VIREN AHUJA, MUMBAI V. DCIT CC 47, MUMBAI

ITA 4521/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3069 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 04-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Document seized; Principle of natural justice; Documents seized
• Section: 143(3); 153A; 234B; 68; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ./ I.T.A. NO. 4521/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) SHRI VIREN AHUJA 1 NEELKANTH, ROAD NO.6, CHEMBUR, MUMBAI-400 071. / VS. DCIT,CC-47, MUMBAI. ./ ./PAN/GIR NO. AACPA 4809M ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI J.P. BAIRAGRA / RESPONDENT BY : SHRI G.M. DOSS / DATE OF HEARING : 05/08/2016 !'# / DATE OF PRONOUNCEMENT : 21/09/2016 $% / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 38, DATED 28 .03.2013 ON THE GROUNDS OF APPEAL MENTIONED HEREIN BELOW. 2 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS I N NOT HOLDING THAT THE NOTICE ISSUED U/ S. 153A AND THE CONSEQUENTIAL ASSESSMENT ARE BAD IN LAW AND WITHOUT JURISDICTION. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WHICH IS ILLEGAL AND BAD IN LAW. THE ORDER PASSED BY THE LEA RNED CIT(A) PURPORTEDLY ON 28.03.2013 AFTER THE CONCLUSION OF HEARING ON 25.03 .2013 WHICH HAS BEEN SERVED ON 25.04.2013 IS ILLEGAL. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PA SSED U/ S. 153A R.W.S. 143(3) OF THE ACT WHICH ARE ILLEGAL AND BAD IN LAW. 4. THE ORDER PASSED BY THE LEARNED CIT(A) IS IN VIOLAT ION OF PRINCIPLES 0 NATURAL JUSTICE AND IS PASSED WITHOUT GIVING A PROPER OPPOR TUNITY OF HEARING TO THE APPELLANT. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS IN NOT HOLDING THAT THE ASSESSMENT ORDER WAS PASSED IN VIOLATION OF PRINCIP LES OF NATURAL JUSTICE AND WAS PASSED WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE APPELLANT. 6. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADDITION OF RS. 33,00,000/ - MADE BY THE ASSESSING OFFICER U/ S.69 OF THE ACT. 7. THE LEARNED CIT(A) HAS ERRED IN ENHANCING THE INCOM E OF APPELLANT BY RS. 2,67,97,000/- ON THE BASIS OF PAGE 2 OF DIARY MARKE D AS ANNEXURE-23 OF THE SEIZED MATERIAL. 8. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE INTEREST LEVIED BY THE ASSESSING OFFICER U/ S. 234A, 234B AND 234C OF THE ACT. 9. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND AND / OR DELETE ALL OR ANY OF THE AFORESAID GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS ONE OF THE DIRECTOR OF THE GROUP COMPANY M/S. FLEMINGO/BERMACO GROUP. A SEARCH AND S EIZURE ACTION U/S 132 OF ACT WAS CARRIED OUT AT THE RESIDENCE AND BUSINESS P REMISES OF M/S. 3 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT FLEMINGO/BERMACO GROUP ON 31.10.2009 BY THE DDIT (INV), UNIT-II(3), MUMBAI. DURING THE COURSE OF SEARCH UNACCOUNTED CASH AND IN CRIMINATING DOCUMENTS WERE FOUND AND ACCORDINGLY APPROPRIATE ASSETS/ DOCUMENTS WERE SEIZED. BASED ON THESE SEIZURES, THE MAIN PERSON OF THE GROUP CONCERN OF T HE FLAGSHIP COMPANY M/S. FLEMINGO/BERMACO GROUP, SHRI VIREN AHUJA HAS OFFERE D U/S 132(4) UNDISCLOSED INCOME TO THE TUNE OF RS.38.90CRORES, ON ACCOUNT OF VARIOUS DISCREPANCIES FOUND IN THE BOOKS OF ACCOUNTS OF THE COMPANIES BERMACO INDU STRIES LTD & BERMACO ENERGY SYSTEMS LTD ON THE ISSUES NAMELY BOGUS PURCH ASES. HOWEVER, THE STATEMENT U/S 132(4) WAS RETRACTED BY SHRI VIREN AH UJA VIDE AFFIDAVIT DATED 24.11.2009. AFTER SERVING STATUTORY NOTICES U/S 153 A OF THE ACT AND SEEKING REPLY FROM THE ASSESSEE, THE ORDER OF ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT WAS PASSED ON 08.06.2012 THEREBY MAKING ADDITIONS OF RS .33LAKHS U/S 69 BEING THE UNEXPLAINED INVESTMENT FOR AY 2009-10. 3. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE OF THE AS SESSEE CONFIRMED THE ADDITIONS BY HOLDING THAT ASSESSEE HAS NOT FILED ANY SPECIFIC OBJECTION DURING ASSESSMENT PROCEEDING THEREFORE ADDITION OF RS.33LAKHS MADE U/ S 69 WAS CONFIRMED. IN ADDITION THE CIT(A) ALSO ENHANCED THE INCOME OF THE ASSESSEE OF RS.2,67,97,000/- ON THE BASIS OF DIARY WHICH IS MARKED AS A ANNEXURE -23 AS SEIZED MATERIAL VIDE ORDER DATED 28.03.2013. 4 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 5. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF O F ASSESSEE SUBMITTED THAT HE DO NOT WANT TO PRESS GROUND NO. 1 TO 5 AND ACCORDIN GLY THE LD. AR MADE HIS NOTING ON THE APPEAL FILE ITSELF. CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE WE DISMISS GROUND NO. 1 TO 5 OF THE APPEAL AS BEING NOT PRESSE D. GROUND NO.6 6. WE HAVE HEARD COUNSEL FOR BOTH THE PARTIES AND W E HAVE ALSO PERUSED THE MATERIAL ON RECORD AS WELL AS ORDERS PASSED BY LOWE R AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE IT IS NECESSARY TO EVALUATE THE ORDERS OF THE CIT(A) WHILE DEALING WITH THIS ISSUE. I HAVE CAREFULLY EXAMINED THE FACTS OF THE CASE, T HE STAND TAKEN BY THE AO IN THE ASSESSMENT ORDER AND THE GROUNDS OF APPEAL F ILED BY THE APPELLANT. THE LD. AR OF THE APPELLANT HAS NOT FILED ANY SPECI FIC OBJECTIONS DURING THE APPEAL PROCEEDINGS. HOWEVER, THE ISSUES HAVE BEEN E XAMINED ON MERITS. IT IS NOT DENIED THAT THE 33 COMPANIES WERE PROMOTED B Y THE APPELLANT FOR THE PURPOSE OF ACQUISITION OF LAND. THEREFORE, BASED ON THE FINDINGS GATHERED BY THE DEPARTMENT, THE APPELLANT WAS GIVEN ADEQUATE OPPORTUNITY TO EXPLAIN THE SOURCES OF INVESTMENT IN THE SAID COMPANIES. HO WEVER, THE APPELLANT HAS NOT DISCHARGED THE ONUS EITHER DURING THE ASSES SMENT PROCEEDINGS OR DURING THE APPEAL PROCEEDINGS. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.33,00 ,000/- IN RESPECT OF A.Y. 2009-10 IS ASSESSABLE U/S 69 OF THE ACT AND ACCORDI NGLY, THE ADDITION IS HEREBY CONFIRMED. 7. AFTER PERUSAL OF THE AFORE MENTIONED ORDERS AND AFTER HEARING BOTH THE PARTIES ON THIS ISSUE WE FIND THAT THE LD. CIT(A) HAD RIGHT LY CONCLUDED THAT THE ASSESSEE HAS NOT FILED ANY SPECIFIC OBJECTIONS DURING THE APPELL ATE PROCEEDING AS WELL AS IT WAS 5 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT NOT DENIED BY THE ASSESSEE THAT THE 33 COMPANIES WE RE PROMOTED BY THE ASSESSEE FOR THE PURPOSE OF ACQUISITION OF LAND. THEREFORE, BASED ON THE FINDINGS GATHERED BY THE DEPARTMENT THE ASSESSEE WAS GIVEN ADEQUATE OPPO RTUNITY TO EXPLAIN THE SOURCES OF INVESTMENT IN THE SAID COMPANIES. SINCE THE ASSE SSEE COULD NOT DISCHARGE THE ONUS EITHER DURING THE ASSESSMENT PROCEEDINGS OR DU RING THE APPEAL PROCEEDINGS, THEREFORE, LD. CIT(A) CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE HAS RIGHTLY CONFIRMED THE ADDITION MADE BY AO U/S 69 OF THE ACT. EVEN BEFORE US DURING THE COURSE OF ARGUMENTS LD. AR COULD NOT SUP PORT HIS ARGUMENTS WITH ANY DOCUMENTARY EVIDENCE THAT THE AMOUNT INVESTED BY TH E ASSESSEE IN THESE 33 COMPANIES [NAMES OF THESE COMPANIES ARE MENTIONED I N ASSESSMENT ORDER AS WELL AS CIT(A)] DOES NOT BELONG TO ASSESSEE. THEREFORE F INDING NO CONVINCING ARGUMENTS FROM LD. AR WE HAVE NO OTHER OPTION EXCEP T TO DISMISS THIS GROUND OF APPEAL AND UPHOLD THE ORDER OF CIT(A) ON THIS GROUN D. GROUND NO.7 8. IN THIS GROUND LD. AR HAS CHALLENGE THE ENHANCEM ENT OF INCOME OF THE ASSESSEE OF RS.2,67,97,000/- MADE BY CIT(A) ON THE BASIS OF PAGE NO.2 OF THE DIARY MARKED AS ANNEXURE- 23 OF THE SEIZED MATERIAL. WE H AVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PE RUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE IT IS NECESSARY TO EVALUATE AND ANALYSE THE ORDERS PASSED BY 6 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT CIT(A) WHILE DEALING WITH THE SAID ISSUE THE OPERAT IVE PARA OF CIT(A) IS REPRODUCED BELOW: DURING THE APPEAL PROCEEDINGS, LD. A.R. OF THE APP ELLANT HAS FILED WRITTEN, SUBMISSIONS AND A PAPER BOOK. IT IS SUBMITTED THAT NOWHERE ON THE SAID PAPER SEIZED THERE IS MENTION OF THE APPELLANT AND THE ENTRIES ON THE SAID SEIZED PAPER ARE NOT IN THE HAND WRITING OF THE APP ELLANT EXCEPT FOR ENTRY '3/12 SOLD + NEW AGGREGATING TO 300000' APPEARING O N LOWER PAGE EXTRACTED ON PAGE 15 OF THE ASSESSMENT ORDER. IT IS FURTHER SUBMITTED THAT THE SEIZED PAPER DEPI9T WORKING OF PROPOSED TRANSAC TIONS, EVALUATION OF WHETHER THE SAME CAN BE UNDERTAKEN, MANNER IN WHICH PROFITS CAN BE EARNED BUT IT CERTAINLY DOES NOT REPRESENT ACTUAL T RANSACTIONS. APPELLANT HAS FURTHER STATED IN THE WRITTEN SUBMISSIONS THAT THE AMOUNTS STATED UNDER 'HOTEL A/C. ON LOWER PORTION OF THE SEIZED PAPER R EPRESENTS EXPENDITURE INCURRED IN HOTEL AND IT IS NOT AN INVESTMENT. IN R ESPECT OF UPPER PAGE PORTION OF SEIZED PAPER, APPELLANT HAS SUBMITTED TH AT THE ENTRIES MADE THEREIN WERE MERE EVALUATION OF PROPOSALS TO INVEST MENT AND THERE IS NO MENTION OF EITHER PURCHASE OR SALE AGAINST ANY TRAN SACTIONS AND THEREFORE, IT CANNOT BE CONCLUDED THAT THESE TRANSACTIONS PERT AIN TO PURCHASES. THE APPELLANT HAS FURTHER CONTENDED THAT THE DATES OF T RANSACTIONS DO 40T PERTAIN TO THE PREVIOUS YEAR RELEVANT TO AY.2007-08 AND AS SUCH, NO ADDITION CAN BE MADE IN, THE HANDS OF THE APPELLANT ULS.69 OF THE ACT AND THE AO HAS NOT CAUSED INDEPENDENT ENQUIRY WITH MR. VIKRAM AGARWAL TO ASCERTAIN THE TRUE NATURE OF TRANSACTION. 12.0 ON A PERUSAL OF THE ASSESSMENT ORDER, IT WAS APPARENT THAT THE TRANSACTIONS REFLECTED IN THE SEIZED DOCUMENTS, IN FACT, PERTAIN TO THE AYRS.2008-09 AND 2009-10. HAVING REGARD TO THESE FA CTS, A LETTER I NOTICE DATED 1,3.03.2013 WAS SERVED ON THE APPELLANT. IN T HE SAID LETTER I NOTICE, IT WAS PROPOSED TO CONSIDER THE TRANSACTIONS IN THE SE IZED DOCUMENT IN RESPECT OF A.YRS.2008-09 AND 2009-10, WHICH WOULD RESULT IN ENHANCEMENT OF THE ASSESSED INCOMES. THE APPELLANT WAS ALSO CALLED UPO N TO SUBMIT THE OBJECTIONS AND EXPLANATIONS, IF ANY. A HEARING WAS SCHEDULED ON 25.03.2013 AND THE APPEAL WAS HEARD. DECISION: A DECISION ON THIS ISSUE HAS BEEN RENDERED IN THE A PPELLATE ORDER FOR A.Y.2008-09 BY ORDER NO.CIT(A)-38/IT-62/2012-13 DAT ED 28.03.2013, WHICH IS AS UNDER: '14.0 THE SEIZED DOCUMENT HAS INDICATED CERTAIN SPE CIFIC DATES ON WHICH CERTAIN TRANSACTIONS HAVE TAKEN PLACE. IF THE TRANS ACTIONS WERE ONLY FOR THE 7 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT PURPOSE OF PROJECTING POTENTIAL PROFITS FROM CERTAI N PROPOSED TRANSACTIONS, THE DOCUMENT WOULD NOT BE WRITTEN IN SUCH ACCURATE TERMS TO REJECT THE DATES AS WELL AS THE QUANTUM OF MONEY 1 CASH TRANSA CTIONS INVOLVED. THE DOCUMENT WAS IN POSSESSION OF THE APPELLANT AND THE REFORE, IT HAS TO BE REASONABLY PRESUMED THAT THE APPELLANT IS THE OWNER / AUTHOR OF THE DOCUMENT. HOWEVER, THE APPELLANT WAS AT LIBERTY TO DISCHARGE THE ONUS BY PRODUCING MR. VIKRAM AGARWAL AND EXPLAINING THE BUS INESS RELATIONSHIP AND VARIOUS TRANSACTIONS WITH MR. VIKRAM AGARWAL. I N THIS CASE, THE APPELLANT HAS NOT MADE ANY EFFORT EITHER AT THE STA GE OF ASSESSMENT PROCEEDINGS OR APPEAL PROCEEDINGS TO REVEAL THE IDE NTITY OF MR. VIKRAM AGARWAL. A.O WOULD NOT BE IN A POSITION TO SUMMON A ND EXAMINE MR. VIKRAM AGARWAL UNLESS THE APPELLANT FURNISHES THE R EQUISITE INFORMATION SUCH AS THE IDENTITY AND ADDRESS AND SUCH OTHER DET AILS OF MR. VIKRAM AGARWAL. IT IS NOT THE CASE OF THE APPELLANT THAT H E NEITHER KNOWS MR. VIKRAM AGARWAL NOR HE HAD ANY BUSINESS RELATIONSHIP 1 TRANSACTIONS WITH MR. VIKRAM AGARAWAL. AS OBSERVED, SPECIFIC DATES WI TH SPECIFIC TRANSACTION AMOUNTS COULD NOT HAVE BEEN MADE BY THE APPELLANT I N CASE SUCH TRANSACTIONS HAVE NOT TAKEN PLACE. 14.1 IT IS SEEN FROM- THE SEIZED DOCUMENT THAT ON T HE 'LOWER PAGE', A DESCRIPTION TO THE EXTENT OF '11 = 10 CHEQUE' IS WR ITTEN. FURTHER, UNDER THE HEAD 'HOTEL ACCOUNT', APART FROM THE CASH TRANSACTI ONS AMOUNTING TO RS.575=00 LAKHS, ADJACENT TO THE TOTAL AGGREGATING TO RS.575=00 LAKHS, CHEQUE TRANSACTIONS DETAILS AGGREGATING TO RS.16= 1 0 LAKHS IS ALSO WRITTEN. FURTHER, ON THE RIGHT SIDE OF THE DOCUMENT, IT IS R EFLECTED THAT 1,10,000 SHARES WERE SOLD @ RS.1911- PER SHARE AND AN AMOUNT OF RS.2,10,10,0001- WAS REALIZED. SIMILARLY, THE UPPER PAGE OF THE SAME DOCUMENT REFLECTED THAT 1,00,000 SHARES @ RS.430/- PER SHARE WERE SOLD AND RS.4,30,00,000/- WAS REALIZED. THE PROFIT MARGIN WAS DETERMINED @ 70% AN D 30% TO BE SHARED BY MR. VIKRAM AGARWAL AND THE APPELLANT RESPECTIVEL Y IS ALSO CLEARLY WRITTEN. ALL THE TRANSACTIONS IN THE LOWER PAGE AND UPPER PAGE ARE VERY SPECIFIC AND CLEARLY REFLECTED THAT THEY ARE NOT IM AGINARY FIGURES. THEREFORE, THE DOCUMENT DOES REFLECT CERTAIN UNDISC LOSED TRANSACTIONS AND UNDISCLOSED INCOME OF MR. VIKRAM AGARWAL OF CHENNAI AND THE APPELLANT. AS OBSERVED, THE APPELLANT WAS REQUIRED TO DISCHARG E THE ONUS BY EITHER PROVIDING OF THE REQUISITE DETAILS BEFORE THE AO SO AS TO ENABLE THE A.O TO SUMMON MR. VIKRAM AGARWAL. ALTERNATIVELY, APPELLANT OUGHT TO HAVE PRODUCED MR. VIKRAM AGARWAL SO AS TO EXPLAIN THE EN TIRE GAMUT OF TRANSACTIONS. IT IS SEEN THAT THE APPELLANT HAS PRE FERRED TO BE EVASIVE ON THE ISSUE AND STONEWALLED ANY FURTHER ENQUIRY IN THIS R EGARD. IN CASES WHERE THE TRANSACTIONS RECORDED IN A DOCUMENT CAN BE CORRELAT ED WITH THE BOOKS OF ACCOUNTS AND SUCH TRANSACTIONS HAVE IN REALITY TAKE N PLACE, REST OF THE TRANSACTIONS RECORDED IN THE DOCUMENT HAVE ALSO TO BE TAKEN AS TRUE. IN 8 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT OTHER WORDS, IN CASES WHERE A SEIZED DOCUMENT SHOWS THAT CERTAIN CHEQUE TRANSACTIONS AND CASH TRANSACTIONS HAVE BEEN ENTERE D INTO BY TWO PARTIES AND THE CHEQUE TRANSACTIONS ARE VERIFIABLE WITH THE BOOKS OF ACCOUNTS AND BANK ACCOUNTS, THE REMAINING TRANSACTIONS SUCH AS C ASH TRANSACTIONS ALSO HAVE TO BE TAKEN AS TRUE. THE DOCUMENT HAS TO BE IN TERPRETED IN ITS ENTIRETY AND HAS TO BE GIVER FULL AND LOGICAL MEANING AND EF FECT SO THAT VERY PURPOSE OF INVESTIGATION BY THE INCOME TAX AUTHORITIES IS N OT STONEWALLED AND FRUSTRATED BY THE INGENIOUS METHODS ADOPTED BY THE TAX EVADERS. IN SUCH INSTANCES, ONUS SHIFTS TO THE ASSESSEE / APPELLANT TO PROVE THAT SUCH TRANSACTIONS, INCLUDING THE CHEQUE TRANSACTIONS, HA D NEVER TAKEN PLACE. IN CASE THE ONUS IS NOT FULLY DISCHARGED, THE TRANSACT IONS RECORDED HAVE TO BE VIEWED IN TOTALITY AND THE ENTIRE SET OF TRANSACTIO NS HAVE TO BE TAKEN AS TRUE AND NECESSARY ACTION HAS TO BE TAKEN IN TERMS OF SE CTION 68 OR OTHER RELEVANT PROVISIONS OF THE INCOME TAX ACT. HAVING R EGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON THE BASIS OF THE A NALYSIS OF THE SEIZED DOCUMENT AND SINCE THE APPELLANT HAS NOT DISCHARGED THE ONUS PLACED ON HIM, AN ADDITION OF RS.15,55,75,000/- IS MADE IN RE SPECT OF A.Y.2008-09. SINCE THIS IS THE ADDITION WHICH WAS NOT MADE IN TH E ASSESSMENT ORDER, THE ASSESSED INCOME IS ENHANCED BY AN AMOUNT OF RS.15, 55, 75,000/-. ' 13.1 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE AND ON THE BASIS OF THE ANALYSIS OF THE SEIZED DOCUMENT AND SI NCE THE APPELLANT HAS NOT DISCHARGED THE ONUS PLACED ON HIM, AN ADDITION OF R S.2,67,97,000/- IS MADE IN RESPECT OF A.Y.2009-10. SINCE THIS IS THE ADDITI ON WHICH WAS NOT MADE IN THE ASSESSMENT ORDER, THE ASSESSED INCOME, IS ENHAN CED BY AN AMOUNT OF RS.2,67,97 ,000/-. 9 . WE HAVE PERUSED THE AFORE MENTIONED ORDERS AND WE A LSO HEARD THE COUNSEL FOR BOTH THE PARTIES ON THIS ISSUE. LD. AR APPEARIN G ON BEHALF OF ASSESSEE SUBMITTED THAT THE ADDITIONS OF RS.2,67,97,000/- WAS MADE BY CIT(A) ONLY ON THE BASIS OF PAGE NO.2 OF THE DIARY MARKED AS ANNEXURE-23 OF THE SEIZED MATERIAL IT WAS ARGUED THAT INITIALLY THE AO HAD NOT MADE ANY ADDITION ON THIS ISSUE WHILE PASSING THE ORDER U/S 153A R.W.S. 143 OF THE ACT. IT WAS FURTHE R SUBMITTED BY LD. AR THAT CIT(A) HAD DISCUSSED THIS ISSUE IN ITS ORDER IN PAR A NO.10 WHEREIN THE CONTENTS OF 9 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT PAGE NO. 2 OF THE DIARY MARKED AS ANNEXURE-23 HAS B EEN INCORPORATED AND ADDITION OF RS.11,37,11,600/- WAS MADE BY AO IN THE ASSESSME NT ORDER FOR AY 2006-07. LD. AR FURTHER SUBMITTED THAT CIT(A) HAD ALSO HELD THAT SINCE THE TRANSACTION REFLECTED IN THE SEIZED DOCUMENTS DOES NOT PERTAIN TO AY 2007-08 AND DELETED THE ADDITION FOR AY 2007-08. HOWEVER THE LD. CIT(A) HEL D THAT SINCE THIS TRANSACTION PERTAIN TO AYS. 2008-09 AND 2009-10 THEREBY ENHANCI NG THE INCOME FOR AY 2008- 09 BY RS.15,55,75,000/- AND FOR AY 2009-10 BY RS.2, 67,97,000/-. LD. AR FURTHER SUBMITTED THAT CIT(A) HAS INCORPORATED THE FINDINGS GIVEN IN THE AY 2009-10 AND CONFIRMED THE ADDITIONS OF RS.2,67,97,000/- FOR THI S YEAR. 10. LD. AR ALSO SUBMITTED THAT APPEAL OF THE ASSESS EE FOR AYRS. 2006-07 AND 2007-08 AND 2008-09 HAS ALREADY BEEN DECIDED BY HON BLE ITAT IN ITA NO. 3890/MUM/2013, 4171/MUM/ 2013, 4708/MUM/2013 AND 43 22/MUM/2013 VIDE ORDER DATED 29.04.2015. LD. AR FURTHER SUBMITTED TH AT HONBLE ITAT HAS ALSO DISMISSED THE APPEAL OF REVENUE FOR AY 2007-08 AGAI NST THE DELETION OF ADDITION ON THE BASIS OF THESE PAPERS SEIZED AND ALLOWED THE AP PEAL OF THE ASSESSEE FOR AY 2008-09 AND DELETED THE ADDITION OF RS. 15,55,75,00 0/- AND ALSO HELD THAT NO ADDITIONS ON THE BASIS OF THESE SEIZED PAPERS CAN B E MADE. IT WAS FURTHER ARGUED BY LD. AR THAT AFTER THE AFORE MENTIONED DEC ISION BY HONBLE ITAT THE ASSESSEE MOVED HIS MA AGAINST THE ORDER OF HONBLE TRIBUNAL AND THE HONBLE 10 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT ITAT HAS ACCEPTED THE MA AGAINST THE ORDER OF HONB LE TRIBUNAL AND PASSED THE ORDER ON MISCELLANEOUS APPLICATION NOS.115 & 116/M/ 15 IN ITA NOS. 4708 & 4322/MUM/2013 DATED 29.05.2015 AND INCORPORATED FU LL FACTS OF THE PAPERS SEIZED AND THE ADDITIONS CONFIRMED BY THE CIT(A) OF RS. 15 ,55,75,000/- FOR AY 2008-09 AND RS.2,67,97,000/- FOR AY 2009-10 AND BY INCORPOR ATING THESE FACTS THE LD. AR FURTHER SUBMITTED THAT ANOTHER MA WAS AGAIN MOVED B Y THE ASSESSEE VIDE MA NO. 255&256/MUM.2015 DATED 04.12.2015 ON THE GROUND THA T WHILE ALLOWING THE EARLIER MA, INADVERTENTLY THE TRIBUNAL IN ITS FIND INGS AT PARA NO.24 TO 30 OF THE ORDER REMOVED THE EXISTING OBSERVATION OF THE TRIBU NAL WHICH WERE THERE IN ITA NO.4708 AND 4322/MUM/2013 AND IN THIS WAY THE SUBSE QUENT MA MOVED BY THE ASSESSEE WAS ALSO ALLOWED. 11. AFTER PERUSAL OF ALL THE ORDERS AS MENTIONED AB OVE AND AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IN EARLIER APPEALS FOR AYRS. 2006-07 AND 2007-08 AND 2008-09 I N ASSESSEES OWN CASE THE HONBLE ITAT HAD ALREADY DELETED THE ADDITION MADE ON THE BASIS OF THESE SEIZED PAPERS AND EVEN IN MA ORDER IT HAS BEEN CATEGORICAL LY HELD BY THE HONBLE ITAT THAT NO ADDITIONS OF RS. 15,55,75,000/- COULD HAVE BEEN MADE FOR AY 2008-09 AND OF RS.2,67,97,000/- FOR AY 2009-10 THE OPERATIVE PA RA OF MA NO. 255&256/MUM.2015 DATED 04.12.2015 DECIDED BY HONBL E ITAT IN ASSESSES OWN CASE IS REPRODUCED BELOW: 11 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT 4. WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATIONS QUA MISCELLANEOUS APPLICATION NOS. 115 & 116/M/ 15 QUA ( ITA NOS. 4708 & 4322/M/2013. WE FIND FORCE IN THE C ONTENTION OF THE ASSESSEE. THERE IS A MISTAKE VERY MUCH APPARENT FRO M THE RECORD WHILE ALLOWING THE EARLIER MISCELLANEOUS APPLICATION AT P ARA 24 AND 30 OF THE ORDER OF THE TRIBUNAL, THE EXISTING OBSERVATIONS AR E FOUND MISSING. WE, THEREFORE ALLOW THIS MISCELLANEOUS APPLICATIONS OF THE ASSESSEE. PARA 24 OF THE ORDER OF THE TRIBUNAL SHOULD BE READ AS UNDER: 24. THIS ISSUE HAS BEEN DISCUSSED BY THE AO AT PARA 10 OF HIS ORDER WHEREIN HE HAS MADE REFERENCE TO CERTAIN INCRIMINATING PAPE RS FOUND AND SEIZED AT THE TIME OF SEARCH. SCANNED COPIES OF THE IMPUGNED DOCUMENTS ARE EXHIBITED AT PAGES 15 AND 16 OF THE ASSESSMENT ORDE R. THE ASSESSEE WAS CONFRONTED WITH THESE DOCUMENTS AND WAS ALSO ASKED TO EXPLAIN THE NATURE. THE ASSESSEE VIDE HIS SUBMISSION DATED 5.12.2011 ST ATED THAT THIS PAGE CONTAINS SOME ROUGH NOTING WITH RESPECT TO CERTAIN PROPOSALS BEING DISCUSSED WITH A PROPOSED BUSINESS PARTNER AND WORK ING OF ESTIMATED PROFITABILITY WITH REFERENCE TO DATES AS WELL. IT I S HAVING NO OTHER FINANCIAL IMPLICATION. THE AO DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE AND OBSERVED THAT THIS OFFICE HAS TO INTERPRET THE PAPE RS FOR ITS CONTENTS BASED ON THE FACTS AND FIGURES.' THE AO PROCEEDED BY HOLDING THAT RS. 5,90,00,000/- IS PAID BY THE ASSESSEE TO SHRI VIKRAM AGARWAL AND ADDED THE SAME TO THE IN COME OF THE ASSESSEE AS PER DOCUMENT EXHIBITED AT PAGE NO. 15 OF HIS ORD ER AND ADDED A SUM OF RS. 5,47,11,600/- TO THE INCOME OF THE ASSESSEE AS PER DOCUMENT EXHIBITED AT PAGE NO. 16 AND THEREFORE TOTAL ADDITION OF RS. 11, 37, 11,600/ - MADE TO THE INCOME OF THE ASSESSEE. AND AT PARA 30 SHOULD BE READ AS UNDER: 30. THERE IS ANOTHER ENTRY OF RS. 15 LAKHS ON DOCUM ENT EXHIBITED ON PAGE NO. 15 AND ACCORDINGLY ADDITION OF RS. 5.90 CRORES WAS MADE. IN RESPECT OF DOCUMENT EXHIBITED AT PAGE NO. 16 OF THE ASSESSMENT ORDER REFERS TO SHRI VIKRAMJI CHENNAI WITH PROFIT MARGIN 70% AND 30% TO THE ASSESSEE, THE AO HAS MADE THE ADDITION OF RS. 5,47,11,600/- BEING 30 % OF TOTAL AMOUNT OF RS. 18,23,72,000/- WHICH IS A SUM OF ALL THE ENTRIES ME NTIONED ON THE SAID DOCUMENT WHILE THE LD. CIT(A) HAS ENHANCED THE ADDI TION OF RS. 15,55,75,000/- IN A.Y. 2008-09 ON THE BASIS OF ENTR IES PERTAINING TO FINANCIAL YEAR 2007-08 AND ADDITION OF LAST ENTRY O F RS. 2,67,97,000/- IN A.Y. 2009-10, WHICH TANTAMOUNT TO ENHANCEMENT OF AD DITION BEING 100% OF TOTAL OF ALL THE ENTRIES MENTIONED ON DOCUMENT EXHI BITED PAGE NO. 16'. 12 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT WE FAILED TO PERSUADE OURSELVES TO GIVE ANY LOGICAL CONCLUSION / FINDING IN RESPECT OF THESE DOCUMENTS ON THE BASIS OF WHICH TH E AO HAS MADE THE ADDITION. THERE IS NOT EVEN AN IOTA OF EVIDENCE TO SHOW THAT THE AO HAS MADE AN ENQUIRY FROM THE SAID SHRI VIKRAMJEE AGARWA L. MERELY BECAUSE SOME FIGURES, WERE FOUND TO BE WRITTEN IN SOME DOCU MENT, THE AO CANNOT EXTRAPOLATE 50 AND INTERPRET 50 AS 50,00,000, 575 A S 575 LAKHS WITHOUT ANY CORROBORATIVE / DEMONSTRATIVE EVIDENCE. WITHOUT THE RE BEING ANY CORROBORATIVE EVIDENCE ADDITIONS MADE MERELY ON THE BASIS OF SOME ILLOGICAL AND IRRELEVANT ENTRY / JOTTING ON A PIECE OF PAPER CANNOT JUSTIFY THE ACTIONS OF THE AO AND OF THE LD. CIT(A). WE, THEREF ORE, DO NOT FIND ANY MERIT IN THE ADDITIONS MADE BY THE AO ON THE BASIS OF THESE DOCUMENTS. WE DIRECT THE AO TO DELETE THE ENTIRE ADDITIONS MADE O N THE BASIS OF THESE TWO DOCUMENTS. THE APPEAL FILED BY THE REVENUE IS DISMI SSED AND APPEAL FOR THE ASSESSEE FOR A.Y. 2008-09 IS ALLOWED. 12. FROM THE AFORE MENTIONED ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IT IS CLEAR THAT THE ITAT HAD ALREADY COME TO THE CONCLUS ION THAT NO ADDITIONS COULD HAVE BEEN MADE ON THE BASIS OF THESE 2 DOCUMENTS AN D THEREFORE THE APPEAL OF THE ASSESSEE FOR AY 2008-09 WAS ALLOWED THEREBY DELETIN G THE ADDITIONS MADE AND SINCE IN THE AFORE MENTIONED ORDER IT IS ALSO MENTI ONED THAT NO ADDITION COULD HAVE BEEN MADE EVEN IN AY 2009-10 I.E. YEAR UNDER CONSID ERATION, THEREFORE WHILE MAINTAINING JUDICIAL UNIFORMITY AND JUDICIAL CONSIS TENCY AS THE MATTER IN DISPUTE I.E. MAKING ENHANCEMENT BY CIT(A) OF RS. 2,67,97,000/- H AS ALREADY BEEN DECIDED BY HONBLE ITAT IN THE EARLIER YEARS AND ALSO OF YEAR UNDER CONSIDERATION. THEREFORE CONCURRING WITH THE SAID FINDINGS WE ALLOW THIS GRO UND OF APPEAL AND DELETE THE ADDITIONS/ ENHANCEMENT OF RS.2,67,97,0000/- MADE BY CIT(A). GROUND NO.8 13. GROUND NO.8 IS CONSEQUENTIAL IN NATURE. 13 ITA NO. 4521/MUM/2013(A.Y. 2009-10) SHRI. VIREN AHUJA VS. DCIT 14. GROUND NO.9 OF THE ASSESSEES APPEAL IS GENERAL IN NATURE AND HENCE, REQUIRES NO SPECIFIC ADJUDICATION. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2016 SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :21.09.2016 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI