TRIMURTY COLONIZERS & BUILDING P LTD., Jaipur V. DCIT, Jaipur

ITA 478/JPR/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2114 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Keywords: Document seized; Documents seized
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 486/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. THE DCIT, CENTRAL CIRCLE-3, JAIPUR. CUKE VS. TRIMURTY COLONIZERS & BUILDERS P LTD., 601, GEETA ENCLAVE, VINOBHA MARG, C-SCHEME, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACT 6613 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 478/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. TRIMURTY COLONIZERS & BUILDERS P LTD., 601, GEETA ENCLAVE, VINOBHA MARG, C-SCHEME, JAIPUR. CUKE VS. THE DCIT, CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACT 6613 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) AND SHRI ROHAN SOGANI (CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18.08.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 29/08/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. BOTH THESE CROSS APPEALS ARE FILED BY THE REVENUE A ND ASSESSEE AGAINST THE ORDER OF LD. CIT (A), CENTRAL, JAIPUR DATED 29.04.2 014 PERTAINING TO ASSESSMENT YEAR 2 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. 2008-09. BOTH THESE APPEALS ARE BEING DISPOSED OFF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FIRST, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 478/JP/2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL :- 1. IN LAW AND IN FACTS AND IN THE CIRCUMSTANCES O F THE APPELLANTS CASE, THE LEARNED CIT (A)-CENTRAL, JAIPUR HAS GROSS LY ERRED IN CONFIRMING ADDITION OF RS. 2782295 REFERABLE TO ANN EXURE A2 AND ANNEXURE A4 THOUGH IN FACTS OF THE CASE, THE IMPUGN ED ADDITIONS IS ALREADY PART OF THE TOTAL DISCOURSE MADE BY THE APP ELLANT. THE LD. CIT (A) IS NOT JUSTIFIED IN STATING THE ROUGH NOTING AN D JOTTINGS AGGREGATING TO RS. 2782295 IS OVER AND ABOVE THE ADDITIONAL INC OME OFFERED BY THE APPELLANT WHICH IS OTHERWISE NOT THE CASE. 2. WITHOUT PREJUDICE EVEN IN LAW AND IN FACTS OF TH E CASE, THE LD. CIT (A) IS NOT JUSTIFIED IN STATING THE DISCLOSURE IS GENERAL IN NATURE WHICH IN FACTS OF THE CASES HAD BEEN MADE TO COVER ALL THE ROUGH NOTING AND JOTTINGS AND TO BUY PEACE OF MIND. HE I S THEREFORE NOT JUSTIFIED IN APPRECIATING THE BREAKUP OF DISCLOSURE AVAILABLE ON RECORDS AND HENCE CIT (A) SHOULD HAVE DELETED THE ADDITION AND ASSESS THE INCOME RETURNED BY THE APPELLANT. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEF ORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMATIO N OF ADDITION OF RS. 27,82,295/- MADE BY THE AO. 3. BRIEFLY STATED FACTS ARE THAT A SEARCH OPERATION WAS CARRIED OUT ON 03.05.2007 AT THE PREMISES OF UDAIKANT MISHRA GROUP. THE ASSES SEE BEING PART OF UDAIKANT MISHRA GROUP. SUBSEQUENTLY, THE CASE OF THE ASSESSE E WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VID E ORDER DATED 30 TH DECEMBER, 2009. WHILE FRAMING THE ASSESSMENT, THE AO MADE AD DITION OF RS. 50,00,000/- ON THE BASIS OF ANNEXURE-A SEIZED DURING SEARCH PROCEE DINGS. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT (A), WH O AFTER CONSIDERING THE 3 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. SUBMISSIONS, PARTLY ALLOWED THE APPEAL. WHILE PART LY ALLOWING THE APPEAL, THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 27,82,295/- AND R EST OF THE ADDITION WAS DELETED. AGGRIEVED BY THIS ORDER, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 3.1. THE LD. COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. THE SUBMISSIONS OF THE ASSESSEE REP RODUCED HEREIN BELOW :- 3.1. LD. CIT (A) IN THE FIRST APPELLATE PROCEEDIN GS, ADDED RS. 27,82,295/- TO THE INCOME OF THE ASSESSEE COMPANY. SUCH AMOUNT ALREADY FORMED PART OF THE INCOME SURRENDERED BY TH E ASSESSEE COMPANY DURING THE COURSE OF SEARCH AND WAS ALSO OF FERED FOR TAX WHILE FILING THE RETURN OF INCOME. 3.2. BELOW MENTIONED IS THE SUMMARY OF THE CALCULAT ION DONE BY THE ASSESSEE COMPANY, LD. AO AND LD. CIT (A) IN ARRIVIN G AT THE TOTAL INCOME :- PARTICULARS WORKING DONE BY (AMOUNT IN RS.) ASSESSEE COMPANY LD. AO LD. CIT(A) ADDITION BASED ON ANNX A 1 39,616,002 39,750,902 39,750,902 ADDITION BASED ON ANNX A 2 683,325 683,325 683,325 ADDITION BASED ON ANNX A 4 1,964,070 1,964,070 1,964,070 ADDITION BASED ON ANNX A PAGES 20 &29 - 5,000,000 RELIEF GIVEN TOTAL AMOUNT BASED ON INCRIMINATING DOCUMENTS 42,263,397 47,398,297 42,398,297 ACTUAL AMOUNT SURRENDERED AND OFFERED FOR TAX 45,000,000 45,000,000 45,000,000 ADDITION MADE BY LD. AO - 2,398,297 - ADDITION MADE BY LD. CIT (A) (REFER TABLE BELOW FOR BREAKUP OF CALCULATION) 2,782,295 BREAKUP OF THE ADDITION MADE BY THE LD. CIT (A) AMOUNT (IN RS.) ADDITION BASED ON ANNX A 1 (ADDITIONAL AMOUNT ADDED BY LD. AO) 134,900 ADDITION BASED ON ANNX A 2 683,325 ADDITION BASED ON ANNX A 4 1,964,070 TOTAL 2,782,295 4 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. 3.3. LD. CIT (A), IN THE FIRST APPELLATE PROCEEDING S, ADDED RS. 27,82,295/- WHICH CONSISTED OF TOTAL OF ANNEXURES, AS MENTIONED ABOVE, ALREADY OFFERED BY THE ASSESSEE COMPANY TO T AX. 3.4. LD. CIT (A) GROSSLY ERRED IN ADDING A SUM OF R S. 27,81,395 WHICH EVEN LD. AO DID NOT ADD AND LD. AO HAD GIVEN CREDIT OF THIS AGAINST THE TOTAL SURRENDERED AMOUNT OF RS. 4.5 CRO RES. 3.5. THE ACTION OF LD. CIT (A) IN THIS REGARD AMOUN TS TO ENHANCEMENT FOR WHICH SHE NEEDS TO FOLLOW THE PROCEDURE LAID DO WN IN SECTION 251(2) OF THE INCOME TAX ACT 1961. 3.6. UNDISPUTEDLY, LD. CIT (A) HAS NOT FOLLOWED THE SAID PROCEDURE AND THEREFORE ON THIS LEGAL ASPECT ALONE, ADDITION CONFIRMED BY LD. CIT (A) DESERVES TO BE DELETED. IN VIEW OF THE ABOVE, ADDITION OF RS. 27,82,295/- M ADE BY THE LD. CIT (A) DESERVES TO BE DELETED BEING SUCH AMOUNT ALREAD Y OFFERED TO TAX BY THE ASSESSEE COMPANY BY CONSIDERING IT IN THE AM OUNT SURRENDERED DURING THE COURSE OF SEARCH. 3.2. ON THE CONTRARY, LD. D/R OPPOSED THE SUBMISSIO NS AND SUPPORTED THE ORDER OF THE AO. 3.3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE LD. CIT (A) HAS DECIDED THIS ISSUE BY OBSERVING AS UNDER :- 4.3. I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND SUBMISSIONS OF THE AR OF THE APPELLANT AND PARTLY CONCUR WITH THE SUBMISSIONS OF THE AR ON THE FOLLOWING GROUNDS : I) IT HAS BEEN SUBMITTED BY THE APPELLANT THAT DURING THE COURSE OF SEARCH AS PER THE STATEMENT TAKEN U/S 132(4) A SURR ENDER OF RS. 5 CR. HAD BEEN MADE ON THE BASIS OF THE DOCUMENTS A GAINST WHICH AN AMOUNT OF RS. 4.5 CR. WAS DISCLOSED WHILE FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 153A. ON PERUSAL OF THE NOTES ATTACHED WITH THE RETURN FILED IT IS SEEN THAT NO DETAILED WORKING OR CO-RELATION WITH THE SEIZED DOC UMENTS HAS BEEN DONE WHILE MAKING THIS SURRENDER. THE NOTE IS VERY GENERAL AND DOES NOT REFER TO ANY SPECIFIC DOCUMENTS SEIZED . IT IS NOT AT ALL AN EXHAUSTIVE NOTE AS CLAIMED BY THE AR OF THE APPELLANT. 5 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. II) THE COPY OF THE RELEVANT STATEMENT OF THE DIRECTORS WAS NOT FURNISHED WHEREIN THE DIRECTORS WERE CONFRONTED WIT H THE SPECIFIC DOCUMENTS. HOWEVER, COPIES OF LEDGER ACCOU NTS OF SALES IN THE BOOKS OF THE TWO COMPANIES NAMELY TRIMURTY C OLONIZERS & BUILDERS PVT. LTD. (TC&B PVT. LTD.) AND GEETA STAR HOTELS & RESORTS PVT. LTD. WERE FILED. ON PERUSAL OF THE LED GER ACCOUNT OF SALES IN FLATS AT D-52, IN THE CASE OF TC & B PVT. LTD. IT IS SEEN THAT RS. 2.51 CR. WERE SHOWN TO HAVE BEEN RECEIVED ON 31.3.2008. SIMILARLY, GEETA STAR HOTELS & RESORTS P VT. LTD. EARLIER KNOWN AS BLUESTAR INFRASTRUCTURE PVT. LTD. HAD SHOWN SALE OF SHOP OF RS. 3,00,86,347/- TO ROY BAHADUR NI RWAL. ALL THESE AMOUNTS REFLECTED IN THE RESPECTIVE COMPANIES ADD UPTO RS. 6,01,00,009/- THE FIGURE NOTED ON THE SEIZED DO CUMENTS. THUS THE SUBMISSION OF THE APPELLANT IS FOUND ACCEP TABLE THAT THE ENTIRE SALE RECEIPTS ON THE SALE OF THESE TWO S HOPS BY THE TWO COMPANIES WERE ACCOUNTED FOR AND WERE REFLECTED IN THEIR REGULAR BOOKS OF ACCOUNTS. THEREFORE THE ADDITION OF RS. 50 LAKH IS DELETED. IV) ON THE BASIS OF ANNEX. A-1 PAGE 20 AN ADDITION OF RS. 1,34,900/- HAS BEEN MADE WHICH IS THE DIFFERENCE BE TWEEN THE WORKING MADE BY THE ASSESSEE OF THE ENTRIES ON THIS PAGE OF RS. 31,09,100/- AND THAT DONE BY THE AO. ANNEX. A-2 CON TAINS THE DETAILS OF EXPENSES AND RECEIPTS AND AFTER DEDUCTIN G THE EXPENSES THE AMOUNT OF RS. 6,83,325/- HAS BEEN ADDE D TO THE INCOME OF THE APPELLANT. SIMILARLY ANNEX. A-4 HAD E NTRIES SHOWING RECEIPT OF RS. 19,64,070/-. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS IT WAS SUBMITTED THAT THIS A MOUNT OF MONEY HAD NOT BEEN RECEIVED. THE AO HAS OBSERVED TH AT ALL THE ENTRIES WERE VERY DETAILED REGARDING THE DATE OF RE CEIPT AND BALANCE HAD BEEN DRAWN AT REGULAR INTERVALS AND THE REFORE SHE ADDED THE AMOUNT FOR RS. 19,64,070/-. THE AR OF THE APPELLANT DID NOT FURNISH ANY SPECIFI C SUBMISSION OR EVIDENCE TO REBUT THE FINDING OF THE AO THEREFOR E, THE ADDITION MADE OF RS. 19,64,070/- ON THE BASIS OF TH ESE PAPERS IS REQUIRED TO BE CONFIRMED. AS MENTIONED IN PARA 4.3( I) BENEFIT OF THE SURRENDER OF RS. 4.50 CR WHILE FILING THE RETUR N CANNOT BE GIVEN TO THE APPELLANT BECAUSE THE SURRENDER WAS NO T CORRELATED TO THE DOCUMENTS BUT WAS GENERAL. 6 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. REGARDING THESE ADDITIONS OF RS. 27,82,295/- MADE B Y THE AO ON THE BASIS OF THE SEIZED DOCUMENTS IS CONFIRMED OVER AND ABOVE WHAT WAS DECLARED BY THE APPELLANT IN ITS RETURN. ON PERUSAL OF THE ASSESSMENT ORDER THERE APPEARS TO BE A CALCULATION MISTAKE BY THE AO WHILE DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH MAY BE RECTIFIED WHILE GIVING APPEAL EFFECT TO THIS ORDER. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE THAT THE ADDITION OF RS. 27,82,295/- CONSIST OF TOTAL AMOUNT OF ANNEXURES AND HAD ALREAD Y OFFERED FOR TAX BY THE ASSESSEE. WE, THEREFORE DELETE THE ADDITION MADE BY THE LD. CIT (A). HENCE THE GROUND NO. 1 IS ALLOWED. OTHER GROUNDS RAISED IN T HE APPEAL NEEDS NO SEPARATE ADJUDICATION. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 5. NOW WE TAKE UP THE REVENUES APPEAL IN ITA NO. 4 86/JP/2014. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- A. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) (CENTRAL), JAIPUR HAS ERRED IN DELETING THE ADDITION OF RS. 50,00,000/- MADE BY THE AO ON THE BASIS OF PAGE 20 & 29 OF SEIZED EXHIBIT ANNEXURE-A. B. THE APPELLANT CRAVES THE RIGHT TO AMEND, ALTER O R ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE RESPECTIVE PARTIES HAVE ADOPTED THE SAME ARGUMENTS AS MADE IN ITA NO. 7 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR. 478/JP/2014 HEREINABOVE. THE LD. D/R COULD NOT CONT ROVERT THE FINDINGS OF THE LD. CIT (A). THEREFORE, WE DO NOT FIND ANY REASON TO TA KE A DIFFERENT VIEW OF THE MATTER. THE ORDER OF THE LD. CIT (A) IS HEREBY AFFIRMED. 7. THE APPEAL OF THE REVENUE IS DISMISSED. 8. IN TOTALITY, APPEAL OF THE ASSESSEE IS ALLOWED W HEREAS APPEAL OF THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.08. 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 29/08/2017. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. TRIMURTY COLONIZERS & BUILD ERS P. LTD., JAIPUR. 2. THE RESPONDENT THE DCIT CENTRAL CIRCLE-3, JAIP UR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 486 & 478/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NO. 486 & 478/JP/2014 M/S. TRIMURTY COLONIZERS & BUILDERS PVT. LTD., JAIP UR.