Shri Deepak Panjwani, Indore V. The ACIT 5(1), Indore

MA 16/IND/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4962 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-10-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R P MORYA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Cost of acquisition; Validity of assessment
• Section: 54F; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER (1) SMT. CHANDNI PANJWANI (2) SMT.SUNITA PANJWANI (3)- (5) SMT.KAVITA PANJWANI (6) SHRI DEEPAK PANJWANI (7)-(10) SHRI NEERAJ VS. ASSISTANT COMMISSIOINER OF INCOME TAX, RANGE 5(1), INDORE. (1)M.A.NO.04/IND/2016 ARISING OUT OF .. ./ I.T.A. NO.65/IND/2011 A.Y.2003-04 (2)M.A.NO.05/IND/2016 ARISING OUT OF .. ./ I.T.A. NO.63/IND/2011 A.Y.:2003-04 (3) TO (5) M.A.NO.06 TO 08/IND/2016 ARISING OUT OF .. ./ I.T.A. NOS.67 TO 69/IND/2011 A.YS.2003-04, 2004-05 & 2006-07 (6)M.A.NO.16/IND/2016 ARISING OUT OF .. ./ I.T.A. NO.102/IND/2011 A.Y.: 2007-08 (7) TO (10)M.A.NO.15/IND/2016 AND 35 TO 37/IND/2015 ARISING OUT OF .. ./ I.T.A. NOS. 101/IND/2011, 98 TO 100/IND/2011 A.YS. :2007-08, 2003-04, 2004-05 & 2006-07 SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 2 OF 11 PANJWANI / APPLICANTS / RESPONDENT / APPELLANT BY SHRI S.N.AGRAWAL, C. A. / RESPONDENT BY SHRI R.P. MORYA, DR DATE OF HEARING 07.10.2016 DATE OF PRONOUNCEMENT 07.11.2016 / O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. ALL THESE MISC. APPLICATIONS ARE BY THE SAME GROUP OF ASSESSEES FILED U/S 254(2) OF THE INCOME-TAX ACT, 1 961, WHICH ARISE OUT OF ORDERS PASSED BY THE I.T.A.T. IN I.T.A .NOS. AND ASSESSMENT YEARS MENTIONED AGAINST EACH OF THEM AS ABOVE. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT I.T. A.T. VIDE ITS CONSOLIDATED ORDER DATED 28 TH FEBRUARY, 2013 HAD DECIDED THE APPEALS AS FILED BY THE ASSESSEE AND AL SO BY THE DEPARTMENT FOR THE ASSESSMENT YEARS 2003-04 TO 2007 -08 ALONGWITH OTHER FAMILY MEMBERS OF THE ASSESSEE. THE ASSESSEE SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 3 OF 11 HAS TAKEN EFFECTIVE GROUND IN THE APPEAL AS FILED B EFORE THE TRIBUNAL, THE SAME ARE REPRODUCED AS UNDER:- (IN THE CASE OF M.A.NO.05/IND/2016 SMT.SUNITA PANJWANI):- [L](A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT[A] GROSSLY ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT PROCEEDING U/S 153C OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, WITHOUT APPRECIATING THE MATERIAL FACT THAT THE ORIGINAL ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR UNDER CONSIDERATION HAD ATTAINED FINALITY AND THEREFORE IN ABSENCE OF SEIZURE OF ANY MONEY, BULLION, JEWELLERY, OTHER VALUABLE ARTICLES OR THINGS OR BOOKS OF OTHER DOCUMENTS, INDICATING ANY UNDISCLOSED INCOME OF THE APPELLANT FOR THE RELEVANT ASSESSMENT YEAR, DURING THE COURSE OF SEARCH U/S 132(1) CARRIED OUT IN OTHER CASES, THE LEARNED AO WAS NOT SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 4 OF 11 LEGALLY JUSTIFIED IN ASSUMING THE JURISDICTION U/ S 153C. [1](B) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT[A] GROSSLY ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT PROCEEDING U/S 153C OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, WITHOUT APPRECIATING THE MATERIAL FACT THAT FIRST OF ALL THE COPY OF REGISTERED SALE DEED, AS REFERRED TO BY THE LEARNED CIT(A), WAS NOT BELONGING TO THE APPELLANT AND EVEN IF IT IS PRESUMED TO BE BELONGING TO THE APPELLANT, IT COULD NOT LEAD TO THE ISSUANCE OF THE NOTICE U/S 153C FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. [2](A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) GROSSLY EARED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS U/S. 153C OF THE ACT SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 5 OF 11 WITHOUT APPRECIATING THE MATERIAL FACT THAT THE LEARNED AO HAD NOT RECORDED THE OBJECTIVE SATISFACTION, AS CONTEMPLATED U/S. 153C, BEFORE ASSUMING THE JURISDICTION OF THE ASSESSMENT. [2](B) THAT, WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) GROSSLY EARED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS U/S . 153C, ON THE BASIS OF THE SATISFACTION ALLEGEDLY RECORDED BY THE ASSISTANT DIRECTOR OF INCOME TAX IN THE APPRAISAL REPORT. [3] THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT(A) GROSSLY ERRED IN CONFIRMING THE ACTION OF THE LEARNED AO, OF NOT ACCEPTING LONG TERM CAPITAL GAIN OF RS 6,10,080/- SHOWN BY THE APPELLANT, BEFORE CLAIM OF DEDUCTION UNDER S. 54F OF THE ACT, IN HER COMPUTATION OF TOTAL INCOME, BY HOLDING, MERELY ON GUESS WORK, SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 6 OF 11 SURMISES, CONJECTURES AND EXTRANEOUS CONSIDERATION, THAT THE CREDIT OF RS 6,29,400/- FOUND IN THE BANK ACCOUNT OF THE APPELLANT WAS NOT PROCEEDS OF SALES OF SHARES BUT UNEXPLAINED INCOME OF THE APPELLANT UNDER S. 68 OF THE ACT, WITHOUT APPRECIATING THE DOCUMENTARY EVIDENCES. 3. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE HON'BLE BENCH IN PARA 76 ON INNER PAGE NO 214 OF THE ORDER HAS DISCUSSED THE GROUND NO 1 WHEREIN THE ASSESSEE HAS CHALLENGED THE LEGALI TY OF THE ADDITION MADE TO THE INCOME OF THE ASSESSEE IN THE ASSESSMENT PROCEEDING U/S 153C OF THE ACT. THE RELEVANT PARA 76 OF THE ORDER OF THE HON'HLE ITAT I S REPRODUCED AS UNDER:- '76. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT THE ASSESSEE HAS CHALLENGED THE VALIDITY OF SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 7 OF 11 ASSESSMENT FRAMED U/S 153C IN THE CASE OF KAVITA PANJWANI, SUNEETA PANJWANI. FROM THE RECORD, WE FOUND THAT INCRIMINATING MATERIAL WAS FOUND DURING COURSE OF SEARCH, THEREFORE, FRAMING OF ASSESSMENT U/ S 153C WAS JUSTIFIED. ACCORDINGLY, WE CONFIRM THE DETAILED FINDINGS OF THE CIT(A) WITH REGARD TO VALIDITY OF ASSESSMENT FRAMED U/S 153C.' 4. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT HON'BLE BENCH IN PARA 76 ON INNER PAGE NO 214 HAS APPROVED THE FRAMING OF ASSESSMENT U/S 153C OF THE ACT WITH REFERENCE TO THE INCRIMINATING DOCUMENTS FOUND AS DISCUSSED BY THE LD. CIT[A]. HOWEVER, HON'BLE BENCH HAS NOT DISCUSSED THE SCOPE OF ADDITION MADE IN THE ASSESSMENT FRAMED U/S 153C OF THE ACT WHICH WAS CHALLENGED BY THE ASSESSEE IN GROUND NO L[A]. 5. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THA T THE TRIBUNAL HAS DEALT WITH THE ISSUE IN RESPECT OF GROUND NO. SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 8 OF 11 1 AND ALSO GAVE A CLEAR CUT FINDINGS THAT INCRIMINA TING MATERIAL WAS FOUND DURING SEARCH, HENCE, PROCEEDINGS INITIATED IN 153C ARE VALID. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE TRIBUNAL IN PARA 4 OF ITS ORDER HAS DEALT WITH THE G ROUND WHICH IS REPRODUCED AS UNDER :- 4. IN CASE OF KAVITA PANJWANI, SUNITA PANJWANI, CHANDNI PANJWANI, NEERAJ PANJWANI, DEEPAK PANJWANI, HIRALAL PANJWANI, ASSESSMENTS WERE FRAMED U/S 153C. JURISDICTION ASSUMED U/S 153C, WERE CONFIRMED BY THE LD. CIT(A). THE ASSESSEE IS AGGRIEVED WITH REGARD TO VALIDITY OF ASSESSMENT PROCEEDINGS U/S 153C IN ALL THESE CASES. THE ASSESSEE HAS ALSO TAKEN GROUND WITH REGARD TO THE ABATEMENT OF ASSESSMENT PROCEEDINGS IN SO FAR AS TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) WAS COMPLETED IN SOME OF THE CASES. DURING THE COURSE O F ASSESSMENT, THE AO MADE ADDITION BY DISREGARDING SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 9 OF 11 TRANSACTION OF LONG TERM CAPITAL GAIN AND TREATING THE ENTIRE SALE PROCEEDS OF SHARES IN MEDIA MATRIX WORL D WIDE LIMITED (IN SHORT MMWWL), CREDITED IN THE BANK ACCOUNT AS UNEXPLAINED INCOME. GRIEVANCE OF THE ASSESSEE IS ALSO THAT COST OF ACQUISITION OF SHARES WAS ALSO NOT ALLOWED AS A DEDUCTION. THE AO HAS ALSO MADE ADDITION U/S 68 ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSIT IN THE BANK. 7. THE PERUSAL OF ABOVE PARA OF TRIBUNAL WILL REVEAL TH AT TRIBUNAL HAS CONSIDERED THE GRIEVANCE OF THE ASSESS EE REGARDING SCOPE AND JURISDICTION U/S 153C OF THE AC T. SIMILARLY, WE FIND FROM PARA 74 OF THE ORDER OF THE TRIBUNAL THAT THE ISSUE RAISED BY THE ASSESSEE WITH REGARD TO COMPLETION OF ASSESSMENT U/S 153C WAS ALSO ADJUDICATED BY THE L D. CIT(A) AND ACCORDINGLY, THE FINDINGS OF THE CIT(A) WERE RE PRODUCED THEREON AND WHILE THE SAME WERE CONSIDERED AND DECID ED VIDE PARA 76 OF THE TRIBUNAL ORDER, WHICH READS AS UNDER :- '76. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT THE ASSESSEE HAS CHALLENGED SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 10 OF 11 THE VALIDITY OF ASSESSMENT FRAMED U/S 153C IN THE CASE OF KAVITA PANJWANI, SUNEETA PANJWANI. FROM THE RECORD, WE FOUND THAT INCRIMINATING MATERIAL WAS FOUND DURING COURSE OF SEARCH, THEREFORE, FRAMING OF ASSESSMENT U/ S 153C WAS JUSTIFIED. ACCORDINGLY, WE CONFIRM THE DETAILED FINDINGS OF THE CIT(A) WITH REGARD TO VALIDITY OF ASSESSMENT FRAMED U/S 153C.' 8. FROM THE ABOVE FINDING OF THE TRIBUNAL READ WITH PAR AS 4, 74 & 76 MAKES IT CLEAR THAT THE TRIBUNAL HAS CON SIDERED LEGALITY OF FRAMING OF ASSESSMENT U/S 153C AND DECI DED THE SAME BY DISMISSING THE APPEALS OF THE ASSESSEES ON THIS ISSUE. AS THE TRIBUNAL HAS CLEARLY HELD THAT THE FINDINGS OF THE LD. CIT(A) WERE CONFIRMED WITH REGARD TO VALIDITY OF ASS ESSMENT FRAMED U/S 153C. THEREFORE, THERE IS NO APPARENT MI STAKE IN THE ORDER OF THE TRIBUNAL. IF THE CONTENTION OF LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE IS CONSIDERED, THEN IT TANTAMOUNTS TO REVISING THE DECISION WHICH STANDS AL READY DECIDED AND, HENCE, THE SAME IS NOT PERMISSIBLE U/S 254(2) OF THE INCOME-TAX ACT, 1961. THE CLAIM OF THE LD. AUTH ORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE TRIBUNAL HA S NOT DISCUSSED THE SCOPE OF ADDITION MADE IN THE ASSESSM ENT SMT.CHANDNI, SUNITA, KAVITA, SH DEEPAK & NEERAJ PANJWANI, MISC.APPLICATIONS NO. 4, 5/IND/2016 ETC. . PAGE 11 OF 11 FRAMED U/S 153C OF THE ACT AMOUNTS TO REVIEW OF THE APPEAL DECIDED BY THE TRIBUNAL. THEREFORE, THE SAME IS NO T ALLOWED. ACCORDINGLY, THE MISC. APPLICATIONS FILED BY THE A SSESSEES IN ALL THE CASES ARE DISMISSED. 9. IN THE RESULT, THE MISC. APPLICATIONS IN RESPECT OF ALL ABOVE APPLICANTS ARE DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 7 TH NOVEMBER, 2016. SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER ( / DATED : 7 TH NOVEMBER, 2016. CPU*