SHRI RAKESH GUPTA, Bhopal V. THE ACIT 1(2), Bhopal

ITSSA 50/IND/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2249 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Opportunity of cross examination
• Section: 153A; 132; 139

Judgement Text

RAKESH GUPTA IT(SS) A NO. 50/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM IT(SS)A NO. 50/IND/2015 A.Y.2010-11 RAKESH GUPTA BHOPAL PAN AAXPG 9477C ::: APPELLANT VS ACIT 1(2)( BHOPAL ::: RESPONDENT APPELLANT BY SHRI ANIL KHABYA RESPONDENT BY SHRI RAJIV VARSHNEY DATE OF HEARING 26 .8.2016 DATE OF PRONOUNCEMENT 26 .8.2016 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 6.2.2015 . 2. THE ONLY ISSUE INVOLVED IN THIS CASE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN MAINTAINING THE ADDITION OF RAKESH GUPTA IT(SS) A NO. 50/IND/2015 2 RS.2,33,696/- TOWARDS UNEXPLAINED INVESTMENT IN PURCHASE OF LAND. 3. WE HAVE HEARD BOTH THE SIDES. WE HAVE DECIDED AN IDENTICAL ISSUE IN THE CASE OF M/S ARK TRANSFORMERS P VT. LTD. IN ITA NO. 46/IND/2015 IN WHICH THE ASSESSEE IS A DIRECTOR. IN THAT CASE, AFTER CONSIDERING THE ISSUE AT LENGTH, WE HAVE DECIDED THE ISSUE AS UNDER :- THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 5.2.2015. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT T HE LEARNED CIT(A) WAS NOT JUSTIFIED IN MAINTAINING THE ADDITION OF RS.5,05,864/- TOWARDS UNEXPLAINED INVESTMENT IN PURCHASE OF LAND. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF TRANSFORMERS AND ALLIED PRODUCTS. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED AND THE ASSESSEE HAS FILED THE RETURN OF INCOME U/S 139 OF THE ACT. THE ASSESSEE HAS ALSO FILED THE RETURN IN RESPONSE TO NOTICE U/S 153A AND HE HAS DECLARED SOME ADDITIONAL INCOME. THE ASSESSEE COMPANY HAS PURCHASED THE LAND FROM SMT. SANTOSHI VERMA W/O SHRI ASHOK VERMA. THE STATEMENT OF SMT. SANTOSHI VERMA WAS RECORDED ON RAKESH GUPTA IT(SS) A NO. 50/IND/2015 3 OATH IN WHICH SHE HAS ACCEPTED THAT SHE HAS SOLD TH E LAND TO THE ASSESSEE THROUGH RAJESH GUPTA FOR CONSIDERATION OF RS. 26 LACS AND OUT OF RS. 26 LACS , RS. 17 LACS WERE PAID THROUGH CHEQUE AND THE REMAINING RS. 9 LACS WERE RECEIVED IN CASH. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION IN THE CASE OF RAKESH GUPTA ON PROTECTIVE BASIS AND IN THE ASSESSEES CASE ON SUBSTANTIVE BASIS. THE MATTE R WAS CARRIED IN APPEAL BEFORE THE LEARNED CIT(A) WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE THE TRIBUNAL THAT THE ASSESSING OFFICER HAS RECORDED THE STATEMENT OF SMT. SANTOSHI VERMA AND A COPY OF THE STATEMENT WAS GIVEN TO THE ASSESSEE BUT THE ASSESSEE WAS NOT GIVEN OPPORTUNITY OF CROSS - EXAMINATION. THEREFORE, ANY STATEMENT RECORDED BEHIND THE BACK OF THE PERSON IS INADMISSIBLE IN EVIDENCE. THEREFORE, DUE PROCESS OF LAW HAS TO BE CONVERTED IN ANY STATEMENT INTO LEGAL ADMISSIBLE EVIDENCE. THEREFORE, THE ASSESSEE MAY BE GIVEN OPPORTUNITY TO CROSS EXAMINE SMT. SANTOSHI VERMA AND THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER. THE LEARNED DR HAS NO OBJECTION TO THE SAM E. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFF ICER WITH THE DIRECTION TO AFFORD REASONABLE OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. RAKESH GUPTA IT(SS) A NO. 50/IND/2015 4 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES 4. WE, THEREFORE, FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL, RESTORE THE MATTER TO THE FILE OF THE ASSES SING OFFICER WITH THE DIRECTION TO AFFORD REASONABLE OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SMT. ARCHANA MAHESHWARI AND SMT. RAM BAI, WHO HAVE ADMITTED TO HAVE SOLD THE LAND TO THE ASSESSEE. PRONOUNCED IN OPEN COURT ON 26 TH AUGUST, 2016 SD SD (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 26 AUGUST, 2016 DN/- RAKESH GUPTA IT(SS) A NO. 50/IND/2015 5