M/s. Shantilal Khubchand, Ahmedabad v. The Income tax Officer,Ward-3(2),, Ahmedabad

MA 117/AHD/2009 | misc
Pronouncement Date: 17-02-2012 | Result: Dismissed

Appeal Details

RSA Number 11720524 RSA 2009
Assessee PAN AAHFS1551P
Bench Ahmedabad
Appeal Number MA 117/AHD/2009
Duration Of Justice 2 year(s) 10 month(s) 10 day(s)
Appellant M/s. Shantilal Khubchand, Ahmedabad
Respondent The Income tax Officer,Ward-3(2),, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 17-02-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 17-02-2012
Assessment Year misc
Appeal Filed On 06-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER M.A. NO.117/AHD/2009 IN I.T.A. NO.1161 / AHD/2001 (ASSESSMENT YEAR 1987-88) M/S SHANTILAL KHUBCHAND OPP. HALIMS KHADKI MEHNDIKUVA SHAHPUR AHMEDABAD VS. ITO WARD 3(2) AHMEDABAD PAN/GIR NO. : AAHFS1551P (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N SOPARKAR AR RESPONDENT BY: SHRI VINOD TANWANI SR. DR DATE OF HEARING: 10.02.2012 DATE OF PRONOUNCEMENT: 17.02.2012 O R D E R PER SHRI MUKUL KUMAR SHRAWAT JM:- THIS MISCELLANEOUS PETITION IS SUBMITTED ON 06.04. 2009 ARISING FORM THE ORDER OF THE TRIBUNAL AS REFERRED TO IN TH E ABOVE NOMENCLATURE DATED 08.08.2008. THIS MISCELLANEOUS PETITION IS R UNNING INTO 15 PAGES THEREFORE THE LD. A.R. MR. S N SOPARKAR HAS SUMMAR IZED THAT THE MAIN CONTENTION AS RAISED IN THIS PETITION IS THAT THE A SSETS AND CONNECTED QUANTUM ADDITION WAS SUBJECTED TO TAX IN THE PAST. HOWEVER THE TRIBUNAL HAD GONE WRONG IN NOT ACCEPTING THE SAID FACTUAL PO SITION AND AGAIN DIRECTED TO ASSESS THE SAME BY REVERSING THE RELIEF GRANTED BY LD. CIT(A). THE RELEVANT PORTION OF THE PETITION IS REPRODUCED BELOW: M.A.NO.117 /AHD/2009 2 (A) THAT EVEN THOUGH I WAS THE ADMITTED POSITION TH AT IN THE RETURNS FOR ASSESSMENT YEAR 1978-79 TO 1986-87 FILE D BY THE APPELLANT UNDER THE AMNESTY SCHEME OF THE GOVERNMEN T ADDITIONAL INCOME CORRESPONDING TO THE VALUABLES IN THE FORM OF CASH GOLD ORNAMENTS SILVER ARTICLES AND SILVER CO INS FOUND FROM THE RESIDENTIAL PREMISES OF THE PARTNERS OF THE APP LICANT FIRM DURING THE SEARCH PROCEEDINGS U/S. 132 ON 19.9.1986 (WHICH FELL IN THE PREVIOUS YEAR CORRESPONDING TO A.Y. 1987-88) HA D BEEN OFFERED AND ASSESSED IN THE APPLICANT'S HANDS AND FURTHER EVEN THOUGH IT WAS THE ADMITTED POSITION THAT SEPARATE ADDITIONS I N RESPECT OF THOSE VERY VALUABLES HAD BEEN MADE IN THE ASSESSMENT ORDE R FOR THE PRESENT ASSESSMENT YEAR ON THE GROUND THAT IN THE ABSENCE OF EVIDENCE SHOWING THAT THOSE VALUABLES HAD BEEN ACQU IRED IN THE EARLIER ASSESSMENT YEARS FROM A.Y. 1978-79 TO 1986- 87 THE PROVISIONS OF SECTION 69 WERE ATTRACTED AND STILL F URTHER EVEN THOUGH ONLY A PLAIN READING OF THE ORDER DATED 28.2 .2001 OF THE LEARNED CIT(A) IMPUGNED BEFORE THIS HON'BLE TRIBUNA L SHOWED THAT ONE OF THE REASONS FOR HIM TO ORDER DELETION O F THOSE ADDITIONS WAS THAT ADDITIONAL INCOME CORRESPONDING TO THESE V ERY VALUABLES HAVING ALREADY BEEN OFFERED AND ASSESSED IN THE HAN DS OF THE APPLICANT IN A.Y. 1978-79 TO 1986-87 (FOR WHICH RET URNS WERE FILED BY THE APPLICANT UNDER THE AMNESTY SCHEME AND THE APPLICANT HAD ALSO BEEN GRANTED IMMUNITY IN RESPECT THEREOF UNDER THAT SCHEME) THE ADDITION ON ACCOUNT OF INCOME COR RESPONDING TO THE SAME VALUABLES IN A.Y. 1987-88 WOULD AMOUNT TO DOUBLE TAXATION OF THE SAME INCOME THIS HON'BLE TRIBUNAL HAS HELD VIDE THE IMPUGNED ORDER : (1) THAT THE ONUS TO PROVE THAT THE VALUABLES C ORRESPONDING TO WHICH THE APPLICANT HAD DECLARED ADDITIONAL INCOME UNDER THE AMNESTY SCHEME (IN ASSESSMENT YEARS 1978-79 TO -198 6-87) WERE THE SAME AS HAD BEEN FOUND DURING THE SEARCH WAS O N THE APPLICANT; (2) THAT THE APPLICANT HAD NOT DISCHARGED ITS S AID ONUS EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE THIS HON'BLE TRIBUNAL; (3) THAT THEREFORE IT CANNOT BE SAID THAT THE VALUABLES FOUND DURING SEARCH WERE THE SAME FOR WHICH THE APPLICANT HAD MADE DECLARATION (IN THE EARLIER ASSESSMENT YEARS 1978-7 9 TO 1986-87); THAT THEREFORE THE REVENUE'S APPEAL CHA LLENGING THE DELETION OF THE ADDITIONS CORRESPONDING TO I THE VALUABLES ( RS.1 00 000 FOR M.A.NO.117 /AHD/2009 3 CASH RS.8 26 400 FOR GOLD ORNAMENTS AND SILVER ART ICLES AND RS.6 500 FOR SILVER COINS) FOUND DURING SEARCH HAD TO BE ALLOWED. .3.2 IT IS PERTINENT TO NOTE THAT THE ABOVE AP PELLATE ORDER WAS PASSED ON 29.11.1991 WHICH WAS LONG BEFORE THE HON' BLE ITAT HAD PASSED ITS APPELLATE ORDER DATED 10.10.1996 IN DISPOSAL OF THE REVENUE'S APPEALS FOR A.Y. 1978-79 TO 1984-95 AND 1 986-87 AND THE APPLICANT'S CROSS-OBJECTIONS FOR THOSE ASSESSME NT YEAR. AS SUCH THE LEARNED CIT(A) PASSING THE SAID APPELLATE ORDER FOR A.Y. 1987-88 ON 29.11.1991 OBVIOUSLY DID NOT HAVE THE BE NEFIT OF CONSIDERING THE HON'BLE ITAT'S DECISION ARRIVED AT VIDE THE AFORESAID ORDER DATED 10.10.1996 AFFIRMING THE LEAR NED CIT(A)'S ACTION NOT ONLY OF GRANTING I BENEFIT OF THE AMNEST Y SCHEME BUT ALSO OF DELETING ALL THE ADDITIONS MADE IN THE ASSE SSMENT ORDERS AND THEREBY UPHOLDING ASSESSMENT OF THE QUANTUM OF INCO ME AS DIRECTED BY THE LEARNED CIT(A) IN HIS APPELLATE ORD ER DATED 30.7.1990 FOR A.Y. 1978-79 TO 1984-85 AND 1986-87. IN THIS CONNECTION REFERENCE MUST BE MADE TO THE FOLLOWING PORTION OF THE ORDER DATED 10.10.1996 PASSED BY THIS HON'BLE TRIBU NAL (EMPHASIS SUPPLIED): ..(A) THAT SUSTAINING THE ADDITIONS WOULD AMOU NT TO DOUBLE TAXATION OF THE SAME INCOME IN THE APPLICANT'S HAND S WHICH AS PER THE WELL SETTLED LEGAL POSITION WAS IMPERMISSIBLE; (B) THAT SINCE THIS HON'BLE TRIBUNAL HAD VIDE ITS ORDER DATED 10.10.1996 ALREADY UPHELD THE CIT(A)'S ORDERS FOR THE EARLIER ASSESSMENT YEARS 1978-79 TO 1984-85 AND 1986-87 DET ERMINING THE QUANTUM OF INCOME INCLUDING DECLARATION OF ADDITION AL INCOME IN RESPECT OF THE VALUABLES (CASH GOLD ORNAMENTS SIL VER ARTICLES AND SILVER COINS) FOUND DURING SEARCH PROCEEDINGS U/S. 132 ON 19.9.1986 AND FURTHER SINCE UPON ITS ATTENTION TO THAT FACT BEING DRAWN AT THE TIME IT WAS CONSIDERING THE APPLICANT' S APPEAL AGAINST THE ORIGINAL APPELLATE ORDER DATED 29-11-1991 OF TH E LEARNED CIT(A) FOR ASSESSMENT YEAR 1987-88 IN WHICH ADDITIO NS IN RESPECT OF THE SAME VALUABLES HAD BEEN SUSTAINED THIS HON' BLE TRIBUNAL HAD WHILE PASSING ITS ORDER DATED 1-10-1997 FOR A. Y. 1987-88 SET ASIDE THE MATTER FOR FRESH DECISION AFTER CONSIDERI NG ITS ORDER DATED 10-10-1996 (WHICH WAS NOT AVAILABLE TO THE ASSESSIN G OFFICER AND THE CIT(A) WHEN THEY WERE SEIZED WITH ASSESSMENT AN D APPEAL RESPECTIVELY FOR ASSESSMENT YEAR 1987-88) IT CANNO T BE OPEN TO THIS HON'BLE TRIBUNAL WHILE PASSING ITS ORDER ON 8.8.20 08 TO PROCEED M.A.NO.117 /AHD/2009 4 IN THE MANNER IT HAS DONE IN THE OPERATIVE PORTION OF THE ORDER AT PARA 11 EXTRACTED HEREINABOVE ESPECIALLY WHEN THE LEARNED CIT(A) HAD AFTER CONSIDERING THE SAID ORDER OF THE HON'BL E ITAT DATE 10- 10-1996 DELETED THE THREE ADDITIONS IN QUESTION ON THE GROUND THAT SUSTAINING THE ADDITIONS WOULD AMOUNT TO PERMITTING DOUBLE TAXATION OF THE SAME INCOME AND THAT IN ANY CASE EXCEPT FOR THE DECLARATION OF THE PARTNERS ATTRIBUTING THE VALUABL ES FOUND FROM THEIR RESIDENTIAL PREMISES TO THE INCOME OF THE APP LICANT FIRM PERTAINING TO THE EARLIER ASSESSMENT YEARS THERE W AS NO BASIS OR EVIDENCE WHATSOEVER WITH THE REVENUE TO SUPPORT ASS ESSMENT OF ANY AMOUNT CORRESPONDING TO THOSE VALUABLES IN THE HANDS OF THE APPLICANT FIRM EVEN IN THE EARLIER YEARS MUCH LES S IN ASSESSMENT YEAR 1987-88. 2. THE LD. A.R. HAS ALSO REFERRED PAGES 28 29 AND 30 OF THE PAPER BOOK WHICH WERE FILED WHILE ARGUING THE IMPUGNED AP PEAL FOR THE REASON THAT THE AMOUNT PERTAINING TO GOLD AND SILVER ARTIC LES AND THE CASH IN HAND HAVE ACTUALLY BEEN OFFERED TO TAX IN THE PAST AN D HENCE THERE OUGHT NOT TO BE ANY DOUBLE TAX ON THE SAME AMOUNT. 3. FROM THE SIDE OF THE REVENUE LD. D. R.S PRELIM INARY COMMENT WAS THAT THE VERY NATURE OF THE MISCELLANEOUS PETIT ION DOES NOT DEMONSTRATE THAT THERE WAS ANY APPARENT MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL. HE HAS ALSO PLEADED THAT THE TRIBUNA L HAS APPRECIATED THOSE VERY FACTS AND THEREAFTER COMMENTED THAT THE ASSES SEE HAS NOT DISCHARGED THE ONUS THAT THOSE VERY ASSETS HAVE ACTUALLY BEEN DECLARED UNDER AMNESTY SCHEME. LD. D.R. HAS SUPPORTED THE PARA 11 OF THE ITAT ORDER REPRODUCED BELOW: WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT T O NOTE THAT THE ONUS IS ON THE ASSESSEE TO PROVE THAT VARIOUS ASSETS DEC LARED UNDER AMNESTY SCHEME ARE THE SAME WHICH WERE FOUND DURIN G THE SEARCH. NEITHER BEFORE THE AUTHORITIES BELOW NOR BEFORE US HAS THE ASSESSEE DISCHARGED SUCH ONUS. THEREFORE IT CANNOT BE SAID THAT THE ASSETS FOUND DURING THE COURSE OF SEARCH WERE THE SAME AS DECLARED BY THE ASSESSEE IN THE AMNESTY SCHEME. BE THAT AS IT MAY B E IN THE M.A.NO.117 /AHD/2009 5 IMPUGNED ORDER THE LEARNED CIT(A) HAS HELD IN PARAG RAPH 8 OF THE IMPUGNED APPELLATE ORDER THAT THE RETURN WAS FILED FOR THE ASSESSMENT YEAR UNDER APPEAL IS OUTSIDE THE AMNESTY SCHEME. NO APPEAL OR CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE AGAINST TH E SAID ORDER. WITH REGARD TO RELIANCE PLACED BY THE LEARNED COUNSEL OF THE AS SESSEE TO THE ORDER OF THE TRIBUNAL IN ITA NO. 631/AHD/1992 F OR THE ASSESSMENT YEAR 1987-88 IN ASSESSEE'S OWN CASE (SUP RA) WHEREIN THE TRIBUNAL HAS REMANDED THE ISSUE BACK TO THE ASS ESSING OFFICER TO DECIDE THE MATTER AFRESH CONSIDERING THE DECISIO N OF THE TRIBUNAL DT. L0.10.1996 IN ITA NOS. 4007 TO 4014/AHD/1990 FO R THE A.Y.S 1978-79 10 1984-985 AND 1986-87 (58 TTJ 280)(AHD.) WE MAY POINT OUT THAT THE SAID DECISION IS OF NO HELP TO T HE ASSESSEE IN THE ASSESSMENT YEAR UNDER APPEAL SINCE IN THOSE ORDERS THE TRIBUNAL HAS UPHELD THE VIEW TAKEN BY THE LEARNED CIT(A) TO GIVE BENEFIT OF AMNESTY SCHEME IN THOSE ASSESSMENT YEARS. IN VIEW O F THE ABOVE WE REVERSE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THAT OF THE LEARNED ASSESSING OFFICER IN THIS REGAR D. 4. HAVING HEARD THE SUBMISSION OF BOTH THE SIDES W E ARE NOT INCLINED TO INTERFERE WITH THE FACTUAL FINDING OF THE RESPEC TED COORDINATE BENCH. WE HAVE NOTED THAT VIDE PARA 10 THE SAID ARGUMENT OF THE ASSESSEE WAS DULY RECORDED BY THE TRIBUNAL THAT THE SAID THREE A SSETS IN QUESTION WERE TAXED IN THE EARLIER ASSESSMENT YEARS AND THEREFOR E THE SAME COULD NOT BE TAXED IN THE YEAR UNDER CONSIDERATION. EVEN AFTE R KNOWING FULLY WELL ABOUT THE SAID CONTENTION OF THE ASSESSEE THE TRIB UNAL HAS THOUGHT IT PROPER TO REJECT THIS ARGUMENT PRIMARILY ON THE GRO UND THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS TO PROVE THAT THOS E VERY ASSETS WHICH WERE DECLARED UNDER THE AMNESTY SCHEME WERE THE SAM E WHICH WERE FOUND DURING THE COURSE OF SEARCH. THE TRIBUNAL HA S TAKEN A CONSCIOUS DECISION THAT NEITHER BEFORE THE AUTHORITIES BELOW NOR BEFORE US THE ASSESSEE HAD DISCHARGED THE SAID ONUS. SINCE IT C OULD NOT BE PROVED THAT THE ASSETS FOUND DURING THE COURSE OF SEARCH W ERE THE SAME AS DECLARED BY THE ASSESSEE IN THE AMNESTY SCHEME THE REFORE WE HEREBY HOLD THAT NO APPARENT MISTAKE WAS COMMITTED BY THE TRIBUNAL WHICH CAN M.A.NO.117 /AHD/2009 6 BE SAID TO BE RECTIFIABLE U/S 254(2) OF THE INCOME TAX ACT 1961. WE ALSO HOLD THAT THE TRIBUNAL HAS NO POWER OF REVIEW THER EFORE THIS PETITION DESERVES TO BE DISMISSED. 5. IN THE RESULT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (A. MOHAN ALANKAMONY) (MUKUL KUMAR SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD BY ORDER 6. THE GUARD FILE AR ITAT AHMEDABAD 1. DATE OF DICTATION 10/2 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10/2.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 17/02/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.17/2 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17/02/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER.