Shri Ramesh Rijhwani,, Indore v. The A.C.I.T., Indore

MA 49/IND/2011 | 2008-2009
Pronouncement Date: 07-02-2012 | Result: Partly Allowed

Appeal Details

RSA Number 4922724 RSA 2011
Assessee PAN ABVPR8541H
Bench Indore
Appeal Number MA 49/IND/2011
Duration Of Justice 4 month(s) 15 day(s)
Appellant Shri Ramesh Rijhwani,, Indore
Respondent The A.C.I.T., Indore
Appeal Type Miscellaneous Application
Pronouncement Date 07-02-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 07-02-2012
Assessment Year 2008-2009
Appeal Filed On 22-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH J.M. AND SHRI R.C.SHARM A A.M. PAN NO. : ABVPR8541H M.A.NOS. 43 TO 49/IND/2011 (ARISING OUT OF I.T.A.NOS. 51 TO 57/IND/2010) A.Y S . : 2002 - 03 TO 2008 - 09) SHR I RAMESH RIJHWANI ACIT 5 KRANTI KRIPLANI NAGAR VS 1(2) INDORE. INDORE. APP LICANT RESPONDENT APP LICANT BY : SHRI SANJAY SODANI C. A. RESPONDENT BY : SHRI ARUN DEWAN SR. DR DATE OF HEARING : 03 . 0 2 .201 2 DATE OF PRONOUNCEMENT : 07 . 0 2 .201 2 O R D E R PER R. C. SHARMA A.M. THESE MISC. APPLICATIONS ARISE OUT OF ORDER OF THE TRIBUNAL DATED 30 TH JUNE 2010 IN RESPECT OF I.T.A.NOS. 51 TO 57/IND/2010. 2. IN THE MISC. APPLICATION THE ASSESSEE HAS ALLEGED DISALLOWANCE CONFIRMED BY I.T.A.T. U/S 14A VEHICLE EXPENSES ON PERSONAL USE AND ADDITION MADE ON ACCOUNT OF SHO RT -: 2: - 2 WITHDRAWAL. IT WAS SUBMITTED THAT CONCLUSION OF TRI BUNAL WAS NOT JUSTIFIED AND THE FACTS OF THE CASE HAD NOT BEE N PROPERLY APPRECIATED BY THE TRIBUNAL. THE SAME SHOULD THERE FORE BE RECTIFIED U/S 254(2). 3. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL DAT ED 30 TH JUNE 2010 AND FOUND THAT ALL THESE THREE GROUND S HAD BEEN DECIDED AFTER CONSIDERING THE MATERIAL PLACED ON RECORD. HOWEVER THROUGH THIS PETITION THE ASSESSEE WANTS TO CHANGE THE CONCLUSION ARRIVED AT BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE U/S 254(2) IN SO FAR AS POWER U/S 254 I S VESTED ONLY TO RECTIFY A MISTAKE WHICH IS APPARENT FROM RE CORD AND THE CONCLUSION SO ARRIVED AT BY THE TRIBUNAL CANNOT BE CHANGED WHILE DECIDING THE MISC. APPLICATION U/S 25 4(2) OF THE INCOME-TAX ACT 1961. ACCORDINGLY ALL THESE THREE PLEAS OF ASSESSEE ARE DISMISSED. 4. IN THE ASSESSMENT YEAR 2008-09 THE LD. AUTHORIZED REPRESENTATIVE HAS DRAWN OUR ATTENTION TOWARDS ADDI TION MADE ON ACCOUNT OF INVESTMENT IN HOUSE PROPERTY AN D WHICH WAS CONFIRMED BY TRIBUNAL ALLEGEDLY WITHOUT CONSIDE RING THE DOCUMENTARY EVIDENCE OF SOURCE OF FUNDS UTILIZED IN THE SAID -: 3: - 3 HOUSE PROPERTY. OUR ATTENTION WAS DRAWN BY LD. AUTH ORIZED REPRESENTATIVE TO THE BANK ACCOUNT OF THE ASSESSEE FROM WHERE PAYMENT WAS MADE FOR PURCHASE OF HOUSE IN AN AUCTION BY BANK WHICH WAS THROUGH ACCOUNT PAYEE CHEQUE. OU R ATTENTION WAS INVITED TO PAPER BOOK PAGE NO.30 I.E. COPY OF UNION BANK OF INDIA ACCOUNT RAMESH RIJHWANI THE AM OUNT OF WITHDRAWAL BY M/S. MONICA GALAXY PRIVATE LIMITED BY CHEQUE AND THE SAME HAS BEEN PAID FROM THAT ACCOUNT ONLY F OR PURCHASE OF PROPERTY AND THE SOURCE WAS INDICATED T HEREIN. 5. AFTER GOING THROUGH ALL THESE MATERIALS AND ORDER PASSED BY TRIBUNAL THAT WHILE DECIDING THE APPEAL THE TRIBUNAL HAS NOT CONSIDERED THE BANK STATEMENT WH ICH WAS ALREADY PLACED ON RECORD INDICATING PAYMENT OF PURC HASE CONSIDERATION THROUGH CHEQUE WHICH AMOUNTS TO MIST AKE APPARENT ON RECORD. WE THEREFORE RECTIFY THE SAME AND RESTORE THIS GROUND BACK TO THE FILE OF ASSESSING OFFICER F OR RE- VERIFICATION OF ADDITION MADE ON ACCOUNT OF UNEXPLA INED INVESTMENT OF RS. 5 41 000/- WHICH WAS ALLEGED TO BE MADE THROUGH BANK ACCOUNT OF THE ASSESSEE AND DULY REFLE CTED -: 4: - 4 THEREIN. ASSESSING OFFICER IS TO DECIDE THE ISSUE A FRESH. WE DIRECT ACCORDINGLY. 6. IN THE MISC. PETITION FOR THE ASSESSMENT YEAR 2008- 09 THE LD. AUTHORIZED REPRESENTATIVE HAS ALSO REQUEST ED FOR RECTIFICATION OF APPARENT ERROR ON ACCOUNT OF CONFI RMING ADDITION OF UNEXPLAINED MONEY OF RS. 6 56 000/-. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT DURING COURSE OF SEARCH CASH OF RS. 6 71 005/ - WAS FOUND WITH SHRI RAMESH RIJHWANI DIRECTOR OF MONICA GALAXY LIMITED. IT WAS EXPLAINED THAT THE ASSESSEE HAS POS SESSED THE CASH SO FOUND WITH HIM AS DIRECTOR OF THE COMPANY A ND IT DOES NOT BELONG TO THE ASSESSEE. BY OBSERVING THAT CASH AS PER THE BOOKS OF THE COMPANY WAS ONLY RS. 14 407/- THE ASSESSING OFFICER CONFIRMED THE ADDITION IN THE HAN DS OF THE ASSESSEE. IT WAS SUBMITTED BY LD. AUTHORIZED REPRES ENTATIVE THAT THE SAME AMOUNT HAS ALREADY BEEN DECLARED IN T HE HANDS OF M/S. MONICA GALAXY PRIVATE LIMITED THEREFORE M AKING ADDITION OF THE SAME AMOUNT IN THE HANDS OF THE ASS ESSEE AMOUNTS TO DOUBLE ADDITION. -: 5: - 5 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND THAT THE AMOUNT ADDED IN THE HANDS OF ASSESSEE ON A CCOUNT OF CASH FOUND DURING SEARCH WAS ALLEGED TO BE BELONGIN G TO THE COMPANY M/S. MONICA GALAXY PRIVATE LIMITED. IT WAS ALSO STATED THAT M/S. MONICA GALAXY PRIVATE LIMITED HAVE ALREADY SURRENDERED THIS AMOUNT AND ALSO OFFERED TAX THEREO N. HOWEVER MAKING ADDITION IN RESPECT OF THE VERY SAM E AMOUNT IN THE HANDS OF THE ASSESSEE ONLY ON THE PLEA THAT THE CASH IN THE HANDS OF M/S. MONICA GALAXY PRIVATE LIMITED WAS ONLY RS. 14 407/- IS NOT JUSTIFIED. IF THE SAME AMOUNT HAVE ALREADY BEEN OFFERED IN THE HANDS OF THE COMPANY THEN MAKI NG ADDITION IN ASSESSEES HANDS BY NOT ACCEPTING THE P LEA OF THE ASSESSEE THAT FUNDS BELONGED TO THE COMPANY AND KEP T BY THE DIRECTOR AT ITS HOME AMOUNTS TO DOUBLE ADDITION. I N THE INTEREST OF JUSTICE WE RESTORE THIS GROUND ALSO BA CK TO THE FILE OF THE ASSESSING OFFICER TO RE-VERIFY THE FACTUAL P OSITION AND DECIDE THE MATTER AFRESH. WE DIRECT ACCORDINGLY. 9. IN THE RESULT THE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED IN PART IN TERMS INDICATED HER EINABOVE. -: 6: - 6 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 7 TH FEBRUARY 2012. (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 7 TH FEBRUARY 2012. CPU* 62