Ishan Associates, Pune V. Deputy Commissioner of Income-tax, Central Circle-2 (4), Pune

ITSSA 19/PUN/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3532 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 14-06-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 26-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK S SASAR
• Keywords: Sale consideration of property below Jantri Value; Document seized; Retraction; Documents seized
• Section: 143(3); 13; 153C

Judgement Text

आयकर अपीऱीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JM AND SHRI DR. DIPAK P. RIPOTE, AM आयकर अपीऱ सं. / IT (SS)A No.17 to 19/PUN/2019 ननधधारण वषा / Assessment Year : 2012-13 to 2013-14 & 2016-17 Ishan Associates, 401, Karan Vitoria, Cafe Goodluck Lane, Deccan Gymkhana, Shivaji Nagar, Pune – 411 004 PAN : AACF19688J .......अपऩलधथी / Appellant बनधम / V/s. DCIT, Cen. Cir. 2(4), Pune ......प्रत्यथी / Respondent Assessee by : Shri Deepak S Sasar Revenue by : Shri Navin Gupta सपनवधई की तधरऩख / Date of Hearing : 15.06.2022 घोषणध की तधरऩख / Date of Pronouncement : 15.07.2022 आदेश / ORDER PER S. S. GODARA, JM : 1. These assessee’s three appeals IT SS Nos. 17 to 19/PUN/2019 for Assessment Years 2012-13 to 2013-14 and A.Y. 2016-17 arise from the CIT(A) Pune’s separate orders; all dated 24.01.2019, passed in case nos. 2 IT (SS)A No.17 to 19/PUN/2019, A. Y. : 2012-13 to 2013-14 & 2016-17 Ishan Associates, ITBA/APL/S/250/2018-19/1014864624(1),1014864748(1),&1014706259(1), respectively, in proceedings u/s. 153C r.w.s. 143(3) of the Income Tax Act, 1961; in short “the Act”. Heard both the parties. Case files perused. 2. The assessee’s first and foremost ground/ additional ground challenges validity of the impugned section 153C proceedings itself in these three cases. Suffice to say, the department had carried out the search in question dated 28.03.2016 in M/s. Anshul group of cases. The Assessing Officer; who assessed both this assessee as well as the above stated searched person, recorded his section 153C satisfaction that the loose sheet / page no.12 in bundle no.1 had indicated on-money payments and receipts in assessee’s case which pertained to its project namely “Estrela” and further fortified by Shri Karan Taware on its behalf and therefore, the same had a bearing on determination of its total income. This followed the impugned section 153C assessment wherein not only the assessee was found to have not retracted to the search statement but also the Assessing Officer took note of various revenue receipts indicating on-money payments (page 4 in assessment order(s) dated 29.12.2017). All these clinching aspects have gone un- rebutted from assessee side before us during the course of hearing. 3 IT (SS)A No.17 to 19/PUN/2019, A. Y. : 2012-13 to 2013-14 & 2016-17 Ishan Associates, 3. Faced with this situation we quote section 292C of the Act presuming correctness of such seized documents contents as well as the assessee’s non- retraction in light of (2014)362 ITR 13 (AP) Kermex Micro Systems (India) Ltd. Vs. DCIT to hold that the learned lower authorities have rightly initiated section 153C proceedings against the assessee after recording the respective satisfaction(s) in all these assessment years. The assessee’s corresponding main as well as additional substantive grounds to this effect stand rejected accordingly. 4. The assessee’s first substantive grievance on merits challenges correctness of both the lower authorities action making unexplained payment addition of Rs. 17,00,000/- and Rs. 2,50,000/- in assessment years 2012-13 and 2013-14’ grounds. It has already come on record that the impugned addition is not only based on the contents of seized documents but also duly signed revenue receipts as well as the assessee’s search statement(s) at page 99 Q no.16 in the case records. We uphold the impugned addition therefore in light of our preceding detailed discussion. 5. Same order to follow in assessee’s next substantive grievance seeking to delete on-money payments and addition(s) of Rs.3,00,000/- and Rs.2,09,400/- in assessment years 2012-13 and 2013-14 based on the very kind of evidence as discussed in preceding paras. Rejected accordingly. 4 IT (SS)A No.17 to 19/PUN/2019, A. Y. : 2012-13 to 2013-14 & 2016-17 Ishan Associates, 6. The assessee’s last substantive ground in these former assessment years claims telescoping benefiting against double addition which had neither been claimed nor adjudicated in the lower proceedings. We therefore restore the same back to the Assessing Officer for his afresh consideration as per law with a rider that the entire onus shall be on the assessee only to file all the necessary details to this effect in consequential proceedings. These former twin appeals IT SS Nos. 17 and 18/PUN/2019 raising these three substantive issue are partly allowed for statistical purposes to this limited aspect. 7. We are now left with Section 43CA(1) addition of Rs.5,96,886/- made in assessee’s case in last A.Y. 2016-17 on account of the alleged difference between actual sale price and stamp value of its twin flats which has been made without making the statutory reference to the DVO. We deem it appropriate to observe that section 43CA(2) adopts section 50C(2) provisions wherein such a reference has been held to be mandatory in (2015) 372 ITR 83 (Cal) CIT V/s. Sunil Kumar Agarwal. We thus restore the assessee’s instant last substantive grievance back to the Assessing Officer for his afresh adjudication as per law within three effective opportunities. This last appeal ITA No. 19/PUN/2019 is also partly accepted for statistical purposes in very terms. No other ground or argument has been pressed before us. 5 IT (SS)A No.17 to 19/PUN/2019, A. Y. : 2012-13 to 2013-14 & 2016-17 Ishan Associates, 8 These assessee’s three appeals are partly accepted for statistical purposes in above terms. A copy of this common order be placed in the respective case files. Order pronounced in the Open Court on this 15 th day of July, 2022. Sd/- Sd/- (DR.DIPAK P.RIPOTE) (S.S. GODARA) लेखध सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य/JUDICIAL MEMBER पपणे / Pune; ददनधांक / Dated : 15 th July, 2022. Ashwini आदेश की प्रनतनलनप अग्रेनषत / Copy of the Order forwarded to : 1. अपऩलधथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A), Pune. 4. The Pr.CIT, concerned. 5. नवभधगऩय प्रनतनननध, आयकर अपऩलऩय अनधकरण, “ए” बेंच, पपणे / DR, ITAT, “A” Bench, Pune. 6. गधर्ा फ़धइल / Guard File. आदेशधनपसधर / BY ORDER, // True Copy // Senior Private Secretary आयकर अपऩलऩय अनधकरण, पपणे / ITAT, Pune. 6 IT (SS)A No.17 to 19/PUN/2019, A. Y. : 2012-13 to 2013-14 & 2016-17 Ishan Associates, S.No. Details Date Initials 1 Draft dictated on 15.06.2022 2 Draft placed before author 04.07.2022 3 Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order