Satish Dondulal Parakh, Nashik V. Assistant Commissioner of Income-tax,

ITA 526/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9155 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard
• Section: 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 523/PUN/2015 / ASSESSMENT YEAR : 2008-09 SMT. ASHA ASHOK KATARIYA, S.NO.861, ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK 422 001 PAN : ABDPK1113E . /APPELLANT V/S ACIT, CENTRAL CIRCLE - 1 , NASHIK . /RESPONDENT . / ITA NO. 525/PUN/2015 / ASSESSMENT YEAR : 2010-11 SHRI ASHOK MOTILAL KATARIYA, S.NO.861, ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK 422 001 PAN : ABDPK1068N . /APPELLANT V/S ACIT, CENTRAL CIRCLE - 1, NASHIK . /RESPONDENT . / ITA NO. 526/PUN/2015 / ASSESSMENT YEAR : 2008-09 SHRI SATISH DONDULAL PARAKH, S.NO.861, ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK 422 001 PAN : AATPP0793L . /APPELLANT V/S ACIT, CENTRAL CIRCLE - 1, NASHIK . /RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI RAJEEV KUMAR, CIT / DATE OF HEARING :26.07.2017 / DATE OF PRONOUNCEMENT: 28.07.2017 2 ITA NOS.523, 525 & 526/PUN/2015 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE 3 APPEALS UNDER CONSIDERATION FILED BY DI FFERENT ASSESSEES RELATING ASHOKA GROUP CASES. ITA NO.523/PUN/2015 I N CASE OF SMT. ASHA ASHOK KATARIYA AND ITA NO.526/PUN/2015 IN CASE OF S HRI SATISH D. PARAKH RELATES TO ASSESSMENT YEAR 2008-09 AND ITA NO.525/P UN/2015 IN CASE OF SHRI ASHOK MOTILAL KATARIYA RELATE TO ASSESSMENT YEAR 20 10-11. SINCE THE ISSUES RAISED IN THE ABOVE APPEALS ARE INTERCONNECTED AND COMMON THEY ARE BEING CLUBBED TOGETHER AND ADJUDICATED BY THIS COMPOSITE ORDER. 2. GROUNDS RAISED IN THE APPEALS OF SMT. ASHA ASHOK KATARIYA AND SHRI SATISH D. PARAKH RELATE TO THE ADDITION ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN FLAT IN BUILDING NAMED R.N.A. AZURE AT BANDRA, MUMBAI. 3. THERE IS AN ISSUE ADDITIONALLY RAISED IN THE APP EAL OF SHRI SATISH D. PARAKH AND IT RELATES TO THE CASH PAYMENTS IN RESPECT OF P URCHASE OF LAND SITUATED AT GAT NO.117, TALUKA SINNAR, KHOPADI. 4. COMING TO THE ISSUE RAISED IN SHRI ASHOK MOTILAL KATARIYA ITA NO.525/PUN/2015 FOR THE A.Y. 2010-11 REGARDING UNEX PLAINED INVESTMENT IN FLAT AT NOIDA, UTTAR PRADESH, IN ADDITION TO ANOTHER DIS ALLOWANCE OF DEDUCTION OF RS.1 LAKH U/S.80U OF THE ACT. 5. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE T HAT ASSESSEE IS AN INDIVIDUAL. ASSESSEE DID NOT FILE ANY RETURN OF INCOME. IN RES PONSE TO NOTICE U/S.153A OF THE ACT ASSESSEE FILED THE RETURN OF INCOME ON 17-10-20 11 DECLARING TOTAL INCOME OF RS.49,42,220/- AND AGRICULTURAL INCOME OF RS.43,780 /-. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CONDUCTED IN THE ASH OKA GROUP OF CASES ON 20-04- 2010. IN THE ASSESSMENT PROCEEDINGS, THE PAPERS MAR KED AS ANNEXURE A-3, BUNDLE NO.3 NUMBERED 1 TO 25 WERE SEIZED FROM THE O FFICE OF M/S. ASHOKA BUILDCON LIMITED AT NASHIK. ASSESSEE WAS CONFRONTE D WITH THE SEIZED PAPERS 3 ITA NOS.523, 525 & 526/PUN/2015 WHICH CONTAINED NOTINGS FOR PURCHASE OF PLOT AT NO IDA AND DELHI FLAT FOR TOTAL CONSIDERATION OF RS.71,50,000/- ALONG WITH INTEREST OF RS.9,05,000/-. IN RESPONSE TO NOTICE DATED 12-11-2002 ASSESSEE SUBMITTED HIS R EPLY VIDE LETTER DATED 10-01- 2013. REJECTING THE EXPLANATION GIVEN BY THE ASSES SEE THE AO ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS.1,60,92,210/- DISALLOW ING THE DEDUCTION U/S.80U. CIT(A) CONFIRMED THE ORDER OF THE AO. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FURTHER NARRATED THE BRIEF FACTS RELATING TO THE FLAT AT BANDRA, MUMBAI (CONCERNING ITA NOS. 523 AND 526/PUN/2015 SMT. ASHA ASHOK KATARIYA AND SHRI SA TISH D. PARAKH) AND EXPLAINED THE FACTS RELATING TO THE OUTCOME OF SEAR CH AND SEIZURE OF A DOCUMENT WHICH IS DULY EXTRACTED IN THE IMPUGNED ORDER OF TH E ORDER OF CIT(A). THE SAID DOCUMENT REVEALS THE PURCHASE DETAILS OF 3 FLATS, I .E. FLAT NO.201, 202 AND 203 IN BUILDING R.N.A. AZURE, MUMBAI. DISCUSSING THE MER ITS RELATING TO THE GROUNDS RAISED IN ALL THESE APPEALS, LD. COUNSEL FOR THE AS SESSEE MENTIONED THAT THERE ARE CERTAIN MAJOR DEVELOPMENTS AFTER THE AO AND THE CIT(A) PASSED THEIR ORDERS. 7. NARRATING THE SAME, LD. COUNSEL SUBMITTED THAT O N IDENTICAL FACTS BRIEFED ABOVE IN CONNECTION WITH THE CASE OF SHRI ASHISH AS HOK KATARIYA, THE TRIBUNAL VIDE ITA NO.524/PN/2015 ORDER DATED 30-09-2016 DELE TED THE ADDITION MADE BY THE AO CONCERNING THE ABOVE REFERRED FLAT NO.202. CONTENTS OF PARA 9 OF THE SAID ORDER OF THE TRIBUNAL ARE RELEVANT. AFTER GIV ING REASONS AND ALSO CONSIDERING THE DEVELOPMENTS BEFORE THE SETTLEMENT COMMISSION I N THE CASE OF M/S. ASHOKA BUILDCON LIMITED, WHERE THE APPLICANT MADE ADDITION AL INCOME BEFORE THE SETTLEMENT COMMISSION, THE TRIBUNAL HELD AS UNDER : 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .FURTHER, THE ASSES SEE CLAIMS THAT EVEN THE PARKING FEES OF RS.5 LAKHS IS FUNDED OUT OF CASH AVAILABLE WITH M/S . ASHOKA BUILDCON LTD. AND IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTAN CES, WE FIND MERIT IN THE CLAIM OF ASSESSEE AS THE ASSESSING OFFICER HAS FAILED TO BRING ON RECORD ANY EVIDENCE TO THE CONTRARY. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.30,55,000/- BEING HALF SHARE OF RS.61,10,000/ -. THE GROUND OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 4 ITA NOS.523, 525 & 526/PUN/2015 8. MENTIONING ABOUT THE RELEVANCE OF RATIO OF ANOTH ER ORDER OF THE TRIBUNAL IN THE CASE OF M/S. A.A. ESTATE PVT. LTD. VS. ACIT IN ITA NO.2438/MUM/2013 ORDER DATED 0502-2014 FOR THE A.Y. 2008-09, THE LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL DEALT WITH THE SAME ISS UE AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. FURTHER, HE RELIED ON THE ORDER OF SETTLEMENT COMMISSION DATED 15-07-2014 IN ORDER TO GET RELIEF FROM THE TRIBUNAL IN ALL THE CASES UNDER CONSIDERATION. BRIEFING ALL THESE DEVE LOPMENTS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE ISSUES RAISED B Y THE 3 ASSESSEES IN THE APPEALS UNDER CONSIDERATION, PRAYED FOR REMANDING A LL THE ISSUES TO THE FILE OF THE AO FOR FRESH ADJUDICATION BORROWING THE CONCLUSIONS DRAWN BY THE TRIBUNAL. 9. ON HEARING BOTH THE PARTIES, WE FIND SO FAR AS P URCHASE OF FLAT IN BANDRA, MUMBAI IS CONCERNED, THE ISSUES ARE COMPLETELY CONN ECTED BY WAY OF COMMON SEIZED DOCUMENT EXTRACTED IN PARA 2.1.5 OF THE ORDE R OF CIT(A) IN THE CASE OF SMT. ASHA ASHOK KATARIYA. AS SUCH, ALL THE 3 APPEA LS OF THE ASSESSEES UNDER CONSIDERATION ARE CONNECTED COMMERCIALLY OR RELATED TO M/S. ASHOKA BUILDCON LIMITED. THE ORDERS REFERRED TO BEFORE THE BENCH ( ITA NO.524/PN/2015 DT. 30- 09-2016 AND ITA NO.2438/MUM/2013 DT.05-02-2014) BY THE LD. COUNSEL FOR THE ASSESSEE WERE NOT AVAILABLE TO THE CONCERNED COMMIS SIONERS AT RELEVANT TIME FOR FAIR ADJUDICATION IN THE MATTERS. IT WAS ALSO MENT IONED THAT THE ASSESSEE DISCLOSED ADDITIONAL INCOME BEFORE THE SETTLEMENT C OMMISSION BY THE APPLICANT M/S. ASHOKA BUILDCON LIMITED AND THE SAID OFFER OF ADDITIONAL INCOME HAS BECOME FINAL BEFORE THE SETTLEMENT COMMISSION AND THE SAME IS BINDING ON THE PARTIES. THERE IS AN ISSUE OF ADDITIONS ON ACCOUNT OF ON-MON EY PAYMENTS IN RESPECT OF PURCHASE OF FLATS AT BANDRA, MUMBAI AND NOIDA, AS T HE CASE MAY BE. IF A DIFFERENT DECISION IS TAKEN BY US, IT MAY AMOUNT TO DOUBLE TAXATION OF THE SAME MONEY IN THE HANDS OF THE COMPANY AND THE SHAREHOLD ERS OF THE COMPANY. AS SUCH, SUCH DUPLICATION OF ADDITIONS ARE UNSUSTAINAB LE IN LAW. THEREFORE, WE ARE OF THE VIEW THAT ALL THE GROUNDS RAISED BY THE 3 AS SESSEES IN THE APPEALS SHOULD 5 ITA NOS.523, 525 & 526/PUN/2015 BE REMANDED TO THE FILE OF AO FOR FRESH ADJUDICATIO N. AO IS DIRECTED TO CONSIDER THE ABOVE REFERRED SUBMISSIONS AND DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE ORDERS OF THE TRIBUNAL (SUPRA) OR ORDERS OF INCOME- TAX SETTLEMENT COMMISSION SO FAR AS THEY ARE RELEVANT. WHEN IT COMES TO ADDITIO NAL ISSUES RAISED RELATING TO DEDUCTION U/S.80U OF THE ACT, THE AO MAY EXAMINE TH E ISSUE ALSO AFRESH AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THUS, ALL THE GROUNDS RAISED BY THE RESPECTIVE ASSESSEES ARE ALLO WED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, ALL THE 3 APPEALS OF THE ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JULY, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 28 TH JULY, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - 12 , PUNE 4. CIT - 12 , PUNE 5. , , A BENCH PUNE; 6. / GUARD FILE.