The ITO, Ward-9(1), Ahmedabad V. Shri Ramesh Bhikhabhai Ukani, Ahmedabad

ITSSA 138/AHD/2009

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0265 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 30-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Income from undisclosed sources; Document seized; Documents seized
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SRI G.C. GUPTA, VICE PRESIDENT AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER INCOME TAX OFFICER, WARD-9(1), AHMEDABAD (APPELLANT) VS SHRI RAMESH BHIKHABHAI UKANI, B/11, SHIVAM APARTMENT, NEAR BHAGWATI SCHOOL, HIRAWADI, POST THAKKAR BAPANAGAR, AHMEDABAD PAN: AAKPU4189N (RESPONDENT) REVENUE BY: SRI VIMALENDU VERMA, CIT-D. R. ASSESSEE BY: SRI VIJAY RANJAN, A.R. DATE OF HEARING : 31-07-2014 DATE OF PRONOUNCEMENT : 08-08-20 14 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF LD. CIT(A)- XV, AHMEDABAD DATED 20-08-2009 FOR A.Y. 2004-05. IT(SS)A NO. 138/AHD/2009 ASSESSMENT YEAR 2004-05 I.T(SS).A NO. 138/AHD/2009 A.Y. 2004-05 PAGE NO ITO VS. RAMESH BHIKHABHAI UKANI 2 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON REC ORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING I NCOME FROM PARTNERSHIP FIRMS AND RENTAL INCOME. A SEARCH ACTIO N U/S 332 OF THE ACT WAS CARRIED OUT IN THE CASE OF SHRI VIKAS SHAH ON 9 .2.2005 WHERE CERTAIN INCRIMINATING EVIDENCES REGARDING SALE OF LAND AT D HOLAKUVA BELONGING TO ASSESSEE WERE FOUND. THEREAFTER PURSUANT TO NOTICE U/S 153A(1)(A) RWS 153C WAS ISSUED ON 9.1.2008 AND IN RESPONSE TO WHIC H ASSESSEE FILED RETURN OF INCOME ON 29. 2. 2008 DECLARING TOTAL IN COME OF RS 2,31,690. THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) RWS 153 C VIDE ORDER DATED 26.12.2008 AND THE TOTAL INCOME WAS DETERMINED AT R S 52,51,690. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A). LD. CIT(A) VIDE ORDER DATED 20.3.2009 ALLOW ED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), RE VENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING EFFEC TIVE GROUND: 1. THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION OF RS. 50,00,000/- MADE ON AC COUNT OF UNDISCLOSED RECEIPT AGAINST PROPOSED SALE OF LAND. 4. A SEARCH ACTION WAS CONDUCTED IN THE CASE OF SHR I VIKAS SHAH ON 9.2.2005 WHERE CERTAIN INCRIMINATING EVIDENCES REGA RDING SALE OF LAND AT DHOLAKUVA BELONGING TO ASSESSEE WERE FOUND. AS PER THE DOCUMENTS FOUND, ASSESSEE HAD MADE AGREEMENT TO SALE OF LAND TO SHRI VIKAS SHAH FOR RS 1.65 CRORE. IT WAS ALSO NOTICED THAT SHRI VI KAS SHAH HAD PURCHASED 50% OF THE SHARE IN LAND VIDE MOU DTD 10.1.2003 AND THE ASSESSEE HAD RECEIVED TOTAL PAYMENT OF RS 50 LACS AGAINST THE PR OPOSED SALE CONSIDERATION OF RS 1.65 CRORE. AO HAS NOTED THAT IN THE STATEMENT OF SHRI VIKAS SHAH RECORDED U/S 131(1A) ON 9.2.2005, HE HAD CONFIRMED THE MAKING OF PAYMENT OF RS 50 LACS TO THE ASSESSEE. A SSESSEE WAS ASKED TO I.T(SS).A NO. 138/AHD/2009 A.Y. 2004-05 PAGE NO ITO VS. RAMESH BHIKHABHAI UKANI 3 EXPLAIN THE TRANSACTION TO WHICH ASSESSEE INTERALIA SUBMITTED THAT HE WAS NOT A PARTY TO THE AGREEMENT AND THE LAND WAS NOT S OLD TO SHRI VIKAS SHAH. THE SUBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCE PTABLE TO THE AO. THUS ON THE BASIS OF STATEMENT OF SHRI VIKAS SHAH, NOTINGS ON THE SEIZED MATERIAL AO CONSIDERED RS 50 LACS RECEIVED BY THE A SSESSEE AGAINST THE PROPOSED SALE OF LAND AS UNACCOUNTED INCOME OF THE ASSESSEE AND ADDED TO THE TOTAL INCOME. AGGRIEVED BY THE ACTION OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD CIT(A). LD CIT(A) AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE, REMAND REPORT OF THE AO AND ASSESSEE S RESPONSE TO REMAND REPORT DELETED THE ADDITION BY HOLDING AS UN DER: 10. AFTER GOING THROUGH RIVAL SUBMISSIONS FOLLOWIN G POINTS EMERGE: I. SEIZED PAGE 62 OF ARNIEXURE-270 IS AN AGREEMENT DATED 30 TH MAY 2003 ENTERED BETWEEN SHRI VIKAS A. SHAH AND SHRI JA YSUKHBHAI S. RADADIYA. THIS AGREEMENT HAS NOT BEEN ENTERED BY SH RI VIKAS A. SHAH WITH RAMESH UKANI - THE APPELLANT, SO THIS IS A WRONG PRESUMPTION IN THE ASSESSMENT ORDER NOT SUPPORTED B Y SEIZED DOCUMENTS. II EVEN THE AO IN PARA 8 OF THE ASSESSMENT ORDER HA S CONCEDED THAT NAME OF SHRI JAYSUKHBHAI S. RADADIYA HAS BEEN WRITT EN AGAINST PAYMENTS MADE ON VARIOUS DATES, THE AO HAS CONCLUDE D THAT THESE PAYMENTS HAVE BEEN MADE TO SHRI RAMESH UKANI ON THE BASIS OF STATEMENT OF SHRI VIKAS A. SHAH. BUT THIS STATEMEN T OF VIKAS A. SHAH IS NOT CORROBORATED BY ANY OTHER EVIDENCE FOUN D DURING SEARCH FROM THE PREMISES OF VIKAS A. SHAH OR FROM THOSE OF THE APPELLANT. III DCIT. CENTRAL CIRCLE. 1(2) HAS MENTIONED IN HIS LETTER ADDRESSED TO ITO.WARD.9(1) DATED 27.7.2009 AND COPY ENDORSED TO THIS OFFICE (AUNESURE-1 OF THIS ORDER) THAT DIFFERENT PAGES OF ANNEXURE A/172 , A/174, A/195 MENTIONED IN THE SUBMISSION GIVEN BY S HRI VIKAS A. SHAH DATED 4.4.2007 FILED WITH DCIT, CENTRAL CIRCLE .1(2), AHMEDABAD AND WHICH HAVE BEEN QUOTED IN PARA 9 OF T HE ASSESSMENT ORDER DO NOT GIVE ANY PAYMENT DETAILS MA DE_TO SHRI RAMESH UKANI. THUS THE DEPARTMENT DOES NOT HAVE ANY CORROBORATIVE EVIDENCE TO BACK ITS DOUBTS THAT PAYM ENTS WERE MADE TO RAMESH UKANI. I.T(SS).A NO. 138/AHD/2009 A.Y. 2004-05 PAGE NO ITO VS. RAMESH BHIKHABHAI UKANI 4 IV THE SEIZED PAGES ENCLOSED WITH THE LETTER OF DCI T. CENTRAL CIRCLE. 1(2) (ANNEXIIRE-1 OF THIS ORDER) SHOW THAT THEY ARE SIMPLE JOTTINGS GIVING AMOUNTS WHERE NO DATES HAVE BEEN MENTIONED A ND SEVERAL NAMES HAVE BEEN MENTIONED AGAINST EACH AMOUNT APPEA RING, WHICH DO NOT PROVE THAT AMOUNT WAS RECEIVED BY RAMESH UKA NI AGAINST SALE OF LAND. V LAST BUT NOT THE LEAST THE SAID PROPERLY IN QUEST ION FOR WHICH RAMESH UKANI ALLEGEDLY RECEIVED RS.50,00,000 FROM S HRI VIKAS A. SHAH WAS LYING ATTACHED WITH THE TRO, CENTRAL CIRCL E. COPY OF THE LETTER OF TAX RECOVERY OFFICER, CENTRAL RANGE-1, AH MEDABAD DATED 18.10.2007 ADDRESSED TO SHRI VIKAS A, SHAH IS ENCLO SED AS ANNEXURE-2 OF THIS ORDER, THROUGH WHICH ATTACHMENT ON ONE HALF UNDIVIDED PORTION OF LAND AT SURVEY NUMBER 60 VILLA GE DHOLAKUVA, DISTRICT GANDHINAGAR HAS BEEN UPLIFTED. VI THE ARGUMENT OF THE AR THAT IF THIS PORTION WAS SOLD TO VIKAS A. SHAH BY THE APPELLANT HOW COULD IT AGAIN BE SOLD VI DE SALE AGREEMENT DATED 3.11.2007 FOR A CONSIDERATION OF RS .12,00,000 THROUGH A DULY REGISTERED SALE DEED TO SOME OTHER P ERSON AFTER THE ATTACHMENT ON THIS LAND WAS LIFTED BY THE INCOME-TA X DEPARTMENT. IT WAS INFORMED THAT THE COPY OF SALE DEED WAS FURNISH ED TO THE AO AS WELL. IN VIEW OF THE ABOVE I AM OF THE OPINION THAT THE A DDITION OF RS. 50,00,000/- AS THE AMOUNT RECEIVED FOR SALE OF LAND BY SHRI RAMESH UKANI FROM SHRI VIKAS A. SHAH CANNOT BE CONFIRMED B ECAUSE THE DEPARTMENT DOES NOT HAVE EVIDENCE TO BACK THIS THES IS. I HAVE THEREFORE NO ALTERNATIVE BUT TO DIRECT ME AO TO DEL ETE THE ADDITION. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. BEFORE US, ID DR TOOK US THROUGH THE ORD ER OF AO AND SUPPORTED HIS ORDER. ON THE OTHER HAND, LD. AR REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT(A) AND SUPPORTED THE ORDER OF LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS THE ALLE GED RECEIPT OF RS 50 LACS ON THE SALE OF LAND BY THE ASSESSEE. WE FIND THAT L D CIT(A) WHILE DELETING I.T(SS).A NO. 138/AHD/2009 A.Y. 2004-05 PAGE NO ITO VS. RAMESH BHIKHABHAI UKANI 5 THE ADDITION INTERALIA HAS GIVEN A CATEGORICAL FIND ING THAT THE AGREEMENT HAS NOT BEEN ENTERED BY SHRI VIKAS SHAH WITH THE AS SESSEE, THE STATEMENT OF SHRI VIKAS SHAH OF GIVING THE MONEY TO ASSESSEE IS NOT CORROBORATED BY ANY EVIDENCE FOUND DURING THE SEARCH FROM THE PREMI SES OF VIKAS SHAH OR FROM ASSESSEE AND THE SEIZED PAGES DO NOT PROVE THE RECEIPT OF MONEY BY THE ASSESSEE. BEFORE US, REVENUE HAS NOT BROUGHT A NY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF CIT(A). WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUND OF REVENUE IS DISMISSED 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (G.C. GUPTA) ( ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD : DATED 08/08/2014 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/ , / ,