The DCIT, Central Circle-1(4),, Ahmedabad v. Shri Bharatkumar V.Patel, Ahmedabad

ITSSA 57/AHD/2005 | misc
Pronouncement Date: 29-10-2010 | Result: Allowed

Appeal Details

RSA Number 5720516 RSA 2005
Assessee PAN AJBVP9550E
Bench Ahmedabad
Appeal Number ITSSA 57/AHD/2005
Duration Of Justice 5 year(s) 7 month(s) 20 day(s)
Appellant The DCIT, Central Circle-1(4),, Ahmedabad
Respondent Shri Bharatkumar V.Patel, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-10-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted C
Tribunal Order Date 29-10-2010
Date Of Final Hearing 28-10-2010
Next Hearing Date 28-10-2010
Assessment Year misc
Appeal Filed On 10-03-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABA D (BEFORE HON'BLE SHRI G.D. AGRAWAL V.P.(AZ) & HON BLE SHRI T.K. SHARMA J.M. ) I.T.(SS)A. NO. 57/AHD./2005 ASSESSMENT YEAR : BLOCK PERIOD 1.4.95 TO 31.3.01 & 1.4.01 TO 13.12.2001 DEPUTY COMMISSIONER OF INCOME TAX -VS.- BHAR ATKUMAR V. PATEL AHMEDABAD CENTRAL CIRCLE-1(4) AHMEDABAD (PAN : AJBVP 9 550 E) (APPELLANT) (RESPONDENT) & C.O. NO. 90/AHD/2005 (ARISING OUT OF IT(SS)A. NO. 57/AHD/2005) ASSESSMENT YEAR : BLOCK PERIOD 1.4.95 TO 31.3.01 & 1.4.01 TO 13.12.2001 BHARAT V. PATEL AHMEDABAD -VS.- DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(4) AHMEDABAD (CROSS OBJECTOR) (RESPONDENT) ASSESSEE BY : S/SHRI S.N. SOPARKA R & P.M. PATEL DEPARTMENT BY : SHRI SHELLEY JINDAL CIT D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECTI ON BY THE ASSESSEE ARE AGAINST THE ORDER DATED 24.12.2004 OF LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) -I AHMEDABAD FOR THE BLOCK PERIOD 1.4.95 TO 31.3.01 & 1.4.01 TO 13.1 2.2001. 2. THE ONLY GROUND RAISED BY THE REVENUE IN ITS APP EAL IS AS UNDER :- THE CIT(A.) HAS ERRED IN LAW AND ON FACTS IN DIREC TING TO DELETE THE SURCHARGE LEVIED U/S. 113 OF THE INCOME TAX ACT BY HOLDING THAT SURCHARGE IS NOT LEVIABLE IN RESPECT OF SEARCHES CO NDUCTED PRIOR TO 01.06.2002 THOUGH THE PROVISO TO SECTION 113 OF TH E ACT SPECIFICALLY PROVIDES THAT SURCHARGE IS LEVIABLE IN THE CASE OF SEARCHES U/S.132 INITIATED ON OR AFTER 01.04.1999. 3. AT THE TIME OF HEARING BEFORE US ON BEHALF OF R EVENUE SHRI SHELLEY JINDAL LD. CIT D.R. APPEARED AND CONTENDED THAT THE HON'BLE SUPREME COU RT IN THE CASE OF SURESH N. GUPTA REPORTED IN 297 ITR 322 (SC) HELD THAT SURCHARGE UNDER SECTION 113 OF THE INCOME TAX ACT IS LEVIABLE EVEN SEARCH IS CONDUCTED PRIOR TO 1.6.2002. THEREFORE IT MAY BE HELD THAT SURCHARGE UNDER 2 IT(SS)A NO.57 /AHD/2005 & CO NO.90-AHD-2005 SECTION 113 OF THE INCOME TAX ACT IS RIGHTLY LEVIED BY THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS NOT JUSTIFIE D IN CANCELLING THE SAME. 4. ON THE OTHER HAND SHRI S.N. SOPARKAR LD. COUNS EL APPEARING ON BEHALF OF THE ASSESSEE CONTENDED THAT THE HON'BLE SUPREME COURT NOW HAS RE FERRED THIS ISSUE TO THE LARGER BENCH OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS.- VATI KA TOWNSHIP P. LTD. REPORTED IN [2009] 314 ITR 338 (SC). HE THEREFORE CONTENDED THAT THIS IS SUE BE RESTORED TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER WILL CONSIDER THE LEVY OF SURCHARGE UNDER SECTION 113 OF THE INCOME TAX ACT AS PER JUDGMENT OF THE LA RGER BENCH OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS.- VATIKA TOWNSHIP P. LTD.(SUPRA ). 5. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN APPEAL THE DEPARTMENT HAS CLAIMED THAT P ROVISO ADDED WITH EFFECT FROM JUNE 1 ST 2002 UNDER SECTION 113 OF THE INCOME TAX ACT 1961 IS RE TROSPECTIVE THE HON'BLE SUPREME COURT REFERRED THE MATTER TO A LARGER BENCH. THE JUDGMENT OF THE LARGER BENCH IS ABATED. WE THEREFORE SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCO ME TAX(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER WITH TH E DIRECTION THAT HE WILL CONSIDER THE LEVY OF SURCHARGE UNDER SECTION 113 OF THE INCOME TAX ACT KEEPING IN VIEW THE DECISION OF THE LARGER BENCH OF THE HON'BLE SUPREME COURT IN THE CASE OF C IT VS.- VATIKA TOWNSHIP P. LTD. (SUPRA). 6. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EAL OF THE REVENUE IS ALLOWED. 7. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN HIS CR OSS OBJECTION ARE AS UNDER :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.1 01 04 887/- UNDISCLOSED PAYMENTS TO LANDOWNERS MADE BY SHREEJI OWNERS ASSOCIATION IN THE HANDS OF THE ASSESSEE ONLY ON THE BASIS OF SMALL DIARY SEIZED FROM THE ASSESSEE. (2) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 HAS ERRED IN DECIDING THAT THE ASSESSEE WAS NOT A MEDIATOR FOR L AND TRANSACTIONS MADE BETWEEN SHREEJI OWNERS ASSOCIATION AND VARIOUS LAND OWNERS INSPITE OF VARIOUS EVIDENCES WERE PRODUCED BEFORE THE LEARNED ASSESSING OFFICER TO ESTABLISH THAT HE ACTED AS MEDIATOR FOR SAID LAND T RANSACTIONS. 3 IT(SS)A NO.57 /AHD/2005 & CO NO.90-AHD-2005 (3) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 HAS ERRED IN REJECTING OUR APPLICATION DATED 23 RD JULY 2004 UNDER RULE 46A WITHOUT CONSIDERING REASONS AND SHORTAGE OF TIME FOR NON-PR ODUCTION OF VARIOUS DOCUMENTS MENTIONED IN SAID APPLICATION BEFORE ASSE SSING OFFICER. (4) WITHOUT CONSIDERING VARIOUS EVIDENCES PRODUCED BEFORE ASSESSING OFFICER THE LEARNED COMMISSIONER OF INCOME TAX(APP EALS) HAS ERRED IN DECIDING THAT THE ASSESSEE HAS NOT DISCHARGED HIS B URDEN PUT UNDER SECTION 132(4A) OF THE INCOME TAX ACT AND DECIDING TAXABILI TY OF RS.1 01 04 887/- IN THE HANDS OF THE ASSESSEE. (5) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 IS NOT JUSTIFIED IN DECIDING THAT THE ASSESSEE HAS NOT COOPERATIVE TO A SSESSING OFFICER FOR INDEPENDENT INQUIRY TO VERIFY THE TRUTHNESS OF VARI OUS EVIDENCES SUBMITTED IN AN APPLICATION UNDER RULE 46A OF THE INCOME TAX ACT . (6) WHILE DECIDING TAXABILITY OF RS.1 01 04 887/- I N THE HANDS OF THE ASSESSEE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT PROPERTY EVALUATED AND APPRECIATED THE VARIOUS EVIDENCES AND DETAILED WRITTEN SUBMISSION AND JUDGMENT QUOTED BEFORE HIM. (7) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.17 05 000/- CASH DEPOSIT ED IN BANK ACCOUNT WITHOUT APPRECIATING SOURCE OF INCOME I.E. AGRICULT URAL INCOME AND WITHOUT CONSIDERING THE ACCOUNTS OF APPELLANT FROM SHIVAM FARM IN WHICH THE APPELLANT IS A CO-OWNER. (8) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 HAS ERRED IN NOT CONSIDERING POINTS REGARDING AN AGRICULTURAL INCOME AND CASH DEPOSIT IN BANK IN REGULAR ASSESSMENT VIS--VIS BLOCK ASSESSME NT AS IT IS SETTLED BY VARIOUS COURTS WITHOUT ANY DOUBT THAT BOTH ASSESSME NTS ARE SEPARATE AND DISTINCT. (9) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -1 IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.76 000/- SO CALLED INVEST MENT MADE IN SHIVSHAKTI CONSULTANCY PVT. LTD. WITHOUT APPRECIATING FACTS AN D CIRCUMSTANCES OF PREPARATION RECEIPTS FOUND FROM VAIKUNTH PREMISES A ND APPLICATION OF PROVISION OF SECTION 132(4A) OF THE INCOME TAX ACT. (10) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS )-1 IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.12 660/- RETURNED INC OME FOR THE ASSESSMENT YEAR 2001-02 ON INCORRECT INTERPRETATION OF SECTION 158BB(1)(C)(B) OF THE INCOME TAX ACT. (11) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS )(1) HAS ERRED IN DECIDING THAT VARIOUS JUDGMENT QUOTED IN ASSESSMENT ORDER CIT VS.- K.K. 4 IT(SS)A NO.57 /AHD/2005 & CO NO.90-AHD-2005 ABDUL KARIM 88 TAXMAN 323 (KERALA) R. BHARTHAN VS .- ITO 182 ITR 146 (KERALA) SODHI TRANSPORT COMPANY VS.- STATE OF UT TAR PRADESH AIR 1986 (SUPREME COURT) PAGE NO. 1099-1106 AND STATE OF M.P . VS.- BARAT HEAVY ELECTRICALS 106 STC 604 608 (SC) WERE APPLICABLE T O FACTS OF THE CASE WITHOUT MENTIONING SPEAKING WORDS AND REASONS FOR I TS APPLICABILITY. (12) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS )-1 HAS ERRED IN DECIDING THAT VARIOUS ASSUMPTION AND PRESUMPTION DR AWN BY LEARNED ASSESSING OFFICER IN SECTION 132(4A) ETC. HAVE BEEN CORRECTLY DRAWN AND CORRECTLY APPLIED TO THE FACTS OF THE CASE MENTIONE D IN VARIOUS GROUNDS OF APPEALS. 8. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L OF THE ASSESSEE POINTED OUT THAT IN THIS CASE DUE TO SHORTAGE OF TIME THE ASSESSEE COULD N OT PRODUCE FEW DOCUMENTS BEFORE THE ASSESSING OFFICER. THESE WERE PRODUCED BEFORE THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) ALONGWITH AN APPLICATION UNDER RULE 46A O F THE INCOME TAX ACT 1961. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CALLED THE REM AND REPORT TWICE BUT THEREAFTER REFUSED TO ADMIT THE ADDITIONAL EVIDENCES. THE LD. COUNSEL OF THE ASSESSEE DREW OUR ATTENTION TO THE ADDITIONAL EVIDENCES WHICH WERE FILED BEFORE THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) AND CONTENDED THAT THESE ARE BASIC DOCUME NTS WITHOUT CONSIDERING THE SAME CONTROVERSY INVOLVED IN THE VARIOUS GROUNDS OF APPE AL COULD NOT BE ADJUDICATED. THE LD. COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT FEW ADDITI ONAL EVIDENCES WHICH WERE IN FAVOUR OF THE REVENUE WHILE PASSING THE IMPUGNED ORDER THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) REFERRED THE SAME BUT REFUSED TO CONSIDER THE DOCUMENTS WHICH WERE IN FAVOUR OF THE ASSESSEE. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN ORDER TO DO JUSTICE IT IS NECESSARY THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DIR ECTED TO ADMIT THE ADDITIONAL EVIDENCES AND MAY CALL THE REMAND REPORT FROM THE ASSESSING O FFICER AND RE-DECIDE THE VARIOUS ADDITIONS/ DISALLOWANCES WHICH ARE DISPUTED IN THIS APPEAL AF RESH IN ACCORDANCE WITH LAW. 9. SHRI SHELLEY JINDAL LD. CIT D.R. APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LEARNED COMMISSIONER OF INCO ME TAX (APPEALS). HE POINTED OUT THAT THE ASSESSEE WAS NON-COOPERATIVE BEFORE THE ASSESSING O FFICER THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS FULLY JUSTIFIED IN NOT A DMITTING THE ADDITIONAL EVIDENCES. 5 IT(SS)A NO.57 /AHD/2005 & CO NO.90-AHD-2005 10. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE NATURE OF ADDITIONAL EVIDENCES FOR WHICH THE ASSESSEE MADE A REQUEST TO LEARNED COMMISSIONER OF INCOME TAX (APPEALS) UNDER RULE 46A FOR ADMISSION OF ADDITIONAL EVIDENCES. THE LIST OF THESE DOCUMENTS IS AS UNDER :- (1) COPY OF INCORPORATION CERTIFICATE OF SHREEJI NA ROL OWNERS ASSOCIATION (ANNEXURE-1); (2) MEMORANDUM AND ARTICLE OF ASSOCIATION OF SHREEJ I NAROL OWNERS ASSOCIATION (ANNEXURE-2); (3) LIST OF BANAKHAT (AGREEMENT TO SELL) EXPLAIN SH ORT DETAILS (ANNEXURE-3); (4) COPY OF ONE REGISTERED BANAKHAT ORIGINAL IN GUJ ARATI (REMAINING BANAKHATS HAVE BEEN GIVEN IN SEPARATE PAPER BOOK JUST TO AVOI D PAPER BOOK BOLKY) (ANNEXURE-4); (5) COPY OF BANAKHAT TRANSLATED INTO ENGLISH (ONE S ET) (ANNEXURE-5); (6) BANK STATEMENT OF SAURASHTRA COOPERATIVE BANK O F SHREEJI NAROL OWNERS ASSOCIATION (ANNEXURE-6); (7) COPY OF BANK ACCOUNT OF SHREEJI NAROL OWNERS AS SOCIATION (ANNEXURE-7); (8) COPY OF LAND PURCHASE ACCOUNT FROM THE BOOKS OF SHREEJI NAROL OWNERS ASSOCIATION (ANNEXURE-8); (9) COPY OF LAND PREMIUM ACCOUNT FROM THE BOOKS OF SHREEJI NAROL OWNERS ASSOCIATION (ANNEXURE-9); (10) COPIES OF LAND VENDORS ACCOUNT FROM THE BOOK O F SHREEJI NAROL OWNERS ASSOCIATION ALONG WITH DESCRIPTION IN DIARY AS MENT ION IN THE ASSESSMENT ORDER ON PAGE NO. 2 OF A.O. (ANNEXURE-10); (11) APPOINTMENT RESOLUTION OF THE ASSESSEE (ANNEXU RE-11). 10.1. IN THE CROSS OBJECTION WE FOUND CONSIDERABLE FORCE IN THE SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. LOOKING TO THE NATURE OF P AYMENT AND CONTROVERSY INVOLVED IN THE GROUNDS OF CROSS OBJECTION AND SHORT TIME ALLOWED F OR PRODUCTION OF DOCUMENTS BY THE ASSESSING OFFICER WE ARE OF THE VIEW THAT THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCES. SI NCE THIS WAS NOT DONE WE DIRECT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) TO ADMIT THE A DDITIONAL EVIDENCES WHICH WERE FILED BY 6 IT(SS)A NO.57 /AHD/2005 & CO NO.90-AHD-2005 THE ASSESSEE UNDER RULE 46A OF INCOME TAX RULES 19 62. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY FORWARD THESE ADDITIONAL EVIDENCE S TO ASSESSING OFFICER IF REQUIRES AND CALL THE REMAND REPORT. THE POWER OF LEARNED COMMISSIONE R OF INCOME TAX(APPEALS) IS CO-TERMINUS WITH THAT OF ASSESSING OFFICER AND THEREFORE IF N ECESSARY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HIMSELF EXAMINED THE VARIOUS DOCUMENT S CONTESTED BY THE ASSESSEE IN THIS APPEAL IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 11. IN THE RESULT FOR STATISTICAL PURPOSES THE AP PEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION BY THE ASSESSEE ARE TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 29.10.201 0 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 29/10 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR ITAT AHMEDABAD LAHA/SR.P.S.