SHRI DR. YOGIRAJ SHARMA, Bhopal V. THE ACIT 1(2), Bhopal

MA 21/IND/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3441 (ITAT-INDORE)
• Duration Of Justice: 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 31-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: B K NEMA
• Keywords: Loose papers
• Section: 234B

Judgement Text

DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER M.A. NO. 21/IND/2015 ARISING OUT OF IT(SS)A NO.163/IND/2015 A.Y. 2008-09 DR. YOGIRAJ SHARMA BHOPAL PAN ALOPS-1636H ::: APPLICANT VS ASSTT.COMMR. OF INCOME TAX 1(2) BHOPAL ::: RESPONDENT APPLICANT BY SHRI B.K. NEMA AND SHRI K.P. DEWANI RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 2 1 .8.2015 DATE OF PRONOUNCEMENT 2 1 .8.2015 O R D E R PER SHRI B.C. MEENA, AM THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE EMANATES FROM ITA NO. 163/IND/2013. THE DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 2 ASSESSEE HAS SUBMITTED IN HIS MISCELLANEOUS APPLICATION AS UNDER :- 1. THE ASSESSEE HAD PREFERRED APPEAL IN RESPECT OF ORDER PASSED BY CIT(APPEALS) IN THE CASE OF ASSESSEE FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAD CHALLENGED THE ADDITION MADE BY THE A.O. AT RS.1.13 CRORE IN RESPECT OF CASH FOUND WITH SHRI GAURAV SHARMA IN GROUND NOS. 1 TO 4 IN THE MEMORANDUM OF APPEAL. THE ASSESSEE HAS ALSO CHALLENGED THE ADDITION MADE BY A.O. AT RS.4,50,000/- IN RESPECT OF FOREIGN CURRENCY OWNED AND HELD BY SHRI GAURAV SHARMA AT THE HANDS OF THE ASSESSEE AT GROUND NOS. 5 TO 7 IN THE MEMORANDUM OF APPEAL. DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 3 2. THE APPEAL OF THE ASSESSEE HAS BEEN DISPOSED OF BY THE HON'BLE TRIBUNAL VIDE ORDER DATED 17.11.2014 WHEREIN VARIOUS GROUNDS RAISED BY ASSESSEE HAVE BEEN DISPOSED OFF. IN THE COURSE OF HEARING ASSESSEE HAS MADE DETAILED SUBMISSION AS REGARD TO ADDITIONS MADE BY THE A.O. IN RESPECT TO ABOVE TWO ADDITIONS CHALLENGED AT GROUND NO. 1 TO 7 AND HAS RELIED UPON VARIOUS CASE LAWS WHICH ARE PART OF PAPER BOOK. THE GIST OF SUBMISSION HAS BEEN SUBMITTED IN THE COURSE OF HEARING. IN THE ORDER PASSED BY HON'BLE TRIBUNAL ON ACCOUNT OF INADVERTENT MISTAKE, FINDINGS ON AFORESAID TWO GROUNDS IN THE APPEAL HAS REMAINED TO BE OBSERVED EVEN THOUGH DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 4 SUBMISSION MADE BY ASSESSEE ARE NOTED AT PAGE 65 & 66 OF THE ORDER. 6. NON-ADJUDICATION OF GROUNDS OF APPEAL NO. 1 TO 7 FOR ASSESSMENT YEAR 2008-09 HAS GIVEN RISE TO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF ITAT IN ITA NO. 163/IND/2013 DATED 17.11.2014. 2. WE HAVE HEARD BOTH THE SIDES. THE LEARNED CIT(A) HAS DECIDED THE ISSUE WITH RESPECT TO THE CASH SEIZED AS UNDER :- THUS, THE PRESUMPTION AVAILABLE IN SECTION 132(4A) AND 292C ARE ATTRACTED TO HOLD THAT THE APPELLANT HAS OWNED THE CASH IN HIS POSSESSION OUT OF SOURCE NOT DISCLOSED TO THE DEPARTMENT AND FOR THE FAILURE OF THE APPELLANT TO REBUT IT SUCCESSFULLY, THE SUBSTANTIVE DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 5 ADDITION OF CASH FOUND FROM THE RESIDENTIAL PREMISE FOR PURPOSE OF TAXATION IN THE HANDS OF THE APPELLANT I S CONFIRMED BY RELYING ON THE LEGAL PROPOSITIONS DISC USSED IN PLETHORA OF CASES LIKE SMT. KESHRI BAI VS. ITO 3 2 ITD 1, GARIBDAAS CHANDRIKA PRASAD VS. CIT 230 ITR 771; SUKHRAM VS. ACIT; 285 ITR 256(DEL); CIT VS. DTMS MOHAMOOD 228 ITR 113(MAD.), ETC. THOUGH SHRI ASHOK NANDA HAS SURRENDERED IT AT HIS HANDS TO HIS DETRIMENTS. THE DECISIONS OF THE CASE LAWS RELIED O N BY THE LD. AR ARE FOUND TO BE DISTINGUISHABLE TO PECUL IAR FACTS AND CIRCUMSTANCES OF THE CASE IN HAND. THE GROUND OF APPEAL IS REJECTED. 3. THE ASSESSEE HAS TAKEN THE GROUNDS IN HIS APPEAL WHICH READ AS UNDER :- 1. THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT CASH FOUND IN THE COURSE OF SEARCH BELONGS TO ASSESSEE AND ASSESSEE IS LIABLE TO BE DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 6 ASSESSED AT RS.1,13,00,000/- ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SEARCH 2. THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER AT RS.1,13,00,000/- FOR UNEXPLAINED CAASH. 3. THE ADDITION MADE BY ASSESSING OFFICER AT RS.1,13,00,000/- ON ACCOUNT OF CASH FOUND IN THE COURSE OF SEARCH IS UNJUSTIFIED, UNWARRANTED AND BAD IN LAW. 4. THE LEARNED AUTHORITIES OUGHT TO HAVE ACCEPTED THE EXPLANATION OF ASSESSEE WITH REGARD TO CASH FOUND DURING THE COURSE OF SEARCH AND NO ADDITION AT RS.1,13,00,000/- OUGHT TO HAVE BEEN MADE. 5. THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT SOURCE OF FOREIGN CURRENCY PURCHASED BY DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 7 SHRI GAURAV SHARMA REMAINS UNEXPLAINED SO AS TO ASSESS RS.4,50,000/- SUBSTANTIVELY AT THE HANDS OF ASSESSEE. 6. THE LEARNED CIT(APPEALS) ERRED IN HOLDING THAT SOURCE OF RS.4,50,000/- BEING VALUE OF FOREIGN CURRENCY PURCHASED BY SHRI GAURAV SHARMA REMAINS UNEXPLAINED AND IS LIABLE TO BE ASSESSED AT THE HANDS OF ASSESSEE . 7. THE LEARNED AUTHORITIES OUGHT TO HAVE ACCEPTED THE SOURCE OF ACQUISITION OF FOREIGN CURRENCY AS EXPLAINED BY SHRI GAURAV SHARMA AND NO ADDITION AT RS.4,50,000/- OUGHT TO HAVE BEEN MADE AT THE HANDS OF ASSESSEE. 8. THE LEARNED CIT(APPEALS) ERRED IN SUSTAINING ADDITION OF RS.2,67,54,000/- AS LIABLE TO BE DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 8 ASSESSED AS ILLEGAL GRATIFICATION AT THE HANDS OF ASSESSEE. 9. THE ADDITION MADE BY THE ASSESSING OFFICER IN THE CASE OF ASSESSEE AT RS.2,67,54,000/- ON THE BASIS OF LOOSE PAPERS IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 10. THE LEARNED AUTHORITIES ERRED IN MAKING ADDITION AT THE HANDS OF ASSESSEE ON THE BASIS OF LOOSE PAPERS BY HOLDING THAT ASSESSEE IS IN RECEIPT OF ILLEGAL GRATIFICATION. 11. THE LEARNED AUTHORITIES ERRED IN NOT APPLYING PRINCIPLES OF TELESCOPING WHILE MAKING/ SUSTAINING VARIOUS ADDITIONS IN THE CASE OF ASSESSEE. 11. THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234A, 234B AND 234C OF THE IT DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 9 ACT, 1961. WITHOUT PREJUDICE, THE LEVY OF INTEREST U/S 234A, 234B AND 234C IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 12. THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234A, 234B AND 234C OF THE I.T. ACT, 1961. WITHOUT PREJUDICE, THE LEVY OF INTEREST U/S 234A, 234B AND 234C IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 4. THE REVENUE HAS TAKEN THE FOLLOWING GROUND IN ITS APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) HAS ERRED IN 1. DELETING THE ADDITION OF RS.1,13,00,000/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH FOUND DURIN G THE COURSE OF SEARCH PROCEEDINGS. DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 10 5. THE ITAT IN ITS ORDER DATED 17.11.2014 HAS DEALT WI TH THE GROUND RAISED BY THE REVENUE IN PARA 32 AS UNDER : - 32. GROUND NO. 1 RELATES TO ADDITION MADE ON ACCOUNT OF CASH FOUND AMOUNTING TO RS.1.13 CRORES AT THE TIME OF SEARCH BY THE A.O. AND DELETED BY TH E CIT(A). WE NOTED THAT THE CIT(A) HAS NOT DELETED TH IS ADDITION BUT HAS CONFIRMED THE ADDITION BY REJECTIN G THE GROUND TAKEN BY THE ASSESSEE AS IS APPARENT FROM PG. 26 OF THE CIT(A)S ORDER. THUS, THIS GROUN D, IN OUR OPINION, IS INFRUCTUOUS AND THEREFORE STANDS DISMISSED AS INFRUCTUOUS. BUT GROUND NOS. 1 TO 7 TAKEN BY THE ASSESSEE HAVE NOT BEEN DEALT WITH BY THE TRIBUNAL IN ITS ORDER. THE LEAR NED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE GROUNDS WERE NOT DECIDED BY THE TRIBUNAL WHICH IS CLEAR FROM THE FOLLOWING PORTION OF PARA 52 AT PAGES 65 AND 66 OF THE O RDER OF THE TRIBUNAL :- DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 11 THUS, IT WAS VEHEMENTLY CONTENDED THAT ON THE BASIS OF THE JUDGMENT IT CAN PRIMA FACIE BE CONCLUDED THAT THE CASH FOUND DURING THE SEARCH DOES NOT BELONG TO THE ASSESSEE. THEREFORE, ASSESSING THE SAME AT THE HANDS OF THE ASSESSEE AS UNDISCLOSED INCOME BY THE A.O. IS HIGHLY UNJUSTIFIED. BOTH THE ORDERS OF THE HON'BLE HIGH COURT WERE SUBMITTED BEFORE THE A.O. BUT THE A.O. IGNORED THE ORDERS. EVEN RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF DSP CHANNAI VS. K. INBASAGARAN REPORTED IN 1 HON'BLE SUPREME COURT 420 (2006). IT WAS POINTED OUT THAT THIS DECISION WAS REFERRED BEFORE THE CIT(A) BUT CIT(A) IGNORED THE SAME. THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IS SQUARELY APPLICABLE TO THE FACTS IN THE CASE OF THE ASSESSEE AND THUS IT WAS CONTENDED THAT THE DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 12 ADDITIONS MADE BY THE A.O. IS UNJUSTIFIED. RELIANCE WAS ALSO PLACED ON THE FOLLOWING DECISIONS :- I) V.K.BRAHMANKAR VS.JCIT, 90 TTJ(IND)821 (2004) II) CIT VS. SMT. P.K. NOORJAHAN, 237 ITR 570 (SC) ( 1999) III)CIT VS. DAULAT RAM RAWATMULL, 87 ITR 349 (SC) IV) KRISHNAND VS. STATE OF M.P., AIR 1977 (SC) 796. 6. THUS, IT IS APPARENT FROM RECORD THAT THE GROUND N OS. 1 TO 7 RAISED BY THE ASSESSEE IN HIS APPEAL HAVE NOT BEEN ADJUDICATED UPON BY THE TRIBUNAL IN ITS ORDER DATED 17.11.2014. THE MISTAKE IS APPARENT FROM RECORD. WE, THEREFORE, RECALL THE ORDER OF THE TRIBUNAL FOR HEARIN G ON THIS LIMITED ISSUE OF ADJUDICATING GROUND NOS. 1 TO 7 RAISED IN THE ASSESSEES APPEAL IT(SS)A NO. 163/IND/2013. HEARING FIXED ON 24 TH AUGUST, 2015. THE ORDER AND DATE OF HEARING WERE INFORMED IN THE OPEN COURT AT THE TIME O F HEARING ITSELF. DR. YOGIRAJ SHARMA MA NO. 21/IND/2015 13 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. PRONOUNCED IN OPEN COURT ON 21 ST AUGUST, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 21 ST AUGUST, 2015 DN/-