The ITO, Ward-3(2),, JAMNAGAR v. Shri Ramniklal Pragji Malvi,, JAMNAGAR

ITA 1016/RJT/2010 | 2000-2001
Pronouncement Date: 31-12-2010 | Result: Dismissed

Appeal Details

RSA Number 101624914 RSA 2010
Assessee PAN AMZPM4671N
Bench Rajkot
Appeal Number ITA 1016/RJT/2010
Duration Of Justice 6 month(s)
Appellant The ITO, Ward-3(2),, JAMNAGAR
Respondent Shri Ramniklal Pragji Malvi,, JAMNAGAR
Appeal Type Income Tax Appeal
Pronouncement Date 31-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 31-12-2010
Date Of Final Hearing 28-12-2010
Next Hearing Date 28-12-2010
Assessment Year 2000-2001
Appeal Filed On 30-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) I.T.A. NO. 1016/RJT/2010 (ASSESSMENT YEAR 2000-01) ITO WD.3(2) VS SHRI RAMNIKLAL PRAGJI MALVI JAMNAGAR 1 RAMNATHPARA NANAKPURA JAMNAGAR PAN : AMZPM4671N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JAI RAJ KUMAR RESPONDENT BY: SHRI PM MAHARSHI O R D E R A.L. GEHLOT : THIS APPEAL FILED BY THE REVENUE IS D IRECTED AGAINST THE ORDER OF THE CIT(A) JAMNAGAR DATED 19-04-2010 FOR THE ASSESSMENT YEAR 2000-01. THE EFFECTIVE GROUND RAISED IN THE APPEAL IS THAT THE C IT(A) ERRED IN DELETING THE ADDITION OF RS. 13 50 000 MADE ON ACCOUNT OF RELINQ UISHMENT OF TENANCY RIGHTS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER ISSUED NOTICE U/S 148 BASED ON INFORMATION RECEIVED FROM INVESTIGATIO N WING THAT DURING THE COURSE F SEARCH U/S 132 OF THE ACT ON SHRI DILIP NA THWANI AND SHRI NILESH TOLIYA THAT ONE SHRI RAMAN P MORZARIA DEIRECTOR OF SHREEN ATHJI BUILD WELL PVT LTD HAS CREDITED A SUM OF RS.16 LAKHS TO THE HEIRS OF LATE SHRI PRAGJI GOKAL MALVI IN ASSESSMENT YEAR 2000-01 AND OUT OF THE SAID AMOUNT RS.13 50 000 WAS PAID ON 03-02-2000. BEFORE THE ASSESSING OFFICER IT WAS ST ATED THAT SHRI PRAGJI GOKAL MALVI HAS PASSED AWAY ON 30-01-1976. HE HAS FOUR L EGAL HEIRS AND THEY HAVE RECEIVED ONLY A SUM OF RS. 20 000 EACH AS PER AGREE MENT DATED 20-12-1999 AND THE ASSESSEE HAS RECEIVED ONLY RS.5 000 BEING 1/4 TH SHARE. THIS AMOUNT IS PAID FOR SURRENDER OF TENANCY RIGHT OF AN OLD STRUCTURE IN PART OF AMBLIWLLA DELA BUILDING. AS PER THE COPY OF LEDGER AND APPRAISAL REPORT RECEIVED FROM THE INVESTIGATION WING IT WAS NOTICED THAT THE AMOUNT W AS RS.16 LAKHS. IN THE ITA NO.1016 /RJT/2010 2 APPRAISAL REPORT IT WAS MENTIONED THAT THIS PAYMENT IS MADE BY SHRI RAMAN P MORZARIA. THE ASSESSING OFFICER EXAMINED SHRI RAMA N P MORZARIA ON 08-03- 2006 AND GRANTED OPPORTUNITY OF CROSS EXAMINATION B UT THE ASSESSEE DID NOT FIND IT NECESSARY FOR CROSS EXAMINATION AS ACCORDING TO THE ASSESSEE SHRI RAMAN P MORZARIA HAS DENIED MAKING ANY SUCH PAYMENT TO THE ASSESSEE. THE ASSESSING OFFICER MADE ADDITION OF RS.13 50 000 ON THE GROUND THAT AGREEMENT FURNISHED BY THE ASSESSEE ONLY SHOWED THE ACCOUNTED PAYMENT AND MATERIAL FOUND DURING THE SEARCH PROCEEDINGS HAVE SHOWN THE PAYMENTS. IT WAS ALSO STATED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE IS A SMALL LABO URER WHO WAS RESIDING IN A BUILDING PURCHASED BY ONE SHREEJI CONSTRUCTWELL PVT LTD OWNED BY SHRI DILIP NATHWANI ALONGWITH HIS THREE BROTHERS AND THEIR FAM ILIES. PURCHASER OF THE BUILDING GOT THE PLACE VACATED AND PAID SOME MONEY TO THE ASSESSEE IN TERMS OF AGREEMENT DATED 20-12-1999. THERE IS NO EVIDENCE W HICH PROVED THAT THE ASSESSEE HAS RECEIVED RS.13 50 000 FOR SURRENDER OF TENANCY RIGHTS OTHER THAN A MERE BOOK ENTRY ON THE LEASE PAPERS. THERE IS NO R ECEIPT AVAILABLE FOR PAYMENT MADE TO THE ASSESSEE. PAPERS DID NOT HAVE ANY SIGN ATURE OF THE PARTY OR THE SAME WAS NOT IN HIS OWN HANDWRITING. THE ASSESSING OFFICER DID NOT TAKE THE FACTS STATED IN THE AGREEMENT PRODUCED BY THE ASSES SEE WHICH SHOWED THAT THE ASSESSEE HAD ALREADY SURRENDERED TENANCY RIGHTS ON 20-12-1999. THEREFORE THERE IS NO OCCASION TO PAY ANYBODY ANY SUM ON 10-0 3-2002 AND 03-02-2000. THE ADDITION MADE BY THE ASSESSING OFFICER HAVE BEE N DELETED BY THE CIT(A) OBSERVING AS UNDER: 5. I HAVE CAREFULLY GONE THROUGH THE SUBMISSION MA DE BY THE APPELLANT. DURING THE COURSE OF HEARING APPELLANT WAS ASKED TO PRODUCE STATEMENT OF SHRI RAMAN P MORZARIA. HOWEVE R APPELLANT SUBMITTED THAT HE HAS ASKED THE AO TO GRANT HIM A C OPY F THOSE STATEMENT DURING ASSESSMENT PROCEEDINGS AS WELL AS IN APPELLATE PROCEEDINGS SEVERAL TIMES AS WELL AS VIDE HIS LETTE R DATED 2.10.2009 AND 4.2.2010 COPY OF WHICH IS ALSO ENDORSED TO ADD L.CIT RANGE-3 JAMNAGAR. HOWEVER COPY OF THAT STATEMENT IS NOT P ROVIDED TO HIM. MEANWHILE LETTER DATED 9.10.2009 BEARING REFERENCE NO CIT(A)/JAM/87/09-10/918 IS ALSO WRITTEN BY ME TO TH E ASSESSING OFFICER DIRECTING HIM TO PRODUCE THE CASE RECORDS COPY OF STATEMENT RECORDED AND COPY OF SEIZED MATERIAL IN T HE CASE OF ITA NO.1016 /RJT/2010 3 ABOVE APPELLANT.HE WAS ALSO DIRECTED TO REMAIN PRES ENT ON THE DATE OF HEARING ON 4.11.2009. THE ASSESSING OFFICER ATT ENDED HEARING ON 9-10-09 AND STATED THAT RECORDS ARE NOT TRACEAB LE. EVEN TILL DATE NO RECORDS OR STATEMENT HAS BEEN PRODUCED BY THE AO . THEREFORE THIS ISSUE DECIDED ON THE FACTS AND RECORDS PRODUCE D BY APPELLANT. APPELLANT CONTENDED THAT AO HAS PASSED ASSESSMENT W ITHOUT BRINGING THE OTHER LEGAL HEIRS OF SHRI PARGJI GOKAL MALVI ON RECORD AND ISSUING NOTICE TO EACH OF THEM WHEN THE FACTS B EFORE HIM CLEARLY STATED THAT THERE ARE OTHER LEGAL HEIRS AS MENTIONED IN THE ASSESSMENT ORDER PARA NO.6. THEREFORE ORDER IS ILL EGAL. IN SUPPORT OF THIS APPELLANT RELIED ON THE DECISION OF HONOURA BLE SUPREME COURT IN CASE OF CIT V. JAI PRAKASH SINGH 219 ITR 7 37 AND OF HON DELHI HIGH COURT 249 ITR 148 CIT V NARAIN DAS. I H AVE CAREFULLY PERUSED THESE DECISIONS AND I AM NOT INCLINED TO AG REE WITH SUBMISSION OF THE APPELLANT AS ACCORDING TO THESE D ECISIONS ASSESSMENT ONLY BECOMES IRREGULAR AND NOT ILLEGAL. REGARDING THE MERITS OF THE CASE ASSESSING OFFICER HAS NOT GIVEN THE COPIES OF STATEMENT OF SHRI RAMAN P MORZARIA TO THE APPELLANT AND SAME IS ALSO NOT PRODUCED BEFORE ME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT PERSON REMAINED PRESENT AS WITNESS OF DEPARTMENT BEFORE AO AND HAS DENIED MAKING ANY PAYM ENT TO THE APPELLANT. THEREFORE THERE WAS NO QUESTION OF CROS S-EXAMINATION BY APPELLANT. LEDGER COPIES WHICH WERE RELIED UP O N BY AO DOES NOT BEAR NAME OF THE PERSON TO WHOM THIS LEDGER BEL ONGS TO IS NOT SIGNED BY ANYBODY THERE IS ALSO DISCREPANCY IN THE DATE OF PAYMENTS. AO MENTIONS THE DATE OF PAYMENTS AS 3.2. 2000 WHEREAS ON LOOSE PAPER DATE SHOWN IS 10.3.20000. N O ADDITION CAN BE MADE IN THE HANDS OF THE THIRD PARTY WHOSE N AME IS MENTIONED IN LOOSE PAPERS FOUND FROM THIRD PARTY WH EN THIRD PARTY DENIED THE EXISTENCE OF SUCH PAYMENTS. THEREFORE T HERE IN ABSENCE OF INDEPENDENT EVIDENCE AVAILABLE WITH ASSE SSING OFFICER THAT AN AMOUNT OF RS.13 50 000/- HAS BEEN PAID TO T HE APPELLANT FOR VACATING THE TENANT PROPERTY SUCH ADDITION CANNOT BE MADE ESPECIALLY WHEN THE PERSON WHO IS ALLEGED TO HAVE M ADE PAYMENTS HAS DENIED IT. HENCE ADDITION OF RS.13 50 000/- MA DE IN THE HANDS OF APPELLANT BASED ON LOOSE PAPER IS DELETED. 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES RECORD PERUSED. THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO GRA NT HIM A COPY FO THE STATEMENT OF SHRI RAMAN P MORZARIA DURING ASSESSMEN T PROCEEDINGS AS WELL AS AT THE TIME OF APPELLATE PROCEEDINGS VIDE LETTER DA TED `02-10-2009 AND 04-02- 2010. THE CIT(A) HAD ALSO DIRECTED THE ASSESSING O FFICER TO PROVIDE A COPY OF THE SAID STATEMENT. THE ASSESSING OFFICER ATTENDED THE HEARING DATED 09-10-2009 ITA NO.1016 /RJT/2010 4 BEFORE THE CIT(A) AND STATED THAT RECORDS WERE NOT TRACEABLE AND THE SAME WERE NOT PRODUCED BEFORE THE CIT(A) TILL THE ORDER WAS P ASSED. THE ITAT HAS ALSO PROVIDED VARIOUS OPPORTUNITY TO THE REVENUE TO PROD UCE THE RECORD WHICH IS NOT TRACEABLE. THE LD.DR REQUESTED FOR ADJOURNMENT OF HEARING DATED 26-10-2010 AND 02-11-2010 THAT HE MAY BE ALLOWED TIME FOR VERI FICATION OF RECORD. THE LD.DR ON 28-12-2010 FURNISHED A PHOTOCOPY OF LETTE R DATED 27-12-2010 GIVEN BY THE ASSESSING OFFICER TO ADDL CIT-DR WHICH READS A S BELOW: TO THE ADDL.CIT(SR.DR) INCOME TAX APPELALTE TRIBUNAL 5 TH FLOOR AMRUTA ESTATE M.G. ROAD RAJKOT. SIR SUB: PROVIDING OF CASE RECORDS IN THE CASE OF SHRI RAMNIKLAL PRAGJI MALVI JAMANAGAR FOR AY 2000-01 REG ********** KINDLY REFER TO YOUR OFFICE LETTER NO./SR.DR/ ITAT/ REQUI./10-11 DTD. 24/12/2010 ON THE ABOVE SUBJECT. 2. IN THIS REGARD IT IS HEREBY SUBMITTED THAT THE REQUIRED CASE RECORD IS NOT TRACEABLE EVEN AFTER SINCERE EFFRORTS MADE BY SHRI MAYANK PRATAP SINGH TA AND SHRI ALTAF ANSARI DAFT ARY OF THIS OFFICE. THEY HAVE SUBMITTED IN THEIR LETTER DTD. 2 7/12/2010 THAT ALL EFFORTS HAS BEEN MADE TO SEARCH THE REQUIRED CASE R ECORDS. THEY HAVE ALSO MENTIONED THAT THE SAME EXECISE HAD BEEN MADE DURING THE PERIOD AND PRESENCE OF SHRI I.M. RAJANI ITO TO LOCATE THE SAME CASE RECORD FROM RECORD ROOMS AT MANEK CENTER AND T ARANJALI BUILDING IN WHICH NO SUCH RECORDS HAS BEEN FOUND.(T HE PHOTOCOPY OF REPLY OF SHRI MAYANK PRATAP SING TAX ASSISTANT AND SHRI ALTAF ANSARI DAFTARY OF THIS OFFICE IS ENCLOSED HEREWITH FOR READY REFERENCE. 3. DURING THE APPEAL PROCEEDINGS BEFORE THE HONBLE CIT(A) THE THEN ITO WARD-3(2) JAMNAGAR SHRI V.M. DAVDA H AS EXPRESSED HIS INABILITY TO PRODUCE THIS CASE RECORDS AS IT WA S NOT BEEN FOUND. INCONVENIENCE MAY KINDLY BE REGRETTED. ITA NO.1016 /RJT/2010 5 YOURS FAITHFULLY SD/- (BN.T. SONI) INCOME-TAX OFFICER WARD-3(2) JAMNAGAR 4. WE FIND THAT THE REVENUE HAS FAILED TO PRODUCE T HE COPY OF STATEMENT WHICH WAS USED AGAINST THE ASSESSEE FOR MAKING ADDI TION. THEREFORE WE ARE OF THE CONSIDERED VIEW THAT FAILURE OF THE REVENUE AUT HORITIES ON THIS ACCOUNT ITSELF IS SUFFICIENT FOR DELETION OF THE ADDITION OF RS.13 50 000. THE CIT(A) WHILE DELETING THE ADDITION HAS ALSO CONSIDERED THE ISSUE ON MERIT AND FOUND THAT THE PAPERS FOUND DOES NOT BEAR THE NAME OF THE PERSON TO WHOM THIS LEDGER BELONGED TO IS NOT SIGNED BY ANYBODY THERE IS ALSO DISCREPANCY IN DATE OF PAYMENTS. THE LOOSE PAPERS FOUNDS FROM THIRD PARTY; AND THE THIRD PART Y DENIED THE EXISTENCE OF SUCH PAYMENT. THE CIT(A) D3ELETED THE SAID ADDITION IN THE ABSENCE OF INDEPENDENT AND SUFFICIENT EVIDENCE AVAILABLE WITH THE ASSESSIN G OFFICER FOR MAKING SUCH ADDITION OF RS.13 50 000. WE THEREFORE DO NOT FI ND ANY INFIRMITY IN THE ORDER OF CIT(A). 5. INA THE RESULT APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2010. SD/- SD/- (D.T. GARASIA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 31 ST DECEMBER 2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) JAMNAGAR 4. THE CIT JAMNAGAR 5. THE DR (TRUE COPY) BY ORDER ITA NO.1016 /RJT/2010 6 ASSTT.REGISTRAR ITAT RAJKOT