Smt. Devilaben Nagindas Shah, Daman V. The ACIT.,CC-4, Surat

ITSSA 243/AHD/2010

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0915 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-08-2015
• Assessment Year: misc
• Appeal Filed On: 15-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: H V VORA
• Keywords: Income from undisclosed sources

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI G. D. AG RAWAL, VICE PRESIDEN T, AND SHRI S. S. GODAR A, JUDICIAL MEMBER . IT (SS) A. NO. 2 4 3 /AHD/201 0 [B LOCK PERIOD A.Y. 1991 - 92 TO 2000 - 01 (UPTO 7/8/2000)] DEVILABEN NAGINDAS SHAH 163 - 137, DILIP NAGAR, TEEN BATTI, NANI DAMAN, DAMAN. APPELLANT VS. ACIT , C C 4 , ROOM NO.508, 5 TH FLOOR, AAYKAR BHAWAN, MAJURAGATE, SURAT. RESPONDENT PAN: AEUPS4530N / BY ASSESSEE : SHRI H. V. VORA , A.R. / BY REVENUE : SHRI DINESH SINGH , SR . D.R. / DATE OF HEARING : 1 1 .0 8 .2015 / DATE OF PRONOUNCEMENT : 04 . 0 9 .2015 IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 2 ORDER PER S. S. GO DARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR BLOCK PERIOD A.Y. 1991 - 92 TO 2000 - 01 (UPTO 7/8/2000) ARISE S FROM ORDER OF THE CIT(APPEALS) - I I, AHMEDABAD, DATED 04 / 0 2 /201 0 PASSED IN APPEAL N O. CIT(A) - I I/ C C . 4 / 16 7/0 7 - 08 , CONFIRMING UNDISCLOSED INCOME ADDITI ON OF RS. 5 LACS, IN PROCEEDINGS U/S.143(3) R.W.S. 147 R.W.S. 254 OF THE INCOME TAX ACT, 1961, HEREAFTER THE ACT . 2. THIS IS THE SECOND ROUND OF LITIGATION BETWEEN THE PARTIES UP TO THE TRIBUNAL. THE ASSESSEE IS ASSESSED AS AN INDIVIDUAL. THE DEPART MENT CONDUCTED A SEARCH DATED 25.07.2000 IN CASE OF HER HUSBAND SHRI NAGINDAS B SHAH (NOW DEAD). PLACE OF SEARCH HAPPENED TO BE THIS COUPLES MATRIMONIAL HOME. TH E SAME CULMINATED IN A SECTION 158BC NOTICE DATED 6.11.2000. THE ASSESSEE FILED HER RETURN ON 29.03.2001 ADMITTING UNDISCLOSED INCOME OF RS.18,65,823/ - FOR THE IMPUGNED BLOCK PERIOD FROM 1 - 4 - 1990 TO 7 - 8 - 2000. THE ASSESSING OFFICER TOOK UP SCRUTINY. HE INTER ALIA EXAMINED ASSESSEES JEWELLERY QUANTITY, FIXED DEPOSITS, ALL LOOSE SHEETS/DIARY MATE RIAL SEIZED IN THE COURSE OF SEARCH COMPRISING OF VARIOUS AGREEMENTS AND STAMP DETAILS RELATING TO IMMOVABLE PROPERTY TRANSACTIONS; AT LENGTH. THE INSTANT APPEAL RELATES TO AN ADDITION OF RS.5 LACS ONLY IN THE NATURE OF UNDISCLOSED INCOME. THE DEPARTMENT SEIZED A RECEIPT DATED 19.9.1997 (B - 5) PAGE 40 ISSUED BY ASSESSEES HUSBAND FOR HAVING RECEIVED THE IMPUGNED CASH SUM REGARDING LAND PARCEL IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 3 IN QUESTION IN R.S. NO. 269/1, VILLAGE ADAJA N . THE ASSESSEE SOUGHT TO LINK IT TO AN IDENTICAL SUM RECEIVED ON 15 .3.97 RELATING TO THE VERY PROPERTY. THE ASSESSING OFFICER REJECTED THIS EXPLANATION BY HOLDING THAT IT WENT AGAINST HER HUSBANDS CLARIFICATION AND ALSO IN VIEW OF THE FACT THAT SHE HAD HERSELF OWNED THE LAND SOLD AS PER DOCUMENTS ON RECORD. HE ACCORDIN GLY ADDED THE IMPUGNED SUM OF RS.5 LACS IN ASSESSMENT ORDER DATED 22.8.2002. THE ASSESSEE PREFERRED AN APPEAL. THE CIT(A) PREPARED A TABULATION CHART IN HIS ORDER DATED 24.12.2002 COMPRISING OF ASSESSEES EXPLANATION AS WELL AS ASSESSING OFFICERS COMPUT ATION FOR DELETING THE IMPUGNED ADDITION. THE REVENUE CAME TO THE TRIBUNAL. A CO - ORDINATE BENCH IN IT(SS)A NO. 55/AHD/2003 DECIDED ON 22.06.2006 RESTORED THE ISSUE BACK TO THE ASSESSING AUTHORITY AS FOLLOWS: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL S UBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THERE CANNOT BE ANY DISPUTE WITH REGARD TO SEIZED DOCUMENT I.E. OF RECEIPT OF RS.5 LACS ISSUED BY THE HUSBAND OF THE ASSESSEE WHICH WAS BEARING DATE AS 19.9.97. EVEN THOUGH IF IT WAS THE CONTENTION OF A SSESSEE BEFORE AO THAT THIS RECEIPT WAS IN RESPECT OF SAME AMOUNT RECEIVED BY ASSESSEE ON 15.3.97, BUT NO EVIDENCE/MATERIAL WHATSOEVER HAS BEEN PRODUCED ON RECORD TO SHOW THAT THIS CONTENTION WAS CORRECT. ACCORDING TO PROVISIONS OF SECTION 132(4A)(II) THE CONTENTS OF DOCUMENT FOUND AT THE TIME OF SEARCH PRESUMED TO BE TRUE UNLESS OTHERWISE PROVED BY THE ASSESSEE THAT THESE ARE CONTRARY TO THE PARTICULARS MENTIONED THEREIN. PROVISIONS OF SECTION 132(4A) YEA AS UNDER: - 132. [(4A) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH, IT MAY BE PRESUMED (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON ; IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 4 (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE ; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHIC H PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY, OR TO BE IN THE HANDWRITING OF, ANY PARTICULAR PERSON, ARE. IN THAT PERSONS HANDWRITING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTE D OR ATTESTED, THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED.] THUS IF THE DATE IS WRITTEN ON THE RECEIPT AS 19.9.97 AND IT IS THE CASE OF ASSESSEE THAT IT WAS IN LIEU OF PAYMENT R ECEIVED BY HIM/HER ON 15.3.97 THEN ASSESSEE IS UNDER OBLIGATION TO PROVE BY POSITIVE MATERIAL THAT SUCH CONTENTION IS CORRECT. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT SUCH MATERIAL/EVIDENCE HAS BEEN PRODUCED BY ASSESSEE TO PROVE THAT THE RECEIPT ISS UED ON 19.9.97 IN FACT IS FOR THE PAYMENT - RECEIVED ON 15.3.97. THE ORDER OF CIT(A) IS ALSO NOT A SPEAKING ORDER AS TO HOW HE HAS CONCLUDED THAT THE REC EIPT ISSUED BY ASSESSEE ON 19.9. 97 WAS IN FACT IN RESPECT OF PAYMENT RECEIVED BY ASSESSEE ON 15.3.97. HO WEVER, KEEPING IN VIEW THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER TO OFFER THE ASSESSEE AN OTHER OPPORTUNITY TO PROVE THIS CONTENTION AS TRUE. WE DIRECT ACCORDINGLY. THE ASSESSING OFFICER WILL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE IN THIS REGARD AND THEREAFTER WILL RE - ADJUDICATE THE ISSUE AS PER PROVISIONS OF LAW. 3. THE ASSESSING OFFICER TOOK UP CONSEQUENTIAL PROCEEDINGS. HE PROPOSED TO ADD THE VERY SUM OF RS.5 LACS. THE ASSESSEE INTER ALIA SUBMITTED THAT THE RELEVANT SALE TRANSACTION WAS EXECUTED WAY BACK IN THE YEAR 1997, THE RECEIPT ISSUING PERSON/HER HUSBAND WAS NO MORE, HE HAD NOT MADE ANY SUCH NOTING IN HIS DIARY AND DREW SUPPORT FROM EARLIER ORDER OF THE CIT(A). THE ASSESSING OFFICER IN ORDER DATED 31.10.2007 QUOTED HER FAILURE IN ESTABLISHING THE FACT THAT THE IMPUGNED RECEIPT RELATED TO RS.5 LACS RECEIVED ON 15.03.97, DREW A PRESUMPTION IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 5 THAT SUCH RECEIPTS ARE ISSUED IN NORMAL COURSE OF IMMOVABLE PROPERTY TRANSACTIONS, LAPSE OF ALMOST A DECADE WAS NOT MATERIAL AND SHE HERSELF INSTEAD OF HER HUSBAND HAD RECEIVED THE CASH. THE IMPUGNED ADDITION STOOD RESTORED ACCORDINGLY. THE CIT(A) HAS AFFIRMED THE ASSESSING OFFICERS ACTION RELYING UPON SECTION 132(4A)(II) OF THE ACT . 4. THE ASSESSEE STATE S THAT HER DECEASED HUSBAND ISSUED THE RECEIPT AND LATER ON CONFIRMED THAT THE SAME WAS IN RESPECT OF RS.5 LACS RECEIVED ON 15.3.97 AS PER BS - 2, PAGE 26. THE ASSESSING OFFICER DID NOT CROSS EXAMINE HIM. THERE IS ALSO NO EVIDENCE STATED TO THE CONTRARY. HER FURTHER CONTENTION IS THAT THE VENDEE IN QUESTION HAD NOT BEEN EXAMINED SO AS TO THROW SOME LIGHT LINKING CONTENTS OF THE DIARY SEIZED WITH THAT OF THE IMPUGNED RECEIPT. THE PRESUMPTION DRAWN U/S.132(4A) QUA THE SEIZED MATERIAL STATED TO HAVE BEEN REB UTTED ACCORDINGLY. A SSESSEES FINAL ARGUMENT QUOTES LACK OF INDEPENDENT SOURCE PROVING RECEIPT OF RS.5 LACS OVER AND ABOVE THE ACTUAL CONSIDERATION AMOUNT. SHE ACCORDINGLY PRAYS FOR ACCEPTANCE OF HER APPEAL. 5. THE REVENUE STRONGLY SUPPORTS THE ACTION OF THE LOWER AUTHORITIES IN MAKING ADDITION UNDER CHALLENGE OF RS.5 LACS AS ASSESSEES UNDISCLOSED INCOME. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CASE FILE. THE SOLE SUBJECT MATTER OF THE INSTANT APPEAL IS CORRECTNESS OF THE IMPUGNED UNACCO UNTED INCOME ADDITION OF RS.5 LACS IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 6 EMANATING FROM RECEIPT DATED 19.09.97, B - 5, PAGE 40 SEIZED IN THE COURSE OF SEARCH. IT HAS COME ON RECORD THAT ASSESSEES HUSBAND (EXPIRED IN THE YEAR 2006) HAD ISSUED THE SAME. HE MAINTAINED A DIARY BS - 2 CONTAINING ALL EGED UNACCOUNTED RECEIPTS, EXPENSES AND INVESTMENTS. IT EMANATES FROM THE EARLIER ASSESSMENT ORDER DATE 22.08.2002 (SUPRA) THAT THE SAID DIARY REVEALED PAYMENTS OF RS.5 LACS EACH ON 15 TH AND 21 ST MARCH, 1997 AS RELATING TO ASSESSEES LANDS SOLD . THE SAME ALREADY STANDS ASSESSED. THE ASSESSEES HUSBAND HIMSELF WAS NEVER PUT TO CROSS EXAMINATION QUA THIS ISSUE. THE REVENUE FAILS IN PLACING ON RECORD ANY SUCH MATERIAL. THE ASSESSEE S STANDS THROUGH OUT SEEKS TO LINK THE IMPUGNED RECEIPT WITH PAYMENT OF RS . 5 LACS RECEIVED ON 15.3.97. SHE DENIES TO HAVE RECEIVED ANY OTHER PAYMENT. WE OBSERVE IN THIS SET OF PECULIAR FACTS AND CIRCUMSTANCES THAT ONCE HER HUSBAND IS ISSUER OF THE RECEIPT AND THE SAME WAS RECOVERED FROM HIS POSSESSION DURING SEARCH ON 25/7/20 00 , A PRESUMPTION CAN SAFELY WITHDRAWN THAT THIS AMOUNT OF RS.5 LACS WAS NOT RECEIVED . T HAT BEING THE CASE, THE REVENUES PRESUMPTION FAILS TO SATISFY OUR CONCLUSION THAT IF THE RECEIPT WAS MEANT FOR THE VENDEE IN LIEU OF HAVING RECEIVED RS.5 LACS IN QUES TION, IT WOULD NOT HAVE BEEN RECOVERED FROM THE VENDOR NOR REPRESENTATIVE . WE DEEM IT PROPER TO REPEAT THAT ASSESSEES HUSBAND WAS NEVER SUBJECTED TO ANY SUCH QUERY. THE ASSESSEE COULD ONLY LINK THE ABOVE STATED RECEIPT TO PAYMENT ALREADY RECEIVED IN MAR CH ONLY IN THIS SET OF FACTS. WE ACCEPT THIS PLEA AS WELL JUSTIFIABLE. THE PRESUMPTION U/S.132(4A) OF THE ACT IS DEEMED TO HAVE BEEN REBUTTED. THERE IT (SS) A NO. 243 /AHD/201 0 , (DEVILABEN NAGINDAS SHAH VS. ACIT) 7 IS NO OTHER EVIDENCE MUCH LESS A COGENT ONE PROVING THAT THE ASSESSEE HAS RECEIVED THE AMOUNT IN QUESTIO N. THE IMPUGNED ADDITION OF RS. 5 LACS UNDER THE HEAD UNACCOUNTED INCOME IS ACCORDINGLY DELETED. 7. THIS ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 04 TH DAY OF SEPTEMBER , 201 5 . SD/ - SD/ - (G. D. AGRAWAL) (S. S. GODARA) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD: DATED 04 /0 9 /2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO: - 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. BY ORDER / , / ,