M/s Gulam Nabi, V. The ACIT 5 (1),

ITSSA 6/IND/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7859 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-05-2011
• Assessment Year: misc
• Appeal Filed On: 19-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Loose papers
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO.06/IND/2009 BLOCK PERIOD 1.4.1996 TO 5.6.2002 SHRI GULAM NABI INDORE PAN AERPN-9820N ..APPELLANT V/S. ASSTT. COMMISSIONER OF INCOME TAX 5(1) INDORE ..RESPONDENT APPELLANT BY : SHRI S.S. DESHPANDE RESPONDENT BY : SHRI KESHAV SAXENA DATE OF HEARING :20.12.2011 DATE OF PRONOUNCEMENT:20.12.2011 ORDER PER JOGINDER SINGH BY THIS APPEAL THE ASSESSEE CHALLENGES THE ORDER DATED 11.11.2008 OF THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) ON GROUND THAT THE LD. FIRST APPELLAT E AUTHORITY WAS NOT JUSTIFIED IN UPHOLDING THE ADDITI ONS 2 MADE IN THE CASE OF THE ASSESSEE ON ACCOUNT OF ALLE GED INCOME FROM THE SALE OF PLOTS OF MP SALES TAX LOW INCOME GROUP HOUSING SOCIETY WHERE THE ASSESSEE WAS MERELY A CHOWKIDAR ESPECIALLY WHEN THE ASSESSEE WAS NOT AT ALL CONNECTED WITH THE SALE PROCEEDS, THEREF ORE, SUCH ADDITIONS ARE UNCALLED FOR AND FURTHER THE LD. FIRST APPELLATE AUTHORITY ERRED IN NOT ALLOWING THE ADDIT IONAL EVIDENCE, BEING HAND WRITING EXPERTS OPINION, CONC LUDING THAT THE ASSESSEE RECEIVED THE PAYMENT FOR THE PROP ERTY TRANSFERRED BY THE SOCIETY. 2. DURING HEARING, AT THE OUTSET, THE LEARNED CIT D R FILED A LETTER DATED 1.6.2011, SIGNED BY THE ACIT 5 (1), INDORE, MENTIONING THAT THE APPEAL OF SHRI SHEIKH MUSHTAFA HAS BEEN DISMISSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND NO SECOND APPEAL HAS BEEN PREFERRED BY HIM. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL 3 AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSE SSEE IS AN INDIVIDUAL, RETIRED AS POLICE CONSTABLE IN THE Y EAR 1997 AND WAS EMPLOYED AS A CHOWKIDAR WITH ONE SHRI SHRI SHEIKH MUSHTAFA AND WAS DRAWING SALARY OF RS.1200/- PER MONTH. A SEARCH WAS CONDUCTED AT THE PREMISES OF SHRI SHEIKH MUSTAFA WHERE CERTAIN LOOSE PAPERS PERTAINING TO M.P. VIKRAYAKAR VIBHAGIYA ALPA AAI VALE CHURTHA SHRENI KARMACHARI GRIH NIRMAN SAHKARI SANSTHA LIMITED WERE FOUND. AS PER ASSESSEE, HE DOE S NOT HAVE ANY ASSET OF HIS OWN AND NEVER LOOKED AFTE R THE AFFAIRS OF THE ASSESSEE SOCIETY, RATHER HE WAS MADE MEMBER OF THE SOCIETY ON PAPERS AND ALSO NOMINATED AS PRESIDENT OF THE SOCIETY. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS RESIDING IN A SLUM AREA IN AZAD NAGAR. IT IS SEEN THAT THE ADDITION OF RS.2.93 CRORES WAS MADE IN THE HANDS OF THE ASSESSEE IN SUBSTANTIVE MANNER AND PROTECTIVE ADDITION WAS MADE OF THE SAME AMOUNT IN THE HANDS OF SHRI SHEIKH MUSHTAF A. THE LD. COUNSEL FOR THE ASSESSEE PRODUCED THE ASSES SEE 4 IN PERSON IN COURT ROOM AND PRAYED THAT THE ASSESSE E WAS WORKING AS A PEON IN THE SOCIETY AT THE RELEVAN T TIME AND HIS SIGNATURE/THUMB IMPRESSION WAS TAKEN WITHOU T HIS KNOWLEDGE ON SO MANY DOCUMENTS ABOUT WHICH HE WAS NOT AT ALL AWARE. AFTER EXAMINATION OF ALL RECO RDS PLACED ON RECORD, WE FURTHER FIND THAT THE ASSESSME NT HAS BEEN FRAMED EX-PARTE UNDER SECTION 158BD READ W ITH SECTION 144 OF THE ACT. ALL THE INCRIMINATING DOCUM ENTS AS DETAILED BY THE ASSESSING OFFICER HAVE BEEN FOUN D AT THE PREMISES OF SHRI SHEIKH MUSHTAFA WHERE THE SEAR CH WAS CARRIED OUT. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE GROSS AMOUNT CANNOT BE TREATED A S INCOME OF THE ASSESSEE AS SOME INCOME WAS CHARGED B Y WAY OF DEVELOPMENT CHARGES AND THERE IS A POSSIBILI TY THAT SOME DEVELOPMENT WAS DONE AND THE EXPENDITURE MIGHT HAVE BEEN DEDUCTED IN THE BOOKS OF THE SOCIET Y. NO EFFORTS WERE CLAIMED TO HAVE BEEN MADE BY THE DEPARTMENT TO ASCERTAIN THESE FACTS. IT WAS FURTHE R SUBMITTED THAT THE REGISTERS MAINTAINED BY THE SOCI ETY 5 ARE NOT IN THE HAND-WRITING OF THE ASSESSEE AND THE RE ARE VARIOUS PAPERS LIKE BS1/177 REGARDING COMPLAINT OF ONE SOBRAN SINGH, MANAGER OF THE SOCIETY, AND THE CIVIL SUIT FILED IN RESPECT OF CERTAIN PAPERS WHO WERE TRYING FORCEFULLY TO OCCUPY CERTAIN PLOTS IN THE SOCIETY. SHRI SOBRAN SINGH HAS BEEN SHOWN AS DEFENDED NO. 10 IN T HE CIVIL SUIT WHO ALLEGEDLY MISAPPROPRIATED RS. 5 CROR ES AND WAS REMOVED FROM THE POST OF THE MANAGER AND THE SA ME WAS PUBLISHED IN VARIOUS NEWSPAPERS. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE MAN AGER AND OTHER PERSONS MISAPPROPRIATED THE FUNDS OF THE SOCIETY. THE LEARNED ASSESSING OFFICER WHILE FRAMI NG THE ASSESSMENT HAS REMARKED THAT THE ASSESSEE RECEIVED THE TOTAL CONSIDERATION OF THE PLOTS AS MENTIONED IN PA RA 2 OF THE SAID CIVIL SUIT, THEREFORE, MADE THE ADDITION O N GROSS RECEIPTS ON SUBSTANTIVE BASIS. IF THE TOTALITY OF FACTS IS ANALYSED, WE ARE OF THE OPINION THAT FRESH INVESTIGATION/EXAMINATION IS REQUIRED IN THIS CASE, THEREFORE, WE DIRECT THE LEARNED ASSESSING OFFICER TO 6 INVESTIGATE THE CASE AFRESH, AS PER LAW, AFTER PROV IDING DUE OPPORTUNITY TO THE ASSESSEE. ACCORDINGLY, WE R EVERSE THE ORDERS OF THE LOWER AUTHORITIES AND ALLOW THIS APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES ON 20 TH DECEMBER, 2011. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH DECEMBER, 2011 COPY TO:APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD FI LE D/-