Prakash K. Kankaria, Ahmednagar V. Joint Commissioner of Income-tax,

MA 12/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5023 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-09-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 19-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Section: 132

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM MA NO.12/PN/2016 (ARISING OUT OF ITA NO.87/PN/2011) % % / ASSESSMENT YEAR : 1999-2000 PRAKASH K. KANKARIYA, SAI SURYA NETRA SEVA, VARDHAMAN MANIK CHOWK, AHMEDNAGAR. PAN NO. AGBPK 5896R APPLICANT V/S JT. COMMISSIONER OF INCOME, CIRCLE-2(2), C/O. INCOME TAX OFFICER, PMT BUILDING, SWARGATE, PUNE. RESPONDENT APPLICANT BY : SHRI NARESH KUMAR RESPONDENT BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUES TS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT SINCE THE ORDER HAS BEEN PASSED WITHOUT CONSIDERING THE SUBMISSION OF THE ASSESSEE. 2. THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE READ AS UNDER : 1. THIS MISCELLANEOUS APPLICATION ARISES OUT OF ITA NO. 87/PN/2011 DECIDED BY THE HON'BLE BENCH ON 24TH SEPTEMBER 2012 . 2. THE FACTS GIVING RISE TO THIS MA ARE NARRATED IN F OLLOWING PARAS. / DATE OF HEARING :11.11.2016 / DATE OF PRONOUNCEMENT:18.11.2016 2 MA NO.12/PN/2016 3. THE ASSESSEE IS AN OPHTHALMIC SURGEON. A SEARCH & SEIZUR E ACTION U/S 132 OF THE ACT WAS CARRIED OUT ON 1 ST SEPTEMBER 2004 AT THE ASSESSEE'S BUSINESS & RESIDENTIAL PREMISES. 4. DURING THE CONSEQUENTIAL ASSESSMENT PROCEEDINGS, AN AD DITION OF RS. 5 LACS WAS MADE. THIS ADDITION WAS BASED ON AN AGREEM ENT BETWEEN THE ASSESSEE AND ONE SHRI DOKE, WHEREUNDER THE ASSESSEE AGR EED TO PURCHASE A PLOT FROM THE SAID MR. DOKE. IT WAS FOUND T HAT AS PER THE NOTING ON THE REVERSE PAGE OF THE AGREEMENT, THE ASSESSE E HAD PAID RS. 10 LACS TO MR. DOKE UPTO 20-03-1997. IT WAS ALSO OB SERVED THAT MR. DOKE HAS GIVEN AN ACKNOWLEDGEMENT FOR RECEIPT OF RS. 5 LACS IN CASH ON 04.10.1998. AS THIS AMOUNT WAS NOT RECORDED IN THE BOOKS, AN ADDITION OF RS. 5 LACS WAS MADE. THE CIT(A) CONFIRMED THE ADDITION AND THE MATTER WAS CARRIED BEFORE THE HON'BLE ITA T BY T HE ASSESSEE. 5. THE HON'BLE BENCH HAS DEALT WITH THIS ISSUE IN PARAS 5 TO 7 OF ITS ORDER. 6. THE ASSESSEE CONTENDED BEFORE THE HON'BLE BENCH THAT THE AMOUNT OF RS. 5 LACS PAID BY THE ASSESSEE TO MR. DOKE ON 04.10.1998 WAS IN RESPECT OF PURCHASE OF A PLOT, WHICH DID NOT MA TERIALIZE. SHRI DOKE RETURNED THE AMOUNT ON 04.12.1998 WHICH FACT W AS CONFIRMED BY MR. DOKE IN HIS STATEMENT. ALSO AT THE TIME OF PAYMENT TO MR. DOKE ON 04.10.1998, THE ASSESSEE HAD SUFFICIENT CASH BALANCE AND THE SAID INVESTMENT HAS BEEN COVERED BY THE PROPORTIONATE INCO ME DISCLOSED BY THE ASSESSEE. IN SUPPORT OF THE AVAILABILITY OF CASH BALA NCE ON 04.10.1998, THE ASSESSEE HAD SUBMITTED ORIGINAL MANUAL CASH BOOK FOR THE PERIOD FROM 01.10.1998 TO 05.12.1998 VIDE PAGES 85 TO 125 OF THE PAPER-BOOK. 7. THE HON'BLE BENCH, HOWEVER, NEGATED THE CONTENTI ON OF THE ASSESSEE BY OBSERVING IN PARA 7 OF ITS ORDER AS UNDER: 'WE ARE UNABLE TO ACCEPT THE ARGUMENTS OF THE LD. CO UNSEL. THE FACTUM OF THE TRANSACTION HAS NOT BEEN DENIED. SHRI H.S.DOKE WAS PAID RS. 5 LACS IN CASH ON 04.10.1998. ADMITTEDLY THE SAID TRANSACTION WAS NOT RECORDED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THE JU STIFICATION OF THE ASSESSEE IS THAT EVEN IF THE SAID CASH TRANSACTION IS NOT RE CORDED IN THE BOOKS, BUT ON THE DATE OF PAYMENT, I. E. 04.10.1998, THE ASSESSEE HAD SUFFICIENT CASH BALANCE AND HENCE, THERE IS NO JUSTIFIC ATION TO MAKE THE ADDITION. IT IS NOT DEMONSTRATED AS TO HOW THE CASH BAL ANCE OF MORE THAN RS. 5 LACS WAS MAINTAINED CONSISTENTLY AND HOW THERE WAS ADDITION AND DELETION TO THE CASH BALANCE FROM 04.10.1998. BURDEN IS ON THE ASSESSEE TO DEMONSTRATE THAT BETWEEN 04.10.1998 TO THE ALLEGE D DATE OF RECEIPT OF THE SAID AMOUNT, I. E. ON 04.12.1998 THE ASSESSEE'S CA SH BALANCE WAS SUFFICIENT TO COVER UP THE OTHER TRANSACTIONS ALSO ... .. ' 8. IT IS SUBMITTED WITH RESPECT THAT IN HOLDING THAT THE ASSESSEE HAS NOT DEMONSTRATED AS TO HOW THE CASH BALANCE WAS CONSISTEN TLY OVER RS. 5 LACS BETWEEN 04.10.1998, THE HON'BLE BENCH DID NOT CONSIDER THE EVIDENCE IN THE FORM OF CASH-BOOK (PP.85-125 OF THE PAPER-BOOK) AND THE ASSESSEE'S SUBMISSIONS IN THAT BEHALF. THE ORDER OF THE HON'BLE BENCH THEREFORE SUFFERS FROM A MISTAKE WHICH IS APPARE NT FROM RECORDS. 3 MA NO.12/PN/2016 9. IN VIEW OF THE ABOVE APPARENT MISTAKE, WE RESPECTF ULLY PRAY THAT THE SAID ORDER IN ITA 87/PN/2011 MAY KINDLY BE RECAL LED AND THE MATTER BE HEARD AFRESH. 3. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY THE BOTH THE SIDES. WE FIND THE TRIBUNAL HAS ALREADY CONSIDERED THE SUB MISSION OF THE ASSESSEE AT PARA 6 OF THE ORDER WHICH IS REPRODU CED AS UNDER FOR THE SAKE OF CLARITY : 6. THE LD. COUNSEL SUBMITS THAT THE AMOUNT OF RS. 5 LA KHS PAID BY THE ASSESSEE TO SHRI DOKE BROTHERS ON 04-10-1998 WAS IN R ESPECT OF THE PROPOSED LAND DEAL WHICH DID NOT MATERIALIZE. THE SA ID AMOUNT WAS RECEIVED BACK FROM SHRI H.S. DOKE ON 04-12-1998 AND THE SAID FACT HAS BEEN ACCEPTED BY SHRI H.S. DOKE IN HIS STATEMENT REC ORDED DURING SURVEY ACTION U/S.133A BUT THE SAID ENTRY WAS NOT RECOR DED IN THE BOOKS OF ACCOUNT DUE TO INADVERTENT MISTAKE. HE SUBMI TS THAT NO EVIDENCE IS FOUND THAT THE ASSESSEE HAS SUPPRESSED ANY INCOM E. HE SUBMITS THAT AS ON 04-10-1998 THE CASH BALANCE AS PER T HE BOOKS OF ACCOUNT OF THE ASSESSEE WAS MORE THAN RS. 5 LAKHS AND TH E SAID INVESTMENT HAS BEEN COVERED BY THE PROPORTIONATE INCO ME DISCLOSED BY THE ASSESSEE. HE SUBMITS THAT JUST BECAUSE THE ASSESSEE FAILED TO MAKE ENTRY OF CASH PAYMENT OF RS.5 LAKHS IN THE BOOKS THAT DOES NOT MEAN THAT THE ASSESSEE HAD NO EXPLANATION FOR THE SOURCE OF H IS EXPENDITURE. 4. WE FIND THE TRIBUNAL AFTER CONSIDERING THE ABOVE SUBMISS ION OF THE LD. COUNSEL FOR THE ASSESSEE HAD GIVEN THE FOLLOWING FINDING : 7. WE ARE UNABLE TO ACCEPT THE ARGUMENTS OF THE LD. COUNSEL. THE FACTUM OF THE TRANSACTION HAS NOT BEEN DENIED. SHRI H.S. DOKE WAS PAID RS. 5 LAKHS IN CASH ON 04-10-1998. ADMITTEDLY THE SAID TRANSACTION WAS NOT RECORDED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. T HE JUSTIFICATION OF THE ASSESSEE IS THAT EVEN IF THE SAID CASH TRANSACTION I S NOT RECORDED IN THE BOOKS, BUT ON THE DATE OF PAYMENT, I.E. 04-10 -1998, THE ASSESSEE HAD SUFFICIENT CASH BALANCE AND HENCE, THERE IS NO JU STIFICATION TO MAKE THE ADDITION. IT IS NOT DEMONSTRATED AS TO HOW THE CA SH BALANCE OF MORE THAN RS. 5 LAKHS WAS MAINTAINED CONSISTENTLY AND HOW THE RE WAS ADDITION AND DELETION TO THE CASH BALANCE FROM 04-10 -1998. EVEN THOUGH IT IS CLAIMED THAT THE AMOUNT WAS RECEIVED BAC K FROM SHRI H.S. DOKE ON 04-12-1998, THAT IS ALSO NOT RECORDED IN THE BOOKS OF ACCOUNT. BURDEN IS ON THE ASSESSEE TO DEMONSTRATE THAT BETWEEN 04- 10-1998 TO THE ALLEGED DATE OF RECEIPT OF THE SAID AMOUNT, I.E. , 04-12-1998 THE ASSESSEES CASH BALANCE WAS SUFFICIENT TO COVER UP THE OTHE R TRANSACTIONS ALSO. IN OUR OPINION, THE ADDITION MADE BY THE ASSESSIN G OFFICER IS JUSTIFIED. WE ACCORDINGLY CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE GROUND TAKEN BY THE ASSESSEE. 4 MA NO.12/PN/2016 5. WE FIND THERE IS ABSOLUTELY NO ERROR IN THE ORDER OF THE TRIBUNAL AND A CONSCIOUS DECISION HAS BEEN TAKEN CONSIDER ING THE TOTALITY OF THE FACTS OF THE CASE. THE SUBMISSION OF THE AS SESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTING THE TRIBUN AL TO RECALL THE ORDER AMOUNTS TO REVIEW OF ITS OWN ORDER BY T HE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW. IN VIEW OF THE ABOVE DISCUSS ION, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BE ING DEVOID OF ANY MERIT. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-11-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 18 TH NOVEMBER, 2016. LRH'K ' (*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' ( ) - THE CIT-V, PUNE 4. ' S / THE JCIT, RANGE-10, PUNE 5. % ((), ), IQ.KS / DR, ITAT, B PUNE; 6. - / GUARD FILE. / BY ORDER , //TRUE COPY // // TRUE COPY // % ( //TRUE COP /0 ( ) / SR. PRIVATE SECRETARY ), IQ.KS / ITAT, PUNE