Asstt.commissioner of Income tax circle-2(1),Bilaspur, BILASPUR(CG) V. M/s Shakti Construction, BILASPUR(CG)

ITA 41/BIL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94024 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M MAHARANA
• Assessee Lawyers: R B DOSHI
• Keywords: Search and seizure; Corroborative evidences

Judgement Text

1 ITA NO.41/BLPR/2012 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T. A. NO. 41/BLPR/2012 ASSESSMENT YEAR : 2005-06. ASSTT. COMMISSIONER OF INCOME-TAX, M/S SHAKTI CONSTRUCTIOKN, CIRCLE-2(1), BILASPUR. V/S. C/O SMT. NEETU SALUJA, W/O PRAVEEN SALUJA, TIKRAPARA, BILASPUR (C. G.) PAN ABCFS1011Q (APPELLANT) RESPONDENT. APPELLANT BY : SHRI H.M.MAHARANA. RESPONDENT BY : SHRI R.B. DOSHI. DATE OF HEARING : 19-06-2015 DATE OF PRONOUNCEMENT : 17 TH JULY, 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS), BILASPUR DATED 28-01-2012 AND PERTAI NS TO ASSESSMENT YEAR 2005- 06. 2. THE ISSUE RAISED IS THAT THE LEARNED CIT(APPEALS ) ERRED IN DELETING THE ADDITION OF ` .31,44,332/- MADE BY THE ASSESSING OFFICER UNDER SE CTION 69B BEING THE UNDISCLOSED INVESTMENT IN THE PROPERTY. 2 ITA NO.41/BLPR/2012 3. THIS CASE PERTAINS TO SEARCH AND SEIZURE OPERATI ON UNDER SECTION 132(1) IN THE RESIDENTIAL PREMISES OF SHRI MAHENDRALAL SALUJA. IN THIS SEARCH, SALE DEEDS PERTAINING TO INVESTMENT IN REAL ESTATE WERE SEIZED . THE VALUATION OF THE LAND WAS REFERRED TO THE D.V.O. WITHOUT WAITING FOR THE DVO S REPORT, AO CONSIDERED THE VALUATION BY REGISTERED VALUER AT ` .53,44,332/-. AS AGAINST THIS, THE COST RECORDED IN THE DEEDS WAS ` .22,00,0-00. WHEN CONFRONTED IN THIS REGARD, ASSESS EES COUNSEL SUBMITTED THAT THE LAND WAS PURCHASED AT MUTUAL AGR EED PRICE AND IT WAS STOCK IN TRADE. SO NO ADDITION IS CALLED FOR. THE AO WAS NOT SATISFIED. HE MADE THE IMPUGNED ADDITION. 4. UPON ASSESSEES APPEAL,LD. CIT(A)DELETED THE ADD ITION HOLDING AS UNDER : I CONSIDERED THE SUBMISSIONS MADE BY THE LD. AR WITH REFERENCE TO THE FACTS AVAILABLE ON RECORD CAREFULLY. THE PARTN ERSHIP FIRM WAS FORMED DURING THE YEAR UNDER CONSIDERATION BY SHRI ANIL M UNDRA AND SMT. MANJU MUNDRA, SHRI JITENDRA SALUJA AND SMT. NEETU SALUJA . ON BEHALF OF THE FIRM ALL THE PARTNERS PURCHASED A PLOT FROM SMT. SUSHIL A BEN AND KALPEN BHAI FOR ` .22,00,000/-. THE SHARE OF JITENDRA SALUJA AND NEET U SALUJA WAS 30% EACH AND SHARE OF ANIL MUNDRA AND MANJU MUNDRA WAS 20% EACH AS PER THE DEAL. THE INVESTMENT WAS MADE IN THIS RATIO BY EACH OF T HEM. DURING THE SEARCH AND SEIZURE OPERATION U/S 132(1) IN THE RESIDENT IAL PREMISES OF SHRI MAHENDRA LAL SALUJA AT TIKRAPARA, BILASPUR, SALE DEEDS PERTAINING TO FAMILY MEMBERS OF MAHENDRA SALUJA, M/S SHAKTI CONSTRUCT ION AND THEIR INVESTMENT IN REAL ESTATE, WERE SEIZED VIDE PANCHA NAMA DATED 01-02-2007. NOTHING INCRIMINATING EVIDENCE EXCEPT SALE DEED WA S FOUND DURING SEARCH OR THEREAFTER TO SUBSTANTIATE THE ALLEGATION OF SUPPR ESSED INVESTMENT IN THE PURCHASE OF THE LANDED PROPERTY. THE SELLERS CONFI RMED THE CONSIDERATION RECEIVED BY THEM IN THEIR CONFIRMATION FILED BEFOR E THE AO AND THESE HAVE NOT BEEN PROVED AS FALSE. RECORD ALSO EVIDENCES TH AT HE HAD NOT MADE ANY ENQUIRY FOR INVESTIGATION TO BRING TO RECORD POSIT IVE MATERIAL ON SUPPRESSED INVESTMENT. IN OTHER WORDS, THERE IS NO DIRECT OR CORROBORATIVE EVIDENCE ON RECORD TO ESTABLISH THE ALLEGED UNDERSTATEMENT OF INVESTMENT. RECORD SHOWS THAT THE AO HAS MADE A REFERENCE TO THE DEPARTMEN T VALUATION CELL, BUT WITHOUT WAITING FOR THE REPORT FROM THE CELL, HE M ADE THE IMPUGNED ADDITION SOLELY ON THE BASIS OF REGISTERED VALUERS REPORT. ADDITION MADE U/S 69B OF 3 ITA NO.41/BLPR/2012 THE ACT ON THE BASIS OF SALE DEEDS SEIZED VIDE PAN CHANAMA DATED 01-02-2007 IN THE CASE OF OTHER MEMBERS OF SHRI MAHENDRA SALU JA GROUP LIKE, MAHENDRA SALUJA, JITENDRA SALUJA, INDERJEET SALUJA, PRAVIN SALUJA, ETC. WERE DELETED BY CIT(APPEALS), BILASPUR. THE HONBLE ITAT, BILASPUR BENCH, BILASPUR VIDE ORDER IN ITA NO. 73 TO 79/BLPR/2010, 80 TO 82/BLPR /2010, 221 TO 226/BLPR/2010 DATED 21-10-2011 AFFIRMED THE ORDER BY OBSERVING THAT CIT(A), BILASPUR IS JUSTIFIED IN HOLDING THAT THE SALE CONSIDERATION MENTIONED IN THE SALE DEED FOUND DURING THE COURSE OF SEARCH , CANNOT BE DISBELIEVED FOR INVOKING THE PROVISIONS OF SECTION 69B MERELY ON T HE BASIS OF THE REPORT OF THE APPROVED VALUER UNLESS THE UNDERSTATEMENT OF I NVESTMENT IS ESTABLISHED BY DIRECT OR CORROBORATIVE EVIDENCES, WHICH HAS N OT BEEN DONE IN THIS CASE. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE HONBLE TRIBUNAL, THE ADDITION OF ` .31,44,332/- MADE U/S 69B OF THE ACT ON ALLEGED UNDERSTATEMENT OF INVESTMENT IN PURCHASE OF LAND A T KH. NO. 120/4 AT TATYA TOPE NAGAR, NEAR JUNA BILASPUR IS DELETED. 5. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BE FORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. LEARNED D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER. LEA RNED COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE PROPERTY HAD BEE N PURCHASED AT THE RATE WHICH IS EQUIVALENT TO THE RATE ADOPTED BY THE STAMP VALUATI ON AUTHORITY. NO CORROBORATIVE EVIDENCE FOUND DURING THE SEARCH REGARDING UNDERSTA TEMENT. THERE WAS NO ENQUIRY CONDUCTED BY THE ASSESSING OFFICER FROM THE SELLER AND THAT THE ISSUE WAS COVERED BY THE DECISION OF THE ITAT IN THE CASE OF THE SAME SEARCH BELONGING TO THE SAME GROUP. 7. UPON CAREFUL CONSIDERATION, WE NOTE THAT IT IS A N ADMITTED FACT THAT THE PURCHASES WERE AT THE RATE ADOPTED BY THE STAMP VAL UATION AUTHORITY. NO EVIDENCE FOR UNDERSTATEMENT HAS BEEN FOUND DURING THE SEARCH . IT IS ALSO NOT THE CASE THAT THE ADDITION IS MADE IN PURSUANCE OF THE VALUATION OF T HE D.V.O. FURTHER MORE, AS POINTED OUT BY THE LEARNED CIT(APPEALS) AND THE LEA RNED COUNSEL OF THE ASSESSEE, THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY T HE DECISION OF THE ITAT IN THE GROUP CASES OF THE ASSESSEE IN A BATCH OF APPEALS VIDE ORDER DATED 21-10-2011. THE 4 ITA NO.41/BLPR/2012 ITAT AFTER ELABORATELY DISCUSSING THE ISSUE, HAD CO NCLUDED THAT THE CIT(APPEALS) WAS JUSTIFIED IN HOLDING THAT THE SALE CONSIDERATIO N MONEY IN THE SALE DEED FOUND DURING THE COURSE OF SEARCH CANNOT BE DISBELIEVED F OR INVOKING THE PROVISIONS OF SECTION 69B MERELY ON THE BASIS OF THE REPORT OF AP PROVED VALUER UNLESS THE UNDERSTATEMENT OF INVESTMENT IS ESTABLISHED BY DIRE CT OR CORROBORATIVE EVIDENCES. WE FIND THAT THE FACTS ARE IDENTICAL IN THIS CASE. IT IS NOT THE CASE OF THE REVENUE THAT THE ABOVE SAID DECISION OF THE TRIBUNAL HAS BE EN REVERSED BY THE HONBLE JURISDICTIONAL HIGH COURT FURTHER MORE, HONBLE APE X COURT IN THE CASE OF HONDA CIEL POWER PRODUCTS, CIVIL APPEAL NO. 5412 OF 200 7 HAD HELD THAT NON CONSIDERATION OF THE COORDINATE BENCH DECISION CAN RENDER THE ORDER OF THE TRIBUNAL LIABLE FOR RECTIFICATION FOR MISTAKE APPARENT FROM RECORD. HENCE IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT, WE DO NOT FI ND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAM E. 8. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF JULY, 2015. SD/- SD/- (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. DATED: 17 TH JULY, 2015. 5 ITA NO.41/BLPR/2012 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, 5. THE D.R., ITAT, RAIPUR. 6. GUARD FILE. T RUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR