Appeal details
Counselvise Citation
[2016] 132 COUNSELVISE.COM (IT) 0254 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 6 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
22-10-2016
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
C
Next Hearing Date
23-08-2016
Assessment Year
2008-2009
Appeal Filed On
11-04-2013
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO. 993/AHD/2013 & CO NO.151/AHD/2013 / ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, WARD 3 (1), SURAT VS SHRI PINTUKUMAR J. JAIN (SHAH), PLOT NO.5, THAKKARDEEP SOCIETY, ALTHAN CANAL ROAD, BHATAR, SURAT PAN : AGOPJ 8000 F / (APPELLANT) / (RESPONDENT) & CROSS-OBJECTOR REVENUE BY : SHRI PRASOON KABRA, SR DR ASSESSEE BY : SMT. URVASHI SHODHAN, AR / DATE OF HEARING : 23/08/2016 / DATE OF PRONOUNCEMENT: 22/10/2016 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE AND THE CROSS-OBJECTION THEREOF FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME- TAX (APPEALS)-IV, SURAT DATED 29.01.2013 FOR AY 200 8-2009. 2. GROUNDS RAISED BY THE REVENUE IN ITS APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD. CIT(A)-I, SURAT HAS ERRED IN RESTRICTING THE ADDITION MADE OF RS.1,11,39,818/- TO RS.17,82,361/- ON ACCOUNT OF UNACCOUNTED INCOME WIT HOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO DISCLOSE THE B ANK ACCOUNT AND THE DEBIT OR CREDIT ENTRIES WERE NOT EXPLAINED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A)-I, SURAT HAS ERRED IN RESTRICTING THE ADDITION MADE U/ S 68 OF RS.5,31,000/- TO RS.2,81,000/- WITHOUT APPRECIATING THE FACT THAT TH E ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS AND SOURCE OF THE LOAN A DVANCED. 3. IN THE CROSS-OBJECTION, ASSESSEE HAS RAISED FOLL OWING GROUND:- 1. LD. CIT(A) ERRED IN LAW AND ON FACTS IN SUSTAINI NG ADDITION OF RS.2,81,000/- FROM TOTAL ADDITION OF RS.5,31,000/- MADE BY AO ON ACCOUNT OF ITA NO. 993 & CO NO.15/AHD/2013 ITO VS. SHRI PINTUKUMAR JETHALAL JAIN AY : 2008-09 2 UNEXPLAINED CASH CREDIT INVOKING PROVISIONS OF SECT ION 68 OF THE ACT. CIT(A) OUGHT HAVE DELETED ADDITION APPRECIATING THE FACT T HAT THE APPELLANT DISCHARGED HIS ONUS SUBMITTING NAME, ADDRESS AND CO NFIRMATION OF THE DEPOSITORS. 2. ALTERNATIVELY AND WITHOUT PREJUDICE TO THE SUBM ISSION THAT NO ADDITION DESERVED TO BE MADE HAVING FURNISHED CONFIRMATION, NAME & ADDRESS OF THE DEPOSITORS, BENEFIT OF TELESCOPING OF UNEXPLAINED C ASH CREDIT WITH UNEXPLAINED INCOME/INVESTMENT OUGHT TO HAVE BEEN GRANTED. LD. CIT(A) OUGHT TO HAVE DELETED ADDITION SINCE THE SAME WOULD TANTAMOUNT TO DOUBLE ADDITION. 4. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 15.10.2008 DECLARING TOT AL INCOME AT RS.2,16,080/- AND THE SAME WAS PROCESSED U/S. 143(1 ) AND THEREAFTER NOTICE U/S. 143(2) AND 142(1) WERE ISSUED AND SERVED UPO N THE ASSESSEE AND THEY WERE DULY COMPLIED BY THE ASSESSEE. 5. DURING THE ASSESSMENT PROCEEDINGS, IT WAS OBSER VED THAT THE ASSESSEE HAS ACCEPTED THE LOANS LESS THAN RS.20,000/- IN C ASH FROM DIFFERENT DEPOSITORS TO THE TUNE OF RS. 2,81,000/- AND BY CHE QUE OF RS. 2,59,000/- FROM M/S. VARDHMAN CEMENT CORP. IN THIS REGARD, ASSESSEE VIDE HIS SUBMISSION DATED 25.08.2010 FURNISHED THE CYCLOSTYLED COMPUTER PRINTOUT CONFIRMATION LETTERS IN SUPPORT HIS CLAIM BUT THE SAID CONFIRMAT ION LETTER WERE NOT HAVING BASIC DETAILS AS MENTIONED THEREIN SUCH AS NAME & A DDRESS OF DEPOSITORS WHICH ARE DEPOSITORS, PAN AND SOURCE OF NAME AND ADDRESS OF THE DEPOSITOR. BUT AO WAS NOT SPECIFIED WITH THE CON TENTION OF THE ASSESSEE, THEREFORE, HE MADE AN ADDITION OF RS. 211886898/-. AND THEREAFTER ON THE BASIS OF THE AIR INFORMATION, IT WAS REVEALED THAT ASSESSEE HOLDS A BANK A/C WITH THE PRIME CO.-OP. BANK LTD. AT CITY LIGHT ROAD , SURAT HAD DEPOSITED CASH TOTALING TO RS. 68,73,100/- ON VARIOUS DATES A ND A LETTER U/S. 133(6) OF THE ACT WAS ISSUED TO THE SAID BANK FOR ASKING TO F URNISH CERTAIN DETAILS INCLUDING BANK STATEMENT OF THE ACCOUNT HOLDER. 6. ON VERIFICATION OF THE SUBMISSIONS, IT WAS FOUN D THAT THE ASSESSEE HAS NOT DISCLOSED THE SAID BANK ACCOUNT IN HIS BOOKS OF ACCOUNT. ON PERUSAL OF ITA NO. 993 & CO NO.15/AHD/2013 ITO VS. SHRI PINTUKUMAR JETHALAL JAIN AY : 2008-09 3 THE BANK STATEMENT OF THE SAID BANK, IT APPEARED TH AT THE ASSESSEE HAS DEPOSITED THE TOTAL AMOUNT OF RS. 1,15,69,818/- INC LUDING THE SUM OF RS.68,73,100/- IN CASH. BASED ON THE FACTS GATHERED , A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE BUT ASSESSEE COULD NOT PROVE HIS CASE TO THE SATISFACTION OF THE A.O. 7. FROM THE ABOVE CONTENTION, ASSESSEE HAS MAINTAI NED AN UNACCOUNTED BANK ACCOUNT WITH PRIME CO.-OP. BANK AND DEPOSITED TOTAL AMOUNT OF RS.1,15,69,818/- (INCLUDING TWO RETURNED UNCLEARED CHEQUES TOTALING TO RS.4,30,000/-) IN IT IS NOTHING BUT UNDISCLOSED INC OME WHICH HAS BEEN EARNED DURING THE YEAR UNDER CONSIDERATION. OUT OF SUCH UNACCOUNTED INCOME, IT IS EVIDENT THAT THE ASSESSEE HAS MADE TH E INVESTMENT IN VARIOUS ASSETS AS WELL AS INCURRED PERSONAL EXPENDITURES. T HEREFORE, THE AMOUNT OF RS.1,11,39,818/- AS UNACCOUNTED/UNDISCLOSED INCOME DEPOSITED UNDISCLOSED BANK ACCOUNT AND FINALLY TOTAL INCOME WAS ASSESSED OF RS. 1,18,86,898/-. 8. UNDER THE SAID ORDER, THE ASSESSEE PREFERRED ST ATUTORY APPEAL BEFORE THE LD. CIT(A). 9. BUT ID. CIT(A) HAS RESTRICTED THE ABOVE ADDITIO N TO RS. 17,82,361/- BEING 16% OF RS. 1,11,39,818/-. DEPARTMENT HAS COME AN APPEAL BEFORE US. IT WAS CONTENDED BY THE APPELLANT THAT THE RECEIPTS FR OM THE KAUSHAL PARK PROJECT IN THE SAID SALE PROCEEDS OF THE LAND PORTI ON BELONGING TO OWNER WERE DEPOSITED IN THE ABOVE TWO BANK ACCOUNTS. NEIT HER THE ABOVE BANK ACCOUNT NOR THE INCOME FROM THE ABOVE ACTIVITIES WA S DISCLOSED BY THE APPELLANT BEFORE THE DEPARTMENT IN THE ASSESSMENT Y EAR 2008-09. THEREAFTER, APPELLANT APPROACHED THE SETTLEMENT COMMISSION FOR SETTLEMENT OF HIS CASE AND APPLICATION WAS ALLOWED TO BE PROCEEDED WITH VI DE ORDER U/S. 245D(1) OF THE ACT. SUBSEQUENTLY, THE APPLICATION WAS HELD TO BE VALID AND ALLOWED TO BE PROCEEDED WITH FURTHER, VIDE ORDER PASSED U/S . 245D(2C) OF THE ACT DATED 01.02.2012. IN THE STATEMENT OF FACTS, IT IS STATED THAT THE APPELLANT WAS ITA NO. 993 & CO NO.15/AHD/2013 ITO VS. SHRI PINTUKUMAR JETHALAL JAIN AY : 2008-09 4 A PARTNERS OF VARIOUS FIRMS WHICH ARE MAINLY ENGAGE D IN THE REAL ESTATE BUSINESS AND IT WAS ALSO MENTIONED THE CONSIDERATIO N OF THE LAND DEED, ASSESSEE WAS CO-OWNER AND IT WAS ALSO STATED THAT A PPELLANT HAD ENTERED INTO AN AGREEMENT FOR THE DEVELOPMENT OF LAND BEARING BL OCK NO. 400, SURVEY NO. 212/1/A ADMEASURING 7790 SQ. MTR. SITUATED AT M OUJE, SUB-DISTRICT: CHORYASI, SURAT WHEREIN THE PROJECT KNOWN AS 'KAUSH AL PARK', VIBHAG-1 WAS DEVELOPED AND IN PURSUANCE TO THE SAID PROJECT, APP ELLANT WAS REQUIRED TO UNDERTAKE CERTAIN FOLLOWING ACTIVITIES:- I) LEVELLING OF LAND. II) CONSTRUCTION OF ROAD A PER PLAN LAYOUT. II) PROVIDING POTABLE WATER PIPE LINE IV) DRAINAGE PIPE LINE. V) CONSTRUCTION OF RESIDENTIAL HOUSES AS PER SAMPLE LAYOUT WHEREVER THE BUYERS OF THE PLOTS WANTED TO CONSTRUCT THE SAME TH ROUGH THE APPLICANT VI) PROVIDING POWER CONNECTION UP TO THE GATE OF SO CIETY AS WELL AS UP TO EACH PLOT AS AND WHEN POSSESSION OF OPEN PLOT OF LAND IS HANDED OVER TO THE BUYER. 10. AND THE SETTLEMENT COMMISSION HELD THAT IT WAS FOUND DIFFERENCE BETWEEN THE ORIGINAL DISCLOSURE AND THE INCOME FINA LLY DETERMINED IS DUE TO THE ADDITIONAL OFFER MADE BY THE APPLICANT IN ORDER TO QUIETUS TO THE ISSUE, IN A SPIRIT OF SETTLEMENT. FURTHER, IT IS A CASE OF ES TIMATION OF INCOME ONLY AND THERE IS NO SUPPRESSION OF MATERIAL FACTS. IN THE C IRCUMSTANCES, WE HAVE ACCEPTED THE PLEA OF THE APPLICANT THAT LEVY OF PEN ALTY FOR CONCEALMENT WAS NOT CALLED FOR AND WAS GRANTED IMMUNITY AND APPLICA NT WAS GIVEN CAPITALIZATION OF VARIOUS AMOUNTS BUT THE SAME WAS CONSIDERED ONLY TO THE EXTENT OF SUM OF RS. 25,43,140/-BEING THE TAX PAYME NT MADE WHILE FILING THE PRESENT APPLICATION AND WAS GIVEN THE RELEVANT ACCO RDINGLY. 11. WE HAVE GONE THROUGH THE RELEVANT RECORD AND I MPUGNED ORDERS AS WELL AS THE ORDER OF THE SETTLEMENT COMMISSION. WE HAVE ALSO SEEN THE BALANCE SHEET OF THE APPELLANT. ONCE THE MATTER HA S BEEN SETTLED BY THE SETTLEMENT COMMISSION, THEN THE SAME ISSUE CANNOT B E LOOKED INTO AGAIN UNLESS IT IS PROVED THAT ASSESSED APPELLANT HAD NOT GONE TO THE SETTLEMENT ITA NO. 993 & CO NO.15/AHD/2013 ITO VS. SHRI PINTUKUMAR JETHALAL JAIN AY : 2008-09 5 COMMISSION WITH CLEAN HAND AND HE ALLEGEDLY CONCEAL ED SAME MATERIAL FACTS BEFORE THE SETTLEMENT COMMISSION. 12. AS FAR AS THE LOAN OF RS.2,81,000/ WHICH WAS RE CEIVED BY CASH IN THE DISCLOSED ACCOUNTS OF THE APPELLANT IS CONCERNED, W E FIND THAT THE ASSESSEE COULD NOT GIVE THE DETAILS OF PAN, SOURCE AND ADD RESS OF THE PERSON FROM WHOM THE PAYMENTS ARE OBTAINED, EXCEPT PROVIDING A CYCLOSTYLED COMPUTER PRINTOUT OF THE CONFIRMATION LETTERS WHICH DID NOT HAVE THE BASIC DETAILS SUCH AS NAME AND ADDRESS OF THE DEPOSITORS, THEIR SIGNAT URES, PAN AND SOURCE OF LOAN ADVANCED ETC.. AND THE SAME HAS BEEN REFLECTED IN PARAGRAPH 4.1 OF THE ASSESSMENT ORDER. THEREFORE, AN ADDITION U/S 68 OF THE ACT TO THE EXTENT OF RS.2,81,000/- WAS CONFIRMED BY THE CIT(A). WE, THE REFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE CIT(A) AND WE DECLINE TO INTERFERE IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE APPEAL O F THE DEPARTMENT IS DISMISSED AND CO FILED BY THE ASSESSEE IS ALSO DISM ISSED. 13. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT A ND CO FILED BY THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22 ND OCTOBER, 2016 AT AHMEDABAD. SD/- SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) MAHAVIR PRASAD (JUDICIAL MEMBER) AHMEDABAD; DATED 22/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD
