SHRI TEJENDER PAL SINGH SAHNI, KOTA V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL, KOTA

MA 20/JPR/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3676 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 03-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift; Revision of order; Source of fund; Set aside
• Section: 68; 69; 201; 254(2)

Judgement Text

1 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oaJh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Miscellaneous Application No.20/JP/2020 (Arising out of vk;dj vihy la-@ITA No. 1104/JP/2019) fu/kZkj.k o"kZ@Assessment Year : 2014-15 Shri Tajender Pal Singh Sahni C/o C.M. Birla & Co. Chartered Accountant 1D, New Colony, Gumanpura, Kota cuke Vs. The DCIT Central Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFFPS 1351 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri C.M. Birla, CA jktLo dh vksj ls@Revenue by: Shri A.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 16/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 04 /07/2022 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM The assessee has filed a Miscellaneous Application u/s 254 (2) with a view to rectifying the mistake apparent on record in the ITAT order dated 23-12-2019 in ITA No. 1104/JP/2019 for the assessment year 2014-15. 2 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA 2.1 During the course of hearing, the ld. AR of the assessee prayed for consideration of the Misc. Application and to this effect, the ld. AR has filed the following written submission. ‘’1. (i). Sir in Appeal No. I104/JP/2019 the issue was in relation to addition of Rs.300000/- u/s 69. The Ld. AO had made addition u/s 69; Hon'ble CIT(A) had sustained addition u/s 69 and we were before Your Honour for deletion of addition u/s 69. This is evident from GOA I & 2 which reads as under: - GOA 1: 1. That under the facts and circumstances of the case the learned CIT(A) erred in confirming addition of Rs.3,00 Lacs u/s 69 ignoring the evidences filed before the learned AO copies whereof were filed to Hon'ble CIT(A) also, Addition of Rs.3.00 Lacs therefore needs deletion. GOA 2: 2. That as the investment is appearing in Balance Sheet of the appellant and therefore it being recorded in books of accounts therefore its source being fully explained it can not be taxed u/s 69. The Hon'ble CIT(A) therefore erred in sustaining addition of Rs.3,00,000/-which needs deletion. (II) Sir in regular appeal we never agitated on the issue that there are no incriminating material with the Ld. AO. (iii) Our submission to Hon'ble Bench was for relief from addition made u/s 69. Our submission was that as investment in plot had routed through Books of Accounts and as investment was verifiable from Balance Sheet appended with ROI u/s I 53A investment was fully explained and therefore provisions of section 69 being not attracted additions of Rs.3,00,000/- be deleted. (iv) Gift deed was filed before the Ld. AO in my case and in case of Donor also; Both Donor and Donee were subject to search and Both were with the same AO; Assessment Proceeding was going on together in both cases; Entries in both assessee's cases were verified from each other, whenever needed, regularly and the Ld. AO had not disputed Gift and Assessment in both cases were made almost simultaneously. (v) However your honour has remitted this issue back to the Ld. AO holding as under: - 3 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA "There is no dispute that the assessee has disclosed the investment of Rs.3,00,000/-in the balance sheet as on 31 March, 2014. However, merely showing this Investment in the Balance Sheet would not ipso facto explain the source of such investment. The onus is on the assessee to explain the source of investment and therefore, the issue can be decided only on the merits of the source of investment without any technical hurdle of incriminating material found or seized during the course of search. We find that the assessee in his statement of affairs has shown the gift received from the sister-in-law (wife of his brother) of Rs.3,00,000/-. The assessee has filed a declaration of gift in support of such claim. The said gift is between the family members and cannot be verified independently. The existence or actual transaction of gift cannot be verified from any independent source and, therefore, the claim of gift from the family member of an equal amount is not free from the possibility of preparing a self-serving document. Even otherwise, we find that the source of fund as claimed by the assessee is gill from wife of the brother has not been verified by the authorities below and accordingly the said claim of the assessee is required to be verified and examined by the AO. Hence the issue is set aside to the record of the AO for proper verification and examination of claim of the assessee being source of investment and particularly the gift from the family member." (Extract from Para 5 of Order) (vi) We very respectfully submit Sir that the Ld. AO has no disputed receipt of Gift of Rs.3,00,000/- from Smt. Inderjeet Kaur Sahni (Bhabhi — Brother's wife). However from your aforesaid directions it is apparent that your Honour has remitted matter back to Ld. AO to verify gift meaning your Honour has diverted issue from section 69 to section 68 of the IT Act 1961. We submit Sir that in consonance to provisions of section 254(1) the Hon'ble Bench is expected to restricts it's jurisdiction on the grounds of appeal before it or any further additional grounds of appeal raised by parties with the approval of Hon'ble Bench. From grounds of appeal you will find that there was no ground for relief from addition made u/s 68 and neither Assessee nor Department had raised it by way of additional ground also. (vii)By way of diverting issue from section 69 to section 68 the Hon'ble Bench has exceeded its jurisdiction and has assumed the revisionary powers u/s 263. We submit such act of Hon'ble Bench is beyond the provisions of Section 254(1) of the Income Tax Act, 1961. As it is a mistake apparent from record we request Hon'ble Bench to call for it's order dated 23.12.2019 back and delete the addition of Rs.3,00,000/- made u/s 69. Reliance in this regard is made on: "Jurisdiction is restricted to subject-matter of appeal - The powers of the Tribunal in dealing with appeals are expressed in section 254(1) in the widest possible terms. The 4 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA word 'thereon' restricts the jurisdiction of the Tribunal to the subject-matter of the appeal" - Hukumchand Mills Ltd. v. CIT [1967] 63 1TR 232 (SC). There are following more decisions wherein it is held that Matters beyond subject matter cannot be decided by Hon'ble Tribunal — (i) M.R.M. Perriannanvs CIT (1960) 139 1TR 159 (Mad.) — (ii)CIT vs Steel Cast Corporation (1977) 107 ITR 683 (Guj.)— (iii)Ugar Sugar Works Ltd vs CIT (1983) 141 1TR 326 (Born)— (iv) SP Koccharvs ITO (1984) 145 ITR 255 (All) — (v)Prem Agencies v CIT (1988) 173 ITR 110 (Raj.) — (vi)CIT v Cochin Refineries Ltd (1988) 173 ITR 461 (Ker) — (vii) Karnataka State Forest Industries Corpn Ltd v CIT (1993) 201 1TR 674 (Kar) (viii)CIT v. Jacob J. Thal lath (2012) 344 ITR 279 (Ker) — (ix)Hari Shankar Bhartiays CIT (2012) 247 CTR 61 I (Cal) — (x)CIT vsLate Begum Noor BanuAlladin (1993) 204 ITR 166 (AP) (FB) — (xi)Sahu (BB) v CIT (1993) 199 ITR 212 (Orissa) — (xii)Jasmine Commercials Ltd. vs CIT (2011) 200 Taxmann 338 (Cal)— "It is not open to the Tribunal to make out a new case which was not a case of either the assessee or revenue." — CIT v Krishna Mining Co (1977) 107 1TR 702 (AP) — 2. We submit because of such remand of the case assessee is placed to face second round before the Ld. AO facing hardship again with no hope of relief from him. In this case also the same result is there. Though the Ld. AO knows that the Hon'ble ITAT has remitted matter back to him to verify the gift. He also knows that both Donor and Donee's files are with him and he could have verified it from his records very conveniently but instead he again and again insisted assessee to file all details and as because of Covid- 19 the assessee could not attend his office and could not furnish details instead of verifying the Gift from his records he sustained the additions ignoring the very essence of remand order by Hon'ble Bench. We very respectively submit this is a normal feature of every remand case. We have therefore resubmitted before your honour following papers duly certified by the Ld. AO: - (i) Copy of Capital Account wherein gift of Rs.3,00,000/- from Smt. Inderjeet Kaur Sahni is appearing (PB1); (Earlier PB 6) (ii) Copy of Balance Sheet Wherein Kanha Kunj Plot of Rs.3,00,000/- is appearing (PB I ); (Earlier PB 6) 5 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA (iii) Copy of gift deed (PB2) wherein Gift of Rs.3,00,000/- from Smt. Inderjeet Kaur Sahni is appearing; (Earlier PB 24) (iv) Copy of letter dated 26.12.2017 from assessee filed during assessment proceedings wherein in Para-21 there is reference of gift of Rs.3,00,000/- from Smt. Inderjeet Kaur Sahni (Bhabhi) (PB 3 to 5) and (v) Copy of letter dated 0 1 .0 8.20 1 8 wherein in Para-4 there is again reference of gift of Rs.3,00,000/- from Smt. Inderjeet Kaur Sahni (Bhabhi) on 10.11.2013 (PB 6). 3. Besides we have also filed certified copies of Capital Account of Donor Smt. Inderjeet Kaur Sahni wherefrom gift of Rs.3,00,000I- evident and her annual income of Rs.35,47,963/- is verifiable (PB 7) (Earlier PB 23). In her case also copy of gift deed is filed (PB 8) (Earlier PB 24) 4, We, therefore, request your honour to please accept our application u/s 254(2) and delete addition of Rs.3.00,000/- made by ld. AO and sustained by the Hon’ble CIT(A).’’ The ld. AR appearing on behalf of the assessee also submitted that when the details are already available on record then setting aside the order by ITAT Bench will deprive of the assessee from justice. 2.2 On the other hand, the ld. DR objected to the Miscellaneous Application of the assessee and submitted that the assessee wants to get ITAT order reviewed by filing the Miscellaneous Application and ld. AR of the assessee by filing a self serving document cannot take a plea that details were already available on record but in fact the same is required to be verified by the AO. 2.3 We have heard the rival contentions, perused the written submission of the assessee as well as other materials available on record. We find from the records that the Tribunal has passed the reasoned order by taking into consideration the 6 MA20/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL, KOTA facts and submissions raised by both the parties during the course of hearing. Hence, we find that order passed by the ITAT does not suffer any infirmity in assessee's case. In this view of the matter, Miscellaneous Application filed by the assessee is dismissed. 3.0 In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open Court on 04-07-2022 Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 04 /07/2022 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Tajender Pal Singh Sahni, Kota. 2. izR;FkhZ@ The Respondent- The DCIT, Central, Kota . 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 20/JP/2020) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar