ACIT, Kottayam V. Shri A. D. Paul General Manager Travancore Cements Kottayam, Thrissur

ITSSA 31/COCH/2007

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8264 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 22-06-2011
• Assessment Year: misc
• Appeal Filed On: 19-06-2007
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATISR
• Assessee Lawyers: T HOMAS CHERIYAN
• Keywords: Search and seizure; Document seized; Assessment record; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.(S&S)A.NO.31/COCH/2007 BLOCK PERIOD ENDING ON 18-07-2000 THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOTTAYAM. VS. SHRI AD PAUL, GEN.MANAGER, TRAVANCORE CEMENTS, ALOOR HOUSE, THAIKKAD P.O. GURUVAYOOR -680104. GIR NO.PX-5207 (APPELLANT) ( RESPONDENT ) & C.O.NO.52/COCH/2007 (ARISING OUT OF I.T.(S&S)A.NO.31/COCH/2007 BLOCK PERIOD ENDING ON 18 - 07 - 2000 SHRI AD PA UL, GEN.MANAGER, TRAVANCORE CEMENTS, ALOOR HOUSE, THAIKKAD P.O. GURUVAYOOR -680104. VS. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOTTAYAM. (APPELLANT) (RESPONDENT) REVENUE BY SHRI S.R.SENAPATI,SR.DR ASSESSEE BY SHRI T HOMAS CHERIYAN O R D E R PER N.VIJAYAKUMARAN,J.M: THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJEC TION PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF ITA NO. /COCH/200 2 THE LD. CIT(APPEALS)-I, KOCHI, DATED 15-03-2007. T HIS IS FOR THE BLOCIK PERIOD ENDING WITH 18-07-2000. 2. THE FACTS RELEVANT ARE THAT THE INVESTIGATION WI NG OF THE INCOME-TAX DEPARTMENT HAS SUBJECTED THE RESIDEN TIAL QUARTERS OF THE ASSESSEE AND HIS OFFICE CABIN AT TR AVANCORE CEMENTS LTD. AT KOTTAYAM FOR SEARCH AND SEIZURE OPE RATIONS U/S.132 OF THE I.T. ACT, ON 18-7-2000. SEVERAL DO CUMENTS WERE SEIZED FROM THE ABOVE PREMISES DURING THE SEAR CH. STATEMENT OF OATH HAS BEEN RECORDED FROM THE ASSESS EE AND HIS WIFE MRS.MERLY PAUL DURING SEARCH OPERATION. T HE DEPARTMENT ALSO MADE POST SEARCH COLLECTION OF DETA ILS AND EVIDENCES. THE ASSESSEE FILED CASH FLOW STATEMENT IN RESPECT OF HIMSELF AND HIS WIFE AS REQUIRED BY THE INVESTIGATION WING FOR EXPLAINING THE VARIOUS INVES TMENTS MADE BY THE ASSESSEE AND HIS FAMILY. IN RESPONSE TO NOTICE U/S.158BC, ASSESSEE FILED THE RETURN OF INCOME IN F ORM 2B ADMITTING THE TOTAL UNDISCLOSED INCOME OF RS.23,875 /- AND PAID THE TAX ON THAT. ON PERUSAL OF THE RECORD, T HE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE IN SUPPORT OF THE RECEIPT OF RS. 4,04,625/- FOR THE SALE OF LAND AND FOR RS.2,38,000/- BY WAY O F AGRICULTURAL INCOME AND SALE OF SOIL. FINALLY, THE LD. ASSESSING OFFICER COMPUTED THE UNDISCLOSED INCOME O F ITA NO. /COCH/200 3 RS.6,42,625/- IN THE RELEVANT ASSESSMENT YEARS 1994 -95, 1995-96, 1998-99, 1999-2000, 2000-01 AND 2001-02 AF TER AFFORDING OPPORTUNITY TO THE ASSESSEE AND THUS COM PLETED THE ASSESSMENT ON A TOTAL UNDISCLOSED INCOME OF RS.6,66,500/- ( RS.6,42,625 + RS.23,875 ADMITTED IN COME). 3. ON APPEAL TO THE LD. CIT(APPEALS) IT WAS CONTEND ED THAT THE ASSESSEE HAS GIVEN DETAILED CASH FLOW STATEMENT OF HIS WIFE AND OF HIS OWN BUT AT NO POINT OF TIME THE ASS ESSING OFFICER DISPUTED THESE TWO ITEMS OR DOUBTED THE GEN UINENESS OF THOSE TRANSACTIONS. WHERE-EVER DOUBTS WERE RAI SED TO SUPPORT THE DOCUMENTS WERE PRODUCED. IN THE MATTE R OF SALE OF LAND OF RS.4,04,625/- PROOF OF THE SAME IS WITH THE ASSESSING OFFICER BUT UNFORTUNATELY THE ASSESSING O FFICER MISSED TO LOOK INTO THIS EVIDENCE. TO MAKE IT CLE AR, THE ASSESSEES SUBMISSION WOULD BE THAT THE SALE AGREEM ENT IS ENTERED INTO BY HIS WIFE WITH ONE SHRI THOMAS CHERI YAN. AT THE COST OF REPETITION IT IS AGAIN REITERATED THAT THESE ARE SEIZED BY THE DEPARTMENT AS CPM A/3, 49, 50,51,52,5 3 AND 54, ETC. THE ASSESSING OFFICER FAILED TO TAKE TH ESE SEIZED DOCUMENTS AND THE SALE AGREEMENT INTO HIS KIND CONSIDERATION. IN OTHER WORDS, THIS HAS BEEN OMIT TED TO CONSIDER. HAD THEY CONSIDERED, THIS ADDITION WOUL D HAVE BEEN AVOIDED. ITA NO. /COCH/200 4 4. THE EXPLANATION OF THE AGRICULTURAL INCOME EARNE D BY THE ASSESSEES WIFE HAS BEEN FILED IN THE CASH FLOW STATEMENT. THESE RECEIPTS HAVE NOT BEEN DISPUTED AT ANY POINT OF TIME BY THE LD. ASSESSING OFFICER NOR ASKE D FOR ANY DETAILS. THE EXPLANATION OF THE ASSESSEE IS THAT THE SOIL HAS BEEN REMOVED FROM THE PROPERTY BELONGED TO HIS WIFE AND IT WAS SOLD, FOR WHICH PHOTOGRAPH PRODUCED BY THE ASSE SSEE BEFORE THE LD. CIT(APPEALS) WILL AMPLY PROVE THE NA TURE OF THE SOIL TAKEN FROM THE EARTH. THIS FACT HAS NOT B EEN DISPUTED. THERE CANNOT BE ANY FURTHER EVIDENCE AND THE LD ASSESSING OFFICER HAS NOT ASKED FOR SO AND IN THE A BSENCE OF SPECIFIC QUERY IN THIS REGARD IT IS NOT EXPECTED FO R THE ASSESSEE TO PROVE THE GENUINENESS ONCE AGAIN. HE NCE, THE LD. CIT(APPEALS) WAS OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENTLY PROVED THE SALE PROCEEDS, WHICH DOCUME NT IS ALREADY EVIDENCED BY THE COPY OF THE AGREEMENT, WHI CH WAS SEIZED FROM THE ASSESSEES PREMISES. THEREFORE, I T IS NOT PERMISSIBLE FOR THE DEPARTMENT TO BLOW HOT AND COLD AT THE SAME TIME AS IT IS NOT DISPUTED THAT THESE WERE THE SEIZED RECORDS IN THE COURSE OF SEARCH AS CPM A-3, 47 TO 5 4 ETC. AND IT WAS KEPT ALONGWITH THE ASSESSMENT RECORDS. THE LD. SR.DR COULD NOT CONTROVERT THESE FACTS. UNDER THE ABOVE FACTS WE AGREE WITH THE FINDINGS OF THE LD. CIT(APP EALS) THAT THE SALE OF PROPERTY AT GURUVAYOOR HAS BEEN AMPLY ITA NO. /COCH/200 5 ESTABLISHED AND THE SALE OF SOIL AND THE AGRICULTUR AL INCOME HAS ALSO BEEN PROVED, AS IT IS NOT DISPUTED THAT TH E ASSESSEES WIFE IS THE OWNER OF THE PROPERTY. UND ER THE ABOVE FACTS, THE EVIDENCE WHICH WERE AVAILABLE BEFO RE THE LD. CIT(APPEALS) IS ONLY THE PHOTOGRAPH AND THE POWER OF THEE LD. CIT(APPEALS) IS CO-TERMINUS WITH THAT OF THE AS SESSING OFFICER, THERE IS NO VIOLATION OF RULE 46A. HENCE , THE DEPARTMENTAL APPEAL DESERVES TO BE DISMISSED AND ACCORDINGLY DISMISSED. 5. TURNING TO THE CROSS OBJECTION, IT IS TIME BARRE D BY 2 DAYS. AFTER CONSIDERING THE RIVAL SUBMISSIONS A ND ON PERUSAL OF THE MATERIAL AND BY RELYING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST KATJI 274 ITR 755- AND THAT REPORTED IN 167 ITR 471 WHEREIN IT HAS BEEN HELD THAT FOR CONDONING THE DELAY PRAGMATIC APPROACH SHOULD BE TA KEN, WE CONDONE THE DELAY OF TWO DAYS. COMING TO THE GROUND OF THE CROSS OBJECTION, IT IS ONLY SUPPORTIV E OF THE FINDINGS OF THE LD. CIT(APPEALS). AS WE HAVE UPHELD THE FINDINGS OF THE LD. CIT(APPEALS), THIS CROSS OB JECTION BECOMES INFRUCTUOUS AND ACCORDINGLY DESERVES TO BE DISMISSED. ITA NO. /COCH/200 6 6. IN THE RESULT, THE DEPARTMENTAL APPEAL AND THE ASSESSEES CROSS OBJECTION ARE DISMISSED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 24 TH JUNE,2011. PM. COPY FORWARDED TO: 1. THE ACIT., CENTRAL CIRCLE, KOTTAYAM. 2. SHRI AD PAUL, GEN.MANAGER, TRAVANCORE CEMENTS, ALOO R HOUSE, THAIKKAD P.O. GURUVAYOOR -680104. 3. CIT(A)-I,KOCHI. 4. CIT, CENTRAL, KOCHI. 5. D.R.