Shri Mohinderkumar C.Nadwani, Surat V. The ACIT.,Circle-2, Surat

MA 101/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8861 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-08-2012
• Assessment Year: misc
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: R N VEPARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM AND SHRI A. MOHA N ALANKAMONY, AM) M. A. NO.101/AHD/2012 (IN IT (SS) A NO.67/AHD/2008 ALONG WITH CO NO.320/A HD/2008 -BLOCK PERIOD: 1-4-1990 TO 27-4-2000) SMT. GOPALIDEVI CHANANDAS NANDWANI, L/H MOHINDERKUMAR CHANANDAS NANDWANI, Q-2252, SURAT TEXTILE MARKET, RING ROAD, SURAT P.A. NO. AJPN 6030 A VS THE A. C. I. T., CIRCLE-2, SURAT (APPLICANT) (RESPONDENT) APPLICANT BY SHRI R. N. VEPARI, AR RESPONDENT BY SHRI D. K. SINGH, SR. DR DATE OF HEARING: 31-08-2012 DATE OF PRONOUNCEMENT: 07-09-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE SEEKING RECTIFICATION OF T HE ORDER OF THE TRIBUNAL DATED 25-03-2011 PASSED IN IT(SS) A NO.67 & 68/AHD/2008 ALONG WITH CO NO.320/AHD/2008 FOR THE BLOCK PERIOD 1-4-1990 TO 27-4-2000. 2. THE LEARNED AR SUBMITTED THAT IN PARA 6 OF THE O RDER OF THE TRIBUNAL IN THE LAST SENTENCE WE ACCORDINGLY, CONFIRM THE ORDER OF THE LEARNED CIT (A) AND DISMISS THE APPEAL FILED BY THE REVENUE MA NO.101/AHD/2012 (IN IT (SS) A NO.67/AHD/2008 ALONG WITH CO 320/AHD/2008 BP 1-4-1990 TO 27-4-20 00) SMT. GOPALIDEVI CHANANDAS NANDWANI (L/H. MOHINDERKUMAR CHANANDAS NANDWANI) VS ACIT, CIR -2, SURAT 2 REQUIRES TO BE MODIFIED AS WE ACCORDINGLY DISMISS THE APPEAL OF THE REVENUE . THE LEARNED AR EXPLAINED THAT THIS MODIFICATION I S REQUIRED TO BE MADE SINCE THE FINDINGS OF THE LEARN ED CIT(A) WERE CONTRARY TO THE FINDINGS OF THE TRIBUNAL, THOUGH TH E FINAL DIRECTION OF THE LEARNED CIT(A) IS IN ORDER. THE RELEVANT PORTIO N OF THE ORDER OF THE LEARNED CIT(A) IN PARA 7.3 IS REPRODUCED AS UNDER: 7.3 THE AO IS DIRECTED TO RE-EXAMINE THIS ISSUE SI NCE AS PER THE LEDGER ACCOUNT OF SHRI RAMESH K. NANDWANI WITH SUSML, THE TOTAL PURCHASE CONSIDERATION WAS RS.4,70,810 WH EREAS IT HAS BEEN MENTIONED AS RS.8,49,579 BY THE AO. APART FROM THIS, OUT OF THE TOTAL UNACCOUNTED PAYMENT OF ON-MONEY IN CASH OF RS.13,04,130 THE AO WILL WORK OUT THE SHARE OF THE ASSESSEE AS ALSO HERE SON IN PROPORTION TO THE PAYMENTS MADE BY THEM BY CHEQUES. THAT PART OF THE ON-MONEY WHICH IS ATTRIBU TABLE TO SHRI RAMESH K. NANDWANI WILL HAVE TO BE DELETED FROM THE ADDITION MADE BY THE AO, SINCE, THERE WAS NO EVIDENCE IN THE SEIZED MATERIALS TO SHOW THAT SHRI RAMESH NANDWANI HAD MAD E ANY UNACCOUNTED PAYMENT OF ON-MONEY, EVIDENCE REGARDING THE PURCHASE OF THE PLOT BY SHRI RAMESH K. NANDWANI BEI NG PROVIDED BY SUSML IN COURSE OF ASSESSMENT PROCEEDIN GS. THE AO IS DIRECTED TO TAKE ACTION ACCORDINGLY. 3. THE RELEVANT PORTION OF THE TRIBUNALS ORDER IN PARA 6 IS REPRODUCED HEREIN BELOW: 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT NO ADDITION OF ON MONEY CAN BE MADE AS THERE IS APPARENT LACK OF EVIDENCE IN SUPPORT OF THE ADDITION. THE AR GUMENT OF THE LD. AR THAT SON OF THE ASSESSEE HAD PURCHASED PLOT AFTER TWO YEARS OF THE SEARCH HAS NOT BEEN CONTRADICTED. THER E IS APPARENT DIFFERENCE IN THE IDENTIFICATION OF THE PL OT PURCHASED BY THE ASSESSEE. THE AO SAYS IT IS A-2/14 WHEREAS ACCO RDING TO THE DIARY IT IS A-2, 8 & 9. THE AO OUGHT TO HAVE CA RRIED OUT MA NO.101/AHD/2012 (IN IT (SS) A NO.67/AHD/2008 ALONG WITH CO 320/AHD/2008 BP 1-4-1990 TO 27-4-20 00) SMT. GOPALIDEVI CHANANDAS NANDWANI (L/H. MOHINDERKUMAR CHANANDAS NANDWANI) VS ACIT, CIR -2, SURAT 3 ENQUIRIES AND CLEARLY SORTED OUT THE DIFFERENCE AND IDENTIFICATION WITH EVIDENCE AS TO WHAT THE ASSESSEE HAS PURCHASED . THERE MUST BE DOCUMENTS EXECUTED FOR PURCHASE OF THE PHOT O A COPY OF WHICH OUGHT TO HAVE BEEN PLACED ON RECORD FOR CL EAR IDENTIFICATION OF THE PLOT PURCHASED BY THE ASSESSE E. FURTHER THE AO HAS NOT TAKEN ANY ACTION IN THE HANDS OF SUSML F OR ALLEGEDLY RECEIVING EXCESS MONEY OVER AND ABOVE THE RECORDED PRICE. NO ACTION HAS ALSO BEEN TAKEN AGAINST THE BR OKER ON THE BASIS OF ALLEGED ON MONEY OR BROKERAGE THEREON. NO CROSS- EXAMINATION OF SHRI SHASHIKANT V. TAMAKUWALA HAS BE EN ALLOWED TO THE ASSESSEE. THERE IS NO CORROBORATIVE EVIDENCE OF ALLEGED PAYMENT OF ON MONEY BY THE ASSESSEE OR RECE IVED BY SUSML. IN FACT ADDITION HAS BEEN MADE ONLY ON THE E VIDENCE OF A THIRD PARTY WITHOUT SUPPORTING IT WITH FURTHER ST ATEMENTS OR EVIDENCE FROM SUSML AND PROPER IDENTIFICATION OF TH E PLOT PURCHASED BY THE ASSESSEE. IN ANY CASE ADDITION IS MADE HALF HEARTEDLY THEREFORE, IT CANNOT BE SUSTAINED. WE ACC ORDINGLY, CONFIRM THE ORDER OF LD. CIT(A) AND DISMISS THE APP EAL FILED BY THE REVENUE. 4. THE LEARNED AR FURTHER SUBMITTED THAT THE TRIB UNAL HAD NOT APPROVED THE ENTIRE FINDING OF THE LEARNED CIT(A), HENCE, THE PORTION OF THE LAST SENTENCE CONFIRM THE ORDER OF THE LEARNED CIT(A) REQUIRED TO BE DELETED. 5. THE LEARNED DR THOUGH ARGUED STATING THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL, CO ULD NOT CONTROVERT THE ARGUMENT OF THE LEARNED AR. 6. AFTER HEARING BOTH THE SIDES AND PERUSING THE MA TERIALS ON RECORD, WE FIND THE ARGUMENT OF THE LEARNED AR IS J USTIFIED. THE FINDING OF THE TRIBUNAL IS NOT IN PARITY WITH THE F INDING OF THE LEARNED CIT(A) WHICH IS APPARENT FROM PARA 7.3 OF LEARNED C IT(A)S ORDER AND PARA 6 OF THE ORDER OF THE TRIBUNAL. THEREFORE, WE HEREBY MODIFY THE MA NO.101/AHD/2012 (IN IT (SS) A NO.67/AHD/2008 ALONG WITH CO 320/AHD/2008 BP 1-4-1990 TO 27-4-20 00) SMT. GOPALIDEVI CHANANDAS NANDWANI (L/H. MOHINDERKUMAR CHANANDAS NANDWANI) VS ACIT, CIR -2, SURAT 4 LAST SENTENCE IN PARA 6 OF THE ORDER OF THE TRIBUNA L AS REQUESTED BY THE LEARNED AR. ACCORDINGLY, THE SENTENCE WE ACCORDINGLY CONFIRM THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE APP EAL FILED BY THE REVENUE SHALL NOW STANDS TO BE MODIFIED AS WE ACCORDINGLY DISMISS THE APPEAL FILED BY THE REVENUE. 7. SINCE THE MATTER IS SENT BACK TO THE FILE OF THE LE ARNED AO FOR RE- EXAMINING THE ISSUES BY THE LEARNED CIT(A), THE TR IBUNAL DID NOT FIND IT NECESSARY FOR ANY FURTHER INTERFERENCE ON THIS R EGARD. WE FURTHER MAKE IT CLEAR THAT THE FINAL DIRECTIONS OF THE LEAR NED CIT(A) IN PARA 7.3 EXTRACTED HEREINABOVE ARE SUSTAINED. 8. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-09-2012. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD MA NO.101/AHD/2012 (IN IT (SS) A NO.67/AHD/2008 ALONG WITH CO 320/AHD/2008 BP 1-4-1990 TO 27-4-20 00) SMT. GOPALIDEVI CHANANDAS NANDWANI (L/H. MOHINDERKUMAR CHANANDAS NANDWANI) VS ACIT, CIR -2, SURAT 5 1. DATE OF DICTATION: (DIRECT DICTATION) 31-08-201 2/03-09-2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 03-09-2012 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR.P.S ./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: