The Deputy Commissioner of Income Tax, Central Circle, Belagavi., Belagavi V. Sangeeta Suresh Chindak., Belagavi

ITSSA 76/PAN/2016

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2751 (ITAT-PANAJI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-11-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 12-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAVIRAJ Y V
• Assessee Lawyers: ATUL U ANVEKAR
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 142(1); 133A; 153A; 131; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER & SHRI RAMIT KOCHAR , HONBLE ACCOUNTANT MEMBER IT (SS) A NO. 75 & 76 /P A N/201 6 (ASSESSEMENT YEAR: 2009 - 10 & 2011 12 ) DCIT, CENTRAL CIRCLE BELAGAVI V. SMT SANGEETA SURESH CHINDAK, SHIVGANGA, SAMBHAJI GALLI, JOSHIM ALA, KHASBAG, BELAGAVI, KARNATAKA PAN NO. AFIPC 1712 Q (APPELLANT) (RESPONDENT) IT (SS) A NO. 77 /PAN/2016 (ASST. YEAR: 2011 12) DCIT, CENTRAL CIRCLE BELAGAVI V. SMT JYOTI RAMESH CHINDAK, SHIVGANGA, SAMBHAJI GALLI, JOSHIM ALA, KHASBAG, BELAGAVI, KARNATAKA PAN NO. AFIPC 1713 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ATUL U ANVEKAR CA . DEPARTMENT BY : SHRI RAVIRAJ Y.V - DR DATE OF HEARING : 2 4 / 11 /201 6 . DATE OF PRONOUNCEMENT : 2 4 / 11 /201 6 . O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER TH ESE ARE THE THREE APPEALS FILED BY THE REVENUE DIRECTED AGAINST THE SEPARATE APPELLATE O RDE RS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), PANAJI - 2 (CIT(A) FOR SHORT) , ALL DATED 30 /06 /2016 , FOR THE 2 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 A SSESSMENT Y EAR 2009 - 10, 2011 12 AND 2011 12 RESPECTIVELY , THE APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A) ARISING FROM THE ASSESSMENT ORDER S ALL DATED 31.01.2014 P A SSED BY THE L D. ASSESSING OFFICER (IN SHORT THE AO ) U/S 14 4 R.W.S. 153C OF THE INCOME - T AX ACT, 1961 (HEREIN AFTER CALLED T HE ACT). FIRST WE SHALL TAKE THE REVENUE APPE AL IN IT(SS)A NO.75/PAN/2016 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN IT (SS)A NO .75/PAN /2016 FOR THE ASSESSMENT YEAR 2009 - 2010 IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, PANAJI (HEREINAFTER CALLED THE TRIBUNAL) : - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A ) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT PRODUCE ANY INFORMATION NOR OBTAIN COPIES OF THE SEIZED MATERIAL NOR FILED RETURNS IN RESPONSE TO NOTICE UNDER SECTION 153C OF THE ACT, DURING THE ASSESSMENT PROCEEDINGS AND ASSESSMENT WAS T HEREFORE COMPLETED UNDER SECTION 144 OF THE ACT ON 31.01.2014? 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE, STATEMENT OF ACCOUNTS BASED ON BOOKS OF ACCOUNT , PREPARED AFTER THE ASSESSMENT PROCEEDINGS ALTHOUGH NO BOOKS WERE FOUND AT THE TIME OF SURVEY/ SEARCH? 3) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE UNDER RULE 46A BEING BOOKS WHICH ARE NOT CONTEMPORANEOUS DOCUMENTS? 4) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS 8,25, 690 / - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN IMMOVABLE PROPERTY ACCEPTING THE FINANCIAL STATEMENTS VIZ., P&L ACCOUNT AND BALANCE SHEET WHICH WERE PREPARED AND AUDITED IN THE MONTH OF MAY 3 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 2015 AFTER PASSING OF EX - PARTE ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT?. 5) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS 24,95,684/ - ACCEPTI NG THE SOURCE OF CASH/CHEQUE DEPOSITS INTO THE BANK ACCOUNT WITHOUT EXAMINING THE CREDIT WORTHINESS OF THE PERSONS FROM WHOM THE ASSESSEE CLAIMED TO HAVE RECEIVED THE MONEY MERELY BECAUSE THE SAME IS CERTIFIED BY THE CHARTERED ACCOUNTANT? 0 6) ANY OTHER GROUND THAT MAY BE TAKEN UP AT THE TIME OF HEARING . 3 . THERE WAS A SURVEY CONDUCTED BY THE REVENUE U /S . 133A OF THE ACT AT THE B USINESS CUM RESIDENTIAL PREMISES OF SHRI SURESH MOTILAL CHIND A K AT SHIVAGANGA BUILDING, JOSHIMALA, KHASBAG, BELAGUM AND AT THE OFFICE OF SHIVAGANGA MULTI PURPOSE CO - OPERATIVE SOCIETY LTD AT NO.2444 KACHERI GALLI SHAHAPUR , BELGAUM ON 20 - 09 - 2011, WHEREIN CAS H OF RS.34,44,000/ - WAS FOUND AT SHIVAGANGA BUILDING JOSHIMALA , KHASBAG, BELGAUM. IT WAS OBSERVED THAT NO BOOKS OF ACCOUNT S WERE MAINTAINED . WHEN CONFRONTED , SHRI SURESH MOTILAL CHINDAK FAILED TO EXPLAIN THE SOURCE OF THE CASH SATISFACTORILY AND HENCE THE SURVEY WAS CONVERTED BY REVENUE INTO SEARCH U/S 132 OF THE AC T. SINCE DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH C ONDUCTED U/S 132 OF THE ACT IN THE CASE OF SHRI SURESH MOTILAL C HINDAK , N OTICES U/S.153C OF THE ACT WAS ISSUED TO THE ASSESSEE BY THE REVENUE WHICH WAS SERVED ON THE SAME DAY , ASKING THE ASSESSEE TO FILE THE RETURN OF INCOME U/S.153C OF THE ACT FOR THE ASSESSMENT YEAR 2009 - 10 , WITHIN 30 DAYS OF THE SERVICE OF THE NOTICE. HOWEVER , THE ASSESSEE FAILED TO FILE THE RETURN OF INCOME U/S.153C OF THE ACT . S EVERAL NOTICES WERE ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE U/S.142(1 ) AND S UM MONS WERE ALSO ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE U/S 131 OF THE ACT , AS UNDER: 4 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 SL. NO NOTICE DETAILS REMARKS 1. NOTICES U/S.153 C FOR THE A.Y.2006 - 07 TO 2011 - 12 I SSUED ON SERVED ON 13.09.2012 REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN 30 DAYS NO COMPLIANCE 2. NOTICES U/S 142(1) FOR THE A.Y. 2006 - 07 TO 2011 - 12 ISSUED IN 13.02.2013 AND SERVED ON 14.02.2013 REQUIRING THE ASS ESS E E TO FILE THE DETAILS BY 21.03.2013 NO COMPLIANCE 3. NOTICES U/S.142(1) FOR THE A.Y. 2012 - 13 ISSUED AND SERVED ON 03.07.2013 REQUIRING THE ASSESSEE TO FILE THE RETURNS BY 18.07.2013 NO COMPLIANCE 4. NOTICES U/S. 142(1), DATED 31.07.2013 CALLING FOR DETAILS NO COMPLIA NCE 5. SUMMONS U/S 131 DATED 04.10.2013 DIRECTING TO APPEAR PERSONALLY BY 09.10.2013 NO COMPLIANCE 6. NOTICE U/S.142(1) DATE 09.12.2013 REQUIRING THE ASSESSEE TO SUBMIT THE DETAILS BY 19.12.2013 THE ASSESSEE SUBMITTED A LETTER REQUESTING FOR ADJOURNMENT OF HEARING. HOWEVER TILL DATE THERE HAS BEEN NO COMPLIANCE FROM THE ASSSESSEES SIDE. THE ASSESSEE DID NOT COMPLY WITH THE AFORE - STATED NOTICES / SUMMONS ISSUED BY AO AND DID NOT COOPERATED WITH THE AO. THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S 153C R.W.S. 144 OF THE 5 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 ACT VIDE ASSESSMENT ORDER DATED 31/01 /2014 , WHICH WAS CHAL LENGED BY THE ASSESSEE BEFORE THE LD.CIT(A) BY FILING FIRST APPEAL AND THE ASSESSEE GOT RELIEF FROM THE LD. CIT(A) VIDE APPELLATE ORDERS DATED 30/06/2016. 4 . AGGRIEVED BY THE APPELLATE ORDERS DATED 30 - 06 - 2016 PASSED BY LEARNED CIT(A), THE REVENUE HAS COME IN APPEAL BEFORE THE TRIBUNAL. THE LD.DR SUBMITTED THAT ASSESSEE WAS PART OF THE GROUP OF SHRI SURESH MOTILAL CHIND A K WHO WA S COVERED UNDER THE SEARCH AND SEIZURE OPERATIONS 20/09/201 1 U/S.132 OF THE ACT . IT WA S FURTHER SUBMITTED BY THE LD.DR THAT TH E ASSESSEE HAD NOT PARTICIPATED IN THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER CONDUCTED U/S 153 C OF THE ACT AND ASSESSEE DID NOT FILED RETURN OF INCOME U/S.153 C OF THE ACT AND DID NOT COOPERATED WITH THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS THE SUBMISSION OF THE LD.DR THAT ASSESSEE HAS PURCHASED AND SOLD SEVERAL PROPERTIES AND THERE WAS A SURVEY U/S.133 A OF THE ACT CONDUCTED BY REVENUE ON THE BUSINESS AND RESIDENTIAL PREMISES OF SHRI SURESH MOTILAL CHIND A K AND IN THE COU RS E OF THE SURVEY , CAS H OF RS.34,44,000/ - WAS FOUND, WHERE IN IT WAS FOUND THAT NO BOOKS OF ACCOUNTS WERE MAINTAINED AND SOURCE OF CAS H WAS NOT SATISFACTORILY EXPLAINED . SURVEY U/S 133A OF THE ACT WAS CONVERTED BY THE REVENUE INTO SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE ACT AND AS SEVERAL INCRIMINATING MATERIAL WERE FOUND DURING THE COURSE OF SEARCH BELONGING TO THE ASSESSEE , ACTION U/S.153C OF THE ACT WAS CONTEMPLATED BY REVENUE BY ISSUING NOTICE U/S 153C OF THE ACT ASKING THE ASSESSEE TO FILE RETURN OF INCOME U/S 153C OF THE ACT . THE ASSESSEE DID NOT RESPOND ED AND COOPERATED WITH RE VENUE TO THE ISSUING OF NOTICE U/S 153C OF THE ACT AND NO RETURN OF INCOME WAS FILED BY THE ASSESSEE . THE LD.DR BROUGHT TO OUR NOTICE THAT FOLLOWING NOTICES/ SUMMONS WERE ISSUED BY AO AND THE ASSESSEE DID NOT COOPERATED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS : - 6 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 SL. NO . NOTICE DETAILS REMARKS 1. NOTICES U/S.153 C FOR THE A.Y.2006 - 07 TO 2011 - 12 ISSUED ON SERVED ON 13.09.2012 REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN 30 DAYS NO COMPLIANCE 2. NOTICES U/S 142(1) FOR THE A.Y. 2006 - 07 TO 2011 - 12 ISSUED IN 13.02.2013 AND SERVED ON 14.02.2013 REQUIRING THE ASSESS E E TO FILE THE DETAILS BY 21.03.2013 NO COMPLIANCE 3. NOTICES U/S.142(1) FOR THE A.Y. 2012 - 13 ISSUED AND SERVED ON 03.07.2013 REQUIRING THE ASSESSEE TO FILE THE RETURNS BY 18.07.2013 NO COMPLIANCE 4. NOTICES U/S. 142(1), DATED 31.07.2013 CALLING FOR DETAILS NO COMPLIANCE 5. SUMMONS U/S 131 DATED 04.10.2013 DIRECTING TO APPEAR PERSONALLY BY 09.10.2013 NO COMPLIANCE 6. NOTICE U/S.142(1) DATE 09.12.2013 REQUIRING THE ASSESSEE TO SUBMIT THE DETAILS BY 1 9.12.2013 THE ASSESSEE SUBMITTED A LETTER REQUESTING FOR ADJOURNMENT OF HEARING. HOWEVER TILL DATE THERE HAS BEEN NO COMPLIANCE FROM THE ASSSESSEES SIDE. IT WAS SUBMITTED BY LD.DR THAT THE ASSESSEE DID NOT COMPLY WITH AFORE - STATED NOTICES / SUMMONS ISSUED BY THE AO AND NO DETAILS WERE SUBMITTED 7 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 BEFORE THE AO. THE ASSESSEE DID NOT ALSO FILE RETURN OF INCOME U/S 153C OF THE ACT. SINCE, T HE A SSESSEE FAILED TO RESPOND TO SUMMON S U/S.131 OF THE ACT AND TO VARIOUS NOTICES ISSUED U/S.142(1) OF THE ACT AN D REMINDERS AS STATED ABOVE , AND HENCE THE ASSESSMENT WAS COMPLETED BY THE AO EX - PARTE U/S 1 53 C R.W.S. 144 OF THE ACT. THE LD.DR SUBMITTED THAT THE ASSESSEE PRODUCED CERTAIN EVIDENCES BEFORE THE LD.CIT(A) AS ADDITIONAL AND THE SAME HAD BEEN OBJECTED BY THE AO AS TO THE ADMISSION OF THE FRESH EVIDENCES , AND WITHOUT VERIFICATION THE LD.CIT(A) H AS GIVEN RELIEF TO THE ASSESSEE AND HENCE THE ORDER OF THE LD. CIT ( A ) IS LIABLE TO BE SET ASIDE ON THIS SHORT GROUND ITSELF . THE LD.DR ALSO SUBMITTED THAT LD. CIT(A) HAS ADMITTED THE EVIDENCES IN VIOLATION OF THE RULES 46 A OF THE INCOME - T AX RULE S 1962 AND NO REASONS HAS BEEN RECORDED BY LEARNED CIT(A) THAT WHY THE LD. CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE WHICH WERE ADMITTED IN CLEAR VIOLA TION OF RULE 46A OF THE INCOME - T AX RULE 1962. THE LD. AR ON THE OTHER HAND SUBMITTED THAT SIMILAR FACTS WERE THERE BEFORE THE TRIBUNAL IN THE CASE OF SHRI SURESH MOTILAL CHINDAK AND SHRI RAMESH MOTILAL CHINDAK WHO ARE BROTHER S AND PART OF THE SAME GROUP TO WHICH THESE ASSESSEE BELONGS, WHEREIN THE TRIBUNAL HAS IN IT(SS)A NO. 46 TO 51 / PAN /2016 FOR THE ASSESSMENT YEAR 2006 - 07 TO 2007 - 08 AND 2009 - 10 TO 2012 - 13 IN THE CASE OF SH. SURESH MOTILAL CHINDAK AND IN IT(SS) A NOS. 52 TO 53 / PAN/2016 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2011 - 12 IN THE CASE OF MR. RAMESH MOTILAL CHINDAK , VIDE COMMON ORDER S DATED 08/08/2016 H AS REMANDED THE MATER BACK TO THE FILE OF AO FOR DENOVO DETERMINATION OF THE ISSUE ON MERITS AND FURTHER DIRECTION HAS BEEN ISSUED BY THE TRIBUNAL TO BOTH THE SAID TAX - PAYERS NAMELY SH. SURESH MOTILAL CHINDAK AND SH. RAMESH MOTILAL CHINDAK TO PAY AN AMOUNT OF RS. O NE LAKH EACH TO THE INCOME TAX DEPARTMENT UNDER THE HEAD OTHERS FOR THE IR DEFECT IN NOT REPRESENTING THE CASE BEFORE THE AO, AND THE SAID AMOUNT SHALL NOT BE CLAIMED AS ADJUSTME N TS AGAINST ANY TAX LIABILITY , AND THE SAME SHALL BE 8 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 DEPOSITED WITHIN EIGHT DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THE LD.AR SUBMITTED THAT THE FACTS ARE IDENTICAL IN TH ESE INSTANT APPEALS BEFORE THE TRIBUNAL AND THE LD. AR CONCEDED AND ACCEPTED TO DEPOSIT AN AMOUNT OF RS. ONE LAKH WITH RESPECT TO EACH OF THE ASSESSEES WITH THE INCOME TAX DEPARTMENT UNDER THE HEAD OTHERS AND SUBMITTED THAT THE SAID AMOUNT SHALL NOT BE CLAIMED AS ADJUSTME NTS AGAINST ANY TAX LIABILITY AND IT WAS PRAYED BEFORE THE TRIBUNAL THAT SIMILAR VIEW MAY BE TAKEN IN THESE CASES BEFORE THE TRIBUNAL AND THE ISSUE MAY BE SET ASIDE AND RESTORED TO THE FILE OF THE AO FOR DE - NOVO DETERMINATION OF THE ISSUE ON MERITS AND SIMILAR DIRECTIONS MAY BE ISSUED TO MEET END OF JUSTICE AND FAIR PLAY . T HE LD. COUNSEL FOR THE A SSESSEE UNDERTOOK THAT THEY WILL FULLY COOPERATE WITH THE REVENUE TO ENABLE THE AO TO ADJUDICATE THE ISSUE D E - NOVO ON MERITS. 5 . WE HAVE CONSIDERED THE RIVA L CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE ASSESSEE IS PART OF THE GROUP OF SHRI SURESH MOTILAL CHIND A K WHO WAS SURVEYED U/S 133A OF THE ACT BY TH E REVENUE ON 20.09.2011 , AND CASH OF RS.34 ,44,000/ - WAS FOUND AND NO BOOKS OF ACCOUNTS WERE FOUND TO BE MAINTAINED. THE SAID OF SHRI SURESH MOTILAL CHINDAK FAILED TO EXPLAIN THE SOURCES OF CAS H FOUND DURING SURVEY, AND THE SURVEY U/S 133A OF THE ACT WAS CONVERTED BY REVENUE IN TO SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT . DURING THE SEARCH OPERATIONS, SEVERAL INCRIMINATING MATERIAL WERE FOUND BELONGING TO THE ASSESSEE . W E HAVE OBSERVED THAT THE N OTICES U/S.153C OF THE ACT WAS ISSUED TO THE ASSESSEE ON 13.09.2012 BY THE REVENUE WHICH WAS SERVED ON THE SAME DAY. THE ASSESSE E WAS REQUIRED TO FILE THE RETURN OF INCOME U/S 153C OF THE ACT FOR THE ASSESSMENT YEAR 2009 - 10 WITHIN 30 DAYS. THE ASSESSEE FAILED TO FILE THE RETURN OF INCOME U/S.153C OF THE ACT AND DID NOT COMPLY TO THE SEVERAL NOTICES ISSUED BY THE ASSESSING OFFICER U/S.142(1) OF THE ACT AND SUMMONS ISSUED U /S . 131 OF THE ACT AS PER THE DETAILS BELOW, WHICH ALL REMAINED UN - COMPLIED WITH AS UNDER: - 9 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 SL.NO. NOTICE DETAILS REMARKS 1. NOTICES U/S.153 C FOR THE A.Y.2006 - 07 TO 2011 - 12 ISSUED ON SERVED ON 13.09.2012 REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN 30 DAYS NO COMPLIANCE 2. NOTICES U/S 142(1) FOR THE A.Y. 2006 - 07 TO 2011 - 12 ISSUED IN 13.02.2013 AND SERVED ON 14.02.2013 REQUIRING THE ASSESSEE TO FILE THE DETAILS BY 21.03.2013 NO COMPLIANCE 3. NOTICES U/S.142(1) FOR THE A.Y. 2012 - 13 ISSUED AND SERVED ON 03.07.2013 REQUIRING THE ASSESSEE TO FILE THE RETURNS BY 18.07.2013 NO COMPLIANCE 4. NOTICES U/S. 142(1), DATED 31.07.2013 CALLING FOR DETAILS NO COMPLIANCE 5. SUMMONS U/S 131 DATED 04.10. 2013 DIRECTING TO APPEAR PERSONALLY BY 09.10.2013 NO COMPLIANCE 6. NOTICE U/S.142(1) DATE 09.12.2013 REQUIRING THE ASSESSEE TO SUBMIT THE DETAILS BY 19.12.2013 THE ASSESSEE SUBMITTED A LETTER REQUESTING FOR ADJOURNMENT OF HEARING. HOWEVER TILL DATE THERE HAS BEEN NO COMPLIANCE FROM THE ASSSESSEES SIDE. 10 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 DURING THE COURSE OF THE S EARCH OPERATIONS U/S.132 OF THE ACT SEVERAL INCRIMINATING M ATER I AL W ERE FOUND BELONG ING TO THE ASSESSEE AND THE AO FRAMED THE ASSESSMENT U/S.144 R.W. S. 153 C V IDE ASSESSMENT ORDER DATED 31.01 .2014. THE ASSESSEE PRODUCED THE EVIDENCE S BEFORE THE LD.CIT(A) WHICH WERE ADMITTED BY THE LD. CIT(A) , WHILE THE REVE NUE HAS OBJECTED TO THE ADMISSI ON OF THE ADDITIONAL EVIDENCES . THE LD.CIT(A ) ACCEPTED THE ADDITIONAL EVIDENCES WITHOUT VERIFICATIONS WHICH HAD REMAIN ED UNSUBSTANTIATED . WE HAVE OBSERVED THAT THE TRIBUNAL IN IT(SS) A NO. 46 TO 51/PAN/2016 IN THE CASE OF DCIT V. SURESH MOTILAL CHINDAK FOR ASSESSMENT YEAR 2006 - 07 TO 2007 - 08 AND 2009 - 10 TO 2012 - 13 AND ALSO IN IT(SS)A NO.52 TO 53 /PAN/2016 IN THE CASE OF DCIT V. RAMESH MOTILAL CHINDAK FOR THE ASSESSMENT YEAR 2007 - 08 AND 2011 - 12 , HAD VIDE COMMON ORDE R S DATED 08/08/2016 HAD SET ASIDE AND REMANDED THE MATTER TO THE FILE OF AO FOR DE - NOVO ADJUDICATION OF THE ISSUES ON MERITS , AND THE FACTS ARE SIMILAR IN THE INSTANT APPEALS BEFORE US AS WERE THERE IN THE CASE OF SHRI SURESH MOTILAL CHINDAK (S UPRA) AND IN THE CASE OF MR RAMESH MOTILAL CHINDAK(SUPRA) . THE TRIBUNAL HAS DECIDED THE AFORE - STATED APPEALS IN IT(SS)A NO.46 TO 51/PAN/2016 IN THE CASE OF DCIT V. SURESH MOTILAL CHINDAK FOR ASSESSMENT YEAR 2006 - 07 TO 2007 - 08 AND 2009 - 10 TO 2012 - 13 , AND ALSO IT(SS)A NO.52 TO 53/PAN/2016 IN THE CASE OF DCIT V. RAMESH MOTILAL CHINDAK FOR THE ASSESSMENT YEAR 2007 - 08 AND 2011 - 12, VIDE COMMON ORDE R DATED 08/08/2016 BY HOLDING AS UNDER: THESE ARE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A), PANAJI - 2 IN APPEAL NOS. ITA NO. 50/CIT(A) - VI/BNG/2014 - 15 ITA NO.306/CIT(A) - 2/PNJ/2014 - 15, ITA NO. 51/CIT(A) - VI/BNG/2014 - 15 ITA NO.307/CIT(A) - 2/PNJ/2014 - 15, ITA NO. 53/CIT(A) - VI/BNG/2014 - 15 ITA NO.309/CIT(A) - 2/PNJ/2014 - 15, ITA NO. 54/CIT(A) - VI/BNG/2014 - 15 ITA NO.310/CIT(A) - 2/PNJ/20 14 - 15, ITA NO. 06/CIT(A) - VI/BNG/2014 - 15 ITA NO.261/CIT(A) - 2/PNJ/2014 - 15, ITA NO. 07/CIT(A) - VI/BNG/2014 - 15 ITA NO.262/CIT(A) - 2/PNJ/2014 - 15 & ITA NO. 16/CIT(A) - VI/BNG/2014 - 15 ITA NO.271/CIT(A) - 2/PNJ/2014 - 15 , ITA NO. 20/CIT(A) - VI/BNG/2014 - 15 ITA NO.275/CIT( A) - 2/PNJ/2014 - 15 DATED 22.03.2016 AND 21.03.2016 FOR THE ASSESSMENT YEARS 2006 - 07, 11 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 2007 - 08, 2009 - 10, 2010 - 11,2011 - 12, 2012 - 13 AND 2007 - 08, 2011 - 12. 2. SHRI PRASHANT GADEKAR, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI KISHORE PHADKE, C.A REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSES ARE BROTHERS. THEY ARE CONDUCTING THE BUSINESS OF REAL ESTATE. IT WAS A SUBMISSION THAT THERE WAS SURVEY U/S 133A ON THE BUSINESS CUM RESIDENTIAL PREMISES OF SHRI SURESH MOTILAL CHINDAK. IN THE COURSE OF SURVEY CASH OF RS.34,44,000/ - WAS FOUND. IT WAS ALSO FOUND THAT NO BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSESSEE AND SOURCE OF CASH WAS NOT SATISFACTORILY EXPLAINED. SINCE THE SURVEY WAS CONVERTED INTO A SEARCH I T WAS A SUBMISSION THAT CONSEQUENTLY, NOTICE U/S 153A WAS ISSUED. DETAILS REGARDING RAMESH MOTILAL CHINDAK, WAS ALSO FOUND DURING THE COURSE OF SEARCH AND NOTICE U/S 153A HAS BEEN ISSUED. THE ASSESSES DID NOT RESPOND TO THE NOTICES AND HAS NOT FILED ANY RE TURNS. NOTICE U/S 142(1) AND SUMMONS U/S 131 HAD BEEN ISSUED ON VARIOUS DATES REQUESTING THE ASSESSEE TO SUBMIT DETAILS AS CALLED FOR BUT NO DETAILS WERE SUBMITTED. THE ASSESSEE FAILED TO RESPOND TO THE SUMMONS ISSUED U/S 131 AND THE VARIOUS NOTICES AND RE MINDERS WERE SHOWN AT PAGE 2 OF THE ASSESSMENT ORDER. 4. IT WAS THE SUBMISSION THAT AS THERE WAS NO CO - OPERATION FROM THE ASSESSEE THE ASSESSMENT CAME TO BE COMPLETED EX - PARTE U/S 144. IT WAS A SUBMISSION THAT ON APPEAL THE ASSESSEE HAD PRODUCED SUBSTANT IAL EVIDENCES AS ALSO BOOKS OF ACCOUNTS BEFORE THE LD. CIT(A) WHO HAD EVEN THOUGH THE ASSESSING OFFICER, HAD OBJECTED TO THE ADMISSION OF THE FRESH EVIDENCES, HAD TAKEN INTO CONSIDERATION THE FRESH EVIDENCES AND HAD GRANTED ASSESSEE SUBSTANTIAL RELIEF. IT WAS A SUBMISSION THAT THE EVIDENCES WERE NOT BEFORE ASSESSING OFFICER AND THE EVIDENCES BEING UNSUBSTANTIATED, THE ORDER OF THE CIT(A) WERE LIABLE TO BE REVERSED. 5. IN REPLY, THE LD. AR SUBMITTED THAT IT IS AN ADMITTED FACT THAT THE ASSESSES WERE NOT REPRESENTED PROPERLY BEFORE THE ASSESSING OFFICER. IT WAS A SUBMISSION THAT THE ASSESSEES REPRESENTATIVE WHO WAS AN ITP HAD NOT REPRESENTED THE ASSESSEE EVEN THOUGH HE WAS ENGAGED TO DO SO. THE ASSESSEE HAS FILED AN AFFIDAVIT TO THAT EFFECT. IT WAS A SUBM ISSION THAT IN THE INTEREST OF JUSTICE THE ISSUES IN THE APPEAL MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION. IT WAS A SUBMISSION THAT BOTH THE ASSESSES HAD NO 12 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 OBJECTION TO PAY AMOUNT OF RS.1,00,000/ - EACH ON ACCOUNT OF THEIR D EFECT IN NOT REPRESENTING THE CASE BEFORE THE ASSESSING OFFICER. IT WAS PLEADED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE MAY BE GRANTED ANOTHER OPPORTUNITY. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE REMAND REPORT OF THE ASSESSING OFFICER TO THE LD. CIT(A), MORE SPECIFICALLY AT PARA 8 OF THE SAID REMAND REPORT SHOWS THAT THE ASSESSING OFFICER HAS SPECIFICALLY OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCES IN TERMS OF RULE 46A. THE ASSESSING OFFICER HAS ALSO SPECIFICALLY BROU GHT TO THE ATTENTION OF THE LD.CIT(A) THAT THERE HAS BEEN TOTAL NON - CO - OPERATION BY THE ASSESSEE. THE LD. CIT(A) HOWEVER HAS BRUSHED ASIDE THE OBJECTIONS OF THE ASSESSING OFFICER AND HAS ADMITTED THE FRESH EVIDENCES. THE LD.CIT(A) HAS NOT CONSIDERED THE CO NDITIONS LAID DOWN IN RULE 46A FOR THE PURPOSE OF ADMITTING THE ADDITIONAL EVIDENCES. THIS BEING SO WE ARE OF THE VIEW THAT THE ORDER OF THE LD. CIT(A) PASSED ON THE BASIS OF THE ADDITIONAL EVIDENCES ADMITTED IS UNSUSTAINABLE AND IS LIABLE TO BE REVERSED A ND WE DO SO. HOWEVER, CONSIDERING THE FACT THAT THE ASSESSEE HAS FILED HIS AFFIDAVIT WHEREIN IT WAS BEING AVERRED THAT HE WAS NOT REPRESENTED PROPERLY BY HIS REPRESENTATIVE AND THE SAME IS ALSO SUPPORTED BY THE RECORDINGS IN THE ASSESSMENT PROCEEDINGS, I N THE INTEREST OF NATURAL JUSTICE WE ARE OF THE VIEW THAT THE ISSUES ARE LIABLE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION. THE LD. DR HAS ALSO NOT OBJECTED TO THE RESTORING OF THE ISSUES TO THE ASSESSING OFFICER FOR RE - ADJUDI CATION, SUBJECT TO THE ASSESSES DEPOSITING RS. ONE LAKH EACH TO THE INCOME TAX DEPARTMENT UNDER THE HEAD OTHERS AND THE ASSESSES NOT CLAIMING ADJUSTMENT OF THE SAME TOWARDS ANY LIABILITY OR TAX. 7. CONSIDERING THE SUBMISSIONS THE ISSUES IN THESE APPEAL S ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION DENOVO. EACH OF THE ASSESSES SHOULD DEPOSIT RS. ONE LAKH EACH TO THE INCOME TAX DEPARTMENT UNDER THE HEAD OTHERS AND THE SAID AMOUNT SHALL NOT BE CLAIMED AS ADJUSTMENTS AGAINST ANY T AX LIABILITY. THE SAME SHALL BE DEPOSITED WITHIN EIGHT DAYS FROM THE DATE OF THE RECEIPT OF THIS ORDER. THE ASSESSES SHALL PRESENT THEMSELVES BEFORE THE ASSESSING OFFICER FOR INITIATION OF THE RE - ASSESSMENT PROCEEDINGS WITHIN TWO MONTHS FROM THE DATE OF RE CEIPT OF THIS ORDER. 8. IN THE RESULT, APPEALS FILED BY THE REVENUE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 13 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 ORDER PRONOUNCED IN THE OPEN COURT ON 08.08.2016. RESPECTFULLY FOLLOWING THE ORDERS OF THE TRIBUNAL IN THE AFORESAID APPEALS WHEREIN FACTS WERE IDENTICAL AS IN THE INSTANT CASE BEFORE US, WE ARE ALSO INCLINE D TO SET ASIDE THE MATTER AND RESTORE THE ISSUES TO THE FILE OF AO FOR DE - NOVO ADJUDICATION OF THE ISSUE S ON MERITS BY THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS TO MEET END OF JUSTICE AND FAIR PLAY WITH SAME DIRECTIONS . THE ASSESSEE IS DIRECTED TO PRESENT THEMSELVES BEFORE THE AO FOR INITIATION OF THE DE - NOVO ASSESSMENT PROCEEDINGS WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. THE ASSESSE S S ARE ALSO DIRE CTED TO DEPOSIT RS. ONE LAKH EACH WITH INCOME TAX DEPARTMENT UNDER HEAD OTHERS AND SAID AMOUNT SHALL NOT BE CLAIMED BY THE ASSESSEE AS ADJUSTMENT AGAINST ANY TAX LIABILITY. THE SAME AMOUNT SHALL BE DEPOSITED WITHIN 8 DAYS FROM THE DATE OF THE RECEIPT OF THE ORDER. THE ASSESSEE IS DIRECTED TO CO - OPERATE WITH AUTHORITIES BELOW IN DE - NOVO PROCEEDINGS. NEEDLESS TO SAY PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED BY THE ASSESSING OFFICER IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN A CCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 6 . IN THE RESULT THE APPEAL OF THE REVENUE IN IT(SS)A NO. 75/PAN/2016 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7 . AS THE ISSUES /FACTS INVOLVED IN IT(SS)A NO. 76/PAN/2016 IN THE CASE OF SMT. SANGEETA SURESH CHINDAK FOR THE ASSESSMENT YEAR 2011 - 2012 AND THE ISSUES/FACTS IN IT(SS)A NO. 77/PAN/2016 IN THE CASE OF SMT. JYOTI RAMESH CHINDAK FOR THE ASSESSMENT YEAR 2011 - 12 ARE SIMILAR TO THE FACTS/ISSUES IN IT(SS) A NO. 75/PAN/2016 DECIDED BY US I N PRECEDING PARAS AND HENCE OUR DECISION IN IT(SS)A NO. 75/PAN/2016 SHALL APPLY MUTATIS MUTANDIS TO THE SAID APPE ALS IN IN IT(SS)A NO. 76 - 77/PAN/2016 . 14 IT (SS) A NO. 7 5 TO 7 7 /PAN/2016 8 . IN THE RESULT, ALL THE APPEALS IN IT(SS)A NO. 75 TO 77/ PAN /2016 OF THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON THURSDAY , THE 2 4 TH DAY OF NOVEMBER , 201 6 AT GOA . SD/ - SD/ - (GEORGE MATHAN) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2 4 TH NOVEMBER , 201 6 . V.S.S.G BABU / - COPY TO: 1. THE ASSESSEE. SMT SANGEETA SURESH CHINDAK, SAMBHAJI GALLI, JOSHI MALA, KHASBAG, BELGUM - 590004 & SMT JYOTI RAMESH CHINDAK , GALLI, JOSHI MALA, KHASBAG, BELGUM - 590004 2. THE REVENUE. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, BELAGAVI. 3. THE PR. CIT (CENTRAL), BANGALORE. 4. THE J CIT(A) , CENTRAL RANGE, PANAJI . 5. THE D.R . 6. GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY I.T.A.T., PANAJI