Shri MVG. Namboothiri, Thiruvalla V. ACIT, Kottayam

ITSSA 168/COCH/2005

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7694 (ITAT-COCHIN)
• Duration Of Justice: 6 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2012
• Assessment Year: misc
• Appeal Filed On: 07-10-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: K R SUDHAKARAN PILLAI
• Keywords: Block assessment
• Section: 263

Judgement Text

1 IT(SS)A NO.168/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T(SS) A NO. 168/COCH/2005 (BLOCK PERIOD 1990-91 TO 1999-2000) MRS. SEETHADEVI THAMPURATTI VS THE A.C.I.T., CIR. 1 L.H OF LATE MVG NAMBOOTHIRI KOTTAYAM VATTAPPARAMBIL HOUSE MADHILBHAGOM, THIRUVALLA PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.R. SUDHAKARAN PILLAI RESPONDENT BY : SMT. VIJAYAPRABHA DATE OF HEARING : 15-02-2012 DATE OF PRONOUNCEMENT : 17-02-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-III, KOCHI AND PERTAINS TO BLOCK PERI OD 1990-91 TO 1999-2000. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION OF RS. 6,20,000. 3. SHRI K.R. SUDHAKARAN PILLAI, THE LD.COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER MADE ADDITION OF RS.6,20,000 IN PURSUANCE TO THE ORDER PASSED BY THE ADMINISTRATIVE COMMISSIONER U/S 263 O F THE INCOME-TAX ACT. 2 IT(SS)A NO.168/COCH/2005 ACCORDING TO THE LD.COUNSEL, THERE WAS A SEARCH IN THE PREMISES OF THE ASSESSEE ON 23-2-1999 AND THE BLOCK ASSESSMENT WAS ORIGINALLY F RAMED ON 28-2-2001 DETERMINING THE UNDISCLOSED INCOME AT RS. 15,72,783 . ACCORDING TO THE LD.REPRESENTATIVE, A STATEMENT WAS RECORDED IN THE COURSE OF SEARCH PROCEEDINGS AND THE ASSESSEE EXPLAINED THAT HE RECEIVED A SUM O F RS.5,70,000 FROM HIS BROTHER, SHRI M.V. VISHNU NAMBOOTHIRI AGAINST PROPO SED SALE OF PROPERTY AS ADVANCE. IN THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSEE HAD ALSO FILED A CASH FLOW STATEMENT. HOWEVER, THE ADVANCE OF RS.5, 70,000 RECEIVED FOR SALE OF PROPERTY FROM SHRI M.V. VISHNU NAMBOOTHIRI DID NOT FIND A PLACE IN THE CASH FLOW STATEMENT. CONSEQUENTLY, NO ADDITION WAS MADE BY T HE ASSESSING OFFICER IN RESPECT OF RS.5,70,000. THE LD.REPRESENTATIVE FURT HER SUBMITTED THAT THE ASSESSEE HAS RECEIVED RS.6,20,000 FROM 4 PERSONS. THE LD.CO UNSEL SUBMITTED THAT THE ASSESSEE HAS FILED CONFIRMATION FROM THE FOUR CREDI TORS. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT JUSTIFIED. RE FERRING TO THE ORDER OF COMMISSIONER OF INCOME-TAX(A), THE LD.REPRESENTATIVE SUBMITTED THAT SINCE THE TRANSACTION WAS BETWEEN THE CLOSE RELATIVES, NO PRO PER DOCUMENT WAS OBTAINED FOR RECEIPT OF MONEY. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE LOWER AUTHORITIES OUGHT NOT HAVE DISBELIEVED THE CASE OF THE ASSESSEE. 4. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT ORIG INALLY THE ASSESSEE CLAIMED THAT MONEY WAS RECEIVED FROM M.V. VISHNU NA MBOOTHIRI AS ADVANCE FOR SALE OF PROPERTY. SUBSEQUENTLY, THE ASSESSEE RETRA CTED AND CLAIMED THAT THE MONEY WAS RECEIVED FROM FOUR CLOSE RELATIVES. ON E XAMINATION, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE WOULD NOT HAVE RECE IVED SUCH MONEY AS CLAIMED. THE CONFIRMATION LETTER SAID TO BE FILED BY THE ASS ESSEE IS STEREOTYPED AND IT HAS NO EVIDENTIARY VALUE. THE ASSESSING OFFICER, AFTER EXAMINING THE FACTS OF THE CASE AND THE CONFIRMATION FILED BY THE ASSESSEE FOUND TH AT NO PERSON WOULD GIVE AN 3 IT(SS)A NO.168/COCH/2005 ADVANCE WITHOUT AN AGREEMENT FOR PURCHASE OF THE PR OPERTY. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE CLAIM OF TH E ASSESSEE THAT HE RECEIVED MONEY FROM FOUR INDIVIDUALS, WHO ARE CLOSE RELATIVE S IS NOT ESTABLISHED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. DURING THE COURSE OF SEARCH O PERATION THE ASSESSEE CLAIMED THAT THE MONEY WAS RECEIVED FROM HIS BROTHER M.V. V ISHNU NAMBOOTHIRI. HOWEVER, IN THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSEE SHIFTED HIS STAND AND CLAIMED THAT THE MONEY WAS RECEIVED FROM FOUR C LOSE RELATIVES. ACCORDING TO THE ASSESSEE, THE ASSESSEE HAS RECEIVED RS.6,20,000 FROM THE FOLLOWING FOUR PERSONS: DEVAKI ANTHARJANAM RS. 1,00,000 DRAUPATI ANTHARJANAM RS. 1,00,000 M.S. KRISHNAN NAMBOOTHIRI RS. 1,70,000 N.E. KESAVAN NAMBOOTHIRI RS. 2,50,000 RS. 6,20,000 THE CLAIM OF THE ASSESSEE IN THE COURSE OF THE ASSE SSMENT PROCEEDINGS, WAS THAT EVEN THOUGH ORIGINALLY IT WAS CLAIMED THAT THE MONE Y WAS RECEIVED AS ADVANCE FOR SALE OF PROPERTY FROM M.V. VISHNU NAMBOOTHIRI, IT W AS ACTUALLY RECEIVED FROM FOUR CLOSE RELATIVES. ON EXAMINATION, THE ASSESSIN G OFFICER FOUND THAT THE FOUR PERSONS WOULD NOT HAVE ADVANCED MONEY AS CLAIMED BY THE ASSESSEE. THE ASSESSING OFFICER EXAMINED THE CONFIRMATION LETTERS ISSUED BY THE ASSESSEE AND HAS ALSO EXAMINED SOME OF THE CREDITORS IN THE COUR SE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER, AFTER EXAMININ G THE MATERIAL ON RECORD, HAS RECORDED THE FINDING AS FOLLOWS: 4 IT(SS)A NO.168/COCH/2005 U/S 132(4) OF THE INCOME-TAX ACT ANY STATEMENT MAD E BY A PERSON DURING SUCH AN EXAMINATION MAY THEREAFTER BE USED AS EVIDENCE IN ANY PROCEEDINGS UNDER THE INCOME-TAX ACT . THE STATEMENT HAS AN EVIDENTIARY VALUE AS IT IS MADE ON THE SPOT BEFORE THE ASSESSEE HAS TIME TO CONCOCT AN EXPLANATION AND FABRICATE EVIDENCES. THE ASSESSEE HAD NOT MADE OUT ANY CASE THAT THE STATEMENT WAS MADE UNDER A MISTAKEN BELIEF OF FACT O R LAW. HE CANNOT MAKE MISTAKES ABOUT NAMES OF PERSONS WHO GAVE HIM THE ADVANCE. IT CANNOT BE SAID THAT NAME WAS PUT IN HI S MOUTH. HE HAS HIMSELF GIVEN THE NAME OF MR. M V VISHNU NAMBOORTH IRI AND NOW HE HAS COME WITH TOTALLY DIFFERENT NAMES. IT IS NO T POSSIBLE THAT HE WOULD HAVE FORGOTTEN THE NAMES OF THE PERSONS WHO G AVE THE ADVANCE AT THE TIME OF SEARCH. HE COULD HAVE AT LE AST MENTIONED THAT THERE WERE OTHER PERSONS. BUT HE MEREL7Y CLAI MED THAT THE ENTIRE AMOUNT WAS GIVEN BY MR M V VISHNU NAMBOOTHIR I. THE STATEMENT MADE DURING SEARCH HAS NOT BEEN BROUGHT A BOUT THROUGH COERCION. HE HAS VOLUNTARILY GIVEN ONLY ONE NAME A ND NOW HAS COME UP WITH THREE OTHER NAMES. THE ASSESSEE CANNO T BE ALLOWED TO RETREAT FROM HIS ORIGINAL STATEMENT BY OFFERING ALTOGETHER DIFFERENT SOURCES SUBSEQUENTLY. THE ORIGINAL SOURC E CANNOT BE PROVED AND THE PRESENT SOURCES ARE ALSO NOT ACCEPTA BLE INASMUCH AS ALL THE PARTIES ARE RELATED TO THE ASSESSEE AND HAVE OBVIOUSLY GIVEN THE STATEMENT ONLY TO HELP THE ASSESSEE. NON E OF THESE PERSONS WERE ALSO GIVEN THE PROPERTY SUBSEQUENTLY F OR WHICH THEY GAVE ADVANCE TO THE ASSESSEE. THEY ARE ALSO NOT VE RY WELL DO SO AS TO GIVE THE ASSESSEE WHO IS A RICH PERSON ADVANCES RANGING FROM 1 LAC TO RS.2.5 LAKH AT A TIME WHEN HE DOES NOT REQUIR E MONEY FOR ANY REASON. NONE OF THE PARTIES HAVE ALSO PROVED CATEG ORICALLY THAT THEY HAVE ADVANCED MONEY TO THE ASSESSEE WITH SUPPO RTING DOCUMENTS APART FROM MAKING A CLAIM THAT THEY HAD SO URCES. SINCE THERE IS MATERIAL DIFFERENCE BETWEEN THE STATEMENT RECORDED UNDER SECTION 132(4) AT THE TIME OF SEARCH AND THE EXPLAN ATION GIVEN SUBSEQUENTLY REGARDING THE SOURCE OF RS.620000/- THE SOURCES NOW CLAIMED IS NOT ACCEPTED. 6. FROM THE ABOVE IT IS OBVIOUS THAT INITIALLY THE ASSESSEE CLAIMED THAT THE MONEY WAS RECEIVED FROM HIS BROTHER, M.V. VISHNU NA MBOOTHIRI AND SUBSEQUENTLY SHIFTED HIS STAND AND CLAIMED THAT THE MONEY WAS RECEIVED FROM 5 IT(SS)A NO.168/COCH/2005 FOUR PERSONS. EVEN THE SHIFTED STAND COULD NOT BE SUBSTANTIATED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE AB SENCE OF ANY EVIDENCE TO SUBSTANTIATE THE CONTENTION OF THE ASSESSEE THAT TH E MONEY WAS RECEIVED FROM FOUR PERSONS, WE DO NOT FIND ANY INFIRMITY IN THE O RDER OF THE LOWER AUTHORITY. ACCORDINGLY THE ORDER OF THE LOWER AUTHORITY IS CON FIRMED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF FEBRUARY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 17 TH FEBRUARY, 2012 PK/- COPY TO: 1. MRS. SEETHADEVI THAMPURATTI, L/H OF LATE MVG NAMBOOT HIRI, VATTAPARAMBIL HOUSE, MADHILBHAGOM, THIRUVALLA 2. THE A.C.I.T., CIR.1, KOTTAYAM 3. THE COMMISSIONER OF INCOME-TAX(A)-III, KOCHI 4. THE C.I.T., KOTTAYAM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH