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Income Tax Appellate Tribunal, MUMBAI BENCH “E”, MUMBAI
Before: SHRI AMIT SHUKLA & SHRI GAGAN GOYAL
These appeals by assessee and cross appeal by revenue are directed against the order of Ld. CIT (A)-39, Mumbai, dated 18.06.2010 u/s. 250 of the Income Tax Act, 1961 (in short ‘the Act’) for A.Y. 2008-09 respectively.
The revenue has raised the following grounds of appeal:-
1. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in directing the Assessing Officer to delete the addition of Rs. 82, 50,000/- made on account of papers seized from the residence without appreciating the facts that the assessee failed to submit satisfactory evidence showing direct co-relation between unaccounted money received, offered for taxation and the unaccounted payments reflected in seized documents.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in directing the Assessing Officer to delete the addition of Rs. 1, 23, 77,500/- made on account of papers seized from the Plaza Panchsheel Office without appreciating the facts that the assessee failed to submit satisfactory evidence showing direct co-
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) relation between unaccounted money received, offered for taxation and the unaccounted payments reflected in seized documents.
3. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in directing the Assessing Officer to delete the addition of Rs. 1, 91,000/- made on account of papers seized from the Fort office without appreciating the facts that the assessee failed to submit satisfactory evidence showing direct co-relation between unaccounted money received, offered for taxation and the unaccounted payments reflected in seized documents.
4. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in directing the Assessing Officer to delete the addition of Rs. 13, 02,933/- made on account of difference in cash found at Home without appreciating the facts that the assessee failed to submit satisfactory evidence showing direct co-relation between unaccounted money received, offered for taxation and the unaccounted payments reflected in seized documents.
5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the Assessing Officer to delete the addition of Rs. 1,89,400/- made on account of balance jewellery found during the course of search, which did not tally with what was declared under VDIS, The Appellant craves to leave to add, amend and/or to alter any of the grounds of appeal, if need be.
The Appellant, therefore, prays that on the grounds stated above, the order of the CIT (A) - 39, Mumbai may be set aside and that of the Assessing Officer restored.
The brief facts of the case are that assessee filed his return of income on 3. 06.01.2009 declared total income at Rs. 1,09,08,570/-. The assessee was engaged in the business of consultancy in the field of Real Estate and also undertaken few
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) projects for development of property in partnership. In course of this, assessee has given advances and spent sum amount either to require the property to be developed or to get NOC of tenants, occupants or landlord. In addition to this, assessee was director in the company M/s. Navkar Corporate Services Pvt. Ltd. and Vratya Properties Pvt. Ltd.
A search operation u/s. 132 of the Act was conducted on 13.03.2008 at the residential and business premises of the Navkar Group of companies. Assessee was also covered in the search operations. Case of the assessee was assessed at Rs. 4, 20, 76,650/- based on seized documents. Assessee being aggrieved with this order of assessment, assessing his income at Rs. 4, 20, 76,650/-, preferred an appeal before the Ld. CIT (A)-39, Mumbai. In his order u/s. 250 vide dated 18.06.2010; Ld. CIT (A) partly allowed the appeal of the assessee and confirmed a portion of assessment order also. In consequence to this, against the relief granted to assessee, department is in appeal and where Ld. CIT (A) confirmed the order of AO, assessee is in appeal before us.
We have gone through the order of AO, Ld. CIT (A), submissions of the assessee and relevant annexure of the seized material vide paper book. It is also observed through revised Form No. 36 filed by both the parties that assessee expired on 14.11.2015. The present appeal is being pursued by his legal heir, his son Mr. Darsh Sanjay Jain. In order to comprehend the entire issue with reference to seized material found during the search, we have matched the information or seized material vis-a-vis the order of AO and the order of Ld. CIT (A).
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) 6. In our observation, we do not find any misinterpretation or left over in the order of the Ld. CIT (A). Considering the seized material as a basic document for whole proceedings under consideration, in our view the specific comments on each and every head of addition is not required relying on the comments and working contained in the order of Ld. CIT (A). In this context, we are deciding the departmental appeal first and then the issues raised by assessee.
On ground no. 1, we are reproducing the findings of fact duly reconciled with the seized material, findings of AO and submissions of assessee are as under:-
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) 8. The above findings of the Ld. CIT (A), we found in consonance with the seized material and additional income (undisclosed income) offered in his return filed in compliance to section 153A of the Act. We do not find any perversity in the findings of the Ld. CIT (A) on this issue. Hence, ground no. 1 raised by the revenue is dismissed.
Ground no. 2 pertains to addition made to the tune of Rs. 123, 77,500/- made on account of papers seized from the Plaza Panchsheel Office. Being sum total of page no. 11, 12 & 13 of annexure A-1. On ground no. 2, we are reproducing the findings of fact duly reconciled with the seized material, findings of AO and submissions of assessee are as under:-
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
Figure wise discussion and elaborate findings after referring the relevant seized material, we also have our concurrence to the order of Ld. CIT (A) on the issue of addition amounting to Rs. 123,77,500/-. We are not inclined to interfere in the findings of the Ld. CIT (A), hence ground no. 2 raised by the revenue is dismissed.
Ground no. 3 pertains to addition of Rs. 1, 91,000/- made on account of paper seized from the Fort Office. We have gone through the findings of Ld. CIT Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
(A) vis-a-vis seized documents referred in the assessment order. The findings of Ld. CIT (A) on this issue are as under;- Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
We also found that this addition if sustained will tantamount to double addition as the same has specifically included in the total income declared by the assessee and revenue had failed to prove otherwise. In view of this, on this issue we confirm the findings of Ld. CIT (A) and ground no. 3 raised by revenue is dismissed.
Ground nos. 4 and 5 pertain to addition of Rs. 13, 02,933/- and 1,89,400/- made on account of difference in cash found at home and jewellery found during the course of search respectively. As the assessee has already offered Rs. 11.8 lakhs while declaring income in his return, sustaining this addition will tantamount to double addition which is not justified. This factor of disclosing Rs. 11.8 lakhs while filing return of income is totally ignored by the AO and difference amount of Rs. 13, 02,933/- was added to the income of the assessee. Effectively, he has to consider the figure of Rs. 11.8 lakhs declared by assessee and Rs. 1.37 lakhs (cash in hand available with the wife of the assessee). The relevant findings of the Ld. CIT (A) on both the issues are as under:-
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) 14. Our verification vis-a-vis the findings of the Ld. CIT (A) confirms the view that additions as enumerated in ground no. 4 & 5 are not sustainable. In view of this, Ground no. 4 & 5 raised by revenue are dismissed.
In the result, the appeal filed by the revenue is dismissed.
This cross appeal filed by the assessee is on the following grounds of appeal:-
The learned Commissioner of Income Tax Appeals erred in confirming addition at Sr. No. 5, 10, 11, 14, 15, 17, 18, 22, 23, 24, 25 (part), 28, 30 and 31 of the order at page no 10, 11, 12, 13 for A.Y. 2008-09 on the basis of the inscription made on the seized material and rejecting the claim of the appellant that the same pertains to movement of cash from Office to 36 residence & treated the total figures in Lakhs on its own presumptions.
2. The learned Commissioner of Income Tax Appeals has erred in presuming that a proposal requesting Rs. 53, 00,000/- payment in cash, is made in cash for the acquisition of property at Kandivali (E) and treated the same as undisclosed income and added to the total income of the assessee & ignored the fact that confirmation of the party showing payment received till a particular date is also forming part of seized material & MOU entered is showing no payment in cash. 3. The Appellant craves leave to add amend the right to after, add or substrate any grounds of appeal
on or before disposal of appeal.
17. We have gone through the contentions of the assessee raised vide ground no.
1. We found its a matter of fact which assessee never raised before the AO and Ld. CIT(A) . First time this question of fact raised before us which is not permissible as per law. We being the second appellate authority cannot accept this plea of assessee being a question of fact never raised before. Only a question of law can be raised before any stage including ITAT. In view of this fact and Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) settled legal position, we do not find this ground of assessee fit for adjudication at this level, hence dismissed.
18. Ground no. 2 pertains to payment made in cash by the assessee for acquisition of property at Kandivali (E). Again the findings of Ld. CIT (A) found to be relevant and reproduced herein below as under:-
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain)
Concurring with the above findings of Ld. CIT (A), we also confirmed the addition of Rs. 53 lakhs and ground no. 2 raised by the assessee is dismissed.
In the result, appeal of the assessee is dismissed.
Others Shri Darsh Sanjay Jain (Legal Heir of Late Shri Sanjay Jain) 21. In the result, the appeal filed by the revenue is dismissed and appeal filed by the assessee is also dismissed.