Shri Iqbal Ahmed Husainbhai, Surat V. The ACIT.,Cent.Circle-4, Surat

ITSSA 200/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1860 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Assessee Lawyers: P M MEHAT WITH GULAB THAKOR
• Keywords: Loose papers

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) IT(SS)A. NOS: 199 & 200/AHD/2012 (ASSESSMENT YEAR: 2007-08 & 2008-09) SHRI IQBAL AHMAD HUSAINBHAI 12/559, OPP. UNION SCHOOL, RANITALAO, SURAT V/S ACIT, CENTRAL CIRCLE-4, SURAT (APPELLANT) (RESPONDENT) PAN: ACEPB 9765D APPELLANT BY: SHRI P.M. MEHAT WITH GULAB THAKOR, AR RESPONDENT BY : SMT. VIBHA BHALLA, CIT/ D.R. ( )/ ORDER DATE OF HEARING : 04 -04-201 6 DATE OF PRONOUNCEMENT : 05 -04-2016 PER BENCH: 1. THESE APPEALS BY THE ASSESSEE ARE PREFERRED AGAINST A COMMON ORDER OF THE LD. CIT(A)-II, SURAT DATED 10.01.2012 PERTAI NING TO A.Y. 2007- 08 & 2008-09. IT(SS)A NOS. 199 & 200/AHD/2012 . A.YS. 2007-0 8 & 2008-09 2 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISP OSED OF BY THIS COMMON ORDER BECAUSE FACTS IN ISSUES IN A.Y. 2007-0 8 STRETCH TO A.Y. 2008-09. 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THE IMPUGNED APPEALS IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITIONS MADE B Y THE A.O, RS. 2,35,000/- IN A.Y. 2007-08 AND RS. 3,70,000/- IN A. Y. 2008-09. 4. THE DISPUTE ARISES BECAUS OF SEARCH OPERATIONS CAR RIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE TAHA GROUP OF CASES. 5. DURING THE COURSE OF THE SURVEY/SEARCH PROCEEDINGS, LOOSE PAPERS FILES WERE FOUND SEIZED BY THE REVENUE. THE LOOSE PAPER F ILE WAS RELATED TO THE LAND TRANSACTION CARRIED OUT BY THE ASSESSEE AN D THE BROKERAGE EARNED ON IT FROM VARIOUS PERSONS AND GROUPS. WHEN THE ASSESSEE WAS CONFRONTED WITH THESE SEIZED MATERIAL, THE ASSESSEE EXPLAINED THAT HE IS ACTING AS A BROKER FOR THE SALE OF FLATS/PLOTS A ND IN LIEU OF HIS SERVICES, HE GETS RS. 2 TO 3 THOUSANDS AND SOMETIME S RS. 5,000/- AT THE TIME OF REGISTRATION OF FLATS/PLOTS. WHEN ASKED TO SHOW WHETHER HE HAS RETURNED THE BROKERAGE INCOME EARNED FROM THE S ALE OF IMPUGNED PLOTS/FLATS, THE ASSESSEE CATEGORICALLY STATED THAT HE IS MAINTAINING BOOKS ON CASH SYSTEM OF ACCOUNTING AND SINCE NO BRO KERAGE HAS BEEN RECEIVED, NO INCOME HAS BEEN SHOWN. IT WAS FURTHE R STATED THAT THE INCOME WILL BE SHOWN IN THE YEAR OF RECEIPT. 6. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND ON PERUSING THE DETAILS FILED BY THE ASSESSEE, THE A.O. FOUND THAT M/S. SFS & ASSOCIATES HAS CLAIMED TO HAVE PAID RS. 2,20,000/- AS BROKERAGE TO THE ASSESSEE IN RESPECT OF LAND TRANSACTIONS. THE A .O FURTHER FOUND IT(SS)A NOS. 199 & 200/AHD/2012 . A.YS. 2007-0 8 & 2008-09 3 THAT M/S. SFS & ASSOCIATES HAVE MADE A CATEGORICAL STATEMENT THAT THE BROKERAGE HAS BEEN PAID IN CASH. THIS PAYMENT PERTA INS TO A.Y. 2008- 09. THE A.O MADE THE ADDITION IN A.Y. 2008-09. 7. IN SO FAR AS THE TRANSACTION OF SALE OF PLOTS IN RO YAL RESIDENCY IS CONCERNED, THE A.O FOUND THAT THE ASSESSEE HAS SOLD 47 PLOTS IN A.Y. 2007-08 AND 30 PLOTS IN A.Y. 2008-09. TAKING THE B ROKERAGE @ 5,000/- PER REGISTRATION, THE A.O COMPUTED THE BROK ERAGE FOR A.Y. 2007-08 AT RS. 2,35,000/- AND FOR A.Y. 2008-09 AT R S. 1,50,000/-. THUS, THE ADDITIONS MADE BY THE A.O WERE RS. 2,35,0 00/- IN A.Y. 2007-08 AND RS. 1,50,000/- + RS. 2,20,000/- IN A.Y. 2008-09. 8. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 9. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REITERA TED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. TO SUBSTANTIAT E THE CLAIM, THE LD. COUNSEL HAS FILED A CERTIFICATE FROM SHRI MOHD. VAS I IN WHICH IT IS STATED THAT MOHD. VASI HAS NOT PAID ANY BROKERAGE TO THE A SSESSEE IN RESPECT OF PURCHASE AND SALE OF PLOTS. 10. AT THE VERY OUTSET, THIS CERTIFICATE CANNOT BE ACCE PTED FOR THE REASON THAT IT IS DATED 10.01.2012. BOTH THE ASSESS MENT ORDERS ARE DATED 31.12.2010 WHICH MEANS THAT THIS CERTIFICATE WAS NOT IN EXISTENCE AT THE TIME OF ASSESSMENT. THE ORDER OF T HE FIRST APPELLATE AUTHORITY IS DATED 10.01.2012 WHICH IS ALSO THE DAT E OF THE CERTIFICATE. HOWEVER, WE FIND THAT THE ASSESSEE HAS MADE A WRITT EN SUBMISSION BEFORE THE FIRST APPELLATE AUTHORITY WHICH IS DATED 05.10.2011 AND WHICH IS EXHIBITED AT PAGES 17 TO 23 OF THE PAPER B OOK. THUS, THIS CERTIFICATE COULD NOT HAVE BEEN PART OF THE WRITTEN SUBMISSIONS ALSO. IT(SS)A NOS. 199 & 200/AHD/2012 . A.YS. 2007-0 8 & 2008-09 4 THE LD. COUNSEL HAS NEITHER REFERRED TO THIS CERTIF ICATE TO BE AN ADDITIONAL PIECE OF EVIDENCE NOR HE HAS MADE OUT AN Y REQUEST FOR ITS ADMISSION. THIS CERTIFICATE IS TREATED AS NON EST. 11. COMING TO THE EVIDENCES ON RECORD, THE ASSESSEE H AS NOWHERE DENIED THE CLAIM OF PAYMENT OF RS. 2,20,000/- BY M/ S. SFS & ASSOCIATES. ON THE CONTRARY, THE A.O HAS GIVEN A CA TEGORICAL FINDING THAT M/S. SFS & ASSOCIATES HAVE MADE THE PAYMENT OF BROKERAGE TO THE ASSESSEE IN CASH. IF THE CLAIM OF THE ASSESSEE IS THAT HE IS MAINTAINING BOOKS ON CASH SYSTEM OF ACCOUNTING THEN BROKERAGE OF RS. 2,20,000/- SHOULD HAVE BEEN SHOWN AS INCOME IN A.Y. 2008-09. SINCE THE ASSESSEE HAS FAILED TO DISCLOSE THIS AMOUNT THE ADDITION OF RS. 2,20,000/- IS SUSTAINED. 12. IN SO FAR AS THE BROKERAGE ON SALE OF 47 PLOTS IN A .Y. 2007-08 AND 30 PLOTS IN A.Y. 2008-09 ARE CONCERNED, THE TRA NSACTIONS PERTAIN TO A.Y. 2007-08 & 2008-09. WE ARE IN A.Y. 2016-17 E VEN TILL DATE BEFORE US, THE LD. COUNSEL COULD NOT BRING ANY EVID ENCE WHICH COULD SHOW THAT THE ASSESSEE HAS RECEIVED THE BROKERAGE I N SUBSEQUENT YEARS AND SHOWN THEM AS HIS INCOME. THERE IS NO DIS PUTE IN SO FAR AS THE COMPUTATION OF BROKERAGE IS CONCERNED AS NO DOC UMENTARY EVIDENCES HAVE BEEN BROUGHT ON RECORD TO SHOW THAT THE INCOME HAS BEEN SHOWN IN SUBSEQUENT YEARS, WE DECLINE TO INTER FERE WITH THE FINDINGS OF THE LOWER AUTHORITIES. IT(SS)A NOS. 199 & 200/AHD/2012 . A.YS. 2007-0 8 & 2008-09 5 13. IN THE RESULT, BOTH THE APPEALS BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 05- 04 - 20 16. SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD