VIJAY MAKHIJA, Kota V. ACIT, CIRCLE-3, KOTA

MA 59/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2225 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B L BHOJWANI
• Keywords: Question of law; Retraction
• Section: 254(2); 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 60/JP/2019 (ARISING OUT OF ITA NO. 345/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2011-12 SHRI PRAKASH MAKHIJA, PROP. M/S YASH TRADERS, OLD DHAN MANDI, KOTA CUKE VS. ACIT, CIRCLE-03, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACSPP3796N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT M.A. NO. 59/JP/2019 (ARISING OUT OF ITA NO. 344/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2011-12 SHRI VIJAY MAKHIJA, C/O M/S BHARAT TRADERS, OLD DHAN MANDI, KOTA 324001 CUKE VS. ACIT, CIRCLE-03, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFTPM8706P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI B. L. BHOJWANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 07/02/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 19/03/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATIONS HAVE BEEN FI LED BY THE RESPECTIVE ASSESSEE AGAINST THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN ITA NO. 345/JP/2016 AND 344/JP/2016 DAT ED 12/02/2019. M.A. NO. 60 & 59/JP/2019 SHRI PRAKASH MAKHIJA, KOTA & SHRI VIJAY MAKHIJA , KOTA VS. ACIT, KOTA 2 2. REFERRING TO THE FINDINGS OF THE TRIBUNAL IN PAR AGRAPH 10 OF ITS ORDER, IT WAS SUBMITTED BY THE LD. AR THAT DURING T HE POST SEARCH INVESTIGATIONS, SH. VIJAY MAKHIJA IN HIS STATEMENT RECORDED U/S 131 NEVER CONFIRMED THE ADMISSION MADE BY SH. PRAKASH M AKHIJA IN LATTERS STATEMENT RECORDED U/S 132(4) OF THE ACT. IT WAS FU RTHER SUBMITTED THAT THE TRIBUNAL HAS RELIED ON THE OBSERVATIONS MADE BY THE LD. CIT(A) WITH REGARD TO IKRARNAMA. HOWEVER, THERE IS NOTHING IN T HE IKRARNAMA WHICH POINTS TOWARDS ANY INVESTMENT MADE BY SH. PRAKASH M AKHIJA AND SH. VIJAY MAKHIJA IN THE MINES. IT WAS ACCORDINGLY SUBM ITTED THAT MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH IS APP ARENT FROM RECORD AND GOES TO THE ROOT OF THE MATTER. ACCORDINGLY, THE OR DER PASSED BY THE TRIBUNAL MAY BE RECALLED FOR AFRESH HEARING. 3. IT WAS FURTHER SUBMITTED BY THE LD. AR THAT SUBS EQUENT TO FILING OF MISC. APPLICATION, THE ORDER HAS BEEN PASSED BY THE HONBLE RAJASTHAN HIGH COURT DATED 16.09.2019 WHEREIN APPEAL OF THE A SSESSEE AGAINST THE ORDER PASSED BY THE TRIBUNAL HAS BEEN DISMISSED STATING THAT NO QUESTION OF LAW ARISES. IT WAS SUBMITTED THAT THE H ONBLE HIGH COURT HAS NOT ADMITTED THE APPEAL DUE TO THE REASONS. THE ISS UE IS QUESTION OF FACT AND NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN SUCH CASES. IN SUCH A CASE, THE ORDER OF THE TRIBUNAL DOES NOT MER GE WITH THE DISMISSAL ORDER OF THE HONBLE HIGH COURT AND THE T RIBUNAL CAN STILL ENTERTAIN THE RECTIFICATION APPLICATION AND IN SUPP ORT, RELIANCE WAS PLACED ON CERTAIN DECISIONS. 4. PER CONTRA, THE LD. DR REFERRED TO THE FINDINGS OF THE TRIBUNAL AND SUBMITTED THAT THE TRIBUNAL HAS TAKEN INTO CONSIDER ATION ALL FACTS AND SUBMISSIONS OF THE ASSESSEE AND THEREAFTER HAS PASS ED THE SPEAKING ORDER. IT WAS FURTHER SUBMITTED THAT THE HONBLE HI GH COURT WHILE M.A. NO. 60 & 59/JP/2019 SHRI PRAKASH MAKHIJA, KOTA & SHRI VIJAY MAKHIJA , KOTA VS. ACIT, KOTA 3 DISMISSING THE APPEAL OF THE ASSESSEE HAS STATED CL EARLY THAT THE AOS DECISION ENDORSED BY THE LOWER APPELLATE AUTHORITIE S IS BASED UPON APPRECIATION OF THE FACTS AND DOCUMENTS AND THE CON CURRENT FINDINGS OF THE FACT WERE THEREFORE UPHELD BY THE HONBLE HIGH COURT. THE MISC. PETITION SO FILED BY THE ASSESSEE THEREFORE DESERVE S TO BE REJECTED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE ORDER OF THE TRIBUNAL AND OTHER MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE MATTER HAS BEEN DULY EXAMINED BY THE TRIBUNAL AND THEREAFT ER THE FINDING HAS BEEN RECORDED AT PARA NO. 10 OF ITS ORDER WHICH REA DS AS UNDER:- 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSE D THE MATERIAL AVAILABLE ON THE RECORD. THE ASSESSEE IN HIS STATE MENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH HAS ADMITTED THA T HE AND HIS BROTHER, VIJAY KUMAR MAKHIJA HAD MADE AN INVESTMENT OF RS 40,00,000 IN THE SAID MINES AND SURRENDERED A SUM OF RS 20,00 ,000 EACH IN HIS AND VIJAY KUMAR MAKHIJA'S HANDS. THE STATEMENT OF V IJAY KUMAR MAKHIJA WAS ALSO RECORDED DURING POST-SEARCH INVEST IGATION U/S 131 WHEREIN HE HAS CONFIRMED THE SURRENDER SO MADE BY H IS BROTHER PRAKASH MAKHIJA. FURTHER, DURING THE COURSE OF SEA RCH, AN ORIGINAL IKARNAMA DATED 17.09.2010 HAS BEEN FOUND WHICH HAS BEEN EXECUTED BY SHRI JAGDISH PANJWANI WITH THE ASSESSEE, HIS BRO THER SHRI VIJAY MAKHIJA, AND KAPIL MARWAH WHEREIN THE LATTER THREE PERSONS HAVE JOINED HANDS AS PARTNERS IN RUNNING OF THE MINE OWNED BY S HRI JAGDISH PANJWANI AND SHARE OF THEIR RESPECTIVE PROFITS AND LOSSES HAVE BEEN STATED THEREIN. THE EXISTENCE AND CONTENTS OF THE SAID AGREEMENT FOUND AT THE PREMISES OF THE ASSESSEE DURING THE CO URSE OF SEARCH REMAIN UNDISPUTED. SHRI JAGDISH PANJWANI IN HIS ST ATEMENT RECORDED U/S 131 OF THE I.T. ACT, 1961 ON 09.11.2011 HAS ALS O ADMITTED THAT HE M.A. NO. 60 & 59/JP/2019 SHRI PRAKASH MAKHIJA, KOTA & SHRI VIJAY MAKHIJA , KOTA VS. ACIT, KOTA 4 WAS ONLY THE NAME LENDER AND ACTUALLY THE INVESTMEN T WAS MADE BY HIS RELATIVES I.E. SHRI PRAKASH MAKHIJA AND SHRI VIJAY MAKHIJA. THE SAID STATEMENT ALSO REMAINS UNREBUTTED BEFORE US. FURTH ER, THE RETRACTION SO MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AF TER A CONSIDERABLE LAPSE OF TIME IS CLEARLY AN AFTERTHOUGHT AND THERE IS NOTHING WHICH SUPPORT SUCH RETRACTION SO MADE BY THE ASSESSEE. I N LIGHT OF ABOVE, WE SEE NO JUSTIFIABLE REASONS TO DISTURB THE DETAILED AND WELL-REASONED FINDINGS SO GIVEN BY THE ASSESSING OFFICER AND THE LD CIT(A). IN THE RESULT, THE GROUND OF APPEAL IS DISMISSED. 6. THEREAFTER, THE HONBLE HIGH COURT HAS ALSO CONF IRMED THE SAID FINDING OF THE TRIBUNAL AND HAS HELD AS UNDER:- AT THE OUTSET, THIS COURT IS OF THE OPINION THAT T HE AOS DECISION ENDORSED BY THE LOWER APPELLATE AUTHORITIES IS BASE D UPON APPRECIATION OF THE FACTS AND DOCUMENTS. FURTHERMORE, THE ASSESS EES PREMISES WERE SEARCHED; THEY YIELDED THE DOCUMENT. IN THE COURSE OF THE SEARCH, THE ASSESSEE MADE CERTAIN ADMISSIONS, ESPECIALLY WITH R ESPECT TO THE AMOUNTS INVESTED. THE LATER RETRACTION MADE MORE TH AN A YEAR AND THREE MONTHS LATER WHEN THIS RETURN WAS FILED ON 15 .01.2013 I.E. STATING JAGDISH PANJWANI WAS NOT THE OWNER OF THE MINES WAS NOT CONCLUSIVE. THE COURT IS ALSO OF THE VIEW THAT THE INITIAL BURD EN OF SHOWING THAT THE TRANSACTION HAD NOT TAKEN PLACE AND STATEMENT MADE EARLIER WAS WHOLLY INCORRECT OR THAT THE DOCUMENTS RECOVERED DID NOT S UPPORT THE FINDINGS, WAS NOT DISLODGED. THE CONCURRENT FINDINGS OF FACT ARE, THEREFORE, WARRANTED. CONCURRENT FINDINGS OF THE ITAT ARE THOS E OF FACT. 7. WE, THEREFORE, FIND THAT THE ORDER HAS BEEN PASS ED BY THE TRIBUNAL AFTER APPRECIATION OF ALL MATERIAL ON RECO RD INCLUDING STATEMENT M.A. NO. 60 & 59/JP/2019 SHRI PRAKASH MAKHIJA, KOTA & SHRI VIJAY MAKHIJA , KOTA VS. ACIT, KOTA 5 RECORDED DURING THE COURSE U/S 132(4) WHICH CARRIES THE EVIDENTIARY VALUE, THE RETRACTION MADE AFTER MADE DURING THE CO URSE OF ASSESSMENT PROCEEDINGS AFTER A CONSIDERABLE LAPSE OF TIME WHIC H WAS NOT ACCEPTED, THE POST SEARCH STATEMENT, THE CONTENTS OF THE AGRE EMENT FOUND AT THE PREMISES OF THE ASSESSEE DURING THE COURSE OF SEARC H. THE ASSESSEE HAS CONTESTED THE SAID FINDINGS OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT AND THE SAME HAS BEEN FURTHER EXAMINED BY THE HONBLE HIGH COURT AND NO FINDING HAS BEEN RECORDED BY THE HONB LE HIGH COURT IN TERMS OF ANY PERVERSITY IN THE ORDER SO PASSED BY T HE TRIBUNAL WHICH HAS BEEN PASSED AFTER CONSIDERING THE MATERIAL AVAI LABLE ON RECORD. THE HONBLE HIGH COURT HAS ALSO HELD THAT THE COURT IS ALSO OF THE VIEW THAT THE INITIAL BURDEN OF SHOWING THAT THE TRANSACTION HAD NOT TAKEN PLACE AND STATEMENT MADE EARLIER WAS WHOLLY INCORRECT OR THAT THE DOCUMENTS RECOVERED DID NOT SUPPORT THE FINDINGS, WAS NOT DIS LODGED. WE THEREFORE FIND THAT THE FINDINGS OF FACTS OF THE TR IBUNAL HAVE BEEN AFFIRMED BY THE HONBLE HIGH COURT AND IN SUCH CIRC UMSTANCES, THERE IS NO BASIS FOR ENTERTAINING THE PRESENT MISC. APPLICA TION SO FILED BY THE ASSESSEE U/S 254(2) OF THE ACT. IN THE RESULT, BOTH THE MISC. APPLICATIONS SO FILED BY THE RESPECTIVE ASSESSEES ARE HEREBY DISMISSED AND DISPOSED OFF ACC ORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 19/03/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/03/2020. M.A. NO. 60 & 59/JP/2019 SHRI PRAKASH MAKHIJA, KOTA & SHRI VIJAY MAKHIJA , KOTA VS. ACIT, KOTA 6 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI PRAKASH MAKHIJA, KOTA SHRI VIJA Y MAKHIJA, KOTA 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-03, KOTA 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 60 & 59/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR