THE ACIT, (CENTRAL)-II, Bhopal V. M/s. Soumya Homes Pvt.Ltd., Bhopal

MA 52/Ind/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3855 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-01-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 10-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N D PATWA A RS
• Keywords: Principle of natural justice; Opportunity of cross examination; Third party statement
• Section: 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE MANISH BORAD, ACCOUNTANT AND HON'BLE MADHUMITA ROY, JUDICIAL MEMBER PAN NO: AAFCS35030C M.A. NO.52/IND/2019 ASSESSMENT YEAR 2013-14 (ARISING OUT OF ITA NO.124 TO 129/IND/2017) ACIT (CENTRAL)II, M/S SOUMYA HOMES PVT LTD,. BHOPAL V/S BHOPAL (APPELLANT) (RESPONDENT) REVENUE BY SHRI HARSHIT BARI, SR.DR ASSESSEE BY S/ SHRI ASHISH GOYAL & N.D. PATWA, ARS DATE OF HEARING 09.04.2021 DATE OF PRONOUNCEMENT 25 .0 5 .2021 PER MANISH BORAD,A.M O R D E R THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE A CT AT THE INSTANCE OF REVENUE IS DIRECTED AGAINST THE ORDER O F THIS TRIBUNAL DATED 24.1.2019 IT(SS)A NO.124 TO 129/IND/2017 AND OTHERS. 2. REVENUE HAS SUBMITTED THE FOLLOWING IN THIS MISC ELLANEOUS APPLICATION:- M/S SOUMYA HOMES PVT. LTD M.A.NO.52/IND/2019 2 1. DEPARTMENTAL APPEAL IN THE CASE OF M/S SOURNYA HOMES PVT. LTD ., PAN AAFCS3503C WAS FILED WITH THE HON'BLE I TAT.INDORE FOR A.YRS. 2007-08 TO 2013-14 AGAINST THE CIT(A)'S ORDER ON 27/03/2017. 2. THE HON.BLE ITAT LNDORE VIDE COMBINED ORDER ITA NO. (SS) 124 TO 129IIND/2017 & ITA 3171LND/2017 AND ITA NO. (SS) 141 TO 146/LND/20 17 & (SS)342/1ND/2017 DATED 24.01.2019 HAS DECIDED THE D EPARTMENTAL APPEAL FOR A.YRS. 2007-8 TO 2013-14 IN THE CASE OF THE ABOVE M ENTIONED ASSESSEE. 3. THE HONBLE (TAT. LNDORE HAS DELETED THE ADDITION ON ACCOUNT OF UNACCOUNTED TRANSACTION WITH M / S FORTUNE GROUP BY OBSERVING THAT IT IS NOT ASCERTA INABLE AS TO WHETHER ANY ADDITION, ON THE BASIS OF DAIRY W AS MADE IN THE HANDS OF M / S FORTUNE BUILDERS. 4. FURTHER. M / S FORTUNE BUILDER ILL ITS APPLICATION TO HON.,BLE SETTLEMENT COMMISSION HAS TAKEN THE PLEA THAT THE ADDITIONS ON THE BASIS OF ALLEGED DAIRY HAVE BEEN MADE IN THE CASE OF M / S SOUMYA HOMES P VT . LTD ., BHOPAL AND THEREFORE , NO ADDITIONAL INCOME WAS OFFERED BEFORE THE SETTLE MENT COMMISSION. THIS CONTENTION OF M /S FORTUNE BUILDER HAS BEEN ACCEPTED BY THE HON'BLE SETTLEMENT COMMISSION IN ITS FINAL ORDER. 5. THUS, FROM THIS IT IS CLEAN THAT 110 ADDITION OF UNACCOUNTED TRANSACTION BASED ON ALLEGED DAIRY 'BS-L' IS TAKEN INTO COGNIZA NCE IN BOTH THE ASSESSEE'S AND IS GET TO BE DECIDED. 6. HENCE, THIS MISCELLANEOUS APPLICATION IS BEING FILE D BEFORE THE HON'BLE ITAT WITH REQUEST FOR RECALLING AND RESTORING THE SECOND GROUND OF APPEAL AS MENTIONED SUPRA. 3. LD. DEPARTMENTAL REPRESENTATIVE FURTHER REFERRIN G TO THE PAPER BOOK DATED 6.4.2021 REQUESTED THIS TRIBUNAL TO RECA LL ITS ORDER FOR ADJUDICATING THE ISSUE OF ADDITION MADE IN THE HAND S OF THE M/S SOUMYA HOMES PVT. LTD M.A.NO.52/IND/2019 3 RESPONDENT ASSESSEE ON ACCOUNT OF UNACCOUNTED TRANS ACTIONS WITH M/S FORTUNE GROUP SINCE M/S FOTUNE BUILDERS IN ITS APPLICATION TO TO HON'BLE INCOME TAX SETTLEMENT COMMISSION HAS PLE ADED THAT NO ADDITION SHOULD BE MADE IN THE HANDS OF M/S FORTUNE BUILDERS AS THE ADDITION ON THE BASIS OF ALLEGED DIARY HAVE BEE N MADE IN THE CASE OF M/S SOUMYA HOMES PVT. LTD. 4. PER CONTRA LD. COUNSEL FOR THE ASSESSEE RELIED ON THE FINDING OF THIS TRIBUNAL AND ALSO SUBMITTED THAT NO INCRIMINAT ING MATERIAL PERTAINING TO M/S FORTUNE GROUP WAS FOUND DURING TH E COURSE OF SEARCH AT ASSESSEES PREMISES AND ADDITION MADE ON THE BASIS OF SEIZED DIARY WAS BASED ON THIRD PARTY STATEMENT FOR WHICH NO OPPORTUNITY FOR CROSS EXAMINATION WAS GRANTED AND T HEREFORE HON'BLE TRIBUNAL HAD RIGHTLY DELETED THE ADDITION A ND THUS THERE IS NO MISTAKE APPARENT ON RECORD. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE CON TENTS OF MISCELLANEOUS APPLICATION FILED AT THE INSTANCE OF REVENUE STATING THAT THERE IS AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL AS THE ISSUE OF THE ADDITION MADE ON ACCOUNT OF UNACCOUNTE D TRANSACTIONS WITH M/S FORTUNE GROUP WAS ADJUDICATED WITHOUT CONS IDERING THE M/S SOUMYA HOMES PVT. LTD M.A.NO.52/IND/2019 4 FACT THAT M/S FORTUNE BUILDERS IN ITS APPLICATION T O INCOME TAX SETTLEMENT COMMISSION HAS TAKEN A PLEA THAT ADDITIO N ON THE BASIS OF ALLEGED DIARY BS-1 HAVE BEEN MADE IN THE CASE OF M/S SOUMYA HOMES PVT. LTD AND THEREFORE NO ADDITION OF INCOME WAS OFFERED BEFORE INCOME TAX SETTLEMENT COMMISSION. 6. WE HOWEVER ON PERUSAL OF THE RECORDS PLACED BEFO RE US FIND THAT DURING THE COURSE OF HEARING OF APPEAL SUFFICI ENT OPPORTUNITY WAS GRANTED TO THE REVENUE TO FILE ITS DOCUMENTS. HOWEVER REVENUE FAILED TO FILE ANY SUCH DETAIL BEFORE THIS TRIBUNAL OF THE APPLICATION OF M/S FORTUNE BUILDERS MADE BEFORE THE INCOME TAX SETTLEMENT COMMISSION. THIS TRIBUNAL AFTER CONSIDERING THE FAC TS ON RECORD CAME TO THE FOLLOWING CONCLUSION STATED IN PARA 56 OF THE IMPUGNED ORDER WHICH READS AS FOLLOWS:- 56. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF H ONBLE APEX COURT, HIGH COURT OF RAJASTHAN AND CO-ORDINATE BENCH AND V ARIOUS DECISIONS REFERRED AND EXAMINING THE FACTS IN THE INSTANT APP EAL, WE FIND THAT THE ADDITIONS MADE FOR UNACCOUNTED TRANSACTIONS WITH M/ S. FORTUNE GROUP ARE UNCALLED FOR AS THEY ARE MERELY BASED ON DIARY BS-1 PREPARED BY A THIRD PERSON WHO WAS WORKING WITH M/S. FORTUNE GROUP AND THE ALLEGED DIARY WAS ALSO FOUND DURING THE COURSE OF SURVEY AT THE P REMISES OF EMPLOYEE OF FORTUNE GROUP. THE TRANSACTIONS MENTIONED IN ONE O F THE PAGE OF THE DIARY SHOWS THE NAME OF THE ASSESSEE BUT THOSE TRANSACTIO NS HAVE BEEN DENIED M/S SOUMYA HOMES PVT. LTD M.A.NO.52/IND/2019 5 BY THE ASSESSEE TO HAVE TAKEN PLACE WITH M/S. FORTU NE GROUP. FURTHER THE OTHER TRANSACTIONS OF CASH/CHEQUE WITH PATIDAR FAMI LY AND OTHER DOCUMENTS FOR PURCHASE OF LAND HAVE NO BEARING WITH THE ASSESSEE AS THE NAME OF THE ASSESSEE IS NOT MENTIONED THEREIN. NO INCRIMINATING MATERIAL RELATING TO FORTUNE GROUP WAS FOUND DURING THE COUR SE OF SEARCH AT THE ASSESSEES PREMISES. BOTH THE LOWER AUTHORITIES WER E UNABLE TO BRING ANY MATERIAL ON RECORD WHICH COULD PROVE THAT THE ALLEG ED TRANSACTIONS APPEARING IN THE DIARY FOUND AT THE BUSINESS PREMIS ES OF FORTUNE GROUP HAS ANY CONNECTION WITH THE BUSINESS AS WELL AS BOO KS OF ACCOUNTS REGULARLY MAINTAINED BY THE ASSESSEE. ABOVE ALL AS SESSEE HAVE NOT BEEN GIVEN ANY OPPORTUNITY TO CROSS EXAMINATION EVEN AFT ER MAKING REPEATED REQUEST. THUS, LD. A.O HAS NOT GRANTED THE OPPORTU NITY OF CROSS EXAMINATION TO THE ASSESSEE WITH THE AUTHOR OF THE ALLEGED DIARY AS WELL AS CONCERNED PERSON OF M/S. FORTUNE GROUP AND THUS THE ACTION OF THE LD. A.O OF NOT PROVIDING CROSS EXAMINATION TURNS OUT TO BE A CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND THEREFORE THE ADDI TIONS MADE BY THE LD. A.O FOR THE UNACCOUNTED TRANSACTIONS WITH M/S. FORTUNE GROUP HAS NO FOUNDATION TO STAND FOR AND SAME NEEDS TO BE DELETE D. HOWEVER IT IS CLARIFIED THAT OUR THIS DECISION BASED ON THE FACTS OF THE PRESENT CASE CANNOT BE CONSTRUED AS ESTOPPLE TO THE LD.A.O TO RE OPEN THE CASE IF HE FINDS LIVE LINK OF ASSESSEE WITH THE TRANSACTIONS M ENTIONED AT PAGE-1 OF THE SEIZED DIARY BS-1. 7. SINCE THE TRIBUNAL HAS DEALT WITH ALL THE RELEVA NT FACTS AND SETTLED JUDICIAL PRECEDENTS TO ADJUDICATE THE ISSUE IN QUESTION BEFORE US, WE FIND NO MISTAKE APPARENT ON RECORD IN THE IM PUGNED ORDER AND THUS NO RECTIFICATION IS CALLED FOR. WE THEREF ORE, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE FIND NO MERIT I N THE M/S SOUMYA HOMES PVT. LTD M.A.NO.52/IND/2019 6 MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND THE SAME DESERVES TO BE DISMISSED. 8. IN THE RESULT MISCELLANEOUS APPLICATION NO.52/IN D/2019 FILED BY THE REVENUE IS DISMISSED. THE ORDER PRONOUNCED AS PER RULE 34 OF ITAT RULES, 1963 ON 25.05.2021. SD/- SD/- ( MADHUMITA ROY) (MANISH BOR AD) JUDICIAL MEMBER ACCOUNTAN T MEMBER / DATED : 25 TH MAY, 2021 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE