Shri Pravinbhai H.Chauhan, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(2), Ahmedabad

MA 97/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1572 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: P M MEHTA
• Section: 131

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.97/AHD/2013 - AY 2004-05 ( IN (SS) !./ IN I.T(SS).A. NO.771/AHD/2010) ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2004-05) SHRI PRAVINBHAI H CHAUHAN 12, SARITA BUNGALOWS PART-II OPP.DESHAWAR HOTEL MOTERA,AHMEDABAD / VS. THE DCIT CENTRAL CIRCLE-1(2) AHMEDABAD ( !./)* !./ PAN/GIR NO. : ABHPC 1561 E ( APPLICANT ) .. ( +,(- / RESPONDENT ) APPLICANT BY : SHRI P.M. MEHTA, A.R. REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. ' . / $0 / / / / DATE OF HEARING : 17/1/2014 12' / $0 / DATE OF PRONOUNCEMENT : 21/02/2014 3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE ASSESSEE HAS FILED THE MISCELLANEOUS APPLICATI ON DATED 29/04/2013 AGAINST THE ORDER OF THIS TRIBUNAL (ITAT A BENCH AHMEDABAD) PASSED IN IT(SS)A NO.771/AHD/2010 FOR AY 2004-05, DATED 28/02 /2013. 2. THE CONTENTION OF THE ASSESSEE IS THAT ASSESSEE HAD RAISED GROUND NOS.3 AND 4 IN HIS APPEAL AND THE SAME READ AS UNDER:- 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF T HE APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING T HE ADDITION OF RS.13,00,000/- IN RESPECT OF AMOUNT RECEIVED FROM S HRI VIKAS A.SHAH WITHOUT APPRECIATING THAT THE IMPUGNED SUM OF RS.13 ,00,000/- WAS IN MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 2 - THE NATURE OF ADVANCE RECEIVED ON CAPITAL ACCOUNT A ND HENCE NOT LIABLE TO BE TAXED. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.5,00,000/- BY CONSIDERING THE SAME AS UNDISCLOSE D INCOME OF APPELLANT. 2.1. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE TRIBUNAL IN ITS ORDER VIDE PARA-7 HAS OBSERVED THAT MOU WAS ULT IMATELY CANCELLED AND MONEY RETURNED AS STATED BY VAS, IN HIS STATEMENT R ECORDED U/S.131 OF THE ACT ON 07/03/2005, WE FIND THAT THERE IS NO DATE GIVEN IN THE STATEMENT ALSO AS TO ON WHICH DATE THE MOU WAS CANCELLED AND OTHERWISE ALSO , NOTHING HAS BEEN REPRODUCED IN SUPPORT OF THIS CONTENTION THAT MOU W AS CANCELLED. HENCE, ON THE BASIS OF MERE STATEMENT AND IN THE ABSENCE OF A NY COGENT EVIDENCE, IN SUPPORT OF THIS STATEMENT, IT IS NOT ACCEPTABLE THA T THE MOU WAS CANCELLED AND THE MONEY RECEIVED TOWARDS PROFIT WAS RETURNED. EV EN IF THE MOU WAS CANCELLED AND THE AGREEMENT WAS NOT ACTED UPON, THE N ALSO, THE AMOUNT ALREADY RECEIVED BY THE ASSESSEE IS LIABLE TO TAX UNLESS IT IS ESTABLISHED BY BRINGING COGENT EVIDENCE ON RECORD THAT SAME AMOUNT WAS RETU RNED IN THE SAME YEAR AND IN THE PRESENT CASE, THIS WAS NOT DONE EITHER BEFOR E THE AUTHORITIES BELOW OR BEFORE US, AND HENCE, WE DO NOT FIND ANY REASON TO INTERFERE THE ORDER OF LD.CIT(A) ON THIS ISSUE. THIS GROUND IS REJECTED. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE TRIBUNAL HAS OB SERVED IF THE MONEY IS NOT RETURNED, THE SAME WOULD BE CHARGEABLE TO TAX. HE SUBMITTED THAT IN THE STATEMENT OF FACTS-CUM-SYNOPSIS FILED BY THE APPELL ANT BEFORE THIS HONBLE TRIBUNAL IT WAS CLEARLY STATED THAT EVEN IF IT IS A SSUMED THAT THE MONEY WAS NOT RETURNED, THE SAME WOULD BE A LIABILITY ON THE ASSE SSEE AND CANNOT BE BROUGHT TO THE CHARGE OF TAX BY VIRTUE OF THE PROVISIONS OF SECTION 41(1) OF THE I.T.ACT. HE SUBMITTED THAT THIS ASPECT HAS NOT BEEN EXAMINED AND THE DECISION RELIED MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 3 - UPON BY THE APPELLANT WERE NOT CONSIDERED BY THE TR IBUNAL. HE SUBMITTED THAT NON-CONSIDERATION OF THE DIRECT DECISIONS ALSO GIVE S RISE TO A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE HONBLE TRIBUNAL. 3. ON THE CONTRARY, LD.SR.DR OPPOSED THE MISCELLANE OUS APPLICATION AND SUBMITTED THAT THERE IS NO APPARENT MISTAKE FROM TH E RECORD. HE SUBMITTED THAT THE JURISDICTION U/S.254(2) OF THE ACT IS TO THE EX TENT OF RECTIFICATION OF ANY ORDER/MISTAKE APPARENT FROM THE RECORD. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE HONBLE TRIBUNAL HAS D ECIDED THE GROUND NO.3 IN PARA-7 OF ITS ORDER AS UNDER:- 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT AS PER MOU, COPY OF WHICH IS AVAILABLE ON PAGE S 26 TO 35 OF THE PAPER BOOK, IT IS AN AGREEMENT BETWEEN VAS AND THE ASSESS EE IN RESPECT OF LAND AD MEASURING 6072 SQ.MT. FOR R.S. NO. 215/2/2 AND LAND AD MEASURING OF 23174 SQ. MT. FOR REVENUE SURVEY NO. 251/2/2 AND LAND AD MEASURING 3440 SQ. MT. OF REVENUE SURVEY NO.215/4 AND LAND AD MEASURING 5970 SQ. MT OF REVENUE SURVEY NO.215/5 TOTAL AD MEASURING 16.2 BIGHAS. ON PAGE NO. 30 OF THE MOU, IT IS NOTED THAT THE AMOUNT OF RS.16.25 LAKHS HAS BEEN DULY SETTLED AND RECEIVED. REGARDING THIS CONTENTION THAT MOU WAS UL TIMATELY CANCELLED AND MONEY RETURNED AS STATED BY VAS, IN HIS STATEMENT R ECORDED U/S. 131 OF THE ACT ON 07-03-2005, WE FIND THAT THERE IS NO DATE GIVEN IN THE STATEMENT ALSO AS TO ON WHICH DATE THE MOU WAS CANCELLED AND OTHERWISE A LSO, NOTHING HAS BEEN REPRODUCED IN SUPPORT OF THIS CONTENTION THAT MOU W AS CANCELLED. HENCE, ON THE BASIS OF MERE STATEMENT AND IN THE ABSENCE OF A NY COGENT EVIDENCE, IN SUPPORT OF THIS STATEMENT, IT IS NOT ACCEPTABLE THA T THE MOU WAS CANCELLED AND THE MONEY RECEIVED TOWARDS PROFIT WAS RETURNED. EVE N IF THE MOU WAS CANCELLED AND THE AGREEMENT WAS NOT ACTED UPON, THE N ALSO, THE AMOUNT ALREADY RECEIVED BY THE ASSESSEE IS LIABLE TO TAX U NLESS IT IS ESTABLISHED BY BRINGING COGENT EVIDENCE ON RECORD THAT SAME AMOUNT WAS RETURNED IN THE SAME YEAR AND IN THE PRESENT CASE, THIS WAS NOT DON E EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE US, AND HENCE, WE DO NO T FIND ANY REASON TO INTERFERE THE ORDER OF LD. CIT(A) ON THIS ISSUE. TH IS GROUND IS REJECTED. MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 4 - 4.1. WE ALSO FIND THAT THE ASSESSEE IN ITS STATEMEN T OF FACTS-CUM-SYNOPSIS I PARA-5 HAS SUBMITTED AS UNDER:- 5. ON THIS ISSUE THIS HONBLE TRIBUNAL AT PARA-7 OF THE ORDER HAS OBSERVED AS UNDER:- 7.. REGARDING THIS CONTENTION THAT MOU WAS ULTI MATELY CANCELLED AND MONEY RETURNED AS STATED BY VAS, IN HIS STATEMENT R ECORDED U/S. 131 OF THE ACT ON 07-03-2005, WE FIND THAT THERE IS NO DATE GIVEN IN THE STATEMENT ALSO AS TO ON WHICH DATE THE MOU WAS CANCELLED AND OTHERWISE A LSO, NOTHING HAS BEEN REPRODUCED IN SUPPORT OF THIS CONTENTION THAT MOU W AS CANCELLED. HENCE, ON THE BASIS OF MERE STATEMENT AND IN THE ABSENCE OF A NY COGENT EVIDENCE, IN SUPPORT OF THIS STATEMENT, IT IS NOT ACCEPTABLE THA T THE MOU WAS CANCELLED AND THE MONEY RECEIVED TOWARDS PROFIT WAS RETURNED. EVE N IF THE MOU WAS CANCELLED AND THE AGREEMENT WAS NOT ACTED UPON, THE N ALSO, THE AMOUNT ALREADY RECEIVED BY THE ASSESSEE IS LIABLE TO TAX U NLESS IT IS ESTABLISHED BY BRINGING COGENT EVIDENCE ON RECORD THAT SAME AMOUNT WAS RETURNED IN THE SAME YEAR AND IN THE PRESENT CASE, THIS WAS NOT DON E EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE US, AND HENCE, WE DO NO T FIND ANY REASON TO INTERFERE THE ORDER OF LD. CIT(A) ON THIS ISSUE. TH IS GROUND IS REJECTED. 5. IT APPEARS FROM THE ORDER OF THE HONBLE TRIBUNA L THAT THIS SUBMISSION OF THE ASSESSEE HAS NOT BEEN CONSIDERED AND THE DECISI ONS AS RELIED BY THE ASSESSEE WERE ALSO NOT CONSIDERED. THEREFORE, IN VIEW OF TH IS APPARENT MISTAKE FROM RECORD, WE RECALL OUR ORDER DATED 28/02/2013(SUPRA) ON THIS ISSUE AND FIX FOR HEARING AFRESH FOR THE LIMITED PURPOSE AS PER THE S UBMISSIONS MADE IN THE STATEMENT OF FACTS-CUM-SYNOPSIS OF THE ASSESSEE. A CCORDINGLY, THIS GROUND OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. 6. WITH REGARD TO GROUND NO.4, IT IS SUBMITTED BY T HE LD.COUNSEL FOR THE ASSESSEE THAT AN ADDITION OF RS.5 LACS WAS MADE ON THE BASIS OF CERTAIN LOOSE- PAPERS SEIZED FROM THE CUSTODY OF SHRI VIKAS A.SHA H. THE AO OBSERVED THAT AS PER PAGE-70 OF A-172 OF THE SEIZED PAPERS, AN AM OUNT OF RS.5 LACS WAS PAID BY THE ASSESSEE TO SHRI VIKAS A.SHAH. IN THE ABSEN CE OF ANY SATISFACTORY EXPLANATION THE AO ADDED THIS AMOUNT AS UNDISCLOSED INCOME OF THE ASSESSEE. MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 5 - THE LD.CIT(A) SUMMARILY CONFIRMED THIS DISALLOWANCE EVENTHOUGH DETAILED SUBMISSIONS WERE MADE BEFORE HIM SUPPORTED BY SEVER AL JUDICIAL PRONOUNCEMENTS WHICH WERE NOT CONSIDERED BY THE LD. CIT(A). HE SUBMITTED THAT THE HONBLE TRIBUNAL HAS CONSIDERED THIS ISSUE AT PARAS 9 TO 12 OF ITS ORDER. HE SUBMITTED THAT AT PARA-11, THE HONBLE TRIBUNAL HAS OBSERVED THAT COPY OF SEIZED PAPER WAS COMPILED IN THE PAPER-BOOK AND THE SAME IS IN GUJARATI LANGUAGE AND THE ENGLISH TRANSLATION WAS NOT PROVID ED. AT PARA-12, IT HAS BEEN FURTHER OBSERVED THAT ENGLISH TRANSLATION OF THE SE IZED PAPER WAS NOT FURNISHED AND NO DOCUMENTARY EVIDENCE/COGENT MATERIAL WAS FUR NISHED IN SUPPORT OF THE CLAIM THAT THE NOTINGS ON THE SEIZED PAPER WERE ONL Y ROUGH NOTINGS. ON THIS BASIS, THE DISALLOWANCE HAS BEEN CONFIRMED BY THE H ONBLE TRIBUNAL. HE SUBMITTED THAT THE SIZED PAPER NO.70 WAS COMPILED A T PAGE-22 OF THE PAPER- BOOK ON THIS PAPER THERE IS ONLY ONE RELEVANT ENTRY WHICH IS 5,00,000 PRAVIN. HE SUBMITTED THAT THE FIGURE AS WELL AS NAME MENTIO NED IS IN ENGLISH AND NOT IN GUJARATI AND ALL OTHER NOTINGS ARE NOT RELEVANT AND THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THIS ONE NOTHING. HE SUBMITTE D THAT IN THE STATEMENT OF FACTS-CUM-SYNOPSIS FILED BY THE ASSESSEE BEFORE TH E TRIBUNAL IT WAS CLEARLY STATED THAT THIS NOTING HAS NO MEANING AT ALL. H E SUBMITTED THAT ONLY PRAVIN IS MENTIONED WHICH COULD BE ANYBODY OTHER THAN APPELLA NT. FURTHER, THERE IS NO MENTION AS TO WHETHER THIS IS A PAYMENT OR RECEIPT. HE SUBMITTED THAT IN THE SYNOPSIS THAT IN THE STATEMENT SHRI VIKAS A.SHAH CL EARLY STATED THAT THIS PAPER CONTAINED ONLY ROUGH NOTINGS. AS MENTIONED ABOVE, COPY OF THE STATEMENT WAS DULY COMPILED IN THE PAPER-BOOK FILED BEFORE THE HO NBLE TRIBUNAL. AS PER QUESTION 65 ANNEXURE 172 WAS SHOWN TO SHRI VIKAS A. SHAH AND HE WAS AKED TO EXPLAIN THE CONTENTS OF EACH PAPER. HE SUBMITTE D THAT IN A DETAILED REPLY SHRI VIKAS A.SHAH EXPLAINED SEVERAL PAGES AND FOR T HE REMAINING PAGES HE STATED THAT THESE PAPERS CONTAINED ROUGH NOTINGS, M EANING THEREBY THAT THESE NOTINGS WERE NOT IN THE NATURE OF ACTUAL TRANSACTIO NS. HE SUBMITTED THAT NO MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 6 - FOLLOW-UP QUESTIONS WERE ASKED SPECIFICALLY REGARDI NG THE SAID PAPER. HE SUBMITTED THAT IT WAS CONTENDED THAT IN THE SYNOPSI S THAT IN THESE CIRCUMSTANCES NO ADVERSE INFERENCE CAN BE DRAWN AND NO ADDITION C AN BE MADE ON THE BASIS OF THE SEIZED PAPER AND RELIANCE WAS PLACED BEFORE THE HONBLE TRIBUNAL ON VARIOUS CASE-LAWS AS MENTIONED IN THE STATEMENT OF SYNOPSIS. HE SUBMITTED THAT THE HONBLE TRIBUNAL WHILE DECIDING THIS ISSUE HAS NOT CONSIDERED THE CASE- LAWS AS RELIED UPON BY THE APPELLANT WHICH GIVES RI SE TO THE MISTAKE APPARENT FROM RECORD. 7. ON THE CONTRARY, LD.SR.DR OPPOSED THE SUBMISSION S OF THE ASSESSEE AND SUBMITTED THAT THE APPELLANT IS TRYING TO MAKE OUT THE CASE TO REVIEW AND NOT FOR RECTIFICATION. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE HONBLE TRIBUNAL VIDE PARA-12 OF I TS ORDER HAS DECIDED THIS ISSUE AS UNDER:- 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT REGARDING THESE PAPERS, IN SPITE OF SPECIFIC SHOW-CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER, NO REPLY HAS BEEN SUBMITTED BY THE ASSESSEE BEFORE ASSESSING OFFICER AND BEFORE US ALSO NO COGENT MATERIAL HAS BEEN BROUGHT ON RECORD IN SUPPO RT OF THIS CONTENTION, THAT THESE ARE ROUGH NOTINGS. THE ASSESSEE HAS NOT EVEN PROVIDED THE ENGLISH TRANSLATION OF THESE SEIZED PAGES WHICH ARE AVAILAB LE ON PAGES 21 AND 22 OF THE PAPER BOOK AND THIS GOES TO SHOW THAT THE ASSES SEE HAS FAILED TO EXPLAIN THESE PAPERS AND ALSO FAILED TO ESTABLISH THAT THES E ARE ONLY ROUGH NOTINGS ON THE BASIS OF WHICH NO ADDITION IS CALLED FOR AND TH EREFORE, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE ALSO. THIS GROUND OF ASSESSEES APPEAL IS REJECTED. 8.1. WE FIND THAT IN THE STATEMENT OF FACTS-CUM-SYN OPSIS IN PARAS-7 & 8 THE ASSESSEE HAS RELIED UPON VARIOUS CASE-LAWS. THESE CASE LAWS ARE NOT DISCUSSED MA NO.97/AHD/20 13 (IN IT(SS)A NO.771/AHD/2010) SHRI PRAVINBHAI H.CHAUHAN VS. DCIT ASST.YEAR 2004-05 - 7 - IN THE ORDER OF THE TRIBUNAL, THEREFORE, NON-CONSID ERATION OF THE CASE LAWS AS RELIED UPON BY THE APPELLANT IS A MISTAKE APPARENT FROM THE RECORD, HENCE FOR THIS GROUND ALSO, WE RECALL OUR ORDER DATED 28/02/2 013(SUPRA) FOR FRESH ADJUDICATION FOR THE LIMITED PURPOSE TO CONSIDER TH E SUBMISSIONS MADE IN PARAS- 7 & 8 OF THE STATEMENT OF FACTS-CUM-SYNOPSIS. AS A RESULT, GROUND NOS.3 & 4 OF ASSESSEES APPEAL ARE ALLOWED AS INDICATED ABOVE . ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING (GROUND NOS.3 & 4 ONLY) FOR THE LIMITED PURPOSE AS INDICATED HEREINABOVE. 9. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLICAT ION IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD; DATED 21/ 02 /2014 60.., .../ T.C. NAIR, SR. PS 3 / +$7 87'$ 3 / +$7 87'$ 3 / +$7 87'$ 3 / +$7 87'$/ COPY OF THE ORDER FORWARDED TO : 1. (- / THE APPLICANT. 2. +,(- / THE RESPONDENT. 3. !! $ '9 / CONCERNED CIT 4. '9() / THE CIT(A)-I, AHMEDABAD 5. 7 #: +$ , , / DR, ITAT, AHMEDABAD 6. :;& <. / GUARD FILE. 3' 3' 3' 3' / BY ORDER, ,7$ +$ //TRUE COPY// = == =/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD