Shri Bhagyesh Pitamber Patel, Ahmedabad V. The Income Tax Officer, Ward-6(5), Ahmedabad

ITSSA 57/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3801 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 03-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Documents seized

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD , , ! BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA R OY, JUDICIAL MEMBER (SS) ./ IT(SS)A NO.57/AHD/2016 ( / ASSESSMENT YEAR : 2010-11) SHRI BHAGYESH PITAMBER PATEL A-4, NEW SATTADHAR COMPLEX GHATLODIYA, AHMEABAD / VS. THE INCOME TAX OFFICER WARD-6(5) AHMEDABAD % ./ ./ PAN/GIR NO. : ANYPP 6195 L ( %( / APPELLANT ) .. ( )%( / RESPONDENT ) %(* / APPELLANT BY : SHRI U.S. BHATI, AR )%( +* / RESPONDENT BY : SHRI SAURABH SINGH, SR.DR ,- + / DATE OF HEARING 03/05/2018 ./01 + / DATE OF PRONOUNCEMENT 13 /06/2018 / O R D E R PER MS. MADHUMITA ROY - JM: BEING AGGRIEVED BY AND/OR DISSATISFIED WITH THE ORD ER DATED 26.02.2015 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)-4, AHMEDABAD [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2010-11, THE INSTANT APPEAL HAS BEEN FILED BEFORE US BY THE ASSESSEE WITH THE FOLLOWING GROUNDS:- 1.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN PARTLY CONFIRMING THE ASSESSMENT ORDER. 2.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN FAILING TO ADJUDICATE GROUND NO.1 RAISED BEFORE HER IN CONNECTION WITH FAILURE TO ISSUE NOTICE U/S.143(2) OF THE INCOME TAX ACT, 1961 BY THE LD.AO. 3.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN FAILING TO ADJUDICATE GROUND NO.4 AND PARTLY CONFIR MING THE ASSESSMENT ORDER IT(SS)A NO.57/A HD/2016 BHAGYESH PITAMBER PATEL VS. ITO ASST.YEAR 2010-11 - 2 - DESPITE THE FACT THAT LD.AO HAD FAILED TO FURNISH R ELIED UPON MATERIAL AND DID NOT ALLOW CROSS EXAMINATION OF PERSONS ON WHOSE STATEME NTS RELIANCE WAS PLACED. 4.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN SUSTAINING THE PROCEEDINGS U/S.153C THOUGH NO SATIS FACTION WAS RECORDED BY THE LD.AO OF SHRI VIKAS R.PATEL OF UMIYA GROUP. 5.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FU RTHER ERRED IN LAW AND ON FACTS IN HOLDING THAT IT IS NOT COMPULSORY TO PROVI DE COPY OF SATISFACTION NOTE TO THE APPELLANT. 6.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN UPHOLDING PROCEEDINGS U/S.153C AS WELL AS JURISDICT ION OF THE LD.AO IN INITIATING PROCEEDINGS U/S.153C. 7.0 THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERR ED IN LAW AND ON FACTS IN HOLDING THAT BANA CHITTHI DATED 03/05/2008 AND BANA KHAT/KARAR DATED 13/05/2008 BELONGED TO THE APPELLANT WITHIN MEANING OF SECTION 153C OF THE INCOME TAX ACT, 1961. 8.0 THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERR ED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS.30 LAKHS IN THE HANDS OF THE APPELLANT ON PROTECTIVE BASIS THAT TOO WITHOUT GIVING ANY NOTICE OF OPPORTU NITY. 2. THE BRIEF FACTS OF THE CASE IS THIS THAT A SEARC H WAS CARRIED OUT U/S.132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') A T THE PREMISE BELONGING TO UMIYA GROUP ON 04.03.2010. INCRIMINATING MATERIALS BEING A BANA C HITTI DATED 03.05.2008 AND BANAKHAT/KARAR DATED 13.05.2008 WERE FOUND AND SEIZED FROM THE RES IDENTIAL PREMISES OF ONE SHRI VIKAS R.PATEL RELATING TO THE PURCHASE OF LAND OF SURVEY NO.206, CHANDLODIYA MEASURING ABOUT 3344.48 SQ.MTR BY SHRI BHAGWANBHAI KARAJANBHAI AJAR A AND SHRI DIPAK G.PRAJAPATI FROM SHRI AMITKUMAR KANTILAL PATEL, NARENDRA RAMESHBHAI PATE L, ANIL G. DARGI, BHAGYESH PITAMBERDAS PATEL AND CHANDUBHAI GANDABHAI PATEL. IT APPEARS F ROM THESE DOCUMENTS THAT AN AMOUNT OF RS.1.50 CRORES HAS BEEN PAID FOR SUCH SALE DETAILS WHEREOF WERE ALSO MADE AVAILABLE THERE. IN THE STATEMENT MADE U/S.132(4) BY MR.VIKAS R.PATEL, IT WAS ADMITTED THAT UNACCOUNTED PAYMENT OF RS.1.50 CRORES WAS MADE BY CASH TO SHRI ANIKUMAR G.DARJI AND OTHER CO-SELLERS. IT(SS)A NO.57/A HD/2016 BHAGYESH PITAMBER PATEL VS. ITO ASST.YEAR 2010-11 - 3 - 3. ON THE OTHER HAND, FROM THE SEIZED DOCUMENTS, IT APPEARS THAT SHRI BHAGYESH P. PATEL (THE ASSESSEE-HEREIN) SOLD OUT THE SAID NON-AGRICUL TURAL LAND FOR A CONSIDERATION OF RS.73,58,000/- TO SHRI BHAGWANBHAI K. AJARA ALONGWI TH SHRI ANILKUMAR G.DARJI AND SHRI CHANDUBHAI G.PATEL ON 17.11.2009 I.E. IN FINANCIAL YEAR (FY) 2009-10 RELEVANT TO AY 2010- 11. THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 29.04.2011 DECLARING TOTAL INCOME OF RS.7,25,484/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.153A(A) R.W.S. 153C OF THE ACT WAS ISSUED ALONG WITH THE REASON FOR REOPENING TO THE CASE SERVED UPON THE ASSESSEE. A NOTICE UNDER SECTION 153A(A) OF THE ACT WAS ISSUED UPON THE ASSESSEE CALLING FOR FURNISHING OF DETAILS REGARDING THE CASH PAYMENT OF RS.1.50 CRORE S AGAINST THE TOTAL CONSIDERATION OF SALE IN ADDITION FOR WHICH SALE-DEED IS EXECUTED AND TO EXP LAIN THE UNRECORDED CASH RECEIPT OF RS.30,00,000/- BEING 1/5 TH SHARE OF RS.1.50 CRORES. HOWEVER, THE LD.AO BEING DISSATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE ADDE D RS.30,00,000/- TO HIS INCOME WHICH WAS CONFIRMED BY THE LD.CIT(A) ON THE APPEAL PREFERRED BY THE ASSESSEE AND HENCE THE INSTANT APPEAL BEFORE US. THE ASSESSEE DENIED THE RECEIPT OF RS.30,00,000/- AS ALSO ENTERING INTO ANY AGREEMENT FOR SALE OF SAID LAND IN QUESTION. IN TH E SAID REPLY TO THE SHOW-CAUSE NOTICE, IT WAS CATEGORICALLY MENTIONED THAT PARTICULAR AMOUNT OF RS.1.50 CRORES HAS BEEN ADDED TO THE INCOME OF SHRI ANILKUMAR G.DARJI UNDER THE ASSESSMENT ORDE R DATED 28/12/2012 OF SAID SHRI ANILBHAI G.DARJI PASSED BY THE ACIT, CEN.CIRCLE-(1), AHMEDAB AD. SUCH ADDITION WAS MADE ON SUBSTANTIVE BASIS ON THE GROUND THAT SEIZED BANAK HAT WAS HAVING THE SIGNATURE OF SHRI ANILKUMAR G.DARJI AND HE ONLY RECEIVED THE ENTIRE A MOUNT. ON THAT SCORE ALONE, THE ASSESSEE PRAYED FOR DROPPING OF SHOW-CAUSE NOTICE REGARDING THE ADDITION OF RS.30,00,000/- TO HIS INCOME. 4. THE LD.ADVOCATE APPEARING FOR THE ASSESSEE, AT T HE TIME OF HEARING, BROUGHT TO OUR NOTICE OF THE ORDER DATED 31.05.2016 PASSED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI ANILKUMAR G.DARJI VS. ACIT, CIR-1(1) A HMEDABAD AND ACIT, CENTRAL IT(SS)A NO.57/A HD/2016 BHAGYESH PITAMBER PATEL VS. ITO ASST.YEAR 2010-11 - 4 - CIRCLE(1)(1) AHMEDABAD VS. SHRI AMIK K.PATEL, SHRI NARENDRA R.PATEL. BY THIS SAID COMMON ORDER, THE ORDER PASSED BY THE LD.CIT(A) ASSESSING THE ENTIRE CASH PAYMENT OF RS.1.50 CRORES IN THE HANDS OF SHRI ANILKUMAR G.DARJI HAS BEEN UPH ELD WHICH WAS FURTHER AFFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO. 18 OF 2017 DATED 21.02.2017 PREFERRED BY SHRI ANIL G.DARJI. 4.1. THE LD.DR FOR THE REVENUE VEHEMENTLY OBJECTED TO THE SUBMISSION MADE BY THE LD.ADVOCATE FOR THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD INCLUDING THE JUDGEMENT RELIED UPON BY THE LD.ADVOCATE FOR TH E ASSESSEE. WE HAVE CAREFULLY PERUSED THE ORDERS PASSED BY THE CONCERNED COURT. THE QUESTION ARISES WHEN A CONCEALED INCOME HAS BEEN ASSESSED IN THE HANDS OF SHRI ANIKUMAR G.DARJI ON S UBSTANTIVE BASIS WHETHER THE ORDER ASSESSING A PORTION OF THAT TOTAL CONSIDERATION OF RS.1.50 CRORES TO THE HANDS ANOTHER ASSESSEE ON PROTECTIVE BASIS IS SUSTAINABLE IN LAW OR NOT. 6. THE ISSUE HAS ALREADY BEEN EXAMINED AND DECIDED BY THE SEVERAL HIGH |COURTS INCLUDING THE HONBLE HIGH COURT AT ALLAHABAD IN THE CASE OF CIT VS. SMT.DURGAWATI SINGH AS RELIED UPON BY THE LD.ADVOCATE FOR THE ASSESSEE. THE RATI O OF THE JUDGEMENT IS REPRODUCED HEREINBELOW:- IT IS SETTLED THAT WHEN THERE IS A DOUBT AS TO WHI CH PERSON AMONGST THE TWO WAS LIABLE TO BE ASSESSED, PARALLEL PROCEEDINGS MAY BE TAKEN AGAI NST BOTH AND ALTERNATIVE ASSESSMENTS MAY ALSO BE FRAMED. IT IS ALSO EQUALLY TRUE THAT WH ILE A PROTECTIVE ASSESSMENT IS PERMISSIBLE, IT IS NOT OPEN TO THE INCOME-TAX APPEL LATE AUTHORITIES CONSTITUTED UNDER THE ACT TO MAKE A PROTECTIVE ORDER. THE LAW DOES NOT PE RMIT ASSESSMENT OF THE SAME INCOME SUCCESSIVELY IN DIFFERENT HANDS. THE TAX CAN ONLY B E LEVIED AND COLLECTED IN THE HANDS OF THE PERSON WHO HAS REALLY EARNED THE INCOME AND IS LIABLE TO PAY TAX THEREON. IT WAS THE COMMON CONTENTION OF LEARNED COUNSEL FOR THE PARTIES THAT IF THE SUBSTANTIVE ASSESSMENT IS MAINTAINED IN THE HANDS OF THE ASSESS EE'S HUSBAND IN IT REF. NO. 22 OF IT(SS)A NO.57/A HD/2016 BHAGYESH PITAMBER PATEL VS. ITO ASST.YEAR 2010-11 - 5 - 1981 VIJAY BAHADUR SINGH VS. CIT (SUPRA), THE INCO ME IN DISPUTE COULD NOT BE UPHELD IN THE HANDS OF THE ASSESSEE. IN OUR OPINION, NO EX CEPTION CAN BE TAKEN TO THE STAND TAKEN BY LEARNED COUNSEL FOR THE PARTIES. 6.1. TAKING INTO CONSIDERATION THE JUDGEMENT CITED ABOVE, WE FIND THAT IT IS NOT JUSTIFIABLE TO MAKE ADDITION OF RS.30,00,000/- IN THE HANDS OF THE ASSESSEE WHEN THE SAID UNDISCLOSED INCOME HAS ALREADY BEEN ASSESSED IN THE HANDS OF SH RI ANIL G. DARJI ON SUBSTANTIVE BASIS WHICH ATTAINED FINALITY BY THE JUDGEMENT PASSED BY THE HO NBLE JURISDICTIONAL HIGH COURT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE O RDER PASSED BY THE LD.CIT(A) CONFIRMING THE ORDER OF ADDITION OF RS.30,00,000/- TO THE INCO ME OF THE ASSESSEE ON PROTECTIVE BASIS WHICH WAS MADE BY THE AO ON SUBSTANTIVE BASIS IS NOT SUST AINABLE AND THUS LIABLE TO BE QUASHED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/06/2018 SD/- SD/- ( ) ( ) ( PRADIPKUMAR KEDIA ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/ 06 /2018 5 ..,,. ,../ T.C. NAIR, SR. PS IT(SS)A NO.57/A HD/2016 BHAGYESH PITAMBER PATEL VS. ITO ASST.YEAR 2010-11 - 6 - !'#' / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )%( / THE RESPONDENT. 3. 67 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-4, AHMEDABAD 5. 9:; ,7 , 7 1 , 6 / DR, ITAT, AHMEDABAD 6. ;=>- / GUARD FILE. / BY ORDER, )9 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..17.5.18 (DICTATION-PAD 16 PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 17.5.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.13.6.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.6.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER