Late Shri Bholidas T. Patel, Legal Heir Shri Rupesh B. Patel, Kalol V. The ACIT, Central Circle-1(2), Ahmedabad

MA 226/AHD/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5539 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S N SOPARKAR
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 153A; 254(2); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (VIRTUAL COURT) BEFORE: SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER LATE SHRI BHOLIDAS T PATEL, LEGAL HEIR SHRI RUPESH B. PATEL, B-26, ISHWARKRUPA SOCIETY, PANCHVATI HIGHWAY, KALOL-382721 PAN: ABIPP7554M (APPELLANT) VS THE ACIT, CENTRAL CIRCLE-1(2), AHMEDABAD (RESPONDENT) REVENUE BY: SHRI L.P. JAIN, SR. D.R. ASSESSEE BY: SHRI S.N. SOPARKAR, A. R. DATE OF HEARING : 04-12-2020 DATE OF PRONOUNCEMENT : 27-01-2021 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED ALL THE THREE MISCELLANEOUS APPLICATIONS IN RESPECT OF COMMON ORDER OF THE ITAT VIDE IT(SS)A NO S. 299, 300 & 301/AHD/2016 DATED 19-06-2018. 2. SINCE SIMILAR FACTS AND ISSUES INVOLVED IN ALL T HE MISCELLANEOUS APPLICATIONS, THEREFORE, FOR THE SAKE OF CONVENIENC E ALL THESE MAS ARE M.A. NO. 226, 227 & 228/AHD/2018 (IN IT(SS)A NOS. 299 TO 301 /AHD/2016) ASSESSMENT YEAR 2009-10 & 2010-11 M.A. NOS. 226, 227 228/AHD/2018 A.Y. 2009-10 & 2010 -11 PAGE NO LATE SHRI BHOLIDAS T PATEL VS. ACIT 2 ADJUDICATED TOGETHER BY TAKING M.A. NO. 226/AHD/201 8 AS LEAD CASE AND ITS FINDING WILL BE APPLICABLE TO THE REMAINING TWO M.A .S. I.E. 227/AHD/2018 & 228/AHD/2018 3. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE H AS MAINLY STATED THAT THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESS EE ON THE TECHNICAL GROUND THAT NO INCRIMINATING MATERIAL WAS FOUND DUR ING THE SEARCH. THE LD. CIT(A) HAS NOT ADJUDICATED THE APPEAL OF THE ASSESS EE ON MERIT. THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDER OF THE LD. C IT(A) BEFORE THE ITAT. THE ITAT VIDE ORDER DATED 19-06-2018 VIDE IT(SS)A NOS. 299, 300 & 301/AHD/2016 HAS ALLOWED THE APPEAL OF THE REVENUE HOLDING THAT UN- REGISTERED BANAKHAT FOUND AND SEIZED DURING THE SEA RCH WAS AS INCRIMINATING MATERIAL ON THE BASIS OF WHICH THE ASSESSING OFFICE R HAS MADE ASSESSMENT. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REPRODUCED AS UNDER:- 1. THE PRESENT APPLICATION IS FILED BY THE APPLICA NT/APPELLANT ABOVE NAMED FOR SETTING ASIDE THE ORDE R DATED 19/06/2018 PASSED BY THIS HON'BLE ITAT BY ALLOWING THE APPEAL FILED BY THE RESPONDENT (ORIGINAL APPLIC ANT). IT IS MOST RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF TH E HON'BLE TTAT, THERE ARE ERRORS APPARENT ON THE RE CORD. 2. THERE WAS A SEARCH IN CASE OF KALOL - PRAJAPATI GROUP ON 6 LH NOV. 2012. A SEARCH WARRANT U/S 132 OF THE ACT WAS ALSO ISSUED IN THE CASE OF THE ASSESSEE. AO PRO CEEDED TO MAKE ASSESSMENT U/S 153A OF THE ACT THAT WAS CHALLENGED BY THE ASSESSEE BEFORE ID. CIT (A) FIRSTLY ON THE GROU NDS OF JURISDICTION U/S 153A OF THE ACT AND SECONDL Y ON MERITS. LD. CIT (A) DELETED ADDITION MADE BY AO HOLDING THA T NO ADDITION CAN BE MADE IN ABSENCE OF ANY INCRIMI NATING MATERIAL FOUND DURING SEARCH WHEN THE ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION ARE NOT PENDING F OLLOWING RATIO OF JURISDICTIONAL ITAT & HIGH COURT WITHOUT COMMENTING ON THE MERITS OF THE ISSUE AS IN PARA 8 OF APPELLA TE ORDER AS BELOW: '8. IT WAS AN UNDISPUTED FACT THAT ON THE DATE OF I NITIATION OF THE SEARCH NO ASSESSMENT PROCEEDINGS W ERE PENDING IN THIS ASSESSMENT YEAR. THEREFORE, THE PROCEEDINGS WERE NO T ABATED IN THE CASE AS MENTIONED IN THE SECOND PRO VISO TO SECTION 153A(1) OF THE ACT. IT SEEMS THAT THE AO LOST SIGHT OF THE FACT THAT HE WAS NOT MAKING AN ASSESSMENT U NDER SECTION 153A (1) OF THE ACT READ WITH ITS SECOND PROVISO. AS DISCUSS ED HEREINABOVE, THERE IS NO INDICATION IN THE CONTE NTS OF THE ASSESSMENT ORDER THAT ADDITION WAS MADE ON THE BASIS OF ANY SE IZED MATERIAL. THE SOLE BASIS OF ADDITION WAS COPY OF BANAKHAT SEIZED IN THE COURSE OF SEARCH WHICH WAS ALREADY DISCLOSED IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERAT ION AS DISCUSSED IN THE FORGOING PARAS. THEREFORE, AFTER THE FACTS OF T HE CASE, THE POSITION OF LAW ON THE ISSUE AND RESPE CTFULLY FOLLOWING THE DECISIONS OF THE JURISDICTIONAL ITAT AND THE HON'BL E HIGH COURTS, IN MY CONSIDERED OPINION, THE ACTION OF THE AO WAS NOT JUSTIFIED. ACCORDINGLY, THE GROUND OF APPEAL IS ALL OWED. SINCE THE ISSUE RELATED TO THE ADDITION, WHICH WAS NOT BASED ON ANY SEIZED INCRIMINATING MATERIAL AND THE PROCEEDINGS IN THE ASSESSMENT YEAR WERE NOT ABATED ON THE DATE OF INITIATION OF SEARCH, HAS BEEN ADJUDICATED, THERE I S NO NEED TO COMMENT ON THE MERITS OF THE CASE.' 3. THE HON'BLE BENCH REVERSED DECISION OF ID. CIT (A) TO HOLD SEIZED BANAKHAT AS INCRIMINATING M ATERIAL & HELD THAT AO HAD JURISDICTION TO PROCEED U/S 153A OF THE ACT. HOWEVER THEREAFTER HON'BLE BENCH ALSO ADJUDICATED THE ISSUE OF ADDITION MADE BY AO U/S 50C OF THE ACT NOT APPRECIA TING THAT ID. CIT (A) HAD NOT ADJUDICATED THE ISSUE ON MERITS. 4. DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THE HON'BLE BENCH ALSO THE PARTIES ADDRESSE D THE HON'BLE BENCH ONLY ON THE ISSUE OF JURISDICTION TO PASS ORDER U/S 1 53A OF THE ACT. MERITS OF ADDITION WERE NOT ARGU ED BY EITHER PARTY BEFORE THE HON'BLE BENCH. 5. IT IS THEREFORE SUBMITTED THAT THERE IS AN ERROR APPARENT ON RECORD IN THE ORDER OF THE HON'B LE BENCH PROCEEDING TO ADJUDICATE THE MERITS OF ADDITION CONSIDERING THAT THE SAID ISSUE DID NOT ARISE OUT OF THE ORDER OF ID . CIT (A) AND IN ABSENCE OF ANY ARGUMENTS BEFORE THE HON'BLE BENCH. M.A. NOS. 226, 227 228/AHD/2018 A.Y. 2009-10 & 2010 -11 PAGE NO LATE SHRI BHOLIDAS T PATEL VS. ACIT 3 6. THE APPLICANT THEREFORE, RESPECTFULLY SUBM ITS THAT IN THE LARGER INTEREST OF JUSTICE THE HON' BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT AND RE CALL THE ORDER PASSED ALLOWING THE APPEAL FILED BY THE REVENUE TO HEAR THE APPEAL ON MERITS & GRANT JUSTICE TO THE APPLICA NT. 4. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE POWER OF RECTIFICATION U/S. 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCE SS OF REASONING ON POINTS OF WHICH THERE MAY CONCEIVABLY TWO OPINIONS. A PERUSAL OF THE RECORD WOULD INDICATE THAT ASSESSING OFFICER HAS PA SSED THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 153A(1)(B) OF THE INCOME T AX ACT ON 25 TH FEB, 2011. HE MADE AN ADDITION OF RS. 52,92,985/- U/S. 50C OF THE INCOME TAX ACT AFTER TAKING FULL VALUE OF CONSIDERATION AS PER THE SEIZE D BANAKHAT. THE LD. CIT(A) HAS DELETED THE ADDITION ON TECHNICAL GROUND HOLDIN G THAT NO INCRIMINATING MATERIAL WAS FOUND AND SEIZED DURING THE SEARCH. T HIS ORDER WAS CHALLENGED BEFORE THE TRIBUNAL IN THE ABOVE APPEAL AND TRIBUNA L AFTER HEARING BOTH THE PARTIES FOUND THAT THERE WAS AN INCRIMINATING MATER IAL FOUND DURING THE SEARCH IN THE SHAPE OF UN-REGISTERED BANAKHAT (AGRE EMENT). IN THE OPINION OF THE TRIBUNAL, THIS WAS A SEIZED MATERIAL AND IT IS SUFFICIENT TO TAKE COGNIZANCE U/S. 153A OF THE INCOME TAX ACT AGAINST THE ASSESSE E. THE TRIBUNAL DID NOT AGREE WITH THE CONCLUSIONS OF THE LD. CIT(A) THAT N O MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. THUS, TRIBUNAL HAS RE VERSED THE FINDING OF THE LD. CIT(A) AND RESTORED THAT OF ASSESSING OFFICER. IN THE MISCELLANEOUS APPLICATION, IT HAS BEEN CONTENDED BY THE ASSESSEE THAT TRIBUNAL HAS RESTORED THE ADDITION ON MERIT WITHOUT ADJUDICATING THE ISSU E. IT IS PERTINENT TO OBSERVE THAT SCOPE OF THE APPEAL BEFORE THE TRIBUNA L WAS WITH REGARD TO THE CORRECTNESS OF THE FINDING OF THE LD. CIT(A) WHETHE R ANY INCRIMINATING M.A. NOS. 226, 227 228/AHD/2018 A.Y. 2009-10 & 2010 -11 PAGE NO LATE SHRI BHOLIDAS T PATEL VS. ACIT 4 MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. TH E LD. CIT(A) DID NOT COMMENT ON MERIT AS DISCERNABLE AT PAGE NO. 12 OF H IS ORDER. THE ITAT HAS DRAWN THE CONCLUSION AFTER TAKING INTO CONSIDERATIO N THE MATERIAL ON RECORD THAT BANAKHAT WAS AN INCRIMINATING MATERIAL FOUND A ND SEIZED DURING SEARCH ACTION ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS MADE ADDITION U/S. 50C OF THE ACT. THE ASSESSEE HAS NEITHER FILED CROS S OBJECTION NOR FILED APPLICATION WITH THE AID OF RULE 27 OF THE ITAT BEF ORE CHALLENGING THIS FINDING. THUS, THERE IS NO OCCASION FOR THE TRIBUN AL TO RECORD A FINDING ON THE QUANTIFICATION OF THE ADDITION. IF THERE IS AN Y GRIEVANCE AT THE END OF THE ASSESSEE THEN SUCH GRIEVANCE OUGHT TO BE RAISED BEF ORE LD. CIT(A) WHO HAS NOT ADJUDICATED THE ISSUE ON MERIT BY OBSERVING THA T IT DOES NOT CALL FOR ADJUDICATION. THE ASSESSEE EITHER OUGHT TO HAVE FI LED APPEAL BEFORE THE TRIBUNAL CHALLENGING THIS FINDING OR SHOULD HAVE FI LED AN APPLICATION FOR RECTIFICATION BEFORE THE FIRST APPELLATE AUTHORITY. WITH THE ABOVE OBSERVATIONS FOR STATISTICAL PURPOSES, WE DO NOT FIND ANY MERIT IN THESE MISCELLANEOUS APPLICATIONS. THEY ARE DISPOSED OFF. ACCORDINGLY , WE DO NOT FIND ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. HENCE , MISCELLANEOUS APPLICATIONS ARE REJECTED. 5. IN THE RESULT, ALL THE THREE MISCELLANEOUS A PPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27-01-2021 SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT A CCOUNTANT MEMBER AHMEDABAD : DATED 27/01/2021 M.A. NOS. 226, 227 228/AHD/2018 A.Y. 2009-10 & 2010 -11 PAGE NO LATE SHRI BHOLIDAS T PATEL VS. ACIT 5 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,