Shri Ratilal Khushaldas Mali, Navsari v. The ACIT., Navsari Circle,, Navsari

ITA 1781/AHD/2007 | 1994-1995
Pronouncement Date: 27-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 178120514 RSA 2007
Assessee PAN ADBPM3081F
Bench Ahmedabad
Appeal Number ITA 1781/AHD/2007
Duration Of Justice 3 year(s) 3 month(s) 27 day(s)
Appellant Shri Ratilal Khushaldas Mali, Navsari
Respondent The ACIT., Navsari Circle,, Navsari
Appeal Type Income Tax Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 27-08-2010
Date Of Final Hearing 01-07-2010
Next Hearing Date 01-07-2010
Assessment Year 1994-1995
Appeal Filed On 30-04-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABA D (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON'BLE S HRI N.S. SAINI A.M.) I.T.A. NOS. 1781 1782 1783 & 1784/AHD./2007 ASSESSMENT YEARS : 1994-1995 1995-1996 1996-1997 & 1997-1998 SHRI RATILAL KHUSHALDAS MALI NAVSARI -VS.- A SSISTANT COMMISSIONER OF INCOME TAX (PAN : ADBPM 3081 F) NAVSARI CIRCLE NAVSARI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SHRI GAURAV BOTHAM D. R. O R D E R PER BENCH : THESE FOUR APPEALS FILED BY THE ASSESSEE ARE AGAIN ST THE FOUR DIFFERENT ORDERS ALL DATED 31.01.2007 OF LEARNED COMMISSIONER OF INCOME TAX(AP PEALS) VALSAD FOR THE ASSESSMENT YEARS 1994-95 TO 1997-98. 2. ALL THESE APPEALS WERE HEARD ON THE SAME DATE A RGUED BY COMMON LD. REPRESENTATIVE THEREFORE THESE ARE DECIDED BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 3. GROUND NO. 1 OF ASSESSEES APPEAL FOR THE ASSESS MENT YEAR 1994-95 IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN UPHOLD ING THE ACTION OF ASSESSING OFFICER REGARDING REOPENING OF ASSESSMENT UNDER SECTION 147 / 148 OF THE INCOME TAX ACT 1961. 3.1. THIS GROUND OF APPEAL WAS NOT PRESSED BY THE L D. COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING THEREFORE THE SAME IS BEING DISMISSED AS NO T PRESSED. 4. THE GROUNDS NO. (II) (III) & IV) ARE COMMON WIT H EACH OTHER RAISED BY THE ASSESSEE IN ASSESSMENT YEARS 1994-95 TO 1996-97 EXCEPT DIFFERE NCE IN FIGURES WHICH READ AS UNDER :- (II) CAPITAL GAINS :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERR ED IN HOLDING THAT RS.17 83 657/- (FOR THE AY 1994-95) RS.30 71 110/- (FOR THE AY 1995-96) AND RS.16 96 925/- (FOR THE AY 1996-97) RE CEIVED ON SALE 2 ITA NOS . 1781-1784/AHD/2007 OF VALUE OF PLOTS WAS TAXABLE AS BUSINESS INCOME INSTEAD OF CAPITAL GAINS. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS MADE A FACTUALLY INCORRECT STATEME NT BY STATING THAT THE PLOTTING WAS DONE BY BOTH THE PARTIES TOGE THER WHEN THE ASSESSEE HAD NOTHING TO DO WITH IT AND THAT THERE I S NO EVIDENCE TO INDICATE OTHERWISE. (3) THE APPELLANT FURTHER SUBMITS THAT THE LEARNED COMM ISSIONER OF INCOME TAX(APPEALS) HAS MADE A FACTUALLY INCORRECT STATEMENT WHEN HE STATES THAT THE PART OF THE ON MONEY COLLECTED WAS RECEIVED BY THE APPELLANT WHEN THE ENTIRE MONEY WAS RECEIVED BY THE BUILDER. (4) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE CONSIDERED THE JUDGMENTS AND THE VARIOUS ASPECTS BROUGHT OUT IN DETERMINING THIS ISS UE. (III) ON MONEY :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERR ED IN CONFIRMING RECEIPT OF ON MONEY BEYOND RS.47/- WHE N THE APPELLANT HAD NOT RECEIVED ANY SUCH ON MONEY NOR ADMITTED HAVING RECEIVED SUCH MONEY AND THERE IS NO EVIDENCE IN THIS REGARD. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADD ITION IS REQUIRED TO BE DELETED. (IV) PROTECTIVE ADDITION :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUG HT TO HAVE DELETED PROTECTIVE ADDITION OF RS.81 97 315/- (FOR THE AY 1994-95) RS.50 78 330/- (FOR THE ASSESSMENT YEAR 1 995-96) AND RS.66 18 710/- (FOR THE ASSESSMENT YEAR 1996-97 ) WHEN THE ASSESSEE HAD NOT RECEIVED ANY SUCH AMOUNT NOR H E HAD CLAIMED TO HAVE RECEIVED ANY SUCH AMOUNT. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT PROPERLY FOLLOWED THE D IRECTION OF THE TRIBUNAL WHEN WHAT WAS KEPT PENDING FOR THE ORDER OF THE SETTLEMENT COMMISSION WAS THE EXTENT OF ON MON EY RECEIVED BY THE APPELLANT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE PROT ECTIVE ADDITION IS REQUIRED TO BE DELETED. 3 ITA NOS . 1781-1784/AHD/2007 4.1. THE GROUNDS NO. (II) (III) & (IV) FOR THE ASS ESSMENT YEAR 1997-98 RAISED BY THE ASSESSEE ARE AS UNDER :- ON MONEY :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERR ED IN MAKING ADDITION OF RS.1 00 854/- BEING ON MONEY RECEIVED UPTO RS.57 /- PER SQ.FT. WHEN THE ASSESSEE HAD NOT RECEIVED NOR ADMITTED TO HAVE RECE IVED ANY SUCH AMOUNT. (2) THE APPELLANT SUBMITS THAT NEITHER THE ASSESSEE HAD ADMITTED DURING THE COURSE OF SEARCH OR AT ANY OTHER TIME OF ANY SUCH A MOUNT HAVING BEEN RECEIVED AND THEREFORE THIS AMOUNT IS REQUIRED TO BE DELETED ALTOGETHER. (III) ON MONEY ON DOCUMENTS DIRECTLY EXECUTED BY TH E APPELLANT :- (1) THE ASSESSING OFFICER ERRED IN MAKING ADDITION OF R S.32 86 396/- BEING THE AMOUNT RECEIVED FROM THE PARTIES TO WHOM THE A MOUNTS WERE SOLD WHEN THOSE PARTIES HAD CATEGORICALLY STATED BY AFFI DAVITS THAT THERE HAS BEEN NO PAYMENT OF ON MONEY BY THEM IN PURCHASE O F PLOTS. (2) THE APPELLANT SUBMITS THAT THERE WAS NO JUSTIFICATI ON FOR NOT ACCEPTING THE AFFIDAVIT WITHOUT CROSS EXAMINING THE DEPONENTS AND IN ABSENCE OF ANY EVIDENCE TO THE CONTRARY THE AMOUNT OF RS.32 86 396 /- OUGHT NOT TO HAVE BEEN ADDED. (IV) PROTECTIVE ADDITION :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUG HT TO HAVE DELETED PROTECTIVE ADDITION OF RS.8 95 824/- W HEN THE ASSESSEE HAD NOT RECEIVED ANY SUCH AMOUNT NOR HE HA D CLAIMED TO HAVE RECEIVED ANY SUCH AMOUNT. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT PROPERLY FOLLOWED THE D IRECTION OF THE TRIBUNAL WHEN WHAT WAS KEPT PENDING FOR THE ORDER OF THE SETTLEMENT COMMISSION WAS THE EXTENT OF ON MON EY RECEIVED BY THE APPELLANT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE PROTECTIVE ADDITION IS REQUIRED TO BE DELETED. 5. WITH REGARD TO CONTROVERSY INVOLVED IN THE AFORE SAID THREE GROUNDS OF APPEALS THE LD. COUNSEL OF THE ASSESSEE EXPLAINED THAT THIS IS THE SECOND ROUND OF LITIGATION. IN ALL THE ASSESSMENT YEARS UNDER APPEALS THE MAIN GROUND RELATES TO ADD ITION MADE ON ACCOUNT O ON-MONEY IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. THE ADDI TION MADE IN ORIGINAL ASSESSMENT WAS SET ASIDE TO THE FILE OF ASSESSING OFFICER BECAUSE THE PERSONS IN WHOSE HANDS ADDITIONS WERE MADE 4 ITA NOS . 1781-1784/AHD/2007 SUBSTANTIALLY WERE BEFORE THE SETTLEMENT COMMISSION AND THE HON'BLE SETTLEMENT COMMISSION HAD ADMITTED SETTLEMENT APPLICATION FILED BY SHRI M ADHUBHAI PATEL SHRI MAGANBHAI PATEL AND M/S. VIJAY ENTERPRISES FOR VARIOUS YEARS. THE ITAT RESTORED THE MATTER TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO REFRAME THE ASSESSMEN T AFRESH ON ALL THE ISSUES RAISED IN THESE APPEALS KEEPING IN VIEW THE FINDINGS OF SETTLEMENT COMMISSION. WHILE RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER THE ITAT OBSERVED AS UNDER :- WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS . AS IT HAS BEEN FOUND FROM THE COPY OF THE ABOVE LETTER PRODUCED BY THE L D. D.R. THE MATTER REGARDING ADDITION ON ACCOUNT OF ON MONEY IS UNDE R ACTIVE CONSIDERATION OF SETTLEMENT COMMISSION. IF THE SETTLEMENT COMMISS ION ACCEPT THE SUBSTANTIAL ADDITION IN THE HANDS OF ASSESSEE WHO H AVE BEEN SUBSTANTIALLY ASSESSED THEN THERE WILL BE NO QUESTION OF ASSESSIN G THE SAME IN THE HANDS OF PRESENT ASSESSEE. ACCORDINGLY THESE APPEALS ARE RESTORED BACK TO THE FILE OF A.O. WITH A DIRECTION TO REFRAME THE ASSESSMENT AFRESH ON ALL T HE ISSUES RAISED IN THESE APPEALS KEEPING IN VIEW THE FINDINGS OF SETTLEMENT COMMISSION AND ALSO AFTER GIVING AN EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE ON ALL COUNTS. ACCORDINGLY ALL THESE ASSESSMENTS ARE SET ASIDE TO THE FILE OF THE A.O. TO BE RE-DONE IN ACCORDANCE WITH OUR ABOVE DIRECTION. THE DEPARTMENTAL WEALTH TAX APPEALS BEING CONSEQUEN TIAL ARE ALSO SET ASIDE TO THE FILE OF THE A.O. WITH A DIRECTION TO ASSESS THE WEALTH OF THE ASSESSEE IN ACCORDANCE WITH INCOME-TAX ASSESSMENTS. 5.1. THE LD. COUNSEL OF THE ASSESSEE FURTHER EXPLAI NED THAT ON THE BASIS OF AFORESAID DIRECTIONS THE ASSESSING OFFICER FRAMED THE ASSESSMENTS FOR AL L THE FOUR ASSESSMENT YEARS UNDER APPEALS WITHOUT CONSIDERING THE ORDER OF HON'BLE SETTLEMENT COMMISSION. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT IT APPEARS THAT BY NOW THE H ON'BLE SETTLEMENT COMMISSION HAS PASSED THE ORDER ASSESSING OFFICER BE DIRECTED TO OBTAIN THE SAME AND RE-ADJUDICATE THE CONTROVERSY INVOLVED IN ALL THE GROUNDS OF APPEALS AFRESH. 6. ON THE OTHER HAND SHRI GAURAV BOTHAM LD. D.R. APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. HOWEVER HE SUBMITTED THAT THE ASSESSEE CAN ALSO OBTAIN THE ORDER OF SETTLEMENT COMMISSION AND PRODUCE THE SAME BEFORE THE ASSESSING OFFICER. 5 ITA NOS . 1781-1784/AHD/2007 7. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FOR ALL THE ASSESSMENT YEARS UNDER APPEALS IT IS PERTINENT TO NOTE THAT THE ADDITION MADE ON ACCOUNT OF ON MONEY IN THE HANDS OF THE ASSESS EE IS ON PROTECTIVE BASIS. THE PERSONS IN WHOSE HANDS ADDITIONS WERE MADE ON SUBSTANTIAL BASI S WERE BEFORE THE SETTLEMENT COMMISSION AND THE HON'BLE SETTLEMENT COMMISSION HAD ADMITTED SETTLEMENT APPLICATION FILED BY SHRI MADHUBHAI PATEL SHRI MAGANBHAI PATEL AND M/S. VIJA Y ENTERPRISES FOR VARIOUS YEARS. HOPEFULLY BY NOW THE ORDER OF SETTLEMENT COMMISSION IS AVAILA BLE. IN OUR OPINION IT IS NOT DIFFICULT FOR THE ASSESSING OFFICER TO OBTAIN THE SETTLEMENT COMMISSI ON IN THE CASE OF PERSONS IN WHOSE HANDS HE MADE THE ADDITION ON SUBSTANTIVE BASIS. THE ASSESSE E SHOULD ALSO MAKE AN EFFORT TO OBTAIN THE COPY OF THE ORDER OF SETTLEMENT COMMISSION. KEEPING IN VIEW THE DIRECTION OF THE TRIBUNAL ON THE BASIS OF WHICH ORIGINAL ASSESSMENTS WERE SET AS IDE SUBSEQUENT ASSESSMENTS MADE IN OUR OPINION IT WILL MEET THE END OF JUSTICE IF THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ON WHICH CONTROVERSY INVOLVED IN THE A FORESAID THREE GROUNDS OF APPEALS FOR ALL THE ASSESSMENT YEARS UNDER APPEALS IS SET ASIDE AND MA TTER IS RESTORED TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT HE SHOULD OBTAIN THE ORDER OF SETTLEMENT COMMISSION IN THE CASE OF THREE PERSONS NAMELY SHRI MADHUBHAI PATEL SHRI MAGANBHAI PATEL AND M/S. VIJAY ENTERPRISES AND RE- ADJUDICATE THE CONTROVERSY INVOLVED IN THE AFORESAI D THREE GROUNDS OF APPEALS AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EALS FILED BY THE ASSESSEE FOR ALL THE ASSESSMENT YEARS ARE TREATED AS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 27.08.201 0 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27/ 08 / 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 REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.