The DCIT, Central Circle-1, Baroda V. Smt. Varshaben S. Patel, Baroda

ITSSA 624/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0965 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: NIKITA BRAHMBHATT
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER IT(SS)A / CO NO. AY APPELLANT RESPONDENT IT(SS)A.623 & 624/AHD/2011 2007-08 2008-09 DEPUTY COMMISSIONER OF INCOME TAX, CENTRALKCIRCLE-1, BARODA. SMT. VARSHABEN S. PATEL, 15, PARISHRAM SOCIETY IT(SS)A.NO.5/ AHD/2012 2009-10 REVENUE ASSESSEE C.O.17/AHD/ 2012 2007-08 ASSESSEE REVENUE C.O.18/AHD/ 2012 2008-09 ASSESSEE REVENUE BY REVENUE : SHRI R.I. PATEL, CIT (D.R.) BY ASSESSEE : NIKITA BRAHMBHATT, A.R. / DATE OF HEARING : 11/08/2015 / DATE OF PRONOUNCEMENT: 20/08/2015 / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: IN THIS CASE TWO APPEALS ARE FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS)-IV, AHMEDABAD DATED 2-9-2011 FOR ASSESSM ENT YEARS 2007- 08, 2008-09 AND 2009-10 RESPECTIVELY. 2. AT THE TIME OF HEARING BEFORE US IT WAS POINTED OUT BY THE LD. COUNSEL THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT IN THE CASE OF CO-OWNERS OF THE PROPERTY VIZ. SHRI KRU PESH PATEL. SHRI IT(SS)A NO.623,624/AHD/2011 & IT( SS)5/12. D CIT VS. VARSHA PATEL FOR AY 2007-08, 2008-0 9, 2009-10 C. O.NO.17 & 18/AHD/2012. 2 KRUPESH PATEL VIDE ITA NO.594/AHD/2011 ORDER DATED 29-6-2012. SHE POINTED OUT THAT DURING THE COURSE OF SEARCH AT THE BUSINESS PREMISES OF SHRI KRUPESH PATEL, ONE LOOSE PAPER WAS FOUND IN WHICH THERE WERE BILLS OF CASH RECEIPT OF RS.524.17 LACS. IN HIS STA TEMENT SHRI KRUPESH PATEL ADMITTED THAT SUCH RECEIPTS WERE PART OF THE SALE CONSIDERATION OF LAND IN AMPAD. HE ADMITTED THAT THE ABOVE RECEIPT W AS OVER AND ABOVE THE SALE CONSIDERATION RECEIVED BY CHEQUE. S INCE THE LAND AT AMPAD WAS OWNED BY THE 3 PARTNERS THE DISCLOSURE OF RS.524.17 LACS WAS MADE IN ASSESSMENT YEAR 2009-10 IN THE HANDS OF THE FOLLOWING ASSESSEES: SR.NO. NAME INCOME ADMITTED RS. 1. SHRI KRUPESH PATEL. 1,74,72,333 2. SHRI NAVIN PATEL. 1,74,72,333 3. SMT.VARSHA PATEL 1,74,72,334 3. ASSESSING OFFICER WAS OF THE OPINION THAT SINCE THE CASH RECEIVED WAS DURING THE F.Y. RELEVANT TO A.Y. 2007-08 & 2008 -09, HE ASSESSED THE UNDISCLOSED RECEIPT IN A.Y. 2007-08 AND 2008-09: SR.NO. NAME A.Y.2007-08 RS. A.Y.2008-09 RS. TOTAL INCOME RS. 1 SHRI KRUPESH PATEL. 1,46,66,667 28,05,666 1,74,7 2,333 2 SHRI NAVIN PATEL 1,46,66,667 28,05,666 1,74,72,3 33 3 SMT. VARSHA PATEL 1,46,66,666 28,05,668 1,74,72, 334 4. ALL THE ABOVE 3 ASSESSEES HAVE DULY DISCLOSED IN COME OF RS.1,74,72,334/- IN A.Y. 2009-10 AND THE ASSESSING OFFICER IN THE ORDER PASSED U/S. 143(3) HAD ACCEPTED THE SAME. SHE STATE D AGAINST THE IT(SS)A NO.623,624/AHD/2011 & IT( SS)5/12. D CIT VS. VARSHA PATEL FOR AY 2007-08, 2008-0 9, 2009-10 C. O.NO.17 & 18/AHD/2012. 3 ADDITION MADE BY THE ASSESSING OFFICER IN A.Y. 200 7-08 & 2008-09, ASSESSEE FILED APPEAL BEFORE THE CIT (A) WHO DELETE D THE ADDITION. 5. THE REVENUE AGGRIEVED WITH THE ORDER OF CIT (A), IS NOW IN APPEAL BEFORE ITAT VIDE ITA 623 & 624/AHD/2012. SHE STATED THAT SIMILARLY IN THE CASE OF ANOTHER CO-OWNER SHRI KRUP ESH PATEL, CIT (A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER FOR A.Y.2007-08, 2008-09 AND THE ITAT VIDE ITS ORDER DATED 29-6-201 2 IN ITA NO.594/AHD/2011 UPHELD THE ORDER OF THE CIT (A) AND DISMISSED THE APPEAL FILED BY THE REVENUE. COPY OF THE ORDER OF THE ITAT IS PLACED BEFORE US. 6. ON THE OTHER HAND, THE LD. D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT THIS ISSUE IS ALREADY CONSI DERED BY THE ITAT IN THE CASE OF THE CO-OWNER WHEREIN THE ITAT UPHELD TH E ORDER OF THE CIT (A) WITH THE FOLLOWING FINDING. 17. WE HAVE EXAMINED THE FACTS OF THE CASE AND THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE COMPILATI ON PLACED ON RECORD. A DOCUMENT WAS SEIZED WHICH HAS INDICATED A CASH RECEIPT OF RS.524.17 LACS WHICH WAS STATED TO BE IN RESPECT OF TRANSFER OF AMPAD LAND. THE TRANSACTIONS WHICH WERE FOUND RECOR DED IN THE SAID SEIZED DOCUMENT HAVE MENTIONED THE NAME OF ONE MR. KANUBHAI PATEL. THE A.O. HAS ADDED THE AMOUNT WHICH WAS ALLEGED TO BE ASSESSED FOR A.Y. 2007-08 AND PART OF IT, RESPECTIVELY FOR A.Y. 2008-09. BUT ONE OF THE FACT WHICH HAS A DIRECT ADVERSE IMPACT ON THE STAND TAKEN BY THE A.O . WAS THAT IN IT(SS)A NO.623,624/AHD/2011 & IT( SS)5/12. D CIT VS. VARSHA PATEL FOR AY 2007-08, 2008-0 9, 2009-10 C. O.NO.17 & 18/AHD/2012. 4 A STATEMENT RECORDED U./S.132(4) OF I.T. ACT DATED 12-02-1999 I.E. DURING THE SEARCH OPERATION, CLARIFIED THE POS ITION OF CAPITAL GAIN WHICH WAS DISCLOSED IN A.Y. 2009-10. AS FAR AS THE QUANTUM OF THE AMOUNT IS CONCERNED, THERE WAS NO DISPUTE. T HE ONLY DISPUTE IS THUS ABOUT THE YEAR OF TAXABILITY. THE A DMITTED FACTUAL POSITION IS THAT THE ENTIRE AMOUNT OF RS.524.17 LAC S WAS SHOWN AS UNDISCLOSED INCOME IN A.Y. 2009-10. HOWEVER, THE A. O. WAS NOT SATISFIED AND TAXED THE SAME IN TWO ASSESSMENT YEAR S PROPORTIONATELY, I.E. AYS. 2007-08 & 2008-09. THE S ALIENT FEATURES FAVOURING ASSESSEE, SUBMITTED BEFORE US, ARE AS UND ER:- A. THE LAND UNDER CONSIDERATION BELONGED TO SHRI KRUPESHBHAI N. PATEL,SHRI NAVINBHAI N. PATEL AND SMT. VARSHABEN S . PATEL. B. THE LAND WAS PURCHASED IN A.Y. 2007-08 AND WAS SOLD IN A.Y. 2009-10.THE APPELLANT HAD FILED THE COPIES OF PURCHASE DEED AND ALSO THE SALE DEEDS BEFORE THE A.O. FOR EFFECTI NG THE PURCHASES AND SALES. NO DISCREPANCY WAS FOUND BY TH E A.O. IN THESE DOCUMENTS. C. THE LAND WAS SOLD AS AGRICULTURAL LAND AND THE RESULTANT GAIN WAS OFFERED TO TAX IN A.Y. 2009-10. D. SINCE THE ACTUAL EXECUTION OF THE SALE DEED AND PARTING OF THE POSSESSION OF LAND TOOK PLACE DURING A.Y. 2009- 10, THE SAME HAS BEEN TREATED AS SALES IN A.Y. 2009-10 AND THE G AINS ARISING THEREFROM WERE TREATED AS INCOME FOR A.Y. 2009-10. E. REGARDING THE TRANSACTION MADE WITH MR. KANUBHA I PATEL, IT IS SUBMITTED THAT MR. KANUBHAI PATEL FROM SURAT HAD APPROACHED THE APPELLANT IN A PROPERTY FAIR AND HAD EXPRESSED HIS WILLINGNESS TO PURCHASE THE AFORESAID AM[PAD LAND AND ACCORDING LY HAD PAID AN AMOUNT OF RS.524.17 LACS IN CASH ON VARIOUS DAT ES. ` F. MR. KANUBHAI PATEL WAS NOT CLOSELY KNOWN TO TH E APPELLANT. AS MR. KANUBHAI PATEL FAILED TO CONVERT THE LAND FR OM AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND THE TRANSACTION WAS CANCELLED AND THE AMOUNT RECEIVED FROM HIM WAS RETURNED BACK. G. IT MAY BE MENTIONED THAT SEIZED MATERIAL PAGE-1 OF ANNEXURE A-1 ITSELF SHOWS THAT THE AMOUNT HAD BEEN PAID BACK ALONG WITH INTEREST OF RS.18.00 LACS (REFER PAGE-77 ). H. THE FACT THAT THE AMOUNT WAS PAID BACK IS DULY REFLECTED IN THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEAR CH BY THE IT(SS)A NO.623,624/AHD/2011 & IT( SS)5/12. D CIT VS. VARSHA PATEL FOR AY 2007-08, 2008-0 9, 2009-10 C. O.NO.17 & 18/AHD/2012. 5 DEPARTMENT. THEREFORE, IT IS PROVED BEYOND DOUBT TH AT THE AMOUNT WAS ACTUALLY PAID BACK. I. AS PER LAW SINCE THE TRANSACTION DID NOT MATERIALIZ E THE SAME CANNOT BE TREATED AS INCOME OF THE APPELLANT. HOWEVER, TO COVER UP THE DISCREPANCY THE APPELLANT HAD DECLARED THE SAUID SUM AS INCOME. J. THE ADVANCES FROM MR. KANUBHAI PATEL WERE RECEIV ED IN A.Y. 2007-08 AND A.Y. 2008-09 WHEREAS THE MONEY WAS REFU NDED TO HIM IN THE SUBSEQUENT YEAR. 8. AFTER CONSIDERING THE FACTS OF THE CASE AND THE ARGUMENTS OF BOTH THE SIDES WE ENTIRELY AGREE WITH THE ORDER OF THE L D. CIT (A). ADMITTEDLY THE CASH AMOUNT WAS RECEIVED FOR THE TRANSFER OF TH E LAND WHICH TOOK PLACE DURING THE ACCOUNTING YEAR RELEVANT TO A.Y. 2 009-10. THEREFORE, THE RECEIPT OF THE MONEY IN THE EARLIER YEAR COULD NOT BE OF MUCH RELEVANCE. MOREOVER, THE ITAT HAS ALREADY NOTED THA T THE INCOME HAS ALREADY BEEN OFFERED BY THE ASSESSEE IN A.Y. 2009-1 0 WHICH HAS BEEN ASSESSED BY THE REVENUE IN THE ORDER PASSED U/S. 14 3(3) THE SAME INCOME CANNOT BE TAXED TWICE. IN VIEW OF THE ABOVE, WE RESPECTFULLY FOLLOWING THE ABOVE DECISION OF ITAT GIVEN IN THE C ASE OF CO-OWNER OF THE SAME LAND, UPHELD THE ORDER OF THE LD. CIT (A) AND DISMISSED THE APPEAL FILED BY THE REVENUE VIDE ITA NO.623 AND 624 /AHD/2011. 9. SO FAR AS ASSESSEES CROSS OBJECTION NOS.17 & 18 /AHD/2012 FOR A.Y. 2007-08 & 2008-0, LD. COUNSEL STATED THAT THES E ARE IN SUPPORT OF THE ORDER OF LD. CIT (A) AND THEREFORE MAY BE TREAT ED AS INFRUCTUOUS. 10. SO FAR AS THE ASSESSEES APPEAL VIDE NO.ITA 5/A HD/2012 IS CONCERNED IT IS STATED THAT IF THE REVENUES APPEAL NO.ITA 623 & 624/AHD/2011 ARE DISMISSED THEN THE ASSESSEES APPE AL FOR A.Y. 2009- 10 WOULD BECOME INFRUCTUOUS BECAUSE THE ONLY CONT ENTION IN THIS APPEAL IS THAT IF THE CASH RECEIVED BY THE ASSESSEE IS ASSESSED IN A.Y. IT(SS)A NO.623,624/AHD/2011 & IT( SS)5/12. D CIT VS. VARSHA PATEL FOR AY 2007-08, 2008-0 9, 2009-10 C. O.NO.17 & 18/AHD/2012. 6 2007-08 AND 2008-09 ON RECEIPT BASIS THE SAME RECEI PT CANNOT BE CONSIDERED AGAIN IN A.Y. 2009-10. SINCE WE DISMISSE D REVENUES APPEAL FOR A.Y. 2007-08 AND 2008-09, THE APPEAL OF THE ASS ESSEE FOR A.Y. 2009-10 IS TREATED AS INFRUCTUOUS AND DISMISSED AS SUCH. 11. IN THE RESULT, APPEAL FILED BY THE REVENUE AND THE ASSESSEE ARE DISMISSED AND BOTH THE C.O. FURNISHED BY THE ASSESS EE ARE ALSO DISMISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH AUGUST, 2015 AT AHMEDABAD. /- /- SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 20 /08/2015 PATKI ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $%&'' , , / D R, ITAT, AHMEDABAD 6. &,-. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD