Sh. Chattar Singh Tomar, Ponta Sahib V. ITO, Nahan

MA 185/CHANDI/2008

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6568 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 year(s) 9 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 24-05-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 25-08-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: CHATTAR SINGH TOMAR
• Keywords: Business income; Document seized; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER M.A. NOS. 185 TO 187/CHD/2008 (IN ITA NOS. 51 TO 53/CHD/2008) (ASSESSMENT YEARS: 2002-03 TO 2004-05) SH. CHATTAR SINGH TOMAR, VS. THE ITO, S/O MU;NDI RAM, NAHAN (H.P.) VPO KAMRO, TEHSIL PAONTA SAHIB (H.P.) PAN NO. ABAPT2391Q (APPELLANT) (RESPONDENT) APPELLANT BY : SH. CHATTAR SINGH TOMAR, ASSESSEE RESPONDENT BY : SMT. MEENAKSHI VOHRA, SR DR DATE OF HEARING : 13.04.2018 DATE OF PRONOUNCEMENT : 28 .05.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISC. APPLICATIONS HAVE BEEN PREFERRED BY THE ASSESSEE PLEADING THEREIN THAT MISTAKES APPARENT ON RECORD HAVE OCCURRED IN THE CONSOLIDATED ORDER DATED 07.07.2008 OF THIS TRIBUNA L PASSED IN ITA NOS. 51 TO 53/CHANDI/2008. 2. EARLIER, THESE APPLICATIONS WERE DISMISSED VIDE ORDER DATED 24.5.2013 FOR WANT OF PROSECUTION. HOWEVER, THE ASSESSEE A PPROACHED THE HON'BLE 2 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) HIGH COURT AND THE HON'BLE HIGH COURT VIDE ITS ORD ER DATED AUGUST 10, 2016 PASSED IN ITA NO. 31, 32 & 33 OF 2016 HAS DIR ECTED TO HEAR THE PRESENT MISC. APPLICATIONS, ON MERITS. FIRST, WE T AKE UP THE MISC. APPLICATION NO. 185/CHD/2008 FOR ASSESSMENT YEAR 2002-03. 3. WE HAVE GONE THROUGH THE CONTENTS OF THE IMPUGNE D ORDER DATED 7.7.2008. THE BRIEF FACTS RELEVANT FOR DISCUSSION A RE THAT ASSESSEE HAS BEEN ENGAGED IN EXTRACTING MINES AND SALE OF LIME STONE. THERE WAS A SEARCH AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 11.2.20 05, PURSUANT TO WHICH THE ASSESSMENT U/S 153A WAS FRAMED FOR SIX ASSESSME NT YEARS I.E. ASSESSMENT YEAR 1999-2000 TO 2004-05. 4. THE FIRST ADDITION WAS RELATING TO THE SALE PRIC E OF THE DIFFERENT VARIETIES OF THE LIME STONE SOLD BY THE ASSESSEE DU RING THESE YEARS. THE DISPUTE WAS RELATING TO THE SALE RATE OF DIFFERENT VARIETIES OF THE LIME STONE AND CONSEQUENT WORKING OF PROFIT. AS PER THE SEIZED DOCUMENTS, THE SALE RATE OF RS. 240/- PER MT FOR ASSESSMENT YEAR WAS A PPLIED BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR 2004-05. THE ASSESSING OFFICER COLLECTED INFORMATION ABOUT THE SALE RATE OF LIME STONE FROM THE PERSONS INVOLVED IN MINING, WHICH ACCORDING TO THE ASSESSING OFFICER WE RE MUCH HIGHER THAN THE SALE RATE DECLARED BY THE ASSESSEE. THE ASSESS EE, ON THE OTHER HAND, RELIED ON THE BILLS ISSUED BY HIM WHICH INDICATED T HE SALE RATE OF LIME STONE AT RS. 100/- PER MT AND OTHER VARIETIES AT RS. 80/ - PER MT. THE TRIBUNAL CONSIDERING THE RIVAL CONTENTIONS DIRE CTED THAT SO FAR AS ASSESSMENT YEAR 2004-05 WAS CONCERNED, THE RATE OF RS. 240/- ADOPTED BY THE ASSESSING OFFICER FOR SALE OF LIME STONE WHICH WAS BASED ON THE SEIZED DOCUMENTS WAS MOST RELIABLE INFORMATION AND, ACCORD INGLY, CONFIRMED THE 3 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) SALE RATE OF RS. 240/- PER MT OF LIME STONE FOR ASS ESSMENT YEAR 2004-05. THE TRIBUNAL FURTHER OBSERVED THAT THERE WERE NO SE PARATE DETAILS OF DIFFERENT VARIETIES SOLD IN THE YEAR 2004-05. THE T RIBUNAL, THEREFORE, OBSERVED THAT IT APPEARED THAT THE ASSESSEE HAD SOL D ONLY ONE VARIETY OF LIME STONE DURING THE ASSESSMENT YEAR 2004-05 AND, HENCE, CONFIRMED THE RATE OF RS. 240/- PER MT FOR ASSESSMENT YEAR 2004-0 5. HOWEVER, IT WAS ALSO DIRECTED THAT IF THE ASSESSEE AS PER INFORMATI ON COLLECTED FROM MINING DEPARTMENT HAD SOLD DIFFERENT VARIETIES OF LIME STO NE SUCH AS DOLOMITE, BHATTA AND KACHRI, THE ASSESSING OFFICER SHOULD AP PLY SALE RATE OF SUCH VARIETY AS APPLIED BY THE ASSESSING OFFICER FOR AS SESSMENT YEARS 2002- 2003 AND 2003-04. HOWEVER, THE TRIBUNAL IN THE S UBSEQUENT PART OF THE ORDER ITSELF WORKED OUT THE SALE RATE OF DIFFERENT VARIETIES OF LIME STONE FOR THE ASSESSMENT YEARS 1990-2000 TO ASSESSMENT YEAR 2 004-05 IN THE PRESENT APPLICATION, THE ASSESSEE HAS PLEAD ED THAT WHILE ARRIVING AT THE ABOVE FINDINGS, THE TRIBUNAL HAS IG NORED THE BILLS PLACED AT PAGES 2 - 13 AND 58 - 69 OF THE PAPER BOOK DATED 27 .2.2008 AND, THEREFORE, HAS PLEADED THAT A MISTAKE APPARENT ON RECORD HAS O CCURRED IN ARRIVING AT THE FINDINGS ON THIS ISSUE. 5. THE NEXT ISSUE REGARDING WHICH THE ASSESSEE HAS PLEADED THAT A MISTAKE HAS OCCURRED IN THE ORDER IS REGARDING THE INCOME FROM TRUCKS. AS PER THE ASSESSEE, THE ASSESSEE WAS THE OWNER OF FOU R TRUCKS. FURTHER, THE ASSESSEE HAD DISCLOSED INCOME OF RS. 48,000/- ONLY AS TRUCK INCOME FOR ASSESSMENT YEAR 1999-2000. HOWEVER, THE ASSESSING OFFICER ESTIMATED THE INCOME OF FOUR TRUCKS AT RS. 96,000/-. THE PLEA OF THE ASSESSEE WAS THAT THREE TRUCKS WERE SOLD DURING THE YEAR UNDER CONSID ERATION, HOWEVER, THE 4 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) CLAIM OF THE ASSESSEE WAS NOT ACCEPTED FOR WANT OF RELIABLE EVIDENCE AS THE REGISTRATION OF THE TRUCKS CONTINUED TO BE IN THE N AME OF THE ASSESSEE. IT WAS CONTENDED BEFORE THE TRIBUNAL THAT OUT OF TH E FOUR TRUCKS, TWO TRUCKS WERE OWNED BY THE HUF UPON 29.10.2000. THE T RIBUNAL ACCORDINGLY DIRECTED THAT IN CASE OF OWNERSHIP OF TRUCKS BY HUF IS ESTABLISHED, THE ASSESSING OFFICER WILL EXCLUDE THE INCOME OF SUCH T RUCKS FROM THE ASSESSMENT OF THE ASSESSEE FOR THE RELEVANT ASSESSM ENT YEAR AND FURTHER DIRECTED THAT THE ABOVE DECISION IN REGARD TO TRUCK INCOME WILL APPLY TO OTHER YEARS ALSO. IN THE APPLICATION OF RECTIFICATION OF THE ORDER, T HE ASSESSEE HAS PLEADED THAT THE ASSESSEE HAD SHOWN INCOME IN THE H ANDS OF HIS HUF FROM TWO TRUCKS FROM ASSESSMENT YEARS 1999-2000 TO 2001 -02 AND THEN FROM ONE TRUCK FROM ASSESSMENT YEAR 2002-03 TO 2004-05. 6. THE NEXT PLEA THAT HAS BEEN TAKEN IS REGARDING T HE FINDINGS OF THE TRIBUNAL ON COMMISSION INCOME. FROM THE SEIZED DOCU MENTS FROM THE PREMISES OF THE ASSESSEE, IT REVEALS THAT ASSESSEE WAS EARNING COMMISSION INCOME BY LEASING SOME MINES. THE ASSESSEE WAS CONF RONTED IN THIS RESPECT BUT NO REPLY WAS RECEIVED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE, MADE IMPUGNED ADDITIONS. THE LD. CIT(A) ALSO CONFIRMED THE ADDITIONS. BEFORE THE TRIBUNAL THE ASSESSEE HAD TAKEN A PLEA T HAT HE WAS NOT ALLOWED TO CROSS EXAMINE THE CONCERNED PERSONS, IN RESPECT OF COMMISSION INCOME. THE TRIBUNAL, HOWEVER, NOTED THAT THE ASSE SSEE NEITHER DURING THE ASSESSMENT PROCEEDINGS NOR IN APPELLATE PROCEEDINGS HAD PRODUCED ANY EVIDENCE IN REBUTTAL OF THE EVIDENCE FOUND IN THE C OURSE OF SEARCH. THAT 5 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) EVEN THE CROSS EXAMINATION WAS NOT DEMANDED. THEREF ORE, THE ADDITION MADE BY THE LOWER AUTHORITIES WAS CONFIRMED. THE AS SESSEE IN THIS APPLICATION HAS TAKEN THE PLEA THAT ASSESSEE HAD D ULY DEMANDED THE CROSS EXAMINATION OF THE THIRD PARTY DURING THE APPELLAT E PROCEEDINGS BEFORE THE LD. CIT(A) IN THE WRITTEN SUBMISSIONS MADE BY THE ASSESSEE BEFORE HER. A COPY OF THE SAID WRITTEN SUBMISSIONS HAS BEEN PLACE D AT PAGE 37 OF THE PAPER BOOK DATED 20.6.2008. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. SO FAR AS THE ISSUE RELATING TO THE SALE PRICE OF THE LIME STONE IS CONCERNED, W E FIND THAT ORDER OF THE TRIBUNAL ON THIS ISSUE IS SELF-CONTRADICTORY. THOUG H, IN PARA 10 OF THE ORDER THE TRIBUNAL HAS DIRECTED THAT FOR OTHER YEARS EXCE PT FOR ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER SHOULD APPLY SALE RA TE OF DIFFERENT VARIETIES AS WAS APPLIED BY THE ASSESSING OFFICER FOR ASSESSM ENT YEARS 2002-03 AND 2003-04. FURTHER, IN THE SUBSEQUENT PARAS, THE TRI BUNAL ITSELF HAS ESTIMATED THE SALE RATE ON THE BASIS OF REPORT GIVE N BY THE THIRD PARTY AND DIRECTED THE ASSESSING OFFICER TO RECALCULATE THE SALES OF THE RESPECTIVE ASSESSMENT YEARS INCLUDING OF ASSESSMENT YEARS 200 2-03 AND 2003-04. EVEN WHILE ARRIVING AT THE SAID CONCLUSION, THE EVI DENCE SUBMITTED BY THE ASSESSEE IN THE FORM OF BILLS AS WERE PLACED AT PAG ES 2 TO 13 AND 58 TO 69 OF THE PAPER BOOK DATED 27.2.2005 HAS ESCAPED THE A TTENTION OF THE TRIBUNAL. IN VIEW OF THIS, IT IS A MISTAKE APPARENT ON RECORD THAT HAS OCCURRED IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE. 8. SO FAR AS THE PROFITS ON TRUCKS IS CONCERNED, TH E TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO EXCLUDE THE INCOME OF SUC H TRUCKS WHICH BELONGED 6 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) TO THE HUF FROM THE ASSESSMENT OF THE ASSESSEE FOR THE RELEVANT PERIOD. IN VIEW OF THIS, IT IS OPEN TO THE ASSESSEE TO DEMONST RATE HIS CASE BEFORE THE ASSESSING OFFICER REGARDING THE INCOME FROM TRUCKS VIS-A VIS THE OWNERSHIP OF THE TRUCKS. IN VIEW OF THIS, WE DO NOT FIND THAT ANY ERROR HAS OCCURRED IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE AS IT IS OP EN TO THE ASSESSEE TO PROVE HIS CASE BEFORE THE ASSESSING OFFICER. 9. SO FAR AS THE NEXT ISSUE RELATING TO THE COMMISS ION INCOME IS CONCERNED, WE FIND THAT BEFORE THE LD. CIT(A), THE ASSESSEE HAD TAKEN A SPECIFIC PLEA THAT THE ASSESSEE HAD NOT BEEN GRANTE D THE OPPORTUNITY TO CROSS-EXAMINE THE THIRD PARTY AND A REQUEST HAD BEE N MADE TO GIVE OPPORTUNITY TO THE ASSESSEE FOR CROSS EXAMINATION H IM SO THAT THE ASSESSEE MAY CLARIFY HIS POSITION. THIS PLEA OF THE ASSESSE E HAS ESCAPED THE ATTENTION OF THE TRIBUNAL WHILE UPHOLDING THE ORDER OF THE LOWER AUTHORITIES ON COMMISSION INCOME. HENCE, IN OUR VIEW, A MISTAK E HAS OCCURRED IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE. 10. THE NEXT PLEA OF THE APPLICANT IS REGARDING EST IMATION OF THE AGRICULTURAL INCOME. IT HAS BEEN PLEADED BY THE APP LICANT IN THE APPLICATION THAT GROUND NO.5 TAKEN BY THE ASSESSEE REGARDING EA RNING OF AGRICULTURAL INCOME WAS DULY ARGUED BEFORE THE TRIBUNAL BUT THE SAME HAS NOT BEEN ADJUDICATED. 11. WE HAVE GONE THROUGH THE GROUND OF APPEAL FOR A SSESSMENT YEAR 2002-03 AND HAVE FOUND THAT THE ASSESSEE HAD TAKEN A SPECIFIC GROUND NO.5 AGITATING THE ESTIMATION OF AGRICULTURAL INCOME AT RS. 38,750/- AS AGAINST RS. 1,55,000 /- DECLARED BY THE ASSESSEE. HOWEVER, THE SAID GROUN D HAD 7 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) REMAINED UN-ADJUDICATED. HENCE, THE MISTAKE IS OCCU RRED IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE ALSO FOR ASSESSMENT YEAR 20 02-03 12. NOW COMING TO THE MISC. APPLICATION NO.186/CHD/2008 FOR ASSESSMENT YEAR 2003-04. THE ASSESSEE IN THIS APPLI CATION HAS RAISED ISSUES RELATING TO THE EXCESSIVE SALE RATE OF LIME STONE A ND ESTIMATION OF BUSINESS INCOME, ISSUE RELATING TO THE TRUCK INCOME PLEADING TWO TRUCKS BELONG TO THE HUF AND FURTHER THAT THE ISSUE RELATING TO THE ESTIMATION OF AGRICULTURAL INCOME HAS REMAINED UN-ADJUDICATED, AND FURTHER THA T THE ISSUE OF UNEXPLAINED BANK DEPOSITS HAD ALSO REMAINED UN-ADJU DICATED. 13. SO FAR AS THE FIRST PLEA REGARDING THE ESTIMATI ON OF SALES RATE OF LIME STONE AND ESTIMATION OF BUSINESS INCOME IS CONCERNE D, IN VIEW OF OUR FINDINGS GIVEN ABOVE, WHILE DECIDING MISC. APPLICAT ION NO. 185/CHD/2008, WE HOLD THAT A MISTAKE APPARENT ON RECORD HAD OCCUR RED IN THE ORDER OF THE TRIBUNAL. 14. SO FAR AS THE ISSUE REGARDING INCOME FROM TRUCK S IS CONCERNED, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE AS IT IS OPEN TO THE ASSESSEE TO DEMONSTRATE BEFORE THE ASSE SSING OFFICER THAT SOME TRUCKS BELONG TO HUF. SO FAR AS THE PLEA REGARDING THE NON-ADJUDICATION ON THE GROUNDS OF ESTIMATION OF AGRICULTURAL INCOME AN D REGARDING ADDITION ON ACCOUNT OF UNEXPLAINED BANKS DEPOSITS, WE FIND THAT SPECIFIC PLEAS HAVE BEEN RAISED BY THE ASSESSEE ON THESE ISSUES, IN HIS APPEAL FOR 2003-04 VIDE GROUND NOS. 5 AND 7 RESPECTIVELY, HOWEVER, A PERUSA L OF THE ORDER OF THE TRIBUNAL REVEALS THAT THESE GROUNDS REMAINED UN-ADJ UDICATED. HENCE, A MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL D ATED 7.7.2008, IN THIS RESPECT. 8 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) 15. NOW COMING TO MISC. APPLICATION NO. 187/CHD/2008 FOR ASSESSMENT YEAR 2004-05, THE GROUNDS TAKEN BY THE ASSESSEE IN HIS APPLICATION ARE IDENTICAL TO THAT HAVE BEEN TAKEN IN ITA NO. 186/CH D/2008 FOR ASSESSMENT YEAR 2003-04. IN VIEW OF THIS, OUR FINDINGS GIVEN A BOVE, WOULD APPLY ACCORDINGLY. 16. IN VIEW OF OUR ABOVE DISCUSSION, THE CONSOLIDAT ED ORDER DATED 7.7.2008 OF THE TRIBUNAL IS RECALLED FOR ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 ON THE ISSUES / GROUNDS TAKEN BY THE AS SESSEE REGARDING THE SALE RATE OF DIFFERENT VARIETIES OF LIME STONE AND ESTIMATION OF BUSINESS INCOME OF THE ASSESSEE FOR THE AFORESAID ASSESSMENT YEARS 2002-03, 2003- 04 AND 2004-05 AND FURTHER ORDER OF THE TRIBUNAL FO R ASSESSMENT YEAR 2003- 04 IS ALSO RECALLED RELATING TO THE ADJUDICATION O N COMMISSION INCOME FROM LEASE MINING. FURTHER, THE ORDER OF THE TRIBUNAL IS RECALLED FOR ADJUDICATION ON THE GROUNDS TAKEN IN ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 REGARDING THE ESTIMATION OF AGRICULTURAL INCOME AND FOR ADJUDICATION ON THE GROUND OF ADDITION ON THE BASIS OF UNEXPLAINED BAN K DEPOSITS FOR ASSESSMENT YEARS 2003-04 AND 2004-05. 17. THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR S 2002-03, 2003-04 AND 2004-05 IN ITA NOS. 185 TO 197/CHD/2008 BE LIST ED FOR ADJUDICATION AFRESH ON THE LIMITED POINTS AS NOTED ABOVE. HOWEVE R, FINDINGS OF THE TRIBUNAL RELATING TO THE OTHER ISSUES AND OTHER ASS ESSMENT YEARS WILL STAND AS SUCH. THE REGISTRY IS DIRECTED TO FIX THE APPEAL S ACCORDINGLY FOR ADJUDICATION ON THESE ISSUES. COPY OF THIS ORDER B E ALSO PLACED IN THE RESPECTIVE MAIN FILES. 9 M.A.NOS 185 TO 187CHD-2009 IN ITAS 51 TO 53/CHD/2008- SH. CHATTAR SINGH TOMAR, PAONTA SAHIB (H.P.) IN VIEW OF THIS THE ABOVE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.05.2018 SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28.05.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR