Shri Kamlakar Moghe, Mumbai V. Dy.Commissioner of Income Tax Circle-3, Nagpur

MA 12/NAG/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3705 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 10-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: JAYANT M RANADE
• Section: 54

Judgement Text

1 M.A. NO. 12/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. M. A. NO. 12/NAG/2013 (ARISING OUT OF ITA NO. 09/NAG/2011) ASSESSMENT YEAR : 2007 08. SHRI KAMLAKAR MOGHE, DY. COMMISSIONER OF 13, KALPATARU, 4 TH FLOOR, HATISKAR MARG V/S. INCOME TAX, CIRCLE 3, ABOVE ADARSH ENGLISH SCHOOL , NAGPUR. PRABHADEVI, MUMBAI 400025. APPLICANT RESPONDENT. APPLICANT BY : SHRI JAYANT M. RANADE. RESPONDENT BY : SHRI NARENDRA KANE.. DATE OF HEARING : 11 - 09 - 2015 DATE OF PRONOUNCEMEN T : 30 TH OCT. . 2015. O R D E R PER SHRI SHAMIM YAHYA, A.M . THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THIS TRIBUNAL IN ITA NO. 09/NAG/2011 FOR ASSESSMENT YEAR 2007 - 08. 2. IN THE ORIGINAL MISCELLANEOUS APPLICDATION THE ASSESSEE HAD SUBMITTED THAT COUNSEL OF THE ASSESSEE ABOUT TO START ARGUING REGARDING THE ADDITION OF RS. 20 LAKHS BUT THE BENCH INDICATED THAT THIS AMOUNT CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE AS THE SAME WAS OFFERED BY THE ASSESSEE IN THE NEXT ASSESSMENT YEAR. HOWEVER, WHEN THE ITATS ORDER WAS RECEIVED THE ADDITION OF RS. 20 LAKHS WAS CONFIRMED. HENCE THE ASSESSEE REQUESTED THAT THERE IS A MISTAKE APPARENT FROM RECORD LIABLE FOR RECTIFICATION. CONSEQ UENTLY THE ASSESSEE HAS FILED A REVISED MISCELLANEOUS APPLICATION. IN THE REVISED APPLICATION IT HAS BEEN 2 M.A. NO. 12/NAG/2013 CONTENDED THAT THE TRIBUNAL HAS ERRED IN HOLDING THAT THE SUM OF RS. 20 LAKHS WAS TO BE ADDED IN THE HANDS OF THE ASSESSEE. IN THIS REGARD ASSESSEES COUNSEL HAS ALSO REFERRED TO ITATS DECISION IN THE CASE OF THE BUILDER SHRI APPASWAMI INFRASTRUCTURE TO WHOM THE PAYMENT WAS ALLEGED TO HAVE BEEN MADE. REFERRING TO THE ITAT DECISION IN THE CASE OF SHRI APPASWAMI INFRASTRUCTURE, LEARNED COUNSEL CONTENDE D THAT THIS IS A DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE AS IN THE SUBSEQUENT YEAR THE ASSESSEE HAS ALREADY OFFERED THIS AMOUNT FOR TAXATION. HENCE LEARNED COUNSEL PLEADED THAT THERE IS A MISTAKE APPARENT FROM RECORD. 3. LEARNED D.R., ON THE OTHER HAN D, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. LEARNED D.R. SUBMITTED THAT THE TRIBUNAL HAD APPRECIATED ALL THE FACTS OF THE CASE. THE TRIBUNAL HAD HEARD BOTH THE APPEALS OF THE ASSESSEE AS WELL AS THE DEVELOPER T O WHOM THE PAYMENTS WERE CLAIMED TO HAVE BEEN MADE ON THE SAME DAY. HENCE THE LEARNED D.R. SUBMITTED THAT AS IT IS ALSO EVIDENT FROM THE ITATS ORDER FROM BOTH THE CASES THAT THE TRIBUNAL WAS FULLY AWARE OF THE COMPLETE FACTS. THE TRIBUNAL IN ITS WISDOM A ND AFTER DUE CONSIDERATION HAD HELD THAT A SUM OF RS. 20 LAKHS WAS TAXABLE IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08. LEARNED D.R. PLEADED THAT IT IS SETTLED LAW THAT REVIEW OF THE ORDER IN THE GARB OF RECTIFICATION IS NOT PERMISSIBLE. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT THE TRIBUNAL IN ITS ORDER IN THE CASE OF THE ASSESSEE AS WELL AS IN THE CASE OF A DEVELOPER WHICH WAS HEARD ON THE SAME DAY BY THE TRIBUNAL HAD DULY CONSIDERED THE ISSUE O F PAYMENT OF RS. 20 LAKHS. AFTER TAKING INTO ACCOUNT ALL THE SUBMISSIONS AND FACTS OF THE CASE THE TRIBUNAL HAD PASSED AN ORDER. IN THIS REGARD WE MAY GAINFULLY REFER TO THE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE IN THE CONCLUDING PORTION IN PA RAGRAPH 20 WHICH READS AS UNDER : THE ABOVE PARAGRAPHS EXTRACTED FROM THE ORDERS OF THE CIT(A) AND AO PROVIDE THAT IT IS THE ASSESSEES OWN SUBMISSION THAT THE SUM OF RS. 3 M.A. NO. 12/NAG/2013 20 LAKHS WAS PAID IN CASH AND THE SAME IN SUPPORT OF HIS CLAIM OF DEDUCTION U/S 54 OF THE ACT. AGREEMENT TO SALE IS A VALID DOCUMENT AND THE ASSERTIONS OF THE PARTIES RELATING TO CASH PAYMENT OF RS. 20 LAKHS IS TRUE CONSIDERING THEIR SIGNATURES IN THE PRESENCE OF THE WITNESS. WE ARE IN AGREEMENT WITH THE VIEWS OF THE CIT(A)/AO AND THE C ONTENTS OF THE CLAUSE RELATING TO MANNER OF PAYMENT HAVE TO BE EITHER CORRECT OR INCORRECT AND THEY CANNOT BE PARTLY CORRECT (CONDITION (II); AND PARTLY INCORRECT (CONDITION (I) AS BEING ATTEMPTED BY THE ASSESSEE. WILL THE FLAT - SELLER SIGN ON ANY AGREEME NTS AFFIRMING THE RECEIPT OF CASH OF RS. 20 LAKHS WHEN THEY SAME IS NOT ACTUALLY RECEIVED BY HIM. IN OUR OPINION, THE ANSWER IS NEGATIVE. THEREFORE, WE ARE OF THE OPINION HAT THE ORDER OF THE CIT(A) ON THIS ISSUE NEEDS NO INTERFERENCE. REGARDING THE ARGUME NT THAT THE ADDITION IF ANY HAS TO BE CONSIDERED ONLY FOR THE AY 2008 - 09, THE SAME DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATION AND THE SHALL BE EXAMINED AS WHEN THE GROUND IS RAISED IN APPROPRIATE AYS. IN ANY CASE, IT IS A SETTLED PRINCIPLE THAT THE S AME AMOUNT OF RS. 20 LAKHS CANNOT BE ADDED TWICE IN TWO DIFFERENT AYS WHEN THE FLA T IN QUESTION IS SINGULAR IN NUMBER. ACCORDINGLY, GROUND NO. 2 RAISED BY THE ASSESSEE IS DISMISSED. WE MAY ALSO GAINFULLY REFER TO THE CONCLUDING PORTION IN PARAGRAPH 5.4 OF THE TRIBUNALS ORDER IN ITA NO. 60/NAG/2012 IN THE CASE OF SHRI APPASWAMI INFRASTRUCTURE, THE PARTY TO WHOM THE PAYMENT WAS SAID TO HAVE BEEN MADE, AS UNDER : AFTER CONSIDERING THE ORDER OF THE AO AND LEARNED CIT(A) AND THE SUBMISSION OF BOTH THE PART I E S, WE FOUND THAT THIS ADDITION HAS NO LEGS TO STAND. FIRSTLY, THERE IS NO DISPUTE THAT THE AMOUNT OF RS. 20 LAKHS WAS RECEIVED ON ACCOUNT OF CONSTRUCTION OF FLAT. SHRI K.M. MOGHE HAS MADE ADVANCE OF RS. 20 LAKHS IN CASH AND FURTHER RS.9 LAKHS BY CHEQUE. HE HAS FILED CONFIRMATION ALSO. IN THE CONFIRMATION, IT HAS BEEN STATED HAT THIS AMOUNT WAS PAID IN CASH ON 5 - 4 - 2007. IT IS FURTHER SEEN THAT SHRI MOGHE HAS SURRENDERED THIS AMOUNT FOR ASSESSMENT YEAR 2008 - 09, WHICH IS SUBSEQUENT YEAR TO THE YEAR UNDER CO NSIDERATION. THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3). COPY OF WHICH IS PLACED IN THE COMPILATION AT PAGE 29 ONWARDS. IT IS FURTHE R SEEN THAT A REMAND REPORT WAS SOUGHT BY LEARNED CIT(A) FROM THE AO, COPY OF WHICH IS PLACED AT PAGES 41 TO 43 A ND IN RESPECT TO ADDITION OF RS.20 LAKHS, THE AO HAS STATED THAT ON THE BASIS OF FURNISHING A COPY OF AGREEMENT, THE ADDITION MADE BY THE AO MAY BE DELETED, IF CONSIDERED. I SHOWS THAT THE AO WAS SATISFIED THAT NO ADDITION CAN BE MADE IN THE HANDS OF THE A SSESSEE. IT IS ALSO A MATTER OF FACT THAT THE ADDITION OF RS.20 LAKHS WAS MADE BY THE AO IN THE HAND OF SHRI K.M. MOGHE FOR ASSESSMENT YEAR 2007 - 08 AND ALSO FOR 4 M.A. NO. 12/NAG/2013 ASSESSMENT YEAR 2008 - 09, WHERE SHRI K.M. MOGHE HIMSELF HAS SHOWN RS.20 LAKHS PLUS RS. 5 LAKHS A S HIS INCOME. A SPECIFIC AMOUNT CANNOT BE ADDED TWICE I.E. ONCE IN THE HANDS OF THE PE R SON, WHO HAS ADVANCED THE SAME AND SECONDLY IN THE HANDS OF THE PE R SON, WHO HAS RECEIVED THE ADVANCE. IN THE PRESENT CASE, SHRI K.M. MOGHE HAS ADMITTED GIVING ADVANCE OF RS.20 LAKHS TO THE ASSESSEE, THEREFORE, IN THE HANDS OF THE ASSESSEE NO ADDITION CAN BE MADE. FOR THIS REASON ALONE, THE ADDITION IS LIABLE TO BE DELETED. HOWEVER, IT IS FURTHER SEEN THAT ON SECOND APPEAL IN CASE OF MR. K.M. MOGHE, THE TRIBUNAL HAS CON FIRMED THE ADDITION OF RS.20 LAKHS FOR ASSESSMENT YEAR 2007 - 08. FOR THIS REASON ALSO, ADDITION CANNOT B E MADE IN THE HANDS OF THE ASSESSEE. 5. A READING OF THE ABOVE MAKES IT CLEAR THAT THE TRIBUNAL HAD CONSIDERED THE FACTS THAT THERE WAS AN AGREEMENT IN WHICH RS.20 LAKHS WAS CLAIMED TO HAVE BEEN PAID BY THE ASSESSEE TO THE DEVELOPER IN CASH. SUBSEQUENTLY IT WAS PLEADED THAT CASH WAS ACTUALLY NOT PAID AS PER THE AGREEMENT BUT IT WAS ACTUALLY PAID ON 05 - 04 - 2007. SUBSEQUENTLY IN THE NEXT ASSESSMENT YEAR THE ASSESSEE HAS HIMSELF OFFERED THE SAID AMOUNT OF RS.20 LAKHS FOR TAXATION. AFTER CONSIDERING THE ENTIRE GAMET OF THE CASE THE TRIBUNAL HAD CONCLUDED IN THE ASSESSEES CASE THAT THE ADDITION OF RS.20 LAKHS IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 WAS TO BE CONFIRMED. WHEN IT WAS POINTED OUT TO THE LEARNED COUNSEL OF THE ASSESSEE THAT IN FACT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND WHAT HE IS SEEKING IS A REVIE W OF THE ORDER WHICH IS NOT PERMISSIBLE BY THE TRIBUNAL UNDER LAW, LEARNED COUNSEL SUBMITTED THAT THE SAME AMOUNT OF CASH OF RS.20 LAKHS HAS BEEN TAXED IN THE HANDS OF THE ASSESSWEE FOR ASSESSMENT YEAR 2007 - 08. THE SAME AMOUNT OF RS.20 LAKHS HAS ALSO BEEN ADDED IN THE NEXT ASSESSMENT YEAR I.E. ASSESS MENT YEAR 2008 - 09 BECAUSE THE ASSESSEE HAS OFFERED THE SAME IN THAT YEAR. HENCE THE LEARNED COUNSEL HAS PLEADED THAT THE SAME AMOUNT HAS BEEN ADDED TWICE. WE FIND THAT THOUGH THE LEARNED COUNSEL OF THE ASSESSEE HAS A POINT WHICH REQUIRES CONSIDERATION BU T THE SAME CANNOT B E CONSIDERED IN A MISCELLANEOUS APPLICATION. WE FIND THAT THE LEARNED COUNSELS APPREHENSION THAT SAME AMOUNT WILL BE ADDED TWICE HAS BEEN TAKEN CARE OF BY THE TRIBUNAL ITSELF IN ASSESSEES OWN CASE. IN THE LAST THREE LINES OF THE ORDE R, THE 5 M.A. NO. 12/NAG/2013 TRIBUNAL HAD CLEARLY STATED THAT IN ANY CASE, IT IS A SETTLED PRINCIPLE THAT THE SAME AMOUNT OF RS. 20 LAKHS CANNOT BE ADDED TWICE IN TWO DIFFERENT AYS WHEN THE FLAT IN QUESTION IS SINGULAR IN NUMBER. THUS WE FIND THAT THE APPREHENSION OF THE L EARNED COUNSEL OF THE ASSESSEE IS MISTAKEN. ACCORDINGLY THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED AND DISMISSED ACCORDINGLY. BEFORE PARTING WE MAY ALSO ADD THAT THE ASSESSEE CANNOT BE TAXED IN TWO ASSESSMENT YEARS FOR THE SAME AMOUNT. THIS IS A SETTLED PRINCIPLE AND THERE IS NO DISPUTE AS HAS ALREADY BEEN FOUND BY THE TRIBUNAL IN ITS ORDER. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF OCT . 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT M EMBER. NAGPUR, DATED: 30 TH O CT ., 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE