, LD. CIT/DR SOUGHT TIME TO FILE A PROPER APPLICATION AND ACCORDINGLY, THE REVENUE WAS GRANTED LIBERTY TO FILE A PROPER APPLIC ATION FOR ADMISSION OF THESE DOCUMENTS. THEREAFTER, THE REVENUE VIDE LETTER F.NO .DCIT-1(1)/BPL/ITAT/18- 19/1201 DATED 13.11.2018 FILED AN APPLICATION ON 19 .11.2018 IN FORM-AT-4 ALONG WITH PAPER BOOK (RUNNING INTO 13 PAGES) FOR FILING OF ADDL. EVIDENCE IN THE MATTER. THE DETAILS OF THE DOCUMENTS ARE SUMMARIZED AS UNDE R: BRIEF DESCRIPTION OF DOCUMENTS PAPER BOOK PAGE NOS. LOWER AUTHORITY BEFORE WHICH THE DOCUMENTS WERE FILED RELEVANCE OF THE DOCUMENTS LPS 1/34 1 & 2 NO SUCH DOCUMENT WAS FILED TO ESTABLISH THAT THE COLLEGES UNDER THE SOCIETY ARE RUN AS A BUSINESS VENTURE OF SHRI ASHOK GOYAL, SHRI SYED SOHAIB ALI AND SHRI SHAKIL. LPS 1/34 3 TO 7 - DO - LPS 1/34 8 TO 9 - DO - LPS 1/ 13 10 TO 13 - DO - THE ABOVE APPLICATION FOR ADMISSION OF ADDL. EVIDEN CES WAS SUPPLIED BY THE REVENUE TO THE ASSESSEE ON 07.1.2019 AND THE ASSESS EE ON THE NEXT DATE OF HEARING I.E. 10.1.2019 FILED AN APPLICATION UNDER RULE 27 O F INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 PRAYING THIS TRIBUNAL TO PERM IT THE RESPONDENT ASSESSEE TO SUPPORT THE ORDER OF THE LD. CIT(A) RAISING AN ADDL . GROUND WHICH WAS DECIDED AGAINST THE ASSESSEE BY THE LD. CIT(A). HENCE, THES E TWO APPLICATIONS ARE BEFORE US 3 FOR ADJUDICATION. FIRST WE TAKE UP THE APPLICATION OF THE ASSESSEE. THE AFORESAID APPLICATION UNDER RULE 27 OF INCOME TAX (APPELLATE T RIBUNAL) RULES, 1963 READS AS UNDER: 4 3. THE REVENUE HAS FILED THE OBJECTION ON 31.1.2019 AND THE SAME IS REPRODUCED AS UNDER: 5 6 7 4. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS AS MADE IN THE APPLICATION. 5. LD. D.R. SUBMITTED THAT THE PRESENT APPLICATION IS NOT MAINTAINABLE. 6. LD. SR. COUNSEL FOR THE ASSESSEE IN REJOINDER SU BMITTED THAT AS PER RULE 27, THE RESPONDENT IS ENTITLED TO FILE APPLICATION UNDE R RULE 27 OF THE APPELLATE TRIBUNAL RULES, IF ANY OF THE GROUND IS DECIDED AGA INST THE RESPONDENT BY THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE BARE READING OF THE RULE 27 OF THE APPELLATE TRIBUNAL RULES SUGGEST THAT SUCH APPLICATION IS MAINTAINABLE BY THE RESPONDENT THOUGH HE MAY NOT HA VE APPEALED MAY SUPPORT THE ORDER APPEALED AGAINST OR ANY OF THE GROUNDS DECIDE D AGAINST HIM. IN THE PRESENT CASE, ADMITTEDLY, THE RESPONDENT HAS NOT FILED THE PRESENT APPLICATION IN SUPPORT OF THE ORDER OF THE LD. CIT(A). ON A POINTED QUERY THAT WHICH GROUND WAS DECIDED AGAINST BY THE LD. CIT(A), LD. SR. COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT WHAT GROUND WAS DECIDED AGAINST THE ASSESSEE. WE FIND T HAT THE ASSESSEE UNDER THE GARB OF THE PRESENT APPLICATION IS TRYING TO AGITAT E A NEW GROUND, WHICH WAS NOT BEFORE THE LD. CIT(A), WHICH IS NOT PERMISSIBLE UND ER THE LAW. WE THEREFORE ARE CONSTRAINED UNDER THE FACTS OF THE PRESENT CASE TO REJECT THE APPLICATION. HOWEVER, NO COST IS AWARDED TO THE REVENUE. 8. NOW WE TAKE UP APPLICATION FILED BY THE REVENUE. THE APPLICATION OF THE REVENUE READS AS UNDER: 8 9 9. LD. D.R. SUBMITTED THAT THESE DOCUMENTS WERE BEF ORE THE ASSESSING OFFICER AND HAS BEEN REFERRED BY THE ASSESSING OFFICER BUT INADVERTENTLY COULD NOT BE PLACED BEFORE THIS TRIBUNAL. LD. D.R. DREW OUR ATT ENTION TO THE ASSESSMENT ORDER PARA NO.1.1. LD. CIT(DR) VEHEMENTLY ARGUED THAT IN THE INTEREST OF JUSTICE THESE DOCUMENTS MAY BE TAKEN ON RECORDS. LD. CIT(DR) REL IED UPON THE PROVISIONS OF RULE 18 OF THE APPELLATE TRIBUNALS RULES. LD. D.R . SUBMITTED NOTHING PROHIBITS THE TRIBUNAL FOR CONSIDERING THE DOCUMENTS WHICH ARE NE CESSARY FOR ADJUDICATION OF CONTROVERSY. PER CONTRA, LD. SR. COUNSEL FOR THE A SSESSEE SHRI SUMIT NEMA OPPOSED THESE SUBMISSIONS OF THE REVENUE AND SUBMITTED THAT REVENUE SHOULD COME CLEAN, EITHER IT SHOULD TREAT THE DOCUMENTS SO FILED AS AD DITIONAL EVIDENCE OR TREAT IT AS AN ADDITIONAL PAPER BOOK. LD. SR. COUNSEL OBJECTED TO ADMISSION OF THE DOCUMENTS AS DESCRIBED IN THE APPLICATION FOR ADDITIONAL EVID ENCE. HE THEREFORE, PRAYED THE APPLICATION SO FILED BE DISMISSED WITH COST. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT THE A.O. IN PARA-1.1 OF HIS ORDER HAS STATED AS UNDER: 1.1 IN PURSUANCE OF WARRANT OF AUTHORISATION DATED 28.9.2008 ISSUED BY THE DIT(INV.), BHOPAL, OPERATIONS OF SEARCH AND SEIZURE WERE CONDUCTED U/S 132 OF THE INCOME TAX ACT, 1961 AT TH E RESIDENTIAL PREMISES 18, SHYAMLA HILLS, BHOPAL AS WELL AS OFFIC E PREMISES M/S. GOYAL BUILDERS & DEVELOPERS AT PROFESSORS COLONY, OPPOSIT E KILOL PARK, BHOPAL ON 31.5.2008. VARIOUS INCRIMINATING DOCUMENTS AND LOOSE PAPERS WERE FOUND AND SEIZED. PERUSAL OF THESE LOOSE PAPERS SP ECIALLY PAGE 1 TO 7 OF THE DOCUMENTS LPS 1/42, 1 TO 48 OF THE LPS 1/34, 1 TO 47 OF LPS 1/17, PAGES 1 TO 7 AND 10 TO 16 OF LPS 1/13, PAGE 1 TO 43 OF THE LPS 1/1, PAGE 1 TO 24 OF LPS 1/10, PAGE 93 AND 94 OF LPS 1/61 SEI ZED FROM THE OFFICE PREMISES OF SHRI ASHOK GOYAL ON 30/5/2008, PAGE 1 T O 49 OF LPS 5, PAGE 1,3,4, PAGE 7 TO 24 AND PAGE 27 TO 185 OF LPS- 4, PAGE 1 TO 145 OF LPS-3 SEIZED FROM THE RESIDENCE OF SHRI ASHOK GOYAL ON 30/5/2008 REVEALED THAT SHRI ASHOK GOYAL, SYED SOHAIB ALI AND SHRI SHAKIL ARE RUNNING VARIOUIS COLLEGES IN THE NAME OF THE SOCIET Y SIR SYED EDUCATION AND SOCIAL WELFARE SOCIETY. THESE DOCUMENTS CLEARL Y PROVE THAT THE 10 SOCIETYS NAME IS BEING USED ONLY FOR NAME SAKE ON PAPERS AND ACTUALLY, THE COLLEGES ARE RUN AS PERSONAL PROPERTY OF THESE 3 PERSONS AND THEREFORE THE INCOME HAS WRONGLY BEING SHOWN AND AL SO CLAIMED EXEMPT IN THE HANDS OF THE SOCIETY. AFTER THE SEARCH, THI S CASE WAS CENTRALIZED U/S 127 BY CIT, BHOPAL VIDE ORDER DATED 14.7.2010. THE ORDER OF CIT, BHOPAL WAS SERVED ON THE ASSESSEE ON 28.7.2010. 11. FROM THE ABOVE, IT IS EVIDENT THAT THE DOCUMENT S WERE ENCLOSED ALONG WITH APPLICATION ARE REFERRED BY THE A.O. AND THE REASON GIVEN FOR PLACING THEM ON RECORD MATCH WITH THE OBSERVATION OF THE A.O. THER EFORE, CONSIDERING TOTALITY OF THE FACTS IN THE INTEREST OF REVENUE, THESE DOCUMEN TS ARE ADMITTED FOR CONSIDERATION. APPLICATION FILED BY THE REVENUE IS ALLOWED AND APPLICATION OF THE ASSESSEE IS DISMISSED. THE REGISTRY IS DIRECTED TO FIX THESE APPEALS FOR HEARING ON 18.7.2019. THE NOTICE OF HEARING TO BE ISSUED TO T HE PARTIES CONCERNED. 12. FINALLY, THE ABOVE APPEALS FILED BY THE REVENUE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 08.5 .2019. SD/- (MANISH BORAD) ACCOUNTANT MEMBER SD/- ( KUL BHARAT) JUDICIAL MEMBER DATED : 08.5.2019 ! VYAS ! COPY TO: ASSESSEE/RESPONDENT/CIT(A)/CIT/DR, INDORE BY ORDER ASSISTANT REGISTRAR, INDORE