Dr.Hemang A.Baxi, Ahmedabad V. The ACIT.,Cent.Circle-2(3), Ahmedabad

ITSSA 614/AHD/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1553 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of cross examination
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) IT(SS)A. NO: 614/AHD/2011 (ASSESSMENT YEAR: 2008-09) DR. HEMANG A. BAXI, 401, SAMAY APARTMENT, NR. AZAD SOCIETY, SATELLITE AHMEDABAD-380015 V/S THE ACIT, CENTRAL CIRCLE- 2(3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABUPB 0441R APPELLANT BY : SHRI DHIREN SHAH, AR RESPONDENT BY : SHRI SANJAY AGRAWAL, CIT/ D. R. ( )/ ORDER DATE OF HEARING : 16 -12-201 5 DATE OF PRONOUNCEMENT : 12 -02-2016 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A)-III, AHMEDABAD DATED 27.09.2011 FOR A.Y. 200 8-09. ITA NO. 614/ AHD/2011 . A.Y. 2008-0 9 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A CARDIOLOGIST. A SEARCH ACTION U/S. 13 2 OF THE ACT WAS CARRIED OUT IN HEALTHCARE GROUP OF CASES ON 21.08.2008. DUR ING THE COURSE OF SEARCH, DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED AND CONSEQUENT TO WHICH NOTICE U/S. 153C OF THE ACT WAS ISSUED ON 06.10.2009 WHEREBY ASSESSEE WAS REQUIRED TO FILE THE RETURN OF INCOME AND IN RESPONSE TO WHICH ASSESSEE FILED THE RETURN OF INCOME ON 21.10.2009 D ECLARING TOTAL INCOME OF RS. 70,96,530/-. THEREAFTER ASSESSMENT WAS FRAMED U /S. 153C R.W.S. 143(3) VIDE ORDER DATED 28.12.2010 AND THE TOTAL INCOME WA S DETERMINED AT RS. 1,33,38,900/-. AGGRIEVED BY THE ORDER OF A.O., ASSE SSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO BY A CONSOLIDATED ORDER IN TH E CASE OF ASSESSEE AND OTHER DOCTORS, BY ORDER DATED 27.09.2011, GRANTED P ARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), AS SESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACT S IN PARTLY ALLOWING THE APPEAL. HE OUGHT TO HAVE ALLOWED THE APPEAL FULLY IN ACCORDANC E WITH THE GROUNDS OF APPEAL RAISED BY THE APPELLANT BEFORE HIM. 1. ADDITION ON ACCOUNT OF ALLEGED CASH PAYMENT TREA TING THE SAME AS UNACCOUNTED INCOME RS. 55,00.000/- 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ADDITION OF RS. 55,00,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED INCOM E BY RELYING UPON VARIOUS MATERIALS FOUND AND SEIZED FROM THE PREMISES OF CAR E CARDIOVASCULAR CONSULTANTS PVT. LTD. (CCCPL). 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAI LING TO CONSIDER THE FACT THAT THERE WAS NO SEARCH IN THE CASE OF THE APPELLANT AND THE MATERIAL FOUND AND SEIZED FROM THE PREMISES OF CCCPL AND/OR DR. KEYUR PARIKH RELIED UP ON BY THE LD. A.O IN THE ASSESSMENT ORDER REFLECTS THE NAME OF THE APPELLANT IN CONNECTION WITH THE SHARING OF ITA NO. 614/ AHD/2011 . A.Y. 2008-0 9 3 PROFESSIONAL FEES AMONGST THE DOCTORS WHICH ARE DUL Y REFLECTED AND RECORDED IN THE BOOKS OF ACCOUNT OF THE APPELLANT. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAI LING TO CONSIDER THE FACT THAT THE LD. A.O HAS NOT CARRIED OUT COMPLETE INQUIRY AND IN VESTIGATION EVEN AFTER BRINGING ON RECORD THE STATEMENT OF SIX DOCTORS IN APRIL, 2010. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO CONSIDER THE FACT THAT T HE SIX DOCTORS WHO ARE DEPARTMENTAL WITNESS HAVE IDENTIFIED DR. KEYUR PARIKH, NIHIR SHA H AND ARPIT PATEL IN THEIR STATEMENTS THAT THEY WERE LOOKING AFTER THE ENTIRE PROJECT OF CCCPL AND WHATEVER THE CONTRIBUTION MADE BY THE SIX DOCTORS TO CCCPL FOR T HE PROJECT, THE SAME HAS BEEN MADE TO DR. KEYUR PARIKH, NIHIR SHAH AND ARPIT PATE L AND THEREFORE, AS PER THE ENQUIRY AND INVESTIGATION PROCEDURE NORMS, THE LD. A.O WAS DUTY BOUND TO CARRY OUT NECESSARY ENQUIRY WITH DR. KEYUR PARIKH, NIHIR SHAH AND ARPIT PATEL BY RECORDING THEIR STATEMENTS ON OATH BY CONFRONTING THE STATEME NT OF SIX DOCTORS. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE OBSERVING IN THE APPELLATE ORDER THAT CASH HAS BEEN RECEIVED BY THE COMPANY CCCPL FR OM DR. HEMANG BAXI ( THE APPELLANT) OF DIFFERENT AMOUNT ON DIFFERENT DATES A S MENTIONED ON PAGE NO. 82 OF THE APPELLATE ORDER. 5. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAI LING TO GRANT THE OPPORTUNITY OF CROSS EXAMINATION OF SIX DOCTORS AS WELL AS DR. KEY UR PARIKH, NIHIR SHAH AND ARPIT PATEL OF CCCPL. 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT T HE ISSUE IN THE PRESENT CASE IS COVERED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE CONSOLIDATED ORDER PASSED BY TRIBUNAL IN THE CASE OF OTHER DOCTORS WHEREIN SI MILAR ADDITIONS WERE MADE CONSEQUENT TO THE SAME SEARCH. HE PLACED ON RE CORD THE COPY OF THE CONSOLIDATED ORDER IN IT(SS)A NO. 604/AHD/2011 AND ORS. ORDER DATED 18.10.2013. HE POINTED TO PARA 8.13 OF THE AFORESAI D ORDER AND SUBMITTED THAT NO INCRIMINATING MATERIAL WAS FOUND AT THE TIM E OF SEARCH WHICH COULD PROVE THAT ASSESSEE HAD MADE UNACCOUNTED INVESTMENT TOWARDS THE PURCHASE OF PROPERTY. HE SUBMITTED THAT WHEN SIMILAR ADDITIO NS IN CASE OF THE OTHER ITA NO. 614/ AHD/2011 . A.Y. 2008-0 9 4 DOCTORS HAVE BEEN DELETED, THE ADDITION IN THE CASE OF ASSESSEE ALSO DESERVES TO BE DELETED. HE ALSO SUBMITTED THAT WHEN SIMILAR ADDITIONS MADE IN THE CASE OF SEARCHED PERSONS ITSELF HAVE BEEN DELETED U/S. 1 53C, NO ADDITION IN THE CASE OF ASSESSEE IS CALLED FOR. HE ALSO PLACED RELI ANCE ON THE DECISION IN THE CASE OF NARVIRSINH PARMAR VS. ACIT (2014) 45 TAXMA N.COM 466 (GUJ.). THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A .O. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT A CONSOLIDATED ORDER IN THE CASE OF THE A SSESSEE AND OTHER DOCTORS WAS PASSED BY LD. CIT(A) BY ORDER DATED 27.09.2011 AGAINST WHICH THE MATTER WAS CARRIED BEFORE TRIBUNAL BY OTHER DOCTORS AND THE REVENUE. THE CO-ORDINATE BENCH OF TRIBUNAL VIDE ORDER DATED 18.1 0.2013 HAD DECIDED THE ISSUE BY HOLDING AS UNDER:- 8.13 NEXT POINT. IT IS A UNIVERSAL LAW THAT THE 'SUSPICION HOWSOEVER STRONG CANNOT TAKE THE PLACE OF EVIDENCE'. AT BEST, IT CAN ONLY LOAD T O INVESTIGATION. NO PERSON CAN BE PUNISHED MERELY ON THE BASIS OF A DOUBT, BUT SIDE B Y SIDE, MUST NOT BE SPARED ON THE BASIS OF UNFAVORABLE EVIDENCE. SO THE PROCEDURE IS TH AT A MISTRUST LEADS TO INVESTIGATION AND AN INVESTIGATION LEADS TO COLLECTION OF EVIDE NCE. THERE ARE SEVERAL DECISIONS IN THE PAST PRONOUNCED BY THE HON'BLE APEX COURT WHEREIN A GENERAL RULE IS FRAMED THAT ALTHOUGH THE ITO IS NOT FETTERED BY THE TECHNICAL R ULE OF EVIDENCE, BUT ITO IS NOT ENTITLED TO MAKE A PURE GUESS, HOWEVER, REQUIRED TO MAKE AN ASSESSMENT WITHOUT REFERENCE TO ANY EVIDENCE. THERE MUST BE SOMETHING MORE THAN BARE SU SPICION. IN THE PRESENT APPEAL A FUNDAMENTAL QUESTION IS THAT WHETHER THERE WAS SUFF ICIENT CLINCHING EVIDENCE UNEARTHED BY THE REVENUE DEPARTMENT CONSEQUENT UPON THE SEARC H TO MAKE A FIRM BELIEF THAT IN FACT THERE WAS THE EXISTENCE OF UNACCOUNTED INVESTMENT I N THE PURCHASE OF LAND. SIDE BY SIDE A SECOND QUESTION THEREFORE ARISES THAT WHETHER THE I MPUGNED ADDITION WAS IN THE NATURE OF SUSPICION ONLY. WE HAVE CAREFULLY EXAMINED BO TH THESE QUESTIONS AND THEN ON CRITICAL ANALYSIS OF THE EVIDENCES AND UNDER THE TO TALITY OF THE CIRCUMSTANCES, WE HEREBY HOLD THAT THOSE WERE NOT EVEN THE INCRIMINATING MAT ERIAL BUT SIMPLY COMPUTER GENERATED PROJECTION- SHEETS, THEREFORE, HARD TO SAY, SYNONYM OUS TO CLINCHING MATERIAL EVIDENCE DEPICTING CASH TRANSACTION, HENCE ERRONEOUSLY SUSPE CTED BY THE REVENUE DEPARTMENT. WE HEREBY HOLD THAT THERE WAS NO EVIDENCE IN POSSESSIO N OF THE REVENUE DEPARTMENT TO HOLD THAT THE ASSESSEE HAD IN FACT MADE AN UNACCOUNTED I NVESTMENT TOWARDS THE PURCHASE OF THE PROPERTY. ITA NO. 614/ AHD/2011 . A.Y. 2008-0 9 5 6. IT IS THUS SEEN THAT THE SIMILAR ADDITIONS RESULTIN G OUT OF THE SAME SEARCH ACTION MADE IN THE CASE OF OTHER DOCTORS, HAS BEEN DELETED BY THE CO-ORDINATE BENCH OF TRIBUNAL. BEFORE US, REVENUE HAS NOT POIN TED TO ANY CONTRARY FACTS, NOR HAS POINTED TO ANY DISTINGUISHING FEATUR E IN THE PRESENT CASE TO THAT OF IT(SS) A NO. 604/AHD/2011 AND ORS. (SUPRA) NOR H AS POINTED OUT ANY DISTINGUISHING FEATURE IN THE CASES. IN VIEW OF THE AFORESAID FACTS AND RELYING ON THE DECISION OF THE CO-ORDINATE BENCH AND FOR SI MILAR REASONS WE ARE OF THE VIEW THAT, NO ADDITION ON ACCOUNT OF UNACCOUNTE D INVESTMENT IS CALLED FOR IN THE PRESENT CASE. WE THUS DIRECT ITS DELETION. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 12- 02 - 2016. SD/- SD/- (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD