ACIT, CHITTORGARH v. M/s. Sarvodaya Mining Services, CHITTORGARH

ITA 392/JODH/2013 | 2003-2004
Pronouncement Date: 30-04-2014 | Result: Dismissed

Appeal Details

RSA Number 39223314 RSA 2013
Assessee PAN AAVFS4002P
Bench Jodhpur
Appeal Number ITA 392/JODH/2013
Duration Of Justice 10 month(s) 17 day(s)
Appellant ACIT, CHITTORGARH
Respondent M/s. Sarvodaya Mining Services, CHITTORGARH
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 08-04-2014
Date Of Final Hearing 08-04-2014
Next Hearing Date 08-04-2014
Assessment Year 2003-2004
Appeal Filed On 12-06-2013
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NOS.392 & 393/JODH/2013 (A.YS. 2003-04 & 2004-05) ACIT CIRCLE VS. M/S. SARVODAYA MINING CHITTORGARH. SERVICES ANJANA COMPOUND CIRCUIT ROAD NIMBAHERA CHITTORGARH. PAN NO. AAVFS 4002 P (APPELLANT) (RESPONDENT) ITA NO.273/JODH/2013 (A.Y. 2003-04) ACIT CIRCLE VS. SMT. KAMLA DEVI JAIN CHITTORGARH. PROP. M/S. SARASWATI FREIGHT CARRIER NIMBAHERA CHITTORGARH. PAN NO. AAOPJ 2999 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.K. GARGIEYA & SHRI DINESH SHRIMALI. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 08/04/2014. DATE OF PRONOUNCEMENT : 30/04/2014. 2 O R D E R PER N.K. SAINI A.M THESE APPEALS FILED BY THE DEPARTMENT HAVING IDENT ICAL ISSUES WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 THE APPEALS IN I.T.A.NOS. 392 & 393/JODH/2013 ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 28/03/2013 AND THE A PPEAL IN I.T.A.NO. 273/JODH/2013 AGAINST THE ORDER DATED 01/03/2013 OF LD. CIT(A) UDAIPUR. 3. FIRST WE WILL DEAL WITH I.T.A.NO. 392/JODH/2013. THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER:- ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN:- DELETING THE ADDITION OF RS. 23 00 000/- MADE U/S 68 OF THE I.T. ACT ON PROTECTIVE BASIS DESPITE THE FACT THAT SHRI SHANTI LAL JAIN WHERE THE SUBSTANTIVE ADDITION IS MADE HAS DISPUTED THE ADDIT ION & ISSUE HAS NOT REACHED FINALITY. THAT THE APPELLANT CRAVES TO ADD AMEND ALTER DE LETE OR MODIFY ANY ARE ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME ON 18/11/2003 DECLARING AN INCOME OF RS. 12 66 147/- WHICH WAS 3 PROCESSED UNDER SECTION 143(1)(A) OF THE I.T. ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) ON 29/09/2004. LATER ON CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED AT AN INCOME OF RS. 40 98 870/- BY MAKING VARIOUS ADDITIONS ON 20/0 3/2006 UNDER SECTION 143(3)/147 OF THE ACT. IN THE SAID ASSESSMENT ONE OF THE ADDITION OF RS. 23 LAC WAS MADE ON PROTECTIVE BASIS ON ACCOUNT OF ENTRIES PASSED ON SHRI SHANTI LAL JAIN. THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE LD. CIT(A) WHO DELETED THE ADDITION OF RS. 23 LAC VIDE ORDER DATED 31/12/2008. AGAINST THE SAID ORDER REVENUE PREFER RED AN APPEAL BEFORE THE ITAT JODHPUR WHEREIN VIDE ORDER DATED 02/03/201 0 IN I.T.A.NO. 99/JU/2009 THE MATTER WAS RESTORED BACK TO THE LD. CIT(A). ON THE DIRECTION OF THE ITAT THE LD. CIT(A) PROCEEDED TO DECIDE THE APPEAL. THE ASSESSEE FURNISHED THE WRITTEN SUBMISSIONS BEFO RE THE LD. CIT(A) WHICH IS REPRODUCED VERBATIM AS UNDER:- D. SIR FOR THE SAKE OF CONVINCE AND FACILITY FOR B OTH THE A. Y. 2003-04 & 2004-05 SINCE INVOLVING COMMON POINT AND ISSUE AS P ER TRIBUNAL DIRECTION COMMON REPLY IS BEING SUBMITTING. E. SIR HAVING REGARD TO THE ENTIRE FACT OF THE CAS E WRITTEN SUBMISSION OF THE COURSE PAPER BOOK FILED BEFORE THE CIT(A) AND FURTHER RECORDING OF STATEMENT OF SHRI SHANTI LAL JI JAIN ASHOK KUMAR J AIN S/O SHRI SHANTI LAL JI JAIN AND RECORDING OF STATEMENT OF SHRI GAJENDRA PORWAL LETTER ADDRESSED BY SHRI SHANTI LAL JAIN (GODHA) AND AFFIDAVIT ETC. WE ARE O F THE STRONG OPINION THAT TO DECIDE THE POINT IN ISSUE WHICH IS SUBJECT MATTER O F TRIBUNAL DIRECTION RECORD IS BEING CALLED FOR - 4 E-1. ASSESSMENT RECORD OF SHRI SHANTI LAL JI JAIN A SEARCH CASE ASSESSED TO TAX WITH ACIT CENTRAL CIRCLE UDAIPUR. E-2. COPY OF ASSESSMENT ORDER PASSED BY ACIT CENTR AL CIRCLE UDAIPUR IN CASE OF SHRI SHANTI LAL JI JAIN ASHOK KUMAR JAIN SMT. PRABHA JAIN W/O SHRI SHANTI LAL JI JAIN SEEMA JAIN BECAUSE SHRI SHANTI LAL JI JAIN HAS OFFERED 1.06 04 000/- FOR THE BLOCK PERIOD 1999-2000 TO 200 5-06 FOR TAXATION BEFORE THE INCOME TAX SETTLEMENT COMMISSIONER AND S ETTLEMENT COMMISSIONER VIDE ORDER DT. 29.03.2008 IN SETTLEMEN T PETITION NO. RJ/UDI/ 2006-07/192 193 194 195 ACCEPTED OFFER INCOME AN D SETTLEMENT SHRI SHANTILAL JI JAIN MOVED AND APPLICATION U/S 245C(1) BEFORE THE PRINCIPLE BENCH NEW DELHI ON 27.11.2006 CASE SETTLED. E-3. AT PAGE NO. 7 & 8 PARA NO. 20 THE HON'BLE MEBM ER OF ITAT AS COMMENTED CERTAIN REMARKS TO THE DIRECTION GIVEN BY THE HON'B LE HIGH COURT WHO PASSED ORDER U/S 245D(4) OF THE I. T. ACT WHICH IS CONTRA RY TO THE LAW AND HON'BLE MEMBER OF ITAT IS BOUND TO FOLLOW THE DECISION OF A ND FINDING GIVEN BY THE HON'BLE SETTLEMENT COMMISSION AND HON'BLE HIGH COUR T OF RAJASTHAN. E-4. IN OUR HUMBLE OPINION WE RESPECTFULLY SUBMITTE D THAT SOME OF THE FINDING GIVEN WHICH RESULTED THE SET ASIDE OF ORDER OF CIT(A) BOTH THE YEARS BY THE CIT(A) BY THE HON'BLE ITAT IS TOTALLY IRRELEVAN T AND THE DECISION CITED OF HON'BLE HIGH COURT OF RAJASTHAN 212 ITR 445 AND THE DECISION OF HON'BLE SUPREME COURT 130 ITR 244 ON WHICH HONB'LE MEMBER R ELIED UPON IS NOT APPLICABLE TO THE PRESENT FACT OF THE CASE. E-.5 NOW WHERE HON'BLE ITAT A DENY THE FACT STATED IN AFFIDAVIT OF SHRI SHANTI LAL JI JAIN AND VARIOUS STATEMENT RECORDED. E-6. TRIBUNAL OBSERVE THAT FROM THE RECORD OR THERE IS NO MATERIAL ON RECORD THAT SHRI SHANTI LAL JI JAIN DISCLOSED SUCH UNEXPLA LNED INVESTMENT PAID TAX THEREON. HE FURTHER OBSERVE THAT ASSESSING OFFICER OF SHRI SHANTI LAL JI JAIN WAS ALSO REQUIRED TO EXAM AND MAKE ADDITION ON SUBSTANT IAL BASIS IN HIS CASE. E-7. SIR ONLY ON PERUSAL OF THE RECORD OF ASSESSME NT OF SHRI SHANTI LAL JI JAIN FROM THE CONCERNING OFFICIAL WHO PASSED ORDER IN CA SE OF SHRI SHANTI LAL JI JAIN IT CAN BE ASCERTAINED THAT IN HIS CASE ORDER P ASSED ON SUBSEQUENT BASIS ASSESSED SURRENDER INCOME AND PAID TAX THEREON AND SUBSEQUENT DEVELOPMENT PLACE BEFORE THE CIT(A). 5 E-8. SIR WE THEREFORE HUMBLY REQUEST AND PRAY THAT THE ORIGINAL ORDER OF CIT(A) PASSED IS REQUIRED TO BE SUSTAINED AS THE FACT WHIC H HAS BEEN BROUGHT BEFORE THE A. 0. AND CIT(A) MAKE IT CLEAR THAT IT IS THE M ONEY OF SHRI SHANTI LAL JAIN FROM HIS UNDISCLOSED SOURCES PROVIDED TO GAJENDRA P ORWAL ONWARD TRANSFERRED TO SARVODAYA MINING SERVICES NIMBAHERA IN HIS STAT EMENT SHRI SHANTI LAL JI JAIN ALSO DISCLOSED THE EARNING OF INCOME. SIMILARLY SHR I GAJENDRA PORWAL ALSO ADMIT THAT FACT STATED BY SHRI SHANTI LAL JI JAIN IN HIS AN AFFIDAVIT WE SHOWN TO (GAJENDRA PORWAL) DURING THE COURSE OF RECORDING OF STATEMENT IN CLEAR TERMS ADMIT THAT WHATEVER THE FACT STATED IN THE AFFIDAVI T BY SHRI SHANTI LAL JI JAIN IS TRUE AND CORRECT SHRI GAJENDRA PORWAL ALSO ADMITTED THE SUM OF RS.1.00 CRORE RECEIVED FROM SHRI SHANTI LAL JI JAIN. SIR SIMILARLY SHRI ASHOK KUMAR JAIN S/O SHRI SHANT I LAL JI JAIN BY PROFESSION IS A SENIOR QUALIFIED CHARTERED ACCOUNTANT ALSO STATED T HAT SEARCH OPERATION CARRIED OUT IN THE MONTH OF MARCH-2005 AND HE AWARE ABOVE THE ENTIRE. FACT AND HE FURTHER ADMIT AFTER SEEKING ADVICE HE WILL F ILED THE REVISE R.O.I SIR SHRI SHANTI LAL JI JAIN LETTER ADDRESS TO DCIT CHITTORGARH DT. 05.12.06 MADE IT CLEAR THAT HE ALREADY DECLARE FACT VIDE LETTER D T. 06.07.2006. 26.09.2006 28.06.2006 & 12.10.2006 WITH CIT CIRCLE WE HAVE EX PLALNED THE SOURCES OF CASH FUND. E-9. RESPECTED SIR WE STRONGLY RELYING UPON THE LA TEST DECISION OF HON'BLE HIGH COURT OF ALLAHABAD IN CASE OF CIT V/S DIKSHA SINGH DT. 24.08.2011 WHEREIN THE HON'BLE HIGH COURT IN DETAIL DISCUSSED THE PROV ISION OF SETTLEMENT UNDER PROCEDURE UNDER THE INCOME TAX LAW SETTLEMENT INCOM E TAX POWER AND AT PAGE NO. 13 PRESENT P. B. NO. 35 CLEARLY MENTIONED THAT AS PER PROVISION OF SECTION 245I IS FINAL AND CONCLUSION THE HONB'LE AL LAHABAD HIGH COURT ALSO RELIED UPON CASE OF SMT NIRU AGARWAL V/S UNION OF I NDIA 2011 330 ITR PAGE NO. 422. PLEASE REFER P. B. NO. 36 'THIS COURT IN THE CASE OF SMT. NEERU AGARWAL V. UN ION OF INDIA (2011) 330 ITR 422 (ALL.) HAS TAKEN A SIMILAR VIEW BY OBSERVING TH AT THE SETTLEMENT COMMISSION IS REQUIRED TO DECIDE THE DISPUTE BY PAS SING SUCH ORDER AS IT THINKS FIT ON THE MATTERS COVERED BY THE APPLICATION BUT REFERRED TO IN THE REPORT OF THE COMMISSION UNDER SUB-SECTION (1) OR SUBSECTION (3). THUS AFTER PASSING THE ORDER BY THE SETTLEMENT COM MISSIONER NO POWER VESTS ON THE A. 0. OR ANY OTHER AUTHORITY TO ISSUE THE NOTICE IN RESPECT OF THE PERIOD AND INCOME COVERED BY THE ORDER OF THE SETTL EMENT COMMISSION. THERE 6 IS ONLY ONE EXPECTATION I.E. FRAUD OR MISREPRESENTA TION OF FACT AND FOR THAT PURPOSE THE REMEDY LIES ONLY BEFORE THE SETTLEMENT COMMISSION. THUS WE ARE OF THE VIEW THAT THE ORDER OF THE SETTLEMENT COMMIS SION IS CONCLUSIVE NO POWER VESTS IN THE ASSESSING OFFICER TO ISSUE NOTIC E IN RESPECT OF THE PERIOD AND INCOME COVERED BY THE ORDER OF THE SETTLEMENT COMMI SSION.' E-10. LAW DOES NOT PERMIT TO TAX THE SAME INCOME IN THE TWO DIFFERENT HAND AND ONCE THE MATTER IS SUBJECT MATER OF APPEAL SINC E THE RECORD OF SHRI SHANTI LAL JI JAIN WILL REVEAL THAT IN ANY CASE SUBSTANTIV E ASSESSMENT MADE BY THE A. O. CONFIRM BY THE SETTLEMENT COMMISSION THEN IN CASE O F PRESENT APPELLANT THE AMOUNT TO DOUBLE TAXATION WHICH IS NOT PERMISSIBLE UNDER THE LAW AND FOR THIS PROPOSITION FOLLOWING JUDGMENT. I. 212 ITR 445 RAJASTHAN HIGH COURT II. II. 175 ITR 294 (M. P. HIGH COURT) III. 154 ITR 245 (M.P. HIGH COURT) IV. DECISION OF MUMBAI HIGH COURT 139 ITR 880 IN ALL THE CASES IT WAS HELD WHEN THE SUBSTANTIVE B ECOME FINAL THE PROTECTIVE ASSESSMENT MUST BE VACATED. 5. THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE OBSERVED THAT INCOMPLIANCE TO THE ORDER O F THE ITAT HIS PREDECESSOR HAD WRITTEN A LETTER NO. CIT(A)/UDR/201 1-12/128 DATED 27/05/2011 AND REQUISITIONED THE CASE RECORDS OF SH RI SHANTI LAL JAIN FOR THE A.Y. 2003-04 TO THE CONCERNED ASSESSING OFFICER WHO SENT THE CASE RECORDS OF SHRI SHANTI LAL JAIN VIDE HIS OFFICE LET TER NO. ACIT/C- 1/UDR/2011-12/971 DATED 20/06/2011. THE LD. CIT(A) FURTHER OBSERVED THAT IN THE SAID RECORD IT WAS FOUND THAT IMPUGNED AMOUNT OF RS. 23 LAC HAS BEEN ADMITTED BY SHRI SHANTI LAL JAIN IN HIS AF FIDAVIT GIVEN TO THE 7 ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS AND HAD BEEN ADDED IN HIS INCOME ON SUBSTANTIVE BASIS AND T HAT HIS PREDECESSOR DELETED THE SAID ADDITION BY OBSERVING AS UNDER:- I HAVE GONE THROUGH THE ASSESSMENT FOLDER OF SHRI SHANTI LAL JAIN FOR THE AY 2003-04 AT PARA 16.4 AT PAGE 19 AND FOUND THAT THE SAID AMOUNT OF RS. 23.00 LACS AS ADMITTED BY SHRI SHANTI LAL JAIN IN H IS AFFIDAVIT GIVEN TO THE AO DURING THE ASSESSMENT PROCEEDINGS HAS BEEN ADDED IN HIS INCOME ON SUBSTANTIVE BASIS. THEREFORE THE ADDITION OF RS. 23.00 LAC U/S 68 MADE IN THE CASE OF THE APPELLANT ON PROTECTIVE BASIS IS DE LETED AND THE APPEAL IS ALLOWED. 6 . LD. CIT(A) AFTER CONSIDERING THE ENTIRE FACTS AS DISCUSSED HEREINABOVE CAME TO THE CONCLUSION THAT THE SAID AM OUNT OF RS. 23 LAC WAS ADMITTED BY SHRI SHANTI LAL JAIN IN HIS AFFIDAV IT GIVEN TO THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HAD BEEN ADDED IN HIS INCOME ON SUBSTANTIVE BASIS ACCORDINGLY IM PUGNED AMOUNT WAS DELETED. NOW THE DEPARTMENT IS IN APPEAL. 7 . LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF TH E ASSESSING OFFICER BUT COULD NOT CONTROVERT THE FINDINGS GIVE N BY THE LD. CIT(A). 8 . IN HIS RIVAL SUBMISSIONS LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND STRO NGLY SUPPORTED THE IMPUGNED ORDER. 8 9 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PAR TIES AND THE MATERIAL ON RECORD IT IS NOTICED THAT SHRI SHANTI LAL JAIN IN HIS AFFIDAVIT FURNISHED TO THE ASSESSING OFFICER HAS ACCEPTED THA T THE IMPUGNED AMOUNT BELONGED TO HIM AND IT WAS ADDED IN HIS HAND S ON SUBSTANTIVE BASIS. THEREFORE THE ADDITION MADE IN THE HANDS O F THE ASSESSEE ON PROTECTIVE BASIS WAS RIGHTLY DELETED BY THE LD. CIT (A). WE DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS GIVEN B Y THE LD. CIT(A). IN THAT VIEW OF THE MATTER WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 10 . THE FACTS INVOLVED IN I.T.A.NO. 393 & 273/JODH/20 13 ARE SIMILAR AS WERE INVOLVED IN I.T.A.NO. 392/JODH/2013 (SUPRA) TH E ONLY DIFFERENCE IS IN THE FIGURE OF THE PROTECTIVE ADDITION MADE THEREFO RE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATI S-MUTANDIS TO THESE APPEALS ALSO. 11 . IN THE RESULT APPEALS OF THE DEPARTMENT ARE DISM ISSED. (ORDER PRONOUNCED IN THE COURT ON 30 TH APRIL 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH APRIL 2014. 9 VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR ITAT JODHPUR.