The ITO, Ward-5(2), Baroda V. Shri Babul Harivadan Parikh, Baroda

ITSSA 72/AHD/2010

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8056 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-06-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 03-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: NONEWRITTEN SUBMISSION
• Keywords: Document seized; Revised return; Documents seized

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , ! '#, $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T(SS).A. NO.72/AHD/2010 ( ! ) ! ) ! ) ! ) / / / / ASSESSMENT YEAR : 2001-02) THE ITO WARD-5(2) BARODA ! ! ! ! / VS. SHRI BABUL HARIVADAN PARIKH 3, KALYAN NAGAR KARELIBAUG BARODA * $% ./+, ./ PAN/GIR NO. : ACAPP 9279 Q ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 $ / APPELLANT BY : SHRI B.L.YADAV, SR. D.R. ./*- 1 0 $ / RESPONDENT BY : -NONE-(WRITTEN SUBMISSION) !2 1 % / / / / DATE OF HEARING : 04/06/2012 34) 1 % / DATE OF PRONOUNCEMENT : 25/06/2012 $5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FR OM THE ORDER OF LEARNED CIT(APPEALS)-V, BARODA DATED 27.11.2009. THE ONLY GRIEVANCE OF THE REVENUE IS ABOUT DELETION OF PENALTY OF RS.2 9,25,280/- LEVIED U/S.271(1)(C) OF THE I.T.ACT. 2. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE RESPONDENT-ASSESSEE, HOWEVER, A LETTER HAS BEEN SUB MITTED THROUGH WHICH IT WAS INTIMATED THAT VIDE AN ORDER BY ITAT D BEN CH AHMEDABAD IN IT(SS)A NO.72/A HD/2010 THE ITO VS. SHRI BABUL HARIVADAN PARIKH ASST.YEAR - 2001-02 - 2 - ASSESSEES OWN CASE IN ITA NO.280/AHD/2008 (A.Y. 20 01-02) DATED 01/07/2011, THE IMPUGNED QUANTUM ADDITION HAS ALREA DY BEEN DELETED. 3. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.B.L.YA DAV APPEARED AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. FACTS IN BRIEF AS EMERGED FROM THE PENALTY ORD ER PASSED U/S.271(1)(C) OF THE I.T.ACT DATED 17.3.2008 AND THE ASSESSMENT O RDER PASSED U/S.153-C R.W.S.143(3) OF THE I.T.ACT DATED 19.12.2006 ARE TH AT A SEARCH U/S.132 WAS CARRIED OUT ON 4.3.2005. CERTAIN DOCUMENTS WERE SE IZED FROM THE PREMISES OF M/S.OM SHIVAM CORPORATION WHICH WERE S TATED TO BE PERTAINED TO THE ASSESSEE. THE ASSESSEE IS STATED TO BE ONE OF THE CONFIRMING PARTIES IN RESPECT OF A SALE OF LAND TO M/S.OM SHIVAM CORPORATION. AS PER THE SEIZED DOCUMENT, THE ASSE SSEE HAS RECEIVED A SUM OF RS.1,73,30,000/- (RS.73.80 LACS FOR RELINQU ISHMENT OF HIS RIGHT ON THE LAND AND AN AMOUNT OF RS.43.50 LACS FOR ROAD, E TC. THROUGH POST-DATED CHEQUES). OUT OF THE ABOVE AMOUNT, ASSESSEE HAS ADMITTED THAT AN AMOUNT OF RS.86,37,000/- ON ACCOUNT OF LAND WAS REC EIVED AND THAT TOO WAS DISCLOSED VIDE A REVISED RETURN OF INCOME. H OWEVER, IT WAS DENIED THAT A AMOUNT OF RS.29 LACS WAS RECEIVED FROM M/S.O M SHIVAM CORPORATION. THERE WERE TO CHEQUES OF RS.16,43,000 /- AND RS.14,50,000/- WHICH WERE SEIZED FROM THE PREMISES OF M/S.OM SHIVAM CORPORATION. THE TOTAL OF THE TWO, I.E. RS.30,93,0 00/- WAS ADDED IN THE HANDS OF THE ASSESSEE. IT(SS)A NO.72/A HD/2010 THE ITO VS. SHRI BABUL HARIVADAN PARIKH ASST.YEAR - 2001-02 - 3 - 5. WHEN THE MATTER WAS CARRIED BEFORE THE TRIBUNAL, VIDE PARA-5, THE ADDITION WAS DELETED; RELEVANT PORTION IS REPRODUCE D BELOW:- 5.. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE NOTED ABOVE, WE ARE OF THE VIEW THAT ADDITION IS MADE AGA INST THE ASSESSEE MERELY ON PRESUMPTION OR SUSPICION EXPRESS ED BY THE AO REGARDING SOME FACTS WHICH ARE NOT IN EXISTENCE. T HE LAW IS SETTLED THAT SUSPICION HOWSOEVER MAY BE GRAVE BUT IT CANNOT TAKE THE PLACE OF LEGAL PROOF. FOR MAKING ADDITION U/S.153C OF TH E IT ACT, THE AO SHALL HAVE TO PROVE THAT THE SEIZED DOCUMENTS OR TH E UNDISCLOSED INCOME BELONGS TO THE ASSESSEE. IN THE ABSENCE OF ANY COGENT OR RELIABLE EVIDENCE AVAILABLE ON RECORD REGARDING ALL EGED RECEIPT OF CASH BY THE ASSESSEE, THE AUTHORITIES BELOW WERE UN JUSTIFIED IN MAKING AND CONFIRMING THE ADDITION. IN THE ABSENCE OF ANY EVIDENCE INCRIMINATING IN NATURE AGAINST THE ASSESS EE, WE DO NOT JUSTIFY THE ADDITION. WE ACCORDINGLY, SET ASIDE TH E ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.30, 93,000/-. IN THE RESULT, GROUNDS NO.2 AND 3 OF THE APPEAL OF THE ASS ESSEE ARE ALLOWED. 6. SINCE THE RESPECTED CO-ORDINATE BENCH HAS ALREAD Y DELETED THE IMPUGNED ADDITION, THEREFORE IN CONSEQUENCE THEREOF NO PENALTY U/S.271(1)(C) OF THE I.T.ACT SHALL SURVIVE ANY MORE . IN VIEW OF THIS, NO INTERFERENCE IS REQUIRED IN RESPECT OF THE DELETION OF THE PENALTY. GROUND OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS D ISMISSED. SD/- SD/- ( ! '# ) ( ) $% ( ANIL CHATURVEDI ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 06 /2012 6..!, .!../ T.C. NAIR, SR. PS IT(SS)A NO.72/A HD/2010 THE ITO VS. SHRI BABUL HARIVADAN PARIKH ASST.YEAR - 2001-02 - 4 - $5 1 .7 8$7) $5 1 .7 8$7) $5 1 .7 8$7) $5 1 .7 8$7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-V, BARODA 5. 7<= .! , , / DR, ITAT, AHMEDABAD 6. = >2 / GUARD FILE. $5! $5! $5! $5! / BY ORDER, /7 . //TRUE COPY// ? ?? ?/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION4.6.12 (DICTATION-PAD 6 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 5.6.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S26.6.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26.6.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER