TaxTMI 
TaxTMI 
2018 (10) TMI 1296
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....e tune of Rs. 2,71,00,000/- u/s 69A of the 1961 Act was restored to the file of the learned Assessing Officer ( hereinafter called" the AO") for denovo determination of the issue on merits in accordance with law. The Revenue has however demonstrated that the reasons for reopening and details were given to the assessee which as we see later in this order , the assessee has disputed. The tribunal directed AO to provide copies of seized material and other incriminating material relied upon by Revenue to the assessee before prejudicing assessee and to grant opportunity of cross examination / rebut the incriminating evidences seized by Revenue from third parties before prejudicing assessee. The germane to additions were searches and survey action conducted by Revenue on Jai Corp Group of companies and also on one Mr Madan Kolambekar who was mainly dealing in the business of properties/real estate based in Navi Mumbai and was acting as land aggregator for Jai Corp Group of companies. During Searches on said Mr Madan Kolambekar u/s 132 on 22. 01. 2009 several incriminating documents were seized which led to survey u/s 133A on the same day on Jai Corp Group which also led to recovery of se....
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....e AO did not summoned said Mr Madan Kolambekar or Jai Corp Group to record their statements/explanation as to the material seized from their possession. The learned CIT(A) further held that AO failed to bring on record end use of the purported cash of Rs. 2. 71 crores received by the assessee. It was also observed by learned CIT(A) that the assessee never got chance to cross examine the parties nor got the chance to rebut the incriminating evidences related to payment of Rs. 2. 71 crores to the assessee. The learned CIT(A) was of the view that since the incriminating material was recovered from third parties and under these circumstances , the assessee cannot be burdened with the additions and no tax liability can be fastened on the assessee. Thus, on merits of the additions made by the AO, the learned CIT(A) held in favour the assessee and deleted the additions as was made by the AO. However, on justification for reopening of the assessment u/s 147 and other jurisdictional issue, the learned CIT(A) decided the issue in favour of Revenue and against assessee. The assessee did not challenge the issues decided against assessee by learned CIT(A) as neither appeal was filed by the asse....
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....pellate order passed by learned CIT(A) that the assessee was duly given copies of reasons for reopening of concluded assessment u/s 147 of the 1961 Act on 23. 08. 2013 which also found mentioned in learned CIT(A) order/page 9 para 5. 2 of learned CIT(A) order. The assessee was fully aware of the proceedings being conducted against it. The learned DR then prayed that the matter could be set aside to the file of the AO for denovo determination of the issue on merits. The tribunal went through entire material before it including seized incriminating material wherein there is a mention of payment of Rs. 2. 71 crores against the name of the assessee being paid on 28. 01. 2008 towards development charges which was decoded by Revenue as „on money‟ being paid to the assessee by Mr Madan Kolambekar for purchase of aforesaid plot of land and thereafter in the best interest of justice being fair to both the parties deemed it fit to restore the issue to AO for denovo determination of the issue on merits. It was also directed by the tribunal in order to do complete justice to both the parties that whatever incriminating material are going to be relied upon by the Revenue to prejudic....
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.... this MA is reliance on the decision of Hon‟ble Bombay High Court in the case of Additional CIT v. Lata Mangeshkar (97 ITR 696(Bom)) and Second decision of Hon‟ble Bombay High Court in the case of Bank of Baroda v. H. C. Srivastava (256 ITR 385(Bom) which were cited before learned CIT(A) and it is claimed that tribunal did not considered these decisions. It was submitted that no additions can be made based on documents seized from third party. In the instant case, the Revenue has conducted searches and survey against Mr. Madan Kolambekar Group/Jai Corp Group wherein incriminating material was found which incriminated assessee having received Rs. 2. 71 crores in a land dealing of sale of plot of land with the afore-said group‟s , which unaccounted cash amount were alleged by Revenue to have not been reflected by assessee in its return of income filed with the Revenue. The assessee was furnished with reasons for reopening and the assessee has given elaborate replies before the authorities below. The assessee vide letter dated filed before Sh S. S. Achan, ITO(page 38/pb) has referred to land deal of sale of plot no. 5/Sector 48. Donagiri during year under considerati....
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....onagiri. The assessee plot size is 2000 square meters and plot is situated in „Dronagiri‟ . Even plot number is mentioned and at the end word „P‟ is mentioned in the seized document. The plot number is also correct which is not disputed by the assessee. The assessee did sold this plot of land to these very parties from whose possession this incriminating document was seized. This is not a dumb document and it is speaking loudly. The income-tax Act, 1961 is governed by preponderance of probabilities and these are not criminal proceedings when the guilt is required to be proved beyond reasonable doubt. The assessee has to come clean by offering explanations in its defence. It is also fact of the matter that the assessee during the year under consideration did sold its aforesaid plot of land to these parties and it was not a case of the assessee that no such plot of land was sold. The payment of „on-money‟ in properties transaction is well known in India. The onus/burden in the instant case is very heavy on the assessee on peculiar factual matrix of the case. The case of Lata Mangeshkar(supra) concerned itself with professional receipt while the cas....
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....s as detailed above so that the assessee is not unfairly prejudiced. Then contentions are raised that synopsis as well letter dated 11. 10. 2017 filed by the assessee is not considered. It is incorrect. The tribunal did considered all material on record to arrive at a fair decision to do complete and substantial justice in this case keeping in view factual matrix surrounding the case. Now, during this MA , the assessee has brought on record fresh case laws which were not cited during the course of hearing before the bench on 03. 10. 2017 when the appeal was heard by the tribunal. This is another desperate attempt on the part of the assessee to wriggle out of the order of the tribunal through the process of giving it a colour of mistake apparent from record which could in the opinion of learned counsel for the assessee is rectifiable within limited mandate of Section 254(2) of the 1961 Act. We could have easily asked the assessee to refrain from bringing on record such judgments which were never referred to in original hearings of the appeal as otherwise there will be no end to litigation as also the other party has also equal right to enjoy fruits of success of litigation but keepi....