The ACIT, Central Circle-2(1), Ahmedabad V. Shri Damodardas Madhavlal Soni, Ahmedabad

MA 127/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7458 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 08-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Document seized; Revised return; Documents seized

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI D K TYAGI - JM AND SHRI A K GARODIA - AM M A NO.127/AHD/2011 [ARISING OUT OF IT(SS)A NO.107/AHD/2009 BLOCK PERIOD:- 01-04-1995 TO 08-01-2002 THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), ROOM NO. 306, 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD AHMEDABAD V/S SHRI DAMODARDAS MADHAVLAL SONI, 3, SHIVALI APARTMENT, NR. NCC GROUND, NR. LAW GARDEN, ELLIS-BRIDGE, AHMEDABAD PAN: ACZPS 4284 R [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] REVENUE BY :- SHRI C K MISHRA ASSESSEE BY:- SHRI S N SOPARKAR AND SHRI JAIMIN GANDHI, AR DATE OF HEARING:- 06-01-2012 DATE OF PRONOUNCEMENT:- 13-01-2012 O R D E R PER D K TYAGI (JM) :- BY THIS MISCELLANEOUS APPLICATION, THE REVENUE HAS REQUESTED FOR RECALLING OF THE ORDER DA TED 24-12- 2010 PASSED BY THE ITAT IN IT(SS)A.NO.107/AHD/2007. 2. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HA S SUBMITTED AS UNDER: 2 THE HON'BLE ITAT HAS PASSED THE ORDER DATED 24/12/ 2010, RECEIVED BY CIT (CENTRAL)-LL, AHMEDABD ON 7/1/2011 AND RECEI VED BY THE APPELLANT ON 25/3/2011, ON TRANSFER. 2. ON PERUSAL OF THE SAID ORDER IT IS SEEN THAT HON 'BLE ITAT HAS DISMISSED THE APPEAL OF THE REVENUE. 3. IN THIS CASE, THE THEN A.O. HAS MADE ADDITION OF RS.10,35,000/- AS UNDISCLOSED INCOME, CONSTITUTING TWO PARTS I.E. RS.9,00,000/- BEING LOAN GIVEN TO BHUPENDRA D.DHAKAN BY THE ASSESSEE ON THE BASIS OF THE DISCRIMINATORY DOCUMENT SEIZED .AND INVENTORIED PAG E NO.7 TO ANNEXURE-A-8, AND RS.1,35,000/-BEING INTEREST OF RS .1,35,000/- (RS.75000+RS.60000) WHICH IS ALSO EVIDENT FROM THE AFORESAID SEIZED DOCUMENT. 4. THE LD. CIT (A) DELETED THE ENTIRE ADDITION HOLD ING THAT THE LOAN GIVEN RS.9 LAKH ARE OUT OF THE EARLIER LOAN OF RS.10 LAKH REPAID BY THE ASSESSEE AND AS FAR AS INTEREST OF RS.1,35,000/ -, THE SAME HAD ALREADY BEEN DISCLOSED BY THE .ASSESSEE THROUGH THE REVISED RETURN OF INCOME FILED ON 14/5/2002, I.E. BEFORE SERVICE OF T HE NOTICE OF U/S. 158 BD ON 31/3/2004. 5. WHILE DECIDING THE DEPARTMENT'S APPEAL, THE HON' BLE ITAT CONFIRMED THE VIEW OF THE LD. CIT (A) HOLDING THAT THIS ADVANCE OF RS.9 LAKHS IS OUT OF ADVANCE OF RS.10 LAKHS AND THI S CANNOT BE ADDED AS UNEXPLAINED INCOME. FURTHER IT WAS ALSO HELD THA T SINCE THE RETURN WAS REVISED WITHIN ONE YEAR FROM FILING THE RETURN BEFORE DUE DATE OF ITS FILING AND MUCH BEFORE THE SERVICE OF NOTICE U/ S 158 BD, ITS CONSIDERATION UNDER CHAPTER XIV B ITSELF WAS NOT JU STIFIED AND THE ADDITION OF RS.1,35,000/-IS ALSO DELETED. 6. IT IS PERTINENT TO MENTION HERE THAT THE HON'BLE ITAT HAS CONSIDERED THE FINDING OF THE CIT(A) 'IT CANNOT BE SAID THAT SHRI BHUPENDRABHAI HABITUALLY RECORDED BOTH THE REPAYMEN T OF THE LOAN AND THE INTEREST.' THIS CANNOT BE ESTABLISHED FROM THE DOCUMENT SEIZED IN THIS CASE. FURTHER, THE CONTENTION OF THE CIT(A) TH AT THE SEIZED ANNEXURE PAGE NO.6 OF ANNEXURE A-8 REVEALS THAT AS ON 29/10/2001 ONLY RS.1 LAKH REMAINED (TO BE PAID) TO THE APPELLA NT, ITSELF WOULD INDICATE THE REPAYMENT OF RS.9 LAKHS, WHICH IN TURN , WOULD HAVE CONSTITUTED THE FURTHER ADVANCE LATER AS OBSERVED I S NOT FACTUALLY CORRECT. IN PAGE NO.7 OF ANNEXURE A-8, THE DEBIT SI DE SHOWS RS.2 3 LAKHS + 6, LAKHS + RS.4 LAKHS (TOTAL RS.9 LAKHS) AG AINST THE NAME OF 'DMS' AND THE CREDIT SIDE TOTAL OF RS.8 LAKHS (RS.4 LAKHS + RS.1 LAKH + RS.1 LAKH + RS.1,7 LAKHS + RS.30,000) ARE REFLECTED AGAINST 'DMS'. THUS, THE BALANCE OF RS.1 LAKH WAS REFLECTED AT RS. 1 LAKH BEING BALANCE AT PAGE NO.6 OF ANNEXURE-8. THIS CANNOT BE CONCLUDED OR LEAD TO CONCLUSION THAT THE BALANCE OF RS.1 LAKH IS OUTS TANDING ON LOAN GIVEN PRIOR TO SEPTEMBER/OCTOBER, 2001. FROM THE SE IZED DOCUMENT OR PAPER, NO WHERE THERE IS ANY INDICATION OR ANY ENTR Y HAVING RECEIVED BACK SUCH ADVANCE BY THE ASSESSEE AMOUNTING RS.10 L AKHS. THE FINDING THAT SHRI BHUPENDRABHAI HAS ADOPTED A METHO D OF CALCULATING AND RECORDING THE AMOUNT OF INTEREST TILL THE PAYME NT OF PRINCIPAL AND THIS INTEREST HAS BEEN COMPUTED TILL 03-02-2001 AND 05-02-2001 ON THE ABOVE RS.10 LAKHS ADVANCED BY THE ASSESSEE IS ALSO NOT THE CORRECT POSITION. AS PER ENTRY AT PAGE NO.9 OF ANNEXURE A-7 THE ENTRY OF ONE PAYMENT OF INTEREST INDICATED UPTO 11/02/2001 RS.15 ,000/-. THE SEIZED DOCUMENTS INDICATES RECEIPTS OF LOANS, DISTRIBUTION OF SUCH PAYMENTS, COLLECTION OF INTEREST AND PAYMENT OF INTEREST, ETC . E.G. PAGES 9, 10, 11 OF ANNEXURE A-7. NOWHERE THERE IS ANY INDICATION OF PAYMENT OF INTEREST ON LOAN GIVEN RS.9 LAKHS DURING SEPTEMBER/ OCTOBER 2001 OR THE REMAINING BALANCE OUTSTANDING RS.1 LAKH ON 29/1 0/2001 REMITTED PRIOR TO THE DATE OF SEARCH, I.E. 08/01/2002. THE F INDINGS IN ORDER OF THE CIT(A) OR THE ORDER OF THE HON'BLE TRIBUNAL DOES NO T ESTABLISH WITH CORROBORATING EVIDENCE/DETAILS THAT THE ASSESSEE HA D RECEIVED BACK THE EARLIER ADVANCE OF RS.10 LAKH ON A SPECIFIED DATE. 7. FROM THE RECORD IT IS ALSO EVIDENT THAT THE ASSE SSEE HAD FILED A REVISED RETURN DECLARING INTEREST INCOME OF RS.1,35 ,000/- ON 14/5/2002 WAS A CONSEQUENTIAL EFFECT OF RECORDING A STATEMENT ON OATH OF SHRI BHUPENDRA D. DHAKAN ON 14/05/2002. THUS, ALL THE CO NTENTION THAT THERE WAS A JOINT VENTURE MOU AND ADVANCE OF RS.10 LAKHS WAS OUT OF THE JOINT VENTURE PROJECT APPEARS A FABRICATED CONT ENTION, TO SUBSTANTIATE THE SOURCE OF RS.9 LAKHS ADVANCE REFLE CTED IN THE SEIZED DOCUMENTS. THIS FACT APPEARS IGNORED WHILE DECIDING THE APPEAL. 8. THE HON'BLE ITAT HAS OMITTED TO CONSIDER THE FAC T THAT THE ADDITION OF RS.9 LAKHS IS BASICALLY ON THE BASIS OF SEIZED DOCUMENTS WHEREAS THE CONTENTION THAT THE SAME IS OUT OF THE REPAYMENT OF EARLIER ADVANCE GIVEN RS.10 LAKHS IS WITHOUT DOCUMENTARY EV IDENCE OR SUPPORTING PAPER AND ON PRESUMPTION. HENCE IT APPEA RS PERVERSITY IN FACTS AND REQUIRES RECONSIDERATION OF THE FACTS. PRAYER OF THE DEPARTMENT 4 IT IS THEREFORE HUMBLY PRAYED THAT THE HON'BLE ITAT MAY RECALL THE ORDER PASSED ON 24/12/2010 AND DECIDE THE CASE ON M ERITS ON THE CASE OF FACTS MENTIONED HEREIN ABOVE AND AMEND THE ORDER ACCORDINGLY. THE LEARNED DR ACCORDINGLY PRAYED THAT THE MATTER M AY BE RECALLED. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS, WE FIND THAT TRIBUNAL WHILE DISMISSING THE APPEAL OF T HE REVENUE, HAS GIVEN FOLLOWING FACTUAL FINDING:- 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE T HROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE FAC TS OF THE CASE THAT A SUM OF RS.5 LAKH OF ADVANCE ON 11-04-2000 AND FUR THER ADVANCE OF RS.5 LAKH ON 17-06-2000 HAS BEE-REPAID AND THE AMOU NT OF RS.10 LAKH AS NOTED FROM THE METHOD OF RECORDING OF INTEREST I N NOTES MAINTAINED BY SHRI BHUPENDRABHAI IN HIS DIARY AND OTHER RELEVA NT RECORDS, WHICH WERE FOUND DURING THE COURSE OF SEARCH. FROM THE DI ARY, IT IS NOTED THAT SHRI BHUPENDRABHAI HAS ADOPTED A METHOD OF CALCULAT ING AND RECORDING THE AMOUNT OF INTEREST TILL THE PAYMENT O F PRINCIPAL AND THIS INTEREST HAS BEEN COMPUTED TILL 03-02-2001 AND 05-0 2-2001 ON THE ABOVE RS.10 LAKH 'ADVANCED BY ASSESSEE TO SHRI BHUP ENDRABHAI. SHRI BHUPENDRABHAI HAS RECORDED THE RATE OF INTEREST TIL L THE PAYMENT OF PRINCIPAL I.E. ON 03-02-2001 AND 05 02-2001 ON THE ABOVE ADVANCE OF RS.10 LAKH I.E. RS.5 LAKH EACH. WE FIND THAT ASSESS ING OFFICER HAS ACCEPTED THE INTEREST IN THE CASE OF SHRI BHUPENDRA BHAI BUT. HAS NOT BELIEVED THE EXPLANATION OF THE ASSESSEE AS PER. SE IZED DOCUMENT PAGE 6 OF ANNEXURE-7 WHICH CLEARLY REVEALS THE DATE OF P AYMENT OF INTEREST ON THE ABOVE ADVANCE OF RS.5 LAKH EACH. WE ARE OF T HE VIEW THAT THIS ADVANCE OF RS.9 LAKH IS OUT OF ABOVE ADVANCE OF RS. 10 LAKH AND THIS CANNOT BE ADDED AS UNEXPLAINED INCOME. ACCORDING, W E ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED AND WE CONFIRM THE SAME. THIS ISSUE OF REVENUE'S APPEAL IS DISMISSED. IN VIEW OF THE ABOVE, IF THE CONTENTION OF THE REVE NUE IS NOW CONSIDERED, IT WILL AMOUNT TO REVIEWING OUR ORDER. THE LAW IS 5 WELL SETTLED THAT THE TRIBUNAL DOES NOT HAVE SUCH P OWER. SINCE NO MISTAKE APPARENT FROM RECORD HAS BEEN POINTED OUT B Y THE REVENUE IN THE ABOVE MISCELLANEOUS APPLICATION, THE SAME IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 13-01-2012 SD/- SD/- (A K GARODIA) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 13-01-2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI DAMODARDAS MADHAVLAL SONI, 3, SHIVALI APART MENT, NR. NCC GROUND, NR. LAW GARDEN, ELLIS-BRIDGE, AHMEDABAD 2. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CI RCLE- 2(1), ROOM NO. 306, 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-III, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-B, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD