Shri Kasturilal S. Luthara, Nashik V. DCIT, Cent. Cir.,1, Nashik

MA 55/PUN/2011

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2629 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-07-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 21-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Loose papers; Question of law
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER MA NO.55/PN/2011 (ARISING OUT OF ITA NO.816/PN/2010) (ASSESSMENT YEAR : 2002-03) SHRI KASTURILAL SARDARILAL LUTHRA, URMIL, SHRIN MEADOWS, GANGAPUR ROAD, NASHIK. PAN : AAFPL4629P . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1, NASHIK. . RESPONDENT APPELLANT BY : MR. M. K. KULKARNI RESPONDENT BY : MR. RAJESH DAMOR ORDER PER G. S. PANNU, AM THE REVISED MISCELLANEOUS APPLICATION PREFERRED BY THE ASSESSEE, READS AS UNDER :- 1. AT THE TIME OF HEARING OF THE ABOVE MISC. PETIT ION ON 11-07- 2014 IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THA T THE REVISED MISC. PETITION WILL BE FILED TO PINPOINT EXACTLY TH E GRIEVANCE POINTING OUT WHY THE RE-CALL OF GROUNDS OF APPEAL W HICH WERE NOT ADJUDICATED BY THE HON'BLE BENCH. 2. THEREFORE, ACCORDINGLY THE REVISED MA IS BEING F ILED REQUESTING THE RECALL OF THE FOLLOWING GROUNDS OF APPEAL. '7) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. A.O. WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 61.65 L AKHS IN A. Y. 2002-03 SINCE IT IS AN ADMITTED FACT BY BOTH THE AUTHORITIE S BELOW BASED ON SEIZED MATERIALS THAT PAYMENT OF RS.60 LAKHS WAS MA DE ON 09-04- 2002 PERTAINING TO A.Y. 2003-04. THE ADDITION AND A SSESSMENT BEING WITHOUT APPLICATION OF MIND AND IGNORING THE EVIDEN CES AVAILABLE IS BAD IN LAW, ILLEGAL AND THEREFORE, BE QUASHED. 8) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ORIGINAL RETURN FOR A.Y. 2002-03 WAS 'NOT PENDING' DUE TO AS SESSMENT U/S.143(3) AND FURTHER IN APPEAL BEFORE C.I.T.(A) A ND THEREFORE, DID NOT ABATE. IN VIEW OF THIS THE ENTIRE ASSESSMENT MADE B Y A.O. UNDER SECTION 153-A R.W.S. 143(3) IS BAD IN LAW, ILLEGAL AND BE QUASHED. ' 3. THE GROUND NO.8 BE READ FIRST. THE GROUND IS FOR THE PROPOSITION THAT IT IS RESTED ON THE SUBSTANTIAL QU ESTION OF LAW GOING TO THE ROOT OF THE MATTER. IN VIEW OF THE ASSESSMENT UNDER APPEAL REOPENED UNDER S.153A THE ASSESSMENT ACCORDINGLY CO MPLETED WAS 'NON-ABATED' AS ORIGINAL ASSESSMENT WAS COMPLET ED U/S 143(3) VIDE ORDER DT. 29-3-2005 (PAGE NO.132 OF PB) . MA NO.55/PN/2011 4. HENCE ACCORDING TO 2 ND PROVISO TO S.153A AND SINCE THE ASSESSMENT WAS NOT PENDING, DID NOT ABATE. IT IS CO NSIDERED AS 'REASSESSMENT' UNDER S.153A OF THE ACT. 5. IN CASE OF NON-ABATED ASSESSMENT IT IS SETTLED L AW THAT WHERE NOTHING INCRIMINATING IS FOUND THOUGH S.153A WOULD BE TRIGGERED AND REASSESSMENT TO ASCERTAIN THE TOTAL I NCOME IS REQUIRED TO BE DONE, THE SAME WOULD NOT RESULT IN A NY ADDITION AND ASSESSMENT MADE EARLIER WILL HAVE TO BE REITERA TED. IN THIS CASE REASSESSMENT HAS BEEN MADE BY MAKING ADDITION OF RS.61.65 LAKHS OUT OF WHICH RS.60 LAKHS PERTAIN TO A. Y. 2003-04 AS PER INCRIMINATING MATERIAL SEIZED. (PAGE 226 OF PB) . IN SHORT THERE WAS NO INCRIMINATING MATERIAL AS FAR AS AMOUN T OF RS.60 LAKHS IS CONCERNED AS FAR AS THE ASSESSMENT YEAR UN DER APPEAL IS CONCERNED. IN THAT CONTEXT AND TO ADJUDICATE THIS S UBSTANTIAL QUESTION OF LAW THE GROUND NOS.7 & 8 ARE, IN THE IN TEREST OF JUSTICE, REQUIRED TO BE ADJUDICATED BY RECALLING TH OSE GROUNDS OF APPEAL. THE SUBMISSIONS IN THIS RESPECT WERE MADE B EFORE HON'BLE CIT(A) ALSO. 6. AND HENCE THIS MISC. PETITION. 2. IN THE ORIGINAL APPEAL OF THE ASSESSEE, SUM AND SUBSTANCE OF THE DISPUTE RELATED TO AN ADDITION OF RS.61.65 LAKHS MA DE ON ACCOUNT OF UNDISCLOSED INCOME WHICH WAS ADMITTED IN A STATEMEN T U/S 132(4) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IN THE CO URSE OF SEARCH. THE ADMISSION OF ADDITIONAL INCOME WAS ON ACCOUNT OF CE RTAIN LOOSE PAPERS FOUND IN SEIZED IN THE COURSE OF SEARCH WHICH REFLECTED T HAT ASSESSEE HAS UNDERTAKEN PURCHASE OF LAND FOR A CONSIDERATION HIG HER THAN THAT STATED IN THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2002-03 ORIGINALLY U/S 139(1) OF THE ACT. THE SAID DECLARATION WAS NOT COMPLIED WITH IN THE RETURN OF INCOME FILED BY THE ASSESSEE IN RESPONSE TO A NOTICE U/S 153A OF THE ACT. THE ASSESSING OFFICER MADE THE ADDITION, WHICH WAS UPHELD BY THE CIT(A). THE TRIBUNAL ALSO AFFIRMED THE ADDITION AFTER REFERRING TO THE MANNER IN WHICH THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAD DEALT WITH THE IS SUE. 3. PRESENTLY, THE MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE, AS EXTRACTED ABOVE, REFLECTS THAT WHAT IS SOUGHT IS A REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS IMPERMISSIBLE IN TERMS OF SECTION 254(2) OF THE ACT. PERTINENTLY, ONE OF THE POINTS SOUGHT TO BE CANVASS ED NOW IS THAT ADDITION OF RS.61.65 LAKHS IS NOT JUSTIFIED IN ASSESSMENT YEAR 2002-03 SINCE THE MATERIAL MA NO.55/PN/2011 SEIZED SHOWED THAT THE PAYMENTS WERE MADE IN THE SU BSEQUENT ASSESSMENT YEAR. SECONDLY, IT IS ALSO SOUGHT TO BE MADE OUT T HAT THERE WAS NO INCRIMINATING MATERIAL PERTAINING TO THE CURRENT YE AR IN SO FAR AS THE AMOUNT OF 60 LAKHS IS CONCERNED, OUT OF THE TOTAL AMOUNT OF R S.61.65 LAKHS. 4. BOTH THE AFORESAID POINTS DO NOT JUSTIFY ANY AME NDMENT IN THE ORDER OF THE TRIBUNAL DATED 31.01.2011 (SUPRA) WITHIN THE SC OPE AND AMBIT OF SECTION 254(2) OF THE ACT. IN ANY CASE, IT IS TO BE APPREC IATED THAT THE SEIZED MATERIAL REFERRED TO AS A-34 CONSISTED OF A BUNDLE OF LOOS E PAPERS WHICH REFLECTED PURCHASE OF LAND BY THE ASSESSEE ALONG WITH THREE O THER CO-OWNERS OF THE FAMILY FOR A CONSIDERATION OF RS.1,37,75,000/- AS A GAINST THE COST OF LAND DECLARED AT RS.55.00.090/- IN THE ORIGINAL RETURN O F INCOME FILED U/S 139(1) OF THE ACT ON 25.11.2002 I.E. BEFORE THE SEARCH. THE SEIZED MATERIAL INDICATE A PAYMENT OF RS.82,72,910/- OVER AND ABOVE THE DECLAR ED COST AND IT ALSO REFLECTED CASH PAYMENTS OF RS.70,11,000/- ON VARYIN G DATES INCLUDING RS.60 LAKHS PAID ON 09.04.2002. ALL THESE FACTS EMERGE F ROM THE ORDER OF THE AUTHORITIES BELOW AS ALSO THE ORDER OF THE TRIBUNAL DATED 31.01.2011 (SUPRA). IN THE BACKGROUND OF THE AFORESAID SEIZED MATERIAL AND EVIDENCE, ASSESSEE ADMITTED IN A STATEMENT RECORDED U/S 132(4) OF THE ACT IN THE COURSE OF SEARCH THAT CASH PAYMENTS OF RS.70,11,000/- WERE OUT OF UN DISCLOSED SOURCES. SUCH ADMISSION OF ADDITIONAL INCOME WAS ALSO ACCOMPANIED BY THE BREAKUP I.E. ASSESSEE ADMITTED RS.61.65 LAKHS AS UNDISCLOSED INC OME FOR ASSESSMENT YEAR 2002-03 AND THE BALANCE OF RS.8.46 LAKHS FOR A SSESSMENT YEAR 2003-04. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY JUSTI FICATION FOR THE ASSESSEE TO SAY THAT THERE WAS NO SEIZED MATERIAL TO SHOW THAT THERE WAS UNDISCLOSED INCOME PERTAINING TO ASSESSMENT YEAR 2002-03. IN-F ACT, IN THE RETURN OF INCOME FILED AFTER THE SEARCH, ASSESSEE DID NOT RET URN THE AFORESAID ADDITIONAL INCOME WHICH WAS ADMITTED IN THE STATEMENT U/S 132( 4) OF THE ACT. HOWEVER, IT IS NOTED THAT IN THE COURSE OF ASSESSMENT PROCEEDIN GS, ASSESSEE AGAIN VIDE COMMUNICATION DATED 29.12.2008 AGREED TO SURRENDER A SUM OF RS.61.65 MA NO.55/PN/2011 LAKHS. IN OUR CONSIDERED OPINION, THE FACTORS NOW BEING CANVASSED BY THE ASSESSEE THROUGH THE MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT HAVE BEEN CONSIDERED IN THE ORIGINAL PROCEEDINGS AND THE PRESENT PETITION MERELY IS A REVIEW OF THE EARLIER DECISION DATED 31.01.2011 ( SUPRA), WHICH IS IMPERMISSIBLE HAVING REGARD TO THE SCOPE AND AMBIT OF SECTION 254(2) OF THE ACT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH DECEMBER, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 04 TH DECEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE