Income Tax Officer, v. Shri Ravindra Pratap Thareja,

ITA 173/JAB/2014 | 2009-2010
Pronouncement Date: 08-11-2017 | Result: Dismissed

Appeal Details

RSA Number 17322914 RSA 2014
Assessee PAN ABGPT3338K
Bench Jabalpur
Appeal Number ITA 173/JAB/2014
Duration Of Justice 3 year(s) 2 day(s)
Appellant Income Tax Officer,
Respondent Shri Ravindra Pratap Thareja,
Appeal Type Income Tax Appeal
Pronouncement Date 08-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 08-11-2017
Last Hearing Date 07-11-2017
First Hearing Date 07-11-2017
Assessment Year 2009-2010
Appeal Filed On 05-11-2014
Judgment Text
I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH JABALPUR BEFORE SHRI MANISH BORAD ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER I.T.A. NO.173/JAB/2014 ASSESSMENT YEAR:2009-10 INCOME TAX OFFICER WARD-1 REWA. VS. SHRI RAVINDRA PRATAP THAREJA 435-A SECTOR-29 ARUN VIHAR NOIDA. PAN:ABGPT 3338 K (APPELLANT) (RESPONDENT) I.T.A. NO.137/JAB/2014 ASSESSMENT YEAR:2009-10 SHRI RAVINDRA PRATAP THAREJA 435-A SECTOR-29 ARUN VIHAR NOIDA. PAN:ABGPT 3338 K VS. INCOME TAX OFFICER WARD-1 REWA. (APPELLANT) (RESPONDENT) O R D E R PER MANISH BORAD A.M. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF CIT(A)-1 JABALPUR DATED 30/06/2014 RELATING TO ASSESSMENT YE AR 2009-10 ARISING OUT OF THE ORDER U/S 148/144 OF THE I.T. ACT DATED 31/1 2/2013. 2. ASSESSEES APPEAL NO.137/JAB/2014 IS A RECALLED MATTER FOR THE LIMITED PURPOSE OF ADJUDICATING THE GROUND NO. 3 WH ICH REMAINED REVENUE BY SHRI V. B. SARGAR D.R. ASSESSEE BY SHRI G. N. PUROHIT SR. ADVOCATE SHRI ABHISHEK OSWAL ADVOCATE DATE OF HEARING 07/11/2017 DATE OF PRONOUNCEMENT 08 / 11 /201 7 I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 2 UNADJUDICATED BY THE TRIBUNAL. THIS APPEAL WAS REC ALLED BY M.A.NO.27/JAB/2016 DATED 23/01/2017. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A RETIRED LT. COLONEL. UNDER SETTLEMENT SCHEME FRAMED BY THE GOVERNMENT OF INDIA THE ASSESSEE RECEIVED CERTAIN SECURITY CONTRACT FRO M THE GOVERNMENT BODY. FOR THE YEAR UNDER APPEAL THE ASSESSEE WAS ENGAGED IN THE ACTIVITY OF SUPPLYING SECURITY PERSONNEL TO BHEL BPCL AIR AND IOC AND THIS ACTIVITY WAS CARRIED OUT UNDER THE SOLE PROPRIETORSHIP CONCE RN MILITIA SECURITY NET. RETURN OF INCOME WAS FILED ON 07/12/2009 DECLARING INCOME OF RS.3 31 990/-. NOTICE U/S 148 OF THE ACT WAS ISSUE D. NECESSARY REPLY WAS FILED. THE ASSESSING OFFICER OBSERVED THAT THE REC EIPTS SHOWN IN THE RETURN WERE LESS BY RS.76 94 926/- AS AGAINST THE RECEIPTS SHOWN IN FORM NO.26AS AVAILABLE ON THE INCOME TAX WEBSITE. THIS ALLEGED DIFFERENCE OF RS.76 94 926/- COMPRISED OF TWO AMOUNTS; (I) RS.24 89 710/- BEING THE RECEIPT FROM BHEL WHICH THE ASSESSEE HAS CLAIMED TO HAVE INCLUDED IN THE GROSS RECEIPTS OF SUBSEQUENT YEARS AND (2) RECEIPT OF RS.51 33 559/- FROM BPCL AIR AND IOC WHICH THE ASSESSEE HAS NOT CLAIME D TO HAVE RECEIVED BUT WAS RECEIVED BY A PERSON SHRI MADHUP SINGH WHO HAD FRAUDULENTLY OPENED BANK ACCOUNT IN PATNA AND CARRIED THE BUSINE SS IN THE NAME OF ASSESSEE. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE REPLY GIVEN DURING THE ASSESSMENT PROCEEDINGS AND MADE THE ADDI TION OF RS.76 94 926/-. ADDITION WAS ALSO MADE TOWARDS UNE XPLAINED EXPENDITURE U/S 69C FOR PAYMENT OF SERVICE TAX OF RS.4 33 505/- . 3.1 AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) AND PARTLY SUCCEEDED. THE CIT(A) DELETED THE ADDITION U/S 69C OF RS.4 33 505/- BUT AS REGARDS THE CONCEALED RECEIPT OF RS.76 94 926/- SUSTAINED THE ADDITION TO THE EXTENT OF 40% OF THE RECEIPTS AND CALCULATED THE ADDITION AT RS.30 77 970/-. I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 3 3.2 AGGRIEVED BOTH THE REVENUE AND THE ASSESSEE CA ME IN APPEAL BEFORE THE TRIBUNAL. DUE TO SOME REASON ASSESSEES APPEAL WAS LISTED BEFORE THE TRIBUNAL AND CAME UP FOR HEARING ON 11/0 2/2015 BUT THE REVENUES APPEAL WAS NOT LISTED ON THIS DATE. THE ASSESSEES APPEAL WAS HEARD BY THE TRIBUNAL. THE TRIBUNAL SET ASIDE THE ISSUES RELATING TO ALLEGED RECEIPTS FROM BPCL AIR IOC AND GAIL TO THE FILE O F THE ASSESSING OFFICER FOR DECIDING AFRESH IN THE LIGHT OF THE OBSERVATION S THAT SHRI MADHUP SINGH HAS FRAUDULENTLY OPERATED THE BANK ACCOUNT AT PATNA IN THE NAME OF THE ASSESSEE AND RECEIVED SUM OF RS.51 33 559/- AND AS REGARDS THE RECEIPT FROM GAIL TO VERIFY THAT WHETHER THE ASSESSEE HAS I NCLUDED IN THE GROSS RECEIPTS IN THE SUBSEQUENT YEAR. THEREAFTER ASSESS EE FILED MISC. APPLICATION AGAINST THE ORDER OF THE TRIBUNAL IN I.T.A.NO.137/J AB/2014 MENTIONING THAT GROUND NO. 3 RAISED IN THIS APPEAL FOR THE ALLEGED ESTIMATION OF PROFIT AT 40% OF THE CONCEALED RECEIPTS REMAINED UNADJUDICATE D. THIS MISC. APPLICATION WAS ALLOWED VIDE M.A.NO.27/JAB/2016 REC ALLING THE ORDER OF THE TRIBUNAL IN I.T.A.NO.137/JAB/2016 FOR THE LIMITED P URPOSE OF ADJUDICATING GROUND NO. 3 RAISED BY THE ASSESSEE. NOW WE WILL A DJUDICATE THE ISSUE RAISED IN THESE CROSS APPEALS. 4. FIRST WE TAKE UP THE ASSESSEES APPEAL IN I.T.A. NO.137/JAB/2014. GROUND NO. 3 WHICH NEEDS ADJUDICATION READS AS FOLL OWS: 3. WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFI ED IN ESTIMATING THE PROFIT AT 40% NET ON THE RECEIPTS OF RS.51 33 559/- AND RS.24 89 710/-. THE ESTIMATION O F NET PROFIT IS EXORBITANTLY HIGH AND UNJUSTIFIED. NO PRO FIT AT ALL SHOULD HAVE BEEN CHARGED ON THE ABOVE RECEIPTS THEREFORE THE ENTIRE ADDITION OF NET PROFIT SHOULD BE DELETED OR IN THE ALTERNATIVE THE ESTIMATION OF NET PROFIT RATE MAY PLEASE BE REDUCED REASONABLY. I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 4 4.1 THE ISSUE RAISED IN THIS GROUND WAS LINKED TO G ROUND NO. 1 & 2 RAISED BY THE ASSESSEE WHICH READ AS FOLLOWS: 1. THE LD CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE BUSINESS CARRIED OUT AT PATNA FOR SECURITY SERVICE BELONG TO THE ASSESSEE AND THEREBY CONFIRMING THE RECEIPT OF RS.51 33 559/ - IN THE HANDS OF ASSESSEE AS BUSINESS RECEIPT IS NOT JUSTIF IED. THE ASSESSEE HAD NO ROLE IN THE PATNA BUSINESS. IT WAS FRAUDULENTLY SECURED BY MANDHUP KUMAR SINGH. THEREFORE THE TRE ATMENT OF RECEIPT OF RS.51 33 559/- AS ASSESSEES RECEIPT IS NOT JUSTIFIED SHOULD BE QUASHED IN TOTO. 2. THAT LD CIT(A) IS NOT JUSTIFIED IN CONFIRMING TH E ADDITION OF RS.24 89 710/- ON ACCOUNT OF RECEIPTS FROM BHEL BHOPAL FOR THE ASSESSMENT YEAR 2009-10. THE BILLS FOR THESE P AYMENTS WERE RAISED IN THE MONTH OF APRIL 2009 AND THEY WE RE RECEIVED IN FINANCIAL YEAR 2009-10 RELEVANT TO ASSESSMENT YE AR 2010-11 AND WERE ACCORDINGLY DECLARED BY THE ASSESSEE. THE ESTIMATION OF PROFIT ON 24 89 710/- IS NOT JUSTIFIED SHOULD B E DELETED. 4.2 IN GROUND NO. 3 THE ASSESSEE IS AGGRIEVED WITH THE ESTIMATION OF 40% ON THE ALLEGED RECEIPT OF RS.51 33 559/- AND R S.24 89 710/-. OUT OF THESE TWO RECEIPTS THE ASSESSEE HAS CLAIMED THAT R S.51 33 559/- WAS NEVER RECEIVED BY HIM AND IT WAS RECEIVED BY SHRI M ADHUP SINGH IN THE BANK ACCOUNT OPERATED BY HIM WITH THE FORGED SIGNAT URE OF THE ASSESSEE. THE REMAINING AMOUNT OF RS.24 89 710/- RECEIVED FRO M BHEL WAS CLAIMED TO HAVE BEEN SHOWN IN SUBSEQUENT YEAR. TRIBUNAL HA S APPRECIATED THE CONTENTION OF THE ASSESSEE AND RESTORED ALL THE ISS UES RELATING TO THE ALLEGED RECEIPTS OF RS.51 33 559/- AND RS.24 89 710 /- TO THE FILE OF THE ASSESSING OFFICER FOR CARRYING OUT NECESSARY VERIFI CATION AND DECIDE AFRESH. RELEVANT FINDING OF THE TRIBUNAL READS AS UNDER: 8. IN OUR CONSIDERED VIEW MERELY BECAUSE A PAYME NT IS REFLECTED IN AS-26 AND IS SHOWN TO HAVE BEEN MADE T O THE ASSESSEE IT CANNOT BE BROUGHT TO TAX IN HIS HANDS WHEN THE SAID MONEY IS NOT RECEIVED BY THE ASSESSEE. WE HAV E NOTED THAT THE STAND OF THE ASSESSEE IS THAT THESE PAYMEN TS MADE BY BPCL AIR AND IOC WERE NEVER RECEIVED BY THE ASSESS EE AND I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 5 THE MONIES RECEIVED FRAUDULENTLY IN THE NAME OF AN D ON BEHALF OF THE ASSESSEE WERE RECEIVED BY SOME OTHER PERSON . NEITHER THIS ASPECT OF THE MATTER IS EXAMINED ON MERITS NO R ANY EFFORT IS MADE TO FIND OUT THROUGH APPROPRIATE INQUIRIES T HROUGH RELATED BANKS THE ACTUAL BENEFICIARY OF THESE PAYM ENTS. IT IS ONLY ELEMENTARY THAT INCOME TAX PROCEEDINGS ARE NOT ADVERSARIAL PROCEEDINGS AND THE POWERS VESTED IN TH E INCOME TAX AUTHORITIES ARE TO BE USED WHEN CIRCUMSTANCES S O WARRANT OR JUSTIFY. IT IS A FIT CASE IN WHICH THE ASSESSING OFFICER OUGHT TO HAVE ESTABLISHED THE TRAIL OF MONEY AND FIND OUT AC TUAL BENEFICIARY OF THE PAYMENTS WHICH WERE ADMITTEDLY M ADE THROUGH BANKING CHANNELS. AS A MATTER OF FACT ASSES SEE HAS GIVEN AMPLE EVIDENCE THAT SOME OTHER PERSON HAD OPE NED A BANK ACCOUNT IN ASSESSEE'S NAME AND APPROPRIATED TH E FUNDS ON HIS OWN IN SUCH ACCOUNT. ALL THESE FACTS REQUIR E TO BE PROPERLY INVESTIGATED. IN THIS VIEW OF THE MATTER WE DELETE THE ADDITIONS IN RESPECT OF MONIES SAID TO HAVE BEEN PA ID BY BPCL AIR AND IOC AND RESTORE THE MATTER TO THE FILE OF T HE AO WITH THE DIRECTION THAT THE SAME CAN BE BROUGHT TO TAX I N THE HANDS OF THE ASSESSEE ONLY WHEN A RESULT OF PROPER INQUI RIES TO BE CARRIED OUT IN THE LIGHT OF OUR ABOVE OBSERVATIONS AND AFTER CONFRONTING THE ASSESSEE IT CAN BE ESTABLISHED THA T ASSESSEE WAS ACTUAL BENEFICIARY OF THESE PAYMENTS. IN ANY OT HER CASE THE APPROPRIATE ACTION IS TO BE TAKEN IN THE HANDS OF THE ACTUAL BENEFICIARY OF THESE PAYMENTS. 9. AS FAR AS THE VARIATION IN BHEL RECEIPTS (RS.24 89 710/-) WE DIRECT THE ASSESSING OFFICER TO EXAMINE THE EXPL ANATION OF THE ASSESSEE ON MERITS AND IN THE EVENT OF THESE RE CEIPTS HAVING BEEN INCLUDED IN THE RECEIPTS DISCLOSED FOR THE SUBSEQUENT YEAR ON ACCOUNT OF LATE RECEIPTS EXCLUD E THE SAME FOR DOUBLE TAXATION IN THIS YEAR AS WELL. 4.3 WE THEREFORE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL DELETE THIS ADDITION OF RS.30 77 970/- CALCULATED BY CIT(A ) APPLYING 40% NET PROFIT RATE ON CONCEALED RECEIPTS AS THE ISSUE OF ALLEGED GROSS RECEIPT HAS ITSELF BEEN REMITTED TO ASSESSING OFFICER FOR REVERIFICATI ON. HOWEVER OUR THIS DECISION OF DELETING THE IMPUGNED ADDITION CONFIRME D BY THE CIT(A) SHOULD NOT BE TAKEN AS A PRECEDENCE AND LOWER AUTHORITIES WILL BE FREE TO DECIDE THE CASE ON MERITS AFTER THE COMPLETION OF ASSESSME NT PROCEEDINGS CARRIED ON BY THE ASSESSING AUTHORITY AS PER THE FINDING AN D DIRECTION OF THE I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 6 TRIBUNAL VIDE ORDER DATED 30/03/2015. GROUND NO. 3 OF THE ASSESSEES APPEAL IS ALLOWED. 5. NOW WE TAKE UP REVENUES APPEAL IN I.T.A.NO.173/ JAB/2014. GROUND NO. 1 RELATES TO THE RELIEF GRANTED BY CIT(A) SUSTA INING ADDITION ONLY TO THE EXTENT OF 40% OF THE CONCEALED RECEIPT OF RS.76 94 626/-. WE FIND THAT WE HAVE ALREADY ADJUDICATED THIS ISSUE WHILE DEALING G ROUND NO. 3 OF THE ASSESSEES APPEAL AND DELETED THE IMPUGNED ADDITION OF 40% IN VIEW OF THE ORDER OF THE TRIBUNAL DATED 30/03/2015 RESTORING AL L THE ISSUES RELATING TO ALLEGED GROSS RECEIPTS TO THE FILE OF THE ASSESSING OFFICER FOR CARRYING OUT NECESSARY VERIFICATION. THIS GROUND OF THE REVENUE IS DISMISSED. 6. GROUND NO. 2 OF THE REVENUES APPEAL RELATES TO THE DELETION OF ADDITION OF RS.4 33 505/- MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF UNEXPLAINED PAYMENT OF SERVICE TAX. WE FIND THAT T HE ASSESSEE HAS PAID THE SERVICE TAX AMOUNT THROUGH BANKING CHANNEL. CH ALLANS OF THE PAYMENT OF TAX WERE PLACED ON RECORD BEFORE THE ASSESSING A UTHORITY. THE SOURCE OF ALLEGED SERVICE TAX AMOUNT IS WELL EXPLAINED IN THE BOOKS OF ACCOUNT. WE THEREFORE FIND NO INFIRMITY IN THE ORDER OF CIT(A) DELETING THE ADDITION OF RS.4 33 505/-. THIS GROUND OF REVENUE IS DISMISSED . 7. GROUND NO. 3 OF THE REVENUES APPEAL IS GENERAL IN NATURE AND DO NOT REQUIRE ANY SPECIFIC ADJUDICATION THEREFORE THE SA ME IS DISMISSED. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED WHEREAS THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON 08/11/2 017 SD/. SD/. (PARTHA SARATHI CHAUDHURY) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:08/11/2017 *SINGH I.T.A. NO. 173 & 137 /JAB/201 4 ASSESSMENT YEAR:2009-10 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R. ASST T. REGISTRAR