ACIT CC 39, MUMBAI V. JAI AMBE LAND INFRASTRUCTURE P.LTD, MUMBAI

ITA 969/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4004 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 17-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: RAMESH JAIN
• Keywords: Unexplained expenditure; Search and seizure; Document seized
• Section: 69C; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBA I BENCH J, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.969/MUM/2014 ASSESSMENT YEAR: 2008-09 ACIT, CC-39, ROOM NO. 31(1), GROUND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. VS. M/S JAI AMBE LAND INFRASTRUCTURE P. LTD. DN 416, SECOND FLOOR, PLOT NO. 6, SECTOR 11, DRONAGIRI-400702 PAN: AABCJ8095N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ALOK JOHRI (DR ) ASSESSEE BY : SHRI RAMESH JAIN (AR) DATE OF HEARING : 05.04.2016 DATE OF PRONOUNCEMENT : 13.04.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-39, MUMBAI DATED 28.11.2013 DELETING THE PENALTY LEVIED U/S. 271(1)( C) OF THE I.T. ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE W AS SUBJECT TO SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT AND DURING THE SEARCH IT WAS DI SCOVERED THAT HUGE TRACTS OF LAND WERE ACQUIRED AND PURCHASED AND CONSIDERATION IN RESPECT OF THE COST OF LAND WAS PARTLY PAID THROUGH CHEQUE AND PARTLY PAID THROUGH CASH AND THI S REAL ESTATE OPERATIONS WERE HANDLED BY CORE GROUP OF PERSON ONE OF THEM SHRI DILIP DHER AI, WHO IS ONE OF THE DIRECTOR OF THESE PVT. LTD. COMPANIES. DURING THE SEARCH STATEMENT OF SHRI DILIP DHERAI WAS RECORDED WHEREIN HE HAS ADMITTED THAT THE FIGURE MENTIONED I N THE SEIZED PAPER WERE CASH PAID OVER AND ABOVE THE CHEQUE PAYMENTS DECLARED IN THE BOOKS OF ACCOUNTS. THE STATEMENT WAS LATERON RETRACTED. ON THE BASIS OF STATEMENT, THE A O MADE THE TOTAL ADDITION OF RS. 43.46 CRORES AS AN UNEXPLAINED EXPENDITURE U/S. 69C OF TH E I.T. ACT. 2 ITA NO.969/M/2014 M/S. JAI AMBE LAND INFRASTRUCTURE P. LTD . 3. AS THE TRANSACTION RELATING TO PURCHASE OF LAND AND CASH PAYMENTS RELATES TO 52 COMPANIES, THUS THE AO PROPORTIONATELY DISTRIBUTE THE UNEXPLAI NED EXPENDITURE TO ALL COMPANIES WHO HAD PURCHASED LAND IN VARIOUS VILLAGE. AND IN CASE OF ASSESSEE, THE AO ADDED RS. 52,19,000/- AS UNEXPLAINED EXPENDITURE U/S. 69C OF THE ACT. 4. THE ASSESSEE PREFERRED AN APPEAL AGAINST THE QUANTU M ASSESSMENT, THE SAME WAS DISMISSED CONFIRMING THE ADDITION BY CIT(A) AND IN APPEAL TO ITAT THE ADDITION WAS DELETED, THEREAFTER, PENALTY PROCEEDING WAS INITIATED. THE A SSESSEE CONTESTED THE NOTICE OF PENALTY PROCEEDING AND SUBMITTED THAT ASSESSEE-COMPANY HAS NOT CONCEALED THE INCOME NOR FURNISHED INACCURATE PARTICULARS. THE ADDITION U/S. 69C WAS MADE ON THE BASIS OF DOCUMENT FOUND IN THE PREMISES OF SHRI DILIP DHERAI. SHRI DI LIP DHERAI IS NEITHER A DIRECTOR NOR AN EMPLOYEE OF THE ASSESSEE-COMPANY AND NO RELIANCE CA N BE PLACED ON THE DOCUMENT SEIZED FROM HIM. 5. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED AND AO LEVIED THE PENALTY OF RS. 16,12,671/- BEING 100% OF THE TAX SOUGHT TO BE EVAD ED. AGAINST WHICH THE APPEAL WAS FILED BEFORE THE CIT(A). THE CIT(A) AFTER CONSIDERI NG THE EXPLANATION AND ORDER OF ITAT WHEREIN ADDITION MADE U/S. 69C OF THE ACT WAS DELET ED THE PENALTY. 6. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 7. WE HAVE HEARD THE DEPARTMENTAL REPRESENTATIVE (DR) OF THE REVENUE AND AUTHORISED REPRESENTATIVE (DR) OF THE ASSESSEE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 8. DR FOR REVENUE RELIED UPON THE ORDER OF AO AND SUBM ITTED THAT THE CIT(A) ERRED IN DELETING THE PENALTY. DR FURTHER URGED TO REVERSE T HE ORDER OF CIT(A) AND RESTORE THE ORDER PASSED BY AO. 9. AR OF THE ASSESSEE HAS ARGUED THAT IN THE QUANTUM A SSESSMENT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT WHICH WAS REGISTERED AS ITA NO. 8230/MUM/2011 WHEREIN THE ADDITION MADE AGAINST THE ASSESSEE U/S. 69C OF THE ACT HAS BEEN DELETED IN THE ORDER DATED 22.03.2013. HENCE, THE ORDER OF PENALTY IS NOT SUST AINABLE AFTER DELETING THE ADDITION U/S. 69C IN QUANTUM ASSESSMENT. 10. WE HAVE SEEN THE ORDER OF ITA NO. 8230/MUM/2011 WHE REIN IN PARAGRAPH NO. 25 & 26 OF THE ORDER, THE CO-ORDINATE BENCH OF THIS TRIBUNAL H AS HELD: 25. IN OUR CONSIDERED VIEW, THERE IS BEING NO EVID ENCE TO SUPPORT THE REVENUES CASE THAT A HUGE FIGURE, WHATEVER BE ITS QUANTUM, O VER AND ABOVE THE FIGURE BOOKED IN THE RECORDS AND ACCOUNTS CHANGED HANDS BETWEEN T HE PARTIES, NO ADDITION COULD THEREFORE BE MADE U/S. 69C OF THE ACT TO THE INCOME OF THE ASSESSEE. CONSIDERING THE ENTIRE FACTS BROUGHT ON RECORD, WE HAVE NO HESITATI ON TO HOLD THAT EVEN ON MERITS, NO ADDITION COULD BE SUBMITTED. 26. SINCE WE HAVE ALLOWED THE ISSUE IN THE CASE O F THE PRESENT ASSESSEE ON BOTH COUNTS I.E. ON LEGAL ISSUE AND ON MERIT AND THE ISS UES INVOLVED IN ALL OTHER APPEALS OF OTHER ASSESSEES ARE SIMILAR AND IDENTICAL, THOUGH Q UANTUM MAY DIFFER, FOR SIMILAR 3 ITA NO.969/M/2014 M/S. JAI AMBE LAND INFRASTRUCTURE P. LTD . REASONS, WE QUASH THE ASSESSMENTS AND DELETE THE AD DITIONS ON MERIT AS WELL AS ON POINT OF LAW IN ALL OTHER CASES ALSO. 11. WE HAVE SEEN THE ADDITION, ON THE BASIS OF WHICH TH E PENALTY WAS LEVIED, HAS ALREADY BEEN DELETED BY THE CO-ORDINATE BENCH OF ITAT, HENCE, TH E ORDER OF PENALTY DOES NOT SUSTAINED. 12. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE CONTENTION/GROUND OF APPEAL RAISED BY THE REVENUE IN THE PRESENT APPEAL, HENCE, THE SAME IS DISMISSED. 13. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH APRIL, 2016. SD/- SD/- (R. C. SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 13/04/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/