RAJASTHAN LAND DEVELOPERS PVT. LTD., Jaipur V. ITO, Jaipur

MA 94/JPR/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4823 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 25-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA JCIT DHK
• Keywords: Additional evidence
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH JES'K LH- 'KEKZ] YS[KK LNL; ,O A H JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM M.A. NOS. 94 & 95/JP/2018 (ARISING IN VK;DJ VIHY LA- @ ITA NO. 418/JP/2016 & 109/JP/2017) FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2006-07 & 2007-08. M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., 69/4, NEW SANGANER ROAD, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD-2(3), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCR 5397 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MOHIT KHANDELWAL (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI ASHOK KHANNA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.05.2019. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 03/06/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THESE TWO MISCELLANEOUS APPLICATIONS BY THE ASSESS EE ARE AGAINST THE A COMPOSITE ORDER DATED 7 TH FEBRUARY, 2018 OF THIS TRIBUNAL WHEREBY THE APPEAL S OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2006-07 AND 0 7-08 WERE DISPOSED OFF. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE APPLICANT HAS STATED AT BAR THAT THERE IS NO APPARENT MISTAKE IN THE IMP UGNED ORDER SO FAR AS THE FINDINGS 2 MA NOS. 94 & 95/JP/2018 M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR. FOR THE ASSESSMENT YEAR 2006-07 ARE CONCERNED AND A SSESSEE HAS ALREADY FILED AN APPEAL BEFORE THE HONBLE HIGH COURT. THUS THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE DOES NOT PRESS MISCELLANEOUS APPLICATION N O. 94/JP/2018. ACCORDINGLY THE M.A. NO. 94/JP/2018 FOR THE ASSESSMENT YEAR 2006-07 IS DISMISSED AS NOT PRESSED. 3. AS REGARDS THE M.A. NO. 95/JP/2018, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL HAS NOT ADJUDICATED GRO UND NO. 3 OF THE APPEAL FOR THE ASSESSMENT YEAR 2007-08. HE HAS REFERRED TO PARA 3. 4 AND 3.5 OF THE IMPUGNED ORDER AND SUBMITTED THAT ONLY GROUND NO. 1 WAS ADJU DICATED BY THE TRIBUNAL VIDE PARA 3.4 OF THE IMPUGNED ORDER WHEREAS GROUND NOS. 2, 3 & 4 WERE CONSIDERED AS COMMON TO THE ASSESSMENT YEAR 2006-07 AND ACCORDING LY DISPOSED OFF. THE LD. A/R HAS POINTED OUT THAT GROUND NO. 3 FOR THE ASSESSMEN T YEAR 2007-08 IS NOT COMMON TO ANY OF THE GROUNDS FOR THE ASSESSMENT YEAR 2006- 07, THEREFORE, THIS GROUND REMAINED UN-ADJUDICATED. EVEN OTHERWISE, THE TRIBUN AL HAS NOT DISCUSSED EITHER ANY FACT OR CONTENTION IN RESPECT OF GROUND NO. 3 FOR T HE ASSESSMENT YEAR 2007-08. HENCE THE LD. A/R HAS PLEADED THAT THE IMPUGNED ORD ER MAY BE RECALLED FOR HEARING AND ADJUDICATION OF GROUND NO. 3 FOR THE ASSESSMENT YEAR 2007-08. 4. ON THE OTHER HAND, THE LD. D/R HAS OBJECTED TO T HE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND SUBMITTED THAT THE TRIBUNAL HAS ALREADY REPRODUCED THE FINDING OF THE LD. CIT (A) IN PARA 3.4 OF THE IMPUGNED ORDE R AND THE SAID PART OF THE ORDER OF THE LD. CIT (A) ALSO COVERS THE GROUND NO. 3 OF THE ASSESSMENT YEAR 2007-08. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. ON CAREFUL PERUSAL OF THE IMPUGNED ORDER, W E FIND THAT THE TRIBUNAL IN PARA 3.4 OF THE IMPUGNED ORDER HAS DECIDED THE GROUND NO . 1 OF THE ASSESSEES APPEAL FOR 3 MA NOS. 94 & 95/JP/2018 M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR. ASSESSMENT YEAR 2007-08. FOR READY REFERENCE, WE RE PRODUCE PARA 3.4 AND 3.5 AS UNDER :- 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) VIDE ITS JUDGEM ENT DATED 30-12-2016 FOR THE ASSESSMENT YEAR 2007-08 HAD TAKEN INTO CONSIDERATIO N THE JUDGEMENT DATED 20-11- 2015 OF HON'BLE UPPER DISTRICT JUDGE, ROOM NO. 19, JAIPUR MAHANAGAR AND REJECTED THE CONTENTION OF THE ASSESSEE BY OBSERVING AS UNDE R (PAGE 20) OF LD. CIT(A)S ORDER):- (V) FURTHER VIDE ABOVE REFERRED ORDER, THE HON'BL E ADJ HAS HELD AS UNDER:- QYR% OKNH DEIUH DK ;G OKN FO:} IZFROKNHX.K ,DI{KH; LO;; FMD ZH DH VKN SK FN;K TKRK GS FD OKFN DEIUH O IZFROKNH DEIUH DS E/; FU'IKFNR ,E-VKS-; W FNUKAD 14-07-2007 D S RGR GH OKNH DEIUH OF.KZR KRKSZ O IZKIR JKFK D S VUQLKJ GH IZFROKNH DEIUH DKS HKWFE MIYC/K DJOKUS DK NKF;RO J[KRH GSA FTLD S QYLO:I ;G LFKKBZ FU'KS/KKKK IZNKU DH TKRH GSA FD IZFROKNHX.K DEIUH ,E-VKS-; W FNUKAD 14-07-2007 E SA OF.KZR KRKSZ DS FO:} FDLH IZDKJ DH DKSBZ DK;ZOKGH UGH DJ SA (VI) THUS IT IS EVIDENT FROM THE ABOVE THAT THE I SSUE OF GENUINENESS OR OTHERWISE OF THE MOU DATED 14-07-2007 WAS NOT BEFOR E THE COURT OF HON'BLE ADJ AND THE MOU DATED 22-03-2006 WAS NOT PL ACED BEFORE THE HON'BLE COURT, ACCORDING TO WHICH BALANCE PAYMENT O F RS. 13.10 CRORE WAS REQUIRED TO BE PAID TO BEFORE 04-06-2006, OUT OF TH E SALE CONSIDERATION OF RS. 15,87,50,000/-. MOREOVER, THE ABOVE ORDER WAS P ASSED EX-PARTE IN THE ABSENCE OF THE RESPONDENTS U TURN AND SHRI NIKHIL T RIPATHI. THUS THE CONTENTION OF THE A.R. IS NOT CORRECT AND THUS HERE BY REJECTED. (VII) IT MAY BE MENTIONED THAT THE APPELLANT HAS FA ILED TO CONTROVERT THE FINDINGS OF THE AO AS STATED IN THE ASSESSMENT ORDE R AND THE REMAND REPORT. THEREFORE, IN VIEW OF THE ABOVE DISCUSSION AND LOOK ING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING ADDITION OF RS. 3.26 CRORES U/S 68 OF THE ACT AND H ENCE THE SAME IS HEREBY SUSTAINED. IT IS NOTED THAT FILING OF ADDITIONAL EVIDENCE BY T HE LD.AR OF THE ASSESSEE HAS NO RELEVANCE AS THE SAME HAS ALREADY BEEN TAKEN INTO C ONSIDERATION IN THE CASE OF THE 4 MA NOS. 94 & 95/JP/2018 M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR. ASSESSEE FOR THE ASSESSMENT YEAR 2007-08. IN THIS V IEW OF THE MATTER AND FACTS AND CIRCUMSTANCES OF THE CASE, WE CONCUR WITH THE FINDI NGS OF THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2007-08 AND DO NOT FIND MERIT IN AD MITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. HENCE, THE ADDITIONAL EVIDEN CE FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08 IS NOT ADMITTED. THUS GROUN D NO. 1 OF THE ASSESSEE IS DISMISSED. 3.5 AS REGARDS GROUND NO. 2, 3 AND 4, WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NO T IMPERATIVE TO REPEAT THE SAME FACTS AS SIMILAR ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07. WE FURTHER NOTED T HAT IN THIS CASE THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ACTION OF THE AO AS THE A SSESSEE COULD NOT ADVANCE ANY CONTRARY MATERIAL/ EVIDENCE AS TO THE ADDITION CONF IRMED BY THE LD. CIT(A). IN VIEW OF THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE AS NARRATED IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07, THE DECIS ION TAKEN THEREIN SHALL APPLY MUTATIS MUTANDIS IN ASSESSEE'S CASE FOR THE ASSESSM ENT YEAR 2007-08. THUS THE APPEAL OF THE ASSESSEE IS DISMISSED. AS IT IS CLEAR THAT GROUND NO. 2, 3 & 4 HAVE BEEN D ISPOSED OFF BEING COMMON TO THE ASSESSMENT YEAR 2006-07. WE FIND THAT THE GROUND N O. 3 FOR THE ASSESSMENT YEAR 2007-08 IS NOT COMMON TO ANY OF THE GROUNDS FOR THE ASSESSMENT YEAR 2006-07. THOUGH THE TRIBUNAL WHILE DECIDING GROUND NO. 1 FOR THE ASSESSMENT YEAR 2007-08 IN PARA 3.4 HAS REPRODUCED THE FINDING OF THE LD. CIT (A) WHICH ALSO COVERS THE ISSUE INVOLVED IN GROUND NO. 3, HOWEVER, THE SAID REPRODU CTION OF FINDING OF LD. CIT (A) FOR DECIDING GROUND NO. 1 DOES NOT LEAD TO THE CONCLUSI ON THAT THE SAID GROUND WAS INDEPENDENTLY DECIDED BY THE TRIBUNAL WHEN IT WAS N OT COMMON TO THE ASSESSMENT YEAR 2006-07. ACCORDINGLY, WE ARE OF THE CONSIDERE D OPINION THAT THERE IS A MISTAKE CREPT IN THE IMPUGNED ORDER SO FAR AS THE GROUND NO . 3 FOR THE ASSESSMENT YEAR 2007-08 IS NOT ADJUDICATED BY A SPEAKING ORDER. ACC ORDINGLY, WE RECALL THE IMPUGNED 5 MA NOS. 94 & 95/JP/2018 M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR. ORDER TO THE EXTENT OF NON-ADJUDICATION OF GROUND N O. 3 FOR THE ASSESSMENT YEAR 2007-08 AND DIRECT THAT THE APPEAL OF THE ASSESSEE IN ITA NO. 109/JP/2017 FOR THE ASSESSMENT YEAR 2007-08 BE FIXED FOR FRESH HEARING AND ADJUDICATION OF GROUND NO. 3 OF THE ASSESSEES APPEAL. 6. IN THE RESULT, M.A NO. 94/JP/2018 IS DISMISSED A ND M.A. NO. 95/JP/2018 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/06/201 9. SD/- SD/- JES'K LH- 'KEKZ ] FOT; IKY JKWO ( RAMESH C. SHARMA ) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/06/2019. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-M/S. RAJASTHAN LAND DEVELOPERS P. LTD ., JAIPUR. 2. IZR;FKHZ Z@ THE RESPONDENT-THE ITO WARD-2(2), JAIPUR. 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 {MA NO. 94 & 95/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 6 MA NOS. 94 & 95/JP/2018 M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR.