DCIT , CC -6(3), MUMBAI V. RAJESH J. JOGANI, MUMBAI

ITA 6828/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4094 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 30-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY JAISWAL DR
• Keywords: Search and seizure; Loose papers; Document seized; Documents seized
• Section: 143(3); 153A; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI , , $ BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER . 6828 //201 8 (. . 2013-14 ) ITA NO. 6828/MUM/2018 (A.Y.2013-14) DCIT, CC-6(3), ROOM NO.1926, 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI 400021 ...... - / APPELLANT VS. SHRI RAJESH J. JOGANI BW-7012/13, BHARAT DIAMOND BOURSE, BKC, BANDRA (EAST), MUMBAI-400051. PAN: ABNPJ1523F ..... ./ RESPONDENT - 0/ APPELLANT BY : SHRI VIJAY JAISWAL [DR (CIT)] . 0/ RESPONDENT BY : NONE 1 / DATE OF HEARING : 22/10/2020 1 / DATE OF PRONOUNCEMENT : 29/10/2020 2 ITA NO. 6828 MUM 2018-SHRI RAJESH J. JOGANI / ORDER PER VIKAS AWASTHY, JM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-54, MUMBAI [IN SHORT (THE CIT(A)) DATED 17.09.2018 FOR THE ASSESSMENT YEAR 2013-14. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RE CORDS ARE: A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED THE ACT) WAS CARRIED OUT AT THE PREMISES OF M/S PARAM PROPERTIES ON 04.09.2015. DURING THE COURSE OF SEARCH CERTAIN LOO SE PAPERS WERE FOUND AND SEIZED. THE SAID DOCUMENTS REVEAL TRANSACTIONS IN T HE NAME OF ASSESSEE. THE ASSESSEE DENIED TO HAVE ANY LINK WITH THE TRANSACTI ONS WITH THE PARAM PROPERTIES. HOWEVER, THE ASSESSEE ADMITTED THAT THE ASSESSEE HAD PAID RS. 25,00,000/- TO M/S DRB RAVANI DEVELOPERS FOR BOOKIN G A FLAT IN THE HOUSING PROJECT CELESTIAL DREAMS. IT WAS FURTHER CONTENDED THAT TRANSACTION WITH M/S DRB RAVANI DEVELOPERS WAS DIRECT TRANSACTION WITHOU T THERE BEING ANY INTERMEDIARY OR AGENT. THE ASSESSEE DENIED TO HAVE MADE ANY TRANSACTION IN CASH. TO SUPPORT HIS CONTENTIONS, THE ASSESSEE FILE D AFFIDAVIT SWORN IN BY SHRI DILIP BHAI RAVANI, PARTNER IN M/S DRB RAVANI DEVELO PERS. NOT CONVINCED WITH THE SUBMISSIONS OF ASSESSEE, THE ASSESSING OFFICER (AO) MADE ADDITION OF RS. 1,87,00,000/- ON THE BASIS OF ENTRIES ON LOOSE PAPE RS SEIZED FROM THE PREMISES OF M/S PARAM PROPERTIES. AGGRIEVED BY THE ASSESSMENT ORDER DATED 29.12.2016 PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER EXAMINING THE FACTS OF CA SE AND DOCUMENTS ON RECORD DELETED THE ADDITION. AGAINST THE FINDINGS OF CITA) , THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3 ITA NO. 6828 MUM 2018-SHRI RAJESH J. JOGANI 3. SHRI VIJAY JAISWAL REPRESENTING THE DEPARTMENT V EHEMENTLY DEFENDED THE ADDITION MADE BY AO ON ACCOUNT OF UNACCOUNTED INVES TMENT IN THE PROJECT DEVELOPED BY DRB RAVANI DEVELOPERS TO M/S PARAM PRO PERTIES. THE LD. DR SUBMITTED THAT DURING ASSESSMENT PROCEEDINGS, THE A SSESSEE ADMITTED THAT IF ANY ADDITION IS MADE ON THE BASIS OF LOOSE SHEETS T HE SAME SHOULD BE MADE IN THE NAME OF ASSESSEE AND NOT IN THE NAME OF SANGEET A JOGANI. THE LD. DR FURTHER CONTENDED THAT LOOSES SHEETS FOUND DURING T HE COURSE OF SEARCH PROVES BEYOND DOUBT THAT THE ASSESSEE HAS MADE INVESTMENTS IN THE PROJECT DEVELOPED BY M/S DRB RAVANI DEVELOPERS THROUGH M/S PARAM PROP ERTIES. THE CIT(A) HAS FAILED TO CONSIDERING VITAL ASPECTS AND HAS DELETED THE ADDITION. THE DR PRAYED FOR REVERSING THE FINDINGS OF CIT(A) AND RESTORING THE ADDITIONS MADE BY AO. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DR AND HAVE EXAMINED THE ORDERS OF AUTHORISERS BELOW. THE ADDITION HAS BEEN MADE IN THE HANDS OF ASSESSEE ON ACCOUNT OF UNDISCLOSED INVESTMENT UNDER SECTION 69 OF THE ACT ON THE BASIS OF LOOSE SHEETS FOUND AND SEIZED AT THE P REMISES OF M/S PARAM PROPERTIES. THE CONTENTION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES IS THAT THE ASSESSEE HAD NO BUSINESS TRANSACTION WITH PARAM PROPERTIES, THE ASSESSEE HAD BOOKED A FLAT WITH M/S DRB RAVANI DEVELOPERS WH ICH WAS SUBSEQUENTLY CANCELLED. AN AFFIDAVIT FROM SHRI DILIP BHAI RAVANI WAS ALSO FURNISHED BEFORE THE ASSESSING OFFICER, WHEREIN HE HAD STATED THAT THE A SSESSEE HAS BOOKED A FLAT WITH DRB RAVANI DEVELOPERS FOR A CONSIDERATION OF R S. 1,68,07,500/-. BOOKING AMOUNT OF RS. 25,77,250/- INCLUDING SERVICE TAX OF RS. 77,250/- WAS RECEIVED FROM THE ASSESSEE. UPON SUBSEQUENT CANCELLATION OF THE FLAT, THE AMOUNT WAS REFUNDED TO THE ASSESSEE. SHRI DILIP BHAI RAVANI AL SO AFFIRMED THAT THERE WAS NO INTERMEDIARY/BROKER IN THE SAID TRANSACTION. 4 ITA NO. 6828 MUM 2018-SHRI RAJESH J. JOGANI 5. THE CIT(A) AFTER CONSIDERING THE DOCUMENT ON REC ORD AND THE DECISIONS OF THE TRIBUNAL IN THE CASE OF RIVERA PROPERTIES PVT. LTD. (MUMBAI TRIB.) AND JAWAHARBHAI ATMARAM HATHIWALA VS. ITO REPORTED IN 1 28 TTJ 36 (AHMD. TRIB.) AND VARIOUS OTHER DECISIONS HELD THAT THE ADDITION MADE ON THE BASIS OF DOCUMENTS/LOOSE PAPERS SEIZED FROM THIRD PARTY PREM ISES WITHOUT ANY CORROBORATIVE EVIDENCE CANNOT BE SUSTAINED. 6. IT IS AN UN-REBUTTED FACT THAT THE LOOSE SHEETS ON THE BASIS OF WHICH ADDITION HAS BEEN MADE IN THE PRESENT CASE WERE SEI ZED FROM THE PREMISES OF THIRD PARTY WITH WHOM THE ASSESSEE HAD NO TRANSACTI ONS. THE REVENUE HAS FAILED TO ESTABLISH LINK BETWEEN M/S PARAM PROPERTIES AND THE FLAT BOOKED BY ASSESSEE WITH DRB RAVANI DEVELOPERS. IT IS NOT EMANATING FRO M RECORDS OR FROM SEIZED DOCUMENTS THAT THE ASSESSEE BOOKED THE FLAT THOUGH PARAM PROPERTIES. SHRI DILIP BHAI RAVANI REPRESENTING DRB RAWANI DEVELOPER S HAS SWORN AN AFFIDAVIT THAT THE FLAT WAS BOOKED BY THE ASSESSEE WHICH WAS SUBSEQUENTLY CANCELLED AND THE BOOKING AMOUNT WAS REFUNDED. AS PER THE AFFIDAV IT THERE WAS NO INTERMEDIARY/ BROKER IN THE SAID TRANSACTION. THE R EVENUE HAS NOT BROUGHT ON RECORD ANY TRANSACTION TO ESTABLISH DIRECT LINK BET WEEN THE ASSESSEE AND M/S PARAM PROPERTIES. DURING SEARCH AT THE PREMISES OF THE ASSESSEE, NO DOCUMENT WAS FOUND WHICH COULD SUGGEST THAT THE ASSESSEE HAS MADE UNDISCLOSED INVESTMENT IN PROPERTIES THROUGH M/S PARAM PROPERTI ES. 7. WE FURTHER OBSERVE THAT THERE IS NO STATEMENT FR OM THE PROPRIETOR/PARTNER OF M/S PARAM PROPERTIES, ADMITTI NG THAT THERE WAS TRANSACTION FOR INVESTMENT IN PROPERTIES BY THE ASS ESSEE THROUGH THE FIRM. MERELY ON THE BASIS OF UNSIGNED LOOSE SHEETS SEIZED FROM THIRD PARTY WITHOUT THEIR BEING CORROBORATIVE EVIDENCE ADDITIONS CANNOT BE MADE IN THE HANDS OF 5 ITA NO. 6828 MUM 2018-SHRI RAJESH J. JOGANI ASSESSEE. WE CONCUR WITH THE FINDINGS OF CIT(A) AND UPHOLD THE SAME. THE APPEAL OF REVENUE IS DEVOID OF ANY MERIT AND HENCE, DISMISSED. 8. IN THE RESULT, APPEAL BY THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON TUESDAY THE 29 TH DAY OF OCTOBER, 2020. SD/- ./- SD/- ./- (RAJESH KUMAR) (VIKAS AW ASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, 5/ DATED: 29/10/2020 S.K., PS . 6 . 6 . 6 . 6 COPY OF THE ORDER FORWARDED TO : 1. - / THE APPELLANT , 2. . / THE RESPONDENT. 3. 7 ( )/ THE CIT(A)- 4. 7 CIT 5. . , . . . , / DR, ITAT, MUMBAI 6. : / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI