Pritiben Dineshbhai Vadera, Surat v. The Dy.CIT.,Circle-3,, Surat

ITSSA 173/AHD/2007 | misc
Pronouncement Date: 14-05-2010 | Result: Dismissed

Appeal Details

RSA Number 17320516 RSA 2007
Assessee PAN AAWPV2183P
Bench Ahmedabad
Appeal Number ITSSA 173/AHD/2007
Duration Of Justice 2 year(s) 4 month(s) 18 day(s)
Appellant Pritiben Dineshbhai Vadera, Surat
Respondent The Dy.CIT.,Circle-3,, Surat
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 14-05-2010
Date Of Final Hearing 10-05-2010
Next Hearing Date 10-05-2010
Assessment Year misc
Appeal Filed On 27-12-2007
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL D-BENCH AHMEDABAD. BEFORE: SHRI G.D. AGARWAL VICE PRESIDENT AND SHRI BHAVNESH SAINI JUDICIAL MEMBER IT(SS)A NO.173/AHD/2007 (BLOCK PERIOD: 1990-91 TO 1999-2000 AND UPTO 29-10-1999) PRITIBEN DINESHBHAI VADERA B/202 YOGI COMPLEX OPP: AMIDHARA WADI SURAT. VERSUS DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-3 SURAT. IT(SS)A NO.09/AHD/2008 WITH CO 63/AHD/2008 (BLOCK PERIOD: 1990-91 TO 1999-2000 AND UPTO 29-10- 1999) ACIT CIRCLE-3 SURAT. VERSUS SMT. PRITIBEN DINESHBHAI VADERA B/202 YOGI COMPLEX OPP: AMIDHARA WADI SURAT. (APPELLANT) (RESPONDENT) PAN:AAWPV 2183 P FOR THE ASSESSEE: SMT. D.P. BHAMGARA A.R. FOR THE REVENUE: SHRI. B.S. SANDHU CIT DR ORDER PER G.D. AGARWAL VICE-PRESIDENT: THESE ARE TWO APPEALS ONE FILED BY THE ASSESSEE AND THE OTHER FILED BY TH E REVENUE WITH THE CROSS OBJECTION AGAINST THE ORDER OF LD. COMMISSION ER OF INCOME TAX(APPEALS)-II SURAT DATED 29-10-2007. 2. THE FACTS OF THE CASE ARE THAT THERE WAS SEARCH UNDER SECTION 132 OF THE ACT AT THE BUSINESS PREMISES OF M/S. OHM ORGANI ZERS SURAT ON 29-10-1999. DURING THE COURSE OF SEARCH CERTAIN D OCUMENTS WERE FOUND AND SEIZED. THE ASSESSING OFFICER HAVING JURISDICT ION OVER THE CASE OF M/S. OHM ORGANIZERS NOTICED THAT THE ASSESSEE MAKE THE INVESTMENT IN THE PURCHASE OF FLAT WHICH INCLUDED ON MONEY. ON T HE BASIS OF ABOVE 2 IT(SS)A 173/AHD/07 IT(SS)A 09/AHD/2008 WITH CO 63/ AHD/2008 INFORMATION PROCEEDINGS UNDER SECTION 158BD WERE TA KEN IN THE CASE OF THE ASSESSEE. THE ASSESSEE FILED THE RETURN DISCLOS ING NIL INCOME. HOWEVER THE ASSESSING OFFICER DETERMINED THE UNDIS CLOSED INCOME AT RS.8 35 000/-. ON APPEAL THE LD. COMMISSIONER OF I NCOME TAX(APPEALS) REDUCED THE SAME TO RS.1 95 000/-. THE ASSESSEE IS IN APPEAL AGAINST THE ADDITION OF RS.1 95 000/- SUSTAINED BY THE LD. COMM ISSIONER OF INCOME TAX(APPEALS). WHILE THE REVENUE IS IN APPEAL AGAIN ST THE RELIEF ALLOWED. THE CROSS OBJECTION IS ONLY IN SUPPORT OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS). WE HAVE CAREF ULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE LD. COMMISSIONER OF INCOME TAX(APP EALS) HAS DISCUSSED THE ISSUE AT LENGTH. HIS FINDING IS REPR ODUCED BELOW. 10. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. FIRST OF ALL I DO NOT FIND ANY REASON AS TO WHY THE AO SHOULD HAVE TAKEN THE VIEW THAT THE TOTAL PURCHASE CONSIDERATION PAID FOR THE SAID FLAT WAS RS.8 35 000. HE PLACED RELIANCE ON PAGE 247 OF BS- 4 WHICH HE REPRODUCED ALONG WITH THE NOTINGS OF THE REMAINING PAGES THAT WERE SEIZED ON PAGE-5 OF THE ASSESSMENT ORDER. PAG E 247 CONTAINS ONLY THE HEADING WHICH MENTIONS THE FLAT NO. AND TH E AREA. AGAINST THE AREA IS MENTIONED @ 4/31. BELOW IS MENTIONED RS.8 35 000/-] 6/68. THESE NOTINGS COULD NOT FORM ANY BASIS FOR THE ASSESSING OFFICER TO TAKE THE VIEW THAT THE TOT AL PRICE PAID FOR THE SAID FLAT WAS RS.8 35 000. SINCE THE AO PLACE D RELIANCE ON THE SEIZED MATERIALS IT WAS NECESSARY FOR HIM TO READ ALL THE NOTINGS TOGETHER AND NOT TAKE ANY NOTINGS IN ISOLATION. TH US WHILE PAGE- 246 OF BS-4 AND 96 OF BS-1 RECORDED THE CHEQUE PAYM ENTS TOTALLING RS.3 43 750 PAGE 97 RECORDED THE CASH PAYMENTS TOT ALLING RS.1 95 000. AS POINTED OUT BY THE AR THE 1250 SQ .FT. AREA OF THE FLAT @ 431 PER SQ.FT. MEANT THAT THE TOTAL CONSIDER ATION PAID FOR THE 3 IT(SS)A 173/AHD/07 IT(SS)A 09/AHD/2008 WITH CO 63/ AHD/2008 SAID FLAT WAS RS.5 38 750 WHICH TALLIED WITH THE CH EQUE PAYMENTS OF RS.3 43 750 + CASH PAYMENTS OF RS.1 95 000=5 38 750 . IN FACT THIS WAS WHAT HAD BEEN STATED BY SHRI KETAN O.DER I N HIS STATEMENT RECORDED DURING THE SEARCH (PARAS 8 & 9 AND PARA 14 ). THEREFORE THE AO HAD COMPLETELY ERRED IN ADOPTING THE TOTAL C ONSIDERATION FOR THE FLAT AT RS.8 35 000. 10.1 COMING TO THE CHEQUE PAYMENTS OF RS.3 43 750/- THE AO OBSERVED THAT EVIDENCE OF SUCH PAYMENTS HAD BEEN FU RNISHED IN THE FORM OF THE RELEVANT RETURN OF INCOME AS ALSO A COP Y OF THE ASSESSEES BANK STATEMENT (PARA-14). HE ALSO NOTED THAT M/S.R.P CORPORATION HAD FURNISHED A CONFIRMATION LETTER EVI DENCING SUCH PAYMENTS ON BEHALF OF THE ASSESSEE. HAVING DONE SO HE COULD NOT REJECT THE AUTHENTICITY OF THE CONFIRMATION ON THE SIMPLE GROUND THAT NO REPRESENTATIVE OF M/S.R.P. CORPORATION WAS PRODUCED BEFORE HIM ESPECIALLY WHEN AS SUBMITTED BY THE AR THE AO HAD TALLIED THE CONFIRMATION FURNISHED BY M/S.R.P. CORP ORATION WITH THE ASSESSEES BANK ACCOUNT AND THEREAFTER NO FURTHER REQUISITION WAS MADE. THE AO HAD THEREFORE COMPLETELY ERRED IN TRE ATING THE SUM OF RS.3 43 750 AS UNEXPLAINED. 10.2 AS REGARDS THE PAYMENT OF ON-MONEY ONCE IT IS HELD THAT THERE WAS NO BASIS FOR ADOPTING THE PURCHASE CONSID ERATION AT RS.8 35 000 IT LOGICALLY FOLLOWS THAT THERE WAS NO BASIS FOR THE AO TO HOLD THAT THE ON-MONEY PAID WAS RS.4 91 250. TH IS WAS INSPITE OF THE FACT THAT THE AO PLACED COMPLETE RELIANCE ON THE STATEMENT OF KETAN O.DER WHO HAD CLEARLY STATED THAT THE ON-MONE Y RECEIVED BY HIM AGAINST THE SALE OF THE SAID FLAT WAS RS.1 95 0 00 (PARA-9 PAGE- 7). ON THE OTHER HAND THE AR'S ARGUMENT THAT THE PAYMENT OF THE ON-MONEY OF RS.1 95 000 COULD NOT BE ATTRIBUTED TO THE ASSESSEE IS 4 IT(SS)A 173/AHD/07 IT(SS)A 09/AHD/2008 WITH CO 63/ AHD/2008 ALSO WITHOUT ANY BASIS. FIRSTLY THE SEIZED DOCUME NTS CLEARLY CONTAINED THE NAME OF THE ASSESSEE. THE NAME OF TH E ASSESSEE APPEARED ON THE FIRST PAGE OF THE TWO PAGE NOTINGS IN BOTH BS-4 & BS-1 I.E. ON PAGES 246 AND 96 RESPECTIVELY. THE NO TINGS ON PAGE- 97 OF BS-1 IT COULD NOT BE SAID THAT THE ON-MONEY OF RS.1 95 000 WAS PAID BY HER IS SIMPLY WITHOUT ANY BASIS. MORE OVER THE AR HAS RELIED HEAVILY ON THE STATEMENT OF SHRI KETAN O . DER TO ARGUE THAT THE TOTAL PURCHASE CONSIDERATION WAS NOT RS.8 35 000 BUT RS.5 38 000. IF THAT BE SO THEN THE AR CANNOT IGN ORE SHRI KETAN O.DERS STATEMENT WHERE HE CLEARLY STATED THAT HE H AD RECEIVED ON- MONEY OF RS.1 95 000 FROM THE ASSESSEE. 10.3 TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCE S OF THE CASE AS DISCUSSED ABOVE IN DETAIL I HAVE COME TOT EH CO NCLUSION THAT THE ONLY ADDITION THAT COULD BE MADE WAS OF RS.1 95 000 WHICH WAS THE ON-MONEY PAID IN CASH AND FOR WHICH THE ASSESSEE H AD NO EXPLANATION. THE ASSESSEE THEREFORE WOULD GET RELI EF OF RS.6 40 000 (RS.8 35 000 RS.1 95 000). THE AO IS DIRECTED TO TAKE ACTION ACCORDINGLY. 3. AT THE TIME OF HEARING BEFORE US NEITHER THE LEA RNED DR NOR THE ASSESSEES COUNSEL COULD CONTROVERT THE ABOVE FINDI NG OF FACT RECORDED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS) ON EXA MINING THE LOOSE PAPER FOUND AND SEIZED FROM THE PREMISES OF M/S. OH M ORGANIZERS IT WAS EVIDENT THAT THE ASSESSEE MADE THE PAYMENT OF ON-MO NEY OF RS.1 95 000/-. THE SAME WAS ALSO SUPPORTED BY THE STATEMENT OF SHRI KETAN O.DER. CIT(A) HAS ALSO RECORDED THE FINDING THAT THE PURCHASE CONSIDERATION OF FLAT WAS OF RS.5 38 750/- AND NOT OF RS.8 35 000/-. OUT OF THE ABOVE THE PAYMENT MADE BY CHEQUE WAS RS.3 4 3 750/-. THUS THE PAYMENT OF ON-MONEY WAS ONLY RS.1 95 000/-. 5 IT(SS)A 173/AHD/07 IT(SS)A 09/AHD/2008 WITH CO 63/ AHD/2008 4. IN VIEW OF ABOVE WE SUSTAIN THE ORDER OF LD. CO MMISSIONER OF INCOME TAX(APPEALS) AND DISMISS THE APPEAL FILED BY THE ASSESSEE AS WELL AS REVENUE. THE CO IS ONLY IN SUPPORT OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS) THE SAME IS IN FRACTUOUS. 5. IN THE RESULT THE APPEAL OF THE DEPARTMENT AND T HE APPEAL AS WELL AS CO OF THE ASSESSEE ARE DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 14 TH MAY 2010. SD/- SD/- (BHAVNESH SAINI) (G.D. AGARWAL) JUDICIAL MEMBER VIC E PRESIDENT AHMEDABAD; DATED: 14/05/2010 ANKIT* COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED 4. THE CIT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER ASSTT. REGISTRAR/ DEPUTY REGISTRAR ITAT AHMEDABAD BENCHES AHMEDABAD.