Ashish Ashoka Katariya,, Nashik v. Assistant Commissioner of Income-tax,,

ITA 524/PUN/2015 | 2008-2009
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 52424514 RSA 2015
Assessee PAN AIIPK8924H
Bench Pune
Appeal Number ITA 524/PUN/2015
Duration Of Justice 1 year(s) 5 month(s) 7 day(s)
Appellant Ashish Ashoka Katariya,, Nashik
Respondent Assistant Commissioner of Income-tax,,
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 30-09-2016
Assessment Year 2008-2009
Appeal Filed On 23-04-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE MS. SUSHMA CHOWLA JM AND SHRI ANIL CHATURVEDI AM . / ITA NO. 524 /PN/20 1 5 / ASSESSMENT YEAR: 200 8 - 09 MR. ASHISH ASHOK KATARIYA S.NO.861 ASHOKA HOUSE ASHOKA MARG WADALA N ASHIK 422011 . / APPELLANT PAN: A IIPK8924H VS. THE A SST . COMMISSIONER OF INCOME TAX CE NTRAL CIRCLE - 1 NASHIK . / RESPONDENT CE NTRAL CIRCLE - 1 NASHIK . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPOND ENT BY : SHRI RAJEEV KUMAR CIT / DATE OF HEARING : 2 1 .0 9 .201 6 / DATE OF PRONOUNCEMENT: 30 . 0 9 .201 6 / ORDER PER SUSHMA CHOWLA JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST ORDER OF CIT (A) - 12 PUNE DATED 02 . 0 3 .201 5 RELATING TO ASSESSMENT YEAR 200 8 - 09 AGAINST ORDER PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) . UNDER SECTION 143(3) R.W.S. 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL : - ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 2 1 ) THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.30 55 000/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN CO - OWNED FLAT NO.203 I N BUILDING NAMED RNA AZURE AT BANDRA MUMBAI BY WAY OF UNRECORDED CASH PAYMENTS OVER AND ABOVE THE DOCUMENT PRICE FOR THE REASONS MENTIONED IN HIS ORDER. HE OUGHT NOT TO HAVE IGNORED ITAT MUMBAI BENCH DECISION IN THE CASE OF VENDOR SUBMITTED DURING T HE COURSE OF HEARING BEFORE HIM. THEREFORE IT IS PRAYED TO CANCEL THE ADDITION OF RS.30 55 000/ - . 3. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE ADDITION MADE OF RS. 30 55 000/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN FLAT NO.203 IN R NA AZURE AT BANDRA MUMBAI. 4. BRIEFLY IN THE FACTS OF THE CASE SEARCH AND SEIZURE OPERATIONS UNDER SECTION 132 OF THE ACT WERE CONDUCTED IN THE ASHOKA GROUP OF CASES ON 20.04.2010. THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INCOME ON 28.09.2008 D ECLARING TOTAL INCOME OF RS. 17 24 510/ - AND AGRICULTURAL INCOME OF RS. 45 315/ - . NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED TO THE ASSESSEE IN TURN THE ASSESSEE STATED THAT THE INCOME ORIGINALLY FILED SHOULD BE TREATED IN RESPONSE TO NOTICE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS CONFRONTED WITH PAGE 1 OF ANNEXURE - AB ITEM NO.2 FOUND AND SEIZED FROM THE OFFICE OF M/S. ASHOKA BUILDCON LTD. WHICH CONTAINED NOTINGS FOR PURCHASE OF MUMBAI FLATS. FLAT NUMBERS MENTIONED WERE 201 202 AND 203 IN RNA AZURE MUMBAI AND THE TOTAL COST MENTIONED WAS AT RS. 4 27 35 000/ - . IN REPLY TO THE QUERY RAISED MR. SATISH M. KULKARNI AS ST. MANAG ER OF M/S. ASHOKA BUILDCON LTD. HAD REPLIED THAT THE SAID FLATS WERE IN THE NAME S OF SHRI SATISH D. PAR EKH M/S. SATISH D. PAREKH (HUF) AND MRS. ASHA KATARIYA RESPECTIVELY. THE TOTAL COST OF THREE FLATS WERE NOTED AT RS.4.27 CRORES AS AGAINST THE AGREEMENT VALUE OF RS.2.56 CRORES. THE DIFFERENCE BETWEEN THE TOTAL COST AND AGREEMENT VALUE WAS RS. 1.71 CRORE S (APPROX.) . THE ASSESSING OFFICER PRESUMED THAT THE SAME WAS PARTLY PAID IN CASH AND OUT OF BOOKS OF ACCOUNT . THE ASSESSEE WAS THUS ASKED TO EXPLAIN THE NATURE OF TRANSACTION. IN REPLY THE ASSESSEE STATED THAT OUT OF THREE FLAT S FLAT NO.203 WAS PURC HASED JOINTLY IN THE NAME OF ASSESSEE AND SHRI SATISH D. PAREKH (HUF) AND ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 3 THE TOTAL CONSIDERATION FOR ALL THE FLATS WERE RS.2.56 CRORES AND THAT NO ON - MONEY WAS PAID. THE STATEMENT OF SHRI SATISH KULKARNI WAS STATED TO BE MADE ERRONEOUSLY ON ACCOUNT OF PR ESSURE OF SEARCH. THE ASSESSEE FURTHER POINTED OUT THAT WITH A VIEW TO SETTLE ITS CASE AND IN ORDER TO BUY PEACE OF MIND M/S. ASHOKA BUILDCON LTD. HAD CONSIDERED THE ALLOTTED ON - MONEY AGAINST THE PURCHASE OF FLATS IN ITS APPLICATION BEFORE THE SETTLEMENT COMMISSION. THE ASSESSING OFFICER DID NOT ACCEPT THE CONT ENTION OF ASSESSEE. HE FURTHER NOTED THAT THE ASSESSEE HAD NOT DENIED PURCHASING THE SAID FLAT IN HIS OWN NAME AND HAD ALSO INCLUDED ON - MONEY IN THE APPLICATION MADE BEFORE THE SETTLEMENT COMMISSI ON WHICH IN TURN IS AN ADMISSION OF HAVING PAID ON - MONEY COMPONENT IN CASH. THE ON - MONEY WAS THUS TAXED IN THE HANDS OF ASSESSEE WHEREIN THE TOTAL COST OF FLAT WAS RS. 1 40 25 000/ - ; AGREEMENT VALUE WAS RS. 84 15 000/ - ; PARKING EXTRA CASH OF RS. 5 LAKHS. THEREFORE THE ASSESSING OFFICER HELD THE ASSESSEE TO HAVE JOINTLY PAID CASH IN RESPECT OF PURCHASE OF THE SAID FLAT TOTALING RS. 61 10 000/ - AND 50% OF THE SAME I.E. RS. 30 55 000/ - WAS ADDED TO THE INCOME OF ASSESSEE AS INVESTMENT FROM UNDISCLOSED SOURCE S. 5. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER AFTER CONSIDERING THE ISSUE AT LENGTH INCLUDING THE PRICES CHARGED AND THE MARKET VALUE OF THE SAID ASSETS. THE CIT(A) WAS OF THE VIEW THAT WHERE THE PAYMENT OF ON - MONEY WAS ADMITTED BY THE EMPLOYEE THOUGH HE RETRACTED HIS STATEMENT LATER BUT THE SAME WAS HELD TO BE WITHOUT ANY BASIS. IN VIEW OF THE FACT THAT THE CORRECTNESS OF ONE PART OF CHEQUE PAYMENT IN THE SEIZED PAPER AND FURTHER THE ADMISSION OF EMPLOYEE AND ASSESSEES OWN ADMISSION AND ALSO ADMISSION BEFORE THE SETTLEMENT COMMISSION THE CIT(A) UPHELD THE ADDITION OF RS.30 55 000/ - . 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 4 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE TOTAL CASH CONSIDERATI ON AS DEPICTED IN THE SEIZED PAPER WAS RS.56 10 000/ - AND PARKING OF RS.5 LAKHS AND IN THE HANDS OF ASSESSEE AND CO - OWNER. HE POINTED OUT THAT THE SAID TRANSACTION HAS BEEN ADMITTED BY THE CONCERN M/S. ASHOKA BUILDCON LTD. IN THEIR SETTLEMENT PETITION. T HE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT IDENTICAL ISSUE OF ADDITION ON THE BASIS OF SAID DOCUMENT AROSE BEFORE MUMBAI BENCH OF TRIBUNAL IN M/S. A.A. ESTATE PVT. LTD. VS. ACIT IN ITA NO.2438/MUM/2013 RELATING TO ASSES SMENT YEAR 2008 - 09. THE TRIBUNAL VIDE ORDER DATED 05.02.2014 TOOK NOTE OF THE ANNEXURE - AB1 IN WHICH THE DETAILS IN RESPECT OF FLAT NUMBERS 201 202 AND 203 WERE MENTIONED I.E. THE SAME DOCUMENT AS BEEN RELIED UPON BY THE ASSESSING OFFICER IN THE CASE OF ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE DECISION OF TRIBUNAL IN PARA 9 WHERE IT HAS BEEN NOTED THAT DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS AT THE PREMISES OF THE SAID ASSESSEE AND SUBSEQUENT TO SEARCH NO CORRESPONDING INCRIMINATING MATERIAL WAS FOUND. FURTHER ONE OF THE PERSONS MENTIONED IN THE SAID DOCUMENT WAS EXAMINED BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMENT PROCEEDINGS WHO IN TURN HAD COMPLETELY DENIED THE FACT OF HAVING PAID ON - MONEY. THE TRIBUNAL THUS HELD THAT THE DOCUMENT WHICH WAS IN - COMPLETE I.E. IN RESPECT OF FLAT NO.203 THE NAME WAS MENTIONED AS NOT FINALIZED AND HENCE IT WAS NOT TO BE RELIED UPON. FURTHER AS PER THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSE E THE ISSUE HAS ALSO BEEN DECIDED ON MERITS VIDE PARA 12 AND THE ADDITION MADE IN THE HANDS OF ASSESSEE HAS BEEN DELETED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO REFERRED TO THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THE CASE OF OTHER CO - OWNER SHRI SATISH D. PAREKH (HUF) WHEREIN REFERENCE WAS MADE TO THE SAME SEIZED DOCUMENT AND THE PETITION MOVED BEFORE THE SETTLEMENT COMMISSION WHEREIN ALL THE ON - MONEY HAD BEEN CONSIDERED AS OUTFLOW OF FUNDS FROM ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 5 UNDISCLOSED INCOME OF M/S. ASHOKA BUILDCON LTD. AND NO ADDITION WAS MADE REGARDING ON - MONEY OF RS.56 10 000/ - . 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND PLACING RELIANCE ON THE ORDER OF CIT(A) POINTED OUT THAT THE FACTUAL ASPECTS OF THE ISSUE ARE CLEAR FROM THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND ADDITION IS WARRANTED IN THE HANDS OF ASSESSEE. HE FURTHER STRESSED THAT TELESCOPING OF THE AMOUNTS SURRENDERED BY M/S. ASHOKA BUILDCON LTD. CANNOT BE ALLOWED TO THE ASSESSEE. 9. WE HAV E HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. PURSUANT TO SEARCH AND SEIZURE OPERATIONS ON M/S. ASHOKA BUILDCON LTD. CERTAIN DOCUMENTS WERE SEIZED WHICH REFLECTED CASH PAYMENTS IN RESPECT OF TRANSACTION OF SALE OF FLATS. THE SAID DOCUMENT BEING ANNEXURE - AB1 CONTAINED DETAILS OF THREE FLATS I.E. FLAT NUMBERS 201 202 AND 203 IN RNA AZURE AT BANDRA MUMBAI . THE SCANNED COPY OF SEIZED PAPER IS AVAILABLE UNDER PARA 2.1.5 AT PAGE 7 OF THE APPELLATE ORDER. THE PERUSAL OF THE SAID DOCUMENT REFLECTS TH AT FLAT NO.201 IS IN RESPECT OF ONE ASHA FLAT NO.202 IS IN RESPECT OF S D P AND IN RESPECT OF FLAT NO.203 NOT FINALIZED. THE SAID DOCUMENT REFLECTS THE TOTAL COST OF INDIVIDUAL FLATS THE AGREEMENT VALUE AND THE AMOUNT FOR PARKING . THE ASSESSEE BEFORE US HAD JOINTLY PURCHASED FLAT NO.203 WITH SHRI SATISH D. PAREKH (HUF) . THE AGREEMENT VALUE WAS RS. 84 15 000/ - AS AGAINST TOTAL COST OF RS. 1 40 25 000/ - . THE DIFFERENCE BETWEEN THE TOTAL COST AND THE AGREEMENT VALUE WAS RS. 56 10 000/ - AND THE COST OF PARKIN G WAS RS.5 LAKHS. THE CASE OF ASSESSING OFFICER AND THE CIT(A) WAS THAT THE SAID AMOUNT WAS PAID BY THE ASSESSEE IN CASH. THE ASSESSEE FURNISHED EXPLANATION IN THIS REGARD BUT ULTIMATELY IT WAS THE CLAIM OF ASSESSEE THAT NO ADDITION ON ACCOUNT OF DIFFER ENTIAL VALUE OF THE FLAT COULD BE MADE IN THE HANDS OF ASSESSEE AS THE SAME HAS BEEN DECLARED TO BE FUNDED OUT OF AMOUNT DECLARED BY M/S. ASHOKA BUILDCON LTD. BEFORE THE SETTLEMENT COMMISSION. IN OTHER WORDS THE ASSESSEE ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 6 POINTED OUT THAT THE SOURCE OF ON - MONEY WAS OUT OF DISCLOSURE MADE BY M/S. ASHOKA BUILDCON LTD. BEFORE THE SETTLEMENT COMMISSION. THE SAID PLEA OF THE ASSESSEE HAS NOT BEEN ACCEPTED IN THE HANDS OF THE ASSESSEE. HOWEVER IN THE CASE OF JOINT OWNER SHRI SATISH D. PAREKH (HUF ) THE SAID P LEA HAS BEEN ACCEPTED IN RESPECT OF CASH TRANSACTION OF RS.56 10 000/ - . THE PERUSAL OF ASSESSMENT ORDER OF SHRI SATISH D. PAREKH (HUF ) PLACED ON RECORD BY THE ASSESSEE REFLECTS THAT THE ASSESSING OFFICER OF THE SAID PERSON HAD TAKEN NOTE OF CASH TRANSACT ION OF RS.56 10 000/ - ON ACCOUNT OF PURCHASE OF FLAT BEING JOINTLY BETWEEN SHRI SATISH D. PAREKH (HUF ) AND SHRI ASHOK KATARIA AT MUMBAI. THE EXPLANATION OF THE ASSESSEE THAT ALL THE ON - MONEY HAS BEEN CONSIDERED AS OUTFLOW FUNDS FROM THE UNDISCLOSED INCOME OF M/S. ASHOKA BUILDCON LTD. BEFORE THE SE TTLEMENT COMMISSION MUMBAI INCLUDING THE INVESTMENT MADE BY OTHER FLAT OWNERS HAS BEEN ACCEPTED. THE ASSESSING OFFICER NOTES THAT WHERE THE ON - MONEY OF RS.56 10 000/ - ON ACCOUNT OF PURCHASE OF FLAT HAS ALREADY B EEN OFFERED IN THE APPLICATION MOVED BEFORE THE SETTLEMENT COMMISSION BY M/S. ASHOKA BUILDCON LTD. AND WHERE THE COPY OF SETTLEMENT COMMISSION ORDER WAS VERIFIED IT WAS HELD THAT THERE WAS NO MERIT IN THE ADDITION OF RS.56 10 000/ - . AT THIS JUNCTURE ITSE LF IT MAY BE POINTED OUT THAT THE ASSESSEE BEFORE US AND SHRI SATISH D. PAREKH (HUF ) HAD JOINTLY PURCHASED THE SAID FLAT AND THE TOTAL CASH CONSIDERATION WAS RS.56 10 000/ - OUT OF WHICH 50% HAS BEEN ADDED IN THE HANDS OF ASSESSEE. 10. FURTHER IN RESPECT OF OTHER FLAT SIMILAR ADDITION WAS MADE ON ACCOUNT OF CASH COMPONENT OF TRANSACTION WHICH HAS BEEN DELETED BY THE TRIBUNAL IN M/S. A.A. ESTATE PVT. LTD. VS. ACIT (SUPRA) IN THE ABSENCE OF ANY CORRESPONDING INCRIMINATING MATERIAL FOUND . S ECONDLY THE ISSU E HAS ALSO BEEN DEALT WITH ON MERITS IN VIEW OF THE FACTS OF THE SAID CASE ON THE TEST OF HUMAN PROBABILITIES WHEREIN THE ASSESSEE CLAIMS NOT TO HAVE MADE THE CASH PAYMENT. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES AND IN VIEW OF THE FAC T THAT THE PLEA OF JOINT CO - OWNER OF HAVING PAID THE ON - MONEY OUT OF CASH AVAILABLE WITH M/S. ASHOKA ITA NO . 524 /PN/201 5 MR. ASHISH ASHOK KATARIYA 7 BUILDCON LTD. OUT OF DISCLOSURE MADE BEFORE THE SETTLEMENT COMMISSION HAVING BEEN ACCEPTED TO THE EXTENT OF RS.56 10 00 0 / - NO ADDITION IS MERITED IN THE H ANDS OF ASSESSEE AS THE ASSESSEES CONTRIBUTION IS TO THE EXTENT OF 50% OF RS.56 10 000/ - . FURTHER THE ASSESSEE CLAIMS THAT EVEN THE PARKING FEES OF RS.5 LAKHS IS FUNDED OUT OF CASH AVAILABLE WITH M/S. ASHOKA BUILDCON LTD. AND IN THE TOTALITY OF THE ABOV E SAID FACTS AND CIRCUMSTANCES WE FIND MERIT IN THE CLAIM OF ASSESSEE AS THE ASSESSING OFFICER HAS FAILED TO BRING ON RECORD ANY EVIDENCE TO THE CONTRARY. ACCORDINGLY WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.30 55 000/ - BEING HALF SH ARE OF RS. 6 1 10 000/ - . THE GROUND OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED. 11 . IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 30 TH DAY OF SEPTEMBER 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 30 TH SEPTEMBER 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / T HE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 12 PUNE ; 4. / THE CIT (CENTRAL) NAGPUR ; 5. / DR A ITAT PUNE; 6. / GUARD FILE . / BY ORDER // TRUE COPY // / SR. PRIVATE SECRETARY / ITAT PUNE