Shri Bharat V. Patel, Ahmedabad V. The ACIT, Circle-11, , Ahmedabad

MA 1/AHD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3139 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 17-07-2015
• Assessment Year: misc
• Appeal Filed On: 09-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Assessee Lawyers: P M PATEL
• Section: 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER MA NO.01/AHD/2015 IN ./ IT(SS)A NO. 618/AHD/2012 / ASSESSMENT YEAR: BLOCK PERIOD BHARAT V. PATEL 66, VADILAL PARK SOCIETY OPP: INDICATE LAB TOLNAKA BAPUNAGAR, AHMEDABAD. PAN : ABVPR 9550 E VS ACIT, CIR.1 AHMEDABAD. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI P.M. PATEL REVENUE BY : SHRI D.C. MISHRA, SR.DR / DATE OF HEARING : 17/07/2015 / DATE OF PRONOUNCEMENT: 24/07/2015 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT MISC. APPLICATION IS DIRECTED AT THE I NSTANCE OF THE ASSESSEE, POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 30.6.2014 PASSED IN IT(SS)A.NO.618/AHD/2012 FOR THE BLOCK PERIOD STARTING FROM 1.4.1995 AND ENDING ON 13.12.2001. 2. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION WAS CONDUCTED ON THE ASSESSEE ALONG WITH SHREEJI GROUP ON 13.12.2001. AN ASSESSMENT ORDER UNDER SECTION 158BC R.W.S. SECT ION 143(3) DATED 31.12.2003 WAS PASSED. THE DISPUTE TRAVELLED UPTO THE TRIBUNAL VIDE MA NO.01/AHD/2015 2 IT(SS)A.NO.57/AHD/005. IT WAS AN APPEAL OF THE REV ENUE. THE ASSESSEE HAS FILED CROSS-OBJECTION BEARING NO.90/AH D/2005. THE APPEAL AND THE CROSS-OBJECTIONS WERE ALLOWED FOR STATISTIC AL PURPOSE. THE ISSUES WERE SET ASIDE TO THE FILE OF THE CIT(A) FOR RE-ADJUDICATION. 3. AGGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSE SSEE CAME IN APPEAL BEFORE THE TRIBUNAL IN IT(SS)A.NO.618/AHD/20 12. THE MAJOR ADDITION CHALLENGED BY THE ASSESSEE IN THE APPEAL W AS OF RS.1,01,04,887/-. DURING THE COURSE OF SEARCH DOCU MENTS INVENTORISED IN ANNEXURE-A, BEARING LARGE NUMBER OF PAGES, WERE FOUND AT THE PREMISES OF THE ASSESSEE, WHICH EXHIBIT DETAILS OF CERTAIN PAYMENTS MADE IN CASH. THE CHARGE AGAINST THE ASSESSEE WAS THAT SEIZED MATERIAL INDICATED THE PAYMENT OF ON-MONEY ON PURCH ASE OF LAND. IT WAS CONTENDED BY THE ASSESSEE THAT SHREEJI GROUP WA S DEVELOPING A HOUSING SCHEME. IT REQUIRED LAND ADMEASURING 28,50 0 SQUARE YARDS, AND THE ASSESSEE HAS PLAYED A ROLE OF MEDIATOR BETW EEN SHREEJI GROUP AND LAND OWNERS. THE ASSESSEE JUST KEPT TRACK OF T HE PAYMENT MADE BY THE SHREEJI GROUP TO THE ULTIMATE LAND OWNERS. THI S CONTENTION OF THE ASSESSEE WAS REJECTED BY THE AO AND CONFIRMED BY TH E CIT(A). 4. WHEN THE ISSUE CAME UP BEFORE THE TRIBUNAL, THE TRIBUNAL FOUND THAT COMPLETE FACTS ARE NOT AVAILABLE IN SPITE OF S ECOND ROUND OF LITIGATION. THEREFORE, THE TRIBUNAL SET ASIDE THE ISSUE. THE TRIBUNAL HAS DEMONSTRATED ITS DIFFICULTY TO ADJUDICATE THE CONTR OVERSY CONCLUSIVELY IN THE ABSENCE OF COMPLETE FACTS. THE RELEVANT PORTI ONS OF THE TRIBUNALS ORDER READ AS UNDER: 7. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE HAVE PE RUSED THE MATERIAL PLACED BEFORE US. THE MAIN CONTENTION OF T HE ASSESSEE WAS THAT SNOA WANTED TO DEVELOP A HOUSING SCHEME FO R WHICH LAND WAS PURCHASED FROM SEVERAL LAND OWNERS. ABOUT 28,500 SQ. YARD OF LAND WAS TRANSACTED AND ALLEGED THAT SNOA H AD ENTERED INTO A CONTRACT FOR PURCHASE OF LAND FROM DIFFERENT LAND OWNERS. MA NO.01/AHD/2015 3 SO, THE QUESTION IS THAT WHETHER THE TRANSACTIONS A S APPEARED IN THE SEIZED DIARY WERE IN FACT THE TRANSACTION OF SN OA OR THOSE TRANSACTIONS BELONGED TO THE ASSESSEE. THE ASSESSEE S VEHEMENT CONTENTION IS THAT THE ENTRIES PASSED IN THE BOOKS OF ACCOUNTS OF SNOA. TO COUNTER SUCH ASSERTION ON THE PART OF THE ASSESSEE, IN OUR HUMBLE OPINION IT WAS EXPECTED FROM THE AO TO E XAMINE THE BOOKS OF ACCOUNTS OF SNOA; TO SEE WHETHER THERE WAS SUFFICIENT CASH IN THE BOOKS OF ACCOUNTS BEFORE MAKING AN EXPE NDITURE IN CASH OR THROUGH CHEQUE. SUCH DETAILS ARE NOT AVAILA BLE ON RECORD. THERE ARE FEW QUESTIONS WHICH HAVE NOT BEEN ANSWERE D EITHER BY THE AO OR BY LEARNED CIT(A). WE THEREFORE DEEM IT P ROPER TO RESTORE THIS ISSUE BACK TO THE STAGE OF THE AO SO T HAT THOSE DISCREPANCIES CAN BE REMOVED. 7.1 WE ARE OF THE VIEW THAT SOME OF THE VITAL QUEST IONS ARE YET TO BE ANSWERED WITH THE SUPPORT OF EVIDENCES, LISTED B ELOW: (A) THE AO HAS TO GIVE A CONCLUSIVE FINDING ABOUT T HE POSITION OF THE BANK ACCOUNTS. THE AO IS REQUIRED TO EXAMINE TH E SAURASHTRA CO-OPERATIVE LTD. AS WELL AS THE SARASPUR NAGRIK CO OPERATIVE BANK LTD. HE HAS TO VERIFY THE PERSONS OPERATING TH E BANK ACCOUNTS. THE AO IS ALSO REQUIRED TO VERIFY THE SIG NATORIES OF THE CHEQUES WHETHER ISSUED BY THE ASSOCIATION OR BY THE ASSESSEE. (B) ON EXAMINATION OF THE ENGLISH TRANSLATION OF BA NAKHATS, WE HAVE FOUND THAT ONLY THE SIGNATURE OF THE PARTY OF THE FIRST PART, I.E., THE NAME OF THE LAND OWNERS WAS MENTIONED, BU T THERE WAS NO MENTION OF THE PARTY OF THE SECOND PART, I.E., S NOA. ALTHOUGH, IN THE PREAMBLE OF THE BANAKHATS, IT IS MENTIONED T HAT THE PARTY OF THE SECOND PART IS THE PRESIDENT AS WELL AS SECR ETARY OF THE ASSOCIATION, BUT THERE WAS NO SIGNATURE OF THOSE PE RSONS. IN THIS REGARD, THE EXAMINATION OF THE WITNESSES IN THE BAN AKHATS SHALL ALSO PROVE BENEFICIAL TO ARRIVE AT THE RIGHT CONCLU SION. IF THE BANAKHATS ARE THE REGISTERED DOCUMENTS THEN WHETHER THE REGISTRATION EXPENDITURE WAS DULY DEBITED IN THE BO OKS OF SNOA. WHETHER IT WAS SHOWN AS PURCHASED BY THE ASSOCIATIO N? WE HAVE ALSO FOUND THAT THE ORIGINAL BANAKHATS WERE NOT PRO DUCED BEFORE THE AO. WE THEREFORE DEEM IT PROPER TO DIRECT THE A SSESSEE TO PRODUCE THE ORIGINAL BANAKHATS TO THE AO SO THAT HE CAN EXAMINE THE NATURE OF THE DOCUMENT AND THE CORRECTNESS OF T HE CLAIM THAT THOSE WERE DULY REGISTERED DOCUMENTS. (C) THE APPELLANT HAS PLACED BEFORE US FEW EXHAUSTI VE CHARTS BUT AT THE STAGE OF SECOND APPEAL IT IS NOT POSSIBLE TO MATCH THE FIGURES OF THE CHART WITH THE CONTENTS OF THE DIARY ALONG WITH THE MA NO.01/AHD/2015 4 ACCOUNTS OF SNOA. IN THIS CONNECTION, WE ARE OF THE VIEW THAT THE AO IS THE BEST PERSON TO VERIFY AND MATCH THE CHEQU E AMOUNT AS WELL AS THE CASH AMOUNT AS NOTED IN THE DIARY WITH THE BOOKS OF ACCOUNTS OF SNOA, AS ALLEGEDLY EXPLAINED THROUGH TH ESE CHARTS. IF THE SEIZED DIARY WAS MAINTAINED BY THE ASSESSEE ON BEHALF OF THE SNOA FOR THE PURPOSE OF RECORDING THE TRANSACTION M EDIATED THROUGH HIM, THEN THE CONTENTS OF THE DIARY SHOULD MATCH WITH THE CONTENTS OF THE ENTRIES MADE IN THE BOOKS OF ACCOUN TS OF SNOA. (D) FROM THE SIDE OF THE REVENUE, LEARNED DR HAS DO UBTED THE GENUINENESS OF THE BOOKS OF ACCOUNTS OF SNOA AND PL EADED THAT IT WAS NOTHING BUT AN AFTERTHOUGHT TO PLACE BEFORE THE AO A COMPUTER GENERATED OF SNOA. BUT ACCORDING TO US SUC H WRINKLES CAN ALSO BE IRONED OUT BY EXAMINING THE DATE ON WHI CH THE ACCOUNTS WERE WRITTEN IN THE COMPUTER. WE HEREBY AU THORIZE THE AO TO EXAMINE THE DATES ON WHICH THE ACCOUNTS OF SN OA WERE WRITTEN IN THE COMPUTER. WE ALSO AUTHORIZE AO TO EX AMINE THE AVAILABILITY OF CASH IN THE BOOKS AS WELL AS IN THE BANK ACCOUNT OF SNOA FOR MAKING THE PAYMENT TO LAND OWNERS. (E) BEFORE US AN ARGUMENT HAS BEEN RAISED THAT THE CHEQUES WERE ISSUED BY THE SNOA AND NOT BY THE ASSESSEE. THIS FA CT CAN ALSO BE VERIFIED BY AO BY EXAMINING THE SIGNATORIES OF THE CHEQUES. IN THIS REGARD, THE ASSESSEE IS HEREBY DIRECT TO CO-OP ERATE WITH THE INVESTIGATION. (F) IN RESPECT OF THE PLEA OF NON PAYMENT OF COMMIS SION AS RESOLVED THROUGH A RESOLUTION DATED 15.05.1997, RES OLVED TO BE PAID TO THE ASSESSEE, THE REASON GIVEN WAS THAT THE PROJECT/SCHEME OF CONSTRUCTION OF SHREEJI BUNGALOWS WAS SCRAPPED AND THE LAND WHICH WAS PURCHASED THROUGH B ANAKHATS FROM THE LAND OWNERS WAS SOLD AS SUCH. IF THAT WAS THE FACTUAL POSITION THAT THE TOTAL LAND ADMEASURING 25800 SQ. YARDS, CLAIMED TO HAVE BEEN PURCHASED BY SNOA THROUGH BANAKHATS WA S SOLD AS SUCH, THAT TOO THROUGH BANAKHATS, THEN NATURALLY AN ACCOUNT OUGHT TO HAVE BEEN MAINTAINED BY SNOA. WE HEREBY DI RECT TO SUBMIT THE DETAILS OF PURCHASE AND SALE OF LAND, SO THAT THE AO CAN DETERMINE THE AMOUNT OF PROFIT/LOSS ON THE IMPU GNED LAND TRANSACTION AND TO SEE WHETHER RECORDED IN THE BOOK S OF SNOA. THE ABOVE NOTED QUERIES CANNOT BE TREATED AS AN EXH AUSTIVE LIST AND THE AO, THEREFORE, IN HIS DISCRETION CAN R AISE ALLIED QUESTION TO VERIFY THE CLAIM OF THE ASSESSEE THAT T HE PAYMENT WAS NOT MADE BY THE ASSESSEE BUT BY SNOA. WE ARE ALSO C AUTIOUS ABOUT THE FACT THAT ONCE THIS VERY ISSUE WAS RESTOR ED BACK TO THE MA NO.01/AHD/2015 5 FILE OF THE FIRST APPELLATE AUTHORITY, BUT AT THAT TIME THERE WAS AN APPARENT DENIAL OF OPPORTUNITY TO THE ASSESSEE AS P RESCRIBED UNDER RULE 46-A BY LEARNED CIT(A). ONLY ON THAT GRO UND THE MATTER WAS RESTORED BACK. BUT NOW THE SITUATION IS THAT EVEN AFTER THE PERUSAL OF THE REMAND REPORT THE QUESTIONS/DOUB TS AS RAISED HEREINABOVE COULD NOT BE REMOVED. THEREFORE IN THE INTEREST OF JUSTICE AS ALSO CONSIDERING THE RIVAL SUBMISSIONS I T IS NOT ONLY NECESSARY BUT ALSO JUSTIFIABLE TO RESTORE THE MATTE R BACK TO THE STAGE OF INVESTIGATION, I.E., THE ASSESSMENT STAGE SO THAT THE ASSESSEE AS WELL AS THE REVENUE BOTH CAN GO UPTO TH E HILT OF THE FACTS AND THEREUPON CAN ARRIVE AT THE CORRECT CONCL USION. IN VIEW OF THE ABOVE DISCUSSION THE GROUNDS OF THE ASSESSEE MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSE. 5. THE ASSESSEE HAS MOVED THE PRESENT MA PLEADING T HEREIN THAT THE TRIBUNAL HAS COMMITTED APPARENT ERROR WHILE ADJUDIC ATING THIS ISSUE. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THE TRIBUNAL HAS FAILED TO CONSIDER RELEVANT MATERIAL ON RECORD, AND THEREFORE, ARRIVED AT WRONG CONCLUSION. FOR BUTTRESSING HIS CONTENTION, HE RELIED UPON THE DECISIONS OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. INCOME TAX APPELLATE TRIBUNAL & ANR., 172 ITR 1 58 (MP). HE PLACED ON RECORD COPY OF THE JUDGMENT. ON THE STRE NGTH OF THIS DECISION, IT WAS PLEADED THAT IF THE TRIBUNAL FAILE D TO CONSIDER MATERIAL PLACED AT THE TIME OF HEARING, WHILE DETERMINING TH E TAX LIABILITY ON AN ASSESSEE, THEN THE FAILURE OF THE TRIBUNAL CONSTITU TES A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. HE ALSO RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. CIT, 295 ITR 466 (SC ). HE THEREAFTER RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF LACHMAN DASS BHATIA HINGWALA P. LTD. ACIT, 237 CTR (DEL)(FB) 117. THE LEARNED DR CONTENDED THAT NO APPARENT ERROR HAS BEEN COMMITTED BY THE TRIBUNAL. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. POWER OF RECTIFICATION UNDER SEC TION 254(2) OF THE MA NO.01/AHD/2015 6 INCOME TAX ACT, CAN BE EXERCISED ONLY WHEN THE MIST AKE WHICH SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE, W HICH IS APPARENT FROM RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTA BLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON PO INTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. WE FIND THA T ON THE SINGLE ISSUE, THE TRIBUNAL HAS DEVOTED 20 PAGES IN ANALYZI NG THE MATERIAL AVAILABLE ON RECORD. THEREAFTER, THE TRIBUNAL REC ORDED A FINDING THAT ON THE BASIS OF EVIDENCE AVAILABLE ON RECORD, THE DISP UTE CANNOT BE RESOLVED CONCLUSIVELY. THE ASSESSEE HAS FILED MISC . APPLICATION RUNNING INTO 10 PAGES FOR DEMONSTRATING AN APPARENT ERROR W HICH ITSELF SUGGESTS THAT THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. THE EFFORT OF THE ASSESSEE IS TO GET THE ORDER REVIEWED IN THE GARB OF ALLEGED RECTIFICATION APPLICATION. THERE IS NO DISPUTE WIT H REGARD TO THE PROPOSITION LAID DOWN IN THE JUDGMENTS RELIED UPON BY THE ASSESSEE, BUT ON FACTS, WE FIND THAT THE TRIBUNAL HAS CONSIDERED THE PROPOSITION RAISED BY THE ASSESSEE, AND THEREAFTER, RECORDED THE FINDI NGS. THE RATIO OF THESE JUDGMENTS IS NOT ATTRACTED IN THE PRESENT CAS E. WE DO NOT FIND ANY MERIT IN THIS APPLICATION. IT IS DISMISSED. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH JULY, 2015 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 24/07/2015