Shri Narsingbhai Chunilal Patel, Ahmedabad V. The Dy.CIT(OSD),Circle-9, Ahmedabad

MA 208/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8528 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 28-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: S N DIVATIA
• Keywords: Loose papers
• Section: 92C

Judgement Text

, , , , / // / IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , ! ! ! ! .#$ !% ,&' & ( BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.208/AHD/2011 ( !./ IN I.T.A. NO.2631/AHD/2009) ( $ ) $ ) $ ) $ ) / / / / ASSESSMENT YEAR : 2005-06) NARSINGBHAI CHUNILAL PATEL 19, SARVODAY NAGAR SOCIETY BHUYANGDEV AHMEDABAD $ $ $ $ / VS. THE DCIT (OSD) CIRCLE-9 AHMEDABAD * &' !./+, !./ PAN/GIR NO. : AAMPP 6740 L ( *- / // / APPLICANT ) .. ( ./*- / RESPONDENT ) *- 0 & / APPLICANT BY : SHRI S.N.DIVATIA ./*- 1 0 & / RESPONDENT BY : SHRI P.L.KUREEL, SR.D.R. $2 1 ' / / / / DATE OF HEARING : 27/7/2012 3#) 1 ' / DATE OF PRONOUNCEMENT : 27/7/2012 &4 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS MISCELLANEOUS PETITION HAS BEEN FILED ON 28/ 11/2011 EMANATING FROM THE ORDER OF THE ITAT C BENCH AHME DABAD AS MENTIONED IN NOMENCLATURE HEREINABOVE DATED 20/10/2 011. 2. FROM THE SIDE OF THE APPLICANT, LD.AR MR.S.N.DIV ATIA APPEARED AND PLACED RELIANCE ON THE CONTENTS OF THE APPLICAN T; RELEVANT PARAGRAPHS REPRODUCED BELOW:- 2.3. IT IS NOTICED FROM THE ORDER OF THE HON.TRIB UNAL FROM PARA 5 THAT THE IMPUGNED ADDITIONS HAVE BEEN CONFIRMED ON FOLLO WING GROUNDS: MA NO.208/AHD/2011 (IN ITA NO.2631/AHD/2009) NARSINGBHAI CHUNILAL PATEL VS. DCIT ASST.YEAR 2005-06 - 2 - (A) IN VIEW OF SECTION 292C OF THE ACT, THE BURDEN WAS UPON THE ASSESSEE TO EXPLAIN THE SEIZED PAPERS THROUGH EVIDE NCE OR MATERIAL. (B) THE APPLICANT DID NOT RETRACT FROM HIS STATEMENT RE CORDED DURING THE COURSE OF SURVEY. (C) THE APPLICANT INSTEAD OF EXPLAINING THE SEIZED PAPE RS MADE OUT A CASE THAT ONLY INCOME MAY BE COMPUTED AGAINST THE R ECEIPTS. HOWEVER, NO EVIDENCES WERE FILED TO EXPLAIN INCURRI NG OF THE EXPENSES. THE ADDITIONS WERE BASED ON THE SEIZED P APERS WHICH HAD NOT BEEN EXPLAINED BY THE ASSESSEE. 2.4. THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE CONCLUSION REACHED BY HONBLE TRIBUNAL IN PARA 5 OF THE ORDER IS NOT THE CORRECT FINDING ON FACTS AND IN LAW. THE APPLICANT SUBMITS THAT WHEN THERE IS A PRESUMPTION RAISED UNDER CLAUSE (II) OF SEC.292C TH AT THE CONTENTS OF THE DOCUMENTS ARE TRUE, WHICH MEANS THAT THE NOTING S MADE IN THE LOOSE PAPERS SHOWING THE EXTENT OF INCOME RELATING THE AP PLICANT SHOULD HAVE BEEN ACCEPTED AS TRUE WITHOUT FURTHER PROOF OR EVID ENCE. SINCE IT IS A REBUTTABLE PRESUMPTION, THE ASSESSEE MAY REBUT IT B Y RETRACTING THE ADMISSION OR SHOWING THE CONTRARY EVIDENCE. (A) THEREFORE, APPLYING THE AFORESAID PRESUMPTION TO TH E FACTS OF THE APPELLANTS CASE, IF THE NOTINGS AT P.7 AND 12 OF A NN-A RECORD THAT THE APPLICANT HAD RECEIVED INCOME OF RS.3,34,000 AN D RS.22,06,000 WAS THE PAYMENT MADE TOWARDS LAND ETC., IT WAS FACT UALLY INCORRECT TO HOLD THAT RS.22,06,000 WAS INCOME OF THE APPLICA NT. (B) SIMILARLY, IF THE NOTINGS ON THE PAGE 14 OF ANN-A A RE TO THE EFFECT THAT RS.25,62,000 WERE RECEIVED FROM THE MEMBERS OF PRASHTAN PROJECT-I AND THE NET PROFIT WAS RS.3,22,200, IT WA S FACTUALLY INCORRECT TO HOLD THAT RS.22,40,000 WAS INCOME OF T HE APPLICANT. (C) IF THE NOTINGS ON LOOSE PAPER AT P.14 (BACK SIDE) R ECORD THAT RS.20,07,650 WERE RECEIVED FROM THE SALE OF 10 BUNG LOWS OF PRASTHN PROJECT AND THE PAYMENTS FOR LAND WERE IN C ASH TOTALLING TO RS.17,46,000 SO THAT NET PROFIT WAS RS.2,61,650, IT WAS FACTUALLY INCORRECT TO HOLD THAT THE ENTIRE RECEIPT OF RS.20, 07,650 WAS INCOME OF THE APPLICANT. MA NO.208/AHD/2011 (IN ITA NO.2631/AHD/2009) NARSINGBHAI CHUNILAL PATEL VS. DCIT ASST.YEAR 2005-06 - 3 - 2.5. THE APPLICANT SUBMITS THAT IN VIEW OF THE CATE GORICAL NOTINGS ON THE AFORESAID LOOSE PAPERS COUPLED WITH THE AFORESA ID PRESUMPTION UNDER CLAUSE (II) OF SEC.292C, THERE WAS A CLEAR CU T ERROR OF LAW ON THE FACT OF RECORD TO UPHOLD THE AMOUNT AGGREGATING TO RS.1,04,89,627 AS INCOME OF THE APPLICANT. 2.6. IN VIEW OF ABOVE FACT AND CIRCUMSTANCE OF THE CASE, THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT THE CONCLUSION DRA WN BY HONBLE TRIBUNAL IS CONTRARY TO THE PROVISIONS OF SECTION 2 92C OF THE ACT. 2.1. THE LD.AR HAS FURTHER PLEADED THAT ALTHOUGH TH E EXPLANATION WAS SUBMITTED BUT THE RESPECTED TRIBUNAL HAS MADE AN OB SERVATION THAT THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY FROM TH E POSSESSION OF THE ASSESSEE REMAINED UNEXPLAINED. EVEN IN RESPECT OF THE EXPENSES THE ASSESSEE HAS SUBMITTED HIS STAND BUT THE TRIBUNAL H AS EXPRESSED THAT THOSE EXPENSES HAVE NOT BEEN EXPLAINED AND NO CORROBORATI VE EVIDENCE IN SUPPORT OF THE EXPLANATION WAS FILED. HE HAS THERE FORE CONTESTED THAT THE SAID OBSERVATION OF THE TRIBUNAL WAS AGAINST THE FA CTUAL POSITION, THEREFORE DESERVES TO BE RECTIFIED. 3. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.P.L.KU REEL APPEARED AND VEHEMENTLY ARGUED THAT THE PETITION WAS NOTHING BUT IN THE NATURE OF SEEKING REVIEW OF THE ENTIRE ISSUE. THE SAME IS NO T PERMISSIBLE U/S.254(2) OF THE I.T.ACT. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED VIEW THAT THE APPLICANT IS NOW DEMANDING THROUGH THIS PETITION A FRESH APPRECIATION OF ALL THE FACTS WHIC H HAVE ALREADY BEEN APPRECIATED BY RESPECTED BENCH WHILE PASSING A DETA ILED AND REASONED ORDER DATED 20/10/2011(SUPRA). WE HAVE GIVEN OUR C AREFUL THOUGHT ON MA NO.208/AHD/2011 (IN ITA NO.2631/AHD/2009) NARSINGBHAI CHUNILAL PATEL VS. DCIT ASST.YEAR 2005-06 - 4 - THE SUBMISSIONS OF LD.AR BUT UNABLE TO CONVINCE OUR SELVES PRIMARILY ON THE REASON THAT THE TRIBUNAL HAS EXPRESSED THAT THE DOCUMENTS REMAINED UNEXPLAINED WHICH WERE FOUND IN THE COURSE OF SURVE Y IN THE CONTEXT THAT NO SATISFACTORY EVIDENCE OR MATERIAL WAS PLACED BY THE ASSESSEE TO CORROBORATE THE SUBMISSIONS MADE. NATURALLY, IF A N EXPLANATION REMAINED UNSUBSTANTIATED, THEN THE COURTS GENERALLY WRITE THAT THE ISSUE IN DISPUTE REMAINED UNEXPLAINED. IN OTHER WORDS, I N THE PRESENT CASE, WHATEVER WAS SAID OR ARGUED BEING LEFT UNSUBSTANTIA TED HENCE HELD AS REMAINED UNEXPLAINED. SINCE THE TRIBUNAL HAS TAKEN A REASONED VIEW ON APPRECIATION OF FACTS AS ALSO AFTER CONSIDERING THE PROVISIONS OF SECTION 292C OF THE I.T.ACT IN THE LIGHT OF A DECISION OF H ON'BLE CHHATTISGARH HIGH COURT PRONOUNCED IN THE CASE OF ACIT VS. HUKUM CHAND JAIN & ORS. (2011) 337 ITR 238 (CHHATTISGARH), THEREFORE, WE HEREBY HOLD THAT NO APPARENT MISTAKE WAS COMMITTED. RESULTANTLY, PE TITION IS HEREBY DISMISSED. 5. IN THE RESULT, MISCELLANEOUS PETITION IS HERE BY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/ 07/ 2012 SD/- SD/- ( .#$ !% ) ( ) &' ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER 5..$, .$../ T.C. NAIR, SR. PS MA NO.208/AHD/2011 (IN ITA NO.2631/AHD/2009) NARSINGBHAI CHUNILAL PATEL VS. DCIT ASST.YEAR 2005-06 - 5 - &4 1 .6 7&6) &4 1 .6 7&6) &4 1 .6 7&6) &4 1 .6 7&6)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPLICANT 2. ./*- / THE RESPONDENT 3. !! 8 / CONCERNED CIT 4. 8() / THE CIT(A)-XV, AHMEDABAD 5. 6;< .$ , , / DR, ITAT, AHMEDABAD 6. < =2 / GUARD FILE. &4$ &4$ &4$ &4$ / BY ORDER, /6 . //TRUE COPY// > >> >/ // / !+ !+ !+ !+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 27.7.12 (DICTATION PAGES 5 ATTACHED). 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30.7.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.1.8.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1.8.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER