9911796707
TMI Blog2023 (7) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessees are as under :- ITA NO. 1279/JP/2019 : 1. The impugned order u/s 147/143(3) dated 28.09.2016 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be quashed. 2. The ld. CIT (A) erred in law as well as on the facts of the case in confirming the addition made by the AO of Rs. 6,32,500/- as unexplained investment. The addition so made and confirmed by the CIT (A), being totally contrary to the provisions of law and facts of the case, kindly be delete in full. 3. The ld. AO further erred in law as well as on the facts of the case in charging interest u/s 234B of the Act and as also. The appellant totally denies its liability of charging of interest. The interest so charged, being contrary to the provisions of law and facts, kindly be deleted in full. 4. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. ITA NO. 08/JP/2020 : 1. The impugned addition made in the order u/s 143(3)/148 of the Act dated 24.12.2016 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant craves to add, amend or withdraw any of the ground of appeal either before or at the time of hearing of appeal. ITA NO. 1123/JP/2018 : 1. That the re-assessment proceedings are ab-initio void, illegal and contrary to the facts available on record. 2. That the re-assessment order dated 13.12.2016 is per se illegal, arbitrary and runs counter to the facts on record and therefore deserves to be annulled. 3. That the Commissioner of Income-tax (Appeals) has grossly erred in upholding the addition of Rs. 4,66,660/- on account of alleged unexplained investment by application of provisions of section 69B on the basis of presumptions made on solitary evidence of exparte statements of Madan Mohan Gupta. 4. That the rough notings/entries made in the diary cannot be made basis for addition in absence of corroborative evidence proving the genuineness of the transaction. 5. That the Humble assessee craves leave of this Tribunal to add to, amend, alter and or delete all or any of the grounds of appeal. Additional Ground: That the notice dated 30.3.2016 issued under section 148 is ab-initio void, illegal, invalid and contrary to the provisions of the Income-tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO is unjust and against law because addition u/s 68 could be made where the assessee maintains regular books of accounts but the fact remains in this case is that no regular books of accounts are maintained by the assessee nor is she required to maintain any books of accounts because her income is from agriculture and not from any business activity. 6. That the impugned order is not a speaking order and as such it is liable to be cancelled. ITA NO. 1345/JP/2019 : 1. Under the facts & circumstance of the case, the order passed u/s 147 is illegal & bad in law. 2. The ld. CIT (A) has erred on facts and in law in confirming the addition of Rs. 8,00,000/- u/s 69 of IT Act made by AO on account of unexplained investment in land by adopting the value of plot allotted to the assessee at Rs. 3,150/- per sq. yd. as against the actual value of Rs. 1,150/- per sq. yd. paid by the assessee without bringing any material on record that assesee has made any such payment. He has further erred in confirming the addition made by AO on the basis of certain alleged document found from Shri Madan Mohan Gupta and his statement without providing such document to the assessee and opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed income. The seized documents reflect that, the assessee Sh. Kailash Chandra Gehlot had purchased one plot (Plot No. 134) measuring 200 Sq. Yard in the residential project "Revenue Residency" (NiziKhatedar Residential Scheme) at Village-PeeplaBharatsingh, (Jaisinghpura-Muhana Road), Bhankrota, Tehsil Sanganer, Jaipur developed by Sh. Madan Mohan Gupta in F.Y. 2008-09 (relevant to A.Y. 2009-10). The name of the assessee Sh. Kailash Chandra Gehlot is appearing at S.No. 134 in the seized register Annexure-AS (Unique ACCOUNT BOOK register) Exhibit-3 seized from the office premises of Shri Madan Mohan Gupta. Shri Madan Mohan Gupta has accepted and honoured on-money receipt on sale of plots in 'Revenue Residency' scheme, which is Rs. 2000/- per Sq. Yd. as per seized paper. Meaning thereby, the assessee, Sh. Kailash Chandra Gehlot has paid on money of Rs. 4,00,000/- to Shri Madan Mohan Gupta in FY 2008-09 (AY 2009-10) to purchase Plot no. 134 in 'Revenue Residency' scheme at Village PeeplaBharatsingh, Bhankrota, Tehsil- Sanganer, Jaipur. The assessee made an investment of Rs.2,32,500/- (that is purchase cost of plot no. 134, Revenue Residency) and he paid on money of Rs.4,00,000/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ec. 153C and not Sec. 147/148. 1.2 For better appreciation, the relevant provision is being reproduce here under verbatim: "S.153C. (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,- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred 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 other person and issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person [for six assessment years immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant paid own money towards the purchase of the plot no. 134 measuring 200 square yards in the "Revenue Residency" during the year under consideration. 1.5 From the admitted facts, the legal position and submissions, it is clear that the notice to the assesse in this case, could be issued only u/s 153A r/w S. 153C of the Act by the jurisdictional AO, and the impugned reassessment proceedings initiated u/s 147 were illegal and void in as much as the Assessing Officer did not follow the mandatory procedure laid down u/s 153C. Therefore, the impugned notice issued u/s 148 and reassessment proceedings deserves to be quashed. 1.6. Supporting case law: 1.6.1 The above proposition of law is fully and directly covered by various decisions in the cases of ACIT v/s Rajendra Kumar Jain in ITA No. 293, 408, 294 & 295/JP/2017 dated 28.03.2018 followed in the cases of Navrattan Kothari, Jaipur vs ACIT vide order dated 13.12.2017 in ITA no. 425/JP/2017 Para No.(DPB 1-44),wherein also, exactly similar controversy w.r.y Shri Madan Mohan Gupta`s search was involved. 1.6.2 Also kindly refer: ITO vs. Arum Kumar Kapoor140 TTJ 249 (Asr.),G.Koteswara Rao vs. DCIT 67 taxmann.com 159 (Vizag.) 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee in any other document/s seized from Shri Gupta including the register. Even statement of Shri Gupta were recorded at the back of the assessee, remaining uncrossed by the assessee in absence of opportunity. 2.3 Applying the ratio, on the facts of the present case, at the outset, it is submitted that the assessee purchased a plot no. 134in a Residential Scheme namely "Revenue Residency" (Nizi Khatedar Residential Scheme) for a consideration of Rs. 2,32,500/- which is duly evidenced by the official receipt no. 11 (PB 1) dated 22.06.2008 issued by the Seller and supported by the Possession Letter dated 22.06.2008 (PB 2) which is in accordance with the prevailing DLC rates. 2.4. The papers / information relied upon is based on a search conducted at the premises of a third party but not at the place of the assessee. Further, admittedly no material was found showing that the assessee itself was indulged in on money payment / undisclosed payment towards the purchase of the subjected property except merely referring to the statement of the seller. Thus, the impugned reasons are based upon a third party information that too unreliable and misinterpreted. Supporting case la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king note of the decision in cases of Madan Mohan Gupta and Navratan Kothari in para 2 thereafter, in para 3 the Hon'ble High Court took note of the fact that assessee's appeal with respect to reopening of assessment was allowed by ld. CIT(A) holding reassessment notice as invalid and further observed that The ITAT in its elaborate order discussed the validity of reassessment notice and upheld the order of the CIT(A). Notably, the ITAT did not deal with other grounds of appeal once they had already upheld the CIT(A) order in quashing the reassessment notice. The Hon'ble court thereafter, in para 4 considered the grounds of appeal urged by the revenue in support of the present appeal u/s 260A and finally in para 5 & 6 the Hon'ble Court was of the opinion that no substantial question of law arose and hence the appeal of the revenue was dismissed on both the issues. 1.8 There may be some contrary decisions however, the Rule of Precedence mandates that on all the subordinate authorities, the decision of the Jurisdictional High Court is binding and despite contrary view, the AO/ Appellate Authorities are bound to follow the Rajasthan High Court Decision. Moreover, even otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JDA along with Registered Deed issued by Sub Registrar, Jaipur-VII dated 18.02.2009 as per copies of documents placed on paper book. Subsequently, a search and seizure operation under section 132 of the IT Act, 1961 was conducted on Shri Madan Mohan Gupta on 23-05-2013 by the Investigation Wing, Jaipur of the Income Tax Department. During the course of search and seizure operation on Shri Madan Mohan Gupta, a register Annexure-AS (Unique Account Book register) Exhibit-3 along with some incriminating documents were found and seized. During the course of search and seizure action, statement of Shri Madan Mohan Gupta was recorded, who had explained the various documents found and seized during the search operation. The AO reopened the case of the assessee and initiated proceedings after requisite approval and notice under section 148 was issued on 30.03.2016, which was duly served upon the assessee. Consequently the AO while initiating proceedings recorded following reasons :- "A Search and seizure action u/s 132 of the Income-Tax Act, 1961 (" the act") was conducted on the residential and office premises of Sh Madan Mohan Gupta on 23-05-2013 who had been working as a deed-writer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of certain properties purchased by the assessee. The details recorded in the seized register found from the possession of Shri Madan Mohan Gupta allegedly revealed the purchase value of the plot at Rs. 6,32,500/-. The statement of Shri Madan Mohan Gupta was recorded by Investigation Wing in which he has explained the transactions of land purchased by the assessee. The assessee has denied having purchased the plot at Rs. 6,32,500/- other than amount of Rs. 2,32,500/- mentioned in the Receipt dated 22.06.2008 issued by Shri Madan Mohan Gupta, Revenue Residency and Allotment Letter from JDA along with Registered Deed issued by Sub Registrar, Jaipur-VII dated 18.02.2009. The Assessing Officer after reopening the case of the assessee has assessed the income of the assessee at Rs. 8,45,200/- by making an addition of Rs. 6,32,500/- on account of difference of purchase price of the plot. Therefore, in the search and seizure proceedings and in the subsequent investigation what was detected by the Department is the seized material containing the transaction of plot of land purchased by the assessee and the seller of the plot Shri Madan Mohan Gupta, Revenue Residency Scheme. Even Shri Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of s. 153A." 12. On a plain reading of the aforesaid provisions it is apparent that ss. 153A, 153B and 153C lay down a scheme for assessment in case of search and requisition. Sec. 153A deals with procedure for issuance of notice and assessment or reassessment in case of the person where a search is initiated under s. 132 or books of account, other documents or assets are requisitioned under s. 132A after the 31st day of May, 2003, Sec. 153B lays down the time-limit for completion of assessment under s. 153A. Sec. 153C which is similarly worded to s. 158BD of the Act, provides that where the AO is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in s. 153A he shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person. However, there is a distinction between the two provisions in as much as under s. 153C notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculiar circumstances, notice is correctly issued under section 148/147 of the IT Act and we are of the view that there is no direct evidence for issue of notice u/s. 153C of the Act in this case and the condition as prescribed u/s. 153C is reiterated here in below for the sake of convenience : "Section 153C. (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, - (a) any money, bullion, jewellery or other valuable article or thing seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to a person other than the person referred to in section 153A. Since, the condition precedent of issue of notice is not fulfilled for issue of notice u/s. 153C of the Act, we hold that there is no option for the AO to initiate the proceedings u/s. 147/148 of the Act. Therefore, the ground no. 1 raised by the assessee is dismissed. Ground No. 2. 6. In respect of Ground No. 2, the ld. A/R of the assessee appearing before us has submitted as under :- "The Id. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made to State of Kerala v/s K.T. Shaduli Grocery dealers, etc. AIR 1977 SC 1627, held that "It can hardly be disputed that cross- examination is one of the most efficacious methods of establishing truth and exposing falsehood. Here, it was not disputed on behalf of the Revenue that the assessee in both cases applied to the Sales-tax Officer for summoning Hazi Usaman Kutty and other wholesale dealers for cross-examination but his application was turned down by the Sales-tax Office. This act of the Sales-tax Office in refusing to summon Hazi Usaman Kutty and other wholesale dealer for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against the assessee. Also kindly ref. Murarka Properties Ltd. v/s B.L. Murarka, 1 SCC 109 (SC) and R.S. Nayak v/s AR Antulay AIR 1986 (SC) 2045. 3.2 In Andaman Timber Industries vs CIT (2015) 127 DTR 241(SC), it was held that: " 5. We have heard Mr. Kavin Gulati, learned senior counsel appearing for the assessee, and Mr. K. Radhakrishnan, learned senior counsel who appeared for the Revenue. 6. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the appeal on merits giving its reasons for accepting or rejecting the submissions. 8. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause Notice." 3.3. In Century Investment & International Trading Pvt. Ltd. v/s ITO 133 TTJ 803 (Del), it was held that assessment completed without opportunity to the assessee cross examining the creditors relied upon by the Revenue for making addition, was not justified. Although in that case the assessment was set-aside however, we derive support that such opportunity was a must. 3.4 Further the Hon'ble ITAT Jaipur has deleted similar additions in various cases following the case of Andaman Timber (Supra). 3.5 In the case of Sunita Dhadda, the Hon'ble Rajasthan High Court has taken similar view, which has now been affirmed by Hon'ble Apex Court also in the case of CIT vs. Sunita Dhadda and SLP no. 9432/2018 of the revenue was rejected vide order dated 28.03.2018. In this case the Hon'ble R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
