ACIT, Jaipur V. SHRI RANJEET SINGH YADAV, Jaipur

MA 19/JPR/2012

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3242 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 12-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Assessee Lawyers: RAJIV SOGANI; A K BHANDARI CA DH RKJ
• Keywords: Unexplained investment; Principle of natural justice; Additional evidence; Question of law; Onus to prove
• Section: 68; 69; 6; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NOS. 19, 20 & 21/JP/2012 (ARISING OUT OF I.T.A. NOS. 1418, 1419 & 1420/JP/201 0) ASSTT. YEARS-2004-05 TO 2006-07 A.C.I.T. CENTRAL CIRCLE-1, JAIPUR. CUKE VS. RANJEET SINGH YADAV RAGHUNATHPURI, JHOTWARA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AAOPY 4757 G VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEES BY : SHRI RAJIV SOGANI & SHRI A.K. BHANDARI (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/06/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 26/06/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE REVENUE HAS FILED THREE MISCELLANEOUS APPLICATI ONS AGAINST THE ORDER OF THIS BENCH OF ITAT, JAIPUR IN ITA NOS. 1418 TO 1422/JP/2010 FOR A.Y. 2004-05 TO 2008-09, WHICH WAS PASSED ON 16/11/2011. M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 2 2. THE ASSESSING OFFICER HAS SUBMITTED THAT IN THIS CASE SEARCH SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 (IN SH ORT THE ACT) WAS CARRIED OUT ON 16/11/2007. DURING THE COURSE OF SEARCH OPER ATION, VARIOUS INCRIMINATING DOCUMENTS REGARDING INVESTMENT IN IMM OVABLE PROPERTY BY WAY OF SALE PURCHASE AGREEMENT AND CONSTRUCTION ACTIVIT IES WERE FOUND AND SEIZED. ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURIN G THE COURSE OF SEARCH, THE LD ASSESSING OFFICER MADE ADDITION U/S 68 AND 6 9 OF THE ACT, WHICH WAS ENHANCED BY THE LD CIT(A) BY RS. 60,75,000/- FOR A.Y . 2004-05. THIS ADDITION WAS CHALLENGED BEFORE THE LD CIT(A) THEREAFTER BEFORE THE HONBLE ITAT, WHICH WAS HEARD BY THE ITAT IN COMBINED ORDER DATED 16/11/2 011 AND THE HONBLE ITAT HAD DELETED ALL THE ADDITIONS ON THIS ISSUE FOR ALL THREE ASSESSMENT YEARS I.E A.Y. 2004-05 TO 2006-07 BY REVERSING THE ORDER OF THE LD CIT(A) AND ALLOWED ALL GROUNDS OF ASSESSEE IN THIS RESPECT. THER E WAS AN APPARENT MISTAKE IN THE ORDER OF THE HONBLE ITAT IN A.Y. 20 04-05. THE HONBLE ITAT HAD GIVEN REASONS FOR DECISION IN PARA 2.13 TO 2.15 FROM PAGE NO. 21 TO 24. IN PARA 2.14, THE HONBLE ITAT HAD MENTIONED THAT PAGE NO. 187 TO 190 OF THE PAPER BOOK FILED BY THE ASSESSEE CONTAINED THE DETA ILS OF THE AMOUNT RECEIVED FROM THE PERSONS IN LIEU OF PLOTS BOOKED IN GOVIND VATIKA PROJECT. IN THESE DETAILS, THE LD AR HAD REFERRED TO THE SEIZED EXHIB IT NUMBERS IN RESPECT OF THE RECEIPT OF AMOUNT TO SHOW THAT RECEIPTS WERE VERIFIA BLE FROM THE SEIZED RECORD. M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 3 THE HONBLE ITAT HAS ACCEPTED THESE SUBMISSIONS EVEN THOUGH THIS WAS ADDITIONAL EVIDENCE, WHICH WAS NOT FURNISHED BEFORE T HE LOWER AUTHORITIES. THE LD ASSESSING OFFICER FURTHER SUBMITTED THAT THE LD CIT DR HAD MADE HIS SUBMISSION IN PARA 4.5(V) WHICH HAS BEEN REPRODUCED BY THE HONBLE ITAT IN ITS ORDER AT PAGE NO. 20 TO 21. IT IS SUBMITTED THA T THE HONBLE ITAT SIMPLY REPRODUCED THE SUBMISSION OF LD CIT DR BUT THIS WRITT EN SUBMISSION HAD NOT BEEN CONSIDERED BY GIVING THE SPECIFIC FINDINGS ON ITS. 3. THE ANOTHER MISTAKE WAS LEPT IN PARA 2.15 WHEREIN T HE HONBLE ITAT HAS GIVEN TWO EXAMPLES OF RECEIPT OF ADVANCE CLAIMED BY THE ASSESSEE TO BE FROM BULK BOOKING. THE HONBLE ITAT HAS TAKEN THESE EXAMPLES FROM THE APB PAGE 187 TO 189, WHICH, AS MENTIONED ABOVE, WERE NOT PRESENTED BEFORE THE ASSESSING OFFICER OR CIT(A). THE HONBLE ITAT HAS ACC EPTED THESE BULKS BOOKING OF PLOTS IN THE NAME OF SHRI RAMJI BUT THES E FACTS DID NOT BORN OUT FROM THE SEIZED MATERIAL. THE HONBLE TRIBUNAL HAS CO MMITTED A FACTUAL ERROR IN ACCEPTING THIS CONTENTION OF THE ASSESSEE, WHICH IS A MISTAKE APPARENT FROM THE RECORD AND ON THE BASIS OF CONTENTION OF WRONGLY ARRIVED AT THE FINDING THAT THE PAYMENTS FOR LAND WAS MADE BY THE ASSESSEE OUT O F ADVANCE RECEIVED FROM BULK AND RETAIL BOOKING BY SAID SHRI RAM JI. S IMILARLY THE HONBLE ITAT ALSO ACCEPTED THE ASSESSEES ASSERTION ON OTHER BUL K BOOKINGS. M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 4 4. THE HONBLE ITAT ALSO OBSERVED ON PAGE NO. 22 AND 23 THAT THE DETAILS OF NAMES OF THE PERSONS IN WHOSE NAMES, THE PATTAS I SSUED, WERE GIVEN TO THE ASSESSING OFFICER ALONGWITH THE NAME OF THE SOCIETY AND IF THE ASSESSING OFFICER WANTED TO MAKE FURTHER INQUIRY, THEN SUCH DE TAILS COULD HAVE BEEN COLLECTED BY HIM. THE A.O. SUBMITTED THAT THE ASSES SEE HAS NOT SUBMITTED THE REQUIRED DETAILS BEFORE THE LOWER AUTHORITIES AND AS PER SECTIONS 68 AND 69 OF THE ACT, INITIALLY, THE BURDEN OF PROOF LIE ON THE ASSESSEE, WHICH HAS NOT BEEN DISCHARGED BY THE ASSESSEE. THE LD ASSESSING OFFICE R FURTHER RELIED VARIOUS DECISIONS ON SECTIONS 68 AND 69 OF THE ACT, THEREFO RE, HE PRAYED TO RECTIFY THE ORDER OF THE HONBLE ITAT. 5. FOR A.Y. 2005-06 AND 2006-07 THE LD ASSESSING OF FICER SUBMITTED THAT THE ADDITION OF RS. 1,64,91,000/- IN A.Y. 2005-06 A ND RS. 1,0,00,000/- IN A.Y. 2006-07 WAS CONFIRMED BY THE LD CIT(A) FOR UNEXPLAINE D INVESTMENT IN LAND U/S 69 OF THE ACT. THE HONBLE ITAT HAD DECIDED THIS ISSUE IN PARA 6.6, 7.1, 13.1 AND 13.2. THE HONBLE ITAT ALSO HELD THAT INVEST MENT IN PURCHASING OF LAND WAS MADE OUT OF FUND PROVIDED FROM BULK AND RET AIL PURCHASERS AND THE HONBLE ITAT HAD DELETED THE ADDITION. IN BOTH THE YEARS ALSO, THERE IS AN APPARENT MISTAKE FROM THE RECORD AS IT HAS BEEN GIV EN WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE DR DURING THE APPELLANT PRO CEEDINGS. HE FURTHER ARGUED THAT THE HONBLE ITAT HAD DECIDED THE APPEAL WITHOUT CONSIDERING THE M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 5 CASE LAWS CITED BY THE DR. HE FURTHER RELIED UPON TH E DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HONDO SIEL POWER PRODU CTS LTD. VS. CIT (2007) 295 ITR 466 ON SECTION 254(2) OF THE ACT AND POWER G IVEN TO THE TRIBUNAL UNDER THIS SECTION. HE FINALLY PRAYED TO RECONSIDER THE ORDER AND TO PASS A SPEAKING ORDER AFTER CONSIDERING THE SUBMISSION OF THE DEPARTMENT. 6. THE CASE WAS HEARD AND THE LD DR REITERATED THE AR GUMENTS MADE BY THE ASSESSING OFFICER IN HIS SUBMISSION IN ALL THE THREE YEARS AND SHE HAS DRAWN OUR ATTENTION ON PAGE NO. 21 AND 23, THE ASSES SEES ORIGINAL PAPER BOOK PAGE NO. 187 TO 189 AND ARGUED THAT THE HONBL E ITAT SIMPLY REPRODUCED THE SUBMISSION OF DR IN ITS ORDER BUT NO SPECIFIC FINDING HAD BEEN GIVEN. AS PER LD DR, THE SUBMISSIONS MADE BEFORE TH E HONBLE ITAT DURING THE COURSE OF HEARING PAGE NO. 187 TO 190 WERE ADDITIONA L EVIDENCE, BECAUSE THE SAME WERE NOT FURNISHED BY THE ASSESSEE BEFORE THE L OWER AUTHORITIES. THE HONBLE ITAT HAS CONSIDERED THESE EVIDENCES FOR DISP OSAL OF APPEAL. HOWEVER, THE LD DR CHALLENGED THESE EVIDENCES FURNISHED BEFO RE IT THROUGH WRITTEN REPLY AND CLAIMED THAT IT SHOULD NOT HAVE BEEN ENTERTAINE D AS PER LAW. THEREFORE, SHE PRAYED TO RECTIFY THE APPARENT MISTAKE COMMITTE D BY THE HONBLE ITAT IN ITS ORDER. 7. AT THE OUTSET, THE LD AR FOR THE ASSESSEE SUBMIT TED THAT THE ASSESSEE HAD SUBMITTED CASH FLOW STATEMENT BEFORE THE ASSESSI NG OFFICER AS WELL AS M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 6 BEFORE THE LD CIT(A) ON THE BASIS OF SEIZED MATERIAL . IT IS A FACT THAT SEIZED MATERIAL WAS IN POSSESSION OF ASSESSING OFFICER. THES E DETAILS WERE AVAILABLE WITH THE ASSESSING OFFICER. THE AR ONLY HAD MATCHED I N DETAILED SUBMISSION THAT THESE BOOKINGS OF PLOTS WITH REFERENCE TO SEIZE D MATERIAL. THEREFORE, THESE ARE NOT ADDITIONAL EVIDENCE IN THE EYES OF LA W. FURTHER HE ALSO ARGUED THAT THE DEPARTMENT HAS ALREADY FILED THE APPEAL BE FORE THE HONBLE RAJASTHAN HIGH COURT ON THIS ISSUE WAS SPECIFICALLY FRAMED IN THE SUBSTANTIAL QUESTION OF LAW BEFORE THE HONBLE HIGH COURT. THEREFORE, M.A. FI LED BY THE REVENUE SHOULD NOT BE ENTERTAINED. HE HAS ALSO DRAWN OUR ATTENTION ON VARIOUS CASES PARTICULARLY THE DECISION OF THE HON'BLE SUPREME CO URT IN THE CASE OF CIT VS. KARAM CHAND THAPAR & BROS. (P) LTD. (1989) 176 ITR 535 (SC) AND ARGUED THAT THE HONBLE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAD BEEN SET OU T IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACTS, WHICH APPEARS ON TH E RECORD HAD NOT BEEN NOTICED BY THE HONBLE TRIBUNAL. HE FURTHER HAS DRAW N OUR ATTENTION ON DECISION OF HONBLE ITAT AT PARAGRAPH NO. 2.14 ON PA GE NO. 21 WHEREIN IT HAS BEEN HELD THAT PAGE NO. 187 TO 190 OF THE PAPER BOO K CONTAINED THE DETAILS OF AMOUNTS RECEIVED FROM PERSONS IN LIEU OF PLOTS BOOK ED IN GOVIND VATIKA PROJECT AND ARGUED THAT THERE WAS NO ADDITIONAL EVIDENCE BEF ORE THE HONBLE ITAT. THEREFORE, M.AS. OF THE REVENUE MAY BE REJECTED. M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 7 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE COORDINATE BEN CH HAD REPRODUCED REPLY OF THE LD DR ON PAGE NO. 17 TO 21. THE HONBLE ITAT H AS CONSIDERED PAGE NO. 187 TO 190 OF THE PAPER BOOK SUBMITTED BY THE ASSES SEE DURING THE COURSE OF HEARING BEFORE IT AND CONCLUDED THAT THE FUND IN IN VESTMENT WAS FROM BULK BOOKING MADE BY SHRI RAM JI. IT IS FACT THAT IN PAT TAS ISSUED BY THE SOCIETY, THE NAMES OF THE PERSONS WERE DIFFERENT, ON THESE DETAIL S ALL NAMES OF THE PERSONS IN WHOSE NAMES, THE PATTAS ISSUED WERE GIVEN TO ASSES SING OFFICER WITH NAME OF THE SOCIETY. SIMILARLY ON PAGE NO. 23, IT HAS CO NSIDERED THE BULK BOOKING IN THE NAME OF RAM NIWAS JI YADAV, WHICH WAS MENTIONED IN SEIZED MATERIAL ITSELF IN ANNEXURE A/19 PAGE NO. 2. FURTHER THE DEP ARTMENT HAS FILED THE APPEAL BEFORE THE HONBLE RAJASTHAN HIGH COURT AND SUBSTANTIAL QUESTION OF LAW FRAMED BY THE DEPARTMENT ARE AS UNDER:- (I) WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN DELETING EXORBITANT ADDITION SURFACED OUT DURING THE COURSE OF SEARCH O N THE ANALYSIS IN INCRIMINATING DOCUMENT WHEREBY CRORES OF RUPEES O F UNEXPLAINED INVESTMENT WAS MADE IN LAND AND THE ASSE SSEE HAD FAILED TO FURNISH SATISFACTORY EXPLANATION REGARDIN G THE SOURCE OF MONEY IN TERMS OF INDENTIFY, CREDITWORTHINESS AND GE NUINENESS OF TRANSACTION WHICH ATTRACTED PROVISIONS OF SECTION 6 8 AND 69 OF THE IT ACT, 1961? M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 8 (II) WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN SHIFTING THE BURDEN TO EXPLAIN THE UNEXPLAINED INVESTMENT IN LAND ON THE D EPARTMENT UNDER SECTION 68 AND 69 OF THE ACT, WHEN THE SAME WER E REFLECTED FROM INCRIMINATING DOCUMENTS AND STATEMEN TS RECOVERED AND RECORDED UNDER SECTION 132 OF THE ACT AND THE P ROVISIONS OF SECTION 68 AND 69 WERE APPLICABLE? (III) WHETHER THE ORDER OF THE TRIBUNAL IS VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE AND PRINCIPLE OF JUDICIAL DISCIPLIN E WHEN THE ARGUMENTS AND AVERMENTS MADE IN APPEAL ARE NOTED BU T NOT DISCUSSED WITH REASONS AND THE RELIED UPON JUDGMENTS OVERLOOKED? (IV) ANY OTHER QUESTION OF LAW AS DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE MAY ALSO BE FRAMED BY THE HONBLE COURT OF LAW IN THE INTEREST OF JUSTICE. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KARA M CHAND THAPER & BROS (P) LTD. (SUPRA) HAS HELD AS UNDER:- IT IS EQUALLY WELL SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FI ND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNA L OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL, FINDS THAT IT HAS TAKEN INT O ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 9 NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSION ARRIVED AT BY THE TRIBUNAL IS PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN I NTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSI DERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMU LA. IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TR IBUNAL. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTI ES, WE ARE OF THE CONSIDERED VIEW THAT THE ITAT HAS NO POWER TO REVIEW ITS OWN ORDER U/S 254(2) OF THE ACT AND IN OUR OPINION, THERE IS NO APPARENT MISTAKE ON RECORD, WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. ACCORDINGLY, THE A LL THREE M.AS. SUBMITTED IN ALL THE THREE YEARS BY THE REVENUE ARE DISMISSED. 9. IN THE RESULT, ALL THE THREE MISC. APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/06/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 26 TH JUNE, 2015 *RANJAN M.A. NO. 19,20, & 21/JP/2012_ ACIT VS. RANJEET SINGH YADAV 10 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- A.C.I.T., CENTRAL CIRCLE-1, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- RANJEET SINGH YADAV, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 19,20 & 21/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR