The ACIT- 1(1), Bhopal V. Shri Rajesh Rajora, Gwalior

ITSSA 136/IND/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9464 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MRUDULA BAJPAI
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Source of fund
• Section: 143(3); 153A; 132

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 NOS. 135 TO 140/IND/2013 A.YS. 2003-04 TO 2007-08 & 2009-10 ACIT 1(1), BHOPAL :: APPELLANT VS RAJESH RAJORA GWALIOR :: RESPONDENT IT(SS) A NO. 61/IND/2013 A.Y. 2007-08 RAJESH RAJORA GWALIOR PAN AFDPR 6549H :: APPELLANT VS DCIT 1(1), BHOPAL :: RESPONDENT 2 A SSESSEE BY SHRI SUMIT NEMA RESPONDENT BY S MT. MRUDULA BAJPAI DATE OF HEARING 24.7. 2013 DATE OF PRONOUNCEMENT 2 7 . 8 .2013 O R D E R PER SHRI R.C. SHARMA, AM THESE ARE THE APPEALS FILED BY THE ASSESSEE AND TH E REVENUE AGAINST THE ORDER DATED 7.3.2013 OF THE LD. CIT(A) FOR THE A.YS. 2003-04 TO 2007-8 AND 2009-10 IN THE MATTER OF ORDER PASSED U/S 153A READ WITH SECTION 1 43(3) OF THE INCOME TAX ACT, 1961. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THE FACTS, IN BRIEF, ARE THAT SEARCH ACTIO N U/S 132 OF THE ACT WAS CONDUCTED IN THE RESIDENTIAL PRE MISES OF THE ASSESSEE, SHRI RAJESH RAJORA, ON 31.3.2008. THEREAFTER, THE ADDITIONS WERE MADE BY THE AO U/S 1 53A READ WITH SECTION 143(3) FOR THE A.YS. 2003-04 TO 2 007-08 AND 2009-10. MOST OF THE ADDITIONS WERE DELETED BY THE CIT(A). AGAINST THE ORDER OF THE CIT(A), THE REVEN UE IS IN 3 FURTHER APPEAL BEFORE US FOR THE A.YS. 2003-04 TO 2 007-08 AND 2009-10. HOWEVER, THE ASSESSEE IS ALSO BEFORE US IN RESPECT OF THE ADDITION SUSTAINED BY THE CIT(A) IN THE A.Y. 2007-08. 4. FROM RECORD WE FOUND THAT AFTER SEARCH, THE ASSE SSEE HAS ALSO CHALLENGED INITIATION OF SEARCH UNDERTAKEN BY THE DEPARTMENT U/S 132(1) ON 30.5.2008 BY WAY OF WRIT PETITION BEFORE THE HONBLE JURISDICTIONAL HIGH COU RT. IN THE WRIT PETITION SO FILED, THE ASSESSEE HAS ALLEGE D THAT THERE WAS NO SATISFACTION RECORDED BY THE DEPARTMEN T FOR ISSUING THE WARRANT OF SEARCH. IN THE WRIT PETITION , THE ASSESSEE HAS ALLEGED THAT MERELY ON THE BASIS OF DOCUMENT, ANNEXURE RJ-1, FOUND AT THE PREMISES OF S HRI YOGIRAJ SHARMA, WHEREIN SEARCH WAS CONDUCTED, CANNO T BE A GROUND TO FORM AN OPINION FOR ISSUANCE OF SEARCH AND SEIZURE. THE HONBLE JURISDICTIONAL HIGH COURT HAS ALLOWED THE WRIT PETITION FILED BY THE ASSESSEE VIDE ITS OR DER DATED 27.6.2013 WHEREIN THE HONBLE COURT QUASHED THE WAR RANT 4 OF AUTHORISATION AND CONSEQUENTIAL SEARCH AND SEIZU RE PROCEEDINGS. HON'BLE HIGH COURT HAS DISCUSSED THE FACTS AS UNDER :- 2. THE FACTS OF THE CASE ARE THAT BOTH THE PETITIONERS ARE GOVERNMENT SERVANTS. THEY ARE SALARIED PERSONS AND ARE FILING THEIR INCOME TAX RETURN ON TIME, DULY SUPPORTED BY NECESSARY DOCUMENTS.BOTH THE PETITIONERS HAD BEEN REGULARLY ASSESSED BY THE INCOME TAX DEPARTMENT. THE ACCOUNTS SUBMITTED BY THEM WERE DULY VERIFIED BY THE ASSESSING OFFICER EVERY YEAR. THE PETITIONERS WERE ALSO MAINTAINING THEIR ACCOUNTS BOOKS WITH VOUCHERS AND DOCUMENTS IN SUPPORT THEREOF, WHICH WERE ALSO BEING PRODUCED ALONGWITH THE RETURN. THE PETITIONERS WERE OCCUPYING OFFICIAL RESIDENCE NO.XD-A1, CHAR IMLI, BHOPAL. THE SEARCH WAS CONDUCTED AS A CONSEQUENTIAL SEARCH AFTER THE SEARCH WAS CARRIED OUT AT THE PREMISES OF DR. YOGI RAJ SHARMA, THE THEN DIRECTOR OF DEPARTMENT OF PUBLIC HEALTH AND FAMILY WELFARE, GOVERNMENT OF MADHYA PRADESH. THE PETITIONER NO. 1 WAS POSTED AS HOME SECRETARY IN THE GOVERNMENT OF MADHYA PRADESH AT THE RELEVANT TIME WHEN THE SEARCH WAS CARRIED OUT ON 30.05.2008 BY THE RESPONDENTS ON THE BASIS OF AN AUTHORIZATION ISSUED BY RESPONDENT NO.4. DURING THE SEARCH, ALL THE DOCUMENTS, BOOKS VOUCHERS AVAILABLE AT THE PREMISES 5 OF THE PETITIONERS WERE TAKEN AWAY BY THE RESPONDENTS WITHOUT ANY VERIFICATION. THE AFORESAID SEARCH HAS BEEN ALLEGED TO BE CONDUCTED BY THE RESPONDENTS WITH A PREDETERMINED BELIEF THAT ALL THE ASSETS IN THE HOUSE OF PETITIONERS WERE UN- ACCOUNTED AND UN-DISCLOSED. AS PER THE PETITIONERS, 31 PAGES WERE SEIZED FROM THE POSSESSION OF THE PETITIONERS OUT OF WHICH 25 PAGES WERE PHOTOCOPIES OF THEIR OFFICIAL PASSPORT AND REST 6 PAGES WERE EITHER DUMB DOCUMENTS OR WERE NOT RELATED WITH THE PETITIONERS. SIMILARLY 31 PAGES WERE SEIZED FROM PETITIONER NO.1S FATHER-IN-LAW, WHO HAD RETIRED FROM INDIAN ARMY IN 1984 AND WAS RESIDING IN THE GUEST HOUSE OF THE RESIDENCE OF THE PETITIONER, WHO HAD CAME AT THE RELEVANT TIME TO VISIT HIS DAUGHTER. CASH OF RS.27,767/-, GOLD JEWELLERY WEIGHING 435 GRAMS, SILVER UTENSILS AND ARTICLES WORTH RS.2.07 LAKHS WERE FOUND IN THE POSSESSION OF PETITIONERS. A PANCHNAMA ANNEXURE P-1 WAS PREPARED IN RESPECT OF THE AFORESAID SEARCH AND SEIZURE MEMO WAS ALSO PREPARED. THIS SEARCH AND SEIZURE HAS BEEN CHALLENGED BY THE PETITIONERS BY FILING PRESENT PETITION 5. AFTER CONSIDERING THE CONTENTION OF THE DEPARTME NT AS WELL AS THE ASSESSEE, THE HONBLE COURT CONCLUDED A S UNDER :- 12. IN THE PRESENT CASE, IN SEPTEMBER 2007 THE SEARCH WAS CARRIED OUT IN THE PREMISES OF DR. YOGI 6 RAJ SHARMA. THE DOCUMENT ANNEXURE RJ-1 WAS SEIZED BY THE RESPONDENTS. AT THE RELEVANT TIME PETITIONER NO.1 WAS THE CHIEF HEALTH SECRETARY AND THIS FACT WAS WITHIN THE KNOWLEDGE OF THE RESPONDENTS, BUT WHY THE SEARCH WAS CONDUCTED ON 30.05.2008 AFTER A PERIOD OF NEARABOUT 9 MONTHS, THERE IS NO EXPLANATION IN THIS REGARD. THE DOCUMENT ANNEXURE RJ-1 WAS SEIZED FROM THE PREMISES OF DR. YOGI RAJ SHARMA BUT UNTIL AND UNLESS THERE IS CORROBORATING EVIDENCE THE RESPONDENTS COULD NOT HAVE FORMED THE BASIS OF ISSUING WARRANT OF AUTHORIZATION. IT APPEARS THAT BECAUSE OF THE ALLOTMENT OF HOUSE TO RESPONDENT NO. 4, THERE WAS SOME ANNOYANCE OF THE AUTHORITIES AND AS SOON AS ON 20.05.2008 THE HOUSE WAS GOT ALLOTTED BY CHIEF MINISTER, ON 28.05.2008 WARRANT OF AUTHORIZATION WAS ISSUED AND ON 30.05.2008 SEARCH WAS CONDUCTED. IF THERE WAS SOME MATERIAL WITH THE DEPARTMENT THAT THE PETITIONERS HAD PURCHASED SOME HOUSE OR LAND PROPERTY, THEN THERE COULD HAVE BEEN DEFINITE EVIDENCE IN THIS REGARD, BUT FOR A PERIOD OF 8 MONTHS NO INFORMATION WAS COLLECTED AND ALL OF A SUDDEN THE WARRANT OF AUTHORIZATION WAS ISSUED. FROM THE PERUSAL OF PANCHNAMA PREPARED DURING SEIZURE IT APPEARS THAT NO OBJECTIONABLE DOCUMENT OR UNDISCLOSED PROPERTY WAS FOUND EXCEPT THOSE WHICH WERE DECLARED IN THE EARLIER RETURN. THERE IS NO OTHER EVIDENCE AVAILABLE ON RECORD THAT THE DOCUMENT ANNEXURE RJ-1 RELATES T THE PETITIONER AND THE WORD CH OF WHICH CORRECTNESS IS DISPUTED BY THE PETITIONER INDICATES TO THE PETITIONER. IN ABSENCE OF ANY COGENT REASONS IN THE PRESENT MATTER WARRANT OF AUTHORIZATION COULD NOT BEEN ISSUED, AS HAS BEEN HELD BY THE AFORESAID JUDGMENTS. ISSUANCE OF WARRANT OF AUTHORIZATION IS A SERIOUS ACTION AND FOR THIS 7 AUTHORIZATION OFFICER SHOULD HAVE RECORDED HIS SATISFACTION. THOUGH NORMALLY THIS COURT IS NOT LOOKING TO THE REASONS OF SATISFACTION, BUT IN THE PRESENT CASE IT APPEARS THAT THE WARRANT OF AUTHORIZATION WAS ISSUED MERELY ON HYPOTHECATED GROUNDS, WHICH IS NOT SUSTAINABLE UNDER THE LAW. 13. A DIVISION BENCH OF THIS COURT IN GAYA PRASAD PATHAK VS. ASSISTANT COMMISSIONER OF INCOME TAX AND OTHERS [(2007) 290 ITR 128 (MP)] HAS CONSIDERED THAT IN THE ASSESSMENT PROCEEDINGS THE AUTHORITIES HAVE NO POWER TO CONSIDER THE VALIDITY OF AUTHORIZATION UNDER SECTION 132 (1) OF THE ACT AND THE REMEDY AVAILABLE TO THE PETITIONERS IS BY WAY OF FILING WR IT PETITION. 14. IN THE PRESENT CASE, WE HAVE EXAMINED THE ENTIRE PROCEEDINGS, SATISFACTION NOTE, THE DOCUMENT ANNEXURE RJ-1, WHICH IS THE BASIS FOR ISSUANCE OF WARRANT OF AUTHORIZATION AND ULTIMATELY THE SEIZURE MEMO AND FIND THAT THE ENTIRE ACTION WHICH WAS INITIATED AND TAKEN WAS BASED ON WITHOUT ANY SUFFICIENT GROUND OR MATERIAL AND IT APPEARS THAT BECAUSE OF DISPUTE IN RESPECT OF ALLOTMENT OF HOUSE, THE RESPONDENTS COULD GET AN OPPORTUNITY TO ISSUE WARRANT OF AUTHORIZATION, RESULTANTLY SEARCH IN THE PREMISES OF PETITIONERS WAS CONDUCTED. 15. IN VIEW OF AFORESAID, THE ACTION OF THE RESPONDENTS CANNOT BE SUSTAINED UNDER THE LAW AND ACCORDINGLY THIS PETITION IS ALLOWED AND THE ISSUANCE OF WARRANT OF AUTHORIZATION AND CONSEQUENT SEARCH AND SEIZURE PROCEEDING ARE HEREBY QUASHED. CONSIDERING THE FACTS OF THE CASE, THERE SHALL BE NO ORDER AS TO COSTS. 8 6. SHRI SUMIT NEMA, APPEARED ON BEHALF OF THE ASSES SEE AND CONTENDED AS UNDER :- 1. AT THE THRESHOLD IT IS SUBMITTED THAT THE ORDER PASSED BY THE HONBLE HIGH COURT OF MP IS IN RESPECT OF VALIDITY OF SEARCH U/S 132 WHILE THE PRESENT APPEALS ARE IN RESPECT OF ASSESSMENTS FRAMED U/S 153A. 2. SECONDLY THE ORDER PASSED BY THE HONBLE HIGH COURT QUASHING THE SEARCH AND SEIZURE IS IN FAVOUR OF THE ASSESSEE AND THE ASSESSEE IS NOT PRESSING THE ORDER OF THE HONBLE HIGH COURT INTO SERVICE BEFORE THIS TRIBUNAL SINCE IT RELATES TO VALIDITY OF SEARCH AND NOT THE MERITS OF THE ADDITIONS MADE IN THE ASSESSMENT ORDER AND AS SUCH THE DEPARTMENT CANNOT AVOID HEARING OF THE CASE BY SAYING THAT INTENDS TO FILE AN SLP (NOT YET FILED.) 9 WHERE A PARTICULAR ISSUE HAS NEITHER BEEN APPEALED AGAINST NOR BEEN OBJECTED TO BY RAISING A SPECIFIC OBJECTION, SUCH AN ISSUE CANNOT BE DECIDED BY THE TRIBUNAL DENYING THE TRIBUNAL HAS GRANTED LEAVE TO THE PARTY CONCERNED TO URGE SUCH AN ISSUE BEFORE IT (SEE, KAMAL KISHORE & CO. : IQBAL &CO. : CHETAN SWAROOP OMPRAKASH & CO. VS. CIT (1998) 232 ITR 668, 672 (MP) THE ACT HAS LEFT THE PARTIES GOING UP AS APPELLANT BEFORE THE TRIBUNAL TO CHOOSE AND SET THE SCOPE OF THEIR APPEALS BY RAISING QUESTIONS ARISING OUT OF THE RELEVANT PROCEEDINGS. THEY CAN LIMIT THEIR ATTACK ON THE DETERMINATION OF THE FIRST APPELLATE AUTHORITY AND SEEK AN INTERVENTION OF THE TRIBUNAL ONLY TO THE EXTENT THEY CONSIDER NECESSARY FOR GETTING THE RELIEF THEY INTEND TO CLAIM FROM THE 10 TRIBUNAL. THEY ARE NOT, HOWEVER, PERMITTED TO WIDEN THE SCOPE OF THE PROCEEDINGS DETERMINED BY THE ASSESSING OFFICER OR THE FIRST APPELLATE AUTHORITY. WITHIN THE OUTER LIMIT OF THOSE PROCEEDINGS, THEY ARE FREE TO ASK FOR THE NECESSARY RELIEF THUS LIMITING THE SUBJECT MATTER AND ULTIMATELY THE SCOPE OF THE APPEAL. IT IS PLAIN THAT ONCE THESE LIMITS ARE SET, THE TRIBUNAL CAN DEAL ONLY WITH THAT PART OF THE ORDER OF THE LOWER AUTHORITY WHICH HAS BEEN MADE THE SUBJECT MATTER OF THE APPEAL BEFORE THE TRIBUNAL. IT WOULD NOT BE PERMISSIBLE FOR THE TRIBUNAL TO ADJUDICATE OR GIVE A FINDING ON A QUESTION WHICH WAS NOT AGITATED OR IN REGARD TO WHICH NO RELIEF WAS CLAIMED BEFORE THE LOWER AUTHORITIES OR WHICH WAS NOT IN DISPUTE AND WHICH DOES NOT FORM THE SUBJECT MATTER OF THE APPEAL. IT IS THUS CLEAR THAT THE TRIBUNAL HAS NO JURISDICTION TO FOUND ITS 11 DECISION AND IS NOT THE SUBJECT MATTER OF THE APPEAL. IT HAS NO POWER TO ENLARGE THE SCOPE OF THE PROCEEDINGS OR THAT OF THE APPEAL NEVER THE SUBJECT MATTER IN THOSE PROCEEDINGS OR OF THE APPEAL. IN SHORT, THE TRIBUNAL RAISED BY THE ASSESSEE SUBSEQUENTLY. EVEN THE POWER OF THE TRIBUNAL TO MAKE RECTIFICATION SHOULD NOT BE UNDERSTOOD TO EXTEND THE SCOPE OF THE APPEAL IN DISPOSING OF WHICH THERE APPEARED SOME MISTAKE. (CIT V KRISHNA MINING CO., (1977) 007 ITR 702, 707-708, 708 (AP) THUS WHERE THE APPELLANT HAS NOT RAISED ANY GROUND IN RESPECT OF VALIDITY OF SEARCH THEN THE SAME CANNOT BE RAISED BY THE INCOME TAX DEPARTMENT IN SEEKING ADJOURNMENT. 12 3. THIRDLY IT IS A SETTLED LAW THAT VALIDITY OR OTHERWISE OF A SEARCH HAS NOTHING TO DO WITH THE QUANTUM ADDITIONS. A. ALL THESE CASES WERE CONSIDERED IN BALWANT SINGH V. R.D. SHAH (1969) 71 ITR 550, 581- 3(DELHI) AND THE COURT OBSERVED AT PAGE 583 : IT IT TRUE THAT IN APPROPRIATE CASES THE COURT MAY ORDER RESTORATION OF THE PROPERTY ILLEGALLY SEIZED, BUT SO FAR AS THE USE OF INFORMATION GATHERED AS A RESULT OF SUCH SEIZURE IS CONCERNED, THE COURT, OR THE APPROPRIATE AUTHORITY, HAS, IN ANY CASE, ACTING WITHIN THE LAW, THE POWER TO CALL FOR SUCH INFORMATION AND PROPERTY AND USE THE SAME IN EVIDENCE... MY CONCLUSION, THEREFORE, IS THAT INFORMATION GATHERED AS A RESULT OF ILLEGAL SEARCH AND SEIZURE CAN BE USED SUBJECT TO THE VALUE TO BE 13 ATTACHED TO ITS ADMISSIBILITY IN ACCORDANCE WITH THE LAW RELATING TO THE EVIDENCE. B. LATER, IN POORAN MAL V. DIRECTOR OF INSPECTION (1974) 93 ITR 505), THE SUPREME COURT (RELYING UPON BARINDRA KUMAR GHOSH V. EMPEROR, (1909) ILR 37 37 CAL 467; EMPEROR V. ALLAHABAD KHAN (1913) ILR 35 ALL 358; KURUMA V. QUEEN (1955) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 197 (PC) AND HERMAN KING V. QUEEN (1969) 1 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 304 (PC) HELD THAT EVEN THOUGH THE SEARCH AND SEIZURE MAY BE IN CONTRAVENTION OF SECTION 132, STILL THE MATERIAL OBTAINED THEREBY IS LIABLE TO BE USED SUBJECT 14 TO LAW BEFORE THE INCOME TAX AUTHORITIES AGAINST THE PERSON CONCERNED. C. SIMILARLY, IT WAS HELD IN ITO V. FIRM MADAN MOHAN DAMMA MAL (1968) 70 ITR 293, 305, 306 (ALL), THAT DOCUMENTS RECOVERED AT A SEARCH WHICH WAS NOT ABSOLUTELY ACCORDING TO LAW CAN BE UTILISED FOR ASSESSMENT. THERE IS NO DIRECT CONNECTION BETWEEN THE ASSESSMENT OR TAX AND THE METHOD BY WHICH A DOCUMENT UTILISED THEREFOR IS FOUND OUT. D. ILLEGALITY OF THE SEARCH DOES NOT VITIATE THE EVIDENCE COLLECTED DURING THE ILLEGAL SEARCH. THE ONLY REQUIREMENT IS THAT THE COURT OR THE AUTHORITY BEFORE WHICH SUCH MATERIAL OR EVIDENCE SEIZED DURING THE SEARCH SHOWN TO BE ILLEGAL IS PLACED HAS TO BE CAUTIOUS AND CIRCUMSPECT IN DEALING WITH SUCH EVIDENCE OR 15 MATERIAL (DR. PARTAP SINGH VS. DIRECTOR OF ENFORCEMENT (1985) 155 ITR 166, 175 (SC). ALSO SEE BINNY LTD. V. ASST.CTO (1988) 71 STC 240 (KARN.) E. IT MAY BE REMEMBERED THAT IRRESPECTIVE OF THE VALIDITY OF THE PROCEEDINGS, THE EVIDENCE OR THE TESTIMONY CANNOT BE WIPED OUT AND DOES NOT BECOME NON-EXISTENT. (KUSUM LATA SINGHAL V. CIT (1990) 185 ITRE 56, 59 (SC) 4. LASTLY ON THE LAST DATE OF HEARING ON 24.6.2013 THE DEPARTMENT WAS GIVEN TIME SINCE THEY WANTED A REPORT FROM THE ASSESSING OFFICER. NOW ON THE PRETEXT OF FILING OF SLP (WHICH HAS NOT YET BEEN FILED) IN RESPECT OF VALIDITY OF SEARCH AND SEIZURE (WHICH IS NOT THE ISSUE HERE) THEY WANT TO AVOID HEARING OF THE CASE. IT IS PERTINENT TO 16 BRING TO THE KIND NOTICE OF THE HONBLE MEMBERS THAT THE APPEALS BEFORE CIT(A) WERE KEPT PENDING FOR ALMOST 3 YEARS AND ONLY ON THE DIRECTION OF THE HONBLE HIGH COURT THESE CIT(A) DECIDED THE APPEALS. NOW AGAIN THE DEPARTMENT SEEKS ADJOURNMENT ON A TOTALITY FLIMSY GROUND JUST TO BARRAS THE ASSESSEE WHO IS A SENIOR IAS OFFICER AND WHOSE CARRIER HAS BEEN SPOILED BY THE DELAY IN DECIDING THE APPEALS AND AGAIN IF THE ITAT APPEALS ARE KEPT PENDING IT WILL CAUSE PREJUDICE AND HARASSMENT TO THE ASSESSEE. 7. IN VIEW OF THE ABOVE SUBMISSIONS, THE LEARNED CO UNSEL FOR THE ASSESSEE ARGUED THAT THESE APPEALS SHOULD B E HEARD ON MERIT AND THE ADJOURNMENT APPLICATION FILE D BY THE DEPARTMENT SHOULD BE REJECTED. 8. ON THE OTHER HAND, SMT. MRUDULA BAJPAI, LEARNED CIT DR, APPEARED ON BEHALF OF THE DEPARTMENT AND SOUGHT 17 ADJOURNMENT ON THE PLEA THAT THE DEPARTMENT IS GOIN G TO FILE SLP IN THE HONBLE SUPREME COURT AGAINST THE ORDER OF THE HONBLE HIGH COURT OF M.P. 9. THE LEARNED CIT DR ALSO FILLED A LETTER DATED 23 RD JULY, 2013 STATING THEREIN COMMENTS OF THE AO AS UNDER :- KINDLY REFER TO LETTER F.NO. CIT(DR)/ITAT/IND/2013- 14/198 DATED 20.06.2013 ON THE ABOVE SUBJECT. 2. THE DESIRED COMMENTSON THE GROUNDS OF APPEALS IN TH E CASE OF SHRI RAJESH RAJORA FOR THE A.Y. 2003-04 TO 2009- 10 ARE AS UNDER :- 3. IN THIS CASE A SEARCH AND SEIZURE WAS CONDUCTED U/S 132 OF THE INCOME TAX ACT, 1961 AT THE ASSESSEES PREMISES AND ASSESSMENT U/S 153A R.W.S 143(3) OF TH E INCOME TAX ACT,1961FOR THE A.Y. 2003-04 TO 2009-10 WAS COMPLETED ON 30.12.2010. 4. WHIE COMPLETING ASSESSMENT U/S 153A ADDITION WAS MADE ON THE FOLLOWING HEAD:- 18 A. ON ACCOUNT OF UNEPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF SHRI AVTAR SINGH KHURANA, SMT MADHU KHURANA AND DILIP AVTAR CONSTRUCTIONS PVT LTD FROM THE A.Y. 2003-04 TO 2007-08. 5. THE DEPARTMENT HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL ON THE BASIS OF ADDITION ON ACCOUNT OF UNEXP LAINED CASH DEPOSITS AS FOLLOWS: AY 2003-04 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN - 1.DELETING THE ADDITION OF RS.1,15,000/- MADE BY TH E AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. A.Y. 2004-05 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN - 1. DELETING THE ADDITION OF RS. 83,800/- MADE BY THE A O ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. A.Y. 2005-06 19 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN - 1. DELETING THE ADDITION OF RS. 6,69,500/- MADE BY T HE AO ON ACCOUNT OF UNEXPLAINED CASHDEPOSITS. A.Y. 2006-07 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1. DELETING THE ADDITION OF RS. 45,000/- MADE BY THE A O ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. A.Y. 2007-08 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1. DELETING THE ADDITION OF RS. 19,48,000/- MADE BY TH E AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. 5.2 THE ABOVE GROUND DESERVE TO BE UPHELD AS THE ASSESSING OFFICERVIDE PAGE 21 TO 36 OF THE ASSESSME NT ORDER HAD COMPRESSIVELY BROUGHT OT THE NEXUS BETWEE N THE CASH DEPOSITS IN THE ABOVE MENTIONED ACCOUNTS A ND 20 THE UNACCOUNTED INCOME OF THE ASSESSEE I.E SHRI RAJ ESH RAJORA. FURTHER, IT HAS BEEN BROUGHT OUT IN THE ASSESSMENT ORDER THAT SHRI RAJESH RAJORA, HIS FAMIL Y/ IN LAWS AND THEIR COMPANY WERE ASSOCIATED WITH THE SAL E AND PURCHASE OF IMMOVABLE PROPERTIES OF THE LAND AT BHOPAL. DESPITE BEING GIVEN VARIOUS OPPORTUNITIES D URING THE ASSESSMENT PROCEEDINGS, SHRI AVATAR KHURANA, SM T MADHUA KHURANA AND DILIP AVTAR CONSTRUCTION PVT LTD COULD NOT FURNISH ANY EXPLANATION REGARDING THE CAS H DEPOSITS IN THEIR BANK ACCOUNTS ON THE PLEA THAT TH EY WERE SEPARATE ASSESSEES AND THAT THEY WERE LIABLE TO EXPLAIN THE CASH DEPOSITS IN THEIR BANK ACCOUNTS. HOWEVER, THE ASSESSEE DID NOT DISCHARGE ITS ONUS OF EXPLAINING THE CAH DEPOSITS IN THEIR BANK ACCOUNTS DESPITE BEING SPECIFICALLY ASKED IN THE QUESTIONNAIRE DATED 15.11.2007 THAT THE CASH DEPOSITED IN THE BANK ACCO UNTS OF SHRI AVTAR SINGH KHURANA AND SMT. MADHU KHURANA DOES NOT APPEAR TO BE COMMENSURATE WITH THEIR KNOWN SOURCES OF INCOME. FURTHER, IN THE SAID QUESTIONNAI RE, IT WAS SPECIFICALLY POINTED OUT THAT MAJORITY OF THE C ASH DEPOSITS OF RS. 14,06,000/-, OUT OF TOTAL OF RS. 21 16,32,800/-, IN THE BANK ACCOUNT OF SMT MADHU KHURA NA WAS DEPOSITED IN THE YEAR 2006-07 ITSELF WHEN SHRI RAJESH RAJORA WAS THE COMMISSIONER, HEALTH. SIMILA RLY RS. 4,92,000/- WAS DEPOSITED IN THE BANK ACCOUNT OF SHRI A.S. KHURANA IN THE A.Y. 2006-07 ITSELF. THE ASSESS EE WAS GIVEN OPPORTUNITY TO PRODUCE SHRI AVTAR SINGH KHURAN AND SMT. MADHU KHURANA TO EXPLAIN THE DEPOSI T IN THEIR BANK ACCOUNTS AND THAT OF DILIP AVTAR CONSTRUCTION PVT. LTD. HOWEVER, DESPITE BEING GIVEN SPECIFIC OPPORTUNITIES, THE ASSESSEE DID NOT CHOOSE TO SUBSTANTIATE WITH ANY DOCUMENTARY EVIDENCE, THE CAS H DEPOSITS ENQUIRED VIDE QUESTIONNAIRE ISSUED DURING THE ASSESSMENT PROCEEDINGS. 5.3 FURTHER, THE AO HAS ALSOCLEARLY BROUGHT OUT THA T ALL THE CASH DEPOSITS MADE BY SHRI AVTAR SINGH KHURANA INTO HIS BANK ACCOUNT WITH AHMEDABAD COPERATIVE MERCANTILE BANK,SATELLITE BRANCH HAVE BEEN UTILIZED FOR ISSUIN G CHEQUES TO M/S JAI VAISHNO DEVI CO OPERATIVE HOUSIN G SOCIETY AHMEDABAD. IT HAS ALSO BEEN BROUGHT OUT THA T THE CHEQUE CREDITS RECEIVED BY M/S JAI VAISHNO DEVI CO OPERATIVE HOUSING SOCIETY AHMEDABAD FROM SHRI AVTAR 22 SINGH KHURANA HAD BEEN SUBSEQUENTLY UTILIZED FOR REPAYMENT OF ADVANCES GIVEN BY SHRI RAJESH RAJORA T O M/S JAI VAISHNO DEVI CO OPERATIVE HOUSING SOCIETY, AHMEDABAD AND HIS FAMILY MEMBERS. 5.4 THE ASSESSMENT ORDER AT PAGE 34 ALSO BROUGHT OU T THAT ASSETS WERE BEING CREATED ON THE LAND OWNED BY SHRI RAJESH RAJORA, BUT THE PAYMENTS WERE BEING SHOWN TO HAVE BEEN MADE BY HIS FATHER IN LAW I.E SHRI AVTAR SINGH KHURANA. 5.5 HENCE,AS COMPREHENSIVELY DISCUSSED IN THE ASSESSMENT ORDER, THE IN-LAWS OF SHRI RAJESH RAJORA WERE NOT ABLE TO SUBSTANTIATE THE CASH DEPOSITS IN THEIR BANK ACCOUNT, AND THAT OF THEIR COMPANY DILIP AVTAR CONSTRUCTION PVT. LTD. FURTHER,AFTER DEPOSITION OF CASH IN THEIR BANK ACCOUNTS, CHEQUES HAVE BEEN ISSUED FOR G IVING ADVANCE TO THE HOUSING SOCIETY TO WHICH SHRI RAJESH RAJORA HAD INITIALLYMADE THE PAYMENT WHICH WAS REFUNDED TO HIM BY THE SOCIETY AFTER RECEIVING PAYM ENT FROM HIS IN-LAWS. THEREFORE, THE AO HAS CORRECTLY M ADE THE ADDITIONS ON ACCOUNT OF UNACCOUNTED CASH DEPOSI TS IN THE BANKS ACCOUNTS OF SHRI AVATAR KHURANA, SMT MADH U 23 KHURANA AND DILIP AVTAR CONSTRUCTION PVT LTD, IN TH E HANDS OF THE ASSESSEE I.E SHRI RAJESH RAJORA. THERE FORE, IT IS PRAYED THAT THE GROUNDS OF APPEAL AS MENTIONED A BOVE MAY KINDLY BE UPHELD. B. ADDITION ON ACCOUNT OF UNDISCLOSED INCOMERELATING T O PURCHASE AND SALE OF IMMOVABLE PROPERTIES OF RS 3,92,04,000/- IN THE ASSESSMENT YEAR 2009-10. 6. THE DEPARTMENT HAS TAKENTHE FOLLOWING AMENDED GROUND OF APPEAL FOR THE A.Y. 2009-10 VIDE THIS OFF ICE LETTER F.NO./DCIT-1(1)/BPL/2013-14/216-217 DATED 17.07.2013 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1.DELETING THE ADDITION OF RS. 3,92,04,000/- MADE BY THE AO ON ACCOUNT OF UNDISCLOSED INCOME RELATING T O PURCHASE AND SALE OF IMMOVABLE PROPERTIES. 6.2 THIS GROUND OF APPEAL NEEDS TO BE UPHELD AS THE AO VIDE PAGE 36 TO 50 OF THE ASSESSMENT ORDER HAS ELABORATELYDISCUSSED THE ISSUE OF UNDISCLOSED INCOM E RELATING TO PURCHASE AND SALE OF IMMOVABLE PROPERTI ES OF 24 RS 3,92,04,000/- IN THE ASSESSMENT YEAR 2009-10. TH E ISSUE OF PURCHASE OF 3 ACRES LAND ( 130680 SQ.FT) @ RS 300/- PER SQ.FT WHICH TOTALS TO RS 3,92,04,000/- IS BASED ON SEIZED DOCUMENT DURING THE SEARCH OPERATION ON 30.05.2008 FROM THE RESIDENCE OF THE ASSESSEE, I.E. LPS-2 PAGE 24, A SCANNED COPY OF WHICH HAS BEEN REPRODUCE D IN THE ASSESSMENT ORDER AT PAGE NO. 36. AS DISCUSSE D IN THE ASSESSMENT ORDER, THE TOTAL CONSIDERATION WAS P ARTLY IN THE FORM OF MONEY AND PARTLY AS EXCHANGE OF TWO PIECES OF LAND I.E 4 ACRES OF LAND AND 1.33 ACRES O F LAND AS PER LPS 2 PAGE 24 SEIZED ON 30.5.2008 FROM THE RESIDENCE OF SHRI RAJESH RAJORA AT CHAR IMLI, BHOPA L. 6.3 FURTHER, IT HAS BEEN BROUGHT OUT THAT LPS 2 & 3 WERE SEIZED FROM THE BRIEFCASE OF SHRI AVTAR SINGH KHURA NA, WHO DURING THE SEARCH AND SEIZURE ACTION, IN HIS SW ORN STATEMENT RECORDED ON 30.5.2008 BEFORE THE AUTHORIS ED OFFICER U/S 132 HAD STATED THAT LPS 2 PAGE 24 DID NOT PERTAIN TO HIM. HOWEVER, DURING THE COURSE OF ASSES SMENT PROCEEDINGS SHRI AVTAR SINGH KHURANA FILED AN AFFID AVIT DATED 20.8.2010 THAT THE SAID PAPER BELONGED TO HIM AND NOT TO SHRI RAJESH RAJORA. THIS IS CLEARLY AN AFTER THOUGHT, 25 WHICH HAS NO VALUE AS THIS CONTENTION HAS BEEN RAIS ED AFTER A PERIOD OF MORE THAN TWO YEARS. 6.4 FURTHER, THE AO HAS REFUTTED THE AFFIDAVIT FIL ED BY SHRI ASHOK GOYAL CITING CLEAR REASONS AND SUBSTANTI ATIONS OF THE LINKAGE BETWEEN SHRI AVTAR SINGH KHURANA AND SHRI ASHOK GOYAL THROUGH PAGE 1 OF LPS 1 SEIZED FRO M THE RESIDENCE OF SHRI ASHOK GOYAL., A SCANNED COPY OF W HICH HAS BEEN REPRODUCED IN THE ASSESSMENT ORDER ITSELF. SIMILARLY THE SCANNED COPY OF THE BACK SIDE OF PAGE NO 1 LPS 1 MENTIONED ABOVE CONTAINS ENTRIES PERTAINING T O SHRI KHURANA (ASSESSEES FATHER-IN-LAW). ON THE BASIS OF DETAILED DISCUSSION, THE AO HAS HELD THAT SHRI RAJE SH RAJORA AND SHRI AVTAR SINGH KHURANA HAD ENTERED INT O TRANSACTIONS OF SALE AND PURCHASE PROPERTIES WITH S HRI ASHOK GOYAL, THE PAYMENT OF RS 1,85,00,000/- IN CAS H WAS MADE BY THE ASSESSEE THROUGH SHRI AVTAR SINGH KHURANA TO SHRI ASHOK GOYAL, WHICH WAS HELD TO BE T HE UNDISCLOSED INCOME OF SHRI RAJESH RAJORA. FURTHER, THE INVESTMENT IN 4 ACRES AND 1.33 ACRES LAND AND CAPIT AL GAIN ARISING ON SALE CUM EXCHANGE TOTALING TO RS 1,90,47,000/- WERE HELD TO BE UNEXPLAINED INVESTMEN T 26 AND UNDISCLOSED INCOME OF SHRI RAJESH RAJORA. THERE FORE, THE ASSESSING OFFICER HAD CORRECTLY MADE THE ADDI TIONS OF RS. 3,92,04,000/- ON ACCOUNT OF UNDISCLOSED INC OME RELATING TO PURCHASE AND SALE OF IMMOVABLE PROPERTI ES FOR THE A.Y. 2009-10. THEREFORE, IT IS PRAYED THAT THE GROUND OF APPEAL AS MENTIONED ABOVE MAY KINDLY BE UPHELD. 10. ON THE OTHER HAND, THE LEARNED CIT DR, SMT. MR UDULA BAJPAI, FILED A REQUEST FOR ADJOURNMENT ON THE PLEA THAT THE DEPARTMENT IS GOING TO FILE SLP IN THE HON'BLE SUPR EME COURT AGAINST THE ORDER PASSED BY THE HON'BLE JURISDICTIO NAL HIGH COURT OF MADHYA PRADESH DATED 27.6.2013. 11. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND G ONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AS WELL AS ORDER PASSED BY HONBLE HIGH COURT DATED 27.6.2013. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN IAS OFFICER. HI S WIFE SMT. SAMEETA RAJORA IS AN OFFICER OF INDIAN FOREST SERVICE. SEARCH & SEIZURE OPERATION AT THE RESIDENCE OF DR. YOGIRAJ SHARMA, DIRECTOR OF HEALTH, GOVERNMENT OF MADHYA PRADESH WAS CONDUCTED ON 7.9.2007. SIMULTANEOUS ACTION WAS ALSO CARRIED OUT IN THE RESIDENTIAL PREM ISES AND 27 BUSINESS PREMISES OF OTHER OFFICIALS OF HEALTH DEPA RTMENT, SUPPLIERS, CONTRACTORS AND MANUFACTURERS. SEARCH AC TION U/S 132 WAS CONDUCTED IN THE RESIDENTIAL PREMISES O F THE ASSESSEE, SHRI RAJESH RAJORA, ON 31.3.2008. AT THAT TIME THE ASSESSEE WAS THE COMMISSIONER, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF MP. CERTAIN INCRIMINATING DOCUMENTS WERE SEIZED FROM THE DIFFER ENT ROOMS AS WELL AS THE GUEST ROOM OCCUPIED BY SHRI AVTARSINGH KHURANA, FATHER-IN-LAW OF THE ASSESSEE. THE A.O. INITIATED THE PROCEEDINGS U/S 153A AND COMPLET ED THE ASSESSMENTS FOR THE A.YS. 2003-04 TO 2007-08 & 2009-10 ON 30.12.2010. THE A.O. MADE THE ADDITION O F RS. 1,01,23,935/- IN THE A.Y. 2007-08 IN THE HANDS OF THE ASSESSEE TOWARDS THE ENTRIES APPEARING ON PAGE NO. 6 OF LPS-1/7 SEIZED FROM DR. YOGIRAJ SHARMA. HE MADE THE OTHER ADDITIONS IN THE HANDS OF THE ASSESSEE TOWARD S THE CASH DEPOSITS APPEARING IN THE BANK A/CS OF FATHER- IN-LAW SHRI AVTAR SINGH KHURANA, MOTHER-IN-LAW SMT. MADHUKHURANA AND THEIR COMPANY M/S DILILP AVTAR 28 CONSTUCTION CO.(P) LTD. IN THE DIFFERENT CITIES OF VASTRAPUR, VAIJALPUR AND AHMEDABAD (GUJARAT) IN THE A.YS. 2003 -04 TO 2007-08. THE AO MADE ONE MORE ADDITION OF RS. 3,92,04,000/- TOWARDS THE PAGE NO. 4 OF LPS-2 SEIZE D FROM THE GUEST ROOM OF THE BUNGLOW OF THE ASSESSEE IN THE A.Y. 2009-10. AGGRIEVED BY THE SAME, THE ASSESSEE HAS FILED THE APPEALS BEFORE CIT(A) AGAINST THE ORDERS U/S 153A/143(3) FOR THE A.YS. 2003-04 TO 2007-08 AND 20 09- 10 AND HAS CHALLENGED THE LEGALITY OF THE ASSESSMEN T AS WELL AS ALL THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT YEARS RAISING 7 TO 9 GROUNDS IN EACH YEA R ON APPEAL. BY THE IMPUGNED ORDER, THE CIT(A) DELETED MOST OF THE ADDITIONS AGAINST WHICH THE REVENUE IS IN APPEA L BEFORE US IN THE A.YS. 2003-04 TO 2007-08 AND 2009- 10. IN RESPECT OF THE ADDITIONS SUSTAINED BY THE LEARNE D CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US IN THE A.Y. 2007-08. 29 12. IT IS CLEAR FROM THE ORDER PASSED BY THE HON' BLE JURISDICTIONAL HIGH COURT DATED 27.6.2013 IN THE WRIT PETITION FIL ED BY THE ASSESSEE THAT THE ISSUE OF WARRANT OF AUTHORISATION AND CONSEQUENT SEARCH AND SEIZURE PROCEEDINGS WERE QUAS HED. THE HON'BLE HIGH COURT OBSERVED THAT SATISFACTION NOTE WHICH IS THE BASIS FOR ISSUANCE OF WARRANT OF AUTHORISATION AND ULTIMATELY SEIZURE MEMO, THE ENTIRE ACTION WHICH WAS INITIATED AND TAKEN WAS WITHOUT ANY SUFFICIENT GROUND OR MATERIAL. IT WAS F URTHER OBSERVED THAT BECAUSE OF DISPUTE IN RESPECT OF ALLOTMENT OF HOUSE, THE DEPARTMENT COULD GET AN OPPORTUNITY TO ISSUE WARRAN T OF AUTHORISATION, RESULTANTLY SEARCH IN THE PREMISES O F THE ASSESSEE WAS CONDUCTED. SINCE THE HON'BLE HIGH COURT HAS QU ASHED THE SEARCH PROCEEDINGS ITSELF, ADDITIONS MADE PURSUANT TO ISSUE OF NOTICE U/S 153A ARE NOT SUSTAINABLE AT ALL. SINCE THE INITIATION OF SEARCH ITSELF HAS BEEN QUASHED, WE ARE NOT GOING TO DECIDE ON THE MERITS OF THE ADDITIONS MADE CONSEQUENT TO THE SEAR CH. MERELY BECAUSE THE DEPARTMENT IS PREPARING TO FILE SLP AGA INST THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE WRI T PETITION FILED BY THE ASSESSEE, THE REQUEST FILED BY THE DEPARTMENT F OR ADJOURNMENT CANNOT BE ENTERTAINED. WE, THEREFORE, RESPECTFULLY FOLLOW THE VERDICT 30 OF THE HON'BLE JURISDICTIONAL HIGH COURT AND HOLD T HAT THE ADDITIONS MADE BY THE ASSESSING OFFICER U/S 153A RE AD WITH SECTION 143(3) OF THE ACT PURSUANT TO THE SEARCH WH ICH HAS BEEN QUASHED, HAS NO LEGS TO STAND. 12. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E AND THE REVENUE ARE DISPOSED OF IN TERMS INDICATED HEREINAB OVE. ORDER PRONOUNCED IN OPEN COURT ON 27.8.2013 SD/- SD/- (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER AUGUST 27 TH , 2013 DN/-