Shri Mahesh Alamchandani, Godhra V. The Asstt. Commissioner of Income Tax, Central Circle-1, Baroda

ITSSA 330/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1932 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 23-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H V GUJJAR
• Keywords: Document seized; Documents seized
• Section: 143(3); 153A

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER () . / I.T.(SS)A. NO. 330/AHD/2016 ( ASSESSMENT YEAR : 2012-13) SHRI MAHESH ALAMCHANDANI HARI DAYA SOCIETY, B/H. MARUTI GUEST HOUSE, NR. S.T. STAND, GODHRA / VS. ASST. CIT CENTRAL CIRCLE -1, BARODA ./ ./ PAN/GIR NO. : AFLPA3369N ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : URVASHI SHODHAN, A.R. / RESPONDENT BY : SHRI H. V. GUJJAR, CIT.D.R. !' DATE OF HEARING 26/06/2019 #$%& !' / DATE OF PRONOUNCEMENT 28/06/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-12, AHMEDABAD, (CIT(A) IN SHORT), DATED 01.10.2016 ARISING IN THE ASSESSMENT ORDER DATED 20.02.2015 PA SSED BY THE ASSESSING OFFICER (AO) UNDER S. 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2012-13. IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 2 - 2. AS PER THE GROUNDS OF APPEAL, THE ASSESSEE HAS C HALLENGED THE ADDITION OF RS.14,10,548/- AS UNDISCLOSED INCOME TO THE RETURNED INCOME FILED UNDER S.153A OF THE ACT. 3. BRIEFLY STATED, THE FACTS AS EMERGING FROM THE A SSESSMENT ORDER ARE THAT THERE WAS A SEARCH ACTION UNDER S.132 OF T HE ACT IN DHANJIMAMA GROUP INCLUDING THE ASSESSEE ON 03.07.20 12. AS NOTED BY THE AO IN THE ASSESSMENT ORDER, DIARY B-1/16 CONTAI NING PAGE 1-3 WAS SEIZED FROM THE PREMISES OF ASHA TRANSPORT AT SHERA -BHAGOL ROAD, GODHARA. AS PER THE AO, PAGE 1 OF THE SAID DIARY S HOWS THE PAYMENTS TO VARIOUS PERSONS TOTALING TO RS.2,26,36,400/- WHI LE PAGE NOS. 2 & 3 TOGETHER SHOW THE RECEIPT OF RS.2,42,93,018/-. THE STATEMENT OF SHRI HIRALAL T. ALAMCHANDANI WAS RECORDED IN CONNECTION WITH THIS DIARY WHO STATED THAT SHRI ASHARAM ALAMCHANDANI MAY BE AB LE TO EXPLAIN THE CONTENTS OF THE DIARY. AS FURTHER NOTED BY THE AO, THE ASSESSEE HAD NOT FURNISHED ANY EXPLANATION WITH RESPECT TO T HIS DIARY DURING SEARCH PROCEEDINGS. AS FURTHER NOTED BY THE AO, TH E ASSESSEE SUBMITTED THAT THESE PAGES 1-3 OF B-1/16 ARE THE NO TINGS OF FINANCIAL TRANSACTIONS UNDERTAKEN BY THE ASSESSEE IN THE CAPA CITY OF A BROKER IN RELATION TO SALE/PURCHASE OF PLOTS OF LAND AT REVEN UE SURVEY NO. 93. IT WAS FURTHER EXPLAINED BY THE ASSESSEE BEFORE THE AO THAT THE LAND IN QUESTION REVENUE SURVEY NO. 93 IS OWNED BY ONE SHRI BHAGWANGIRI GOSAI WHO HAD GIVEN A POWER OF ATTORNEY IN FAVOUR O F ONE SHRI MUKESHKUMAR BHASANI, COPY OF WHICH WAS SUBMITTED BY THE ASSESSEE BEFORE THE AO. THE AO ALSO EXAMINED SHRI BHAGWANGI RI GOSAI UNDER S.131 OF THE ACT WHO STATED ON OATH THAT SOME PLOTS IN REVENUE SURVEY NO. 93 HAVE BEEN SOLD BY HIM THROUGH POWER OF ATTOR NEY DURING SEPTEMBER 2011 TO MARCH 2012 FOR A TOTAL CONSIDERAT ION OF ONLY RS.50,24,000/-. SIMILARLY, THE AO HAS ALSO EXAMINE D THE POWER OF ATTORNEY HOLDER SHRI MUKESH BHASANI WHO INCIDENTALL Y ADMITTED THAT HE IS AN EMPLOYEE OF ASSESSEE SHRI MAHESH ALAMCHAND ANI EARNING A IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 3 - MEAGER SALARY OF RS.3,500/-. ADDITIONALLY, SHRI BH ASANI, AS PER HIS TESTIMONY UNDER S.131 OF THE ACT IS NOT AT ALL RELA TED TO SHRI BHAGWANGIRI GOSAI BUT IS RELATED TO THE ASSESSEE AS AN EMPLOYEE, WHICH FACT HAS NOT BEEN CONTESTED BY THE ASSESSEE. SHRI BHASANI ALSO FURTHER ADMITTED UNDER S.131 OF THE ACT THAT HE HIM SELF WAS ONLY A SIGNING AUTHORITY WHILE ALL FINANCIAL TRANSACTIONS WERE DONE BY THE ASSESSEE AND ONE SHRI ASHOKBHAI. AS FURTHER NOTED BY THE AO, SHRI BHASANI ALSO CLEARLY STATED THAT IN ADDITION TO THE CHEQUE AMOUNTS MENTIONED IN THE SALE DEEDS, CASH PAYMENTS WERE ALS O MADE TO THE OWNER OF THE LAND. THE AO HAS ALSO NOTED THAT AS A GAINST THE DOCUMENTED SALE VALUE AS EVIDENCED BY THE SALE DEED OF RS. 68,96,950/-, THE JANTRI VALUE OF 52 PLOTS I.E. THE UNDERLYING TRANSACTED PROPERTY COMES TO RS.2,36,48,021/-. BASED ON THESE FACTS AND AFTER CALLING FOR THE EXPLANATION OF THE ASSESSEE ON THE SEIZED DOCUMENTS, THE AO CAME TO THE CONCLUSION THAT THOUGH THE ASSES SEE HAS CLAIMED TO HAVE BEEN INVOLVED IN TRANSACTIONS OF ONLY BROKERAG E WITH REGARD TO 52 PLOTS IN LAND REVENUE SURVEY NO. 93, HE IN FACT HAS BEEN INVOLVED IN THE TRANSACTION NOT SIMPLY AS COMMISSION AGENT/ BRO KER BUT AS A DEVELOPER. THE AO PRIMARILY BASED THIS CONCLUSION ON THE TESTIMONY OF SHRI MUKESH BHASANI APART FROM RELYING ON THE SE IZED DOCUMENTS. THE ASSESSEE SUBMITTED BEFORE THE AO THAT ON A TOTA L RECEIPT OF RS.2,42,93,018/- AS RECORDED IN THE SEIZED DOCUMENT , THE ASSESSEE HIMSELF HAS EARNED BROKERAGE AT 1% WHICH COMES TO O NLY RS.2,40,070/- WHICH HAS BEEN DISCLOSED IN THE RETURN OF INCOME. WITH REGARD TO DIFFERENCE OF RS.16,56,618/- BETWEEN TOTAL RECEIPTS AND PAYMENTS AS RECORDED IN THE SEIZED DOCUMENTS, THE ASSESSEE ONLY SUBMITTED THAT THE NOTINGS OF PAGE NOS. 1 TO 3 OF THE SEIZED DOCUMENTS IS NOT THE COMPLETE AND FINAL PICTURE OF THE TRANSACTIONS WITH REGARD T O PLOTS IN SURVEY NO. 93. IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE T HE AO THAT THE ASSESSEE HAS ACTED ONLY AS BROKER AND THUS IT IS TO BE PRESUMED THAT SURPLUS AS PER SEIZED DOCUMENTS MUST HAVE BEEN PAID BY THE ASSESSEE IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 4 - TO THE LAND OWNER. THE AO HOWEVER DID NOT FIND ANY MERIT IN THE PLEA OF THE ASSESSEE AND HELD THAT THE SURPLUS OF RS.16, 56,618/- AS RECORDED IN THE SEIZED DOCUMENTS IS THE NET INCOME OF THE AS SESSEE THROUGH THE TRANSACTIONS IN PLOTS OF SURVEY NO. 93. AFTER GIV ING CREDIT FOR BROKERAGE INCOME OF RS.2,40,070/- ALREADY SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME, THE AO HAS BROUGHT A FURTHER AMOUNT OF RS.14,10,548/- TO THE TOTAL INCOME OF THE ASSESSEE AS RETURNED UNDER S.153A OF THE ACT. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 4.1 THE ASSESSEE REITERATED BEFORE THE CIT(A) THAT HE ONLY ACTED AS A BROKER WITHOUT PURCHASING THE LAND AND THUS THE SUR PLUS AS PER THE SEIZED DOCUMENT CANNOT BE RECORDED AS INCOME OF THE ASSESSEE AND SUCH SURPLUS SHOULD BE RECORDED AS LIABILITY OF THE ASSESSEE TOWARDS LAND OWNER. THE ASSESSEE ALSO CONTENDED THAT IT IS ALSO EQUALLY LIKELY THAT SOME RECEIPTS ARE NOT ACTUALLY RECEIVED ON THE DATE OF NOTING AND SIMILARLY PAYMENTS MADE AFTER NOTING MAY ALSO NOT F IND MENTION IN THE NOTINGS. THE ASSESSEE FURTHER SUBMITTED THAT THE I NCOME TOWARDS BROKERAGE DECLARED BY THE ASSESSEE IS QUITE FAIR AN D IS IN TUNE WITH THE STANDARD PRACTICES AND THEREFORE NO ADDITION WAS WA RRANTED BY THE AO IN THE GIVEN SET OF FACTS AND CIRCUMSTANCES. 4.2 THE CIT(A) HOWEVER DID NOT FIND ANY FORCE IN TH E PLEA OF THE ASSESSEE AND CONSEQUENTLY DECLINED TO INTERFERE WIT H THE ORDER OF THE AO. THE RELEVANT OPERATIVE PARA OF THE ORDER OF TH E CIT(A) IS REPRODUCED HEREUNDER: 4. I HAVE GIVEN VERY CAREFUL CONSIDERATION TO THE FACTS ON RECORD AND THE RIVAL CONTENTIONS AVAILABLE BEFORE ME. I HA VE FIRSTLY NOTED THAT THE SEIZED DOCUMENTS PAGE 1 TO 3 HAVE RECORDED THE TRANSACTIONS FOR THE VERY SHORT PERIOD OF 18/8/2011 TO 6/9/2011. IT IS ALSO CLEAR AND UNDISPUTED THAT AS PER THE SEIZED-PAGES RECEIPT IS HIGHER THAN IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 5 - THE PAYMENTS, AS RECORDED, BY AN AMOUNT OF RS. 16,5 6,618/-. I HAVE ALSO NOTED THAT THOUGH THE APPELLANT HAS MADE GENER AL SUBMISSIONS AS TO THE NATURE OF TRANSACTIONS RECORDED ON THE SE IZED DOCUMENTS, AS TO THE ROLE OF THE APPELLANT IN HIS ALLEGED CAPACIT Y AS A BROKER AND ALSO THAT 'ON THE SEIZED DOCUMENTS NOWHERE IT IS ME NTIONED THAT THIS IS A COMPLETE RECORD OF TRANSACTION', THERE IS NOT A SINGLE PIECE OF DOCUMENTARY OR OTHER EVIDENCES SUBMITTED BY THE APPELLANT BEFORE THE AO OR BEFORE ME TO SUBSTANTIATE ANY OF THE AVER MENTS MADE. AS SUCH, THE APPELLANT HAS CONSPICUOUSLY ABSTAINED. FR OM CATEGORICALLY OUTLINING AND EVIDENCING HIS ALLEGED ROLE AS A BROK ER IN THE DEAL IN PLOTS ON REVENUE SURVEY NO.93. EVEN IN THE FACE OF WEIGHTY EVIDENCE OF SEIZED DOCUMENTS FOUND AND SEIZED FROM HIS OWN P REMISES. THERE IS NO COMPREHENSIVE AND DOCUMENTARILY SUPPORTED EXP LANATION FURNISHED BY THE APPELLANT WITH REGARD TO THE SEIZE D DOCUMENT, SHOWING SURPLUS OF RS,16,56,618/- REMAINING WITH, A ND THEREFORE ENJOYED BY, THE APPELLANT. THERE IS NO EVIDENCE ON RECORD EVEN TO SUBSTANTIATE THE APPELLANT'S CLAIM OF BROKERAGE INC OME SHOWN BY HIM AT RS.2,42,930/-. WHILE IT IS ARGUABLE ON THE PART OF THE APPELLANT THAT THE 'SURPLUS' AS PER THE SEIZED DOCUMENT 'MUST HAVE BEEN PAID TO THE OWNERS OF THE LAND', IN THE FACE OF THE DOCU MENT HAVING BEEN SEIZED FROM HIS PREMISES AND IN THE FACE OF PRESUMP TION OF SECTION 292C, IT WAS INCUMBENT UPON THE APPELLANT TO HAVE S UBSTANTIATED SUCH BALD ARGUMENT WITH SOME COGENT EVIDENCE. IN MY CONSIDERED OPINION, THE WHOLLY UNSUBSTANTIATED STORY PUT UP BY THE APPELLANT TO EXPLAIN AND ARGUE THE NON-INCOME NATURE OF THE 'SUR PLUS', EVIDENCED BY THE SEIZED DOCUMENTS TO HAVE BEEN RETAINED AND E NJOYED BY THE APPELLANT, HAS RIGHTLY BEEN DISBELIEVED BY THE LD. AO. AS SUCH, EVEN WITHOUT THE ADVERSE TESTIMONY OF THE APPELLANT'S OW N EMPLOYEE SHRI MUKESH BHASANI, THE STORY AS PUT UP BY THE APPELLAN T DESERVED TO BE REJECTED AS UNSUBSTANTIATED BEING AGAINST THE SEIZE D DOCUMENT. HOWEVER, THE TESTIMONY OF SHRI MUKESH BHASANI ADDIT IONALLY SUPPORTS THE AO'S CONCLUSION THAT THE ROLE OF THE APPELLANT IN THE TRANSACTION IN PLOTS IN SURVEY NO.93 IS MORE THAN THAT OF A BRO KER. EVEN IF THE ROLE WAS MERELY THAT OF A BROKER, IT IS UNBELIEVABL E THAT IF AT ALL SOME FURTHER AMOUNTS BEYOND WHAT HAS BEEN RECORDED IN TH E SEIZED PAPER WAS PAYABLE TO THE LAND OWNERS, THE SAME WOULD NOT HAVE BEEN RECORDED IN THE VERY SAME PAPERS, IF AT ALL SUCH AM OUNTS WERE PAYABLE AND IN FACT PAID. THE SEIZED DOCUMENT HAS T O BE READ AS A WHOLE AND INFERENCES NATURALLY DRAWABLE THEREFROM H AVE TO BE DRAWN. IT IS FOR THE PARTY, EITHER THE AO OR THE AP PELLANT, WHOSOEVER WANTS THE SAME TO BE READ DIFFERENTLY, TO SUBSTANTI ATE WITH COGENT EVIDENCES WHY AND TO WHAT EXTENT THE PLAIN RECORDIN G ON THE SEIZED DOCUMENT IS TO BE READ DIFFERENTLY. THE APPARENT SU RPLUS 'INCOME' OF RS.16,56,618/- AS PER THE SEIZED DOCUMENT IS CLAIME D BY THE APPELLANT TO BE LESSER ON THE GROUND OF THE AMOUNTS HAVING BEEN PAYABLE AND PAID. HOWEVER, THERE IS ABSOLUTELY NO E VIDENCE TO SUPPORT SUCH CONDITIONAL AND DIFFERENT READING OF T HE SEIZED DOCUMENT FILED BY THE APPELLANT ESTABLISHING THE FA CT THAT PAYMENTS OF A, B AND C AMOUNTS WERE MADE TO D, E AND F PERSONS. MOREOVER, THE BIG ONE-YEAR TIME LAG BETWEEN THE RECORDING OF 'APP ARENTLY IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 6 - CONCLUDED TRANSACTIONS' (AUGUST 2011) AS RECORDED O N SEIZED DOCUMENT AND THE DATE OF SEIZURE OF DOCUMENTS (JULY 2012) WOULD INDICATE THAT TRANSACTIONS GOT FULLY CONCLUDED IN AUGUST 2011 ITSELF LEAVING A REAL SURPLUS OF RS.16,56,618/- WITH THE A PPELLANT AS RECORDED. THE SUBMISSION OF THE AR THAT 'SURPLUS MU ST HAVE BEEN PAID TO THE LAND OWNERS' IS THEREFORE NOT ONLY UNSU BSTANTIATED, IT IS ALSO FAR-FETCHED AND IS ALSO AGAINST THE EVIDENCE O N RECORD IN THE FORM OF SEIZED DOCUMENTS. IN VIEW OF THIS, I FULLY AGREE WITH THE LD. AO IN READING THE SEIZED DOCUMENT AS IT IS WHICH UN DOUBTEDLY SHOWS A SURPLUS OF RS.16,56,618/- HAVING BEEN RETAINED AN D ENJOYED BY THE APPELLANT. IN VIEW OF THIS, I HAVE NO REASON TO INT ERFERE WITH THE ADDITION MADE BY THE LD. AO. THUS, THE ADDITION OF RS. 14,10,548/- IS UPHELD. RELATED GROUNDS ARE REJECTED . 5. FURTHER AGGRIEVED BY THE DENIAL OF RELIEF BY CIT (A), THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL ASSAILING THE ORDER OF THE CIT(A). 5.1 THE LEARNED AR FOR THE ASSESSEE REITERATED THE FACTS AS NOTED IN PARA NO. 3 AND CONTENDED THAT THE DIFFERENTIAL AMOU NT OF RS.14,10,548/- CANNOT BE TREATED AS UNDISCLOSED INC OME IN THE HANDS OF THE BROKER ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5.2 THE LEARNED DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND MATERIAL RE FERRED TO AND RELIED UPON IN COURSE OF HEARING. WE NOTICE FROM THE ORDE R OF THE CIT(A) THAT NO DOCUMENTARY EVIDENCES WERE SUBMITTED TO SUB STANTIATE THE NARRATIVE PROPOUNDED BY THE ASSESSEE. THE CIT(A) A LSO HAS RECORDED THE FINDING OF THE FACT TOWARDS LACK OF EVIDENCE FO R ALLEGED ROLE AS A BROKER IN THE DEAL IN PLOTS. THE BROKERAGE INCOME OF RS.2,42,930/- IN ITSELF WAS NOT FOUND TO BE SUPPORTABLE BY THE CIT(A ). THE CIT(A) HAS REJECTED THE PLEA OF THE ASSESSEE THAT SURPLUS AS P ER SEIZED DOCUMENTS MUST HAVE BEEN PAID TO THE OWNER OF THE LAND OR SHO ULD BE READ AS LIABILITY IN THE ALTERNATIVE. THE CIT(A) HAS TAKEN NOTE OF SECTION IT(SS)A NO. 330/AHD/16 [SHRI MAHESH ALAMCHANDANI VS. ACIT] A.Y. 2012-13 - 7 - 292C OF THE ACT AND ANALYZED ALL THE RELEVANT FACTS AND FOUND NO SUBSTANCE IN THE EXPLANATION RENDERED BY THE ASSESS EE TOWARDS SURPLUS OF RS.16,56,618/- REVEALED IN THE SEIZED DOCUMENT F ROM THE PREMISES OF THE ASSESSEE. WE FIND NO FLAW IN THE PROCESS OF REASONING ADOPTED BY THE CIT(A) WHILE COMING TO THE CONCLUSION ADVERS E TO THE ASSESSEE. EVEN BEFORE US, THE ASSESSEE COULD NOT GIVE ANY SAT ISFACTORY EXPLANATION TOWARDS WHEREABOUTS OF EXCESS RECEIPT O VER PAYMENTS RECORDED IN THE SEIZED DOCUMENTS. WE THUS FIND NO MERIT IN THE APPEAL OF THE ASSESSEE AND CONSEQUENTLY DECLINE TO INTERFE RE WITH THE ORDER OF THE CIT(A) WITHOUT REPEATING THE CONTENTS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. SD/- SD/- (RAJPAL YADAV) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 28/06/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 28/06/20 19