SHRI Parvez Hasan, Bhopal V. THE ITO3(1), Bhopal

ITA 423/IND/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5992 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Unexplained investment; Search and seizure; Retraction
• Section: 69C; 133A; 132

Judgement Text

PARVEZ HASAN ITA NO. 423/IND/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO.423/IND/2016 A.Y.2009-10 PARVEZ HASAN BHOPAL PAN AATPH 9588D ::: APPELLANT VS INCOME TAX OFFICER 3(1) BHOPAL ::: RESPONDENT APPELLANT BY SHRI ANIL KHANDELWAL RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 9.6.2016 DATE OF PRONOUNCEMENT 2 1 .6.2016 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 3.3.2015 OF THE LEARNED CIT(A), BHOPAL-2. 2. THE ONLY GROUND TAKEN BY THE ASSESSEE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADD ITION PARVEZ HASAN ITA NO. 423/IND/2016 2 OF RS.10 LACS U/S 69C OF THE ACT ON ACCOUNT OF INVEST MENT IN HOUSE CONSTRUCTION. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER IN THE FIRMS VIZ. M/S CREATIVE HOUSING & PROM OTERS CO., M/S CREATIVE INTERIOR DCOR & M/S HI-TECH CONSTRUCTIONS. A SURVEY U/S 133 OF THE ACT WAS CONDU CTED ON 5.9.2008 AT THE BUSINESS PREMISES OF THE ASSESSEE FIRMS. DURING THE COURSE OF THESE SURVEY OPERATIONS, THE ASS ESSEE HAS DISCLOSED TOTAL AMOUNT OF RS. 50 LACS COMPRISING OF RS. 2 LACS AS UNEXPLOAINED STOCK IN THE FIRM M/S CREATIVE INTERIOR DCOR; RS. 10 LACS AS UNEXPLAINED INVESTMENT IN THE RESIDENTIAL HOUSE AT KOHEFIZA AND RS. 38 LACS AS UNEXPLAINED INVESTMENT IN M/S HIGH TECH CONSTRUCTION FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE ASSESSEE HAS DECLARED INCOME OF RS. 1,97,325/-. THE ASSESSING OFF ICER ACCORDINGLY MADE AN ADDITION OF RS. 10 LACS TOWARDS UNEXPLAINED INVESTMENT U/S 69C OF THE ACT. BEING PARVEZ HASAN ITA NO. 423/IND/2016 3 DISSATISFIED WITH THIS ACTION OF THE ASSESSING OFFICE R, THE ASSESSEE WENT IN APPEAL BUT THE LEARNED CIT(A) CONFIRME D THE ACTION OF THE ASSESSING OFFICER. NOW THE ASSESSEE IS BEFORE ME. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SPENT RS. 10 LACS FOR CONSTRUCTION OF HOUSE AT KOHEFIZA. THE ASSESSEE HAD PURCHASED THE PLOT SITUATED AHMEDABAD PALACE, KOHEFIZA, AND HE OBTAINED MUNICIPAL PERMISSION. AFTER THAT HE CONSTRUCTED THE H OUSE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT I N THE YEAR UNDER CONSIDERATION THE ASSESSEE DID NOT MAKE ANY CONSTRUCTION BUT THE SURVEY PARTY HAS WRONGLY TAKEN TH E STATEMENT OF THE ASSESSEE THAT HE HAS INVESTED RS. 10 L ACS IN THE ASSESSMENT YEAR 2009-10. IT WAS SUBMITTED THAT T HE ASSESSEE HAS NOT MADE ANY EXPENDITURE AND, THEREFORE, T HE ADDITION ITSELF IS NOT MAINTAINABLE U/S 69C OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO DREW OUR ATTENTIO N TO PARVEZ HASAN ITA NO. 423/IND/2016 4 CBDT CIRCULAR NO.286/98/2013-IT(INVESTMENT.II) DATED 18 TH DECEMBER, 2014 ACCORDING TO WHICH IF ANY ADMISSION OF UNDISCLOSED INCOME UNDER COERCION OR PRESSURE DU RING THE SEARCH AND SURVEY PROCEEDINGS IS TAKEN, SUCH ADMISSION SHOULD NOT BE TAKEN AS CORRECT. THE ASSESSI NG OFFICER HAS WRONGLY TAKEN THE ADMISSION. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF USHAKANT N. PATEL VS. C IT (2006) 282 ITR 553 (GUJ) AND THE DECISION OF THE HO N'BLE HIGH COURT OF CHHATTISGARH IN THE CASE OF ITO VS. VIJA Y KUMAR; 231 CTR 165 (CHHATTISGARH). 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE SIDES. I HAVE GONE THROUGH T HE STATEMENT OF THE ASSESSEE WHEREIN HE HAS ADMITTED THAT H E HAS SPENT THE AMOUNT OF RS.10 LACS ON HIS RESIDENTIAL HOUSE SITUATED AT KOHEFIZA. I HAVE ALSO GONE THROUGH THE PARVEZ HASAN ITA NO. 423/IND/2016 5 STATEMENT WHICH WAS RECORDED ON 5.9.2008 IN WHICH THE ASSESSEE HAS STATED BEFORE THE ASSESSING OFFICER THAT H E WILL CONSULT HIS ADVOCATE AND THEREAFTER HE WILL GIVE T HE STATEMENT. THE STATEMENT WAS RECORDED ON 9.9.2008 AND ON THAT DATE THE ASSESSEE HAS ADMITTED THAT HE HAS INVESTED RS. 10 LACS FOR CONSTRUCTION OF HIS HOUSE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS CONSTRUCTED THIS HOUSE SINCE 2000 AND HE IS SURRENDERING THIS AMOUNT. I HAVE ALSO GONE THROUGH THE STATEMENT AND FIND THAT THE ASSESSEE HAS VOLUNTARILY GIV EN THE STATEMENT AND HIS STATEMENT WAS RECORDED. IN THIS CASE, THE ONLY EVIDENCE IS THE STATEMENT OF THE ASSESS EE RECORDED DURING THE COURSE OF SURVEY. THEREFORE, TH E LEARNED COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED TH AT THIS STATEMENT WAS RECORDED UNDER PRESSURE. THEREFORE, THI S STATEMENT SHOULD NOT BE TAKEN AS TRUE. DURING THE COU RSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE WAS PARVEZ HASAN ITA NO. 423/IND/2016 6 SPECIFICALLY ASKED AS TO WHY AFTER RECORDING THE STATEM ENT, THE ASSESSEE HAS NOT RETRACTED THE STATEMENT TILL FILIN G OF THE RETURN AND AFTER FILING THE RETURN WHY THE ASSESSE E HAS NOT RETRACTED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NOT DISCLOSED THE INCO ME IN THE RETURN WHICH IS TO BE TREATED AS RETRACTION. TH EREFORE, IN THAT SITUATION, I AM OF THE VIEW THAT THE ASSESSEES CONTENTION THAT THE STATEMENT WAS RECORDED UNDER PRESS URE HAS NO MERIT. THE EVIDENTIARY VALUE OF SUCH STATEMENT HAS TO BE JUDGED WITH RESPECT TO THE FACTS OF THE CASE. 7. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE TAKEN THE CONTENTION THAT HE IS HAVING ONL Y EVIDENCE THAT MUNICIPALITY, BHOPAL HAS GRANTED PERMISSIO N TO CONSTRUCT THE HOUSE PN 4.1.1997. THEREFORE, WHE N THE ASSESSEE HAS COMPLETED THE HOUSE, NO ADDITION CAN BE MADE. A SPECIFIC QUESTION WAS RAISED TO THE LEARNED COUN SEL FOR THE ASSESSEE WHETHER THE ASSESSEE IS HAVING ANY PARVEZ HASAN ITA NO. 423/IND/2016 7 EVIDENCE TO SHOW THAT THE ASSESSEE HAS MADE THE INVESTMENT IN THE ASSESSMENT YEAR 1999-00. IN REPLY, THEN LEARNED COUNSEL FOR THE ASSESSEE ADMITTED THAT HE HAS NO EVIDENCE TO SHOW THAT THE ASSESSEE HAS MADE ANY INVESTMENT IN THAT YEAR. 8. NOW COMING TO PECULIAR FACTS OF THE CASE I HAVE TO DECIDE WHETHER SECTION 133A GIVES THE SAME STATUS OF EVIDENCE TO THE STATEMENT RECORDED DURING THE COURSE OF SURVEY AS DISTINCT FROM THE STATEMENT RECORDED ON OATH DURING SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT . I AM OF THE VIEW THAT EVIDENTIARY VALUE OF THE STATEMENT H AS TO BE JUDGED WITH RESPECT TO THE FACTS OF THIS CASE. SECTION 133A(5) GIVES POWER TO INCOME TAX AUTHORITIES TO REC ORD STATEMENT OF ANY PERSON AND SUCH STATEMENT CAN BE USED AS IN ANY PROCEEDINGS UNDER THE ACT. IT IS HELD BY V ARIOUS COURTS THAT ADMISSION IS THE BEST EVIDENCE THAT OPPOSI TE PARTY CAN RELY UPON THOUGH NOT CONCLUSIVE OR DECISIVE OF PARVEZ HASAN ITA NO. 423/IND/2016 8 THE MATTER UNLESS SUCCESSFULLY WITHDRAWN OR PROVED ERRONEOUS AS HELD IN NARAIN BHADGAN; AIR 1960 SC 100. CONSIDERING ALL THESE, I AM OF THE VIEW THAT THE STATEM ENTS WERE RECORDED VOLUNTARILY AND WERE NOT OBTAINED UNDER THREAT OR COERCION. THE STATEMENT CAN BE USED AGAINST TH E ASSESSEE. REGARDING THE INVESTMENT IN THE JOINT NAME OF WIFE, THE ASSESSEE DID NOT POINT OUT ANYTHING THAT THE ASSESSEES WIFE HAS CONTRIBUTED SOMETHING, THEREFORE, IN THE ABSENCE OF THIS, THE ADDITION HAS TO BE MADE. LOOKING TO THE PECULIAR FACTS OF THE CASE, I AM OF THE VIEW THAT T HE ASSESSING OFFICER AND THE LEARNED CIT(A) ARE JUSTIFIE D IN MAKING AND CONFIRMING THE ADDITION. I ALSO GET SUPPORT FROM THE DECISION OF ITO VS. VIJAY KUMAR (SUPRA) WHER EIN IN PARA 17 IT WAS CATEGORICALLY HELD THAT IT IS WELL SETTLED LAW THAT THE CONFESSION MADE BY THE ASSESSEE DURING SURVE Y PROCEEDINGS IS NOT CONCLUSIVE AND IT IS OPEN TO THE ASSESSEE TO ESTABLISH BY FILING COGENT EVIDENCE THAT THE SAME W AS NOT PARVEZ HASAN ITA NO. 423/IND/2016 9 TRUE AND CORRECT. IN THIS CASE THE ASSESSEE IS NOT HAVI NG ANY DOCUMENTARY EVIDENCE TO SHOW THAT THE STATEMENT RECORDED DURING SURVEY IS NOT TRUE AND CORRECT. THE ASSESSEE IS NOT HAVING ANY COGENT EVIDENCE. THEREFORE, I HAVE NO HESITATION TO ENDORSE THE ACTION OF THE REVEN UE AUTHORITIES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. PRONOUNCED IN OPEN COURT ON 21 JUNE, 2016 SD/- (D.T. GARASIA) JUDICIAL MEMBER 21 JUNE, 2016 DN/- PARVEZ HASAN ITA NO. 423/IND/2016 10