M/s Shyam Builders, Ahmedabad V. The A C I T Cir-9, Ahmedabad

MA 176/AHD/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6134 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1997-1998
• Appeal Filed On: 28-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANISTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND A.N. PAHUJA, ACCOUNTANT MEMBER) MA NO.176/AHD/2009 IN ITA NO.2723/AHD/2002 [ASSTT. YEAR : 1997-1998] M/S.SHAYM BUILDERS 22/23, KRISHNAGAR, INDIAN COLONY BAPUNAGAR, AHMEDABAD. VS. ACIT, CIR.9 AHMEDABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI ASEEM THAKKAR REVENUE BY : SHRI R.K. DHANISTA O R D E R PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER: THIS IS ASSESSEES MA ARISING OUT OF THE ORDER OF THE TRIBU NAL, AHMEDABAD DATED 28.3.2008. THROUGH THIS MISC. PETITION FILED ON 28- 5-2009, THE MAIN CONTENTION OF THE APPLICANT IS THAT A DOCUMENT TERMED AS PURC HASE DEED WAS IN THE COMPILATION, BUT THE SAME WAS NOT CONSIDERED BY THE TRIBUNAL, THEREFORE, DUE TO NON-APPRECIATION OF CERTAIN FACTS A MISTAKE HAS BEE N COMMITTED. NOW THROUGH THIS PETITION PAGES 9 TO 11 OF THE SAID PAPER BOOK HAS ALSO BEEN REFERRED. LD. AR MR. ASEEM THAKKAR HAS TRIED TO CLARIFY THAT A PO RTION OF THE LAND WAS NOT FACTUALLY PURCHASED BUT ONLY THE POSSESSION WAS ALL EGEDLY TAKEN OVER AND DUE TO WHICH THE ASSESSEE WAS HAVING SUFFICIENT LAND IN HAND WHICH WAS THEN TRANSACTED DURING THE YEAR UNDER CONSIDERATION. FO R REFERENCE RELEVANT PARA-5 AND 7 OF THE MISC. PETITION ARE REPRODUCED BELOW: 5. IT HAS BEEN STATED THAT LOOKING INTO THE FACTS A ND CIRCUMSTANCES OF THE CASE THE A.O. HAD VERIFIED THE BREAK UP OF OPENING AND CLOSING STOCK OF LAND. AN OBSERVATION B Y THE HON. ITAT WAS ALSO MADE THAT THE CLOSING BALANCE OF LAND OF W AS 3367 SQ.YD AND THE SALES WAS OF 3096 SQ.YD TOTALING 6463 SQ. Y ARDS. THERE WAS AN OPENING STOCK OF LAND OF ONLY 2382 SQ.YD. ON ACC OUNT OF THIS THE APPELLANT WAS NOT IN A POSITION TO EXPLAIN THE SURP LUS LAND OF 4081 SQ.YD (6463 - 2382). IT HAS ALSO BEEN STATED THAT THE APPELLANT HAS NOT BEEN ABLE TO RECONCILE THE POSSESSION OF THE LA ND FOR THE YEAR MA NO.176/AHD/2009 -2- UNDER CONSIDERATION. AN OBSERVATION HAS ALSO BEEN M ADE THAT IF THE PURCHASE OF LAND ADMEASURING 7680 SQ.YD IS MADE HOW EVER NO PAYMENT HAS BEEN MADE AND NEITHER THE NAMES OF THE SELLERS HAVE BEEN SHOWN IN THE BOOKS OF ACCOUNTS. EVEN IF NO PAYMENT HAVE BEEN MADE TO THE SELLER OF THE LAND THE AMOUNT PAYA BLE HAVE NOT BEEN SHOWN BY WAY OF CREDITORS IN THE BOOKS OF ACCO UNTS. IF THE LAND IN QUESTION WAS PURCHASED ON 08-04-1997 AND 22-4-19 97 AND THEREFORE, THEREBY NO PURCHASE OF LAND AND THEREFOR E THE ACTION OF THE AO IN MAKING THESE ADDITIONS WAS FOUND TO BE JU STIFIED. XXXX 7. REFERENCE WAS ALSO INVITED TO THE PURCHASE DEED WHI CH HAS BEEN PLACED ON PAGE 9 TO II OF THE PAPER BOOK. ATTENTION IN PARTICULAR WAS DRAWN TO PAGE 10 WHEREIN IT WAS CLEARLY INDICATED T HAT ADDITIONAL LAND BEARING SURVEY NO. 221/5 ADMEASURING 2504 SQ.YD WAS TAKEN POSSESSION ON 28-12-1996 I.E., YEAR UNDER APPEAL. THE PURCHASE DEEDS WERE EXECUTED IN THE SUBSEQUENT YEAR AND THEREFORE, THE ACCOUNTING THEREOF HAS BEEN MADE IN A.Y. 1998-1999. THIS ENTIRE FACT H AS BEEN OVERLOOKED BY THE HON. TRIBUNAL WHILE PASSING THE ORDER. 2. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, THE LEARNED DR MR.R.K.DANISHTA HAS VEHEMENTLY OBJECTED THE CONTE NTS OF THE MISC. PETITION PRIMARILY ON THE GROUND THAT THE SAID PURCHASE DEE D, AS REFERRED IN THIS M.A. WAS NEVER CITED BEFORE ANY OF THE AUTHORITIES RIGHT FROM THE AO UPTO THE STAGE OF TRIBUNAL. HE HAS ALSO EMPHASIZED THAT THOUGH TH E LEARNED CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE, BUT THAT RELIEF WAS NOT AT ALL ON THE GROUND OF THE EVIDENCES NOW REFERRED TO IN THIS MISC. PETITION. A SERIOUS DOUBT HAS ALSO BEEN RAISED DURING THE COURSE OF HEARING BEFORE US ABOUT THE PRESENCE OF THE SAID EVIDENCE IN THE COMPILATION BECAUSE THE SAID COMPIL ATION WAS OTHERWISE DULY NUMBERED IN REST OF THE PAGES, BUT SURPRISINGLY PAG E NO.9 TO 11, AS ALLEGED IN THIS MISC. PETITION ARE NOT SERIALLY NUMBERED. 3. ON HEARING THE SUBMISSIONS OF BOTH THE SIDES, WE FIND NO FORCE IN THIS MISC. PETITION. AS REFERRED BY THE LEARNED DR, IT IS TRUE THAT THE ALLEGED PURCHASE DEED WAS NEITHER REFERRED BY THE AO NOR BY THE CIT(A). HAD IT BEEN SUCH A VITAL EVIDENCE, THEN NATURALLY BOTH THE AUTHORITIES SHOULD NOT HAVE OVERLOOKED THE SAME. AS FAR AS THE ORDER OF THE R ESPECTED CO-ORDINATE BENCH MA NO.176/AHD/2009 -3- DATED 28.3.2008 IS CONCERNED, WE HAVE CAREFULLY PER USED THE SAID DECISION AND THEREUPON NOTICED THAT THERE WAS NO REFERENCE OF TH E ALLEGED PURCHASE DEED. IT IS ALSO WORTH TO MENTION, WHAT WE HAVE NOTICED, THAT THE SAID COMPILATION WAS OTHERWISE SERIALLY NUMBERED AND SURPRISINGLY REST O F THE PAGES HAVE NUMERICALLY NUMBERED EXCEPT PAGES NO.9 TO 11. MEAN ING THEREBY, THE PAGES NOW REFERRED IN THIS PETITION ARE DOUBTFUL AND CONS PICUOUS IN NATURE. FURTHER, IT IS ALSO WORTH TO MENTION THAT THE ALLEGED PURCHASE DEED WAS FOUND TO BE WRITTEN IN GUJARATI LANGUAGE AND NO ATTEMPT SO FAR HAS BEEN MADE BY THIS APPLICANT TO FILE AN ENGLISH TRANSLATION AT ANY STA GE OF THE PROCEEDINGS. WE HAVE PERUSED PARA-6 OF THE ORDER OF THE TRIBUNAL DA TED 28-3-2008 AND HAVE NOTICED THAT THE VIEW WAS TAKEN IN FAVOUR OF THE RE VENUE BECAUSE THE ASSESSEE WAS UNABLE TO RECONCILE THE POSITION OF THE LAND HO LDING IN THE YEAR UNDER CONSIDERATION. THE TRIBUNAL HAS EVEN TAKEN DUE CO GNIZANCE OF THE CONTENTION THAT THE ASSESSEE HAD ALLEGEDLY PURCHASED THE LAND, BUT WHILE NEGATING THE SAID CONTENTION, COMMENTED THAT THE ASSESSEE HAD NOT MAD E THE PAYMENT. IN THIS REGARD, THE TRIBUNAL HAD ALSO MADE AN OBSERVATION T HAT THE ASSESSEE HAD FAILED TO SHOW THE NAMES OF THE SELLERS AND EVEN THERE WAS NO OUTSTANDING BALANCE INDICATED IN THE BOOKS OF ACCOUNTS. THE TRIBUNAL H AS CATEGORICALLY STATED THAT IF THE ASSESSEE HAD NOT PAID THE AMOUNT TO THE LAND OW NER, THEN THEIR NAMES OUGHT TO HAVE BEEN APPEARED IN THE BOOKS OF ACCOUNTS AS C REDITORS. IN THE ABSENCE OF SUCH DETAILS EITHER IN THE BALANCE SHEET OR IN ANY OF THE REFERENCE MADE BEFORE THE TRIBUNAL AN ADVERSE VIEW WAS TAKEN. IN VIEW OF THIS, WE FIND NO MISTAKE AT ALL IN THE JUDGMENT OF THE TRIBUNAL WHICH CAN BE SA ID TO BE RECTIFIABLE U/S 254(2) OF THE ACT. 3. NEXT, THROUGH THIS PETITION, IT HAS BEEN ALLEGED THAT DURING THE COURSE OF ARGUMENT BEFORE THE TRIBUNAL IT WAS CONTENDED THAT SEARCH TOOK PLACE ON 21-1- 1997 AND THE ASSESSMENT YEAR UNDER APPEAL COMPRISED OF PART OF THE BLOCK PERIOD. IT IS THEREFORE CONTESTED THAT THE ADDITIO N ON THE BASIS OF THE EVIDENCE BEING PART OF THE BLOCK PERIOD, SHOULD NOT HAVE BEE N TAXED IN THE REGULAR PROCEEDINGS. MA NO.176/AHD/2009 -4- 4. WE HAVE SPECIFICALLY ASKED THAT WHETHER THIS GRO UND WAS RAISED BEFORE THE TRIBUNAL? WE HAVE NOTICED THAT AS PER THE GROU NDS OF APPEAL, THERE WAS NO SUCH GROUND AND THERE IS NO REFERENCE OF ANY ADDITI ONAL GROUND EVER RAISED BEFORE THE TRIBUNAL. THE LEARNED AR HAS SIMPLY M ENTIONED THAT HE HAS ARGUED THIS GROUND, BUT NOT RAISED THE SAME IN WRITING. W E FIND NO SUBSTANCE IN THIS CONTENTION BECAUSE SUCH AN ISSUE MUST NOT BE MENTIO NED IN A CAUSAL MANNER IN THE COURSE OF ARGUMENTS, IF AT ALL RAISED, BUT SHOU LD HAVE BEEN RAISED BY PROPERLY FILING GROUND IN WRITING AS PRESCRIBED UND ER THE RULE. NOW THE ASSESSEE IS NOT ENTITLED TO RAISE ADDITIONAL GROUND THROUGH MISC. PETITION BECAUSE AS PER SECTION 254(2) OF THE INCOME TAX ACT A NEW GROUND OF APPEAL NEITHER CAN BE RAISED NOR CAN BE DECIDED IN THE MIS C. PETITION. THIS ALTERNATE PLEA IS ALSO DISMISSED. 5. IN THE RESULT, THE MA IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 11 TH FEBRUARY, 2011. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (MUKUL KR. SHRAWAT) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 11-02-2011 COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD 4 MA NO.176/AHD/2009 -5- 1. DATE OF DICTATION : 02-02-2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 03-02-2011 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : 08-02-2011 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 11-02-2011 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :