The ACIT, 1 (1), v. Sanyukta Grih Nirman Sahakari Sansthan My.,

ITSSA 46/IND/2009 | 2004-2005
Pronouncement Date: 10-12-2010 | Result: Dismissed

Appeal Details

RSA Number 4622716 RSA 2009
Assessee PAN AAAJS1894E
Bench Indore
Appeal Number ITSSA 46/IND/2009
Duration Of Justice 1 year(s) 9 month(s) 27 day(s)
Appellant The ACIT, 1 (1),
Respondent Sanyukta Grih Nirman Sahakari Sansthan My.,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 10-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 10-12-2010
Date Of Final Hearing 02-12-2010
Next Hearing Date 02-12-2010
Assessment Year 2004-2005
Appeal Filed On 13-02-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NOS.45 TO 47/IND/2009 A.YS.2003-04 TO 2005-06 ASSTT. COMMR. OF INCOME TAX 1(1) BHOPAL APPELLANT VS SANYUKTA GRIH NIRMAN SAHAKARI SANSTHAN MARYADIT BHOPAL PAN AAAJS1894E RESPONDENT APPELLANT BY : SHRI K.K. SINGH RESPONDENT BY : SHRI M.K. SHARMA O R D E R PER JOGINDER SINGH JM THESE APPEALS ARE BY THE REVENUE AGAINST THE COMMON ORDER OF THE LEARNED CIT(A) DATED 18.11.2008 ON THE COMMON G ROUND THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITIONS OF RS.22 41 722/- RS. 53 13 434/- AND RS .72 70 882/- RESPECTIVELY ON ACCOUNT OF UNEXPLAINED CREDIT. 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD S HRI K.K. SINGH AND SHRI M.K. SHARMA LD. COUNSEL FOR THE ASS ESSEE. AT THE 2 OUTSET THE LD. COUNSEL FOR THE ASSESSEE ASSERTED T HAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. SANGAM SAHKARI GRIH NIRMAN SAMITI (IT(SS) A NO. 40 TO 44/IND/2009) ORDER DATED 24.2.2010 BY FURTHER SUBMITTING THAT TH E ISSUE IS IDENTICAL AS THE SAME BELONGS TO THE SAME GROUP. ON THE OTHER H AND THE LEARNED CIT DR THOUGH DEFENDED THE ASSESSMENT ORDER BUT DID NOT CONTROVERT THE ASSERTION OF THE ASSESSEE THAT THE ISSUE IS COV ERED BY THE AFORESAID ORDER OF THE TRIBUNAL. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE THE RELEVANT PORTION OF THE ORDER DATED 24.2.2010 IS REPRODUCED HEREUNDER :- THESE APPEALS ARE BY THE REVENUE AGAINST THE COMM ON AND CONSOLIDATED ORDER OF THE LEARNED CIT(A) DATED 26.11.2008 FOR ASSESSMENT YEARS 1999-00 TO 2003-04 ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE ERRED I N DELETING THE ADDITION OF RS.65 88 975 EACH ON ACCOU NT OF UNEXPLAINED CREDIT. THE CRUX OF ARGUMENT ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ASSESSMENT ORDER WHERE AS THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUG NED ORDER. 2. DURING THE HEARING OF THE APPEAL WE HAVE HEARD LD. COUNSEL FROM BOTH SIDES CONSIDERED THE ARGUMEN TS ADVANCED BY THEM AND PERUSED THE MATERIAL AVAILABLE ON THE FILE. SINCE THESE APPEALS WERE HEARD AND ARGUED TOGETHER BEING COMMON ISSUE INVOLVED AND ALSO AGA INST A CONSOLIDATED ORDER OF THE LD. FIRST APPELLATE AUT HORITY CONSEQUENTLY THESE CAN BE DISPOSED OF BY THIS COMM ON AND CONSOLIDATED ORDER. THE ASSESSEE HAS CHALLENGED THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFF ICER ON ISSUANCE OF NOTICE AND ASSESSMENT PROCEEDINGS TAKEN U/S 153C. BRIEF FACTS ARE THAT SEARCH WAS CONDUCTED ON 2.11.2004 AND 3.11.2004 AT THE PREMISES OF PARTY A (RAJ 3 BUILDERS & RAJ DEVELOPERS RISHI CONSTRUCTION AND ASNANI BUILDERS & DEVELOPERS). CERTAIN LAND DOCUMEN TS BELONGING TO CHIRANJILAL KATARIA (PARTY B) WERE ALL EGEDLY FOUND FROM THE POSSESSION OF PARTY A. THE ONLY RELE VANCE OF THESE DOCUMENTS WITH THE ASSESSEE WAS THAT THE ASSESSEE SOLD THE IMPUGNED LAND TO PARTY B. VIDE LE TTERS DATED 27.11.2006 AND 22.12.2006 ALL THE EVIDENCE T O THE SATISFACTION OF THE ASSESSING OFFICER TO THE EFFEC T THAT THE CONCERNED LAND WAS SOLD TO PARTY B IN 1986 AND ALSO THAT THE ACTIVITIES OF THE SOCIETY WERE CLOSED DOWN SINC E 1999 WERE AVAILABLE WITH THE ASSESSING OFFICER. THE PRES IDENT OF THE SOCIETY DUE TO ILL HEALTH COULD NOT SUBMIT THE BOOKS OF ACCOUNTS. VIRTUALLY THERE WAS NO TRANSACTION OR INCOME ACTIVITY. EVEN IN THE ASSESSMENT ORDER (PARA 3) AT PAGE 4 HAS CONFIRMED THAT HE HAD COLLECTED INFORMATION FRO M THE REGISTRAR OF FIRMS AND SOCIETY BHOPAL THAT THE SOC IETY HAS NOT CARRIED OUT ANY ACTIVITY IN PREVIOUS YEAR. IN VIEW OF THESE FACTS WE ARE REPRODUCING HEREUNDER SEC. 1 53C OF THE ACT: ASSESSMENT OF INCOME OF ANY OTHER PERSON. 153C. 96 [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECTION 153 WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRE D TO IN SECTION 153A THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH O THER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR RE ASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A :] [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO 97 [SUB-SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACC OUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. ] [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURIS DICTION OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR 4 (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SU CH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUC H OTHER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UN DER SUB- SECTION (2) OF SECTION 143 HAS EXPIRED OR (C) ASSESSMENT OR REASSESSMENT IF ANY HAS BEEN MADE BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON SUCH AS SESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSE SS TOTAL INCOME OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECTION 153A .] 3. IF THE AFORESAID SEC. 153C IS ANALYSED IT CLEA RLY SPEAKS ABOUT THAT WHERE THE ASSESSING OFFICER IS SATISFIED ABOUT THE VALUABLE ARTICLES OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITIONED BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SEC. 153A THEN THESE SHALL BE HANDED OVER TO THE ASSESSING OFFICER WHO SHALL PROCEED AGAINST EAC H OTHER SUCH PERSON IN ACCORDANCE WITH THE PROVISIONS OF SE C. 153A. HOWEVER THE DOCUMENTS BELONGING TO PARTY B WHICH WERE FOUND IN THE POSSESSION OF PARTY A WHERE SEARCH WAS CONDUCTED THE DEPARTMENT SHOULD HAVE INITIATED PROCEEDINGS AGAINST PARTY B WHICH WAS NEVER INITIA TED. THE PROVISIONS OF SEC. 153C RESTRICT THE JURISDICTION O F THE ASSESSING OFFICER. IN THE INSTANT CASE DOCUMENT BS -5 WAS FOUND AND SEIZED FROM THE RESIDENCE OF SHRI J. BHAN DARI E- 1/47 ARERA COLONY SHOWING THAT THE APPELLANT SOCI ETY SOLD A PLOT OF LAND TO SHRI C.L. KATARIA. ONCE THE ASSESSI NG OFFICER WAS SATISFIED THAT THE TRANSACTION REFLECTED IN THE SEIZED DOCUMENTS DID NOT HAVE A BEARING ON ANY OF THE ASSE SSMENT OF THE APPELLANT SOCIETY THE MATTER SHOULD HAVE EN DED THERE. ON THE CONTRARY HE ASSUMED JURISDICTION OVER TRANS ACTION THAT NEVER FIGURED IN THE SEIZED DOCUMENTS AND AFTE R INVOKING PROVISIONS OF SEC. 153C HE PROCEEDED TO INVESTIGATE TRANSACTION BEYOND HIS LIMITED JURISDIC TION AS PROVIDED UNDER THE ACT. THIS FACT ALONE WOULD PUT T HE MATTER BEYOND THE JURISDICTION OF THE ASSESSING OFFICER ON LIMITATION. TO BURDEN THE SOCIETY WITH TAX ON SUBSTANTIVE BASIS FOR THE ASSESSMENT YEAR 2003-04 AND PROTECTIVE BASIS FOR TH E ASSESSMENT YEAR UNDER APPEAL IN OUR VIEW IS QUITE UNJUSTIFIED ESPECIALLY WHEN THE ASSESSEE SOCIETY HA S PROVED BEYOND DOUBT THAT NO INCOME HAS ARISEN OR ACCRUED T O IT FOR THE PAST OF ONE DECADE. EVEN OTHERWISE THOUGH NO S TRAIGHT JACKET FORMULAE CAN BE EVOLVED STILL WHAT CAN BE T AXED CAN ONLY THE REAL INCOME OF THE ASSESSEE AND NOT SOME HYPOTHETICAL OR ILLUSORY INCOME. OUR VIEW FINDS SUP PORT FROM 5 THE DECISIONS FROM THE HONBLE APEX COURT IN UCO BA NK VS. CIT (237 ITR 889) (SC) AND CIT VS. BALRAMPUR COMMER CIAL ENTERPRISES (262 ITR 439) (CAL). IN VIEW OF THESE F ACTS AND JUDICIAL PRONOUNCEMENTS WE HAVE NOT FOUND ANY INFI RMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE IMPUGNE D ADDITIONS. IN THE RESULT THESE APPEALS OF THE REVENUE ARE DISMISSED. 4. IN THE IMPUGNED APPEALS BRIEF FACTS ARE THAT TH E ASSESSEE IS A COOPERATIVE HOUSING SOCIETY AND IS ENGAGED IN PROVI DING DEVELOPED HOUSING LANDS TO ITS MEMBERS. A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT WAS CARRIED OUT ON 2 ND AND 3 RD NOVEMBER 2004 AT E2/274 ARERA COLONY AT THE RESIDENCE OF SHRI R.K. SHUKLA WHEREIN CERTAIN DOCUMENTS RELATING TO SANYUKTA GRIH NIRMAN SAHKARI SANSHTAN MARYADIT BHOPAL (THE ASSESSEE) WERE FOUND AND SEIZ ED. THEREAFTER THE ASSESSEE WAS ISSUED NOTICE U/S 153BC FOR THE ASSESS MENT PROCEEDINGS. THE LEARNED ASSESSING OFFICER MADE THE ADDITION FOR MEMBERSHIP FEE ADMISSION FEE LAND DEVELOPMENT CHARGES LAND ADVAN CES AND SUNDRY CREDITORS BY TREATING ALL THE TRANSACTIONS AS UNEXP LAINED CREDIT. ON APPEAL THE IMPUGNED ADDITIONS WERE DELETED. THE TO TAL ADDITIONS/FIGURES ARE SUMMARIZED AS UNDER :- S.NO. PARTICULARS A.Y.2003-04 A.Y. 2004-05 A.Y.2005-06 1 MEMBERSHIP FEE 11000.00 4500.00 15000.00 2 ADMISSION FEE 1100.00 450.00 4083000.00 3 OTHER FEE 1100.00 450.00 200000.00 4 DEVELOPMENT CHARGES 153000.00 3396000.00 196000.00 6 5 LAND ADVANCE AMANAT 2000000.00 510000.00 1814880.00 6 SUNDRY CREDITORS 75522.00 1400608.00 1002002.00 7 INTEREST - 1426.00 - TOTAL (RS.) 2241722.00 5313434.00 7319882.00 IF THE TOTALITY OF THE FACTS IS ANALYSED WE HAVE F OUND THAT IMPUGNED TRANSACTIONS WERE ADDED AND RATED AS UNEXPLAINED IN COME BY THE ASSESSING OFFICER THAT TOO IN THE ABSENCE OF ANY RE LEVANT MATERIAL OR EVIDENCE WHATSOEVER WITHOUT POINTING OUT THAT THESE ADVANCES ARE NOT GENUINE AND ALSO WITHOUT ACCEPTING THE EXPLANATION FROM THE MEMBERS AND THE ASSESSEE SOCIETY TO VERIFY THE CREDITORS A DVANCES AND EXPENSES. THE AUDITORS OF THE ASSESSEE SOCIETY HAV E VERIFIED ALL THE BOOKS AND RECORDS WHICH WERE MAINTAINED BY THE SOCI ETY AS PER NORMS/RULES OF THE COOPERATIVE SOCIETY. THEREFORE THE IMPUGNED PAYMENTS/CONTRIBUTIONS CAN NEVER CONSTITUTE THE INC OME OF THE ASSESSEE UNDER THE CIRCUMSTANCES NARRATED BEFORE US. EVEN TH E LEARNED ASSESSING OFFICER NEVER ISSUED NOTICES TO THE MEMBE RS OF THE ASSESSEE SOCIETY U/S 133(6) OF THE ACT THEREFORE SADDLING THE ASSESSEE SOCIETY WITH TAX BURDEN IS NOT JUSTIFIED. THE LEARNED ASSE SSING OFFICER HAS EXAMINED THE ISSUE IN RIGHT PERSPECTIVE AND FOUND T HAT EXCEPT THE ADDITION OF RS. 1426/- ON ACCOUNT OF INTEREST FOR T HE ASSESSMENT YEAR 2004-05 NO OTHER ADDITION IS WARRANTED. THE TRIBUN AL IN THE AFORESAID ORDER HAS ALREADY CONSIDERED THE DECISIONS OF THE H ONBLE APEX COURT 7 AND HONBLE CALCUTTA HIGH COURT THEREFORE NO REPE TITION OF THESE CASE IS REQUIRED. IN VIEW OF THE AFORESAID DECISION OF THE TRIBUNAL WE FIND NO INFIRMITY IN THE IMPUGNED ORDER. FINALLY THESE APPEALS OF THE REVENUE ARE DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 10 TH DECEMBER 2010. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.12.2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/- 8