Shri Jagdishbhai R.Patel, Ahmedabad V. The Income tax Officer,Ward-3(2), Ahmedabad

ITA 974/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76789 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-05-2014
• Assessment Year: 1994-1995
• Appeal Filed On: 01-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Unexplained investment
• Section: 143(3); 142(1); 147; 68; 148; 144; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER JAGDISHBHAI R. PATEL 11, TULIP BUNGLOWS, OPP. DRIVE IN CINEMA, THALTEJ, AHMEDABAD PAN: AACHP 2359 B (APPELLANT) VS INCOME TAX OFFICER, WARD 3(2), AHMEDABAD (RESPONDENT) REVENUE BY: SRI P.L. KUREEL, SR.D.R. ASSESSEE BY: NONE DATE OF HEARING : 26-05-2014 DATE OF PRONOUNCEMENT : 30-05-20 14 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A), GANDHINAGAR DATED 30-08-2010. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- 1. THE ORDER PASSED BY THE LD. CIT(A) IS AGAINST L AW EQUITY AND JUSTICE AND SAME IS WHOLLY ILLEGAL, UNLAWFUL AND BA D IN LAW. ITA NO.974/AHD/2011 ASSESSMENT YEAR 1994-95 I.T.A NO. 974/AHD/2011 A.Y. 1994-95 PAGE NO SRI JAGDISHBHAI R. PATEL VS. ITO 2 2. THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/O R FACTS UPHOLDING THE ORDER OF THE LD. A.O. IN CONSIDERING UNEXPLAINED INVESTMENT IN HOUSE PROPRIETY THUS UPHOLDING ADDITI ON OF RS. 478750/- U/S. 69 OF THE ACT. 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE DESPITE THE THAT FACT THAT NOTICE FOR TODAYS HEARI NG WAS SENT TO HIM. NO APPLICATION FOR ADJOURNMENT WAS ALSO FILED BY THE A SSESSEE. SO, WE PROCEEDED TO DECIDE THE APPEAL AFTER HEARING LD. DR . 4. BRIEF FACTS OF THE CASE ARE THAT ASSESSEES CASE WAS RE-OPENED ON THE BASIS OF STATEMENT OF BUILDER RECORDED IN THE C OURSE OF SEARCH CONDUCTED ON 27-03-92 AT THE PREMISES OF M/S. DESA I BROTHERS AND ASSOCIATES. THE NOTICE U/S. 148 WAS ISSUED TO EXAM INE THE CHARGEABILITY OF INCOME OF RS. 14,60,000/- (INCLUSIVE OF ON MONEY OF RS. 4,78,750/-) TOWARDS BUNGALOW NO. 11, TULIP BUNGALOWS SCHEME. I N THE ORIGINAL ORDER, THE AO HAS NOTED THAT THE BUILDER HAD ADMITTED OF R ECEIVING 60% PAYMENT BY CHEQUE AS OFFICIAL PAYMENT AND 40% PAYMENT IN CA SH AS ON MONEY TOWARDS THE COST OF BUNGALOW IN TULIP-I AND II SCHE ME. THE ASSESSEE HAS PURCHASED BUNGALOW IN ASSESSMENT YEAR 1994-95 AND P AID THE COST OF BUNGALOW IN THE SAME YEAR. BUT IT WAS BOOKED BEFOR E CONDUCTING THE SEARCH ON BUILDER AS EVIDENT FROM INCRIMINATING DOC UMENT SEIZED FROM BUILDER. ACCORDINGLY, AS PER AO ASSESSEE HAS PAID RS. 9,81,250/- BY CHEQUE AS SHOWN IN THE RETURN OF INCOME FOR ASSESSM ENT YEAR 1994-95 AND RS. 4,78,750/- AS ON MONEY @ 40% OF COST BY BUNGA LOW OF RS. 14,60,000/-. ON ASSESSEES REQUEST SUMMONS DATED 16 -01-2001 WAS ISSUED TO ASSESSEE AS WELL AS THE BUILDER FOR CROSS EXAMINATION. NEITHER OF THEM ATTENDED THE OFFICE ON THE DATE GIVEN IN THE N OTICE/SUMMON. THEREFORE, THE AO HELD THAT THE BUILDER HAD NOTHING TO SAY IN ADDITION TO HIS I.T.A NO. 974/AHD/2011 A.Y. 1994-95 PAGE NO SRI JAGDISHBHAI R. PATEL VS. ITO 3 STATEMENT RECORDED DURING THE COURSE OF SEARCH. HO WEVER, THE ASSESSEE FILED A LETTER DATED 20-01-2001 FOR PROVIDING THE C OPY OF STATEMENT OF DESAI BROTHERS AND ASSOCIATES REGARDING ON MONEY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AR OF THE ASSESSEE WAS SPECIFICALLY SHOWN THE STATEMENT RECORDED OF THE BUILDER AND ALSO SHOW N THE COPY OF LETTER PAD OF AMBICA COTTON COMPANY SEIZED DURING THE SEARCH, IN WHICH THE BUNGALOW-WISE COST WAS MENTIONED BY THE BUILDER. T HE COST OF BUNGALOW NO. 11 WAS SHOWN AT RS. 14,60,000/-. 5. WHEN MATTER TRAVELLED TO FIRST APPELLATE AUTHORI TY, THE LD. CIT(A) DELETED THE ADDITION MADE ON ACCOUNT OF ON MONEY VI DE HIS ORDER DATED 09-11-2002. REVENUE FILED APPEAL BEFORE HONBLE IT AT, AHMEDABAD, THE HONBLE ITAT RESTORED THE MATTER BACK TO THE FILE O F AO FOR ADJUDICATION AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE AND HON BLE ITAT ALSO MENTIONED THAT IN CASE ASSESSEE FAILS TO AVAIL THE OPPORTUNITY AS IT DID IN THE ORIGINAL PROCEEDINGS BY NOT ATTENDING THE SUMMO NS, AO SHALL BE AT LIBERTY TO DRAW THE INFERENCE AS PERMISSIBLE IN LAW . 6. IN PURSUANCE TO THE ABOVE DIRECTIONS OF HONBLE ITAT NOTICE U/S. 143(2) AND 143(1) DATED 19-10-2007 WERE ISSUED BY A O BY RPAD TO THE ASSESSEE AT THE LAST KNOWN ADDRESS WHICH WAS RETURN ED BACK UN-SERVED. AGAIN NOTICE WAS ISSUED BY RPAD FIXING THE DATE OF HEARING ON 14-11- 2007. SINCE NOBODY ATTENDED NOR AO RECEIVED ANY CO MMUNICATION IN THE MATTER ON THE DATE FIXED NOTICE U/S. 142(1) DATED 1 9-11-2007 WAS ISSUED THROUGH INSPECTOR OF THE AO BUT THE SAME RETURNED U N-SERVED DUE TO WRONG ADDRESS. SINCE THE PRESENT WHEREABOUTS OF THE ASSES SEE WERE NOT KNOWN, FINAL OPPORTUNITY LETTER DATED 03-12-2007 ALONG WIT H NOTICE U/S.142(1) DATED 03-12-2007 WERE ISSUED TO THE ASSESSEE AT THE RESID ENCE PREMISES AT I.T.A NO. 974/AHD/2011 A.Y. 1994-95 PAGE NO SRI JAGDISHBHAI R. PATEL VS. ITO 4 TULIP BANGALOW OF WHICH ASSESSEE IS THE OWNER. HOW EVER NO-BODY ATTENDED NOR ANY WRITTEN COMMUNICATION IN THE MATTE R BY THE ASSESSEE EITHER ON THE DATE SO FIXED OR THEREAFTER. BESIDES , NOTICES ISSUED BY RPAD AND SPEED POST IN QUESTION HAVE YET NOT BEEN RECEIV ED BACK UN-SERVED TILL DATE OF ORDER. THE AO HAS ALSO MENTIONED THAT SRI MAHESH CHHAJED, C.A. HAD CONTACTED AO ON TELEPHONE, BEFORE AND AFTER REC EIPT OF NOTICES BY THE ASSESSEE AND MR. CHHAJED HAD AGREED TO ATTEND IN TH E MATTER BEFORE THE AO. THEREFORE, THE AO HELD THAT THE FINAL NOTICES ISSUED HAVE BEEN SERVED UPON THE ASSESSEE AND THE SME REMAINED NON-COMPLIED ON THE PART OF THE ASSESSEE. THE AO THEREFORE FINALIZED THE ASSESSMEN T AS UNDER:- 8. KEEPING IN VIEW OF THE ABOVE FACTS & ALSO TACTI CS, IT IS CLEAR THAT THE ASSESSEE WAS NOT INTENDING TO AVAIL THE OPPORTUNITY AS PER DECISION DELIVERED BY THE HON'BLE ITAT, AHMEDABAD IN HIS CAS E AND THUS FAILED TO AVAIL THE OPPORTUNITY SO ALLOWED. SINCE THE ASSESSE E HAS ALSO NOT COMPLIED WITH THE NOTICES ISSUED U/S 142(1) OF THE I. T . ACT., ASSESSMENT REQUIRES TO BE FINALIZED U/S. 144 OF THE I.T. ACT A S PER PROVISO PROVIDED BELOW THE SEC. 144(1) OF THE I. T. ACT, 1961. FURTH ER, THE ISSUE OF PAYMENT OF 'ON-MONEY' WHICH WAS CONSIDERED AND ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT MADE BY THE ASSE SSEE FOR THE ACQUISITION OF PROPERTY OF BUNGALOW NO, 11, TULIP B UNGLOW SCHEME' U/S.69 OF THE I. T. ACT BY THEN ITO, WD.2(6), AHMEDABAD RE QUIRES NO MODIFICATION. 9. KEEPING IN VIEW THE ABOVE FACTS, I FIND NO INTE RFERENCE WITH THE ISSUE OF PAYMENT OF 'ON MONEY' OF RS.4,78,750/-, DE CIDED IN ASSESSMENT, FINALIZED UNDER THE ORDER U/S.L43(3) RWS 147 OF THE I, T. ACT 1961 ON 20.02.2001 BY THE THEN ITO, WD.2(6), AHMEDABAD AND THUS I AGREE THAT THE PAYMENT OF ON MONEY' OF RS.4 R 78,750/- MADE FOR PURCHASING THE ABOVE MENTIONED HOUSE PROPERTY WAS THE UNEXPLAINED INVESTMENT OF THE ASSESSEE AND SAME ARE REQUIRED TO BE ADDED TO THE I NCOME OF THE ASSESSEE U/S.69 OF THE IT ACT. ACCORDINGLY, UNEXPLA INED INVESTMENT OF RS.4 , 78,750/- MADE FOR ACQUIRING OF THE TULIP BUNGALOW N O.11 U/S.69 OF THE ACT IS ADDED TO THE TOTAL INCOME OF THE ASSESSE E AND ASSESSMENT IS FINALIZED U/S , 144 RWS 143(3) RWS 254 OF THE IT ACT, 1961 ' 7. WHEN THE MATTER WENT BEFORE THE FIRST APPELLATE AUTHORITY IN THE SECOND INNING, NONE APPEARED BEFORE LD. CIT(A) AND HE THEREFORE TAKING I.T.A NO. 974/AHD/2011 A.Y. 1994-95 PAGE NO SRI JAGDISHBHAI R. PATEL VS. ITO 5 INTO CONSIDERATION THE STATEMENT OF FACTS FILED BY THE ASSESSEE BEFORE HIM CONFIRMED THE ACTION OF AO BY OBSERVING AS UNDER:- 5.3 I HAVE CONSIDERED THE CONTENTIONS OF THE A PPELLANT AS WELL AS THE ASSESSMENT ORDER. IT IS SEEN THAT THE HON'BLE ITAT VIDE ITS ORDER DATED 23/6/2006 HAD RESTORED THE MATTER FOR ADJUDICATION AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND ALSO MENTIONED THAT IN CASE ASS ESSEE FAILS TO AVAIL THE SAME AS IN ORIGINAL PROCEEDINGS BY NOT ATTENDIN G THE SUMMONS, THE AO SHALL BE AT LIBERTY TO DRAW THE INFERENCES AS PE RMISSIBLE UNDER LAW. FROM THE ORDER OF THE AO IT IS CLEAR THAT REPEATED OPPORTUNITIES WERE GIVEN TO THE ASSESSEE BY WAY OF ISSUE OF NOTICES WHICH WA S SENT BY RPAD TO THE ADDRESSES AVAILABLE WITH THE DEPARTMENT AND ASSESS CEE'S REPRESENTATIVE SHRI MAHESH CHHAJED, C.A. ALSO TELEPHONICALLY CONFIRMED TO APPEAR IN THE CASE. HOWEVER, ALL ALONG NOBODY ATTENDED OR SU BMITTED ANY CONTENTIONS ON BEHALF OF THE ASSESSEE. SIMILAR I S THE POSITION BEFORE THE CIT(A) AS ASSESSEE HAS KEPT ON SEEKING ADJOURNMENTS REPEATEDLY I.E. ON 28/11/08, 22/12/2008, 3/3/2010, 25/3/2010 AND 21/6/ 2010 AND NOBODY HAS ATTENDED TO NOTICES DATED 9/8/2010 FIXING THE HEARI NG ON 25/8/2010, IN ABOVE CIRCUMSTANCES, IT IS APPARENT THAT ASSESSEE H AS NOTHING MORE TO SAY EXCEPT THAT STATED IN THE STATEMENT OF FACTS AN D AS PER RECORD. IN STATEMENT OF FACTS IT IS STATED THAT HE HAS PURCHAS ED THE HOUSE IN FY 2003- 04 WHILE THE SEARCH IN THE CASE OF THE DEVELOPER I. E. M/S . DESAI BROTHERS AND ASSOCIATES WAS CONDUCTED ON 27/3/1992 IN WHICH VARIOUS INCRIMINATING DOCUMENTS WERE SEIZED AND BUILDER ADM ITTED THAT 40% OF THE MONEY WAS CHARGED AS L ON MONEY' WHICH IN THE CASE OF THE ASSESSEE COMES TO RS.4,78,750/-. IT IS SEEN THAT IN THE ORI GINAL PROCEEDINGS ALSO ASSESSEE WAS GIVEN OPPORTUNITY TO CROSS EXAMINE THE BUILDER AS IS NOTED BY THE AO IN PARA.3.3 AND ASSESSEE WAS CONFRONTED W ITH THE STATEMENT OF THE BUILDER AND INCRIMINATING DOCUMENTS FOUND I.E . LETTER HEAD OF AMBICA COTTON CO,, FOUND DURING THE SEARCH IN WHICH COST O F THE BUNGALOW NO.11 PURCHASED BY THE ASSESSEE IN TULIP BUNGALOWS SCHEME WAS MENTIONED BY THE BUILDER AMOUNTING TO RS,14,60,000/-. IN ABOV E CIRCUMSTANCES, ASSESSEE HAS NOT CONTROVERTED THE EVIDENCES FOUND A ND CONFRONTED THE ASSESSEE NOR AVAILED ANY OPPORTUNITY TO CROSS EXAMI NE THE BUILDER. FURTHER, THE ASSESSEE HAS NOT GIVEN ANY EXPLANATION DURING THE SECOND ROUND OF PROCEEDINGS BEFORE THE.AO AS WELL AS THE C IT(A). IN VIEW OF THE ABOVE, THE ADDITION MADE BY THE AO O F RS.4,78,750/- TOWARDS PAYMENT OF ON MONEY U/S. 69 OF THE ACT AS U NEXPLAINED INVESTMENT IN HOUSE PROPERTY IS HEREBY UPHELD AND A BOVE GROUND IS DISMISSED. 8. BEFORE US ALSO AS WE HAVE ALREADY MENTIONED NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE FACT THAT NOTICE FOR TODAYS HEARING WAS I.T.A NO. 974/AHD/2011 A.Y. 1994-95 PAGE NO SRI JAGDISHBHAI R. PATEL VS. ITO 6 SENT TO HIM ON THE ADDRESS MENTIONED BY THE ASSESSE E IN FORM NO. 36. WE ARE THEREFORE OF THE VIEW THAT ASSESSEE HAS FAILED TO AVAIL THE OPPORTUNITY GRANTED BY HONBLE ITAT WHILE RESTORING THE MATTER TO THE FILE OF AO IN THE FIRST INNING OF LITIGATION. DESPITE SEVERAL OPPORT UNITIES GIVEN BY AO AND LD. CIT(A) ASSESSEE HAS NOT OFFERED ANY EXPLANATION IN RESPECT OF ON MONEY OF RS. 4,78,750/- PAID BY HIM TO THE TULIP BUNGALOWS F OR ACQUIRING THE BUNGALOW NO. 11 IN TULIP BUNGALOWS SCHEME AND THERE FORE ADDITION MADE BY AO OF RS. 4,78,750/- TOWARDS PAYMENT OF ON MONEY U/S. 68 OF THE ACT AS UNEXPLAINED INVESTMENT IN HIS PROPERTY WHICH HAS BEEN SUSTAINED BY LD. CIT(A) IS HEREBY UPHELD. 9. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30/05/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,