AJAY C.MEHTA, V. DCIT CEN 44,

MA 54/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3638 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2015
• Court: TRIBUNAL
• Department Lawyers: VIVEK ANAND PERAMPURNA
• Assessee Lawyers: H P MAHAJANI
• Keywords: Unexplained expenditure; Period of limitation; Time period of passing order
• Section: 153A; 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI BEFORE SHRI JOGINDER SINGH , JM & SHRI R.C.SHARMA , A M MISCELLANEOUS APPLICATION NO S . 50 & 51 / MUM/20 1 5 (ARISING OUT OF ITA NO . 3778 &3767 /MUM/201 3 ) ( / ASSESSMENT YEAR S : 200 9 - 20 10 & 201 0 - 201 1 ) MR. CHIMANLAL K. MEHTA, 93 - 94, KOREGAON PARK, PUNE - 411001 VS. DCIT, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AA FPM 0905 P AND MISCELLANEOUS APPLICATION NO. 52&54 /MUM/2 015 (ARISING OUT OF ITA NO S . 3764 &3779 /MUM/2013 ) ( / ASSESSMENT YEAR :2009 - 2010 & 2010 - 2011 ) MR. AJAY C . MEHTA, 93 - 94, KOREGAON PARK, PUNE - 411001 VS. DCIT, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AAFPM 0905 P AND MISCELLANEOUS APPLICATION NO.53/MUM/2015 (ARISING OUT OF ITA NOS.3766/MUM/2013) ( / ASSESSMENT YEAR :20 10 - 2011 ) MR. SAILESH C MEHTA, 93 SUM, SOUTHMAN ROAD, KOREGAON PARK, PUNE - 411001 VS. DCIT, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AAFPM 09 05 P /ASSESSEE BY : SHRI H.P.MAHAJANI /REVENUE BY : SHRI VIVEK ANAND PERAMPURNA / DATE OF HEARING : 21/08/2015 / DATE OF PRONOUNCEMENT : 05/11 / 2015 / O R D E R PER R.C.SHARMA ( A .M.) : TH ESE MISCELLANEOUS APPLICATION S ARE FILED BY THREE DIFFERENT ASSESSEE S ARISING OUT OF COMMON ORDER D TD 26 - 12 - 2014 , PASSED BY THE TRIBUNAL IN ITA NO S . 3 778, 3767, 3764, 3779 &3766 /M/2013, RESPECTIVELY. M A NO S . 51 - 5 3 &54/ 20 15 2 2 . THROUGH TH ESE APPLI CATION S THE LD. AR SUBMITTED THAT THOUGH THE COMMON ORDER HAS BEEN PASSED BY THE TRIBUNAL, HOWEVER, IN ALL THE APPEALS DIFFERENT MISTAKES HAVE BEEN OCCURRED, THAT MAY BE CORRECTED. 3. WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATIONS AND FOUND THAT SOM E TYPING MISTAKES HAVE BEEN OCCURRED. FOR THE SAKE OF CONVENIENCE, WE SHALL CARRY OUT THOSE MISTAKES BY DECIDING ONE BY ONE. 4. LD. AR SUBMITTED THAT IN THE CAUSE TITLE OF THE APPEAL S , THE NAME OF THE ASSESSEE HAS BEEN MENTIONED IN PLACE OF NAME OF REVENUE /RESPONDENT. HE ALSO SUBMITTED THAT IN THE CAUSE TITLE OF CROSS OBJECTION NO.148/MUM/2014, THE WORD APPELLANT HAS NOT BEEN MENTIONED AND IN THE COLOUM WHERE NAME S OF REPRESENTATIVES OF ASSESSEE HAVE BEEN MENTIONED, THE NAME OF MR. S.R.WADHWA, WHO HAD LED THE ARGUMENTS ON BEHALF OF THE ASSESSEE HAS NOT BEEN WRITTEN. LD. AR FURTHER SUBMITTED IN FOURTH LINE OF PARA 2 OF THE ORDER, THE ASSESSMENT YEAR HAS WRONGLY BEEN MENTIONED AS 2009 - 2010, WHER EAS THE CORRECT AY IS 2010 - 2011 AND THE DATE OF ORDER IS WRONGLY MENTIONED AS 31 - 01 - 2012, WHEREAS THE CORRECT DATE IS 11 - 02 - 2013. 5. WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATIONS AND CAREFULLY CONSIDERED THE CONTENTS THEREIN. WE FOUND THAT THE MISTAKES POINTED OUT BY THE LD. AR ARE TYPOGRAPHICAL ERROR , T HEREFORE, WE CORRECT THE SAME IN THE FOLLOWING MANNER : - I) IN THE CAUSE TITLE OF ITA NO.3767/MUM/2013, IT HAS BEEN TYPED THAT APPELLANT - ASSESSEE, WHEREAS THE APPELLANT IS DEPARTMENT AND REVENUE - RESPONDENT, WHEREAS THE RESPONDENT IS ASSESSEE . THEREFORE, THE SA ME IS HEREBY CORRECTED AND BE READ AS APPELLANT - REVENUE AND RESPONDENT - ASSESSEE M A NO S . 51 - 5 3 &54/ 20 15 3 II) SECONDLY, THE NAME OF MR. S.R.WADHWA, LD. AR HAS MISTAKENLY NOT TYPED, THEREFORE, THE SAME IS ADDED AND READS AS UNDER : S/SHRI S.R.WADHWA, SHRI H.P.MAHAJANI, S.V.JOS HI, DEEPAK DESAI, DIGANT MEHTA. III) THIRDLY, IN FOURTH LINE OF PAGE 2 OF THE ORDER, THE ASSESSMENT YEAR IS HEREBY CORRECTED AS 2010 - 2011 IN PLACE OF A.Y.2009 - 10 AND IN THE FIFTH LINE THE DATE OF ORDER IS HEREBY CORRECTED AND THE SAME BE READ AS 11 - 02 - 20 13 INSTEAD OF 31.01.2012. 6. LD. AR ALSO POINTED OUT THAT IN PARA 4 AT PAGE 4, IN CASE OF SCM & GROUP, THE AMOUNT OF DFPCL SHARES IS WRONGLY MENTIONED AS 2153 INSTEAD OF 2153 AND IN THE SAME TABLE FOLLOWING THREE ITEMS HAVE BEEN MISSED OUT : - A) DFPCL - PP SHARES 430 B) OTHER SHARES (SMART) 103 C) CURRENT ASSETS OTHERS - 238 HE ALSO SUBMITTED THAT IN CASE OF CKM & GROUP, THE CURRENT LIABILITY FIGURE IS WRONGLY MENTIONED AS 308 INSTEAD OF 2924 AND IN THE SAME TABLE 3843 HAS WRONGLY BEEN MENTIONED . IT WAS ALS O SUBM ITTED BY LD. AR THAT IN PARA 10, THE WORD LOOSE ASSETS HAS WRONGLY BEEN MENTIONED, WHEREAS THE CORRECT WORD IS LIQUID ASSETS. 7. WE HAVE CAREFULLY GONE THROUGH THE AFORESAID PARAGRAPHS AS POINTED OUT BY THE LD. AR AND FOUND THAT THERE ARE TYPOGRA PHICAL ERRORS. THEREFORE, THE SAME BE CORRECTED IN THE FOLLOWING MANNER : - I) WE FOUND THAT THERE IS TYPOGRAPHICAL ERROR IN THE TABLE IN CASE OF SCM & GROUP, THEREFORE, THE SAME IS CORRECTED AND BE READ AS UNDER : - M A NO S . 51 - 5 3 &54/ 20 15 4 II) SIMILARLY THE FIGURE OF 2924 HAS WRONGLY BEEN MENTIONED IN THE SECOND TABLE AT PAGE 5 IN CASE OF CKM & GROUP, THEREFORE, THE SAME IS HEREBY CORRECTED AND BE READ AS 308 IN PLACE OF 2924 AND THE FIGURE 3843 HAS WRONGLY BEEN INSERTED WHICH IS HEREBY DELETED. III) IN FOURTH LINE OF PAR A 10 THE WORD LOOSE ASSETS HAS WRONGLY BEEN TYPED AND THE SAME BE READ AS LIQUID ASSETS . 8. LD. AR SUBMITTED THAT THE TABLE MENTIONED IN PARA 11 AT PAGE 12, WRONG FIGURES HAVE BEEN MENTIONED IN SECOND COLOUM OF THE TABLE IN CASE OF CKM & GROUP. 9. WE A GREED WITH THE CONTENTION OF LD. AR AND FOUND THAT THERE ARE TYPOGRAPHICAL ERRORS IN THE SECOND COLOUM OF THE TABLE MENTIONED IN THE CASE OF CKM & GROUP. THEREFORE, THE SAME IS HEREBY CORRECTED AND BE READ AS UNDER : - M A NO S . 51 - 5 3 &54/ 20 15 5 10. LD. AR SUBMITTED THAT IN 5 TH LI NE OF PARA 16 AT PAGE NO.15, THE DATE IS WRONGLY MENTIONED AS 23.03.2003, WHEREAS THE CORRECT DATE IS 28.03.2003. HE FURTHER SUBMITTED THAT IN 2 ND LINE OF PARA 22 AT PAGE 16, DATE OF SEARCH IS WRONGLY MENTIONED AS 21.07.2007, WHEREAS THE CORRECT DATE IS 21 .07.2009 AND IN THE 5 TH LINE THE DATE IS WRONGLY MENTIONED AS 23.03.2003, WHEREAS THE CORRECT DATE IS 25.03.2003. 11. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL AND FOUND THAT THERE ARE SOME TYPING MISTAKES OCCURRED IN THE ORDER. HENCE, THE SAME BE COR RECTED IN THE FOLLOWING MANNER : - I) IN 5 TH LINE OF PARA 16 AT PAGE NO.15 AND IN THE 5 TH LINE OF PARA 22 AT PAGE 16, WHERE THE DATE IS WRONGLY MENTIONED AS 23.03.2003, THE SAME MAY BE READ AS 25.03.2003 . II) IN 2 ND LINE OF PARA 22 AT PAGE NO. 16 , WHERE TH E SEARCH DATE IS WRONGLY MENTIONED AS 21.07.2007 , THE SAME IS HEREBY CORRECTED AND BE READ AS 2 1.07.2009 . 12. LD. AR SUBMITTED THAT AT PAGE 42, WHILE DISPOSING OFF THE ITA NO.3764/MUM/2013, IN PARA 45, THE OBSERVATIONS OF CIT(A) FOR AY 2009 - M A NO S . 51 - 5 3 &54/ 20 15 6 2010 HAVE BEEN INADVERTENTLY REPRODUCED INSTEAD OF REPRODUCING CIT(A)S OBSERVATIONS FOR AY 2010 - 2011 AS HAS BEEN DONE WHILE DISPOSING OFF OTHER APPEALS. 13. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL AND FOUND THAT THERE IS APPARENT ERROR ON THE FACE OF RECORD IN RE GARD TO REPRODUCTION OF OBSERVATION OF CIT(A). THEREFORE, THE OBSERVATIONS OF THE CIT(A) WHICH HAS BEEN REPRODUCED IN PARA 45 IN THE ORDER IS HEREBY DIRECTED TO BE REPLACED WITH THE FOLLOWING OBSERVATIONS OF THE CIT(A) IN THIS REGARD : - I HAVE CONSIDERED THE FACTS OF THE CASE AND PERUSED THE MATERIAL ON RECORD INCLUDING THE CD2 AND CD 19 SUBMITTED DURING THE COURSE OF THE HEARING AND OPENED BY THE REPRESENTATIVES OF THE APPELLANT IN MY PRESENCE. ON AN EXAMINATION OF THE MATERIAL FURNISHED BY THE APPELLANT DURING THE COURSE OF THE HEARING AND ON PERUSING THE TWO CD I AM OF THE OPINION THAT NO NEW EVIDENCE IS SOUGHT TO BE PLACED BEFORE ME BY THE APPELLANT. THE ENTIRE MATERIAL INCLUDING THAT ON THE TWO CD FORMS PART OF THE S EIZED MATERIAL AND WAS THEREFORE WIT H THE AO WHEN HE PASSED THE ORDER. IN THE REMAND REPORT THE AO HAS NOT OFFERED ANY COMMENTS IN RESPECT OF ASSESSMENT ORDERS FOR A.Y.2010 - 11 WITHOUT ASSIGNING ANY REASON THEREBY SUGGESTING THAT HE HAD NOTHING TO SAY IN THE MATTER. BEYOND DOUBT CD 19 FILE HA VING PATH NAME AS 'COPY 19 \ SURESH \ OHD \ MYDOCUMENTS \ DATA \ MSODATA \ EXCEL \ INDBS. XLS' CONTAINS SAME TWO PAGES AS 37 & 38 COPIES OF WHICH HAVE BEEN APPENDED TO THE ASSESSMENT ORDER AND WHICH CONSTITUTE THE BASIS FOR THE IMPUGNED ASSESSMENT. CD NO. 2, WHEN OPENED SHOWED ANOTHER FIVE PAGES PERTAINING TO GROUP BALANCE SHEETS. THESE FIVE PAGES ARE THE BASIS FOR PREPARATION OF TWO PAGES NO. 37 & 38. RELEVANT FIGURES ON PAGES 37 & 38 PERFECTLY MATCH WITH THE FIGURES ON 5 PAGES ON CD 2. IT IS SEEN THAT THESE FIVE PAGES H AVE VERY CLEAR HEADINGS AS 'BALANCE SHEET AS ON 13/03/2003'. IT IS THUS CLEAR THAT TWO PAGES I.E. 37 & 38 ARE THE SUMMARIZED VERSION OF FIVE PAGES AVAILABLE ON CD 2 AND FURTHER THAT THE ENTIRE DATA CONTAINED THEREIN PERTAINS TO THE PERIOD BEFORE 31/03/2003 THE AR HAS CLARIFIED THAT PAGES 37 & 38 REPRESENT PROBABLE BALANCE SHEETS DRAWN UP IN THE CONTEXT OF FAMILY AGREEMENT OF 01/01/2003. ON AN EXAMINATION OF THE MATERIAL ON RECORD IT IS QUITE CLEAR THAT THERE HAVE BEEN LONG STANDING DISPUTES WITHIN THE MEHTA FAMILY GENESIS OF WHICH GOES BEYOND THE YEAR 2000. A SERIES OF LETTERS HAVE BEEN EXCHANGED BETWEEN THE APPELLANT AND HIS SON SAILESH WHEREIN VARIOUS CLAIMS AND COUNTER CLAIMS HAVE BEEN RAISED. THE APPELLANT, WHO IS INTO HIS EIGHTIES, AS THE HEAD OF THE FA MILY WANTED TO EVOLVE A SUCCESSION PLAN THE AIM OF WHICH WAS PEACE AND HARMONY IN THE FAMILY. HE ALONG WITH HIS WIFE MRS. KANTA MEHTA DESIRED TO RELINQUISH IN FAVOR OF THEIR SONS, THEIR INTERESTS IN THE TWO LISTED COMPANIES DFPCL AND DNL. SINCE THE 2000 AGREEMENT DID NOT RESULT IN SETTLEMENT OF DISPUTES A FRESH FAMILY AGREEMENT WAS DRAWN UP BY M/S. UDWADIA, UDESHI AND BERGIS, SOLICITORS, IN JANUARY, 2003. M A NO S . 51 - 5 3 &54/ 20 15 7 UNDER THIS FAMILY AGREEMENT DCM WOULD OWN AND MANAGE DNL, SCM WOULD OWN AND MANAGE DFPCL AND ACM WAS TO BE PAID CASH OF RS. 53 CRORES BEING HIS SHARE IN THE VALUE OF THE FAMILY SHARES. FOR THIS PURPOSE SHARES IN DFPCL AND DNL, WHICH WERE NOTIONALLY VALUED AND DIVIDED EQUALLY AMONG THE THREE SONS IN SUCH A WAY THAT EACH SON WAS TO RECEIVE ASSETS OF THE VAL UE OF RS 53 CRORES. THE 2003 AGREEMENT PROVIDED FOR VARIOUS THINGS INCLUDING PAYMENT OF SPECIFIED AMOUNTS AND INTER SE REDISTRIBUTION OF OTHER ASSETS AND LIABILITIES BETWEEN THE FAMILY MEMBERS AS EXPLAINED IN DETAIL BY THE AR IN HIS SUBMISSIONS. AS EXPLAIN ED BY THE AR EQUAL DISTRIBUTION OF THE FAMILY ASSETS AMONG THE FOUR GROUPS MEANT REDISTRIBUTION OF ASSETS INVOLVING VARIOUS FAMILY MEMBERS AND THEIR CORPORATE ENTITIES. THIS INVOLVED ENSURING THAT CONTROL, ASSETS, AND LIABILITIES OF SPECIFIC ENTITIES WERE ALLOTTED TO SPECIFIC GROUP IN THE PROCESS ENSURING THAT THERE WAS FINANCIAL EQUALITY. AN EXERCISE OF PLOTTING PROBABLE /REQUIRED REDISTRIBUTION OF FINANCIAL ASSETS AS APPEARING ON SAID PAGES 37 & 38 WAS UNDERTAKEN AROUND 12TH MARCH, 2003 I.E. SOON AFTER TH E FAMILY AGREEMENT WAS ENTERED INTO ON 1ST JANUARY 2003. SINCE THIS EXERCISE INVOLVED AS MANY AS ABOUT 33 ENTITIES AND FINANCIAL ASSETS OF LARGE NUMBER AND VALUE AND DIVERSE NATURE, THE OFFICE OF THE APPELLANT THOUGHT EXPEDIENT TO PLOT IN SEPARATE ACCOUNTI NG SOFTWARE. AN ELEMENTARY EXERCISE OF PREPARING MEMORANDUM LEDGER ACCOUNTS BY RECORDING MEMORANDUM JOURNAL ENTRIES ETC WAS UTILIZED FOR THIS PURPOSE. THE CDS ON RECORD ALSO CLEARLY ESTABLISH THE FACT THAT THE STARTING POINT OF THIS ENTIRE EXERCISE WAS BAL ANCE SHEETS AS ON 13.03.2003 AS APPEARING IN THE BOOKS OF ACCOUNT MAINTAINED BY VARIOUS GROUP ENTITIES. THE FURTHER FACT WHICH DISTINCTLY EMERGES FROM THE SEIZED MATERIAL/CD IS THAT THE COMPONENTS OF THE FIGURES OF CASH PAID AND CASH RECD AS APPEARING AT T HE END OF THESE PR OBABLE BALANCE SHEETS ARE IN FACT LIQUID ASSETS IN THE FORM OF LOANS, LIABILITIES, CASH AND BANK BALANCES ETC. THE PROBABLE BALANCE SHEET IN THE CASE OF CKM GROUP AS APPEARING ON PAGE 37 & 38 READS AS UNDER: CKM & GROUP CAPITAL 1,384 F .A. 77 LOAN TAKEN 2,924 GOTRI 21 CURRENT LIAB. 306 YIL 2,682 DEFICIT 216 YIL (STOCK) 325 BARODA 11 INV. SHARES - OTHERS 305 STOCK OTHERS 856 JEWELLERY 21 LOAN TO OTHERS 164 CURRENT ASSETS - OTHER 370 4,832 4,832 CASH RECD. + 3,547 CASH PAID - 3,763 DEFICIT 216 THE AO HAS BROUGHT TO TAX RS. 35.47 CRORES AND RS. 37.63 CRORES AS UNEXPLAINED CASH RECEIVED AND CASH PAID. THE BREAKUP OF THE SAID TWO FIGURES AS AVAILABLE ON CD2 IS AS UNDER: CKM & GROUP PARTICULARS CD NO.2 (GROUPWISE BALA - NCE SHEETS AS ON 13.3.2003 TWO PAGES 37 & 38 (ALSO IN CD NO. 19) LIABILITIES : CAPITAL ACCOUNT 1,384 1,384 1,384 LOAN TAKEN FROM OTHERS 2,924 2,924 2,924 CURRENT LIABILITIES 308 308 LOANS TAKEN M A NO S . 51 - 5 3 &54/ 20 15 8 FROM GROUP WHITEHALL CURRE NT LIABILITIES GROUP CALLS PAYABLE (TREATED AS CASH PAID IN PAGES 37 & 38) 745 637 2259 122 3763 3,763 8379 - - - - 3,763 8,379 ASSETS FIXED ASSETS FIXED ASSETS GOTRI BUNGLOW YIL SHARES YIL SHARES (STOCK) BARODA PLOT INVESTME NTS IN SHARES OTHERS STOCK OTHERS JEWELLERY LOAN TO OTHERS CURRENT ASSETS OTHER LOAN GIVEN TO GROUP CURRENT ASSETS GROUP CASH AND BANK BALANCE 960 875 1712 3547 77 21 2682 325 11 305 856 21 164 370 3547 8379 77 21 2682 325 11 305 856 21 164 370 -- -- -- 3547 8379 IT IS THUS CLEAR THAT THE SO CALLED CASH PAID IN FACT IS THE TOTAL OF THE FOLLOWING LOANS TAKEN FROM GROUP WHITEHALL CURRENT LIABILITIES GROUP CALLS PAYABLE (TREATED AS CASH PAID IN PAGES 37 & 38) TOTAL 745 637 2259 122 3763 637 SIMILARLY THE SO CALLED CASH RECD IS IN FACT THE TOTAL OF THE FOLLOWING: LOANS TAKEN FROM GROUP WHITEHALL CURRENT LIABILITIES GROUP CALLS PAYABLE (TREATED AS CASH PAID IN PAGES 37 & 38) TOTAL 745 637 2259 122 3763 637 IN MY OPINION, IT IS BEYOND DOUBT THAT THE WORDS CASH PAID AND CASH RECD HAVE BEEN IN FACT USED TO REFER TO IDENTIFIED LIQUID ASSETS BY WAY OF LOANS TAKEN, LOANS GIVEN, CURRENT LIABILITIES, AND CASH/BANK BALANCES WHICH WERE PROPOSED TO BE REDISTRIBUTED PURSUANT TO THE FAMILY AGREEMENT. THESE WORDS DO NOT REPRESENT HARD CASH RECEIVED OR HARD CASH PAID AS ORDINARILY - CONVEYED BY THESE WORDS. THAT THE FIGURES APPEARING ON PAGES 37 AND 38 ARE PROBABLE BALANCE SHEETS IS OBVIOUS. THE PURPO SE OF ENTIRE BALANCE SHEETS HAS ALSO BEEN SATISFACTORILY EXPLAINED BY THE APPELLANT; IT HAS ITS GENESIS IN THE LONG STANDING FAMILY DISPUTES WHICH ARE IN FACT STILL NOT SETTLED. THE FACT THAT THESE PROBABLE BALANCE SHEETS HAVE BEEN DRAWN UP FROM THE ACCOUN TED BALANCE SHEETS AS ON 13.03.2003 IS ALSO CLEARLY REFLECTED IN CD 2 (G - 6 TO G - 1 1 OF THE PAPER BOOK - BOX FILE NO. 1). M A NO S . 51 - 5 3 &54/ 20 15 9 THERE IS ALSO MERIT IN THE CONTENTION OF THE AR THAT THOUGH BY PASSING SIMILAR ORDERS IN THE CASE OF 5 GROUP ASSESSEES, THE AO HAS BROU GHT TO TAX RS.242,75,00,000/ - AS UNACCOUNTED CASH, DURING SEARCH ON 21.07.2009 NO UNACCOUNTED CASH WAS FOUND AT ANY PLACE - OFFICE OR RESIDENCE - ACROSS THE GROUP. SIMILARLY NO ACCOUNTED INVESTMENT OR UNACCOUNTED EXPENDITURE WAS ALSO FOUND. THIS LENDS FURT HER SUPPORT TO THE CONTENTION OF THE APPELLANT THAT THESE ARE ONLY PROBABLE OR PROJECTED FIGURES AND NOT FIGURES OF HARD CASH. ANOTHER NOTEWORTHY FACT WHICH EMERGES ON VIEWING CD 19 CONTAINING PAGES 37 & 38 IS THAT THE CONTENT THERE OF WAS CREATED ON 28.03 .2003. THE PROPERTIES OF THIS CD/FILE AS RECORDED IN THE COMPUTER AT THE TIME OF ITS CREATION, WHICH WAS ALSO DEMONSTRATED BEFORE ME, APPEAR AS UNDER: THERE IS THEREFORE MERIT IN THE CONTENTION OF THE AR THAT THIS CD WAS CREATED ON 28.03.2003 A DATE FALL ING BEYOND SIX YEAR LIMITATION PERIOD PRESCRIBED IN SECTION 153A(L) OF THE ACT. IN MY OPINION THE APPEAL MERITS BEING ALLOWED BOTH ON GROUNDS OF LIMITATION AND THE GROUND THAT THE FIGURES ARE IN ANY EVENT ONLY PROBABLE BALANCE SHEETS AND DO NOT REFLECT ACT UAL TRANSACTIONS OF CASH PAID AND CASH RECD. THESE PROBABLE BALANCE SHEETS WERE THEMSELVES BASED ON BALANCE SHEETS AS ON 13.03.2003 DRAWN UP FROM THE REGULAR BOOKS OF ACCOUNT MAINTAINED B Y THE APPELLANT MOREOVER THE WORDS CASH PAID AND CASH RECD DO NO T IN FACT REFLECT HARD CASH BUT IDENTIFIED AND ACCOUNTED LIQUID ASSETS. FOR ALL THE REASONS DISCUSSED HEREINABOVE, THE ASSESSMENT IS ANNULLED AND EX CONSEQUENTIAL THE SUM OF RS. 73,10,00,000/ - ADDED TO THE TOTAL INCOME OF THE APPELLANT DOES NOT SURVIVE AND GETS DELETED. 14. LD. AR FURTHER SUBMITTED THAT IN PARA 46 AT PAGE 46, IN CASE OF ACM & GROUP THE TRIBUNAL HAS NOT INCORPORATED THE TABLE IN CASE OF ACM & GROUP. M A NO S . 51 - 5 3 &54/ 20 15 10 15. WE HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF LD.AR AND GONE THROUGH THE ORDER OF TH E TRIBUNAL. WE FOUND THAT WHILE DISPOSING OFF THE APPEAL OF THE DEPARTMENT, THE TRIBUNAL HAS FOLLOWED ITS REASONS AS HAS BEEN GIVEN IN OTHER CONNECTED APPEALS AND DISMISSED THE APPEAL OF THE REVENUE, THEREFORE, IN OUR OPINION, IT IS NOT NECESSARY TO INCLUD E THE TABLE AS HAS BEEN CONTENDED BY THE LD. AR IN CASE OF ACM & GROUP. 16. LD.AR SUBMITTED THAT IN PARA 48 ON PAGE 47, THE GROUND NO.1 OF DEPARTMENTS APPEAL HAS WRONGLY BEEN MENTIONED AND THE MAY BE CORRECTED. 17. WE HAVE CONSIDERED THE CONTENTIONS OF LD . AR AND FOUND THAT THERE IS SOME TYPOGRAPHICAL ERROR IN THE GROUND NO.1, THEREFORE, THE SAME IS HEREBY CORRECTED AND BE READ AS UNDER : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.2 0,00,00,000/ - ON ACCOUNT OF UNACCOUNTED PAYMENTS IGNORING THE DOCUMENTARY EVIDENCE AND PRESUMPTION WITH REGARD TO THE ENTRIES FOUND IN SEIZED MATERIAL AS PER PROVISIONS OF SECTION 292C R.W.S.132(4A) OF THE I.T.ACT. 18. LD. AR FURTHER POINTED OUT THAT THE TRIBUNAL WHILE DECIDING THE DEPARTMENTS APPEAL I.E. ITA NO.3778/MUM/2013, FOLLOWED ITS REASONS GIVEN IN OTHER CONNECTED APPEAL BY INCORPORATING THE WRONG PARAGRAPHS I.E. PARA NOS.26,27 & 28, HOWEVER, THE FINDINGS GIVEN IN THE PARAGRAPHS ARE 28,29 & 30, W HICH MAY BE CORRECTED. 19. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL AND FOUND THAT THERE IS APPARENT ERROR IN THE PLACITUM OF THE ORDER. PARA 24 & 25 HAVE RIGHTLY BEEN TYPED, HOWEVER, PARA 26 & 27 HAVE WRONGLY MISSED OUT. THEREFORE, THE SAM E IS CORRECTED AND THE PARAGRAPHS STARTING FROM WAS IN FACT. DISMISSED' IS DIRECTED TO READ AS UNDER : - M A NO S . 51 - 5 3 &54/ 20 15 11 24. ON THE OTHER HAND, THE SUBMISSIONS OF THE AR CANNOT BE IGNORED THAT ALL THE ASSETS AND LIABILITIES WERE DISTRIBUTED AS PER THE FAMILY A RRANGEM ENT IMMEDIATELY THEREAFTER AND WHEREVER NECESSARY, DUE TAXES HAD BEEN AID. 25. BEFORE US THOUGH THE AR PLACED RELIANCE ON THE DECISIONS OF P R METRANI VS CIT - 287 ITR 209 (SC) AND SURENDRA M KHANDHAR VS ACIT 321 ITR 254 (BOM). IN OUR VIEW BOTH THESE DECIS IONS MAY NOT BE NECESSARY, BECAUSE, THE QUESTION OF REBUTTAL ON THE PROPOSED ADDITION IS NOT OCCASIONED BECAUSE THE ADDITIONS MADE BY THE AO, HAVE BEEN BASED ON NOTINGS ON THE CDS PREPARED ON 28.03.2003, WHICH WE HAVE HELD PERTAINED TO PERIOD PRIOR TO THE SEARCH PERIOD ASSESSMENTS UNDER SECTION 153A AND, THEREFORE CANNOT BE SUSTAINED. 26. AFTER PERUSING THE ENTIRE MATERIAL PLACED BEFORE US, WE ARE OF THE OPINION THAT FOR TENTATIVE FAMILY SETTLEMENT, THE ENTIRE WORKING WAS DONE. IN THE PROCESS OF WORKING OU T THE FAMILY SETTLEMENT, THE ASSESSEE PICKED UP THE ACTUAL BOOKS FIGURES AS ON 13.03.2003 OF VARIOUS ENTITIES TO ARRIVE AT REASONABLE DISTRIBUTION. NEITHER ANY INCOME WAS RECEIVED NOR ACCRUED IN FAVOUR OF THE ASSESSEE. THE ARGUMENT OF THE AO/DR THAT THERE WAS ACTUAL MOVEMENT OF CASH COULD NOT BE SUBSTANTIATED BY THE AO/DR, AS NOT ONE CURRENCY NOTE WAS FOUND, WHICH COULD BE HELD TO BE UNACCOUNTED. EVEN THE FACT THAT THE FIGURES TAKEN BY THE ASSESSEE FOR FAMILY DISTRIBUTION WERE FROM THE ACTUAL BOOKS ALSO COU LD NOT BE NEGATED BY THE AO OR BY THE DR BEFORE US. THE FACT, THAT ON ACTUAL AND FINAL DISTRIBUTION OF MOVABLE ASSETS, AS WORKED OUT, ALL LEGITIMATE TAXES HAD BEEN PAID BY THE VARIOUS PERSONS/ENTITIES HAS ALSO NOT BEEN CONTROVERTED BY THE DR/AO. THIS GOES TO PROVE THAT THE AO TREADED ON THE PATH OF SUSPICION AND BASED HIS FINDINGS ON ASSUMPTION. 27. WE THEREFORE SUSTAIN THE FINDINGS OF THE CIT(A), WHEREIN HE HAS DEMOLISHED THE ENTIRE CASE OF THE AO, BOTH ON MERITS AND LEGALITY, ACCEPTING THE FACT THAT THE ASSESSMENT FRAMED BY THE AO IS ERRONEOUS, AS THE FIGURES ARE BASED ON THE CDS SEIZED BY THE DEPARTMENT, WHICH CLEARLY SHOWS CREATION OF THE SAME ON 28.03.2003, WHICH IS BEYOND THE LIMITATION PERIOD, AS PRESCRIBED IN SECTION 153A. 28. WE ALSO REJECT THE GO A NO. 6, WHEREIN THE DEPARTMENT HAS SOUGHT RESTORATION OF THE CASE TO THE FILE OF THE AO, BECAUSE OF NON ALLOWANCE OF PROPER OPPORTUNITY UNDER RULE 46A. THIS HAS BEEN CATEGORICALLY REJECTED BY THE CIT(A), WHEREIN HE HAS HELD THAT THE ASSESSEE HAS NOT PRODU CED/SUBMITTED ANYTHING OR ANY EVIDENCE, WHICH WAS NOT BEFORE THE AO OR WAS NOT IN THE SEIZED MATERIAL. EVEN IN THE COURSE OF HEARING BEFORE US, THE DR COULD NOT BRING OUT OR POINT OUT ANY DOCUMENT, WHICH COULD BE SAID TO BE TAKEN INTO CONSIDERATION BY THE CIT(A) AND NOT CONSIDERED BY THE AO. 29. WE, THEREFORE, REJECT THE GROUNDS AS RAISED BY THE DEPARTMENT AND CONSEQUENTIALLY DISMISS THE APPEAL AS FILED BY THE DEPARTMENT. 30. IN THE RESULT, DEPARTMENTAL APPEAL, AS FILED BY THE REVENUE STANDS DISMISSED. 19.1 LD. AR SUBMITTED THAT IN PARA 27 ABOVE, THE PORTION APPEARING AFTER WE THEREFORE, SUSTAIN THE FINDINGS OF THE CIT(A) WHEREIN HE HAS DEMOLISHED THE ENTIRE CASE OF THE AO, BOTH ON MERITS AND LEGALITY TILL THE M A NO S . 51 - 5 3 &54/ 20 15 12 END OF THAT PARA IS NOT FACTUALLY RELEVANT FOR A.Y.2009 - 2010 AND HENCE, MERITS BEING OMITTED. 19.2 WE HAVE CAREFULLY GONE THROUGH THE ABOVE PARA AND FOUND THAT THE ASSESSMENT YEAR UNDER CONSIDERATION IS 2009 - 2010. THE TRIBUNAL HAS FOLLOWED THE REASONS GIVEN IN THE APPEAL FOR A.Y.2010 - 2011, WHEREIN THE TRIBUNAL MENTIONED THE FACT THAT THE FIGURES ARE BASED ON THE CDS SEIZED BY THE DEPARTMENT, WHICH CLEARLY SHOWS CREATION OF THE SAME ON 28.03.2003, WHICH IS BEYOND THE LIMITATION PERIOD, AS PRESCRIBED IN SECTION 153A. ALBEIT , IN THE YEAR UNDER CONSIDE RATION I.E. AY 2009 - 2010 THE ABOVE FACT IS NOT RELATED, HOWEVER, THE TRIBUNAL HAS SUSTAINED THE FINDINGS OF CIT(A) AND DISMISSED THE APPEAL OF THE REVENUE, FOLLOWING THE REASONING GIVEN IN ASSESSMENT YEAR 2009 - 2010, THEREFORE, IT DOES NOT REQUIRE ANY MODI FICATION OF THE ORDER IN THIS REGARD. 20. LD. AR SUBMITTED THAT IN PARA 54 THE ITA NO.3778/M/2013 IS WRONGLY MENTIONED AS THE CORRECT NUMBER OF DEPARTMENTS APPEAL IS ITA NO.3779/M/2013 FOR A.Y.2009 - 2010. HE ALSO POINTED OUT THAT IN THE LAST LINE OF SAME PARAGRAPH, IT HAS WRONGLY BEEN MENTIONED AS ALLOWED, WHEREAS THE APPEAL OF THE REVENUE IS DISMISSED, THE SAME MAY BE CORRECTED. 21. WE HAVE CONSIDERED THE CONTENTIONS OF LD.AR AND PERUSED THE RELEVANT PARAGRAPH OF THE ORDER. WE FOUND THAT IN LAST LINE O F THE SAME PARAGRAPH IT HAS WRONGLY BEEN MENTIONED THAT HENCE, THESE GROUNDS OF APPEAL ARE HEREBY ALLOWED. AS THE APPEAL OF THE DEPARTMENT I.E. ITA NO.3779/MUM/201 3 HAS ALREADY BEEN DISMISSED BY THE TRIBUNAL RELYING THE REASONS GIVEN IN ITA NO. 3778/MUM/ 2013, THEREFORE, THE WORD M A NO S . 51 - 5 3 &54/ 20 15 13 DISMISSED SHOULD REPLACE THE WORD ALLOWED AND THE CORRECT SENTENCE BE READ AS UNDER : - HENCE, THESE GROUNDS OF APPEAL ARE HEREBY DISMISSED. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION S OF THE ASSESSEE ARE ALLOWED , IN TERMS AS INDICATED ABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/11 / 2015 05/11 /2015 SD/ - SD/ - JOGINDER SINGH R.C.SHARMA JUDICIAL MEMBER / ACC OUNTANT MEMBER MUMBAI ; DATED 05/11 /2015 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//