V.M. CONSTRUCTION, NAVI MUMBAI V. Income TAX OFFICER 28(3)(4), NAVI MUMBAI

MA 137/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5286 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Document seized; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Documents seized
• Section: 143(3); 133A; 132

Judgement Text

F IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 ASSESSMENT YEAR 2008 - 09 V. M. CONSTRUCTION GALA NO. H - 544/545 APMC FRUIT MARKET SECTOR - 19, VASHI NAVI MUMBAI - 400705 PAN AAFFV4933L V. INCOME TAX OFFICER WARD 28(3)(4) R.N.320, VASHI RAILWAY STATION COMPLEX TOWER NO. 6 3 RD FLOOR, VASHI, NAVI MUMBAI APPLICANT RESPONDENT ASSESSEE BY MS RITIKA AGARWAL REVENUE BY SHRI R AM TIWARI DATE OF HEARING : 27 - 07 - 2018 DATE OF PRONOUNCEMENT : 23 - 10 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATION( HEREINAFTER CALLED THE MA) HAS BEEN FILED BY ASSESSEE BEING MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 FOR ASSESSMENT YEAR ( AY ) 2008 - 09 . THIS MA FILED BY ASSESSEE IS SEEKING RECTIFICATION ON THE GROUNDS THAT THE ALLEGED MISTAKES CREPT IN THE ORDER PASSED BY THE INCOME - TAX APPELLATE TRIBUNAL( HEREINAFTER CALLED THE TRIBUNAL ) DATED 23.11.2017 IN ITA NO. 5752/MUM/2015 WHICH IN THE OPINION OF THE ASSESSEE ARE APPARENT FROM RECO RDS AND NEEDED TO BE RECTIFIED WITHIN THE LIMITED MANDATE OF SECTION 254(2) OF THE INCOME - TAX ACT,1961(HEREINAFTER CALLED THE ACT) . 2. 1 THE BACKGROUND OF THE CASE ARE THAT TRIBUNAL HAS PASSED AN DETAILED ORDER IN ITA NO. 5752/MUM/2015 VIDE ORDERS DATED 23.11.2017 WHEREIN THE ISSUE OF ADDITIONS TO THE TUNE OF RS. 2,71,00,000/ - U/S 69A OF THE 1961 ACT WAS RESTORED TO THE FILE OF THE LEARNED ASSESSING OFFICER ( HEREINAFTER CALLED THE AO) FOR DENOVO DETERMINATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. THE REVENUE HAS HOWEVER DEMONSTRATED THAT THE REASONS FOR REOPENING MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 2 AND DETAILS WERE GIVEN TO THE ASSESSEE WHICH AS WE SEE LATER IN THIS ORDER , THE ASSESSEE HAS DISPUTED. THE TRIBUNAL DIRECTED AO TO PROVIDE COPIES OF SEIZED MATERIAL AND OTHER INCRIMI NATING MATERIAL RELIED UPON BY REVENUE TO THE ASSESSEE BEFORE PREJUDICING ASSESSEE AND TO GRANT OPPORTUNITY OF CROSS EXAMINATION / REBUT THE INCRIMINATING EVIDENCES SEIZED BY REVENUE FROM THIRD PARTIES BEFORE PREJUDICING ASSESSEE. THE GERMANE TO ADDITIONS WERE SEARCHES AND SURVEY ACTION CONDUCTED BY REVENUE ON JAI CORP GROUP OF COMPANIES AND ALSO ON ONE MR MADAN KOLAMBEKAR WHO WAS MAINLY DEALING IN THE BUSINESS OF PROPERTIES/REAL ESTATE BASED IN NAVI MUMBAI AND WAS ACTING AS LAND AGGREGATOR FOR JAI CORP GR OUP OF COMPANIES. DURING SEARCHES ON SAID MR MADAN KOLAMBEKAR U/S 132 ON 22.01.2009 SEVERAL INCRIMINATING DOCUMENTS WERE SEIZED WHICH LED TO SURVEY U/S 133A ON THE SAME DAY ON JAI CORP GROUP WHICH ALSO LED TO RECOVERY OF SEVERAL INCRIMINATING MATERIAL AND EVIDENCES. LATER SEARCHES WERE CONDUCTED BY REVENUE U/S 132 ON JAI CORP GROUP OF CASES ON 05.03.2009 WHICH LED TO FURTHER UNEARTHING OF INCRIMINATING MATERIAL AND EVIDENCES. THESE EVIDENCES GATHERED BY REVENUE IN VARIOUS OPERATIONS UNEARTHED SEVERAL UNACC OUNTED CASH PAYMENTS BEING MADE TO SELLERS OF THE PLOT S WHICH WERE BOUGHT BY JAI CORP GROUP OF COMPANIES THROUGH MR MADAN KOLAMBEKAR. THE SAID MR MADAN KOLAMBEKAR WAS LAND AGGREGATOR FOR JAI CORP GROUP OF COMPANIES AND ADVANCES WERE GIVEN BY JAI CORP GROUP TO THIS MR MADAN KOLAMBEKAR AND ENTITIES CONTROLLED BY HIM TO WORK OUT ACQUISITION OF THESE PLOTS OF LAND FOR JAI CORP GROUP OF COMPANIES. THE SAID MR MADAN KOLAMBEKAR AND ENTITIES CONTROLLED BY HIM USED TO MAKE ADVANCES TO VARIOUS FARMERS/INVESTORS/SELLE RS OF THESE PLOTS OF LAND , WHICH INVOLVED UNACCOUNTED CASH PAYMENTS WHICH FOUND MENTIONED IN THE APPRAISAL REPORT PREPARED BY REVENUE. FROM ONE OF THE DOCUMENTS SEIZED BY REVENUE DURING THE COURSE OF SEARCHES AND SURVEYS CONDUCTED BY REVENUE AS MENTIONED ABOVE, IT TRANSPIRED THAT THE ASSESSEE ALSO HAD MADE A SALE OF LAND DEAL IN RESPECT OF CIDCO PLOT IN SECTOR 48, PLOT NO. 5 , AREA 2000 SQUARE METERS IN DRONAGIRI NODE FOR WHICH IT RECEIVED UNACCOUNTED CASH PAYMENT OF RS. 2.71 CRORES ON 28.01.2008(PAGE NO. 221/ANNEXURE A - 3) WHICH WAS NOT DISCLOSED IN RETURN OF INCOME FILED WITH REVENUE. THE ENQUIRIES WERE MADE BY REVENUE MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 3 AND IT TRANSPIRED THAT THE PLOT OF LAND IS IN PRIME LOCATION AND HAS A VALUE OF RS. 20000 TO RS. 25000 PER SQUARE METERS AT THAT TIMES WHEN SALE TOOK PLACE WHILE THE ASSESSEE SUPPRESSED SALE VALUE . THE ASSESSEE HAD SHOWN SALE AT THE RATE OF RS. 8750/ - PER SQUARE METERS. THE ASSESSEE TRI ED TO JUSTIFY ITS STAND OF SELLING AT THE ABOVE RATES BUT DID NOT REFERRED TO AFORESAID SEIZED MATERIAL ( ANNEXURE A - 3/PAGE 221) WHICH SHOWED THAT RS. 2.71 CORES WERE PAID TO THE ASSESSEE AS UNACCOUNTED CASH PAYMENT, WHICH LED TO THE ADDITIONS BY THE AO VI DE ASSESSMENT FRAMED U/S 143(3) R.W.S. 147 OF THE 196 1 ACT. 2.2 THE LEARNED CIT(A) DELETED THE ADDITIONS ON THE GROUNDS THAT THE AO DID NOT MADE FURTHER VERIFICATIONS APART FROM SENDING INSPECTOR. THE LEARNED CIT(A) HELD THAT THE SAID SEIZED MATERIAL WAS S EIZED FROM THIRD PARTY NAMELY MR MADAN KOLAMBEKAR/JAI CORP GROUP , WHICH MATERIAL WAS PART OF THEIR BOOKS OF ACCOUNTS/REGISTERS. THE LEARNED CIT(A) OBSERVED THAT THE AO DID NOT SUMMONED SAID MR MADAN KOLAMBEKAR OR JAI CORP GROUP TO RECORD THEIR STATEMENTS/ EXPLANATION AS TO THE MATERIAL SEIZED FROM THEIR POSSESSION. THE LEARNED CIT(A) FURTHER HELD THAT AO FAILED TO BRING ON RECORD END USE OF THE PURPORTED CASH OF RS. 2.71 CRORES RECEIVED BY THE ASSESSEE. IT WAS ALSO OBSERVED BY LEARNED CIT(A) THAT THE ASSESS EE NEVER GOT CHANCE TO CROSS EXAMINE THE PARTIES NOR GOT THE CHANCE TO REBUT THE INCRIMINATING EVIDENCES RELATED TO PAYMENT OF RS. 2.71 CRORES TO THE ASSESSEE. THE LEARNED CIT(A) WAS OF THE VIEW THAT SINCE THE INCRIMINATING MATERIAL WAS RECOVERED FROM THI RD PARTIES AND UNDER THESE CIRCUMSTANCES , THE ASSESSEE CANNOT BE BURDENED WITH THE ADDITIONS AND NO TAX LIABILITY CAN BE FASTENED ON THE ASSESSEE. THUS, ON MERITS OF THE ADDITIONS MADE BY THE AO, THE LEARNED CIT(A) HELD IN FAVOUR THE ASSESSEE AND DELETED T HE ADDITIONS AS WAS MADE BY THE AO. HOWEVER, ON JUSTIFICATION FOR REOPENING OF THE ASSESSMENT U/S 147 AND OTHER JURISDICTIONAL ISSUE, THE LEARNED CIT(A) DECIDED THE ISSUE IN FAVOUR OF REVENUE AND AGAINST ASSESSEE.THE ASSESSEE DID NOT CHALLENGE THE ISSUES D ECIDED AGAINST ASSESSEE BY LEARNED CIT(A) AS NEITHER APPEAL WAS FILED BY THE ASSESSEE NOR ANY CROSS OBJECTIONS WERE FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AND THESE ISSUES DECIDED AGAINST THE ASSESSEE ATTAINED FINALITY/ MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 4 2.3 THE REVENUE GOT AGGRIEVED BY D ELETION OF THE ADDITIONS BY LEARNED CIT(A) AND IT FILED AN APPEAL BEFORE TRIBUNAL CHALLENGING DELETION OF ADDITIONS ON MERITS . IT WAS FORCEFULLY ARGUED WHEN THE HEARING OF APPEAL TOOK PLACED BEFORE THE BENCH ON 03.10.2017 THAT INCRIMINATING MATERIAL WERE UN EARTHED BY REVENUE IN SEARCHES AND SURVEYS CONDUCTED ON MR MADAN KOLAMBEKAR GROUP AS WELL JAI CORP GROUP. APPRAISAL REPORTS WERE PREPARED BY REVENUE WHEREIN THERE IS DETAILED MENTION OF THE CASH DEALINGS UNDERTAKEN BY JAI CORP GROUP THROUGH MR MADAN KOLAMB EKAR GROUP F OR ACQUIRING LAND WHICH IS CORRO BORATED BY INCRIMINATING MATERIAL/EVIDENCES UNEARTHED DURING SEARCHES AND SURVEYS CONDUCTED BY REVENUE. THE ASSESSEE ALSO SOLD PLOT OF LAND AND WAS BENEFICIARY OF RECEIPT OF UNACCOUNTED CASH RECEIPT OF RS. 2.71 C RORES VIDE INCRIMINATING MATERIAL MARKED ANNEXURE A - 3/PAGE 221 WHEREIN THIS DOCUMENT CLEARLY MENTIONED NAME OF THE ASSESSEE AS AN RECIPIENT OF UNACCOUNTED CASH OF RS. 2.71 CRORES ON 28.01.2008 TOWARDS SALE OF ITS PLOT, WHICH WAS NOT OFFERED FOR TAXATION. RELIANCE WAS PLACED BY LD DR IN THE CASE DECIDED BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. JANSAMPARK ADVERTISING AND MARKETING PRIVATE LIMITED REPORTED IN (2015) 56 TAXMANN.COM 286(DEL.) TO CONTEND THAT POWERS OF LEARNED CIT(A) ARE CO - TERMINUS WIT H THE POWERS OF AO AND THE LEARNE D CIT(A) OUGHT TO HAVE CONDUCTED AN ENQUIRY HIMSELF INSTEAD OF BLAMING THE AO IN CASE LEARNED CIT(A) WAS OF THE VIEW THAT THERE ARE SOME DEFICIENCY IN THE ENQUIRY CONDUCTED BY THE AO BUT TO DELETE THE ADDITIONS WERE WRONG ON PART OF LEARNED CIT(A) WAS THE LINE OF ARGUMENT OF LEARNED DR BEFORE THE BENCH . THE STATEMENT AT BAR WAS MAD E BY LEARNED COUNSEL FOR THE ASSESSEE WHEN THE APPEAL WAS ORIGINALLY HEARD ON 03.10.2017 THAT THE SEIZED MATERIAL AS WELL REASONS FOR RE - OPENING OF CONCLUDED ASSESSMENT U/S 147 WERE NOT GIVEN TO THE ASESSEE DURING THE ASSESSM ENT PROCEEDINGS AND THE ASSESSE E NEVER GOT THE CHANCE TO REBUT THE INCRIMINATING MATERIAL NOR IT COULD CROSS EXAMINE THE PARTIES FROM WHOSE POSSESSION THESE DOCUMENTS WERE RECOVERED/SEIZED BY REVENUE, TO WHICH LD DR STRONGLY OBJECTED THAT WRONG CONTENTIONS ARE MADE BY LEARNED COUNSEL FO R THE ASSESSEE BEFORE THE BENCH AND SHOWED FROM APPELLATE ORDER PASSED BY LEARNED CIT(A) THAT THE ASSESSEE WAS DULY GIVEN COPIES OF REASONS FOR REOPENING OF CONCLUDED ASSESSM ENT U/S 147 OF THE MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 5 1961 ACT ON 2 3.08.2013 WHICH ALSO FOUND MENTIONED IN LEARNED C IT(A) ORDER /PAGE 9 PARA 5.2 OF LEARNED CIT(A) ORDER . THE ASSESSEE WAS FULLY AWARE OF THE PROCEEDINGS BEING CONDUCTED AGAINST IT. THE LEARNED DR THEN PRAYED THAT THE MATTER COULD BE SET ASIDE TO THE FILE OF THE AO FOR DENOVO DETERMINATION OF THE ISSUE ON ME RITS. THE TRIBUNAL WENT THROUGH ENTIRE MATERIAL BEFORE IT INCLUDING SEIZED INCRIMINATING MATERIAL WHEREIN THERE IS A MENTION OF PAYMENT OF RS. 2.71 CRORES AGAINST THE NAME OF THE ASSESSEE BEING PAID ON 28.01.2008 TOWARDS DEVELOPMENT CHARGES WHICH WAS DECOD ED BY REVENUE AS ON MONEY BEING PAID TO THE ASSESSEE BY MR MADAN KOLAMBEKAR FOR PURCHASE OF AFORESAID PLOT OF LAND AND THEREAFTER IN THE BEST INTEREST OF JUSTICE BEING FAIR TO BOTH THE PARTIES DEEMED IT FIT TO RESTORE THE ISSUE TO AO FOR DENOVO DETERMINA TION OF THE ISSUE ON MERITS. IT WAS ALSO DIRECTED BY THE TRIBUNAL IN ORDER TO DO COMPLETE JUSTICE TO BOTH THE PARTIES THAT WHATEVER INCRIMINATING MATERIAL ARE GOING TO BE RELIED UPON BY THE REVENUE TO PREJUDICE THE ASSESSEE, THE COPIES THEREOF SHALL BE PRO VIDED TO THE ASSESSEE FOR REBUTTAL AND THE PARTIES FROM WHOSE POSSESSION THE SAID INCRIMINATING DOCUMENTS WERE RECOVERED AT THE BACK OF THE ASSESSEE SHALL ALSO BE OFFERED FOR CROSS EXAMINATION BY THE REVENUE. THE TRIBUNAL NOTED THAT REVENUE IS FORCEFULLY CONTENDING THAT ALL SEIZED INCRIMINATING MATERIAL AS WELL REASONS WERE SUPPLIED TO THE ASSESSEE WHICH THE ASSESSEE WAS DISPUTING. THE TRIBUNAL ALSO CONSIDERED THAT THE POWERS OF LEARNED CIT(A) ARE CO - TERMINUS WITH THE POWERS OF THE AO AND IF THE LEARNED CI T(A) WAS OF THE OPINION THAT THERE WERE ANY DEFICIENCIES ON THE PART OF THE AO, THE LEARNED CIT(A) WAS DUTY BOUND TO LOOK INTO THE SAME AND SHOULD HAVE TAKEN CORRECTIVE STEPS INSTEAD OF ENTERING BLAME GAME. THE TRIBUNAL ALSO DIRECTED AO TO PROVIDE PROPER O PPORTUNITY OF BEING HEARD IN DENOVO PROCEEDINGS AS WELL DIRECTIONS WERE ISSUED TO ADMIT ALL EVIDENCES/EXPLANATIONS SUBMITTED BY THE ASSESSEE IN DENOVO PROCEEDINGS TO SUPPORT ITS CONTENTIONS. THE TRIBUNAL RELIED UPON FOLLOWING DECISION S OF HONBLE COURT S TO ARRIVE AT ITS DECISION AND TO DO COMPLETE JUSTICE TO BOTH THE PARTIES WHICH TRIBUNAL IN ANY CASE IS DUTY BOUND WITHIN MANDATE OF THE 1961 ACT : - MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 6 A ) HONBLE SUPREME COURT DECISION IN THE CASE OF CIT V. KANPUR COAL SYNDICATE (1964) 53 ITR 225(SC) B ) HONBLE SUPREME COURT DECISION IN THE CASE OF ANDAMAN TIMBER INDUSTRIES V. CCE(CIVIL APPEAL NO. 4228 OF 2006 , ORDERS DATED 02 - 09 - 2015) C ) HONBLE DELHI HIGH COURT DECISION IN THE CASE OF CIT V. JANSAMPARK ADVERTISING AND MARKETING PRIVATE LIMITED REPORTED IN (2015) T56 TAXMANN.COM 286(DEL.) IT IS ALSO PERTINENT TO MENTION THAT THE ASSESSEE NEVER FILED ANY APPEAL AGAINST THE ORDER OF LEARNED CIT(A) UPHOLDING THE VALIDITY OF THE RE - OPENING OF CONCLUDED ASSESSMENT NOR CROSS OBJECTIONS WERE FILED AGAINST THE APPEAL FILED BY REVENUE AND HENCE VALIDITY OF RE - OP EN ING OF THE ASSESSMENT AND THE FINDING OF LEARNED CIT(A) AS TO PROVIDING OF REASONS FOR RE - OPENING OF THE CONCLUDED ASSESSMENT BY THE REVENUE TO THE ASSESSEE ATTAINED FINALITY. 3. THE ABOVE IS BACKGROUND OF THE ENTI RE CASE. THE ASSESSEE HAS NOW FILED AN MA POINTING OUT SEVERAL MISTAKE PURPORTEDLY APPARENT FROM RECORDS WHICH IN THE OPINION OF THE LEARNED COUNSEL FOR THE ASSESSEE FALLS WITHIN LIMITED MANDATE OF PROVISIONS OF SECTION 254(2) OF THE 1961 ACT . THE FIRS T CONTENTION IN THIS MA IS RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF ADDITIONAL CIT V. LATA MANGESHKAR (97 ITR 696(BOM)) AND SECOND DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF BANK OF BARODA V. H.C.SRIVASTAVA (256 ITR 385(BOM) WHICH WERE CITED BEFORE LEARNED CIT(A) AND IT IS CLAIMED THAT TRIBUNAL DID NOT CONSIDERED THESE DECISIONS . IT WAS SUBMITTED THAT NO ADDITIONS CAN BE MADE BASED ON DOCUMENTS SEIZED FROM THIRD PARTY. IN THE INSTANT CASE, THE REVENUE HAS CONDUCTED SE ARCHES AND SURVEY AGAINST MR. MADAN KO LAMBEKAR GROUP/JAI CORP GROUP WHEREIN INCRIMINATING MATERIAL WAS FOUND WHICH INCRIMINATED ASSESSEE HAVING RECEIVED RS. 2.71 CRORES IN A LAND DEALING OF SALE OF PLOT OF LAND WITH THE AFORE - SAID GROUPS , WHICH UNACCOUNT ED CASH AMOUNT WERE ALLEGED BY REVENUE TO HAVE NOT BEEN REFLECTED BY ASSESSEE IN ITS RETURN OF INCOME FILED WITH THE REVENUE . THE ASSESSEE WAS FURNISHED WITH REASONS FOR MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 7 REOPENING AND THE ASSESSEE HAS GIVEN ELABORATE REPLIES BEFORE THE AUTHORITIES BELOW . T HE ASSESSEE VIDE LETTER DATED FILED BEFORE SH S.S. ACHAN, ITO(PAGE 38/PB) HAS REFERRED TO LAND DEAL OF SALE OF PLOT NO.5/SECTOR 48. DONAGIRI DURING YEAR UNDER CONSIDERATION AND CONFIRMED TO HAVE RECEIVED RS. 1.75 CRORES FROM MR MADAN KOLAMBEKAR. THE ASSES SEE FILED SEVERAL DOCUMENTS IN CONNECTION WITH THIS LAND DEAL BEFORE THE AO WHEREIN SEVERAL REPLIES WERE FILED , WHICH ARE PLACED IN PAPER BOOK FILED WITH TRIBUNAL . THE ASSESSEE WAS FINALLY GIVEN SHOW CAUSE NOTICE BY THE AO ON 24 - 02 - 2014(PB/63), THE ASSESSEE WAS SHOW CAUSED BY THE AO ABOUT THE INCRIMINATING MATERIAL SEIZED FROM MR MADAN KOLAMBEKAR GROUP/JAI CORP GROUP(PAGE 63 - 64/PB) AND THE ASSESSEE WAS ASKED AS TO WHY ADDITIONS BE NOT MADE F OR CASH DEALINGS IN THE SAID SALE OF LAND. THE ASSESSMENT WAS FRAMED ON 26.03.2014. THE ASSESSEE WAS AWARE OF THESE INCRIMINATING MATERIAL SEIZED FROM THESE PARTIES. THE ASSESSEE , HOWEVER, IS IN DENIAL MODE. THE ASSESSEE NEVER ASKED FOR CROSS EXAMINATION OF THESE PARTIES BEFORE THE AO . THE REVENUE HAS STATED THAT THESE DOCUMENTS RECORDING REASONS FOR REOPENING THE CONCLUDED ASSESSMENT WERE GIVEN TO ASSESSEE BY THE AO ON 23 - 08 - 2013 . THE LEARNED CIT(A) WHOSE POWERS ARE CO - TERMINUS MERELY DELETED THE ADDIT IONS BY ENTERING INTO BLAME GAME. THE TRIBUNAL AFTER CONSIDERING ENTIRE FACTUAL MATRIX SET ASIDE AND RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH DETERMINATION AND IN THE INTEREST OF JUSTICE AND BEING FAIR TO BOTH THE PARTIES, GRANTED ANOTHER OPPORT UNITY TO ASSESSEE TO COME CLEAN WHEREIN DIRECTIONS WERE ISSUED TO AO TO GIVE COPIES OF ALL INCRIMINATING MATERIAL ON WHICH THE REVENUE INTEND TO RELY TO PREJUDICE ASSESSEE AND GRANT CROSS EXAMINATION OF THE PERSONS FROM WHOSE POSSESSION SAID INCRIMINATING MATERIAL WERE RECOVERED. THE AO WAS DIRECTED BY TRIBUNAL TO ALLOW PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE AND ALSO TO ADMIT ALL EVIDENCES/EXPLANATION FILED BY ASSESSEE IN ITS DEFENCE. WE FAIL TO UNDERSTAND WHAT PREJUDICE IS CAUSED TO THE ASSESSEE BY TRIBUNAL AS THE MATTER IS ONLY REMANDED BACK FOR DENOVO CONSIDERATION OF THE ISSUE AND IT IS NOT THAT THE TRIBUNAL CONFIRMED THE ADDITIONS . IT IS WELL KNOWN THAT IN LAND/PROPERTIES DEALING, THERE IS RAMPANT ON MONEY BEING TRANSACTED . THE DOCUMENT (PB/76) - ANNEXURE - 3/PAGE 221 OF SEIZED MATERIAL WHICH WAS MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 8 RECOVERED DURING SEARCHES/SURVEYS IN THE CASE OF MR MADAN KOLAMBEKAR GROUP/JAI CORP GROUP CLEARLY REFLECT NAME OF THE ASSESSEE AND ALONGSIDE ENTRY OF RS. 2,71,00,000/ - DATED 28.01.2008 IS MENTIONED ALONG WITH 2000 DRONAGIRI. THE ASSESSEE PLOT SIZE IS 2000 SQUARE METERS AND PLOT IS SITUATED IN DRONAGIRI . EVEN PLOT NUMBER IS MENTIONED AND AT THE END WORD P IS MENTIONED IN THE SEIZED DOCUMENT . THE PLOT NUMBER IS AL SO CORRECT WHICH IS NOT DISPUTED BY THE ASSESSEE. THE ASSESSEE DID SOLD THIS PLOT OF LAND TO THESE VERY PARTIES FROM WHOSE POSSESSION THIS INCRIMINATING DOCUMENT WAS SEIZED. THIS IS NOT A DUMB DOCUMENT AND IT IS SPEAKING LOUDLY. THE INCOME - T AX ACT, 1961 IS GOVERNED BY PRE PONDERANCE OF PROBABILITIES AND THESE ARE NOT CRIMINAL PROCEEDINGS WHEN THE GUILT IS REQUIRED TO BE PROVED BEYOND REASONABLE DOUBT . THE ASSESSEE HAS TO COME CLEAN BY OFFERING EXPLANATIONS IN ITS DEFENCE. IT IS ALSO FACT OF THE MATTER THAT T HE ASSESSEE DURING THE YEAR UNDER CONSIDERATION DID SOLD ITS AFORESAID PLOT OF LAND TO THESE PARTIES AND IT WAS NOT A CASE OF THE ASSESSEE THAT NO SUCH PLOT OF LAND WAS SOLD. THE PAYMENT OF ON - MONEY IN PROPERTIES TRANSACTION IS WELL KNOWN IN INDIA. THE O NUS/BURDEN IN THE INSTANT CASE IS VERY HEAVY ON THE ASSESSEE ON PECULIAR FACTUAL MATRIX OF THE CASE. THE CASE OF LATA MANGESHKAR (SUPRA) CONCERNED ITSELF WITH PROFESSIONAL RECEIPT WHILE THE CASE BEFORE US IS OF SALE OF PLOT OF PLOT OF LAND. THE ASSESSEE D ID SOLD ITS PLOT OF AFORESAID PLOT OF LAND DURING THE YEAR UNDER CONSIDERATION TO THESE PARTIES ONLY AND THE DOCUMENT RECOVERED FROM THESE PARTIES IN SEARCH AND SURVEY OPERATIONS IS NOT A DUMB DOCUMENT AS IT CLEARLY RECORDS ITS NEXUS WITH SALE OF THE AFORE SAID PLOT OF LAND BY THE ASSESSEE ITSELF. THE CASE OF BANK OF BARODA V. H C SRIVASTAVA(SUPRA) DEALS WITH JUDICIAL DISCIPLINE TO BE FOLLOWED BY LOWER COURTS WITH WHICH WE ARE FULLY IN AGREEMENT WITH THE RATIO OF THAT DECISION. THE TRIBUNAL IN OPERATIVE PART OF ITS ORDER IN PARA 6/PAGE 8 WHILE OPENING ITS CONCLUSION HAS CLEARLY STATED THAT IT HAS CONSIDERED THE RIVAL CONTENTIONS AND MATERIAL ON RECORD INCLUDING CITED CASE LAWS AND ORDERS OF THE AUTHORITIES BELOW. IN ANY CASE TRIBUNAL HAS ONLY REMANDED THE MA TTER BACK TO THE AO FOR DENOVO CONSIDERATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH LAW WITH ALL NECESSARY SAFEGUARDS AS DETAILED ABOVE SO THAT THE ASSESSEE IS NOT BEING UNFAIRLY PREJUDICED. THE ASSESSEE HAS ALSO STATED IN MA FILED WITH MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 9 TRIBUNAL THAT DECISION IN THE CASE OF CIT V. M/S ANGCHECKER LAND PRIVATE LIMITED IN ITA NO. 1361/MUM/2014 FOR AY 2009 - 10 DECIDED BY MUMBAI - TRIBUNAL ON 08.03.2016 WAS NOT CONSIDERED BY THE TRIBUNAL. THIS CASE WAS ALSO DECIDED ON ITS OWN FACTUAL MATRIX. THE DOCUMENTS WERE FOUND FROM THE POSSESSION OF SOME THIRD PARTY AND THERE WAS MERE MENTION OF THE NAME OF THE VILLAGES WHEREIN TAX - PAYER PURCHASED LANDS AND THERE WAS NO SPECIFIC MENTION OF THE PLOT OF LAND ETC. BUT IN THE INSTANT CASE, THE DOCUMENT SPEAKS ABOUT THE ASSES SEE AND COMPLETE DETAILS OF DETAIL OF PLOT OF LAND , AMOUNT PAID ETC FOUND MENTIONED IN THE SEIZED DOCUMENT. THE DOCUMENT SEIZED IN THE INSTANT CASE BEFORE US WAS NOT A DUMB DOCUMENT BUT IS SPEAKING LOUDLY . THE ASSESSEE IS IN DENIAL MODE TO HAVE NOT RECEIV ED REASONS FOR REOPENING THE CONCLUDED ASSESSMENT WHILE LEARNED CIT(A) HELD THAT THE REASONS FOR REOPENING WAS GIVEN ON 23 - 08 - 2013. THE ASSESSEE DID NOT CHALLENGE THAT FINDING OF LEARNED CIT(A) AS NO APPEAL/CO WAS FILED BY THE ASSESSEE AND IT REACHED FINAL ITY. EACH CASE IS TO BE DECIDED ON ITS OWN PREVAILING FACTUAL MATRIX AND THERE IS NO STRAIGHT JACKET FORMULA. IN ANY CASE, TRIBUNAL IN THE INSTANT CASE HAS ONLY REMAND ED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION ON MERITS IN ACCORDANCE WITH LAW WITH ALL NECESSARY SAFEGUARDS AS DETAILED ABOVE SO THAT THE ASSESSEE IS NOT UNFAIRLY PREJUDICED. THEN CONTENTIONS ARE RAISED THAT SYNOPSIS AS WELL LETTER DATED 11.10.2017 FILED BY THE ASSESSEE IS NOT CONSIDERED. IT IS INCORRECT. THE TRIBUNAL DID CONSIDERED ALL MATERIAL ON RECORD TO ARRIVE AT A FAIR DECISION TO DO COMPLETE AND SUBSTANTIAL JUSTICE IN THIS CASE KEEPING IN VIEW FACTUAL MATRIX SURROUNDING THE CASE. NOW, DURING THIS MA , THE ASSESSEE HAS BROUGHT ON RECORD FRESH CASE LAWS WHICH WERE NOT CITED DURING THE COURSE OF HEARING BEFORE THE BENCH ON 03.10.2017 WHEN THE APPEAL WAS HEARD BY THE TRIBUNAL. THIS IS ANOTHER DESPERATE ATTEMPT ON THE PART OF THE ASSESSEE TO WRIGGLE OUT OF THE ORDER OF THE TRIBUNAL THROUGH THE PROCESS OF GIVING IT A COLOUR OF MISTAKE APPARENT FROM RECORD WHICH COULD IN THE OPINION OF LEARNED COUNSEL FOR THE ASSESSEE IS RECTIFIABLE WITHIN LIMITED MANDATE OF SECTION 254(2) OF THE 1961 ACT. WE COULD HAVE EASILY ASKED THE ASSESSEE TO REFRAIN FROM BRINGING ON RECORD SUCH JUDGMEN TS WHICH WERE NEVER REFERRED TO IN ORIGINAL HEARINGS OF THE APPEAL AS OTHERWISE THERE WILL BE NO END TO MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 10 LITIGATION AS ALSO THE OTHER PARTY HAS ALSO EQUAL RIGHT TO ENJOY FRUITS OF SUCCESS OF LITIGATION BUT KEEPING IN VIEW THAT NO UN - NECESSARY PREJUDICE SHO ULD BE CAUSED TO THE ASSESSEE, WE DEEM IT FIT TO GO THROUGH THESE FRESHLY CITED JUDGMENTS DURING THESE MA PROCEEDINGS. THESE JUDGMENTS ARE AS UNDER: A ) HONBLE BOMBAY HIGH COURT JUDGMENT IN THE CASE OF LAVANYA LAND PRIVATE LIMITED IN ITA NO. 72/2014 , DATED 23 .06.2017 B ) HONBLE BOMBAY HIGH COURT DECISION IN THE CASE OF CIT V. ARPIT LAND PRIVATE LIMITED IN ITA NO. 83/2014 , DATED 07.02.2017 THESE CASES CONCERNS ITSELF WITH THE DOCUMENTS RECOVERED FROM POSSESSION OF THIRD PARTY AND IT COULD NOT BE SHOWN THAT THESE DOCUMENTS BELONGED TO THE TAX - PAYER AND HENCE THE INVOCATION OF PROCEEDINGS U/S 153C OF THE 1961 ACT AGAINST THE TAX - PAYER WERE HEL D TO BE BAD.THE TRIBUNAL RECODED THE FINDING OF FACT THAT THESE DOCUMENTS WHICH WERE SEIZED FROM ONE MR DILIP DHERAI DID NOT BELONGED TO THE TAX - PAYERS AND ON THESE FINDING OF FACT RECORDED BY TRIBUNAL, INVOCATION OF PROVISIONS OF SECTION 153C WERE HELD TO BE BAD IN LAW. THE HONBLE BOMBAY HIGH COURT UPHELD THE FINDING OF FACT RECORDED BY TRIBUNAL AND JURISDICTIONAL ISSUE OF SECTION 153C WAS DECIDED IN FAVOUR OF THE TAX - PAYER AS IT COULD NOT BE SHOWN THAT DOCUMENTS SEIZED FROM THIRD PARTY BELONGED TO THE TA X - PAYER, W HILE IN THE INSTANT CASE BEFORE US , FIRSTLY THE PROCEEDINGS INITIATED AGAINST THE ASSESSEE ARE U/S 147/148 WHEREIN BASED ON THE INCRIMINATING MATERIAL /INFORMATION RECEIVED BY THE REVENUE, THE ASSESSMENTS WERE RE - OPENED. THE RE - OPENING WERE HELD TO BE VALID BY LEARNED CIT(A). THE ASSESSEE HAS ACCEPTED THAT FINDINGS BY LEARNED CIT(A) AS NO APPEAL/CROSS OBJECTIONS WERE FILED BY THE ASSESSEE. THE INGREDIENT OF SECTION 147/148 ARE DIFFERENT THAN THE INGREDIENTS OF SECTION 153C. THE DOCUMENT RECOVERED CLEARLY MENTION THE NAME OF THE ASSESSEE, DESCRIPTION OF PLOT OF LAND AND THE FIGURE MENTIONED IS RS. 2,71,00,000/ - . THE DATE IS ALSO MENTIONED IN THIS DOCUMENT MARKED AS ANNEXURE A - 3/PAGE 221 SEIZED FROM MR MADAN KOLAMBEKAR AND JAI CORP GROUP. THE ASSES S EE DID SOLD THE PLOT OF LAND TO THESE PARTIES. THE ASSESSEE WAS IN DENIAL MODE WHILE REVENUE STATED THAT ON 23.08.2013 , REASONS FOR RE - OPENING WERE MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 11 FURNISHED TO THE ASSESSEE WHILE THE ASSESSEE IS IN DENIAL MODE. THE SAID FINDING BY LEARNED CIT(A) ACHIEVE D FINALITY AS NO APPEAL/CO IS FILED BY THE ASSESSEE . IN ANY CASE, KEEPING IN VIEW TOTALITY OF THE CIRCUMSTANCE, THE TRIBUNAL SET ASIDE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION WITH ADEQUATE SAFEGUARDS SO THAT THE ASSESSEE IS NOT UN - FAIRLY TR EATED. ALL THESE CONCEPTIONS OF THE ASSESSEE ARE MISPLACED/BASELESS AND AN DESPERATE ATTEMPT TO SOME HOW WRIGGLE OUT OF THE WELL REASONED AND FAIR ORDER PASSED BY TRIBUNAL TO ADVANCE SUBSTANTIAL JUSTICE TO BOTH THE PARTIES BASED ON PECULIAR FACTUAL MATRIX OF THE CASE. THE CONTENTIONS OF THE ASSESSEE IS AN DESPERATE ATTEMPT TO SEEK SOME HOW REVIEW OF THE TRIBUNAL ORDER WHICH IS BEYOND MANDATE OF SECTION 254(2) OF THE 1961 ACT AND HENCE THESE CONTENTIONS ARE DISMISSED AS DEVOID OF ANY MERITS. THUS, BASED ON O UR ABOVE REASONING , WE ARE CONSTRAINED TO DISMISS THIS MA. THE ASSESSEE FAILS IN THIS MA. WE ORDER ACCORDINGLY. 4 . THUS, THIS M.A. NO. 137/MUM/2018 ARISI NG OUT OF APPEAL IN ITA NO. 5752 /MUM/20 15 FOR AY 2008 - 09 IS DISMISSED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 3 .10.2018 2 3 .10.2018 S D / - S D / - ( SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 3 .10.2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// MA NO. 137/MUM/2018 ARISING OUT OF ITA NO. 5752/MUM/2015 12 BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI