Dipakkumar Nanchand Shah, Ahmedabad V. The Dy.CIT, Central Circle-1(1), Ahmedabad

MA 29/AHD/2023

AI Insights

The case involves two Miscellaneous Applications filed by Dipak Kumar Nanchand Shah against the order of the Income Tax Appellate Tribunal, which confirmed the additions made by the Assessing Officer (AO) treating certain investments as unexplained. The applications were based on the grounds that the Tribunal had overlooked certain facts and evidence presented during the original hearings. The main contention was whether the assessee acted merely as a middleman in real estate transactions, earning brokerage, which was not substantiated by any corroborative material according to the Tribunal's earlier decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125025 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-06-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 23-02-2023
• Other Referred Cases: Shri Kamal Goyal vs DCIT, Gaurav Kumar Sharma vs. ACIT, Biren V. Savla vs. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 139; 153A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER M . A. N os . 2 8 &2 9/ A h d/ 2 0 23 ( I n I T( SS ) A N os . 3 95 &3 96 /A hd /2 01 9) ( As s e s s me nt Y ea rs : 20 14 - 1 5 & 20 1 5 - 1 6) Di p ak ku m a r N a n c h a nd S ha h F- 40 1 , A r ih an t Na g a r, C a mp R o ad , S ha hi b a ug , A h me da ba d V s . The D .C .I .T , C e n tr a l C ir cle - 1 (1 ) , A h me da ba d [ P AN N o. A K RP S3 5 5 9 D ] (Appellant) .. (Respondent) Appellant by : Ms. Astha Maniar, A.R. Respondent by : Dr. Mukesh Jain, Sr. D.R. Da t e of H ea r i ng 09.06.2023 D a t e of P r o no u n ce me nt 16.06.2023 O R D E R PER MS. SUCHITRA KAMBLE, JM: These two Miscellaneous Applications are filed by the assessee in respect of the order dated 23.12.2022 passed by the Tribunal. 2. The Ld. A.R. submitted that the Miscellaneous Applications stated herein as under:- “2. The Appellant submits that the captioned appeal contained the only ground of appeal which reads as under:- “IT(SS)A No.395/Ahd/2019 for A.Y. 2014-15 1. The Ld. CIT(A)-11 has erred in facts and on law in confirming action of the AO in making addition of Rs 67,50,000/- on substantive basis treating the same as unexplained investment of the appellant without there being any corroborative seized material and further erred in rejecting the claim of the appellant interalia to the effect that he acted as a middleman only.” 3. The AR of the Appellant invited attention of the Hon'ble Bench that the AO himself inter-alia assessed income from brokerage as admitted u/s 132(4) in various M.A Nos.28&29/Ahd/2023 (in ITA Nos.395&396/Ahd/2019) Dipakkumar Nanchand Shah vs. DCIT Asst.Years– 2014-15&2015-16 - 2 - years. The AR also invited attention of the Hon'ble bench that in respect of the transactions found recorded in 8 tabs of the excel file namely Dailyexp.xls, the Appellant had provided details of buyers/sellers to the extent available with him which is reproduced by the AO at page 29 of the assessment order for AY 2015-16. Further, complete contact details were very much there in the seized mobile data but the AO did not make any independent enquiries / verification to ascertain the claim of the Appellant that his role was limited to a middleman only and except one, no other property was ever registered in his name 4. The Hon'ble Bench has dealt with the only issue in the following words contained in Para 9 which reads as under:- “9. We have heard both the parties and perused all the relevant material available on record it is pertinent to note that the affidavit filed by the Manager of the assessee though was rejected has been taken into account by the CIT(A) in consonance that the excel sheet found and seized from the office premises of the assessee and thus the data shown in the said computer belongs to the assessed. The Assessee at no point of time has proved that the excel sheet was not of assessee's and the staff is also not aware of the said excel sheet The theory of assessee that he is a middleman acting in real estate in certain transactions and earns brokerage also is not been established by the assessee through any documents. It is only oral submissions of the assessee before the CIT(A). The CIT(A) has categorically mentioned in para 7.6 that only real income has to be taxed and not the gross income of the assessee and, therefore, addition to the extent of Rs. 74,50,000 was taken into consideration on the basis of promissory note. The CIT(A) further observed that all the payments as per the promissory notes are made after the date of receipts as reflected in P3 tab, therefore, accepted the assessee's contention. The CIT(A) has given a table on page no.41. calculating the cash to the extent of Rs 2,05,50,000/- which was received in cash Thus, the addition made by the CIT(A) is justifiable. There is no need to interfere with the same." (....Emphasis supplied) 5. The appellant humbly submits that the attention of the Hon'ble Bench escaped noticing the following material/ facts existing on the record of the revenue and to which the attention of the Hon'ble Bench was also invited during the course of hearing of the above appeals. a) The Appellant has disclosed commission income of Rs 6,84,120/- in AY 2014-15 and Rs 14,12,883/- in AY 2015-16 in his regular return of income filed u/s 139 of the Act as well as u/s 153A of the Act. b) Out of the total disclosure made u/s 132(4) of the Act on 03.01.2017, a sum of Rs 1,05,08,075/- was declared as Land, brokerage and Profit in FY's 2010-11, 2011-12 and 2016-17 as per reply to Question No 7. M.A Nos.28&29/Ahd/2023 (in ITA Nos.395&396/Ahd/2019) Dipakkumar Nanchand Shah vs. DCIT Asst.Years– 2014-15&2015-16 - 3 - c) no unaccounted investment worth name has been unearthed during the entire search action which can be linked with the alleged unaccounted transactions reflected in the said excel sheet namely Daily exp.xls d) the seized excel sheet was not maintained by the Appellant and a sell explanatory copy of affidavit of the manager, Shri Kartik Patel was already placed on record. e) since the alleged excel sheet are not books of account and without any corroborative material in support of such entries, no addition can be made on the basis of the same 6. Further, the decisions (Shri Kamal Goyal vs DCIT 2021 (8) TMI 364, b) Gaurav Kumar Sharma vs. ACIT (2014) 49 taxmann.com 189 and c) Biren V. Savla vs. ACIT (2006) 155 taxman 270) relied upon by the AR during the course of the hearing has been considered in some different contest by the Hon'ble Bench at Para 6 of the order. 7. The appellant submits that omission to take note of the above facts on the record of the revenue and the resultant decision fall within the ambit of section 254 and therefore the present petition is filed seeking justice from the Bench in true spirit of law. 8. This Miscellaneous Application is being filed in the month of February 2023 and the same is thus within the statutory time limit of 6months from the passing of the original order of the Hon’ble Bench on 23 rd December 2022.” 4. The Ld. A.R. further submitted that the evidences were properly put up and the finding given by the Tribunal that there was no evidences to show that the Commission / Brokerage was paid is not correct finding. The Ld. A.R. relied upon the Paper Book more specifically Page No. 46, 60 & 61 wherein the disclosure was made by the assessee. 5. The Ld. D.R. submits that the assessee is seeking review of the order which is not permissible. 6. We have heard both the parties and perused the relevant material available on record. It is pertinent to note that the pages referred by the Ld. M.A Nos.28&29/Ahd/2023 (in ITA Nos.395&396/Ahd/2019) Dipakkumar Nanchand Shah vs. DCIT Asst.Years– 2014-15&2015-16 - 4 - A.R. does not state that the assessee is a middle man acting in real estate in certain transactions and earns brokerage. These documents are mere calculations which are not giving the appropriate evidences. Thus, the finding given by the Tribunal vide order dated 23.12.2022 is justifiable and there is no need to interfere with the same. The assessee at this point is seeking review which is not permissible. Hence, both the Miscellaneous Applications filed by the assessee are dismissed. 7. In result, both the Miscellaneous Applications are filed by the assessee are dismissed. This Order pronounced in Open Court on 16/06/2023 Sd/- Sd/- (WASEEM AHMED) ACCOUNTANT MEMBER (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad; Dated 16/06/2023 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 12.06.2023 2. Date on which the typed draft is placed before the Dictating Member 12.06.2023 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S .06.2023 5. Date on which the fair order is placed before the Dictating Member for pronouncement .06.2023 6. Date on which the fair order comes back to the Sr.P.S./P.S 16.06.2023 7. Date on which the file goes to the Bench Clerk 16.06.2023 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................