Sidram Narsayya Chilka, Solapur V. DCIT, Cir.-2(2), Solapur

MA 75/PUN/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7871 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-12-2011
• Assessment Year: misc
• Appeal Filed On: 05-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HARESHWAR SHARMA
• Assessee Lawyers: S R KARWA
• Keywords: Document seized; Opportunity of being heard; Additional evidence; Block assessment; Documents seized
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND D. KARUNAKARA RAO, ACCOUNTANT MEMBER M.A. NO. 75/PN/2011 (ARISING FROM ITA NO. 884/PN/2003) (BLOCK PERIOD : 1989-90 TO1999-2000) SIDRAM NARSAYYA CHILKA, SOLAPUR : APPLICANT L/H.: 1) SOU. SAVITRABAL SIDRAM N. CHILKA 2) VYANKATESH SIDRAM CHILKA 3) SHRINIWAS SIDRAM CHILKA 4) GOPAL SIDRAM CHILKA 1339, NEW PACHHA PETH, SOLAPUR 413005 PAN : NOT AVAILABLE VS. DY. COMMISSIONER OF INCOME-TAX, : RESPONDENT CIRCLE-2 [2] SOLAPUR APPLICANT BY : SHRI. S.R. KARWA RESPONDENT BY : SHRI. HARESHWAR SHARMA DATE OF HEARING : 30.12.2011 DATE OF PRONOUNCEMENT : .02.2012 ORDER PER I.C. SUDHIR, JM IN THE APPLICATION UNDER CONSIDERATION, THE APPLIC ANTS HAVE TRIED TO POINT OUT THAT THERE IS MISTAKE APPARENT FROM THE RECORD IN T HE ORDER DATED 24 TH NOVEMBER 2010 OF THE TRIBUNAL IN THEIR APPEALS AND CROSS OBJ ECTION WHICH AS PER THEM NEEDS RECTIFICATION U/S. 254(2) OF THE ACT. THE LD. A.R. REITERATED THE CONTENTS OF THE APPLICATION WITH REQUEST TO RECTIFY THOSE CLAIMED MISTAKES. WE WILL DISCUSS HIS SUBMISSIONS IN THIS REGARD IN OUR FINDING HEREUNDER . 2. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT TH E MAIN GRIEVANCE OF THE APPLICANT IS THAT THE TRIBUNAL SHOULD HAVE DECIDED THE ISSUES RAISED IN THEIR MATTERS BEFORE THE TRIBUNAL ITSELF INSTEAD OF REMANDING THE SAME TO THE FILES OF AUTHORITIES BELOW. LD. D.R. SUBMITTED THAT SUCH ACTION OF THE TRIBUNAL OPTED AFTER CONSIDERING MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 2 THE SUBMISSIONS OF THE PARTIES, ORDERS OF THE AUTHO RITIES BELOW AND MATERIAL AVAILABLE ON RECORD CANNOT BE TERMED AS MISTAKES APPARENT FRO M RECORD IN THE ORDER OF THE TRIBUNAL AND IF UNDER THESE CIRCUMSTANCES, THE PRES ENT APPLICATION IS ALLOWED, IT WOULD BE AMOUNTING TO REVIEW OF ITS ORDER BY THE TR IBUNAL WHICH IS NOT PERMITTED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT A ND IN SUCH A CIRCUMSTANCES, THE ONLY REMEDY AVAILABLE WITH THE APPLICANTS IS TO PRE FER APPEAL U/S. 260(A) OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL TO THE HONBLE J URISDICTIONAL HIGH COURT. 3. HAVING GONE THROUGH THE CONTENTS OF THE APPLICAT ION IN VIEW OF THE SUBMISSIONS OF THE PARTIES AND THE ORDER OF THE TR IBUNAL, WE FIND THAT THE APPLICANTS HAVE 3 GRIEVANCES AGAINST THE ORDER DATED 24 TH NOVEMBER 2010 OF THE TRIBUNAL, WHICH AS PER THE APPLICANTS ARE MISTAKES APPARENT F ROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH CAN BE RECTIFIED U/S. 254(2) OF THE ACT. THE FIRST GRIEVANCE OF THE APPLICANTS IS THAT WHILE DECIDING THE ISSUE RAISED IN ADDITIONAL GROUND NOS. 1, 2, 3 & 4, THE TRIBUNAL SHOULD NOT HAVE REMANDED THE MATTER TO THE FILE OF THE LD CIT(A) TO VERIFY THE CONTENTION OF THE ASSESSEE THAT THE A.O HAS NOT ISSUED NOTICE U/S. 143(2) TO THE ASSESSEE TO ATTEND OFFICE OR CAUSED TO PROD UCE ANY EVIDENCE ON WHICH THE ASSESSEE HAD RELIED IN SUPPORT OF THE RETURN IN RE LATION TO THE ADDITION MADE ON THE BASIS OF THE DOCUMENTS DETAILED IN ITEMS (A) TO (J) OF ADDITIONAL GROUND NO. 4, ESPECIALLY WHEN ALL THE RELATED DOCUMENTS ARE ON RE CORD. THE LD. A.R. SUBMITTED THAT SINCE ENTIRE MATERIAL IS ON RECORD, THERE WAS NO NEED TO INVESTIGATE ANY FURTHER ABOUT THE FACTS, HENCE REMANDING THE MATTER BY THE TRIBUNAL TO THE FILE OF THE LD CIT(A) HAS RESULTED IN MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. HAVING GONE THROUGH PARA NOS. 25 & 26 OF THE ORDER OF THE TRIBUNAL AS WELL AS MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE TRI BUNAL HAS PRINCIPALLY AGREED WITH THE CONTENTION OF THE LD. A.R. ON THE ISSUE THAT DE CISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (2010), 229 CT R (SC) 219 IS APPLICABLE IN THE CASE OF THE ASSESSEE WHEREIN THE HONBLE SUPREME CO URT HAS BEEN PLEASED TO HOLD THAT WHEN SEC. 158(B) SPECIFICALLY REFERRED TO APPL ICABILITY OF SECTION 143(2), ITS MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 3 PROVISO CANNOT BE EXCLUDED, THEREFORE, IF THE A.O F OR ANY REASON, REPUDIATES, THE RETURN WAS FILED BY THE ASSESSEE IN RESPONSE TO A N OTICE U/S. 158 BC(A), HE MUST NECESSARILY ISSUE NOTICE U/S. 143(2) WITHIN THE TIM E PRESCRIBED IN THE PROVISO TO SECTION 143(2). SINCE THE RECORD OF A.O RELATING T O THE ASSESSEES WAS NOT AVAILABLE BEFORE THE TRIBUNAL FOR VERIFICATION OF THE CLAIMED FACT BY THE ASSESSEES, THE TRIBUNAL THOUGHT IT FIT TO REMAND THE MATTER TO THE FILE OF LD CIT(A) TO VERIFY THE CONTENTION OF THE ASSESSEE THAT A.O HAD NOT ISSUED NOTICE U/S. 1 43(3) TO THE ASSESSEE TO ATTEND THE OFFICE OR CAUSED TO PRODUCE ANY EVIDENCE ON WHI CH ASSESSEE HAD RELIED IN SUPPORT OF THE RETURN IN RELATION TO THE ADDITION M ADE ON THE BASIS OF THE STATED DOCUMENTS DETAILED IN ITEMS (A) TO (J) OF ADDITIONA L GROUND NO. 4 AND DECIDE THE ISSUE RAISED IN ADDITIONAL GROUND NO. 4 IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (SUPR A) AFTER AFFORDING ADEQUATE OPPORTUNITIES OF BEING HEARD TO THE PARTIES. THE A DDITIONAL GROUND NO. 4 WAS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. SIM ILAR ADDITIONS WERE QUESTIONED ON DIFFERENT BASIS IN ADDITIONAL GROUND NOS. 1, 2 & 3 MAINLY ON THE BASIS THAT RELATED DOCUMENTS WERE NOT FOUND AND SEIZED FROM THE POSSES SION OF THE ASSESSEE. THE TRIBUNAL THUS OPTED TO DEAL WITH THESE ISSUES ALON G WITH GENERAL GROUNDS WHEREIN THESE ADDITIONS HAD ALSO BEEN QUESTIONED BY THE ASS ESSEE ON ITS MERITS IN GROUND NOS. 1 TO 7 OF THE MEMO OF THE APPEAL PREFERRED BY THE ASSESSEE. WE THUS DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL ON TH E ISSUE RAISED IN ADDITIONAL GROUND NO. 4 AND 1 TO 3, PARTICULARLY THE MISTAKE APPAREN T FROM RECORD IN THE ORDER OF THE TRIBUNAL WITHIN THE MEANING OF THE PROVISIONS U/S. 254(2) OF THE ACT. THE CONTENTION OF THE LD. A.R. IN THIS REGARD IS THUS R EJECTED. 3.1. WE FIND THAT THERE IS TYPOGRAPHICAL MISTAKE IN THE LAST ONE SENTENCE OF PARA NO. 26 OF THE ORDER OF THE TRIBUNAL WHEREIN IN PLAC E OF THE CORRECT SECTION 143(2), INADVERTENTLY AND UNWITTINGLY U/S. 143(3) HAS BEE N TYPED. WE RECTIFY THIS MISTAKE WITH THIS DIRECTION THAT HENCEFORTH THE WRONGLY TYP ED U/S. 143(3) IN THE SAID SENTENCE OF THE PARAGRAPH WILL BE READ AND UNDERST OOD AS U/S. 143(2). MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 4 4. THE SECOND GRIEVANCE OF THE APPLICANT IS THAT IN SUPPORT OF GROUND NO. 3 AND ADDITIONAL GROUND NO.2 (C ) WHICH HAS BEEN DEALT BY THE TRIBUNAL IN PARA NOS. 36 TO 39.1 OF THE ORDER, THERE IS MISTAKE IN THE ORDER OF THE TRIBUNAL IN REMANDING MATTER TO THE FILE OF LD CIT(A), DESPITE THIS FACT THAT TH E ENTIRE MATERIAL WAS ON RECORD AND ALL THE FACTS WERE ALREADY IN EXISTENCE BEFORE THE LOWER AUTHORITIES. THE SUBMISSION OF THE LD A.R. REMAINED THAT AGAINST THE ADDITION O F RS. 45,714/- MADE IN THE BLOCK ASSESSMENT ORDER, THE LD CIT(A) HAS MADE ADDITION O F RS. 1,20,538/-. THE LD CIT(A) HAS UPHELD THE ADDITION OF RS. 45,714/- MADE BY THE A.O ON THE BASIS OF SEIZED DOCUMENTS PAPER NO. 12, 14, 16 & 17 ON THE BASIS OF INTEREST REGARDING PURCHASE OF GOLD ORNAMENTS FROM S.A. BILA. LD CIT(A ) FURTHER NOTED THAT IT IS ALSO EVIDENT FROM THE SAID DOCUMENT THAT GOLD OF 172.0 10 GRAMS WERE GIVEN ADDITIONALLY TO JEWELER WHICH HAS REMAINED UNEXPLA INED. LD CIT(A) THUS, IN ADDITION TO RS. 45,714/-, MADE FURTHER ADDITION OF RS. 74,82 4/- ON THE BASIS THAT ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF GOLD JEWELLERY OF 172.010 GRAMS GIVEN TO THE JEWELER. THE FURTHER CONTENTION OF THE LD. A.R REM AINED THAT IN SUPPORT OF THE GROUND NO. 3 AS WELL AS ADDITIONAL GROUND NO. 2(C ) RELATING TO THE DOCUMENT IN QUESTION THAT IT WAS NOT FOUND FROM THE POSSESSION OF THE ASSESSEE BUT FROM THE COMMON RESIDENCE OF MEMBERS OF CHILKA GROUP. 5. WE FIND THAT THE ISSUE RAISED IN GROUND NO. 3 AN D ADDITIONAL GROUND NO. 2(C ) HAS BEEN DEALT WITH IN DETAIL BY THE TRIBUNAL IN P ARA NOS. 36 TO 39.1 OF THE ORDER OF THE TRIBUNAL. THE TRIBUNAL AFTER DISCUSSING THE F ACTS OF THE CASE AND APPROACH OF THE AUTHORITY BELOW HAS GIVEN ITS FINDING IN PARA NO.39 ON THE GROUND THAT LD CIT(A) HAS NOT ENTERTAINED SOME DOCUMENTS AND HAS R EJECTED THE REQUEST OF THE ASSESSEE TO ALL THESE DOCUMENTS AS ADDITIONAL EVID ENCE UNDER RULE 46A(1) OF THE I.T. RULES ON THE BASIS THAT THOUGH THESE LETTERS A RE DATED 15.11.2000, THE SAME SHOULD HAVE BEEN FURNISHED BEFORE THE A.O. THE TRI BUNAL HAS FURTHER NOTED THE OBSERVATION OF THE LD CIT(A) REGARDING THOSE DOCUM ENTS/LETTERS THAT THE LETTERS MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 5 MERELY CONTEND THUMP IMPRESSION OF CERTAIN PERSONS, BUT THESE PERSONS WERE NEVER PRODUCED BEFORE THE A.O NOR AT THE APPELLATE STAGE S. UNDER THESE CIRCUMSTANCES, TRIBUNAL FOUND IT FIT TO REMAND THE MATTER TO THE F ILE OF THE LD CIT(A) TO ALLOW THE REQUEST OF THE ASSESSEE BY ACCEPTING THE ABOVE STAT ED LETTERS AS ADDITIONAL EVIDENCE UNDER RULE 46A(1) OF THE I.T. RULES AND DECIDE THE ISSUE AFRESH AFTER GETTING THESE ADDITIONAL EVIDENCE VERIFIED BY THE A.O AFFORDING OPPORTUNITY OF BEING HEARD TO THE PARTIES IN THIS REGARD. THE GROUND NO. 3 QUESTIONI NG THE ADDITION OF RS.1,20,538/- MADE BY THE A.O, LD CIT(A) HAS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. THE ADDITIONAL GROUND NO. 2(C) HAS ALSO BEEN DECIDED BY THE TRIBUNAL ON ITS MERITS IN PARA 39.1 OF THE ORDER WITH THIS FINDING THAT NAME OF THE ASSESSEE IS MENTIONED IN THE DOCUMENTS SEIZED AND IT ALSO REMAINS THE EXPLAN ATION OF THE ASSESSEE SINCE BEGINNING THAT HIS SISTERS HAD HANDED OVER THE OL D GOLD JEWELLERY TO HIM TO CONVERT INTO NEW JEWELLERY FROM THE JEWELLERY MENTIONED IN THE DOCUMENT. WE THUS DO NOT FIND MISTAKE, ATLEAST MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. T HE SAME IS THUS REJECTED. 6. THE THIRD GRIEVANCE OF THE ASSESSEE IS THAT THER E IS A MISTAKE IN THE ORDER OF THE TRIBUNAL ON PAGE NO. 22, CLAUSE NO. 25 WHEREIN ADDITION OF RS. 1,25,030/- BASED ON PAPER NO. 22 TO 24, 33 TO 37 OF LOOSE PAPER NO. 1 HAS BEEN QUESTION IN GROUND NO. 1 AND ADDITIONAL GROUND NO. 2(A). THE LD. A.R . HAS SUBMITTED THAT WHILE DECIDING THE ISSUE, THE TRIBUNAL IS BOUND TO CONSID ER ALL THE FACTS STATED IN THE ORDER AS WELL AS GIVEN IN WRITTEN SUBMISSION AND IT HAS B EEN ALLEGED THAT THE MEMBERS HAVE NOT READ THE ORDER CAREFULLY PASSED BY THE A.O AS WELL AS LD. CIT(A). IT HAS BEEN FURTHER ALLEGED THAT THE MEMBERS HAVE ALSO NOT READ THE ENTIRE WRITTEN SUBMISSION SUBMITTED BY THE APPELLANTS AND ALSO ORA L ARGUMENTS ABOUT THE SAME. IT HAS BEEN ALSO ALLEGED THAT THE TRIBUNAL HAS STAT ED INCORRECT FACTS. 7. WE FIND THAT GROUND NO. 1 AND ADDITIONAL GROUND NO. 2(A) HAS BEEN DEALT WITH BY THE TRIBUNAL IN PARA NOS. 27 TO 29 OF THE ORDER AT PAGE NO. 24 TO 28 OF THE MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 6 ORDER. IN THESE GROUNDS, ADDITION OF RS. 1,25,030/ - BASED ON PAGE NOS. 22 TO 24 AND 33 TO 37 OF LOOSE PAPER NO. 1 HAS BEEN QUESTION . THUS IT IS WRONG ON THE PART OF THE APPLICANTS TO SAY THAT PAGE NO. 22, PARA NO. 25 OF THE ORDER RELATING TO THE ISSUE OF ADDITION OF RS. 1,25,030/- IS REQUIRED REC TIFICATION. WE FIND THAT AFTER STATING THAT SOME RECTIFICATION IS REQUIRED IN CLAUSE 25, PAGE NO. 22 OF THE ORDER OF THE TRI- BUNAL, THE APPLICANTS HAVE ACTUALLY REITERATED THE CONTENTS OF PARA NOS. 27 TO 29 IN PARA NO. 14 OF THE APPLICATION. IN PARA NO. 13 OF THE APPLICATION, THE APPLICANTS HAVE MADE GENERAL ALLEGATIONS WITHOUT SPECIFYING A S TO WHAT MISTAKE HAS BEEN COMMITTED BY THE TRIBUNAL IN ITS ORDER ON THE ISSUE WHICH IS MISTAKE APPARENT FROM RECORD WHICH NEEDS RECTIFICATION U/S. 254(2) OF TH E ACT. IN ABSENCE OF SUCH SPECIFIC SUBMISSION REGARDING THE MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHILE DECIDING THE ISSUE RAISED IN GROUN D NO. 1 AND ADDITIONAL GROUND NO. 2(A) RELATING TO THE ADDITIONAL OF RS. 1,25,0930/-, WE DO NOT FIND SUBSTANCE IN THE CONTENTION AND ALLEGATIONS OF THE LD. A.R. THAT THE RE IS MISTAKE IN THE ORDER OF THE TRIBUNAL WHILE DECIDING THE ISSUE RAISED IN THE GR OUNDS. WE THUS DO NOT FIND SUBSTANCE IN THE ALLEGATION LEVELED IN THE APPLICA TION IN THIS REGARD. THE SAME IS REJECTED. 8. BEFORE PARTING WITH THE ORDER IN THE APPLICATION , WE RECORD OVER HERE THAT ON PERUSAL OF A TYPOGRAPHICAL MISTAKE IN PARA NO. 26, PAGE NO. 23 OF THE ORDER OF THE TRIBUNAL REGARDING TYPING OF CORRECT SECTION U/S. 143(2), WE SUO MOTTO HAVE RECTIFIED THE ORDER TO THIS EFFECT HEREINABOVE IN PARA NOS. 3.1 AT PAGE NOS. 3 & 4 OF THE PRESENT ORDER. THUS, IT WAS SUO MOTTO ORDER ON THE PART OF THE BENCH AND NOT AT THE REQUEST OF THE APPLICANTS. 9. CONSEQUENTLY, THE MISCELLANEOUS APPLICATION IS R EJECTED. MA . NO 75/PN/2011 SIDRAM NARSAYYA CHILKA, BLOCK PERIOD: 1989-90 TO 1999- 2000) PAGE OF 7 7 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24 TH FEBRUARY 2012. SD/- SD/- (D. KARUNAKARA RAO) (I.C. SUD HIR) ACCOUNTNANT MEMBER JUDICIAL MEMBER PUNE, DATED 24TH FEBRUARY, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPLICANT0 2. THE RESPONDENT 3. THE CIT- I,I/II, KOLHAPUR/CIT (CENTRAL), PUNE 4. THE CIT(A)- KOLHAPUR 5. THE D.R. ITAT B BENCH, PUNE 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE