Danesh A.Vichare, Silvassa V. The ACIT.,Vapi Circle, Vapi

ITSSA 167/AHD/2007

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7829 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 12-01-2012
• Assessment Year: misc
• Appeal Filed On: 14-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: J P SHAH
• Keywords: Income from undisclosed sources; Document seized; Block assessment; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. K. GARO DIA, AM) IT(SS)A NO.167/AHD/2007 B. P.: 1997-98 TO 2003-04 DHANESH A . VICHARE, FLAT NO. H-A-12, GAURAV COMPLEX- II, SAYALI ROAD, SILVASA PA NO. ABPPV 5078 D VS THE A. C. I. T., VAPI CIRCLE, VAPI, AJIT NAGAR CHOWK, VAPI (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. P. SHAH, AR RESPONDENT BY SHRI B. L. YADAV, SR. DR DATE OF HEARING: 12-01-2012 DATE OF PRONOUNCEMENT: 25-01-2012 O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-VA LSAD DATED 14 TH SEPTEMBER, 2007 FOR THE ABOVE BLOCK PERIOD. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH ACTION IN THE CASE OF M/S. PARMAR BUILDERS & DEVELOPERS CERTAIN DOCUMENTS SEIZED AND ON PAGE 1 TO 8 OF ANNE XURE B/1, IT WAS NOTED THAT CERTAIN MONIES WERE RECEIVED FROM CERTAI N FLAT OWNERS. EVIDENCES OF ON-MONEY AND EXTRA CONSIDERATION WERE GATHERED DURING THE COURSE OF SEARCH. IN THE STATEMENT RECORDED ON OATH OF SHRI NARVIR PARMAR, PARTNER OF THE DEVELOPER FIRM, HE ADMITTED UNDISCLOSED INCOME BY WAY OF TAKING ON-MONEY ON SALE OF FLATS/S HOPS. IT WAS IT (SS) A NO.167/AHD/2007 DHANESH A. VICHARE VS ACIT, VAPI CIRCLE, VAPI 2 NOTED IN THE SEIZED PAPERS THAT HE ASSESSEE PAID RS .6,01,916/- TO THE DEVELOPER FIRM OUT OF WHICH RS.5,01,916/- HAD BEEN PAID BY CHEQUES AND THE BALANCE WAS PAID BY THE ASSESSEE DIRECTLY T O THE PARTNER IN CASH. THE AO, THEREFORE, MADE ADDITION OF RS.1,00,0 00/- BEING EXTRA CONSIDERATION PAID OUTSIDE THE BOOKS OF ACCOUNTS. I T WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT ADDITION IS BASED ON THE SEIZED MATERIAL NOTED ABOVE ON THE STATEMENT OF SHRI SAG N AMBIER, AN EMPLOYEE OF THE DEVELOPER FIRM WHICH HAVE NOT BEEN SUPPLIED TO THE ASSESSEE, THEREFORE, THE ADDITION IS UNJUSTIFIED. THE LEARNED CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ADDITION BECAUSE THE LEARNED COUNSEL FOR THE ASSESS EE STATED BEFORE HIM THAT RS.1,00,000/- WAS PAID FOR EXTRA WORK TO B E DONE IN THE FLAT AND FURTHER THE SEIZED DOCUMENTS PROVED THAT THE AS SESSEE PAID RS.1,00,000/- OUTSIDE THE BOOKS OF ACCOUNTS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH THAT THE ASSESSEE HAD PAID RS.1,00,000/- FOR EXTRA WORK TO BE DONE IN THE FLAT AND THAT THE LEARNED COUNSEL FOR THE ASSESSEE WHO APPEARED B EFORE THE LEARNED CIT(A) HAD FILED A LETTER BEFORE THE LEARNE D CIT(A) DATED 23- 10-2007 (PB-10) OBJECTING TO THE OBSERVATION MADE B Y THE LEARNED CIT(A) THAT THE COUNSEL FOR THE ASSESSEE ARGUED THA T RS.1,00,000/- WAS PAID FOR EXTRA WORK TO BE DONE IN THE FLAT. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE AO WHILE R ECORDING STATEMENT FOR INITIATING PROCEEDINGS U/S 158BD OF T HE IT ACT NOTED IN THE SATISFACTION NOTE THAT THE ASSESSEE EARNED UNDI SCLOSED INCOME OF RS.1,00,000/- ON SALE OF PLOT. COPY OF THE SATISFAC TION NOTE IS FILED AT IT (SS) A NO.167/AHD/2007 DHANESH A. VICHARE VS ACIT, VAPI CIRCLE, VAPI 3 PAGE 13 OF THE PAPER BOOK. HE, THEREFORE, SUBMITTED THAT THERE IS CONTRADICTION IN THE SATISFACTION NOTE AND THE FIND INGS OF THE AO. THEREFORE, ADDITION IS UNJUSTIFIED. HE HAS RELIED U PON THE ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF JAWAHARBHAI ATM ARAM HATHIWALA VS ITO, 128 TTJ 36 IN WHICH IT WAS HELD A S UNDER: CONCLUSION: IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SHOW TH AT THE ASSESSEE HAS IN FACT PAID ON MONEY FOR THE PU RCHASE OF FLAT, ADDITION COULD NOT BE MADE IN THE HANDS OF THE ASSESSEE MERELY ON THE BASIS OF THE STATEMENT OF A PARTNER OF THE VENDOR FIRM OR THE NOTINGS ON A DOCUMENT WHI CH WAS SEIZED FROM THE BUSINESS PREMISES OF THE SAID FIRM. 4. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW ADDITION IS CLEARLY UNJUSTIFIED IN THE MATTER. THE LEARNED COUNSEL FOR THE ASSESSEE RIGHTLY POINTED OUT THAT THE AO IN THE SATISFACTION NOTE NOTED THAT THE ASSESSEE EARNED UNDISCLOSED INCOME O F RS.1,00,000/- ON ACCOUNT OF UNACCOUNTED INCOME ON SALE MADE BY THE ASSESSEE IN THE PLOT. THUS, THERE IS A CLEAR CONTRADICTION IN THE S AME. THE ASSESSEE NEVER ADMITTED PAYMENT OF ANY ON-MONEY TO THE BUILD ER. IT IS THE BUILDER WHO HAS STATED THAT RS.1,00,000/- IS RECEIV ED, BUT NO CORROBORATIVE EVIDENCE HAS BEEN BROUGHT ON RECORD T O SUPPORT THEIR CONTENTION. SINCE NO EVIDENCE OR MATERIAL IS BROUGH T ON RECORD TO PROVE THAT THE ASSESSEE IN FACT PAID ANY ON-MONEY F OR PURCHASE OF THE PLOT, NO ADDITION COULD BE MADE AGAINST THE ASS ESSEE. FURTHER, IT (SS) A NO.167/AHD/2007 DHANESH A. VICHARE VS ACIT, VAPI CIRCLE, VAPI 4 THE LEARNED CIT(A) CONFIRMED THE ADDITION MAINLY ON THE STATEMENT OF LEARNED COUNSEL FOR THE ASSESSEE MADE BEFORE HIM TO WHICH THE LEARNED COUNSEL FOR THE ASSESSEE LATER ON FILED OBJ ECTION PETITION BEFORE THE LEARNED CIT(A) WITHDRAWING FROM HIS STAT EMENT. CONSIDERING THE FACTS OF THE CASE IT IS UNBELIEVABL E THAT THE LEARNED COUNSEL FOR THE ASSESSEE WOULD MAKE SUCH A STATEMEN T BEFORE THE LEARNED CIT(A) THAT THE ASSESSEE PAID RS.1,00,000/- FOR EXTRA WORK TO BE DONE IN THE FLAT OF THE ASSESSEE. MOREOVER, ON T HE BASIS OF STATEMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE W HICH IS CONTRARY TO THE RECORD, NO SUCH ADDITION COULD BE MADE IN TH E BLOCK ASSESSMENT AGAINST THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD AGAINST THE ASSESSEE TO PROVE TH AT THE ASSESSEE IN FACT PAID ANY ON-MONEY FOR PURCHASE OF FLAT, NO ADD ITION COULD BE MADE AGAINST THE ASSESSEE. ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF JAWAHARBHAI ATMARAM HATHIWALA (SUPRA) SQUAR ELY APPLIES TO THE CASE OF THE ASSESSEE. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETED THE ADDITION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A. K. GARODIA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - IT (SS) A NO.167/AHD/2007 DHANESH A. VICHARE VS ACIT, VAPI CIRCLE, VAPI 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD