M/S JAY BUILDERS, Ahmedabad V. THE ASSTT. CIT, CIRCLE -6(2), Ahmedabad

MA 59/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7441 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 28-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: DIVYAKANT PARIKH
• Keywords: Income from undisclosed sources

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. MOHAN A LANKAMONY, AM) M. A. NO.59 AND 60/AHD/2011 ((IN ITA NO.1821 AND 1822/AHD/2003:A.Y. 1985-86 AND 1987-88) M/S. JAY BUILDER, 18, ALKAPURI SOCIETY, GULBAI TEKRA, AHMEDABAD PA NO. ADIPM 8687 Q VS THE A. C. I. T., CIRCLE 6(2), AHMEDABAD (APPLICANT) (RESPONDENT) APPLICANT BY SHRI DIVYAKANT PARIKH, AR RESPONDENT BY SHRI B.L. YADAV, SR. DR DATE OF HEARING: 06-01-2012 DATE OF PRONOUNCEMENT: 06-01-2012 ORDER PER BHAVNESH SAINI : BOTH THE MISC. APPLICATIONS OF THE ASSESSEE ARE FILED AGAINST THE ORDER OF THE TRI BUNAL DATED 17 TH SEPTEMBER, 2010. 2. THE ASSESSEE RAISED SEVERAL GROUNDS OF APPEAL IN BOTH THE APPEALS FOR ASSESSMENT YEAR 1985-86 AND 1987-88. TH E ORDER OF THE TRIBUNAL REVEALS THAT THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE AT THAT TIME DID NOT PRESS SEVERAL GROUNDS OF APPEA L AND ONLY ARGUED ON WORKING OF PROFIT ON CASH PORTION. IN THIS CASE, DURING THE COURSE OF SEARCH IT WAS FOUND THAT THE ASSESSEE HAD RECEIVED CASH AS WELL AS CHEQUES WHILE SELLING PROPERTIES CONSTRUCTED BY HIM . THE ASSESSEE AGREED TO THE EARNING OF UNACCOUNTED INCOME WITH RE GARD TO SALE OF MA NO.59 AND 60/AHD/2011 (IN ITA NO.1821 AND 1822/AHD/2003 - AY 1985-86 AND 1 987-88) M/S. JAY BUILDER VS ACIT, CIRCLE 6(2), AHMEDABAD 2 THE PROPERTIES WHICH HAVE NOT BEEN DISCLOSED TO THE REVENUE DEPARTMENT. IN THE ASSESSMENT YEAR 1985-86, THE AO ISSUED SHOW CAUSE NOTICE ASKING THE ASSESSEE TO OFFER TAX ON RE CEIPTS IN CASH OR BY CHEQUES. THE AO APPLIED GROSS PROFIT RATE OF 10% ON THE CHEQUE AMOUNTS AND TAXED THE ENTIRE AMOUNT OF THE CASH AMO UNTING TO RS.42,36,667/- RECEIVED AS ON MONEY. THE LEARNED CI T(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSE E WAS LIABLE TO BE TAXED FOR THE ENTIRE SUM RECEIVED IN CASH. SIMILARL Y, IN ASSESSMENT YEAR 1987-88, THE AO FOUND THAT ON MONEY RECEIVED I N CASH AMOUNTING TO RS.21 LACS AND ADDITION WAS ACCORDINGL Y CONFIRMED BY THE LEARNED CIT(A). AGAINST THIS FINDING OF THE LEA RNED CIT(A), THE ASSESSEE PREFERRED BOTH THE APPEALS. DURING THE COU RSE OF ARGUMENTS THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE AT T HAT TIME SUBMITTED THAT SAME RATE OF PROFIT WHICH WAS APPLIE D ON CHEQUES MAY BE APPLIED FOR CASH ALSO BECAUSE THE ASSESSEE MUST HAVE INCURRED CERTAIN EXPENSES WHILE RECEIVING THE CASH AMOUNT. T HE TRIBUNAL CONSIDERING THE ENTIRE FACTS OF THE CASE IN THE LIG HT OF THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE DIRECTED TH E AO TO APPLY NET PROFIT RATE OF 15% ON CASH AMOUNT AND TO TREAT THE RESULTANT FIGURE AS INCOME OF THE ASSESSEE RATHER THAN TAXING THE ENTIR E SUM OF CASH AS ON MONEY. BOTH THE APPEALS OF THE ASSESSEE WERE ACC ORDINGLY ALLOWED PARTLY. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT SOME OF THE GROUNDS HAVE NOT BEEN CONSIDERED BY THE TRIBUNA L WITH REGARD TO UPHOLDING THE ASSESSMENT BY THE LEARNED CIT(A) ON S OME MONTHS INSTEAD OF FINANCIAL YEAR BASIS. HE HAS SUBMITTED T HAT THE ASSESSEE MA NO.59 AND 60/AHD/2011 (IN ITA NO.1821 AND 1822/AHD/2003 - AY 1985-86 AND 1 987-88) M/S. JAY BUILDER VS ACIT, CIRCLE 6(2), AHMEDABAD 3 DID NOT DISPUTE APPLICATION OF 15% PROFIT RATE ON C ASH AMOUNT RECEIVED AS ON MONEY AS IS HELD BY THE TRIBUNAL. 4. THE LEARNED DR SUBMITTED THAT SINCE THE LEARNED COUNSEL FOR THE ASSESSEE ONLY PRESSED FOR ONE ISSUE OF APPLICAT ION OF PROFIT RATE ON THE CASH PORTION DURING THE COURSE OF ARGUMENTS WHICH HAVE BEEN CONSIDERED AND DECIDED ON MERIT, THEREFORE, BOTH TH E MISC. APPLICATIONS OF THE ASSESSEE ARE NOT MAINTAINABLE. THERE IS NO MISTAKE APPARENT ON RECORD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY MERIT IN BOTH THE MISC. APPLICATIONS OF THE ASSESSE E. THE LEARNED COUNSEL FOR THE ASSESSEE APPEARING AT THE TIME OF A RGUMENT OF BOTH THE APPEALS DID NOT PRESS THE GROUNDS OF APPEALS EX CEPT ARGUING ON THE PROFIT RATE ON CASH PORTION. WHATEVER SUBMISSIO NS WERE MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE HAVE BEEN DULY CONSIDERED AND CONSIDERING THE HISTORY OF THE CASE, PROFIT RATE OF 15% WAS APPLIED FOR CASH AMOUNT AS AGAINST PROFIT RATE OF 10% APPLIED F OR THE CHEQUES AMOUNT. IT WOULD, THEREFORE, PROVE THAT THERE WAS NO OBLIGATION ON THE PART OF THE TRIBUNAL TO DECIDE THE GROUNDS WHICH HA VE NOT BEEN ARGUED OR PRESSED BY THE LEARNED COUNSEL APPEARING AT THE TIME OF ARGUING THE MAIN APPEALS. THESE MISC. APPLICATIONS ARE NOT ARGUED BY THE LEARNED COUNSEL FOR THE ASSESSEE WHO HAD ARG UED THE APPEALS BEFORE THE TRIBUNAL AT THAT TIME. THERE IS CHANGE I N THE LEARNED COUNSEL FOR ASSESSEE NOW INSTEAD OF THE LEARNED COU NSEL ARGUING APPEAL BEFORE THE TRIBUNAL AND NOW IN THE MISC. APP LICATIONS. VIRTUALLY, THE ASSESSEE IS TAKING A CONTRARY STAND AGAINST THE MA NO.59 AND 60/AHD/2011 (IN ITA NO.1821 AND 1822/AHD/2003 - AY 1985-86 AND 1 987-88) M/S. JAY BUILDER VS ACIT, CIRCLE 6(2), AHMEDABAD 4 ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE A SSESSEE AT THE TIME OF HEARING OF THE APPEALS. BOTH THE MISC. APPL ICATIONS ARE, THEREFORE, NOT MAINTAINABLE. NOTHING IS EXPLAINED A S TO WHY THERE IS A CHANGE IN THE STAND OF THE ASSESSEE SUBSEQUENTLY AF TER DECISION ON THE MAIN APPEALS DECIDED BY THE TRIBUNAL. WE, THERE FORE, FIND THAT THERE IS NO MISTAKE APPARENT ON RECORD. BOTH THE AP PEALS OF THE ASSESSEE HAVE BEEN DECIDED ON MERIT IN THE LIGHT OF THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE WHO ARGUED THE APPEAL AT THE TIME OF FINAL DISPOSAL OF BOTH THE APPEALS. WHATEVE R SUBMISSIONS WERE RAISED AT THE TIME OF ARGUING THE APPEALS HAVE BEEN ADMITTEDLY TAKEN INTO CONSIDERATION WHILE DECIDING BOTH THE AP PEALS. THE LEARNED COUNSEL FOR THE ASSESSEE WHO ARGUED THE MAIN APPEAL S DID NOT DISPUTE THE QUANTUM OF CASH RECEIVED AS ON MONEY IN BOTH THE ASSESSMENT YEARS AND ALSO DID NOT DISPUTE THE YEAR OF TAXING THE UNACCOUNTED INCOME. NO MISTAKE IS POINTED OUT IN TH E SAME. IT THEREFORE, APPEARS THAT DUE TO CHANGE OF THE COUNSE L THE ASSESSEE FILED THE FRIVOLOUS MISC. APPLICATIONS DESPITE GETT ING SUBSTANTIAL RELIEF FROM THE TRIBUNAL. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF ANAMIKA BUILDERS, 251 ITR 585, HELD THAT TRIBUNAL SHOULD NOT CHANGE THE VIEW ALREADY TAKEN IN THE MATTER. IT IS ALSO WELL SETTLED LAW THAT TRIBUNAL HAS NO POWER TO REVIEW IT S EARLIER ORDERS. WE RELY UPON THE DECISION OF THE HONBLE ANDHRA PRADES H HIGH COURT IN THE CASE OF IDEAL ENGINEERING 251 ITR, 743, DECISIO N OF THE HONBLE M. P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING AND LEASING, 257 ITR 235 AND THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF ADIYER HOTEL, 294 ITR 155. ITAT AMRITS AR BENCH IN THE CASE OF ACIT VS J & K BANK LTD., 290 ITR (AT) PAGE 1 HELD THAT MA NO.59 AND 60/AHD/2011 (IN ITA NO.1821 AND 1822/AHD/2003 - AY 1985-86 AND 1 987-88) M/S. JAY BUILDER VS ACIT, CIRCLE 6(2), AHMEDABAD 5 THE ADDITIONAL GROUND NOT AGITATED AND NOT PRESSED FOR ADMISSION EVEN WHEN APPEAL WAS FINALLY HEARD, TRIBU NAL JUSTIFIED IN REFUSING TO CONSIDER ADDITIONAL GROUND. SEVERAL DECISIONS IN SUPPORT OF THIS FINDING INCLUDING OF THE HONBLE SU PREME COURT AND HONBLE KERALA HIGH COURT WERE TAKEN INTO CONSIDERA TION WHILE DISMISSING THE MISC. APPLICATION. 6. DURING THE COURSE OF ARGUMENT, WE HAVE SHOW CAUS ED THE LEARNED COUNSEL FOR THE ASSESSEE TO EXPLAIN AS TO W HY COST SHOULD NOT BE IMPOSED UPON THE ASSESSEE FOR FILING FALSE A ND FRIVOLOUS MISC. APPLICATIONS IN THE MATTER. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT ARGUE ON THIS POINT AND DID NOT EXPLAIN AS TO W HY THE COST SHOULD NOT BE IMPOSED WHILE DISMISSING THE MISC. APPLICATI ONS. VIRTUALLY, THE FACTS NOTED ABOVE PROVE ON RECORD THAT THE ASSESSEE HAS FILED THE MISC. APPLICATIONS WITHOUT JUST CAUSE AND AS SUCH I N OUR VIEW THESE ARE THE FIT CASES IN WHICH THE MISC. APPLICATIONS S HOULD BE DISMISSED WITH COST. IN VIEW OF THE ABOVE DISCUSSION, BOTH TH E MISC. APPLICATIONS ARE DISMISSED WITH COST OF RS.5,000/- EACH IN BOTH THE MISC. APPLICATIONS WHICH THE ASSESSEE SHALL PAY TO THE RE VENUE DEPARTMENT WITHIN ONE MONTH FROM THE DATE OF THIS ORDER OTHERW ISE THE AO WILL BE AT LIBERTY TO RECOVER THE SAME FROM THE ASSESSEE AS ARREARS OF TAXES. BOTH THE MISC. APPLICATIONS ARE ACCORDINGLY DISMISS ED WITH COST. MA NO.59 AND 60/AHD/2011 (IN ITA NO.1821 AND 1822/AHD/2003 - AY 1985-86 AND 1 987-88) M/S. JAY BUILDER VS ACIT, CIRCLE 6(2), AHMEDABAD 6 7. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF T HE ASSESSEE ARE DISMISSED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD