Manohar Bhikchand Agrawal, Dhule V. DCIT, Cir.-3(1), Dhule

ITA 600/PUN/2010

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4935 (ITAT-PUNE)
• Duration Of Justice: 8 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-01-2019
• Assessment Year: misc
• Appeal Filed On: 19-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S B PRASAD
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / ITA NO.600/PUN/10 BLOCK PERIOD 1988-1989 TO 1998-1999 MANOHAR BHIKCHAND AGRAWAL, CTS NO.4698, OPP. SHIVAJI STATUE, OLD AGRA ROAD, DHULE 424001 MAHARASHTRA PAN : ABIPA8984C VS. DCIT, CIRCLE-3(1), DHULE APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-1, NASHIK ON 24-02-2010 IN RELATION TO THE BLOCK PERIOD 1988-89 TO 1998-99. 2. THE FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.11,96,600/- WHICH WAS MADE TOWARDS UNDISCLOSED INCOME OF THE ASSESSEE ON THE BASIS OF HIS DECLARATION MAD E UNDER VDIS 1997, WHICH DID NOT EVENTUALLY MATERIALIZE. APPELLANT BY SHRI SUNIL GANOO RESPONDENT BY SHRI S.B. PRASAD DATE OF HEARING 11-02-2019 DATE OF PRONOUNCEMENT 12-02-2019 ITA NO.600/PUN/2010 MANOHAR BHIKCHAND AGRAWAL 2 3. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION U/S.132 OF THE INCOME-TAX ACT, 1961 (HEREINA FTER ALSO CALLED THE ACT) WAS CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 10-07-1997 WHICH CONCLUDED ON 12-07-97. PURSUANT TO NOTICE U/S. 158BC(A) OF THE ACT, THE ASSESSEE FILED HIS BLOCK RETURN DECLARING TOTAL UNDISCLOSED INCOME OF RS.60,000/-. SIMULTANEOUS WITH THE BLOCK RETURN FILED ON 29-12-1997, THE ASSESSEE ALSO FILED V DIS DECLARATION ON THE SAME DATE OFFERING AN INCOME OF RS.11,96,600/-. SUCH INCOME DECLARED IN VDIS DECLARATION WAS REDUCED BY THE ASSESSEE FROM THE GROSS UNDISCLOSED INCOME SHOWN IN THE BLOCK RETURN. THE ASSESSEES DECLAR ATION UNDER VDIS 1997 WAS REJECTED BY THE CONCERNED CIT, AGA INST WHICH THE ASSESSEE FILED WRIT PETITION BEFORE THE HONBLE BOMBAY HIGH COURT, AURANGABAD BENCH. THE SAME WAS ALS O SUBSEQUENTLY WITHDRAWN. THE AO COMPLETED THE ASSESSMENT U/S.158BC MAKING ADDITION, INTER ALIA, OF RS.11,96,600/-, BEING, THE SUBJECT MATTER OF THE REJECTED VDIS DECLARATION. THE ASSESSEE REMAINED UNSUCCESSFUL BEFORE THE LD. CIT(A ) ON THIS ACCOUNT, AGAINST WHICH HE HAS APPROACHED THE TRIBUNAL. ITA NO.600/PUN/2010 MANOHAR BHIKCHAND AGRAWAL 3 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS SEEN THAT THE ASSESSEES BROTHER, MR. PRAKASH BHIKCHAND AGRAWAL, WAS ALSO SIMULTANEOUSLY SUBJECTED TO SEARCH ON THE SAME DATE, I.E. 10-07-1997. H E ALSO FILED HIS RETURN FOR THE BLOCK PERIOD AND VDIS DECLARATION. AMOUNT OF INCOME AT RS.11,96,000/- DECLARED BY HIM UNDE R VDIS 1997 WAS REDUCED FROM THE TOTAL UNDISCLOSED INCOME DECLARED IN HIS BLOCK RETURN, IN THE SAME WAY IN WHICH IT HAS BEEN DONE BY THE ASSESSEE. THE DECLARATION WAS REJECTED . THE AO COMPLETED THE ASSESSMENT BY EXCLUDING THE INCOME OF RS.11,96,000/- DECLARED UNDER VDIS. THE LD. CIT INVOK ED HIS POWERS U/S.263 AND HELD THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE TO THAT EXTENT VIDE HIS ORDER PASSED ON 27-03-2002. HE DIRECTED THE AO TO ENH ANCE THE ASSESSED INCOME BY RS.11,96,000/-. THE ASSESSEE FILED APPEAL AGAINST SUCH ORDER PASSED U/S.263. VIDE ORDER D ATED 11-10-2007, THE TRIBUNAL, IN ITA NO.716/PN/2002, HAS SET- ASIDE THE ASSESSMENT ORDER AND REMITTED THE MATTER TO THE FILE OF AO WITH THE FOLLOWING OBSERVATIONS : 10. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE LEGAL POSITION AS DISCUSSED ABOVE, WE FIND SUBSTANTIAL MERIT IN WHAT THE LD. AR HAS CONTENDED. ITA NO.600/PUN/2010 MANOHAR BHIKCHAND AGRAWAL 4 THEREFORE THE AO IS DIRECTED TO EXAMINE THE PARTICULARS OF INCOME DECLARED UNDER VDIS 1997 AND TO ASSESS ONLY THAT PART OF SUCH INCOME AS UNDISCLOSED INCOME U/S.158BC, OR THE BLOCK PERIOD, WHICH CAN BE SO ASSESSED UNDER THE PROVISIONS OF THE CHAPTER XIVB. THE AO WILL KEEP IN MIND THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF SHAMLAL BALRAM GURBANI (SUPRA). THE DIRECTIONS GIVEN BY THE CIT TO THE AO IN HIS ORDER U/S.263 DATED 27.03.2002 ARE MODIFIED ACCORDINGLY. 5. WE FIND THAT IN SO FAR AS THE ADDITION OF RS.11,96,600/ - MADE IN THE HANDS OF THE ASSESSEE IS CONCERNED, THE FACTS ARE IDENTICAL TO THE FACTUAL MATRIX OBTAINING IN THE CASE OF ASSESSEES BROTHER, NAMELY, MR. PRAKASH BHIKCHAND AGRAW AL, WHO WAS ALSO SUBJECTED TO THE SEARCH AND SEIZURE ACTION ON THE SAME DATE. HE ALSO FILED VDIS 1997 OFFERING INCOME OF RS.11,96,000/- WHICH WAS REJECTED BY THE LD. CIT AND THE HONBLE BOMBAY HIGH COURT ALSO DID NOT ALLOW RELIEF TO HIM ON THAT SCORE. IT IS FURTHER NOTICED THAT IN THE HANDS OF THE ASSESSEES BROTHER ALSO, INCOME IN THE VDIS 1997 DECLARATIO N OF RS.11,96,000/- WAS ON ACCOUNT OF ENTRIES IN KACCHA C ASH BOOK, MARRIAGE EXPENSES AND PURCHASE OF ORNAMENTS, W HICH IS SIMILAR TO THE FACTS OF THE INSTANT CASE. THIS TRANSPIRES THAT THE FACTS AND CIRCUMSTANCES OF THE EXTANT CASE ARE SIMILAR TO THOSE OF MR. PRAKASH BHIKCHAND AGRAWAL, IN WHOSE CASE THE ADDITION HAS BEEN SET-ASIDE AND THE MATTER RESTORED TO THE FILE ITA NO.600/PUN/2010 MANOHAR BHIKCHAND AGRAWAL 5 OF AO FOR A FRESH DECISION. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE AND RESPECTFULLY FOLLOWING THE PRECEDENT, WE ALSO SET-ASIDE THE IMPUGNED ORDER AND REM IT THE MATTER TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH IN CONFORMITY WITH THE DIRECTIONS CONTAINED IN THE TRIBUNALS ORDER IN PARA NO.10, AS EXTRACTED ABOVE. NEEDLESS TO SAY , THE ASSESSEE WILL BE ACCORDED REASONABLE OPPORTUNITY OF HEARING . 6. THE SECOND GROUND CONCERNING ADDITION OF RS.60,000/ - PERTAINING TO REGULARLY DISCLOSED RENTAL INCOME FOR THE PERIOD 01-04-97 TO 10-07-97, WAS NOT PRESSED BY THE LD. AR. T HE SAME, THEREFORE, STANDS DISMISSED. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH FEBRUARY, 2019. SD/- SD/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESID ENT PUNE; DATED : 12 TH FEBRUARY, 2019 ITA NO.600/PUN/2010 MANOHAR BHIKCHAND AGRAWAL 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-1, NASHIK 4. 5. THE CIT-1, NASHIK , , / DR A, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 11-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *