Smt Saulat Khan, Bhopal V. The ACIT, Bhopal

ITSSA 106/IND/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8396 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA; SAKSHI VERMA
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO.103/IND/2012 A.Y.2001-02 SMT. TAUFIQUE JEHAN BHOPAL PAN ALHPL 7976 J :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT IT(SS)A NOS.104 TO 110/IND/2012 A.YS.2001-02, 2005-06, 2002-03, 2003-04, 2004-05, 2 006-07 AND 2007-08 SMT. SAULAT KHAN BHOPAL PAN CEEPS 8075M :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT 2 IT(SS)A NOS.300 TO 302/IND/2012 A.YS.2005-06 TO 2007-08 TAJ GRIH NIRMAN SOCIETY BHOPAL PAN AABAT 7162Q :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT IT(SS)A NOS.288 TO 294/IND/2012 A.YS.2001-02 TO 2007-08 MOHD. SHAKEEL BHOPAL PAN ARZPS 3328P :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT IT(SS)A NOS. 256 & 257/IND/2012 A.YS.2002-03 AND 2006-07 MOHD. YUSUF BHOPAL PAN ABDPY 6604Q :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT 3 A N D IT(SS)A NOS.317 AND 318/IND/2012 A.YS.2005-06 AND 2006-07 MOHD. UMAR BHOPAL PAN AAVPU 4612R :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT APPELLANTS BY SHRI H.P. VERMA AND MISS SAKSHI VERMA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 27.08.2012 DATE OF PRONOUNCEMENT 03.09.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS BUNCH OF TWENTY-TWO APPEALS IS BY DIFFERENT A SSESEES AGAINST THE ORDERS OF THE LEARNED CIT(A), BHOPAL, O N COMMON GROUNDS. SINCE THESE APPEALS WERE HEARD TOGETHER, THEREFORE, CAN BE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. THOUGH THE ASSESSEES HAVE RAISED SEVERAL GROUNDS BUT DURING HEARING OF THESE APPEALS, THE LEARNED COUNSE L FOR THE ASSESSEE, SHRI H.P. VERMA AND MISS SAKSHI VERMA, AS SERTED THAT 4 THE LEARNED ASSESSING OFFICER ASKED THE ASSESSEE TO PROVE THE RENTAL INCOME BY PRODUCING RENT AGREEMENTS, TENANTS AND EVIDENCES OF OWNERSHIP OF PROPERTY. IT WAS CLAIMED THAT THE ASSESSEE PRODUCED THE FOLLOWING DOCUMENTS BEFORE TH E LEARNED CIT(A) :- A. NEW AZIZ HOTEL MUNICIPAL CORPORATION REGISTRAT ION DATED 1.5.1997 AND ELECTRICITY BILL FOR WHICH OUR ATTENTI ON WAS INVITED TO PAPER BOOK PAGES 5 AND 6 B. SAIFI SALES MUNICIPAL CORPORATION REGISTRATION D ATED 21.11.2006 (PAPER BOOK PAGE 7) C. AYAZ HASSAN ELECTRICITY RECEIPT JUNE, 2011 (PA PER BOOK PAGE 8) D. ALVIHAR BSNL RECEIPT 2011 PAPER BOOK PAGE 9 E. DECLARATION UNDER URBAN LAND CEILING & REGULATIO N ACT, 1976 (PAPER BOOK PAGES 12 AND 13) IT WAS CLAIMED THAT ALL THESE DOCUMENTS WERE EITHER ISSUED BY THE GOVERNMENT AUTHORITIES OR WERE REGISTERED WITH THE GOVERNMENT DEPARTMENTS. A PLEA WAS ALSO RAISED THAT BESIDES T HE ABOVE DOCUMENTS, AFFIDAVIT DATED 21.11.2006 CONFIRMING TH E FACTS THAT 5 THE FATHER OF SHRI MEHANDI HASAN WAS TENANT OF THE FIRST FLOOR OF THE HOUSE AND THEREAFTER HE OCCUPIED IT AS A TENANT (PAPER BOOK PAGE 10 AND 11). ON THE ISSUE AS TO WHY THESE DOCU MENTS COULD NOT BE FILED BEFORE THE LEARNED ASSESSING OFFICER, IT WAS EXPLAINED BY THE LEARNED COUNSEL THAT THE SEARCH TOOK PLACE O N 21.9.2006 AND NOTICE U/S 153C WAS ISSUED ON 16.9.2008 APPROXI MATELY AFTER TWO YEARS OF THE SEARCH. THE RETURN WAS C LAIMED TO BE FILED ON 16.9.2008. IT WAS ALSO POINTED THAT THE Q UESTIONNAIRE WAS ISSUED ON 11.10.2008, THEREFORE, THE ASSESSMENT WAS TO BE COMPLETED BY 31.12.2008. THE CRUX OF ARGUMENTS IS THAT THE DELAY, IF ANY, WAS MAINLY ATTRIBUTABLE TO THE DEPAR TMENT AS LESS TIME WAS GIVEN FOR COMPLIANCE IN SEARCHING AND COLL ECTING THE DOCUMENTS, THEREFORE, COULD NOT BE FILED. HOWEVER, THESE WERE CLAIMED TO BE FILED BEFORE THE LEARNED CIT(A). MR. VERMA FURTHER CONTENDED THAT A SEPARATE APPLICATION FOR ENTERTAIN ING THE EVIDENCE WITH DETAILED REASONS WAS FILED BEFORE THE LEARNED CIT(A) FOR CONSIDERATION OF DOCUMENTS. A STRONG PLEA WAS R AISED THAT THE ASSESSEE IS WITHIN RIGHT TO FILE ADDITIONAL EVIDENC E IN THE CIRCUMSTANCES AS SPECIFIED IN RULE 46A AND THE LEAR NED CIT(A) IS ALSO HAVING WIDE POWERS EVEN TO ASK/ALLOW THE ASSES SEES TO PRODUCE ADDITIONAL EVIDENCE FOR WHICH RELIANCE WAS PLACED UPON 6 THE DECISION IN SMT. MAHENDRA KAUR VS. CENTRAL GOVE RNMENT AND OTHER; 104 ITR 120 (ALL) AND SMT. PRABHADEVI S. SAH A; 231 ITR 1(BOM). IT WAS ALSO PLEADED THAT THE POWERS OF THE LEARNED FIRST APPELLATE AUTHORITY ARE CO-TERMINUS WITH THAT OF TH E ASSESSING OFFICER TO ADMIT FRESH EVIDENCE FOR WHICH RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS :- I. CIT VS. KANPUR COAL SYNDICATE; 53 ITR 225 (SC) II. INDERMAL NATVARLAL VS.ITO; 166 ITR 484 (MP) III. ITO VS. JUTE CORPORATION OF INDIA LTD.; 187 ITR 688 (SC) IV. CIT VS. NIRBHAYRAM DALURAM; 224 ITR 610 (SC) A STRONG PLEA WAS RAISED BY THE LEARNED COUNSEL THA T THE ADDITIONAL EVIDENCE IS VERY MUCH MATERIAL IN DECIDI NG THE CONTROVERSY AND GOES TO THE ROOT OF THE MATTER, THE REFORE, IT HAS TO BE ACCEPTED FOR WHICH RELIANCE WAS PLACED ON CIT VS . SIYA DAWOODI BOHRA SAMAJ (2008) 10 ITJ 502 (MP) AND CIT VS. KU. SATYA SETIA; 143 ITR 486 (MP) ALONG WITH THE DECIS ION IN CIT VS. SOMIBHAI WAHAB BHAI; 232 ITR 900 (MP). REGARDING O PENING BALANCE OF CASH IT WAS CLAIMED THAT IT WAS OUT OF R ENTAL INCOME. 3. ON THE OTHER HAND, THE LEARNED SENIOR DR, SHRI R .A. VERMA, STRONGLY DEFENDED THE IMPUGNED ORDERS BY SUBMITTING THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSES BY THE LEARNED 7 ASSESSING OFFICER AND THE ASSESSEE COULD NOT PRODUC E THE DOCUMENTS, REQUIRED BY THE ASSESSING OFFICER. OUR ATTENTION WAS ALSO INVITED TO THE CASE OF TAJ GRAH NIRMAN SOCIETY (IT(SS) A NO. 300/IND/2012 AND MORE SPECIFICALLY PARA 3.1 (PAGE 2 OF THE IMPUGNED ORDER) TO THE EFFECT THAT ADEQUATE AND SUF FICIENT OPPORTUNITY FOR EXPLAINING THE CASE WAS GRANTED TO THE ASSESSEE AND THUS THE ASSESSING OFFICER WAS JUSTIFIED IN ISS UING A COMMON QUESTIONNAIRE U/S 142 (1) OF THE ACT. THE LEARNED COUNSEL CONTENDED THAT UNDER RULE 29 OF THE INCOME RULES, I T IS THE SATISFACTION OF THE ASSESSING OFFICER, THEREFORE, T HE ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED CIT(A) SHOULD NOT BE CONSIDERED. RELIANCE WAS ALSO PLACED ON THE DECISION IN CIT VS. JAIPUR UDHYOG LIMITED (227 ITR 345) (RAJ) TO THE EFFECT TH AT PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL AND CONS EQUENT PERMISSION TO THE ASSESSEE TO PRODUCE FURTHER EVIDE NCE AND TO SEND BACK THE CASE TO ITO FOR EXAMINATION. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE IMPUGNED ORDERS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132(1) WAS CARRIED OUT IN THE CASE OF 8 MOHD. SHAFIQUE GROUP OF CASES ON 21 ST SEPTEMBER, 2006. DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS RELATING TO THE ASSESSSEE I.E. TAJ GRAH NIRMAN SOCIETY WERE FOUND AND SEIZED. THE REASONS WERE RECORDED AND THEREAFTER NOTICE U/S 153C OF THE ACT WAS ISSUED IN RESPONSE TO WHICH THE ASSESSEE FILED RETU RN OF INCOME OF VARIOUS YEARS AS MENTIONED IN THE IMPUGNED ORDER. THE LEARNED ASSESSING OFFICER PASSED A COMMON ORDER. WE FIND T HAT EVEN BEFORE THE LEARNED CIT(A) A SPECIFIC GROUND HAS BEE N RAISED THAT THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN NOT PROVIDING ADEQUATE AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE . HOWEVER, IT HAS BEEN CONCLUDED IN THE IMPUGNED ORDER THAT A COM MON QUESTIONNAIRE WAS ISSUED ALONG WITH NOTICE U/S 132( 1) AND ADEQUATE OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. IF THE TOTALITY OF FACTS IS ANALYSED, IT IS AN ADMITTED POSITION TH AT THE LEARNED CIT(A) HAS SUFFICIENT POWER U/S 250(4) TO MAKE INQU IRIES AS HE THINKS FIT BEFORE DISPOSING THE APPEALS. UNDER THE AFORESTATED FACTS, WE ARE OF THE CONSIDERED OPINION THAT CAUSE OF SUBSTANTIAL JUSTICE SHOULD BE PREFERRED FOR WANT OF TECHNICALIT IES AND AS MENTIONED EARLIER, THERE ARE SO MANY PERSONS WH O ARE MEMBERS OF THE SOCIETY AND WITHIN A SHORT SPAN OF T IME WHICH WAS PROVIDED TO THE ASSESSEE, IT IS ALWAYS MAY NOT BE POSSIBLE TO 9 COLLECT THE EVIDENCE AS WAS REQUIRED BY THE LEARNED ASSESSING OFFICER. EVEN OTHERWISE, THE DOCUMENTS WHICH WERE F ILED BEFORE THE LEARNED CIT(A) WERE EITHER REGISTERED DOCUMENTS OR WERE ISSUED BY THE VARIOUS DEPARTMENTS. THE SIMPLE REJE CTION ON THE GROUND THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO T HE ASSESSEE IS NOT ENOUGH RATHER THE SAME SHOULD HAVE BEEN CONSIDE RED ESPECIALLY WHEN THESE DOCUMENTS GO TO THE ROOT OF T HE ISSUE. NATURAL JUSTICE MAY NOT BE DENIED TO EITHER SIDE. WITHOUT DELIBERATING FURTHER, WE ARE OF THE CONSIDERED OPIN ION THAT THE DOCUMENT SO FILED BEFORE THE LEARNED CIT(A) EITHER SHOULD HAVE BEEN REMANDED TO THE ASSESSING OFFICER OR THE LEARN ED CIT(A) WAS EXPECTED TO ANALYSE HIMSELF UP TO HIS SATISFACT ION. SO FAR AS THE RELIANCE BY THE LEARNED SENIOR DR ON THE DECISI ON OF JAIPUR UDHYOG LIMITED (SUPRA) REGARDING POWERS OF THE TRIB UNAL IS CONCERNED, WE FIND THAT EVEN THE HONBLE RAJASTHAN HIGH COURT HAS HELD THAT THE TRIBUNAL HAS POWER UNDER THE INCO ME TAX APPELLATE TRIBUNAL RULES, 1963 TO TAKE FRESH EVIDEN CE OR MAY DIRECT THE ITO TO TAKE THE EVIDENCE IF THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE. EV EN AS PER RULE 29 OF THE ITAT RUELS, IT IS EVIDENT THAT THE TRIBUN AL CAN REQUIRE ANY DOCUMENT TO BE PRODUCED OR ANY ENTRIES TO BE EX AMINED OR 10 ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDE RS OR FOR ANY OTHER SUBSTANTIAL CAUSE OR IF THE INCOME TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO T HE ASSESSEE TO ADDUCE EVIDENCE. EVEN IN THE LIGHT OF THE AFORESAI D DECISION FROM THE HONBLE HIGH COURT AND UNDER THE CIRCUMSTANCES NARRATED HEREINABOVE, WE DEEM IT APPROPRIATE THAT INTEREST O F BOTH THE PARTIES SHOULD NOT BE JEOPARDISED, CONSEQUENTLY, IN THE FITNESS OF FACTS, IT IS APPROPRIATE THAT THE ASSESSEE AS WELL AS THE REVENUE BOTH SHOULD GET THE OPPORTUNITY. WE ARE SATISFIED T HAT KEEPING IN VIEW THE DOCUMENTS, THE LENGTH OF TIME AND THE HUGE DOCUMENTS WHICH WERE TO BE COLLECTED FROM DIFFERENT PERSONS, THE TIME PROVIDED TO THE ASSESSEE WAS NOT SUFFICIENT, THEREF ORE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMAND TH ESE FILES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION IN ACCORDANCE WITH LAW WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF THE CLAIMS OF THE RESPECTIVE ASS ESSEES FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEES, CONSEQUENTLY, ALL THESE APPEALS ARE ALLO WED FOR STATISTICAL PURPOSES ONLY. FINALLY, ALL THESE APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES ONLY. 11 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 27 TH AUGUST, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 3 RD SEP. , 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2727