Hari om Verma, Kanpur V. Dy. Commissioner of Income Tax-II, Kanpur

MA 26/LKW/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1000 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-06-2013
• Assessment Year: misc
• Appeal Filed On: 13-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Documents seized

Judgement Text

IN THE INCOME TAX AP PELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER M.A. NO.26/LKW/2012 [ARISING OUT OF ITA NO.543/LKW/2010] BLOCK P ERIOD ENDIN G ON 12.3.1999 HARI OM VERMA 43/18, DHOBI MOHAL KANPUR V. DCIT-II KANPUR PAN:ABGPV1423R (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 07.06.2012 DATE OF PRONOU NCEMENT: 07.08.2013 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATE D 26.6.2012 IN ITA NO.543/LKW/2010 CONTENDING THEREIN THAT WHILE ADJUDICATI NG THE ISSUE RELATING TO ADDITION OF ` 3.70 LAKHS MADE ON ACCOUNT OF UNEXPLA INED INVESTMENT AT AGRA PROPERTY, THE TRIBUNAL HAS NOT LOOK ED INTO THE AFFIDAVIT OF SHRI. JAGDISH PRASAD & STATEMENT OF SHRI. MUKESH KUMAR AND HAS CONFIRMED THE ADDITION DESPITE THE FACT THAT THE AFFIDAVIT AND STATEME NT WERE FILED BEFORE THE TRIBUNAL, WHICH ARE AVAILABLE AT PAGE S 159 TO 165 OF THE COMPILA TION OF THE ASSESSEE. THEREFORE, NON-CONSIDERAT ION OF THE RELEVANT MATERIAL EVIDENCE WHILE ADJUDICATING THE ISSUE IS AN ERROR APPA RENT FROM RECORD WHICH NEEDS TO BE RECTIFIED BY RECALLING OF THE ORDER OF THE TRIBUN AL ON THIS ISSUE AND THEREAFTER RE-ADJUDICATE TH E ISSUE IN THE LIGHT OF TH E AFORESAID DOCUMENTS. :-2-: THE LD. COUNSEL FOR THE ASSESSEE HAS FU RTHER CONTENDED THAT THE TRIBUNAL HAS ALSO NOT CONSIDERED THE CONTENTION RAISED ON BEHALF OF THE ASSESSEE THAT A SUM OF ` 5 LAKHS WAS GIVEN AS ADVANCE TO THE SELLER AND ON ACCOUNT OF NON-MATERIALIZATION OF THE DEAL, TH E ASSESSEE CLAIMED RE FUND OF THE SAID AMOUNT. ALL THESE ASPECTS WERE NOT EXAMINED BY THE TRIBUNAL WHILE ADJUDICATING THE ISSUE AN D CONFIRMED THE ADDITION SUSTAINED BY THE LD. CIT(A). 2. THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE LIGHT OF MATERIAL PLACED BEFORE IT. MOREOVER, NON-CONSIDERATION OF A PARTIC ULAR DOCUMENT DOES NOT AMOUNT TO AN ERROR APPARENT FROM RECORD FOR WHICH THE ORDER CAN BE RECTIFIED UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL DATED 26.6.2012 IN ITA NO.543/LKW/2010 VIS-- VIS THE MISCELLANEOUS APPLICATION IN THE LIGHT OF THE DOCUMENTS PLACED BEFORE US, WE FIND THAT THE ASSESSEE HAS FILED AN AFFIDAVIT OF SHRI. JAGDISH PRASAD BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING OF THE APPEAL, WHICH IS AVAILABL E AT PAGES 163 TO 165 OF THE COMPILATION OF THE ASSE SSEE. SIMILARLY COPY OF THE STATEMENT OF SHRI. MUKESH KUMAR WAS ALSO FI LED, WHICH IS AVAILABLE AT PAGES 159 TO 162 OF THE COMPILATION OF THE ASSESSEE. IN THE STATEMENT AND AFFIDAVIT AN EXPLANATION WAS FURNISHED WITH REGARD TO THE SALE AND SALE CONSIDERATION OF THE PROPERTY AT AGRA. ACCORDING TO TH E STATEMENT AND AFFIDAVIT, SALE CONSIDERATION WAS STATED TO BE AT ` 5 LAKHS, BUT AS PER DOCUMENT S FOUND DURING THE COURSE OF SEARCH, THE SALE CONSIDERATIO N WAS CONSIDERED TO BE AT ` 12.67 LAKHS AGAINST WHICH THE ASSESSING OFFICE R HAS GIVEN A CREDIT OF ` 5 LAKHS AND ADDITION OF ` 7.67 LAKHS WAS MADE, WHICH WAS LATER ON REDUCED TO ` 3.70 LAKHS BY THE LD. CIT(A). THOUGH THE STAT EMENT OF SHRI. MUKESH KUMA R AND AFFIDAVIT OF SHRI. JAGDISH PRASAD WERE FILED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING OF THE APPEAL, BUT IT ESCAPED TH E ATTENTION OF THE TRIBUNAL WHILE :-3-: ADJUDICATING THE IMPUGNED ISSUE. SINC E THE DOCUMENTS ARE QUITE RELEVANT TO UNDERSTAND THE VERACITY OF THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND THE TRIBUNAL HAS ADJUDICA TED THE ISSUE WITHOUT CONSIDERING THE AFFIDAVIT AND STATEMENT ON OATH FILED BE FORE THE TRIBUNAL DURING THE COURSE OF HEARING, WE ARE OF THE VIEW THAT AN ERROR IS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. WE ACCORDINGLY RECALL OUR ORDER DATED 26.6.2012 IN ITA NO.543/LKW/2010 WITH REGARD TO THE ISSUE RELATING TO ADDITION OF ` 3.70 LAKHS MADE ON ACCOUNT OF UN EXPLAINED INVESTMENT AT AGRA PROPERTY. ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THIS APPEAL FOR HEARING TO ADJUDICATE THE LIMITED ISSUE OF ADDITION OF ` 3.70 LAKHS IN THE LIGHT OF AFORESAID EVIDENCE. 4. IN THE RESULT, MISCELLANEOUS APPL ICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.8.2013. SD/- SD/- [PRAMOD KUM A R] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:7.8.2013 JJ:1107 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR