The DCIT, TDS Circle, Surat V. M/s. Oil & Natural Gas Corporation Limited, Surat

MA 13/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0315 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1997-1998
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Valuation report; Set aside
• Section: 143(3); 153A; 254(2); 6; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO. 13/SRT/2017 IN ITSSA NO.158/AHD/2014 FOR AY.2006-07 MA NO. 14/SRT/2017 IN ITSSA NO.616/AHD/2013 FOR AY.2007-08 MA NO. 16/SRT/2017 IN ITSSA NO.1086/AHD/2011 FOR AY.2007-08 MA NO. 17/SRT/2017 IN ITSSA NO.615/AHD/2013 FOR AY.2004-05 MA NO. 18/SRT/2017 IN ITSSA NO.272/AHD/2011 FOR AY.2006-07 MA NO. 19/SRT/2017 IN ITSSA NO.541/AHD/2011 FOR AY.2004-05 MA NO. 20/SRT/2017 IN ITSSA NO.271/AHD/2010 FOR AY.2004-05 ( VIRTUAL HEARING) JAMADAR TRAVELLS, DANDIA BAZAR, BHARUCH, GUJARAT PAN:AABHJ 9426 G VS ITO, WARD-1, BHARUCH. APPLICANT /ASSESSEE RESPONDENT/REVENUE ASSESSEE BY SH. HARDIK VORA ADVOCATE REVENUE BY MISS ANUPMA SINGHLA SR. DR DATE OF HEARING 11.12.2020 DATE OF PRONOUNCEMENT 14.12.2020 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THESE SEVEN MISCELLANEOUS APPLICATIONS (MAS) ARE FILED BY THE ASSESSEE FOR RECTIFICATION /RECALLING OF THE CONSOLIDATED ORDER DATED 20.04.2017 PASSED IN ABOVE MENTIONED INCOME TAX APPEALS ( ITAS). IN ALL MAS THE APPLICANT/ ASSESSEE HAS PLEADED COMMON GRIEVANCES, THE IMPUGNED ORDER PASSED BY OUR PREDECESSOR IS COMMON IN ALL THE APPEAL, THUS, ALL APPLICATION WERE HEARD AND ARE DECIDED BY COMMON MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 2 ORDER. FOR THE SAKE OF REFERENCE OF CONTENTION ON MAS THE MA NO. 13/SRT/ WAS TREATED AS LEAD CASE. 2. AT THE OUTSET THE LD. COUNSEL FOR ASSESSEE SUBMITS THAT IN MA. NO.13/SRT/2017, THERE IS CERTAIN FACTUAL MISTAKE, ABOUT THE NATURE OF GROUNDS RAISED IN CORRESPONDING APPEAL, WHICH HAS BEEN CORRECTED BY FILING FRESH APPLICATION, WHICH MAY BE TAKEN ON RECORD FOR CONSIDERATION. NO NEW FACTS ARE PLEADED IN THE FRESH APPLICATION EXCEPT CORRECTING THE FACTUAL MISTAKE. THE LD SENIOR FOR THE REVENUE HAS NOT SERIOUSLY OBJECTED OF CORRECTING THE FACTUAL MISTAKE. THEREFORE, WE DIRECTED TO CONSIDER THE FRESH APPLICATION FILED (SENT THROUGH POST) AT THE TIME OF CONSIDERING THE MERIT OF THE APPLICATION. 3. THE APPLICANT/ ASSESSEE INTER ALIA CONTENDED THAT THE FINDING OF THE TRIBUNAL IN ITS ORDER 24.07.2017, IS NOT CORRECT AND THE SAME IS AGAINST THE EVIDENCE ON RECORD. THE TRIBUNAL IN ITS ORDER HELD, (I) THAT DURING THE SEARCH THE ASSESSEE WAS IN POSSESSING OF BUNGALOW AND THAT THE ASSESSEE COULD NOT CORROBORATE THE COST OF EXPENDITURE INCURRED ON ITS CONSTRUCTION. THE BUNGALOW IS SHOWN IN THE BOOKS OF ACCOUNTS OF ASSESSEE. THE ASSESSEE DURING THE SEARCH AND ASSESSMENT FURNISHED ALL RELEVANT DOCUMENTS TO REVENUE, WHICH ARE ON RECORD. ALL THE DOCUMENTS WERE FILED BEFORE TRIBUNAL. THUS, THE FINDING OF TRIBUNAL THAT NO DETAILS WERE FURNISHED ARE FACTUALLY INCORRECT. (II) IN PARA 17 OF THE ORDER, IT IS MENTIONED THAT NO BIAS OF ANY SUBSTANTIVE MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 3 NATURE IN THE VALUATION REPORT OF DVO IS ON RECORD. THIS FINDING IS ALSO INCORRECT; THE ASSESSEE WAS SUPPLIED ONLY TWO PAGE OF THE DVOS REPORT, WHICH BEARS THE YEAR WISE VALUATION, WITHOUT SUPPLYING THE DETAILS OF THE REPORT. (III) NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH TO POINT OUT THAT ANY UNACCOUNTED INVESTMENTS WAS MADE IN THE BUNGALOW, THE ONLY BASIS OF ADDITION WAS THE VALUATION REPORT OF DVO, WHICH WAS PROCURED AFTER COMPLETION OF ASSESSMENT UNDER SECTION 153A. THE ADDITION IS NOT PERMISSIBLE IN ASSESSMENT ORDER UNDER SECTION 153A AS HELD BY GUJARAT HIGH COURT IN ITA NO. 24 OF 2016 IN SAUMYA CONSTRUCTION. (III) THE ORDER OF THE TRIBUNAL IS CONTRARY TO THE RATIO LAID DOWN BY JURISDICTIONAL HIGH COURT AND THIS AMOUNTS TO MISTAKE APPARENT ON RECORD AS HELD BY HONBLE APEX COURT IN ACIT VS SAURASHRA KUTCH STOCK EXCHANGE LTD. (305 ITR 227 SC). THE ASSESSEES PRAYED FOR RECTIFICATION OF THE ORDER, OR MODIFY OR RECALL THE ORDER. 4. THE LD COUNSEL (AR) FOR THE ASSESSEE BESIDES RELYING ON THE CONTENTS OF THE APPLICATION, SUBMITS THAT A SEARCH ACTION WAS CARRIED OUT AT THE GROUP OF ASSESSEE ON 17 TH JANUARY 2007, NO INCRIMINATING DOCUMENTS WERE SEIZED DURING THE SEARCH. THE ASSESSEE DISCLOSED RS. 20 LAKHS AS UNACCOUNTED INVESTMENT IN BUNGALOW. AT THE FAGUE END OF THE ASSESSMENT PROCEEDING, A REFERENCE WAS MADE BY ASSESSING OFFICER TO VALUATION OFFICER UNDER SECTION 142A FOR VALUATION OF COST OF MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 4 CONSTRUCTION OF THE BUNGALOW AND THE ASSESSMENT WAS CONCLUDED. AFTER RECEIVING VALUATION REPORT FROM THE VALUATION OFFICER, THE COMMISSIONER OF INCOME TAX INVOKED JURISDICTION UNDER SECTION 263 FOR ADDING 55.77 LAKHS FOR ASSESSMENT YEAR 2004-05 AND 3.90 LAKHS FOR ASSESSMENT YEAR 2006-07 AND 6.07 LAKHS FOR ASSESSMENT YEAR 2007-08 AS PER THE VALUATION REPORT. IN CONSEQUENT OF DIRECTION OF COMMISSIONER OF INCOME TAX, THE ASSESSING OFFICER MADE ADDITION IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 263. THE ADDITION MADE BY ASSESSING OFFICER WAS CONFIRMED BY COMMISSIONER (APPEALS). DURING THE HEARING OF ALL THE APPEALS, THE COUNSEL FOR ASSESSEE MADE A SUBMISSION THAT BUNGALOW WAS SHOWN IN THE REGULAR BOOKS OF ACCOUNT AND THE BALANCE SHEET AND CANNOT BE STATED AS INCRIMINATING MATERIAL. AS NO INCRIMINATION MATERIAL WAS FOUND DURING THE SEARCH, NO ADDITION CAN BE MADE IN AN ABATED ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 263. TO SUPPORT A SUBMISSION THE RELIANCE IN CASE OF SOMAYA CONSTRUCTION PRIVATE LIMITED (SUPRA), WAS MADE. EVEN THE AD HOC DECLARATION OF 20 LAKHS WAS MADE IN THE STATEMENT DURING THE SEARCH WITHOUT REFERRING TO ANY INCRIMINATING MATERIAL. ALL DETAILS, BILLS AND VOUCHERS WERE FURNISHED BY ASSESSEE, AND AS SUCH NO DEFECTS WERE FOUND THEREIN. DESPITE THE FACT THE TRIBUNAL CONFIRMED THE INVOCATION OF SECTION 263 ORDER AND THE CONSEQUENT ADDITION. THE TRIBUNAL HAS NEITHER OBSERVED ANY MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 5 SPECIFIC INCRIMINATING MATERIAL/DOCUMENT WAS FOUND DURING THE COURSE OF SUCH NOR COMMENTED UPON APPLICABILITY/NON-APPLICABILITY OF SOMAYA CONSTRUCTION CASE (SUPRA). THE TRIBUNAL FURTHER OBJECT THAT ASSESSEE COULD NOT CORROBORATE THE COST OF CONSTRUCTION OF BANGALORE, HOWEVER IN THE BALANCE SHEET AT PAGE NUMBER 10,53 AND 90 PAPER BOOK, BUNGALOW IS SPECIFICALLY REFLECTED. ALL BILLS/VOUCHERS WERE PRODUCED DURING THE ASSESSMENT PROCEEDING ARE FURTHER STATED IN THE SUBMISSION DURING ASSESSMENT PROCEEDINGS, COPIES OF WHICH WERE FURNISHED. ON THE AFORESAID SUBMISSION THE LEARNED AR OF THE ASSESSEE PRAYED FOR RECALLING THE ORDER. 5. ON THE OTHER HAND THE LEARNED SENIOR DR FOR THE REVENUE SUBMITS THAT THERE IS NO MISTAKE IN THE ORDER PASSED BY TRIBUNAL, WHICH CAN BE SAID TO BE A MISTAKE APPARENT ON RECORD OR WHICH MAY BE RECTIFY BY INVOKING THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE ASSESSEE ITSELF IN THE APPLICATION AS WELL AS DURING SUBMISSION ON THE PRESENT APPLICATION ADMITTED THAT SUBMISSIONS OF COUNSEL ARE DULY RECORDED IN PARA-8 THE ORDER. THE SUBMISSION OF DR REPRESENTING THE REVENUE IS ALSO RECORDED IN PARA 9 OF THE ORDER. IT WAS SPECIFICALLY BROUGHT TO THE NOTICE OF TRIBUNAL BY DR THAT THE ASSESSEE NEITHER DURING THE SEARCH PROCEEDING OR IN POST SEARCH PROCEEDING FURNISHED ANY DOCUMENTARY EVIDENCE TO SUPPORT THE COST OF CONSTRUCTION. IN ORDER TO FIND OUT THE PROPER AND CORRECT COST OF CONSTRUCTION, REFERENCE WAS MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 6 MADE UNDER SECTION 142A. THE LD. COMMISSIONER OF INCOME TAX RIGHTLY INVOKED THE POWER CONFERRED UPON HIM UNDER SECTION 263 ON RECEIPT OF REPORT OF VALUE. THE ASSESSEE FAILED TO AVAIL THE OPPORTUNITY OFFERED BY THE COMMISSIONER OF INCOME TAX TO REBUT THE LOGICAL QUESTION EMERGED ON THE RECEIPT OF VALUATION. THE LEARNED COMMISSIONER OF INCOME TAX CANNOT BE FAULTED IN EXERCISING HIS POWER. THE LEARNED COMMISSIONER OF INCOME TAX MERELY SET ASIDE THE ASSESSMENT ORDER AND ASSESSEE WAS OFFERED THE OPPORTUNITY TO EXPLAIN AND REBUT THE CONTENTS OF VALUATION REPORT, IF IT SO DESIRES BEFORE THE ASSESSING OFFICER. THE HONBLE TRIBUNAL AFTER CONSIDERING THE CONTENTION OF BOTH THE PARTIES PASSED THE DETAILED AND REASONED ORDER. THE ORDER PASSED BY TRIBUNAL CANNOT BE RECALLED, AS RECALLING OF ORDER WOULD BE REVIEW OF THE ORDER, WHICH IS BEYOND THE SCOPE OF APPLICATION UNDER SECTION 254 (2) OF THE ACT. THE TRIBUNAL HAS CONSIDERED THE CASE LAW RELIED BY ASSESSEE. THE APPLICATION FILED BY ASSESSEE IS MISPLACED AND IS LIABLE TO BE DISMISSED. 6. WE HAVE CONSIDERED THE RIVAL CONTENTION ABOUT THE PARTIES AND HAVE GONE THROUGH THE ORDER OF TRIBUNAL 20 TH APRIL 2017. WE HAVE NOTED THAT OUR PREDECESSOR PASSED THE ORDER AFTER CONSIDERING ALL THE MATERIAL PLACED BEFORE THE TRIBUNAL. THE SUBMISSIONS OF BOTH THE PARTIES WERE DULY RECORDED IN PARA-8 AND 9 OF THE ORDER. IN PARA-10 OF THE ORDER, DETAILED DELIBERATIONS AND DISCUSSION ON VARIOUS MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 7 SUBMISSIONS ARE RECORDED. WE HAVE FURTHER NOTED THAT THE CASE LAW RELIED BY ASSESSEE IS ALSO CONSIDERED. IN PARA-11.2 OF THE ORDER IT IS CATEGORICALLY RECORDED THAT THE ASSESSEE WAS FOUND TO BE IN CONTROL AND POSSESSION OF A PALATIAL BUNGALOW IN THE COURSE OF SEARCH, THE ASSESSEE COULD NOT CORROBORATE THE COST OF CONSTRUCTION OF BUNGALOW AS RECORDED IN THE BOOKS OF ACCOUNT WITH THE SUPPORTING BILLS. THE COST OF CONSTRUCTION ON INVESTMENT IN BUNGALOW WAS PURPORTEDLY RECORDED IN THE BOOKS OF ACCOUNT; THE TRUE VALUE THEREOF COULD NOT BE ESTABLISHED BY THE SUPPORTING DOCUMENTS. SINCE THE ASSESSEE FAILED TO OFFER SATISFACTORY COOPERATION TOWARD THE OUTLAY OF COST OF BUNGALOW, THE ASSESSING OFFICER ACCORDINGLY MADE HIS ENDEAVOUR TO EXPLORE THE TRUE VALUE OF BUNGALOW. THE LEGALITY OF ORDER PASSED UNDER SECTION 263 IS ALSO EXAMINED AS RECORDED IN PARA-11.3 TO 11.5 OF THE ORDER. IN PARA-12 THE ORDER, IT WAS NOTED THAT ASSESSEE RAISED SOME OTHER CONNECTED GROUNDS FOR LEADING THE ACTION OF COMMISSIONER OF INCOME TAX; HOWEVER, THE REPRESENTATIVE OF ASSESSEE NOT ADDRESSED THOSE GROUNDS. IT WAS NOTED THAT BEFORE PASSING THE ORDER LEARNED COMMISSIONER OF INCOME TAX, GRANTED OPPORTUNITY TO THE ASSESSEE, THE ASSESSEE ITSELF HAS NOT AVAILED THOSE OPPORTUNITY, NO REASONS WERE EXPLAINED AS TO WHY THE ASSESSEE DID NOT AVAILED THE OPPORTUNITY, THEREFORE, THE REMAINING OTHER GROUNDS, THOUGH WERE NOT ARGUED, WERE ALSO CONSIDERED AND ADJUDICATED UPON. UNDER THE GARB OF PRESENT MA NO.13 & 14, 16 TO 20/SRT/2017 JAMADAR TRAVELLS 8 APPLICATION, THE APPLICANT CANNOT SEEK APPRECIATION OR RE- APPRECIATION OF THE FACTS AND EVIDENCE. IN OUR CONSIDERED VIEW, NONE OF THE CONTENTION RAISED IN THE PRESENT APPLICATION REQUIRED FURTHER INDULGENCE UNDER THE SCOPE OF PROVISION OF SECTION 254(2) OF THE ACT. THE ASSESSEE SEEKING REVIEW OF THE ORDER WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERIT OR SUBSTANCE IN THE APPLICATION FILED BY ASSESSEE FOR SEEKING RECTIFICATION IN THE ORDER DATED 20 TH APRIL 2017. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED. 7. CONSIDERING THE FACT THAT ASSESSEE HAS RAISED COMMON CONTENTION IN ALL MISCELLANEOUS APPLICATIONS, COMMON SUBMISSION WAS MADE IN ALL THE APPLICATIONS, CONSIDERING OUR DECISION IN MISCELLANEOUS APPLICATION NUMBER 13/SRT/2017, ALL THE MISCELLANEOUS APPLICATION AS REFERRED ABOVE IN ARAB PARTIES ARE DISMISSED WITH SIMILAR OBSERVATION. ORDER PRONOUNCED ON 14 TH DECEMBER 2020, BY PLACING THE RESULT ON THE NOTICE BOARD. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ) SURAT, DATED: 14 TH DEC, 2020 SELF/ BY AUTHOR COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER // TRUE COPY // / ASSISTANT REGISTRAR, SURAT