Shri Halkuram Sahu, V. The D C I T 4 (1),

ITA 94/IND/2009

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3662 (ITAT-INDORE)
• Duration Of Justice: 10 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-09-2018
• Assessment Year: 2003-2004
• Appeal Filed On: 24-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: AVINASH GAUR A RS
• Keywords: Document seized; Documents seized; Set aside

Judgement Text

[ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.93&94/IND/2009 ASSESSMENT YEAR: 2003-04 & 2004-05 DHARAMPAL SAHU C/P I.P. SACHDEVA & CO. 40-B, 9 TH FLOOR JHABUA TOWER RNT MARG INDORE 452001 / VS. DCIT - 4(1) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AGTPS5125K IT(SS)A NOS.2&3/IND/2009 ASSESSMENT YEAR: 2003-04 & 2004-05 MUNNALAL SAHU C/P I.P. SACHDEVA & CO. 40-B, 9 TH FLOOR JHABUA TOWER RNT MARG INDORE 452001 / VS. DCIT - 4(1) INDORE (APPELLANT) (REVENUE ) P.A. NO. AHCPS6307H [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 2 APPELLANT BY S/SHRI MANJEET SACHDEVA & AVINASH GAUR, A.RS RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 23.09.2019 DATE OF PRONOUNCEMENT: 17.10.2019 / O R D E R PER KUL BHARAT, J.M: THIS BUNCH OF FOUR APPEALS BY TWO DIFFERENT ASSESSEE S ARE PERTAINING TO THE ASSESSMENT YEARS 2003-04 & 2004-0 5. ALL THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOS ED OFF BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF BRE VITY. FIRST WE TAKE UP ITA NOS.93 & 94/IND/2009. THE ASSES SEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ITA NO.93/IND/2009: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED BY CONFIRMING THE FOLLOWING ADDITION MADE TO THE DECLA RED TOTAL INCOME OF THE APPELLANT. I. ON INVESTMENT IN PLOT NO.124B SURYADEV NAGAR, IN DORE RS.225000/- II. ON INVESTMENT IN PLOT NO.26 & 27 IN JOINT WITH SHRI SANJAY VYAS RS.735000/- [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 3 III. ON ALLEGED SALE AGREEMENT EXECUTED BY SMT. REK HA SHARMA FOR 2 UNIT IN BALAJI PALACE RS.157000/- IV. ON LOANS AND ADVANCED WITH INTEREST RS.209000/- V. ON ESTIMATION OF INTEREST @ 2% ON RS.1278750/- RS. 33247/- VI. ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS RS. 65000/- TOTAL RS.1425147/- 2. THAT THE LEARNED CIT (A) HAS FAILED TO APPRECIATE A ND OR OVERLOOKED THE SUBMISSIONS MADE BY THE APPELLANT. 3. THAT THE LD. CIT(A) CONFIRMED THE ADDITION WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE TOTAL ADDITION OF RS.1425147/- ARE BAD IN LAW, ILLEGAL, WRONG, UNCALLED FOR AND UNWARRANTED. 5. THAT THE APPELLANT CARVES LEAVE TO ADD OR ALTER ANY GROUNDS OF APPEAL. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY AND ALSO THE ASSESSEE WAS NOT PROVIDED WITH THE MATERIAL GATHERED. IT IS FURTHER STATED THAT THE STATEMENTS WE RE TAKEN AT THE BACK OF THE ASSESSEE AND NO CROSS EXAMINATION [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 4 WAS PROVIDED. IT WAS FURTHER SUBMITTED THAT THE A.O. FAILED TO APPRECIATE THAT A COMMON NOTICE WAS ISSUED FOR ALL THE PERSONS AND THEREFORE, A COMMON REPLY WAS FILED. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE INTERE ST OF JUSTICE, ATLEAST AN OPPORTUNITY TO BE GIVEN TO THE ASSE SSEE. 3. LD. D.R. OPPOSED THESE SUBMISSIONS OF THE ASSESSE E AND SUBMITTED THAT THE ASSESSEE FAILED TO EXPLAIN THE ENTRIES MADE ON THE SEIZED DOCUMENTS. IT WAS INCUMBE NT UPON THE ASSESSEE TO SATISFACTORILY EXPLAIN THE MATERIA L SEIZED DURING THE SEARCH. THE ASSESSEE GROSSLY FAILED TO DO SO. 4. IN REJOINDER, LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT BOTH THE AUTHORITIES BELOW HAVE SIMPLY RECORDED T HAT THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN. IN FACT, THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO MAKE HIS SUBMISSIONS. UNDER THESE FACTS, HE PRAYED THAT THE [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 5 IMPUGNED ORDERS MAY BE SET ASIDE AND THE ASSESSMENT M AY BE RESTORED TO THE FILE OF THE A.O. FOR FRAMING THE ASSESSMENT DE-NOVO. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE GIVEN OUR THOUGHTF UL CONSIDERATION TO THE SUBMISSIONS MADE BY THE LD. AUTHORISED REPRESENTATIVES OF THE PARTIES AND ALSO MATERI AL PLACED BEFORE US. LOOKING TO THE FACTS AND CIRCUMSTANC ES AND THE ORDERS OF THE AUTHORITIES BELOW, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY IN THE INTEREST OF JUSTICE TO EXPLAIN TH E MATERIAL GATHERED DURING THE SEARCH SINCE BOTH THE AUTHORITIES HAVE DECIDED ON THE GROUND THAT THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN AND CORRELATE THE IMPUGNED ADDITIO NS WITH THE DISCLOSED SOURCE OF INCOME. HOWEVER, THE [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 6 SUBMISSION OF THE ASSESSEE IS THAT THERE IS NO UNDISC LOSED INCOME AND THE AUTHORITIES BELOW HAVE NOT APPRECIATED TH E FACTS IN RIGHT PERSPECTIVE. THEREFORE, THE IMPUGNED ORDER IS SET ASIDE AND THE ASSESSMENT IS RESTORED TO THE FILE O F THE A.O. TO MAKE ASSESSMENT AFRESH AFTER PROVIDING A REASONABLE OPPORTUNITY TO THE ASSESSEE. THE GROUINDS OF APPEAL ARE ALLOWED FOR STATISTICAL PURPOSE. APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.94/IND/2009: 6. NOW WE TAKE UP ITA NO.94/IND/2009. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE FOL LOWING ADDITION MADE TO THE DECLARED TOTAL INCOME OF THE APPELLANT. I. ON OUT OF EXCESS CASH FOUND RS.613312/- II. ON COMMISSION AND HUNDI BROKERAGE RS.40500/- III. ON COMMISSION ON SALE OF PLOTS OF IDA SCH. NO.103, INDORE RS.60000/- IV. ON INVESTMENT IN PLOT NO.47 SUDARSHAN NAGAR, INDORE RS.1170577/- [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 7 V. ON INCOME FROM TRANSACTION IN VIP NAGAR, INDORE RS.100000/- VI. ON INVESTMENT IN PLOT NO.36-37 SUDARSHAN NAGAR, INDORE RS.700000/- VII. ON INCOME FROM SALE OF PLOT NO.4 VIDHYANAGAR, INDORE RS.185000/- VIII. ON LPS-2/PAGE 16 RS.825000/- IX. ON BS-1/7 PAGE 2 RS.250000/- X. ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS RS.70000/- TOTAL RS.4014389/- 1. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE AND OR OVERLOOKED THE SUBMISSIONS MADE BY THE APPELLANT. 2. THAT THE LD. CIT(A) CONFIRMED THE ADDITION WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE TOTAL ADDITION OF RS.4014389/- ARE BAD IN LAW, ILLEGAL, WRONG, UNCALLED FOR AND UNWARRANTED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY GROUNDS OF APPEAL. 7. THE FACTS ARE IDENTICAL AS WERE IN ITA NO.93/IND/200 9. THEREFORE, WITH THE SAME REASONING, THE GROUNDS OF AP PEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE IMPUGNED ORDER IS SET ASIDE TO THE FILE OF THE A.O. FOR MAKING ASSESSMENT AFRESH. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 8 ITA NO.2/IND/2009: 8. NOW WE TAKE UP ITA NOS.2/IND/2009. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ITA NO.2/IND/2009: 1. THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE ADD ITION OF RS.50000/- ON ACCOUNT OF ALLEGED SALE OF PLOT AND RS.65000/- O N ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS OF THE DECLARED TOTAL INCOME OF THE APPELLANT. 2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE AN D OR OVERLOOKED THE SUBMISSIONS MADE BY THE APPELLANT. 3. THAT THE LD. CIT(A) CONFIRMED THE ADDITION MADE TO THE DECLARED TOTAL INCOME OF THE APPELLANT ON ABOVE ACCOUNT WITHOUT CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT ADDITION OF RS.50000/- ON ACCOUNT OF SALE OF P LOT AND RS.65000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS ARE WRONG, BAD IN LAW AND UNWARRANTED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY GROUNDS OF APPEAL. 9. THE FACTS ARE IDENTICAL AS WERE IN ITA NO.93/IND/200 9. THEREFORE, WITH THE SAME REASONING, THE GROUNDS OF AP PEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE IMPUGNED ORDER IS SET ASIDE TO THE FILE OF THE A.O. FOR [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 9 MAKING ASSESSMENT AFRESH. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3/IND/2009: 10. NOW WE TAKE UP ITA NOS.3/IND/2009. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE FOL LOWING ADDITION MADE TO THE DECLARED TOTAL INCOME OF THE APPELLANT: - I. ON SALE OF PLOT RS.50,000/- II. ON SALE OF PLOT RS.6,00,000/- III. ON SALES OF PLOT FROM THREE PERSONS RS.3,72,666./- IV. ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS RS.70,000/- TOTAL RS.10,92,666/- 2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE AN D OR OVERLOOKED THE SUBMISSIONS MADE BY THE APPELLANT. 3. THAT THE LD. CIT(A) CONFIRMED THE ADDITION WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE ADDITION MADE ON ACCOUNT OF SALE OF PLOT A ND RS.50000/- + RS.6090000/- + RS.372666/- TOTALLING TO RS.10,22,66 6/- ARE BAD IN LAW, ILLEGAL, WRONG, UNCALLED FOR AND UNWARRANTED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY GROUNDS OF APPEAL. [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 10 11. THE FACTS ARE IDENTICAL AS WERE IN ITA NO.93/IND/20 09. THEREFORE, WITH THE SAME REASONING, THE GROUNDS OF AP PEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE IMPUGNED ORDER IS SET ASIDE TO THE FILE OF THE A.O. FOR MAKING ASSESSMENT AFRESH. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE I N ITA NOS.93&94/IND/2009 FOR THE A.YS 2003-04 & 2004-05 & THE APPEALS FILED BY ANOTHER ASSESSEE IN ITA NOS.2&3/IND/2009 FOR THE A.YS 2003-04 & 2004-05 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17. 10.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 17/10/2019 VG/SPS [ITA NOS.93&94/IND/2009 & IT(SS)A NOS.2 & 3/IND/2009] [DHARAMPAL SAHU & MUNNA LAL SAHU, INDORE] 11 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE