M/s. Shree Nidhi Corporation, Surat V. The ACIT, Circle-9, Surat

MA 25/SRT/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3611 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-10-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: RASESH SHAH
• Keywords: Business income; Income from undisclosed sources; Period of limitation; Additional evidence; Time period of passing order; Condonation of delay
• Section: 133A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO. 25/SRT/2017 [ARISING OUT OF ITA NO.1635/AHD/2011] (ASSESSMENT YEAR: 2008-09) ( VIRTUAL COURT) M/S. SHREE NIDHI CORPORATION, BLOCK NO.204, SATELLITE ROAD, VARACHHA ROAD, SURAT. PAN : ABJFS3086N VS THE ACIT, CIRCLE - 9, SURAT. APPELLANT RESPONDEDNT APPELLANT BY SHRI RASESH SHAH, CA RESPONDENT BY MS. ANUPAMA SINGLA - SR. DR DATE OF HEARING 17 - 0 9 - 2021 DATE OF PRONOUNCEMENT 06 - 10 - 2021 PER PAWAN SINGH, JM : 1. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR SEEKING RECTIFICATION / RECALL OF ORDER DATED 26.08.2016 PASSED IN ITA NO. 1635/AHD/2011. 2. IN THE MISCELLANEOUS APPLICATION, THE APPLICANT/ASSESSEE SUBMITS THAT BEFORE TRIBUNAL, THE REVENUE RAISED GROUND THAT CIT(A) ERRED IN NOT CALLING FOR A REMAND REPORT ON THE FURTHER SUBMISSION FILED BY ASSESSEE BEFORE LD. CIT(A) WHICH IS VIOLATION OF RULE 46A OF INCOME TAX RULES. BEFORE THE TRIBUNAL, THE REVENUE HAS NOT FILED ANY PAPER BOOK BUT THE ASSESSEE HAS FILED VOLUMINOUS PAPER BOOK AND THREE PAPER BOOKS CONTAINING PAPER BOOKS FILED BEFORE ASSESSING OFFICER (AO) AS WELL AS LD. CIT(A). THE ASSESSEE BEFORE THE TRIBUNAL ARGUED THAT IN COURSE OF THE HEARING BEFORE LD. CIT(A), THE CIT(A) REQUIRED THE 2 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION ASSESSEE TO FILE PAPERS IN RESPECT OF ADVANCES RETURNED AND THE SALE DEED EXECUTED WHICH EVENTS TOOK PLACE AFTER PASSING OF THE ASSESSMENT ORDER. BEFORE THE TRIBUNAL, THE ASSESSEE FILED THE CHART OF THE BOOKING ADVANCES FROM FLAT HOLDERS PROJECTING THE FLATS SOLD AND FLATS CANCELLED IN RESPECT OF ALL THE ADVANCES. THE ASSESSEE ALSO EXPLAINED SEVERAL OTHER FACTS. IN MA THE ASSESSEE FURTHER STATED THAT THE AO MADE ADDITION OF RS.74,00,000/- ON ACCOUNT OF UNACCOUNTED INCOME. THE TRIBUNAL WHILE DEALING WITH THIS GROUND ALSO RELIED ON THE FACTS OF ADMISSION OF ADDITIONAL EVIDENCES BY CIT(A). THE ASSESSEE HAS NOT FILED ANY ADDITIONAL EVIDENCES. BEFORE THE CIT(A) AND THE DOCUMENTS WERE FILED ON THE DIRECTION OF CIT(A).THE APPEAL OF ASSESSEE WAS ALLOWED BY LD. CIT(A).BEFORE THE TRIBUNAL, REVENUE RAISED THE GROUND OF APPEAL FOR DELETING THE ADDITION OF RS.74,00,000/- MADE BY AO. 3. THE LD. AUTHORIZED REPRESENTATIVE (LD. AR) OF THE ASSESSEE SUBMITS THAT A SURVEY WAS CARRIED OUT UNDER SECTION 133A ON 12.09.2017. IN THE SURVEY, THE ASSESSEE MADE DECLARATION OF RS.74,00,000/- AS AN UNDISCLOSED INCOME. DURING THE ASSESSMENT, THE AO MADE ADDITIONS OF RS. 1.33 CRORE OUT OF DEPOSIT OF RS. 3.00 CRORE APPEARING IN THE BALANCE SHEET BY GRANTING DEDUCTION OF SALE DEEDS EXECUTED TILL THE DATE OF ASSESSMENT. BEFORE CIT(A) THE ASSESSEE CONTENDED THAT AMOUNT ADDED BY THE AO REPRESENTED THE ADVANCES GIVEN BY THE CUSTOMERS AGAINST THE BOOKING OF THE FLATS. IT WAS STATED THAT SALE DEEDS HAVE BEEN EXECUTED FOR CERTAIN ADVANCES AFTER ASSESSMENT ORDER AND REMAINING 3 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION AMOUNT HAVE BEEN RETURN BACK. THE LD CIT(A) DELETED THE ADDITIONS. THE REVENUE FILED APPEAL BEFORE TRIBUNAL. 4. THE TRIBUNAL WHILE DEALING WITH THE GROUNDS OF APPEAL RELIED ON THE FACTS OF ADMISSION OF ADDITIONAL EVIDENCES AND HELD THAT NO ADDITIONAL EVIDENCE WAS FILED IN SUPPORT OF ADDITION. THE TRIBUNAL WHILE DISPOSING OF THE GROUNDS OF THE APPEAL HELD THAT IN THIS STATEMENT OF ASSESSEE, THERE IS NO REFERENCE OF ANY HOUSING PROJECT DECLARED INCOME NOT BEING TOWARD A PARTICULAR HOUSING PROJECT. THIS SPECIOUS PLEA THAT IT SHOULD BE ASSUMED THAT DECLARED BUSINESS INCOME WAS FOR PARTICULAR HOUSING PROJECT. SINCE, ASSESSEE WAS NOT FOLLOWING THE PROJECT COMPLETION METHOD AND THEREFORE ASSESSEE HAD NOTHING MORE TO DOTHAN CREDIT THE AMOUNT IN WIP ACCOUNT CANNOT BE ACCEPTED. THE ACCOUNTING STANDARDS A7 CANNOT BE APPLIED TO UNSCRUPULOUS ASSESSEE WHO INDULGED IN FUDGING OF ACCOUNTS AND WANT ONLY PROMOTING BLACK MONEY TRANSACTION AND ULTIMATELY AN ALTERNATIVE CLAIM OF ASSESSEE FOR EXAMINATION UNDER SECTION 80IB IS UNJUSTIFIED. THE LD. AR FOR THE ASSESSEE SUBMITS THAT THE MAIN FINDING GIVEN BY TRIBUNAL IS THAT THERE IS NO REFERENCE TO ANY SPECIFIC PROJECT AND AS DECLARED INCOME NOT BEING TOWARD ANY PARTICULAR HOUSING PROJECT AND IT CANNOT BE ASSUMED THAT THE DECLARED INCOME IS FOR PARTICULAR HOUSING PROJECT. 5. THE FINDING OF TRIBUNAL, THE CONTRARY TO THE FACTS ON RECORD AND THE ANSWER GIVEN TO QUESTIONS NOS.14, 15, 25 AND 28. THE LD. AR FURNISHED THE TRANSLATED COPY OF QUESTIONS IN ANSWER OF QUESTIONS NOS.14, 15, 25 4 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION & 28 AND RECORDED DURING THE SURVEY. THE LD. AR FURTHER SUBMITS THAT THE ASSESSEE THEREFORE CLAIMED THAT THE AMOUNT DISCLOSED OF RS.74,00,000/- IN SURVEY CANNOT BE TAXED AS PER PROJECT COMPLETION METHOD OR EVEN OTHERWISE THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB (10). THE ASSESSEE HAS NOT SOLD ANY FLAT DURING THE YEAR NOR HE HAS GIVEN ANY POSSESSING OF THE FLAT AND THEREFORE THE AMOUNT IS NOT EVEN OTHERWISE ASSESSABLE. THE RELIANCE MADE BY TRIBUNAL IN RADHE DEVELOPERS INDIA LTD. [329 ITR 1 (GUJ)] AND SHILPA DYEING & PRINTINGS MILLS LTD. [219 TAXMANN 279] WAS NOT CONSIDERED BY AO. THE CASE OF ASSESSEE IS FULLY COVERED BY THE DECISION OF GUJARAT HIGH COURT IN PCIT VS. GREEN ASSOCIATES IN TAX APPEAL NO.1199 OF 2018. THE LD. AR SUBMITS THAT NON-CONSIDERATION OF JUDGMENT SITUATED INSTEAD OF APPARENT ON RECORD, WHETHER THE JUDGMENT IS RENDERED PRIOR OR SUBSEQUENT TO THE ORDER. AS HELD BY HIGH COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE (268 ITR 146). THE AO RELIED ON THE DECISION IN M/S. D.R. CONSTRUCTION WHICH WAS REVERSE BY TRIBUNAL IN ITA NO.2735/AHD/2010 FOR AY.2008-09 DATED 08.04.2011. SIMILARLY, ON THE ADDITION OF UNDER SECTION 68, BEING LD. AR OF THE ASSESSEE SUBMITS THAT TRIBUNAL REVERSE THE ORDER OF LD. CIT(A) AND CONFIRMED THE ADDITION MADE BY AO BY HOLDING THAT ASSESSEE DESPITE OPPORTUNITIES FAILED TO DISCLOSE, IDENTITY COUPLED WITH DEMONSTRATION OF OTHER RELEVANT DOCUMENTS ABOUT FLAT ALLOTMENT, ALLOTMENT LETTER OR ANY OTHER CORRESPONDENCE TO ESTABLISH THAT THIS AMOUNT LEGITIMATELY CLAIMED AS 5 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION FLAT BOOKING. BEFORE AO AND AS WELL AS CIT(A), THE ASSESSEE FILED DETAILS OF PAN NUMBER OF ALL THE PERSONS AND ALSO THE DETAILS OF THE FLATS ALLOTTED. BEFORE CIT(A), THE ASSESSEE ALSO FAILED THE SAID DOCUMENTS EXECUTED, SUBSEQUENTLY AFTER THE ASSESSMENT ORDER AND ALSO FURNISHED THE REPAYMENT DETAILS MADE AGAINST CANCELLATION OF BOOKING. THE LD. AR SUBMITS THAT THIS ISSUE WAS FULLY COVERED BY THE DECISION OF GUJARAT HIGH COURT IN D & H ENTERPRISES IN TAX APPEAL NO.195 OF 2016 AND IN DCIT VS. ROHINI BUILDERS [256 ITR 360 (GUJ HC)]. THE LD. CIT(A) DELETING THE ADDITION ON THE BASIS OF EVIDENCE FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS AND NOT ON THE BASIS OF ADDITIONAL EVIDENCES. THE TRIBUNAL HELD THAT ASSESSEE HAS FILED ADDITIONAL EVIDENCE IN CONTRAVENTION OF 256A. THE LD. CIT(A) ALLOWED THE GROUND ON THE BASIS OF EVIDENCE FILED IN THE COURSE OF ASSESSMENT PROCEEDING. THE TRIBUNAL ALSO NOTE THAT THE BOOKING DEPOSITS WHICH ULTIMATELY TRANSFER OF SALE ACCOUNTS. THE LD. AR OF THE ASSESSEE SUBMITS THAT ON THE BASIS OF AFORESAID INFIRMITIES WHICH ARE APPARENT MISTAKE ON THE FACE OF THE ORDER MAY BE RECALLED FOR ADJUDICATION OF THE ISSUES AFRESH. 6. ON THE OTHER HAND, THE LD. SR. DR FOR THE REVENUE SUBMITS THAT ASSESSEE IS SEEKING REVIEW OF THE ORDER UNDER THE CURBED OF APPLICATION UNDER SECTION 254(2). THE TRIBUNAL HAS NO POWER TO REVIEW THE ORDER. THE TRIBUNAL PASSED THE DETAIL AND REASON ORDER AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES. THE ASSESSEE HAS ALREADY FILED AGAINST THE SAID ORDER BEFORE THE HIGH COURT AND THE HONBLE HIGH COURT 6 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION CEASED OF THE MATTER. THE LD. SR. DR FOR THE REVENUE FURTHER SUBMITS THAT ASSESSEE HAS FILED APPLICATION AFTER APPELLATE DELAY. NO APPLICATION FOR CONDONATION OF DELAY IS FILED. 7. WE HAVE ALSO NOTED THAT THE REGISTRY HAS ISSUED DEFECT MEMO THAT REPRESENT APPEAL HAS FILED THREE HUNDRED DAYS OF PERIOD OF LIMITATION. THE ORDER IMPUGNED IN THE PRESENT MA PASSED ON 26.01.2016 AND THE PRESENT MA IS FILED ON 19.12.2017. 8. THE LD AR FOR THE ASSESSEE WAS CONFRONTED WITH THESE FACTS. THE LD. AR OF THE ASSESSEE EXPLAINED THAT ORDER PASSED BY TRIBUNAL ON 28.06.2016 WAS IN FACT RECEIVED ON 14.12.2017. THIS FACT IS DULY MENTIONED ON THE MA AND THE MA IS FILED IMMEDIATELY ON 19.12.2017. THE LD. AR FURTHER SUBMITS THAT THE ASSESSEE HAS FILED APPEAL BEFORE HONBLE HIGH COURT AND THE APPEAL HAS ALREADY BEEN ADMITTED BEING TAX APPEAL NO. 370 OF 2018. THE LD. AR SUBMITS THAT APPEAL WAS PRESENTED BEFORE THE HIGH COURT ON 26.02.2020 AS THE ORDER WAS RECEIVED IN DECEMBER, 2017. THE LD. AR SUBMITS THAT THERE WAS NO BAR FOR MAINTAINABILITY OF MA, EVEN IF THE APPEAL IS PENDING BEFORE THE HIGH COURT. TO SUPPORT HIS SUBMISSION, THE LD. AR RELIED UPON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF SHAMBHUBHAI MAHADEVBHAI AHIR (IN CIVIL APPLICATION NO.6337 OF 2018) DATED 20.08.2018. 9. ON THE OTHER HAND THE LD SR DR OF THE REVENUE SUBMITS THAT THOUGH THE ASSESSEE SHOULD HAVE FILED THE MA WITH THE LIMITATION PERIOD PRESCRIBED UNDER THE INCOME-TAX ACT. THE LD DR FOR THE REVENUE 7 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION SUBMITS THAT ON THE CONDONATION OF DELAY IN FILING MA, THE BENCH MAY TAKE DECISIONS AS PER LAW. 10. BEFORE ADVERTING THE MERIT OF THE APPLICATION, WE FIND THAT THE ASSESSEE CLAIMED THAT THE ORDER DATED 26.08.2016 WAS RECEIVED ON 14.12.2017. THIS FACT IS DULY MENTIONED IN MA ITSELF. FURTHER, WE FIND SUPPORT FROM THE DETAILS OF CASE STATUS WITH REGARD TO FILING OF APPEAL BEFORE THE GUJARAT HIGH COURT, WHEREIN THE FILING OF APPEAL IS RECORDED AS 26.02.2018, PRESENTED PRESCRIBED PERIOD OF LIMITATION OF 120 DAYS OF ALLEGEDLY RECEIVING THE ORDER OF TRIBUNAL. IN ABSENCE OF ANY ADVERSE MATERIAL THAT ORDER DATED 26.08.2016 WAS RECEIVED PRIOR TO ASSESSEE ON 14.12.2017, WE HAVE NO OTHER OPTION TO ACCEPT THE STATEMENT OF LD. AR OF THE ASSESSEE THAT ORDER WAS RECEIVED ON 14.12.2017 AND THE APPLICATION IS FILED WITHIN PERIOD OF LIMITATION THAT SIX MONTHS FROM RECEIVED OF ORDER. 11. NOW, ADVERTING TO THE MERIT OF THE APPLICATION. WE FIND THAT TRIBUNAL WHILE PASSING ORDER ON THE GROUNDS OF APPEAL HAD GIVEN DETAIL REASONING AND FILING ON BOTH THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. THERE IS NO ALLEGATION THAT LD. AR OF THE ASSESSEE IN ITS MA THAT THE SUBMISSION OF ASSESSEE WAS NOT PROPERLY RECORDED OR THERE IS ANY SUCH MISTAKE WHICH CAN BE BRANDED AS MISTAKE APPARENT ON RECORD. IT IS SETTLED OFF WHILE EXERCISING THE POWER OF RECTIFICATION, THE TRIBUNAL IS VESTED JURISDICTION FOR CORRECTING ERROR TO BE OF LAW OR FACTS ON RECORDS. HOWEVER, SUCH JURISDICTION TO CORRECT THE ERROR VESTED IN 8 M.A NO. 25/SRT/2017 SHREE NIDHI CORPORATION TRIBUNAL IS NOT AKIN TO REVIEW POWER. AS WE HAVE ALREADY NOTED THAT TRIBUNAL WHILE DECIDING BOTH THE GROUNDS OF APPEAL IN ORDER DATED 26.08.2016 PASSED A DETAIL ORDER BASED ON REASONING. WE HAVE SEEN THAT THERE IS NO MISTAKE WHICH CAN BE TREATED AS MISTAKE APPARENT ON RECORD. THE LD. AR OF THE ASSESSEE BY WAY OF PRESENT APPLICATION IS SEEKING REVIEW OF THE ORDER WHICH IS BEYOND THE SCOPE OF APPLICATION UNDER SECTION 254(2). MOREOVER THE ASSESSEE HAS ALREADY FILED APPEAL BEFORE HIGH COURT. THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPLICATION FILED BY ASSESSEE. 12. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER ANNOUNCED IN COURT ON 06.10.2021 AT THE TIME OF HEARING THE APPEAL. SD/- SD/- (DR. A. L. SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 06/10/2021 SAMANTA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT