M.Srinivasulu, CHENNAI V. ACIT, CHENNAI

MA 273/CHNY/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0805 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 07-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: PRASSAN CHAND OSTWAL
• Keywords: Block assessment; Reason to believe
• Section: 131; 132; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER .. M.P. NO. 273/MDS/2011 (IN I.T.(SS) A. NO. 168/MDS/06) BLOCK ASSESSMENT PERIOD : 1.4.96 TO 31.3.02 AND 1. 4.02 TO 18.2.03 SHRI M. SRINIVASALU, NEW NO.15 (OLD NO.7), 1 ST FLOOR, LIME KLEN ST., AMINJIKARAI, CHENNAI - 600 029. PAN : AIQPM 7204 C (PETITIONER) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(3), CHENNAI - 600 034. (RESPONDENT) PETITIONER BY : SHRI PRASSAN CHAND OSTWAL, CA RESPONDENT BY : SHRI S. DAS GU PTA, JCIT DATE OF HEARING : 27.09.2013 DATE OF PRONOUNCEMENT: 27.09.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED ON 27.3. 2011, ASSESSEE STATES THAT THERE WERE FOLLOWING MISTAKES IN THE OR DER DATED 09.05.2008 OF THIS TRIBUNAL:- (I) THE HONBLE INCOME TAX APPELLATE TRIBUNAL HAS MISTAK ENLY TAKEN THE DATE OF CONCLUSION OF THE SEARCH AS ON 21. 2.2003 AS AGAINST SEARCH/REQUISITION BEING CONTINUOUS INCE SSANTLY TILL DATE AND ACCORDINGLY MISTAKENLY CONFIRMED THE ORDER OF THE CIT(APPEAL)-I. (II) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THE FACT THAT THE BLOCK ASSESSMENT WAS COMPLETED ON 25.2.2005 2 M.P. NO. 273/MDS/11 EVEN THOUGH THE SEARCH WAS NOT COMPLETED ON THAT DA TE, AND NOT CONCLUDED EVEN TILL NOW AND ACCORDINGLY THE HON BLE TRIBUNAL HAS MISTAKENLY CONFIRMED THE ORDER OF THE CIT(A)- I. (III) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THAT THE ORDER U/S 158BC COULD HAVE BEEN PASSED, AS PROVIDE D U/S 158 BE OF THE INCOME-TAX ACT, 1961, WITHIN TWO YEARS FROM THE END OF THE MONTH IN WHICH LAST AUTHORIZATI ON U/S 132 OR FOR REQUISITION U/S 132A, AS THE CASE MAY BE, WA S EXECUTED WHEN IN THE INSTANT CASE THE REQUISITION U/ S 132A WAS NOT EXECUTED OR CONCLUDED WHEN ORDER U/S 158BC WAS PASSED ON 25.2.2005 AND ACCORDINGLY MISTAKENLY CONFIRMED THE ORDER OF THE CIT(APPEAL)-I. (IV) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THAT WHEN REQUISITION U/S 132A WAS NOT CLOSED BY NOT TAKIN G DELIVERY OF THE CASH AMOUNT OF ` 50 LAKHS TO DO THE INVESTIGATION, THE SUBJECT MATTER OF ` 50 LAKHS AS AN EVIDENCE NEVER BECAME AVAILABLE AS PROVIDED U/S 158 BB OF THE INCOME-TAX ACT, 1961, TO BE ASSESSED AS UNDISCLOSE D INCOME OF BLOCK PERIOD AND ACCORDINGLY MISTAKENLY C ONFIRMED THE ORDER OF THE CIT(APPEAL)-I. (V) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THAT ` 50 LAKHS WHICH WAS ORDERED BY THE COURT TO BE DELIVE RED TO DDI UNIT II(2), CHENNAI AND WHICH WAS THEREAFTER TO BE DISPOSED OFF IN THE MANNER AS PROVIDED U/S 132B COULD NOT BE DISPOSED OFF BY RETURNING THE AMOUNT TO THE APPE LLANT / APPLICANT WITH INTEREST U/S 132B WHICH WAS ENVISAGED B Y THE COURT WHILE ALLOWING THE PETITION OF THE DDI UNIT I I(2) MOVED U/S 132A READ WITH SEC 451 OF CR.P.C. (VI) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THE FACT THAT BOTH THE AMOUNT OF ` 50 LAKHS WAS SEIZED ON 17.2.2003 AND SWORN STATEMENT ALSO RECORDED ON THAT DATE, AND NOT ON 18.2.2003. THIS WAS ONE DAY PRIOR TO COMMENCEMENT OF THE SEARCH ON 18.02.2003. (VII) THE HONBLE TRIBUNAL HAS MISTAKENLY MISSED TO CONSI DER THE FACT THAT PROCEEDINGS CONDUCTED ON 17.2.2003 U/S 131 AND PROCEEDINGS CONDUCTED ON 18.2.2003 AND ONWARDS U/S 132 3 M.P. NO. 273/MDS/11 AND 132A WERE SEPARATE AND DISTINCT FROM EACH OTHER A ND SUBJECT MATTER OF FIRST OF IT WAS TO HAVE BEEN CONS IDERED ONLY UNDER REGULAR ASSESSMENT PROCEEDINGS AND NOT I N BLOCK ASSESSMENT PROCEEDINGS. (VIII) THESE ALL THE FACTS EXISTED ON THE DATE WHEN BOTH ASSESSMENT ORDER AND TWO APPEAL ORDERS WERE PASSED/ CONFIRMED MISTAKENLY. 2. WE FIND FROM THE RECORDS THAT ASSESSEE HAD ALREA DY FILED A MISCELLANEOUS PETITION NO.174/MDS/2008 ON 26.6.2008 . 3. GROUNDS RAISED BY THE ASSESSEE IN THE SAID MISCE LLANEOUS PETITION WERE AS UNDER:- (I) I SUBMIT THAT I HAVE FILED ABOVE NUMBERED APPEAL BE FORE HONBLE INCOME TAX APPELLATE TRIBUNAL WHEREIN HONB LE CHENNAI B BENCH OF THIS HONBLE INCOME TAX APPELLATE TRIBUNAL HAS PASSED THE ORDER ON DATE 9 TH OF MAY 2008. (II) I SUBMIT THAT ABOVE APPEAL WAS IN FACT AGAINST ORDE R OF CIT(APPEAL) DATED 19.5.2006 IN APPEAL I.T.A.NO. 231/04-05 WHEREIN THE HONBLE CIT(APPEAL) HAS CONFIRMED ASSES SMENT OF ` 50,00,000/- FOUND ON PERSON OF ME ON 17.2.2003 AS UNDISCLOSED INCOME AND WHICH THE ORDER THIS BENCH OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL HAS ALSO CONFI RMED. (III) I MOST RESPECTFULLY SUBMIT THAT I HAVE VERY CAREFUL LY GONE THROUGH THE WHOLE ORDER AND STRONGLY FEEL THAT THER E IS A STRONG CASE FOR THIS HONBLE BENCH TO RECONSIDER AND REVIEW THE MATTER AS VERY VITAL POINTS BOTH LEGALLY AND FA CTUALLY ARE NOT APPRECIATED, CONSIDERED AND UNDERSTOOD PROPERLY . (IV) I FURTHER SUBMIT THAT MY BOTH MAIN AND SUPPLEMENTAR Y APPLICATIONS UNDER RULE 10 OF APPELLATE TRIBUNAL RUL ES, 1963 POINTING OUT AS TO HOW FALSITIES WITH REGARD TO DAT E OF RECORDING MY STATEMENTS ON 17.2.2003 WERE COMMITTED BY THE OFFICERS CONCERNED HAS NOT BEEN PROPERLY UNDERS TOOD BY THIS HONBLE TRIBUNAL AS ISSUE OF RECORDING THE STA TEMENT ON 17.2.2003 HAS BEEN UNDERSTOOD BY THIS TRIBUNAL AS UNTRUE STATEMENT REGARDING THE ACTUAL DATE OF MY ARREST IF PARA 15 OF ORDER OF APPEAL IS ANY INDICATION. 4 M.P. NO. 273/MDS/11 (V) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL DID NOT GIVE ITS FINDINGS ON DATE OF RECORDING MY STATEMENTS ON 17.2.2003 IN VIEW OF ACTUAL EVIDENCE POINTED OUT BY ME AS FOUND RECORDED IN APPRAISAL REPORT ON ONE HAND AND SWORD AFFIDAVIT THE DDI UNIT II(2) CHENNAI HAS FILED IN M.P. NO.1205 OF 2003 IN CRIME NO.126 OF 2003 BEFORE THE CHIEF METROPOLITAN MAGISTRATE COURT, CHENNAI WHEREIN MY STATEMENTS WAS CLEARLY ADMITTED TO HAVE HAD BEEN RECORDED ON 17.2.2003 A S AGAINST FALSIFIED DATE OF 18.2.2003. (VI) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL DID NOT GIVE ITS FINDINGS ON MY PLEA THAT EVIDENCE GATHERED ON 17.2.2003 WHILE RECORDING MY STATEMENT U/S 131 BEFORE ACTUAL COMMENCEMENTS OF SEARCH ON 18.2.2003 DID NOT CONSTITUTE THE EVIDENCE TO ASSESS UNDISCLOSED INCOME OF THE BL OCK PERIOD AS PROVIDED U/S 158 BB OF THE INCOME-TAX ACT, 1961. (VII) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL DID NOT CONSIDER THE ISSUE THAT EVIDENCE FOUND AS A RESULT OF PROCEE DINGS U/S 131 ON 17.2.2003 DID NOT CONSTITUTE THE EVIDENCE AS A RESU LT OF SEARCH WHICH THE SEARCH IN FACT COMMENCED ON 18.2. 2003. (VIII) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL DIDNT CONSIDER THE FACT THAT THE CASE OF ` 50,00,000/- BEING PART OF CASH BALANCE GENERATED FROM CASH SALES OF CONSIGNMENT GO ODS AND WHICH THE WHOLE ACCOUNT WAS CONFIRMED BY CONSIG NOR IN NO WAY CONSTITUTED THE UNDISCLOSED INCOME. (IX) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL ERRED I N CONSTRUING THE FACT THAT ` 50,00,000/- WAS NOT PART OF SALE PROCEED AS I HAVE NEVER SUBMITTED ANYWHERE THAT ENT IRE CASH GENERATED FROM CASH SALES WERE DEPOSITED INTO BANK. APART FROM CASH DEPOSITED INTO BANK GENERATED FROM THE CASH SALES, THERE WAS ALSO CASH ON HAND ALSO GENERA TED FROM CASH SALES. (X) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL FURTHER ERRED IN UNDERSTANDING THAT ` 50,00,000/- WAS NOT PART OF SALE PROCEED BECAUSE BOOKS OF ACCOUNTS OF M/S DHARIWAL INDUSTRIES LTD., DO NOT SUPPORT THE POINT OF ADDITI ONAL AMOUNT OF ` 50,00,000/- AS UNDER CONSIGNMENT SYSTEM OF ACCOUNTING, THE CONSIGNOR ONLY MAKES ENTRIES FOR SA LES EFFECTED AND ACTUAL AMOUNT RECEIVED BY CONSIGNOR AN D NOT ACTUAL AMOUNT COLLECTED AND DEPOSITED INTO BANK BY CONSIGNEE. (XI) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL DID NOT CONSIDER THE FACT THAT ON 17.2.2003 WHEN I DEPOSED FIRST TIME THE 5 M.P. NO. 273/MDS/11 WHOLE BUSINESS WAS GOT ADMITTED BELONGING TO MR. IL IYAS MOOSA WHICH LATER PROVED BELONGING TO ME PROVES THE POINT THAT THERE WAS COERCION, THREAT, FALSIFICATION ETC IN RECORDING MY STATEMENT. (XII) I FURTHER SUBMIT THAT THIS HONBLE TRIBUNAL BE PLEA SED TO CONSIDER THE CASH RECONCILIATION STATEMENT WHICH I FILED IN PAPER BOOK SO THAT IT CAN UNDERSTAND ABOUT AVAILABI LITY OF TOTAL CASH BALANCE WITH ME ON 17.02.2003 THE DATE OF PROCEEDINGS U/S 131 OF THE I.T. ACT, 1961. 4. THIS TRIBUNAL, WHILE DISMISSING M.P. NO.174/MDS/ 2008, VIDE ITS ORDER DATED 4 TH NOVEMBER, 2010, HAD HELD AS UNDER:- 2. ACCORDING TO ASSESSEE, TRIBUNAL DID NOT PROPERLY UNDERSTAND THE FALSITY REGARDING THE STATEMENTS RECORDED ON 17 .2.2003 DESPITE EVIDENCE POINTED OUT. FURTHER ACCORDING TO ASSESSE E, TRIBUNAL ALSO DID NOT GIVE ANY FINDING ON ITS PLEA THAT EVIDENCE GATHERED ON 17.2.2003 INCLUDING STATEMENT RECORDED U/S 131 OF T HE INCOME-TAX ACT, 1961 [IN SHORT 'THE ACT'] WERE BEFORE THE ACTU AL COMMENCEMENT OF THE SEARCH. FURTHER, ACCORDING TO ASSESSEE, SUM OF ` 50 LAKHS FOUND WAS CASH GENERATED FROM SALE OF CONSIGNMENT G OODS WHICH WAS CONFIRMED AND TRIBUNAL ERRED IN CONSTRUING THAT SUCH SUM WAS NOT PART OF THE SALE PROCEEDS. 3. AS IS CLEAR FROM THE M.P. ITSELF, ASSESSEES PL EA IS THAT THE TRIBUNAL CONFIRMED THE ADDITION OF AMOUNT OF ` 50 LAKHS ON ACCOUNT OF CASH FOUND WITH THE ASSESSEE. WHEN THE MATTER W AS CALLED UP FOR HEARING, NOBODY ENTERED APPEARANCE ON BEHALF OF THE ASSESSEE. HOWEVER, ASSESSEE HAS FILED A LETTER REQUESTING ADJ OURNMENT AND ALSO FILED COPY OF CRI MP NO. 2843/2010 FILED BY HI M BEFORE THE COURT OF CHIEF METROPOLITAN MAGISTRATE, EGMORE, CHE NNAI IN WHICH HE HAS PRAYED FOR RETURN OF ` 50 LAKHS BY THE I.T. DEPARTMENT. ASSESSEE MENTIONS IN THE ADJOURNMENT PETITION THAT REQUISITION OF THE REVENUE WAS INITIALLY ALLOWED ONLY FOR THE PURP OSE OF INVESTIGATION OF THE SEIZED AMOUNT AND NOT FOR MAKI NG ANY ADJUSTMENT AGAINST ARREARS OF TAX LIABILITY. WE FI ND THAT THIS IS A VERY OLD MP FILED AS EARLY AS 24.6.2008. THE MATTER HAS BEEN ADJOURNED A NUMBER OF TIMES ON THE REQUEST OF THE ASSESSEE. TOTAL NUMBER OF ADJOURNMENTS SOUGHT BY ASSESSEE WAS SIX TIMES AND O N OTHER DIFFERENT OCCASIONS THERE WAS NO APPEARANCE ON BEHA LF OF THE ASSESSEE. HENCE WE ARE CONSTRAINED TO DISPOSE OF T HIS MP ON MERITS. 4. ASSESSEE AND REVENUE HAD FILED APPEALS BEFORE TRIBUNAL AGITATED ON ISSUES. REVENUE WAS AGITATED ON DELETIO N OF AN ADDITION OF ` 5,61,50,000/- CASH DEPOSITS MADE BY ASSESSEE IN DIFFERENT BAN K 6 M.P. NO. 273/MDS/11 ACCOUNT TREATED AS UNDISCLOSED INCOME AND ASSESSEE WAS AGITATED ON SUSTENANCE OF ADDITION OF ` 50 LAKHS, WHICH WAS FOUND WITH ASSESSEE ON 17.2.2003 AND, WHICH WAS SEIZED FROM HI M AT CENTRAL RAILWAY STATION BY THE POLICE. THIS TRIBUNAL HAD H ELD THAT SUM OF ` 5,61,50,000/- WAS PROVED TO BE ACCOUNTED IN THE BOO KS OF ACCOUNT OF M/S. DHARIWAL INDUSTRIES AND REFUSED TO INTERFER E WITH THE ORDER OF THE LD.CIT(A). HOWEVER, VIS--VIS THE ADDITION OF ` 50 LAKHS SUSTAINED BY THE LD. COMMISSIONER OF INCOME TAX (AP PEALS), THE TRIBUNAL HELD AT PARAS 24 TO 28 OF ITS ORDER AS UND ER:- 24. BUT, WE DO NOT FIND MUCH FORCE IN THE CONTENT ION OF THE ASSESSEE THAT THE ACTUAL DATE OF ARREST AND DATE RE CORDED BY THE DEPARTMENT WERE DIFFERENT . THE EXECUTION OF WARRANT AGAINST THE ASSESSEE SHOULD BE CONSTRUED FROM THE P OINT WHEN THE DEPARTMENT HAS TAKEN UP THE CASE OF THE AS SESSEE AND HAS ACKNOWLEDGED THE RECOVERY OF CASH BY THE PO LICE DEPARTMENT. DEFINITELY THE ASSESSEE MIGHT HAVE TAKE N INTO CUSTODY BY THE POLICE EARLIER THAN THE ACTION SWUNG IN BY THE DEPARTMENT, IT ; IS ON THE INFORMATION FROM THE POLICE, THE DEPARTMENT HAS COME INTO THE SCENE. IT IS NOT NECES SARY FOR THEM TO EXECUTE THE WARRANT IMMEDIATELY. THEY WILL MAKE NECESSARY AND PRELIMINARY ENQUIRIES NOT ONLY WITH T HE ASSESSEE BUT ALSO WITH POLICE DEPARTMENT WHICH ARE THE NECESSARY PRELUDE BEFORE EXECUTING THE WARRANT ISSU ED AGAINST THE ASSESSEE. THEREFORE, THE TIME LAG BETWEEN THE PHYSICAL ARREST MADE BY POLICE AND THE EXECUTION OF WARRANT BY THE INCOME TAX DEPARTMENT CANNOT BE STRETCHED TO O FAR AS ATTEMPTED BY THE ASSESSEE SO AS TO SAY THAT THE DEPARTMENT HAS RECORDED AN ENTIRELY DIFFERENT DATE. ON GOING THROUGH THE CHRONOLOGY OF EVENTS, WE DO NOT FIND AN Y FORCE IN THE ARGUMENT OF - ASSESSEE THAT THE DEPARTMENT HAS FALSIFIED IN RECORDING THE DATE OF EXECUTING WARRAN T. 25. REGARDING COERCION AND COMPULSION WHICH MADE TH E ASSESSEE TO MAKE CERTAIN ADVERSE STATEMENTS AGAINST HIM ARE ALSO NOT CONVINCING. EVEN THOUGH THE ASSESSEE M IGHT HA VE BEEN FRIGHTENED OR DAZED IN THE POLICE CUSTODY, ACT UAL POSITION COULD HAVE BEEN EXPLAINED TO INCOME TAX AU THORITIES LATER ON . THE ASSESSEE INITIALLY STATED THAT THE AMOUNT WAS HANDED OVER TO HIM BY MR. ABDULLA TO HAND OVER TO M R. MOHAMED ILLYAS. THAT STATEMENT WAS DISP R OVET: WHEN MR. ABDULLA WAS EXAMINED BY THE DEPARTMENT AUTHORITIES. THE ASSESSEE DID NOT ASK FOR CROSS EXAMINATION OF MR. A BDULLA NOR THE ASSESSEE ASKED TO CALL FOR MR . MOHAMED ILLYAS AS WITNESS. THEREFORE, HIS CONTENTION THAT THE AMOUNT WAS HANDED OVER BY MR. ABDULLAH CANNOT BE ACCEPTED FOR EVIDENTIARY VALUE. 7 M.P. NO. 273/MDS/11 26. ONCE THE ABOVE EXPLANATION WAS SHATTERED, THE ASSESSEE TOOK A DIFFERENT STAND TO EXPLAIN THAT THE AMOUNT O F RS.50 LAKHS REPRESENTED THE SALE PROCEEDS OF GUTKHA AND PAN MAS ALA. THIS EXPLANATION IS ALSO HIT BY THE EXPLANATION OFF ERED BY THE ASSESSEE IN RESPECT OF CASH REMITTANCES MADE IN DIFFERENT BA NK ACCOUNTS. THE ASSESSEE HAS ALREDY STATED T HAT THE SALE PROCEEDS COLLECTED ' FROM PALLAKAD - WERE DEPOSITED IN VARIOUS BANK ACCOUNTS IN TAMIL NADU AND THOSE F UNDS WERE TRANSFERRED BY THOSE BANKS TO THE CREDIT OF MLS DHARIWAL INDUSTRIES LIMITED EITHE R AT PUNE OR HYDERABAD . ONCE THE ASSESSEE HIMSELF HAS EXPLAINED THAT SALE PROCEEDS WERE INVARIABLY DEPOSIT E D IN THE BANK ACCOUNTS, THERE IS NO QUESTION OF HAVING AN ADDITIONAL AMOUNT OF RS.50 LAKHS WITH HIM AS PART OF THE CASH SALE S OF GUTKHA AND PAN MASALA. THE SALE PROCEEDS HAVIN G BE E N DEPOSITED IN DIFFERENT BANK ACCOUNTS BY CASH, THERE IS NO SCOPE FOR ADDITIONAL AMOUNT OF RS.50 LAKHS IN THE HANDS AT THE ASSESSEE. THEREFORE, THE SAID STATEMENT WAS ALSO NOT CONVINCING. 27 . MOREOVER , THE ASS ESSE E HAD NOTHING IN HIS HANDS TO PROVE THAT THE SAID AMOUNT OF RS. 50 LAKHS WAS PART OF THE SALE PROCEEDS OF GUTKHA AND PAN MASALA IN KERALA. THIS I S RELEVANT BECAUSE THE SALES RECORDED IN THE BOOKS OF DHARIWAL INDUSTRIES L I MITED AT PUNE SUPPORT THE CASH REMITTANCES MADE IN THE BAN K ACCOUNTS. THE BOO K S M/ S DHARIWAL INDUSTRIES LIMITED DO NOT SUPPORT THE POINT OF ADDITIONAL AMOUNT OF RS.50 LAKHS. ON THIS GROUND ALSO THE CONTENTION OF THE ASSESSEE FAILS . 28. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS THE CONSIDERED VIEW THAT THE C/T(APPEALS) HAS RIGHTLY C ONFIRMED THE ADDITION OF RS . 50 LAKHS AS UNDISCLOSED INCOME OF ' THE ASSESSEE. 5. ASSESSEE HIMSELF S TAT ES AT PARA 3 O F MP AS UNDER: ' I MOST RESPECTFULLY SUBMIT THAT I HAVE VERY CAREFUL LY GONE THROUGH TH E WHOLE ORD E R AND S TR O N G LY FEEL THAT THERE IS A STRONG CASE FOR THIS HONB!E BENCH TO RECONSIDER AND REVIEW THE MATTER AS VERY VITAL POINTS BOTH LEGALLY AND FA CTUALLY ARE NOT APPRECIATED , CONSIDERED AND UNDERSTOOD PROPERLY. ' 6 . SINCE THIS TRIBUNAL HAD CONSIDERED ALL THE RELEVANT FACTS AND C I RCUMSTANCES BEFORE CON F IRMING THE ADDITION OF ` 50 LAKHS AS CLEAR FROM ITS F I NDING REPRODUCED AT PARA 4 S UPR A, IT IS THAT ASSESSEE 8 M.P. NO. 273/MDS/11 I S S EEK I NG A REV I EW NOW. THIS TRIBUNAL IS NOT VESTED WITH ANY POWERS OF REVIEW. IT IS WELL SETTLED THAT THE POWER OF REVIEW IS NOT AN INHERENT POWER AND IT MUST BE CONFERRED BY LAW E ITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. DECISION OF HONBLE APEX COURT IN THE CASE OF PATEL NARSHI THAKERSHI VS . PRADYUMANSINGHJI ARJUNSINGHJI AIR 1970 SC 1273 IS A N AUTHORITY FOR THIS PROPOSITION. THE HONBLE APEX CO URT IN THE CASE OF KAPRA MAZDOOR EKTA UNION VS. BIRLA COTTON SP I NNING A N D WEAVING M I L L S LTD [2005] 1 3 SCC 777 HELD THAT WHERE A COU R T O R QU A S I JUD I CIA L AUTHO R ITY , HA VI NG JURISDICTION TO ADJUDICATE O N ME RI TS , PROCEEDS TO DO SO, ITS JUDGMENT OR ORDER CAN BE REVIEWED O N MERITS ONLY IF THE COURT OR THE QUAS I- JUDICIAL AUTHORITY IS VESTED WITH POWER OF REVIEW BY EXPRES S PROVISION OR BE NECESSARY IMPLICATION. 7. F R OM WHAT HAS BEEN REP R ODUC E D BY US AT PARA 4 SUPRA, WE CANNOT FIND ANY M I STAKE IN THE ORDER OF THE TRIBUNAL MUCH LESS WH I CH A MISTAKE APPARENT ON RECORD. MISTAKE TO BE APPA RENT ON R E C ORD SHOULD BE G L ARING AND TH A T WHI C H CAN BE ESTABLISHED WITHOUT ANY ELABORATE ARGUMENTS. THUS, WE FIND NO M ERIT IN THIS MP OF THE ASSESSEE. 5. ALL THE GRIEVANCES RAISED BY THE ASSESSEE IN THE NEW MISCELLANEOUS PETITION, WHICH HE STATES ARE MISTAKE S, CONCERN CONFIRMATION OF THE ADDITION OF ` 50 LAKHS. THIS TRIBUNAL IN ITS ORIGINAL ORDER DATED 9 TH MAY, 2008 HAD CONSIDERED ALL THE GROUNDS TAKEN BY THE ASSESSEE IN ITS APPEAL. THE GROUNDS RAISED BY THE ASSESSEE IN ITS ORIGINAL APPEAL ARE REPRODUCED HEREUNDER:- (I) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE COMMISSIONER OF INCOME TAX (APPEALS)-I HAVE MISDIREC TED THEMSELVES IN LAW IN NOT LOOKING INTO THE FACTS THA T THE SEARCH WAS TOTALLY ILLEGAL AND VOID AUTHORITIES BEL OW INITIO AS BEFORE ISSUING WARRANTS OF AUTHORISATION. (A) ANY OF THE THREE CONDITIONS MENTIONED UNDER SECTIO N 132(1) OF THE INCOME-TAX ACT, 1961 HAD NOT BEEN COMPLIED WITH; AND 9 M.P. NO. 273/MDS/11 (B) THERE EXISTED NO MATERIALS, WHATSOEVER, WHICH COULD LEAD TO FORMATION OF REASON TO BELIEVE THAT ANY ASS ETS OR INCOME WHICH HAS NOT BEEN OR WOULD NOT HAVE BEEN DISCLOSED BY THE APPELLANT. (II) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE CIT(APPEALS)-I HAVE FURTHER ERRED TO APPRECIATE THA T CONSEQUENTIAL WARRANTS OF AUTHORISATION WERE EXECUTE D ON VARIOUS BANKS IN RESPECT OF APPELLANTS BANK ACCOUN TS WITH THEM ON DATE 18, 19.02.2003 EVEN BEFORE EXECUTING WARRANT OF AUTHORIZATION IN THE FIRST INSTANT ON THE APPELL ANT HIMSELF ON DATE 20.02.2003. (III) THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING ` 50,00,000/- SEIZED FROM APPELLANT BY POLICE AS UNDISCLOSED INCOME WHICH THE HONBLE CIT(APPEALS)-I ALSO ERRED IN CONFIRMING THIS ADDITION EVEN THOUGH; (A) THIS SEIZED AMOUNT WAS PART OF CASH BALANCE SHOWN BY CASH BOOK ON 17/18.2.2003 AND WHICH THE CASH BOOK AND OTHER BOOKS OF ACCOUNTS WERE ALSO IMPOUNDED AND OTHER RECORDS SEIZED; (B) THE APPELLANT DISOWNED AND WITHDRAWN THE STATEMENT WHICH WAS EXTRACTED FROM HIM WHILE HE WAS IN POLICE CUSTODY WITH THEIR ACTIVE PARTICIPATION, INTERFEREN CE, INTIMIDATION, THREATS, ADVICE, SUGGESTION OF POLICE AUTHORITIES ETC; (C) THE SWORN STATEMENT WAS RECORDED UNDER SECTION 131 OF THE INCOME-TAX ACT, 1961, ON 17.2.2003 BUT WAS SHOWN FALSEFULLY AS RECORDED ON 18.2.2003 BY INCOME TAX OFFICIALS CONCERNED AND WHICH THE STATEMENT RECORDED AND ANY MATERIAL EVIDENCE FOUND THEREIN, I F ANY, BEFORE COMMENCEMENT OF ACTUAL SEARCH U/S 132 OF THE INCOME-TAX ACT, 1961 ON 18.2.2003 COULD NOT BE USED FOR IN MAKING BLOCK ASSESSMENT AS BLOCK ASSESSMENT IS MADE ONLY FOR SEARCH CONDUCTED AND EVIDENCE FOUND/COLLECTED/ SURFACED DURING THE COURS E OF SEARCH ON ONE HAND AND PROCEEDINGS U/S 131 AND 132 ARE DISTINCT AND SEPARATE TO EACH OTHER ON THE OTHER HAND. (D) THE CARRYING OF CASH GENERATED FROM SALE IN PALAKK AD TO COIMBATORE, CHENNAI, HYDERABAD WAS ACCEPTED AND 10 M.P. NO. 273/MDS/11 THEREFORE THIS CASH OF ` 50,00,000/- SEIZED BY POLICE AUTHORITIES LIKE OTHER CASH WAS ALSO TRANSPORTED AN D BROUGHT TO CHENNAI; (E) THE WHOLE BUSINESS WHICH APPELLANT WAS MADE TO DISOWN WAS PROVED BELONGING TO APPELLANT AND THEREFORE ENTIRE STATEMENT SO REVOKED DULY MATCHED ALREADY EXISTED EVIDENCES; (F) THERE COULD HAVE BEEN NO OCCASION FOR THE APPELLAN T TO GIVE ANY SWORN STATEMENT U/S 132 OF THE INCOME- TAX ACT, 1961 ON 18.2.2003 AS NO WARRANT OF AUTHORIZATION WAS SERVED UPON THE APPELLANT ON 18.2.2003 ON ONE HAND AND BASED ON APPELLANTS SWORN STATEMENT U/S 131 OF THE INCOME-TAX ACT, 1961 ON 17.2.2003 ONLY, THE FIRST WARRANT OF AUTHORIZATION WAS SHOWN EXECUTED ON STANDARD CHARTERED BANK, COIMBATORE ON 18.2.2003 AT 6.00 P.M. AFTER CLOSER OF THE BANK FOR THE DAY ON THE OTHER HAND; (G) THE APPELLANT HAD RETRACTED, WITHDRAWN AND DISOWNE D THE SWORN STATEMENT WHICH BEING COERCED, NOT HONEST AND ALIENATE TO REAL FACTS WERE NOT CORROBORATED/SUPPORTED BOTH BY ANY AVAILABLE EVIDENCE AND/OR ALSO BY SWORN STATEMENTS OF MR. ABDULLAH RECORDED DURING THE COURSE OF INCOME TAX PROCEEDINGS IN THE CASE OF APPELLANT ON ONE HAND AN D FALSITIES COMMITTED THEREIN BY THE VERY INCOME TAX AUTHORITIES WHO RECORDED THE APPELLANTS SWORN STATEMENT ON 17/02/2003 AND SHOWN AS IF RECORDED ON 18.2.2003 ON THE OTHER HAND, AS HELD BY HONBLE ITAT, CHENNAI BENCH IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS SURESH KUMAR BAREMCHA IN I.T.A. NO. 863/MDS/97 AND C.O. NO. 41/MDS/96. (IV) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE CIT(APPEALS)-I HAVE FURTHER ERRED TO APPRECIATE THE FACT THAT THE APPELLANTS SWORN STATEMENTS RECORDED ON 17.2.2003 WERE NOT TRUE, CORRECT AND ACCEPTABLE AS; (A) THESE STATEMENTS WERE RECORDED IN THE OFFICE OF TH E COMMISSIONER OF POLICE, CENTRAL CRIME BRANCH, EGMOR E CHENNAI-8 WHEN THE APPELLANT WAS NOT IN A SOUND AND 11 M.P. NO. 273/MDS/11 DISPOSABLE STATE OF MIND DUE TO SEVER PHYSICAL TORT URE INFLICTED UPON THE APPELLANT BY THE POLICE; (B) SEVERAL POLICE OFFICIALS WERE PRESENT AND FOR ALMO ST EVERY QUESTION PUT UP TO THE APPELLANT AND ANSWERED BY HIM WERE INTERFERED BY THE POLICE WITH THEIR ADVICE, INTIMIDATION, WARNING OF FURTHER PHYSICAL TORTURE ETC; (C) ANSWERS WERE NOT RECORDED AS STATED BY THE APPELLA NT BUT WERE TWISTED, EXTENDED, AND FABRICATED TO SUIT THEIR PURPOSES OF PROCEEDING AGAINST THE APPELLANT ONLY IN THE MANNER TO SUIT THEIR ULTERIOR NOTICE OF MAKING A CASE OUT OF NO CASE AT ALL; (D) AFTER THE APPELLANT WAS ADMINISTERED THE OATH, APPELLANT HAD SIGNED RESPECTIVE PAGE SHEET NO./1 AN D PUT THE DATE 17.2.2003 WHICH THE APPELLANT WAS FORCED TO ALTER IT AS 18.02.2003 WHICH IS VISIBLE EVEN TO THE NAKED EYES; AND (E) THE INCOME TAX OFFICIAL HAD RECORDED THE APPELLANT S STATEMENTS JOINTLY WITH THE POLICE OFFICERS WITH TH EIR ACTIVE PARTICIPATION AND HELP, THE ACT NOT PROVIDED FOR, PERMITTED AND EMPOWERED U/S 131 OF THE INCOME- TAX ACT, 1961. (V) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE CIT(APPEALS)-I FURTHER FAILED TO LOOK INTO THE APPE LLANTS SUBMISSIONS THAT THE APPELLANT HAD NO ACCESS TO HIS BOOKS OF ACCOUNTS WHILE HE WAS DEPOSING AND HIS PLEA TO VERI FY AND CHECK THE BOOKS OF ACCOUNTS OF HIS BUSINESS IN THE NAME OF SOUTH INDIA TRADERS WAS TURNED DOWN. (VI) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE CIT(APPEALS)-I HAVE FURTHER FAILED TO LOOK INTO THE FACT THAT THE DDI, UNIT III(1) CHENNAI WHO HAS SHOWN THE STATEMENT OF APPELLANT RECORDED ON 18.02.2003 FOR MALAFIDE AND MALICIOUS INTENTION IN MIND ALSO DIDNT PUT THE TIMINGS OF STATEMENTS RECORDED WHICH, IF RECORDED, IT COULD HA VE CLASHED WITH THE TIMINGS OF APPELLANT BEING PRODUCE D BY THE POLICE BEFORE THE HONBLE COURT ON THE NEXT DAY 18.02.2003. (VII) BOTH THE LEARNED ASSESSING OFFICER AND HONBLE CIT(APPEALS)-I HAVE FURTHER FAILED TO APPRECIATE TH AT THE CLAIM OF THE DDI, UNIT III(1), CHENNAI IN HAVING SH OWN THE 12 M.P. NO. 273/MDS/11 APPELLANTS STATEMENT RECORDED ON 18.02.2003 GOT BAILED WITH THE (A) ADMITTANCE OF DDI, UNIT II(2) CHENNAI IN HIS AFFIDAVIT FILED IN M.P. NO. 1205 OF 2003 IN CRIME NO.126 OF 2003 BEFORE THE CHIEF METROPOLITAN MAGISTRATE COURT, CHENNAI-8 WHEREIN THE APPELLANTS STATEMENTS ARE ADMITTED TO HAVE BEEN RECORDED ON THE SAME DAY 17.02.2003; AND (B) FACTUAL DATE OF 17.02.2003 ONLY MENTIONED IN THE APPRAISAL REPORT, AS APPELLANT LEARNT, WHEN THE INC OME TAX DEPARTMENT ON GETTING THE INFORMATION FROM THE POLICE ARRIVED TO POLICE OFFICE AND RECORDED THE APPELLANTS STATEMENTS ON THE SAME DAY. (VIII) FURTHER THE LEARNED ASSESSING OFFICER WENT WRONG IN HOLDING THAT THE EVENTS WHICH OCCURRED WERE ONLY BETWEEN AP PELLANT AND POLICE DEPARTMENT WITHOUT APPRECIATING THAT THE SE EVENTS ON 17.2.2003 WERE IN FACT BETWEEN APPELLANT, POLIC E DEPARTMENT AND INCOME TAX DEPARTMENT ALSO AS INCOME TAX OFFICIALS ARRIVED TO THE POLICE OFFICE ON INFORM ATION FROM POLICE AND JOINTLY RECORDED THE APPELLANTS ST ATEMENTS WHICH HONBLE CIT(APPEALS)-I ALSO FAILED TO LOOK IN TO. (IX) THE LEARNED ASSESSING OFFICER HAS FURTHER GONE WRON G IN HOLDING THAT THE POLICE FOUND ` 50 LAKHS IN CASH ON THE APPELLANTS PERSON AROUND 6.00 P.M. OF 18.2.2003 EVEN THOUGH THE APPELLANT WAS CAUGHT WITH ` 50,00,000/- AND TAKEN IN POLICE CUSTODY AROUND 17.30 HOURS ON 17.02.2003 WHICH THE FACT PROSECUTION HAS ALSO ADMITTED IN THE PROCEEDINGS IN CRIME NO.126 OF 2003. THE HONBLE CIT(APPEALS)-I ALSO CONTRADICTED HIMSELF IN PARA 2,6, 22 AND 24 HIS ORDER OF APPEAL AND FAILED TO DECIDE THE CORRE CT. (X) THE HONBLE CIT(APPEALS)-I HAS FAILED TO CALL AND L OOK INTO VARIOUS DETAILS AND OTHER RECORDS WHICH THE ASSESSI NG OFFICER HAS RELIED UPON IN MAKING THE BLOCK ASSESSM ENT AND WHICH THE RECORDS THE APPELLANT HAD REQUESTED THE H ONBLE CIT(APPEALS)-I TO CALL FROM ASSESSING OFFICER AND I NCOME TAX AUTHORITIES CONCERNED VIDE HIS LETTER DATED 24.5.2005 FILED ON 27.5.2005. 13 M.P. NO. 273/MDS/11 6. WHAT IS NOW ARGUED BY THE ASSESSEE AS MISTAKES A RE ACTUALLY FRESH GROUNDS WHICH WERE NOT APPEARING IN THE ORIGI NAL GROUNDS. THOUGH LEARNED A.R. STATED THAT M.P. NO.174/MDS/2008 WHICH WAS DISPOSED OF BY THIS TRIBUNAL WAS ONLY A REVIEW PETITION, WE ARE NOT IMPRESSED BY THIS, SINCE ALL THE PLEADINGS WERE ON THE ADDITION OF ` 50 LAKHS AND NOTHING ELSE. EFFECTIVELY, WHAT HAS NOW BEEN FILED BY THE ASSESSEE IS ONLY AN MP ON AN MP. BY VIRTUE OF HON'BLE JURISDIC TIONAL HIGH COURT IN THE CASE OF DR. S. PANEERSELVAN V. ACIT (319 ITR 13 5), SECOND MISCELLANEOUS PETITION CANNOT BE ENTERTAINED. FURT HER, A READING OF THE MP CLEARLY SHOWS THAT ASSESSEE IS SEEKING A REVIEW OF THE ORDER OF THIS TRIBUNAL FOR WHICH IT IS HAVING NO POWER. WE ARE T HUS OF THE OPINION THAT THERE IS NO MERIT IN THIS MISCELLANEOUS PETITION FI LED BY THE ASSESSEE. 7. IN THE RESULT, MISCELLANEOUS PETITION FILED BY T HE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON FRIDAY, THE 27 TH SEPTEMBER, 2013, AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 27 TH SEPTEMBER, 2013. KRI. COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/D.R./GUAR D FILE