TMI Blog2018 (10) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to advance substantial justice to both the parties based on peculiar factual matrix of the case. The contentions of the assessee is an desperate attempt to seek some how review of the tribunal order which is beyond mandate of Section 254(2) of the 1961 Act and hence these contentions are dismissed as devoid of any merits. - MA No. 137/Mum/2018 - - - Dated:- 23-10-2018 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Ms Ritika Agarwal For The Revenue : Shri Ram Tiwari ORDER PER RAMIT KOCHAR, Accountant Member This Miscellaneous application( hereinafter called the MA ) has been filed by assessee being MA No. 137/Mum/2018 arising out of ITA no. 5752/Mum/2015 for assessment year (AY) 2008-09 . This MA filed by assessee is seeking rectification on the grounds that the alleged mistakes crept in the order passed by the Income-Tax Appellate Tribunal( hereinafter called the tribunal ) dated 23. 11. 2017 in ITA no. 5752/Mum/2015 which in the opinion of the assessee are apparent from records and needed to be rectified within the limited mandate of Section 254(2) of the Income-tax Act,1961(hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of searches and surveys conducted by Revenue as mentioned above, it transpired that the assessee also had made a sale of land deal in respect of CIDCO Plot in Sector 48, Plot No. 5 , Area 2000 square meters in Dronagiri node for which it received unaccounted cash payment of ₹ 2. 71 crores on 28. 01. 2008(page no. 221/Annexure A-3) which was not disclosed in return of income filed with Revenue. The enquiries were made by Revenue and it transpired that the plot of land is in prime location and has a value of ₹ 20000 to ₹ 25000 per square meters at that times when sale took place while the assessee suppressed sale value. The assessee had shown sale at the rate of ₹ 8750/- per square meters. The assessee tried to justify its stand of selling at the above rates but did not referred to aforesaid seized material ( Annexure A-3/page 221) which showed that ₹ 2. 71 cores were paid to the assessee as unaccounted cash payment, which led to the additions by the AO vide assessment framed u/s 143(3) r. w. s. 147 of the 1961 Act. 2. 2The learned CIT(A) deleted the additions on the grounds that the AO did not made further verifications apart from sending inspector. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minating material marked Annexure A-3/page 221 wherein this document clearly mentioned name of the assessee as an recipient of unaccounted cash of ₹ 2. 71 crores on 28. 01. 2008 towards sale of its plot, which was not offered for taxation. Reliance was placed by ld DR in the case decided by Hon‟ble Delhi High Court in the case of CIT v. Jansampark Advertising and Marketing Private Limited reported in (2015) 56 taxmann. com 286(Del. ) to contend that powers of learned CIT(A) are co-terminus with the powers of AO and the learned CIT(A) ought to have conducted an enquiry himself instead of blaming the AO in case learned CIT(A) was of the view that there are some deficiency in the enquiry conducted by the AO but to delete the additions were wrong on part of learned CIT(A) was the line of argument of learned DR before the Bench. The statement at bar was made by learned counsel for the assessee when the appeal was originally heard on 03. 10. 2017 that the seized material as well reasons for re-opening of concluded assessment u/s 147 were not given to the asessee during the assessment proceedings and the assessee never got the chance to rebut the incriminating material nor it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vo proceedings to support its contentions. The tribunal relied upon following decisions of Hon‟ble Courts to arrive at its decision and to do complete justice to both the parties which tribunal in any case is duty bound within mandate of the 1961 Act :- a) Hon‟ble Supreme Court decision in the case of CIT v. Kanpur Coal Syndicate (1964) 53 ITR 225(SC) b) Hon‟ble Supreme Court decision in the case of Andaman Timber Industries v. CCE(Civil Appeal No. 4228 of 2006 , orders dated 02-09-2015) c) Hon‟ble Delhi High Court decision in the case of CIT v. Jansampark Advertising and Marketing Private Limited reported in (2015) t56 taxmann. com 286 (Del.) It is also pertinent to mention that the assessee never filed any appeal against the order of learned CIT(A) upholding the validity of the re-opening of concluded assessment nor cross objections were filed against the appeal filed by Revenue and hence validity of Re-opening of the assessment and the finding of learned CIT(A) as to providing of reasons for re-opening of the concluded assessment by the Revenue to the assessee attained finality. 3. The above is background of the entire case. The assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the AO on 23-08-2013. The learned CIT(A) whose powers are co-terminus merely deleted the additions by entering into blame game. The tribunal after considering entire factual matrix set aside and restored the matter to the file of the AO for fresh determination and in the interest of justice and being fair to both the parties, granted another opportunity to assessee to come clean wherein directions were issued to AO to give copies of all incriminating material on which the Revenue intend to rely to prejudice assessee and grant cross examination of the persons from whose possession said incriminating material were recovered. The AO was directed by tribunal to allow proper opportunity of being heard in accordance with principles of natural justice and also to admit all evidences/explanation filed by assessee in its defence. We fail to understand what prejudice is caused to the assessee by tribunal as the matter is only remanded back for denovo consideration of the issue and it is not that the tribunal confirmed the additions. It is well known that in land/properties dealing, there is rampant on money‟ being transacted . The document (pb/76)-Annexure-3/page 221 of seized ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee is not being unfairly prejudiced. The assessee has also stated in MA filed with tribunal that decision in the case of CIT v. M/s Angchecker Land Private Limited in ITA no. 1361/Mum/2014 for AY 2009-10 decided by Mumbai-tribunal on 08. 03. 2016 was not considered by the tribunal. This case was also decided on its own factual matrix. The documents were found from the possession of some third party and there was mere mention of the name of the villages wherein tax-payer purchased lands and there was no specific mention of the plot of land etc. but in the instant case, the document speaks about the assessee and complete details of detail of plot of land , amount paid etc found mentioned in the seized document. The document seized in the instant case before us was not a dumb document but is speaking loudly. The assessee is in denial mode to have not received reasons for reopening the concluded assessment while learned CIT(A) held that the reasons for reopening was given on 23-08-2013. The assessee did not challenge that finding of learned CIT(A) as no appeal/CO was filed by the assessee and it reached finality. Each case is to be decided on its own prevailing factual m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be bad in law. The Hon‟ble Bombay High Court upheld the finding of fact recorded by tribunal and jurisdictional issue of Section 153C was decided in favour of the tax-payer as it could not be shown that documents seized from third party belonged to the tax-payer, while in the instant case before us, firstly the proceedings initiated against the assessee are u/s 147/148 wherein based on the incriminating material /information received by the Revenue, the assessments were re-opened. The re-opening were held to be valid by learned CIT(A). The assessee has accepted that findings by learned CIT(A) as no appeal/Cross objections were filed by the assessee. The ingredient of Section 147/148 are different than the ingredients of Section 153C. The document recovered clearly mention the name of the assessee, description of plot of land and the figure mentioned is ₹ 2,71,00,000/-. The date is also mentioned in this document marked as Annexure A-3/page 221 seized from Mr Madan Kolambekar and Jai Corp Group. The assessee did sold the plot of land to these parties. The assessee was in denial mode while revenue stated that on 23. 08. 2013 , reasons for re-opening were furnished to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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