Shri Dahyabhai Ratansibhai Patel, Surat V. The ACIT.,Circle-2, Surat

ITSSA 53/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8148 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-08-2011
• Assessment Year: misc
• Appeal Filed On: 08-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S SURYAVANSHI
• Assessee Lawyers: NONEWRITTEN SUBMISSIONS
• Keywords: Unexplained investment; Document seized; Documents seized
• Section: 132; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI MUKUL SHRAWAT,JM & SHRI A N PAHUJA,AM IT(SS)A NO.53/AHD/2009 [BLOCK PERIOD:-01-04-1990 TO 27-04-2000] SHRI DAHYABHAI RATANSIBHAI PATEL,OPPOSITE MEGH MAYUR APARTMENT, UDHNA-MAGDALLA ROAD,SURAT [PAN: ACBPP9530B] V/S ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, AAYAKAR BHAVAN,MAJURA GATE,SURAT [APPELLANT] [RESPONDENT] ASSESSEE BY :- NONE[WRITTEN SUBMISSIONS] REVENUE BY:- SHRI G.S.SURYAVANSHI, DR DATE OF HEARING :- 11-08-2011 DATE OF PRONOUNCEMENT:- 26-08-2011 O R D E R A N PAHUJA: THIS APPEAL BY THE ASSESSEE AGAINST AN ORDER DATED 14- 07-2009 OF THE LD. CIT(APPEALS)-II, SURAT, RAISES T HE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) VI HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.1,85,500/- A S AGAINST THE ON MONEY OF RS.10,000/- PAID FOR PLOT WITHOUT APPRECIA TING THE CONTENTS OF SEIZED PAPER. THE ADDITION, THEREFORE, BE DELETE D.- THE APPELLANT RESERVES THE RIGHT TO ADD, AL TER, MODIFY, AMEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL BEFORE HEARIN G. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT THE A SEARCH U/S 132 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERR ED TO AS THE ACT] WAS CONDUCTED ON 27-04-2002 IN THE PREMISES OF SHRI SHASHIKANT V TAMAKUWALA , SITUATE AT 90,WILSON TOWER, ATHWALINES , SURAT. DURING THE COURSE OF SEARCH, A DELUXE DIARY NO. BS-2 WAS S EIZED. THE DIARY CONTAINED NOTING REGARDING PURCHASE OF PLOT IN SACH IN UDHYOGNAGAR SAHKARI MANDALI LIMITED BY VARIOUS PERSONS, INCLUDI NG THE ASSESSEE. IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT, SH RI SHASHIKANT V 2 IT(SS)A NO.53/AHD/2009 2 TAMAKUWALA, ADMITTED THAT THE TRANSACTIONS NOTED IN THE DIARY WERE BROKERED THROUGH HIM. ON PAGE NO. 10A OF THE DIARY, THE TRANSACTION REGARDING SHRI DAHYABHAI RAMESHWAR WAS NOTED, WHICH REVEALED THAT TOTAL VALUE OF THE PLOT OF C TYPE WAS RS.1,85, 500 AND DOCUMENTED PRICE WAS RS.72,233/-.CONSEQUENTLY, A NO TICE U/S 158BD READ WITH SEC. 158BC OF THE ACT WAS ISSUED ON 29-3-2006, REQUIRING THE ASSESSEE TO FURNISH THE RETURN OF UND ISCLOSED INCOME FOR THE BLOCK PERIOD WITHIN THIRTY DAYS OF THE SERV ICE OF NOTICE. HOWEVER, THE ASSESSEE DID COMPLY WITH THE SAID NOTI CE. IN RESPONSE TO A SHOWCAUSE NOTICE, THE ASSESSEE DENIED HAVING P URCHASED THE PLOT IN THE AFORESAID SOCIETY. IT WAS CONTENDED THA T AN ADVANCE OF RS.25000/- WAS GIVEN TO THE BROKER SHRI SHASHIKANT V TAMAKUWALA AND THE SAME WAS TAKEN BACK, THE ASSESSEE BEING UNA BLE TO MAKE THE BALANCE PAYMENT. IN SUPPORT, THE ASSESSEE FILED A COPY OF LETTER DATED 5.3.2008 ISSUED BY THE SOCIETY, MENTIONING TH AT THE ASSESSEE WAS NOT A MEMBER OF THE SOCIETY AND DID NOT OWN ANY PLOT THEREIN. HOWEVER, WHEN STATEMENT OF SHRI SHASHIKANT V TAMAKU WALA AND RELEVANT PAGE NO. 10A OF THE DIARY SEIZED FROM THE BROKER, WAS CONFRONTED TO THE ASSESSEE, THE LATTER DID NOT REPL Y NOR FILED ANY SUBMISSIONS. IN THESE CIRCUMSTANCES, ESPECIALLY WHE N THE ASSESSEE INITIALLY ADMITTED THAT THE PLOT WAS PURCHASED IN H IS FATHERS NAME AND AN AMOUNT OF RS.1,85,500/- WAS PAID, RELYING UP ON THE NARRATIONS IN THE AFORESAID SEIZED DOCUMENT AND REF ERRING TO DECISIONS IN CIT VS. DURGAPRASAD MORE,82 ITR 540 (S C) AND ASHOKKUMAR JAIN, HUF IN ITA NO. 1189/AHD./2007(SC) ,THE AO ADDED AN AMOUNT OF RS.1,85,500/- U/S 69 OF THE ACT, THE ASSESSEE HAVING FAILED TO EXPLAIN THE SOURCE OF INVESTMENT. 3. ON APPEAL, THE LEARNED CIT(A) UPHELD THE FINDING S OF THE AO IN THE FOLLOWING TERMS:- 5. FROM A PERUSAL OF THE ASST. ORDER, I FIND THAT THE SAME CERTIFICATE HAD BEEN PRODUCED BEFORE THE AO AS WELL(PARA-3 OF THE ASST . ORDER .THE AO PROVIDED AN OPPORTUNITY TO THE ASSESSEE TO INSPECT THE SEIZ ED MATERIALS 3 IT(SS)A NO.53/AHD/2009 3 AND ALSO PROVIDED A COPY OF THE STATEMENT OF SHRI SHASHIKANT V TAMAKUWALA WHICH SPECIFICALLY PERTAINED TO THE PURCHASE OF THE SAID PLOT BY THE ASSESSEE AND THE PAYMENT OF ON MONEY. THE AO FURTH ER NOTED THAT INITIALLY THE ASSESSEE HAD ACCEPTED THE FACT THAT THE SAID PLOT HAD BEEN PURCHASED IN THE NAME OF HIS FATHERS HUF I.E. SHRI RA TANSHIBHAI PARBATBHAI PATEL HUF AND THE SUM OF RS.1,85,500/- HAD BEEN PAID OUT OF HIS AGRICULTURAL INCOME. THE CLAIM NOW MADE THAT THE S AID PLOT HAD NOT BEEN PURCHASED AT ALL, WAS ONLY AN AFTER THOUGHT. T HE POINT TO BE NOTED IS THAT THE CERTIFICATE OF THE CHAIRMAN, SUSML PERTAINS O NLY TO THE ASSESSEE AND STATES THAT THE SAID PLOT HAD NOT BEEN PURCHASED BY THE ASSESSEE. IT DOES NOT MAKE ANY MENTION OF HIS FATHERS HUF. ON THE OT HER HAND, THE ASSESSEE HAD INITIALLY ACCEPTED THE FACT THAT THE PLOT HAD BEEN PURCHASED BY HIS FATHERS HUF. NEITHER THE INITIAL CLAIM NOR THE SUBSEQUENT DENIAL HAS BEEN SUPPORTED BY EVIDENCE. 5.1 WHAT REMAINS INDISPUTABLE IS THAT SEARCH OF THE PRE MISES OF SHRI SHASHKANT TAMAKUWALA HAD LED TO THE DETECTION OF LARGE SCALE TRANSACTIONS IN PLOTS OF SUSML. THE DIARY SEIZED FROM SHRI TAMAKUWALA CLEARLY REFLECTED THE PURCHASE OF A PLOT BY THE ASSESSEE FOR THE SUM OF RS.1,85,500/- WHOSE DOCUMENT PRICE WAS RS.72,233/- AND TH E BALANCE SUM OF RS.1,13,266/- WAS PAID IN CASH AS ON MONEY. THE ENT RIES IN THE SEIZED DIARY WERE CORROBORATED BY SHRI TAMAKUWALA HIMSELF ,AS GENUINE. GIVEN SUCH INDISPUTABLE EVIDENCE, A CLEAR PRESUMPTION CAN B E DRAWN THAT THE ASSESSEE HAD ACTUALLY PURCHASED THE PLOT IN QUESTION A ND HAD PAID THE SUM OF RS.1,85,500/- AS PURCHASE CONSIDERATION., THE SOURCE OF WHICH WAS NOT EXPLAINED AND CONSEQUENTLY, THE AO WAS FULLY JUSTIFIED IN TREATING THE SUM AS UNEXPLAINED INVESTMENT U/S 69 OF THE IT ACT. THE AO S ACTION IS SUSTAINED, AND THE ADDITION OF THE SUM OF RS.1,85,500/- IS CONFIRMED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). NONE APPEARED BEFOR E US ON BEHALF OF THE ASSESSEE AND INSTEAD WRITTEN SUBMISSIONS HAVE B EEN FILED ON 10.8.2011,CLAIMING THAT NEITHER THE AO NOR THE LD. CIT(A) HAS EVER CONTENDED THAT THE INVESTMENT HAS BEEN MADE BY THE ASSESSEE.THE EVIDENCE FOUND DURING THE SEARCH AT THE PREMISES OF SHASHIKANT TAMAKUWALA ALSO LEADS TO THE FACTS THAT INITIAL BOO KING WAS MADE BY (HUF) OF ASSESSEES FATHER. IT IS THE PRINCIPLE OF INCOME-TAX, THAT UNACCOUNTED INVESTMENT HAS TO BE TAXED IN THE HANDS OF ASSESSEE WHO HAS ACTUALLY MADE INVESTMENT. THEREFORE, NO ADD ITION IS REQUIRED TO BE MADE IN THE CASE OF THE ASSESSEE. THE LD. DR, ON THE OTHER HAND, SUPPORTED THE FINDINGS OF THE LD. CIT(A ). 4 IT(SS)A NO.53/AHD/2009 4 5. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE W RITTEN SUBMISSIONS ON BEHALF OF THE ASSESSEE. INDISPUTABLY , DURING THE COURSE OF SEARCH U/S 132 OF THE ACT IN THE PREMISES OF SHRI SHASHIKANT V TAMAKUWALA, A DELUXE DIARY NO. BS-2 WA S SEIZED. THE DIARY CONTAINED NOTING REGARDING PURCHASE OF PLOT I N SACHIN UDHYOGNAGAR SAHKARI MANDALI LIMITED BY VARIOUS PERS ONS, INCLUDING THE ASSESSEE. IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT, SHRI SHASHIKANT V TAMAKUWALA, ADMITTED THAT THE TRANSACT IONS NOTED IN THE DIARY WERE BROKERED THROUGH HIM. ON PAGE NO. 10 A OF THE DIARY, THE TRANSACTION REGARDING SHRI DAHYABHAI RAMESHWAR WAS NOTED, WHICH REVEALED THAT TOTAL VALUE OF THE PLOT OF C TY PE WAS RS.1,85,500 AND DOCUMENTED PRICE WAS RS.72,233/-. THE ASSESSEE INITIALLY CONTENDED THAT AN ADVANCE OF RS.25000/- WAS GIVEN T O THE BROKER SHRI SHASHIKANT V TAMAKUWALA AND THE SAME WAS TAKEN BACK WHILE THE ASSESSEE DID NOT MAKE THE BALANCE PAYMENT AND IN SUPPORT, FILED A COPY OF LETTER DATED 5.3.2008 ISSUED BY THE SOCIETY, MENTIONING THAT THE ASSESSEE WAS NOT A MEMBER OF TH E SOCIETY AND DID NOT OWN ANY PLOT THEREIN. HOWEVER,WE FIND FROM THE IMPUGNED ORDERS THAT WHEN STATEMENT OF SHRI SHASHIKANT V TAM AKUWALA , THE BROKER AND RELEVANT PAGE NO. 10A OF THE DIARY SEIZE D FROM THE BROKER, WAS CONFRONTED TO THE ASSESSEE, THE LATTER DID NOT REPLY NOR FILED ANY SUBMISSIONS BEFORE THE AO. IN THESE CIRCU MSTANCES, ESPECIALLY WHEN THE ASSESSEE INITIALLY ADMITTED THA T THE PLOT WAS PURCHASED IN HIS FATHERS NAME AND AN AMOUNT OF RS. 1,85,500/- WAS PAID, RELYING UPON THE NARRATIONS IN THE AFORESAID SEIZED DOCUMENT, THE AO ADDED AN AMOUNT OF RS.1,85,500/- U/S 69 OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESSEE FAILED TO REBUT THE TR ANSACTIONS NOTED IN THE SEIZED DOCUMENTS, DESPITE HAVING A COPY OF STAT EMENT OF THE BROKER RECORDED U/S 132(4) OF THE ACT AND COPY OF S EIZED DOCUMENTS.. EVEN BEFORE US, APART FROM REITERATING IN THE WRITTEN SUBMISSIONS FILED BEFORE US , THEIR PLEAS BEFORE TH E LD. CIT(A), THE ASSESSEE DID NOT PLACE ANY MATERIAL SO AS TO ENAB LE US TO TAKE A DIFFERENT VIEW IN THE MATTER. IN THESE CIRCUMSTANCE S, ESPECIALLY WHEN 5 IT(SS)A NO.53/AHD/2009 5 THE ASSESSEE FAILED TO DISCHARGE ONUS LAID DOWN UPO N HIM IN THE FACE OF AFORESAID SEIZED DOCUMENTS AND STATEMENT RE CORDED U/S 132(4) OF THE ACT, WE HAVE NO ALTERNATIVE BUT TO UP HOLD THE FINDINGS OF THE LD. CIT(A). THEREFORE, GROUND NO.1 IN THE AP PEAL IS DISMISSED. 6. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF RESIDUARY GROUND IN THE APPEAL OF THE ASSESSEE, ACC ORDINGLY, THIS GROUND IS DISMISSED. 7. IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 26 -08-2011 SD/- SD/- ( MUKUKL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 26-08-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI DAHYABHAI RATANSIBHAI PATEL,OPPOSITE MEGH M AYUR APARTMENT, UDHNA-MAGDALLA ROAD,SURAT 2. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, AAYAKAR BHAVAN,MAJURA GATE,SURAT 3. CIT CONCERNED 4. CIT(A)-II, SURAT 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD